State v. Rudolph

• Citation: 3 P.3d 192,2000 Utah Ct. App. 155
• Decision Date: 25 May 2000
• Docket Number: No. 990534-CA.,990534-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Brian James RUDOLPH, Defendant and Appellant.
• Court: Utah Court of Appeals

3 P.3d 192

2000 Utah Ct. App. 155

STATE of Utah, Plaintiff and Appellee, v. Brian James RUDOLPH, Defendant and Appellant.

No. 990534-CA.

Court of Appeals of Utah.

May 25, 2000.

John D. O'Connell, Jr., and Kent R. Hart, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Jan Graham, Atty. Gen., and Christine Soltis, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before GREENWOOD, P.J., DAVIS, and ORME, JJ.

OPINION

DAVIS, Judge:

¶ 1 Defendant appeals the jury's verdict finding him guilty of aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1999). We affirm.

FACTS

¶ 2 "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237.

¶ 3 Greg Davis, a front desk clerk for the Deseret Inn, was working on the night of January 20, 1998. By 6:00 p.m., there was approximately $800 to $850 in the cash box. Between 6:00 and 7:00 p.m., defendant entered the motel lobby. Davis was immediately aware of defendant because of chimes on the front door and was instantly alarmed because defendant's hands were in his front pockets.

¶ 4 Defendant stood directly across the counter from Davis, within approximately three feet, and asked how much a room cost. After Davis told him the price of a room, defendant pulled a gun out of his right, front pants' pocket and told Davis to give him the money out of the cash drawer. Davis moved down the counter to the cash register, put the cash box on the counter, and watched as defendant took the money from the cash box. Davis then backed into a small room directly behind the front desk, locked the door, and waited until he heard the front door chime, indicating that defendant had left.

¶ 5 During the time defendant was in the Deseret Inn's lobby, Leonard McCann had parked at the front door to check into a room for the night. Seeing defendant at the front counter and assuming he was there to register for a room, McCann stayed in his car to wait until defendant was done. McCann got out of his car and walked past defendant as defendant was exiting the lobby and McCann was entering it.

¶ 6 When McCann entered the lobby, Davis told him that he had just been robbed. McCann immediately stepped outside to see what direction defendant was heading. McCann saw defendant heading west and, knowing that he would be questioned regarding defendant's identity, took particular note of what he was wearing.¹

¶ 7 Because of the direction McCann had reported defendant was fleeing, the police focused on the Hilton Hotel. Officer Kerry Fowler entered from the east side of the building to begin his search while his partner entered from the west. As Officer Fowler canvassed his appointed area, defendant, who was then talking on the telephone, drew his attention. Officer Fowler noted that defendant generally fit the description given by Davis.² Officer Fowler and his partner stopped defendant and asked him why he was there, to which defendant responded that he was meeting his friend, Ed Bernard. Defendant subsequently told another officer that he was meeting his girlfriend, Melanie Swallow, for dinner.

¶ 8 Angela Dent was a supervisor at Annabelle's, a restaurant inside the Hilton Hotel. While defendant was in the hotel office with the police, Dent walked by and noticed defendant in police custody. Dent recognized defendant because she had seated him earlier at Annabelle's, and when she returned approximately ten minutes later to see if he had been served, she discovered that defendant had left, leaving his sweater behind in a chair at the table. Dent turned the sweater over to the police.

¶ 9 Luis Chuba was a housekeeping supervisor for the Hilton Hotel. At approximately 7:00 p.m. the same night Davis was robbed, Chuba emptied the trash can in the men's restroom across the hall from Annabelle's and near the pay phone where Officer Fowler had seen defendant talking. Because the trash bag was askew, Chuba dumped the whole trash can and discovered that a gun had been placed underneath the trash bag in the trash can. Chuba turned the gun over to the police who were at the Hilton questioning defendant. Davis testified that the gun was similar to the one defendant had used during the robbery.

¶ 10 Davis was brought to the Hilton to identify defendant. Davis did not enter the office in which defendant was sitting, but stood on the other side of a glass partition. When asked if he could identify defendant as the man who had robbed him at the Deseret Inn, Davis said that he was fifty percent sure that defendant was the same man. Davis noted that the differences were: (1) the person in custody did not have a grey sweater on, but the person who robbed him did; (2) at the time he robbed Davis, the person's hair had mousse in it and his hair was spiked; the person's hair at the Hilton was smoothed down; and (3) the robber was not wearing glasses, while the person at the Hilton was. While Davis had also noted that the person who robbed him smelled strongly of cologne or mousse, the glass partition at the Hilton prevented him from detecting any smell.

