State v. Benson

• Decision Date: 27 August 2014
• Docket Number: No. 20120360–CA.,20120360–CA.
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Malik Eagle BENSON, Defendant and Appellant.

325 P.3d 855

759 Utah Adv. Rep. 33

STATE of Utah, Plaintiff and Appellee,

v.Malik Eagle BENSON, Defendant and Appellant.

No. 20120360–CA.

Court of Appeals of Utah.

April 24, 2014.

Certiorari Denied Aug. 27, 2014.

Richard G. Uday, for Appellant.

Sean D. Reyes and Jeffrey S. Gray, for Appellee.

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE RUSSELL W. BENCH concurred. ¹

Opinion

VOROS, Judge:

¶ 1 Defendant Malik Eagle Benson was charged with committing four armed robberiesin downtown Salt Lake City in less than twenty-four hours. After his arrest, Benson confessed to the first robbery, which included the theft of a car. That car served as the getaway vehicle in at least one of the other robberies, and police apprehended Benson after seeing him driving it. Benson unsuccessfully moved to sever charges relating to the first robbery from charges relating to the other three. His principal contention on appeal asserts that the trial court abused its discretion in denying his motion to sever. We hold that it did not.

BACKGROUND

¶ 2 A spate of similar robberies took place in Salt Lake City on February 18 and 19, 2011. At 1:30 p.m. on February 18, a parking lot scuffle between two men spilled into a taqueria. One of the men demanded the other's money and car keys, then brandished a gun, ordered a waitress and the patrons to “give him the cash,” and took one patron's wallet. The robber left in the stolen car, a blue Nissan.

¶ 3 Shortly after 7:00 p.m., an armed man robbed two people outside a local restaurant, then went inside and demanded money at the register. Half an hour later, an armed man held up a gas station four miles away and left in a blue Nissan Sentra. And the next morning, an armed man walked into the back office of a Burger King, confronted the manager, and told her to open the restaurant's tills. The man left the Burger King in a blue Nissan with the same plate numbers as the car stolen from the taqueria the day before.

¶ 4 Later that day, Officer Michael Coles spotted the stolen blue Nissan and made eye contact with the driver. The officer chased the blue Nissan into a hotel parking lot, where the driver left the car and ran into the hotel. A SWAT team evacuated the hotel guests and eventually flushed out and arrested Malik Eagle Benson, who had barricaded himself in a room. Officer Coles later identified Benson as the man driving the blue Nissan.

¶ 5 Benson was charged with eight counts of aggravated robbery using a dangerous weapon, one count of obstructing justice, and one count of failing to respond to an officer's signal to stop. Benson moved to sever the first three aggravated-robbery counts, which were based on the taqueria robbery, from the remaining five counts. Benson argued that the taqueria-robbery counts were “neither based on the same conduct nor otherwise connected together in their commission” to the other counts, that the two sets of aggravated-robbery counts did not “cumulatively comprise a common scheme or plan,” and that the “probative value of any evidence related to the [other robberies] would be significantly outweighed by its prejudicial effect” with respect to the taqueria-robbery counts. The trial court denied Benson's motion to sever.

¶ 6 A jury convicted Benson of two of the three taqueria-robbery counts, one count each for the gas station and Burger King robberies, and the counts for obstructing justice and failing to respond. It acquitted Benson of the third taqueria-robbery count and of all three counts based on the robbery of the local restaurant. The court sentenced Benson to five years to life for each of the aggravated-robbery counts and ordered that those sentences run consecutively. The court also sentenced Benson to one to fifteen years for obstructing justice and zero to five years for failing to respond and ordered that those sentences run concurrently with the aggravated-robbery sentences. Benson appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Benson contends that the trial court erred by denying his motion to sever the taqueria-robbery charges from the remaining charges. Granting or denying a severance motion “is a discretionary function of the trial judge, who must weigh prejudice to the defendant caused by joinder against considerations of economy and expedition in judicial administration.” State v. Pierre, 572 P.2d 1338, 1350 (Utah 1977). Accordingly, we grant a trial court that denies a severance motion “considerable latitude” and reverse only if the trial court's refusal to sever amounts to “a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial.” Id.; see also State v. Collins, 612 P.2d 775, 777 (Utah 1980); State v. Balfour, 2008 UT App 410, ¶ 10, 198 P.3d 471.

