State v. Holgate, 990313.

CourtSupreme Court of Utah
Citation2000 UT 74,10 P.3d 346
Docket NumberNo. 990313.,990313.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Sean Hale HOLGATE, Defendant and Appellant.
Decision Date19 September 2000

10 P.3d 346
2000 UT 74

STATE of Utah, Plaintiff and Appellee,
Sean Hale HOLGATE, Defendant and Appellant

No. 990313.

Supreme Court of Utah.

September 19, 2000.

10 P.3d 348
Jan Graham, Att'y Gen., Scott Keith Wilson, Jeffrey S. Gray, Asst. Att'ys Gen., Salt Lake City, for plaintiff

John D. O'Connell, Jr., Kent R. Hart, Heidi Buchi, Salt Lake City, for defendant.

RUSSON, Associate Chief Justice:

¶ 1 Defendant Sean Holgate was tried before a jury and convicted of murder and aggravated burglary. Holgate argues on appeal that there was insufficient evidence to sustain a conviction on either count. Holgate failed to raise the sufficiency of the evidence issue below, but argues that he should be entitled to raise such a claim initially on appeal.


¶ 2 "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly." State v. Brown, 948 P.2d 337, 339 (Utah 1997). We present conflicting evidence only as necessary to understand issues raised on appeal. See State v. Dunn, 850 P.2d 1201, 1206 (Utah 1993).

¶ 3 On the evening of June 17, 1997, Jake Gallegos, the victim, along with two friends, went to Holgate's apartment in West Valley City to purchase drugs. Holgate's friend Micah Phillips joined the group at Holgate's apartment. At some point, Gallegos and his two friends left the apartment and returned to deliver forty dollars to Holgate. Gallegos gave the money to Holgate but then angrily left, exclaiming that Holgate had cheated him. Holgate later testified that Gallegos was "pretty furious" when he left.

¶ 4 Later that evening, Gallegos telephoned Holgate several times and threatened Holgate and his mother. Gallegos also returned to Holgate's apartment to make additional threats. Among other threats, Gallegos threatened to take Holgate and his family hostage. Holgate's mother, who resided with Holgate, called the police to report the harassment. Officer Rafael Fausto reported to the scene and discussed the matter with Holgate and his mother. Attempting to resolve the dispute, Officer Fausto

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contacted Gallegos and escorted him to Holgate's apartment. After discussing the matter, Gallegos apologized and shook hands with Holgate. Officer Fausto instructed Gallegos to make no further contact with Holgate and his family, and instructed Holgate to contact the police if any further problems arose

¶ 5 On June 19, 1997, Holgate called Gallegos to tell him that he would be coming over to his apartment. Phillips joined Holgate, and they proceeded together to Gallegos's apartment, which was located in the same apartment complex. Holgate later testified that Phillips did not "really know" Gallegos and had not been threatened by him. However, Holgate had informed Phillips that Gallegos was dangerous. Phillips hid himself just outside the apartment door so that he was out of the line of sight of whoever answered the door. Holgate knocked on the door. Gallegos's friend, Tuty Tho, opened the door and was greeted by Holgate, who asked to see Gallegos. Tho called for Gallegos, who was in the kitchen, and Gallegos told Tho to invite Holgate in. Holgate called out to Gallegos, responding, "No. Why don't you come out here? I need to talk to you real fast." Gallegos then proceeded from the kitchen toward the apartment entrance and as he did so, again invited Holgate in. Holgate once again refused and then stepped backwards, grinning, while Phillips stepped inside the entrance of the apartment. Standing inside the entrance with both hands hidden behind his back, Phillips asked, "Hey, what's up, bro?" to which Gallegos replied, "What's up?" After this brief exchange, Phillips asked Gallegos in a threatening voice, "What are you going to do now?" and pulled from behind his back a semi-automatic handgun. Throughout this exchange, Holgate stood directly behind Phillips and was grinning.1

¶ 6 As Gallegos turned to flee into the kitchen, Phillips fired the gun, fatally wounding Gallegos. Phillips then waved the gun back and forth in a sweeping motion, and after his gun apparently jammed, fled from Gallegos's apartment with Holgate. Holgate and Phillips ran together in a direct path across the apartment complex and parking lot to Phillips's vehicle, which was parked nearby. A friend of Phillips and Holgate, Tony Miller, waited in the driver's seat of the vehicle. When Holgate and Phillips arrived, Holgate said, "Get in, G."2 Phillips and Holgate then climbed into the car and were driven away from the apartment complex by Miller. They departed so quickly that the vehicle's tires squealed as they sped away.

¶ 7 The police apprehended them shortly thereafter. When asked by the police why he thought they had been stopped, Holgate replied, "Because somebody talking shit got dealt with." A search of the car revealed the murder weapon wrapped in a stocking cap under the front passenger seat. Tests performed thereafter revealed the presence of gunpowder residue on Holgate's clothing. While being transported to the police station, Holgate asked an officer, "Does this have anything to do with what happened in West Valley?" Holgate testified at trial that he did not find out that Gallegos had been shot until two to three hours after the shooting when he was interrogated at the police station.

¶ 8 For his alleged participation in the killing of Gallegos, Holgate was charged with murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203, and aggravated burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-203.3 At his jury trial, Holgate alleged that he went to Gallegos's apartment on June 19 because Phillips

10 P.3d 350
claimed he wanted to return the forty dollars that Gallegos said they had stolen. Holgate conceded that they did not return the forty dollars to Gallegos, and a search of the car and the three suspects revealed only sixtytwo cents in their possession

¶ 9 The jury found Holgate guilty on both counts, and the trial court sentenced Holgate to concurrent prison terms of five years to life for the two convictions and consecutive one-year terms on each count for a weapons-related enhancement.

¶ 10 On appeal, Holgate argues that there was insufficient evidence to convict him of either murder or aggravated burglary. Holgate concedes that he failed to raise the sufficiency issue before the trial court, but contends that he should be entitled to raise it for the first time on appeal because (1) a conviction based on insufficient evidence constitutes "plain error" or "exceptional circumstances," (2) such a conviction would violate Holgate's "fundamental constitutional rights," and (3) a rule permitting defendants to raise an insufficient evidence claim for the first time on appeal would not implicate the policies on which the preservation doctrine is premised.



¶ 11 As a general rule, claims not raised before the trial court may not be raised on appeal. See State v. Marvin, 964 P.2d 313, 318 (Utah 1998). The preservation rule serves two important policies. First, "in the interest of orderly procedure, the trial court ought to be given an opportunity to address a claimed error and, if appropriate, correct it." State v. Eldredge, 773 P.2d 29, 36 (Utah 1989). Second, a defendant should not be permitted to forego making an objection with the strategy of "enhanc[ing] the defendant's chances of acquittal and then, if that strategy fails, ... claim[ing] on appeal that the Court should reverse." State v. Bullock, 791 P.2d 155, 159 (Utah 1989). To serve these policies, we have held that the preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that "exceptional circumstances" exist or "plain error" occurred. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996); State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994).

¶12 We have stated that "the exceptional circumstances exception is ill-defined and applies primarily to rare procedural anomalies." State v. Dunn, 850 P.2d 1201, 1209 n. 3 (Utah 1993). Holgate fails to point out any procedural anomalies or other exceptional circumstances that might justify his failure to preserve the sufficiency of the evidence in the instant case. We thus turn to his claim of plain error.

¶ 13 The plain error exception enables the appellate court to "balance the need for procedural regularity with the demands of fairness." State v. Verde, 770 P.2d 116, 122 n. 12 (Utah 1989). "At bottom, the plain error rule's purpose is to permit us to avoid injustice." Eldredge, 773 P.2d at 35 n. 8. To demonstrate plain error, a defendant must establish that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." Dunn, 850 P.2d at 1208-09.

¶ 14 As a general rule, to ensure that the trial court addresses the sufficiency of the evidence, a defendant must request that the court do so. The Utah Rules of Criminal Procedure state that when a defendant moves the court to arrest judgment on the basis of insufficient evidence, the directive is mandatory in that the court "shall[] arrest judgment if the facts proved or admitted do not constitute a public offense." Utah R.Crim. P. 23. In contrast, when a defendant fails to make such a motion, the directive is permissive, providing that the trial court may arrest judgment. See id.; see also Utah R.Crim. P. 17(o) ("[T]he court may issue an order dismissing any information or indictment ... upon the ground that the evidence is not legally sufficient to establish the offense charged ...." (emphasis added)); Utah R.Crim. P. 24(a) ("The court may, upon

10 P.3d 351
motion of a party or upon its own initiative, grant a new trial in...

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