2015 UT App 275

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DARRYL KENNETH BOSSERT,

Appellant.

Opinion

No. 20130842-CA

Filed November 12, 2015

Third District Court, Salt Lake Department

The Honorable Elizabeth A. Hruby-Mills

No. 121901450

Nathalie S. Skibine and Samuel J. Hanseen, 

Attorneys for Appellant

Sean D. Reyes and Tera J. Peterson, 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 Darryl Kenneth Bossert (Defendant) appeals his 

convictions on two counts of endangerment of a child, third 

degree felonies. See Utah Code Ann. § 76-5-112.5(2)(a)

(LexisNexis 2012). We affirm.
State v. Bossert

20130842-CA 2 2015 UT App 275

BACKGROUND1

¶2 In February 2012, Defendant’s ten-year-old son (Son) was 

living with Defendant. Defendant’s friends and girlfriends 

frequently visited Defendant’s house, from which Defendant 

sold methamphetamine. In fact, almost everyone who came to 

Defendant’s house used drugs, particularly marijuana and meth. 

Son would sometimes discuss drugs with Defendant and 

Defendant’s friends, asking questions about meth and what it 

‚smelled like and . . . looked like when they were breathing it 

out.‛ Son also knew that Defendant sold meth from the house. 

¶3 Son frequently used marijuana with Defendant’s consent,

and Defendant gave Son marijuana ‚*t+wenty-five to 30 times.‛ 

Defendant’s friends also gave Son drugs and drug 

paraphernalia. One friend gave Son meth and a ‚red mushroom 

pipe.‛ Son tried meth twice, explaining, ‚Because I was curious 

and I wanted to know what it was like because I thought it 

would be cool if I did it.‛ Son testified that using meth gave him 

a ‚*g+ood feeling‛ and made him ‚feel cool.‛ 

¶4 When Son told Defendant’s friends that he was smoking 

meth, they informed Defendant, who ‚really yelled‛ at Son for 

using meth. But Defendant did not stop giving Son marijuana, 

using drugs in Son’s presence, or inviting drug users into the 

home. Defendant did not remove drugs or drug paraphernalia 

from his house, and he did not lock up his drugs or keep them 

where Son could not access them.

¶5 On the evening of February 6, 2012, Defendant once again 

gave Son marijuana. Son did not go to bed that night. Instead, 

around 3:00 or 4:00 a.m., Son found a meth pipe on a counter in 

 

1. ‚On appeal, we recite the facts in the light most favorable to 

the jury’s verdict.‛ State v. Martinez, 2013 UT App 154, ¶ 2 n.1, 

304 P.3d 110 (citation and internal quotation marks omitted).
State v. Bossert

20130842-CA 3 2015 UT App 275

the front room of the house and he took it. Knowing that there 

would be drugs in Defendant’s bedroom, Son went into the

bedroom, where Defendant was asleep with a woman Son did 

not know. Son ‚went straight to *a+ drawer‛ in a bureau by 

Defendant’s bed ‚*b+ecause *he+ knew‛ that Defendant would 

have drugs there. Indeed, Son found marijuana in a container in 

the drawer and meth on a lid to a container that was in the 

drawer. He took both drugs with him. Son also looked inside the 

woman’s purse, which was lying on the floor near the bed, and 

found marijuana, meth, and a meth pipe, all of which he took. 

¶6 Son then took all of the drugs and drug paraphernalia 

back to his bedroom. Using the meth pipe from the woman’s 

purse, Son smoked some of the meth. He then smoked some of 

the marijuana using the red mushroom pipe that Defendant’s 

friend had given him earlier. 

¶7 Later that day, February 7, 2012, Son walked to his nearby 

elementary school. He took the red mushroom pipe, a lighter, 

the remaining marijuana, and some tinfoil with him. Son 

smoked marijuana on his way to school, and once at school, he 

went into the second-grade bathroom and smoked marijuana 

again. Son was caught by a teacher when a second-grade boy 

smelled smoke in the bathroom and reported him. Police were 

called and they took Son to the hospital, where he tested positive 

for both meth and marijuana. While he was at the hospital, Son 

admitted to the police that he had gotten the drugs from his 

house. 

