State v. Thornock

475 P.3d 475

STATE of Utah, Appellee,

v.Robert Lee THORNOCK, Appellant.

No. 20180869-CA

Court of Appeals of Utah.

Filed October 8, 2020

David M. Perry, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and David A. Simpson, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Robert Lee Thornock appeals from his conviction of aggravated robbery, a first degree felony. We affirm.

BACKGROUND

¶2 Early in the morning of January 26, 2014, Thornock and his then-girlfriend (Wife) drove to a Walmart in Logan, Utah. As they were approaching the Walmart, Thornock instructed Wife to drive slowly so that he could look at a Super 8 motel they were passing.

¶3 While they were inside the Walmart, Wife saw Thornock stuff a hunting mask into his pants. They also went to the craft area, where Thornock picked up a roll of duct tape with colorful skulls on it and stated, "This will be cute." The couple did not purchase the mask or duct tape but purchased several other items and left the store.

¶4 As they passed the Super 8 motel, Thornock again told Wife to slow down and "star[ed] over at Super 8 quite hard." They eventually went to Thornock's mother's apartment, and Wife went inside at about 2:00 a.m., leaving Thornock outside with his brother (Brother).

¶5 At around 3:00 a.m., two masked men entered the Super 8 motel. One of the men carried what appeared to be a semiautomatic handgun, and the other had duct tape with colorful skulls and "tools for the robbery." They handcuffed the night manager and bound his hands with the duct tape. They stole keys, some documents, and about $150–$200 in cash.

¶6 Thornock and Brother entered their mother's apartment around 4:00 or 4:30 a.m. Thornock was acting paranoid and asked Wife, "Who are you talking to? Are you talking to the cops? Did you call the cops on me?" He then went into the living room to talk to Brother and went to bed around 5:00 or 5:30 a.m.

¶7 The next day, Thornock suggested that he and Wife go for a drive in a nearby canyon. They stopped at a campsite and built a fire. Wife observed Thornock throw a reusable blue Walmart bag with keys and papers into the fire. He also burned his hoodie.

¶8 Next, Thornock proposed that he and Wife "get married tomorrow." Wife thought it felt sudden, but she agreed. They were married a couple of days later.

¶9 In the meantime, officers had been investigating the Super 8 robbery. The detective in charge (Detective) noticed the unusual duct tape used in the robbery and began looking into where it was sold. He found the tape for sale at the nearby Walmart in addition to camouflage hunting masks, one of which the Super 8 night manager identified as matching one of the masks worn during the robbery. Detective reviewed Walmart's surveillance video from the night of the robbery and observed a man and a woman walking through the hunting and craft sections of the store. The couple then made a purchase—that did not include either a hunting mask or duct tape—and left the store. Although the video did not show the couple stealing anything, a search of the store's electronic inventory revealed that one roll of duct tape and two masks were missing.

¶10 Detective identified the car the couple was driving from surveillance video and found that it was registered to Thornock's mother. Detective and another officer went to the mother's apartment and photographed the car in the parking lot. While they were there, they saw Thornock and Wife, who looked like the couple from the Walmart videos, approaching the car.

¶11 When the officers approached the couple, Thornock became "aggressive and angry." Officers asked if he had any weapons, and in response, Thornock pulled a knife out of his pocket and "threw it aggressively at the ground." The officers handcuffed Thornock and put him in their patrol car. When they later removed Thornock from the patrol car, they found a bag of methamphetamine in the area where he had been sitting. This led them to conduct a dog sniff around his mother's car. The dog sniff indicated positive for a controlled substance, which allowed Detective to obtain a warrant to search the car. In the course of this search, the officers discovered a camouflage face mask, white gloves, superglue,¹ and mail addressed to Thornock, Brother, and Wife.

¶12 Detective questioned both Thornock and Wife. Thornock denied committing the robbery and claimed not to remember being at Walmart. Wife eventually admitted that they had been at Walmart that night and had taken the decorated duct tape. She also directed officers to the fire pit in the canyon, where they recovered fragments of a hoodie, keys that matched those taken from the Super 8, magnetic nametags that matched those used by Super 8, and several scraps of mail addressed to the motel's owner.

