Opinion
Case No. 20030373-CA.
Filed February 17, 2005. (Not For Official Publication).
Appeal from the Seventh District, Monticello Department, The Honorable Lyle R. Anderson.
William L. Schultz, Moab, for Appellant.
Mark L. Shurtleff and Brett J. Delporto, Salt Lake City, for Appellee.
Before Judges Davis, Jackson, and Thorne.
MEMORANDUM DECISION
Toyna Althoff appeals her conviction for possession of a controlled substance with the intent to distribute, as well as her associated convictions for possession of drug paraphernalia and various traffic related crimes. We reverse.
Althoff's arrest, conviction, and appeal mirror those of her companion at the time of her arrest, Thomas Kevin Rothlisberger.See State v. Rothlisberger, 2004 UT App 226, 95 P.3d 1193,cert. granted, 2004 Utah LEXIS 248 (Utah Nov. 24, 2004). Moreover, she presents an issue that is identical to the issue central to our decision in Rothlisberger, namely, whether the trial court erred in refusing to recognize that a portion of Chief Adair's testimony was expert testimony and, if so, whether Althoff's right to notice of the nature of Adair's testimony and his background was violated. See id. at ¶¶ 10-27. Having decided in Rothlisberger, under identical circumstances, that the trial court's decision was improper, and that the State failed to comply with the requirements of Utah Code section 77-17-13 (2003), we are compelled to follow that decision here.See State v. Simms, 881 P.2d 840, 843 n. 7 (Utah 1994) ("Stare decisis requires that a decision rendered by a court in a particular factual context govern later decisions by that court arising under the same or similar facts.").
Accordingly, we reverse Althoff's convictions and remand this case for a new trial.
The Utah Supreme Court has granted the State's petition for certiorari in State v. Rothlisberger. See 2004 UT App 226, 95 P.3d 1193, cert. granted, 2004 Utah LEXIS 248 (Utah Nov. 24, 2004). Assuming that the State's dissatisfaction with the outcome of the instant case mirrors its position in Rothlisberer, we encourage it to move for consolidation of the two cases.
WE CONCUR: James Z. Davis, Judge and Norman H. Jackson, Judge.