State of Utah v. Peterson

State v. Peterson

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,
Plaintiff and Appellant,

v.

Lance R. Peterson,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020330-CA
 

F I L E D
(April 24, 2003)
 

2003 UT App 122

 

-----

Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellant

Michael D. Esplin, Provo, for Appellee

-----

Before Judges Billings, Bench, and Greenwood.

BENCH, Judge:

The sole, signed, written order dismissing "the charges as set forth on the information" was entered on April 1, 2002. On April 22, 2002, the State filed its notice of appeal. The State's notice of appeal was not, therefore, untimely. See Utah R. App. P. 4(a) (stating that "the notice of appeal . . . shall be filed . . . within 30 days after the date of entry of the judgment or order appealed from"); State v. Crowley, 737 P.2d 198, 198 (Utah 1987) (per curiam) ("An unsigned minute entry does not constitute a final order for purposes of appeal."); State v. Wright, 904 P.2d 1101, 1102 (Utah Ct. App. 1995) (holding that an order is not final until "'it [is] reduced to writing and signed'" (citation omitted)).

Neither is the State's appeal from the dismissal of count two of the information moot. Defendant moved to suppress the evidence seized from his car and from his person, and that motion was granted. Defendant did not move to suppress the evidence obtained from his bedroom; therefore, that evidence was not suppressed. The State concedes that "a finding that the search of the vehicle was illegal might render the subsequent consent search invalid." We note, however, that the suppression order was not based on illegal police activity, but rather "on the basis that the State [was] not ready to proceed." Thus, invalidity of the consent search is not a foregone conclusion; rather, it requires analysis that was not urged below. See State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993) (outlining the test for whether "consent to a search following illegal police activity is valid under the Fourth Amendment"). We will not undertake that analysis for the first time on appeal. See State v. Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991).

Finally, we address the State's contention that "the evidence at the preliminary hearing was sufficient to establish probable cause that Defendant was in possession of methamphetamine." "[A]t . . . the preliminary hearing stage[], the prosecution must present sufficient evidence to support a reasonable belief that an offense has been committed and that the defendant committed it." State v. Clark, 2001 UT 9,¶16, 20 P.3d 300. "'The facts presented, however, do not have to establish a prima facie case against the defendant.'" Id. at ¶11 (citation omitted); see id. at ¶16.

Sergeant Taylor testified that following Defendant's arrest, Defendant's friend said something to Defendant about his bedroom window and took out a cell phone to make a phone call. Sergeant Taylor prevented the phone call and then obtained consent to search Defendant's bedroom. On the way to the jail, Defendant told Sergeant Taylor that he was "very concerned about them finding methamphetamine in his bedroom, and he said that all he had was a quarter gram." A search of Defendant's bedroom yielded a baggy containing a white crystal substance that field tested positive for methamphetamine.

"In [reviewing] a determination as to probable cause, [we] . . . view the evidence in a light most favorable to the prosecution and resolve all inferences in favor of the prosecution." State v. Pledger, 896 P.2d 1226, 1229 (Utah 1995). Viewed in that light, Sergeant Taylor's testimony regarding the substance clearly "support[s] a reasonable belief that [the] offense [of possession of methamphetamine] has been committed and that [Defendant] committed it." Clark, 2001 UT 9 at ¶16. Contrary to the trial court's conclusion, neither lab results nor the substance itself were required as evidence at the preliminary hearing in order to bind Defendant over for trial.

Defendant argues that "[t]he one officer who was called to testify at the preliminary hearing did not give believable testimony concerning the testing of the substance" and that "the trial [c]ourt's assessment of the lack of evidence is supported by the record of the officer's testimony demonstrating a failure to recall events in a believable manner." Although using the term "lack of evidence," Defendant's argument actually calls for a weighing of the evidence presented at the preliminary hearing. "'[T]he magistrate may not sift or weigh the evidence . . . but must leave those tasks "to the fact finder at trial."'" Id. at ¶10 (citations omitted). In any event, Defendant's admission to the officer that "he had a quarter gram" of methamphetamine was sufficient to bind Defendant over.

We therefore reverse the trial court's dismissal of count two of the information and remand for such further proceedings as may now be appropriate.

______________________________

Russell W. Bench, Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge