State v. Pierson
| Decision Date | 05 October 2000 |
| Docket Number | No. 990617-CA.,990617-CA. |
| Citation | 12 P.3d 103,2000 Utah Ct. App. 274 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Michael Paul PIERSON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Roger K. Scowcroft, Salt Lake City, for Appellant.
Jan Graham, Attorney General, and Catherine McAvoy Johnson, Asst. Attorney General, Salt Lake City, for Appellee.
Before Judges BENCH, DAVIS, and THORNE.
¶ 1 Defendant Michael Paul Pierson was convicted by a jury of murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (1999); aggravated burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-203 (1999); and aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1999). Defendant appeals on four grounds: (1) the aggravated burglary conviction is a lesser included offense of the murder conviction; (2) the aggravated kidnaping conviction merges with the aggravated burglary conviction;1 (3) the trial court failed to instruct the jury on included and merged offenses pertaining to both the aggravated burglary and kidnaping convictions; and (4) his sentence is excessive. We affirm.
¶ 2 On January 27, 1997, defendant devised a plan to steal marijuana from a house in West Valley City. Co-defendants Clint Hartley, Jeffery Burgener, and Melisa Parker agreed to participate in the plan.
¶ 3 At approximately 7:30 that evening, Melisa Parker knocked on the door of the house. Defendant, Hartley, and Burgener, all wearing masks and carrying guns, hid to the side of the door so as not to be seen. When Jared Bowers opened the door, defendant and Hartley rushed into the house and defendant fired his gun once. Then, Hartley fired once, apparently unintentionally killing Donald Dobson, a resident of the house.
¶ 4 One of the perpetrators2 placed a gun to Neyna Davis's head, told her to get down, and asked her where the "weed" was. She was then directed, at gunpoint, downstairs to the basement where they entered Jared Bowers's room. Inside, they looked in a closet that contained a rifle. The perpetrator told her, "Don't think about touching that." From there the gunman forced her into the entertainment room, as well as a storage area. When the gunman found no marijuana, he ordered her to get down on the floor, and then left her.3 Shortly thereafter, the perpetrators left the house without taking anything.
¶ 5 Two months later, Melisa Parker came forward, confessed her involvement in the crimes, and revealed the involvement of the others. Defendant was subsequently arrested. From the time of the crimes until sentencing, defendant threatened several of the witnesses that they and their families would die if they testified against him.
¶ 6 After being convicted by a jury, defendant was sentenced to two consecutive terms of five-years-to-life for the murder and aggravated burglary convictions, and one consecutive term of fifteen-years-to-life for the aggravated kidnaping conviction, as well as three consecutive one-to-five year dangerous weapon enhancements.
¶ 7 Defendant argues that aggravated burglary is a lesser included offense of felony murder and should have been dismissed. "[T]he propriety of a trial court's decision to grant or deny a motion to dismiss is a question of law that we review for correctness." Tiede v. State, 915 P.2d 500, 502 (Utah 1996). Likewise, "[w]hether one crime is a lesser included offense of another is a question of law reviewed for correctness." State v. Betha, 957 P.2d 611, 617-618 (Utah Ct.App.1998).
¶ 8 Defendant also argues that the aggravated kidnaping charge should merge with the aggravated burglary charge. "This is essentially an issue of statutory construction that we review for correctness, according no particular deference to the trial court." State v. Mecham, 2000 UT App 247, ¶ 20, 402 Utah Adv. Rep. 12, 9 P.3d 777.
¶ 9 Defendant next argues that the trial court failed to correctly instruct the jury on the law of merger and lesser included offenses. Whether to give a jury instruction is a conclusion of law that is reviewed for correctness. See State v. Parra, 972 P.2d 924, 927 (Utah Ct.App.1998).
¶ 10 Defendant finally argues that the trial court abused its discretion by ordering defendant to serve maximum consecutive sentences. State v. Houk, 906 P.2d 907, 909 (Utah Ct.App.1995) (citations omitted); see also State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (); State v. Gerrard, 584 P.2d 885, 887 (Utah 1978) ().
¶ 11 Defendant first argues that the trial court erred by denying his motion to dismiss the aggravated burglary count because it was a lesser included offense of the felony murder count. The Utah Supreme Court addressed this very issue in State v. McCovey, 803 P.2d 1234 (Utah 1990). The McCovey court decided "whether aggravated robbery is a lesser included offense of second degree[4] felony murder." Id. at 1235. The court held that, "Allowing punishment for both felony murder and the underlying felony violates neither the double jeopardy principles of the fifth amendment of the United States Constitution, Article I, section 12 of the Utah State Constitution, nor Utah Code Ann. § 76-1-402(3)(1978)."5 Id. at 1239.
¶ 12 To determine whether an offense is a lesser included offense of another crime, a two-part test is used. "[F]or purposes of the prohibition against conviction `of both the offense charged and the included offense,' the greater-lesser relationship must be determined by comparing the statutory elements of the two crimes as a theoretical matter and, where necessary, by reference to the facts proved at trial." Id. at 1236 (quoting State v. Hill, 674 P.2d 96, 97 (Utah 1983)). The trial court, if necessary, must then determine "whether the greater-lesser relationship exists between the specific variations of the crimes actually proved at trial." Id.
¶ 13 The statutory elements of murder charged in this case include the elements of aggravated burglary. Aggravated burglary is a predicate offense which removes intent as an element of homicide.6 Thus, as a theoretical matter, felony murder has all the elements of aggravated burglary.
¶ 14 The second part of the test requires a determination of whether evidence of the lesser included offense was presented at trial. Id. at 1237. Here, it is undisputed that aggravated burglary was proven at trial.
¶ 15 However, the McCovey court disregarded the result of this test, and instead looked to the intent of the Legislature. McCovey held:
Despite the fact that under the Hill analysis aggravated robbery would be a lesser included offense of felony murder, we recognize that enhancement statutes are different in nature than other criminal statutes.... Yet the only reason aggravated robbery is encompassed within the definition of [the] lesser included offense of felony murder is that the legislature designated it as an enhancing offense. Aggravated robbery does not, by its nature, have overlapping elements with any traditional form of murder.
McCovey, 803 P.2d at 1237-38. Likewise here, aggravated burglary does not by its nature "have overlapping elements with any traditional form of murder" and it is used as an "enhancing offense." Id.
¶ 16 Defendant argues that State v. Shaffer, 725 P.2d 1301 (Utah 1986), should control instead of McCovey. Shaffer held that aggravated robbery was a lesser included offense when used to enhance second degree murder to first degree murder. See id. at 1314. However, in McCovey, the court distinguished Shaffer for two reasons. First, in McCovey, the robbery victim and the homicide victim were different people, unlike in Shaffer. Second, in Shaffer, the defendant was subject to a sentence of capital murder, which would make it "surplusage to consider the underlying felony as a separate offense," whereas the defendant in McCovey was subject to only five-years-to-life imprisonment. McCovey, 803 P.2d at 1238.
¶ 17 The case before us, like McCovey, is distinguishable from Shaffer. First, the burglary victim, as indicated in the jury instructions, was a different person than the murder victim. Second, here, defendant was convicted of murder (formerly second degree murder), and not aggravated murder (formerly first degree murder), and was sentenced to five-years-to-life imprisonment. Thus, this case is controlled by McCovey and aggravated burglary is not a lesser included offense of murder.
¶ 18 Defendant next argues that under the facts of this case, aggravated kidnaping should merge with aggravated burglary. According to defendant, aggravated burglary, as charged here, requires the use of a dangerous weapon against a person, and a detention is therefore inherent in the burglary. We disagree that detention is inherent in the "host crime" of aggravated burglary. Unlike crimes such as aggravated robbery or rape, which by their nature can contain elements of aggravated kidnaping, detention is not inherent in the criminal act of aggravated burglary.
¶ 19 The supreme court adopted a three-part test to determine if kidnaping merges with another crime. See State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243. The three-part test states:
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State v. Finlayson
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