State v. Lamb

2013 UT App 5
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JEFF LAMB,

Defendant and Appellant.

Memorandum Decision
No. 20111071‐CA
Filed January 10, 2013

Sixth District, Manti Department
The Honorable Wallace A. Lee
No. 101600091

Douglas L. Neeley, Attorney for Appellant
John E. Swallow and John J. Nielsen, Attorneys for Appellee

JUDGE CAROLYN B. MCHUGH authored this
Memorandum Decision,
in which JUDGES GREGORY K. ORME and
MICHELE M. CHRISTIANSEN concurred.

McHUGH, Judge:

¶1 Jeff Lamb appeals from his conviction for cattle rustling,
specifically three counts of theft of lost property, third degree
felonies. See Utah Code Ann. § 76‐6‐407 (LexisNexis 2012) (ele‐
ments); id. § 76‐6‐412(b) (2012) (penalties). Lamb claims that the
trial court erred in denying his motion to sever the charges and in
denying his motion to suppress evidence obtained during a search
of his property. We affirm.
State v. Lamb

¶2 In late March 2010, a Utah Department of Agriculture Theft
Inspector was notified of potential cattle rustling in Ephraim,
Utah.1 As a result, the Theft Inspector and a State Brand Inspector
went to investigate. After arriving at a neighbor’s property, the
Brand Inspector used a pair of binoculars to view cattle that were
on Lamb’s field.2 The Brand Inspector determined that one of the
calves in the field did not have Lamb’s ownership markings but
instead bore those of another cattle rancher.

¶3 The inspectors then entered Lamb’s field and confirmed that
the calf did not belong to Lamb. At that time, the inspectors
discovered two other cows with ownership markings indicating
that they belonged to a second cattle rancher. Several weeks later,
the Theft Inspector discovered that an additional lost cow bearing
the brand of yet another rancher was in Lamb’s herd and that
Lamb had put his own ear tag on the cow.

¶4 On several occasions, the Theft Inspector spoke with Lamb
and inquired as to how the cattle ended up on his property. Lamb
gave the Theft Inspector several inconsistent reasons why the cattle
from three separate owners were on his property but conceded that
they belonged to other owners. Though Lamb told one of the other

1. “We state the facts in a light most favorable to the trial court’s
ruling denying [a] motion to suppress.” State v. Marquez, 2007 UT
App 170, ¶ 2, 163 P.3d 687 (alteration in original) (citation and
internal quotation marks omitted).

2. Lamb argues that the trial court made an erroneous finding of
fact when it accepted the Theft Inspector’s claim that he viewed the
cattle through binoculars from a neighbor’s property. Because we
determine that a physical intrusion onto an open field is of no
Fourth Amendment significance, see infra ¶¶16–17, any dispute as
to whether the Theft Inspector actually entered the field to confirm
that the cattle did not belong to Lamb has no bearing on whether
the State violated his Fourth Amendment rights.

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State v. Lamb

owners that he knew nothing about where the owner’s lost cattle
were, he later admitted to the Theft Inspector that he knew some
of that owner’s cattle were in his herd.

¶5 The State charged Lamb with three counts of theft of lost
property. Lamb filed a motion to sever the counts and a motion to
suppress the discovery of the stolen cattle by the inspectors’ search
of his field. After hearing arguments, the trial court denied both
motions, ruling that the counts were properly joined because there
was a common plan or scheme and Lamb would not be prejudiced
by joinder, and because the field that the inspectors searched was
an open field undeserving of Fourth Amendment protection. Lamb
subsequently pled guilty on condition that he could appeal the trial
court’s suppression and severance rulings. See generally State v.
Sery, 758 P.2d 935, 938 (Utah Ct. App. 1988). Lamb filed a timely
notice of appeal.

¶6 First, we review Lamb’s argument that the trial court abused
its discretion when it denied Lamb’s motion to sever the counts
against him.

[T]he grant or denial of severance is a
matter within the discretion of the trial
judge, so we reverse [a denial] only if
the trial judge’s refusal to sever
charges is a clear abuse of discretion in
that it sacrifices the defendant’s right
to a fundamentally fair trial. Under
[the abuse of discretion] standard, we
will not reverse . . . unless the decision
exceeds the limits of reasonability.