¶8 When Defendant came to the hospital, he was questioned 

by the police. An officer noticed the smell of marijuana coming 

from Defendant and asked him about his drug use. Defendant 

admitted that he had just smoked marijuana and that he uses 

meth as well. Defendant also admitted that it was possible that 

Son had found both the meth and the marijuana in his home. 
State v. Bossert

20130842-CA 4 2015 UT App 275

¶9 Defendant was charged with two counts of endangerment 

of a child and one count of obstructing justice. The information 

alleged that the charged conduct occurred ‚on or about February 

7, 2012.‛ Following a preliminary hearing, the obstruction-ofjustice charge was dismissed, and the case proceeded to trial. At 

the close of the State’s case-in-chief, Defendant moved for a 

directed verdict. Defendant argued that the State had not proved 

that Defendant ‚caused *or+ permitted *Son+ access to these 

drugs.‛ See Utah Code Ann. § 76-5-112.5(2)(a). The trial court 

denied Defendant’s motion, stating that ‚*b+ased on the evidence 

presented in the State’s case in chief, I find that the State has met 

its burden and that there has been sufficient evidence presented 

from which a jury accurately and reasonably could convict the 

defendant.‛ The trial court then submitted the case to the jury, 

which found Defendant guilty of both counts of child 

endangerment.2

¶10 After the verdict, but before sentencing, Defendant 

moved to arrest judgment, arguing that one of the State’s 

witnesses at trial, a detective, had improper contact with the 

jury. Defendant’s motion was accompanied by four signed 

affidavits from friends of Defendant who attended the trial. The 

affidavits alleged that the bailiff had called the detective to the 

jury room during jury deliberations to answer a question. The 

State opposed the motion and submitted the affidavit of an 

investigator from the Salt Lake County District Attorney’s 

Office. The investigator’s affidavit stated that he had talked with 

the detective, who denied ever speaking to any member of the 

jury. The detective stated that he went to a court clerk’s work 

station through a door by the jury box to check whether 

Defendant had any outstanding warrants. The detective stated 

 

2. The jury was instructed that ‚Count 1 pertains to the 

allegation of marijuana exposure, and Count 2 pertains to the 

allegation of methamphetamine exposure.‛ 
State v. Bossert

20130842-CA 5 2015 UT App 275

that this warrant check might have occurred during jury 

deliberations. 

¶11 The investigator also spoke with the bailiff, who did not 

remember Defendant’s case specifically but stated that he never 

allows anyone to speak with the jury as it deliberates. The trial 

court took judicial notice of the fact that the door the affiants saw 

the detective and the bailiff go through did not lead directly to 

the jury room but into a hallway. The trial court denied 

Defendant’s motion to arrest judgment. The court ultimately 

sentenced Defendant to two concurrent prison terms of zero-tofive years. Defendant appeals. 

ISSUES AND STANDARDS OF REVIEW

¶12 First, Defendant contends that the trial court erred when 

it denied his motion for directed verdict. ‚A trial court’s ruling 

on a motion for a directed verdict ‘is a question of law*,+ which 

we review for correctness[,] giving no particular deference to the 

trial court’s legal conclusions.’‛ State v. Hirschi, 2007 UT App 

255, ¶ 15, 167 P.3d 503 (alterations in original) (quoting State v. 

Krueger, 1999 UT App 54, ¶ 10, 975 P.2d 489). 

¶13 Second, Defendant contends that the trial court erred in 

denying his motion to arrest judgment based on improper 

contact between the jury and a detective who testified during 

Defendant’s trial. His apparent objective in having judgment 

arrested was to receive a new trial—the relief he specifically asks 

from us should we agree that the trial court erred in denying his 

motion. ‚We will disturb a trial court’s factual findings 

underlying its decision to deny a motion for a new trial only if 

the findings are clearly erroneous.‛ State v. Burk, 839 P.2d 880, 

885 (Utah Ct. App. 1992). ‚As to the decision of whether to grant 

a new trial, a trial court has some discretion, and we reverse only 

for abuse of that discretion.‛ Id. (citation and internal quotation 
State v. Bossert

20130842-CA 6 2015 UT App 275

marks omitted). The same standard applies to our review of the 

denial of a motion to arrest judgment. See id.

ANALYSIS

I. Denial of Directed Verdict

¶14 Defendant first argues that the trial court erred in denying 

his motion for a directed verdict because ‚*n+o evidence 

supported the charge that [he] knowingly or intentionally 

caused or permitted *Son+ to be exposed to drugs‛ under the 

child endangerment statute. See Utah Code Ann. § 76-5-112.5. 

Defendant’s argument is primarily focused on whether he 

‚caused or permitted‛ Son to be exposed to drugs. Defendant 

contends that ‚no evidence established that *he+ consented 

expressly or formally to *Son+ stealing from a houseguest’s 

purse‛ and ‚no reasonable juror could have concluded that 

[Defendant] consented expressly or formally to [Son] being able 

to access drugs kept in a closed drawer in *Defendant+’s 

bedroom.‛ 

¶15 ‚Trial courts may deny a motion for directed verdict if 

the State has produced ‘believable evidence of all the elements of 

the crime charged.’‛ State v. Skousen, 2012 UT App 325, ¶ 6, 290 

P.3d 919 (quoting State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183). 

When a party challenges the denial of a motion for directed 

verdict alleging insufficiency of the evidence, ‚*w+e will uphold 

the trial court’s decision if, upon reviewing the evidence and all 

inferences that can be reasonably drawn from it, we conclude 

that some evidence exists from which a reasonable jury could 

find that the elements of the crime had been proven beyond a 

reasonable doubt.‛ Montoya, 2004 UT 5, ¶ 29 (alteration in 

original) (citation and internal quotation marks omitted). ‚*I+f 

there is any evidence, however slight or circumstantial, which 

tends to show guilt of the crime charged or any of its degrees, it 

is the trial court’s duty to submit the case to the jury.‛ Id. ¶ 33 
State v. Bossert

20130842-CA 7 2015 UT App 275

(alteration in original) (citation and internal quotation marks 

omitted).

¶16 The child endangerment statute provides that a person 

who ‚knowingly or intentionally causes or permits a child . . . to 

be exposed to, inhale, ingest, or have contact with a controlled 

substance, chemical substance, or drug paraphernalia‛ is guilty 

of a third degree felony. Utah Code Ann. § 76-5-112.5(2)(a).

Thus, to survive Defendant’s motion for directed verdict, the 

State was required to produce believable evidence that 

Defendant (1) knowingly or intentionally, (2) caused or 

permitted Son, (3) ‚to be exposed to, inhale, ingest, or have 

contact with a controlled substance, chemical substance, or drug 

paraphernalia.‛ See id. After reviewing the evidence presented in 

this case, we conclude that there was sufficient evidence for the 

trial court to submit the case to the jury.

¶17 As a preliminary matter, we consider whether the trial 

court was bound by the definitions in the jury instructions in 

ruling on Defendant’s motion for directed verdict. More 

specifically, we consider whether the definitions of ‚cause‛ and 

‚permit‛ as set forth in the jury instructions were binding on the 

court as it considered Defendant’s motion for directed verdict. 

The jury instructions defined ‚cause‛ as ‚to compel by 

command, authority, or force‛ and ‚permit‛ as ‚to consent to 

expressly or formally.‛ The State contends that the juryinstruction definitions are irrelevant because Defendant is only 

contesting the trial court’s denial of his motion for directed 

verdict and not the sufficiency of the evidence to support the 

jury’s verdict under the instructions given. 

¶18 We conclude that in considering Defendant’s motion for 

directed verdict, the trial court was not bound by the juryinstruction definitions of ‚cause‛ and ‚permit.‛ To begin with, 

in making his motion for a directed verdict, Defendant did not 

argue that the trial court was bound by the jury-instruction 

definitions. Nor had the instructions been given to the jury at 
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20130842-CA 8 2015 UT App 275

that point in time.3 But in any event, in ruling on a motion for 

directed verdict, a trial court ‚may deny *the+ motion . . . if the 

State has produced ‘believable evidence of all the elements of the 

crime charged.’‛ Skousen, 2012 UT App 325, ¶ 6 (quoting 

Montoya, 2004 UT 5, ¶ 29). Thus, a trial court’s directed-verdict 

inquiry is guided not by the jury instructions that will later be 

given to the jury, but by the elements of the crime as defined by 

the applicable law, i.e., the statutory provisions establishing and 

defining the offense. Consequently, even though the jury 

instructions had been discussed in a pretrial conference, and 

even if they were preliminarily or definitively approved, the trial 

court was not bound by the jury instructions in considering 

Defendant’s motion for a directed verdict.

¶19 On appeal, ‚*w+e will uphold the trial court’s decision *on 

a motion for directed verdict] if, upon reviewing the evidence 

and all inferences that can be reasonably drawn from it, we 

conclude that some evidence exists from which a reasonable jury 

could find that the elements of the crime had been proven 

beyond a reasonable doubt.‛ Montoya, 2004 UT 5, ¶ 29 (first 

 

3. While it is undisputed that the jury instruction containing 

Defendant’s definitions of ‚cause‛ and ‚permit‛ had not yet 

been read to the jury at the time of Defendant’s motion for 

directed verdict, it is less clear whether the instruction had been 

conclusively approved by the trial court, because the pretrial 

discussion of the jury instructions was not transcribed and is not 

before us as part of the record on appeal. Indeed, it is unclear 

whether the pretrial discussion of the jury instructions was ever 

recorded in the first place. Hopefully it was. See Briggs v. 

Holcomb, 740 P.2d 281, 283 (Utah Ct. App. 1987) (‚Although 

consistently making a record of all proceedings imposes a 

greater burden on the trial court and court reporters, it is 

impossible for an appellate court to review what may ultimately 

prove to be important proceedings when no record of them has 

been made.‛) (footnote omitted).
State v. Bossert

20130842-CA 9 2015 UT App 275

alteration in original) (citation and internal quotation marks 

omitted). Therefore, our inquiry on appeal is guided by the 

statutes establishing and defining the offense and not by the 

standards described in the jury instructions. See United States v. 

Inman, 558 F.3d 742, 748 (8th Cir. 2009) (‚‘[I]n determining 

whether a trial court has erred in denying a motion for a directed 

verdict made at the close of the evidence, it is the applicable law 

which is controlling, and not what the trial court announces the 

law to be in [its] instructions.’‛) (quoting Coca Cola Bottling Co. of 

Black Hills v. Hubbard, 203 F.2d 859, 862 (8th Cir. 1953)). 

Accordingly, in reviewing Defendant’s challenge to the denial of 

his motion for directed verdict, we examine the evidence 

introduced at trial regarding whether Defendant endangered 

Son and compare it to the statutory elements of the offense as 

established in section 76-5-112.5 of the Utah Code.

¶20 We start by addressing the third element of the child 

endangerment statute—the ‚exposed to‛ portion. See Utah Code 

Ann. § 76-5-112.5(2)(a). In relevant part, the statute defines 

‚exposed to‛ as ‚able to access or view an unlawfully possessed 

. . . controlled substance‛ or as ‚the reasonable capacity to access 

drug paraphernalia.‛ Id. § 76-5-112.5(1)(e). In State v. Gallegos, 

2007 UT 81, 171 P.3d 426, the Utah Supreme Court held that 

for a child to be exposed to . . . a controlled 

substance, chemical substance, or drug 

paraphernalia under the child endangerment 

statute, a real, physical risk of harm to the child 

must exist. In order for the risk to be real, the child 

must have a reasonable capacity to actually access 

or get to the substance or paraphernalia or to be 

subject to its harmful effects, such as by inhalation 

or touching.

Id. ¶ 11 (omission in original) (internal quotation marks 

omitted).
State v. Bossert

20130842-CA 10 2015 UT App 275

¶21 In this case, the State presented ample evidence that Son 

was ‚exposed to‛ meth and marijuana. To begin with, Son was 

consistently able to access drugs while he was living in 

Defendant’s house. See supra ¶¶ 2–4. But more importantly, on 

the day in question—February 7, 2012—Son ‚actually 

access*ed+‛ meth and marijuana in Defendant’s drawer and he 

inhaled or ingested both drugs. See Gallegos, 2007 UT 81, ¶ 11. 

Indeed, when the police took Son to the hospital, he tested 

positive for both meth and marijuana, and he admitted to the 

police that he had gotten the drugs from Defendant’s house.

Consequently, there is no real dispute as to whether Son was 

‚exposed to‛ drugs. Thus, our resolution of this case turns on 

whether there was believable evidence that Defendant 

‚knowingly or intentionally‛ ‚cause[d] or permit[ted]‛ Son’s 

exposure to drugs. See Utah Code Ann. § 76-5-112.5(2)(a).

¶22 The Utah Code defines the terms ‚knowingly‛ and 

‚intentionally.‛ See id. § 76-2-103. A person acts ‚*k+nowingly, or 

with knowledge, with respect to his conduct or to circumstances 

surrounding his conduct when he is aware of the nature of his 

conduct or the existing circumstances.‛ Id. § 76-2-103(2). 

Additionally, ‚*a+ person acts knowingly, or with knowledge, 

with respect to a result of his conduct when he is aware that his 

conduct is reasonably certain to cause the result.‛ Id. A person 

acts ‚*i+ntentionally, or with intent or willfully with respect to 

the nature of his conduct or to a result of his conduct, when it is 

his conscious objective or desire to engage in the conduct or 

cause the result.‛ Id. § 76-2-103(1). At trial, both sides focused on 

whether Defendant acted knowingly, and on appeal, the State 

does not seriously assert that Defendant acted intentionally in 

this case. Accordingly, we only consider whether Defendant 

acted ‚knowingly.‛

¶23 The Utah Code does not define ‚cause‛ or ‚permit.‛ 

Thus, we must determine the proper meaning of these terms as 
State v. Bossert

20130842-CA 11 2015 UT App 275

used in the child endangerment statute.4 ‚When interpreting 

statutory language, we presume that the Legislature used each 

word advisedly, and we give effect to each term according to its 

ordinary and accepted meaning.‛ State v. Terwilliger, 1999 UT 

App 337, ¶ 10, 992 P.2d 490 (citation and internal quotation 

marks omitted). 

¶24 Webster’s Third New International Dictionary defines 

‚cause‛ as to ‚bring into existence‛ or ‚to effect by command, 

authority, or force.‛ Webster’s Third New Int’l Dictionary 356 

(1993). Cf. State v. Wheeler, 2005 UT App 255U, paras. 3, 5 

(affirming the defendant’s conviction for ‚knowingly caus*ing+ 

or encourag*ing+‛ his son’s delinquency where ‚*t+he evidence 

reflect[ed] that [the defendant] knew or should have known that 

by allowing the two separate visits [by his son] he caused or 

encouraged the son to violate [an] agreement with Youth 

Corrections‛).

¶25 Additionally, Webster’s defines ‚permit‛ as ‚to consent to

expressly or formally[, or to] grant leave for or the privilege 

of[, or to] allow, tolerate[;] . . . to give (a person) leave [or to]

 

4. We note that absent a statutorily mandated definition of a 

term, the definition that applies in any particular case is not 

carved in stone. ‚In determining the ordinary meaning of 

nontechnical terms of a statute, our starting point is the 

dictionary.‛ State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517 

(citation and internal quotation marks omitted). But the 

dictionary ‚will often fail to dictate what meaning a word must 

bear in a particular context.‛ Id. (emphasis in original) (citation 

and internal quotation marks omitted). Rather, the definition 

that applies in a particular context is often a function of the facts 

and surrounding circumstances. And opinions will often vary as 

to the best approach for ferreting out the legislatively intended 

meaning of statutory terms. See, e.g., State v. Rasabout, 2015 UT 

72, 356 P.3d 1258.
State v. Bossert

20130842-CA 12 2015 UT App 275

authorize*;+ . . . to make possible *or+ to give an opportunity.‛ 

Webster’s Third New Int’l Dictionary 1683 (1993).5In State v. 

Terwilliger, 1999 UT App 337, 992 P.2d 490, this court determined 

that the term ‚permits‛ ‚suggests some measure of control or 

participation—in other words, active or knowing acquiescence.‛ 

Id. ¶ 11.

¶26 In Terwilliger, the defendant, an eighteen-year-old adult 

minor, see id. ¶ 3 n.1, was charged with contributing to the 

delinquency of a minor and unlawful purchase, possession, or 

consumption of alcohol by a minor after police officers found 

him drinking with two minors under the age of eighteen. See id. 

¶¶ 3, 5, 12. After a bench trial, the trial court found that the 

defendant ‚permit*ted+ someone under the age of eighteen to 

consume an alcoholic beverage‛ and that he was guilty of both 

charges. Id. ¶ 5. The trial court ‚based its ruling on the fact that 

defendant simply witnessed two minors in his presence 

consuming alcohol.‛ Id. ¶ 12.

¶27 On appeal, the defendant challenged the sufficiency of the 

evidence to support his conviction of contributing to the 

delinquency of a minor under section 78-3a-801 of the Utah 

Code.6Id. ¶ 1. More specifically, he argued that ‚the trial court 

 

5. We acknowledge that Webster’s Third New International 

Dictionary includes Defendant’s argued-for definition of 

‚permit,‛ i.e., ‚to consent to expressly or formally.‛ Webster’s 

Third New Int’l Dictionary 1683 (1993). However, this definition is 

one of many and does not necessarily control.

6. Under section 78-3a-801 of the Utah Code, ‚*t+he court shall 

have concurrent jurisdiction to try . . . any person 18 years of age 

or older who . . . encourages or permits a minor to consume an 

alcoholic beverage or controlled substance.‛ Utah Code Ann. 

§ 78-3a-801(1)(d)(ii) (Michie 1996) (renumbered in 2008 as Utah 

Code Ann. § 78A-6-1001 (LexisNexis 2012)).
State v. Bossert

20130842-CA 13 2015 UT App 275

erred when it found that defendant’s mere presence at the 

drinking party was tantamount to ‘permitting’ minors to 

consume alcohol, which the applicable statute prohibits.‛ Id. ¶ 7. 

¶28 This court concluded that the plain language of section 

78-3a-801 did not support the prosecution or the conviction of 

the defendant, who had ‚merely see*n+ others violate the law.‛ 

Id. ¶ 12. Rather, the defendant had to have ‚some measure of 

control over the minors’ consumption of alcohol.‛ Id. (emphasis 

added). In Terwilliger, there was no evidence that the defendant 

and the minors had a relationship or that the defendant had 

provided the alcohol to the minors. Id. ¶¶ 3–4, 12. Cf. State v. 

Wheeler, 2005 UT App 255U, para. 4 (distinguishing Terwilliger, 

where the defendant ‚did not have a relationship or any prior 

involvement with the minor,‛ from the case at hand, where the 

defendant was the minor’s father, ‚thereby giving *him+ greater 

control and understanding of the situation‛) (internal quotation 

marks omitted). Consequently, the Terwilliger court determined 

that the clear weight of the evidence did not support a finding 

that the defendant permitted minors to consume alcohol and 

vacated the defendant’s conviction for contributing to the 

delinquency of a minor. See 1999 UT App 337, ¶ 13. 

¶29 Although Defendant’s requested definition of ‚permit‛ as 

‚to consent to expressly or formally‛ is included in the 

dictionary, see supra ¶ 25 & n.5, we decline to adopt this 

definition because we do not think that such a narrow definition 

of the term is legislatively intended under the child 

endangerment statute. We agree with the Terwilliger court’s 

interpretation of ‚permit‛ as requiring ‚some measure of control 

or participation—in other words, active or knowing 

acquiescence.‛ See Terwilliger, 1999 UT App 337, ¶ 11. We 

therefore employ this definition in considering Defendant’s 

appeal. In addition, we use the dictionary definition of the term 

‚cause,‛ along the lines employed in Wheeler. See supra ¶ 24. In 

light of these definitions, we next determine whether there was 

sufficient evidence to support a reasonable belief that Defendant 
State v. Bossert

20130842-CA 14 2015 UT App 275

knowingly caused or permitted Son to be exposed to drugs. 

Defendant contends that he could not have knowingly caused or 

permitted Son to access the drugs in his drawer since he ‚was 

asleep because it was three or four in the morning.‛ We disagree.

¶30 In this case, Son’s actions on the morning of February 7, 

2012, cannot be viewed in isolation. Defendant had created an 

atmosphere within his home in which drug use was open and 

prevalent. As previously discussed, Defendant sold drugs from 

his home, and he and his friends frequently used drugs in front 

of Son and left drugs and drug paraphernalia in plain view, 

where Son could easily access them. See supra ¶¶ 2–4. Defendant 

and his friends also discussed meth with Son and answered 

Son’s questions about meth. Defendant frequently gave 

marijuana to Son. In general, Defendant countenanced a thriving 

drug culture within his home, and Son was continuously 

surrounded by and familiar with that culture.

¶31 Moreover, Defendant knew about Son’s frequent drug use 

and continued to enable it. Son testified at trial that Defendant 

gave him marijuana ‚[t]wenty-five to 30 times,‛ including on the 

night Son went into Defendant’s bedroom to get drugs out of his 

drawer. Instead of discouraging Son’s use of marijuana, Son 

testified that Defendant told him ‚not to get caught because I 

would get him in trouble and me in trouble . . . and he’d lose 

me.‛ Although Defendant yelled at Son after he found out that 

Son had used meth, Defendant still allowed drug users to come 

into his house, and he did nothing to prohibit Son from 

accessing drugs within the house. 

¶32 Finally, Defendant kept his drugs in a readily accessible 

place—an unlocked bureau drawer where Son knew Defendant 

kept his drugs. Son testified that when he went looking for drugs 

in the early morning hours of February 7, 2012, he ‚went straight 

to *Defendant’s+ drawer‛ because he ‚knew that *Defendant+ 

would have *drugs+ in his room‛ and that Defendant ‚keeps all 

of his pipes and stuff in his room.‛ That same night, Son easily
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20130842-CA 15 2015 UT App 275

found a meth pipe sitting on a counter in the front room of 

Defendant’s house. 

¶33 This evidence suggests that Defendant continuously kept 

drugs and drug paraphernalia in his house in places that were 

readily accessible to Son and that Son actually accessed drugs 

and drug paraphernalia on multiple occasions. Unlike the 

situation in Terwilliger, in which several young people showed 

up to a party to drink together, see Terwilliger, 1999 UT App 337, 

¶¶ 3–4, Defendant and Son were in a parent–child relationship. 

Thus, Defendant had more than the requisite ‚some measure of 

control‛ over Son’s exposure to drugs. See id. ¶ 12. As Son’s 

father, and with Son being only ten years old, Defendant had 

absolute control over Son’s exposure to drugs within his home. 

Defendant could have prevented his friends from using drugs 

within the home and from giving drugs to Son, he could have 

refrained from using drugs in the home, and he could have 

stopped giving Son drugs. At the very least, he could have 

physically secured any illegal drugs he brought into the home. 

Yet Defendant continuously and willfully allowed his friends to 

use drugs within the home, allowed Son to use marijuana within 

the home, provided Son with marijuana on multiple occasions, 

and left both marijuana and meth in an unlocked drawer where 

they were easily accessible. 

¶34 Although Defendant did not give his express permission 

for Son to take the drugs from his drawer on the morning of

February 7, 2012, Defendant had established an environment in 

which it was acceptable for Son to participate in the thriving 

drug culture Defendant promoted, and Defendant’s sustained

pattern of conduct sent a clear message to Son that Defendant 

‚knowing*ly+ acquiesc*ed+‛ in Son’s use of and exposure to 

drugs, thereby ‚permitting‛ it for purposes of the statute. See id.

¶ 11. Furthermore, Defendant caused Son to be exposed to 

drugs—Defendant’s sustained pattern of giving Son drugs and 

communicating to Son that it was okay for him to use marijuana, 

ultimately and unsurprisingly ‚br[ought] into existence‛ Son’s 
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20130842-CA 16 2015 UT App 275

exposure to drugs on February 7, 2012, and on multiple other 

occasions. See Webster’s Third New Int’l Dictionary 356 (1993) 

(defining ‚cause‛).

¶35 Based on the foregoing, we conclude that there was 

‚some evidence . . . from which a reasonable jury could find,‛ see 

State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (citation and 

internal quotation marks omitted), that Defendant knowingly 

caused or permitted Son to be exposed to drugs as proscribed by

the child endangerment statute, see Utah Code Ann. § 76-5-112.5. 

Defendant’s ‚conduct *was+ reasonably certain to cause the 

result‛ that Son would be exposed to drugs. See id. § 76-2-103(2) 

(defining ‚knowingly‛). Moreover, Defendant’s pattern of 

conduct relating to Son’s drug use was sufficient to establish that 

he caused or permitted Son to be exposed to drugs. See supra 

¶¶ 33–34; Utah Code Ann. § 76-5-112.5(1)(e). Consequently, we 

conclude that the State introduced sufficient evidence to prove

that Defendant knowingly caused or permitted Son to be 

exposed to meth and marijuana.7 The trial court did not err in 

denying Defendant’s motion for directed verdict. 

II. Denial of Motion to Arrest Judgment

¶36 Defendant next argues that the trial court erred when it 

denied his motion to arrest judgment. Specifically, he contends 

that the trial court disregarded ‚persuasive evidence‛ of 

improper contact between a testifying detective and the jury. 

 

7. If the child endangerment statute required intentional 

exposure, this would be a much closer case. However, the statute 

provides two different ways to satisfy the first element: either by 

knowingly exposing a child to drugs or intentionally exposing a

child to drugs. See Utah Code Ann. § 76-5-112.5(2)(a) (LexisNexis 

2012). The State’s evidence need only satisfy one of the mens rea 

alternatives to survive a motion for a directed verdict, and it 

readily satisfied the ‚knowing‛ alternative. 
State v. Bossert

20130842-CA 17 2015 UT App 275

¶37 In support of his motion to arrest judgment, Defendant 

submitted affidavits from four trial attendees, all of whom were 

Defendant’s friends, each of which stated that the bailiff called a 

testifying detective to go to the jury room to answer a question 

for the jurors. In response, the State submitted an affidavit from 

an investigator with the Salt Lake County District Attorney’s 

Office, who had interviewed both the detective and the bailiff. 

The detective told the investigator that ‚he had not spoken to 

any member of the jury in this case at any time.‛ He also stated 

that he went ‚to one of the clerk’s work stations with the bailiff 

to check the state record . . . to determine if [Defendant] had an 

outstanding warrant for his arrest‛ and that ‚this occurred 

before a verdict in the case and may have been during jury 

deliberations, but *he+ was not sure of the timing.‛ Although the 

bailiff was initially unsure to which case the investigator was 

referring, he ultimately told the investigator that he knew with 

‚certainty‛ that ‚he did not allow anyone to speak to the jury as 

they deliberated‛ ‚because it would violate the rules of conduct 

and he has never allowed such activity in any case where he has 

had a jury in his charge.‛ The bailiff also recalled using a clerk’s 

work station to check for a warrant, but he did not recall if the 

detective was present. 

¶38 After reviewing the parties’ affidavits, the trial court 

asked whether either party wanted an evidentiary hearing on 

the matter:

[Trial court]: And so I have received documents 

from both sides. Does any—do either party believe 

an evidentiary hearing or anything further is 

needed?

[Prosecutor]: No, your Honor.

[Defendant’s trial counsel]: No, your Honor. The 

Court received the affidavits [I] submitted, I guess, 

two weeks ago?
State v. Bossert

20130842-CA 18 2015 UT App 275

*Trial court+: Yes, I’ve reviewed all that and I’ve 

received from the State as well.

*Defendant’s trial counsel]: So I would submit it on 

the motion I filed as well as the affidavits. 

¶39 Additionally, the trial court took judicial notice, without 

objection, to the fact that the door ‚near the jury box does not 

lead into a jury room; it leads into a hallway.‛ The court then 

denied Defendant’s motion, stating that

[n]o witness testified that he or she witnessed any 

interaction between the jury and the witness but 

only by inference and speculation likely surmising 

that the door by the jury box leads directly into the 

jury room. 

There is no evidence of contact between the 

witness and the jury, only evidence that the 

witness utilized the same door that the jury had 

used. So here, no evidence of unauthorized 

conduct is present. The witnesses who had direct 

personal knowledge testified that no contact 

between the [detective] and the jury took place. 

The witnesses who have personal knowledge 

indicate that [the detective] did use the same door 

as the jury but that he did so to access a computer 

in the hallway directly outside of that door.

So the Court finds that there’s no evidence of 

improper jury contact that was made, and so 

there’s no presumption *of] prejudice attaching to 

that and as such I’m denying the motion. 

¶40 Utah courts ‚have long taken a strict approach in assuring 

that the constitutional guarantee of a fair trial not be 

compromised by improper contacts between jurors and 
State v. Bossert

20130842-CA 19 2015 UT App 275

witnesses, attorneys, or court personnel.‛ State v. Pike, 712 P.2d 

277, 279 (Utah 1985). ‚The rule in this jurisdiction is that 

improper juror contact with witnesses or parties raises a 

rebuttable presumption of prejudice.‛ Id. at 280. This 

presumption arises when there is any ‚unauthorized contact . . . 

which goes beyond a mere incidental, unintended, and brief 

contact.‛ Id. Implicit in this approach is the idea that the 

presumption of prejudice attaches only after it is established that 

improper jury contact actually occurred. We conclude that the 

trial court’s factual findings were supported by competent 

evidence and that the court did not abuse its discretion in 

denying Defendant’s motion to arrest judgment. 

¶41 In this case, Defendant’s affiants did not actually witness 

a conversation between the detective and the jury; they merely 

witnessed the detective and the bailiff walk through the same

door near the jury box, and they apparently assumed that the 

bailiff took the detective to the jury room. But, as the trial court 

judicially noticed, the door near the jury box did not lead 

directly into the jury room but into a hallway. Thus, Defendant’s 

affidavits might have suggested the possibility of improper jury 

contact, but because of Defendant’s assurance that an 

evidentiary hearing was unnecessary, neither the detective, the 

bailiff, nor any of the jurors were called to testify or were 

questioned by the trial court about the theorized improper 

contact. Moreover, the only witnesses directly involved—the 

detective and the bailiff—denied that any improper contact with 

the jury occurred, thus dispelling any inference of improper 

contact suggested by Defendant’s affiants.

¶42 Because there was no direct evidence of improper contact 

between the detective and the jury, no presumption of prejudice 

arises in this case. Consequently, the trial court did not abuse its 

discretion by denying Defendant’s motion to arrest judgment. 
State v. Bossert

20130842-CA 20 2015 UT App 275

CONCLUSION

¶43 The trial court did not err when it denied Defendant’s 

motion for directed verdict. Nor did the court abuse its 

discretion when it denied Defendant’s motion to arrest 

judgment. Accordingly, Defendant’s convictions are affirmed.