Opinion
Case No. 20040522-CA.
Filed May 12, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 041900176, The Honorable Leslie A. Lewis.
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellant.
Patrick L. Anderson and Debra Meek Nelson, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Jackson.
MEMORANDUM DECISION
The State appeals an interlocutory order granting Defendant Ryan Wayne Johnson's motion to reduce the charges from aggravated robbery to robbery on six counts. The State argues that the trial court erred in interpreting the term "representation" of a dangerous weapon in Utah Code sections 76-6-302 and 76-1-601 to include only verbal statements. Utah Code Ann. §§ 76-6-302, 76-1-601 (2004). The State avers that Johnson's use of his hand in his pocket to simulate a gun constitutes a nonverbal "representation" within the meaning of the Utah Code. Johnson argues that even if we determine nonverbal statements or gestures constitute a "representation" under the statute, the victims did not have a reasonable belief that "the item [was] likely to cause death or serious bodily injury" as required by Utah Code section 76-1-601. Id. § 76-1-601(5)(b)(i). We reverse on five counts and affirm on one count of the robbery charges.
We review the trial court's interpretation of statutes for correctness. See State v. Pixton, 2004 UT App 275, ¶ 4, 98 P.3d 433.
Johnson was charged with a total of six counts of aggravated robbery in two separate criminal informations. Four counts allegedly occurred in December 2003 and two counts in January 2004. Victims testified that on each occasion Johnson approached the victim and asked for money, that Johnson had a bulge in his right pocket, that he had his hand in his pocket, and that something was protruding which looked like a gun. The testimony was that Johnson made no verbal threats nor did he tell any of the victims that he had a gun in his possession. In addition, some of the victims testified that they complied with Johnson's requests because they feared for their lives.
In State v. Ireland, 2005 UT App 209, also issued today, we held that a "representation" constitutes both verbal and nonverbal statements or gestures. See id. at ¶ 10. Because the facts of this case are nearly identical to those of Ireland, the same reasoning applies. Consequently, we hold that the trial court erred in interpreting Utah Code sections 76-6-302 and 76-1-601 and that a "representation" may be made by both verbal and nonverbal statements or gestures. For each of the six counts of robbery, Johnson's action of holding his hand in his pocket simulating a gun constitutes a "representation" within the meaning of Utah Code section 76-1-601. Johnson's conduct is sufficient to sustain aggravated robbery charges so long as the victims "reasonably belie[ved] the item [was] likely to cause death or serious bodily injury." Utah Code Ann. § 76-1-601(5)(b)(i).
After reviewing the record on each of the six counts, we determine that the victims had the requisite "reasonable belief" to sustain an aggravated robbery charge in all but one of the six counts. In Ireland, we determined that there must be objective conduct by the defendant coupled with the victim's subjective apprehension to constitute a reasonable belief. See 2005 UT App 209 at ¶ 12. In five of the counts, victims testified that they saw or assumed that Johnson had a gun, and for that reason they complied with Johnson's request to give him money. However, the victim in Count I, occurring in January 2004, "didn't think [that Johnson had a gun] because the bulge wasn't big enough." Moreover, the victim stated she thought that Johnson "was very nice-spoken[,] . . . not aggressive, not anything that would make you think that he was going to cause you harm." Clearly, this victim did not have the requisite reasonable belief that Johnson would cause "death or serious bodily injury," and the objective facts of the encounter reinforce this reasonable belief. Thus, there cannot be an aggravated robbery charge for this count.
Accordingly, we reverse on the four counts occurring in December 2003 and Count II in January 2004 and hold that those counts sustain an aggravated robbery charge under Utah Code sections 76-6-302 and 76-1-601. See Utah Code Ann. §§ 76-6-302, 76-1-601. We affirm Count I in January 2004 as a robbery charge because the victim did not have the requisite reasonable objective belief to sustain an aggravated robbery charge.
WE CONCUR: James Z. Davis, Judge, Norman H. Jackson, Judge.