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State v. Calvert

Court of Appeals of Utah

November 16, 2017

State of Utah, Appellee,
Chadley Keith Calvert, Appellant.

         Third District Court, West Jordan Department The Honorable Mark S. Kouris No. 121400830

          Herschel Bullen, Attorney for Appellant

          Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.

          POHLMAN, JUDGE.

         ¶1 Chadley Keith Calvert appeals his convictions for aggravated assault, a third degree felony, and for threatening with or using a dangerous weapon in a fight or quarrel, a class A misdemeanor. Calvert contends that his trial counsel provided constitutionally ineffective assistance in failing to raise arguments related to double jeopardy and that the trial court exceeded its discretion in admitting evidence of a prior bad act. He also argues that his trial counsel was ineffective in failing to object to the jury's access to a state-owned laptop for the purpose of viewing an exhibit and that counsel's failure was structural error. We affirm.


         ¶2 After an altercation in front of his house in July 2012, during which Calvert threatened neighbors with a gun, Calvert was charged with third degree aggravated assault and with threatening with or using a dangerous weapon in a fight or quarrel. Before trial, the State filed a motion in limine seeking to admit evidence of two prior incidents during which Calvert allegedly threatened neighbors with the use of deadly force. The State argued that the admission of evidence of Calvert's prior acts was warranted to show the absence of accident or mistake and to rebut Calvert's claims of fabrication and self-defense. The trial court refused to admit the older of the two incidents but, over Calvert's objection, ruled that evidence of the more recent 2008 incident (the Holladay incident) could be admitted for the purpose of rebutting Calvert's claims of fabrication and self-defense.

         ¶3 At trial, the State offered testimony from several witnesses to the July 2012 altercation. Several minors recounted that on that evening they and their families attended a party a few houses away from Calvert's house. As this group of minors passed by Calvert's property, Calvert stepped out onto his front porch and yelled profanities at them, telling them to stay away from his yard. The oldest minor, A.H., approached Calvert and told him "not to talk to [the children] like that." Calvert then "exchanged words" with A.H., yelling that the minors needed to stay away from his property and threatening to "kick [A.H.'s] ass." A.H. then said that he was going to get his parents and quickly returned to the party. One of the minors testified that Calvert "pulled out a gun or something like that" during this argument.

         ¶4 Several adults testified that A.H. and other minors told the adults at the party that a man was screaming and swearing at them. A.H.'s uncle (Uncle) immediately went to check on the children and stood on the sidewalk in front of Calvert's house. Calvert was at his front door and had a gun in his hand. The gun had a laser sight that emitted a "red light." When Uncle asked Calvert what happened, Calvert told him to leave and pointed the gun at Uncle's chest for "probably 30 seconds." "[S]everal times, " Calvert "put the laser on" Uncle and "took it away." Two other adults from the party arrived at the scene and both saw Calvert holding a gun. After they urged Uncle to go home, Calvert threatened that he would "bring out [his] dogs so [they] could have a conversation dog-to-dog." Calvert also told them to leave his property or "things were going to get bad." A.H. called 911. Shortly before the police arrived, Calvert ran and put his gun in his garage.

         ¶5 A responding officer (Officer) who interviewed Calvert that night testified that Calvert reported that he had had an altercation with the neighbors and that "some kids were hanging . . . on [his] tree." Calvert pointed out the tree, but Officer "didn't see any broken branches, " only "a few leaves on the ground." When Officer asked Calvert about a gun, Calvert responded that he had been "sitting on his steps with just the laser pointer" and that he had pointed the laser at the ground. Calvert said that he had a gun in an upstairs bedroom and agreed to show it to Officer. The gun was a Smith & Wesson Sigma that was loaded and stored in a neoprene holster. The Sigma did not have a laser sight and did not match the witnesses' descriptions of Calvert's gun. Calvert told Officer that, during the altercation, he did not have time to come inside to retrieve the gun but that he called his neighbor.

         ¶6 Officer testified that, once back outside, he informed Calvert that the neighbors reported that Calvert put the gun in the garage. Calvert denied that report and, despite having said he did not have time to get the Sigma from the upstairs bedroom, stated that "it was the Sigma that he had." When Officer asked Calvert for permission to search the closed garage to verify his statement that he did not place a gun there, Calvert eventually consented to a search and admitted that there was "a Glock in the . . . garage with a laser sight on it." Another officer searched the garage and secured the Glock. Officer did not observe any other laser pointers on the property.

         ¶7 Calvert's former neighbor (Former Neighbor) also testified about the Holladay incident, which had been the subject of the State's motion in limine. She testified that in 2008, she and Calvert lived in the same duplex in Holladay, Utah. On Halloween, she had had an altercation with Calvert. She was at home when a friend reported seeing someone outside taking pictures and hiding behind Former Neighbor's car. According to Former Neighbor, when she walked outside to investigate, Calvert grabbed and pushed her. She fell, and when she attempted to stand up, he pushed her down again, calling her names and swearing at her. He also threatened to "kill [her] or something, " and then sped away in his truck. On cross-examination, Former Neighbor explained that, after the altercation, she and Calvert each brought charges against the other and that all charges were ultimately dropped.

         ¶8 In his defense, Calvert elicited testimony from his neighbor, B.M., who lived across the street. B.M. testified that Calvert called him on the night of the July 2012 altercation and told him, "[Y]ou might need to come out here, there might be a situation." According to B.M., he went outside and saw Calvert talking to a man on the sidewalk near Calvert's driveway. B.M. heard the man near the driveway say to Calvert, "Why don't you come over here, homes." B.M. observed a "red light" that "looked like a laser, " and although he "couldn't tell" if there was a gun, he could see what looked like a "red dot" from a laser "dancing around . . . on the ground." B.M. called the police.

