State v. Hamilton , 2020 UT App 11 ( 2020 )


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    2020 UT App 11
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    MIKEL PRATT HAMILTON,
    Appellant.
    Opinion
    No. 20180620-CA
    Filed January 9, 2020
    Third District Court, Salt Lake Department
    The Honorable Linda M. Jones
    No. 171907724
    Phillip W. Dyer and Benjamin R. Dyer, Attorneys
    for Appellant
    Simarjit S. Gill and Tegan M. Troutner, Attorneys
    for Appellee
    JUDGE KATE APPLEBY authored this Opinion, in which
    JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
    APPLEBY, Judge:
    ¶1    Mikel Pratt Hamilton appeals his conviction for
    obstruction of justice, arguing he cannot be convicted of that
    crime without also being convicted of at least one of the other
    charges against him: theft or possession or use of a controlled
    substance. We affirm.
    BACKGROUND
    ¶2    Hamilton was the managing pharmacist for a pharmacy
    (Pharmacy) in Salt Lake City, Utah. Hamilton worked with
    another pharmacist (Pharmacist), and they alternated shifts so
    State v. Hamilton
    one pharmacist was always on duty. Several pharmacy
    technicians also worked at Pharmacy and helped the pharmacist
    on duty process prescriptions.
    ¶3     Between January and April 2017, two pharmacy
    technicians noticed shortages of phentermine. 1 A technician
    (Technician One) testified at trial that phentermine is a
    controlled substance and that Pharmacy does not distribute it
    often. Technician One testified that in addition to noticing
    shortages of phentermine, she noticed loose pills of the drug on a
    shelf and reported the loose and missing pills to Pharmacist. In
    response, Pharmacist checked the on-hand amount of
    phentermine with the computer inventory and realized the
    numbers were drastically different.
    ¶4      Another technician (Technician Two) testified that he
    worked for Pharmacy from April 2016 to December 2017.
    Around April 2017, Technician Two also noticed shortages of
    phentermine. One day, Technician Two had to process a
    prescription of phentermine and realized there were not enough
    pills to fill the prescription. He told Pharmacist, who thought it
    was strange because Pharmacy had only one patient with a
    prescription for that specific dose of phentermine. Employees
    began monitoring the phentermine, and one day, Technician
    Two wrote down the amount of phentermine Pharmacy had on
    hand as his shift was ending. Technician Two returned the
    following morning and discovered there were fewer
    phentermine pills on hand than the number he wrote down the
    previous night. Hamilton was the only employee working
    1. Phentermine is “a controlled substance” used “for a limited
    period of time to speed weight loss in overweight people who
    are exercising and eating a low-calorie diet.” National Institute
    of Health, Phentermine, https://medlineplus.gov/druginfo/meds/a
    682187.html [https://perma.cc/HGL8-9X94].
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    State v. Hamilton
    between the time Technician Two left and when he returned the
    following day. Technician Two also noticed loose phentermine
    pills on the shelves and notified Pharmacist. Pharmacist reported
    these losses to Pharmacy’s asset protection district manager
    (Asset Manager). By the end of the year, Technician Two and
    Pharmacist stopped working for Pharmacy.
    ¶5      After receiving the report of missing phentermine from
    Pharmacist, Asset Manager began an investigation. Asset
    Manager installed hidden video cameras in a vent above the area
    where phentermine was stored. The surveillance videos revealed
    Hamilton accessing phentermine after business hours on
    multiple occasions when “there was no legitimate reason for
    those medications to be accessed” because Hamilton was not
    filling prescriptions. One video showed Hamilton “removing
    medication from the bottle” and “putting it into his left hand as
    he walk[ed] off camera.” In another video, Hamilton “le[ft] with
    multiple bottles of phentermine from the shelf” and “one of [the
    bottles] was not” returned to the shelf. On a different occasion,
    video footage showed Hamilton “doing something with bottles”
    and “ducking down.” Asset Manager testified that “no
    prescriptions were filled” at the time this footage was recorded
    because Hamilton did not print out a label to mark a vial for a
    patient. As a result of the investigation, Asset Manager
    determined that Hamilton was accessing phentermine without a
    legitimate purpose, that he was editing the inventory of the pills
    on the computer system to account for the missing pills, and that
    no prescriptions were being filled during the times Hamilton
    accessed the phentermine.
    ¶6    Asset Manager scheduled an interview with Hamilton. As
    the two began speaking, Hamilton “stood up and asked [Asset
    Manager] if [Asset Manager] was accusing [Hamilton] of
    anything.” Asset Manager explained he was not accusing
    Hamilton of anything but was just asking him questions.
    Hamilton demanded to review the video footage. Asset Manager
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    State v. Hamilton
    explained he would not show Hamilton the footage. Hamilton
    responded that he was resigning, and walked out.
    ¶7      In addition to his own investigation, Asset Manager
    contacted Pharmacy’s district manager (District Manager), who
    oversees all of Pharmacy’s Utah stores, to inform her about the
    missing phentermine. District Manager reported the losses to the
    state pharmacy board and the federal Drug Enforcement
    Administration (DEA) while Asset Manager was conducting the
    internal investigation. Hamilton was ultimately charged with
    theft, obstructing justice, and possession or use of a controlled
    substance.
    ¶8      District Manager testified at trial that pharmacists
