State v. Lopez , 2020 UT App 101 ( 2020 )

2020 UT App 101THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ISMAEL ARENAS LOPEZ,
Appellant.
Opinion
No. 20190236-CA
Filed June 25, 2020
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 161500523
Jose A. Loayza, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Ismael Arenas Lopez challenges his convictions for
aggravated burglary and attempted aggravated murder. He
argues that the district court erred in ruling that Utah Code
section 76-5-202 prohibited the merging of his convictions. Lopez
alternatively argues that the statute is unconstitutional. We
affirm.
State v. Lopez
BACKGROUND 1
¶2 In the wee hours of the morning on November 6, 2016,
Lopez, using a hammer, broke into his ex-girlfriend’s home
through a kitchen window. Once inside, he exchanged the
hammer for a serrated knife he found in the kitchen, and he
stripped down to his underpants and socks so that he could
move about the house more quietly. Lopez then proceeded to the
upstairs bedroom of his ex-girlfriend’s mother (Victim). He
approached Victim, who was sleeping, and began choking her
and “repeatedly” stabbed her “in the neck, back, face, and arm”
with the knife. Victim started screaming and fought back,
scratching Lopez’s bare chest.
¶3 Victim’s husband, who was sleeping on the downstairs
couch, tackled Lopez as he fled the bedroom and attempted to
exit the home. Victim’s husband held Lopez until police arrived.
1. We were not favored with a trial transcript and accordingly
recite the facts from the initial probable cause statement and
other facts gleaned from the record, to which Lopez has
stipulated on appeal. Ordinarily, an appellant’s failure to include
a trial transcript will result in a summary affirmance, given the
difficulty for the appellant to demonstrate preservation, see Utah
R. App. P. 24(a)(5)(B); the appellate court’s inability to assess
prejudice if it concludes an error was made, see State v. Courtney,
2017 UT App 172, ¶ 22, 424 P.3d 198; and the appellate court’s
inclination to “presume the regularity of the proceedings
below,” see State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278, in the
absence of a transcript. In this case, however, Lopez has
stipulated to the relevant facts, and we are therefore able to
address the legal issues he raises. We do remind appellants that
failure to include a trial transcript, absent rare circumstances
such as those presented in the current appeal, will almost always
culminate in affirmance.
20190236-CA 2 2020 UT App 101State v. Lopez
The injuries to Victim “were serious and life threatening,” but,
fortunately, she survived the ordeal.
¶4 The State charged Lopez with aggravated burglary and
attempted aggravated murder. Following a two-day trial, a jury
convicted Lopez on both counts. Before sentencing, Lopez
moved to have his aggravated burglary conviction merged with
his attempted aggravated murder conviction. Relying on State v.
Shaffer, 725 P.2d 1301 (Utah 1986), Lopez argued that
“aggravated burglary is a predicate felony for attempted . . .
aggravated murder and a lesser included offense and merges
with the greater offense of attempted . . . aggravated murder.”
Lopez further argued that Utah Code section 76-5-202, which
provides that “any aggravating circumstance,” including
“aggravated burglary,” “that constitutes a separate offense does
not merge with the crime of aggravated murder,” see Utah Code
Ann. § 76-5-202(1)(d), (5)(a) (LexisNexis Supp. 2019) (the
anti-merger provision), 2 is “unconstitutional on its face or in its
application to [Lopez].” Lopez asserted that the statute was
“unconstitutionally vague, overbroad, and violates [his] due
process rights . . . and is violative of the Equal Protection
Clause.”
¶5 The district court denied Lopez’s motion, concluding that
the plain language of the anti-merger provision “leave[s] no
doubt that the legislature intended that [aggravated burglary]
does not merge with [attempted aggravated murder].” It also
rejected his challenge to the constitutionality of the anti-merger
provision.
¶6 Lopez appeals.
2. Because the relevant provisions of the Utah Code in effect at
the time Lopez committed his offenses do not materially differ
from those currently in effect, we cite the current version of the
code for convenience.
