Salt Lake City v. Northern

2013 UT App 299
_________________________________________________________
THE UTAH COURT OF APPEALS
SALT LAKE CITY,
Plaintiff and Appellee,
v.
EARL NORTHERN,
Defendant and Appellant.
Per Curiam Decision
No. 20120904-CA
Filed December 27, 2013
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 101907671
Richard G. Sorenson, Attorney for Appellant
Padma Veeru-Collings and Michelle L. Diamond,
Attorneys for Appellee
Before JUDGES GREGORY K. ORME, STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Defendant Earl Northern appeals his conviction of assault
with a domestic violence enhancement, a class A misdemeanor,
following the revocation of his plea in abeyance. Northern
contends that the district court erred in determining, after an
evidentiary hearing, that he committed a new violation of the law
that constituted a breach of the requirements of his plea in
abeyance agreement. We affirm.

Salt Lake City v. Northern
1. We held in Layton City v. Stevenson, 2013 UT App 67, 298 P.3d
1267, cert. granted, 304 P.3d 469 (Utah, June 21, 2013), that “[t]he
phrase ‘violation of law’ is not limited to proof solely by means of
a conviction” and “may be supported by evidence of misconduct
other than a conviction.” Id. ¶ 9.
20120904-CA 2 2013 UT App 299
¶2 Utah Code section 77-2a-4(1) states,
If, following an evidentiary hearing, the court finds
that the defendant has failed to substantially comply
with any term or condition of the plea in abeyance
agreement, it may terminate the agreement and enter
judgment of conviction and impose sentence against
the defendant for the offense to which the original
plea was entered.
Utah Code Ann. § 77-2a-4(1) (LexisNexis 2012). The decision to
grant, modify, or revoke probation is in the discretion of the trial
court. See State v. Peterson, 869 P.2d 989, 991 (Utah Ct. App. 1994);
see also State v. Martin, 2012 UT App 208, ¶ 16, 283 P.3d 1066
(applying an abuse of discretion standard to a decision to revoke
a plea in abeyance and enter a guilty plea).
¶3 One condition of the plea in abeyance agreement was that
Northern commit no new violation of law. Revocation of the plea
in abeyance was based upon an order to show cause alleging
commission of an assault. Northern argued in the district court that
although he had been charged, he had not been convicted on the
new charge. However, Northern conceded that a conviction was
not necessary to support a violation of the plea in abeyance
agreement. Northern contends that the district court abused its1
discretion in finding that he violated the plea in abeyance
agreement by committing a new violation of the law because he
claims that finding was not supported by sufficient evidence.

Salt Lake City v. Northern
20120904-CA 3 2013 UT App 299
¶4 Salt Lake City presented its case supporting revocation of
the plea in abeyance through two witnesses. The assault victim
testified that Northern and a woman came uninvited to the home
where the victim resided with her mother, her sister, and her
sister’s child. The victim asked them nicely to leave. When they did
not comply, the victim testified that she yelled at them to get off
her property and pointed with her finger. She testified that
Northern grabbed her finger and bent it backward, then grabbed
her by the hair, yanking her to the ground and pulling a clump of
hair from her head. The hair was introduced as evidence. The
victim also testified that she suffered a badly sprained finger that
required her to wear a finger cast and that she had a displaced bone
in her neck as a result of the assault. She testified that she scratched
Northern’s face as she fell. The victim’s mother testified that she
lived at the residence where the events occurred and witnessed the
interaction between the victim and Northern. She stated that
Northern and the woman who accompanied him were not invited
to the residence on the date in question. She testified that she was
right behind the victim when the victim answered the door and
told them to leave. After Northern ignored the victim, the victim
yelled at him. The victim put her finger out, and Northern grabbed
it and bent it back, after which the victim got “flipped backwards.”
The victim’s mother testified that Northern yanked the victim’s
hair. She stated that she had memory problems but that her
recollection was refreshed somewhat by reviewing her
contemporaneous statement to the police.
¶5 The defense presented the testimony of the woman who
accompanied Northern to the residence (the defense witness). She
testified that she and Northern were invited to the home by the
victim’s sister, that the victim came to the door and yelled at them
to leave using vulgar language, that Northern acted in self defense
after the victim lunged at him, that the victim was flailing around
and fell, and that Northern was “nowhere near her.” The defense
witness testified both that Northern was trying to stop the victim
from attacking them when he got tangled in her hair and that he
was trying to prevent the victim from injuring herself. She also

Salt Lake City v. Northern
20120904-CA 4 2013 UT App 299
testified that the victim pulled her own hair out and threatened to
kill Northern. On cross-examination, the defense witness denied
that she had ever been the victim of domestic violence perpetrated
by Northern. She did so despite being the victim of the offense that
was the subject of the plea in abeyance and having made reports of
domestic violence involving Northern.
¶6 Northern’s claim that the decision to revoke the plea in
abeyance was not supported by sufficient evidence necessarily
involves a challenge to the district court’s specific finding that the
City’s witnesses were credible and the defense witness was not
credible. Northern’s claim that the victim’s testimony was
“inherently improbable” and not credible is based upon an
assertion that the defense witness was a more reliable and credible
witness. “[W]e accord deference to the trial court’s ability and
opportunity to evaluate credibility and demeanor.” State v. Davie,
2011 UT App 380, ¶ 18, 264 P.3d 770 (citation and internal
quotation marks omitted). “[B]ecause the trial court had the
opportunity to view these witnesses and weigh their credibility, we
defer to its findings unless the record demonstrates clear error.” See
id. If a witness’s testimony is inherently improbable, the court may
choose to disregard it. See State v. Robbins, 2009 UT 23, ¶ 16, 210
P.3d 288. Testimony is inherently improbable if it is physically
impossible or apparently false. See id. Testimony is apparently false
where it “is incredibly dubious,” id. ¶ 18, or “its falsity is ‘apparent,
without any resort to inferences or deductions,’” id. ¶ 17 (citation
omitted). Judged against these standards, we cannot conclude that
the district court’s findings that the City’s witnesses were credible
and the defense witness was not credible were clearly erroneous.
¶7 The district court’s determination that Northern engaged in
conduct that violated the plea in abeyance by committing a new
violation of the law is supported by sufficient evidence, and the
determination was not an abuse of discretion. Accordingly, we
affirm.