State v. Mackin , 387 P.3d 986 ( 2016 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 47
IN THE
SUPREME COURT OF THE STATE OF UTAH
MATTHEW A. MACKIN,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20140525
Filed October 21, 2016
On Certification from the Court of Appeals
Third District, Salt Lake
The Honorable Randall N. Skanchy
No. 131904672
Attorneys:
Samuel P. Newton, Kalispell, MT, for appellant
Sean E. Reyes, Att’y Gen., Jeffery S. Gray, Asst. Att’y Gen.,
Salt Lake City, for appellee
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
¶1 Matthew A. Mackin snatched a purse from an ex-girlfriend
(Ex-girlfriend) believing it contained evidence of her drug use, past
thefts, and current plan to steal a motor home. In an alleged attempt
to deliver the evidence to the police, Mackin drove away while Ex-
girlfriend dove into the car through the passenger window. Mackin
began to accelerate, and the two fought over the purse while Ex-
girlfriend hung halfway outside the car. Eventually, Ex-girlfriend
pulled herself into the vehicle. After they exchanged blows that
motivated Mackin to stop the car, the dispute spilled onto the street.
Bystanders called the police. Mackin was arrested but insisted that
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Opinion of the Court
his actions were justified because he was attempting to stop the theft
of a motor home. At trial—in what, to Mackin, must seem like the
ultimate example of the axiom “no good deed goes unpunished”—
the jury found him guilty of, among other things, aggravated
robbery. Mackin argues, first, that the trial court erred when it failed
to reduce his conviction from aggravated robbery to robbery and,
second, that the court abused its discretion in not granting a
continuance to permit Mackin to subpoena additional defense
witnesses—including Ex-girlfriend, who was unavailable at trial but
whose preliminary hearing testimony the district court permitted the
jury to hear. We affirm.
BACKGROUND 1
¶2 In May 2013, Mackin was recently released from jail. Mackin
and Ex-girlfriend, high on methamphetamines, were lounging in her
new boyfriend’s motor home. The afternoon began to spoil when
Mackin became suspicious that Ex-girlfriend was planning to steal
the motor home and flee the state. Mackin found a text on Ex-
girlfriend’s phone stating, “I have wheels now, I’m leaving the state
and I’m not kidding.” He also found a map of Nevada “that had ‘X’s’
on it.” When Mackin questioned Ex-girlfriend, she responded that it
was “none of [his] business.” The clincher, however, was a greeting
card Mackin found that Ex-girlfriend had written to her new
boyfriend—a card that reminded Mackin of something she had sent
to him when he was in jail. Mackin decided that his relationship with
Ex-girlfriend had run its course. He grabbed Ex-girlfriend’s purse
and confiscated her cell phone and motor home keys to, in his
words, “just stop the theft of a motor home.”
¶3 At a pretrial hearing, Ex-girlfriend testified about that
afternoon’s events. She reported that, after he got high, Mackin
began “tearing through” the motor home looking for what he called
“evidence.” She testified that she “told [Mackin] he was being
disrespectful and . . . needed to leave.” In her words, Mackin then
“picked up [her] purse and . . . proceeded to walk out of the motor
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1 “‘On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.’ We
present conflicting evidence only as necessary to understand issues
raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346
(citations omitted).
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Opinion of the Court
home . . . because [the purse] had the evidence in it.” When she tried
to stop him, he pushed her away and exited the motor home, fleeing
to his car.
¶4 By the time Ex-girlfriend reached Mackin’s car, he had
already started the engine. Ex-girlfriend leaned through the
passenger window to grab her purse. Ex-girlfriend said a “tug of war
with [her] purse” ensued as Mackin “proceeded to drive off with
[her body] halfway in the car.” For the first five feet or so, the car
rolled backward as Mackin periodically took his foot off of the brake.
Ex-girlfriend claimed she “sidestepp[ed]” along with the car but that
Mackin later put the car in gear and “started driving.” She testified
that, at that point, she was “leaning in through the window and that
[her] feet were outside” the car. She also testified that “the more
[they] argued while he was driving, and the more [she] tried to grab
[her] purse the faster he started going.” Ex-girlfriend’s testimony
about how long and how fast Mackin drove with Ex-girlfriend in
that precarious position varies. At one point, Ex-girlfriend testified
that her feet were outside of the car for roughly five to ten feet before
she pulled her legs in. But she also testified that they were “halfway
down the street, I’m not sure” and that “speed [was] picking up”
when she was able to “pull [herself] into the car.” She repeated that
testimony, later stating that she was “halfway down the street when
[she] got [her] body into the car,” which was going “maybe 25, not
even 25 miles an hour.”
¶5 Once Ex-girlfriend was in the car, she kicked Mackin
repeatedly in the head and, while he was hitting her back, she was
“leaning against . . . the passenger door.” According to Mackin, her
kicks caused him to “see[] stars” and panic, so “after she had kicked
[him] almost to the point of unconsciousness,” he backhanded her in
the face. Ex-girlfriend then opened the car door and began sliding
toward the ground, gripping her purse. Mackin said he could see Ex-
girlfriend “sliding out the door onto the road as [the car] was
moving . . . and her head [was] about four inches off of the road.” At
that point, Mackin says, he “realized that the situation was getting
out of control and someone was going to get hurt.” So Mackin
stopped the car.
¶6 The fight was not over. Once Mackin stopped the car, Ex-
girlfriend landed on the ground on her back. Mackin followed her
path through the car and out the door. Mackin said he “[stood] over
her . . . holding onto the purse,” and that they “screamed a little bit
back and forth.” Some bystanders said they saw Mackin hit Ex-
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girlfriend; others said they heard her scream for help. Mackin
confessed he yelled at Ex-girlfriend that she was “going to jail this
time.” Eventually, several bystanders intervened and called the
police.
