State of Utah, v. Nebeker

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Suzanne Nebeker,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000160-CA

F I L E D
February 1, 2001 2001 UT App 29 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
C. Robert Collins, Phoenix, Arizona, for Appellant
Craig C. Halls, Monticello, for Appellee -----

Before Judges Jackson, Bench, and Davis.

DAVIS, Judge:

We first address Appellant's assertion that the trial court erred when it denied her motion to dismiss the amended information because it violated her right not to be "twice put in jeopardy for the same offense." Utah Const. art. I, § 12; see also Utah Code Ann. § 76-1-403 (1999) (barring subsequent prosecution for offense out of same episode).

"[T]he propriety of a trial court's decision to grant or deny a motion to dismiss is a question of law that we review for correctness." Tiede v. State, 915 P.2d 500, 502 (Utah 1996). However, "[w]e review the trial court's underlying findings of fact for plain error." State v. Mendoza, 938 P.2d 303, 305 (Utah Ct. App. 1997).

Here, the State filed an information charging Appellant with one count of child abuse, allegedly committed on or about November 28, 1998, in violation of Utah Code Ann. § 76-5-109(3)(a) (Supp. 2000). However, during the trial, it became clear that the State was alleging that Appellant committed two separate instances of child abuse. Appellant made several objections, complaining that the information did not give her adequate notice regarding one of the alleged instances of child abuse. The court addressed these objections, allowed Appellant a recess to decide whether she would ask for a mistrial, and cautioned Appellant that a mistrial may not be in her best interest. After the recess, Appellant requested a mistrial. The trial court granted the mistrial based upon Appellant's assertions that the information did not give her notice that the State would be alleging two separate instances of abuse.

We are not convinced that the trial court erred when it denied Appellant's motion to dismiss the amended information.

Generally, if a defendant seeks a mistrial, he waives any defense he might otherwise assert based upon double jeopardy, even though the prosecution or the court provoked the error. However, double jeopardy bars retrial where bad faith conduct by a judge or prosecutor is intended to provoke a mistrial so as to afford the prosecution a more favorable opportunity to convict.

State v. Trafny, 799 P.2d 704, 709 (Utah 1990) (footnotes omitted). Here, Appellant acknowledges that she requested the mistrial; however, she argues that the State provoked her to seek the mistrial, and therefore, double jeopardy bars the State from retrying her on the original charge of child abuse. See id. We find Appellant's double jeopardy argument without merit because the record clearly shows that neither the judge nor the prosecutor acted in bad faith. Moreover, the record shows that the prosecutor went to great lengths to avoid a mistrial and proceed under the original information. Therefore, there is no indication that the acts of the prosecutor were "intended to provoke a mistrial so as to afford the prosecution a more favorable opportunity to convict." Id.

Appellant next argues that the trial court erred when it denied her motion to dismiss because the State should be barred from filing the amended information. In support of her argument, Appellant cites to dicta in State v. Wilcox, 808 P.2d 1028, 1033-34 (Utah 1991). In Wilcox, the Utah Supreme Court stated: "Once a prosecutor chooses to prosecute on such vague allegations, a necessary quid pro quo under our constitutional notice provision is that to protect the defendant from double jeopardy, the prosecutor should be precluded from bringing further charges that fall within the general description of the charging allegations." Id. at 1034. Here, the general double jeopardy protection described in Wilcox does not apply because Appellant sought the mistrial. See State v. Rudolph, 970 P.2d 1221, 1232 (Utah 1998) (stating defendant generally waives any double jeopardy defense if he or she seeks a mistrial); Trafny, 799 P.2d at 709 (same); see also Utah Code Ann. § 76-1-403(4)(a) (1999) (stating that subsequent prosecution is not barred by improper termination if defendant consents to termination).

Appellant further argues that the State should be barred from filing the amended information because she should be protected from prosecutorial vindictiveness. It is well settled that a prosecutor may penalize a defendant for violating the law; however, a prosecutor may not punish a defendant for "exercising a protected statutory or constitutional right." United States v. Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 2488 (1982); see also United States v. Contreras, 108 F.3d 1255, 1262 (10th Cir. 1997) (same). Here, the trial court found that there was no vindictiveness on the part of the prosecutor, and we are not convinced that this finding was clearly erroneous. The Appellant requested a mistrial because the information alleged one count of abuse based on two separate incidents. When Appellant voiced her concerns regarding the proposed evidence in support of the information, the prosecution sought to have the one count of child abuse cover both alleged incidents. The Appellant, despite warnings from the trial court, and rather than objecting to the admission of evidence respecting the second incident under the Utah Rules of Evidence, rejected the prosecution's proposal and requested a mistrial. Consequently, there is no indication that the prosecutor acted out of vindictiveness when he amended the information to address the very matter that precipitated the mistrial.

Appellant also makes various arguments alleging that the State violated her right to due process as well as her Fifth and Sixth Amendment rights. We decline to address these arguments because the trial court granted a mistrial, and Appellant's arguments are moot. See KUTV, Inc. v. Wilkinson, 686 P.2d 456, 458 (Utah 1984) ("The issue presented for our review has become moot . . . following the declaration of a mistrial."). In addition, we will not address Appellant's arguments because they do not pertain to a final order or judgment. See Utah R. App. P. 3(a). Finally, we decline to address these arguments because Appellant will be able to renew all her previous requests and objections in the retrial. See United States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997) ("A retrial following a mistrial is both in purpose and effect a new trial.").

For the reasons set forth above, we affirm the trial court's denial of Appellant's motion to dismiss the State's amended information.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge