Opinion
Case No. 20020019-CA.
FILED February 21, 2003. (Not For Official Publication)
Third District, Salt Lake Department, The Honorable Dennis M. Fuchs.
Heather Johnson and Robin K. Ljungberg, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Greenwood.
MEMORANDUM DECISION
Anthony James Andersen (Defendant) was found guilty of Robbery, under Utah Code Ann. § 76-6-301 (1999), and Receiving a Stolen Motor Vehicle, under Utah Code Ann. § 41-1a-1316(2) (1998), both second degree felonies. Defendant appeals, claiming: (1) there was insufficient evidence, and (2) the trial court erred in denying his Motion to Sever because the two crimes are not sufficiently related. We affirm.
I. SUFFICIENCY OF EVIDENCE
Defendant first argues that there was insufficient evidence to find that he was the robber because he was wearing a polo shirt with red, black, gold, white, and gray stripes, while the suspect was described as wearing a light-colored t-shirt. Otherwise, Defendant's clothing was consistent with the descriptions provided by witnesses.
"[A] conviction can be based on sufficient circumstantial evidence."State v. Brown, 948 P.2d 337, 344 (Utah 1997); see also State v. Fedorowicz, 2002 UT 67, ¶ 41, 52 P.3d 1194 (affirming defendant's conviction "so long as the circumstantial evidence connecting him to the crimes charged is sufficient"). In this case, the evidence, although circumstantial, was sufficient for the jury to find guilt beyond a reasonable doubt. Specifically, the evidence showed: Christopher Dean Wiggins (Wiggins), the victim, was solicited by a prostitute later identified as Lydia Selgado (Selgado); as Wiggins was speaking to Selgado an individual accosted him and, under the guise of being a police officer, took his wallet, hit him on the head, and ran away; Wiggins described the robber as male, wearing blue jeans, a light-colored t-shirt, and a blue bandana around his head; in Wiggins's wallet there was approximately $100 in various denominations (a couple of twenties, a ten, a five, and some ones); Selgado was seen immediately after the robbery near the stolen Blazer; as an officer was speaking to Selgado near the Blazer, Defendant walked by and was described as wearing blue jeans, a white shirt, and a blue bandana on his head; shortly after the robbery and during the police search for the suspects, Defendant was found feigning sleep in the stolen Blazer; when Defendant exited the Blazer, Officer Pascadlo described him as wearing blue jeans and a light-colored shirt, and later found a blue bandana in his pocket; Defendant tried to flee by climbing a fence; after Defendant was pulled off the fence the officers found a wad of cash on the other side of the fence; the wad contained $73 dollars consisting of one twenty, one ten, three fives, and twenty-eight ones; Selgado was found with two twenty dollar bills in her bra that she could not account for; Selgado's identification was found in the stolen Blazer; and the Blazer contained Defendant's identification and numerous items bearing his name.
Defendant spent a significant amount of time in his brief discussing the difference between the clothing he was wearing when arrested and the clothing described by witnesses. There were three different descriptions of the suspect's clothing: Wiggins, without seeing the face of the robber, described the suspect as wearing a light-colored t-shirt and a blue bandana around his head; Officer Baldwin, identifying Defendant as the man who walked by while he was speaking with Selgado, described Defendant as wearing a white shirt with a blue bandana around his head; and Officer Pascadlo described Defendant's clothing, as she saw him exit the Blazer, as a light-colored shirt. A blue bandana was subsequently found in Defendant's pocket. These descriptions, especially the description by Officer Pascadlo who arrested Defendant, although different, reasonably describe the same shirt.
Additionally, the trial court considered Defendant's insufficiency of the evidence claim when Defendant moved for a directed verdict. This "`lends further weight to the jury's verdict.'" Brown, 948 P.2d at 344 (quoting State v. Johnson, 821 P.2d 1150, 1156 (Utah 1991)). Given the evidence and the trial judge's finding of sufficient circumstantial evidence for jury deliberation, Defendant has not shown that reasonable minds could not have found Defendant guilty of robbery. See Fedorowicz, 2002 UT 67 at ¶ 40.
II. SEVERANCE OF CHARGES
Defendant next argues the trial court erred in denying his Motion to Sever. The trial court has discretion to deny or grant a motion to sever; therefore, this court will "reverse a conviction only if the trial judge's refusal to sever charges is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial." State v. Scales, 946 P.2d 377, 384 (Utah Ct.App. 1997) (quotations and citations omitted).
Utah Code Ann. § 77-8a-1 (1999) governs the joinder of offenses and defendants. In Scales, this court interpreted section 77-8a-1 as providing a two-part test for determining whether a trial court properly joined or severed a defendant's charges. 946 P.2d at 384-85. First, this court stated that subsections 77-8a-1(1) and (3) require that the "offenses either are (1) `based on the same conduct or are otherwise connected together in their commission,' or (2) `alleged to have been part of a common scheme or plan.'" Scales, 943 P.2d at 385 (quoting Utah Code Ann. § 77-8a-1(1)(a), (b)). If this court determines that the conduct is connected or part of a common scheme, we must then "focus on whether the single trial of the [possession of a stolen vehicle and robbery] charges resulted in prejudice to defendant." Id.
The general rule in determining whether charges are connected in their commission is, "`[w]hen criminal conduct resulting in a second charge is precipitated by a previous charge, the two are sufficiently "connected together" to allow consolidation for trial.'" State v. Smith, 927 P.2d 649, 653 (Utah Ct.App. 1996) (quoting State v. Pondexter, 671 P.2d 539, 546 (Kan. 1983)). We conclude that the trial court did not abuse its discretion in denying Defendant's Motion to Sever because the crimes were "connected together in their commission," Utah Code Ann. § 77-8a-1, as evidenced by their close physical proximity to each other, evidence linking Defendant to the robbery was found in the Blazer, identification of both Selgado and Defendant were found in the Blazer as well as other documents belonging to Defendant, and Defendant was found hiding in the Blazer immediately after the robbery.
Where we find the crimes sufficiently connected, Defendant must then show that the joinder was prejudicial. See Scales, 946 P.2d at 385. "The burden of demonstrating prejudice is a difficult one . . . . The defendant must show something more than the fact that `a separate trial might offer him a better chance of acquittal.'" Smith, 927 P.2d at 654 (quoting United States v. Van Scoy, 482 F.2d 347, 349 (10th Cir. 1973)).
"The initial inquiry regarding whether a defendant is prejudiced by joinder is `whether evidence of the other crime would have been admissible in a separate trial.'" State v. Mead, 2001 UT 58, ¶ 59, 27 P.3d 1115 (citation omitted). In this case we conclude that evidence from both crimes would be admissible in separate trials to prove "motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident." State v. Lopez, 789 P.2d 39, 43 (Utah Ct.App. 1990) (quoting Utah R. Evid. 404(b)). Both Defendant's and Selgado's identities can be established by identification found in the stolen Blazer. See Utah R. Evid. 404(b). Additionally, the identification found in the Blazer linked Defendant and Selgado together and made it more likely that the two acted as accomplices in committing the robbery. Although the evidence could be admitted without revealing that they were found in a stolen vehicle, Defendant has not established why such identity evidence is so prejudicial as to result in an unfair trial.
In sum, there was sufficient evidence identifying Defendant as the robber to convict. Furthermore, the trial court did not err in refusing to sever Defendant's charges. Thus, we affirm.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and James Z. Davis, Judge.