STATE EX REL. VT

• Decision Date: 22 June 2000
• Docket Number: No. 990380-CA.,990380-CA.
• Citation: 5 P.3d 1234,2000 Utah Ct. App. 189
• Parties: STATE of Utah, in the interest of V.T., a person under eighteen years of age. STATE of Utah, Plaintiff and Appellee, v. V.T., a minor, Defendant and Appellant.
• Court: Utah Court of Appeals

5 P.3d 1234

2000 Utah Ct. App. 189

STATE of Utah, in the interest of V.T., a person under eighteen years of age.

STATE of Utah, Plaintiff and Appellee, v. V.T., a minor, Defendant and Appellant.

No. 990380-CA.

Court of Appeals of Utah.

June 22, 2000.

Joel Berrett, Roosevelt, for Appellant.

Jan Graham, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges BENCH, BILLINGS, and ORME.

OPINION

ORME, Judge:

¶ 1 V.T. appeals the juvenile court's adjudication that by his continued presence during the crime, he was an accomplice to theft, a class A misdemeanor, in violation of Utah Code Ann. § 76-6-404 (1999). We reverse.

BACKGROUND

¶ 2 On June 12, 1998, V.T. and two friends, "Moose" and Joey, went to a relative's apartment to avoid being picked up by police for curfew violations. The boys ended up spending the entire night at the apartment.

¶ 3 The next morning, the relative briefly left to run an errand, while the boys remained in her apartment. She returned about fifteen minutes later to find the boys gone, the door to her apartment wide open, and two of her guns missing. She immediately went in search of the group and found them hanging out together near her apartment complex. She confronted the boys about the theft of her guns and demanded that they return them to her. When they failed to do so, she reported the theft to the police.¹

¶ 4 Two days after the theft of her guns, she discovered that her camcorder, which had been in the apartment when the boys visited, was also missing, and she immediately reported its theft to the police. The police found the camcorder at a local pawn shop, where it had been pawned on the same day the guns were stolen.

¶ 5 Still inside the camcorder was a videotape featuring footage of V.T., Moose, and Joey. The tape included a segment where Moose telephoned a friend, in V.T.'s presence, and discussed pawning the stolen camcorder. V.T. never spoke or gestured during any of this footage.² ¶ 6 V.T. was eventually picked up by the police, while riding in a car with Moose. V.T. was charged with two counts of theft of a firearm; one count of theft, relating to the camcorder; and, for having initially given the police a phony name, one count of giving false information to a peace officer, a violation of Utah Code Ann. § 76-8-507 (1999).

¶ 7 The juvenile court held hearings on September 22, 1998 and January 29, 1999. V.T. was tried under an accomplice theory on the three theft charges. The court found that V.T. had committed class A misdemeanor theft of the camcorder and had provided false information to a peace officer.³ The juvenile court summarized the basis for its adjudication concerning the camcorder theft as follows:

I am going to find him guilty and I think the additional information that I have here that brings me peace of mind is that he was present a second time, he was shown on the camcorder when the camcorder was being handled at a time when he could've distanced himself from the activity. Not only do I have him there once with the group . . . on the second incident . . . there is no gap on him being there when [the camcorder] is being handled and talked about and used in the confines of a room with a group of friends and those who were involved in this illegal activity.

V.T. appeals his adjudication concerning the theft of the camcorder.

ISSUE AND STANDARD OF REVIEW

¶ 8 The sole issue presented by V.T. is whether there was sufficient evidence to support the adjudication that he was an accomplice in the theft of the camcorder. When reviewing a juvenile court's decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court's determination, see State v. Layman, 1999 UT 79, ¶ 12, 985 P.2d 911,

reversing only when it is "against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Walker, 743 P.2d 191, 193 (Utah 1987).

ANALYSIS

¶ 9 Utah's accomplice liability statute, Utah Code Ann. § 76-2-202 (1999), provides:

Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

As with any other crime, the State must prove the elements of accomplice liability beyond a reasonable doubt. See State v. Lopes, 1999 UT 24, ¶ 11, 980 P.2d 191

; State v. Labrum, 959 P.2d 120, 123 (Utah Ct.App. 1998).

¶ 10 The State argues that V.T.'s continued presence during the theft and subsequent phone conversation about selling the camcorder, coupled with his friendship with the other two boys, is enough evidence to support the inference that he had "encouraged" the other two in committing the theft and that he is therefore an accomplice to the crime. Black's Law Dictionary defines encourage as: "[t]o instigate; to incite to action; to embolden; to help." Black's Law Dictionary 547 (7th ed.1999). The plain meaning of the word confirms that to encourage others to take criminal action requires some form of active behavior, or at least verbalization, by a defendant. Passive behavior, such as mere presence—even continuous presence—absent evidence that the defendant affirmatively did something to instigate, incite, embolden, or help others in committing a crime is not enough to qualify as "encouragement" as that term is commonly used.

¶ 11 The case law in Utah is consistent with this definition: "`Mere presence, or even prior knowledge, does not make one an accomplice'" to a crime absent evidence showing—beyond a reasonable doubt—that defendant "advise[d], instigate[d], encourage[d], or assist[ed] in perpetuation of the crime." Labrum, 959 P.2d at 123 (quoting State v. Kerekes, 622 P.2d 1161, 1166 (Utah 1980)).

¶ 12 In Labrum, the defendant was convicted of attempted criminal homicide due to his participation in a drive-by shooting.⁴ See 959 P.2d at 122. The juvenile court gave defendant an enhanced sentence, based on its finding that defendant had acted in concert with two or more persons in committing the shooting and was therefore subject to the "group crime enhancement" contained in Utah Code Ann. § 76-3-203.1(1)(a) & (b) (1999). See Labrum III, 959 P.2d at 122

. For purposes of that statute, "in concert" means that the other individuals who participated with defendant would be criminally liable for the offense as accomplices under Section 76-2-202. See Utah Code Ann. § 76-3-203.1(1)(b) (1999).

¶ 13 On appeal, we held that there was insufficient evidence to find that Behunin, one of the passengers in the car who defendant was alleged to have acted "in concert" with, would be guilty if tried under an accomplice liability theory for the shooting. See Labrum III, 959 P.2d at 123-24

. The juvenile court's findings supporting the group crime enhancement showed only that Behunin had been present before, during, and after the shooting and later was in defendant's presence when he boasted to a third party about the shooting. See id. Although Behunin apparently endorsed the boasting, we held these findings were insufficient to show that he solicited, requested, commanded, encouraged, or intentionally aided Labrum in committing the shooting.⁵

See id.

¶ 14 Two other Utah cases further illuminate the level of participation necessary to establish criminal liability as an accomplice. In State v. Smith, 706 P.2d 1052 (Utah 1985), our Supreme Court concluded there was sufficient evidence to convict Smith of aggravated robbery and theft based on a theory of accomplice liability. See id. at 1056-57. But in that case, there was testimony that Smith had recruited one of his co-defendants to aid in the robbery, that he selected the house to rob, and that he provided and drove the getaway car to and from the crime scene. See id. at 1056. This testimony was sufficient to show that Smith had solicited and intentionally aided his co-defendants in committing the robbery. See id. at 1056-57.

¶ 15 In State v. Webb, 790 P.2d 65 (Utah Ct.App.1990), we upheld Webb's conviction for aggravated robbery of a jewelry store under an accomplice theory. See id. at 84-85. Although the evidence was conflicting, there was testimony that Webb had solicited a co-defendant to steal the getaway car and give it to him, that Webb said he knew someone who would sell the stolen goods for them, and that he had sorted through the stolen jewelry with his partners-in-crime at a friend's house. See id. This evidence was sufficient to find that Webb had "solicited, requested, commanded, encouraged, or intentionally aided" in the robbery. Id. at 85.

¶ 16 These three cases make it clear that something more than a defendant's passive presence during the planning and commission of a crime is required to constitute "encouragement" so as to impose accomplice liability in Utah. There must be evidence showing that the defendant engaged in some active behavior, or at least speech or other expression, that served to assist or encourage the primary perpetrators in committing the crime.⁶

¶ 17 The juvenile court's conclusion that V.T. was an accomplice to the camcorder theft was not supported by the evidence in this case. No evidence whatsoever was produced indicating V.T. had encouraged—much less that he solicited, requested, commanded or intentionally aided—the other two boys in the theft of the camcorder.⁷

¶ 18 Instead, the evidence, read in the light most favorable to the juvenile court's decision, shows only that V.T. was present with the other two youths, albeit at multiple times: when the camcorder was stolen; when they were confronted about the theft of the guns; and when the plan to pawn the camcorder was being discussed by Moose. In sharp...