State v. Nay

2017 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MICHAEL L. NAY AND TRACY L. HANSON,
Appellants.

Memorandum Decision
No. 20141185-CA
Filed January 6, 2017

Sixth District Court, Richfield Department
The Honorable Wallace A. Lee
No. 121600009

Kenneth L. Combs, Attorney for Appellants
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY
concurred.

CHRISTIANSEN, Judge:

¶1 Defendants Michael L. Nay and Tracy L. Hanson appeal
their convictions, arguing that the trial court abused its
discretion when it granted the State’s motion for a joint trial of
the charges against them. Nay and Hanson were tried jointly,
and the jury convicted them each of possession of a controlled
substance, a third degree felony; production of a controlled
substance, a third degree felony; and possession of drug
paraphernalia, a class B misdemeanor. The jury also convicted
Hanson of possession of a firearm by a restricted person, a third
degree felony. We affirm.
State v. Nay

¶2 “On appeal from a jury verdict, we view the evidence and
all reasonable inferences in the light most favorable to that
verdict and recite the facts accordingly.” State v. Dozah, 2016 UT
App 13, ¶ 2, 368 P.3d 863. “We include conflicting evidence as
relevant and necessary to understand the issues on appeal.” Id.

¶3 While executing a search warrant on Hanson’s house,
police officers entered and discovered Hanson in the living room
smoking marijuana with her brother (Brother) and their cousin,
Nay. They also discovered equipment for grinding and weighing
marijuana and two large plastic bags—one containing loose
marijuana and the other containing twelve smaller bags of
marijuana. In addition, the officers found a backpack belonging
to Nay that contained three glass jars of marijuana. The officers
then searched Hanson’s bedroom, finding another bag of
marijuana, two guns, and an instructional manual titled
“Marijuana Horticulture: The Indoor/Outdoor Medical Grower’s
Bible.” In the basement, they found one marijuana plant growing
under a fluorescent light, with a heater and fan nearby, and three
harvested plants drying. And in the kitchen, officers found more
marijuana in a drawer and in a paper bag on a table.

¶4 The officers arrested Nay, Hanson, and Brother. At the
jail, a detective (Detective) informed Hanson of her Miranda
rights and interviewed her. According to Detective, Hanson was
“calm and collected,” “seemed coherent,” and “was in control of
her faculties and knew what was happening.” Hanson confessed
that the trio had been “trying their hand at growing marijuana,”
that she and Nay “did the bulk of the work” because Brother
was not very good at it, and that Nay and Brother had acquired
a couple of pounds of marijuana, which the trio had been
weighing and preparing for resale when the officers searched the
house. The interview was not recorded.

¶5 The State charged the trio with several drug-related
offenses, to which Brother pled guilty. The State then moved to
join Nay’s and Hanson’s cases for trial. Nay and Hanson

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State v. Nay

opposed joinder, arguing that their defenses were irreconcilable
and that, apparently as a result, Hanson’s confession was
inadmissible hearsay as to Nay. The trial court granted the
State’s motion, ruling that Nay and Hanson would not suffer
prejudice from antagonistic defenses or from inadmissible
hearsay. At trial, Brother, Hanson, and Nay testified for the joint
defense.

¶6 The gist of Brother’s testimony was that, while all three
had been smoking marijuana, only he had been growing and
selling it. Brother testified that he alone was responsible for
growing the marijuana, that he brought the marijuana to
Hanson’s house to divide and weigh it for sale, and that he
tended the marijuana plant in the basement without Hanson’s
knowledge using a house key he had. He also testified that he
had placed the jars of marijuana in Nay’s backpack as the police
officers entered the house.

¶7 Nay testified that the backpack was his but also that he
did not own or have knowledge of the marijuana jars found in it.
He also corroborated Brother’s claim of sole responsibility for
the marijuana. Nay further testified that Hanson had appeared
uncomfortable and hesitant when Brother revealed the
marijuana and began weighing and bagging it.

