State v. Lomu

2014 UT App 41, 321 P.3d 243, 755 Utah Adv. Rep. 31, 2014 WL 783754, 2014 Utah App. LEXIS 47
Court of Appeals of Utah·Decided February 27, 2014·No. No. 20110759-CA·Published·Cited by 22 cases

Opinion

ORME, Judge:

11 Defendant Pailate Lomu appeals his conviction on a charge of aggravated robbery. See Utah Code Ann. § 76-2-202 (LexisNexis 2012); id. § 76-6-802. He argues that there was insufficient evidence to support his conviction and that the court erred when admitting evidence of other bad acts under rule 404(b) of the Utah Rules of Evidence. We affirm.

BACKGROUND 1

12 In April 2010, Defendant and another man entered a Maverik convenience store in West Valley City shortly before 8:80 a.m. They went directly to the cooler section, where Defendant picked up a case of Budweiser beer. The other man then stood by the door while Defendant approached the [247] store clerk at the counter. The store clerk later testified that the man by the door was acting in a suspicious manner, alternately watching Defendant and looking outside. The store clerk informed the men that he was going to deny the sale because it was after 1:00 a.m. Defendant offered the clerk $100 for the beer anyway, and the clerk refused. At some point during the clerk's interaction with Defendant, the man at the door raised his shirt slightly, moved his hand to his hip, and informed the clerk he had a gun. Defendant then grabbed the beer, retained his $100 bill, and fled with the other man in a car driven by an unidentified individual. The store clerk called the police. The incident was captured by multiple surveillance cameras located in the store.

138 At trial, the store clerk testified regarding his own memory of the events, and portions of the video surveillance footage from the incident were shown to the jury. Defendant moved for a directed verdict based on insufficiency of the evidence, arguing that because the video surveillance did not contain audio it could not confirm the threat and that the store clerk's testimony was so inconsistent as to make it wholly incredible. The trial court denied the motion, stating that the store clerk's testimony was "sufficient enough to render it to be a decision of fact for the jury."

14 Evidence was also submitted to the jury, over Defendant's objections, of another after-hours beer robbery involving Defendant that occurred less than two months later at another Maverik store in West Valley City.2 Defendant argued that there was no proper noncharacter purpose for admitting the evidence and that it was highly prejudicial. The trial court, however, determined that the evidence could be properly admitted under rule 404(b) of the Utah Rules of Evidence to show "plan, motive, intent, and purpose."

T5 The jury convicted Defendant, who conceded he was guilty of shoplifting, of the much more serious offense of aggravated robbery. He appeals the conviction.

ISSUES AND STANDARDS OF REVIEW

$6 Defendant argues that the evidence was insufficient to support his aggravated robbery conviction. We will affirm a trial court's denial of a motion for dismissal made on the basis of insufficient evidence "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." State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989).

T7 Defendant next argues that the trial court abused its discretion by admitting evidence under rule 404(b) of the Utah Rules of Evidence of another beer robbery in which Defendant took part. We review a decision to admit evidence of other acts under rule 404(b) for an abuse of discretion.. State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120.

ANALYSIS

I. Insufficiency of the Evidence

18 A person is guilty of aggravated robbery if he uses or threatens to use a dangerous weapon while committing a theft, attempting a theft, or during immediate flight from a theft,. Utah Code Ann. §§ 76-6-301, -302, -404 (LexisNexis 2012). Because Defendant did not personally make a threat against the clerk, he was charged as an accomplice. The State was therefore required to prove beyond a reasonable doubt that Defendant acted "with the mental state required for the commission of an offense" and "solicitled), requested], commandfed], encourage[d], or intentionally aid[ed] another" in committing a crime. Id. § 76-2-202.3

[248] T9 Defendant claims that the evidence was insufficient to support his conviction of aggravated robbery for two reasons: (1) the store clerk's testimony was unreliable and (2) the evidence was not sufficient to show that he possessed the necessary mens rea. In determining whether the evidence presented to the jury was sufficient to support its verdict, we will "not sit as a second trier of fact." State v. Boyd, 2001 UT 30, ¶ 16, 25 P.3d 985. "So long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made," beyond a reasonable doubt, "our inquiry stops." State v. Booker, 709 P.2d 342, 345 (Utah 1985). See State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989) (noting that evidence must be such as would allow "a reasonable jury [to] find that the elements of the crime had been proven beyond a reasonable doubt").

A. - Reliability of the Store Clerk's Testimony

110 Defendant argues that the store clerk's testimony was sufficiently inconsistent as to render it "so inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt" about whether Defendant committed the crime. See State v. Gonzales, 2000 UT App 136, ¶ 10, 2 P.3d 954 (citations and internal quotation marks omitted).

11 Defendant first contends that the clerk's testimony was contradictory because the clerk offered conflicting accounts as to whether the threat of a gun was made before or after Defendant offered to pay for the beer. Defendant also claims the testimony was unreliable because the clerk had been convicted of a crime involving dishonesty nearly three decades earlier.

1 12 Defendant next argues that the clerk's testimony was refuted by the surveillance video of the incident. Defendant argues that the video footage shows no evidence of a threat and that it proves the man by the door "never spoke or opened his mouth." Also, Defendant points us to the store clerk's testimony that he raised both of his arms when threatened and that the man who made the threat was tapping his side 4 when he stated he had a gun. Defendant argues that the clerk's testimony is inconsistent with the video, which shows that the store clerk raised only one arm and that the man by the door did not tap his side.

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State v. Lomu, 2014 UT App 41, 321 P.3d 243, 755 Utah Adv. Rep. 31, 2014 WL 783754, 2014 Utah App. LEXIS 47 (Utah Ct. App. 2014).

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