Salt Lake City v. Miles ( 2013 )

2013 UT App 77_________________________________________________________
THE UTAH COURT OF APPEALS
SALT LAKE CITY,
Plaintiff and Appellee,
v.
WADE JOHN MILES,
Defendant and Appellant.
Opinion
No. 20111124‐CA
Filed March 28, 2013
Third District, Salt Lake Department
The Honorable Robert P. Faust
No. 111907362
Allyson Barker, Attorney for Appellant
Scott A. Fisher, Attorney for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE STEPHEN L. ROTH concurred.
JUDGE JAMES Z. DAVIS dissented, with opinion.
VOROS, Judge:
¶1 Wade John Miles appeals his conviction on one count of
possession of a dangerous weapon by a restricted person, a class A
misdemeanor. See generally Utah Code Ann. § 76‐10‐503(3)
(LexisNexis 2012).1 We affirm.
1. Throughout this opinion, we cite the current version of the Utah
Code because no substantive changes have been made to the
(continued...)
Salt Lake City v. Miles
BACKGROUND
¶2 Late one evening in October 2011, Miles attempted to board
a light rail train at a downtown Salt Lake City stop. The train
operator prevented Miles from boarding because Miles was trying
to board with a shopping cart. Thinking that Miles was intoxicated,
the train operator radioed for assistance from the field supervisor
on patrol that night. The supervisor arrived and tried to get Miles
to move to the sidewalk for safety reasons. After a short exchange,
Miles started “using the word ‘fuck’ a lot, telling [the supervisor]
to fuck off, fuck [you] for thinking [you are] so cool because [you]
have a job and . . . can tell people what to do.” The supervisor
threatened to call the police. Miles then made a statement about a
knife and a gun. In his witness statement, the supervisor wrote that
Miles said that “if” he had a gun or a knife he would kill the
supervisor. At trial, the supervisor testified that Miles said that “he
had a knife and a gun” and would kill the supervisor if he did not
get away from him.2
¶3 A police officer arrived and administered a field sobriety
test, which Miles failed. The officer arrested Miles for threatening
the supervisor and for intoxication, which the officer believed
made Miles a danger to himself. The officer searched Miles’s
shopping cart incident to the arrest. He found a “jacket [and] in
that jacket pocket was a folding knife.” When the officer asked
Miles about the knife, Miles “said he forgot that he had it.” En
route to the jail, Miles told the officer that “he had used it for
camping.”
1. (...continued)
relevant statutory provisions that would affect the resolution of the
issues presented on appeal.
2. In reciting the evidence that Miles threatened Wagner, we note
that Miles was acquitted of a charge of threats against life or
property. However, these facts were also offered in support of the
dangerous weapon charge.
20111124‐CA 2 2013 UT App 77Salt Lake City v. Miles
¶4 The knife’s blade is approximately 3½ inches long and the
handle approximately 3½ to 4 inches long. It features a thumb stud
to allow the user to swing the blade open with one hand. A portion
of the blade, about 1½ inches, is serrated. According to the
arresting officer, the potential wound profile would be more
“exaggerated” with a serrated blade than with a straight blade. The
officer testified that the type of wounds that a folding knife like this
could potentially cause include “[f]lesh wounds” and “puncture
wounds” that could seriously and permanently disfigure or even
kill a person.
¶5 At trial, the court admitted the booking photo from the night
of the arrest. The exhibit is an approximately 4½‐inch square
photograph depicting Miles from the chest up clad in a tie‐dyed
T‐shirt, looking weathered, and with his hair standing on end.
Miles objected to the booking photo on relevance grounds but the
trial court stated, “Well, he’s been identified [in court during the
trial] but I think it’s to show the status he was at the time of the
event. So I will admit it for that.”
¶6 Miles was charged with criminal trespass; threats against life
or property; intoxication; and purchase, transfer, possession or use
of a dangerous weapon by a restricted person. After a one‐day jury
trial, Miles was acquitted of the first three counts but convicted of
possession of a dangerous weapon by a restricted person.
ISSUES AND STANDARDS OF REVIEW
¶7 Miles advances two contentions on appeal. First, he
contends that the evidence was insufficient to support the jury’s
verdict of guilt on the dangerous weapon charge. Our review of a
claim of insufficient evidence “is highly deferential to a jury
verdict.” State v. Workman, 2005 UT 66, ¶ 29, 122 P.3d 639. 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 only if
20111124‐CA 3 2013 UT App 77Salt Lake City v. Miles
“reasonable minds could not have reached the verdict.” State v.
Colwell, 2000 UT 8, ¶ 42, 994 P.2d 177.
¶8 Second, Miles contends that the trial court abused its
discretion by admitting the booking photo. “A trial court has broad
discretion in deciding whether evidence is relevant, and we review
a trial court’s relevance determination for abuse of discretion.”
State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194.
ANALYSIS
I. Sufficiency of the Evidence
¶9 Miles contends that the evidence was insufficient to
establish that the knife he possessed on the train platform was a
dangerous weapon as defined by statute. See Utah Code Ann. §
76‐10‐501(6), ‐503(3) (LexisNexis 2012). The parties read the statute
defining dangerous weapon differently, presenting a preliminary
question of statutory interpretation.
¶10 “Under our rules of statutory construction, we look first to
the statute’s plain language to determine its meaning.” Sindt v.
Retirement Bd., 2007 UT 16, ¶ 8, 157 P.3d 797 (citation and internal
quotation marks omitted). “We read the plain language of the
statute as a whole, and interpret its provisions in harmony with
other statutes in the same chapter and related chapters.” Miller v.
Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592. “We must also give every
word meaning and effect, and avoid any interpretation that renders
parts or words in a statute inoperative or superfluous.” In re West
Side Prop. Assocs., 2000 UT 85, ¶ 31, 13 P.3d 168 (citations omitted).
¶11 Our Legislature has defined dangerous weapon as “an item
that in the manner of its use or intended use is capable of causing
death or serious bodily injury.” Utah Code Ann. § 76‐10‐501(6)(a).
“Thus, because an item must simply be capable of causing death or
serious bodily injury, an item not necessarily manufactured as a
dangerous weapon may nonetheless become one.” State v. C.D.L.,
20111124‐CA 4 2013 UT App 77Salt Lake City v. Miles
2011 UT App 55, ¶ 16, 250 P.3d 69 (citing Utah Code Ann. § 76‐1‐
601(5)(a) (2008)) (interpreting a similarly worded definition of
dangerous weapon for purposes of defining aggravated assault). The
statute enumerates four factors relevant to determining whether a
knife is a dangerous weapon:
The following factors shall be used in determining
whether a knife, or another item, object, or thing not
commonly known as a dangerous weapon is a
dangerous weapon:
(i) the character of the instrument, object, or
thing;
(ii) the character of the wound produced, if
any;
(iii) the manner in which the instrument,
object, or thing was used; and
(iv) the other lawful purposes for which the
instrument, object, or thing may be used.
Utah Code Ann. § 76‐10‐501(6)(b). The trial court instructed the
jury to consider all four of the statutory factors in determining
whether the knife was indeed a dangerous weapon.3
3. In State v. Archambeau, 820 P.2d 920 (Utah Ct. App. 1991), we
held that this statutory definition implied two distinct analytical
categories: “(1) items commonly known as dangerous weapons;
and (2) items not commonly known as dangerous weapons but
included if, in considering the . . . enunciated characteristics [in
what is now section 76‐10‐501(6)(b)], they qualify.” Id. at 929(emphases omitted); see also State v. Pugmire, 898 P.2d 271, 273 & n.5
(Utah Ct. App. 1995) (criticizing Archambeau’s statutory analysis
but noting that the court was constrained to follow it under
principles of horizontal stare decisis). Archambeau did not apply the
statutory factors to determine whether a pair of knives qualified as
dangerous weapons, concluding instead that the knives were
commonly known as dangerous weapons. See 820 P.2d at 929; see
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20111124‐CA 5 2013 UT App 77Salt Lake City v. Miles
¶12 In effect, Miles contends that all four factors must be present
for an item to be deemed a dangerous weapon, including actual
use: “Although the jury may consider all four factors and give each
the weight it believes it deserves, the inclusion of two factors
regarding the actual use of the weapon demonstrates that the
statute does not criminalize the mere carrying of a knife absent any
actual use of that knife in a dangerous fashion.” Under this reading
of the statute, a person is guilty of possessing a dangerous weapon
only if he in fact uses it, because otherwise the item is by definition
not a dangerous weapon.
¶13 This interpretation of the statute is not harmonious with
related statutory provisions. First, Miles’s reading of subsection 76‐
10‐501(6)(b) is inconsistent with subsection 76‐10‐501(6)(a). The
latter defines a dangerous weapon as “an item that in the manner
of its use or intended use is capable of causing death or serious
bodily injury.” Utah Code Ann. § 76‐10‐501(6)(a) (emphasis added).
The words “or intended use” clearly signal that an item may
qualify as a dangerous weapon even if it is not actually used as
one.
¶14 Second, Miles’s reading of subsection 76‐10‐501(6)(b) is
inconsistent with section 76‐10‐503. Section 76‐1‐501 defines
dangerous weapon as that term is used in section 76‐10‐503. Section
76‐10‐503 criminalizes the use or possession of a dangerous
weapon:
A Category II restricted person who purchases,
transfers, possesses, uses, or has under the person’s
custody or control:
3. (...continued)
also Pugmire, 898 P.2d at 273–74 (same). However, Archambeau is
not controlling here because the Legislature subsequently amended
the statute to explicitly require application of the four statutory
factors to determine whether a knife is a dangerous weapon. See
Act of March 9, 1995, ch. 80, § 1, 1995 Utah Laws 325.
20111124‐CA 6 2013 UT App 77Salt Lake City v. Miles
(a) any firearm is guilty of a third degree
felony; or
(b) any dangerous weapon other than a
firearm is guilty of a class A misdemeanor.
Id. § 76‐10‐503(3) (LexisNexis 2012) (emphasis added). Clearly, one
may commit this offense by merely possessing a dangerous
weapon. Miles’s view that an item must actually be used as a
weapon to qualify as a dangerous weapon would nullify this
variant of the offense.
¶15 In sum, reading section 76‐10‐501(6)(b) in light of
surrounding statutory provisions, we conclude that the statutory
directive to consider “the manner in which the instrument, object,
or thing was used” does not require that the thing actually be used
in order to qualify as a dangerous weapon. See id.
§ 76‐10‐501(6)(b)(iii).
¶16 We now consider whether the evidence, in the light most
favorable to the verdict, was sufficient for the jury to determine
that the knife Miles possessed was a dangerous weapon under the
factors enumerated in section 76‐10‐501(6)(b).
¶17 The first factor is “the character of the instrument, object, or
thing.” Id. § 76‐10‐501(6)(b)(i). The knife’s blade is approximately
3½ inches long and its handle approximately 3½ to 4 inches long.
The knife features a thumb stud to allow the user to swing the
blade open with one hand. About half the blade is serrated.
¶18 The second factor is “the character of the wound produced,
if any.” Id. § 76‐10‐501(6)(b)(ii). Here, no wound was in fact
produced. However, the officer testified that the knife could cause
puncture and slashing wounds and that the wound profile for this
knife would be “exaggerated” because of its serrated edge. He also
testified that the knife was capable of inflicting permanent
disfigurement or even death.
20111124‐CA 7 2013 UT App 77Salt Lake City v. Miles
¶19 The third factor is “the manner in which the instrument,
object, or thing was used.” Id. § 76‐10‐501(6)(b)(iii). As stated
above, Miles did not physically use the knife. However, it was
within reach in the pocket of his jacket in a nearby shopping cart.
And Miles told the supervisor either that he had a knife and would
kill the supervisor if he did not move away, or that if he had a knife
he would kill the supervisor. Thus, Miles himself framed the knife
as a weapon rather than a tool.
¶20 The fourth factor is “the other lawful purposes for which the
instrument, object, or thing may be used.” Id. § 76‐10‐501(6)(b)(iv).
Miles stated that he used the knife for camping. The knife is
obviously well suited for camping and other innocent uses.
¶21 In sum, this knife had a blade that could be flipped open
with one hand and was capable of inflicting serious, even deadly,
wounds; it was within Miles’s reach; and Miles referred to a knife
in connection with stating he would or might kill the supervisor.
Viewing this evidence “and all inferences which may reasonably
be drawn from it in the light most favorable to the verdict,” see
State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94, we cannot agree
that “reasonable minds could not have reached” the conclusion
that Miles’s knife was a dangerous weapon, see State v. Colwell, 2000
UT 8, ¶ 42, 994 P.2d 177.
II. Admission of the Booking Photo
¶22 Miles also contends that the trial court abused its discretion
by admitting his booking photo. Miles argues that his appearance
in the photo was not relevant to any element of the crimes charged
and that his tie‐dyed T‐shirt, disheveled appearance, and
unfriendly facial expression unduly prejudiced him. See Utah R.
Evid. 401, 402.
¶23 The trial court is afforded “broad discretion to admit or
exclude evidence and [this court] will disturb its ruling only for
abuse of discretion, which may be demonstrated by showing that
the [trial] court relied on an erroneous conclusion of law or that
20111124‐CA 8 2013 UT App 77Salt Lake City v. Miles
there was no evidentiary basis for the trial court’s ruling.” State v.
Gallup, 2011 UT App 422, ¶ 12, 267 P.3d 289 (second alteration in
original) (citation and internal quotation marks omitted). Relevant
evidence includes evidence having any tendency to make the
existence of any fact that is of consequence to the determination of
the action more or less probable. Utah R. Evid. 401.
¶24 We conclude that the trial court did not abuse its discretion
in admitting the photo. Miles’s appearance shortly after his arrest
was relevant to the charge of intoxication. “The judge could
determine that the photograph was relevant and admissible on the
issue of his intoxication notwithstanding and in addition to the
admission of testimony concerning the defendant’s appearance at
the time.” Commonwealth v. Schirmer, 76 Mass. App. Ct. 1137, para.
11 (2010) (mem.) (unpublished); see also Aldridge v. State, 515 S.E.2d
397, 402 (Ga. Ct. App. 1999) (holding that defendant’s booking
photo “was relevant as some evidence of his intoxication”); People
v. Best, No. 228168, 2002 WL 1040578, at *2 (Mich. Ct. App. May 21,
2002) (per curiam) (unpublished) (holding that booking photo “was
clearly relevant to the question of defendant’s intoxication, as it
showed his physical state a short time after the alleged offense”).4
4. Miles argues that the City used the photograph to argue that his
appearance “was somehow relevant to whether he possessed a
dangerous weapon and that the jury should find that he possessed
a dangerous weapon because of how he looked.” Because Miles’s
assertion is not accompanied by a citation to the record, see Utah R.
App. P. 24(a)(9), we do not know what statement he would draw
to our attention. We note that in discussing the dangerous weapon
charge in closing, the prosecutor did say that “this is the way he
looked on that day.” The prosecutor’s point was that the dangerous
weapon determination must be made by “looking at the context”
and that weapons are “more dangerous in the hands of people who
are intoxicated.” In any event, on appeal Miles challenges the
admission of the photograph, and does not allege prosecutorial
misconduct in closing argument. We thus focus on the evidentiary
ruling only.
20111124‐CA 9 2013 UT App 77Salt Lake City v. Miles
¶25 In any event, Miles has not demonstrated prejudice. Trial
court error warrants reversal “‘only if a review of the record
persuades the [appellate] court that without the error there was a
reasonable likelihood of a more favorable result for the
defendant.’” State v. Knight, 734 P.2d 913, 919 (Utah 1987)
(emphasis omitted) (quoting State v. Fontana, 680 P.2d 1042, 1048
(Utah 1984)). A reasonable likelihood “‘is a probability sufficient to
undermine confidence in the outcome.’” Id. at 920 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)); see also Utah R.
Crim. P. 30(a); Utah R. Evid. 103(a).
¶26 Miles argues that, had his “appearance at the time not been
known to the jury, it is likely that given the lack of evidence
presented under the four statutory factors for finding a knife was
a dangerous weapon, the jury would have reached a different
verdict.” As explained above, our reading of the four statutory
factors differs from that of Miles. We thus do not agree that the
evidence was so meager that without the booking photo there was
a reasonable likelihood of an acquittal on the dangerous weapon
charge. In addition, the fact that Miles was acquitted of all other
charges—criminal trespass, threats against life or property, and
intoxication—demonstrates that the booking photo did not rouse
the jury “‘to overmastering hostility.’” State v. Shickles, 760 P.2d 291,
296 (Utah 1988) (quoting E. Cleary, McCormick on Evidence § 190, at
565 (3d ed. 1984)), abrogated on other grounds by State v. Doporto, 935
P.2d 484 (Utah 1997).5
5. The dissent argues that the booking photo was admitted in
violation of rule 403 of the Utah Rules of Evidence and that the
error was prejudicial. See infra ¶ 34. Miles neither objected to the
photo on rule 403 grounds at trial nor argued rule 403 on appeal.
We thus do not and should not consider this “unargued legal
theory.” See State v. Robison, 2006 UT 65, ¶ 25, 147 P.3d 448(cautioning against reversing on an unargued and unbriefed
ground). As for rules 401 and 402, “assuming that the photograph
was marginally relevant,” as the dissent does, see infra ¶ 34, ends
the inquiry.
20111124‐CA 10 2013 UT App 77Salt Lake City v. Miles
CONCLUSION
¶27 Under a correct reading of the dangerous weapon statute,
the evidence at trial was sufficient to support the jury’s verdict of
guilt for the crime of possession of a dangerous weapon by a
restricted person. The trial court did not abuse its discretion by
admitting the booking photo, but even if it had, any error was
harmless. We therefore affirm.
DAVIS, Judge (dissenting):
¶28 I respectfully dissent from the majority’s determination that
there was sufficient evidence to support Miles’s conviction for
possession of a dangerous weapon by a restricted person and that
the trial court’s admission of the booking photograph was
harmless. Accordingly, I would reverse Miles’s conviction.
¶29 As the majority observes, four factors are relevant in
determining whether a knife or other instrument is a dangerous
weapon: “the character of the instrument”; “the character of the
wound produced, if any”; “the manner in which the instrument . . .
was used”; and “the other lawful purposes for which the
instrument . . . may be used.” Utah Code Ann. § 76‐10‐501(6)(b)
(LexisNexis 2012). Under the facts and circumstances of this case,
I believe the evidence was insufficient to support a determination
that Miles’s pocket knife constituted a dangerous weapon.
¶30 The only evidence supporting the verdict is the fact that the
knife was capable of inflicting serious and potentially deadly
wounds, and Miles’s alleged statement to the supervisor that “he
had a knife and a gun” and would kill the supervisor if he did not
back away. Although I agree with the majority that Miles’s not
having used the knife is not dispositive, I do believe it is relevant,
particularly under the circumstances of this case where Miles not
only did not use the knife but also did not even access or attempt
to access it.
20111124‐CA 11 2013 UT App 77Salt Lake City v. Miles
¶31 The knife in this case was a small pocket knife with myriad
lawful uses. Although it may have been “capable of causing death
or serious bodily injury” if used unlawfully, see id. § 76‐10‐
501(6)(a), the evidence does not support a determination that Miles
actually used or intended to use the knife in such a way. The knife
was inside a jacket pocket in Miles’s shopping cart. Despite
possibly threatening the supervisor, Miles never actually
brandished the knife at him and never attempted to reach for it or
take it out of the jacket. Furthermore, the supervisor’s testimony
was inconsistent with his written report, prepared when events
were presumably fresher in his mind, which stated that Miles told
him that he would kill him if he had a knife and a gun.6 In fact,
when the arresting officer found the knife, Miles told him he had
forgotten he even had it, a statement consistent with the
supervisor’s written report. Finally, the jury acquitted Miles of the
threat charge despite apparently employing the threat evidence to
convict him of the dangerous weapon charge.7
¶32 The majority places altogether too much emphasis on the
nature of the knife and what injury it might have caused. The
majority’s analysis of the second statutory factor—“the character
of the wound produced, if any,” id. § 76‐10‐501(6)(b)(ii)—is
particularly troubling. If anything, this factor should weigh against
classifying Miles’s knife as a dangerous weapon because no wound
was produced by the knife. However, rather than considering
actual wounds produced, the majority evaluates the types of
wounds the knife was capable of producing. Analyzing the second
6. Nevertheless, taking the facts in the light most favorable to the
jury’s verdict, see State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94,
I must assume Miles told the supervisor that he actually had a
knife.
7. I acknowledge that Miles’s acquittal alone does not undermine
the validity of his conviction, see generally United States v. Powell,
469 U.S. 57, 64–66 (1984) (explaining that inconsistent verdicts on
multiple charges do not justify reversal), but it does underscore the
weakness of the threat evidence.
20111124‐CA 12 2013 UT App 77Salt Lake City v. Miles
factor this way and considering it in conjunction with the first
factor, which focuses on “the character of the instrument,” id. § 76‐
10‐501(6)(b)(i), essentially allows the jury to find two factors in
support of classifying a knife as a dangerous weapon based solely
on the fact that the instrument in question is a knife. This is
inconsistent with the statute, which clearly allows for restricted
persons to possess knives for lawful purposes and has even been
amended to ensure that such possession is not unduly restricted.
See supra ¶ 11 n.3. Compare State v. Pugmire, 898 P.2d 271, 273–74 &
n.5 (Utah Ct. App. 1995), and State v. Archambeau, 820 P.2d 920, 929
(Utah Ct. App. 1991), with Act of March 9, 1995, ch. 80, § 1, 1995
Utah Laws 325 (adding “knife” to the list of items “not commonly
known as a dangerous weapon” and directing consideration of
“the other lawful purposes for which the instrument, object, or
thing may be used” in the determination of whether such an
instrument might constitute a dangerous weapon). To approach the
dangerous weapon analysis as the majority has in this case is to
essentially preclude any restricted person from carrying anything
sharper than a butter knife. I do not disagree that the evidence
regarding the types of wounds the knife is capable of inflicting may
be relevant, but I would consider such evidence to fall within the
ambit of the first factor, not the second. The second factor should
be limited to considering only the wounds actually produced, “if
any.” See Utah Code Ann. § 76‐10‐501(6)(b)(ii).
¶33 In light of the fact that Miles neither used nor attempted to
use the knife, that no wound was caused by the knife, and that the
knife was “well suited for camping and other innocent uses,” see
supra ¶ 20, I do not find the evidence that the knife was sharp,
serrated, and capable of causing injury, combined with Miles’s
empty threats to the supervisor, to sufficiently support a
determination that the knife was a dangerous weapon. Thus, I
would reverse Miles’s conviction.
¶34 I also do not think the booking photograph should have
been admitted. Miles’s argument focuses primarily on the
relevance of the photograph under rules 401 and 402 of the Utah
Rules of Evidence, rather than weighing its probative value against
its prejudicial effect under rule 403. See Utah R. Evid. 401, 402, 403.
20111124‐CA 13 2013 UT App 77Salt Lake City v. Miles
However, even assuming that the photograph was marginally
relevant to the charges of which he was acquitted, as the City
asserts, I believe that under the circumstances of this case, that
relevance was outweighed by the photograph’s potential prejudice.
Given the extremely limited evidence relating to the dangerous
weapon charge—evidence which I consider to be insufficient to
support the verdict—I am persuaded that there was a “reasonable
likelihood of a more favorable result” for Miles had the booking
photograph been excluded.8 See State v. Knight, 734 P.2d 913, 919
(Utah 1987) (citation and internal quotation marks omitted).
8. The majority asserts that the jury’s acquittal of Miles on the other
charges suggests that the photograph did not rouse them to
overmastering hostility. See supra ¶ 26. However, I believe such
hostility could be evidenced by the jury’s decision to convict him
of one of the charges despite the evidence being insufficient to
convince it that he was actually guilty of any of the charges.
20111124‐CA 14 2013 UT App 77