State v. Lopez
Decision Date | 02 March 1990 |
Docket Number | No. 890324-CA,890324-CA |
Citation | 789 P.2d 39 |
Parties | STATE of Utah, Plaintiff and Respondent, v. Juan Jose LOPEZ, Jr., Defendant and Appellant. |
Court | Utah Court of Appeals |
Lisa J. Remal, Candice A. Johnson, and Richard G. Uday, Salt Lake City, for defendant and appellant.
R. Paul Van Dam and Sandra L. Sjogren, Salt Lake City, for plaintiff and respondent.
Before BENCH, GARFF and LARSON, 1 JJ.
Appellant, Juan Jose Lopez, Jr., appeals his convictions of second degree murder and second degree felony child abuse. We affirm his convictions.
In October 1987, appellant moved into the apartment of Cindy Redfox Hernandez and her three children, Roberto, age 7; Amanda, age 3; and Lillian, age 1. Both appellant and Cindy abused alcohol and used and sold illegal drugs.
On March 1, 1988, Cindy, after returning home and eating dinner with the family in the late afternoon, left to do errands while appellant and the children remained at the apartment. About 6:00 p.m., Cindy telephoned home and spoke with Roberto. She told him that she was at a store but, because he heard loud music and laughter in the background, Roberto did not believe her. He told appellant that Cindy was not coming home and was at a bar. Several hours later, Amanda began asking for her mother. Appellant left to look for Cindy, leaving the children home alone.
Appellant found Cindy at the Annex Bar, where she was drinking with friends, and told her that the children wanted her at home. Cindy became angry, telling him to get away from her and that she was not coming home. Angry, appellant began drinking beer and tequila and using cocaine and marijuana. While drinking, appellant saw Cindy and a woman enter the bathroom. Suspecting that Cindy was selling drugs, he confronted her. The two exchanged harsh words, and appellant struck Cindy.
Around 12:45 a.m., appellant returned to the apartment while Cindy remained at the bar. Appellant and Roberto watched television until two men and a woman arrived. They purchased drugs from appellant, went into the bathroom to use them, and stayed to talk with appellant.
Early in the morning, Cindy arrived home accompanied by a man, whom she introduced to appellant as her new boyfriend. Appellant refused to allow him to enter the apartment. Cindy became angry and ordered the visitors and appellant to leave the apartment immediately. Two of the visitors and the new boyfriend left. One visitor, Chito Velasquez, who died prior to this criminal proceeding, remained.
Appellant and Cindy began to argue vociferously. Cindy ordered appellant to leave immediately. Appellant refused. Cindy again ordered appellant to leave and threw a piece of pottery at him, smashing it against the wall.
Roberto testified that he saw appellant throw Cindy against the wall, go into the kitchen, and return with an eight inch knife, and that appellant pushed Cindy, raised the knife over his head, and then "made it go down fast" toward Cindy. Roberto heard Cindy scream. He went to his room and remained there until "it got quiet." Appellant stabbed Cindy several more times. She died within minutes.
Appellant testified that after Cindy threw the pottery at him he blacked out and next remembered seeing blood on his hands and on the knife that he was holding. He then saw Cindy's dead body, which he pulled into the middle of the living room, tied her hands with a telephone cord, and covered her body with a blanket.
Roberto emerged from his room and opened the door to Cindy's bedroom. He saw appellant "digging in [his] mom's purse." Chito was standing in the room with appellant. Appellant told Roberto to go back to bed, but Roberto wanted to see if his mother was okay. Appellant told him that she was okay and was just sleeping, and again told Roberto to go back to bed. When Roberto observed blood on appellant's hands, appellant told Roberto that he had beaten up Chito. When Roberto again insisted on seeing Cindy, appellant told Roberto that if he told anyone what had happened he would kill him. Appellant then grabbed Roberto by the neck, choked him, wrapped a vacuum cleaner cord around his neck, and pulled it tight. Roberto fell to the floor, but, before he passed out, heard Chito tell appellant to "wash the knife off and put it where it was." Appellant testified that he did not remember harming Roberto, but also stated that he thought Roberto was dead when he left the apartment.