20190236-CA 3 2020 UT App 101State v. Lopez
ISSUES AND STANDARDS OF REVIEW
¶7 Lopez argues that the district court erred by not merging
his convictions. “Merger issues present questions of law, which
we review for correctness.” State v. Diaz, 2002 UT App 288, ¶ 10,
55 P.3d 1131.
¶8 Alternatively, Lopez argues that Utah Code section
76-5-202 “is unconstitutionally vague and violates equal
protection guarantees.” 3 Lopez’s constitutional challenge
presents a question of law, which we review de novo,
“recognizing that all statutes are presumed to be constitutional
and the party challenging a statute bears the burden of proving
its invalidity.” State v. Roberts, 2015 UT 24, ¶ 16, 345 P.3d 1226(quotation simplified).
ANALYSIS
I. Merger
¶9 “The question of merger arises when two statutes or two
portions of a single statute proscribe certain conduct, and the
question is whether the defendant can be punished twice
3. It is not entirely clear whether Lopez is arguing that in
addition to the statute being unconstitutional as applied to him,
it is also unconstitutional on its face. But because we hold that
the statute is not unconstitutional as applied to Lopez, we need
not separately consider any potential claim of it being
unconstitutional on its face. See State v. Herrera, 1999 UT 64, ¶ 50,
993 P.2d 854 (holding that because “[f]acial challenges succeed
. . . only if the statutes at issue are incapable of any valid
application,” the defendant’s “facial challenge fails a fortiori”
where the court holds that the challenged statute was
constitutional as applied to him).
20190236-CA 4 2020 UT App 101State v. Lopez
because his conduct violates both proscriptions.” State v. Lopez,
2004 UT App 410, ¶ 4, 103 P.3d 153 (quotation simplified). Utah
Code section 76-1-402 provides that “when the same act of a
defendant under a single criminal episode shall establish
offenses which may be punished in different ways under
different provisions of this code, the act shall be punishable
under only one such provision.” Utah Code Ann. § 76-1-402(1)
(LexisNexis 2017). And when one offense is a lesser-included
offense of another charged offense, a defendant cannot be
charged and convicted of both. See id. § 76-1-402(3). But the
Legislature may “exempt[] a statute from the requirements of the
merger doctrine,” provided that “an explicit indication of
legislative intent is present in the specific offense statute.” State
v. Bond, 2015 UT 88, ¶ 70, 361 P.3d 104 (quotation simplified).
¶10 In the present case, the aggravated murder statute
contains the anti-merger provision, which specifies that “any
aggravating circumstance,” including “aggravated burglary,”
“that constitutes a separate offense does not merge with the
crime of aggravated murder.” Utah Code Ann. § 76-5-202(1)(d),
(5)(a) (Supp. 2019). “The plain language of [the anti-merger
provision] . . . can leave no doubt that the Legislature intended
that [aggravated burglary] does not merge with the homicide
conviction.” See Bond, 2015 UT 88, ¶ 71. Lopez, however, argues
that the district court “erred by not looking at the reality of what
constituted the ‘offense’ in fact” and “[i]nstead, . . . allow[ing]
itself to be guided by a conceivable conceptual definitional
distinction to find ‘separate’ offenses.” 4 Lopez also argues that
4. In making this argument, Lopez relies on State v. Shaffer, 725
P.2d 1301 (Utah 1986). In that case, our Supreme Court
determined that under the Utah Code in effect at the time, the
defendant’s aggravated burglary offense “was a necessary
element to proof of first degree felony murder” and thus was a
“lesser included offense of first degree felony murder,” thereby
necessitating the merging of the two convictions. Id. at 1313. But
(continued…)
20190236-CA 5 2020 UT App 101State v. Lopez
because the anti-merger provision does not explicitly reference
attempted aggravated murder, it does not apply to his case. We
disagree on both counts
¶11 First, under the anti-merger provision, aggravated
burglary “constitutes a separate offense [and] does not merge
with the crime of [attempted] aggravated murder.” See Utah
Code Ann. § 76-5-202(5)(a). Cf. Bond, 2015 UT 88, ¶ 70 (“[W]here
the Legislature has designated a statute as an enhancing statute,
the merger doctrine has no effect.”). Here, Lopez committed
aggravated burglary by unlawfully entering Victim’s home
“with intent to commit . . . a felony [or] an assault on [Victim],”
see Utah Code Ann. § 76-6-202(1)(a), (c) (2017), and while
committing the burglary, “caus[ing] bodily injury to,” or
“us[ing] . . . a dangerous weapon against” Victim, see id.§ 76-6-203(1)(a)–(b). Lopez then committed attempted
aggravated murder when he took “a substantial step toward,”
see id. § 76-4-101(1)(a), “intentionally . . . caus[ing] the death of
[Victim],” see id. § 76-5-201(1)(a), “incident to an act, scheme,
course of conduct, or criminal episode during which [he]
(…continued)
prior to 2008 the aggravated murder statute did not contain the
anti-merger provision, see Utah Code Ann. § 76-5-202(LexisNexis 2008), and the court in Shaffer concluded that the
generally applicable lesser-included-offense statute directed it to
merge the convictions, 725 P.2d at 1313. By the time Lopez
committed his crimes in 2016, however, the Legislature had
added the anti-merger provision, explicitly prohibiting courts
from merging aggravated burglary with aggravated murder. See
Utah Code Ann. § 76-5-202(5) (Supp. 2016). Thus, Shaffer is not
controlling on this issue. To the extent that Lopez argues that
Shaffer requires the merger of his convictions under the United
States or Utah constitutions, Lopez is mistaken because the
Court explicitly noted that it did not reach the constitutional
question. See 725 P.2d at 1312.
