State v. Jimenez, 20100162.
| Decision Date | 06 July 2012 |
| Docket Number | No. 20100162.,20100162. |
| Citation | 284 P.3d 640,2012 UT 41,712 Utah Adv. Rep. 50 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Jesus A. JIMENEZ, Defendant and Petitioner. |
| Court | Utah Supreme Court |
OPINION TEXT STARTS HERE
Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Salt Lake City, for respondent.
Herschel P. Bullen, Salt Lake City, for petitioner.
On Certiorari to the Utah Court of Appeals
INTRODUCTION
¶ 1 A jury convicted Jesus Jimenez of aggravated robbery. The jury also found that Mr. Jimenez was subject to a one-year enhancement of his sentence because a dangerous weapon, a gun, was used in the course of the robbery. Mr. Jimenez appealed his conviction. The court of appeals affirmed. Mr. Jimenez contends that the court of appeals erred when it rejected his claim that his counsel was ineffective and his claim that the plain error exception to our preservation rules applied in his case. Mr. Jimenez's arguments are based on the contention that the State failed to prove he had knowledge of the principal's possession of a dangerous weapon. We first clarify the mental state required for the dangerous weapon aggravator in Utah Code section 76–6–302(1)(a). We hold that, because the legislature has made no indication that it is a strict liability offense, the statutory aggravator requires the culpable mental state of recklessness. Mr. Jimenez's claims on appeal do not require reversal, however, because he has not demonstrated that the errors caused him prejudice. We therefore affirm the conviction of aggravated robbery with a one-year penalty enhancement.
¶ 2 On August 15, 2007, Mr. Jimenez repeatedly drove past a salon owned by Faviola Hernandez.1 He was accompanied by his girlfriend, Cassandra Matern, and his friend, Miguel Mateos. Ms. Matern was seated in the back seat of Mr. Jimenez's green Honda. Mr. Mateos sat in the front passenger seat. Mr. Jimenez passed the salon several times. First, he drove by west on California Avenue, then he turned around and drove east past the salon. He then turned around and drove west a second time. Finally, he drove north and then south on Navajo Street. Faviola's siblings, Laura and Junior, were playing at the nearby elementary school. The elementary school's surveillance cameras confirmed this pattern of driving.
¶ 3 Mr. Jimenez and Mr. Mateos spoke to each other in Spanish while Mr. Jimenez drove back and forth in front of the salon. Ms. Matern could not relate details of the conversation because she understands very little Spanish. Despite the language barrier, Ms. Matern became suspicious of the subject of the conversation and driving activity after Mr. Jimenez drove past the salon for the third time. Mr. Jimenez finally stopped the car just south of the salon. Mr. Mateos exited the car. Mr. Jimenez then turned the car around and told Ms. Matern to get down in the back seat. When she refused, he repeated that she “had better get down.”
¶ 4 Mr. Mateos entered the salon. There, he found Faviola with a customer, Leonel Hernandez. Also inside were Laura and Junior, who had returned from the school playground. Mr. Mateos pointed a gun at Leonel, told him to get on the ground, and demanded money. Mr. Mateos also pointed the gun at Laura and Junior and told them to get on the ground. Faviola said, Mr. Mateos continued to demand money. Faviola went to the back of the salon and returned with a gun she kept for protection. The weapon failed to protect Faviola. Mr. Mateos shot her in the chest and left the salon. Leonel got up, locked the door to the salon, and called 911.
¶ 5 Faviola told Leonel that she had been shot and then collapsed. Leonel attempted to stop the bleeding with a towel, but when the police arrived at the salon, Faviola was dead.
¶ 6 Hearing the gunshot in the salon, Ms. Matern told Mr. Jimenez to leave, but Mr. Jimenez refused. Mr. Mateos returned to the car and got into the back seat. Mr. Jimenez drove to a nearby Wal–Mart where Mr. Mateos exited the back seat, still holding the gun. Mr. Mateos changed his shirt. Mr. Jimenez and Mr. Mateos then removed the car's stereo and hid the gun in the stereo space.
¶ 7 Mr. Jimenez was convicted as an accomplice to criminal homicide and to aggravated robbery with a one-year penalty enhancement. The court of appeals affirmed. We granted certiorari to determine whether the court of appeals erred in rejecting Mr. Jimenez's appellate arguments of ineffective assistance of counsel and plain error in relation to his conviction for aggravated robbery and the imposition of a penalty enhancement. We have jurisdiction under Utah Code section 78A–3–102(3)(a).
¶ 8 On certiorari, we review a decision of the court of appeals for correctness.2
¶ 9 The court of appeals held that the aggravated robbery statute “do [es] not state that accomplice liability for aggravated robbery requires that the accomplice knew a weapon was present” when the crime was committed. 3 The State takes this a step further, arguing that the legislature has made a “policy decision that those participating in any robbery, whether as principals or as accomplices, who intend that a robbery be committed, face strict liability for the use of a gun.” The State cites no authority for this proposition other than the statute itself. The statute provides, “A person commits aggravatedrobbery if in the course of committing robbery, he: (a) uses or threatens to use a dangerous weapon....” 4 It is an “established first principle of the criminal law, with few exceptions, ... that the doing of a wrongful act without the requisite culpable mental state does not constitute a crime.” 5 The aggravated robbery statute does not expressly specify the required mental state, but the legislature has provided guidance for such an omission.
Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge, or recklessness shall suffice to establish criminal responsibility. An offense shall involve strict liability if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state.6
This court has stated that “[u]nder the Utah Criminal Code, a crime may be a strict liability crime only if the statute specifically states it to be such.” 7State v. Elton is an instructive example of an unlawful imposition of strict liability.8 That case involved a defendant who engaged in sexual intercourse with a girl who was fourteen years old. He was convicted under Utah's unlawful sexual intercourse statute.9 The statute at that time provided, “ ‘A person commits unlawful sexual intercourse if that person has sexual intercourse with a person, not that person's spouse, who is under sixteen years of age.’ ” 10 The defendant contested the trial court's instruction that mistake as to the girl's age was not a defense. We held that the language of the statute did not “clearly indicate ‘a legislative purpose to impose strict liability’ as required by § 76–2–102.” 11Elton also demonstrates the legislature's ability to impose strict liability for an offense, as after the defendant's conviction but before our opinion on Mr. Elton's appeal was published, “the Legislature ... amended the Utah Criminal Code in 1983 to disallow mistake of fact as to age as a defense to the crime of unlawful sexual intercourse.” 12
¶ 10 Generally, to be found guilty of an offense under an accomplice liability theory, the accomplice must “act[ ] with the mental state required for the commission of [that] offense.” 13 Mr. Jimenez argues that, in contrast with the aggravated robbery statute, the aggravated burglary statute is crafted to hold accomplices liable for a dangerous weapon aggravator without proof of a culpable mental state. The aggravated burglary statute provides that a “person is guilty of aggravated burglary if in attempting, committing, or fleeing from a burglary the actor or another participant in the crime ... possesses or attempts to use any explosive or dangerous weapon.” 14
¶ 11 The aggravated robbery statute contains no indication that the general rules of mental culpability do not apply. In contrast to the current version of Utah's unlawful sexual intercourse statute, the robbery statute contains no language indicating that the aggravator imposes strict liability.15 Absent any indication that the legislature intended to eliminate the mental component of the crime, strict liability is inapplicable. This court recently encountered a case where “[t]he juvenile court agreed with the prosecution, acknowledging that [the alleged accomplice's] knowledge of the gun was the ‘key element’ ” for the charge of aggravated robbery.16 We now clarify that, in the absence of a specified mental state in Utah Code section 76–6–302, we follow section 76–2–102, which imposes the culpable mental state of recklessness.
¶ 12 Having determined that the State was required to prove that Mr. Jimenez was at least reckless regarding the use of a gun in the robbery, we turn now to his ineffective assistance of counsel claim. The Supreme Court established a two-part test for evaluating a defendant's claim of ineffective assistance of counsel: 17 This requires the defendant to “proffer evidence sufficient to support a reasonable probability...
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