State v. Candelario
| Decision Date | 21 December 1995 |
| Docket Number | No. 940500-CA,940500-CA |
| Citation | 909 P.2d 277 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Tracy Alan CANDELARIO, Defendant and Appellant. |
| Court | Utah Court of Appeals |
David V. Finlayson and Robert K. Heineman, Salt Lake City, for Appellant.
J. Frederic Voros, Jr. and Jan Graham, Salt Lake City, for Appellee.
Before ORME, BENCH and WILKINS, JJ.
Defendant Tracy Candelario appeals his sentence for robbery. Defendant contends that merely threatening the use of a firearm is not enough to warrant a one-year enhancement under Utah Code Ann. § 76-3-203(2) (Supp.1995) when the perpetrator does not actually carry or display a dangerous weapon or a facsimile or likeness of a dangerous weapon. We disagree and affirm defendant's sentence.
Defendant entered a credit union and demanded money from a cashier. He claimed to have a gun and threatened to kill her if she did not comply. Defendant did not display a handgun, and, in fact, was not carrying a gun or a facsimile of a gun at the time. Neither did he maneuver his hand in his pocket or otherwise physically gesture that he had a gun. Nonetheless, he left the credit union with $2000 more than he went in with.
Defendant was charged with one count of aggravated robbery, a first degree felony in violation of Utah Code Ann. § 76-6-302 (1995). Pursuant to a plea agreement, defendant pled guilty to robbery, a second degree felony. See id. § 76-6-301. Relying on section 76-3-203(2), the trial court added an extra year to his sentence because defendant, in the course of committing the robbery, represented to the cashier that he had a firearm.
Defendant argues that the firearm enhancement is only appropriate when the defendant has actually displayed a firearm or the likeness of a firearm or has physically portrayed possession of a firearm. The State contends that the statute also contemplates the purely verbal representation that one is armed.
The firearm enhancement provision in question is found in a sentencing statute and provides as follows:
In the case of a felony of the second degree, for a term at not less than one year nor more than 15 years but if the trier of fact finds a dangerous weapon or a facsimile or the representation of a dangerous weapon, as provided in Section 76-1-601, was used in the commission or furtherance of the felony, the court shall additionally sentence the person convicted for a term of one year to run consecutively and not concurrently; and the court may additionally sentence the person convicted for an indeterminate term not to exceed five years to run consecutively and not concurrently.
Utah Code Ann. § 76-3-203(2) (Supp.1995) (emphasis added). 1
Based upon familiar principles of statutory construction, we conclude that defendant's conduct qualifies for the firearm enhancement under section 76-3-203(2).
When interpreting statutory language, we look first to the plain meaning of the statute. State v. Larsen, 865 P.2d 1355, 1357 (Utah 1993). We only resort to other methods if the language is ambiguous. State v. Vigil, 842 P.2d 843, 845 (Utah 1992). We routinely "assume 'the Legislature used each term advisedly, and we give effect to each term according to its ordinary and accepted meaning.' " State v. Masciantonio, 850 P.2d 492, 493-94 (Utah App.1993) (quoting Versluis v. Guaranty Nat'l Cos., 842 P.2d 865, 867 (Utah 1992)). "Whenever possible, statutes should be construed so that no portion is superfluous," and, as such, they should not be read to include a pure redundancy. Beynon v. St. George-Dixie Lodge # 1743, B.P.O.E., 854 P.2d 513, 518 n. 21 (Utah), cert. denied, 510 U.S. 869, 114 S.Ct. 195, 126 L.Ed.2d 153 (1993).
"Representation" is a term that, out of context, is subject to multiple meanings. It is an expansive term, and, while it can mean "a likeness, picture, model, or other reproduction," it can also refer to "a statement or account esp[ecially] made to convey ... [an] impression of something with the intention of influencing ... action." Webster's Third New Int'l Dictionary 1926 (1986).
If we interpreted "representation," as used in the statute, to mean only a physical likeness, we would agree with defendant that to be subject to the firearm enhancement he would actually have to have physically displayed something that looked like a gun. However, if the term "representation" means a statement intended to influence action, then the State would prevail because defendant claimed he had a gun, and that statement influenced the cashier to the point that she gave defendant the money he unlawfully demanded.
We agree with the State that, within the context of the statute, "representation" is not ambiguous. It clearly means a statement conveying an impression for the purpose of influencing action. 2
The Legislature, which we assume chose each word carefully, would not use two words to mean the same thing. In section 76-3-203(2), the Legislature allows for enhanced sentencing for anyone who commits a second degree felony using "a dangerous weapon or a facsimile or the representation of a dangerous weapon." "Facsimile" is defined as "an exact and detailed copy." Webster's Third New Int'l Dictionary 813 (1986). As counsel for defendant admitted at oral argument, if "representation" meant only a physical likeness of a weapon, "facsimile" would be fully subsumed within "representation." In other words, if representation meant likeness, then all facsimiles would be representations. Thus, if we adopted defendant's interpretation, the Legislature would have employed a wholly unnecessary term when it used the word "facsimile" in addition to the more inclusive term "representation."
Because we assume every word in the statute was chosen advisedly by the Legislature, we resist concluding it would have chosen redundant language. Therefore, we conclude that "representation" has a qualitatively different meaning in the context of section 76-3-203(2) than merely a likeness or model, i.e., that it means a verbal or nonverbal statement. See supra note 2.
Additionally, the Legislature's choice of articles before the nouns in section 76-3-203(2) indicates that the statute includes statements by a perpetrator that he or she possesses a dangerous weapon. The statute requires enhancement if the defendant used "a dangerous weapon or a facsimile or the representation of a dangerous weapon." Utah Code Ann. § 76-3-203(2) (Supp.1995) (emphasis added). The Legislature used the indefinite article "a" before the first two terms and the definite article "the" before "representation." Since we assume the Legislature chooses its words with care, we are reluctant to conclude the difference in...
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...31A-22-303(1)(a)(ii)(A). "When interpreting statutory language, we look first to the plain meaning of the statute." State v. Candelario, 909 P.2d 277, 278 (Utah Ct.App.1995) (citing State v. Larsen, 865 P.2d 1355, 1357 (Utah 1993)). We likewise "assume `the [l]egislature used each term advi......
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State v. Bryant
...construed so that no portion is superfluous,' and, as such, they should not be read to include a pure redundancy." State v. Candelario, 909 P.2d 277, 278 (Utah Ct.App.1995) (quoting Beynon v. St. George-Dixie Lodge # 1743, B.P.O.E., 854 P.2d 513, 518 n. 21 (Utah 1993)). Furthermore, the pro......
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...defendant yelled, "Get the gun and shoot," and "shoot to kill" during the robbery but did not display a weapon); State v. Candelario, 909 P.2d 277, 277 (Utah Ct.App.1995) (upholding sentence enhancement for robbery where defendant claimed to have a gun and threatened to kill the cashier but......
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State v. Ireland
...also supports our conclusion that the term "representation" includes concealed gestures and verbal statements. For example, in State v. Candelario, the court of appeals affirmed a firearm enhancement, reasoning that even though the defendant did not use an actual firearm, "[t]he plain meani......