State v. Ali

2013 UT App 113
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ALI ALI,
Defendant and Appellant.

Memorandum Decision
No. 20111051‐CA
Filed May 2, 2013

Third District, Salt Lake Department
The Honorable Denise P. Lindberg
No. 101902146

Phillip W. Dyer and B. Kent Morgan, Attorneys for
Appellant
John E. Swallow and Brett J. DelPorto, Attorneys
for Appellee

JUDGE WILLIAM A. THORNE JR. authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
MICHELE M. CHRISTIANSEN concurred.

THORNE, Judge:

¶1 Ali Ali appeals from his convictions on one count of
distributing or arranging to distribute a controlled substance, a first
degree felony, see generally Utah Code Ann. § 58‐37‐8 (LexisNexis
2012), and one count of providing false information to a peace
officer with the intent of leading the officer to believe that the
person providing the information is another actual person, a class
A misdemeanor, see generally id. § 76‐8‐507(2). We affirm.

¶2 Ali first argues that an undercover detective’s eyewitness
testimony identifying Ali as the person who sold him crack cocaine
State v. Ali

was so unreliable as to constitute insufficient evidence for
conviction on the controlled substance distribution count. Ali
identifies multiple factors that, he argues, reduce the reliability of
the detective’s identification testimony. Among these factors are
the short duration of the drug transaction, the poor lighting
conditions, the distracting presence of another drug dealer known
to the detective, and the fact that the detective and Ali are of
different races. See generally State v. Clopten, 2009 UT 84, ¶ 15, 223
P.3d 1103 (“[P]eople identify members of their own race with
greater accuracy than they do members of a different race. In
addition, accuracy is significantly affected by factors such as the
amount of time the culprit was in view, lighting conditions, use of
a disguise, distinctiveness of the culprit’s appearance, and the
presence of a weapon or other distractions.”(footnote omitted)). Ali
also points to discrepancies between the detective’s testimony and
that of the uniformed officer who arrested Ali approximately one
hour after the transaction.

¶3 We will reverse a jury verdict for insufficiency of the
evidence only when the evidence “is sufficiently inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt.” State v. Boss, 2005 UT App 520,
¶ 9, 127 P.3d 1236 (citation and internal quotation marks omitted).
When reviewing the sufficiency of the evidence, we “may not
reassess credibility or reweigh the evidence,” State v. Workman, 852
P.2d 981, 984 (Utah 1993), and must accept the jury’s determination
of witness credibility unless the witness’s testimony is “inherently
improbable,” State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288.

¶4 We see nothing inherently improbable in the detective’s
testimony that Ali was the person who sold him drugs. See id.
¶¶ 17–18 (explaining that “inherently improbable” testimony is
testimony that is “physically impossible” or “incredibly dubious
and, as such, apparently false”). The detective had the opportunity
to observe Ali face‐to‐face during the drug transaction. Ali was
arrested nearby shortly thereafter, wearing distinctive clothing
matching that initially described by the detective when he radioed

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State v. Ali

Ali’s description to the uniformed officers supporting the
undercover operation. Additionally, Ali was sharing a hotel room
with another individual who had arranged the drug transaction
between Ali and the detective. In light of these factors, nothing
about the detective’s identification of Ali was either “physically
impossible” or “incredibly dubious.” See id.

¶5 At trial, Ali was allowed to present expert testimony
regarding the detective’s eyewitness identification. See Clopten,
2009 UT 84, ¶ 30 (“[T]he testimony of a qualified expert regarding
factors that have been shown to contribute to inaccurate eyewitness
identifications should be admitted whenever it meets the
requirements of rule 702 of the Utah Rules of Evidence.”). Ali’s
expert testified that some factors, such as the lighting and duration
of the drug transaction, reduced the reliability of the detective’s
identification. But he also identified other factors, such as the short
period of time between the drug transaction and the detective’s
identification of Ali to the arresting officers, that enhanced the
reliability of the identification. We agree with the State that the
“jurors were extensively schooled by [Ali’s expert] in the
limitations of eyewitness identification and chose, nonetheless, to
believe the [detective’s] testimony.” In addition to the expert’s
testimony, the district court also gave the jury a so‐called Long
instruction identifying factors that can affect the reliability of
eyewitness testimony. See State v. Long, 721 P.2d 483, 492–95 (Utah
1986) (discussing the requirements of an effective eyewitness
testimony instruction).1

1. In State v. Clopten, 2009 UT 84, 223 P.3d 1103, the supreme court
determined that a Long instruction is not required when a
defendant is allowed to present expert testimony on the issue of
eyewitness testimony, at which point “the inclusion of a cautionary
instruction, if requested, is a matter for the trial judge’s discretion.”
See id. ¶ 34. We approve of the district court’s decision to include
a Long instruction in this case, and we encourage the continued
(continued...)

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State v. Ali

¶6 In sum, the detective’s identification of Ali was not
inherently improbable, and the jury was informed of the pitfalls of
eyewitness identifications by both Ali’s expert and the Long
instruction. Nevertheless, the jury apparently chose to believe the
detective’s testimony that Ali was the person who had sold him
drugs. Under these circumstances, we will not disturb the jury’s
verdict based on insufficiency of the evidence.