¶ 8 Benson also contends that one of the jury instructions was unconstitutional, “violating his presumption of innocence and impermissibly shifting the burden of proof.” Generally, we review a trial court's ruling on a jury instruction for correctness. State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892. But when a party does not object to an instruction at trial, we review the trial court's ruling “under the manifest injustice or plain error standard.” State v. Powell, 2007 UT 9, ¶ 11, 154 P.3d 788. Moreover, when “counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction,” we will not review the trial court's ruling, even under the manifest injustice exception. State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111.

ANALYSIS

I. Benson's Motion to Sever

¶ 9 Benson contends that the trial court erred by denying his motion to sever the three counts related to the robbery at the taqueria from the five counts related to the remaining three robberies. In reviewing a ruling on a motion to sever, we will “reverse [a denial] only if the trial judge's refusal to sever charges is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial. Under [the abuse of discretion] standard, we will not reverse ... unless the decision exceeds the limits of reasonability.” Balfour, 2008 UT App 410, ¶ 10, 198 P.3d 471 (alterations in original) (citations and internal quotation marks omitted).

¶ 10 Section 77–8a–1 of the Utah Code governs severance and joinder. That section specifies that two or more felonies may be tried together on two conditions. First, the charged offenses must be sufficiently connected. This connection exists if the charged offenses are (1) “based on the same conduct,” (2) “otherwise connected together in their commission,” or (3) “alleged to have been part of a common scheme or plan.” SeeUtah Code Ann. § 77–8a–1(1) (LexisNexis 2008). Second, the court must not have found that the defendant or the prosecution would be prejudiced by a joinder. Id. § 77–8a–1(4)(a).²

A. Connected Offenses

¶ 11 We first consider whether the charged offenses were connected. The parties agree that the counts related to the taqueria robbery are not based on the “same conduct” as the remaining counts. But we readily conclude that all four crimes are “otherwise connected together in their commission.” Id. § 77–8a–1(1).³

¶ 12 “Under our rules of statutory construction, we look first to the statute's plain language to determine its meaning.” Sindt v. Retirement Bd., 2007 UT 16, ¶ 8, 157 P.3d 797 (citation and internal quotation marks omitted). The plain language of the statute requires only that the charges be “otherwise connected together in their commission.” Utah Code Ann. § 77–8a–1(1).

¶ 13 We have held that crimes are “otherwise connected together in their commission” where a later crime is “precipitated by” an earlier one, such as where the later crime facilitates flight after the earlier one. See State v. Scales, 946 P.2d 377, 385 (Utah Ct.App.1997) (citation and internal quotation marks omitted). For example, in Scales, the defendant borrowed a gun from his brother-in-law, killed his wife with the gun, then fled in a car belonging to his wife's grandmother. Id. at 379–80. The trial court denied the defendant's motion to sever his murder count from his theft counts. Id. at 380–81. This court upheld that ruling, concluding that “the conduct resulting in the theft charges was precipitated by defendant's conduct resulting in the murder charge, and consequently the theft and murder charges were sufficiently ‘connected together in their commission’ to allow the trial court to order a single trial of the different offenses.” Id. at 385 (quoting Utah Code Ann. § 77–8a–1(1)(a) (Michie 1995)). But crimes need not be causally related to be connected; the category of connected cases includes, but is not limited to, “precipitation cases” like Scales. See State v. Smith, 927 P.2d 649, 653 (Utah Ct.App.1996).

¶ 14 Here, the taqueria robbery and the other robberies were “connected together in their commission.” SeeUtah Code Ann. § 77–8a–1(1). Benson committed all the crimes in the course of a single robbery spree within a twenty-four-hour period, using what appeared to be the same weapon and the same getaway car. Indeed, the blue Nissan Sentra runs as a thread through the robberies and Benson's apprehension. Benson stole it in the course of committing the taqueria robbery. He later confessed to this crime. The gas station robber concealed his face but left in a blue Sentra. The Burger King robber also concealed his face but left in a blue Sentra whose license plate matched that of the car stolen at the taqueria. Finally, police apprehended Benson after seeing him driving the Sentra.

¶ 15 This case differs from Scales principally in the order of events, not in their degree of connection. There the car theft allowed the perpetrator to drive away from the murder scene. See Scales, 946 P.2d at 379–80. Here, the car theft allowed the perpetrator to drive to the scene of each of the subsequent robberies.⁴ These crimes...