State v. Hansen , 2020 UT App 17 ( 2020 )

2020 UT App 17THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BRADY JAMES HANSEN,
Appellant.
Opinion
No. 20180531-CA
Filed January 30, 2020
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 161906592
Andrea J. Garland and Brenda M. Viera, Attorneys
for Appellant
Sean D. Reyes, Thomas B. Brunker, and Nathan Jack,
Attorneys for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
APPLEBY, Judge:
¶1 Brady James Hansen appeals his convictions of possession
of a controlled substance, possession of drug paraphernalia, and
possession of a firearm by a restricted person. Hansen asserts the
district court plainly erred in not intervening to exclude
evidence of his prior convictions of possession of
methamphetamine. Hansen further maintains there is
insufficient evidence to support the verdict. We affirm.
State v. Hansen
BACKGROUND 1
¶2 While on patrol, a police officer (Officer) overheard a
dispatch call reporting that, at a house not far from him,
someone brandished a firearm and then “left in a red passenger
car, possibly a [Ford] [M]ustang.” A few minutes later, as Officer
was en route to the scene, he observed a woman (Woman) dash
across a four-lane street and quickly enter the passenger side of
“a red . . . Mustang” while the car was moving. Another
passenger (Passenger) was already inside the car. Because the
car matched the description provided in the dispatch call, Officer
signaled the car to stop. When the car stopped, the driver,
Hansen, began to exit the vehicle. “[W]ith the description of the
car and the involvement of a firearm,” Officer “didn’t feel
comfortable with the driver getting out,” so he instructed
Hansen to return to the car while he awaited backup and
Hansen complied. As Officer waited, he saw Hansen “bending
over in the driver’s seat,” and from his point of view, “it looked
like [Hansen] was either trying to kick stuff or get something
from underneath the . . . driver’s seat.”
¶3 Another officer (Backup Officer) soon arrived. Officer and
Backup Officer directed the car’s occupants to exit the car, one at
a time, starting with Hansen, then Woman, then Passenger. The
officers directed Hansen to walk backward toward them with his
hands up. When Hansen reached the officers, Backup Officer
detained him and gave him a “pat down.” Without being asked,
Hansen “informed [Backup Officer] that there was a gun under
the seat of the car.”
1. “On appeal, we construe the record facts in a light most
favorable to the jury’s verdict and recite the relevant facts
accordingly.” State v. Murphy, 2019 UT App 64, n.2, 441 P.3d 787(quotation simplified).
20180531-CA 2 2020 UT App 17State v. Hansen
¶4 Officer “looked under the driver’s seat and initially . . .
saw a partially unzipped sunglass case which exposed what [he]
believed to be methamphetamine and narcotic baggies.” When
he “slid aside the sunglass case,” he saw a handgun.
¶5 Backup Officer informed Hansen of his Miranda 2 rights,
specifically his right to remain silent, but Hansen continued
talking. Backup Officer testified that Hansen said “he was the
only one that possessed [the gun], touched it, nobody else had—
basically had access to it.” He told Officer that when Officer
“pulled up behind [him,] he panicked and placed the gun and
the . . . sunglass container . . . underneath the driver’s seat.”
Hansen acknowledged “that he was a meth user” and that the
sunglass case contained narcotics, but he claimed the case
belonged to a friend who had been in the backseat just before
Hansen was stopped by the police. The State charged Hansen
with, among other things, possession of a controlled substance,
possession of a firearm while being a restricted person, and
possession of paraphernalia.
¶6 At trial, Hansen testified in his own defense. Hansen said
after he was pulled over, he reached down toward the driver
side floorboard because he dropped his car keys when Woman
tried to wrest them from him. He said that was “[t]he only thing
[he could] think of that [he would] be reaching for or doing
anything like that,” though Officer testified that when he looked
on the floor of the vehicle, he did not see any keys. Hansen said
he did not tell either of the officers that he used
methamphetamine and claimed he had “no idea about any
drugs in [his] car.”
¶7 During cross-examination, Hansen testified that he
presently did not use methamphetamine, at which point the
2. See Miranda v. Arizona, 384 U.S. 436, 468–69 (1966).
20180531-CA 3 2020 UT App 17State v. Hansen
prosecutor asked, “So you’ve never been convicted of or pled
guilty to possession of methamphetamine?” Hansen replied, “I
have, but I don’t.” The prosecutor followed up with questions
about how many times Hansen “pled guilty of [possession of]
methamphetamine,” to which Hansen responded, “A few,” and
then clarified, “Five, I think.”
