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Salt Lake City v. Josephson

Supreme Court of Utah

January 29, 2019

Salt Lake City, Appellee,
v.
Randall Josephson, Appellant.

          On Certification from the Court of Appeals Third District, Salt Lake The Honorable Katie Bernards-Goodman No. 141913058

          Scott A. Fisher, Paige Williamson, Hyrum J. Hemingway, Salt Lake City, for appellee

          Dayna K. Moore, Salt Lake City, for appellant

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Justice Petersen joined.

          OPINION

          Durrant, Chief Justice

         Introduction

         ¶1 Randall Josephson was charged in Salt Lake City Justice Court with one count of threat of violence, a class B misdemeanor under Utah Code section 76-5-107. The alleged threat occurred on September 7, 2014. While that case was pending, Salt Lake City charged Mr. Josephson in the Third District Court with one count of stalking, a class A misdemeanor under Utah Code section 76-5-106.5, and one count of threat of violence, a class B misdemeanor. The district court threat of violence charge was based on an alleged threat that occurred on September 30, 2014, and the stalking charge was based on alleged conduct occurring throughout September 2014. Mr. Josephson argues that the district court prosecution was barred by the earlier justice court prosecution or, alternatively, that the district court plainly erred in failing to merge the threat of violence and stalking charges. Because we find that neither issue was preserved nor amounts to plain error, we affirm.

         Background

         ¶2 Randall Josephson and D.C. were neighbors in September 2014.[1] During that month, Mr. Josephson made daily threats to D.C. On September 7, 2014, Mr. Josephson threatened D.C. Five days later, Salt Lake City (the City) filed an information in justice court charging Mr. Josephson with threat of violence based upon the September 7 threat. D.C. later received a stalking injunction against Mr. Josephson, which was served on September 20, 2014. On September 22, 2014, Mr. Josephson was arraigned on the information in justice court. On September 30, 2014, Mr. Josephson again threatened D.C. The City later filed an information in district court charging him with stalking and threat of violence based on the September 30 threat. The next month, the information in justice court was amended to an infraction. Two months later, Mr. Josephson represented himself at a bench trial in justice court and was found guilty on the threat of violence charge stemming from the September 7 threat. On March 13, 2015, he was sentenced to probation and a fine in justice court.

         ¶3 On September 7, 2015, Mr. Josephson filed a motion in limine in district court to exclude testimony regarding the September 7, 2014 threat, the basis of his justice court conviction. The next day, the City amended the information against Mr. Josephson in district court to reflect that the stalking charge was based on conduct during the entire month of September, rather than just September 30. The district court heard argument on Mr. Josephson's motion in limine. It denied the motion and held a jury trial. At the close of evidence, Mr. Josephson made a motion for a directed verdict on double jeopardy grounds. That motion was denied. Mr. Josephson was convicted on both counts. He now appeals his conviction, arguing that the district court prosecution was barred by the earlier justice court prosecution or, alternatively, that the district court plainly erred in failing to merge the convictions at sentencing.

         ¶4 Mr. Josephson timely appealed the district court's decision. The parties briefed the matter before the court of appeals and the court of appeals certified the matter to this court for original appellate review. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).

         Issues and Standard of Review

         ¶5 Mr. Josephson raises two issues on appeal: (1) whether the trial court erred in allowing the district court prosecution for stalking and threat of violence when Mr. Josephson had previously been prosecuted and convicted of another threat of violence charge in justice court, and (2) whether the district court plainly erred in failing to merge the threat of violence conviction with the stalking conviction.

         ¶6 Mr. Josephson argues that the first issue was preserved but the City argues it was not. We conclude that it was not preserved, and we accordingly review for plain error.[2] Both parties agree that the second issue was not preserved and must be reviewed for plain error.[3]

         Analysis

         ¶7 Mr. Josephson challenges his conviction in the district court in two ways. First, he argues that the district court violated Utah Code section 76-1-403 (the single criminal episode statute) by permitting the state to prosecute the stalking and threat of violence charges even though he had already been prosecuted and convicted in justice court for conduct that allegedly formed the basis of his district court prosecution. Second, he argues that the district court erred by failing to merge his threat of violence conviction with his stalking conviction. Because neither of these alleged errors constituted plain error, we affirm Mr. Josephson's conviction.