¶7 Two police officers arrived at the scene and interviewed
Mackin, Ex-girlfriend, and the bystanders. One officer observed that
Ex-girlfriend was upset, had “an obvious injury to the side of her
face,” and within half an hour was “already developing a black eye.”
He handcuffed Mackin and moved him to the back seat of his patrol
car. The officer said that bystanders told him that Mackin “was on
top of” Ex-girlfriend, that Mackin struck Ex-girlfriend, and that Ex-
girlfriend “was just on the ground below [Mackin] screaming for
help.” The officer arrested Mackin for assaulting Ex-girlfriend. The
officer testified that when he explained to Mackin that he was under
arrest, Mackin became irate, “swung his legs out” of the patrol car,
and began yelling at the officer, “saying that [the officer] was
concealing evidence.” Mackin then stood up, the officer claimed,
“head butted” him, and resisted the officer’s attempts to put him
back into the car, all while shouting vulgarities at the officer. After
he had been placed securely in the patrol car’s cage, Mackin used his
feet to try to break the door open. The officer said he could “see one
portion of [his] vehicle separating from another.” The officer also
testified that Mackin, in an apparent fit of rage, “banged his head
against the side window a couple of times” and even bent the
interior “cage out a little bit . . . but wasn’t able to escape the cage.”
En route to the jail, Mackin told the officer that he “was going to
burn” the officer, that he could take him “one-on-one,” and that the
officer “should be assassinated.”
¶8 The State charged Mackin with aggravated assault, assault by
a prisoner, and damaging a jail, each a third-degree felony. The State
also charged Mackin with interference with an arresting officer, and
threat of violence, each a class B misdemeanor. Shortly thereafter, the
State amended count one of the information from aggravated assault
to aggravated robbery.
¶9 At a preliminary hearing, the State introduced the testimony
of three witnesses: Ex-girlfriend, the arresting officer, and a witness
to the dispute. After hearing from the three witnesses, the judge
concluded that probable cause supported the charged offenses and
bound Mackin over to face trial.
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¶10 Before trial, Mackin’s relationship with his defense counsel
soured. At a pretrial proceeding two days before trial was set to
begin, Mackin’s counsel explained to the court that Mackin wanted
“his case continued either to prepare his own defense or to get
another lawyer.” When the court asked Mackin if he wanted to
represent himself, Mackin stated that he wanted his counsel
removed “on this particular case.” Mackin reported that his trial
counsel was not working on his behalf, had failed to communicate
with him about “any kind of trial strategy,” and had failed to
subpoena certain favorable witnesses. When the district court
inquired about the witnesses who had not been subpoenaed, Mackin
indicated that he had a list of individuals who he wanted to testify,
but that he had given his counsel “just one [name], the one I can
finally come up with.” Mackin said that his counsel had helped him
find the name of this witness but had not done enough to subpoena
the “other witnesses.”
¶11 Mackin also told the court he would not be ready to try the
case in two days and asked for a continuance. The court declined,
explaining that it did not “plan to [continue the trial] just because
[Mackin had] unnamed individual witnesses” he wanted
subpoenaed. The district court also admonished Mackin, stating that
his “suggesti[on] that [his trial counsel] hasn’t been working on [his]
behalf when [Mackin didn’t] even know the names of the witnesses
[he] want[ed] him to subpoena is really . . . frivolous.” The court
cautioned Mackin that if he “intend[ed] not to try this case [in two
days], [he had] better file something on [his own] behalf.”
¶12 On the day trial was scheduled to commence, Mackin’s trial
counsel requested—and the court granted—a continuance to allow
an evaluation of Mackin’s ability to represent himself. Two months
later at a pretrial conference, the court set a trial date and ordered
Mackin’s trial counsel to act as standby counsel with Mackin
representing himself. At that conference, Mackin again complained
that his standby counsel had failed to subpoena witnesses that he
believed were necessary to his defense. The court replied, “I think
you decided to be your own counsel and so you do what you want
to do but we’ll see you [at trial].”
¶13 Trial began, and on the first day, the State asked the court to
admit a transcript of Ex-girlfriend’s preliminary hearing testimony
under rule 804 of the Utah Rules of Evidence. The State claimed it
had tried to locate Ex-girlfriend but had been unsuccessful in its
attempts to subpoena or otherwise contact her, even though she had
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been available to testify at Mackin’s first scheduled trial two months
earlier. In support of the State’s contention that it had made
reasonable efforts to produce Ex-girlfriend at trial that day, the court
heard testimony from the State’s process server and the prosecutor.
The process server testified that he began attempting to serve Ex-
girlfriend on December 22 at her mother’s home, her last known
residence. Ex-girlfriend’s brother indicated that she “had not been
there for quite some time, [and he] didn’t know where she could be
found.” The process server had also searched a utility records
database and found another address connected to Ex-girlfriend. A
person at that address indicated that Ex-girlfriend had not “been
there for several months” and that he had no contact information for
Ex-girlfriend other than that she “was probably with” her mother.
The process server also checked various public and police records
“and was unable to find any other information” regarding Ex-
girlfriend. His last attempt to find Ex-girlfriend was on January 13,
just two days before trial.
