State v. Sorenson

542 P.3d 529

2023 UT App 159

STATE of Utah, Appellee,

v.Rodney Earl SORENSON, Appellant.

No. 20210884-CA

Court of Appeals of Utah.

Filed December 29, 2023

Second District Court, Ogden Department The Honorable Joseph M. Bean No. 211901270

Emily Adams and Hannah K. Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes and Lindsey L. Wheeler, Salt Lake City, Attorneys for Appellee

Judge Amy J. Oliver authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

OLIVER, Judge:

¶1 After he was found with folding knives and a hatchet in his car, Rodney Earl Sorenson—who was on probation for a prior drug offense—was charged with possession of a dangerous weapon by a restricted person. Sorenson first moved to bifurcate his trial, and the district court denied the motion. He also moved for a mistrial after testimony was introduced about an inflammatory statement he allegedly made about his probation agent (Agent). The district court denied that motion too. On appeal, Sorenson challenges the court’s denial of these motions and also argues defense counsel (Counsel) was ineffective for failing to object to testimony Agent gave about whether the knives and hatchet were dangerous weapons. We affirm Sorenson’s conviction.

BACKGROUND

¶2 Following a drone sweep of a secluded, wooded area, police officers discovered Sorenson "resting" in the driver seat of his car. The car was "messy" and had "a bunch of stuff in it." Because Sorenson was on probation for a prior drug possession offense, Agent was dispatched to the scene. When Agent arrived, she asked Sorenson if he had any weapons in the car. Sorenson said no, but then he pulled a folding knife out of the driver-side door compartment. Agent searched the car and discovered two more folding knives on the driver-side floorboard and a hatchet on the back seat. Sorenson indicated he was homeless and unemployed and had used methamphetamine a few days prior. Agent arrested him.

¶3 Sorenson was charged with one count of possession of a dangerous weapon by a restricted person, a third degree felony, due to his probation status. Sorenson moved to bifurcate the trial, arguing his restricted-person status was an enhancement or aggravating factor that should be tried separately from the issue of possession. During argument on his bifurcation motion, Sorenson suggested a bench trial on the restricted-person element or alternatively offered to stipulate to that element. The State argued Sorenson’s restricted-person status was "intrinsically intertwined" with the charge and that excluding the evidence would require it to "dance around" and "almost hid[e] information from the jury" as to why Agent was on the scene in the first place. The court denied Sorenson’s bifurcation motion, expressing that it was "concerned about the trial becoming a very, very difficult navigation around the restricted-person status," recognizing that the status is "an element of the offense."

¶4 Sorenson later offered to stipulate that he was "a restricted person for purposes of the trial and [to] instruct the jury to accept that stipulation." But the State declined to accept the stipulation because it was concerned about restricting its witnesses from testifying about the events.

¶5 At trial, the State’s first witness was a police officer (Officer). Officer testified about discovering Sorenson in his car and recalled that when he informed Sorenson that Agent was on her way, Sorenson said, "She’s a fucking cunt." Based on this statement, Counsel moved for a mistrial, stating there was body camera footage of Officer's interaction with Sorenson and it "never mentioned those words." The court denied the motion for a mistrial because the statement could be impeached by playing the footage. The court then allowed Counsel a short voir dire examination of Officer to determine the portion of the footage where the slur was allegedly said. The defense later played a "specific snippet" of the footage for the jury.¹ After reviewing the footage, Officer admitted he thought Sorenson said "motherfucking cunt" but Sorenson was "tum[ing] away" as he said it, "so it may just have been ‘motherfucker.’"

¶6 The State then called Agent, She indicated that she supervised Sorenson's probation on his prior drug possession charge and read the portion of the probation agreement regarding weapons into the record. She testified about being called to the scene by Officer and finding the knives and hatchet in Sorenson’s car. Throughout her testimony, Agent made several statements about whether the folding knives were dangerous weapons. When asked how she reacted to Sorenson grabbing the knife from the driver-side door, Agent testified, "I said ‘Don’t touch it.’ " When asked why she said this to Sorenson, she stated, "Because it’s a dangerous weapon." Later, the State reminded her, "And you testified that knives are a dangerous weapon," to which Agent said, "Yes. Their intended purpose is to cut." The State then asked her again why she told Sorenson to put the knife down, to which Agent said, "Because it’s a dangerous weapon, and if he were to come at me with that, he could kill me." Counsel then asked Agent whether all knives would be considered dangerous weapons in the hands of a probationer. Agent stated that probationers are "allowed to have kitchen knives," but "those kitchen knives belong in their kitchen." Agent explained that if she found knives "in their bedroom or their bathroom, that now becomes a dangerous weapon because it’s left the area where it is intended to be used." And Agent testified, "If you ask not just my opinion, any agent’s opinion or a police officer’s, a knife is a dangerous weapon,"

¶7 Sorenson’s only witness was his brother (Brother). Brother testified about retrieving the contents of Sorenson’s car. Brother photographed the items, and at trial, he testified that the items—including a duffel bag full of clothing, a bag of tools, a sleeping bag, and a tent-belonged to Sorenson.

¶8 In the end, the parties agreed to stipulate to Sorenson’s restricted-person status in a jury instruction that read, "Parties stipulate that under Utah law, a Category I restricted person is a person who is on probation for possessing a controlled substance. They further agree that Rodney Sorenson qualified as a Category I restricted person at the time of the events in question." The jury found Sorenson guilty, and he was sentenced to an indeterminate prison term of up to five years.

ISSUES AND STANDARDS OF REVIEW

[] ¶9 Sorenson raises three issues on appeal. First, he argues the district court should have granted his motion to bifurcate his trial. "We review the district court’s failure to bifurcate a criminal trial for an abuse of discretion." State v. Bragg, 2013 UT App 282, ¶ 15, 317 P.3d 452.

[] ¶10 Next, Sorenson argues the court erroneously denied his motion for a mistrial. We also "review the denial of a motion for a mistrial under an abuse of discretion standard" and "will not find such abuse unless the incident so likely influenced the jury that the defendant cannot be said to have had a fail’ trial." State v. Silva, 2019 UT 36, ¶ 36, 456 P.3d 718 (cleaned up).

[] ¶11 Finally, Sorenson argues Counsel was ineffective in failing to object to Agent’s testimony calling the knives and hatchet dangerous weapons. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Carranza, 2023 UT App 72, ¶ 32, 533 P.3d 850 (cleaned up), cert, denied, Nov. 14, 2023 (No. 20340764).

ANALYSIS

I. Bifurcation

[4, 5] ¶12 Sorenson argues his trial should have been bifurcated, allowing the jury to decide first whether he intentionally or knowingly possessed a dangerous weapon before separately determining whether he was a restricted person. Because of their "considerable discretion to administer the business of [their] docket[s] and determine how a trial should be conducted," State v. Rhinehart, 2006 UT App 517, ¶ 19, 153 P.3d 830 (cleaned up), district courts have the power to order the separate trial "of any claim … or of any separate issue" "in furtherance of convenience or to avoid prejudice," Utah R. Civ. P. 42(b).²

¶13 Despite the discretionary nature of this decision, Sorenson argues the district court was required to bifurcate his trial. Relying on our supreme court’s decision in State v. Wareham, 772 P.2d 960 (Utah 1989), Sorenson argues his restricted-person status is an aggravation or enhancement to his charge that required bifurcation from the guilt phase of his trial. See id. at 962-65. Even assuming that Sorenson’s restricted-person status is an aggravating factor under Wareham, however, our supreme court recognized bifurcation of such aggravating factors is not an absolute requirement in State v. Reed, 2000 UT 68, 8 P.3d 1025. The Reed court concluded that bifurcation may be avoided if

(1) the evidence of the aggravating factors is offered for a noncharacter purpose under rule 404(b) [of the Utah Rules of Evidence]; (2) the evidence is relevant under rule 402; and (3) the evidence has probative value that significantly outweighs the danger it poses of unfair prejudice, as required by rule 403.

Id. ¶ 25. Thus, Reed "expressly recognized that bifurcation is not required when the aggravating conviction is otherwise admissible at trial." State v. Bragg, 2013 UT App 282, ¶ 34, 317 P.3d 452. Evidence of Sorenson's probation status was admissible at trial under this formulation.

[6, 7] ¶14 First, the evidence does not pose a problem under rule 404(b) of the Utah Rules of Evidence. Rule 404(b) dictates that evidence of "a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character." Utah R. Evid. 404(b)(1). But this...