State v. Bradley, 20308

• Decision Date: 23 September 1985
• Docket Number: No. 20308,20308
• Citation: 752 P.2d 874
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Kenneth D. BRADLEY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 874

752 P.2d 874

The STATE of Utah, Plaintiff and Respondent, v. Kenneth D. BRADLEY, Defendant and Appellant.

No. 20308.

Supreme Court of Utah.

Sept. 23, 1985.

As Amended on Rehearing March 15, 1988.

John C. Green, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.

PER CURIAM.

Defendant Kenneth Dee Bradley was convicted by a jury of aggravated assault, a third degree felony in violation of U.C.A. § 76-5-103 (1978 ed.), aggravated burglary, a first degree felony in violation of section 76-6-203, and tampering with a witness, a third degree felony in violation of section 76-8-508. He appeals from all three convictions claiming that the evidence adduced at trial failed as a matter of law to establish his guilt beyond a reasonable doubt, and that he cannot be convicted of both a lesser offense and a greater offense. We reverse in part and affirm in part.

During her separation from her husband Bill, Gina Rider dated Tom Bettwieser who had been investigated for theft of funds belonging to a partnership in which defendant and Tom Adams were partners and Bettwieser was an employee. Defendant was also a suspect in the theft. On the day of the theft, Bettwieser informed Gina that he had committed the theft. In the course of the investigation of the partnership, Gina was contacted by law enforcement officials, was subpoenaed as a witness, and was involved with Tom Adams' private investigation of the theft.

On December 24, 1982, Bettwieser arranged for Gina and her two children to move into a house managed by defendant at 11th East and 17th South in Salt Lake City. Bill and Gina Rider reconciled, and with defendant's approval, Bill moved into the house a day later with the understanding that in lieu of rent, the Riders would pay the utilities for the house and an attached locksmith shop. On the day Rider moved in, he and Gina had an argument in which defendant intervened. Rider threatened defendant and his stepson with a sawed-off shotgun, but later everybody apologized, and the Riders continued to occupy the home.

In the afternoon of January 27, 1983, defendant, "Spider" Wissink, and "Bett" Bettwieser, Tom Bettwieser's younger brother, drove to the Riders' home. The Riders, their two small children, and Gina's eighteen-year-old sister were at home. Rider was expecting defendant because he needed his signature on some social security papers. He opened the door for defendant, telling Gina that defendant was there. The three men entered, and Spider pulled Rider's shotgun from a rack on the wall, drew a pistol from his waist, and pointed it at Rider's head. He turned to defendant and asked, "What do you want me to do, boss? Do you want me to break some bones or blow them away?" Defendant answered that he thought the matter could be settled without violence. He then informed Gina that he was tired of her involvement with Tom Adams, that she had been talking too much and he wanted it stopped, and that he would "just as soon blow you away as look at you if it gets to it." The Riders' four-year-old girl became frightened and started screaming. Spider At the end of the state's case in chief, defendant moved to dismiss the charges against him for the State's failure to meet its burden of proof. That motion was denied. In this appeal, defendant challenges the sufficiency of the evidence to support a verdict of guilty on all three charges. We view the evidence in a light most favorable to the jury verdict and do not disturb the jury verdict unless the evidence is so lacking and insubstantial that a reasonable man could not possibly have reached a verdict beyond a reasonable doubt. State v. McCardell, 652 P.2d 942 (Utah 1982). We apply that same standard to those facts that can be reasonably inferred from the evidence presented at trial. State v. Griffin, 685 P.2d 546 (Utah 1984).

told her that he did not want to hurt her daddy and that he was just doing his job. Defendant, at that point, ordered the Riders out of the house. Spider took Rider at gunpoint through the rooms to gather his belongings. When the Riders refused to use defendant's truck to move, he left and said he would be back at the end of the day. Rider called the police, who escorted the family out of the home.

I.

In support of his claim that the evidence adduced at trial failed as a matter of law to establish his guilt beyond a reasonable doubt on the charge of aggravated assault, defendant contends that the statute interdicts the use of "a deadly weapon or such means or force likely to produce death or serious bodily harm." Defendant takes the position that it was Spider and not he who held the weapon and that the State entirely failed to prove assault against him. The trial court properly instructed the jury on aggravated assault and on assault as an attempt, with unlawful force or violence, to do bodily injury to another, or a threat of bodily injury to another accompanied by a show of immediate force or violence. U.C.A. §§ 76-5-102 and 103 (1978 ed.). It also instructed the jury that defendant could be held criminally liable for the conduct of another, as defined in section 76-2-202. See also State v. Garcia, 663 P.2d 60 (Utah 1983). The evidence delineated above was sufficiently substantial for the jury to find defendant guilty of aggravated assault.

Defendant's challenge to the sufficiency of the evidence on the conviction of aggravated burglary is grounded inter alia in his claim that he did not enter the Rider premises unlawfully, and thus a crucial element of the crime of burglary was not established. Defendant overlooks the fact that a person is guilty of burglary "if he enters or remains unlawfully in a building ... with intent to commit ... an assault on any person." U.C.A. § 76-6-202 (1978) (emphasis added). In State v. Brown, 6 Kan.App.2d 556, 630 P.2d 731 (1981), the court, in defining a statute similar to Utah's, K.S.A. 21-3716, stated that "remaining within refers to the situation where defendant's initial entry is authorized, but at some later time that person's presence becomes unauthorized." Id. 630 P.2d at 735. Although it is true that Rider opened the door to defendant whom he expected to come to his house for a lawful purpose, his consent to defendant's entry was limited to that purpose and did not authorize defendant to order Rider out of the house at gunpoint. "[A] consent limited as to place, time, or purpose is not a defense where entry occurs outside the limitation stated or implied." State v. Keys, 244 Or. 606, 419 P.2d 943, 946 (1966) (citations omitted). See also State v. Pierce, 14 Utah 2d 177, 380 P.2d 725 (1963) (no consent where entry obtained through deception). The jury was well within its province in finding that defendant entered or remained unlawfully in the Rider home with the intent to commit an assault. Defendant's remaining point, that the jury was not instructed that defendant was an accomplice, is contradicted by the record as stated above.

Defendant next contends that the state failed to put on any credible evidence of a pending official proceeding or investigation to convict him of tampering with a witness. That argument is based on a faulty premise. The statute requires no more than that a defendant believe an official

proceeding or investigation to be underway. The jury was properly instructed on the elements set out in section 76-8-508. The Riders reported to the police officer on the day of the assault that defendant was angry because Gina had been talking to Tom Adams. It was for the jury to decide whether any credible inference could be drawn from that testimony that defendant wanted to stop Gina from involving herself with any official proceeding or investigation he believed was underway. The existence of contradictory evidence or conflicting inferences does not warrant disturbing the jury's verdict. State v. Howell, 649 P.2d 91 (Utah 1982).

II.

Finally, defendant claims that he cannot be convicted of both aggravated assault and aggravated burglary, because under the facts of this case, the greater crime is that of aggravated assault which is the basis of the lesser crime of aggravated burglary. In support he cites State v. Hill, Utah, 674 P.2d 96, 97 (1983), where this Court stated that "where the two crimes are 'such that the greater cannot be committed without necessarily having committed the lesser,' State v. Baker, Utah, 671 P.2d 152, 155 (1983), then as a matter of law they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both." See also U.C.A. § 76-1-402(3) (1978 ed.).

Aggravated assault is a felony of the third degree, whereas aggravated burglary is a felony of the first degree, and thus we need to determine whether defendant could have committed the aggravated burglary without necessarily having committed the aggravated assault. ¹

In State v. Hill, supra, we stated that a secondary test was required...