¶7 Ali’s remaining arguments pertain to his conviction of
providing false information to a peace officer with the intent of
leading the officer to believe that he was another actual person. On
the day prior to trial, the State informed the district court that the
false information charge would have to be dismissed because the
officer who heard Ali identify himself as Mudi Hussein and
subsequently found an identification card bearing Hussein’s name
in Ali’s hotel room was unavailable to testify due to the officer’s
military deployment in Afghanistan. The next day, the State
informed the court that it had been mistaken as to the officer’s
unavailability and asked the court to reinstate the charge. The court
reinstated the charge, reasoning that it had only been dismissed the
day before and that Ali would suffer no prejudice because he was
presumably already prepared to defend against it. There is no
suggestion in the record that Ali objected to or otherwise
challenged the district court’s reinstatement decision.

¶8 On appeal, Ali argues that the district court’s decision to
reinstate the charge violated rule 4(d) of the Utah Rules of Criminal
Procedure as well as his due process rights. See generally Utah R.
Crim. P. 4(d) (“The court may permit an information to be
amended at any time before trial has commenced so long as the
substantial rights of the defendant are not prejudiced.”); In re
Worthen, 926 P.2d 853, 876–78 (Utah 1996) (discussing the minimum

1. (...continued)
discretionary use of such instructions in eyewitness identification
cases.

20111051‐CA 4 2013 UT App 113
State v. Ali

requirements of due process). However, we do not consider these
arguments because Ali waived them when he failed to object to the
district court’s ruling and did not raise his procedural and due
process concerns with the district court. See 438 Main St. v. Easy
Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not raised
at trial are usually deemed waived.”); State v. Johnson, 2006 UT App
3, ¶ 13, 129 P.3d 282 (“One who fails to make a necessary objection
or who fails to ensure that it is on the record is deemed to have
waived the issue.” (citation and internal quotation marks
omitted)).2

¶9 Ali also argues that the district court erred when it allowed
the State to prove the crime’s “actual person” and “another person”
elements with hearsay testimony about an identification card that
had been found in Ali’s hotel room after his arrest. See Utah Code
Ann. § 76‐8‐507(2) (LexisNexis 2012). Subsection 76‐8‐507(2) of the
Utah Code provides,

A person commits a class A misdemeanor if, with the
intent of leading a peace officer to believe that the
person is another actual person, he gives the name,
birth date, or address of another person to a peace
officer acting in the lawful discharge of the peace
officer’s official duties.

2. We reject the State’s argument that Ali invited any error by the
district court. Although Ali’s failure to object to the reinstatement
on the record constitutes a waiver, it does not amount to invited
error. Invited error requires some affirmative representation to the
court, and there is no indication that such a representation occurred
here. See State v. Brooks, 2012 UT App 34, ¶ 14, 271 P.3d 831
(“[R]eview under the plain error doctrine is not available when
counsel invites the error by affirmatively representing to the district
court that there is no objection to the proceedings.” (emphasis
added)).

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State v. Ali

Id. Ali was charged under this subsection after he initially
identified himself to the arresting officer as Mudi Hussein. In a
subsequent search of the hotel room shared by Ali, officers found
what they later described as a “consulate identification” card
bearing the name Mudi Hussein. The identification card had a
photograph of a man who was not Ali. However, the officers did
not retain the identification card, and the State did not present it at
trial. Rather, the officer who discovered the identification card was
allowed to describe it to the jury over Ali’s hearsay objection.

¶10 On appeal, Ali renews his hearsay argument that the
officer’s testimony went to the “truth of the matter asserted” by the
identification card, apparently referring to the question of whether
Mudi Hussein was the actual name of the person pictured on the
identification card. We need not resolve this hearsay question,3
however, because under the rather unique factual circumstances of
this case, there was no need for the jury to assess whether or not
the identification card validly identified Mudi Hussein.

3. Ali’s entire hearsay analysis on appeal consists of the single
sentence, “Mr. Ali’s counsel properly objected to [the officer’s]
testimony on hearsay grounds, as [that] testimony clearly went to
the truth of the matter asserted and thus should have been
excluded/stricken from the record.” This constitutes inadequate
briefing of the hearsay issue and presents an additional basis for
our decision. See Utah R. App. P. 24(a)(9) (establishing the
requirements of appellate brief arguments). The hearsay section of
Ali’s appellate brief also contains an argument that the
identification card constituted exculpatory evidence under
California v. Trombetta, 467 U.S. 479 (1984), but Ali has failed to
demonstrate that he preserved this issue for appeal by presenting
it first to the district court. See State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346 (“As a general rule, claims not raised before the trial court
may not be raised on appeal.”). Accordingly, we decline to address
it.

20111051‐CA 6 2013 UT App 113
State v. Ali

¶11 The identification card was found in Ali’s hotel room. It is
a reasonable inference that when Ali identified himself to the
officer as Mudi Hussein, he was referring to the person pictured on
the identification card and intended the officer to believe that he
was, in fact, that person. There is no dispute that the photograph
on the identification card depicted an actual person who was not
Ali and that the identification card associated that
photograph—correctly or incorrectly—with the name Mudi
Hussein. Thus, there is nonhearsay evidence to support the jury’s
conclusion that Ali gave the officers the name of another person,
Mudi Hussein, with the intent of leading the officer to believe that
Ali was the actual person depicted on the identification card.4

¶12 For all of these reasons, we decline to disturb Ali’s
convictions and affirm the district court’s judgment.

4. Ali makes no argument that, under Utah Code section 76‐8‐
507(2), the “name . . . of another person” given to an officer must
actually be the name of the “[]other actual person” being
impersonated. See Utah Code Ann. § 76‐8‐507(2) (LexisNexis 2012).

20111051‐CA 7 2013 UT App 113