¶ 11 Defendant was arrested and transported to the Salt Lake County jail. When he was searched at the jail, $850 was discovered hidden inside defendant's shoes.

¶ 12 Defendant was charged with aggravated robbery, a first degree felony in violation of Utah Code Ann. § 76-6-302 (1999). A jury trial was held, after which defendant was convicted as charged. Defendant now appeals.

ISSUES

¶ 13 There are two issues for our review. The first is whether a criminal defendant must preserve a sufficiency-of-the-evidence claim at the trial court before he may raise that issue on appeal. The second is whether the evidence was insufficient to support a conviction.

ANALYSIS

1. Preservation of Sufficiency-of-the-Evidence Claim

¶ 14 The State argues that before a criminal defendant may challenge the jury's verdict on appeal on the basis of insufficient evidence, he or she must first raise that issue and thereby preserve it at the trial court. The State readily concedes that this position is a novel one, and that preservation of sufficiency claims is neither required by the rules of procedure nor case law. However, it maintains that for sufficiency-of-the-evidence claims, as with any other claims on appeal, criminal defendants should be required to follow the well-established rule that if a party fails to bring an error to the trial court's attention, the appellate court will not address it absent plain error or exceptional circumstances. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996) ("`[I]ssues not raised at trial cannot be argued for the first time on appeal.' This rule applies to all claims, including constitutional questions, unless the petitioner demonstrates that `plain error' occurred or `exceptional circumstances' exist." (quoting State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994))).

¶ 15 "A timely objection provides the trial court with `an opportunity to address a claimed error and, if appropriate, correct it.'" State v. Labrum, 925 P.2d 937, 939 (Utah 1996) (quoting State v. Eldredge, 773 P.2d 29, 36 (Utah 1989)). The preservation doctrine also prohibits parties from "foregoing those objections at trial as part of a `strategy that counsel thinks will enhance the defendant's chances of acquittal and then, if that strategy fails, . . . claim[ing] on appeal that the Court should reverse.'" Id. (quoting State v. Bullock, 791 P.2d 155, 159 (Utah 1989)) (omission and alteration in original).

¶ 16 Neither of the above policy reasons supporting the preservation doctrine is present with a sufficiency-of-the-evidence claim.

a. Opportunity to Correct

¶ 17 When the jury renders a verdict, as a practical matter there is little, if anything, relative to the sufficiency of the evidence that can be corrected. Even if the trial court is asked to review the sufficiency of the evidence, say, in the context of a motion to arrest judgment, or motion for new trial, the "'trial court may arrest a jury verdict when the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element.'" State v. Giles, 966 P.2d 872, 876-77 (Utah Ct.App.1998) (quoting State v. Workman, 852 P.2d 981, 984 (Utah 1993)). The standard is the same when the appellate court is asked to review the evidence and determine whether it was sufficient to support the verdict. See Workman, 852 P.2d at 984; Giles, 966 P.2d at 876. Of course, when reviewing a trial court's grant or denial of a sufficiency-of-the-evidence claim, this court will similarly review all the evidence relevant to the challenge. Cf. State v. Colwell, 2000 UT 8, ¶ 11, 994 P.2d 177 ("When reviewing any challenge to a trial court's denial of arrest of judgment, we review the evidence and all reasonable inferences that may fairly be drawn there from [sic] in the light most favorable to the jury verdict."). Hence, because this court is in as good a position as the trial court to review the evidence and make that determination, nothing is lost by waiting until the appeal stage to challenge the sufficiency of the evidence. Cf. State v. Blubaugh, 904 P.2d 688, 694 n. 3 (Utah Ct.App.1995) (holding that defendant's claim of error on appeal that trial court erroneously denied motion to arrest judgment based on insufficient evidence was moot because appellate court found there was sufficient evidence supporting guilty verdict).

¶ 18 Perhaps a more compelling reason to reject the State's position is the potential burden on the trial courts. It is well established that a defendant's burden on appeal when challenging the sufficiency of the evidence after a jury trial is to "`marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient...