State v. Florez, 051420 UTCA, 20180827-CA

Docket Nº:20180827-CA
Opinion Judge:HARRIS, JUDGE
Party Name:State of Utah, Appellee, v. Lorenzo M. Florez, Appellant.
Attorney:Emily Adams, Attorney for Appellant Sean D. Reyes and Marian Decker, Attorneys for Appellee
Judge Panel:Judge Ryan M. Harris authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
Case Date:May 14, 2020
Court:Court of Appeals of Utah

2020 UT App 76

State of Utah, Appellee,


Lorenzo M. Florez, Appellant.

No. 20180827-CA

Court of Appeals of Utah

May 14, 2020

Eighth District Court, Vernal Department The Honorable Clark A. McClellan No. 171800830

Emily Adams, Attorney for Appellant

Sean D. Reyes and Marian Decker, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.



¶1 An elderly woman (Victim) discovered Lorenzo M. Florez at her back door, apparently trying to break into her house. Police soon arrived, and a jury later convicted Florez of four crimes, including attempted burglary (a third-degree felony) and criminal trespass (a misdemeanor). Florez appeals those two convictions, asserting that insufficient evidence supported his conviction for attempted burglary, and that the trial court erred by denying his request for a lesser-included-offense instruction. In addition to the issues he raises on direct appeal, Florez has also filed a motion, under rule 23B of the Utah Rules of Appellate Procedure, asking us to remand the case for additional proceedings as necessary to supplement the record to support a claim that Florez's trial counsel was ineffective for failing to investigate potential key witnesses. We reject Florez's arguments regarding sufficiency of the evidence and regarding the lesser-included-offense instruction. But we find merit in Florez's rule 23B motion, and we therefore remand this matter for further proceedings concerning that motion.


¶2 On a Christmas Eve morning, Victim-a ninety-two-year-old widow who lived alone-was taking a phone call on the upper level of her house in Vernal, Utah. Victim's backyard was surrounded by a fence that was at least four feet high and- having always felt safe in her neighborhood-she kept the gate closed, but never locked. After completing her phone call, she made her way down the stairs and, upon reaching the main level, she heard an unexpected noise, which was coming from the back door of her house. She turned to investigate, and saw a man at the back door who was actively trying to pick the lock on the outer door, using a "piece of wire." Later, at trial, Victim identified Florez as the man she saw at her back door.

¶3 Victim's back door had both a regular door and a storm door, which was a "pretty heavy door with bars going all the way through it, plus the glass and a screen." Victim opened the regular door, but not the storm door, and confronted Florez, telling him through the glass to "leave, go away." Florez looked at Victim briefly, and-without saying a word-persisted in his efforts to pick the lock.

¶4 Victim then called her neighbor (Neighbor) and explained the situation, and soon Neighbor and her son (Son) arrived at Victim's house. Neighbor also saw someone "with a wire" who was "trying to jimmy the lock and get into [Victim's] house." Neighbor went to the door and shouted "Hey[!]" at Florez, who did not respond, but "just kept trying to jimmy the lock." Neighbor then called the police.

¶5 As the police were en route, Victim and her neighbors remained in the house, with Son guarding the door and watching Florez. At some point before the police arrived, Florez-unprompted-stepped away from the storm door, backed down the patio steps, and put his hands on his head.

¶6 About two minutes later, a police officer (Officer) arrived and approached Florez, who was still standing on the back patio, "fiddling around with something that was in his hands." Officer identified himself and, twice, asked Florez to show his hands, but Florez "didn't respond at all" and just "looked basically right through" Officer. Later, Officer testified that Florez's behavior was consistent with that of an intoxicated person, though Officer did not conduct any field sobriety tests or other impairment investigation. Officer then placed Florez in handcuffs, and removed an object from Florez's hand, which turned out to be a sprinkler head that Florez apparently had broken off of the irrigation system in Victim's backyard. Florez did not have any other items on his person, but police later found a wire-taken from the sprinkler head Florez had been holding-on a nearby table, and also observed damage to the lock on the storm door.

