State v. Legg

2014 UT App 80
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JOHN L. LEGG JR.,
Defendant and Appellant.
Opinion
No. 20120473-CA
Filed April 10, 2014
Third District Court, Salt Lake Department
The Honorable Ryan M. Harris
No. 101900677
Joanna E. Landau, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
ORME, Judge:
¶1 John L. Legg Jr. appeals the trial court’s decision to revoke
his probation and impose the original sentence on his convictions
for aggravated assault with a deadly weapon, a third degree
felony, Utah Code Ann. § 76-5-103 (LexisNexis 2012), and for
possession of a dangerous weapon by a restricted person, a third
degree felony, id. § 76-10-503. Because of concerns we have with the
revocation decision, we remand for further consideration by the
trial court.

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BACKGROUND
¶2 In reviewing a revocation of probation, we recite the facts in
the “light most favorable to the trial court’s findings.” State v.
Jameson, 800 P.2d 798, 804 (Utah 1990). Here, the trial court’s
findings were made orally from the bench and were relatively
sparse. Thus, our recitation of the facts also includes findings
implicitly made by the trial court and matters that are undisputed
in the record.
¶3 The day he completed the jail term that was a component of
his probation, Legg met with his probation officer to go over his
probation agreement. Legg was particularly concerned about the
requirement in the agreement that he establish a residence of
record. He told the probation officer he was homeless and had no
savings. The probation officer instructed Legg to check in by
telephone every day until he established a residence. Legg claimed
that he did not remember any such instruction, but it is undisputed
that Legg failed to call on most days. After about a week, however,
Legg showed up for a scheduled in-person interview with his
probation officer and was arrested for suspected probation
violations.
¶4 During a search incident to the arrest, Legg’s probation
officer discovered a very small amount of cocaine—less than one-
tenth of a normal dose—in the bottom of a pill bottle where Legg
was storing his prescription medicine. A family member gave the
pill bottle to Legg so he would have a more convenient method for
storing his pills than in the bulky containers provided to him by jail
personnel upon his release. He claimed to have never noticed the
thirty-four to thirty-six milligrams of white substance in the bottle
even though, on a regular basis, he “dumped” the pills out to take
them as prescribed and returned the remaining contents to the
bottle. A drug test administered at the same time showed that Legg
had not been using cocaine. Nevertheless, the State initiated a
separate criminal proceeding against Legg for possession of a

State v. Legg
20120473-CA 3 2014 UT App 80
controlled substance. In the ensuing trial, the jury returned a
verdict of not guilty.
¶5 During the subsequent evidentiary hearing to consider
revoking Legg’s probation, which is the subject of this appeal, the
trial court heard testimony from the probation officer and from
Legg and considered the physical evidence of the cocaine. The trial
court found, with our emphasis, that it was “more likely than not
that [Legg] would know that there was a substance in there,
whatever it was.” Legg’s attorney pointed out that, in order to find
a violation, the court had to be convinced that Legg had knowledge
of the narcotic character of the substance, not just that he had
control over it and had knowledge of its presence, “whatever it
was.” Without identifying any additional evidence, the trial court
then immediately revised its finding: “I think at least by a
preponderance I’m going to find that Mr. Legg knew that that was
a controlled substance in the bottle[.]”
¶6 At the conclusion of the hearing, the trial court found that
Legg had violated the terms of his probation in three ways: (1) he
knowingly possessed a controlled substance; (2) he failed to be
cooperative, compliant, and truthful with his probation officer; and
(3) he failed to establish a residence of record. In doing so,
however, the trial court expressed concerns about revoking
probation so quickly and opined that Legg’s probation officer “had
an awful quick trigger on Mr. Legg in this case.”
ISSUES AND STANDARDS OF REVIEW
¶7 Legg argues that the trial court did not properly focus on the
requirement that probation violations must be willful and that the
evidence was insufficient to support a finding that any violation of
the probation agreement was willful. We review a trial court’s
decision to revoke probation for an abuse of discretion. State v.
Jameson, 800 P.2d 798, 804 (Utah 1990).

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¶8 Legg did not preserve this issue for appeal but argues that
the trial court was plainly in error in not focusing on the
requirement of willfulness. Plain error is established only if: “(i)An
error exists; (ii) the error should have been obvious to the trial
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, or phrased differently, our confidence in the verdict is
undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
¶9 Legg also asserts that he had ineffective assistance of
counsel. A claim of ineffective assistance of counsel, when raised on
appeal for the first time, presents a question of law. See State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
ANALYSIS
¶10 To revoke probation, the trial court must find a violation of
the probation agreement by a preponderance of the evidence. State
v. Peterson, 869 P.2d 989, 991 (Utah Ct. App. 1994). In addition, the
trial court must find, also by a preponderance of the evidence, that
the violation was willful, see State v. Maestas, 2000 UT App 22, ¶ 24,
997 P.2d 314, and not merely the result of circumstances beyond the
probationer’s control, see State v. Hodges, 798 P.2d 270, 277 (Utah Ct.
App. 1990).
¶11 We recognize that a single violation of probation is legally
sufficient to support a probation revocation. See Jameson, 800 P.2d
at 804 (“The decision to grant, modify, or revoke probation is in the
discretion of the trial court.”). But considering the expressed
qualms of the trial court about the revocation decision, it is
appropriate to address each finding individually. And because it
appears to have been the totality of the three violations found by
the trial court that prompted the trial court’s decision to revoke
notwithstanding its misgivings, it is less than obvious in this case
that the trial court would have exercised its discretion the same
way if any one of the three violations was not properly established.

State v. Legg
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I. Possession of a Controlled Substance
¶12 Legg argues that there was insufficient evidence to show
that he knowingly possessed a controlled substance. To prove
possession of a controlled substance in violation of Utah Code
section 58-37-8(2)(a)(i), the State must establish “that the accused
exercised dominion and control over the drug with knowledge of
its presence and narcotic character.” State v. Winters, 396 P.2d 872,
874 (Utah 1964). Accord State v. Salas, 820 P.2d 1386, 1388 (Utah Ct.
App. 1991).
¶13 The record is more than sufficient to show, at least by a
preponderance of the evidence, that Legg exercised dominion and
control over the substance in his pill bottle that later proved to be
cocaine and that he had knowledge of its physical presence. He had
exclusive control over the pill bottle for about a week, and the trial
court did not exceed its discretion in inferring that by “dumping”
out the pills on a regular basis it was more likely than not that Legg
had knowledge of its presence. It is less clear, however, that Legg
had knowledge of the substance’s narcotic character. This is an
essential element of the violation. If Legg had no idea what the
substance at the bottom of his pill bottle was, then it cannot be said
that he willfully violated his probation agreement by possessing a
controlled substance. Counsel below was correct in raising a timely
concern with the court that it was not enough to find that Legg
knew the substance, “whatever it was,” was in the pill bottle.
Instead, the trial court needed to find that Legg also knew of the
narcotic character of the substance in order to conclude that Legg
violated the terms of his probation.
¶14 The trial court acknowledged this and amended its finding
to include that Legg had the requisite knowledge, but it did so
without any reference to evidence on which it may have relied or
the rationale for its immediately revised reasoning. Legg’s
argument about the insufficiency of the evidence in this regard is
well taken. Most tellingly, at one point in the hearing, Legg’s
counsel complained that there was no basis for assuming that Legg

State v. Legg
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would be able to identify cocaine residue because “there has never
been any evidence that he has a history with cocaine.” In response,
the State conceded, “We didn’t bring that out in any of this.”
However, before we can properly address the issue of insufficient
evidence, we must first determine if the trial court revealed its
reasoning and the evidence upon which it relied in a way that
satisfies the due process requirements of a probation revocation
hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).
¶15 In Gagnon, the United States Supreme Court held that the
minimum due process protections applicable to probation
revocation proceedings include “‘a written statement by the
factfinders as to the evidence relied on and reasons for revoking
[probation].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489
(1972), and extending Morrissey’s parole revocation rule to
probation hearings). The Court has explained that the “written
statement required by Gagnon . . . helps to insure accurate
factfinding with respect to any alleged violation and provides an
adequate basis for review to determine if the decision rests on
permissible grounds supported by the evidence.” Black v. Romano,
471 U.S. 606, 613–14 (1985). But when a probation revocation
hearing is recorded, a written finding is “constitutionally required
only if the transcript and record before the judge do not enable a
reviewing court to determine the basis of the judge’s decision to
revoke probation.” Morishita v. Morris, 702 F.2d 207, 210 (10th Cir.
1983). If the “evidence relied on and the reasons for revoking”
probation are not revealed, then a remand for a rehearing is
appropriate. State v. Hodges, 798 P.2d 270, 275 (Utah Ct. App. 1990).
¶16 In Hodges, the record contained some evidence supporting
probation revocation, but other evidence—letters from a social
worker and a corrections supervisor—was absent from the record
on appeal. Id. at 273. In its finding, the trial court in Hodges did not
make it clear how much it had relied on the missing letters and
how much it had relied on the other evidence. Id. at 274. We
remanded because “[t]he record on review [did] not adequately
reveal the evidence relied on by the court.” Id. at 275.

State v. Legg
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¶17 As in Hodges, the record and transcript available in this case
do not readily reveal the evidence relied on or the reasons for
finding that Legg willfully possessed a controlled substance with
knowledge of its narcotic character. The trial court originally found
only that Legg had control of the substance, “whatever it was,” and
that, more likely than not, he was aware of its presence. After
Legg’s counsel objected, the trial court promptly revised its
findings to meet the applicable legal requirement, but it failed to
give any indication of its basis for doing so.
¶18 The State directs us to a confidential competency evaluation
ordered by a trial court in a previous matter as evidence of Legg’s
familiarity with cocaine. During the court-ordered competency
evaluation, Legg made potentially incriminating statements to a
social worker. The trial court did not reveal if it relied on this
evidence or not, although it apparently was among the voluminous
materials before the court.
¶19 Because we cannot determine from the record what
evidence, if any, the trial court relied on in finding that Legg had
knowledge of the narcotic character of the substance in his pill
bottle, we cannot conclude that Legg willfully violated his
probation. We therefore remand to the trial court to identify the
evidence it relied on and its reason for moving so quickly from a
finding of “whatever it was” to a finding of knowledge that the
substance was cocaine. See Black, 471 U.S. at 613–14 (holding that
without a finding from the trial court detailing the evidence relied
on and the reasons for probation revocation, there will not be “an
adequate basis for review to determine if the decision rests on
permissible grounds supported by the evidence”).
II. Failure To Be Cooperative, Compliant, and Truthful
¶20 Legg argues that the evidence is insufficient to show that he
willfully failed to be cooperative, compliant, and truthful with his
probation officer. The probation officer testified that he instructed
Legg to check in by telephone every day until he established a

State v. Legg
20120473-CA 8 2014 UT App 80
residence. Legg failed to do so. The State produced evidence that
Legg could have called every day if he had wanted to do so. While
it may have been inconvenient at times, Legg admitted that he did
have access to telephones. It is also clear that Legg had the correct
telephone number for his probation officer because he called and
left two messages on the second day of his probation. The trial
court found the probation officer’s testimony to be more reliable
and ruled that Legg’s failure to call was a willful violation of his
probation agreement.
¶21 Again, the trial court did not explicitly reveal the evidence
relied on or its reasoning in reaching this conclusion, see supra ¶ 19,
but on this issue the evidence and statements contained in the
record make the evidentiary basis for this finding sufficiently clear.
See Morishita v. Morris, 621 P.2d 691, 693 n.2 (Utah 1980) (“[T]he
transcript, in which many statements by the judge appear, reveals
the judge’s thought process and the conclusions he drew from the
evidence. An entry of formal findings of fact and conclusions of law
would add nothing[.]”). Concerning the first prong of the plain
error test, we do not conclude that the trial court made any error,
plain or otherwise, in connection with this ruling. See State v. Dunn,
850 P.2d 1201, 1208–09 (Utah 1993). The evidence was sufficient to
reasonably conclude that Legg knew he was supposed to call, that
he had the means to call, and that his failure to consistently do so
was willful. See State v. Brady, 2013 UT App 102, ¶ 7, 300 P.3d 778
(concluding that findings of willfulness in the probation revocation
context can be implicit).
III. Failure To Establish a Residence
¶22 Legg argues that the court plainly erred because the
evidence was insufficient to show that he willfully failed to
establish a residence of record. Legg argues that the trial court
based its finding solely on the undisputed fact that Legg remained
homeless after one week of probation. If this was, in fact, the trial
court’s reasoning, then it may have plainly erred. If an “appellant’s
failure . . . resulted from problems beyond his control, his

State v. Legg
20120473-CA 9 2014 UT App 80
probation cannot be revoked.” State v. Hodges, 798 P.2d 270, 277
(Utah Ct. App. 1990). On appeal, however, the State argues that the
requirement to call every day was an accommodation to Legg that
effectively replaced the requirement that he establish a residence of
record. This allowed Legg to remain transient so long as he
reported his temporary “residence of record” every night.
¶23 The trial court, however, did not explain whether it found
the violation to be the result of Legg’s failure to establish a
residence of record or whether it found the violation to be the
result of Legg’s failure to call in with updated “residence”
information every night. It certainly appears that it was the former,
although the trial court cut short any opportunity to flesh out the
basis for this claimed violation. The judge stated:
I think I can find based on the evidence that has been
presented today that Mr. Legg did fail to establish a
residence of record and that . . . he did fail to be
cooperative, compliant and truthful with certain
dealings . . . . So I’m going to make a finding without
even hearing from you folks on argument . . . that
those two have been violated.
This finding leaves us without “adequate basis for review to
determine if the decision rests on permissible grounds supported
by the evidence.” See Black v. Romano, 471 U.S. 606, 613–14 (1985).
Accordingly, we remand to the trial court to identify the facts on
which it relied in concluding that Legg willfully failed to establish
a residence of record.
IV. Ineffective Assistance of Counsel
¶24 Legg argues that he received ineffective assistance of counsel
because his trial counsel failed to object to the trial court’s
revocation of probation without sufficient evidence of the
willfulness of Legg’s violations. We conclude that trial counsel’s
failure to object to the finding that Legg violated his probation by

State v. Legg
20120473-CA 10 2014 UT App 80
failing to be cooperative, compliant, and truthful with his probation
officer—i.e., by not calling his probation officer on most days—was
not ineffective. As previously discussed, see supra ¶ 21, the record
and transcript support the trial court’s finding on this point,
meaning an objection would have been unavailing. “Failure to raise
futile objections does not constitute ineffective assistance of
counsel.” State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. As a result,
we conclude that trial counsel was not ineffective in this regard.
And because we have already remanded for reconsideration on the
remaining issues, it is unnecessary to address the effectiveness of
counsel with respect to those issues.
CONCLUSION
¶25 We affirm the finding that Legg willfully violated his
probation agreement by failing to be cooperative, compliant, and
truthful with his probation officer. But we are not confident that,
standing on its own, the single violation that we affirm would have
resulted in a revocation of probation. We remand on the issues of
possession of a controlled substance and failure to establish a
residence of record for further consideration and explanation by
the trial court. On remand, the trial court must reassess whether,
under all the circumstances, Legg’s probation should be revoked.