State v. Rasabout

• Decision Date: 21 March 2013
• Docket Number: No. 20100284–CA.,20100284–CA.
• Citation: 730 Utah Adv. Rep. 55,299 P.3d 625
• Parties: STATE of Utah, Plaintiff, Appellant, and Cross-appellee, v. Andy RASABOUT, Defendant and Appellee, and Levitz London Kaykeo, Defendant, Appellee, and Cross-appellant.
• Court: Utah Court of Appeals

299 P.3d 625

730 Utah Adv. Rep. 55

STATE of Utah, Plaintiff, Appellant, and Cross-appellee,

v. Andy RASABOUT, Defendant and Appellee,andLevitz London Kaykeo, Defendant, Appellee, and Cross-appellant.

No. 20100284–CA.

Court of Appeals of Utah.

March 21, 2013.

John E. Swallow and Ryan D. Tenney, Attorneys for Appellant and Cross-appellee.

Debra M. Nelson and Daniel M. Torrence, Attorneys for Appellee Andy Rasabout.

Kelly Ann Booth, Attorney for Appellee and Cross-appellant Levitz London Kaykeo.

Judge J. FREDERIC VOROS JR. authored the Opinion, in which Judge WILLIAM A. THORNE JR. concurred. Judge GREGORY K. ORME concurred in part and concurred in the result in part, with opinion.

Opinion

VOROS, Judge:

¶ 1 Following a jury trial, Andy Rasabout and Levitz London Kaykeo (collectively, Defendants) were each convicted of one count of possession of alcohol by a minor, a class B misdemeanor, seeUtah Code Ann. § 32A–12–209 (LexisNexis Supp. 2007) (current version at id. § 32B–4–409 (2011)), and twelve counts of discharge of a firearm from a vehicle, a third degree felony, see id. § 76–10–508 (Supp. 2007) (current version at id. §§ 76–10–508, –508.1 (2012)). Before sentencing, the trial court merged the twelve counts of discharge of a firearm into a single count for each defendant. The State appeals that decision. Kaykeo cross-appeals, challenging his conviction on the basis of ineffective assistance of counsel. We reverse and remand for resentencing on the first issue and affirm on the second.

BACKGROUND ¹

¶ 2 In the early hours of the morning on November 1, 2007, a man standing outside his house smoking a cigarette saw a white Honda Civic drive past, make a U-turn, and circle back toward him. When he heard a shot fired from the car, he ducked inside the house. He then heard another “eight or nine shots” fired “one right after another, just nonstop.” After the car had gone, he ran through the house to check on his family and friends. As he looked out the window moments later, he saw the car drive by again and heard two more shots. No one was injured, but the twelve shots damaged the interior and exterior of the house and two cars parked outside. One of the cars was a distinctive vehicle that belonged to a guest who was at the house that morning.

¶ 3 Police arrived in minutes. While one officer was outside the house, he saw Defendants drive by in a white Honda Civic, followed by a BMW. The officer got into his car and pulled Defendants over. Both the driver of the Civic, Kaykeo, and the passenger, Rasabout, showed signs that they had been drinking. The officer also noticed shell casings in plain view in the passenger compartment of the Civic. After the car was impounded and searched, a nine-millimeter semiautomatic handgun with an empty magazine was found hidden in a compartment under the glove box, and four nine-millimeter shell casings were found in the passenger compartment. Eight additional nine-millimeter shell casings were found near the house.

¶ 4 Kaykeo presented an alibi at trial, testifying that he was at a party at the time of the shooting. According to Kaykeo's testimony, Rasabout approached Kaykeo at the party and asked him to drive Rasabout home because he had drunk too much. They were pulled over within a few minutes of leaving the party. Kaykeo called no other witnesses to corroborate his alibi.

¶ 5 The jury returned a verdict of guilty on all counts against Defendants. Before sentencing, the trial court granted a motion to merge convictions. The court merged the twelve counts of discharge of a firearm from a vehicle into a single count for each defendant.

¶ 6 After sentencing, Kaykeo filed a motion for new trial, arguing that his trial counsel was ineffective because he did not investigate possible witnesses who could verify Kaykeo's alibi. Kaykeo supported his motion with signed declarations from himself and two friends. The State opposed the motion for new trial and filed an affidavit from Kaykeo's trial attorney countering the assertions in Kaykeo's declaration. The trial court found Kaykeo's declaration not credible, found his trial attorney's affidavit credible, and accordingly rejected Kaykeo's ineffective assistance claim.

ISSUES AND STANDARDS OF REVIEW

¶ 7 On appeal, the State contends that the trial court erred by merging the counts of discharging a firearm from a vehicle. “Because merger questions are legal in nature, we review them for correctness.” State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.

