State v. Gibson , 314 P.3d 1026 ( 2013 )


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    2013 UT App 243
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Plaintiff and Appellee,
    v.
    JEREMY ANDREW GIBSON,
    Defendant and Appellant.
    Memorandum Decision
    No. 20120129‐CA
    Filed October 10, 2013
    Third District, West Jordan Department
    The Honorable Bruce C. Lubeck
    No. 101400787
    Joanna E. Landau and Matthew A. Barraza,
    Attorneys for Appellant
    John E. Swallow and Kris C. Leonard, Attorneys
    for Appellee
    SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
    Decision, in which JUDGES GREGORY K. ORME and
    J. FREDERIC VOROS JR. concurred.1
    BENCH, Senior Judge:
    ¶1     Jeremy Andrew Gibson appeals from his convictions for one
    count of theft by deception and one count of theft by receiving
    stolen property, both third degree felonies. See generally 
    Utah Code Ann. § 76
    ‐6‐405 (LexisNexis 2012) (defining theft by deception); 
    id.
    § 76‐6‐408 (Supp. 2013) (defining theft by receiving stolen
    1. The Honorable Russell W. Bench, Senior Judge, sat by special
    assignment as authorized by law. See generally Utah Code Jud.
    Admin. R. 11‐201(6).
    State v. Gibson
    property); id. § 76‐6‐412 (setting penalties for theft offenses). We
    affirm.
    ¶2      Both of Gibson’s convictions arise from the 2009 theft of a
    wedding ring belonging to Gibson’s mother‐in‐law (Victim). On
    appeal, Gibson argues only that his convictions should be reversed
    because the evidence presented at trial was insufficient to prove
    beyond a reasonable doubt that he pawned Victim’s ring.2 In
    reviewing an insufficiency of evidence claim, we view “the
    evidence and all inferences which may reasonably be drawn from
    it in the light most favorable to the verdict of the jury.” State v.
    Shumway, 
    2002 UT 124
    , ¶ 15, 
    63 P.3d 94
    . “We reverse a jury verdict
    only when the evidence, so viewed, is sufficiently inconclusive or
    inherently improbable such that reasonable minds must have
    entertained a reasonable doubt that the defendant committed the
    crime for which he or she was convicted.” State v. Hamilton, 
    2003 UT 22
    , ¶ 18, 
    70 P.3d 111
     (citation and internal quotation marks
    omitted).
    ¶3    Victim testified for the State at Gibson’s trial, as did an
    employee of Big Dog Pawn, the investigating detective, and
    Victim’s ex‐husband. Through their testimony, the State presented
    evidence that Gibson and his wife—Victim’s daughter—lived in
    Victim’s home during parts of 2009 and 2010 and that even when
    they were not living there, they had access to the house by way of
    2. Gibson concedes that he failed to preserve his argument in the
    district court and asks us to review the sufficiency of the evidence
    under the plain error doctrine. See State v. Dunn, 
    850 P.2d 1201
    ,
    1208 (Utah 1993) (“[T]o establish the existence of plain error and to
    obtain appellate relief from an alleged error that was not properly
    objected to, the appellant must show . . . (i) [a]n error exists; (ii) the
    error should have been obvious to the trial court; and (iii) the error
    is harmful.”). We resolve Gibson’s plain error argument under the
    first prong of the plain error test by evaluating whether the district
    court erred in not dismissing the case for insufficient evidence.
    20120129‐CA                         2                 
    2013 UT App 243
    State v. Gibson
    a garage code. In December 2009, Victim discovered that several
    items of her jewelry, including her wedding ring, were missing
    from the house. After she reported the jewelry missing, police
    conducted a “pawn check”on Gibson and told Victim that Gibson
    had pawned several items at Big Dog Pawn. Victim went to Big
    Dog Pawn and located her wedding ring in a display case of items
    for sale. The pawn ticket for the ring indicated that Gibson had sold
    it outright to Big Dog Pawn on August 3, 2009. The State also
    presented physical evidence, including the recovered ring itself,
    photographs of Victim wearing the ring, and the pawn ticket
    bearing Gibson’s signature and thumbprint.3
    ¶4      This is ample evidence from which the jury could
    reasonably have found that Gibson pawned Victim’s wedding ring,
    and it is therefore adequate to defeat Gibson’s sufficiency of the
    evidence argument. See State v. Mills, 
    2012 UT App 367
    , ¶ 40, 
    293 P.3d 1129
     (“We will affirm a jury’s verdict against a sufficiency of
    the evidence challenge ‘if upon reviewing the evidence and all
    inferences that can be reasonably drawn from it, [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.’” (alteration in original) (quoting Hamilton, 
    2003 UT 22
    ,
    ¶ 41)). Nevertheless, Gibson argues that the case should not have
    been submitted to the jury due to insufficient physical evidence
    and unreliable witness testimony. We disagree.
    ¶5      As to the physical evidence, Gibson argues that the pawn
    ticket contained only a generic description of the pawned items and
    that the State’s photographs of Victim’s wedding ring were too
    grainy and unfocused to allow for a positive identification. Gibson
    argues that, in light of these deficiencies in the physical evidence,
    the State failed to prove that the ring presented by the State at trial
    3. Gibson’s wife testified for the defense that the rings Gibson
    pawned in August 2009 were actually the Gibsons’ own wedding
    rings.
    20120129‐CA                       3                 
    2013 UT App 243
    State v. Gibson
    “was actually the ring that belonged to [Victim] or the ring Gibson
    pawned in August, 2009.” However, both Victim and her ex‐
    husband testified that the ring recovered from Big Dog Pawn and
    presented at trial was Victim’s wedding ring. The photographic
    evidence was not inconsistent with this testimony, and we agree
    with the State that the evidentiary value of the pawn ticket was not
    to establish that the ring belonged to Victim but rather to establish
    that it was Gibson who had pawned the ring. For these reasons, we
    reject Gibson’s argument that there was insufficient physical
    evidence to support his convictions.
    ¶6     Gibson also argues that Victim’s testimony should be
    disregarded as inherently improbable. See generally State v. Robbins,
    
    2009 UT 23
    , ¶ 16, 
    210 P.3d 288
     (“Though the court must ordinarily
    accept the jury’s determination of witness credibility, when the
    witness’s testimony is inherently improbable, the court may choose
    to disregard it.”). Specifically, Gibson argues that despite Victim’s
    identification of the recovered ring as her wedding ring, her
    description of her wedding ring as “gold, [with] a center diamond,
    a round diamond with three diamonds on either side” was too
    generic to positively identify the recovered ring as her own. Gibson
    also argues that Victim’s testimony about dates was inconsistent
    because she initially testified that she still possessed the ring in
    December 2009 and could ultimately only identify a six‐month
    span from June to December 2009 during which the ring had gone
    missing. These alleged deficiencies in Victim’s testimony
    notwithstanding, we cannot say that Victim’s ultimate
    identification of the recovered ring as her missing wedding ring
    was either “physically impossible” or “apparently false,” and we
    must therefore “accept the jury’s determination of [Victim’s]
    credibility.” See id.4
    4. Gibson also raises a cursory argument that the State’s decision to
    charge Gibson only for the wedding ring theft indicates that there
    was insufficient evidence to pursue charges relating to other items
    (continued...)
    20120129‐CA                      4                
    2013 UT App 243
    State v. Gibson
    ¶7      Taken as a whole, the State’s evidence in this case was not
    so “inconclusive or inherently improbable . . . that reasonable
    minds must have entertained a reasonable doubt that the
    defendant committed the crime[s] for which he or she was
    convicted.” See State v. Hamilton, 
    2003 UT 22
    , ¶ 18, 
    70 P.3d 111
    (citation and internal quotation marks omitted). We conclude that
    the district court committed no error, let alone plain error, in
    submitting the case to the jury. We therefore affirm Gibson’s
    convictions.
    4. (...continued)
    of jewelry that Victim had reported as missing. Gibson argues that
    this supports his claims as to the weakness of the State’s case in the
    instant matter. However, the State has “broad discretion in
    determining whether and in what manner to prosecute each case,”
    State v. Bell, 
    785 P.2d 390
    , 402 (Utah 1989), and we see no
    connection between its charging decisions and the strength of the
    evidence in this case.
    20120129‐CA                       5                
    2013 UT App 243
                                

Document Info

Docket Number: 20120129-CA

Citation Numbers: 2013 UT App 243, 314 P.3d 1026

Filed Date: 10/10/2013

Precedential Status: Precedential

Modified Date: 1/12/2023