Case Information
*1
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Appellee, v.
B RYCE D. B ELL , Appellant.
Opinion No. 20131175-CA Filed July 21, 2016 Third District Court, Salt Lake Department The Honorable Robin W. Reese No. 131904431 Scott S. Bell, Nicole G. Farrell, Alan S. Mouritsen, and Adam E. Weinacker, Attorneys for Appellant Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee
J UDGE J. F REDERIC V OROS J R . authored this Opinion, in which J UDGES S TEPHEN L. R OTH and K ATE A. T OOMEY concurred.
VOROS, Judge: Bryce D. Bell appeals his convictions of two counts of
aggravated robbery. Bell was convicted of aggravated robbery both with respect to a car and with respect to a purse inside the car. We affirm the first conviction but reverse the second. In addition, we reject Bell’s factual impossibility and voluntary intoxication claims.
BACKGROUND On Sunday, May 5, 2013, three friends drove to a cell
phone store. The owner of the car sat in the front passenger seat. After parking the car, the driver took the car key but left the car unlocked. A different set of car keys to an unrelated rental car were in the cup holder. The car owner left her purse on the passenger floor of the car.
¶3 When the three friends entered the store, Bell was there talking to a store employee. Bell displayed a number of strange behaviors: fiddling with the merchandise racks, ‚lifting up his shirt,‛ and using so much hand sanitizer that a store employee asked him to stop. Bell left the store without buying a phone. He left ‚pretty angry,‛ using his foot to kick open the front door. In the parking lot, Bell ‚started checking‛ cars, grabbing their handles and trying to open their doors. He tried to open at least three cars before reaching the three friends’ car. When he pulled on its handle, the door opened, and Bell sat down inside. Seeing this, the three friends ran from the store into the parking lot. The driver ran to the driver’s side of the car, and the owner ran to the passenger’s side. The driver opened the driver’s door and ‚repeatedly told *Bell+ to get out of [the] car.‛ Bell, holding the set of rental car keys he found in the cup holder, responded by asking where the ignition was located. Bell unsuccessfully searched for the ignition while the driver again yelled, ‚Get out of the car.‛ After Bell tried to close the car door, the driver ‚ripped it back open‛ and stood just inside the door. Bell pulled a knife from under his shirt and pointed it at her. She stepped back and yelled at the car owner, ‚He has a knife. You need to get back.‛ Bell then pointed the knife at the car owner, who stood frozen by the passenger door. When she ‚looked down‛ at her purse on the floor, Bell saw the purse, grabbed it, and started running. The three friends and the store manager gave chase. Other
bystanders joined the pursuit. One ripped the purse from Bell’s hands, scattering its contents. Bell grabbed the rental car keys and some credit cards and took off again. The driver of a nearby car ‚bumped‛ Bell with his car and told him ‚to drop the stuff.‛ Bell responded, ‚I will drop the stuff if you will get me out of here.‛ The driver refused and bumped Bell again. Bell rolled onto the hood, threw the rental car keys into some bushes, and ran a bit farther before being arrested by police. Police found a set of car keys and a ‚couple of IDs‛ in the
bushes. At the police station, Bell told police that he was on methamphetamine and he had not slept for three days. He answered questions coherently, but was moaning while answering. Bell began vomiting and officers arranged for an ambulance to take him to the hospital. Bell later stated that he did not remember going to the cell phone store, getting into the car, pulling out a knife, or any of the events afterwards; however, he did remember drinking a beer beforehand, talking with a friend, and going to the shopping center where the cell phone store was located. Bell was charged with four crimes: two felony counts of
aggravated robbery—one for the robbery of the car and one for the robbery of the purse—one felony count of aggravated assault, and one misdemeanor count of interference with an arresting officer. [1] At trial, defense counsel presented a voluntary intoxication defense based on Bell’s statement that he had taken methamphetamine; she argued that he was thus ‚too high to form the requisite . . . intent.‛ Bell was convicted of and sentenced for three crimes: aggravated robbery of the car, aggravated robbery of the purse—both first degree felonies— and brandishing a dangerous weapon in a fight or quarrel, a class A misdemeanor. [2] On appeal, Bell challenges only the two felony convictions.
1. Bell’s initial charges included a second count of aggravated assault which was struck after the preliminary hearing. 2. The jury convicted Bell of a fourth crime, interference with an arresting officer. For presumably good reasons not apparent from the record, the court did not sentence Bell on this charge.
ISSUES AND STANDARDS OF REVIEW
¶8 Bell first contends that his two aggravated robbery
convictions should have been merged. Bell next contends that he
could not as a matter of law be convicted of aggravated robbery
of the car, because it was impossible for him to drive the car
away without the key to that car, which he did not have. Bell
asks that we review these unpreserved claims for plain error and
ineffective assistance of counsel.
