State of Utah v. Green

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Thomas W. Green,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981531-CA

F I L E D
July 13, 2000
  2000 UT App 218 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis

Attorneys:
Margaret P. Lindsay, Provo, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

DAVIS, Judge:

Thomas W. Green appeals his conviction of issuing a bad check in violation of Utah Code Ann. § 76-6-505 (1999). Green also appeals the trial court's order of restitution.

I. Exclusion of The Contract

Green first argues that the trial court erred when it refused to admit a contract that the court considered irrelevant and potentially confusing. "'A trial court has broad discretion to admit or exclude evidence and its determination typically will only be disturbed if it constitutes an abuse of discretion.'" State v. Whittle, 1999 UT 96,¶20, 989 P.2d 52 (citation omitted).

We agree with Green that the contract was not only relevant, but the very heart of his defense.(1) Furthermore, we do not believe that the probative value of the contract was substantially outweighed by the danger of confusion of the issues or undue delay. See Utah R. Evid. 403. There is nothing in the record even remotely suggesting how exposing the jury to the relevant portion of the contract in written form would cause delay. Further, those portions of the contract are clear and unambiguous. Consequently, the trial court abused its discretion when it excluded the contract.

Although the trial court erred when it refused to admit the contract, we will reverse only if the error was harmful. "In circumstances where evidence should have been admitted, it is reviewed for harmless error. If it is reasonably likely a different outcome would result with the introduction of the evidence and confidence in the verdict is undermined, then exclusion is harmful." State v. Colwell, 2000 UT 8,¶26, 994 P.2d 177.

In this case, we do not agree with the State's argument that testimonial reference to the terms of the contract rendered the exclusion harmless. Although two witnesses testified regarding "provisions" and "agreements" between the parties, the specific terms of the contract were never before the jury either in writing or via testimony.(2) Due to these inconsistent references to the contract and its terms, and having no way to reference the contract, it is likely that the jury was confused regarding the specific terms of the contract. Indeed, the exclusion of the contract itself, rather than its admission, surely created more confusion and delay.

Additionally, it is probable that the confusion was compounded when the jury was instructed that "[t]he mere existence of a contract does not, in and of itself, constitute a legal defense to the criminal charge, and you are instructed to rely upon evidence presented at trial." It is likely that this instruction further confused the jury because the court referred to the terms of the contract after it refused to admit the contract into evidence. Therefore, the jury knew there was a contract, and that the contract had some bearing on Green's defense. However, the jury could only speculate as to the exact terms of the contract.

The importance of the specific terms of the contract, combined with the high probability that the exclusion of the contract rendered the testimony of the witnesses and the jury instruction confusing, leads us to conclude that it is reasonably likely that a different outcome would have resulted had the contract been admitted into evidence. Accordingly, we reverse the conviction.

II. The Mistake-of-Fact Jury Instruction

Because we reverse Green's conviction, we need not address the trial court's refusal to instruct the jury as to Green's "mistake of fact" defense. However, in the event the State elects to refile charges, it is likely that the issue of the proposed "mistake of fact" instruction will recur. See State v. Fisk, 966 P.2d 860, 861 (Utah Ct. App. 1998) (dismissing appeal but deciding issue in interests of judicial economy and providing guidance to parties and court); State v. Bell, 770 P.2d 100, 108 (Utah 1988) (addressing issue in interest of judicial economy, since issue likely to recur, to provide trial court with guidance).

A trial court need not necessarily give a proposed instruction when the essence of the proposed instruction is covered in the instructions actually given. See State v. Kazda, 545 P.2d 190, 192 (Utah 1976) (ruling trial court did not err when it refused to give "mistake of fact" instruction because court had instructed jury as to State's burden and elements of offense, including intent). In the present case, the jury was instructed that the State had to prove, beyond a reasonable doubt, the elements of the offense, including intent. Therefore, the trial court did not err when it refused to give Green's "mistake of fact" instruction.

III. The Award of Restitution

Similarly, we need not address the trial court's award of restitution. However, as with the issue of the proposed jury instruction, we address the issue of restitution because it is likely to recur. See, e.g., Fisk, 966 P.2d at 861.

In the present case the trial court erred when it ordered restitution. At the time Green was sentenced, Utah Code Ann. § 77-38-2(9) (1997) defined "victim of a crime" as "any natural person against whom the charged crime or conduct is alleged to have been perpetrated." Consequently, when Green allegedly committed the crime, Utah Code Ann. § 76-3-201 (1997) did not include corporations within the statutory definition of victim. Cf. State v. Westerman, 945 P.2d 695, 699 (Utah Ct. App. 1997) (holding that pre-1997 definition of "victim" did not include insurance companies for purposes of restitution). Because A-Plus is not a natural person, the trial court erred when it awarded A-Plus restitution under section 76-3-201. Further, if Green is retried and found guilty, the trial court must apply the 1997 definition of victim. See State v. Dominguez, 1999 UT App 343,¶11, 992 P.2d 995 (recognizing that ex post facto prohibitions apply to restitution orders). Therefore, if Green is retried and found guilty, the trial court may not award A-Plus restitution.

CONCLUSION

We reverse Green's conviction because the trial court abused its discretion when it refused to admit the contract and it is reasonably likely that there would have been a different outcome had the court admitted the contract. Additionally, to provide the parties and the trial court with guidance, we advise the parties and the court of the following: (1) the court did not err when it refused to give the "mistake of fact" instruction; and (2) the court erred when it awarded A-Plus restitution.
 
 
 
 

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

WE CONCUR:
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

1. Paragraph IV-f of the contract states: Should payment of any amounts due A-Plus Benefits not be made when due, Client shall pay A-Plus Benefits a late fee of two (2) percent of total invoice. If A-Plus Benefits is requested to hold and not deposit a check, Client agrees to pay an additional charge of two (2) percent of total invoice. In the event that a check is dishonored by a financial institution, Client agrees to pay an additional three (3) percent of the total invoice." 2. These inconsistencies regarding reference to the contract continued in closing arguments during which the State and defense counsel referred to the contract as a "document," an "arrangement," and an "agreement." Furthermore, the record indicates that defense counsel was prohibited from making specific reference to the contract during his closing arguments.