State v. Whitbeck

• Decision Date: 17 May 2018
• Docket Number: No. 20150973-CA,20150973-CA
• Citation: 427 P.3d 381
• Parties: STATE of Utah, Appellee, v. Brandon Tyler WHITBECK, Appellant.
• Court: Utah Court of Appeals

427 P.3d 381

STATE of Utah, Appellee,

v.Brandon Tyler WHITBECK, Appellant.

No. 20150973-CA

Court of Appeals of Utah.

Filed May 17, 2018

Samuel P. Newton, Cherise M. Bacalski, and Emily Adams, Attorneys for Appellant

Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen and Diana Hagen concurred.

Opinion

POHLMAN, Judge:

¶ 1 Brandon Tyler Whitbeck appeals his convictions of one count of failure to stop or respond at the command of a police officer, a third degree felony, see Utah Code Ann. § 41–6a–210 (LexisNexis 2014), and one count of theft by receiving stolen property, a second degree felony, see id. § 76–6–408 (2017). On appeal, Whitbeck argues that the trial court exceeded its discretion in admitting prior bad acts evidence under rule 404(b) of the Utah Rules of Evidence and that his trial counsel performed ineffectively by failing to object to the introduction of prejudicial photographs, which depicted him posing while holding a gun. We affirm.

BACKGROUND

¶ 2 The State charged Whitbeck with failure to stop or respond at the command of a police officer and theft by receiving stolen property, a 2012 GMC Acadia, based on a series of events that occurred in North Ogden in January 2015. At that time, a "high rate of vehicle [burglaries] and vehicle thefts" had been occurring in the Ogden area, and officers from North Ogden and Weber County were working together to identify potential suspects.

¶ 3 During the night of January 17, and into the early morning of January 18, several vehicle burglaries and thefts occurred in one particular North Ogden neighborhood. As pertinent here, one theft victim reported that his garage had been "ransacked" and that among the items stolen was his wife’s vehicle, a charcoal gray 2012 GMC Acadia.

¶ 4 Two other victims reported vehicle burglaries in the same neighborhood, on the same night. The first victim, whose vehicle was parked approximately six or seven blocks from where the Acadia had been stolen, reported that his vehicle had been broken into and that, although it did not appear that anything had been taken, there was a phone left in the vehicle that was not his. Through a combination of fingerprints lifted from the phone and evidence obtained through a search of the phone, the officers identified the phone as Whitbeck’s.

¶ 5 The second victim, whose vehicle was "approximately two doors away" from where the Acadia had been stolen, reported that his vehicle had been broken into and that his identification card, several watches, and a check written out to him had been stolen from it. On January 21, a wallet containing, among other things, the second victim’s identification card and the check, as well as Whitbeck’s driver license, was turned in to the Harrisville City Police Department. The officer investigating the wallet and its contents determined that the wallet belonged to Whitbeck, and he notified one of the North Ogden officers investigating the vehicle burglaries and forwarded to the officer photographs of the wallet’s contents.

¶ 6 After the January 18 events, police identified Whitbeck and a known associate of Whitbeck’s, Witness, as the primary suspects of the string of burglaries and thefts. Various officers met to strategize, and each officer was provided photographs—both booking photographs and photographs obtained through social media—of Whitbeck and Witness. The officers were also provided with Witness’s address as well as descriptions of the stolen vehicles from the area, including the 2012 GMC Acadia.

¶ 7 Over the next three days, two investigating officers reported observing Whitbeck driving what appeared to be the stolen Acadia. On January 20, one of the officers, Officer Haney, reported that he had observed two vehicles parked in Witness’s driveway. One of them, a gray Chevrolet Aveo, had been reported stolen. The other vehicle was a "dark gray GMC Acadia," and Officer Haney observed a person he later identified as Whitbeck "standing inside the ... driver’s door" of that vehicle. The Acadia did not have a license plate. Officer Haney observed both the Aveo and the Acadia back out of the driveway and drive away from Witness’s house.

¶ 8 The next day, another officer, Officer Huckaby, reported observing Whitbeck driving what he identified as a gray 2012 GMC Acadia in North Ogden. During trial, Officer Huckaby testified that as he was checking out some "hot spots" looking for stolen cars, he observed a gray Acadia pull up to a stop sign. Because Officer Huckaby knew that a gray 2012 Acadia had been reported stolen, he "slowed down," and as the vehicle turned, he observed the driver from a distance of approximately twenty feet. He immediately recognized the driver as Whitbeck from his photographs, which Officer Huckaby had with him in his vehicle at the time. He also observed that the Acadia had no license plate. Officer Huckaby immediately executed a U-turn to "keep an eye on the car," and, because he drove an "unmarked car," he radioed for assistance. Another patrol vehicle responded, turning on its siren and lights while getting "directly behind" the Acadia. Rather than slowing and stopping, however, Whitbeck "immediately accelerated," ran a stop sign, and proceeded northbound at an "extremely high rate of speed." Although the patrol car initially gave chase, it broke off pursuit for safety reasons.

¶ 9 A few days later, police recovered the Acadia when a man in Clearfield reported that he suspected that a 2012 GMC Acadia he had received from a friend of Whitbeck’s was stolen.

¶ 10 Before trial, the State filed a notice of intent to introduce rule 404(b) evidence linking Whitbeck to other burglaries that had occurred in the same North Ogden neighborhood on January 18,¹ which Whitbeck opposed. Out of the jury’s presence on the day of trial, the court heard argument from both sides on the matter.

¶ 11 The State argued that it sought to introduce the phone and the wallet as evidence to "corroborate the fact that [Whitbeck] was in the area at the time that the [Acadia] theft actually happened," which the State claimed would "help prove the elements that [Whitbeck] knew or should have known that the [Acadia] was stolen" at the time he possessed it. The State also asserted that Witness was prepared to testify, among other things, that on the night in question, it was his and Whitbeck’s "plan" to commit these vehicle burglaries and thefts and that they engaged in this conduct on the night in question at the "general location" from which the Acadia had been stolen.

¶ 12 Whitbeck responded that the phone and wallet evidence were "bits and pieces" the State was trying to present as "one cohesive piece of evidence." He argued that the pieces of evidence did not demonstrate that he was "in possession of anything," even if the items were "all related to a type of crime or a genre of crime." He also asserted that the introduction of the items would be problematic, given that those items were not found on him at the same location and, for example, it was not clear "how the [stolen] identification got into his wallet."

¶ 13 The court ruled in favor of the State, concluding that the phone and wallet evidence was being offered for a "proper noncharacter purpose," because it "goes to identify Mr. Whitbeck" as "a person who was involved in" vehicle burglaries and whether "he is the person that [the police] were in fact looking for for this series of crimes that allegedly occurred" in that North Ogden neighborhood. The court recognized that the evidence was prejudicial but determined it was not unfairly so, and the court observed that there was a "need for the evidence" and that the State was "entitled to bring in all the evidence that [it] had that would lead one to believe that the identity of the person that was involved in this crime and inferentially involved in others was Mr. Whitbeck." The court accordingly limited its ruling to permitting the introduction of the phone and the wallet to "tie ... up with [Witness] to the extent that Mr. Whitbeck was involved in this crime or other crimes," and the court emphasized that the State was not to use the evidence to say that Whitbeck committed "all these other crimes," but rather that the State was limited to using the evidence to identify Whitbeck as a person "who may have been involved in this."

¶ 14 At trial, Witness testified that he and Whitbeck had been in the North Ogden neighborhood from which the Acadia had been stolen on the night in question and that they were there to generally steal and burglarize vehicles. Witness also testified that the next day Whitbeck had said that he had lost his phone. In addition, Witness testified that on at least two occasions he had observed Whitbeck driving a GMC Acadia—later in the morning of January 18 when he and Whitbeck reunited, and on the day Officer Haney observed the Acadia in Witness’s driveway because Witness was seated in the Acadia as Whitbeck drove it away.

¶ 15 The State also introduced the wallet and phone evidence to corroborate Witness’s testimony about the events of the night in question, arguing that Whitbeck knew the Acadia was stolen because, in part, the evidence demonstrated he was in the North Ogden neighborhood with Witness pursuant to the plan to steal and burglarize vehicles. As to the phone in particular, the State presented evidence recovered from the phone to demonstrate that it belonged to Whitbeck, including fingerprints, text messages, application use, and two photographs depicting Whitbeck posing with a gun. The trial court admitted the photographs into evidence without objection.

¶ 16 At closing, the State emphasized to the jury that although other vehicle burglaries and thefts had been discussed, the State had not charged Whitbeck with those other vehicle burglaries, and the "only things" the jury was to decide were whether Whitbeck eluded the police officer and "was...