State v. Gallup

2015 UT App 86

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
JEFFREY GALLUP,
Defendant and Appellant.

Memorandum Decision
No. 20131143-CA
Filed April 9, 2015

Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 131400869

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
KATE A. TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Jeffrey Gallup appeals from his conviction for driving
under the influence of alcohol. Gallup pled guilty to DUI after
the district court denied his motion to suppress certain evidence
obtained during the traffic stop, but he reserved his right to
appeal the court’s suppression decision. Gallup argues on appeal
that the factual findings made by the district court in denying his
motion to suppress are clearly erroneous and that its legal
conclusions are erroneous because they rely on the flawed
factual findings. We affirm the district court’s decision.

¶2 Alcohol-enforcement agents conducting a covert
inspection of a bar for liquor law violations watched Gallup
State v. Gallup

drinking in that bar for several hours.1 The agents saw Gallup
drink several beers between approximately 9:00 p.m. and 1:00
a.m. Around 1:00 a.m., the agents saw Gallup leave the bar, walk
to his vehicle, and drive out of the bar’s parking lot. The agents
followed Gallup and pulled him over after they saw him commit
two traffic violations. Gallup was arrested and charged with DUI
after he failed field sobriety tests.

¶3 Gallup filed a motion to suppress the evidence obtained
during the traffic stop, arguing that the stop and subsequent
investigation were not supported by reasonable suspicion. The
district court held an evidentiary hearing on Gallup’s motion.
Agent Jalaine Hawkes, one of the alcohol-enforcement agents
who watched Gallup at the bar, testified at the hearing that she
saw Gallup order multiple drinks between 9:00 p.m. and 1:00
a.m., but she could not remember the exact number. Agent
Steven Marble, another alcohol-enforcement agent who watched
Gallup that same night, did not testify. After the hearing, Gallup
submitted a supplemental memorandum to his motion to
suppress. Gallup attached as an exhibit to his supplemental
memorandum the police report Agent Marble prepared after
Gallup’s arrest. In this report, Agent Marble stated that he saw
Gallup drink “at least 8 beers.”

¶4 Before entering a final ruling, the court allowed the
parties to present further oral argument on the motion to
suppress. At argument, the prosecutor stated that the stop was
justified based on the agents’ observations that Gallup drank “at
least eight beers” at the bar before driving. At the conclusion of

1. “In reviewing a trial court’s ruling on a suppression motion,
we consider the facts in a light most favorable to the trial court’s
findings.” State v. Patefield, 927 P.2d 655, 656 (Utah Ct. App.
1996) (citation and internal quotation marks omitted).

20131143-CA 2 2015 UT App 86
State v. Gallup

oral argument, the district court denied the motion to suppress,
basing its decision on “the testimonies from the officers that they
saw the defendant drink at least eight beers at the bar.” Gallup
appeals that ruling.

¶5 “A trial court’s ruling on a motion to suppress is reviewed
for correctness, including its application of the law to the facts.”
State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251. We review the
district court’s underlying factual findings for clear error. Id.

¶6 First, Gallup challenges the district court’s factual finding
that “[t]he officers observed [Gallup] consume at least eight
beers before leaving the bar.” Gallup argues that the court’s
finding detailing the number of beers the alcohol enforcement
agents saw Gallup consume was not supported by the evidence
presented at the hearing on the motion to suppress. The detail of
“eight beers” was only in Agent Marble’s police report, which
was not admitted at the evidentiary hearing but rather was
attached as an exhibit to Gallup’s supplemental memorandum
filed after that hearing. While it is true that Agent Hawkes was
not able to specifically testify at the hearing as to the number of
drinks Gallup consumed, Gallup himself attached Agent
Marble’s report containing the statement of that number to his
supplemental memorandum and asked the district court to
consider other statements Agent Marble had made in that report.

¶7 “[O]n appeal, a party cannot take advantage of
an error committed [below] when that party led the trial court
into committing the error.” State v. Dunn, 850 P.2d 1201, 1220
(Utah 1993). “While the invited error doctrine is crafted to
discourage[] parties from intentionally misleading the trial court
so as to preserve a hidden ground for reversal on appeal, it is
also intended to give the trial court the first opportunity to
address the claim of error.” State v. Geukgeuzian, 2004 UT 16, ¶12,
86 P.3d 742 (alteration in original) (citation and internal
quotation marks omitted). Even inadvertent errors that are not

20131143-CA 3 2015 UT App 86
State v. Gallup

“conscious attempt[s] to mislead the trial court” may fall within
the invited error doctrine when they lead the district court into
making legal errors. Id.

¶8 In this case, Gallup provided the district court with Agent
Marble’s statement in an exhibit attached to his supplemental
memorandum. Gallup sought to use Agent Marble’s report to
impeach Agent Hawkes, arguing that a particular statement in
Agent Marble’s report demonstrated that Agent Hawkes’s and
Agent Marble’s testimonies “are contrary to one another and not
credible.” Even though Gallup did not affirmatively seek to
admit the agent’s statement into evidence at the hearing, Gallup
placed the agent’s report before the court and asked the court to
consider it. Cf. Clayton v. Ford Motor Co., 2009 UT App 154, ¶ 48,
214 P.3d 865 (holding that any error based on admission of a
report was invited where the plaintiffs introduced a trooper’s
report into evidence “on their own accord”). As a result, we
conclude that Gallup led the district court into relying on Agent
Marble’s statement because had Gallup not provided the court
with the report, the court would have heard only that Gallup
consumed several alcoholic drinks that evening, but not
specifically “at least eight beers.”

¶9 Even if the doctrine of invited error did not apply,
however, Gallup failed to preserve his challenge to the district
court’s reliance on the report. “As a general rule, claims not
raised before the trial court may not be raised on appeal.” State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citation and internal
quotation marks omitted). Because Gallup did not object when
the State referenced Agent Marble’s statement during argument
or when the district court found orally and in writing that the
agents saw Gallup drink at least eight beers, he has failed to
preserve his argument that the district court could not properly
consider that evidence.

20131143-CA 4 2015 UT App 86
State v. Gallup

¶10 Gallup also has not preserved his claims that the district
court made inadequate findings regarding conflicting evidence
and witness credibility. 2 A party must “challenge in the trial
court the adequacy of the court’s factual findings to preserve an
adequacy of the findings issue for appeal.” In re K.F., 2009 UT 4,
¶ 59, 201 P.3d 985; see also State v. Titus, 2012 UT App 231, ¶ 11,
286 P.3d 941. “[R]equiring a party to object to the adequacy of
the detail of the trial court’s findings before appeal allows the
trial judge to address and correct, if necessary, the level of detail
in his or her findings before the case moves forward.” In re K.F.,
2009 UT 4, ¶ 62.

¶11 Gallup relies on State v. Genovesi, 871 P.2d 547 (Utah Ct.
App. 1994), and State v. Lovegren, 798 P.2d 767 (Utah Ct. App.
1990), for the proposition that findings of fact must be
sufficiently detailed to permit meaningful appellate review. But
the requirement that district courts provide detailed findings
does not overcome Gallup’s failure to bring the asserted error to
the district court’s attention.

Judicial economy would be disserved if we
permitted a challenge to the adequacy of the detail
in the findings to be heard for the first time on
appeal. Not only is an error in the detail in the
findings easy for a trial judge to correct, but it is an
error that is best corrected when the judge’s
findings are fresh in the judge’s mind. Further, it is

2. To the extent Gallup challenges as clearly erroneous the
district court’s factual finding that officers “observed [Gallup]
stumble out of the bar to his vehicle,” we conclude that the
finding is sufficiently supported by Agent Hawkes’s testimony
that Gallup “stumbled on the sidewalk” and then walked
“unsteadily” to his vehicle. Gallup has demonstrated no
infirmity in the evidentiary support for this finding.

20131143-CA 5 2015 UT App 86
State v. Gallup

a waste of judicial resources for an appellate court
to entertain such a challenge when the only likely
remedy is merely a remand to the trial court for
more detailed findings. We decline to offer such a
remedy unless the [appellant] first provided the
trial court the opportunity to correct the error.

In re K.F., 2009 UT 4, ¶ 63. Gallup did not object to the district
court’s oral or written findings below, and he has therefore
failed to preserve this claim for appeal.

¶12 Finally, Gallup argues that the district court’s legal
conclusions are erroneous because they relied on the challenged
factual findings. Because Gallup failed to demonstrate error in
the district court’s factual findings, we reject his argument that
the district court erred in relying on those findings.

¶13 We conclude that Gallup invited any error in the district
court’s factual finding concerning the number of beers and failed
to preserve his other challenges to the court’s findings. We
affirm the district court’s denial of Gallup’s motion to suppress.

20131143-CA 6 2015 UT App 86