¶14 The prosecutor proffered that he, too, had made numerous
attempts to contact Ex-girlfriend. He stated that he had been in close
contact with Ex-girlfriend when she was in state custody and that
Ex-girlfriend testified at the preliminary hearing shortly after being
released from custody. Following the preliminary hearing, the
prosecutor experienced difficulties contacting Ex-girlfriend. He
stated that the week before trial, Ex-girlfriend left a voicemail
message asking about the trial and leaving a callback number. But
when he returned Ex-girlfriend’s call, someone else answered and
told the prosecutor that he would relay the information to Ex-
girlfriend. The prosecutor also contacted Ex-girlfriend’s mother the
day before trial. Ex-girlfriend had picked up her daughter at her
mother’s house around New Year’s Day, but her mother had not
seen or heard from Ex-girlfriend since then. Ex-girlfriend’s mother
also provided the prosecutor with contact information for Ex-
girlfriend’s daughter’s juvenile probation officer, who had no
“additional information” to give because he was also unable to
contact Ex-girlfriend or her daughter. After hearing the prosecutor’s
proffer, the district court ordered him to try to contact Ex-girlfriend
one last time. The court eventually found that the State’s efforts to
locate Ex-girlfriend had been reasonable and permitted Ex-
girlfriend’s preliminary hearing testimony to be admitted under rule
804(b)(1) of the Utah Rules of Evidence.
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¶15 Mackin moved the court to continue the trial so that he
could locate and subpoena Ex-girlfriend himself. The court asked
Mackin if he was aware of “any other avenue by which [Ex-
girlfriend] might be located and found today?” Mackin responded,
“Just the people that we used to know, she may be at one of those
houses. I don’t know numbers anymore. It’s been too long since I’ve
been in custody and I apologize but that’s the best I can do.” The
court denied Mackin’s motion, concluding that Mackin failed to
convince it that “today would be any different than any other day in
terms of finding [Ex-girlfriend].”
¶16 During trial proceedings, after the jury heard testimony of
Mackin’s and Ex-girlfriend’s tussle for the purse, Mackin’s standby
counsel moved the court to “dismiss or at least reduce the charge of
aggravated robbery” because, he claimed, there was “insufficient
evidence to show that a weapon was used in the course of the
commission of a theft.” The prosecutor opposed the motion to
reduce the charge, arguing that Mackin’s “use of the vehicle was . . .
in a manner that was deadly and dangerous and therefore counts as
a weapon.” The district court denied Mackin’s motion to reduce his
charges.
¶17 Also during trial, Mackin objected again to his standby
counsel’s failure to subpoena “certain witnesses,” contending that
these witnesses were essential to his story and that, to make up for
this defect in his defense, he now needed to testify. Standby counsel
told the court Mackin gave him “no contact information with respect
to those witnesses or what they would say” and that he could not
have subpoenaed them “willy nilly” while still acting “in good
faith.” Mackin then explained that the missing witnesses would
support his claim that he was justified in taking Ex-girlfriend’s
purse. He told the court their testimonies would demonstrate that
Ex-girlfriend (1) stole a cell phone, the motor home, and a purse;
(2) was leaving the state in the stolen motor home; and (3) had a bad
habit of stealing. Mackin confessed to the court that, in most cases,
he provided standby counsel with only the name of a proposed
witness without contact information; but he also claimed that in
other cases he provided either an address, a personal contact, or
incarceration or probation information. In the end, the trial court did
not grant Mackin any relief.
¶18 After the State and Mackin each presented their witnesses,
Mackin took the stand. He testified that he believed he was justified
in taking the purse because he thought it contained evidence of
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stolen property. The jury found Mackin guilty of aggravated
robbery, assault by a prisoner, damaging a jail, interference with an
arresting officer, and attempted escape, but found Mackin not guilty
of a threat of violence. The court sentenced Mackin to various
indeterminate sentences for his convictions but suspended all but
one sentence: 365 days in jail on his attempted escape from official
custody conviction.
¶19 Before sentencing, Mackin moved the court to arrest
judgment and for a new trial. In his motion, Mackin argued that his
standby counsel provided ineffective assistance by failing to
subpoena witnesses necessary to his defense. Mackin also argued
that the court unlawfully admitted the transcript of Ex-girlfriend’s
preliminary hearing testimony. The court denied Mackin’s motions.
Mackin appeals, and this court has jurisdiction under Utah Code
section 78A-3-102(3)(b).
ISSUES AND STANDARDS OF REVIEW
¶20 Mackin first argues that the district court erred by failing to
reduce his aggravated robbery charge to robbery. Mackin contends
that insufficient evidence supports the jury’s finding that he used a
dangerous weapon during the course of a robbery and, thus, the
district court should have granted his motion to reduce his charge.
We grant substantial deference to a jury verdict. State v. Nielsen, 2014
UT 10, ¶ 30, 326 P.3d 645. In assessing an insufficiency of the
evidence claim, “we review the evidence and all inferences which
may reasonably be drawn from it in the light most favorable to the
verdict of the jury,” and we will reverse the jury’s verdict “only
when the evidence, so viewed, is sufficiently inconclusive or
inherently improbable that reasonable minds must have entertained
a reasonable doubt that the defendant committed the crime of which
he or she was convicted.” Id. (citation omitted). 2
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2 Mackin’s reply brief raises a host of issues not raised in his
opening brief. He argues both that he did not have the “specific
intent to commit a robbery” and that the district court’s
interpretation of “dangerous weapon” should have been colored by
the definition of “dangerous weapon” in a different provision of the
criminal code. See UTAH CODE § 76-10-501(6). Mackin also contends
that the State’s efforts to secure Ex-girlfriend’s presence at trial were
half-hearted and, thus, were insufficient to satisfy the reasonable
(continued . . .)
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¶21 Mackin also contends that the district court erred when it
denied his motion for a “continuance to secure the attendance of
witnesses critical to his defense,” including Ex-girlfriend. We review
a district court’s denial of a motion for a continuance for an abuse of
discretion. State v. Taylor, 2005 UT 40, ¶ 8, 116 P.3d 360. A district
court abuses its discretion when it “denies a continuance and the
resulting prejudice affects the substantial rights of the defendant,
such that a ‘review of the record persuades the court that without the
error there was a “reasonable likelihood of a more favorable result
for the defendant.”’” Id. (citation omitted).
