State v. Gomez , 353 P.3d 175 ( 2015 )

2015 UT App 149_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
GADIEL GOMEZ,
Defendant and Appellant.
Memorandum Decision
No. 20130123-CA
Filed June 11, 2015
Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 121501622
Gary G. Kuhlmann and Nicolas D. Turner, Attorneys
for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.
TOOMEY, Judge:
¶1 Gadiel Gomez appeals from his convictions on two counts
of possession of a forged writing, each a third degree felony.
Gomez argues the trial court should have given a jury
instruction on his proposed lesser included offense and abused
its discretion in refusing to reduce his convictions to class A
misdemeanors. We affirm.
¶2 The State charged Gomez with two counts of possession
of a forged writing, alleging that Gomez purchased and used
State v. Gomez
forged documents to gain employment at a restaurant. The State
later added a count of identity fraud to the Information.
¶3 During the jury trial, the State introduced evidence that
Gomez bought false identification documents, including a
permanent resident card and social security card, for the
purpose of obtaining employment. Gomez presented these
documents to the general manager at the restaurant where he
began working. Sometime later, when a detective confronted
Gomez about his use of the documents, Gomez admitted he
knew they were false and that he used them to secure a job at the
restaurant. The investigation also revealed that the identification
numbers on each of the cards did not belong to Gomez and were
assigned to different individuals.
¶4 Before the case was submitted to the jury, Gomez
proposed a jury instruction on a purported lesser included
offense, namely, unlawful possession of another’s identification
documents. The prosecutor opposed giving the instruction.
According to the prosecutor, the statutory elements of the
charged crimes and the proposed lesser included offense did not
overlap and the evidence presented at trial did not support
issuing a lesser-included-offense instruction. The court denied
Gomez’s request, reasoning that ‚there are different elements
and that *unlawful possession of another’s identification
documents] is not a lesser-included offense.‛1 Accordingly, the
trial court instructed the jury on only the charged offenses.
1. In denying Gomez’s request, the trial court also reasoned that
unlawful possession of another’s identification documents
pertains to ‚legitimate documents,‛ whereas possession of a
forged writing addresses ‚forged documents.‛ Gomez
challenges the court’s interpretation by arguing that the trial
court erred by ‚restricting the applicability‛ of the unlawful
possession of another’s identification documents to ‚only non-
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20130123-CA 2 2015 UT App 149State v. Gomez
¶5 The jury convicted Gomez on all counts. The trial court
then dismissed the identity-fraud conviction on the State’s
motion but left intact Gomez’s convictions on possession of a
forged writing.
¶6 At the sentencing hearing, the trial court addressed
Gomez’s motion filed in accordance with Utah Code section
76-3-402(1). In that motion, Gomez asked the court to reduce the
severity of his convictions from third degree felonies to class A
misdemeanors. The trial judge denied the motion, stating, ‚I
don’t think it is warranted in this case.‛
¶7 The trial court sentenced Gomez on the two counts of
possession of a forged writing. The court ordered Gomez to
serve zero to five years in prison and to pay a fine for each
count, but suspended the prison sentences and placed Gomez on
probation. Gomez appeals.
I. Jury Instruction
¶8 Gomez first challenges the trial court’s refusal to instruct
the jury on unlawful possession of another’s identification
documents as a lesser included offense of possession of a forged
writing. He argues, based on the evidence, ‚the elements of the
crime of unlawful possession of another’s identification
documents are established‛ and there is a rational basis for a
verdict acquitting him of the charged offense. Specifically,
(…continued)
fabricated government issued documents‛ because that
interpretation ‚violates the plain language of the statute and
renders portions of the statute superfluous and without effect.‛
Because we affirm the trial court’s decision on the ground that
Gomez fails to demonstrate a rational basis for a verdict
acquitting him of the offense charged but convicting him of the
lesser offense, we need not address this argument.
20130123-CA 3 2015 UT App 149State v. Gomez
Gomez argues that the only additional element in the greater
offense, ‚intent to defraud,‛ is not supported by the evidence
because the evidence ‚clearly shows that the only reason
[Gomez] had the documents at issue was to gain employment
and support his family . . . , [and he] did not know that the Social
Security number or the resident alien number belonged to an
actual person.‛ The State responds that there is no rational basis
for a verdict that acquits him of the charged offense, because the
element of ‚intent to defraud‛ was satisfied when Gomez
admitted to using the documents to ‚obtain employment.‛ We
agree with the State.
¶9 For a trial court to issue a lesser-included-offense
instruction under Utah Code section 76-1-402, ‚a defendant must
show (1) that the charged offense and the lesser included offense
have overlapping statutory elements and (2) that the evidence
‘provides a rational basis for a verdict acquitting the defendant
of the offense charged and convicting him of the included
offense.’‛ State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (quoting
State v. Baker, 671 P.2d 152, 159 (Utah 1983)); see also Utah Code
Ann. § 76-1-402(4) (LexisNexis 2012). Our supreme court has
emphasized that the defendant must satisfy both prongs to be
entitled to a lesser-included-offense instruction. See State v. Reece,
2015 UT 45, ¶ 21. ‚‘A trial court’s refusal to grant a lesser
included offense instruction is a question of law, which we
review for correctness.’‛ Id. ¶ 16 (quoting Powell, 2007 UT 9,
¶ 12).
¶10 We need not consider whether there are overlapping
elements in the lesser offense, because we conclude that Gomez
has failed to show a rational basis for a verdict acquitting him of
the offense charged and convicting him of the lesser offense. ‚In
determining whether the evidence supports a lesser included
offense instruction, a trial court does not weigh the
evidence . . . .‛ Powell, 2007 UT 9, ¶ 27. Instead, it considers the
record as a whole and ‚views the evidence in the light most
favorable to the defendant requesting the instruction.‛ Id. Thus,
20130123-CA 4 2015 UT App 149State v. Gomez
‚‘*w+hen the evidence is ambiguous and therefore susceptible to
alternative interpretations, and one alternative would permit
acquittal of the greater offense and conviction of the lesser, a jury
question exists and the court must give a lesser included offense
instruction at the request of the defendant.’‛ State v. Garcia-
Vargas, 2012 UT App 270, ¶ 16, 287 P.3d 474 (quoting Baker, 671
P.2d at 159).
¶11 Possession of a forged writing occurs when a person
(1) ‚knowingly possesses‛ (2) ‚any writing that is a forgery‛
(3) ‚with intent to defraud.‛ Utah Code Ann. § 76-6-502
(LexisNexis 2008). In contrast, unlawful possession of another’s
identification documents occurs when a person (1) ‚obtains or
possesses . . . with knowledge that he is not entitled to obtain or
possess‛ (2) ‚the identifying document.‛ Id. § 76-6-1105.
Notably, unlike the crime of unlawful possession of another’s
identification documents, the crime of possession of a forged
writing requires proof that the defendant acted with ‚intent to
defraud.‛ Compare id. § 76-6-502, with id. § 76-6-1105.
¶12 We disagree with Gomez that the evidence provided a
rational basis to acquit him of the possession-of-a-forged-writing
charge while convicting him of the unlawful-possession-of-
another’s-identification-documents offense. To reach such a
verdict under the circumstances of this case, the jury would have
to conclude that Gomez lacked the ‚intent to defraud.‛ See id.
§§ 76-6-502, -1105. The ‚intent to defraud‛ is ‚simply a purpose
to use a false writing as if it were genuine in order to gain some
advantage.‛ In re P.S., 2001 UT App 305, ¶ 17, 38 P.3d 303(emphasis omitted) (citation and internal quotation marks
omitted). The undisputed evidence showed that Gomez
possessed the false documents with the intent to defraud;
Gomez admitted to acquiring and using the false documents to
obtain employment at the restaurant and did not present any
contradictory evidence. Based on the record as a whole, the
uncontested facts establish Gomez’s intent to defraud and are
not ‚ambiguous‛ or ‚susceptible to alternative interpretations.‛
20130123-CA 5 2015 UT App 149State v. Gomez
See Baker, 671 P.2d at 159. Thus, while the jury could have
acquitted Gomez of any or all charges, the evidence presented at
trial provided no rational basis for a verdict acquitting him of
possession of a forged writing but convicting him of unlawful
possession of another’s identification documents. We therefore
affirm the trial court’s refusal to instruct on the lesser offense.2
II. Sentencing
¶13 Gomez next challenges the trial court’s denial of his
section 402(1) motion to reduce the level of his convictions from
third degree felonies to class A misdemeanors. Specifically, he
asserts that given the ‚nature and circumstances‛ of his crime
and his ‚history and character,‛ the entry of his convictions as
third degree felonies was unduly harsh.3 (Citation and internal
quotation marks omitted.)
2. Even if the trial court had given an instruction on unlawful
possession of another’s identification documents, a conviction on
Gomez’s proposed lesser included offense still would have
resulted in a third-degree-felony conviction. The unlawful
possession of multiple identifying documents is a third degree
felony. Utah Code Ann. § 76-6-1105(2)(b) (LexisNexis 2008).
