Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) OPINION
)
Plaintiff Appellee, ) Case No. ‐ ) ) F I L E D
) (October 2012) John Vernon Cecil, )
)
Defendant Appellant. ) ‐‐‐‐‐
Fifth District, St. George Department,
The Honorable G. Rand Beacham
Attorneys: Gary G. Kuhlmann Nicolas D. Turner, St. George, Appellant
Mark L. Shurtleff Jeanne B. Inouye, Salt Lake City, Appellee ‐‐‐‐‐
Before Judges Davis, Thorne, McHugh.
THORNE, Judge: John Vernon appeals convictions aggravated assault, third
degree felony, see Ann. §§ ‐ ‐ ‐ 103(1)(b) (2008); mischief, a third degree felony, see id. § 106(2)(c) (Supp. 2012); reckless driving, class B misdemeanor, see id. 6a (2010). We affirm.
BACKGROUND ¶2 On March Michael Stevens was sitting in his car near the apartment Cecil and his girlfriend, Anjelica Quintero, lived. Stevens and Quintero had previously dated. Stevens saw Cecil and Quintero speeding towards him in Quintero’s truck, Cecil was driving. Stevens drove away, but Cecil passed him, slammed on his brakes, and shifted into reverse in an apparent attempt to hit Stevens. Stevens managed get out of the way and drove nearby car repair shop was owned by Todd Evans. Stevens stopped his car near hoist behind the shop.
¶3 Cecil, who was pursuing Stevens, stopped Quintero’s truck about fifteen feet away from the hoist. Stevens got out of his car, stood behind the hoist, and put his hands up as signal “What’s going on?” response was accelerate toward Stevens and crash the The protected Stevens being struck, but was damaged in the collision. Cecil then backed up and sped away. As Stevens was explaining Evans what had happened, Cecil returned the parking lot, nearly striking Evans. Evans was revving engine “as hard as I imagine an engine rev” look of intense anger face. This time, Cecil succeeded striking Stevens, who able brace himself front of truck push himself out way. then fled scene. charged with two counts aggravated assault attempting strike Evans truck, one count mischief damaging hoist, one count reckless driving, one count leaving scene an accident. A three day held November 2009. At close case, Cecil made motion all charges against him. The court dismissed count leaving scene an accident but denied as other charges. The convicted one count aggravated assault upon as well as reckless driving counts, acquitted aggravated assault upon Evans. now appeals.
“On appeal, recite facts light most favorable verdict.” State Burk (Utah Ct. App. 1992).
ISSUES AND STANDARDS OF REVIEW
¶5 On appeal, argues that there insufficient evidence convict him of criminal mischief for damaging because only evidence he strike Stevens, and no evidence intended strike argues district court thus erred when it denied motion to dismiss criminal charge. He also argues jury’s guilty verdict on charge must be vacated for lack evidence. We apply same standard of review arguments. State v. Hamilton , UT 22, ¶ 41, P.3d 111 (“When evaluating whether State produced sufficient ‘believable evidence’ to withstand a challenge at close case chief, apply same standard used when reviewing verdict.”). Both district denial a verdict will be affirmed “‘if upon reviewing evidence all inferences reasonably drawn from it, court concludes some evidence exists which find elements of crime been proven beyond doubt.’” Id. (quoting State Clark , UT 9, ¶ 13, P.3d 300).
¶6 also argues court erred refusing allow him use evidence past convictions, currently pending charges, an existing civil stalking injunction against impeach testimony support claim self defense. “[W]e grant trial court broad discretion admit exclude evidence will disturb its ruling for abuse discretion . . . .” Gallup , UT App ¶ (alteration original). Further, “[i]n should admitted, reviewed for harmless error.” Colwell 177. also argues counsel provided ineffective assistance
when counsel failed interview subpoena certain witnesses identified by failed acquire then introduce alleged audio recordings of
conversations between Cecil, Quintero. “An ineffective counsel claim raised first time appeal presents question law, we
review correctness.”
Fowers
(internal
omitted).
*4
¶8
Finally, argues State willfully withheld exculpatory in
violation
Brady v. Maryland
,
ANALYSIS
I. Criminal Mischief Conviction makes two related arguments challenging his conviction criminal mischief. Both rely his assertion no presented at he damage See generally Ann. ‐ 106(2)(c) (Supp. 2012) (stating person commits he or she “ intentionally damages, defaces, destroys property another” (emphasis added)). First, argues district court erred when denied his also raises issues pertaining juror’s brief observance handcuffs outside courtroom refusal instruct State prove intent—and not merely knowledge recklessness—as regards use force purposes aggravated assault charges. However, Cecil’s appellate brief candidly concedes issues lack merit, decline address them further. Wetzel (Utah 1993) (“[A] brief fortuitous encounter defendant handcuffs not prejudicial requires an affirmative showing prejudice by defendant.” (alteration original) (internal omitted)); Speer (Utah 1988) (“We held when charged under subsection (1)(b) [Utah Code] section aggravated assault committed by reckless conduct.”). charge lack evidence his intent to damage the hoist. Second,
he argues that there was insufficient evidence his intent to damage the hoist to support the verdict finding guilty mischief. These rely Cecil’s assertions appeal that the “evidence was limited to the alleged fact that defendant attempted hit Mr. Stevens with a vehicle and missed and hit the hoist” “the evidence presented was that the defendant attempted run the vehicle [he] was driving into Mr. Stevens and inadvertently hit the hoist.” ¶10 We cannot agree characterizations the are accurate. To the contrary, Stevens stopped his ten fifteen feet away from Stevens was standing, “then stepped the gas and just came full speed and crashed right into the engine hoist.” Stevens testified, “[I]f this hoist wouldn’t have been there, I would got hit.” On cross examination, Stevens was asked clarify whether “Cecil stopped and then drove again into hoist he just . . . swerves hits hoist?” Stevens responded, “Yes, I came stop, stepped out vehicle. He came stop, revving motor while holding brake and then he came accelerated into hoist.” testimony “accelerated into hoist” stop ten to
fifteen feet away “crashed right into engine hoist” clearly adequate support finding intentionally struck hoist with Quintero’s truck. Furthermore, “a person presumed intend natural probable consequences acts.” Sisneros (Utah 1981) omitted). The natural probable consequence crashing hoist hoist damaged. Thus, reasonably infer to We agree observation ultimate motivation striking hoist may well desire harm rather than some independent desire damage Helf Chevron U.S.A., Inc. P.3d (discussing relationship between motive intent noting “the legal definition intent encompasses more than simply motive”). Nevertheless, is intentionally struck attempt harm Stevens. *6 damage 122 15, ¶ UT 895 2005 Robertson See hoist. the (“[I]ntent . . . is state of mind, which is rarely susceptible of direct proof[;] can inferred from conduct attendant the light of human behavior experience.” (internal quotation marks omitted)). Such an inference is entirely consistent with Cecil having ultimate goal harming who was standing behind the hoist. In light testimony, we conclude “that some evidence exists jury find elements crime [of mischief] proven beyond doubt.” See Hamilton , 111. Accordingly, we affirm denial Cecil’s Cecil’s conviction mischief intentionally damaging hoist.
II. Other Arguments
¶13 Cecil raises other alleging erroneous evidentiary rulings, ineffective
counsel, failure produce exculpatory evidence.
However, we determine briefing on issues is insufficient pursuant to
rule 29(a) Utah Rules Appellate Procedure.
See
Utah R. App. P. 24(a)(9) (“The
argument shall contain contentions reasons appellant with respect issues presented, . . . citations authorities, statutes, parts record
relied on.”);
Green
(“Implicitly, rule 24(a)(9)
requires not just bald citation authority but development authority reasoned analysis based authority.” omitted)).
suggests appellate briefing jury was improperly allowed find
“transferred intent,” i.e., under Utah Code section intent strike
transferred an intent strike Ann. ‐
(2008) (“Where intentionally causing an element an offense, that
element established even different person than actor intended killed,
injured, harmed, different property than actor damaged or
otherwise affected.”). However, not instructed transferred intent, see nothing indicate relied doctrine reach its criminal
verdict.
In particular, Cecil has failed to demonstrate harm or prejudice that is
required in order to obtain relief on any of these arguments.
See generally State Pinder
,
2005 UT ¶ 24,
¶15 Cecil suggests various pieces evidence at issue arguments would have bolstered self ‐ defense argument by demonstrating acts violence committed by Stevens prior this incident fear Stevens. However, even assuming would have shown those things, see little chance led find self ‐ defense. Although was instructed self ‐ defense, they were properly instructed self ‐ defense may be employed against “imminent” unlawful force. Ann. 402(1) (Supp. 2012) (governing self defense). Regardless prior actions, appears little presented an imminent threat at time this incident. did not testify at trial. A police officer Quintero previously told chasing them Stevens had approached their foot “a very aggressive manner” handgun visible front waistband. However, surveillance video showed chasing
(continued...) *8 ¶16 We conclude Cecil’s alleging improperly excluded evidence, ineffective counsel, Brady violation are inadequately briefed. In particular, fails explain how evidence, testimony, tape recordings at issue led reasonable likelihood different at trial. Accordingly, we decline further address these arguments.
CONCLUSION
¶17 There at trial found beyond doubt strike vehicle. Accordingly, affirm denial Cecil’s guilty verdict charge mischief. other arguments either concede no error occurred are inadequately briefed. For reasons, we affirm convictions below.
____________________________________
William A. Thorne Jr., Judge
‐‐‐‐‐
¶18 WE CONCUR:
____________________________________
James Z. Davis, Judge
____________________________________
Carolyn B. McHugh, Judge
(...continued) parking lot, Quintero at no gun she lied police at urging.