State v. Hamilton

2020 UT App 11

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MIKEL PRATT HAMILTON,
Appellant.

Opinion
No. 20180620-CA
Filed January 9, 2020

Third District Court, Salt Lake Department
The Honorable Linda M. Jones
No. 171907724

Phillip W. Dyer and Benjamin R. Dyer, Attorneys
for Appellant
Simarjit S. Gill and Tegan M. Troutner, Attorneys
for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

APPLEBY, Judge:

¶1 Mikel Pratt Hamilton appeals his conviction for
obstruction of justice, arguing he cannot be convicted of that
crime without also being convicted of at least one of the other
charges against him: theft or possession or use of a controlled
substance. We affirm.

BACKGROUND

¶2 Hamilton was the managing pharmacist for a pharmacy
(Pharmacy) in Salt Lake City, Utah. Hamilton worked with
another pharmacist (Pharmacist), and they alternated shifts so
State v. Hamilton

one pharmacist was always on duty. Several pharmacy
technicians also worked at Pharmacy and helped the pharmacist
on duty process prescriptions.

¶3 Between January and April 2017, two pharmacy
technicians noticed shortages of phentermine. 1 A technician
(Technician One) testified at trial that phentermine is a
controlled substance and that Pharmacy does not distribute it
often. Technician One testified that in addition to noticing
shortages of phentermine, she noticed loose pills of the drug on a
shelf and reported the loose and missing pills to Pharmacist. In
response, Pharmacist checked the on-hand amount of
phentermine with the computer inventory and realized the
numbers were drastically different.

¶4 Another technician (Technician Two) testified that he
worked for Pharmacy from April 2016 to December 2017.
Around April 2017, Technician Two also noticed shortages of
phentermine. One day, Technician Two had to process a
prescription of phentermine and realized there were not enough
pills to fill the prescription. He told Pharmacist, who thought it
was strange because Pharmacy had only one patient with a
prescription for that specific dose of phentermine. Employees
began monitoring the phentermine, and one day, Technician
Two wrote down the amount of phentermine Pharmacy had on
hand as his shift was ending. Technician Two returned the
following morning and discovered there were fewer
phentermine pills on hand than the number he wrote down the
previous night. Hamilton was the only employee working

1. Phentermine is “a controlled substance” used “for a limited
period of time to speed weight loss in overweight people who
are exercising and eating a low-calorie diet.” National Institute
of Health, Phentermine, https://medlineplus.gov/druginfo/meds/a
682187.html [https://perma.cc/HGL8-9X94].

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State v. Hamilton

between the time Technician Two left and when he returned the
following day. Technician Two also noticed loose phentermine
pills on the shelves and notified Pharmacist. Pharmacist reported
these losses to Pharmacy’s asset protection district manager
(Asset Manager). By the end of the year, Technician Two and
Pharmacist stopped working for Pharmacy.

¶5 After receiving the report of missing phentermine from
Pharmacist, Asset Manager began an investigation. Asset
Manager installed hidden video cameras in a vent above the area
where phentermine was stored. The surveillance videos revealed
Hamilton accessing phentermine after business hours on
multiple occasions when “there was no legitimate reason for
those medications to be accessed” because Hamilton was not
filling prescriptions. One video showed Hamilton “removing
medication from the bottle” and “putting it into his left hand as
he walk[ed] off camera.” In another video, Hamilton “le[ft] with
multiple bottles of phentermine from the shelf” and “one of [the
bottles] was not” returned to the shelf. On a different occasion,
video footage showed Hamilton “doing something with bottles”
and “ducking down.” Asset Manager testified that “no
prescriptions were filled” at the time this footage was recorded
because Hamilton did not print out a label to mark a vial for a
patient. As a result of the investigation, Asset Manager
determined that Hamilton was accessing phentermine without a
legitimate purpose, that he was editing the inventory of the pills
on the computer system to account for the missing pills, and that
no prescriptions were being filled during the times Hamilton
accessed the phentermine.

¶6 Asset Manager scheduled an interview with Hamilton. As
the two began speaking, Hamilton “stood up and asked [Asset
Manager] if [Asset Manager] was accusing [Hamilton] of
anything.” Asset Manager explained he was not accusing
Hamilton of anything but was just asking him questions.
Hamilton demanded to review the video footage. Asset Manager

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State v. Hamilton

explained he would not show Hamilton the footage. Hamilton
responded that he was resigning, and walked out.

¶7 In addition to his own investigation, Asset Manager
contacted Pharmacy’s district manager (District Manager), who
oversees all of Pharmacy’s Utah stores, to inform her about the
missing phentermine. District Manager reported the losses to the
state pharmacy board and the federal Drug Enforcement
Administration (DEA) while Asset Manager was conducting the
internal investigation. Hamilton was ultimately charged with
theft, obstructing justice, and possession or use of a controlled
substance.

¶8 District Manager testified at trial that pharmacists
inventory controlled substances annually. She explained that
“everything is tracked on a controlled substance” from the time
it leaves the warehouse to the time it is dispensed to patients. If
there is a discrepancy between the on-hand count and the
computer count, pharmacists have the ability to reconcile it but,
under Pharmacy policy, must report the discrepancy to Asset
Manager and District Manager. District Manager also explained
that, by law, the discrepancy must be reported to the DEA and
the state pharmacy board. She testified that between January and
April 2017, 291 phentermine pills were missing from Pharmacy,
for a total loss of $610.69.

¶9 District Manager also testified about how she knew
Hamilton was involved with the missing pills. She explained
that Hamilton’s computer credentials were used to adjust the
phentermine inventory on the computer system to match the
number of pills on hand after they were taken from the bottles.
District Manager testified that during the time the phentermine
pills were missing, Hamilton’s computer credentials were the
only ones used to adjust the inventory and that he never
reported the discrepancies to District Manager or Asset
Manager.

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State v. Hamilton

¶10 After trial, the jury found Hamilton guilty of obstruction
of justice but not guilty of theft and not guilty of possession or
use of a controlled substance. Hamilton filed a motion to arrest
judgment, arguing that because “the State’s theory and
argument regarding the obstruction of justice charge [is] so
inextricably intertwined with the charges upon which
[Hamilton] was acquitted that the jury’s verdict of guilty must
necessarily be arrested with [Hamilton] acquitted on all
charges.” The district court denied the motion, concluding
Hamilton need not be found guilty of either theft or possession
or use of a controlled substance to be convicted of obstruction of
justice. The court also found that sufficient evidence supported
the obstruction of justice conviction in that Hamilton “was the
[P]harmacy manager, . . . he knew about the crime in the
[P]harmacy, there was evidence that he was messing with the
pills, that he was handling the pills when there wasn’t a
prescription to be filled, and he would have had his own reasons
for altering the records to prevent an investigation.” It concluded
that “stealing a controlled substance from a pharmacy
constitutes a criminal offense” and that sufficient evidence
supported the verdict that Hamilton “covered it up” to obstruct
the investigation or prosecution of the missing pills.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, Hamilton essentially argues the district court
erred in denying his motion to arrest judgment because the
jury’s verdict was inconsistent when it convicted him of
obstruction of justice but acquitted him of the underlying
charges of theft and possession or use of a controlled substance. 2

2. Hamilton also argues the court erred in including “recklessly”
in the mens rea requirement for the obstruction of justice jury
instruction. On appeal, Hamilton contends “the mens rea
(continued…)

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State v. Hamilton

“We review inconsistency challenges to jury verdicts in the light
most favorable to the verdict and will not overturn a jury’s
verdict of criminal conviction unless reasonable minds could not
rationally have arrived at a verdict of guilty beyond a reasonable
doubt based on the law and evidence presented.” State v.
Peterson, 2019 UT App 193, ¶ 22 (quotation simplified). Further, a

(…continued)
requirement in the obstruction statute is clear—the State must
prove that Hamilton intentionally obstructed justice.” We
conclude this argument is unpreserved. See State v. Johnson, 2017
UT 76, ¶ 15, 416 P.3d 443 (holding that for an argument to be
preserved for appeal, the appellant must have presented the
argument “to the district court in such a way that the court has
an opportunity to rule on it” (quotation simplified)). When
discussing the jury instructions at trial, Hamilton stated he did
not include “recklessly” in his proposed jury instructions for
both theft and obstruction of justice because the information did
not allege that Hamilton “acted recklessly.” In response, the
State explained why including “recklessly” was appropriate, to
which Hamilton responded, “I’m just struggling with how you
can recklessly do these things, your honor. That’s fine.”
(Emphasis added.) These statements did not adequately
preserve Hamilton’s argument that obstruction of justice
requires proof of intent, not merely recklessness. Hamilton did
not make this argument to the court, nor did he support any
arguments with “evidence and relevant legal authority.” Id.
(quotation simplified). But even if his argument was preserved,
Hamilton invited any error by stipulating to the instruction.
After the court clarified why it was including recklessness, it
asked Hamilton if it resolved his confusion, and he replied, “It
does, your honor.” See State v. Popp, 2019 UT App 173, ¶ 23
(“Under the doctrine of invited error, an error is invited when
counsel encourages the [district] court to make an erroneous
ruling.” (quotation simplified)).

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State v. Hamilton

“[district] court may arrest a jury verdict when the evidence,
viewed in the light most favorable to the verdict, is so
inconclusive or so inherently improbable as to an element of the
crime that reasonable minds must have entertained a reasonable
doubt as to that element.” State v. Bowen, 2019 UT App 163, ¶ 17,
451 P.3d 1050 (quotation simplified), petition for cert. filed, Nov.
12, 2019 (No. 20190943). “Accordingly we review the [district]
court’s decision to arrest judgment for correctness.” Id.
(quotation simplified).

ANALYSIS

¶12 Hamilton argues the district court erred in denying his
motion to arrest judgment because the jury reached what he
alleges was an inconsistent verdict. He contends the verdict was
“inherently improbable” because the jury convicted him of
obstructing justice but acquitted him of theft and of possession
or use of a controlled substance.

¶13 “This court will not reverse a conviction on an
inconsistent verdict challenge unless reasonable minds could not
rationally have arrived at the verdict of guilty beyond a
reasonable doubt based on the law and evidence presented.”
State v. Peterson, 2019 UT App 193, ¶ 24 (quotation simplified).
As a result, “so long as sufficient evidence supports each of the
guilty verdicts, state courts have generally upheld the
convictions.” State v. LoPrinzi, 2014 UT App 256, ¶ 30, 338 P.3d
253 (quotation simplified).

¶14 To convict a defendant of obstruction of justice, the jury
must find that the defendant, “with intent to hinder, delay, or
prevent the investigation, apprehension, prosecution, conviction,
or punishment of any person regarding conduct that constitutes
a criminal offense,” Utah Code Ann. § 76-8-306(1) (LexisNexis
2017), engaged in conduct including (1) “prevent[ing] by force,
intimidation, or deception, any person from performing any act

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State v. Hamilton

that might aid in the discovery, apprehension, prosecution,
conviction, or punishment of any person;” (2) “alter[ing],
destroy[ing], conceal[ing], or remov[ing] any item or other
thing;” (3) “mak[ing], present[ing], or us[ing] any item or thing
known by the actor to be false;” or (4) “provid[ing] false
information regarding a suspect, a witness, the conduct
constituting an offense, or any other material aspect of the
investigation,” id. § 76-8-306(1)(b), (c), (d), (j). 3

¶15 Hamilton argues the verdicts in this case were
inconsistent because he was convicted of obstruction of justice
but not of the underlying crimes with which he was charged,
namely theft or possession or use of a controlled substance. But
the obstruction of justice statute does not require a conviction of
the underlying crime—it simply requires a finding that the
defendant took certain actions “with [the] intent to hinder, delay,
or prevent the investigation, apprehension, prosecution,
conviction, or punishment of any person regarding conduct that
constitutes a criminal offense.” Id. § 76-8-306(1) (emphasis added).
Nor does it require that a defendant cover up his own crime. The
plain language of the statute articulates that the defendant can
be convicted of obstructing justice when he intends to “hinder,
delay, or prevent the investigation, apprehension, prosecution,
conviction, or punishment of any person.” 4 Id. (emphasis added).

3. The jury instructions in this case included additional examples
provided in the obstruction of justice statute. For ease of reading,
we reference only a few of the options the jury may have used to
find Hamilton guilty of obstruction of justice.

4. Even if the jury did not believe Hamilton committed theft or
possession or use of a controlled substance, it still could have
found that Hamilton obstructed the investigation of someone
else at Pharmacy stealing or unlawfully possessing phentermine.
In fact, in closing argument at trial, Hamilton suggested that it
(continued…)

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State v. Hamilton

Therefore, the verdicts the jury reached in this case are not
inconsistent because it could have found that Hamilton
obstructed justice even if it concluded that he had not personally
committed theft or possession or use of a controlled substance.

¶16 But regardless of whether the verdict was truly
inconsistent, Hamilton is entitled to relief only if the evidence
was insufficient to support his obstruction of justice conviction.
See LoPrinzi, 2014 UT App 256, ¶ 30 (holding that “so long as
sufficient evidence supports each of the guilty verdicts, state
courts generally have upheld the convictions” after an
inconsistency challenge (quotation simplified)). Hamilton’s
acquittal on the charges of theft and possession or use of a
controlled substance does not necessarily mean the jury found
that the State failed to meet its burden of proof for those crimes.
“It is equally possible that the jury, convinced of guilt, properly
reached its conclusion and then through mistake, compromise,
or lenity, arrived at an inconsistent conclusion on the other
offense[s].” Id. (quotation simplified). “Because appellate courts
have always resisted inquiring into the jury’s thought processes
and deliberations,” we focus our inquiry on whether sufficient
evidence supports Hamilton’s obstruction of justice conviction.
State v. Cady, 2018 UT App 8, ¶ 32, 414 P.3d 974 (quotation
simplified).

¶17 We conclude sufficient evidence exists in this case to
support the jury’s verdict. First, the jury could have found that
Hamilton intentionally “hinder[ed], delay[ed], or prevent[ed] the
investigation, apprehension, prosecution, conviction, or
punishment of any person regarding” the theft or possession or
use of a controlled substance, Utah Code Ann. § 76-8-306(1),

(…continued)
was someone else at Pharmacy who stole or possessed the
phentermine.

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when he used his computer credentials to change the
phentermine inventory after business hours with no legitimate
reason for him to access the phentermine. The jury also could
have found that this conduct amounted to “alter[ing],
destroy[ing], conceal[ing], or remov[ing] any item or other
thing” or any of the other acts that constitute obstruction of
justice. See supra ¶ 14; see also Utah Code Ann. § 76-8-306(1)(a)–
(j). Because Hamilton manually altered the inventory of
phentermine to account for the missing pills, the jury could have
found that he did this to prevent the investigation of the offense
of theft or possession or use of phentermine. Nothing in the
record indicates that “reasonable minds could not rationally
have arrived at a verdict of guilty beyond a reasonable doubt.”
Peterson, 2019 UT App 193, ¶ 22 (quotation simplified).

CONCLUSION

¶18 Hamilton’s acquittal of theft and of possession or use of a
controlled substance does not undermine his obstruction of
justice conviction. Because there was sufficient evidence to
support his conviction, the district court did not err in denying
Hamilton’s motion to arrest judgment. Affirmed.

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