Appellant left, eventually going to Idaho, where he was arrested on March 14, 1988, and later extradited to Utah. When confronted by police, appellant told three different, contradictory stories as to what had happened. Appellant was charged, in the same information, with second degree murder, a first degree felony in violation of Utah Code Ann. § 76-5-203 (1986), and with child abuse, a second degree felony in violation of Utah Code Ann. § 76-5-109 (1985).
The state medical examiner determined that Cindy had died from at least six significant knife wounds, three of which could have caused her death. He observed severe petechial hemorrhaging over Roberto's face and in the whites of his eyes, 2 consistent with having been strangled, and determined that Roberto had survived this life-threatening condition only because of the "resiliency of youth."
At the pretrial hearing, appellant's counsel moved to sever the murder and child abuse charges, alleging that the two offenses were not part of the same criminal act and that joinder would be prejudicial to appellant. The trial court denied appellant's motion.
A jury convicted appellant of the two charges. Appellant was sentenced to the Utah State Prison for consecutive terms of five years to life and one to fifteen years.
Appellant alleges that the trial court committed reversible error by (1) denying his motion to sever the charges, and (2) refusing to give his requested jury instruction on manslaughter after the prosecutor misstated the law on manslaughter during his closing argument.
Appellant argues that his acts of murder and child abuse were not part of a single criminal episode as defined in Utah Code Ann. § 76-1-401 (1978) because they were not closely related in time, and because he did not have the same criminal objective in committing each of them. Appellant also argues that joinder of the child abuse charge prejudiced the jury against him on the murder charge.
Under the Utah Rules of Criminal Procedure, two or more offenses may be joined in the same indictment or information, and may be tried at the same trial, "if the offenses charged arise out of a criminal episode as defined in Section 76-1-401, U.C.A.1953." Utah R.Crim.P. 9(a); 3 see also State v. McCumber, 622 P.2d 353, 356 (Utah 1980). Section 76-1-401 defines a "single criminal episode" as "all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective."
In the present case, appellant killed Cindy and, only minutes later, attempted to strangle Roberto. The evidence indicates that appellant's purpose in attempting to strangle Roberto was to keep Roberto from telling others that he had killed Cindy. These two events were closely related in time and incident to the accomplishment of a single criminal objective, namely to kill Cindy and avoid being caught, so as to be part of a single criminal episode. Consequently, the offenses could properly be joined under rule 9(a).
Severance of properly joined offenses is not available as a matter of right, State v. Velarde, 734 P.2d 440, 444 (Utah 1986); see also State v. Studham, 655 P.2d 669, 671 (Utah 1982), but is only available "[i]f it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information, or by a joinder for trial together." Utah R.Crim.P. 9(d). Further, the 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. Pierre, 572 P.2d 1338, 1350 (Utah 1977) cert. denied 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); see also State v. McGrath, 749 P.2d 631, 633 (Utah 1988); Velarde, 734 P.2d at 444-45; State v. Saunders, 699 P.2d 738, 740 (Utah 1985); McCumber, 622 P.2d at 356.
We must next determine whether joinder of the two offenses was prejudicial to appellant. Appellant's purpose in attempting to sever the offenses was to prevent the jury considering the murder charge from hearing Roberto's testimony concerning appellant's attempt to strangle him. 4 While evidence of other crimes may not be used to "prove the character of a person in order to show that he acted in conformity therewith," it "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Utah R.Evid. 404(b). In determining the admissibility of evidence for such a purpose, the court must weigh its probative value against its tendency to unfairly prejudice the defendant. Utah R.Evid. 403; see also State v. Johnson, 748 P.2d 1069, 1074-75 (Utah 1987); State v. Jamison, 767 P.2d 134, 137 (Utah Ct.App.1989).
Appellant was charged with second degree murder pursuant to Utah Code Ann. § 76-5-203 (1986). Because intent is an element of the offense under this section, the State must carry the burden of proving appellant's intent. See State v. Warden, 784 P.2d 1204, 1208 (Ct.App.1989). This intent "need not be proved by direct evidence, but may be inferred from defendant's conduct and surrounding circumstances." State v. Davis, 711 P.2d 232, 234 (Utah 1985). Aside from Cindy's wounds and the general situation in the apartment, the only evidence that the State could bring forward to shed light on defendant's conduct and the surrounding circumstances was...
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