State Of Utah v. Cristobal
| Decision Date | 19 August 2010 |
| Docket Number | No. 20090146-CA.,20090146-CA. |
| Citation | 238 P.3d 1096 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Luis CRISTOBAL, Defendant and Appellant. |
| Court | Utah Court of Appeals |
238 P.3d 1096
STATE of Utah, Plaintiff and Appellee,
v.
Luis CRISTOBAL, Defendant and Appellant.
No. 20090146-CA.
Court of Appeals of Utah.
Aug. 19, 2010.
Aaron P. Dodd, Provo, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges DAVIS, THORNE, and ROTH.
ROTH, Judge:
¶ 1 Defendant Luis Cristobal appeals the trial court's denial of his motion for a directed verdict, claiming that there was insufficient evidence to support enhancement of his criminal mischief conviction to a second degree felony for having “acted in concert with two or more persons.” See Utah Code Ann. § 76-3-203.1(1), (3)(c), (4)(g) (Supp.2010). 1 Because we conclude that there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that Cristobal was aided or encouraged by two or more persons, we vacate the enhancement.
¶ 2 A security guard was patrolling the area around a Savers store in Orem at around 3:00 a.m. when he saw a car parked in the service area behind the store that had not been there during his previous patrol. The car had its lights off and was parked next to a Savers delivery truck. A male (the unidentified male) was standing outside the car, looking through a window and talking to the car's occupants-two younger teenage girls. The security guard pulled into the service area and drove up to the front of the car, illuminating the car with his vehicle's headlights. The unidentified male ran away; he was not pursued and was never identified.
¶ 3 The security guard observed blue and silver gang-related graffiti on the store and the delivery truck as well as on a nearby portable storage unit and dumpster. As he exited his vehicle, the security guard noticed that the paint looked wet, and he could smell a strong odor of paint fumes. The graffiti had not been there during his previous patrol.
¶ 4 As the security guard approached the two females in the car, he saw in his peripheral vision another male (the juvenile) run behind the portable storage unit, holding two cans of spray paint. As the security guard walked over to the storage unit, he was approached from behind by the juvenile and Cristobal. He detained them both and called the police. Both Cristobal and the juvenile had either blue or silver paint on their fingers, and the security guard found two cans of spray paint-one silver and one blue-hidden behind the storage shed; both cans were missing their lids. A blue lid from a spray paint can was found inside the car with the two females; a silver lid from a spray paint can was found between the Savers delivery truck and the passenger side of the car. 2
¶ 5 Cristobal was charged with criminal mischief, a third degree felony, 3 see Utah Code Ann. § 76-6-106(2)(c), (3)(b)(ii) (2008), enhanced to a second degree felony under Utah Code section 76-3-203.1 (the Group Crime Enhancement), for having “acted in concert with two or more persons,” id. § 76-3-203.1(1), (3)(c), (4)(g) (Supp.2010). At the close of the State's case at trial, Cristobal moved for a directed verdict on the application of the Group Crime Enhancement, arguing that there was insufficient evidence that he had been “aided or encouraged by at least two other persons in committing” criminal mischief. See id. § 76-3-203.1(1)(b). The trial court denied the motion. A jury found Cristobal guilty of criminal mischief with the Group Crime Enhancement. Cristobal appeals.
¶ 6 Cristobal challenges the trial court's denial of his motion for a directed verdict, arguing that there was insufficient evidence that he had acted in concert with two or more persons under the Group Crime Enhancement. See id. § 76-3-203.1.
In reviewing the denial of a motion for a directed verdict based on a claim of insufficiency of the evidence, we will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, [w]e conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.
State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (alteration in original) (internal quotation marks omitted).
¶ 7 Because the evidence supporting application of the Group Crime Enhancement is circumstantial, the sufficiency of that evidence turns “on the inferences that can be reasonably and logically drawn from the evidence.” See State v. Workman, 852 P.2d 981, 985 (Utah 1993).
When, as here, the evidence consists solely of ... circumstantial evidence, the role of the reviewing court is to determine (1) whether there is any evidence that supports each and every element of the crime charged, and (2) whether the inferences that can be drawn from that evidence have a basis in logic and reasonable human experience sufficient to prove each legal element of the offense beyond a reasonable doubt. A guilty verdict is not legally valid if it is based solely on inferences that give rise to only remote or speculative possibilities of guilt.
