A Person Under Eighteen Years Of Age. K.O. v. State Of Utah

Decision Date17 June 2010
Docket NumberNo. 20081034-CA.,20081034-CA.
Citation238 P.3d 59,658 Utah Adv. Rep. 34
PartiesSTATE of Utah, in the interest of K.O., a person under eighteen years of age. K.O., Appellant, v. State of Utah, Appellee.
CourtUtah Court of Appeals

OPINION TEXT STARTS HERE

J. Bryan Jackson, Cedar City, for Appellant.

Mark L. Shurtleff and Brett J. Delporto, Salt Lake City, for Appellee.

Before Judges DAVIS, McHUGH, and ROTH.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 K.O., a minor at the time of the offense, appeals his conviction for burglary of a vehicle, which is a class A misdemeanor if committed as an adult, see Utah Code Ann. § 76-6-204 (2008). He raises three issues on appeal. First, K.O. asserts that there was insufficient evidence for the juvenile court to find that the elements of burglary of a vehicle were proven beyond a reasonable doubt or that K.O. was the individual who committed the crime. Second, K.O. claims that the juvenile court erred in failing to conduct a reliability hearing before admitting eyewitness testimony at trial. Third, K.O. contends that the juvenile court erred by overruling his hearsay objection to the arresting officer's testimony regarding the eyewitness's identification of K.O. We affirm.

BACKGROUND

¶ 2 On April 29, 2008, at three o'clock a.m., an individual climbed into an unlocked pickup truck parked in a residential driveway. A neighbor was standing in his driveway when he heard footsteps and saw the individual enter the pickup truck. The individual, who was wearing a dark shirt with long white sleeves, appeared to be looking through the pickup truck's glove compartment. 1 Surprised, the neighbor yelled, “Hey, you, what are you doing?” The individual got out of the pickup truck, slammed the door, and “took off running” down the street. The neighbor initially returned to his house but then decided to drive through the area looking for the individual.

¶ 3 About twenty minutes after first seeing the individual in the pickup truck, the neighbor came upon K.O., who was wearing a dark shirt with long white sleeves. The neighbor began to follow K.O. and called the police. K.O. started cutting between houses and then ran from the neighbor, entering a carport and residential backyard in an apparent attempt to evade the neighbor. K.O. entered a “passthrough” sidewalk between the houses and ran into police officers at the other end. He was arrested, and the neighbor identified him as the same individual who had entered the pickup truck. The only other person the neighbor saw during his drive was a runner whose jogging suit did not match what the individual who entered the pickup truck was wearing.

¶ 4 K.O. was charged with burglary of a vehicle, and his case was tried in juvenile court. At trial, the juvenile court, acting as the factfinder, heard testimony from the neighbor, the owner of the pickup truck, and the arresting officer. The officer testified that at the time of the arrest, the neighbor had identified K.O. as the same individual who entered the pickup truck. K.O. objected that the testimony was hearsay, but his objection was overruled. The juvenile court found K.O. guilty and sentenced him to thirty days in jail and a $325.00 fine.

ISSUES AND STANDARDS OF REVIEW

¶ 5 First, K.O. claims that the evidence was insufficient for the juvenile court to find that he was the individual the neighbor saw enter the pickup truck or that his entry was unlawful.

When reviewing a bench trial for sufficiency of evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definiteand firm conviction that a mistake has been made. However, before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the [factfinder] may base its conclusion of guilt beyond a reasonable doubt.

State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 (alteration in original) (citation and internal quotation marks omitted). “Additionally, in those instances in which the trial court's findings include inferences drawn from the evidence, we will not take issue with those inferences unless the logic upon which their extrapolation from the evidence is based is so flawed as to render the inference clearly erroneous.” State v. Briggs, 2008 UT 75, ¶ 11, 197 P.3d 628 (internal quotation marks omitted).

¶ 6 Second, K.O. argues that the juvenile court should have held a reliability hearing before admitting the neighbor's testimony. “Whether a trial court is required to make findings of fact and legally determine the reliability of an eyewitness identification before admitting such testimony is a question of law, which we review for correctness.” State v. Nelson, 950 P.2d 940, 942-43 (Utah Ct.App.1997). However, appellate courts generally do not consider claims raised for the first time on appeal absent plain error or exceptional circumstances. See State v. Dean, 2004 UT 63, ¶ 13, 95 P.3d 276.

¶ 7 Third, K.O. argues that the juvenile court should not have overruled his hearsay objection to the arresting officer's testimony. “The determination of whether evidence constitutes hearsay is a question of law that we review for correctness.” Prosper, Inc. v. Department of Workforce Servs., 2007 UT App 281, ¶ 8, 168 P.3d 344.

ANALYSIS
I. The Evidence Is Sufficient to Sustain K.O.'s Conviction.

¶ 8 Utah Code section 76-6-204 provides, “Any person who unlawfully enters any vehicle with intent to commit a felony or theft is guilty of a burglary of a vehicle.” Utah Code Ann. § 76-6-204 (2008). Section 76-6-201(3) further provides,

“Enter or remain unlawfully” means a person enters or remains in or on any premises when:

(a) at the time of the entry or remaining, the premises or any portion of the premises are not open to the public; and

(b) the actor is not otherwise licensed or privileged to enter or remain on the premises or any portion of the premises.

Id. § 76-6-201(3).

