State v. Oseguera-Lopez

473 P.3d 196

STATE of Utah, Appellee,

v.Rogelio OSEGUERA-LOPEZ, Appellant.

No. 20190176-CA

Court of Appeals of Utah.

Filed August 13, 2020

Andrea J. Garland and Elise C. Lockwood, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

Opinion

HAGEN, Judge:

¶1 On Christmas Eve, Rogelio Oseguera-Lopez entered a department store, grabbed $1,000 worth of merchandise, and attempted to leave without paying. When stopped by store employees, Oseguera-Lopez displayed a knife and then made his way toward a different exit. He was thereafter arrested and convicted of aggravated robbery. On appeal, Oseguera-Lopez contends that the district court committed reversible error by declining to instruct the jury on the uncharged crime of retail theft and by denying his motion for a directed verdict. We reject his arguments and affirm.

BACKGROUND¹

¶2 One Christmas Eve, Oseguera-Lopez entered a department store with a flashlight, an unsheathed hunting knife, a folding knife, and a pair of wire cutters. He also had $20 in his pocket but carried no other means of paying for merchandise.

¶3 Oseguera-Lopez went to the luggage department, took a duffel bag out of its box, and placed the unsheathed knife and flashlight inside it. He then carried the duffel bag to the handbag department, selected a handbag, and placed the handbag on the floor next to the open duffel bag.

¶4 By this point, Oseguera-Lopez had attracted the attention of the store's loss prevention team, who had been observing his behavior via security cameras. A loss prevention employee followed Oseguera-Lopez around the sales floor to keep an eye on him. Then, while Oseguera-Lopez was distracted, the employee grabbed the duffel bag and handbag, hid them behind a register, and continued observing Oseguera-Lopez as he selected more handbags.

¶5 At the request of the loss prevention staff, a merchandise manager approached Oseguera-Lopez to ask if he needed help. He declined the offer of assistance and continued looking at handbags for another ten to twenty minutes, but he seemed to become increasingly agitated. Oseguera-Lopez asked another store employee if she knew where the duffel bag was. When the employee claimed that she did not know, Oseguera-Lopez grabbed four handbags at once and headed toward the store's south exit. Walking quickly, he passed several cash registers, including the final point of sale before the exit, but made no attempt to pay for the handbags he was carrying.

¶6 As he approached the south exit, Oseguera-Lopez was intercepted by the merchandise manager. As he approached her, he asked, "Where's my duffel bag?" The merchandise manager responded, "I don't know what you're talking about." Oseguera-Lopez inquired if the store had any security cameras, and the merchandise manager informed him that security cameras were handled by a different department but that she could look into it for him if he handed her the handbags he was carrying.

¶7 Oseguera-Lopez handed the merchandise manager one handbag. Then, as he handed over a second handbag, he used his other hand to reach into his pocket and pulled out the folding knife. Although he never unfolded the knife, he displayed it in his open palm in a manner the merchandise manager described as "very aggressive."

¶8 The loss prevention manager, who had been watching the situation unfold, saw the knife and immediately told someone to call the police. At that point, Oseguera-Lopez flipped off the store employees, swore at them, and quickly walked away. He made his way toward the north exit, pausing briefly to ask other store employees if they knew where the duffel bag was. When he was three to four feet away from the north exit, but still inside the store, Oseguera-Lopez was stopped by a responding police officer.

¶9 The officer and loss prevention staff took Oseguera-Lopez to the store's loss prevention office for questioning. They asked him his name, where he lived, his address, how he had traveled to the store that day, and if there was anyone waiting for him. In response, Oseguera-Lopez told them that his name was "Javier" and provided several false birth dates. When asked to explain his actions at the store, Oseguera-Lopez said that "his friend told him to come and get [the handbags], and that his friend was going to take them back to Mexico." The officer searched a law enforcement database using the information that Oseguera-Lopez had provided. When the officer could not find any match in his database, he took Oseguera-Lopez's fingerprints. The fingerprints later revealed Oseguera-Lopez's identity.

¶10 The officer reported the case as a "retail theft," but did not arrest Oseguera-Lopez because nobody was available to transport him to jail. Instead, the officer escorted Oseguera-Lopez off the store's property. The total value of the items Oseguera-Lopez attempted to take from the store totaled just over $1,000.

¶11 The State charged Oseguera-Lopez with aggravated robbery and providing false personal information to a peace officer. At the close of the State's case at trial, Oseguera-Lopez moved for a directed verdict, which the district court denied. The defense then rested without presenting evidence.

¶12 In a discussion with the district court after the close of evidence, Oseguera-Lopez's counsel revealed that she intended to argue at closing that Oseguera-Lopez committed retail theft—not aggravated robbery—and that the State had overcharged him. In accordance with this theory, Oseguera-Lopez requested two jury instructions on the subject of retail theft. The court denied the requested instructions.

¶13 Oseguera-Lopez also requested the following jury instruction on the elements of "attempt" as a crime:

A person is guilty of an attempt to commit a crime if he:

(a) Engages in conduct constituting a substantial step toward commission of the crime; and

(b)(i) intends to commit the crime; or

(b)(ii) when causing a particular result is an element of the crime, he acts with an awareness that his conduct is reasonably certain to cause the result.

Conduct constitutes "a substantial step" if it strongly corroborates the actor's mental state as described above.

Pointing to the references to "attempt" in Utah's robbery statute, see Utah Code Ann. § 76-6-301(2)(a)–(c) (LexisNexis 2017), Oseguera-Lopez argued that the jury needed to be given the "specific legal definition" of attempt. But the district court disagreed and denied the instruction.

¶14 The jury convicted Oseguera-Lopez as charged. He now appeals from his aggravated robbery conviction.

ISSUES AND STANDARDS OF REVIEW

¶15 Oseguera-Lopez contends that the district court abused its discretion by denying his request for the two jury instructions relating to retail theft and his request for an instruction providing the elements of attempt. "We review a district court's refusal to give a jury instruction for abuse of discretion." Miller v. Utah Dep't of Transp. , 2012 UT 54, ¶ 13, 285 P.3d 1208.

¶16 Oseguera-Lopez also argues that the district court erred by denying his motion for a directed verdict because "the State presented insufficient evidence that [he] took personal property from the immediate presence of another person with a purpose to deprive the person of the property." "We review the district court's denial of a motion for directed verdict for correctness." State v. Barner , 2020 UT App 68, ¶ 9, 464 P.3d 190 (cleaned up). But because Oseguera-Lopez "challenges the denial of a motion for directed verdict based on the sufficiency of the evidence, the applicable standard of review is highly deferential." See id. (cleaned up). "We will uphold the district court's denial if, when viewed in the light most favorable to the State, some evidence exists from which a reasonable jury could find that the elements of the crime have been proven beyond a reasonable doubt." Id. (cleaned up).

ANALYSIS

¶17 On appeal, Oseguera-Lopez challenges his conviction for aggravated robbery. As applicable to this case, a person commits aggravated robbery if he "uses or threatens to use a dangerous weapon" "while in the course of committing robbery." Utah Code Ann. § 76-6-302(1)(a) (LexisNexis 2017). A person is "committing robbery" when he "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). And an act is "in the course of" committing a robbery "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." Id. § 76-6-302(3). With these statutory definitions in mind, we address each of Oseguera-Lopez's claims of error.

I. The Retail Theft Instructions

¶18 Oseguera-Lopez asserts that the district court abused its discretion by denying his request for two jury instructions on the subject of retail theft. The first of those instructions defined the crime of retail theft according to statute. See Utah Code Ann. § 76-6-602 (LexisNexis 2017). The second sought to instruct the jury that "retail theft" was a distinct crime from both "theft" and "wrongful appropriation" and that only the latter two crimes could serve as the basis of a robbery conviction. See id. § 76-6-301(1)(b) ("A person commits robbery if the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft or wrongful appropriation ." (emphasis added)).

¶19 According to Oseguera-Lopez, the instructions were necessary because "the facts showed a retail theft had taken place [and] the State could have charged the case appropriately but elected to charge aggravated robbery" instead. Essentially, the defense's theory was that Oseguera-Lopez committed a crime but not the crime that was actually charged. Further, he wanted the jury instructed that...