State v. Stewart, s. 20639

CourtSupreme Court of Utah
Citation729 P.2d 610
Docket NumberNos. 20639,20641,s. 20639
PartiesSTATE of Utah, Plaintiff and Respondent, v. Dail Ray STEWART, Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. George Edward CHRISTENSEN, Defendant and Appellant.
Decision Date01 May 1986

David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.


Appellants were charged with second degree homicide in the stabbing death of a fellow state prison inmate. U.C.A., 1953, § 76-5-203 (Supp.1985). Appellants were tried together with inmates Frank Dominquez and Tommy Coleman, who were also charged with the killing. Dominquez and Coleman were acquitted, but appellants were convicted. Separate appeals were filed in this Court, but because the facts and issues on appeal are the same, we consolidate the appeals and affirm appellants' convictions.

The only issue raised by appellants here is that the evidence is insufficient to sustain a verdict of second degree murder. Specifically, appellants argue that the evidence does not show that their participation in the beating and stabbing of inmate Glen Evert was any greater than the involvement of the acquitted defendants, Coleman and Dominquez. On review, we consider the lengthy testimony and evidence in a light most favorable to the jury's verdict, State v. Gorlick, Utah, 605 P.2d 761 (1979), and assume that the jury believed those portions of the evidence supporting the verdict. State v. Gibson, Utah, 565 P.2d 783 (1977).

On the evening of February 14, 1984, at the Utah State Prison, inmate Glen Evert was beaten and fatally stabbed by a mob of inmates led by defendants Stewart, Christensen, Dominquez, and Coleman. Dominquez and Stewart were considered spokesmen of a gang of inmates with which Christensen and Coleman were also associated. Earlier that day, Evert accused Stewart of involvement in recent thefts from Evert's dormitory and knocked him down in a fist fight. Having received a black eye and a swollen lip in the altercation, Stewart threatened to kill Evert. The same accusation was made by Evert against Dominquez, also resulting in a fight with similar results and threats.

Later that evening, defendants, with a group of fifteen to twenty other inmates, confronted Evert in his dormitory. The dormitory residents testified that several of the intruders, including defendants, carried knives or other weapons. Defendants wounded Evert and chased him out of the building. Evert ran through other prison buildings and onto the outside catwalks, where he was finally tackled, beaten, and stabbed. Inmates who observed nearby described the stabbing, flailing, and hacking motions by Stewart, Christensen, and others into Evert's body. Evert was able only to stagger to a nearby prison supervisor's office, where he died of the multiple stab wounds. The medical examiner testified that one stab wound which penetrated the sternum and entered the heart could alone have caused Evert's death.

We reject appellants' argument that the verdicts, wherein they were convicted but Dominquez and Coleman were acquitted, are so obviously inconsistent that they demonstrate an insufficiency of the evidence. A participant who encourages or assists others in a crime may be found guilty when the evidence supports his conviction. U.C.A., 1953, § 76-2-202 (1978 ed.). The question on review is simply whether there is sufficient evidence to support the guilty verdicts. The inquiry then is whether the verdicts against Stewart and Christensen are supported by substantial evidence. 1 We conclude that they are.

Although witnesses identified all four defendants as leading aggressors in the attack Other testimony showed that Stewart carried the only knife capable of causing the one stab wound described as fatal by the medical examiner. Stewart did not testify in his own defense. But, during the prison investigation after the stabbing, Stewart denied any involvement, although he admitted he had observed the fight in progress. He claimed he had earlier received his black eye and swollen lip in a basketball game. This alibi was controverted by the testimony of the other defendants.

Stewart and Christensen were identified as possessing the knives which inflicted numerous stab wounds. A witness who encountered Evert and the mob in a stairwell testified that Christensen, with a bloody knife in his hand, looked over the wounded Evert from the top of the stairwell. In his defense, Christensen admitted that he had taken a machete knife with him to the fight and had stabbed Evert in the back. But Christensen claimed that he acted only in defense of another inmate being attacked by Evert.

Determining the facts from the evidence is the sole and exclusive province of the jury. State v. Gorlick, supra; State v. Rosenbaum, 22 Utah 2d 159, 449 P.2d 999 (1969). The jury was not obligated to accept the versions advanced by defendants, but was able to draw its own inferences and conclusions as to their conduct and credibility. The acquittal of Coleman and Dominquez does not necessarily require appellants' acquittal. "That the verdict may have been a result of compromise, or of a mistake on the part of the jury is possible. But verdicts cannot be upset by speculation or inquiry into such matters." Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 191, 76 L.Ed. 356 (1932).

Appellants suggest that the testimony of other inmates was inherently incredible because the prisoners testified only to obtain parole or other special considerations from their incarcerator. Defendants argued this point to the jury, which evaluated the credibility of the inmate witnesses, as well as any bias and prejudice. It is elementary that the fact finder may accept all, part, or none of a witness's testimony. 2 It may believe one witness as against many. Renfro v. State, Okla.Cr., 607 P.2d 703 (1980). Even accepting appellants' argument of inconsistencies in the inmates' testimony, we certainly cannot say that the testimony was so improbable that it was inherently unbelievable. State v. Lovato, Utah, 702 P.2d 101, 107 (1985); State v. Middelstadt, Utah, 579 P.2d 908 (1978).

Circumstantial, as well as direct, evidence that places the defendants as participants at the scene at the time of the killing and places the murder weapons in their possession is sufficient to sustain the guilty verdict. 3 Without more, the eyewitness testimony of observing inmates is sufficient to support the jury's finding. It is clear to this Court that the State's evidence and inferences which can be drawn therefrom are not so inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt as to appellants' guilt. 4

The second degree homicide convictions of Stewart and Christensen are affirmed.

The State of Utah, Plaintiff and Respondent,


George Edward Christensen, Defendant and Appellant.

No. 20641



We affirmed the second degree murder conviction of appellant George Edward Christensen in State v. Stewart, 729 P.2d 610 (Utah 1986), wherein the appeals of the two convicted defendants were consolidated. However, our decision issued before appellant Christensen had the opportunity to file his reply brief under Rule 26(a), Utah Rules of Appellate Procedure. Consequently, upon his petition, we granted a rehearing of his appeal in order to allow filing of his reply brief. After review of Christensen's reply brief, now filed, and the record below, we note that he reiterates the same arguments as in his original brief on appeal, which arguments were disposed of in our prior decision. State v. Stewart, supra.

We are not persuaded by appellant's arguments and again affirm his conviction without oral argument. Rule 35(c) of the Utah Rules of Appellate Procedure allows this Court to make final disposition on rehearing without oral argument when appropriate under the circumstances of the case. We do so here because the facts and issues appellant raises are adequately set forth in his brief, and our decision will not be significantly aided by any oral argument. Utah R.App.P. 29(a).

We adhere to our view that the "question on review is simply whether there is insufficient evidence to support the guilty verdict." As well explained by the United States Supreme Court in United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984):

A criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt.... This review should be independent of the jury's determination that evidence on another count was insufficient. The Government must convince the...

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