State v. Lee

• Decision Date: 06 April 1992
• Docket Number: No. 910430-CA,910430-CA
• Citation: 831 P.2d 114
• Parties: STATE of Utah, Plaintiff and Appellee, v. Lyndon C. LEE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 114

831 P.2d 114

STATE of Utah, Plaintiff and Appellee, v. Lyndon C. LEE, Defendant and Appellant.

No. 910430-CA.

Court of Appeals of Utah.

April 6, 1992.

Certiorari Denied Dec. 1. 1992.

Joan C. Watt (argued) and Brooke C. Wells, Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant-appellant.

R. Paul Van Dam, State Atty. Gen. and Kenneth A. Bronston (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff-appellee.

Before GARFF, GREENWOOD and RUSSON, JJ.

RUSSON, Judge:

Lyndon C. Lee appeals his convictions of aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1990). We affirm.

I. FACTS

Lee's convictions arise from two separate incidents. The first incident occurred on August 15, 1990. Martin, Lee's first victim, testified that he met Lee early that evening at the Radio City Bar, a gay bar in Salt Lake City. At Lee's request, the pair played pool at Radio City. Later that evening, Lee offered Martin a ride home on his motorcycle, which Martin accepted. However, rather than taking Martin home, Lee proceeded on Interstate 80 toward Parley's Canyon instead, driving at speeds of eighty-five to ninety miles per hour. Lee exited Interstate 80 at the Lamb's Canyon exit and stopped the motorcycle.

Martin further testified that when he and Lee stopped in the canyon, Lee climbed a nearby hill while Martin used the restroom. After coming out of the restroom, Martin approached Lee at which time Lee grabbed Martin and threw him to the ground. Lee then pushed his knee in his stomach, put a knife to his throat, and demanded his money. When Martin gave Lee only twelve dollars, Lee forced Martin to undress. After Lee searched Martin's clothing for additional money, Lee scattered them around the area and left on his motorcycle, leaving Martin in the canyon alone.

Lee disputes the above facts. According to Lee, Martin approached him at Radio City and offered to pay Lee twenty dollars to allow Martin to perform oral sex on him. Lee agreed and suggested Lamb's Canyon as a secluded spot to engage in the activity.

According to Lee's testimony, Lee and Martin then went to the canyon, and Martin performed oral sex on him. However, when Lee refused to have intercourse with him, Martin refused to pay him. Lee got upset and grabbed Martin, forced him to the ground, and demanded payment. When Martin gave Lee only twelve dollars, Lee searched Martin's pants for additional money which Lee claims he was owed. When Lee found nothing, he left on his motorcycle. Additionally, Lee denies using a knife or any other weapon.

The second incident occurred on August 20, 1990, five days after the first incident. Williamsen, Lee's second victim, testified that he met Lee early that evening outside the Sun Tavern, a gay bar in Salt Lake City. According to Williamsen, Lee approached him outside the Sun Tavern and requested that Williamsen sign him in as his guest. Once inside, Lee asked Williamsen to play pool. After they played pool for some time, Lee offered Williamsen a ride on his motorcycle. Williamsen claims that at first he refused, but eventually he agreed to leave on Lee's motorcycle.

The two men proceeded on Interstate 80 toward Parley's Canyon. Williamsen testified that Lee drove very fast, at least seventy to seventy-five miles per hour. Lee exited Interstate 80 at exit 131 in Parley's Canyon and stopped the motorcycle. Lee then approached Williamsen and hit him, knocking him to the ground. Williamsen contends that Lee put a choke hold on him, put a knife to his throat and demanded that Williamsen empty his pockets. Williamsen also claims that Lee threatened to kill him if he moved. Lee took $150 dollars from Williamsen, as well as his wallet which contained an additional $350. Lee then directed Williamsen to take off his clothes. Lee scattered Williamsen's clothing, wallet and car keys and left on his motorcycle, leaving Williamsen alone in the canyon.

Again, Lee disputes the above account. According to Lee, on August 20, 1990, he met Williamsen at the DeerHunter Bar. Lee contends that Williamsen approached him and offered to sell him cocaine. Lee responded that he might know of some people interested in purchasing the cocaine. Before leaving the bar to make the contacts, Lee agreed to meet Williamsen at the Sun Tavern later that evening.

Lee testified that the two met later at the Sun Tavern, at which time Lee tested a vial of cocaine which Williamsen had brought to the bar and gave Williamsen $225 for the cocaine. However, because Williamsen was concerned about exchanging the cocaine in the bar, the two men agreed to ride to another location on Lee's motorcycle.

