State of Utah v. Holfeltz

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State of Utah,
Plaintiff and Appellee,

v.

Roger Lee Holfeltz,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981193-CA

F I L E D
August 30, 2001 2001 UT App 253 -----

Eighth District, Vernal Department
The Honorable A. Lynn Payne

Attorneys:
Alan M. Williams, Vernal, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Thorne.

THORNE, Judge:

Defendant Roger Holfeltz appeals from his conviction for Failure to Respond to an Officer's Signal to Stop, a Third Degree Felony, in violation of Utah Code Ann. § 41-5-13.5 (1999). We affirm.

Holfeltz first argues that the trial court erroneously denied his motion to suppress all evidence obtained after the police officers unlawfully seized him. In considering this claim, we are mindful that "a prior illegality by officers does not affect the subsequent arrest of a defendant where there is an intervening illegal act by the suspect." State v. Griego, 933 P.2d 1003, 1008 (Utah Ct. App. 1997). "Where the defendant's response is itself a new, distinct crime, there are strong policy reasons for permitting the police to arrest him for that crime. . . . [E]xtending the fruits doctrine to immunize a defendant from arrest for new crimes gives a defendant an intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected to the chain of causation started by the police misconduct." Id. (citation omitted).

Here, while inquiring about an unrelated matter, police officers noticed the registration tags on Holfeltz's license plate had expired. The officers notified Holfeltz, told him that the car would be impounded, and then asked for his license and registration. In response, Holfeltz said "like hell you are," and started moving towards the vehicle. One of the officers commanded Holfeltz to stop while the other began pursuit. Holfeltz entered the vehicle and started the engine. The officer in pursuit then lunged into the car and attempted to remove the keys. Holfeltz closed the car door on the officer, pinning him to the door frame, and drove away while the officer continued his attempt to remove the keys.

Assuming arguendo that the trial court correctly determined Holfeltz was unlawfully seized when the officer requested his license and registration,(1) Holfeltz's subsequent actions constituted evidence of a "new, distinct crime." Griego, 933 P.2d at 1008; see also United States v. Waupekenay, 973 F.2d 1533, 1537 (10th Cir. 1992) ("In assault, resisting arrest, disorderly conduct, and weapons-related trials, [courts] have uniformly rejected motions to suppress arising from skirmishes comparable to the one at issue in the instant case."). Therefore, the trial court properly denied Holfeltz's motion to suppress.

Holfeltz next argues that the State presented insufficient evidence to support his conviction. "'To demonstrate that the evidence is insufficient to support [a] jury verdict, the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.'" State v. Hopkins, 1999 UT 98,¶14, 989 P.2d 1065 (citation omitted). "[T]o properly discharge the duty of marshaling the evidence, the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). When an appellant fails to marshal the evidence, we assume that the jury's findings are supported by the record. See Moon v. Moon, 1999 UT App 012,¶24, 973 P.2d 431. Here, Holfeltz has failed to marshal the evidence supporting his conviction; therefore, we assume that the jury's findings are supported by the record.

Holfeltz also argues that the trial court deprived him of the opportunity to present the defense that he was entitled to resist the trooper's decision to impound his car. Because the Legislature abolished all common law crimes in Utah, and subsequently enacted a number of specific and general defenses, "none of which recognize a general defense 'based on the illegality of police conduct,'" Griego, 933 P.2d at 1007 (citation omitted), Holfeltz must ground any resistance defense "'in the specific code section[] under which [he] is convicted.'" Id. (citation omitted); see also State v. Gardiner, 814 P.2d 568, 572 (Utah 1991) ("'The societal interest in the orderly settlement of disputes between citizens and their government outweigh any individual interest in resisting a questionable search.'" (quoting State v. Doe, 583 P.2d 464, 466-67 (N.M. 1978)));(2) cf. American Fork City v. Pena-Flores, 2000 UT App 323,¶¶11, 13, 14 P.3d 689 ("So long as a police officer is acting within the scope of his or her authority and the detention or arrest has the indicia of being lawful, a person can be guilty of interfering with a police officer even when the arrest or detention is later determined to be unlawful." (Emphasis added.))

Holfeltz was convicted of violating Utah Code Ann. § 41-6-13.5, Failure to Respond to an Officer's Signal to Stop. We have reviewed this section and conclude that the Legislature did not include a right to resist within the statutory language. Therefore, the trial court properly excluded Holfeltz's proposed defense of justifiable resistance.

Finally, Holfeltz claims that the trial court improperly denied Adult Probation and Parol's (AP&P) motion to terminate his probation. Probation determinations are within the sound discretion of the trial court. See State v. Maestas, 2000 UT App 22,¶12, 997 P.2d 314. Accordingly, we will "substitute our own judgment only if the evidence is so deficient as to render the court's action an abuse of discretion." Id. Holfeltz, however, fails to address the evidence, instead arguing that the trial court's refusal to conduct a hearing on the motion constitutes an abuse of discretion. Holfeltz is incorrect.

The plain language of Utah Code Ann. § 77-18-1(a)(i) (1999) does not require a trial court to conduct a hearing when reviewing a motion for early termination of a defendant's probation. On the contrary, section 77-18-1(a)(i) simply establishes that "Probation may be terminated at any time at the discretion of the court," id., and we refuse to read the requirement for a hearing into this language. Therefore, the trial court's denial of AP&P's motion for early termination was not an abuse of discretion.

Accordingly, we affirm Holfeltz's conviction.
 
 

______________________________
William A. Thorne, Jr., Judge -----

I CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

I CONCUR, EXCEPT THAT AS TO THE SUFFICIENCY OF THE EVIDENCE PORTION, I CONCUR ONLY IN THE RESULT:
 
 

______________________________
James Z. Davis, Judge

1. The trial court concluded that the officers did not have the necessary reasonable articulable suspicion to merely request Holfeltz's documents.

2. The Supreme Court also quoted the following language with approval: "'[A] private citizen may not use force to resist a peaceful search by one who he knows or has good reason to believe is an authorized police officer performing his duties, regardless of whether the search is ultimately determined to be illegal." State v. Gardiner, 814 P.2d 568, 573 (Utah 1991) (quoting Elson v. State, 659 P.2d 1195, 1200 (Alaska 1983)).