Opinion
Case No. 990417-CA.
Filed November 24, 2000. (Not For Official Publication)
Appeal from the Third District, Coalville Department, The Honorable Pat B. Brian.
Edwin S. Wall, Salt Lake City, for Appellant.
Jan Graham and Jeffrey S. Buckner, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Billings.
MEMORANDUM DECISION
Defendant appeals his convictions for burglary and theft, arguing, under four different theories, that the trial court committed plain error: (1) his theft conviction should have merged with his burglary conviction, (2) the State failed to produce sufficient evidence to support the burglary conviction, (3) the trial court failed to properly voir dire the jury, and (4) the State failed to produce sufficient evidence to support the second degree felony theft conviction.
As a threshold matter, defendant admits that he did not preserve any of these issues at the trial court. Thus, defendant argues each issue under plain error. In order to prevail under a plain error analysis, defendant must prove for each issue: "(i) An 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. . . ." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
Defendant argues that under State v. Pitts, 728 P.2d 113 (Utah 1986) his theft conviction should have merged with his burglary conviction. The State responds that Duran v. Cook, 788 P.2d 1038 (Utah Ct.App. 1990) controls this issue because, as we noted in Duran, Pitts addressed this issue in the context of jury instructions rather than merger. See id. at 1041 n. 2. We agree. Using the "`principal test'" which "`involves a comparison of the statutory elements of each crime[,]'" we have previously stated: "While it is true that there is some overlap in the two offenses . . ., burglary does not involve unauthorized control over that property. Therefore, burglary may be committed without having committed the theft." Id. at 1040 (citation omitted). Accordingly, the trial court was correct in not merging defendant's theft conviction into his burglary conviction.
Defendant also argues that his burglary conviction was not supported by sufficient evidence because the State did not provide direct evidence placing defendant at the Dorrans' cabin or showing that he had the requisite intent. See State v. Brown, 948 P.2d 337, 344 (Utah 1997) ("`A guilty verdict is not legally valid if it is based solely on inferences that give rise to only remote or speculative possibilities of guilt.'" (citation omitted)). In challenging the sufficiency of the evidence, defendant has the burden of marshaling all the evidence and then showing why the marshaled evidence is insufficient to support the verdict. See State v. Vigil, 840 P.2d 788, 793 (Utah Ct.App. 1992). Defendant has failed to marshal the evidence; rather he has simply reargued those facts supporting his argument. SeePromax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct.App. 1997). Therefore, we decline to address this argument.
The State produced ample circumstantial evidence to support defendant's burglary conviction, and it is well settled that circumstantial evidence is sufficient to convict a person of burglary.See State v. Pitts, 728 P.2d 113, 116-17 (Utah 1986) (upholding burglary conviction based on circumstantial evidence); State v. Porter, 705 P.2d 1174, 1177 (Utah 1985) (stating intent to burglarize is rarely susceptible to direct proof and can be inferred from circumstantial evidence); State v. Hawkins, 967 P.2d 966, 971-72 (Utah Ct.App. 1998) (upholding burglary conviction based on circumstantial evidence); State v. Pacheco, 778 P.2d 26, 30-31 (Utah Ct.App. 1989) (same).
Next, defendant claims juror responses to certain voir dire questions raised an inference of bias, and the trial court erred by failing to properly rehabilitate the jurors through further questioning. "`When comments are made which facially question a prospective juror's impartiality or prejudice, an abuse of discretion may occur unless the challenged juror is removed by the court or unless the court or counsel investigates and finds the inference rebutted.'" State v. Woolley, 810 P.2d 440, 443 (Utah Ct.App. 1991) (quoting State v. Cobb, 774 P.2d 1123, 1126 (Utah 1989)).
We agree with defendant that the trial court must further question jurors when an inference of bias has been raised. Furthermore, we agree that the record of the voir dire in this case is difficult to follow and does not easily lend itself to appellate review. Additionally, the State's argument that State v. Piansiaksone, 954 P.2d 861, 866-68 (Utah 1998) does not require the trial court to divine additional questions to ask the jury on behalf of defense counsel is unpersuasive. Piansiaksone addresses the scope of voir dire questions, whereas defendant's claim is concerned with rehabilitative questions after an inference of bias has been raised.
Nevertheless, "[t]o prevail on a claim of error based on the failure to remove a juror for cause, a defendant must demonstrate prejudice, viz., show that a member of the jury was partial or incompetent." State v. Menzies, 889 P.2d 393, 398 (Utah 1994). Defendant has not shown any prejudice or identified any members of the jury who were biased. Furthermore, our review of the trial transcript suggests that the trial court adequately complied with the rule in Woolley.
Finally, defendant claims his second degree theft claim is not supported by sufficient evidence because the State did not prove the stolen items' value was in excess of $5000 or that the four-wheeler was operable. We have carefully examined defendant's market value and operable vehicle claims and find them to be frivolous. See State v. Carter, 776 P.2d 886, 888 (Utah 1989). Furthermore, defendant stole numerous firearms. Under Utah Code Ann. § 76-6-412(1)(a)(ii) (1999), defendant was properly convicted of a second degree felony for theft of firearms, and we decline to further consider defendant's market value and operable vehicle arguments.
Accordingly, defendant's convictions are affirmed.
Pamela T. Greenwood, Presiding Judge
WE CONCUR: Norman H. Jackson, Associate Presiding Judge, Judith M. Billings, Judge.