¶ 8 On cross-appeal, Kaykeo challenges his conviction, arguing that he was deprived of his constitutional right to counsel because his trial counsel was ineffective. An ineffective assistance claim presents mixed questions of law and fact. State v. Templin, 805 P.2d 182, 186 (Utah 1990) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Therefore, in a situation where a trial court has previously heard a motion based on ineffective assistance of counsel,” as here, “reviewing courts are free to make an independent determination of a trial court's conclusions. The factual findings of the trial court, however, shall not be set aside on appeal unless clearly erroneous.” Id. (footnote citations omitted). But “[b]ecause this appeal comes to us on a motion for a new trial, there are few, if any, factual findings to review.” State v. Lenkart, 2011 UT 27, ¶ 20 n. 7, 262 P.3d 1.

ANALYSIS

I. Merger ²

¶ 9 The State contends that the trial court erred by merging the twelve counts of discharge of a firearm into a single count for each defendant. The trial court ruled that the multiple shots fired toward the house and cars constituted one offense because the shots were all part of a “single criminal episode.” SeeUtah Code Ann. § 76–1–401 (LexisNexis 2012). Relying on case law, the court also ruled that the multiple shots constituted one offense because the multiple shots were animated by “one intention, one general impulse, and one plan.” See State v. Crosby, 927 P.2d 638, 645 (Utah 1996) (citation and internal quotation marks omitted). The State argues that the trial court erred by relying on the “single criminal episode” statute and case law interpreting it rather than looking to the firearm discharge statute to determine how many counts Defendants may be convicted of. We agree.³

¶ 10 Though not presented in this fashion, the question before the trial court was one of multiplicity and double jeopardy. Among the protections embodied in the Double Jeopardy Clause of the United States Constitution is “protection against multiple punishments for the same offense.” Bernat v. Allphin, 2005 UT 1, ¶ 11, 106 P.3d 707 (citing Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306–07, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984)). The problem of multiplicity arises when “a single offense [is charged] in several counts.” Charles Alan Wright et al., 1A Federal Practice & Procedure: Criminal § 142, at 10 (4th ed. 2008). The “rule against multiplicity ... ‘is intended to prevent multiple punishments for the same act,’ ” thus guarding against double jeopardy by “ ‘prohibit[ing] the Government from charging a single offense in several counts.’ ” State v. Morrison, 2001 UT 73, ¶ 26, 31 P.3d 547 (emphases omitted) (quoting United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir.1995)). When a defendant has been charged under multiple counts for the same offense, the court may merge the counts to avoid a double jeopardy violation. See Lee, 2006 UT 5, ¶¶ 30–31, 128 P.3d 1179. Therefore, to determine whether merger was appropriate, the relevant question is what constitutes a single offense.

¶ 11 The trial court answered this question by turning to the definition of “single criminal episode” in the Utah Code. SeeUtah Code Ann. §§ 76–1–401 to –403 (LexisNexis 2012). The single criminal episode statute enlarges double jeopardy protections. The Fifth Amendment prohibits any person “for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The single criminal episode statute “expand[s] the scope of offenses barred from multiple trials beyond ‘the same offense’ focus in double jeopardy, to all offenses arising from a ‘single criminal episode.’ ” State v. Strader, 902 P.2d 638, 641 (Utah Ct.App.1995) (citing Utah Code Ann. §§ 76–1–402(2), –403(1) (1995); Utah R.Crim. P. 9.5; State v. Franklin, 735 P.2d 34, 35–36 (Utah 1987)); see also State v. Sommerville, 2013 UT App 40, ¶ 34 n. 11, 297 P.3d 665. The statute is thus “designed to protect a defendant from multiple trials for offenses that are part of a ‘single criminal episode.’ ” Sommerville, 2013 UT App 40, ¶ 7, 297 P.3d 665 (citation omitted). Accordingly, subject to stated qualifications, such as where “the court otherwise orders to promote justice,” section 76–1–402(2) of the Utah Code prohibits separate trials for “separate offenses” arising “under a single criminal episode.” Utah Code Ann. § 76–1–402(2).

¶ 12 The statute 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.” Id.§ 76–1–401. This definition of “single criminal episode” explains how closely “separate offenses” must be connected to fall within the statutory requirement of a single prosecution; it does not define “separate offense.” Indeed, the purpose of the provision is to require a single trial on “separate offenses” that are “closely related in time” and “incident to an attempt or an accomplishment of a single criminal objective.” Id. Accordingly, the fact that separate acts fall within the definition of “single criminal episode” does not establish that they are a single offense. See, e.g., State v. Porter, 705 P.2d 1174, 1178 (Utah 1985) (“Although defendant's crimes were committed during a single criminal episode, he committed two distinct burglaries separately punishable under section 76–1–402.”); State v. James, 631 P.2d 854,...