State v. Rivera

954 P.2d 225, 336 Utah 13, 336 Utah Adv. Rep. 13, 1998 Utah App. LEXIS 8, 1998 WL 54606
CourtCourt of Appeals of Utah
DecidedFebruary 12, 1998
DocketNo. 930154-CA
StatusPublished
Cited by4 cases

This text of 954 P.2d 225 (State v. Rivera) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rivera, 954 P.2d 225, 336 Utah 13, 336 Utah Adv. Rep. 13, 1998 Utah App. LEXIS 8, 1998 WL 54606 (Utah Ct. App. 1998).

Opinion

OPINION

HOWE, Associate Chief Justice:

This case is again before us on remand from the supreme court.

BACKGROUND

In August 1992, the State charged defendant Danny Rivera by an information with count I, aggravated robbery; count II, possession of a dangerous weapon by a restricted person; and count III, failure to respond to an officer’s signal to stop. At a preliminary hearing on these charges, Rivera moved to dismiss counts I and II. The magistrate denied his motion and bound him over to stand trial on all three counts. In the district court, he moved to quash the bindover, but the motion was denied. Thereafter, he entered a conditional no contest plea to count II of the information, possession of a dangerous weapon by a restricted person, a second degree felony, and counts I and III were dismissed as part of a plea agreement with the prosecutor. As part of his no contest plea, he explicitly reserved his right to appeal the adverse ruling on his motion to quash the bindover on counts I and II.

On appeal, this court held that the trial court erred in accepting Rivera’s conditional no contest plea. We vacated the plea and remanded the case for trial. State v. Rivera, 871 P.2d 1023 (Utah Ct.App.1994). However, the supreme court granted certiorari, State v. Rivera, 892 P.2d 13 (Utah 1995), reversed this court, and remanded the case to us for further consideration. On remand, we affirmed the trial court’s refusal to quash the bindover on count II but refused to review the trial court’s failure to quash the bindover on count I because that charge had been dismissed and Rivera had not entered a plea to that count. State v. Rivera, 906 P.2d 318 (Utah Ct.App.1995). The supreme court again granted certiorari, State v. Rivera, 917 P.2d 556 (Utah 1996), reversed this court, and remanded this case to us for consideration of the trial court’s denial of Rivera’s motion to quash the bindover on count I, aggravated robbery. State v. Rivera, 943 P.2d 1344 (Utah 1997). We now consider whether the trial court erred in denying Rivera’s motion to quash the bindover on count I.

FACTS

The charges against Rivera arise out of the June 1992 robbery of a Top Stop convenience store in Salt Lake County. The robber showed Brenda Kilgrow, the convenience store cashier, a gun and demanded money from the cash register. The robber then fled on foot, heading north on West Temple Street. Kilgrow called the police and described the robber as a young Hispanic male, wearing a black T-shirt, black sweat pants, black Reebok shoes, no socks, and a dark baseball hat.

Shortly after the robbery, Officer Dusten Hansen spotted a truck that was heading north on West Temple Street, about five blocks from the convenience store. He noticed that the driver of the truck fit the general description of the robber that was given by the police dispatcher. He pulled [227]*227behind the truck and turned on his overhead lights, signaling the driver to pull over. However, the driver did not pull over and began to accelerate to speeds of 60 to 70 miles an hour. The truck eventually crashed into a bus stop bench, and the driver fled on foot. Officer Hansen parked his own vehicle and chased after the driver on foot. The driver then returned to the scene of the wreck, unsuccessfully attempted to start Officer Hansen’s vehicle, and then tried to jump into a slow moving car that was passing by. The driver was ultimately apprehended and identified as defendant Danny Rivera.

The police searched Rivera’s truck and found a Ruger P85 9mm handgun and a dark blue New York Yankees baseball cap inside the cab. Rivera was a young-looking, Hispanic male and wore clothing matching Kil-grow’s description of the robber. Officer Chris Snyder brought Kilgrow back to where Rivera was being detained. The morning was bright and Kilgrow did not have trouble seeing him. He was handcuffed and was forced to face her. She positively identified him as the robber.

Several months after the robbery, Kilgrow attended a police lineup. Rivera was not included in the lineup,2 and Kilgrow identified another individual as the robber. However, at the preliminary hearing, Kilgrow testified that she had not been certain about her selection at the lineup.

ANALYSIS

The ultimate decision “to bind a defendant over for trial presents a question of law, which we review de novo without deference.” State v. Jaeger, 896 P.2d 42, 44 (Utah Ct.App.1995) (citing State v. Humphrey, 823 P.2d 464, 466 (Utah 1991)). The parties agree that “[t]he probable cause showing at the preliminary examination must establish a prima facie ease against the defendant from which the trier of fact could conclude the defendant was guilty of the offense as charged.” State v. Anderson, 612 P.2d 778, 783 (Utah 1980). While this case has been pending on appeal, the Utah Supreme Court has explained this standard further. In State v. Pledger, 896 P.2d 1226 (Utah 1995), the court stated that “[i]n making a determination as to probable cause, the magistrate should view the' evidence in a light most favorable to the prosecution and resolve all inferences in favor of the prosecution.” Id. at 1229 (citations omitted). The court also explained that “ ‘[u]nless the evidence is wholly lacking and incapable of reasonable inferences to prove some issue which supports the [prosecution’s] claim,’ the magistrate should bind the defendant over for trial.” Id. (quoting Cruz v. Montoya, 660 P.2d 723, 729 (Utah 1983)). With these principles in mind, we turn to the evidence introduced by the prosecution at the preliminary hearing to determine if it was sufficient to establish probable cause and bind Rivera over for trial on the aggravated robbery charge.

At the-preliminary hearing, the prosecution introduced evidence that Rivera matched Kilgrow’s description of the robber. It is undisputed that Rivera is a young-looking Hispanic male. Furthermore, at the time of his arrest, he was wearing a black shirt, black sweat pants, black tennis shoes, and no socks. Nevertheless, Rivera contends that Kilgrow’s description of the robber does not accurately match him. He argues that although he was wearing black tennis shoes, they were not Reeboks, as described by Kilgrow. He also points out that Kilgrow’s description of the baseball hat allegedly worn by the robber did not include the obvious white New York Yankees insignia or white stripes found on the hat in his truck. Although Rivera’s points are accurate, they merely point out conflicts and inconsistencies in the evidence. As we explained above, the magistrate was required to resolve such conflicts and inconsistencies in favor of the prosecution. See Pledger, 896 P.2d at 1229; see also Jaeger, 896 P.2d at 45-46 (holding that the “magistrate should not have decided issues [against the prosecution] [228]*228where the evidence was in conflict”).

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Bluebook (online)
954 P.2d 225, 336 Utah 13, 336 Utah Adv. Rep. 13, 1998 Utah App. LEXIS 8, 1998 WL 54606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rivera-utahctapp-1998.