         ¶9 Calvert also testified in his defense. He stated that when his dogs barked and woke him up that evening, he observed "a bunch of children just causing all sorts of ruckus in [his] front yard." He claimed that one child was hanging on his tree and causing it to scratch his vehicle. Calvert told the children to "get out of [his] tree, " and they "started yelling" at him. Calvert and one minor exchanged profanities.

         ¶10 According to Calvert, after the group went on its way, he "grabbed a flashlight, " checked his property, and discovered a broken sprinkler. He fixed the sprinkler and then brought food out on the porch. As Calvert was eating, he "heard a scuffle behind [him], turned around, " and saw someone "trying to reach through [the] railing [to] grab [him]." Calvert "jumped up, " opened his front door, and the alarms for his house and garage went off.

         ¶11 Believing that someone had triggered the garage alarm by entering the garage, Calvert called B.M. for help and retrieved a gun from his upstairs bedroom. When he opened the garage door to investigate, he saw a man standing inside. Calvert pointed the gun, with the laser on, at the man's head and instructed him to get off his property. According to Calvert, the man put his hands up and backed out of the garage. Once the man was halfway down the driveway, Calvert secured his gun in his paddle holster. From the threshold of his garage, Calvert saw another man in the darkness to his left side and a third man standing to his right side under his tree. Calvert could also see B.M. across the street using his phone. B.M. then talked with the strangers, and although B.M. and Calvert told the men to leave Calvert's property, the man in the driveway would not leave. When the police arrived, Calvert removed his gun from the paddle holster and set them both on the four-wheeler in his garage.

         ¶12 After the defense rested, the State recalled Officer, who then testified that, during their interactions, Calvert did not mention someone grabbing him through the railing on his porch or that someone had been in his garage. Officer also testified that the only holster he saw on Calvert's premises was the holster in Calvert's bedroom that held the Sigma.

         ¶13 Before submitting the case to the jury, the court instructed that if the jury considered Former Neighbor's testimony, it could do so "for the limited purposes of: considering defendant's fabrication and self-defense claim in the current case." The court further cautioned that the evidence regarding the Holladay incident was "[neither] admitted to prove a character trait of the defendant nor to show that the defendant has a propensity to act in a certain way." The court reminded the jury that Calvert was on trial for only the charged crimes in the present case and warned that the jury could not convict Calvert based on the belief that Calvert might have committed another act at "some other time."

         ¶14 The court also instructed that to find Calvert guilty of aggravated assault, the jury was required to find beyond a reasonable doubt the following elements: "1. That . . . Calvert committed an act of assault upon [Uncle]; and 2. That such attempt or act was committed intentionally or knowingly; and 3. That [Calvert] used a dangerous weapon." For the jury to find Calvert guilty of threatening with or using a dangerous weapon in a fight or quarrel, the jury had to find beyond a reasonable doubt these elements: "1. That . . . Calvert was in the presence of two or more people; and 2. Drew or exhibited any dangerous weapon, to wit: a handgun; and 3. (a) Did so in an angry or threatening manner, or (b) unlawfully used the same in any fight or quarrel." Additionally, the court provided instructions regarding self-defense and defense of habitation.

         ¶15 As the trial court and counsel collected the exhibits to send back with the jury for deliberations, the court noted that State's Exhibit 2 was a CD, which contained the recording of A.H.'s 911 call. The prosecutor volunteered that he had "a laptop . . . if [the jurors] need it." The court responded, "Very good. We'll let them listen to that . . . ." Defense counsel did not object.

         ¶16 The jury found Calvert guilty of both aggravated assault and threatening with a dangerous weapon. Calvert subsequently filed a motion to arrest judgment, in which he asserted that "the prosecutor's computer laptop was taken back to the jury room during deliberations, and remained in the jury room throughout the jury's deliberations, " and that good cause therefore existed to arrest judgment. He asserted that the verdict was "incurabl[y] taint[ed]" because "[t]here is no way to ever know for certain whether the juror[s] used the computer, accessed government files on the computer, learned of other evidence, or communicated with outside parties." In opposition, the State asserted that the laptop "contain[ed] no information related to the case" and that, because it "was a tool to review admitted evidence, " it did not taint the verdict. The trial court judge agreed with the State, explaining, "[T]he laptop was controlled, it was only for the playing of the 9-1-1 call and I don't see that it caused any taint at all." Calvert appeals.


         ¶17 Calvert advances three main contentions on appeal. First, Calvert contends that his trial counsel rendered constitutionally ineffective assistance by failing to raise arguments arising out of double jeopardy concerns. "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." Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (alteration in original) (citation and internal quotation marks omitted).

         ¶18 Second, Calvert contends that the trial court erred in granting the State's motion to admit other bad acts evidence under rule 404(b) of the Utah Rules of Evidence. We will reverse a trial court's decision to admit evidence of other bad acts under rule 404(b) only if the trial court exceeded its discretion and the error was harmful. State v. High, 2012 UT App 180, ¶ 14, 282 P.3d 1046.

         ¶19 Third, Calvert contends that his trial counsel provided constitutionally ineffective assistance in failing to object when the prosecutor proposed sending his laptop into the jury deliberation room, and that such failure constitutes structural error for which prejudice is presumed. As set forth above, we consider Calvert's ...

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