State v. Levin

2004 UT App 396, 101 P.3d 846, 512 Utah Adv. Rep. 12, 2004 Utah App. LEXIS 427, 2004 WL 2473454
CourtCourt of Appeals of Utah
DecidedNovember 4, 2004
Docket20030336-CA
StatusPublished
Cited by8 cases

This text of 2004 UT App 396 (State v. Levin) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Levin, 2004 UT App 396, 101 P.3d 846, 512 Utah Adv. Rep. 12, 2004 Utah App. LEXIS 427, 2004 WL 2473454 (Utah Ct. App. 2004).

Opinion

OPINION

JACKSON, Judge:

11 Ralph Levin challenges his conviction for possession or use of marijuana with a prior conviction under Utah Code section 58-37-8@2)(a)() and for possession of drug para-pherpnalia under Utah Code section 58-837a-5(1). We affirm.

BACKGROUND

1 2 In May 2001, Deputy Wayne Keith was patrolling along the Provo Dike Road when he noticed that the registration tags of a convertible car parked on the side of the road were expired. He pulled up behind the car and walked to the car on foot to notify its three occupants. The car's convertible roof was down, and, while standing beside the car, Deputy Keith noticed several open containers in plain view and asked the occupants for identification. Upon a subsequent search of the vehicle, he found a "socket" tool that had been used to smoke marijuana and several small bags containing marijuana in a backpack. Deputy Keith radioed for drug recognition officers to assist at the scene. When the officers arrived they conducted several field sobriety tests that indicated that the driver, Levin, had been smoking marijuana. When Deputy Keith asked Levin if he had been smoking marijuana, Levin responded *848 that he had not. At some point, Deputy Keith stated that he knew Levin had been smoking marijuana, to which Levin responded he had.

{[ 3 Levin was cited for possession or use of marijuana with a prior conviction, in violation of Utah Code section 58-87-8(2)(a)(i) (1998), and for possession of drug paraphernalia, in violation of Utah Code section 58-837a-5(1) (1998). He pleaded not guilty to both counts.

T4 Before trial, Levin moved to suppress statements he made at the time of his citation, claiming that Deputy Keith had subjected him to custodial interrogation without informing him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court denied the motion on May 22, 2002.

15 Prior to trial, Levin also moved to exclude evidence of a prior conviction for possession or use of marijuana and moved to bifurcate the matter of his prior conviction. The trial court granted both motions on May 14, 2002. However, during his direct examination at trial, Levin stated that "I don't smoke marijuana, and I haven't smoked mar-iuana." Before cross-examination, the State asked the court to rule on the admissibility of Levin's prior drug conviction in light of the statements he had made during direct examination. The court concluded that Levin's statements had "opened the door" and permitted the State to admit evidence of Levin's prior drug conviction under rule 609 of the Utah Rules of Evidence. At the conclusion of evidence, the judge read an instruction explaining that the jury could only consider the prior conviction evidence for assessing credibility.

16 The jury convicted Levin on both counts. On appeal, Levin challenges the trial court's denial of his motion to suppress and the court's ruling to permit evidence of prior crimes.

STANDARDS OF REVIEW

17 " In reviewing the trial court's denial of [a defendant's] motion to suppress, we examine the underlying factual findings for clear error, and review the trial court's conclusions of law based thereon for correctness." " State v. Allred, 2002 UT App 291,¶ 8, 55 P.3d 1158 (quoting State v. Hayes, 860 P.2d 968, 971 (Utah Ct.App.19983)). However, because the determination of custody is fact-sensitive and " 'the facts to which the legal rule is to be applied are so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out,' " we recognize that the trial court has a degree of discretion "unless such determination exceeds established legal boundaries." State v. Teuscher, 883 P.2d 922, 929 (Utah Ct.App.1994) (quoting State v. Pena, 869 P.2d 932, 939 (Utah 1994)) (other citations omitted).

18 With regard to the court's determination to admit evidence of Levin's prior conviction, we review the trial court's conclusion for abuse of discretion. See Jensen v. Intermountain Power Agency, 1999 UT 10,¶ 12, 977 P.2d 474 ("[In reviewing a trial court's decision to admit or exclude evidence, we allow for broad discretion.").

ANALYSIS

I. Motion to Suppress

A. Trial Court's Findings of Fact

T9 The trial court entered the following findings of fact in its May 22, 2002 order denying Levin's motion to suppress:

1. On May 2, 2001, Deputy Wayne Keith was patrolling Provo Dike Road that is located just south of the Provo Boat Harbor. This is a public road.
2. Deputy Keith observed a convertible vehicle that was parked on the side of the road. Deputy Keith noticed that the registration was expired on the vehicle and subsequently stopped his vehicle behind the parked convertible. Deputy Keith did not activate his overhead lights or his siren when he parked behind the vehicle. Furthermore, he did not block their vehicle from moving or leaving with the position of his vehicle.
3. Deputy Keith observed three occupants sitting in the car.
4. Deputy Keith approached the vehicle on foot and observed several open containers of alcohol in plain view in both the *849 front and rear area of the passenger compartment of the vehicle.
5. Deputy Keith asked for the three passenger's [sicl identification. Defendant was determined to be the individual sitting in the driver's seat.
6. Deputy Keith asked the occupants to step out of the vehicle and [explained] that he was going to search for more open containers.
7. Deputy Keith began searching the vehicle for open containers. In the center console, which was large enough to house an open container, Deputy Keith smelled the odor of marijuana and observed a metal "socket" that was fashioned into a pipe. The socket smelled of marijuana and appeared to have marijuana residue in the "pipe."
8. In a back-pack in the back seat, Deputy Keith found three plastic bags that were determined to contain marijuana. The rear[-] seated passenger stated it was his back-pack.
9. Deputy Keith asked Defendant about the socket that was found in the center console between the driver's and passenger seat[s]. Defendant stated he did not know it was there and insisted that he had not smoked any marijuana. At this time, Defendant was not under arrest nor was he handcuffed.
10. Within a short time, two other officers arrived. Because Defendant was in the driver's seat, Defendant was asked to perform some field sobriety tests.
11. The officer that conducted the field sobriety tests on Defendant, Deputy Todd Orton, was a certified Drug Recognition Expert.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 UT App 396, 101 P.3d 846, 512 Utah Adv. Rep. 12, 2004 Utah App. LEXIS 427, 2004 WL 2473454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-levin-utahctapp-2004.