State v. Balfour, 2008 UT App 410, ¶ 10, 198 P.3d 471 (alterations
and omission in original) (citations and internal quotation marks
omitted). We analyze a severance claim in two steps. “We must
first determine whether the offenses were properly joined. We
must then determine whether the offenses should nonetheless have

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State v. Lamb

been severed due to any prejudice that may have resulted by their
joinder.” State v. Burke, 2011 UT App 168, ¶ 19, 256 P.3d 1102.

¶7 Joinder of offenses is permitted if certain criteria are met.
Specifically,

(1) Two or more felonies . . . may be
charged in the same indictment or
information if each offense is a sepa‐
rate count and if the offenses charged
are:

(a) based on the same conduct
or are otherwise connected [to‐
gether3] in their commission; or

(b) alleged to have been part of
a common scheme or plan.

....

(4)(a) If the court finds a defendant or
the prosecution is prejudiced by a
joinder of offenses . . . the court shall
order an election of separate trials of
separate counts, grant a severance of
defendants, or provide other relief as
justice requires.

3. The previous publication of the Utah Code contains the word
“together” as indicated in the quoted language. See Utah Code
Ann. § 77‐8a‐1 (LexisNexis 2008). Although this word is not
included in the most recent publication of the Utah Code, see id.
(2012), this omission appears to be inadvertent because the statute
has not been amended since the previous publication, see id.
history.

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State v. Lamb

Utah Code Ann. § 77‐8a‐1 (LexisNexis 2012). “The purpose of [Utah
Code section 77‐8a‐1] is to allow joinder of offenses and thus
eliminate multiple prosecutions in the interest of efficiency and
economy of time and effort when the interests of justice can best be
served thereby.” Balfour, 2008 UT App 410, ¶ 31 (alteration in
original) (citation and internal quotation marks omitted). “[T]o be
classified as a common plan or scheme it is not necessary for the
crimes to have been perpetrated in an absolutely identical manner,
so long as the court perceives a visual connection between the two
crimes.” Id. ¶ 20 (alteration in original) (citation and internal
quotation marks omitted). “This court has interpreted the phrase
‘common scheme or plan’ to apply when the crimes involve a
similar fact pattern and proximity in time.” Id. (quoting State v. Lee,
831 P.2d 114, 117–18 (Utah Ct. App. 1992)). Additionally, “the facts
and the timing of the incidents should be considered in their
totality, that is, factual similarities should be viewed in light of
their temporal proximity to one another.” State v. Hildreth, 2010 UT
App 209, ¶ 34, 238 P.3d 444; accord Lee, 831 P.2d at 118 (“The
striking similarities . . . in each incident, coupled with the proximity
in time of the offenses, supplied a sufficient basis for the trial court
to conclude that the crimes were alleged to have been part of a
common scheme or plan . . . .” (citation and internal quotation
marks omitted)).

¶8 First, the amended information charged Lamb with three
separate counts of theft of lost property. “Therefore, the initial
inquiry of section 77‐8a‐1(1), requiring that each offense constitute
a separate count,” is met. See Balfour, 2008 UT App 410, ¶ 19 (citing
Utah Code Ann. § 77‐8a‐1(1) (LexisNexis 2003) (current version at
id. (2012)).

¶9 In considering whether there was a common scheme or plan,
the trial court recognized that “there were differences between the
different Counts such as different owners, different kinds of
[cattle], different days when the animals came to be in Mr. Lamb’s
possession,” and that “the [cattle] were taken from different
locations.” However, the trial court also found “a lot of similari‐

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State v. Lamb

ties,” including “that the cattle ended up in Mr. Lamb’s possession
. . . either because they became part of his herd as he was driving
them from summer range to winter areas, or [because] they were
hauled down from the summer range to the winter range”; that
“they were kept in his possession, all of them, for . . . an unusually
long period of time”; “that the cattle were all there when they were
discovered by the Brand Inspector”; “that Mr. Lamb apparently
[came] up with two different stories to explain why the cattle were
there in almost every case”; and “that the cattle were branded by
someone else’s brand in every case.” Additionally, the trial court
found that Lamb “had the cattle in his possession for in some cases
over a year—all of the cattle for several months, without taking
reasonable measures to return them to their owner[s], which he
obviously knew were not his.” Based on that finding, the trial court
determined “that the crime was committed in this case when Mr.
Lamb retained the cattle for an unreasonable amount of time
without taking reasonable measures to return the cattle to their
owners.”4 Thus, the trial court ultimately ruled that “the charges
are sufficiently similar to conclude that there was a common plan
or scheme.”

