State v. Nelson
| Decision Date | 11 March 2021 |
| Docket Number | No. 20190495-CA,20190495-CA |
| Citation | 484 P.3d 409 |
| Court | Utah Court of Appeals |
| Parties | STATE of Utah, Appellee, v. Tyler Chris NELSON, Appellant. |
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and David A. Simpson, Attorneys for Appellee
Opinion
¶1 Tyler Chris Nelson appeals his conviction for aggravated robbery. He asserts that his counsel provided ineffective assistance in failing to object to the introduction of a statement Nelson made during a police interview in which Nelson implied that he had committed a similar crime in the past. Nelson also asserts that the district court erred when it refused his request for a lesser-included-offense jury instruction. We affirm.
¶2 One morning, Victim, who worked as an assistant manager at a restaurant, went to his car in the restaurant parking lot to smoke a cigarette. As Victim sat behind the wheel of his car with the door open, Nelson approached. Thinking Nelson might want a handout, Victim told him, "I don't have any money or cigarette[s]." Nelson responded, Victim told him, "No. Absolutely not." By this point, Victim "could tell that [Nelson] was planning on" stealing his car. After Nelson told Victim "Don't be stupid" a few times, Victim got out of the car to get away from Nelson. Nelson kept "coming at" Victim "[f]ace to face," saying, Victim then saw Nelson pull out a can of what appeared to be pepper spray, which Nelson aimed at Victim's face. Nelson was unable to discharge the spray, and Victim ran toward the front door of the restaurant. But Nelson gave chase, caught Victim around his waist, took Victim to the ground, and "ripped" Victim's keys off his belt loop. Victim received minor bruises to his legs as a result of the incident.
¶3 Nelson then headed toward Victim's car. Victim got up and chased Nelson, but by the time he got to his car, Nelson had already started the engine. Victim reached into the car with the intent to "grab [Nelson] by his hair and pull him out the [driverside] window," but he ended up getting only Nelson's sunglasses. Nelson took off in Victim's car. Victim set the sunglasses on the concrete curb near the corner of the restaurant building and called the police immediately.
¶4 Officers took a statement from Victim and collected the sunglasses as evidence. Testing the sunglasses yielded no useful fingerprints, so the glasses were submitted for DNA analysis. A swab of the glasses revealed two genetic profiles. Victim was excluded as a match, but the major DNA profile returned a "CODIS hit" (i.e., a match) on Nelson, making Nelson the prime suspect in the theft.2 The DNA analyst who performed the test explained that the "frequency of occurrence of the [major DNA] profile among unrelated individuals in the U.S. population is estimated to be: 1 in 27.3 octillion for Caucasians, 1 in 4.53 decillion for African-Americans and 1 in 277 octillion for Hispanics."3
¶5 After identifying Nelson as the suspect based on the DNA analysis, the detective (Detective) on the case located Nelson, who been booked into the Salt Lake County jail on an unrelated case involving similar conduct, see infra ¶ 11, and obtained a warrant to collect Nelson's DNA by means of a cheek swab. At the time he obtained the swab, Detective also interviewed Nelson, the audio recording of which was played at trial. In that recording, Detective identified himself, advised Nelson of his Miranda rights, and notified Nelson he was investigating a robbery that took place at the restaurant in question. Nelson said, "I know where you're talking about." Detective said, "Tell me what happened," and Nelson said, "Same thing." Nelson elaborated, "You know, I was really dope sick ... [n]eeded some money, needed a car and ... so ... [t]ook the car from him ...." Nelson added that he had the car "[m]aybe four or five hours" and then abandoned it at a parking lot a few miles away. Detective thanked Nelson for his honesty and told Nelson, "I will try to get this screened as soon as possible so you can deal with it while you're in here, rather than ... getting out and getting jammed up with something else again."
¶6 Nelson was charged with one count of aggravated robbery. See Utah Code Ann. § 76-6-301(1)(a) (LexisNexis 2017) (); id. § 76-6-302(1)(c) (). At trial, the State presented the evidence as summarized above. Nelson did not testify or present any witnesses in his defense. However, he requested that the jury be instructed on the lesser-included offense of theft. See id. § 76-6-404 (). Nelson argued "that if there is any form of evidence that supports one of the jury instructions, the defendant should be able to present that to a jury as an alternative." The State opposed the lesser-included-offense instruction: The district court denied the request, stating that, given the "limited testimony with regard to the incident," there was no
¶7 The jury found Nelson guilty as charged, and he was sentenced to a prison term of five years to life. Nelson appeals.
¶8 Nelson first asserts that his trial counsel (Counsel) was constitutionally ineffective in failing to object to the admission of the portion of the police interview where Nelson admitted to a previous incident, which he characterized as the "same thing" as the incident involving Victim. "A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law ...." State v. King , 2018 UT App 190, ¶ 11, 437 P.3d 425 (quotation simplified).
¶9 Nelson also claims that the district court erred in refusing to instruct the jury with regard to the lesser included offense of theft. "A trial court's refusal to grant a lesser included offense instruction is a question of law, which we review for correctness." State v. Florez , 2020 UT App 76, ¶ 15, 465 P.3d 307 (quotation simplified).
¶10 Nelson first claims that Counsel rendered ineffective assistance by failing to object to the admission of the portion of the police interview in which Nelson told Detective that what happened with Victim was the "same thing" as another incident in which Nelson was involved.
¶11 To understand Nelson's claim, it is helpful to understand the context of the "same thing" statement. The State had planned for Detective to testify—before the audio recording was played for the jury—that he was the lead detective in another aggravated robbery to which Nelson had pleaded guilty a few months before the interview. The State pointed out that the phrase "same thing" was in reference to a prior conversation with Detective in which Nelson had confessed to stealing a car in a similar way during a previous robbery. In this context, the State sought to present evidence that Nelson had previously told Detective, "Yes, ... I took her purse, I took the keys, I took the car," with regard to the prior robbery. The State argued that evidence of the prior bad act should come in to provide context:
So when [Nelson] says "same thing," and then follows it up with "I was dope sick, I needed money, I took the car," [evidence of the previous offense is] not in any way to prove that ... this is a pattern of behavior. [Evidence of the previous offense is] simply giving context to that [phrase] "same thing," because without that predicate knowledge, ... it doesn't come in anywhere.
Counsel objected to the admission of the prior-act evidence, arguing that the audio recording should stand on its own:
¶12 The district court agreed with Counsel and did not allow the State to present the prior-act evidence, noting that the evidence of the previous offense was not "necessary" to give "context to the statement on the tape" and that admitting the prior-bad-act evidence would be "problematic" because it posed an "undue risk of prejudice to [Nelson] in that it appears to be extremely similar, very close in time." Consequently, the jury heard the audio recording in which Nelson admitted to doing the "same thing" without hearing the additional information about the prior incident to which the statement referred.
¶13 On appeal, Nelson argues that it is difficult to understand why—after the district court had already ruled that evidence of the prior incident would be inadmissible—Counsel conceded to allowing admission of the "same thing" statement. Nelson asserts that "[a]llowing the jury to speculate as to the meaning of ‘same thing’ was...
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