State v. Hansen

2020 UT App 17
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BRADY JAMES H ANSEN ,
Appellant.
Opinion
No. 20180531-CA
Filed January 30, 2020
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 161906592
Andrea J. Garland and Brenda M. Viera, Attorneys
for Appellant
Sean D. Reyes, Thomas B. Brunker, and Nathan Jack,
Attorneys for Appellee
JUDGE K ATE A PPLEBY authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
APPLEBY, Judge:
¶1 	Brady James Hansen appeals his convictions of possession
of a controlled substance, possession of drug paraphernalia, and
possession of a firearm by a restricted person. Hansen asserts the
district 	court 	plainly 	erred 	in 	not 	intervening 	to 	exclude
evidence 	of 	his 	prior 	convictions 	of 	possession 	of
methamphetamine. 	Hansen 	further 	maintains 	there 	is
insufficient evidence to support the verdict. We affirm.

State v. Hansen
20180531-CA 	2 	2020 UT App 17
BACKGROUND1
¶2 	While on patrol, a police officer (Officer) overheard a
dispatch 	call 	reporting 	that, 	at 	a 	house 	not 	far 	from 	him,
someone brandished a firearm and then “left in a red passenger
car, possibly a [Ford] [M]ustang.” A few minutes later, as Officer
was en route to the scene, he observed a woman (Woman) dash
across a four-lane street and quickly enter the passenger side of
“a red . . . Mustang” while the car was moving. Another
passenger (Passenger) was already inside the car. Because the
car matched the description provided in the dispatch call, Officer
signaled the car to stop. When the car stopped, the driver,
Hansen, began to exit the vehicle. “[W]ith the description of the
car and the involvement of a firearm,” Officer “didn’t feel
comfortable 	with 	the 	driver 	getting 	out,” 	so 	he 	instructed
Hansen to return to the car while he awaited backup and
Hansen complied. As Officer waited, he saw Hansen “bending
over in the driver’s seat,” and from his point of view, “it looked
like [Hansen] was either trying to kick stuff or get something
from underneath the . . . driver’s seat.”
¶3 	Another officer (Backup Officer) soon arrived. Officer and
Backup Officer directed the car’s occupants to exit the car, one at
a time, starting with Hansen, then Woman, then Passenger. The
officers directed Hansen to walk backward toward them with his
hands up. When Hansen reached the officers, Backup Officer
detained him and gave him a “pat down.” Without being asked,
Hansen “informed [Backup Officer] that there was a gun under
the seat of the car.”
1. “On appeal, we construe the record facts in a light most
favorable to the jury’s verdict and recite the relevant facts
accordingly.” State v. Murphy, 2019 UT App 64, n.2, 441 P.3d 787
(quotation simplified).

State v. Hansen
20180531-CA 	3 	2020 UT App 17
¶4 	Officer “looked under the driver’s seat and initially . . .
saw a partially unzipped sunglass case which exposed what [he]
believed to be methamphetamine and narcotic baggies.” When
he “slid aside the sunglass case,” he saw a handgun.
¶5 	Backup Officer informed Hansen of his Miranda2 rights,
specifically his right to remain silent, but Hansen continued
talking. Backup Officer testified that Hansen said “he was the
only one that possessed [the gun], touched it, nobody else had—
basically had access to it.” He told Officer that when Officer
“pulled up behind [him,] he panicked and placed the gun and
the . . . sunglass container . . . underneath the driver’s seat.”
Hansen acknowledged “that he was a meth user” and that the
sunglass 	case 	contained 	narcotics, 	but 	he 	claimed 	the 	case
belonged to a friend who had been in the backseat just before
Hansen was stopped by the police. The State charged Hansen
with, among other things, possession of a controlled substance,
possession of a firearm while being a restricted person, and
possession of paraphernalia.
¶6 	At trial, Hansen testified in his own defense. Hansen said
after he was pulled over, he reached down toward the driver
side floorboard because he dropped his car keys when Woman
tried to wrest them from him. He said that was “[t]he only thing
[he could] think of that [he would] be reaching for or doing
anything like that,” though Officer testified that when he looked
on the floor of the vehicle, he did not see any keys. Hansen said
he 	did 	not 	tell 	either 	of 	the 	officers 	that 	he 	used
methamphetamine and claimed he had “no idea about any
drugs in [his] car.”
¶7 	During 	cross-examination, 	Hansen 	testified 	that 	he
presently did not use methamphetamine, at which point the
2. See Miranda v. Arizona, 384 U.S. 436, 468–69 (1966).

State v. Hansen
20180531-CA 	4 	2020 UT App 17
prosecutor asked, “So you’ve never been convicted of or pled
guilty to possession of methamphetamine?” Hansen replied, “I
have, but I don’t.” The prosecutor followed up with questions
about how many times Hansen “pled guilty of [possession of]
methamphetamine,” to which Hansen responded, “A few,” and
then clarified, “Five, I think.”
¶8 	At that point, Hansen’s trial counsel moved for a mistrial,
arguing that it was improper for the jury to hear information
about possession charges related “to events that occurred after
these events.” The State argued this questioning was intended to
impeach 	Hansen’s testimony 	that 	he 	presently 	did 	not 	use
methamphetamine. 	The 	district 	court 	determined 	Hansen
“open[ed] 	the 	door 	when 	he 	said 	that 	he 	wasn’t 	a
methamphetamine user” and denied the motion for mistrial. The
court also said it would not give a curative instruction because
the instruction would be “inappropriate where [Hansen] raised
the issue.” Hansen then offered clarifying testimony that his
convictions and guilty pleas were “recent[]” and that he had no
“convictions for methamphetamine” at the time of arrest in the
present case. His counsel later reiterated her concerns about this
line of questioning and again asked for a mistrial. The district
court once again determined Hansen “opened the door” and
stated 	Hansen’s 	additional 	testimony 	gave 	“context 	and
clarification.” Hansen’s trial counsel did not request analysis
under rule 403 of the Utah Rules of Evidence or suggest that the
questions 	about 	his 	convictions 	were 	offered 	to 	attack 	his
character for truthfulness. Despite its prior decision not to do so,
the court instructed the jury that the evidence of Hansen’s prior
convictions “was brought to [the jury’s] attention only to help
[it] evaluate the credibility of the defendant as a witness.”
¶9 	The jury convicted Hansen on one count of possession of
a controlled substance, one count of possession of a firearm by a
restricted 	person, 	and 	one 	count 	of 	possession 	of 	drug
paraphernalia. He appeals.

State v. Hansen
20180531-CA 	5 	2020 UT App 17
ISSUES AND STANDARD OF REVIEW
¶10 	Hansen raises two issues on appeal. First, he claims the
district court erred when it did not intervene to exclude evidence
of his prior methamphetamine-possession convictions. Because
this issue is unpreserved,3 Hansen argues it should be reviewed
for plain error. Second, Hansen alleges the district court plainly
erred 	in 	submitting 	the 	case 	to 	the 	jury 	because 	there
was 	insufficient 	evidence 	to 	convict 	him 	of 	possession 	of
methamphetamine and possession of drug paraphernalia while
being in possession of a firearm. “The plain error standard of
review requires an appellant to show the existence of a harmful
error that should have been obvious to the district court.” State v.
Robinson, 2018 UT App 103, ¶ 20, 427 P.3d 474 (quotation
simplified).
3. Hansen claims this issue was preserved “by trial counsel’s
repeated motions for mistrial.” But Hansen is not appealing
the court’s denial of his motions for mistrial; instead, he alleges
the district court erred when it did not intervene to stop the
State from asking questions pertaining to his prior misdemeanor
convictions and in doing so, admitted evidence in violation
of rules 608 and 609 of the Utah Rules of Evidence. “In order
to preserve an issue for appeal the issue must be presented to
the [district] court in such a way that the [district] court has
an opportunity to rule on that issue. This requirement puts
the [district] judge on notice of the asserted error and allows
for correction at that time in the course of the proceeding.”
Salt 	Lake 	City 	v. 	Josephson, 	2019 	UT 	6, 	¶ 12, 	435 	P.3d 	255
(quotation simplified). Because Hansen did not object at trial to
the State’s line of questioning as being in violation of rules 608
and 	609 	of 	the 	Utah 	Rules 	of 	Evidence, 	this 	argument 	is
unpreserved.

State v. Hansen
20180531-CA 	6 	2020 UT App 17
ANALYSIS
I. Admission of Prior Convictions for Impeachment
¶11 	Hansen argues the district court plainly erred by not
intervening 	when 	the 	State 	asked 	him 	about 	his 	prior
convictions after he 	testified that he 	presently did 	not use
methamphetamine. Hansen claims the State’s questions about
his prior convictions violated rules 608, 609, and 403 of the Utah
Rules of Evidence. Hansen has a “high burden” to meet here
because he “must demonstrate that (i) an error exists; (ii) the
error should have been obvious to the [district] court; and
(iii) the 	error 	is 	harmful, 	i.e., 	absent 	the 	error, 	there 	is 	a
reasonable 	likelihood 	of 	a 	more 	favorable 	outcome 	for 	the
appellant.” 	State 	v. 	Bond, 	2015 	UT 	88, 	¶ 36, 	361 	P.3d 	104
(quotation simplified). Hansen fails on this claim because he is
unable to show that an error on the part of the district court
exists, let alone an error that should have been obvious.
¶12 	Rules 608 and 609 of the Utah Rules of Evidence govern
what evidence may be introduced to attack a witness’s character
for truthfulness or untruthfulness. Robinson v. Taylor, 2015 UT 69,
¶ 14, 356 P.3d 1230. But “[t]hese rules are mutually exclusive:
[w]hen 	specific 	instances 	of 	conduct 	are 	the 	subject 	of 	a
conviction, they are governed exclusively by rule 609. And if the
specific acts do not involve a conviction, they are governed by
rule 608.” Id. ¶ 16. Thus, as a threshold matter, rule 608 is
inapplicable here because evidence the State presented involved
convictions, a category that does not fall under the purview of
rule 608.
¶13 	“Rule 609 permits a party to attack a witness’s character
for truthfulness using evidence of a criminal conviction.” State v.
Alzaga, 2015 UT App 133, ¶ 32, 352 P.3d 107. But we agree with
the State that Hansen’s prior convictions were not used to show
his character for truthfulness; rather, they were introduced only to

State v. Hansen
20180531-CA 	7 	2020 UT App 17
cast 	doubt 	on 	the 	credibility 	of 	Hansen’s 	testimony 	that 	he
presently did not use methamphetamine and that he did not
know 	there 	was 	methamphetamine 	in 	his 	car. 	Rule 	609 	is
arguably inapplicable to this situation.
¶14 	“Once 	the 	defendant 	offers 	evidence 	or 	makes 	an
assertion as to any fact, the State may cross-examine or introduce
on rebuttal any testimony or evidence which would tend to
contradict, explain[,] or cast doubt upon the credibility of [his
testimony].” State v. Corona, 2018 UT App 154, ¶ 23, 436 P.3d 174
(quotation simplified). The State arguably did that here. Hansen,
on direct examination, claimed he “had no idea about any
drugs 	in 	[his] 	car” 	and 	denied 	telling 	Officer 	he 	used
methamphetamine. On cross-examination, the State asked him
whether he uses methamphetamine, which Hansen denied, then
asked whether he had “been convicted of or pled guilty to
possession of methamphetamine” and followed up by asking
how many times Hansen had pled guilty to the crime. The
State’s questioning about Hansen’s use of methamphetamine
was not so obviously objectionable that the district court plainly
erred in failing to intervene to stop the line of questioning. The
court 	did 	not 	know 	the 	answer 	to 	the 	question 	regarding
Hansen’s use of methamphetamine, and Hansen’s past use of
methamphetamine casted doubt on his claim that he was not a
methamphetamine user. We conclude that the State’s inquiries
regarding Hansen’s convictions were arguably relevant to his
credibility, and thus we conclude the district court did not
plainly err in failing to stop the line of questioning. See Bond,
2015 UT 88, ¶ 15.
¶15 	Hansen’s argument that the questioning violated rule 403
of the Utah Rules of Evidence is also unavailing. As applicable
here, a district “court may exclude relevant evidence 	if 	its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.” Utah R. Evid. 403. Hansen cannot meet this
“high burden” of establishing that the district court plainly erred

State v. Hansen
20180531-CA 	8 	2020 UT App 17
when it did not stop the line of questioning. See Bond, 2015 UT
88, ¶ 36. Impeaching Hansen’s testimony was important to the
State because Hansen took the stand and denied using drugs,
denied telling the officers that drugs were in his vehicle, and
denied knowing the drugs were in his vehicle. Because Hansen’s
credibility 	and 	Officer’s credibility 	were 	both 	at 	issue, 	and
Hansen’s 	denials 	squarely 	contradicted 	Officer’s 	testimony,
Hansen’s 	prior 	convictions 	related 	to 	possession 	of
methamphetamine were likely highly probative of whether he
lied when he testified that he did not use methamphetamine.
Although 	Hansen’s 	prior 	convictions 	for 	methamphetamine
possession were certainly prejudicial to some extent, Hansen has
not shown that the prejudice so substantially outweighed the
probative value of the evidence that the court plainly erred by
not intervening. See State v. Hall, 946 P.2d 712, 723 (Utah Ct. App.
1997) (noting the importance of defendant’s credibility as a
factor that weighed against excluding impeachment evidence
under 	rule 	403). 	Thus, 	we 	see 	no 	plain 	error 	in 	the 	State
impeaching Hansen with evidence of his prior convictions. See
Bond, 2015 UT 88, ¶ 15.
II. Sufficiency of the Evidence
¶16 	Hansen argues there was insufficient evidence to convict
him of possession of a controlled substance, possession of a
firearm 	by 	a 	restricted 	person, 	and 	possession 	of 	drug
paraphernalia. We disagree. To establish plain error in this
context, “a defendant must demonstrate first that the evidence
was insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental
that the [district] court erred in submitting the case to the jury.”
State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.
¶17 	We conclude there was sufficient evidence to support a
conviction. Before ordering Hansen out of his vehicle, Officer
saw Hansen “bending over in the driver’s seat” as if he were

State v. Hansen
20180531-CA 	9 	2020 UT App 17
“trying to kick stuff or get something from underneath the . . .
driver’s seat.” Once detained, Hansen told Backup Officer “that
there was a gun under the seat of the car.” Officer looked under
the driver’s seat of the car and found the gun only after he
noticed 	an 	unzipped 	sunglass 	case, 	“which 	exposed 	what
[Officer] 	believed 	to 	be 	methamphetamine 	and 	narcotic
baggies.” Additionally, Hansen informed Backup Officer that
“he was the only one that possessed [the gun], touched it,
nobody else . . . had access to it.” Officer also testified that
Hansen told him “he was a meth user,” and despite claiming the
methamphetamine in the sunglass case belonged to a friend,
Hansen told Backup Officer “he was aware that it [contained]
narcotics.”
¶18 	This is sufficient evidence for a jury to find Hansen
possessed the methamphetamine, paraphernalia, and the firearm
that were found under the driver seat of his car, and we thus
discern no “insufficiency . . . so obvious and fundamental that
the [district] court erred in submitting the case to the jury.” Id.
CONCLUSION
¶19 	Because 	the 	district 	court 	did 	not 	obviously 	err 	in
allowing the State’s questions about Hansen’s prior convictions,
and because there was sufficient evidence to convict him on all
counts, we affirm.