ANALYSIS
I. SUFFICIENT EVIDENCE SUPPORTS THE JURY’S FINDING
THAT MACKIN USED HIS CAR AS A DEADLY WEAPON
¶22 Our Legislature has declared that “[a] person commits
aggravated robbery if in the course of committing [a] robbery,” the
person
(a) uses or threatens to use a dangerous weapon as
defined in Section 76-1-601; (b) causes serious bodily
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diligence required under the Sixth Amendment to the United States
Constitution. He further argues that the State had a duty to disclose
to Mackin before trial that it was having difficulties locating Ex-
girlfriend and that the State’s failure to disclose that information
thwarted his ability to adequately prepare for his defense at trial.
Additionally, Mackin raises a number of defenses that he claims his
missing witnesses would have supported: an “honest belief” defense
and an “attempting to report” defense. He further contends that the
property did not belong to Ex-girlfriend and, thus, he could not have
“robbed” her of it. The rules of appellate procedure require that an
appellant’s reply brief “be limited to answering any new matter set
forth in the opposing brief.” UTAH R. APP. P. 24(c). “This requirement
is rooted in considerations of fairness. If new issues could
be raised in a reply brief, the appellee would have no opportunity to
respond to those arguments.” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d
903. “It is well settled that ‘issues raised by an appellant in
the reply brief that were not presented in the opening brief are
considered waived and will not be considered by the appellate
court.’” Id. (citation omitted). We therefore do not address
arguments Mackin raises for the first time in his reply brief.
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injury upon another; or (c) takes or attempts to take an
operable motor vehicle.
UTAH CODE § 76-6-302(1). Section 76-1-601 defines a “dangerous
weapon” as “any item capable of causing death or serious bodily
injury” or “a facsimile or representation of the item, if” the actor
“leads the victim to reasonably believe the item is likely to cause
death or serious bodily injury” or “represents to the victim . . . that
he is in control of such an item.” Id. § 76-1-601(5)(a)–(b). The
aggravated robbery statute also provides that the use of a dangerous
weapon “in the course of committing [a] robbery” includes “the
immediate flight after the . . . commission of a robbery.” Id. § 76-6-
302(3).
¶23 The State argues that Mackin’s vehicle—as used by
Mackin—constitutes a dangerous weapon. The State contends that
because Mackin’s car is “not dangerous per se,” the State needs to
show that “‘the object, as used by the defendant, is capable of
producing serious bodily harm’ or death.” (quoting State v. Doporto,
2005 UT App 455U, para. 4 (quoting 67 AM. JUR. 2D Robbery § 5
(2003))). The State borrows that articulation from an unpublished
court of appeals decision, which appears to be the only Utah case
discussing when a car may be considered a dangerous weapon that
converts a robbery into an aggravated robbery. Mackin concedes that
in some circumstances a car may be considered a dangerous
weapon. But he argues that to meet the statutory definition, a person
must not only use the vehicle in the commission of the robbery, but
must “1) use[] the vehicle dangerously as 2) part of his overall intent
to take another’s property, since a vehicle is not ordinarily
dangerous of itself.”
¶24 In other words, the parties argue that when someone uses
or threatens to use an object not normally considered a “dangerous
weapon” while committing a robbery, the State must demonstrate
that the robber used the item in a manner capable of causing death
or serious bodily injury. 3 Neither party advocates that the statute be
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3 The Doporto court, and both parties here, draw a distinction
between weapons that are per se dangerous and those that are not.
Neither section 76-1-601 nor section 76-6-302 uses the phrase “per se
dangerous.” It bears noting that other jurisdictions’ statutes use or
attempt to define similar terms. See, e.g., Jackson v. State, 772 S.W.2d
(continued . . .)
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read in the most literal fashion. If given its most literal interpretation,
a defendant would commit an aggravated robbery if while
committing that robbery she “used” “an item capable of causing
death or serious bodily injury,” even if the manner in which she
used it was not capable of causing such damage. Reading the statute
in this manner would mean that a defendant who uses a pen to write
a note stating “Give me all your money” may have committed an
aggravated robbery because a pen, when jammed into a victim’s eye,
is capable of producing serious bodily injury. 4
¶25 When interpreting statutes, our object is to evince the will
of the Legislature. And we start with the statute’s plain language.
2 Ton Plumbing, L.L.C. v. Thorgaard, 2015 UT 29, ¶ 31, 345 P.3d 675.
We have recognized, however, that we should read the plain
language in a fashion that prevents other statutory language from
becoming inoperative. State v. Jeffries, 2009 UT 57, ¶ 9, 217 P.3d 265;
see also Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 24, 304
P.3d 851 (avoiding statutory interpretation that would violate the
canon of preserving independent meaning for all statutory
provisions); see also VCS, Inc. v. Utah Cmty. Bank, 2012 UT 89, ¶ 18,
293 P.3d 290 (avoiding an interpretation that would “run[] afoul of
the settled canon of preserving independent meaning for all
statutory provisions”). Thus, what the Legislature intended when it
required that a defendant “use” a dangerous weapon becomes
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575, 578 (Tex. App. 1989) (“A handgun is a deadly weapon per se.”);
TEX. PENAL CODE ANN. § 1.07(17) (West) (explaining deadly weapon
means “firearm or anything manifestly designed, made, or adapted
for the purpose of inflicting death or serious bodily injury”); MD.