See State v. Calliham
,
ANALYSIS I. Merger Bell first contends that his trial counsel performed ineffectively by not seeking merger of the two aggravated robbery counts under the single larceny rule. He further contends that the trial court committed plain error by not sua sponte merging the two counts under the single larceny rule. A. Single Larceny Rule The single larceny rule ‚evolved to limit charging
discretion in the context of aggregating or separating theft
counts based on their dollar values for the purpose of
maximizing criminal liability.‛
State v. Rasabout
(
Rasabout I
), 2013
UT App 71, ¶ 15,
but a single act, then there is but one offense and the multiple
ownership of the property taken is immaterial.’‛
Rasabout I
, 2013
UT App 71, ¶ 14 (omission in original) (quoting
State v. Barker
,
argues that his attempt to take the car and his successful taking of the purse merge under the single larceny rule ‚where timing, location, and a single victim all support the conclusion that a single offense occurred.‛ Because the purse was inside the car, Bell reasons, any aggravated robbery of the car ‚necessarily included the vehicle’s contents, most notably the purse.‛ He asserts that ‚Taking the contents of the vehicle (a purse) and fleeing on foot is consistent with the original intent of taking the vehicle and its contents—it was merely a different mode of transportation for the purse.‛ The State concedes that if Bell ‚had actually stolen the car
with the purse in it, he could be charged with only one crime, because in that case he would have possessed only one intent— to steal the car. In that scenario, stealing the purse would be incidental.‛ But here, the State maintains, Bell ‚had two separate intents‛—stealing the car as Plan A, and when that failed, stealing the purse as Plan B. ‚Stealing the purse was not incidental,‛ the State maintains, but ‚a distinct act motivated by a separate and newly formed plan.‛ Although no Utah case involves facts quite like the
present case,
State v. Irvin
comes close
. See
2007 UT App 319.
Irvin robbed a convenience store.
Id.
¶ 2. Brandishing a knife, he
took from the store clerk the cash in the till and the key to her
car, then drove off in the car.
Id.
Citing
Crosby
, we held that only
one act of aggravated robbery occurred.
Id.
¶ 19. Noting that
Irvin ‚took both items of property within a matter of seconds,‛
that ‚the entire encounter lasted only a few minutes,‛ and that
Irvin likely took the clerk’s keys to facilitate his escape with the
stolen cash, we concluded that ‚the taking of the money and the
keys was part of ‘one intention, one general impulse, and one
plan,’‛ and therefore, that Irvin had committed only one crime.
Id.
(quoting
Crosby
,
3. Two non-Utah cases with opposite holdings present closer
factual analogues. Bell relies on the Ohio Court of Appeals’
decision in
State v. Fischer
,
(continued<)
B. Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel,
‚the defendant must show that counsel’s performance was
deficient‛ and that ‚the deficient performance prejudiced the
defense.‛
Strickland v. Washington
,
(<continued)
Ohio Rev. Code Ann. § 2941.25(A) (LexisNexis 2015). The Fischer opinion does not mention the single larceny rule.
The Indiana Court of Appeals arrived at a contrary conclusion on similar facts in Taylor v. State , 879 N.E.2d 1198 (Ind. Ct. App. 2008). Taylor stole a car containing a purse, abandoned the car, and fled with the purse while shooting his pursuer. Id. at 1201. The court stated, ‚A car thief begins asserting constructive control over the contents of the car when the car is stolen, but that does not necessarily trigger application of the single larceny rule.‛ Id. at 1204. The court observed that Taylor, having concluded it was not worthwhile to keep the car, ‚made an independent decision to steal [the] purse when he abandoned the car.‛ Accordingly, the two ‚thefts were not pursuant to a single design and do not warrant application of the single larceny rule.‛ Id. We do not attempt to reconcile the holdings of these different lines of jurisprudence. To establish that counsel’s performance resulted in
prejudice, a defendant ‚must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.‛ Id. at 694. ‚A reasonable probability is a probability sufficient to undermine confidence in the outcome.‛ Id. ‚It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding.‛ State v. Nelson , 2015 UT 62, ¶ 28, 355 P.3d 1031 (citation and internal quotation marks omitted). ‚Instead, the likelihood of a different result must be substantial and sufficient to undermine confidence in the outcome.‛ (citation and internal quotation marks omitted). The analytical basis for this court’s holding in Irvin lacks
clarity. Perhaps we were, as our supreme court has since stated,
‚applying the single larceny rule to aggravated robbery.‛
Rasabout II
,
‚had actually stolen the car with the purse in it, he could be charged with only one crime, because in that case he would have possessed only one intent—to steal the car.‛ But the question as we see it relies less on his completing the getaway than on his completing the robbery. And Bell completed the robbery when, intending to deprive the victim of her car (and its contents), he attempted to take it from her immediate presence by means of force or fear. See Utah Code Ann. § 76-6-301(1) (LexisNexis 2012). Bell thus, under our statute, robbed both the car and its contents, including the purse. A thief who steals a car may later remove its contents and decide to keep or discard any particular item. Arguably that decision involves, in the State’s phrase, ‚a separate and distinct act motivated by a separate and newly formed plan.‛ But it does not involve a new crime, any more than Irvin committed two crimes by separately intending to steal both the cash and the keys. Similarly here, under Irvin , Bell may not be prosecuted once for stealing the purse with the car and a second time for stealing the purse from the car. Accordingly, he committed one robbery, not two. We recognize that ‚strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.‛
Strickland v. Washington
,
¶23 We conclude that under correct application of the law, a merger motion would not have been futile. For reasons explained above, under our analysis in Irvin , Bell committed one aggravated robbery, not two. It follows that a motion to merge would have been successful, not futile. And because making the motion would have been risk-free, counsel performed ineffectively by not making it. The two aggravated robbery convictions must therefore merge.