¶10 Although Lamb’s acts of cattle rustling were not “perpe‐
trated in an absolutely identical manner,” the trial court clearly
“perceive[d] a visual connection between the [three] crimes.”
Balfour, 2008 UT App 410, ¶ 20 (citations and internal quotation
marks omitted). The offenses all involved stray cattle, which were
all taken from other cattlemen during seasonal cattle drives or
round‐ups, and which were all found in Lamb’s possession after a
long period of time and without him having taken any reasonable
measures to return them to their owners. Because the trial court did
not “exceed[] the limits of reasonability,” it did not exceed its

4. Lamb does not challenge the trial court’s interpretation of Utah
Code section 76‐6‐407 in determining when Lamb actually
committed the crime of theft of lost property. See generally Utah
Code Ann. § 76‐6‐407 (LexisNexis 2012).

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State v. Lamb

discretion in determining that the separate charges were part of a
common scheme or plan. See id. ¶ 10 (citation and internal quota‐
tion marks omitted).

¶11 Lamb also argues that he was prejudiced by the joinder
because, in separate trials, the evidence of the “other acts” allega‐
tions of cattle rustling would have been inadmissible because the
probative value would have been outweighed by the danger of
unfair prejudice. The State argues that Lamb has failed to ade‐
quately brief the prejudice prong of his severance claim. “It is well
established that a reviewing court will not address arguments that
are not adequately briefed.” State v. Thomas, 961 P.2d 299, 304 (Utah
1998). The Utah Rules of Appellate Procedure specify that briefs
must contain “the contentions and reasons of the appellant with
respect to the issues presented . . . with citations to the authorities,
statutes, and parts of the record relied on.” Utah R. App. P.
24(a)(9). “‘An issue is inadequately briefed when the overall
analysis of the issue is so lacking as to shift the burden of research
and argument to the reviewing court.’” State v. Turner, 2012 UT
App 189, ¶ 29, 283 P.3d 527 (quoting Smith v. Smith, 1999 UT App
370, ¶ 8, 995 P.2d 14).

¶12 Here, Lamb’s argument provides only a single case citation,
offers only conclusory statements, and does not provide any
analysis of rule 404(b) or the Shickles factors that are utilized in
evaluating the evidence’s potential unfair prejudice under the rule.
See generally Utah R. Evid. 403; id. R. 404(b); State v. Balfour, 2008 UT
App 410, ¶ 25, 198 P.3d 471 (citing State v. Shickles, 760 P.2d 291,
295–96 (Utah 1988)). Because we determine that Lamb has inade‐
quately briefed the prejudice prong of the severance analysis, we
do not consider it. See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903
(“An appellate court is not a depository in which [a party] may
dump the burden of argument and research.” (alteration in
original) (citation and internal quotation marks omitted)).

¶13 Next, we consider whether the trial court’s denial of Lamb’s
motion to suppress was proper and whether factual findings made

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State v. Lamb

during the suppression hearing were clearly erroneous. See State v.
Earl, 2004 UT App 163, ¶ 8, 92 P.3d 167 (“When reviewing a trial
court’s suppression order, we review its factual findings for clear
error, and its legal conclusions for correctness.”).

¶14 Lamb first contends that Utah Code section 4‐24‐28, the
statute under which the evidence was obtained, violates Fourth
Amendment restrictions on warrantless administrative searches.
See Utah Code Ann. § 4‐24‐28 (LexisNexis 2006) (allowing inspec‐
tors to stop livestock vehicles and to enter premises where livestock
are kept to inspect brands). Lamb also argues that the trial court
made erroneous findings of fact by accepting the Theft Inspector’s
testimony indicating that he first saw the cattle when using
binoculars while on a neighbor’s property. Lamb’s arguments are
premised on the assumption that the Theft Inspector entered his
field without a warrant to determine that the cattle were stolen. He
contends that this entry onto his property was an illegal search
prohibited by the Fourth Amendment, which protects “[t]he right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S. Const.
amend. IV.5

¶15 The State does not directly address these arguments, instead
contending that, regardless of the statutory authority for an
administrative search and any dispute over where the Theft
Inspector was when he first saw a cow bearing the identification of
another owner, the Fourth Amendment does not apply to the open
field where the cattle were found.