¶ 9 K.O. contends that the evidence was insufficient to prove that he entered the pickup truck or that the entry was unlawful. In doing so, he relies on In re M.B., 2008 UT App 433, 198 P.3d 1007, in which this court held that a defendant could not be convicted as an accomplice to burglary of a vehicle “based on his mere passive presence in the passenger seat of the getaway car,” id. ¶ 27. K.O. asserts that his “mere presence” in the neighborhood at the time of the incident was insufficient to prove that he entered the pickup truck or to demonstrate that his entry was unlawful. K.O.'s reliance on In re M.B. is misplaced. The juvenile in that case was convicted based on accomplice liability due solely to his presence in a getaway vehicle used in the commission of the crime charged. See id. ¶¶ 8, 12. “However, [w]hile mere presence at the scene of a crime affords no basis for a conviction, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.” Id. ¶ 8 (alteration in original) (internal quotation marks omitted).

¶ 10 Here, K.O. was convicted of burglary of a vehicle based on his active conduct of unlawfully entering the pickup truck. Furthermore, evidence beyond K.O.'s “mere presence” in the neighborhood identifies K.O. as the perpetrator: K.O.'s clothing matched that of the burglar, few other people were out in the neighborhood at that time of the morning, K.O.'s location when the neighbor found him was consistent with where the burglar might be given the time that had elapsed, and K.O. ran away when the neighbor began following him. Evidence beyond “mere presence” likewise supports the court's finding that K.O.'s entry was unlawful:

K.O. entered the pickup truck at three a.m., he fled when the neighbor challenged him, and the movements observed by the neighbor suggest that K.O. was rifling through the glove compartment. 2

¶ 11 K.O. next contends that due to the State's failure to offer testimony from the owner that K.O. lacked permission to enter the pickup truck, the juvenile court's finding that K.O.'s entry was unlawful was based on an improper inference from the circumstantial evidence presented. According to K.O., an inference that entry was unlawful is only one of many reasonable inferences that can be drawn from that evidence, thus creating a reasonable doubt on this element of vehicular burglary. 3 However, there is nothing in our jurisprudence that would require the juvenile court to eliminate all other possibilities before it may reach an inference based on the evidence presented. See State v. Tanner, 675 P.2d 539, 550-51 (Utah 1983) (holding that the inference need not eliminate all other possibilities that the crime may have been committed by another). Rather, we will affirm unless the juvenile court's inference “is so flawed as to render the inference clearly erroneous.” State v. Briggs, 2008 UT 75, ¶ 11, 197 P.3d 628 (internal quotation marks omitted); see also State v. Lyman, 966 P.2d 278, 281 (Utah Ct.App.1998) (“It is well settled in this state that a conviction can be based on sufficient circumstantial evidence.” (internal quotation marks omitted)). While not incontrovertible, there was a sufficient quantum of evidence as to each element of the crime so that the juvenile court's judgment of guilt was not against the clear weight of the evidence. See generally State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 ([A] conviction ... must be supported by a quantum of evidence concerning each element of the crime as charged from which the [factfinder] may base its conclusion of guilt beyond a reasonable doubt.” (second alteration in original) (internal quotation marks omitted)).

II. The Juvenile Court Was Not Required to Conduct A Pretrial Reliability Hearing.

¶ 12 K.O. also argues that the juvenile court should have held a reliability hearing, in accordance with State v. Ramirez, 817 P.2d 774 (Utah 1991),...

To continue reading

Request your trial
5 cases
  • State ex rel. J.A.M. v. J.A.M.
    • United States
    • Utah Court of Appeals
    • July 2, 2020
    ...crime as charged from which the factfinder may base its conclusion of guilt beyond a reasonable doubt." In re K.O. , 2010 UT App 155, ¶ 5, 238 P.3d 59 (quotation simplified). ¶11 J.A.M. also argues the juvenile court erroneously inferred that kissing and hugging on the third floor plus the ......
  • Fowler v. Paul Teynor & Intermountain Mro Servs., Inc.
    • United States
    • Utah Court of Appeals
    • August 11, 2014
    ...the summary judgment motion. Because this theory was not raised below, we do not consider it here. See In re K.O., 2010 UT App 155, ¶ 6, 238 P.3d 59 (“[A]ppellate courts generally do not consider claims raised for the first time on appeal absent plain error or exceptional circumstances.”). ......
  • Fowler v. Teynor
    • United States
    • Utah Court of Appeals
    • March 20, 2014
    ...the summary judgment motion. Because this theory was not raised below, we do not consider it here. See In re K.O., 2010 UT App 155, ¶ 6, 238 P.3d 59 ("[A]ppellate courts generally do not consider claims raised for the first time on appeal absent plain error or exceptional circumstances.").¶......
  • State v. State
    • United States
    • Utah Court of Appeals
    • September 6, 2013
    ...of the evidence” or we otherwise reach “a definite and firm conviction that a mistake has been made.” In re K.O., 2010 UT App 155, ¶ 5, 238 P.3d 59 (citation and internal quotation marks omitted). Further, we will uphold a juvenile court's inferences “ ‘unless the logic upon which their ext......
  • Request a trial to view additional results
1 books & journal articles
  • Utah Standards of Appellate Review - Third Edition
    • United States
    • Utah State Bar Utah Bar Journal No. 23-6, December 2010
    • Invalid date
    ...2006 UT App 457, ¶ 7, 153 P.3d 724. (7) Whether evidence constitutes hearsay in juvenile court. See in re K.O., 2010 UT App 155, ¶ 7, 238 P.3d 59. (8) Whether the juvenile court is required to making findings of fact and legally determine reliability of eyewitness identification before admi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT