State v. Skinner , 2020 UT App 3 ( 2020 )

2020 UT App 3THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
STEVEN DENNIS SKINNER,
Appellant.
Opinion
No. 20180584-CA
Filed January 3, 2020
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 141907373
Debra M. Nelson and Brady Smith, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 Seeking a “dominant/submissive” experience, Steven
Dennis Skinner summoned a professional escort to his
apartment in the wee hours of the morning. When the escort
objected to some of the acts in which Skinner wanted her to
participate, he produced a gun and forced her to perform sexual
acts to which she had not consented. Eventually, the two of them
fought over the gun, and it discharged, hitting the escort and
injuring her; in the resulting confusion, the escort somehow
gained control of the gun and shot Skinner several times,
injuring him. A jury later convicted Skinner on four counts of
aggravated sexual assault, as well as one count of theft by
State v. Skinner
receiving stolen property. Skinner appeals, arguing that the
evidence was insufficient to convict him of any offense. We reject
Skinner’s arguments and affirm his convictions.
BACKGROUND 1
¶2 In 2014, V.M. worked as an escort for a business known
as the Dollhouse. Clients seeking the services of an escort
contact the Dollhouse, and the company’s phone operator—a
sort of dispatcher—then contacts the individual escorts and
tells them the identity of the client and where to meet. At
approximately 3:00 a.m. one morning, the Dollhouse phone
operator contacted V.M. and told her that a client, Skinner, had
requested a “submissive person” and that he wanted “some
sort of dominating” experience. V.M. drove to the address the
phone operator had provided, which turned out to be
Skinner’s apartment. Skinner met her at her car and escorted
her inside, at which point V.M. collected a $200 “show-up” fee,
by which Skinner purchased one hour of V.M.’s time. At that
point, pursuant to company protocol, V.M. called the phone
operator and reported that she was in the apartment and had
collected the “show-up” fee, and that the clock could start on
Skinner’s hour.
¶3 V.M. had to give half of the “show-up” fee to the
Dollhouse, but was entitled to keep the other half, plus any tips
the client might provide. V.M. told Skinner that, for a tip, she
would be “more entertaining.” In response, Skinner stated that
1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Tulley, 2018 UT 35, ¶ 4 n.1, 428
P.3d 1005 (quotation simplified).
20180584-CA 2 2020 UT App 3State v. Skinner
“he likes whips and cuffs and stuff.” Because V.M. was “trying
to get the money,” she did not immediately reject Skinner’s
suggestions, instead saying “we’ll see.” Skinner paid V.M. an
additional $200 tip, and V.M. then took off her clothes, leaving
on only her bra and underwear. Soon thereafter, Skinner
produced a whip and told V.M. that he wanted to use it on her;
after expressing initial objections, V.M. agreed to let Skinner use
the whip, but only if Skinner used it “really lightly.” As Skinner
whipped V.M., he instructed her to call him “sir.” At some point,
the whipping became too hard for V.M.’s liking, and she asked
Skinner to stop. Skinner complied, but became frustrated that
V.M. would “not agree[] to do what he want[ed].” Skinner then
went into a back room, leaving V.M. alone in the living room.
¶4 After sitting alone for a few minutes in the living room,
V.M. became worried that Skinner had been gone for “too long,”
so she walked toward the back room to “see what was going
on.” From the doorway to the room, V.M. observed Skinner
“facing the wall” and “[s]taring down, looking at something.”
Concerned that Skinner “looked really odd and suspicious,”
V.M. decided to text the Dollhouse phone operator to inform her
that Skinner was “acting a little bit odd,” and she returned to the
living room to retrieve her phone, which was in her purse on the
couch. But before V.M. could send the message, Skinner
appeared behind her, wielding a “long” handgun. Skinner held
the gun to the back of V.M.’s head and knocked the phone out of
her hand, causing it to land between the wall and the couch.
With the gun still against V.M.’s head, Skinner told her that she
was “going to do what the f*** I say”; he then forced V.M. to “get
down on [her] knees” and perform oral sex on him, even though
V.M. testified that she had not agreed to do so. Skinner forced
V.M. to continue until Skinner ejaculated in her mouth.
¶5 After that, Skinner continued to demand that V.M.
perform various sex acts, including anal sex, and ordered her to
“bend over on the couch” with her back to him while he
20180584-CA 3 2020 UT App 3State v. Skinner
“rubb[ed]” and “push[ed]” himself against her in an attempt to
insert his penis into her anus. Skinner also inserted his fingers
into V.M.’s anus and rubbed his penis against her vagina. But
Skinner was unable to maintain an erection, so he ordered V.M.
to “get him hard again” by performing additional oral sex.
Skinner continued this “back and forth”—with V.M. performing
oral sex followed by unsuccessful attempts to perform anal sex—
for what seemed to V.M. like “a long time.”
¶6 Eventually Skinner grew tired of this routine, and placed
the gun down on the couch. With V.M. still bent over facing the
couch and Skinner behind her with his stomach against her back,
Skinner wrapped his left arm around V.M.’s neck and began to
choke her. As V.M. began to black out, she reached for the gun.
At that point, Skinner went for the gun as well, and “a little
tussle” ensued. The gun went off twice, hitting V.M. both times:
once in her left leg, where the bullet entered the outside of her
calf and exited on the inside of her knee; and once in her left
hand, where the bullet entered her palm and exited the top of
her hand. Despite having been shot, V.M. continued to struggle
with Skinner until she gained control of the gun. Then, using her
right hand, V.M. shot at Skinner “as many times” as she could,
hitting him three times: once in his left abdomen, once in his left
upper arm, and once on his right inner thigh.
¶7 After shooting Skinner, V.M. “picked up [her] leg,” which
was “hanging off” with “the bone coming out,” and dragged
herself out of the apartment. Once outside, V.M. continued to
drag herself down the outside stairs, all the while “yelling for
help.” A neighbor responded to her pleas and called the police
and paramedics.
¶8 When officers arrived at Skinner’s apartment complex,
they found the neighbor sitting with V.M., who was lying at the
bottom of the stairs to the apartment. V.M. was “naked for the
most part,” covered in blood, and “screaming that she had been
20180584-CA 4 2020 UT App 3State v. Skinner
shot.” V.M. told officers that a man upstairs had a gun. Officers
noticed that there was “quite a bit of blood on the stairs” so they
followed its trail, which led to Skinner’s apartment. Officers
found the door to the apartment open and, through the door,
saw Skinner lying across a chair naked and covered in blood,
with multiple gunshot wounds. When asked about the gun,
Skinner told officers, “[I]t’s her gun, she brought it.”
¶9 V.M. and Skinner were taken to a hospital where they
both underwent surgeries to treat their gunshot wounds. V.M.
suffered fractures to her femur, tibia, and left hand, and has
required multiple reconstructive surgeries. Skinner suffered
injuries to his colon, diaphragm, liver, ribs, and left arm.
¶10 During a search of Skinner’s apartment, which was in
complete “disarray,” officers found three bullet holes: one in the
wall above the television, one in the window, and one in the wall
by the couch. There were copious amounts of blood throughout
the apartment, including “a lot of blood from the kitchen”; blood
on the couch; a blood trail from the front door into the
apartment; and a pool of blood just inside the front door.
Although there were blood stains on the exterior side of the front
door, there were no visible stains on the interior of the door, and
neither the doorknob nor the dead bolt on the door was tested
for blood. There were also blood spatter stains on “the wall
directly behind the couch, the wall on the side of the couch, and
the ceiling.” Tissue was found on the walls, ceiling, and
bookshelf. A crime scene technician took blood swabs from the
areas that were “the most saturated with blood,” but
unfortunately the swabs became contaminated before they could
be tested for DNA. No tissue was collected for DNA testing.
¶11 Officers recovered a gun from the front room, and located
two gun cases in the back room. One of the cases was empty and
was made for a Ruger GP100 357 magnum revolver—the same
brand and make of gun found in the front room. Subsequent
20180584-CA 5 2020 UT App 3State v. Skinner
investigation indicated that this firearm did not belong to
Skinner and had been reported stolen.
¶12 After completing its investigation, the State charged
Skinner with four counts of aggravated sexual assault, one count
of theft by receiving stolen property for possessing the gun, and
one count of aggravated assault. On the State’s motion, the
aggravated assault charge was eventually dismissed, and
Skinner was tried before a jury on the remaining five counts.
¶13 At trial, the State introduced test results that showed
Skinner’s DNA and amylase (saliva) on V.M. Her oral and
perianal swabs tested positive for seminal fluid and her breast
swabs tested positive for saliva, all of which contained DNA
consistent with Skinner’s. Skinner’s penile swabs tested positive
for saliva and DNA consistent with V.M.’s. Also, the gun’s
owner (Owner) testified, and explained that he knew Skinner
because his mother (Mother) was friends with Skinner and had
invited Skinner to live at her house for a time. Owner testified
that the Ruger revolver recovered at the scene belonged to him,
and had been gifted to him by Mother. Although Owner did not
live with Mother when Skinner was there, Owner left many of
his belongings at her house, including the gun. About a month
after Skinner moved out, Owner noticed that his gun was
missing, and he called the police and reported it stolen,
identifying the gun by its serial number. Owner maintained that
he had never given Skinner permission to keep the gun or even
take it from Mother’s house.
¶14 The defense called two witnesses: a police officer
(Sergeant) and a forensic expert (Expert). Sergeant testified that
he had been undercover in a previous prostitution sting in which
V.M. had offered to masturbate him for $200. Expert opined
extensively on the physical evidence in the case, specifically on
V.M.’s and Skinner’s relative positions during the shooting and
“the events immediately surrounding the gunshots.” After
20180584-CA 6 2020 UT App 3State v. Skinner
reviewing (among other things) crime scene photographs, police
reports, lab and medical reports, and transcripts of the
preliminary hearing, Expert testified that he did not see evidence
consistent with “what [he] would expect from [V.M.’s]
description” of the shooting. Expert first testified about the shot
to V.M.’s leg. Expert explained that if V.M. had been shot in the
leg while kneeling on the couch—as she had testified—there
would likely be “a good deal more blood on the couch,”
including blood spray in an exit gunshot pattern.
¶15 Expert also noted three issues with V.M.’s account of her
and Skinner’s relative positions during the shooting. First, if
V.M.’s knee had been on the couch when the gun went off,
“there’s no place to put the gun and aim it the way that it goes
through her leg. The couch gets in the way.” Second, if Skinner
had been behind V.M. holding the gun in his right hand and
“aiming so that he’s shooting . . . [V.M.] in the back of her calf,”
Skinner would have also been pointing the gun at himself. Third,
if V.M.’s leg had been shot while she was kneeling on the couch,
“the exit injury to her thigh would’ve also potentially resulted in
the exit injury to her torso” because the gun would have been
pointing upwards resulting in the bullet “coming out higher
than it’s going in on the leg.”
¶16 Expert then testified about the shot to V.M.’s hand. Expert
stated that the entry wound was on the inside of V.M.’s left palm
and the exit wound was on the outside. He opined that V.M.’s
hand “wouldn’t have been functional” after it was shot. Expert
then explained a number of issues surrounding the shooting that
he had identified. First, if V.M. and Skinner had been positioned
as V.M. described at the time of the shooting, the exit wound on
the back of V.M.’s hand could only have occurred if her hand
was “turned completely around.” Second, the blood spatter
evidence and the lack of bullet damage was not consistent with
V.M.’s claim that she had been kneeling on the couch with
Skinner behind her when he shot her hand. Specifically, there
20180584-CA 7 2020 UT App 3State v. Skinner
was no blood spatter on the couch or the surrounding walls, nor
was there any bullet damage to the couch or walls, as would be
expected if V.M.’s version of events were true. Third, there was
blood spatter evidence consistent with V.M.’s hand wound that
was located “in the exact opposite direction of what [V.M.] had
described in her testimony.”
¶17 Lastly, Expert testified that the revolver in this case was
relatively easy to discharge, requiring only three pounds of
pressure. He also testified that it is difficult, “particularly in a
situation where there’s a lot of emotion” and stress, for a novice
to shoot a handgun accurately. Furthermore, most individuals
use two hands when shooting a handgun because doing so
increases accuracy and provides stability when the gun recoils.
As such, Expert concluded that the damage to V.M.’s left hand
had in effect rendered it useless, and she would not have been
able to use that hand to steady the gun or cock the hammer back.
¶18 At the close of the State’s evidence Skinner made an oral
motion for a directed verdict, arguing that the evidence
presented was not sufficient for the jury to find Skinner guilty
beyond a reasonable doubt. Skinner’s argument was brief; he
argued simply that the State’s evidence was “solely based on
testimony” from V.M., and noted that, while “some additional
DNA evidence may or may not corroborate that testimony,” it
was insufficient to convict him “without additional forensic
evidence” to support it. Skinner did not ask the trial court to
disregard any evidence, and made no specific argument that
V.M.’s—or any other witness’s—testimony was inherently
improbable. The trial court denied the motion, and the jury
convicted Skinner on all counts.
ISSUES AND STANDARDS OF REVIEW
¶19 Skinner now appeals, asserting that there was insufficient
evidence to support the jury’s verdict on any of the counts. With
20180584-CA 8 2020 UT App 3State v. Skinner
regard to the theft count, Skinner makes a traditional sufficiency-
of-the-evidence argument, asserting that the State’s evidence
was insufficient to support his conviction. “When a jury verdict
is challenged on the ground that the evidence is insufficient, we
review the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict.” State v.
Hirschi, 2007 UT App 255, ¶ 15, 167 P.3d 503 (quotation
simplified). After reviewing the evidence in this manner, “we
will uphold the trial court’s decision if . . . we conclude that
some evidence exists from which a reasonable jury could find
that the elements of the crime had been proven beyond a
reasonable doubt.” Id. (quotation simplified).
¶20 With regard to the sexual assault counts, however,
Skinner’s argument is more nuanced. Rather than make a
traditional sufficiency-of-the-evidence argument, Skinner asks us
to disregard V.M.’s testimony as “inherently improbable,” see
State v. Robbins, 2009 UT 23, ¶ 14, 210 P.3d 288, before assessing
the sufficiency of the State’s evidence on the sexual assault
counts. We “accord deference to the trial court’s ability and
opportunity to evaluate credibility and demeanor,” and
therefore review deferentially a trial court’s decision to decline
to disregard a witness’s testimony due to inherent improbability,
reversing the trial court’s decision only if it was “clearly
erroneous.” Salt Lake City v. Northern, 2013 UT App 299, ¶ 6, 318
P.3d 775 (quotation simplified).
ANALYSIS
I. The Sexual Assault Convictions
¶21 Skinner first raises an insufficiency-of-the-evidence
challenge to his four convictions for aggravated sexual assault.
His argument on appeal is a specific one: he asserts that his
sexual assault convictions should be reversed because “the
verdicts were based on testimony that was inherently
20180584-CA 9 2020 UT App 3State v. Skinner
improbable.” Citing State v. Robbins, 2009 UT 23, 210 P.3d 288, he
contends that V.M.’s testimony—which provided the basis for
the sexual assault convictions—“was materially inconsistent,
patently false, and lacked corroboration with the forensic
evidence at the scene.”
¶22 Skinner maintains that he preserved this issue for appeal
by making his general motion for a directed verdict at trial. In
the alternative, in the event that we find the issue unpreserved,
he asks us to review it for plain error. Accordingly, we begin our
analysis by considering whether Skinner properly preserved this
issue for appellate review.
A
¶23 Appellate courts “generally will not consider an issue
unless it has been preserved for appeal.” Patterson v. Patterson,
2011 UT 68, ¶ 12, 266 P.3d 828. “To preserve an issue for appeal,
a party must present it to the trial court in such a way that the
trial court has an opportunity to rule on that issue.” State v.
Doyle, 2018 UT App 239, ¶ 13, 437 P.3d 1266 (quotation
simplified). Put differently, an issue is preserved “[w]hen the
specific ground for an objection is clear from its context.” State v.
Gonzalez, 2015 UT 10, ¶ 26, 345 P.3d 1168. In the context at issue
here, we have stated that a directed verdict motion that “makes
general assertions but fails to assert the specific argument raised
on appeal . . . is insufficient to preserve the more specific
argument for appeal.” State v. Gallegos, 2018 UT App 112, ¶ 14,
427 P.3d 578 (quotation simplified).
¶24 Moreover, we have recently noted that a claim—under
Robbins—that a particular witness’s testimony is inherently
improbable is not the same as a claim that the State’s evidence is
insufficient. See Doyle, 2018 UT App 239, ¶¶ 12–19. Indeed, a
Robbins claim is a unique thing. Ordinarily, courts are not “in the
business of reassessing or reweighing evidence” already
considered by a jury, and conflicts in the evidence are almost
20180584-CA 10 2020 UT App 3State v. Skinner
always resolved “in favor of the jury verdict.” State v. Prater,
2017 UT 13, ¶ 32, 392 P.3d 398. But our supreme court has carved
out a narrow exception to this general rule, under which a court
may choose to disregard a particular witness’s testimony as
“inherently improbable.” Robbins, 2009 UT 23, ¶ 13. However, a
trial court may do so “only in those instances where (1) there are
material inconsistencies in the testimony and (2) there is no other
circumstantial or direct evidence of the defendant’s guilt.” Id.
¶ 19. Moreover, “[t]he existence of any additional evidence
supporting the verdict prevents the judge from reconsidering the
witness's credibility.” Id.; see also Prater, 2017 UT 13, ¶ 38
(explaining that the Robbins court, in disregarding testimony,
relied on “the inconsistencies in the [witness’s] testimony plus
the patently false statements the [witness] made plus the lack of
any corroboration”).
¶25 A generalized challenge to the sufficiency of the State’s
evidence, by contrast, does not necessarily include an assertion
that any particular witness’s testimony is “inherently
improbable.” Indeed, we clarified in Doyle that a Robbins claim
“may be a component of an insufficiency challenge, but not
every insufficiency challenge raises a Robbins issue.” Doyle, 2018
UT App 239, ¶ 19. After all, a defendant who raises a general
sufficiency challenge asks a court to examine the evidence,
including “all inferences that can be reasonably drawn from it,”
to determine if “some evidence exists” that could support the
verdict. See State v. Hirschi, 2007 UT App 255, ¶ 15, 167 P.3d 503(quotation simplified). In conducting this inquiry, it is ordinarily
not the court’s place to disregard any particular items of
admitted evidence; rather, a court should examine all admitted
evidence to determine if “some evidence exists” that could
support the verdict. Id. (quotation simplified); see also State v.
Salgado, 2018 UT App 139, ¶ 37, 427 P.3d 1228 (“If there is any
evidence, however slight or circumstantial, which tends to show
guilt of the crime charged, the court must submit the case to the
jury.” (emphasis added) (quotation simplified)).
20180584-CA 11 2020 UT App 3State v. Skinner
¶26 When making a Robbins claim, by contrast, a defendant
raises a whole “new legal theory.” See Doyle, 2018 UT App 239,
¶ 19. In a Robbins claim, a defendant specifically asks the court to
disregard a particular witness’s testimony as “inherently
improbable.” Id. (stating that the “new legal theory” inherent in
a Robbins claim is that “the insufficiency should be reviewed
only after [the targeted witness’s] testimony is ignored as
‘inherently improbable’”). Essentially, a defendant who raises a
Robbins claim in the context of a directed verdict motion for
insufficiency is asking the court, in conducting its sufficiency-of-
the-evidence review, to examine only a particular subset of the
admitted evidence, and to disregard certain witness testimony
before undertaking that review. See id.¶27 In Doyle, we held that the defendant had failed to
preserve a Robbins claim for appellate review when he made
only a general motion for directed verdict on insufficiency
grounds, arguing that the evidence was “inconclusive and
speculative.” Id. ¶¶ 12–19. We noted that, at the trial court level,
the defendant had not specifically asked the court to exclude or
disregard any particular evidence, and that his effort to raise a
Robbins claim on appeal went “far beyond what was argued in
the motion for a directed verdict.” Id. ¶ 19. We stated that the
trial court, upon receiving a motion for directed verdict arguing
insufficiency, would not have understood “from context” that
the defendant was making a Robbins challenge. Id. We noted
that, in the motion made at the trial court level, “[t]here was
never any argument that [the witness’s] testimony was so
inherently improbable that it should be disregarded before
analyzing the sufficiency of the State’s evidence.” Id. Under such
circumstances, we deemed the defendant’s Robbins claim
unpreserved, and reviewed it only for plain error.
¶28 We discern no meaningful differences between the
situation presented in Doyle and the situation presented here.
Skinner’s directed verdict motion, like the one made in Doyle,
20180584-CA 12 2020 UT App 3State v. Skinner
was general, asserting that the evidence that the State presented
was insufficient, but not asking that any particular testimony be
disregarded as inherently improbable “before analyzing the
sufficiency of the State’s evidence.” See id. Skinner argued simply
that the State’s case “was solely based” on V.M.’s testimony,
which, while possibly corroborated by DNA evidence, was
unsupported—and perhaps partially contradicted by—“forensic
evidence.” At no point did Skinner mention Robbins or any
related case law, or give the trial court any other indication that
he was raising a Robbins claim. 2
¶29 On appeal, by contrast—apparently tacitly
acknowledging that, if V.M.’s testimony is included in the
calculus, sufficient evidence exists to support his convictions for
aggravated sexual assault 3—Skinner asks us to disregard V.M.’s
2. Skinner asserts that the trial court, in ruling on the directed
verdict motion, recognized the motion as one grounded in
Robbins, because the court mentioned that it was “following the
caselaw regarding how the Court should go about doing this,
and how the Court should view the evidence,” and because it
indicated that it was denying the motion because the State had
“produced believable evidence of each and every element” of the
offenses charged “from which a jury acting reasonably could
find the defendant guilty.” In our view, Skinner overreads these
general statements from the trial court, which certainly do not
leave us with the impression that the trial court believed it was
ruling on a Robbins claim.
3. By making a general insufficiency argument before the trial
court in connection with his directed verdict motion, Skinner
preserved for appeal the issue of whether, considering all of the
evidence presented at trial, sufficient evidence existed to support
his convictions. However, Skinner does not press this issue on
appeal, and instead argues solely that we should disregard
(continued…)
20180584-CA 13 2020 UT App 3State v. Skinner
testimony as inherently improbable under Robbins before
undertaking our assessment of the sufficiency of the State’s
evidence. But this issue—this “new legal theory,” see Doyle, 2018
UT App 239, ¶ 19—was never raised before the trial court. As in
Doyle, this theory “goes far beyond what was argued” in
Skinner’s motion for a directed verdict. Id. In arguing that V.M.’s
testimony should be excluded as inherently improbable, Skinner
is not merely asking us to find that the evidence presented was
insufficient. Instead, he is asking us to disregard V.M.’s
testimony in its entirety and then evaluate whether the State’s
evidence—without V.M.’s testimony—is sufficient to support a
conviction. A defendant who wants a trial court to disregard a
witness’s testimony under Robbins before, or in connection with,
undertaking a sufficiency-of-the-evidence review must make
that request known to the trial court so that the court has an
opportunity to rule on the issue. Because Skinner did not ever
make such a request to the trial court, he did not properly
preserve it for our review on appeal. Accordingly, we review the
issue only for plain error.
B
¶30 In order to demonstrate that a trial court committed
plain error, an appellant must show that “(1) an error exists;
(2) the error should have been obvious to the trial court; and
(3) absent the error, there is a reasonable likelihood of a
more favorable outcome.” State v. Graves, 2019 UT App 72, ¶ 18,
442 P.3d 1228 (quotation simplified). In this context, where
Skinner asserts that the trial court committed plain error in
(…continued)
V.M.’s testimony under Robbins, and only then consider the
sufficiency of the State’s evidence. Accordingly, we do not
further address any issues regarding the general sufficiency of
the State’s evidence, when V.M.’s testimony is included.
20180584-CA 14 2020 UT App 3State v. Skinner
failing to sua sponte disregard V.M.’s testimony as inherently
improbable, Skinner must demonstrate not only that, had
Skinner raised the issue below, it would have been error for the
trial court to fail to disregard V.M.’s testimony, but also that
V.M.’s testimony was so obviously and fundamentally faulty
that the trial court should have stepped in and excluded that
testimony from the equation without specifically being asked to
do so. Skinner cannot make this showing here, because on these
facts it would not have been error at all—let alone obvious
error—to deny Skinner’s Robbins motion even if it had been
clearly and timely made.
¶31 In Robbins, our supreme court emphasized the narrowness
of the exception it was announcing, and held that a court
may “reevaluate the jury’s credibility determinations” only
where a witness presents testimony that is inherently
improbable and there is no additional evidence of the
defendant’s guilt. State v. Robbins, 2009 UT 23, ¶ 19, 210 P.3d 288.
In Prater, the court again examined the scope of the
exception, recognizing that in Robbins, the witness’s
inconsistent testimony, standing alone, was not enough to
allow the court to reassess the witness’s credibility. State v.
Prater, 2017 UT 13, ¶ 38, 392 P.3d 398. Rather, it “was the
inconsistencies in the [witness’s] testimony plus the patently
false statements the [witness] made plus the lack of any
corroboration.” Id. More recently, we have emphasized that
the Robbins exception is “narrow” and that “[i]t is difficult
to successfully establish such a claim on appeal,” see State v.
Cady, 2018 UT App 8, ¶¶ 17–18, 414 P.3d 974; see also State v.
Rivera, 2019 UT App 188, ¶ 23 n.6 (stating that “[a] case which
actually falls within the Robbins-Prater rubric is exceedingly
rare,” and noting that “we have not found a single Utah decision
examined under that rubric that has reversed a verdict since
Robbins”), and that “any additional evidence supporting the
verdict would preclude a judge from reconsidering a witness’s
credibility,” see Rivera, 2019 UT App 188, ¶ 24. Thus, under
20180584-CA 15 2020 UT App 3State v. Skinner
Robbins and Prater, an inherent improbability claim will
necessarily fail where any evidence corroborates the witness’s
testimony.
¶32 In this case, V.M.’s overall account was at least
partially corroborated by other evidence. For instance, DNA and
saliva tests conclusively showed that there had been sexual
contact between V.M. and Skinner. Specifically, V.M.’s oral and
perianal swabs tested positive for seminal fluid and her breast
swabs tested positive for saliva, all of which contained DNA
consistent with Skinner’s. Skinner’s penile swabs also tested
positive for saliva and DNA consistent with V.M.’s. In addition,
V.M.’s wounds, and the copious blood found at the scene,
corroborated her testimony that she had been shot. Thus, there
exists evidence at least partially corroborating V.M.’s version of
events.
¶33 Skinner argues, however, that the existing corroborating
evidence does not go to the issue of whether the sexual acts were
consensual, which is where this case’s true fault line lies. As
Skinner points out, the corroborating evidence bolsters other
(less controversial) aspects of V.M.’s account—such as her claims
that she had been shot, and that sexual contact occurred between
her and Skinner—but does not necessarily back up her claim that
she did not consent to sexual contact with Skinner.
¶34 But Skinner misses the point. Corroborating evidence
sufficient to defeat a Robbins claim does not have to corroborate
the witness’s account across the board, in every particular. It just
has to provide a second source of evidence for at least some of
the details of the witness’s story. See Prater, 2017 UT 13, ¶ 38
(stating that a “lack of any corroboration” is required to sustain a
Robbins claim (emphasis added)); see also Rivera, 2019 UT App
188, ¶ 24 (stating that “any additional evidence supporting the
verdict would preclude a judge from reconsidering a witness’s
credibility”). Indeed, in a very similar context, we have already
20180584-CA 16 2020 UT App 3State v. Skinner
held that a Robbins claim fails when the witness’s overall
account is bolstered by other evidence, even if that other
evidence does not shed light on whether the witness consented
to sexual activity. See State v. Crippen, 2016 UT App 152, ¶¶ 15–
16, 380 P.3d 18 (stating that, although the defendant’s
“statements during the jailhouse phone call” that he had
engaged in sexual activity with the witness “were not evidence
of a lack of consent, those statements do tend to corroborate [the
witness’s] overall account,” and holding that the witness’s
testimony was therefore “not inherently improbable”). 4 The 3F
corroborating evidence that exists here is enough to render
Skinner’s Robbins claim invalid.
