State v. Millett

2025 UT App 67

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
NOAH EROL MILLETT,
Appellant.

Opinion
No. 20230449-CA
Filed May 15, 2025

Sixth District Court, Richfield Department
The Honorable Marvin D. Bagley
No. 191600014

K. Andrew Fitzgerald, Attorney for Appellant
Derek E. Brown and Jeffrey D. Mann,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 A jury convicted Noah Erol Millett of several crimes—the
most serious of which was possession of a firearm by a restricted
person—related to events that took place in connection with a
traffic stop. He appeals his convictions, challenging several
decisions the trial court made during the course of his case. He
asserts that the court erred in denying his motion to suppress
evidence found in his vehicle. He takes issue with the jury
selection process, including the court’s decision to deny some of
his for-cause objections to individual jurors. He challenges the
court’s decision to admit certain toxicology evidence. He assigns
error to the court’s decision to deny his motion for a directed
verdict on a drug paraphernalia charge. And he faults the court
State v. Millett

for proceeding with the trial during his own short voluntary
absence from the proceedings. For the reasons discussed, we
reject Millett’s arguments and affirm his convictions.

BACKGROUND 1

¶2 One day, an officer (Officer) was on patrol when he saw
Millett driving a car. Officer recognized Millett from previous
interactions and recalled that Millett’s driver license had been
suspended. After running a records check to confirm that Millett’s
license was indeed suspended, Officer activated his emergency
lights and initiated a traffic stop. Officer approached the vehicle
and began conversing with Millett about the status of his license;
Millett indicated that he thought the license issue had already
been “cleared up.” A female passenger was present in the car;
Millett identified her as his girlfriend (Girlfriend), and he
explained to Officer that Girlfriend was in the late stages of
pregnancy. After conversing briefly with Millett and Girlfriend,
Officer returned to his vehicle to conduct a second records check
on Millett and an initial records check on Girlfriend; this check
revealed that Girlfriend had an outstanding arrest warrant. Upon
returning to Millett’s car, Officer informed Millett and Girlfriend
that Girlfriend had a warrant. Millett, who by this point had
exited the vehicle and was “standing behind” it, approached
Officer “[i]n an aggressive manner.”

¶3 When Millett began acting aggressively, Officer and at
least two other law enforcement officers who had arrived on the

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Popp, 2019 UT App 173, n.1, 453
P.3d 657 (cleaned up).

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State v. Millett

scene “grabbed” Millett and “tried to put him in handcuffs.”
Millett “started to resist,” however, and the officers eventually
had to wrestle him to the ground. During the scuffle, Millett told
the officers that it was “not going to end well” if they attempted
to arrest Girlfriend. After the officers subdued Millett, but before
they frisked him, one of the other officers (Detective) asked, “Do
you have any weapons on you?,” to which Millett responded that
his “9-millimeter pistol” was “under the seat” of the car. Detective
then asked, “Do you have any drugs, no needles, nothing on
you?,” to which Millett replied that “there [were] needles in the
door” of the car. At that point, one of the officers looked under the
driver’s seat of the car and located a loaded handgun. Millett was
later arrested because of his “interference” with officers;
Girlfriend—because of her pregnancy—was not formally
arrested, but she was “detained” to “take care of the warrant.”
Both Millett and Girlfriend were then transported to the county
jail “without further incident.”

¶4 The officers decided to impound the vehicle, and as part of
the impound process, they performed an inventory search. In
addition to the handgun, officers discovered, in the driver’s side
door, two used syringes, a bag of unused syringes, a baggie
“containing a clear liquid substance,” and a “clear container with
a black lid or a cap.” A field test on residue found in the container
and the baggie was positive for methamphetamine; the results of
that field test were later confirmed via a lab test. In addition,
officers obtained a sample of Millett’s blood, which also tested
positive for methamphetamine.

¶5 After investigation, the State eventually charged Millett
with possession of a firearm by a restricted person, possession or
use of a controlled substance, interference with an arresting
officer, possession of drug paraphernalia, and driving with a
measurable controlled substance in the body.

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State v. Millett

¶6 Later, Millett filed a motion to suppress, asking the court
“for an order suppressing any and all evidence obtained as a
result of the warrantless search of [his] vehicle.” In relevant part,
the motion asserted that “[t]he initial ‘traffic stop’ was illegal”
because Officer “did not confirm” that Millett’s license was
suspended “prior to his initiation of the traffic stop.” Thus, Millett
argued, “[t]he pre-arrest search of [his] vehicle was illegal”
because the search was not “supported by probable cause” or, in
the alternative, because any probable cause was “developed by
questioning [Millett] while he was on the ground in handcuffs”
and before he had been provided with the warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966). The State opposed Millett’s
motion, asserting that the officers did have probable cause and,
alternatively, that the items in the vehicle would have inevitably
been discovered anyway after officers arrested or detained Millett
and Girlfriend and impounded the vehicle.

¶7 The court issued a written ruling denying Millett’s motion.
In the ruling, the court referenced “a dash video that shows the
arrest,” and it found that, in the video, “[a]n officer can be heard
asking [Millett] if he had any weapons ‘on him,’ to which [Millett]
replied that there was ‘a gun under the seat.’” The court also
found that the “officer asked [Millett] if he had any drugs or
needles on him, to which [Millett] initially said no, then add[ed]
‘there’s needles in the door.’” The court also found that the State
had “showed by a preponderance of the evidence that both
[Millett] and [Girlfriend] would have been arrested even if the
vehicle had not been searched,” due to Millett “resisting arrest”
and because Girlfriend had an outstanding warrant. The court
concluded that, because Officer had confirmed Millett’s identity
and suspended license before initiating the stop, there “was
sufficient reasonable suspicion for Officer . . . to initiate the traffic
stop.” The court also determined that the items recovered from
the car would have been inevitably discovered when officers,

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State v. Millett

after arresting Millett and Girlfriend and impounding the vehicle,
conducted a lawful inventory search.

¶8 The case then proceeded to a two-day jury trial. The court
summoned twenty-eight potential jurors and, of those, seven
were excused prior to trial and five did not show up on the day of
trial. This left just sixteen potential jurors available at the
beginning of jury selection from which to empanel a jury of eight.
But neither party asked the court to postpone or continue the trial
because of the limited number of available jurors.

¶9 Millett’s attorney (Counsel) did, however, ask the trial
court to strike five of the potential jurors for cause. The State did
not oppose Millett’s request with regard to two of those jurors,
but it did oppose Millett’s request as to the other three. After
additional questioning of the three contested jurors, all of them
indicated that, despite some level of acquaintance with some of
the State’s witnesses or with one of the prosecutors, they could
nevertheless be fair and impartial. On that basis, the court denied
Millett’s motion regarding the three contested jurors, concluding
that “[a]ll three answered pretty directly that they could be fair
and impartial” and were thus “adequately rehabilitated.” Due to
the limited number of jurors, the State “volunteered to only
exercise two peremptory challenges instead of four,” but Millett
remained entitled to all four of his peremptory challenges. Millett
used a peremptory strike on one of the three contested jurors; the
other two were seated and participated in the trial.

¶10 During the trial, the State called several witnesses in
support of its case-in-chief, including Officer, Detective, and the
toxicologist (Scientist) who tested Millett’s blood sample. Officer
and Detective both testified about the events described above.

¶11 Scientist testified that, once Millett’s blood sample was
received by her laboratory, another toxicologist likely “performed
a screening test” but that she could not “be sure” “without having

20230449-CA 5 2025 UT App 67
State v. Millett

more data.” She explained that when the lab receives a sample,
one of the toxicologists typically “perform[s] a series of screening
analyses first, . . . then another toxicologist will perform the
confirmation test.” Scientist explained that she did not perform
preliminary screening tests on Millett’s sample but that she did
perform the confirmation test. When asked by the State if the
preliminary test “affect[s] the . . . . integrity and the reliability of
the test [Scientist] performed herself,” Scientist answered, “No, it
does not.” Scientist also confirmed that the testing “machines [are]
checked regularly” and that the “machine was operating
correctly” on the day Scientist ran Millett’s confirmation test.
Scientist did not, however, assert that she had personally
calibrated the machine.

¶12 When the State attempted to ask Scientist about the result
of the confirmation test, Millett objected on several grounds, two
of which are relevant here. First, Millett objected because Scientist
“didn’t testify whether or not she specifically was the one that
calibrated the machine.” And second, Millett objected because the
State had not called as a witness the other toxicologist who had
performed the preliminary screening test, and Millett asserted
that he had “a right to confront . . . [the] expert [that] did the first
test.” The State responded by stating that it was “not trying to
introduce evidence of the preliminary test” and was “only
introducing the confirmation [test] which is what [Scientist] did.”
The court overruled the objections, concluding that Scientist’s
testimony about calibration and testing was sufficient. The court
also offered its view that any concerns Millett had about the tests
pertained to the weight of the evidence rather than its
admissibility. Following the court’s ruling, Scientist testified that
Millett’s blood sample tested positive for methamphetamine.

¶13 After the State rested its case, Millett made—as relevant
here—a motion for directed verdict on the drug paraphernalia
charge, asserting that the State’s evidence on that count was
insufficient because the State hadn’t “presented enough

20230449-CA 6 2025 UT App 67
State v. Millett

evidence” to meet its burden of showing that Millett had “an
intent to possess” the paraphernalia. The court denied the motion.

¶14 When it was his turn to present evidence, Millett called his
father (Father) as a witness. Father testified that he owned the car
Millett had been driving on the day of the incident. Father also
stated that the gun found in the car was his and that Millett had
given him the gun several years earlier as “a gift” to “cheer
[Father] up” after his wife, Millett’s mother, had passed away.
Father stated, however, that the gun remained registered in
Millett’s name because Father “didn’t do the paperwork” to
register the gun in his name. Father claimed that, although he
normally stored the gun “locked up in [a] gun cabinet,” he had
decided to keep it in his car for protection after being
“intimidated” by individuals at a gas station. Father indicated
that he had never told Millett, or anyone else, that he had placed
the gun in the car. Father stated that the day in question was the
first time that Millett had borrowed the car, but that a woman who
had been staying at Father’s house had used the car
“occasionally” in the weeks prior to the incident. Father testified
that the woman was no longer living at his house, that she left
“under rather angry conditions,” and that, thereafter, Father
found “two hypodermic needles” “in the nightstand” in her room.

¶15 From the record, it appears that Millett and Counsel had
some ongoing disagreements about how the case should be tried.
On the second day of trial, Millett and Counsel met with the court
for an in-chambers discussion about Millett’s “disagreement with
many of the strategies [Counsel was] using in the trial.” When
back on the record, Counsel stated that Millett’s ongoing
“disagreement” with him was “making it difficult for [Counsel]
to concentrate on [his] strategy.” The court indicated that, in its
view, Millett was “being well represented,” but nonetheless noted
that Millett did have the right to represent himself if he should so
choose. Millett chose to proceed with Counsel. Shortly thereafter,
the court ruled on a motion to dismiss that Counsel had filed, in

20230449-CA 7 2025 UT App 67
State v. Millett

which he asserted that the case should be dismissed because
Millett had not been given a speedy trial, in part due to the
COVID-19 pandemic. The court acknowledged that Millett’s case
had been pending for “a long time,” but it noted that, despite
disruptions from the pandemic, “most of [the continuances] were
initiated by [Millett’s] side.” Accordingly, the court found that
“there was not prejudice to [Millett]” and denied the motion.

¶16 Millett was apparently dissatisfied with Counsel’s motion
to dismiss, however, because soon after the court denied the
motion, Millett told the court—outside the presence of the jury—
that he “had a written motion” that he wanted the court to
address. Millett then asked to “be excused” from the courtroom
in order to retrieve the motion, to which the court responded that
Millett could “get it at lunchtime.” The court also told Millett that
if he chose to leave the courtroom to retrieve the motion, the trial
would “go[] forward” in his absence and that it would not “look
good” for him, but that it was his “choice.” Millett ultimately
chose to leave the courtroom, and the court did indeed proceed in
his absence. When the jury re-entered the courtroom, the court
gave an instruction that the jury “should draw no inferences
from” Millett’s absence, that “[h]e is still presumed innocent,” and
that the jury “should give it no weight that” Millett was not there.
After a brief absence, Millett logged onto the trial court’s
videoconference service to listen to the proceedings. And at some
point later that same morning, Millett returned to the courtroom
in person and remained until the trial concluded.

¶17 After deliberation, the jury found Millett guilty on all
charges. The court sentenced Millett to prison, but it suspended
that sentence and placed Millett on probation, with conditions.

20230449-CA 8 2025 UT App 67
State v. Millett

ISSUES AND STANDARDS OF REVIEW

¶18 Millett now appeals, and he presents five issues for our
review. First, he challenges the trial court’s ruling denying his
motion to suppress. “A trial court’s decision to grant or deny a
motion to suppress . . . is a mixed question of law and fact. Factual
findings are reviewed for clear error, but legal conclusions are
reviewed for correctness.” State v. Evans, 2021 UT 63, ¶ 20, 500
P.3d 811 (cleaned up).

¶19 Second, Millett takes issue with the jury selection process,
asserting that the court should have continued the trial due to the
small number of available jurors, and taking issue with the court’s
decision to overrule his for-cause objections to three of the
potential jurors. As we explain below, Millett failed to preserve
any argument that the court should have continued the trial. And
we review for “abuse of discretion” a “trial court’s determination
of whether to excuse a prospective juror for cause.” State v. Ellis,
2020 UT App 119, ¶ 10, 473 P.3d 211 (cleaned up).

¶20 Third, Millett challenges the court’s decision to allow
Scientist to offer testimony about the results of the testing she
performed on Millett’s blood; he asserts that this was error
because he was not able to confront the other toxicologist who
performed the preliminary screening tests. “We review a trial
court’s evidentiary rulings for an abuse of discretion, and we will
not reverse the trial court’s ruling on evidentiary issues unless it
is manifest that the trial court so abused its discretion that there is
a likelihood that injustice resulted.” State v. Gollaher, 2020 UT App
131, ¶ 21, 474 P.3d 1018 (cleaned up).

¶21 Fourth, Millett takes issue with the court’s ruling denying
his directed verdict motion on the drug paraphernalia charge.
“We review [a trial] court’s denial of a motion for directed verdict
for correctness.” State v. Graydon, 2023 UT App 4, ¶ 26, 524 P.3d
1034 (cleaned up). In particular, “when a defendant challenges the

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State v. Millett

denial of a motion for a directed verdict based on the sufficiency
of the evidence, the applicable standard of review is highly
deferential, and we will uphold the [trial] court’s denial if, when
viewed in the light most favorable to the State, some evidence
exists from which the elements of the crime could be proven
beyond a reasonable doubt.” Id. (cleaned up).

¶22 Finally, Millett challenges the court’s decision to proceed
with the trial during Millett’s absence from the courtroom. This
challenge presents “a mixed question of law and fact. The initial
question—whether the trial court’s inquiry regarding the
voluntariness of a defendant’s absence was properly conducted—
is a question of law reviewed for correctness. If the first question
is answered in the affirmative, we next consider whether [the
defendant] was voluntarily absent, a question of fact.” State v.
Pando, 2005 UT App 384, ¶ 13, 122 P.3d 672 (cleaned up).

ANALYSIS

I. Motion to Suppress

¶23 Millett first asserts that the court improperly denied his
motion to suppress the evidence discovered in the vehicle (the
gun, the drugs, and the paraphernalia). In particular, Millett
argues that any probable cause that the officers might have had
regarding the presence of a gun and drugs in the vehicle was
“developed by subjecting Millett to unlawful custodial
interrogation” prior to providing him the warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966).

¶24 The Fifth Amendment to the United States Constitution
states that “[n]o person . . . shall be compelled in any criminal case
to be a witness against himself.” U.S. Const. amend. V. “To protect
this right against self-incrimination, the United States Supreme
Court held, in Miranda . . . , that individuals who are in police

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State v. Millett

custody must be apprised of their rights prior to any
questioning—including the right to remain silent and the right to
the presence of an attorney.” State v. Schaefer, 2025 UT App 4, ¶ 13,
563 P.3d 424 (cleaned up), petition for cert. filed, Mar. 13, 2025 (No.
20250261). Generally, the remedy for a Miranda violation is
suppression of incriminating evidence obtained as a result of that
violation. Id. ¶ 28 (determining that a Miranda violation occurred
and remanding for a new trial “in which the incriminating
statements made during [the defendant’s] custodial interrogation
must be suppressed”).

¶25 Millett argues that the trial court improperly denied his
motion to suppress because the statements the officers obtained
from him regarding the presence of a gun and drugs in the vehicle
were obtained before any Miranda warnings were given and after
he was in custody. But even if we assume—without deciding—
that Millett was in custody at the time he provided that
information, there is no Miranda violation here because the
officers’ questions were permissible pursuant to the public safety
exception. See New York v. Quarles, 467 U.S. 649, 655 (1984).

¶26 In Quarles, the United States Supreme Court established “a
‘public safety’ exception to the requirement that Miranda
warnings be given before a suspect’s answers may be admitted
into evidence.” Id. In that case, the court determined that an
officer’s question to an individual about the whereabouts of a gun
that had been stashed in a supermarket did not violate Miranda,
reasoning that “the need for answers to questions in a situation
posing a threat to the public safety outweighs the need for the
prophylactic rule protecting the Fifth Amendment’s privilege
against self-incrimination.” Id. at 655–57.

¶27 The public safety exception is applicable here. As noted,
Millett had been acting aggressively toward the officers and was
in the process of being restrained. Girlfriend, who was in the late
stages of pregnancy, was present and unrestrained. Officers were

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State v. Millett

also preparing to frisk Millett after placing him in handcuffs. In
this situation, the officers were—due to concern for the safety of
themselves and the public—permitted to ask Millett whether he
had weapons or needles “on him.” And they were permitted to
do so even before apprising Millett of his Miranda rights. See, e.g.,
United States v. Lester, 98 F.4th 768, 772, 774–75 (6th Cir. 2024)
(holding that the public safety exception applied when the officer,
before patting down a suspect, asked whether there was
“anything else on you, any other drugs, anything that would stick
or harm me”); United States v. Reyes, 353 F.3d 148, 150, 154–55 (2d
Cir. 2003) (holding that the exception applied when the officer,
before handcuffing a suspect, asked whether he “had anything on
him that could hurt the officer” (cleaned up)); United States v.
Lackey, 334 F.3d 1224, 1225–27 (10th Cir. 2003) (holding that the
exception applied when the officer, before patting down a
suspect, asked, “Do you have any guns or sharp objects on you?”).

¶28 Indeed, the facts here closely mirror the facts in Lackey, a
case in which police sought to arrest the defendant. 334 F.3d at
1225. Once officers placed the defendant in handcuffs, but prior
to advising him of his Miranda rights, an officer asked if the
defendant “ha[d] any guns or sharp objects on [him],” to which
the defendant responded that he did not have anything “on
[him]” but that “there was a gun in the car.” Id. at 1225–26.
Officers then recovered a gun from the car. Id. On appeal, the
court held that “the question was proper under the public safety
exception to Miranda set forth in Quarles.” Id. at 1226. The court
explained its holding as follows:

[T]he reasoning of Quarles applies squarely to the
circumstances here. The focused question of the
officers—“Do you have any guns or sharp objects on
you”—addressed a real and substantial risk to the
safety of the officers and [the defendant]: If [the
defendant] was carrying such an item, he could use
it against the officers or, perhaps more likely,

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State v. Millett

someone could be seriously injured when [the
defendant], who was already under arrest, was
routinely searched or frisked.

Id. at 1227. The court also noted that it was “irrelevant” that the
“principal danger . . . was the risk of injury to the officers or [the
defendant] himself, rather than ordinary members of the
‘public.’” Id. at 1227–28.

¶29 This case is materially indistinguishable from Lackey, and
we therefore find that case persuasive. Cf. State v. Fullerton, 2018
UT 49, ¶ 3, 428 P.3d 1052 (noting that, “because Miranda is a matter
of federal jurisprudence, our courts must be in lockstep with the
United States Supreme Court” on Miranda-related matters). As in
Lackey, officers placed the defendant (here, Millett) in handcuffs
and asked whether he had any guns or sharp objects (here,
needles) “on [him].” And, like the defendant in Lackey, Millett
gave a partially nonresponsive answer to the question, telling
officers that there were needles and a gun in the car. Here, too, the
“principal danger” was risk of injury not to the general public but,
rather, to the officers restraining him, to Girlfriend, or to Millett
himself. See Lackey, 334 F.3d at 1227–28. But as the Lackey court
noted, this is “irrelevant.” Id. The key here is that officers were
asking Millett—as he was being restrained—about his immediate
access to weapons or needles, an inquiry that is deemed necessary
to ensure the safety of those nearby. Under these circumstances,
the public safety exception to Miranda is applicable. 2

2. In this case, the trial court denied Millett’s motion to suppress
on different grounds, determining that the evidence in question
would have inevitably been discovered. We are, however,
authorized to affirm a trial court’s decision on an “alternative
basis,” and—at the State’s request—we elect to do so here. State v.
McLeod, 2018 UT App 51, ¶ 21, 420 P.3d 122 (“We may affirm on
any legal ground or theory apparent on the record.” (cleaned up)).

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State v. Millett

¶30 Accordingly, we conclude that there was no violation of
Millett’s Fifth Amendment rights when officers asked him, while
being restrained, about the presence of any guns or needles on
him. On this basis, we affirm the trial court’s ruling denying
Millett’s motion to suppress.

II. Jury Selection Issues

¶31 Next, Millett registers two complaints about the jury
selection process. First, he asserts that the trial court should have
continued the trial due to the low number of available jurors.
Second, he takes issue with the court’s decision to overrule his for-
cause objections to the three contested jurors. We reject both of
Millett’s arguments, but for different reasons.

