State v. Lucero

State v. Lucero

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Andrew Lucero,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030263-CA
 

F I L E D
(September 30, 2004)
 

2004 UT App 334

 

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Second District, Ogden Department

The Honorable Ernest W. Jones

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

ORME, Judge:

    "When reviewing a trial court's decision to admit evidence under Rule 404(b), we apply an abuse of discretion standard." State v. Widdison, 2001 UT 60,¶42, 28 P.3d 1278. The trial court's decision to admit Defendant's four felony convictions at trial cannot be challenged on appeal since it was Defendant, not the State, who introduced evidence of the convictions during Defendant's direct examination. See State v. Lopez, 626 P.2d 483, 485 (Utah 1981) ("[I]f the defendant himself opens up the subject as to prior incidents, it becomes subject to cross-examination and refutation the same as any other evidence."). Cf. Ohler v. United States, 529 U.S. 753, 760 (2000) (holding that "a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error").

    Defendant argues that the trial court erred when it found sufficient probable cause to support the search warrant. On appeal, we will "assess whether the magistrate had a '"substantial basis" for determining that probable cause existed."'" State v. Norris, 2001 UT 104,¶14, 48 P.3d 872 (citations omitted), cert. denied, 535 U.S. 1062 (2002). When information is misstated in a search warrant affidavit, the error is harmless if probable cause exists even if the misstatement is disregarded. See State v. Nielsen, 727 P.2d 188, 191 (Utah 1986) (stating that an "affidavit must be evaluated to determine" if it "is insufficient to support a finding of probable cause after the misstatement is set aside"), cert. denied, 480 U.S. 930 (1987). Given the three controlled buys detailed in the affidavit, probable cause existed to support the issuance of the search warrant despite the misstatements contained in the affidavit.

    Defendant challenges the trial court's refusal to allow questioning regarding Hartley's prior employment termination and resulting theft charges. We review for abuse of discretion. See State v. Gomez, 2002 UT 120,¶12, 63 P.3d 72. Defendant argues that such questioning would have undermined Hartley's credibility and possibly resulted in a different outcome. However, "[c]ourts have found no prejudice where information that may be brought out by further questioning was already before the jury either from the testimony of others or by implication from the witness'[s] own testimony." State v. Maestas, 564 P.2d 1386, 1389 (Utah 1977). During his direct examination, Defendant introduced the fact that Hartley had been terminated from a prior job because of theft. Therefore, any error that was committed in refusing to allow further cross-examination of Hartley on the subject is harmless, given the strength of the case against Defendant.(1)

    Finally, Defendant has not demonstrated that the trial court abused its discretion when it denied Defendant's motion for a new trial.

    Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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James Z. Davis, Judge

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Norman H. Jackson, Judge

1. The trial court was correct in ruling that evidence of Hartley's prior theft was not admissible as a conviction under rule 609 due to its plea in abeyance status. See Utah R. Evid. 609. However, under Utah Rule of Evidence 608(b), "[a] line of questioning on cross-examination regarding a witness's specific instances of past conduct" is admissible if the trial court determines "the proposed testimony is probative of truthfulness or untruthfulness." State v. Gomez, 2002 UT 120,¶¶33-34, 63 P.3d 72. In this case, it is not so much Hartley's theft that is probative of his truthfulness, but rather his course of repeated lies surrounding the theft. In evaluating instances of prior conduct, "courts may inquire about the particular facts involved to determine if dishonesty or false statement was involved in the commission of the crime" to ascertain if the evidence is probative of untruthfulness. State v. Brown, 771 P.2d 1093, 1094 (Utah Ct. App. 1989). Hartley's lying to cover up the theft is clearly probative of his untruthfulness. Therefore, the trial court erred in ruling that evidence of Hartley's past conduct could not be admitted under rule 608(b). Given the strength of the prosecution's case, however, the error was not prejudicial.