State v. Gallegos

• Decision Date: 14 June 2018
• Docket Number: No. 20150881-CA,20150881-CA
• Citation: 427 P.3d 578
• Parties: STATE of Utah, Appellee, v. Stephanie Marie GALLEGOS, Appellant.
• Court: Utah Court of Appeals

427 P.3d 578

STATE of Utah, Appellee,

v.Stephanie Marie GALLEGOS, Appellant.

No. 20150881-CA

Court of Appeals of Utah.

Filed June 14, 2018

Alexandra S. McCallum, Attorney for Appellant

Sean D. Reyes, Salt Lake City and Daniel W. Boyer, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.

Opinion

MORTENSEN, Judge:

¶1 During a birthday dance party gone wrong, Stephanie Marie Gallegos and a group of celebrators formed a semicircle around Victim and shouted expletives at her before breaking into an all-out melee. A member of the group hit Victim on the side of the head with a beer mug and pushed her over a table. Victim may have blacked out as she was kicked on the ground. A security video showed Gallegos eventually being pulled from the brawl. Victim sustained a broken nose, broken toe, a torn ear, and scrapes and bruises. The State charged Gallegos for her involvement in the beating, and a jury convicted her as an accomplice to assault. Gallegos appeals, contending that the evidence at trial was insufficient to support her conviction and that the conviction should be reversed for prosecutorial misconduct. We affirm.

BACKGROUND¹

¶2 Gallegos and a group of her friends were at a dance club celebrating Gallegos’s birthday. Victim happened to be at the same club that evening. As Victim and her friend exited the restroom, the door swung open and bumped one of Gallegos’s friends. A member of Gallegos’s party warned Victim’s friend to "watch yourself." Victim’s friend apologized, but Gallegos’s friend repeated her warning. Victim interjected, and Gallegos and her friends began to focus their aggression on her.

¶3 Gallegos and three other women stood up and formed a semicircle around Victim. They shouted profanities at Victim, who testified that she felt threatened by the group’s verbal attacks. Gallegos’s friend eventually shoved Victim, and Victim retaliated with a punch. A security video shows the group, including Gallegos, converging on Victim, advancing forward, and forcing Victim backward several feet toward a wall. One of the women hit Victim on the side of the head with a beer mug. Victim was eventually thrown over a table and toppled to the ground.

¶4 The women kicked and hit Victim and pulled her hair while she lay on the ground in a fetal position. Others joined the fight, but Victim could not see anyone’s face because of her position. Victim testified that she "might have lost consciousness" during the brawl.

¶5 Security personnel eventually broke up the fight. The security video shows Gallegos being yanked from the fray. Victim was treated for a broken nose, a torn ear, and many scrapes and bruises. Three years after the attack, Victim still reported difficulty breathing as a result of her broken nose and doctors have recommended nasal surgery.

¶6 After the beating, Victim identified Gallegos as "one of the girls." Victim’s friend and other club patrons also identified Gallegos as one of the people involved in the skirmish. Police detained Gallegos at the scene and the State eventually charged her with assault, which was enhanced to a third degree felony for having acted "in concert with two or more persons." See Utah Code Ann. § 76-3-203.1(2)(a) (LexisNexis 2017).

¶7 At trial, Gallegos moved for a directed verdict. She argued, "The State did not make a prima facie case that [she] assaulted the victim" and that "there’s been no evidence that her activity led to the substantial bodily injury, or that there was any meeting of the minds, no testimony of people saying jump her, no party liability to attach– that to." The trial court denied the motion.

¶8 Also at trial, the defense called Gallegos’s friend (Witness), who was present during the altercation, to testify. Witness testified that she believed Gallegos jumped in to break up the fight rather than to assault Victim. However, Witness testified that Gallegos was hit in the face and eventually began throwing punches. Witness testified that the fight did not seem to be directed at a particular person, but rather was "all amongst themselves. ... just arms flying and hitting whoever was the closest."

¶9 Finally, during rebuttal on closing argument, the State explained accomplice liability and argued,

This is the same theory applied at a robbery. The getaway driver is just as guilty as the person who’s inside. They may treat it differently in sentencing, but again you guys don’t worry about sentencing. All you guys are there to determine is whether ... she’s guilty.

The State also offered during closing argument,

This is, like I said, just a gang beating. In my opinion, not in a street gang sense of the term, but they are ganging up on her and attack her.

Gallegos did not object to either statement.

¶10 The jury returned a guilty verdict. Gallegos appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Gallegos raises two issues on appeal. First, she contends that the State presented insufficient evidence to support her assault conviction, and particularly that the evidence does not support that Gallegos "acted as an accomplice to the assault by ‘intentionally aid[ing]’ the principal actor in its commission." "We will reverse a jury conviction for insufficient evidence only when the evidence is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which [she] was convicted." State v. Shumway , 2002 UT 124, ¶ 15, 63 P.3d 94.

¶12 Second, Gallegos contends that the prosecutor engaged in misconduct during the State’s closing rebuttal argument. Gallegos concedes that this challenge is unpreserved, and thus asks that we review it for plain error or ineffective assistance of counsel. "The plain error standard of review requires an appellant to show the existence of a harmful error that should have been obvious to the district court. An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Ringstad , 2018 UT App 66, ¶ 32, 424 P.3d 1052 (cleaned up).

ANALYSIS

I. Preservation

¶13 We first address the State’s threshold argument that Gallegos’s challenge to the sufficiency of the evidence was unpreserved. After reviewing the record we are satisfied that Gallegos’s contention was adequately preserved.

¶14 An issue is preserved if it is "presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." 438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). "For a trial court to be afforded an opportunity to correct the error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority." Id. (cleaned up). "Further, where a motion for a directed verdict makes general assertions but fails to assert the specific argument raised on appeal, the directed verdict motion itself is insufficient to preserve the more specific argument for appeal." State v. Bosquez , 2012 UT App 89, ¶ 8, 275 P.3d 1032 ; see also State v. Patrick , 2009 UT App 226, ¶¶ 15–16, 217 P.3d 1150 (holding that a specific defense of habitation argument was not preserved by argument on a separate claim of self-defense).

¶15 Here, Gallegos "moved to dismiss," saying "the State did not make a prima facie case that defendant assaulted the victim" and "there’s been no evidence that her activity led to the substantial bodily injury, or that there was any meeting of the minds, no testimony of people saying jump her, no party liability to attach that to." On appeal she rephrases her argument, contending that the evidence does not support the finding that her activities "amounted to intentionally aiding in the commission of the assault that caused [Victim] to suffer substantial bodily injury."

¶16 First, there is no question that Gallegos made a timely directed verdict motion. Second, we are satisfied that the issue was specifically raised. On the surface, Gallegos’s argument on appeal appears to shift its focus to challenge the State’s evidence regarding intent. However, Gallegos’s motion and arguments below are not so tangential that they do not mirror the specific arguments on appeal. Though worded differently and cursorily, the argument below was that the evidence adduced at trial was insufficient to meet the elements of the offense, and particularly that there was no "meeting of the minds." The same is being argued here with more flesh on the bone. Third, we are also satisfied that Gallegos adequately supported her motion with appropriate legal authority. Although Gallegos phrased her motion as a motion to dismiss, there is no question, in context, that she made a motion for a directed verdict based on the sufficiency of the evidence.

¶17 Accordingly, we are satisfied that Gallegos preserved her challenge to the sufficiency of the evidence. We thus consider the challenge on its merits.

II. Sufficiency of the Evidence

¶18 Gallegos contends that the evidence presented by the State at trial was insufficient to support her conviction as an accomplice to assault. She argues that the evidence at trial could not establish that she "intentionally aided in the commission of the assault." Because there was an "absence of direct evidence," she asserts that the jury could only reasonably infer her "passive presence" during the brawl, it being equally likely that her motive was to break up the fight as it was to join it. We disagree.

¶19 On appeal, Gallegos does not dispute that the trial evidence established that the underlying assault occurred. Nor does she challenge the group enhancement. We therefore examine only the law as it pertains to liability for accomplice to assault. "Every person, acting with the mental state required for the commission of an offense who ... intentionally aids another person to engage in conduct which constitutes an...