CODE ANN., CRIM. LAW § 4-101(5)(i) (West) (defining “weapon” as
“dirk knife, bowie knife, switchblade knife, star knife, sand club,
metal knuckles, razor, and nunchaku”). Because neither party argues
that a car is per se dangerous, we need not reach the question of
whether our statute actually recognizes a per se dangerous weapon
for the purpose of converting a robbery into an aggravated robbery.
4 Utah Code section 76-1-601(11) defines “serious bodily injury”
as “bodily injury that creates or causes serious permanent
disfigurement, protracted loss or impairment of the function of any
bodily member or organ, or creates a substantial risk of death.”
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apparent when we assign independent meaning to each provision of
the aggravated robbery statute defining a “dangerous weapon.”
¶26 Reading the aggravated robbery statute together with the
statutory language defining a “dangerous weapon” reveals that a
defendant must not only use a dangerous weapon but must use it in
a way that is “capable of causing death or serious bodily injury.”
UTAH CODE § 76-1-601(5)(a). Section 76-1-601(5)(b) provides that a
dangerous weapon is “a facsimile or representation of the item, if”
the actor “leads the victim to reasonably believe the item is likely to
cause death or serious bodily injury . . . or . . . represents to the
victim . . . that [the perpetrator] is in control of such an item”—
regardless of whether the represented item is capable of causing
death or serious bodily injury. This section—prohibiting use of a
non-dangerous facsimile or representation of a dangerous weapon—
would be an unnecessary addition to the statute if a defendant could
be convicted of aggravated robbery for using an item capable of
causing serious bodily injury in a manner not capable of causing
serious bodily injury.
¶27 As explained above, the alternative reading would result in
a defendant committing aggravated robbery if, in the course of that
robbery, she “used”—even benignly—“an item capable of causing
death or serious bodily injury.” Consider a robber who holds up a
person using a facsimile of a firearm that is incapable of causing
serious bodily injury as a firearm, but could cause serious bodily
injury if used as a bludgeon. The robber does not use the facsimile
firearm as a bludgeon, but she could. If that defendant could be
convicted of aggravated robbery based on the potential to use the
facsimile firearm as a club, even though she neither uses nor
threatens to use it in that fashion, the Legislature would not have
needed to add the second subsection, because most if not all
facsimiles of weapons could theoretically be used as “an item
capable of causing death or serious bodily injury.”
¶28 To give meaning to both subsections, we read section 76-1-
601(5)(a) to require a defendant to use the dangerous weapon in a
way that is “capable of causing death or serious bodily injury.” Thus,
any object used in a way that is “capable of causing death or serious
bodily injury,” is a “dangerous weapon” for purposes of aggravated
robbery. UTAH CODE § 76-6-302(1)(a). Whether in the course of
committing a robbery a defendant uses an item in a way that is
capable of causing death or serious bodily injury is a question of fact
for the jury. See State v. Childers, 830 P.2d 50, 55 (Kan. Ct. App. 1991);
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Williams v. State, 575 S.W.2d 30, 32 (Tex. Crim. App. 1979); People v.
Skelton, 414 N.E.2d 455, 458 (Ill. 1980).
¶29 We, therefore, must determine whether sufficient evidence
shows that Mackin, either in the course of committing a robbery or
in the flight after the commission of a robbery, used “any item
capable of causing death or serious bodily injury.” UTAH CODE §§ 76-
6-302(1), (3); 76-1-601(5)(a). Stated differently, if there was evidence
before the jury that Mackin (1) drove the car (2) in the commission of
or in the flight from the robbery (3) in a manner capable of causing
death or serious bodily injury, we should affirm. Because we grant
substantial deference to a jury’s verdict, we will affirm a jury’s
finding of fact even if the evidence presented at the district court
lends itself to multiple reasonable interpretations. See State v. Nielsen,
2014 UT 10, ¶ 30, 326 P.3d 645. And “[c]ontradictory testimony alone
is not sufficient to disturb a jury verdict.” State v. Maestas, 2012 UT
46, ¶ 183, 299 P.3d 892 (alteration in original) (citation omitted). “Nor
is it our function to determine guilt or innocence or the credibility of
conflicting evidence and the reasonable inferences to be drawn
therefrom.” State v. Watts, 675 P.2d 566, 568 (Utah 1983). We will
therefore reverse the jury’s verdict “only when the evidence, so
viewed, is sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that the
defendant committed the crime of which he or she was convicted.”
Nielsen, 2014 UT 10, ¶ 30 (citation omitted). Thus, the question for
this court “is not whether we can conceive of alternative (innocent)
inferences to draw from individual pieces of evidence, or even
whether we would have reached the verdict embraced by the jury.”
State v. Ashcraft, 2015 UT 5, ¶ 24, 349 P.3d 664. The question is
whether the evidence was so lacking that “no reasonable jury could
find the defendant guilty beyond a reasonable doubt.” State v.
Robbins, 2009 UT 23, ¶ 18, 210 P.3d 288.
¶30 Mackin contends that no evidence supports the jury’s
verdict that he “used his vehicle as a dangerous weapon.” He argues
that to show he used his car as a dangerous weapon under Utah
Code section 76-1-601, the State must demonstrate that he “dr[ove]
the car dangerously, perhaps by directing the car . . . so as to hit [Ex-
girlfriend] as he fled or trying to run her over.” 5 Mackin also
_____________________________________________________________
5 We agree with Mackin that these examples demonstrate ways a
vehicle might be used as a dangerous weapon in the course of
(continued . . .)
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MACKIN v. STATE
Opinion of the Court
contends that Ex-girlfriend “did not necessarily testify that [he]
drove with her hanging out” of the car. He maintains that he
“merely had the car in neutral and as they struggled over the purse,
he would push in the clutch and the car would roll backwards, with
[Ex-girlfriend] walking along and eventually diving in.” 6
¶31 But the evidence supports the jury’s verdict. At trial,
Mackin reported that Ex-girlfriend dove head first into the car, with
half her body hanging out of the window. And both Mackin and Ex-
girlfriend testified that he actually drove the vehicle with Ex-
girlfriend positioned this way. Ex-girlfriend testified that she “leaned
through the passenger window to grab [her] purse . . . and then
[Mackin] just proceeded to drive off with me halfway in the car.” She
also testified, “[a]t first he wasn’t going very fast at all because he
had just started driving and then the more we argued while he was
driving, and the more I tried to grab my purse the faster he [went].”
Mackin himself testified that he was “backing out” from behind the
motor home when Ex-girlfriend “dove into the window,” and that
he did a three-point turn and “proceeded forward” with Ex-
girlfriend still hanging out the window. Later, when Mackin
described the fight over the purse—including both before and after
Ex-girlfriend gained full entry into the vehicle—he testified, “[y]eah,
I was driving.” But the most damning evidence came when the
prosecutor asked Mackin on cross-examination, “[d]id you continue
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committing a robbery. But these are not the only ways. The statutory
inquiry focuses on whether the defendant used or threatened to use
the dangerous weapon in a manner capable of causing death or
serious bodily injury in the course of the robbery and does not
require a jury to consider whether the robber actually needed to use
the dangerous weapon to rob the victim.
6 We note that Mackin failed to marshal all of the evidence that
supports the jury’s verdict. While that does not foreclose his claim, it
is difficult to persuade us that a lack of evidence supports his
conviction by only discussing the evidence that supports his
argument. See State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645 (holding
that “a party challenging a factual finding or sufficiency of the
evidence to support a verdict will almost certainly fail to carry its
burden of persuasion on appeal if it fails to marshal” the evidence
supporting a challenged factual finding).
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Opinion of the Court
to operate your vehicle while she was halfway inside of your vehicle
and trying to get her purse back?” He responded, “[u]mmm, yes, I
continued to drive the vehicle.” And after the prosecutor asked how
far Mackin drove with Ex-girlfriend positioned that way, Mackin
confessed, “I tried to get to as many people as I could, as fast as I
could so I drove to the busiest street in [the city].” 7
¶32 While Mackin provided no details regarding how long or
how fast he drove with Ex-girlfriend hanging out the window, Ex-
girlfriend did. She stated that his speed reached “maybe 25, not even
25 miles per hour.” She also stated that he drove the car halfway
down the street before she pulled her body into the car. Mackin’s
own testimony, recounted above, also defeats his claim that no
evidence demonstrates he actually drove his car while Ex-girlfriend
was hanging out the window. And while Mackin contends that he
“merely had the car in neutral . . . as they struggled over the purse,”
as we stated above, “[c]ontradictory testimony alone is not sufficient
to disturb a jury verdict.” Maestas, 2012 UT 46, ¶ 183 (alteration in
original) (citation omitted). Evidence before the jury indicated that
Mackin drove his vehicle while Ex-girlfriend was hanging out of it,
and that he did so while fighting Ex-girlfriend for possession of the
purse. This evidence supports a reasonable inference that the vehicle,
as used, was capable of causing serious bodily injury or death. See
UTAH CODE § 76-1-601(5)(a). In other words, sufficient evidence
supports the jury’s conclusion that Mackin committed an aggravated
robbery.
II. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION BY DECLINING TO GRANT
MACKIN A CONTINUANCE
¶33 Mackin also contends that the district court abused its
discretion when it refused to grant him a “continuance to secure the
attendance of witnesses critical to his defense.” “It is well established
in Utah, as elsewhere, that the granting of a continuance is at the
discretion of the trial judge, whose decision will not be reversed by
this Court absent a clear abuse of that discretion.” State v. Creviston,
646 P.2d 750, 752 (Utah 1982). A district court abuses its discretion
_____________________________________________________________
7 Moreover, the jury heard testimony that Mackin was operating
the vehicle after consuming methamphetamine and was engaged in
a violent struggle with Ex-girlfriend over her purse while driving.
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MACKIN v. STATE
Opinion of the Court
when it “denies a continuance and the resulting prejudice affects the
substantial rights of the defendant, such that ‘a review of the record
persuades the court that without the error there was a “reasonable
likelihood of a more favorable result for the defendant.”’” State v.
Taylor, 2005 UT 40, ¶ 8, 116 P.3d 360 (citation omitted). When a
defendant moves for a continuance to procure “the testimony of an
absent witness, [he or she] must show that the testimony sought is
material and admissible, that the witness could actually be
produced, that the witness could be produced within a reasonable
time, and that due diligence has been exercised before the request for
a continuance.” Creviston, 646 P.2d at 752. A failure to establish even
one aspect of the above test defeats Mackin’s claim.
¶34 To establish that the witnesses he wanted to call would
have provided testimony material to his defense, Mackin must
demonstrate with a reasonable probability that the nonadmitted
evidence “would affect the outcome of the criminal proceeding.” See
State v. Bakalov, 1999 UT 45, ¶ 45, 979 P.2d 799; see also United States v.
Valenzuela-Bernal, 458 U.S. 858, 868 (1982). Mackin contends that the
witnesses’ testimony is “key” because it would have allowed him to
establish a defense to robbery: that he “found evidence of a crime . . .
and attempted to take it, and to report the violations to the police”
under the citizen’s arrest statute. But the citizen’s arrest statute
would not have provided Mackin with a defense here and, thus,
would not have affected the outcome of his case. 8
_____________________________________________________________
8 Mackin also claims these witnesses would have corroborated an
“honest belief” defense and an “attempting to report” defense, as
well as a defense that the property did not belong to Ex-girlfriend
and, thus, he could not have robbed her of it. Mackin raised these
arguments for the first time in his reply brief. He also fails to provide
us with a “citation to the record showing that the issue was
preserved in the trial court” or “a statement of grounds for seeking
review of an issue not preserved in the trial court.” UTAH R. APP. P.
24(a)(5)(A), (B). And, despite looking, we cannot find them. In the
interests of fairness, we do not address arguments omitted from an
appellant’s opening brief. See supra ¶ 20 n.2; infra ¶ 38 n.9. We,
therefore, address only his argument that the citizen’s arrest defense
would have exonerated him.
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Opinion of the Court
¶35 The citizen’s arrest statute provides that “[a] private person
may arrest another: (1) For a public offense committed or attempted
in his presence; or (2) When a felony has been committed and he has
reasonable cause to believe the person arrested has committed it.”
UTAH CODE § 77-7-3. An arrest is defined as “an actual restraint of
the person arrested or submission to custody.” Id. § 77-7-1. And Utah
law requires that “[t]he person [arrested] . . . not be subjected to any
more restraint than is necessary for his arrest and detention.” Id.
Moreover, a person making a citizen’s arrest must ordinarily
“inform the person being arrested of his intention, cause, and
authority to arrest him.” Id. § 77-7-6(1).
¶36 The citizen’s arrest statute does not provide Mackin with a
defense to his robbery charge. Mackin did not arrest or otherwise
attempt to restrain Ex-girlfriend before he robbed her. He did not
provide notice to Ex-girlfriend that he intended to arrest her to
prevent a theft of a motor home in accordance with the Utah Code.
The citizen’s arrest statute provides that a citizen may detain another
citizen for a short period of time to facilitate the official arrest of that
person. See McFarland v. Skaggs Cos., 678 P.2d 298, 301 (Utah 1984)
(“In the case of a lawful arrest without a warrant, the person making
the arrest must present the prisoner promptly before a magistrate.
An unreasonable delay in this respect will constitute an abuse of the
privilege and will render the actor liable for that portion of the
imprisonment which is in excess of the reasonable period allowed
for such presentment.” (citation omitted)). It does not provide that a
citizen may commit robbery to obtain evidence of another person’s
crime—even if that citizen honestly desires to take the alleged
evidence to the police. It also does not provide that a citizen may
commit a robbery to thwart another’s felony.
¶37 Because Mackin did not attempt to perform a citizen’s
arrest of Ex-girlfriend, Mackin could not have defeated his robbery
charges with a citizen’s arrest defense. Therefore, the witnesses
Mackin wanted to call to bolster that defense would have provided
testimony—even assuming they would have testified as Mackin now
claims—that would not have been material to his case. See Creviston,
646 P.2d at 752. And because the witnesses’ testimonies would not
have been material to his case, we cannot see “a reasonable
likelihood of a more favorable result” for Mackin. Taylor, 2005 UT 40,
¶ 8 (citation omitted). The district court, therefore, did not abuse its
discretion in denying Mackin’s request for a continuance in an
17
MACKIN v. STATE
Opinion of the Court
attempt to secure testimony related to an inapplicable citizen’s arrest
defense. 9
III. THE DISTRICT COURT DID NOT VIOLATE
MACKIN’S CONFRONTATION RIGHTS BY ADMITTING
EX-GIRLFRIEND’S PRELIMINARY HEARING TESTIMONY
¶38 Mackin also argues that the district court abused its
discretion because its failure to grant his continuance to secure Ex-
girlfriend’s presence at trial resulted in a violation of his Sixth
Amendment confrontation rights. 10 The Sixth Amendment to the
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9 Mackin also urges us to grant a motion to remand under rule
23B of the Utah Rules of Appellate Procedure. See UTAH R. APP. P.
23B(a). Mackin’s motion asks this court for a chance to develop the
testimony he believes he could have presented at trial pertaining to
his various undeveloped defenses. A rule 23B remand “shall be
available only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support a
determination that counsel was ineffective.” Id. Mackin’s rule 23B
motion attaches preliminary hearing testimony the witnesses
provided in a related case but does not explain how he was
prejudiced by the failure to introduce testimony like this at trial.
Mackin merely refers us to the addenda of his motion and to his
“opening brief,” which in turn refers us back to his rule 23B motion.
Because Mackin fails to identify the testimony he believes would
support his claim and to analyze the facts of his case in conjunction
with current law, we do not have the record before us—or
sufficiently developed argument permitting us—to evaluate the
strength of Mackin’s claim. Furthermore, Mackin has not convinced
us that the information developed on remand is material to his case.
See supra ¶¶ 33–37.
10 Mackin raises only a federal constitutional claim. We therefore
do not address any claim he could have raised under his state
constitutional rights. Midvale City Corp. v. Haltom, 2003 UT 26, ¶¶ 74–
75, 73 P.3d 334 (“For the court to consider a state constitutional
claim, a litigant must at least define the nature of that protection and
provide some argument as to how legal precedent supports its
position. Without analysis, the court can make no informed decision
regarding whether the state constitutional provision in question was
intended to mirror its federal counterpart, or whether it was
(continued . . .)
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Opinion of the Court
United States Constitution enshrines a criminal defendant’s right “to
be confronted with the witnesses against” her. U.S. CONST. amend.
VI. While the Sixth Amendment’s plain text “does not suggest any
open-ended exceptions,” the United States Supreme Court held in
Crawford v. Washington that the Sixth Amendment incorporates an
exception to the confrontation requirement “established at the time
of the founding.” 541 U.S. 36, 54. Consequently, under Crawford, a
declarant’s pretrial testimonial statement satisfies the confrontation
clause if (1) the declarant is “unavailable” at trial and (2) the
defendant had a “prior opportunity” to cross-examine the declarant
about the admitted statement. Id. at 59.
¶39 Consistent with the Supreme Court’s ruling in Crawford, the
Utah Court of Appeals held in State v. Garrido that an unavailable
witness’s preliminary hearing testimony was admissible even
though trial counsel did not question the witness at the preliminary
hearing, because the defendant had a prior opportunity to cross-
examine the witness. 2013 UT App 245, ¶ 20, 314 P.3d 1014, cert.
denied, 320 P.3d 676 (Utah 2014). That court concluded that “it was
the opportunity to cross-examine [the witness], not the actual
undertaking of cross-examination, that satisfied the requirements of
Crawford.” Id. Garrido also aligns with this court’s prior ruling in State
v. Menzies, 889 P.2d 393 (Utah 1994), which explains that “[t]he
Confrontation Clause guarantees only ‘an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.’” Id.
at 403 (citation omitted); see also United States v. Owens, 484 U.S. 554,
559 (1988).
¶40 Mackin does not argue the State failed to prove that Ex-
girlfriend was unavailable. Nor does he precisely argue that he did
not have a prior opportunity to cross-examine her. Instead, he argues
that “conflicts with his counsel . . . at the preliminary hearing”
prevented him from exercising his confrontation rights to the extent
that he would have liked and that the district court abused its
discretion in not delaying the trial so he could locate Ex-girlfriend to
cross-examine her on those areas not adequately explored at the
preliminary hearing. Mackin does not, however, explain what
_____________________________________________________________
intended to expand the scope of [the federal constitution’s]
guarantees.” (citation omitted)).
19
MACKIN v. STATE
Opinion of the Court
additional questions he would have asked. Nor does Mackin detail
what Ex-girlfriend would have said had the court granted the
continuance. Instead, Mackin avers that “[t]he record is not
adequately developed as to the nature of the questions which were
not asked of [Ex-girlfriend] or what evidence [he] was unable to
secure because [Ex-girlfriend] did not appear.” Mackin concedes that
“the record does not reflect what these questions would have been”
and asks for a rule 23B remand to develop this record. 11
¶41 As previously noted, this is not how Utah Rule of Appellate
Procedure 23B is designed to function. See supra ¶ 37 n.9. Rule 23B
requires a party to perform the factual investigation before asking
this court for a remand. See, e.g., State v. Garrett, 849 P.2d 578, 581
(Utah Ct. App. 1993) (“Given [rule 23B’s] clear emphasis on specific
factual allegations, it would be improper to remand a claim under
rule 23B for a fishing expedition.”). The movant must put forward a
“nonspeculative allegation of facts, not fully appearing in the record
on appeal, which, if true, could support a determination that counsel
was ineffective.” UTAH R. APP. P. 23B(a). The motion must also
include or attach affidavits that allege the facts not appearing in the
record and that “show the claimed prejudice suffered by the
appellant as a result of the claimed deficient performance.” Id. R.
23B(b). Mackin has not provided us with affidavits detailing the
conflict he and trial counsel had or explained how that conflict
impacted counsel’s performance at the pretrial hearing. He further
fails to show how by not asking the questions he would have asked
in hindsight, counsel provided ineffective assistance. As we stated
above, despite Mackin’s claim that this information would
“exonerate” him, the citizen’s arrest defense he raises does not apply
to his charges of robbery or aggravated robbery and is therefore not
material to his case. See supra ¶¶ 34–37. Thus, we do not have before
us either nonspeculative facts showing counsel’s ineffective
_____________________________________________________________
11 Although Mackin does not cite Strickland v. Washington, or any
other ineffective assistance of counsel case, his request for a rule 23B
remand suggests that he rests his claim on ineffective assistance. He
does not explicitly connect the dots in this argument but appears to
argue that trial counsel’s ineffective assistance at the preliminary
hearing put him in a hole that he could not climb out of after the
district court allowed Ex-girlfriend’s preliminary hearing testimony
to be read at trial.
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Opinion of the Court
performance or facts showing that counsel’s ineffective
performance—even if assumed—harmed Mackin in any way. We,
therefore, decline to grant Mackin’s rule 23B motion to remand as to
Ex-girlfriend.
¶42 Mackin’s confrontation rights were not violated when the
district court allowed the jury to hear unavailable Ex-girlfriend’s
preliminary hearing testimony. 12 Accordingly, the trial court did not
abuse its discretion in declining Mackin a continuance to secure Ex-
girlfriend’s attendance at his trial.
CONCLUSION
¶43 The district court did not err in declining to reduce
Mackin’s aggravated robbery charge to robbery because sufficient
record evidence supports Mackin’s aggravated robbery conviction.
Nor did the district court abuse its discretion in declining to grant
Mackin’s request for a continuance to secure the attendance of
additional defense witnesses and Ex-girlfriend. We affirm Mackin’s
convictions and sentence.
_____________________________________________________________
12 Mackin also argues that the district court erred in permitting
Ex-girlfriend’s preliminary hearing testimony to be read at trial from
an unofficial and uncertified transcript prepared by his defense
team. Mackin did not preserve an objection to the use of the
unofficial transcript in a way that presented the district court an
opportunity to rule on it. See Patterson v. Patterson, 2011 UT 68, ¶ 12,
266 P.3d 828 (“An issue is preserved for appeal when it has been
‘presented to the district court in such a way that the court has an
opportunity to rule on [it].’” (alteration in original) (citation
omitted)). Generally, we will not consider an issue on appeal unless
it has been preserved. Id. Mackin does not acknowledge this or argue
an exception to the preservation requirement. See id. ¶ 13. But even if
Mackin had preserved the issue, he does not argue that the transcript
was inaccurate or aver that he suffered any prejudice because the
court permitted the use of an uncertified transcription.
21