State v. Doyle , 437 P.3d 1266 ( 2018 )

2018 UT App 239THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TRAVIS LEE DOYLE,
Appellant.
Opinion
No. 20170024-CA
Filed December 28, 2018
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 111900760
Diana Pierson, Maren E. Larson, and Sarah J.
Carlquist, Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
POHLMAN, Judge:
¶1 Travis Lee Doyle appeals his conviction for aggravated
assault. He contends that there was insufficient evidence to
disprove his claim of self-defense beyond a reasonable doubt.
We affirm.
State v. Doyle
BACKGROUND 1
¶2 On Christmas Eve 2010, Victim went to a party with his
girlfriend (Girlfriend). The party was hosted by Girlfriend’s
uncle (Uncle) and included about two dozen guests, mostly
Girlfriend’s family. Uncle also invited Doyle, who attended the
party with two friends. Girlfriend knew Doyle growing up, but
Victim had never met him.
¶3 While Doyle, Girlfriend, and Victim were together in
Uncle’s kitchen, Girlfriend introduced Victim and Doyle. Victim,
who had been keeping to himself, looked up as Girlfriend
introduced him as her “old man.” Victim smiled and said,
“Hello,” and Doyle responded, “Are you looking at me funny?”
or, “You looking at me crazy fool?” Victim shook his head and
said, “No,” looking down to avoid a confrontation. According to
Girlfriend, all three of them looked away and she thought they
“were all cool.”
¶4 The next thing Victim remembered was waking up on the
kitchen floor. He did not remember getting punched but felt
pain “shooting through [his] eye and the left side of [his] face.”
At trial, Girlfriend recalled that Doyle “cold clocked” Victim
after they had all looked away. The punch knocked Victim “out
cold,” and Girlfriend testified that Doyle started hitting and
kicking Victim while he lay unconscious on the floor. Girlfriend
tried to stop the assault, but Doyle’s two friends joined the attack
and she was eventually pulled out of the kitchen by her cousin.
1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Tulley, 2018 UT 35, ¶ 4 n.1, 428
P.3d 1005 (quotation simplified).
20170024-CA 2 2018 UT App 239State v. Doyle
In the fracas, Girlfriend was punched and had a tooth knocked
out, but she did not know who hit her. Girlfriend later testified
that the beating of Victim lasted for, what seemed to her, two to
three minutes.
¶5 The other partygoers heard the commotion coming from
the kitchen, and Girlfriend’s family rushed to the scene and
helped Victim. As people moved out of the kitchen, Uncle
confronted Doyle to figure out what happened. Doyle was
“hyped up” and “[r]eally aggressive” and told Uncle that Victim
had disrespected him and “was giving him dirty looks” when
the two were introduced. Doyle did not claim that Victim had
acted aggressively toward him or that Doyle was defending
himself.
¶6 Girlfriend’s cousin also confronted Doyle, asking him if
he hit Girlfriend. Doyle made “some cocky ass response” like,
“You know I did.” Sensing additional impending trouble,
another partygoer (J.G.) stepped between them to prevent
another fight. But when J.G. turned his back to Doyle, Doyle
punched him in the back of the head. Another fight started, and
Doyle’s two friends again joined the fray. Someone called the
police, and Doyle and one of his friends left, leaving the other
friend behind.
¶7 Doyle was not gone for long. J.G. went outside to
escape the “craziness” with his girlfriend, who was eight
months pregnant. As she and J.G. were talking, Doyle and
his friend approached them and started “talking crazy.” J.G.
and the pair again exchanged blows, and the friend took a
swing at the girlfriend’s stomach. J.G. was able to block
the swing but was knocked down. Doyle yelled, “I’m going to
try to catch a murder charge,” and then he jumped in the
car with his friend and left. The police arrived less than one
minute later.
20170024-CA 3 2018 UT App 239State v. Doyle
¶8 Victim later returned home, deciding not to go to the
hospital that night because it was Christmas Eve. The next
morning, he woke up and had Christmas with his kids but was
in “an extreme amount of pain.” Girlfriend took him to the
emergency room, where he was referred to a plastic surgeon
(Doctor). Doctor found that Victim had suffered numerous bone
fractures around his left eye, but delayed surgery for more than
two weeks due to swelling. When Doctor was able to perform
the surgery, it took eleven hours to repair the damage to Victim’s
face and position three permanent titanium plates and one
biodegradable plate. Doctor later testified at trial that, although
it was possible Victim’s injuries were caused by a single punch,
it would have required a “significant amount of force.” Based on
his experience, Doctor was ultimately unsure how many times
Victim was hit.
¶9 Due to his injuries, Victim did not return to work for
nearly two months, lived off a liquid diet for two weeks, and
was unable to communicate without pain and discomfort. To
this day, Victim suffers from migraines and vision loss,
conditions he never had before the incident.
¶10 The State charged Doyle with aggravated assault
resulting in serious bodily injury, a second degree felony, and
included an in-concert enhancement. 2 At trial, Doyle argued
2. Doyle was charged with aggravated assault under Utah Code
section 76-5-103. Utah Code Ann. § 76-5-103(2)(b) (LexisNexis
Supp. 2010). Under section 76-3-203.1, a defendant is subject to
an “enhanced penalty” for assault “if the trier of fact finds
beyond a reasonable doubt that the person acted . . . in concert
with two or more persons.” Id. § 76-3-203.1(2)(a), (5)(b). If the
enhanced penalty applied to Doyle, it would have elevated his
crime from a second degree felony to a first degree felony. See id.
§ 76-3-203.1(4)(d).
20170024-CA 4 2018 UT App 239State v. Doyle
self-defense, claiming that Victim threatened him with a beer
bottle. Doyle testified that immediately after Girlfriend
introduced them, Victim “turned around and grabbed a bottle
off the counter” and raised it above his head in a threatening
manner. To defend himself, Doyle hit Victim one time and then
was “jumped” by Girlfriend’s family. At the end of trial, Doyle
moved for a directed verdict, arguing that the State did not meet
its burden of disproving self-defense. The trial court denied the
motion and found that there was a “disputed issue” as to
self-defense that should go to the jury. The court instructed the
jury on self-defense, explaining that the prosecution had the
burden to “prove beyond a reasonable doubt that the defense
[did] not apply.” After a two-day trial, the jury found Doyle
guilty of aggravated assault but rejected the in-concert
enhancement. Doyle appeals.
ISSUE AND STANDARD OF REVIEW
¶11 Doyle asks us to reverse his conviction for aggravated
assault, contending that the trial court should have granted his
motion for a directed verdict because there was insufficient
evidence to disprove his claim of self-defense. “We review a trial
court’s ruling on a motion for directed verdict for correctness.”
State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168.
When a party moves for a directed verdict based
on a claim of insufficiency of the evidence, we 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.
State v. Hirschi, 2007 UT App 255, ¶ 15, 167 P.3d 503 (quotation
simplified).
20170024-CA 5 2018 UT App 239State v. Doyle
ANALYSIS
I. Preservation
¶12 Doyle’s insufficiency challenge has two components: first,
that the evidence supporting his conviction and disproving his
self-defense claim was “inconclusive and speculative”; and
second, that in evaluating the sufficiency of the evidence against
Doyle, the trial court should have disregarded Girlfriend’s
testimony as “inherently improbable.” The State counters that
these issues were unpreserved. It acknowledges that Doyle
moved for a directed verdict in the trial court but argues that he
did not preserve his sufficiency challenges “because his blanket
objections below . . . were not specific to the claims he now
raises.”
¶13 To preserve an issue for appeal, a party must present it
“to the trial court in such a way that the trial court has an
opportunity to rule on that issue.” State v. Gallegos, 2018 UT App
112, ¶ 14, 427 P.3d 578 (quoting 438 Main St. v. Easy Heat, Inc.,
2004 UT 72, ¶ 51, 99 P.3d 801). This means that a party must raise
the issue “specifically” and “in a timely fashion,” and support
the argument with “evidence or relevant legal authority.” Id.(quotation simplified). There is no dispute that Doyle’s motion
for a directed verdict was timely, but we must decide whether
the issues were specifically raised and supported by relevant
authority.
¶14 We conclude that Doyle’s motion for a directed verdict
preserved his inconclusive-and-speculative challenge but did not
preserve his distinct claim that Girlfriend’s testimony should
have been disregarded in its entirety as inherently improbable.
A. Inconclusive and Speculative
¶15 On appeal, Doyle contends that the evidence relevant to
his self-defense claim was “inconclusive and speculative,”
20170024-CA 6 2018 UT App 239State v. Doyle
raising several arguments in support. See infra Part III. To
support his claim that these arguments were preserved, Doyle
relies principally on State v. Gonzalez, 2015 UT 10, 345 P.3d 1168,
and State v. Gallegos, 2018 UT App 112, 427 P.3d 578. Under those
cases, Doyle maintains that his arguments regarding the
sufficiency of the evidence to disprove self-defense were clear
from the context of the directed verdict motion. See Gonzalez,
2015 UT 10, ¶ 26 (“When the specific ground for an objection is
clear from its context, the issue is preserved for appeal.”). And
although he makes more developed arguments on appeal, he
asserts that the arguments below “were not ‘so tangential that
[they do] not mirror [the] specific arguments on appeal.’”
(Quoting Gallegos, 2018 UT App 112, ¶ 16.) The State, in
response, relies primarily on State v. Bosquez, 2012 UT App 89,
275 P.3d 1032, and contends that Doyle’s “general assertions”
below failed to “assert the specific argument[s] raised on
appeal.” (Quoting Bosquez, 2012 UT App 89, ¶ 8.)
¶16 Regarding Doyle’s more generalized argument
challenging the self-defense evidence as inconclusive and
speculative, we agree that this case more closely resembles
Gonzalez and Gallegos than Bosquez. As in Gallegos, Doyle’s
arguments on appeal merely present the self-defense argument
from below “with more flesh on the bone.” See 2018 UT App 112,
¶ 16. In his motion for a directed verdict, Doyle argued that the
State had the burden to disprove self-defense and that it had to
“present more than [it] ha[d]” to meet that burden. In Doyle’s
view, his testimony that he was threatened by Victim was never
disproven. These arguments were tersely made, but were
presented in context of the two-day trial in which self-defense
was an important issue. In his motion, Doyle did not identify
every perceived defect in the State’s evidence, but it was clear he
was arguing that the evidence presented was too inconclusive
and speculative to disprove self-defense. This basic theory—that
the State did not disprove that Doyle acted in self-defense—has
not changed. See State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d
20170024-CA 7 2018 UT App 239State v. Doyle
443 (explaining that, once through the preservation door, “new
arguments” are allowed but “new legal theories” are not). Thus,
the issue was “presented to the trial court in such a way that the
trial court ha[d] an opportunity to rule on [it].” See Gallegos, 2018
UT App 112, ¶ 14 (quotation simplified). Because the issue was
preserved, we will reach it on its merits. See infra Part III.
B. Inherent Improbability
¶17 We reach a different conclusion, however, on Doyle’s
inherent-improbability argument. Under State v. Robbins, 2009
UT 23, 210 P.3d 288, a court may disregard testimony that is
“inherently improbable” when determining whether there is
sufficient evidence for a conviction. Id. ¶ 13. The inherent
improbability doctrine has very limited applicability and comes
into play “only in those instances where (1) there are material
inconsistencies in the testimony and (2) there is no other
circumstantial or direct evidence of the defendant’s guilt.” Id.
¶ 19; see also State v. Prater, 2017 UT 13, ¶ 38, 392 P.3d 398(explaining that the Robbins court relied on “inconsistencies in
the [witness’s] testimony plus the patently false statements the
[witness] made plus the lack of any corroboration”).
¶18 On appeal, Doyle argues that Girlfriend’s testimony of a
“prolonged assault by multiple attackers was inherently
improbable” and that, in evaluating the sufficiency of the
evidence, the trial court should have disregarded her testimony
in its entirety under Robbins. In support, he asserts that Victim’s
injuries were inconsistent with Girlfriend’s version of events:
Victim had injuries only to the face with no other injuries to his
body. According to Doyle, if Girlfriend’s account were true—
that Victim was punched and kicked for two to three minutes by
three attackers—Victim would have had more serious injuries.
In addition, Doyle asserts that Girlfriend’s testimony was
“patently false” and “uncorroborated.” For these reasons, he
20170024-CA 8 2018 UT App 239State v. Doyle
maintains that Girlfriend’s testimony cannot sustain the jury’s
verdict.
¶19 This goes far beyond what was argued in the motion for a
directed verdict. Robbins may be a component of an insufficiency
challenge, but not every insufficiency challenge raises a Robbins
issue. Doyle’s contention that the trial court should have
evaluated the sufficiency of the evidence without Girlfriend’s
testimony does not merely add “more flesh on the bone.” See
State v. Gallegos, 2018 UT App 112, ¶ 16, 427 P.3d 578. Instead, it
introduces a new legal theory: that the insufficiency should be
reviewed only after Girlfriend’s testimony is ignored as
“inherently improbable.” And unlike the arguments above, supra
Part I.A., it would not have been clear from context that the
motion for a directed verdict was making a Robbins challenge.
Instead, the motion centered on the State’s burden of proof and
its alleged failure to disprove Doyle’s testimony that he acted
defensively based on all of the evidence presented. There was
never any argument that Girlfriend’s testimony was so
inherently improbable that it should be disregarded before
analyzing the sufficiency of the State’s evidence. Thus, this
particular challenge was not presented to the trial court and was
not preserved for appeal. See Gallegos, 2018 UT App 112, ¶ 14. 3
3. At the end of trial, Doyle moved for two directed verdicts. The
first was reserved by Doyle’s counsel at the close of the State’s
case-in-chief and was presented with the second at the close of
all the evidence. The first motion concerned the in-concert
enhancement. In that motion, Doyle argued that “there were
some considerable inconsistencies as to whether or not two or
more people were involved” and that Girlfriend’s testimony on
this point was uncorroborated. In the second motion, Doyle
argued self-defense, and that the State had not met its burden to
disprove that defense. The State stresses that these motions were
(continued…)
20170024-CA 9 2018 UT App 239State v. Doyle
II. Plain Error
¶20 Alternatively, Doyle contends that the trial court
committed plain error by considering Girlfriend’s testimony in
reviewing his motion for a directed verdict. “The plain error
doctrine serves as an exception to our long-standing rule that
issues cannot be raised on appeal if they were not argued below
at trial.” State v. Bond, 2015 UT 88, ¶ 36, 361 P.3d 104. But we will
not find plain error based on insufficient evidence unless the
insufficiency is “obvious and fundamental.” State v. Prater, 2017
UT 13, ¶ 28, 392 P.3d 398 (quotation simplified). “An example of
an obvious and fundamental insufficiency is the case in which
the State presents no evidence to support an essential element of
a criminal charge.” Id. (quotation simplified).
¶21 In Prater, our supreme court reviewed the inherent
improbability of witness testimony for plain error. Id. ¶ 27. And
there, the court emphasized that “the usual course” is to allow
“the jury to assess the credibility of witness testimony.” Id. ¶ 43.
Only when testimony is “inherently improbable,” that is,
“incredibly dubious and, as such, apparently false,” can the issue
be taken from the jury. Id. ¶¶ 32–33.
(…continued)
distinct and viewed in isolation by the trial court. Doyle counters
in his reply brief that “the trial court understood Doyle’s second
motion incorporated the facts and argument from the first
motion.” We do not decide whether the motions can be viewed
together. Even though the first motion made references to
“inconsistencies,” it made no suggestion that the trial court
should disregard Girlfriend’s testimony as inherently
improbable. Considering both motions in context, neither raised,
in isolation or together, the distinct Robbins issue Doyle raises on
appeal. State v. Robbins, 2009 UT 23, ¶ 13, 210 P.3d 288.
Therefore, we conclude that the issue is unpreserved.
20170024-CA 10 2018 UT App 239State v. Doyle
¶22 Here, it is not obvious that the inconsistencies in
Girlfriend’s testimony “run so counter to human experience”
that it renders her testimony “inherently improbable.” See id.
¶ 39. As to Victim’s injuries being inconsistent with Girlfriend’s
testimony, Doctor testified that Victim’s significant injuries may
have been caused by a single blow, or by many. Ultimately,
Doctor could not say how many times Victim was hit. Thus, this
question properly went to the jury. Doyle also asserts that
Girlfriend’s testimony that she had a tooth knocked out during
the melee is inconsistent with her statement to police several
hours after the incident, where she did not report that fact. But
“pre-trial inconsistent statements do not render [a witness’s]
testimony ‘apparently false.’” Id. Instead, they present routine
credibility questions for a jury. Id. Next, Doyle attacks
Girlfriend’s estimation that the attack lasted two to three
minutes, saying this estimation is patently false because “none of
her approximately twenty family members intervened” and
“even the [prosecutor] acknowledged that [Girlfriend] was
wrong to testify that the incident lasted for two to three
minutes.” Yet the record shows that Girlfriend’s family did
intervene—even Doyle claimed that he was “jumped” as soon as
he hit Victim. And besides, how long the attack lasted is
irrelevant; the question is whether Doyle assaulted Victim—be it
for three seconds or three minutes. This is not an obvious basis
to disregard Girlfriend’s entire testimony.
III. Sufficiency of the Evidence
¶23 Having concluded that Doyle preserved his insufficiency
challenge as to the inconclusive and speculative nature of the
evidence, we turn to the merits of that argument. In doing so, we
note “[a] defendant must overcome a substantial burden on
appeal to show that the trial court erred in denying a motion for
directed verdict.” State v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d
1168. We view the evidence “in the light most favorable to the
State” and will uphold the trial court’s denial of a motion for a
20170024-CA 11 2018 UT App 239State v. Doyle
directed verdict if “some evidence exists from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” Id. (quotation
simplified). We conclude that, “when viewed in the light most
favorable to the State,” there is indeed sufficient evidence “from
which a reasonable jury could find beyond a reasonable doubt
that” Doyle did not act in self-defense. See id. (quotation
simplified).
¶24 “A person is justified in threatening or using force against
another when and to the extent that the person reasonably
believes that force or a threat of force is necessary to defend the
person . . . against another person’s imminent use of unlawful
force.” Utah Code Ann. § 76-2-402(1)(a) (LexisNexis Supp. 2010).
“Once the jury has been instructed on self-defense, the State has
the burden to prove beyond a reasonable doubt that the
defendant did not act in self-defense.” State v. Lucero, 2012 UT
App 202, ¶ 6, 283 P.3d 967 (quotation simplified). In assessing
reasonable doubt, we recognize that the jury is the sole “arbiter
of witness credibility.” State v. White, 2011 UT App 162, ¶ 10, 258
P.3d 594 (quotation simplified). Our “inquiry ends when there is
some evidence, including reasonable inferences, from which
findings of all the requisite elements of the crime [could]
reasonably be made.” Id. ¶ 8 (quotation simplified). Further,
“[i]nferences may reasonably be drawn from circumstantial
evidence.” State v. Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664. “And a
jury’s inference is reasonable unless it falls to a level of
inconsistency or incredibility that no reasonable jury could
accept.” Id. (quotation simplified).
¶25 Doyle contends that the State did not disprove his claim
of self-defense because it “did not present a witness who was
looking at [Victim] before Doyle punched him.” Because Victim
and Girlfriend were looking away before the attack, and because
there were no other eyewitnesses to the events, Doyle asserts
that there is no proof that Victim did not first threaten Doyle
20170024-CA 12 2018 UT App 239State v. Doyle
with the beer bottle. In addition, Doyle contends that the
evidence is speculative because “Doyle’s behavior after the
incident” does not speak to Doyle’s actions in regard to Victim.
We conclude both contentions lack merit.
¶26 First, there was at least one witness to the incident. Victim
testified that (1) his memory of before he was hit was “[v]ery
clear,” (2) when Doyle asked him if he was looking at him funny,
he looked away to avoid a confrontation, and (3) he “did not
want to confront [Doyle].” Further, when asked whether he
made “any threats toward Mr. Doyle” or did “anything
aggressive towards Mr. Doyle before [he] got punched,” Victim
said, “No.” And even assuming that Girlfriend did not witness
the initial hit because she momentarily looked away after Victim
and Doyle were introduced, she testified that, based on her
observations and impressions, Doyle “cold clocked” Victim and
that Doyle continued to hit and kick Victim while he was
unconscious. At any rate, eyewitness testimony is not required
to disprove self-defense. See Salt Lake City v. Carrera, 2015 UT 73,
¶ 11, 358 P.3d 1067 (“Circumstantial evidence alone may be
sufficient to establish the guilt of the accused.” (quotation
simplified)). Instead, the jury, “as the arbiter of witness
credibility,” White, 2011 UT App 162, ¶ 10 (quotation simplified),
could reasonably find, and in fact did find, that Victim was
credible and that Doyle was the aggressor.
¶27 Second, the evidence would not require rank speculation
as Doyle contends. In this regard, Doyle misapprehends the
distinction between speculation and reasonable inference. This
distinction was explained by our supreme court in Carrera: “In
short, the difference between an inference and speculation
depends on whether the underlying facts support the
conclusion. A jury draws a reasonable inference if there is an
evidentiary foundation to draw and support the conclusion.”
2015 UT 73, ¶ 12. Victim testified that he did not want to fight
Doyle and looked away before being punched. Girlfriend also
20170024-CA 13 2018 UT App 239State v. Doyle
testified that Victim looked away after the tense introduction.
The fact that Victim looked down supports the reasonable
inference that Victim did not grab a bottle off the counter to
attack Doyle.
¶28 Moreover, J.G. testified that Victim is “such a nice guy”
and a “nonviolent kind of guy.” In contrast, J.G.’s girlfriend
testified that Doyle was “hyped up” and “[r]eally aggressive.”
This is borne out by Doyle’s actions throughout the night of the
party. Doyle and his friends started several fights—with Victim,
with J.G., and with a woman who was eight months pregnant.
And when confronted by Uncle about the events in the kitchen,
Doyle did not say Victim had threatened him. Instead, more
consistent with Victim’s and Girlfriend’s accounts, Doyle told
Uncle that Victim had “giv[en] him dirty looks” and “had
disrespected him.” These facts support a reasonable inference
that, while Victim was nonviolent, Doyle was aggressive. They
also support the further inference that Doyle did not defend
himself in response to an unprovoked attack from Victim, but
that Doyle felt disrespected and hit Victim as Victim was looking
away. In short, there is “some evidence . . . from which a
reasonable jury could find” that Doyle did not act in
self-defense. Gonzalez, 2015 UT 10, ¶ 27 (quotation simplified).
Therefore, we affirm the trial court’s denial of Doyle’s motion for
a directed verdict. See id. ¶ 33.
CONCLUSION
¶29 We conclude that Doyle preserved part of his
insufficiency challenge through his motion for a directed verdict
but did not preserve his Robbins challenge as to Girlfriend’s
testimony. On the unpreserved Robbins claim, we conclude that
the trial court did not plainly err in not disregarding Girlfriend’s
testimony. And on the merits of the preserved claim, we
conclude that the State provided sufficient evidence to disprove
20170024-CA 14 2018 UT App 239State v. Doyle
Doyle’s theory of self-defense beyond a reasonable doubt. We
therefore affirm Doyle’s conviction for aggravated assault.
20170024-CA 15 2018 UT App 239