Lee contends that after he and Williamsen drove to the canyon, Williamsen gave Lee some powder which Williamsen represented to be cocaine. Lee tested the powder and charged that it was not the same cocaine that he had tested at the bar. Accordingly, Lee demanded his money back. Williamsen responded that he no longer had the money. After discovering that Williamsen had only thirty or forty dollars in his pocket, Lee got upset and demanded that Williamsen disrobe. Lee claims that he found his money in Williamsen's underwear and then left on his motorcycle. Again, Lee contends that he did not use a knife or any other weapon.

On August 24, 1990, four days after the second incident, Sergeant Grimes and Officer Bankhead of the Salt Lake City Police Department were called to the Back Street Bar, a gay bar in Salt Lake City, to investigate a report of a possible robbery suspect. Officer Bankhead testified that after Lee was identified as the suspect, he searched Lee and found a concealed knife in Lee's back pocket. Officer Bankhead arrested Lee.

Lee was charged with two counts of aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1990). Prior to trial, Lee filed a motion to sever the two counts, which motion was denied. Following a jury trial, Lee was convicted on both counts and sentenced to concurrent prison terms of five years to life.

Lee appeals his convictions, raising the following issues: (1) Did the trial court err in applying Utah Code Ann. § 77-8a-1 (Supp.1991), instead of Rule 9 of the Utah Rules of Criminal Procedure, to Lee's motion to sever?; (2) If not, did the trial court nonetheless err in denying Lee's motion to sever under Utah Code Ann. § 77-8a-1 (Supp.1991)?; and (3) Did the trial court's refusal to sever the charges violate Lee's due process rights under state or federal constitutional law?

II. APPLICATION OF UTAH CODE ANN. § 77-8a-1:

Lee first argues that the trial court erred in applying Utah Code Ann. § 77-8a-1 (Supp.1991), instead of Rule 9 of the Utah Rules of Criminal Procedure, ¹ to Lee's motion to sever. Section 77-8a-1(1) provides:

Two or more felonies, misdemeanors, or both, may be charged in the same indictment or information if each offense is a separate count and if the offenses charged are:

(a) based on the same conduct or are otherwise connected together in their commission; or

(b) alleged to have been part of a common scheme or plan.

Lee contends that under principles announced in Carter v. Utah Power & Light Co., 800 P.2d 1095 (Utah 1990), Rule 9 of the Utah Rules of Criminal Procedure is controlling here. In Carter, the Utah Supreme Court held that when interpreting legislation, courts will not "find that the legislature has intended to alter the operation of the rules of procedure absent a clear statement to that effect." Id. at 1097 n. 4. Thus, Lee argues, since the Utah Legislature, in enacting section 77-8a-1, did not express a "clear statement" of its intent to amend Rule 9, that rule controls in the case at bar.

Lee's argument fails. The language of senate bill 181, the predecessor to section 77-8a-1, plainly expresses the legislature's intent to repeal Rule 9 of the Utah Rules of Criminal Procedure, pursuant to Article VIII, sec. 4 of the Utah Constitution. The pertinent portion of senate bill 181 provides:

Section 2. Repealer.

Section 77-35-9, Rule 9-Joinder of offenses of defendants, as enacted by Chapter 14, Laws of Utah 1980, is repealed.

Section 3. Two thirds vote required.

The amendments to this act take effect only if this act is approved by two-thirds of all members elected to each house, as provided in Article VIII, Sec. 4 of the Utah Constitution.

1990 Utah Laws ch. 201, § 1 (emphasis added). Because, the legislature expressed a clear statement repealing Rule 9, the trial court properly applied section 77-8a-1(1) to the case at bar.

III. MOTION TO SEVER

Lee next contends that the trial court erred in denying his motion to sever under Utah Code Ann. § 77-8a-1(1) (Supp.1991). "[T]he grant or denial of severance is a matter within the discretion of the trial judge, so we reverse a conviction only if the trial judge's refusal to sever charges 'is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial.' " State v. Lopez, 789 P.2d 39, 42 (Utah App.1990) (quoting State v. Pierre, 572 P.2d 1338, 1350 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978)).

Specifically, Lee argues that the crimes for which he was charged were improperly joined because they were not "alleged to have been part of a common scheme or plan" as required by section 77-8a-1(1). Because Utah appellate courts have yet to interpret section 77-8a-1(1), we look to other states' decisions interpreting "common plan or scheme" language for assistance. The Arizona Supreme Court, in interpreting a rule similar to section 77-8a-1, held that: "[i]n order for two crimes to be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, so long as the court perceives a visual connection between the two crimes." State v. Tipton, 119 Ariz. 386, 581 P.2d 231, 233 (1978). In Tipton, the court found a "common plan or scheme"...