Id. ; see also United States v. Jones, 49 F.3d 628, 632 (10th Cir.1995) (“[When a] prosecution is built upon circumstantial evidence, the government depends upon inferences to carry its burden .... [and] probative inferences ‘must be more than speculation and conjecture.’ ” (quoting Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir.1987) ( “Although a jury is entitled to draw reasonable inferences from circumstantial evidence, reasonable inferences themselves must be more than speculation and conjecture.”))).
¶ 8 On appeal, Cristobal does not challenge his underlying conviction for criminal mischief. Cristobal further concedes that there was sufficient evidence from which the jury could conclude that he had acted in concert with at least one other person-the juvenile. The issue before us, therefore, is whether there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that Cristobal had acted in concert with the unidentified male. 4
¶ 9 The Group Crime Enhancement statute provides that a person convicted of criminal
mischief “is subject to an enhanced penalty for the offense ... if the trier of fact finds beyond a reasonable doubt that the person acted in concert with two or more persons.” Utah Code Ann. § 76-3-203.1(1)(a) (Supp.2010); see also id. § 76-3-203.1(4)(g) (applying enhancement to property destruction offenses, including criminal mischief). “ ‘In concert with two or more persons' ... means the defendant was aided or encouraged by at least two other persons in committing the offense....” Id. § 76-3-203.1(1)(b).
¶ 10 For there to be sufficient evidence to support application of the Group Crime Enhancement, the State must have presented some evidence from which the jury could conclude beyond a reasonable doubt that Cristobal had been aided or encouraged by the unidentified male in committing criminal mischief. See Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183. In the absence of direct evidence, the jury's conclusion must be based upon reasonable inference and not mere speculation. See Workman, 852 P.2d at 985; see also Jones, 49 F.3d at 632; Sunward Corp., 811 F.2d at 521. The State argues that the following facts support a reasonable inference that Cristobal was aided or encouraged by the unidentified male: (1) the unidentified male was present at the scene of the crime-an otherwise empty service area behind a Savers store, late at night, where graffiti had been recently painted; (2) the unidentified male was standing next to the car in which Cristobal had arrived at the scene and was talking to its occupants; (3) a spray paint can lid was located between the delivery truck and the passenger side of the car; and (4) the unidentified male fled from the scene upon the arrival of the security guard. Because these facts, whether considered separately or together, do not support a reasonable inference that the unidentified male aided or encouraged Cristobal in committing criminal mischief, we conclude that there is insufficient evidence to support application of the Group Crime Enhancement.
¶ 11 The Group Crime Enhancement statute specifically requires that the defendant be aided or encouraged by two or more people. See Utah Code Ann. § 76-3-203.1(1)(b). To “aid” is “to provide with what is useful or necessary in achieving an end.” Webster's Ninth New Collegiate Dictionary 66 (9th ed.1986); see also Black's Law Dictionary 81 (9th ed.2009) (defining “aid and abet” as “[t]o assist or facilitate the commission of a crime, or to promote its accomplishment”). And to “encourage” means “ ‘[t]o instigate[,] to incite to action[,] to embolden[, or] to help.’ ” In re V.T., 2000 UT App 189, ¶ 10, 5 P.3d 1234 (first alteration in original) (quoting Black's Law Dictionary 547 (7th ed.1999)).
¶ 12 The State relies upon the unidentified male's presence at the scene of the crime as evidence that he aided or encouraged Cristobal. Based on the above definitions of “aid” and “encourage,” it is apparent that “something more than ... passive presence during the ... commission of a crime is required to constitute [aiding or] ‘encouragement.’ ” See id. ¶ 16. For instance, “[t]he plain meaning of the word [“encourage”] confirms that to encourage others to take criminal action requires some form of active behavior, or at least verbalization....” Id. ¶ 10. “Passive behavior, such as mere presence-even continuous presence-absent evidence that [action was taken] ... to instigate, incite, embolden, or help others in committing a crime is not enough to qualify as ‘encouragement’ as that term is commonly used.” Id. Thus, “[t]here must be evidence showing ... some active behavior, or at least speech or other expression, that served to assist or encourage ... in committing the crime.” Id. ¶ 16.
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