State v. Syvongsa , 288 P.3d 43 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20110330‐CA
)
v. ) FILED
) (October 4, 2012)
Thaumasinh Syvongsa, )
) 2012 UT App 277Defendant and Appellant. )
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Third District, Salt Lake Department, 101901436
The Honorable Judith S.H. Atherton
Attorneys: Brittany D. Enniss, Michael R. Sikora, and Noella A. Sudbury, Salt Lake
City, for Appellant
Mark L. Shurtleff and John J. Nielsen, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Orme, Thorne, and Voros.
THORNE, Judge:
¶1 Defendant Thaumasinh Syvongsa appeals his conviction of aggravated assault.
See Utah Code Ann. § 76‐5‐103 (Supp. 2012). Defendant argues that the evidence was
insufficient to support his conviction and that the State committed prosecutorial
misconduct. We affirm.
¶2 Defendant’s conviction arises from an incident that occurred on February 6, 2010.
Defendant was helping his friend, K.D., move out of her mother’s home. C.B. and her
boyfriend, J.E., arrived to help K.D. move. Defendant and C.B. had, until the previous
year, lived together for seventeen years. During the move, Defendant and C.B. got into
an argument about J.E. After the argument, Defendant left but returned fifteen to thirty
minutes later. J.E., who was standing in the back of the garage next to an exit door, saw
Defendant at the bottom of the driveway with a gun. J.E. said, “He’s got a gun,” and
ran out the back door of the garage and called the police. After C.B. and K.D. struggled
with Defendant in an attempt to keep him out of the garage, Defendant left.
¶3 Defendant was charged with three counts of aggravated assault. A jury trial was
held. At the close of the State’s evidence, Defendant moved for a directed verdict based
on insufficiency of the evidence. The court denied Defendant’s motion. The jury
acquitted Defendant of the aggravated assault counts related to K.D. and C.B. but
convicted him of the aggravated assault count pertaining to J.E.
I. Insufficiency of the Evidence
¶4 Defendant argues that the State presented insufficient evidence to support his
conviction of aggravated assault. We note that Defendant did preserve a related issue
by objecting to the sufficiency of the evidence in his motion for directed verdict, which
motion the court denied. Because we apply the same standard to evaluate either claim,
we proceed to review the insufficiency of the evidence issue as it pertains to the
directed verdict motion. See State v. Hamilton, 2003 UT 22, ¶ 41, 70 P.3d 111 (“When
evaluating whether the State produced ‘believable evidence’ to withstand a challenge at
the close of the State’s case in chief, we apply the same standard used when reviewing a
jury verdict. Hence, believable evidence in this context means the evidence must be
‘capable of supporting a finding of guilt beyond a reasonable doubt.’” (citation
omitted)).
¶5 Defendant asserts that the evidence is inconclusive, based on the witnesses’
contradictory testimony, to prove that he aimed the gun at J.E., that he made any
threatening statements, and that he had the requisite intent to cause J.E. bodily injury.
Defendant maintains that the evidence shows only that he used a dangerous weapon in
an angry and threatening manner but that he did not threaten anyone.
In reviewing the denial of a motion for a directed verdict
based on a claim of insufficiency of the evidence, “[w]e will
uphold the trial court’s decision 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.” Therefore, a
20110330‐CA 2
motion for a directed verdict made at the close of the state’s
case may be denied if the trial court finds that the state has
established a “prima facie case against the defendant by
producing ‘believable evidence of all the elements of the
crime charged.’”
State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (alteration in original) (citations omitted).
In evaluating a challenge to a denial of a motion for directed verdict, this court may not
reweigh the evidence, which is the province of the jury. See id. ¶ 32. Instead, our role is
to “determine whether the state has produced ‘believable evidence’ on each element of
the crime from which a jury, acting reasonably, could convict the defendant.” Id. A
person commits aggravated assault if he or she (1) commits assault and (2) uses “a
dangerous weapon . . . or other means or force likely to produce death or serious bodily
injury.” Utah Code Ann. § 76‐5‐103(1)(a)–(b). Assault is defined as “a threat,
accompanied by a show of immediate force or violence, to do bodily injury to another.”
Id. § 76‐5‐102(1)(b) (2008).
¶6 Our review of the record reveals that J.E. repeatedly insisted in his testimony that
Defendant pointed a gun directly at him and stated that Defendant was yelling
something while pointing the gun at him.1 Based on this evidence alone, a reasonable
1
J.E. testified as follows:
Q. And what did [Defendant] do at that moment?
A. At that point he reached his arm out, pointed a gun at me
and said some words. I couldn’t even tell you what he said.
At that moment honestly, I was scared for my life. . . .
....
Q. Okay, and you testified that you didn’t understand what
he said. Could you talk about the tone of his voice?
A. He was yelling something.
....
Q. Okay. Now, at the preliminary hearing isn’t it true that
you said that [Defendant] brandished the handgun?
A. No, I did not say that. I said he pointed it at me. I know
what I said that day.
....
(continued...)
20110330‐CA 3
jury could find that Defendant’s actions constituted “a threat, accompanied by a show
of immediate force or violence, to do bodily injury to another.” Id. Defendant,
however, directs our attention to testimony from the two other witnesses that
Defendant did not point the gun at anybody and did not make any threats from which
the jury could infer intent to do bodily injury to another. We do not find merit in
Defendant’s argument that the evidence was insufficient as to each element of
aggravated assault simply because some of the State’s witnesses gave contradictory
testimony. When reviewing a trial wherein conflicting, competent evidence was
presented, “we simply assume that the jury believed the evidence supporting the
verdict.” State v. Boyd, 2001 UT 30, ¶ 14, 25 P.3d 985 (internal quotation marks omitted).
“[T]he existence of contradictory evidence or of conflicting inferences does not warrant
disturbing the jury’s verdict.” Id. (internal quotation marks omitted).
¶7 All evidentiary inferences must be viewed in the light most favorable to the jury
verdict. Based on the evidence that Defendant aimed a gun directly at J.E. while yelling
something at J.E., a reasonable jury could find that Defendant’s actions constituted “a
threat, accompanied by a show of immediate force or violence, to do bodily injury to
another.” Utah Code Ann. § 76‐5‐102(1)(b) (2008); see also Hamilton, 2003 UT 22,
¶¶ 45–46 (concluding that an aggravated assault charge was properly submitted to the
jury based on corroborated evidence that the defendant aimed his rifle directly at an
individual and warned that person not to come any closer). We therefore conclude that
the aggravated assault involving J.E. was properly submitted to the jury, and we see
nothing to suggest that “reasonable minds must have entertained a reasonable doubt
that [Defendant] committed the crime.” See State v. Diaz, 2002 UT App 288, ¶ 36, 55
P.3d 1131 (internal quotation marks omitted).
1
(...continued)
Q. Okay. Isn’t it also true that at the preliminary hearing
you said that you “assumed” that [Defendant] was pointing
the gun at you?
A. Well, when there’s three people standing next to each
other and an arm is pointed out at you, with a gun looking
down at the barrel—
....
Q. And your memory is still the same, right, you remember
a gun being pointed at you?
A. Yes.
20110330‐CA 4
II. Prosecutorial Misconduct
¶8 Defendant concedes that he did not preserve his prosecutorial misconduct
argument and argues that it was plain error for the trial court to allow the prosecutor to
encourage the jury to consider matters outside the evidence and deliberately
mischaracterize the evidence. To prevail on grounds of plain error,
an appellant must show that (i) [a]n error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error
is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is
undermined.
State v. Bedell, 2012 UT App 171, ¶ 8, 281 P.3d 271 (internal quotation marks omitted).
“[A]bsent a demonstration of plain error or exceptional circumstances, we will not
address a claim raised for the first time on appeal.” Diaz, 2002 UT App 288, ¶ 32. We
will reverse based on prosecutorial misconduct only if Defendant shows that
[1] the actions or remarks of . . . counsel call to the attention
of the jury a matter it would not be justified in considering in
determining its verdict and, if so, [2] under the
circumstances of the particular case, whether the error is
substantial and prejudicial such that there is a reasonable
likelihood that, in its absence, there would have been a more
favorable result.
State v. King, 2010 UT App 396, ¶ 21, 248 P.3d 984 (alterations and omission in original).
Defendant argues that the prosecutor mischaracterized the evidence by stating in
closing that “‘there are differences in the account between all witnesses as to what
happened [after Defendant pulled the gun out] but as the [detective] testified, their
evidence, their stories were almost identical,’” when the “record shows that, in fact, [the
detective] did not testify that the three witnesses’ stories were identical.” (Second
alteration in original) (Emphasis added.)
¶9 Defendant correctly notes that the detective did not testify that the witnesses’
stories were identical. However, the prosecutor did not argue that the witnesses’ stories
were identical but that they were “almost identical.” Our review of the detective’s
20110330‐CA 5
testimony reveals that the prosecutor did not improperly characterize said testimony
when stating that the testimonies were “almost identical.” The detective testified that
there was “a consensus among the three people” he spoke to and that, although
accounts varied as to what Defendant did after he pulled the gun out, all three
witnesses stated that they saw Defendant with a gun. This testimony is consistent with
the prosecutor’s viewpoint that the witnesses’ “stories were almost identical on the date
in question.” See King, 2010 UT App 396, ¶ 22 (“[C]ounsel for each side has
considerable latitude [in closing arguments] and may fully discuss his or her viewpoint
of the evidence and the deductions arising therefrom.” (second alteration in original)
(internal quotation marks omitted)). In this case, the prosecutor in his summary of the
witnesses’ testimony specifically noted that “there are differences in the account
between all witnesses as to what happened [after Defendant pulled the gun out]” before
stating that “their evidence, their stories were almost identical.” This statement is
congruous with the detective’s testimony about the witnesses’ evidence pertaining to
Defendant’s possession of and actions involving a gun. Because we determine that the
prosecutor did not improperly characterize the detective’s testimony, we conclude that
Defendant has not shown that the trial court erred by allowing the prosecutor’s closing
statement.
¶10 In sum, our review of the record reveals that there is sufficient evidence to
support a guilty verdict for aggravated assault and that there was no prosecutorial
misconduct in characterizing the evidence during closing statements. As a result, we
affirm Defendant’s aggravated assault conviction.
____________________________________
William A. Thorne Jr., Judge
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¶11 WE CONCUR:
____________________________________
Gregory K. Orme, Judge
____________________________________
J. Frederic Voros Jr., Judge
20110330‐CA 6