State v. Garcia–Vargas

287 P.3d 474

718 Utah Adv. Rep. 47

2012 UT App 270

STATE of Utah, Plaintiff and Appellee,

v.Leonel GARCIA–VARGAS, Defendant and Appellant.

No. 20100996–CA.

Court of Appeals of Utah.

Sept. 27, 2012.

E. Rich Hawkes and Scott A. Wilson, Salt Lake City, for Appellant.

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.

Before Judges THORNE, VOROS, and CHRISTIANSEN.

OPINION

THORNE, Judge:

¶ 1 Leonel Garcia–Vargas Jr. appeals his convictions of aggravated robbery, a first degree felony, seeUtah Code Ann. § 76–6–302 (2008); robbery, a second degree felony, see id. § 76–6–301; and possession of burglary tools, a class B misdemeanor, see id. § 76–6–205. We affirm.

BACKGROUND

¶ 2 Garcia–Vargas's convictions arise from an October 2009 incident wherein Garcia–Vargas and another man, identified only as Freakin' Freddy (Freddy), entered a house and demanded money and drugs from G.T. and R.S., two individuals who lived there. According to G.T.'s trial testimony, G.T. was in his bedroom watching television when Garcia–Vargas and Freddy suddenly appeared. G.T. had never seen either of them before. Garcia–Vargas threatened him with a knife and demanded money. G.T. told the men that he did not have anything, and Garcia–Vargas began hitting him in the face, knocking him unconscious. When he regained consciousness, G.T. saw that his room had been ransacked. Garcia–Vargas and Freddy reentered the room and again demanded money. When G.T. said that he did not have any, Garcia–Vargas hit him in the face again and threatened him with the knife. Freddy, who was holding a big screwdriver, then threw a nightstand at G.T. The two intruders left, and G.T. determined that two cell phones, some gold items, and money had been taken from his room.

¶ 3 R.S. testified that he was watching television and folding clothes when Garcia–Vargas entered his room holding a knife and demanding money. Like G.T., R.S. had never seen Garcia–Vargas before. Garcia–Vargas punched R.S. and used a metal tool to hit R.S.'s head, body, and hand. Garcia–Vargas then called to Freddy, who came in and rummaged through things in the room. When the men could not find anything they wanted, they both started hitting R.S., and Freddy threw a dumbbell at R.S., dislocating his shoulder. Before leaving the house, the two men took a camera, two broken phones, a translator device, and some money.

¶ 4 Police apprehended Garcia–Vargas in a nearby parking lot shortly after the incident. When Garcia–Vargas was apprehended, he had a straightened paint can opener in his pocket, as well as a set of keys that had been modified to serve as burglary tools. He also had three cell phones with him, two of which belonged to G.T. and R.S. Police also found a backpack near the scene bearing the logo of Garcia–Vargas's former employer and containing two more cell phones, an English–Spanish translator, and various tools including a knife, three screwdrivers, and a pair of pliers.

¶ 5 Garcia–Vargas was charged with two counts of aggravated robbery and one count of possession of burglary tools. At trial, the State explicitly argued that Garcia–Vargas had committed the aggravated robbery offenses as a party to the offense under principles of accomplice liability. See generallyUtah Code Ann. § 76–2–202 (2008) (“Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.”). The jury was also instructed on the State's accomplice liability theory.

¶ 6 Garcia–Vargas did not testify at his jury trial, but the State presented the version of events that he had given to police following his arrest. According to Garcia–Vargas's statement to police, he had only met Freddy the night before the incident, and the two had used methamphetamine together. The next day, Freddy told Garcia–Vargas that he knew where to get more of the drug and led Garcia–Vargas to G.T. and R.S.'s house. Garcia–Vargas and Freddy entered the house through an unlocked side door of the garage, which Garcia–Vargas assumed was by permission. Inside the garage, Garcia–Vargas saw two unattended cell phones. He took the phones and put them in his pocket, intending to steal them.

¶ 7 Garcia–Vargas and Freddy then went to the living quarters of the home, where Freddy “starts to immediately ransack the place and ask where the [drugs were].” Freddy hit G.T., apparently knocking him down, and told Garcia–Vargas to watch G.T. Although Garcia–Vargas said he “didn't know what to do” at this point, he did watch G.T. while Freddy ransacked the house and alerted Freddy when G.T. got up. As Garcia–Vargas was alerting Freddy, G.T. struck Garcia–Vargas in the back, and Garcia–Vargas turned and punched him in the face. Garcia–Vargas then joined Freddy downstairs and witnessed him throw a dumbbell at R.S. Garcia–Vargas also threw a cell phone at R.S., thinking that R.S. had used the phone to call the police. Garcia–Vargas then told Freddy that the police may have been called and that they should go, and the two men left the house.

¶ 8 Near the end of trial, Garcia–Vargas's counsel requested that the district court instruct the jury on the lesser-included offenses of robbery, theft, assault, and aggravated assault. The court agreed to instruct the jury on robbery but refused to give instructions on theft, assault, or aggravated assault. The district court reasoned that there was “not a rational basis for separating [the theft and assault offenses] into individual offenses.” The jury found Garcia–Vargas guilty of robbery as to G.T., aggravated robbery as to R.S., and possession of burglary tools.

ISSUE AND STANDARD OF REVIEW

¶ 9 Garcia–Vargas argues that the district court erred when it denied his request for jury instructions on the crimes of theft, assault, and aggravated assault as lesser included offenses of aggravated robbery. “A trial court's refusal to grant a lesser included offense instruction is a question of law, which we review for correctness.” State v. Powell, 2007 UT 9, ¶ 12, 154 P.3d 788.

ANALYSIS

¶ 10 Garcia–Vargas argues that the evidence presented at trial entitled him to a jury instruction on the crimes of theft, assault, and aggravated assault as lesser included offenses of the aggravated robbery charges against him. Upon a defendant's request, a lesser included offense instruction “must be given if (i) the statutory elements of greater and lesser included offenses overlap ... and (ii) the evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” State v. Spillers, 2007 UT 13, ¶ 12, 152 P.3d 315 (omission in original) (internal quotation marks omitted); see also State v. Baker, 671 P.2d 152, 157–59 (Utah 1983) (adopting an “evidence-based” standard for instructing on lesser included offenses). Garcia–Vargas argues that both prongs of the test were satisfied in this case and that the district court erred when it failed to give the requested instructions.

¶ 11 The State does not dispute that, under the circumstances of this case, the crimes of theft, assault, and aggravated assault were lesser included offenses to the charged aggravated robbery offenses because the elements of the offenses overlap.¹See generally State v. Kruger, 2000 UT 60, ¶ 12, 6 P.3d 1116 (enumerating the three tests for an included offense, including that “ ‘[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged’ ” (quoting Utah Code Ann. § 76–1–402(3)(a) (1995))). We therefore proceed to the second prong of the applicable test and examine whether “there is evidence to justify acquittal of the greater offense and conviction of the lesser offense.” See id. ¶ 15;cf. Spillers, 2007 UT 13, ¶ 12, 152 P.3d 315 (“Because neither party disputes the first prong of the lesser included offense test—that the statutory elements of manslaughter and murder overlap—the only issue before this court is whether there is a rational basis to acquit Defendant of murder and convict him of manslaughter.”).

¶ 12 In this case, the charged offenses were two counts of aggravated robbery. “A person commits aggravated robbery if in the course of committing robbery, he: (a) uses or threatens to use a dangerous weapon ... [or] (b) causes serious bodily injury upon another....” Utah Code Ann. § 76–6–302(1) (2008). A person commits robbery when “the person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person, or immediate presence, against his will, by means of force or fear, and with a purpose or intent to deprive the person permanently or temporarily of the personal property,” id. § 76–6–301(1)(a), or “the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft or wrongful appropriation,” id. § 76–6–301(1)(b). An act is considered to be “in the course of committing” a robbery, theft, or wrongful appropriation if it occurs in an attempt to commit, during the commission of, or in the immediate flight after the attempt or commission of a robbery, theft, or wrongful appropriation. See id. §§ 76–6–301(2), –302(3).

¶ 13 At trial, the jury was presented with two basic versions of events. Under the victims' version, Garcia–Vargas clearly committed two acts of either robbery or aggravated robbery by attempting to take property from G.T. and R.S. by force or fear.² We see no support in either G.T. or R.S.'s testimony for the conclusion that Garcia–Vargas committed only theft, or only assault or aggravated assault, but not the charged robbery offenses, and Garcia–Vargas does not argue otherwise. Rather, Garcia–Vargas's arguments on appeal arise from his...