¶8 At that point, Hansen’s trial counsel moved for a mistrial,
arguing that it was improper for the jury to hear information
about possession charges related “to events that occurred after
these events.” The State argued this questioning was intended to
impeach Hansen’s testimony that he presently did not use
methamphetamine. The district court determined Hansen
“open[ed] the door when he said that he wasn’t a
methamphetamine user” and denied the motion for mistrial. The
court also said it would not give a curative instruction because
the instruction would be “inappropriate where [Hansen] raised
the issue.” Hansen then offered clarifying testimony that his
convictions and guilty pleas were “recent[]” and that he had no
“convictions for methamphetamine” at the time of arrest in the
present case. His counsel later reiterated her concerns about this
line of questioning and again asked for a mistrial. The district
court once again determined Hansen “opened the door” and
stated Hansen’s additional testimony gave “context and
clarification.” Hansen’s trial counsel did not request analysis
under rule 403 of the Utah Rules of Evidence or suggest that the
questions about his convictions were offered to attack his
character for truthfulness. Despite its prior decision not to do so,
the court instructed the jury that the evidence of Hansen’s prior
convictions “was brought to [the jury’s] attention only to help
[it] evaluate the credibility of the defendant as a witness.”
¶9 The jury convicted Hansen on one count of possession of
a controlled substance, one count of possession of a firearm by a
restricted person, and one count of possession of drug
paraphernalia. He appeals.
20180531-CA 4 2020 UT App 17State v. Hansen
ISSUES AND STANDARD OF REVIEW
¶10 Hansen raises two issues on appeal. First, he claims the
district court erred when it did not intervene to exclude evidence
of his prior methamphetamine-possession convictions. Because
this issue is unpreserved, 3 Hansen argues it should be reviewed
for plain error. Second, Hansen alleges the district court plainly
erred in submitting the case to the jury because there
was insufficient evidence to convict him of possession of
methamphetamine and possession of drug paraphernalia while
being in possession of a firearm. “The plain error standard of
review requires an appellant to show the existence of a harmful
error that should have been obvious to the district court.” State v.
Robinson, 2018 UT App 103, ¶ 20, 427 P.3d 474 (quotation
simplified).
3. Hansen claims this issue was preserved “by trial counsel’s
repeated motions for mistrial.” But Hansen is not appealing
the court’s denial of his motions for mistrial; instead, he alleges
the district court erred when it did not intervene to stop the
State from asking questions pertaining to his prior misdemeanor
convictions and in doing so, admitted evidence in violation
of rules 608 and 609 of the Utah Rules of Evidence. “In order
to preserve an issue for appeal the issue must be presented to
the [district] court in such a way that the [district] court has
an opportunity to rule on that issue. This requirement puts
the [district] judge on notice of the asserted error and allows
for correction at that time in the course of the proceeding.”
Salt Lake City v. Josephson, 2019 UT 6, ¶ 12, 435 P.3d 255(quotation simplified). Because Hansen did not object at trial to
the State’s line of questioning as being in violation of rules 608
and 609 of the Utah Rules of Evidence, this argument is
unpreserved.
20180531-CA 5 2020 UT App 17State v. Hansen
ANALYSIS
I. Admission of Prior Convictions for Impeachment
¶11 Hansen argues the district court plainly erred by not
intervening when the State asked him about his prior
convictions after he testified that he presently did not use
methamphetamine. Hansen claims the State’s questions about
his prior convictions violated rules 608, 609, and 403 of the Utah
Rules of Evidence. Hansen has a “high burden” to meet here
because he “must demonstrate that (i) an error exists; (ii) the
error should have been obvious to the [district] court; and
(iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.” State v. Bond, 2015 UT 88, ¶ 36, 361 P.3d 104(quotation simplified). Hansen fails on this claim because he is
unable to show that an error on the part of the district court
exists, let alone an error that should have been obvious.
¶12 Rules 608 and 609 of the Utah Rules of Evidence govern
what evidence may be introduced to attack a witness’s character
for truthfulness or untruthfulness. Robinson v. Taylor, 2015 UT 69,
¶ 14, 356 P.3d 1230. But “[t]hese rules are mutually exclusive:
[w]hen specific instances of conduct are the subject of a
conviction, they are governed exclusively by rule 609. And if the
specific acts do not involve a conviction, they are governed by
rule 608.” Id. ¶ 16. Thus, as a threshold matter, rule 608 is
inapplicable here because evidence the State presented involved
convictions, a category that does not fall under the purview of
rule 608.
¶13 “Rule 609 permits a party to attack a witness’s character
for truthfulness using evidence of a criminal conviction.” State v.
Alzaga, 2015 UT App 133, ¶ 32, 352 P.3d 107. But we agree with
the State that Hansen’s prior convictions were not used to show
his character for truthfulness; rather, they were introduced only to
20180531-CA 6 2020 UT App 17State v. Hansen
cast doubt on the credibility of Hansen’s testimony that he
presently did not use methamphetamine and that he did not
know there was methamphetamine in his car. Rule 609 is
arguably inapplicable to this situation.
¶14 “Once the defendant offers evidence or makes an
assertion as to any fact, the State may cross-examine or introduce
on rebuttal any testimony or evidence which would tend to
contradict, explain[,] or cast doubt upon the credibility of [his
testimony].” State v. Corona, 2018 UT App 154, ¶ 23, 436 P.3d 174(quotation simplified). The State arguably did that here. Hansen,
on direct examination, claimed he “had no idea about any
drugs in [his] car” and denied telling Officer he used
methamphetamine. On cross-examination, the State asked him
whether he uses methamphetamine, which Hansen denied, then
asked whether he had “been convicted of or pled guilty to
possession of methamphetamine” and followed up by asking
how many times Hansen had pled guilty to the crime. The
State’s questioning about Hansen’s use of methamphetamine
was not so obviously objectionable that the district court plainly
erred in failing to intervene to stop the line of questioning. The
court did not know the answer to the question regarding
Hansen’s use of methamphetamine, and Hansen’s past use of
methamphetamine casted doubt on his claim that he was not a
methamphetamine user. We conclude that the State’s inquiries
regarding Hansen’s convictions were arguably relevant to his
credibility, and thus we conclude the district court did not
plainly err in failing to stop the line of questioning. See Bond,
2015 UT 88, ¶ 15.
¶15 Hansen’s argument that the questioning violated rule 403
of the Utah Rules of Evidence is also unavailing. As applicable
here, a district “court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.” Utah R. Evid. 403. Hansen cannot meet this
“high burden” of establishing that the district court plainly erred
20180531-CA 7 2020 UT App 17State v. Hansen
when it did not stop the line of questioning. See Bond, 2015 UT
88, ¶ 36. Impeaching Hansen’s testimony was important to the
State because Hansen took the stand and denied using drugs,
denied telling the officers that drugs were in his vehicle, and
denied knowing the drugs were in his vehicle. Because Hansen’s
credibility and Officer’s credibility were both at issue, and
Hansen’s denials squarely contradicted Officer’s testimony,
Hansen’s prior convictions related to possession of
methamphetamine were likely highly probative of whether he
lied when he testified that he did not use methamphetamine.
Although Hansen’s prior convictions for methamphetamine
possession were certainly prejudicial to some extent, Hansen has
not shown that the prejudice so substantially outweighed the
probative value of the evidence that the court plainly erred by
not intervening. See State v. Hall, 946 P.2d 712, 723 (Utah Ct. App.
1997) (noting the importance of defendant’s credibility as a
factor that weighed against excluding impeachment evidence
under rule 403). Thus, we see no plain error in the State
impeaching Hansen with evidence of his prior convictions. See
Bond, 2015 UT 88, ¶ 15.
II. Sufficiency of the Evidence
¶16 Hansen argues there was insufficient evidence to convict
him of possession of a controlled substance, possession of a
firearm by a restricted person, and possession of drug
paraphernalia. We disagree. To establish plain error in this
context, “a defendant must demonstrate first that the evidence
was insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental
that the [district] court erred in submitting the case to the jury.”
State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.
¶17 We conclude there was sufficient evidence to support a
conviction. Before ordering Hansen out of his vehicle, Officer
saw Hansen “bending over in the driver’s seat” as if he were
20180531-CA 8 2020 UT App 17State v. Hansen
“trying to kick stuff or get something from underneath the . . .
driver’s seat.” Once detained, Hansen told Backup Officer “that
there was a gun under the seat of the car.” Officer looked under
the driver’s seat of the car and found the gun only after he
noticed an unzipped sunglass case, “which exposed what
[Officer] believed to be methamphetamine and narcotic
baggies.” Additionally, Hansen informed Backup Officer that
“he was the only one that possessed [the gun], touched it,
nobody else . . . had access to it.” Officer also testified that
Hansen told him “he was a meth user,” and despite claiming the
methamphetamine in the sunglass case belonged to a friend,
Hansen told Backup Officer “he was aware that it [contained]
narcotics.”
¶18 This is sufficient evidence for a jury to find Hansen
possessed the methamphetamine, paraphernalia, and the firearm
that were found under the driver seat of his car, and we thus
discern no “insufficiency . . . so obvious and fundamental that
the [district] court erred in submitting the case to the jury.” Id.CONCLUSION
¶19 Because the district court did not obviously err in
allowing the State’s questions about Hansen’s prior convictions,
and because there was sufficient evidence to convict him on all
counts, we affirm.
20180531-CA 9 2020 UT App 17