¶35 While there were some inconsistencies between V.M’s
testimony and Expert’s testimony, including blood spatter
evidence and the positions of V.M. and Skinner during
the shooting, it is ordinarily not the job of the court to
decide whether V.M.’s testimony is believable. Indeed, “the jury
was not obligated to believe [V.M.’s] account of events, and it
was the jury’s duty—not the appellate court’s—to weigh that
evidence and make a determination of fact.” See id. ¶ 16
(quotation simplified). “Disregarding witness testimony” as
inherently false or improbable “should be an uncommon course
of action,” which courts should take “only when the witness’s
credibility is so far impeached as to be unbelievable by a
reasonable jury.” Id. (quotation simplified). In this case, the trial
4. Indeed, by the same token, many of the inconsistencies
Skinner sees in V.M.’s testimony—which mostly have to do with
the details of the shooting—likewise do not directly bear on her
claim that she did not consent to the sexual contact. Where
Skinner mounts an argument for inherent improbability based
upon tangential inconsistencies in V.M.’s overall story, the State
is entitled to rebut that argument with evidence that
corroborates other tangential elements of V.M.’s overall story.
20180584-CA 17 2020 UT App 3State v. Skinner
court did not plainly err by allowing the jury to judge the
competing witnesses’ testimonies, and therefore did not plainly
err by failing to sua sponte declare V.M’s testimony inherently
improbable.
II. The Theft by Receiving Stolen Property Conviction
¶36 Next, Skinner argues that his conviction for theft by
receiving stolen property should be reversed because the
evidence was insufficient to prove his guilt. In making this
argument, Skinner does not ask us to disregard the testimony of
any witness as inherently improbable; instead, he makes the
same general sufficiency-of-the-evidence argument he made to
the trial court in connection with his directed verdict motion.
Thus, this claim is preserved, and we review it accordingly. As
noted above, we will uphold the trial court’s denial of Skinner’s
motion if “we conclude that some evidence exists from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” State v. Hirschi, 2007
UT App 255, ¶ 15, 167 P.3d 503 (quotation simplified).
¶37 A person is guilty of theft by receiving stolen property if
that person “receives, [or] retains . . . the property of another
knowing that the property is stolen, or believing that the
property is probably stolen,” and intends “to deprive the owner”
of it. Utah Code Ann. § 76-6-408(2) (LexisNexis Supp. 2019). 5 The
State’s argument, on this count, was that the gun Skinner used to
confront V.M. actually belonged to Owner, and that Skinner
intended to keep it for his own and did not have Owner’s
permission to possess it.
5. Because there have been no material changes to the language
of the statute since the time of the incident in question, for the
sake of convenience we cite to the most recent version of the
statute. See State v. Lopez, 2019 UT App 11, ¶ 25 n.3, 438 P.3d 950.
20180584-CA 18 2020 UT App 3State v. Skinner
¶38 The State’s position was supported by at least “some
evidence.” See Hirschi, 2007 UT App 255, ¶ 15 (quotation
simplified). Indeed, Owner testified that the gun belonged to
him but it had gone missing from Mother’s house approximately
one month after Skinner (who had temporarily been living at the
house) moved out. Because Owner did not give anyone
permission to move the gun, he promptly called police, provided
them its serial number, and reported it stolen. After the shooting,
police found a gun and matching case during a search of
Skinner’s apartment. The make and model matched that
reported as stolen by Owner. But when questioned by the police,
Skinner stated that V.M. had brought the gun to his apartment.
¶39 Skinner acknowledges Owner’s testimony, but contends
that it is not enough, by itself, to support the verdict, because the
State did not present any evidence about whether Mother might
have given Skinner permission to possess the gun. But Skinner
does not argue, or even imply, that Mother’s testimony would
have differed in any material respect from Owner’s. And more
to the point, Owner’s testimony is alone sufficient to support the
conviction. He testified that Mother had gifted him the gun, and
that therefore he—and not Mother—owned it, and that he had
not given Skinner permission to possess it. While the State could
have chosen to present evidence from other witnesses, including
perhaps Mother, to buttress Owner’s testimony, the fact that it
chose not to do so does not render Owner’s testimony
insufficient. We perceive no error in the trial court’s denial of
Skinner’s motion for directed verdict on the theft count.
CONCLUSION
¶40 We conclude that Skinner failed to preserve his Robbins
objection to V.M.’s testimony, and that the trial court did not err
at all, let alone plainly, in failing to sua sponte disregard V.M.’s
testimony in connection with its sufficiency-of-the-evidence
examination on the aggravated sexual assault counts. In
20180584-CA 19 2020 UT App 3State v. Skinner
addition, we conclude that the trial court committed no error in
denying Skinner’s directed verdict motion on the theft count.
¶41 Affirmed.
20180584-CA 20 2020 UT App 3