State v. De La Rosa

2019 UT App 110
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellant,
v.
JOSE DE LA R OSA,
Appellee.
Opinion
No. 20170993-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 161902721
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellant
Teresa L. Welch, Attorney for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
ORME, Judge:
¶1 	After a jury convicted him of one count of possession of a
controlled substance with intent to distribute and one count of
retail theft, defendant Jose De La Rosa, through post-conviction
counsel, moved the court for a new trial pursuant to rule 24 of
the Utah Rules of Criminal Procedure. He claimed entitlement to
a 	new 	trial 	on 	five 	grounds: 	(1) 	the 	jury 	instruction 	on
constructive 	possession 	was 	inadequate; 	(2) 	his 	prior 	drug
possession and distribution convictions should not have been

State v. De La Rosa
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admitted at trial; (3) there was juror misconduct;1 (4) his retail
theft charge should have been severed from his possession with
intent to distribute charge at trial; and (5) his trial counsel failed
to move to suppress the evidence obtained from the search of his
vehicle.2
1. The juror misconduct to which Defendant refers occurred at
the close of the State’s case-in-chief. After the State rested, the
trial court called a brief recess. As the bailiff walked past the jury
room during the recess, he heard the jurors discussing the case,
in violation of a jury instruction that stated: “You should not
begin any discussions on the evidence until the case is presented
to you for deliberation after closings.” The bailiff instructed the
jury to cease discussing the case and reported the matter to the
trial court. The court, in turn, informed the parties of what had
transpired. The defense asked what the jurors had specifically
said, but the bailiff could not provide any particulars other than
that he had generally heard them “talking about the case and
about evidence.” The court initially offered to ask the jurors
what they had discussed but ultimately decided against it.
Instead, 	the 	court 	admonished 	the 	jury, 	and 	Defendant
proceeded to present his defense.
2. Defendant argued all five grounds in his initial motion for a
new trial. But in his amended motion, Defendant argued only
the first four grounds and appears to have abandoned the
argument that his trial counsel was remiss for not moving to
suppress the evidence obtained from the search of his vehicle. In
its order granting a new trial, the trial court expressly stated that
it had reviewed both Defendant’s initial and amended motions
for a new trial. It is unclear, given the absence of any explanation
by the trial court, whether in so stating it considered all the
issues to be alive and well or whether, as at least seems possible,
it took the amended motion to mean that the fifth issue was dead
and buried.

State v. De La Rosa
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¶2 	The trial court granted Defendant’s motion but did not
identify which of the five grounds raised by Defendant formed
the basis for its decision. Its order was limited to the following:
The Court, having reviewed Defendant’s Motion
for 	a 	New 	Trial, 	the 	State’s 	Opposition 	to
Defendant’s 	Motion 	for 	a 	New 	Trial 	and
Defendant’s Amended Motion for a New Trial,
makes the following ruling: Defendant’s Motion is
granted.
The State appeals, arguing, among other things, that we should
remand to the trial court for it to identify the rationale for its
ruling. We agree.
¶3 	Rule 24 of the Utah Rules of Criminal Procedure provides
that trial courts may “grant a new trial in the interest of justice if
there 	is 	any 	error 	or 	impropriety 	which 	had 	a 	substantial
adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a).
Unlike its civil counterpart, rule 24 does not expressly require
trial 	courts to 	provide 	reasons for 	granting 	a 	new trial 	in
criminal 	cases. 	Compare 	Utah 	R. 	Civ. 	P. 	59(d) 	(“The 	order
granting a new trial must state the reasons for the new trial.”),
with Utah R. Crim. P. 24. But because appellate courts cannot
meaningfully review a trial court’s grant of a new trial without
having the benefit of the trial court’s reasons for its ruling—
especially when some of the grounds argued warrant inquiry
into the trial court’s underlying legal conclusions—we agree
with the State that it is necessary to remand with instructions
that the trial court identify the basis for its decision to grant
Defendant a new trial.
¶4 	“We review a trial court’s ruling on a motion for a new
trial under an abuse of discretion standard.” State v. Billingsley,
2013 UT 17, ¶ 9, 311 P.3d 995. Generally, this standard is highly
deferential to the trial court’s ruling in that “we assume that the
district 	court 	exercised 	proper 	discretion 	unless 	the 	record
clearly shows the contrary.” State v. Serrano, 2019 UT App 32,

State v. De La Rosa
20170993-CA 	4 	2019 UT App 110
¶ 8, 440 P.3d 734 (quotation simplified). But “trial courts do not
have discretion to misapply the law.” State v. Petersen, 810 P.2d
421, 425 (Utah 1991). For this reason, “the abuse-of-discretion
standard of review will at times necessarily include review to
ensure that no mistakes of law affected a lower court’s use of its
discretion.” State v. Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682.
¶5 	Defendant 	contends 	that 	the 	trial 	court’s 	order 	is
sufficient for purposes of appellate review because “the record
indicates that the trial [court] took a thoughtful, careful approach
to ensuring that [Defendant] received his constitutional right to a
fair trial” and that should be enough to satisfy the abuse of
discretion standard applied by appellate courts when reviewing
a ruling on a motion for a new trial. This argument arises from
the recognition that trial courts are in an advantaged position to
that of appellate courts “to determine the impact of events
occurring in the courtroom on the total proceedings.” State v.
Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892 (quotation simplified).
See also ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24,
¶ 22, 	309 P.3d 201. 	And 	we 	might 	very 	well 	agree 	with
Defendant’s argument had he limited the arguments in his
motion for a new trial to those that would not ordinarily require
review 	of 	the 	trial 	court’s 	underlying 	legal 	conclusions 	on
appeal. 	For 	example, 	a 	determination 	of 	whether 	the 	jury
misconduct in the present case merited a new trial would have
been almost wholly dependent on the trial court’s evaluation of
the 	impact 	such 	misconduct 	had 	on 	the 	fairness 	of 	the
proceedings—something that is inherently difficult for appellate
courts to second guess. Had Defendant limited his motion to this
and similar arguments, our review of the trial court’s ruling
would indeed be circumscribed by the assumption “that the
district court exercised proper discretion,” Serrano, 2019 UT App
32, ¶ 8 (quotation simplified), and we would reverse “only if
there is no reasonable basis for the decision,” ASC Utah, 2013 UT
24, ¶ 21 (quotation simplified).
¶6 	On the other hand, a trial court “is not necessarily in a
better position than an appellate court to identify its own errors

State v. De La Rosa
20170993-CA 	5 	2019 UT App 110
of law.” Id. ¶ 23. Thus, when a trial court determines that a legal
error “had a substantial adverse effect upon the [defendant’s]
rights,” 	Utah 	R. 	Crim. 	P. 	24(a), 	it 	necessarily 	exceeds 	its
discretion 	if 	there 	was 	no 	underlying 	error. 	Our 	Supreme
Court’s decision in State v. Billingsley, 2013 UT 17, 311 P.3d 995, is
illustrative 	of 	this 	point. 	In 	Billingsley, 	the 	trial 	court 	had
previously determined a teacher’s testimony that a rape victim
had made “inappropriate sexual advances” toward her to be
inadmissible under rule 412 of the Utah Rules of Evidence.
Id. ¶¶ 7, 10. The court eventually granted a new trial to the
defendant after it determined the evidentiary ruling to be in
error and concluded that the exclusion violated the defendant’s
Sixth Amendment right to confront the witnesses against her. Id.
Our Supreme Court held that the trial court abused its discretion
in granting a new trial because the court “correctly excluded the
evidence” in the first place and the exclusion therefore “could
not justify arresting the verdict.” Id. ¶ 10. See id. ¶ 23. It further
concluded that the exclusion did not violate the defendant’s
Sixth Amendment rights and that “[t]he trial court abused its
discretion when it determined that [the defendant’s] right to
confront witnesses against her was violated.” Id. ¶ 17.
¶7 	Likewise, the trial court in the present case would have
abused its discretion had it, for example, granted a new trial
based on its belief that the jury instruction on constructive
possession was inadequate and we later determined that this
underlying legal conclusion was incorrect. Because there would
be 	no 	underlying 	error 	that 	could 	possibly 	have 	“had 	a
substantial adverse effect upon the rights of [Defendant],” see
Utah R. Crim. P. 24(a), the trial court would not have been
justified in granting a new trial in that situation. Thus, the trial
court’s reasons for granting a new trial are crucial to meaningful
appellate review of its ruling.
¶8 	Defendant’s argument that the record is sufficient to
determine that the trial court did not exceed its discretion in
granting a new trial is further undermined by Utah Supreme
Court precedent, which states:

State v. De La Rosa
20170993-CA 	6 	2019 UT App 110
If the trial court determines that a new trial is
warranted 	and 	grants 	the 	motion, 	it 	should
describe the basis for its decision in the record such
that an appellate court can have the benefit of those
reasons. . . . “In order to eliminate speculation as to
the basis of the exercise of judicial discretion in
granting new trials, the record should show the
reasons and make it clear the court is not invading
the province of the jury. . . . With no indication as
to the basis for exercise of the power vested in the
court to grant new trials the appeal tribunal would
be left to analyze the matter from the evidence, the
record, and the instructions. It would be required
to 	search 	out 	possible 	reasons 	for 	agreeing 	or
disagreeing with the trial court in the exercise of
[its] discretion. The exercise of judicial discretion
must be based upon some facts notwithstanding
great latitude is accorded the trial court in such
matter.”
Crookston v. Fire Ins. Exch., 817 P.2d 789, 804 (Utah 1991) (quoting
Saltas v. Affleck, 105 P.2d 176, 178 (Utah 1940)).
¶9 	Defendant argues that this principle is limited to the civil
context, as is evidenced by the adoption of rule 59(d) of the Utah
Rules of Civil Procedure, requiring that the trial court state the
reasons for granting a new trial, coupled with the lack of any
corresponding 	provision 	in 	the 	Utah 	Rules 	of 	Criminal
Procedure. 	But 	when 	our 	Supreme 	Court 	articulated 	this
principle in Saltas, and subsequently reaffirmed it in Crookston,
the Utah Rules of Civil Procedure did not require trial courts to
state their reasons for granting a new trial as they do now.
Compare Utah R. Civ. P. 59 (1991), with id. R. 59(d) (2019) (“The
order granting a new trial must state the reasons for the new
trial.”). 	Instead, 	the 	Court 	articulated 	this 	principle 	as 	an
appellate court’s prerogative to request additional information
from the trial court to facilitate meaningful appellate review of

State v. De La Rosa
20170993-CA 	7 	2019 UT App 110
the court’s grant of a new trial.3 Otherwise, appellate courts
would have to resort to speculation, see Crookston, 817 P.2d at
804, and could potentially affirm on a basis not relied on by the
trial court.4 Even conclusions of legal error are in most cases
followed 	by 	inquiries 	into 	whether 	the 	“error 	. 	. 	. 	had 	a
substantial adverse effect upon the rights of a party.” Utah R.
Crim. 	P. 	24(a). 	And 	this 	inquiry 	falls 	entirely 	within 	the
discretion of the trial court due to its advantaged position to
judge “the impact of” legal errors “on the total proceedings.”
Maestas, 2012 UT 46, ¶ 325. Thus, affirming on alternate grounds
would ultimately undermine the broad discretion granted trial
courts when ruling on motions for a new trial. Cf. Interstate
3. Because we remand to the trial court on this basis, we need not
determine 	whether 	rule 	59(d) 	of 	the 	Utah 	Rules 	of 	Civil
Procedure applies to criminal proceedings by virtue of rule 81(e).
See Utah R. Civ. P. 81(e) (“These rules of procedure shall also
govern in any aspect of criminal proceedings where there is no
other applicable statute or rule, provided, that any rule so
applied does not conflict with any statutory or constitutional
requirement.”).
4. It is well recognized that, ordinarily, an appellate court “may
affirm the judgment appealed from if it is sustainable on any
legal ground or theory apparent on the record, even though such
ground or theory differs from that stated by the trial court to be
the basis of its ruling or action, and . . . even though such ground
or theory is not urged or argued on appeal by appellee, was not
raised in the lower court, and was not considered or passed on
by the lower court.” State v. Topanotes, 2003 UT 30, ¶ 9, 76 P.3d
1159 (quotation simplified). But as we have explained, this
principle is difficult to apply in the context of reviewing a trial
court’s grant of a new trial because of the discretionary inquiry
that trial courts must engage in following the conclusion that an
error or other impropriety occurred at trial, which determination
is inherently difficult for appellate courts to make from a cold
record.

State v. De La Rosa
20170993-CA 	8 	2019 UT App 110
Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App 188, ¶ 20,
257 P.3d 1073 (stating that appellate courts have a “right to
require a meaningful statement of the basis of the trial court’s
decision and enough factual findings to assure us that the trial
court’s legal conclusions logically flow from and are supported
by the evidence”).
¶10 	The concern our Supreme Court had in Crookston applies
equally, if not more so, in the criminal context. There are seven
specific grounds on which a trial court may grant a new trial in
civil cases, see Utah R. Civ. P. 59(a)(1)–(7), while in criminal cases
trial courts enjoy a greater latitude when granting new trials, see
Utah R. Crim. P. 24(a). Rule 24 permits a trial court to “grant a
new trial 	in the 	interest of justice 	if there is any error or
impropriety which had a substantial adverse effect upon the
rights of a party.” Id. (emphasis added). The interest in avoiding
speculation is significantly increased in criminal cases where the
potential grounds for granting a new trial are more open-ended.5
Thus, our Supreme Court’s rationale for avoiding speculation
from among seven enumerated grounds in a civil case applies
with even greater force in the criminal context.
¶11 	In conclusion, because the trial court did not identify the
ground on which it determined a new trial was warranted, we
5. This concern, however, does not arise when reviewing a trial
court’s denial of a motion for a new trial, which necessarily
involves review of all the arguments made by the defendant in
his motion for a new trial. For that reason, a trial court is not
required to provide its reasons for denying a motion for a new
trial. See ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24,
¶ 21, 309 P.3d 201 (“District courts are required to explain the
basis for their decisions only when they grant motions for a new
trial—not 	when 	they 	deny 	such 	motions.”) 	(emphasis 	in
original). That said, there is no question that an explanation from
the trial court, even with a denial, will prove helpful to the
appellate court in reviewing the decision.

State v. De La Rosa
20170993-CA 	9 	2019 UT App 110
are 	left 	to 	speculate 	as 	to 	the 	reason 	and 	are 	accordingly
deprived of the ability to provide meaningful appellate review
of 	the 	trial 	court’s 	decision. 	We 	therefore 	remand 	with
instructions that the trial court identify and explain the ground
or grounds for its ruling.6
6. We so order irrespective of whether the State preserved its
argument that the trial court should have stated its reasons for
granting a new trial. The larger issue of whether the trial court
exceeded its discretion in granting Defendant a new trial was
preserved by the State’s opposition to Defendant’s motion for a
new trial. Accordingly, as discussed, see supra ¶¶ 6–10, our
ability to meaningfully review the larger, preserved issue is
wholly dependent upon the trial court’s reasons for its ruling. Cf.
Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App
188, ¶ 20, 257 P.3d 1073 (“[The defendant’s] failure to preserve
its challenge to the adequacy of the detail of the findings of fact
does not waive our right to require a meaningful statement of
the basis of the trial court’s decision.”).
It should go without saying that the explanation sought on
remand can, as a practical matter, only be offered by the judge
who granted the new trial motion. A successor judge would be
no better positioned than would we to discern the rationale of
the prior judge from a cold record. Indeed, in all cases where a
matter is remanded for an explanation that is uniquely within
the province of a particular judge, the matter on remand should
be 	directed 	to 	the 	same 	judge, 	notwithstanding 	artificial
constraints 	on 	the 	case 	finding 	its 	way 	to 	that 	judge
automatically, such as a change in the judge’s office location or
responsibilities, reassignment of the case for reasons other than
recusal, or the judge’s taking senior status. Given the scheduled
retirement of the judge who ordered the new trial, care should
be taken to direct this matter to her promptly following remand.