opinions/mds/maisey032504.htm 18:16:30 GMT --> State v. Maisey

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IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Corey Maisey,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030218-CA
 

F I L E D
(March 25, 2004)
 

2004 UT App 82

 

-----

Second District, Ogden Department

The Honorable Michael Lyon

Attorneys: Randall W. Richards and Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee

-----

Before Judges Bench, Greenwood, and Orme.

ORME, Judge:

The Utah Supreme Court has held that "[w]here the officer is not acting wholly outside the scope of his or her authority, the police action may not be resisted."(1) State v. Gardiner, 814 P.2d 568, 574 (Utah 1991). Even if we were to assume that the actions of the police conducting a "knock-and-talk" in this case were illegal, "[a]n illegal entry or 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). Basically, Defendant may have had the right to decline a discussion with the investigating officers, but he had no right to resist violently, much less to seize an officer's firearm. See, e.g., American Fork City v. Pena-Flores, 2002 UT 131,13, 63 P.3d 675. Thus, Defendant's claim regarding ineffective assistance of counsel and his claim that the trial court plainly erred both fail for lack of a showing of prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Litherland, 2000 UT 76,31, 12 P.3d 92.

Defendant's argument that evidence of his parole violation should have been suppressed is likewise without merit. Although "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith[, i]t may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake." Utah R. Evid. 404(b). In light of Defendant's argument that he was unable to recognize the men as police officers due to their appearance and his drug intoxication, and thought he was fleeing from intruders rather than police officers, evidence of his parole status "was relevant to show that defendant was not mistaken as to the identity of the police officers." State v. Collier, 736 P.2d 231, 234 (Utah 1987). In other words, evidence of his parole status tended to show, without undue prejudice, a reason for him to forcefully resist police officers other than because he merely failed to realize that they were police officers. Such evidence is entirely proper in this case under the "identity," "knowledge," and "absence of mistake" prongs of the rule.

Affirmed.

______________________________

Gregory K. Orme, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge

1. Defendant's only support for his argument that the officers were not acting within the scope of their authority was that they were not recognizable as police officers. However, the mere fact that undercover agents dressed and groomed themselves in a manner that would allow them to blend in with the general citizenry does not automatically mean they were acting outside the scope of their authority. See State v. Gardiner, 814 P.2d 568, 574 (Utah 1991) (defining "scope of authority" as "whether an officer is doing what he or she was employed to do or is 'engaging in a personal frolic of his own'") (citation omitted). Moreover, the officers testified that they took pains to identify themselves as police officers.

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opinions/mds/maisey032504.htm 18:16:30 GMT -->