¶13 Thornock was charged with felony possession of methamphetamine. However, because Wife was unwilling to testify against Thornock at that time, authorities did not have enough evidence to bring a robbery charge against him.

¶14 In connection with his methamphetamine charge, Thornock filed a motion to suppress evidence obtained as a result of his detention, claiming that he was detained in violation of his Fourth Amendment rights. The trial court denied the motion, and Thornock eventually pleaded guilty to the methamphetamine charge.

¶15 Several years later, Wife ran into Detective at a local restaurant. She told him the case had been "weighing [her] down for a while" and that she wanted to "get this off [her] conscience," so she agreed to cooperate with the prosecution of her soon-to-be ex-husband. During a new interview with police, she admitted to having lied to Detective several times during her previous interviews. With Wife's cooperation and further information about the robbery, the State charged Thornock with one count of aggravated robbery. Thornock once again moved to suppress evidence stemming from his detention. The trial court denied the motion on grounds of collateral estoppel because his motion to suppress evidence stemming from the same detention had been denied in the methamphetamine case.

¶16 Before trial began, Thornock moved to exclude a portion of his police interview. In that interview, Detective asked him whether he had stolen anything from Walmart on the night in question. Thornock responded, "I don't steal, I kill." Detective clarified, "You don't steal, you kill? Huh. That's a pretty tough statement. Tell me what you mean by that." Thornock then proceeded to explain, "I crush my kids, pretty much kill them, suck the life out of them. Myself, anybody around me, anyone I care about. That's all I've done for years and years. I'm tired of this stuff." He then went on to explain that Wife made him feel better about himself.

¶17 Thornock argued that it would be highly prejudicial for the jury to hear him make the statement, "I kill." The State countered that the statement was relevant because (1) Thornock denied stealing things from Walmart; (2) the statements about Wife, which needed to be understood in context, were inconsistent with his proposed alibi defense that he was with his ex-wife at the time of the robbery; and (3) his admission that he damages people around him could be construed as an acknowledgement that he had hurt his family by committing the robbery. The court denied Thornock's motion to exclude the statement. The court agreed that the statement was relevant and determined that it would not be unfairly prejudicial given Thornock's clarification of what he meant by the statement.

¶18 At trial, the State relied, in part, on a theory of accomplice liability. During closing arguments, the prosecutor told the jury,

[Thornock] clearly was one of the robbers. He was wearing a camo mask. ... But if there's any confusion, if you find that in any way he did any of these things—he's smirking with the duct tape, scoping out the motel, providing that to someone else—still guilty if he has the intent. But he was there. He committed the robbery.

After the prosecutor finished his closing statement, defense counsel raised a concern outside the presence of the jury about the statement. He told the court that he was concerned that the prosecutor stated "that if Mr. Thornock had bought the duct tape or looked at the duct tape, he's implicated in the robbery and can be convicted." The court agreed to give a curative instruction and crafted the language of the instruction in consultation with defense counsel and the prosecutor. Ultimately, the jury was instructed "that simply buying duct tape that matches what was used in the robbery is not sufficient to find [Thornock] guilty of armed robbery." The court further directed the jury to review the "very specific elements that must be proved beyond a reasonable doubt to find Mr. Thornock guilty beyond a reasonable doubt."

¶19 The jury convicted Thornock as charged, and he now appeals.

ISSUES AND STANDARDS OF REVIEW

¶20 Thornock first asserts that the trial court's curative instruction was insufficient to cure unfair prejudice produced by the prosecutor's allegedly improper statement. When an error is "cured by either a curative or preliminary instruction," the defendant cannot obtain reversal unless "there was an overwhelming probability that the jury was unable to follow the court's instructions, and a strong likelihood that the effect of the [error] was devastating to him." State v. Mead , 2001 UT 58, ¶ 50, 27 P.3d 1115 (quotation simplified). Nevertheless, we do not review claims of error when the error is invited. See State v. Moa , 2012 UT 28, ¶ 27, 282 P.3d 985.

¶21 Thornock next asserts that the trial court erred in denying his motion to exclude the statement, "I don't steal, I kill," under rule 403 of the Utah Rules of Evidence. "Trial courts have wide discretion in determining relevance, probative value, and prejudice," so "we...