Opinion
Case No. 20030435-CA.
Filed June 3, 2005. (Not For Official Publication).
Appeal from the Third District, Silver Summit Department, 021500193, The Honorable Bruce Lubeck.
Stephanie Ames, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
Before Judges Jackson, Orme, and Thorne.
MEMORANDUM DECISION
John H. Hendricks III appeals his conviction of aggravated sexual assault, a first degree felony. See Utah Code Ann. § 76-5-405 (2003). We affirm.
Hendricks argues that the trial court committed plain error by prescribing a sequence for the jury's deliberations. We review jury instructions "for error in the absence of an objection only `to avoid a manifest injustice.'" State v. Powell, 872 P.2d 1027, 1029 (Utah 1994) (quoting Utah R. Crim. P. 19(c)). "`[I]n most circumstances, the term "manifest injustice" is synonymous with the "plain error" standard.'" Id. (quoting State v. Verde, 770 P.2d 116, 121-22 (Utah 1989)). To establish plain error and gain relief on appeal, Hendricks must show that "`(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.'" Id. at 1031 (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)).
As to the first requirement, Hendricks specifically argues that the instruction that defines the requirements of aggravated sexual assault mandated that the jury decide to acquit Hendricks of the greater offense prior to considering the lesser included offenses. "[T]he trial court is not to mandate a specific order of deliberation to the jury concerning lesser included offenses; rather, such instruction should be given by way of suggestion and recommendation." Id. And, the complained-of jury instruction does indeed include some language that may be interpreted as violating this rule, thus showing that an error occurred.
However, Hendricks has failed to meet the second requirement of plain error. The error would not have been obvious to the trial court because the jury instructions also included language that indicates that the objected-to language was merely suggestive or recommended. For example, the instruction said: "To aid you and not control your verdict, you may want to consider first . . ." and "You are not required to so proceed. . . ." Thus, we reject Hendricks argument that the jury instruction was plainly erroneous.
Hendricks also asserts that the evidence was insufficient to convict him of aggravated sexual assault. "[W]hen reviewing a claim of insufficiency of the evidence, this court views the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the jury verdict."State v. James, 819 P.2d 781, 784 (Utah 1991). "It is only when the evidence as viewed in this light is sufficiently inconclusive or inherently improbable that a jury must have entertained a reasonable doubt as to the defendant's guilt that it is proper to overturn the conviction." Id. (footnote omitted).
The State argues that we should not consider this argument because Hendricks has failed to marshal the evidence that supports the verdict. A defendant who claims insufficiency must "first marshal all record evidence that supports the challenged finding." State v. Prichett, 2003 UT 24, ¶ 25, 69 P.3d 1278 (quotations and citation omitted). Hendricks did recite some of the facts that supported the conviction, but Hendricks did not marshal the State's medical evidence or certain portions of his police interview. Regardless of whether we consider only Hendricks's abbreviated evidence or the full record, the evidence is sufficient to support the verdict. Accordingly, we affirm.
Hendricks's final argument is that the guilty verdict on the aggravated sexual assault charge is inconsistent with the jury's verdicts on the other charges. We do not agree that there is any inconsistency. And in any event, "inconsistent verdicts do not equate to insufficient evidence." State v. Olive, 2005 UT App 120 (mem.); see also United States v. Powell, 469 U.S. 57, 64-65 (1984) (stating that "inconsistent verdicts . . . do not show that [the jury was] not convinced of the defendant's guilt" and "should not necessarily be interpreted as a windfall to the Government at the defendant's expense").
WE CONCUR: Gregory K. Orme, Judge, William A. Thorne, Jr., Judge.