20190236-CA 6 2020 UT App 101State v. Lopez
committed or attempted to commit . . . aggravated burglary,” see
id. § 76-5-202(1)(d) (Supp. 2019). While aggravated burglary is an
aggravating circumstance, which elevates Lopez’s attempted
murder offense to attempted aggravated murder, it is clearly a
separate offense from attempted aggravated murder as the latter
requires the intent to cause death. The two offenses therefore do
not merge given the mandate of the anti-merger provision.
¶12 Second, the anti-merger provision applies equally to
attempted aggravated murder and completed aggravated
murder. We recently dealt with a nearly identical argument in
State v. Martinez, 2019 UT App 166, 452 P.3d 496, cert. granted, 462
P.3d 798 (Utah 2020), concerning a similar provision in the
murder statute, id. ¶ 23. Compare Utah Code Ann.
§ 76-5-203(5)(a) (2017) (“Any predicate offense . . . that
constitutes a separate offense does not merge with the crime of
murder.”), with id. § 76-5-202(5)(a) (Supp. 2019) (“Any
aggravating circumstance . . . that constitutes a separate offense
does not merge with the crime of aggravated murder.”). There,
Martinez made the same argument that Lopez now advances,
namely that the language barring merger “does not apply to
attempt crimes, because the statute states that the enumerated
predicate offenses are prohibited from merging with ‘murder’
and does not explicitly mention attempted murder.” Martinez,
2019 UT App 166, ¶ 23. We rejected Martinez’s argument, id.,and so we are bound to reject Lopez’s argument for the same
reasons, see State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (“Under
the doctrine of horizontal stare decisis, the first decision by a
court on a particular question of law governs later decisions by
the same court” and “has equal application when one panel of a
multi-panel appellate court is faced with a prior decision of a
different panel.”) (quotation simplified).
¶13 In Martinez, we held that attempted murder was simply a
derivative of the crime of murder and the two offenses “are
evaluated using the same statutory elements,” and thus Utah
Code section 76-5-203(5)(a) applied with equal force to the
20190236-CA 7 2020 UT App 101State v. Lopez
attempt, prohibiting attempted murder from being merged with
a predicate offense. 2019 UT App 166, ¶ 23. This same reasoning
applies here. Because “both [aggravated] murder and attempted
[aggravated] murder are evaluated using the same statutory
elements, the prohibition against [aggravated burglary] merging
with [aggravated] murder also prevents that offense from
merging with attempted [aggravated] murder.” See id.¶14 Thus, the district court did not err in denying Lopez’s
motion to merge the two convictions. The anti-merger provision,
especially when read in light of Martinez, prohibited such a
merger.
II. Constitutionality
A. Equal Protection and Uniform Operation of Laws
¶15 Lopez argues that the anti-merger provision violated his
constitutional rights to equal protection under the United States
Constitution and the uniform operation of laws provision under
the Utah Constitution. Specifically, Lopez argues that he “is
being singled out and treated differently from other persons
convicted under the aggravated murder statute.” The federal
Equal Protection Clause and Utah’s Uniform Operation of Laws
Clause both “require that similarly situated individuals be
treated alike under the law unless there is a reasonable basis for
treating them differently.” Met v. State, 2016 UT 51, ¶ 48, 388
P.3d 447 (quotation simplified). “Because our analysis under the
uniform operation of laws provision is at least as rigorous as it
would be under the federal equal protection provision, we limit
our review to [Lopez’s] state constitutional claims.” See State v.
Merrill, 2005 UT 34, ¶ 31, 114 P.3d 585. See also Gallivan v. Walker,
2002 UT 89, ¶ 33, 54 P.3d 1069 (“Utah’s uniform operation of
laws provision is at least as exacting and, in some circumstances,
more rigorous than the standard applied under the federal
constitution.”) (quotation simplified). “To determine whether a
statute violates the uniform operation of laws, we apply a
20190236-CA 8 2020 UT App 101State v. Lopez
three-step analysis: (1) whether the statute creates any
classifications; (2) whether the classifications impose any
disparate treatment on persons similarly situated; and (3) if there
is disparate treatment, whether the legislature had any
reasonable objective that warrants the disparity.” State v.
Robinson, 2011 UT 30, ¶ 17, 254 P.3d 183 (quotation simplified).
Because “[t]he first two steps are threshold inquiries we address
the third step only if we find that the statute both creates
classifications and imposes disparate treatment among persons
similarly situated within those classifications.” Id.¶16 Here, even assuming for purposes of argument that the
aggravated murder statute creates classifications among those
who commit aggravated murder, Lopez’s claim fails under the
second step of our analysis. Under that step, we must determine
“whether the classifications impose any disparate treatment on
persons similarly situated.” Id. (quotation simplified). Lopez
claims that he is being treated differently from other persons
similarly situated, i.e., those convicted under the aggravated
murder statute, because all the other aggravating circumstances
contained in Utah Code section 76-5-202(1)(d), which the
anti-merger provision prohibits from merging with aggravated
murder, could be committed independently of aggravated
murder, while his aggravated burglary offense could not. 5 We
disagree.
5. Lopez’s uniform operation of laws argument is not entirely
clear. At one point, he also argues that he “is being treated
differently, more harshly, than other actors who enter a dwelling
without consent with intent . . . to commit a felony.” This
statement, however, is unsupported by analysis explaining how
Lopez is similarly situated to others who, for example, commit a
burglary but do not attempt murder during the commission of
the burglary. See generally State v. Outzen, 2017 UT 30, ¶ 19, 408
P.3d 334 (explaining the applicable analysis for determining
(continued…)
20190236-CA 9 2020 UT App 101State v. Lopez
¶17 Lopez could have committed aggravated burglary
independently of attempted aggravated murder, just as with any
other aggravating circumstance listed under Utah Code section
76-5-202(1)(d), because attempted murder is in no sense a
necessary element of aggravated burglary. Aggravated burglary
is completed whenever a person “enters or remains unlawfully
in a building . . . with intent to commit . . . [among other things,]
a felony [or] an assault on any person,” Utah Code Ann.
§ 76-6-202(1)(a), (c) (LexisNexis 2017), and while doing so
“causes bodily injury to any person who is not a participant in
the crime,” “uses or threatens the immediate use of a dangerous
weapon against any person who is not a participant in the
crime,” or “possesses or attempts to use any explosive or
dangerous weapon,” id. § 76-6-203(1)(a)–(c). The statute does not
require an attempt to commit murder during the commission of
a burglary to sustain a charge of aggravated burglary. All that it
requires is the intent to commit a felony or assault on a person—
(…continued)
whether individuals are similarly situated under the uniform
operation of laws provision of the Utah Constitution). To the
extent that this is the basis for Lopez’s uniform operation of laws
argument, we decline to address it further because Lopez fails to
carry his burden of persuasion on appeal. See State v. Roberts,
2015 UT 24, ¶ 18, 345 P.3d 1226 (“Rule 24 of the Utah Rules of
Appellate Procedure prescribes standards for the form,
organization, and content of a brief on appeal [and] requires that
the arguments contain the contentions and reasons of the
appellant with respect to the issues presented with citations to
the authorities, statutes, and parts of the record relied on. This
standard for adequate briefing is a subjective standard, and
determining compliance is left to the discretion of the appellate
court. . . . [A]ppellants who fail to follow rule 24’s substantive
requirements will likely fail to persuade the court of the validity
of their position.”) (quotation simplified).
20190236-CA 10 2020 UT App 101State v. Lopez
not the actual commission of such felony or assault, although its
commission undoubtedly goes a long way in proving that
intent—and while entering the building with this intent, using or
simply possessing a dangerous weapon or causing bodily injury.
Thus, the jury could have convicted Lopez of aggravated
burglary and acquitted him of the attempted aggravated murder
charge if it concluded (1) that after he broke into the home and
attacked Victim with the knife he meant only to hurt Victim and
was not trying to kill her, or (2) he broke into the home and took
possession of the knife, a dangerous weapon. See id.¶18 Therefore, under the rationale Lopez advances, he is not
being treated differently from others who commit attempted
aggravated murder on the heels of one of the other aggravating
circumstances contained in Utah Code section 76-5-202(1)(d).
Lopez’s conviction for aggravated burglary could be sustained
independently of the attempted aggravated murder charge, just
as all the other aggravating circumstances could be in different
factual scenarios, and Lopez cannot complain that he is being
treated differently from others situated similarly to him. 6 Thus,
6. In making this argument, Lopez seems to confuse his
convictions and the corresponding elements of the two crimes
for which he was convicted. Attempted aggravated murder is
not a necessary element of aggravated burglary. Rather,
aggravated burglary in this case was a necessary element to
elevate Lopez’s attempted murder charge to attempted
aggravated murder. Compare Utah Code Ann. § 76-5-202(1)(d)
(LexisNexis Supp. 2019) (stating that murder is elevated to
aggravated murder if during the course of the murder the
defendant committed an aggravated burglary), with id.§ 76-6-203(1)(a)–(c) (2017) (stating that aggravated burglary is
committed if during the commission of a burglary the person
“causes bodily injury to any person who is not a participant in
the crime,” “uses or threatens the immediate use of a dangerous
weapon against any person who is not a participant in the
(continued…)
20190236-CA 11 2020 UT App 101State v. Lopez
the anti-merger provision did not unconstitutionally violate
Lopez’s right to the uniform operation of laws.
B. Vagueness
¶19 Lopez argues that the anti-merger provision is
unconstitutionally vague because it does not clearly
“communicate to ordinary persons . . . that [they] would be
charged, convicted, and sentenced for [their] commission of
aggravated burglary, in addition to aggravated murder.” 7 The
vagueness doctrine encompasses two considerations. State v.
Garcia, 2017 UT 53, ¶ 56, 424 P.3d 171. “First, a criminal statute is
not unconstitutionally vague if it defines the criminal offense
(…continued)
crime,” or “possesses or attempts to use any explosive or
dangerous weapon”).
7. Lopez also argues that “it is not clear if the section applies
equally to attempted murder cases” to elevate those crimes to
attempted aggravated murder. This argument is unavailing
because “[a]ttempt crimes are derivatives of completed crimes,
and the express language of both the completed crime statute
and the attempt statute determines the elements of the attempt
crime.” State v. Casey, 2003 UT 55, ¶ 13, 82 P.3d 1106. Accord State
v. Martinez, 2019 UT App 166, ¶ 23, 452 P.3d 496, cert. granted,
462 P.3d 798 (Utah 2020). And we fail to see how this reasoning
would not also apply to those crimes and put ordinary persons
on notice that if their conduct fit within the statute, then their
attempted aggravated murder crime would not be merged with
the aggravating crime, even though they did not actually
complete the murder. Furthermore, Utah’s attempt statute
clearly informs individuals that they can be convicted as if they
completed the actual crime, even though for whatever reason
they were unable to complete it. See Utah Code Ann.
§ 76-4-101(1) (LexisNexis 2017).
20190236-CA 12 2020 UT App 101State v. Lopez
with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.” Id.(quotation simplified). And “second, when a vagueness
challenge does not involve First Amendment freedoms, this
court examines the statute only in light of the facts of the case at
hand.” Id. (quotation simplified).
¶20 Regarding the first step, we disagree with Lopez that the
statute is so unclear that an ordinary person would be unable to
understand what conduct is prohibited and that if the prohibited
conduct was undertaken, that the crimes would not merge. First,
the statute clearly states that if a person “intentionally or
knowingly causes the death of another,” and that death “was
committed incident to an act, scheme, course of conduct, or
criminal episode during which the actor committed or attempted
to commit . . . aggravated burglary,” then they would be
punished for aggravated murder. Utah Code Ann.
§ 76-5-202(1)(d) (LexisNexis Supp. 2019). Next, it states that “any
aggravating circumstance described . . . does not merge with the
crime of aggravated murder” and “a person who is convicted of
aggravated murder, based on an aggravating circumstance
described . . . that constitutes a separate offense may also be
convicted, and punished for, the separate offense.” Id.§ 76-5-202(5)(a)–(b). This language is clear because it
“specifically defines the types of [prohibited activity] and
describes the act required to violate the statute” and its
corresponding consequences, and Lopez “cannot persuasively
argue that he would not have known that [entering Victim’s
home and nearly killing her with a knife] would constitute acts
sufficient to violate the [statute].” See State v. Pence, 2018 UT App
198, ¶ 22, 437 P.3d 475.
¶21 Nor do these sections encourage arbitrary enforcement.
“The United States Supreme Court has stated that to avoid
unconstitutional vagueness, a statute must ‘establish minimal
guidelines to govern law enforcement’ such that it avoids
20190236-CA 13 2020 UT App 101State v. Lopez
entrusting ‘lawmaking to the moment-to-moment judgment of
the policeman on his beat.’” State v. Green, 2004 UT 76, ¶ 50, 99
P.3d 820 (quoting Kolender v. Lawson, 461 U.S. 352, 358, 360
(1983)). Lopez argues that because the anti-merger provision
“provides that the aggravating circumstance and the aggravated
murder do not merge,” but then “states a person ‘may also’ be
convicted of and punished for the separate offense as well as
aggravated murder,” that these discrepancies encourage
arbitrary enforcement. Lopez argues that this is because “[i]n
one jurisdiction [he] could have easily been charged with
aggravated burglary while here he is charged and convicted of
both.” Lopez is incorrect.
¶22 Lopez’s argument is unavailing because his complaint
concerns only the statute’s grant of traditional prosecutorial
discretion, not its supposed encouragement of arbitrary
enforcement. Here, the statute’s use of the term “may” grants
prosecutors the “traditional prosecutorial discretion” they have
“in determining what charges to pursue.” State v. Angilau, 2011
UT 3, ¶ 28, 245 P.3d 745 (quotation simplified). See Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978) (holding that the “decision
whether or not to prosecute, and what charge to file . . . ,
generally rests entirely in [the prosecutor’s] discretion,” so long
as it is not “based upon an unjustifiable standard such as race,
religion, or other arbitrary classification”); State v. Martinez, 2013
UT 23, ¶ 17, 304 P.3d 54 (holding that “[t]he decision to charge
aggravated murder . . . is a classic exercise of prosecutorial
discretion”). And a prosecutor’s ability to determine whether to
bring charges based on the particular facts of each case does not
amount to arbitrary enforcement. See State v. Mohi, 901 P.2d 991,
1003 (Utah 1995) (explaining that “traditional prosecutor[ial]
discretion” encompasses “selecting a charge to fit the
circumstances of a defendant and his or her alleged acts” and is
not a violation of the uniform operation of laws).
¶23 Accordingly, the complained-of language does not
encourage arbitrary enforcement. While it does grant
20190236-CA 14 2020 UT App 101State v. Lopez
prosecutors discretion in deciding to charge conduct that clearly
violates the statute, it does not leave law enforcement officials
who encounter Lopez’s circumstances free “to pursue their own
personal predilections in determining the applicability of [the]
statute.” See Green, 2004 UT 76, ¶ 51.
¶24 Therefore, Utah Code section 76-5-202 is not
unconstitutionally vague because it is straightforward and
clearly informs an individual of ordinary intelligence that if
during the commission of an aggravated burglary, he attempts
an aggravated murder, he could be charged with both crimes,
and those crimes would not merge. The statute also does not
encourage arbitrary enforcement, because it simply grants
prosecutors the traditional discretion they have to determine if
charges should be brought and, if so, which charges.
CONCLUSION
¶25 The district court did not err in declining to merge
Lopez’s convictions because the anti-merger provision in Utah
Code section 76-5-202(5) prohibited their merger. The district
court also did not err in finding that the anti-merger provision
was constitutional because the provision does not violate equal
protection or the uniform operation of laws, and it is not
unconstitutionally vague.
¶26 Affirmed.
20190236-CA 15 2020 UT App 101