¶32 Millett’s first argument fails for lack of preservation.
Millett points us to no place in the record where he asked the court
to continue the trial. The record does indicate that an unrecorded
in-chambers discussion took place about whether certain jurors
should be struck for cause, which the parties attempted to
summarize for the record when they returned to the courtroom.
But that summary is devoid of any reference to a motion from
Counsel to continue the case and, “as the appellant alleging error,
[Millett] has the duty and responsibility of supporting such
allegation by an adequate record.” Ajinwo v. Chileshe, 2018 UT
App 39, ¶ 2, 420 P.3d 51 (cleaned up). In the absence of a complete
record, “we . . . presume the regularity of the proceedings.” Id. ¶ 4
(cleaned up). 3 In this case, where the existing record contains no
indication that Millett ever made a motion to continue, we will

3. There is, of course, an option open to litigants who believe there
is a gap in the record: they can seek to reconstruct the part of the
record they believe is not reflected in the record on appeal. See
Utah R. App. P. 11(f) (providing an avenue by which parties can
supplement or modify an incomplete record). Millett made no
such motion in this case.

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not assume that any such motion was made. Thus, Millett’s
appellate argument on that point is unpreserved for our review.
See State v. Mayorga, 2024 UT App 182, ¶ 29, 561 P.3d 1184 (“To
preserve any issue for appellate review, the issue must be
specifically raised such that the issue was sufficiently raised to a
level of consciousness before the trial court.” (cleaned up)), cert.
denied, Mar. 20, 2025 (No. 20241379). And Millett “does not ask us
to apply any of our established exceptions to the preservation
rule, such as plain error or ineffective assistance of counsel.” Id.
¶ 34. On this basis, we reject Millett’s argument that his case
should have been continued to allow for a larger jury pool.

¶33 Second, Millett challenges the denial of his motions to
strike three jurors for cause. Specifically, he asserts that the trial
court should have granted his for-cause motions because those
jurors had some level of relationship with either witnesses for the
State or one of the prosecutors. But, on appeal, Millett makes no
attempt to rebut or engage with the trial court’s determination
that the contested jurors were “adequately rehabilitated.”

¶34 On appeal, a party’s “[p]rincipal briefs must contain . . .
[a]n argument” that explains, “with reasoned analysis supported
by citations to legal authority and the record, why the party
should prevail on appeal.” Utah R. App. P. 24(a)(8). This means
that “appellants carry the burden to persuade a reviewing court
through reasoned, supported argument that the [trial] court
committed harmful, reversible error—a burden that necessarily
requires the appellant to address the reasoning and basis of the
[trial] court’s ruling and to explain why that court got it wrong.”
Big Game Forever v. Peterson, 2024 UT App 78, ¶ 19, 551 P.3d 411
(cleaned up); see also Pinder v. Duchesne County Sheriff, 2020 UT 68,
¶ 36, 478 P.3d 610 (“It is the appellant’s job to tell us where and
how the [trial] court went wrong.”). If an appellant “does not
meaningfully engage with the [trial] court’s reasoning,” that
appellant “falls short of demonstrating any error on the part of the
[trial] court.” Big Game Forever, 2024 UT App 78, ¶ 19 (cleaned up);

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see also Pinder, 2020 UT 68, ¶ 36 (“An appellant who fails to
adequately brief an issue will almost certainly fail to carry its
burden of persuasion on appeal.” (cleaned up)).

¶35 In his principal brief, Millett fails to meet this burden. In
fact, Millett’s entire argument on this point is as follows:

Defense counsel indicated on the record that he
motioned for [the three jurors] to be stricken for
cause, but the trial court determined that they had
been rehabilitated and would not dismiss them
since it needed them to remain in the pool to
empanel a jury for this case.

Millett cites no case law regarding the standards for assessing the
propriety of a court’s decision regarding a for-cause objection.
And Millett provides no record citations for, or even any
descriptions of, the actual facts of the relationships that these
jurors may have had with witnesses for the State or the
prosecutors. This brief argument is simply insufficient to carry
Millett’s burden of appellate persuasion.

¶36 On this basis, we reject Millett’s arguments that the trial
court abused its discretion in denying his motions to strike the
three jurors in question for cause. 4

4. Even though Millett has not borne his burden of persuading us
that the trial court abused its discretion in this case, we offer a
word of caution to trial courts faced with the situation in which
too few jurors are summoned for (or show up to) a trial. Initially,
judges and court staff should do everything they can to avoid
such situations in the first place and should err, if at all, on the
side of calling too many (rather than too few) jurors. Such
situations are to be avoided because—given the inertia attorneys,
(continued…)

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State v. Millett

III. Toxicology Evidence

¶37 Next, Millett claims that, before allowing Scientist to testify
about the results of the confirmation test she performed on
Millett’s blood sample, the trial court should have required the
State to present testimony “regarding the calibration of the
machine on which the initial test” was done and “regarding the
initial test” in general. But we discern no abuse of discretion in the
court’s decision to allow Scientist to testify, notwithstanding the
absence of testimony regarding calibration of the machine used
on the initial test or the process of running the initial test itself. 5

¶38 Our ruling in this regard turns on Scientist’s testimony that
the confirmation test was completely independent from the initial
screening test and that the results of the confirmation test were in
no way affected by the results of the initial screening. Indeed,

judges, litigants, and witnesses often feel to make sure a
scheduled trial happens on the day it is set—the temptation can
be quite real to water down for-cause assessments so that a jury
can be empaneled and the trial will not have to be postponed. It
should go without saying that the standards for assessing jurors’
qualifications should not vary depending on the size of the jury
pool. While courts should not be quick to postpone a trial, courts
should not hesitate to do so when the jury pool is so small that it
starts affecting the court’s analysis regarding for-cause objections.
Given our resolution of this issue, however, we stop well short of
determining that the trial court here committed any sort of error;
we offer these thoughts simply as general advice for future cases.

5. Millett also argued to the trial court that the State should have
been required to present additional evidence regarding
calibration of the machine used for the confirmation test. But
Millett appears to have abandoned that argument on appeal,
raising here only arguments about calibration of the machine used
to conduct the screening test. We limit our analysis accordingly.

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State v. Millett

when asked directly whether “[t]he fact that there [are]
toxicologists performing preliminary tests . . . affect[s] the . . .
integrity and the reliability of the test [she] performed,” Scientist
answered unequivocally in the negative. And the State made no
attempt to introduce or otherwise rely on the results of the initial
screening test; indeed, it asked only for admission of the results of
the confirmation test.

¶39 Under these circumstances, the trial court did not abuse its
discretion by allowing Scientist to testify about the results of the
confirmation test, even in the absence of testimony from the other
toxicologist who performed the initial screening tests and
calibrated the machine on which the initial tests were performed.
We therefore reject Millett’s arguments to the contrary.

IV. Sufficiency of the Evidence on the
Drug Paraphernalia Charge

¶40 Fourth, Millett challenges the court’s ruling denying his
motion for directed verdict regarding the drug paraphernalia
charge. Specifically, Millett argues that there was insufficient
evidence to support the charge, and he claims that he “was
unaware” that most of the drug paraphernalia was in the vehicle.
But here, there was at least “some evidence” to support the
charge, see State v. Graydon, 2023 UT App 4, ¶ 26, 524 P.3d 1034
(cleaned up), and therefore the court did not err in denying
Millett’s directed verdict motion. 6

6. The State asserts that Millett’s sufficiency challenge is
unpreserved. However, because we can resolve this issue on the
merits in favor of the party asserting that the issue is unpreserved,
we choose to do so. See State v. Kitches, 2021 UT App 24, ¶ 28, 484
P.3d 415 (“[I]f the merits of a claim can easily be resolved in favor
of the party asserting that the claim was not preserved, we readily may
opt to do so without addressing preservation.”).

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State v. Millett

¶41 In his arguments on appeal, Millett focuses entirely on the
needles that were found in the car, and he asserts that “there was
nothing presented to show that the [unused] needles had been
used as drug paraphernalia” or that Millett “even knew the used
needles were there or that he had used them.” Accordingly,
Millett asks this court to determine that the trial court should have
granted his motion for a directed verdict on the charge. But
Millett’s argument fails because the paraphernalia charge was not
based solely on the needles. Even if we are to assume—without
deciding—that the State’s evidence about the needles was
insufficient, Millett’s arguments fail because he does not mention
the other evidence at play, namely the container and baggies,
which were tested and contained methamphetamine residue.

¶42 The relevant statute defines drug paraphernalia as “any
equipment, product, or material used, or intended for use, to . . .
package, repackage, store, contain, conceal, inject, ingest, inhale,
or to otherwise introduce a controlled substance into the human
body.” Utah Code § 58-37a-3(1). This statutory definition includes
any “capsules, balloons, envelopes, and other containers used, or
intended for use to package small quantities of a controlled
substance,” as well as “containers and other objects used, or
intended for use to store or conceal a controlled substance.” Id.
§ 58-37a-3(2)(i), (j).