Gomez admitted possessing more than one identifying
document, and the State offered evidence that each document
contained personal identifying information of other people.
3. Gomez also argues that the trial court failed to set forth a
factual basis for its denial of his section 402(1) motion. In
Gomez’s view, the trial court gave ‚no indication of what regard,
if any, was given to the nature or circumstances of the offense or
*Gomez’s+ history or character.‛ Generally, ‚‘to preserve an issue
for appeal[,] the issue must be presented to the trial court in such
a way that the trial court has an opportunity to rule on that
issue.’‛ State v. Titus, 2012 UT App 231, ¶ 11, 286 P.3d 941(alteration in original) (quoting 438 Main St. v. Easy Heat, Inc.,
(continued...)
20130123-CA 6 2015 UT App 149State v. Gomez
¶14 Trial courts have discretion to decide whether to grant a
defendant’s request to enter a conviction for a lower category of
offense. State v. Boyd, 2001 UT 30, ¶ 31, 25 P.3d 985. When
reviewing issues of sentencing, we afford deference to the trial
court, id., and will reverse its exercise of discretion only if the
court ‚fails to consider all legally relevant factors‛ or ‚if it can be
said that no reasonable [person] would take the view adopted by
the trial court,‛ State v. Moreau, 2011 UT App 109, ¶ 6, 255 P.3d
689 (alteration in original) (citation and internal quotation marks
omitted).
¶15 The Utah Code allows a trial court to reduce the level of a
conviction if it concludes that recording the conviction at the
charged level would be unduly harsh. Section 402(1) provides,
If at the time of sentencing the court, having regard
to the nature and circumstances of the offense of
which the defendant was found guilty and to the
history and character of the defendant, and after
having given any victims present at the sentencing
and the prosecuting attorney an opportunity to be
heard, concludes it would be unduly harsh to
record the conviction as being for that degree of
offense established by statute, the court may enter
a judgment of conviction for the next lower degree
of offense and impose sentence accordingly.
Utah Code Ann. § 76-3-402(1) (LexisNexis 2012).
(…continued)
2004 UT 72, ¶ 51, 99 P.3d 801). Gomez did not object to the
findings in the trial court and his failure to make such an
objection constitutes a ‚‘waiv[er of] any argument regarding
whether the district court’s findings of fact were sufficiently
detailed.’‛ See id. ¶ 13 (quoting 438 Main St., 2004 UT 72, ¶ 56).
20130123-CA 7 2015 UT App 149State v. Gomez
¶16 Gomez has not demonstrated that the trial court exceeded
its discretion in denying his motion to reduce the severity of his
convictions. On appeal, Gomez asserts that the trial court should
have given more consideration to his successful completion of
probation on two prior occasions, his remorse for his conduct,
and his potential deportation and separation from his family.
But Gomez essentially reargues the facts he claims are in his
favor without showing that the trial court failed to consider all
legally relevant factors or that no reasonable person would take
the court’s view. Further, the record reflects that the court was
aware of all the circumstances Gomez contends support a
conclusion that convictions for third degree felonies would be
unduly harsh. At the sentencing hearing, and before the trial
court ruled on Gomez’s section 402(1) motion, the court stated
that it had received and reviewed the presentence investigation
report, which contained many of the facts Gomez cites in his
favor.4 Moreover, Gomez acknowledges that ‚the trial court did
hear all of the evidence at trial and heard all of the testimony,
statements and arguments related to *Gomez’s+ motion and the
sentencing.‛ Although Gomez disagrees with how the trial court
ultimately weighed his circumstances and the nature of his
crime, we cannot say that the trial court exceeded its discretion
in denying his section 402(1) motion to reduce the level of his
convictions.
4. ‚*A+s a general rule, we presume that the [trial] court made all
the necessary considerations when making a sentencing
decision.‛ State v. Moa, 2012 UT 28, ¶ 35, 282 P.3d 985. ‚*A+
sentencing judge is not required to articulate what information
she considers in imposing a sentence.” Id. ¶ 40. Further, ‚there is
no basis from which to assume that the [trial] court failed to
consider all relevant statutory factors‛ when it utilized a detailed
presentence investigation report. State v. Perkins, 2014 UT App
176, ¶ 5, 332 P.3d 403 (per curiam).
20130123-CA 8 2015 UT App 149State v. Gomez
CONCLUSION
¶17 In summary, the trial court correctly refused to instruct
the jury on unlawful possession of another’s identification
documents, and it properly exercised its discretion when it
declined to reduce the level of Gomez’s convictions. We
therefore affirm.
20130123-CA 9 2015 UT App 149