C. Plain Error Our conclusion that trial counsel performed ineffectively
renders moot the question of whether the trial court committed plain error. Accordingly, we do not address it.
II. Impossibility Bell next contends that he could not as a matter of law be
convicted of aggravated robbery of the car, because it was impossible for him to drive the car without the key to that car, which he did not have. He alleges both ineffective assistance and plain error.
¶26 This claim fails under the text of the applicable statutes. Bell was convicted of aggravated robbery. A person commits aggravated robbery if in the course of committing robbery he also commits one of three aggravating elements not at issue here. Utah Code Ann. § 76-6-302(1) (LexisNexis 2012). A person commits robbery if the person ‚unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person‛ under specified circumstances also not at issue here. Id. § 76-6-301(1)(a) (emphasis added). Bell did not succeed in taking the car; his aggravated robbery conviction rested on his attempt to take it. But ‚factual or legal impossibility‛ does not constitute a defense to an attempt if, as here, ‚the offense could have been committed if the attendant circumstances had been as the actor believed them to be.‛ § 76-4-101(3)(b); see also State v. Johnson , 821 P.2d 1150, 1157 n.3 (Utah 1991) (noting that under Utah law ‚impossibility is no defense to an attempt‛). Because impossibility cannot serve as a defense to the
form of aggravated robbery charged here, Bell’s counsel did not perform deficiently in not asserting that defense, nor did the trial court err in not sua sponte dismissing the charge or setting aside the jury’s verdict on that ground.
III. Voluntary Intoxication Finally, Bell contends that his counsel rendered ineffective
assistance by ‚failing to move for a directed verdict or otherwise objecting to the sufficiency of the State’s evidence‛ refuting his defense of voluntary intoxication. To be clear, defense counsel did argue the defense of voluntary intoxication to the jury. But Bell contends that the State’s evidence countering the voluntary intoxication defense was so weak that the two felony counts should never have been submitted to the jury.
¶29 ‚When evaluating a motion for a directed verdict, the court is not free to weigh the evidence and thus invade the province of the jury, whose prerogative it is to judge the facts.‛ State v. Montoya , 2004 UT 5, ¶ 32, 84 P.3d 1183 (citation and internal quotation marks omitted). Rather, so long as the State ‚has produced believable evidence on each element of the crime from which a jury, acting reasonably, could convict the defendant,‛ the court must deny the motion. Id. (internal quotation marks omitted). Therefore, ‚*i+f there is any evidence, however slight or circumstantial, which tends to show guilt of the crime charged or any of its degrees, it is the trial court’s duty to submit the case to the jury.‛ Id. ¶ 33 (citation and internal quotation marks omitted). And ‚if the evidence was such that a motion for a directed verdict would not have been granted, trial counsel cannot be deemed to have performed deficiently‛ by not filing the motion. State v. Valencia , 2015 UT App 285, ¶ 3, 363 P.3d 563. A directed verdict would not have been granted here.
Voluntary intoxication does not serve as a defense to a criminal
charge unless the intoxication ‚negates the existence of the
mental state which is an element of the offense.‛ Utah Code
Ann. § 76-2-306 (LexisNexis 2012). Thus, ‚to prevail on a
voluntary intoxication defense,‛ Bell must demonstrate that his
‚state of intoxication . . . deprived him of the capacity to form
the mental state necessary‛ for the charged offenses.
See Honie v.
State
,
judgment, perhaps even to the point that he committed acts he would not otherwise have committed. But that is not the statutory test. See supra ¶ 30. And no testimony suggests that— even if intoxicated—Bell did not intend to use a dangerous weapon to take personal property in the possession of another from their person or immediate presence against their will by means of force or fear. See Utah Code Ann. §§ 76-6-301(1)(a), 76- 6-302(1) (LexisNexis 2012). True, he was agitated, perhaps confused, and later claimed to have no memory of the crime. But neither Bell nor anyone else testified that his intoxication caused him to think he was wielding a carrot rather than a knife, or to think the car belonged to him, or to believe the victims did not possess the car or were not human. On these facts, we cannot agree that the State’s evidence that Bell intended to commit aggravated robbery was so weak that defense counsel performed ineffectively by not moving for a directed verdict on the ground of voluntary intoxication rather than merely arguing it to the jury.
CONCLUSION Bell’s conviction of aggravated robbery in connection
with the car is affirmed; his conviction of aggravated robbery in connection with the purse is vacated.