State v. Florez
465 P.3d 307
Utah Ct. App.2020Background
- On Christmas Eve a 92-year-old woman discovered Lorenzo Florez at her back storm door attempting to pick the lock with a piece of wire; she and a neighbor confronted him and called police.
- Florez persisted in trying to jimmy the lock, later stepped back, put his hands on his head, and was detained by police on the patio; police recovered a broken sprinkler head and a wire and observed damage to the storm-door lock.
- Florez told officers he was a federal agent, gave the victim’s address as his residence, and had outstanding warrants; he was arrested and charged with criminal mischief, attempted burglary (third-degree felony), criminal trespass (reduced at bindover from A to B), and impersonating a peace officer.
- At trial the State called Victim, Neighbor, Neighbor’s son, and the arresting officer; Florez did not testify and called no witnesses. The jury convicted Florez on all counts.
- After trial new counsel located a percipient witness (Witness) to other neighborhood incidents earlier that morning—entries into other homes where an intoxicated man asked occupants if they were “the feds” and left voluntarily—and submitted a sworn declaration under a rule 23B motion seeking remand to develop an ineffective-assistance claim based on trial counsel’s failure to present those witnesses.
Issues
| Issue | Florez’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence / directed verdict on attempted burglary (intent element) | State failed to prove burglarious intent beyond a reasonable doubt; evidence shows intoxication, no theft, daylight, and voluntary withdrawal. | Circumstantial evidence (use of wire to jimmy lock, persistence after confrontations, surreptitious use of back yard) permits an inference of intent to commit a felony. | Affirmed denial of directed verdict — some circumstantial evidence supported a jury inference of burglarious intent. |
| Lesser-included-offense instruction (attempted burglary → criminal trespass) | Trial counsel asked for instruction; on appeal argues jury should have been allowed to convict of trespass instead. | Trial court correctly denied because the defense presented at the instruction conference was that Florez believed the house was his (which would negate both offenses), and defense did not point to evidence establishing a rational basis to convict of trespass but acquit of attempted burglary. | Unpreserved for appeal; court did not reverse or reach merits. |
| Rule 23B motion / ineffective assistance (failure to call witnesses to other events) | New affidavits show non‑speculative, admissible eyewitness testimony of similar non‑felonious entries that would support lack of burglarious intent and a lesser‑included instruction; counsel’s failure to call them was deficient and prejudicial. | State questioned identification and differences but did not show a strategic reason counsel declined to call witnesses. | Granted rule 23B remand — affidavits sufficient to allege deficient performance and prejudice; remand to develop record on ineffective‑assistance claim. |
| Remaining sentencing/merger issues re: criminal trespass | If attempted burglary reversed, reduce or merge trespass; correct sentencing classification per rule 22(e). | State concedes sentencing clerical issue; merger depends on appeal outcome. | Court deferred resolution pending remand and further proceedings. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing the two‑prong ineffective assistance test)
- State v. Porter, 705 P.2d 1174 (Utah 1985) (intent may be inferred from surrounding circumstances in burglary cases)
- State v. Johnson, 771 P.2d 1071 (Utah 1989) (entry alone does not establish burglarious intent; surrounding facts may support inference)
- State v. Sisneros, 631 P.2d 856 (Utah 1981) (upholding burglary conviction on circumstantial evidence despite lack of stolen property)
- State v. Kell, 61 P.3d 1019 (Utah 2002) (two‑part test for lesser‑included‑offense instruction)
- State v. Norton, 361 P.3d 719 (Utah Ct. App. 2015) (rule 23B remand standards)
- State v. Salgado, 427 P.3d 1228 (Utah Ct. App. 2018) (standard for reviewing denial of directed verdict)
- State v. Maestas, 299 P.3d 892 (Utah 2012) (principles for proving intent by circumstantial evidence)