         I. The District Court Did Not Plainly Err By Permitting the State to Prosecute the Threat of Violence and Stalking Charges

         ¶8 Mr. Josephson argues that his justice court prosecution serves as a bar of his district court prosecution under the single criminal episode statute. The City disagrees. Additionally, the City argues that even if the district court erred by failing to apply the single criminal episode statute, we should nevertheless affirm the conviction because Mr. Josephson failed to preserve this argument below and the error, if any, does not constitute plain error. Because we find insufficient evidence in the record to satisfy the preservation requirement, we review Mr. Josephson's argument under our plain error standard. And under this standard we affirm his conviction.

         A. Mr. Josephson failed to preserve his single criminal episode argument

         ¶9 Mr. Josephson argues that he preserved his argument under the single criminal episode statute when he asserted that the district court prosecution was barred by the double jeopardy clauses of the Utah and United States Constitutions. We disagree.

         ¶10 The preservation doctrine serves a number of important policies. "One of the most important purposes of preservation is that it allows an issue to be fully factually, procedurally, and legally developed in the district court."[4] "[It] enables us to analyze both the application of a legal rule or principle to a concrete and well-developed dispute and, nearly as important, the effect of the district court's ruling on the overall course of the proceedings below."[5] When parties fail to preserve issues, we do not receive "the benefit of a trial judge's reasoning and analysis on the issue at hand."[6]

         ¶11 The preservation doctrine also serves our "policy of fairness" because it "generally would be unfair to reverse a district court for a reason presented first on appeal. This is because, had the contention now before us been raised below, [the appellee] might have countered the argument, potentially avoiding the time and expense of appeal."[7]

         ¶12 "[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue."[8] "This requirement puts the trial judge on notice of the asserted error and allows for correction at that time in the course of the proceeding."[9] Three factors "help determine whether the trial court had such an opportunity: '(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority.'"[10] The party must put forth enough evidence that "the issue [is] sufficiently raised to a level of consciousness before the trial court."[11] Applying these factors, we hold that Mr. Josephson did not preserve his single criminal episode argument below.[12]

         ¶13 Although Mr. Josephson raised double jeopardy concerns on several occasions both pre- and posttrial, [13] at no point in any of those arguments did he point the district court to the single criminal episode statute argument that he now makes. This is significant because the analysis for a double jeopardy challenge is distinct from the analysis under the single criminal episode statute.

         ¶14 "The double jeopardy clauses of both the Utah and federal constitutions limit the government's ability to prosecute or punish an individual multiple times for the same conduct."[14] The single criminal episode statute, "takes the matter a step further[, ] . . . barring prosecutions for different offenses committed as part of a single criminal episode and otherwise meeting the terms of the statute."[15] Because the single criminal episode statute could apply to bar the prosecution of offenses beyond those offenses that were already prosecuted, the statute expands the protections of double jeopardy.[16] And this expanded scope of protection will often require courts to conduct analysis beyond what is required when only a double jeopardy argument is raised.

         ¶15 Additionally, there is an important difference between the operation of the protections under the single criminal episode statute and the double jeopardy clauses. Unlike the constitutionally based protection provided by the double jeopardy clauses, the protections under the single criminal episode statute are limited by the language of the statute. "The single criminal episode statute is strictly procedural in nature. It requires that when a defendant is brought before a court, all offenses arising from a single incident which are triable before that court be charged at the same time."[17] To the extent that is not possible, "the state is not required to choose to prosecute only some of the offenses committed by a defendant."[18]

         ¶16 So the single criminal episode "provisions are implicated not for all former prosecutions arising out of a single criminal episode, but only as to former prosecutions in which the offenses in question were 'known to the prosecuting attorney at the time the defendant is arraigned on the first information or indictment.'"[19] For this reason, the single criminal episode statute does not apply to any prosecutions stemming from conduct arising after the date of the first arraignment. This feature of the statute is significant in this case and ultimately defeats Mr. Josephson's preservation argument.

         ¶17 Because the single criminal episode statute does not apply to any prosecutions stemming from conduct arising after the date of the first arraignment, the determination of whether or not the statute applies may often depend on the district court's factual findings regarding the timing of events-factual findings that might not be relevant to the more limited focus of a double jeopardy ...


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