¶16 We agree that the Fourth Amendment does not protect
“open fields.” See Hester v. United States, 265 U.S. 57, 59 (1924)
(“[T]he special protection accorded by the Fourth Amendment to

5. The Fourth Amendment is applicable to the states pursuant to
the Fourteenth Amendment. See generally In re A.R., 937 P.2d 1037,
1040 (Utah Ct. App. 1997).

20111071‐CA 8 2013 UT App 5
State v. Lamb

the people in their ‘persons, houses, papers, and effects,’ is not
extended to the open fields.”); see also Braden v. County of Lake, No.
00‐15529, 25 Fed. App’x 513, 514 (9th Cir. Nov. 21, 2001) (holding
that property surrounded by barbed wire fence “to keep out
trespassers or control cattle” was an open field and not part of
curtilage); United States v. Caldwell, No. 99‐6031, 2000 WL 1888682,
at *7 (6th Cir. Dec. 19, 2000) (holding that a fenced cattle pasture
thirty to sixty yards from a house was an open field and not part of
the curtilage); Schroeder v. Kochanowski, 311 F. Supp. 2d 1241, 1253
(D. Kan. 2004) (ruling that a cattle pasture was an open field); State
v. Shreve, 667 P.2d 590, 591 (Utah 1983) (per curiam) (determining
that the defendant had no reasonable expectation of privacy when
growing marijuana in an open field in a rural area with no houses
nearby); Westfall v. State, 10 S.W.3d 85, 90 (Tex. App. 1999) (holding
that a fenced cattle field and barn on which no residence is
maintained is an open field for Fourth Amendment purposes). An
“open field” need not actually even be “open” or a “field.” See
Oliver v. United States, 466 U.S. 170, 180 n.11 (1984). So long as it is
not part of the curtilage of a home, an “open field” can be a
secluded field surrounded by woods, fences, chicken wire, or
embankments, and entirely out of public view or access, see id. at
174, 180 n.11, 182 & n.12; it can even be a cave, a still, a shed, a
small concrete building, a chicken coop, a hog pen, a goose pen, see
United States ex rel. Saiken v. Bensinger, 546 F.2d 1292, 1296–97 (7th
Cir. 1976), or an open and shared parking area adjacent to or
behind an apartment building, see State v. Atwood, 831 P.2d 1056,
1059 (Utah Ct. App. 1992). As the State persuasively argues in its
brief, “[w]hatever ‘open field’ means, the phrase surely applies to
a field that is out in the open.”

¶17 Even if it constituted a trespass, the State’s physical intru‐
sion on an open field is of no Fourth Amendment significance. See
United States v. Jones, 132 S. Ct. 945, 953 (2012) (“Quite simply, an
open field, unlike the curtilage of a home, is not one of those
protected areas enumerated in the Fourth Amendment.” (citation
omitted)); see also Casey v. State, 488 P.2d 546, 547–48 (Nev. 1971)
(citing cases demonstrating that open fields remain unprotected

20111071‐CA 9 2013 UT App 5
State v. Lamb

under the Fourth Amendment, even when fenced, or posted with
“no trespassing” signs, and regardless of plain view). Accordingly,
any authorization that section 4‐24‐28 gives to search an open field
does not raise constitutional concerns.

¶18 Lamb does not argue that the property where the stolen
cattle were found was something other than an open field. As a
result, the trial court correctly concluded that “there was not a
search in this case proscribed by the Fourth Amendment because
. . . the acts of the brand inspectors occurred in an open field where
[Lamb] had no reasonable expectation of privacy.” Thus, the trial
court properly denied Lamb’s motion to suppress.

¶19 Affirmed.

____________________

20111071‐CA 10 2013 UT App 5