¶8 Hanson testified that she did not remember being
interviewed by the police, perhaps due to the effects of the
marijuana she had smoked that day or due to the stressful
situation. She denied the truth of the confession, claiming that
Brother was solely responsible for the marijuana and that all she
had done was smoke some of it. She testified that she had not
provided Brother with a house key and speculated that he must
have found and used her hidden house key to enter the house
and plant and tend the marijuana plant growing in the
basement. Hanson also testified that she had been upset when
Brother took out the marijuana and began weighing it and that

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State v. Nay

she had not known about the marijuana plant in the basement
until a day or two before the police searched the house.

¶9 The jury convicted both Nay and Hanson of possession of
a controlled substance, production of a controlled substance, and
possession of drug paraphernalia. The jury also convicted
Hanson of possession of a firearm by a restricted person. Nay
and Hanson were fined and sentenced to terms of incarceration
that were suspended in favor of probation.

¶10 On appeal, Nay and Hanson contend that the trial court
erred “in granting the State’s motion to join the two separate
defendants’ criminal cases.” We review for an abuse of
discretion a trial court’s decision to join or sever charges against
multiple defendants. See State v. Jok, 2015 UT App 90, ¶ 13, 348
P.3d 385 (“The grant or denial of severance is a matter within the
discretion of the trial judge, so we reverse a conviction only if the
trial judge’s refusal to sever is a clear abuse of discretion in that
it sacrifices the defendant’s right to a fundamentally fair trial.”
(brackets, ellipsis, citation, and internal quotation marks
omitted)). The trial court’s decision as to joinder or severance
“will be reversed . . . only if a defendant’s right to a fair trial has
been impaired.” State v. Collins, 612 P.2d 775, 777 (Utah 1980).

¶11 Generally, multiple defendants may be tried together
when the charges against each defendant stem from the same act
or criminal episode. See Utah Code Ann. § 77-8a-1 (LexisNexis
2012). However, the defendants may not be tried together “[i]f
the court finds a defendant [will be] prejudiced by a joinder
of . . . defendants . . . for trial together[.]” Id. § 77-8a-1(4)(a). Such
prejudice may arise when certain evidence presented at the joint
trial would “have been different or unavailable at a separate
trial.” See State v. Velarde, 734 P.2d 440, 445 (Utah 1986).

¶12 Nay and Hanson concede that the charges against them
arose from the same act or criminal episode. They contend that
joinder was nevertheless inappropriate because they were

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State v. Nay

prejudiced by joinder of their trials. Specifically, each defendant
asserts that some of the evidence presented at the joint trial
would have been inadmissible at their individual trials had the
joinder motion been denied. In the defendants’ objection to the
State’s motion seeking joinder, Nay asserted (1) that the
defendants’ theories of the case would be “antagonistic[,]
irreconcilable and mutually exclusive” and (2) that Hanson’s
confession to Detective would be inadmissible hearsay at his
individual trial but provided no further explanation or reasoned
analysis. Hanson argued that Nay’s testimony at a joint trial
might assail the accuracy of Hanson’s confession and thus draw
her general credibility into question. These issues are the only
ones preserved for appeal. 1 State v. Martinez, 2015 UT App 193,
¶ 27, 357 P.3d 27 (“An issue is preserved for appeal only if it was
presented to the trial court in such a way that the trial court had
an opportunity to rule on it.”); id. (“Issues that are not raised at
trial are usually deemed waived.” (citation and internal
quotation marks omitted)).

¶13 We consider first Nay’s assertion that Detective’s
testimony about Hanson’s interview, in which she confessed that
the trio had been growing marijuana plants and repackaging and
selling other marijuana, would have been inadmissible hearsay
at his individual trial. “Hearsay is not admissible except as

1. On appeal, Hanson does not argue that Nay’s testimony
weakened her general credibility. Rather, she argues only that,
“[w]ithout the irrelevant evidence regarding the fact that Nay
was simply a user and not involved, it would not have appeared
that [Hanson] was providing [marijuana] to outsiders as a
distributer.” This argument was not presented to the trial court
and is therefore unpreserved for appeal. State v. Martinez, 2015
UT App 193, ¶ 27, 357 P.3d 27. In any event, it relies on the
unstated and questionable assumption that all evidence of Nay’s
presence in the house would have somehow been excluded from
her individual trial.

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State v. Nay

provided by law or by these rules.” Utah R. Evid. 802. A
statement is hearsay when “the declarant does not make [it]
while testifying at the current trial or hearing” and “a party
offers [it] in evidence to prove the truth of the matter asserted in
the statement.” Id. R. 801(c). But such a statement is not hearsay
if “[t]he declarant testifies and is subject to cross-examination
about a prior statement, and the statement: (A) is inconsistent
with the declarant’s testimony or the declarant denies having
made the statement or has forgotten[.]” Id. R. 801(d)(1).

¶14 On appeal, Nay argues that Hanson “may have been
deemed unavailable as a witness in Nay’s [individual] trial with
regard to the content” of her confession because “her lack of
memory made her unavailable.” We read this as a challenge to
the “subject to cross-examination about a prior statement”
element of the non-hearsay test set forth by Utah Rule of
Evidence 801(d)(1). However, this argument was not preserved
for appeal. See Martinez, 2015 UT App 193, ¶ 27. Nay did not
argue to the trial court that Hanson’s lack of memory about her
confession would have rendered her unavailable at his
individual trial. Rather, Nay simply asserted to the trial court
that “the defense would be successful in excluding Ms. Hanson’s
alleged confession” because her defense theory and Nay’s were
“irreconcilable and mutually exclusive.” 2 Because Nay did not
raise Hanson’s lack of memory to a level that the trial court
should have been aware of the issue, Nay failed to preserve it for
appeal. See Martinez, 2015 UT App 193, ¶ 27 (to preserve a claim
for appeal, “[t]he appellant must present the legal basis for a
claim to the trial court, not merely the underlying facts or a
tangentially related claim” (additional brackets, citation, and
internal quotation marks omitted)).

2. Nay and Hanson’s opposition to the State’s joinder motion did
not explain what their defense theories were or how those
theories conflicted with one another.

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State v. Nay

¶15 Even if Nay had preserved Hanson’s lack of memory as
an issue, we would readily conclude that her claimed inability to
remember making the confession or the circumstances of the
interview did not render her unavailable for cross-examination
about it at trial. As the United States Supreme Court has
explained, “it does not follow that the right to cross-examine is
denied by the State whenever the witness’ lapse of memory
impedes one method of discrediting him.” Delaware v. Fensterer,
474 U.S. 15, 19 (1985). Similarly, Nay notes that Hanson had a
“diminished perception of the events at the time based on her
drug-usage infirmity.” But, like the completeness of Hanson’s
memory, the quality of her perception regarding the events
relates to the weight and credibility of her testimony, not her
availability to testify.

¶16 Because Nay did not raise to the trial court’s attention the
issue of Hanson’s lack of memory as a basis for deeming her
unavailable for cross-examination about her confession, the issue
was waived for appeal. See Martinez, 2015 UT App 193, ¶ 16. Nay
has therefore failed to successfully challenge any of the three
conditions of rule 801(d)(1)(A), which provides that prior
inconsistent statements are not hearsay (i.e., the declarant
testifies, is subject to cross-examination about a prior statement,
and the declarant’s testimony is inconsistent with the previous
statement). 3 Accordingly, Nay has not demonstrated that

3. Hanson testified at the joint trial and, when asked about her
prior confession, stated, “I don’t remember any of that. . . . I
don’t remember being interviewed, I don’t remember what I
said.” She then testified that, contrary to Detective’s
characterization of the content of the interview, Brother was
solely responsible for the still-growing, already-harvested, and
dried-and-packaged-for-sale marijuana found in her house. Her
testimony at trial was therefore inconsistent with her confession
at the interview.

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State v. Nay

Hanson’s confession would have been excluded from evidence
pursuant to the hearsay rule.

¶17 In a related claim on appeal, Nay contends that the
Confrontation Clause should have prevented joinder. He argues
that, because Hanson’s lack of memory would have rendered her
unavailable at his individual trial to be cross-examined about her
confession, her confession could not have been introduced
without a Sixth Amendment Confrontation Clause violation. See
generally Crawford v. Washington, 541 U.S. 36, 68 (2004) (“Where
testimonial evidence is at issue . . . the Sixth Amendment
demands what the common law required: unavailability [of the
witness] and a prior opportunity for cross-examination.”).
However, as with his other claim on appeal, this issue was not
preserved. See State v. Martinez, 2015 UT App 193, ¶ 27, 357 P.3d
27. In the opposition to the State’s joint-trial motion, Nay made
the bare assertions that Hanson’s confession would have been
inadmissible due to the defendants’ irreconcilable defense
theories and that the confession would also have been
inadmissible hearsay, but did not argue that the confession
would have been inadmissible because Hanson would have been
unavailable to testify about it due to her lack of memory. Nor
did Nay assert any reason that Hanson herself might be
unavailable to testify at all.4 We therefore deem Nay’s
Confrontation Clause contention waived. See id.; see also State v.
Pullman, 2013 UT App 168, ¶ 27, 306 P.3d 827 (“We are resolute
in our refusal to take up constitutional issues which have not
been properly preserved, framed and briefed.” (brackets, ellipsis,
citation, and internal quotation marks omitted)).

4. We note that Nay did not argue to the trial court, and does not
argue on appeal, that Hanson herself would have been
unavailable to testify generally at Nay’s individual trial. Rather,
Nay’s arguments below and on appeal assert only that, due to
her lapse of memory, Hanson would have been unavailable to
testify specifically about her confession.

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State v. Nay

¶18 Even if this contention had been properly preserved, we
must acknowledge that a witness is not unavailable for
Confrontation Clause purposes simply due to a lack of memory.
See Delaware v. Fensterer, 474 U.S. 15, 21 (1985) (explaining that a
witness’s “inability to recall on the stand the basis for his [earlier
statements] presents none of the perils from which the
Confrontation Clause protects defendants in criminal
proceedings”); id. at 21–22 (“The Confrontation Clause includes
no guarantee that every witness called by the prosecution will
refrain from giving testimony that is marred by forgetfulness,
confusion, or evasion.”). As a result, Nay cannot show that
Hanson’s lack of memory about her confession would have
resulted in a violation of his Confrontation Clause rights had the
confession been introduced to impeach Hanson’s testimony at
Nay’s individual trial.

¶19 Nay also points to Bruton v. United States in support of his
arguments. 391 U.S. 123 (1968). Bruton held that the admission of
a codefendant’s confession at a joint trial violated a defendant’s
Confrontation Clause rights because the codefendant did not
testify and therefore was not available for cross-examination. Id.
at 124, 127–28; see also Richardson v. Marsh, 481 U.S. 200, 206
(1987) (“The right of confrontation includes the right to cross-
examine witnesses. Therefore, where two defendants are tried
jointly, the pretrial confession of one cannot be admitted against
the other unless the confessing defendant takes the stand.” (emphasis
added) (citation omitted)). Here, as noted above, Nay did not
preserve a Confrontation Clause claim, and it is consequently
waived. In any event, Bruton has no application, because Hanson
did testify at the joint trial and Nay did not preserve his
arguments as to how and why Hanson would have been
unavailable to testify about her confession at Nay’s individual
trial.

¶20 Because Nay failed to preserve his hearsay and
Confrontation Clause contentions as to Hanson’s availability to
testify about her confession, he has not demonstrated that her

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confession could have been excluded from his individual trial.
We therefore conclude that Nay was not prejudiced by joinder,
because he has not shown that the quantum of evidence at his
individual trial would have been different from that presented at
the joint trial. See State v. Velarde, 734 P.2d 440, 445 (Utah 1986).
Hanson’s contention on appeal (that evidence of Nay’s presence
in the house prejudiced her) was likewise not preserved for
appeal, and we consequently deem it waived. 5

¶21 Affirmed.

5. It is troubling that, likely because both Nay and Hanson were
represented by the same counsel at trial and on appeal, no
exceptions to the preservation rule, such as ineffective assistance
of trial counsel, were raised on appeal.

20141185-CA 10 2017 UT App 3