¶43 Here, the search of the car recovered not only needles, but
also “a baggie containing a clear liquid substance” as well as a
“clear container,” both of which contained residue that tested
positive for methamphetamine. The baggie and container both
clearly qualify as a “container” used to “package” or “store” a
controlled substance. Id.

¶44 Millett makes no specific argument on appeal regarding
these items. But even assuming that his argument about the used
needles—that he didn’t know they were there—was also intended
to apply to the container and the baggie, the evidence here was

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State v. Millett

sufficient to create at least a jury question about whether Millett
was in possession of them. These items were found in the driver’s
side door of a car Millett had been driving. See State v. Ashcraft,
2015 UT 5, ¶ 19, 349 P.3d 664 (stating that the constructive
possession inquiry “depends upon the facts and circumstances of
each case,” including factors such as “ownership and/or
occupancy of the residence or vehicle, presence of the defendant
when the contraband is discovered, the defendant’s proximity to
the contraband, . . . and presence of contraband in a specific area
where the defendant had control” (cleaned up)). And even before
officers found the baggie and the container, Millett told them that
they would find “needles in the door” of the car; it is a reasonable
inference, from this statement, that Millett also knew about the
other items of drug paraphernalia found in the same location.

¶45 Thus, under the specific circumstances presented here, the
State presented at least “some evidence” on the drug
paraphernalia charge “from which a reasonable jury could find
that the elements of the crime had been proven beyond a
reasonable doubt.” See State v. Stricklan, 2020 UT 65, ¶ 30, 477 P.3d
1251 (cleaned up). Accordingly, the trial court did not err in
denying Millett’s directed verdict motion on that count.

V. Millett’s Brief Absence from the Trial

¶46 Finally, Millett takes issue with the trial court’s decision to
proceed with the trial after he left the courtroom for a period of
time. Millett claims that the court did not adequately establish that
he left the courtroom knowingly and voluntarily. But here, the
record clearly establishes that Millett was aware of his rights and
left the courtroom voluntarily.

¶47 The Utah Constitution protects defendants’ “right to
appear and defend in person and by counsel.” Utah Const. art. I,
§ 12. But this right “may be waived under certain circumstances
if the defendant voluntarily absents himself from the trial.” State

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State v. Millett

v. Houtz, 714 P.2d 677, 678 (Utah 1986). In situations like this one,
“it is the burden of the prosecution to show that an absent
defendant has knowingly and voluntarily waived that right
before trying him or her in absentia.” State v. Pando, 2005 UT App
384, ¶ 16, 122 P.3d 672 (cleaned up).

¶48 To determine whether a defendant has “knowingly and
voluntarily waived” the right to attend the proceedings, we first
look to any “direct evidence” of “the defendant’s whereabouts.”
Id. (cleaned up). Such direct evidence can constitute “sufficient
information to assess whether [the defendant’s] absence was
voluntary.” Id. ¶ 18. In the absence of direct evidence, “the trial
court will ordinarily postpone the proceedings.” Id. ¶ 16. Finally,
as the reviewing court, we will affirm the trial court’s conclusion
that the defendant was voluntarily absent “if the facts support”
that conclusion when considering “the totality of the
circumstances.” Id. ¶ 19 (cleaned up).

¶49 Here, Millett’s absence was clearly voluntary. In this case,
there is “direct evidence” of Millett’s “whereabouts.” Id. ¶ 16
(cleaned up). In the midst of trial, Millett personally informed the
court that he wanted to leave the courtroom to retrieve a motion
he had written. Millett’s own words and actions informed the
court exactly why he was leaving and where he was going.
Moreover, the court advised Millett not to leave and informed
him of the consequences of not waiting until a recess to retrieve
the motion. Indeed, the trial court told Millett that if he left, the
trial would “go[] forward” and that it would not “look good” for
him, but that it would be his “choice.” These facts, taken together,
“support the trial court’s conclusion” that Millett’s temporary
absence was knowing and voluntary, and we accordingly discern
no error in the court’s decision to proceed with the trial during his
absence. Id. ¶ 19.

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State v. Millett

CONCLUSION

¶50 The trial court did not err in denying Millett’s motion to
suppress. Millett has not shown any abuse of discretion in the
court’s handling of jury selection matters. The court did not abuse
its discretion by allowing Scientist to testify about the results of
the confirmation test, even in the absence of testimony from the
other toxicologist who performed the initial screening tests. The
court committed no error in denying Millett’s directed verdict
motion regarding the drug paraphernalia count. And the court
did not err in proceeding with the trial during Millett’s temporary
voluntary absence.

¶51 Affirmed.

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