¶7 After placing Florez in handcuffs, Officer ordered Florez to separate his feet to facilitate a search for weapons, but Florez once again did not comply, so Officer "helped [Florez] separate his feet." Officer asked Florez what his name was, to which Florez responded that he was a "federal agent." Officer then placed Florez in the back seat of his patrol car, where Florez eventually shared his correct legal name, date of birth, and social security number; when Officer checked that information in his police database, he discovered two outstanding warrants for Florez's arrest. However, when Officer asked Florez to state his current residence address, Florez gave Victim's home address. When the Officer pressed Florez a second time, Florez again claimed that he resided at Victim's address. After Officer again expressed skepticism, Florez stated, "Well, I don't know where my address is, then." Officer then arrested Florez. During the booking process that followed, Florez again maintained that he was a federal agent.

¶8 After investigating the matter, the State charged Florez with four crimes: (1) criminal mischief, a class B misdemeanor, for breaking Victim's sprinkler; (2) attempted burglary, a third-degree felony, for attempting to break into Victim's house; (3) criminal trespass, a class A misdemeanor, for trespassing on Victim's property; and (4) impersonating a peace officer, a class B misdemeanor, for claiming to be a federal agent. After a preliminary hearing, the court bound Florez over for trial on all four charges, although prior to trial it amended the bindover on the criminal trespass charge down to a class B misdemeanor.

¶9 The case proceeded to a jury trial. During its case-in-chief, the State called four witnesses-Victim, Neighbor, Son, and Officer-who gave testimony outlining the events described above. Florez's counsel cross-examined all of the State's witnesses, but Florez called no witnesses of his own and chose not to testify on his own behalf. During cross-examination of Officer, Florez's counsel inquired whether Florez was "a suspect" in other "events" that took place the same day as the attempted break-in at Victim's house, and Officer answered in the affirmative. Florez's counsel then asked Officer to recount the nature of those other events, as described in his police report, but the State lodged a hearsay objection, which the court sustained, and Florez's counsel was therefore unable to further question Officer about those events.

¶10 At the close of the State's evidence, Florez's counsel moved for a directed verdict on the attempted burglary charge. The motion in its entirety consisted of a single statement: "I guess my position right now would be to make a directed verdict [motion] based on the burglary, attempted burglary, ask the Court for a directed verdict. There's absolutely no evidence that could rise beyond a reasonable doubt on that count." The court denied the motion, discussing for a moment the question of how a factfinder might ascertain a burglar's criminal intent, and concluding that "there is evidence here" from which "a jury could infer" that Florez's "intent . . . to try to get into the residence was to take something or to do something other than commit a misdemeanor offense."

¶11 In addition to the directed verdict motion, Florez also asked the court for a lesser-included-offense instruction regarding the attempted burglary charge. Specifically, Florez wanted the court to instruct the jury that, on that charge, it could instead find him guilty of class A misdemeanor criminal trespass, which Florez argued was a lesser-included offense to attempted burglary. After some discussion, the trial court appeared poised to grant Florez's request and give the lesser-included-offense instruction. But the State then made an additional argument, pointing out that-given Florez's chief defense that, at the time, he was intoxicated and genuinely believed Victim's house was his, and therefore could not have had the requisite intent to enter the property illegally-there was no factual basis in the record for the jury to convict Florez of criminal trespass but acquit him of attempted burglary, because Florez's defense, if believed, would absolve him of both crimes. In response, Florez's counsel did not take issue with the State's assumption that Florez's chief defense was lack of mens rea for either crime, and did not offer the court any scenario under which Florez might be convicted of class A criminal trespass but acquitted of attempted burglary. The court then determined that it would not give the instruction Florez requested.

¶12 During closing argument, Florez's counsel asked the jury to find Florez not guilty, arguing that Florez did not have the requisite mental state to have committed the charged crimes. Much of counsel's argument centered around the assertion that Florez could not have had the mens rea to have committed any crime, but at one point counsel argued to the jury-even though he had not made any such argument to the court, during the jury instruction conference-that "other circumstantial evidence suggests that [Florez's] actions would have been to annoy, not to assault, [to] assert he was a federal agent, not to steal, not commit a felony or any other action that would constitute a burglary." Following closing argument, the case went to the jury, which found Florez guilty as charged on all four counts.


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