    inventory controlled substances annually. She explained that
    “everything is tracked on a controlled substance” from the time
    it leaves the warehouse to the time it is dispensed to patients. If
    there is a discrepancy between the on-hand count and the
    computer count, pharmacists have the ability to reconcile it but,
    under Pharmacy policy, must report the discrepancy to Asset
    Manager and District Manager. District Manager also explained
    that, by law, the discrepancy must be reported to the DEA and
    the state pharmacy board. She testified that between January and
    April 2017, 291 phentermine pills were missing from Pharmacy,
    for a total loss of $610.69.
    ¶9     District Manager also testified about how she knew
    Hamilton was involved with the missing pills. She explained
    that Hamilton’s computer credentials were used to adjust the
    phentermine inventory on the computer system to match the
    number of pills on hand after they were taken from the bottles.
    District Manager testified that during the time the phentermine
    pills were missing, Hamilton’s computer credentials were the
    only ones used to adjust the inventory and that he never
    reported the discrepancies to District Manager or Asset
    Manager.
    20180620-CA                     4                
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    State v. Hamilton
    ¶10 After trial, the jury found Hamilton guilty of obstruction
    of justice but not guilty of theft and not guilty of possession or
    use of a controlled substance. Hamilton filed a motion to arrest
    judgment, arguing that because “the State’s theory and
    argument regarding the obstruction of justice charge [is] so
    inextricably intertwined with the charges upon which
    [Hamilton] was acquitted that the jury’s verdict of guilty must
    necessarily be arrested with [Hamilton] acquitted on all
    charges.” The district court denied the motion, concluding
    Hamilton need not be found guilty of either theft or possession
    or use of a controlled substance to be convicted of obstruction of
    justice. The court also found that sufficient evidence supported
    the obstruction of justice conviction in that Hamilton “was the
    [P]harmacy manager, . . . he knew about the crime in the
    [P]harmacy, there was evidence that he was messing with the
    pills, that he was handling the pills when there wasn’t a
    prescription to be filled, and he would have had his own reasons
    for altering the records to prevent an investigation.” It concluded
    that “stealing a controlled substance from a pharmacy
    constitutes a criminal offense” and that sufficient evidence
    supported the verdict that Hamilton “covered it up” to obstruct
    the investigation or prosecution of the missing pills.
    ISSUE AND STANDARD OF REVIEW
    ¶11 On appeal, Hamilton essentially argues the district court
    erred in denying his motion to arrest judgment because the
    jury’s verdict was inconsistent when it convicted him of
    obstruction of justice but acquitted him of the underlying
    charges of theft and possession or use of a controlled substance. 2
    2. Hamilton also argues the court erred in including “recklessly”
    in the mens rea requirement for the obstruction of justice jury
    instruction. On appeal, Hamilton contends “the mens rea
    (continued…)
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    State v. Hamilton
    “We review inconsistency challenges to jury verdicts in the light
    most favorable to the verdict and will not overturn a jury’s
    verdict of criminal conviction unless reasonable minds could not
    rationally have arrived at a verdict of guilty beyond a reasonable
    doubt based on the law and evidence presented.” State v.
    Peterson, 
    2019 UT App 193
    , ¶ 22 (quotation simplified). Further, a
    (…continued)
    requirement in the obstruction statute is clear—the State must
    prove that Hamilton intentionally obstructed justice.” We
    conclude this argument is unpreserved. See State v. Johnson, 
    2017 UT 76
    , ¶ 15, 
    416 P.3d 443
     (holding that for an argument to be
    preserved for appeal, the appellant must have presented the
    argument “to the district court in such a way that the court has
    an opportunity to rule on it” (quotation simplified)). When
    discussing the jury instructions at trial, Hamilton stated he did
    not include “recklessly” in his proposed jury instructions for
    both theft and obstruction of justice because the information did
    not allege that Hamilton “acted recklessly.” In response, the
    State explained why including “recklessly” was appropriate, to
    which Hamilton responded, “I’m just struggling with how you
    can recklessly do these things, your honor. That’s fine.”
    (Emphasis added.) These statements did not adequately
    preserve Hamilton’s argument that obstruction of justice
    requires proof of intent, not merely recklessness. Hamilton did
    not make this argument to the court, nor did he support any
    arguments with “evidence and relevant legal authority.” 
    Id.
    (quotation simplified). But even if his argument was preserved,
    Hamilton invited any error by stipulating to the instruction.
    After the court clarified why it was including recklessness, it
    asked Hamilton if it resolved his confusion, and he replied, “It
    does, your honor.” See State v. Popp, 
    2019 UT App 173
    , ¶ 23
    (“Under the doctrine of invited error, an error is invited when
    counsel encourages the [district] court to make an erroneous
    ruling.” (quotation simplified)).
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    State v. Hamilton
    “[district] court may arrest a jury verdict when the evidence,
    viewed in the light most favorable to the verdict, is so
    inconclusive or so inherently improbable as to an element of the
    crime that reasonable minds must have entertained a reasonable
    doubt as to that element.” State v. Bowen, 
    2019 UT App 163
    , ¶ 17,
    
    451 P.3d 1050
     (quotation simplified), petition for cert. filed, Nov.
    12, 2019 (No. 20190943). “Accordingly we review the [district]
    court’s decision to arrest judgment for correctness.” 
    Id.
    (quotation simplified).
    ANALYSIS
    ¶12 Hamilton argues the district court erred in denying his
    motion to arrest judgment because the jury reached what he
    alleges was an inconsistent verdict. He contends the verdict was
    “inherently improbable” because the jury convicted him of
    obstructing justice but acquitted him of theft and of possession
    or use of a controlled substance.
    ¶13 “This court will not reverse a conviction on an
    inconsistent verdict challenge unless reasonable minds could not
    rationally have arrived at the verdict of guilty beyond a
    reasonable doubt based on the law and evidence presented.”
    State v. Peterson, 
    2019 UT App 193
    , ¶ 24 (quotation simplified).
    As a result, “so long as sufficient evidence supports each of the
    guilty verdicts, state courts have generally upheld the
    convictions.” State v. LoPrinzi, 
    2014 UT App 256
    , ¶ 30, 
    338 P.3d 253
     (quotation simplified).
    ¶14 To convict a defendant of obstruction of justice, the jury
    must find that the defendant, “with intent to hinder, delay, or
    prevent the investigation, apprehension, prosecution, conviction,
    or punishment of any person regarding conduct that constitutes
    a criminal offense,” 
    Utah Code Ann. § 76-8-306
    (1) (LexisNexis
    2017), engaged in conduct including (1) “prevent[ing] by force,
    intimidation, or deception, any person from performing any act
    20180620-CA                     7                 
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    State v. Hamilton
    that might aid in the discovery, apprehension, prosecution,
    conviction, or punishment of any person;” (2) “alter[ing],
    destroy[ing], conceal[ing], or remov[ing] any item or other
    thing;” (3) “mak[ing], present[ing], or us[ing] any item or thing
    known by the actor to be false;” or (4) “provid[ing] false
    information regarding a suspect, a witness, the conduct
    constituting an offense, or any other material aspect of the
    investigation,” 
    id.
     § 76-8-306(1)(b), (c), (d), (j). 3
    ¶15 Hamilton argues the verdicts in this case were
    inconsistent because he was convicted of obstruction of justice
    but not of the underlying crimes with which he was charged,
    namely theft or possession or use of a controlled substance. But
    the obstruction of justice statute does not require a conviction of
    the underlying crime—it simply requires a finding that the
    defendant took certain actions “with [the] intent to hinder, delay,
    or prevent the investigation, apprehension, prosecution,
    conviction, or punishment of any person regarding conduct that
    constitutes a criminal offense.” Id. § 76-8-306(1) (emphasis added).
    Nor does it require that a defendant cover up his own crime. The
    plain language of the statute articulates that the defendant can
    be convicted of obstructing justice when he intends to “hinder,
    delay, or prevent the investigation, apprehension, prosecution,
    conviction, or punishment of any person.” 4 Id. (emphasis added).
    3. The jury instructions in this case included additional examples
    provided in the obstruction of justice statute. For ease of reading,
    we reference only a few of the options the jury may have used to
    find Hamilton guilty of obstruction of justice.
    4. Even if the jury did not believe Hamilton committed theft or
    possession or use of a controlled substance, it still could have
    found that Hamilton obstructed the investigation of someone
    else at Pharmacy stealing or unlawfully possessing phentermine.
    In fact, in closing argument at trial, Hamilton suggested that it
    (continued…)
    20180620-CA                     8                 
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    State v. Hamilton
    Therefore, the verdicts the jury reached in this case are not
    inconsistent because it could have found that Hamilton
    obstructed justice even if it concluded that he had not personally
    committed theft or possession or use of a controlled substance.
    ¶16 But regardless of whether the verdict was truly
    inconsistent, Hamilton is entitled to relief only if the evidence
    was insufficient to support his obstruction of justice conviction.
    See LoPrinzi, 
    2014 UT App 256
    , ¶ 30 (holding that “so long as
    sufficient evidence supports each of the guilty verdicts, state
    courts generally have upheld the convictions” after an
    inconsistency challenge (quotation simplified)). Hamilton’s
    acquittal on the charges of theft and possession or use of a
    controlled substance does not necessarily mean the jury found
    that the State failed to meet its burden of proof for those crimes.
    “It is equally possible that the jury, convinced of guilt, properly
    reached its conclusion and then through mistake, compromise,
    or lenity, arrived at an inconsistent conclusion on the other
    offense[s].” 
    Id.
     (quotation simplified). “Because appellate courts
    have always resisted inquiring into the jury’s thought processes
    and deliberations,” we focus our inquiry on whether sufficient
    evidence supports Hamilton’s obstruction of justice conviction.
    State v. Cady, 
    2018 UT App 8
    , ¶ 32, 
    414 P.3d 974
     (quotation
    simplified).
    ¶17 We conclude sufficient evidence exists in this case to
    support the jury’s verdict. First, the jury could have found that
    Hamilton intentionally “hinder[ed], delay[ed], or prevent[ed] the
    investigation, apprehension, prosecution, conviction, or
    punishment of any person regarding” the theft or possession or
    use of a controlled substance, 
    Utah Code Ann. § 76-8-306
    (1),
    (…continued)
    was someone else at Pharmacy who stole or possessed the
    phentermine.
    20180620-CA                     9                
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    State v. Hamilton
    when he used his computer credentials to change the
    phentermine inventory after business hours with no legitimate
    reason for him to access the phentermine. The jury also could
    have found that this conduct amounted to “alter[ing],
    destroy[ing], conceal[ing], or remov[ing] any item or other
    thing” or any of the other acts that constitute obstruction of
    justice. See supra ¶ 14; see also 
    Utah Code Ann. § 76-8-306
    (1)(a)–
    (j). Because Hamilton manually altered the inventory of
    phentermine to account for the missing pills, the jury could have
    found that he did this to prevent the investigation of the offense
    of theft or possession or use of phentermine. Nothing in the
    record indicates that “reasonable minds could not rationally
    have arrived at a verdict of guilty beyond a reasonable doubt.”
    Peterson, 
    2019 UT App 193
    , ¶ 22 (quotation simplified).
    CONCLUSION
    ¶18 Hamilton’s acquittal of theft and of possession or use of a
    controlled substance does not undermine his obstruction of
    justice conviction. Because there was sufficient evidence to
    support his conviction, the district court did not err in denying
    Hamilton’s motion to arrest judgment. Affirmed.
    20180620-CA                    10               
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Document Info

Docket Number: 20180620-CA

Citation Numbers: 2020 UT App 11

Filed Date: 1/9/2020

Precedential Status: Precedential

Modified Date: 12/21/2021