Murray City v. Culley

MEMORANDUM DECISION
(Not For Official Publication)

Murray City,
Plaintiff and Appellee,

v.

Roderick Culley,
Defendant and Appellant.

Case No. 971672-CA

F I L E D
November 27, 1998
-----

Third District, Murray Department
The Honorable Joseph C. Fratto

Attorneys:
D. Gilbert Athay and Michael R. Sikora, Salt Lake City, for Appellant
G.L. Critchfield, Murray, for Appellee -----

Before Judges Bench, Garff,(1) and Greenwood.

GREENWOOD, Judge:

Defendant Roderick Culley appeals his conviction of violating a protective order in violation of Utah Code Ann 76-5-108(1) (Supp. 1998) on the grounds of insufficiency of the evidence. We affirm.

When a defendant challenges a conviction based upon sufficiency of the evidence, we review the "'evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict.'" We reverse only when the evidence "'is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted.'" State v. Johnson, 821 P.2d 1150, 1156 (Utah 1992) (alteration in original) (citation omitted).

Utah Code Ann. section 76-5-108(1) provides that "[a]ny . . . defendant subject to a protective order . . . who intentionally violates that order after having been properly served, is guilty of a class A misdemeanor . . . ." Utah Code Ann. 76-5-108(1) (Supp. 1998) (emphasis added). Defendant argues that service is an element that must be proven beyond a reasonable doubt in order to convict him of this offense and that because he was not properly served, the evidence was insufficient to convict him. We disagree.

Utah Code Ann. 76-1-501(2) (1995) defines "element of the offense" as "(a) [t]he conduct, attendant circumstances, or results of conduct proscribed, prohibited, or forbidden in the definition of the offense; [and] (b) the culpable mental state required." Applying basic rules of statutory construction, service is not an element of the crime when sections 76-5-108(1) and 76-1-501(2) are "construed in a harmonious fashion." State v. Souza, 846 P.2d 1313, 1317 (Utah Ct. App. 1993) (citation omitted). Also, because it is unclear whether section 76-5-108(1) requires service for conviction of the crime, we must look to other sections of the Criminal Code to interpret the meaning of that section. See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1045 (Utah 1991) (citation omitted) (holding "'[i]f there is doubt or uncertainty as to the meaning or application of the provisions of an act, it is appropriate to analyze the act in its entirety, in light of its objective, and to harmonize its provisions in accordance with its intent and purpose'"). Therefore, although section 76-5-108(1) mentions proper service, this section, when read in conjunction with the specific definition of the elements of an offense under section 76-1-501(2), does not include service as an element of the crime. See State v. Bishop, 753 P.2d 439, 468 (Utah 1988) (holding court's "primary responsibility" is to "give effect to the legislature's intent, even if our interpretation appears at odds with conventional usage or literal construction of the statutory language."). Moreover, we believe service of process is relevant only to the culpable mental state required, as well as to basic principles of due process and fairness. Section 76-5-108(1) requires the State to prove a defendant "intentionally" violated a protective order. Proper service of a protective order probably establishes the requisite mens rea of intentionality, but it is not the only means of doing so, as demonstrated in this case.

Even assuming arguendo that service is required under the statute, defendant effectively waived this requirement. Waiver is defined as "the relinquishment . . . of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong." Black's Law Dictionary 1092 (6th ed. 1991). Here, defendant's presence at the hearing on the protective order, stipulation to entry of the order, and admission at trial that he was aware of the terms of the protective order, together constitute an "implied relinquishment of [his] legal right" to service of process. See id.

The purpose of the service requirement in section 76-5-108(1) is to provide notice to a defendant subject to a protective order of the prohibited conduct. However, where, as here, defendant received notice of the contents of the protective order by his presence at the hearing or through other channels, service is unnecessary.(2) A similar conclusion was reached in Small v. State, in which the Texas Court of Appeals held that service is not the only manner in which a defendant may obtain notice of a protective order against him. See id., 809 S.W.2d 253, 256-57 (Tex. Ct. App. 1991). Rather, the State may establish that a defendant was aware of a protective order in many ways, one of which is that the defendant "agreed to a protective order, attended any hearing or in any way participated" such that he received notice, formal or informal, of the order. Id. (emphasis added). Similarly, in Ramos v. State, that same court upheld the conviction of a defendant for violating a protective order because the evidence established that "appellant had knowledge of the existence of the court order or was at least aware of it before he committed the offensive act," despite the fact that defendant was "never served with or given the opportunity to read the protective order." 923 S.W.2d 196, 197-98 (Tex. Ct. App. 1996).(3)Cf. In re S.A.C., 498 N.E.2d 285, 287 (Ill. Ct. App. 1986) (holding defendant not deprived of due process rights if present at hearing, represented by counsel, and given fair opportunity to object to issuance of order). These cases support the State's contention that as long as a defendant who is subject to a protective order receives notice, either formally or informally, of the prohibited conduct, he may be convicted of violating that order. Thus, because defendant in this case received notice of the protective order through his presence and participation at the hearing, he effectively waived his right to service.

CONCLUSION

Because there was sufficient evidence presented at trial to support defendant's conviction, we reject defendant's challenge of insufficient evidence and affirm defendant's conviction of violation of a protective order.
 
 

______________________________
Pamela T. Greenwood, Judge -----

I CONCUR:
 
 

______________________________
Regnal W. Garff, Judge

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I CONCUR IN THE RESULT:
 
 

______________________________
Russell W. Bench, Judge

1. Senior Judge Regnal W. Garff sitting by special appointment pursuant to Utah Code Ann. 78-2-4(2)(1995); Utah Code Jud. Admin. R3-108(4).

2. In State v. Rudolph, the Utah Supreme Court held "that an actor must have been 'properly served' with the protective order before he or she can be convicted of violating Utah Code Ann. 76-5-108." 349 Utah Adv. Rep. 11, 17 (Utah 1998). However, the court found that it was proper to charge defendant with violating an ex parte order or a permanent protective order when defendant was served with the ex parte order and had notice of the hearing on the permanent protective order but had not been served with it. See id.

3. Texas Penal Code Ann. 25.07(a)(2)(Vernon Supp. 1998) provides that a person violates a protective order if he knowingly or intentionally "communicates directly with a . . . member of the family or household in a threatening or harassing manner . . . ." Although this statute does not require that defendant be properly served with the protective order, Texas courts have held that for a defendant to be guilty of violating a protective order, he must be given notice of the protective order. See Ramos, 923 S.W.2d at 198 (Tex. Ct. App. 1991).