State v. Rogers , 2020 UT App 78 ( 2020 )

2020 UT App 78THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DANIEL BAGLEY ROGERS,
Appellant.
Opinion
No. 20180842-CA
Filed May 21, 2020
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 171908224
Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes and Nathan H. Jack, Attorneys
for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which JUDGES JILL
M. POHLMAN and RYAN M. HARRIS concurred.
APPLEBY, Judge:
¶1 After a string of burglaries and related thefts, police
arrested Daniel Bagley Rogers and a codefendant (Codefendant).
The State charged Rogers with four counts of burglary, four
counts of theft, and one count of possession of another’s
identification documents. Of these, Rogers was charged as a
party 1 on five total counts. After a jury trial, Rogers was
1. Party liability, otherwise known as accomplice liability, is an
alternate theory of liability under which a defendant is guilty of
an offense when he acts “with both the intent that the
underlying offense be committed and the intent to aid the
(continued…)
State v. Rogers
acquitted of one count of burglary and convicted on the
remaining counts.
¶2 Rogers now appeals, arguing the district court erred
when it denied his motion to dismiss, under the due process
clause of the Utah Constitution, based on the State’s negligent
destruction of evidence. He also argues the court erred when it
denied his motion for directed verdicts because of insufficient
evidence on one count each of theft and possession of another’s
identification documents. We conclude the court did not err in
denying these motions, and accordingly affirm.
BACKGROUND 2
¶3 On June 26, 2017, police responded to a burglary call at a
house in downtown Salt Lake City, Utah, just below the state
capitol building in the Marmalade District (Marmalade Burglary
and Theft). An officer observed the front door had been “pried
and kicked open,” and was disfigured with “large pry marks”
and a shoe print, which was “visible to the naked eye.” On a
subsequent walkthrough of the house, the owners noticed a
number of items were missing from the top of a dresser in their
bedroom. Among other things, these included several pairs of
sunglasses, a pearl necklace, and a ring. After the walkthrough, a
neighbor provided the owners and an officer video footage, as
(…continued)
principal actor in the offense.” State v. Briggs, 2008 UT 75, ¶ 13,
197 P.3d 628.
2. On appeal from a jury verdict, “we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly,” presenting “conflicting evidence only as necessary
to understand issues raised on appeal.” State v. Holgate, 2000 UT
74, ¶ 2, 10 P.3d 346 (quotation simplified).
20180842-CA 2 2020 UT App 78State v. Rogers
well as a still image taken from the video, of a person who had
been recorded on the neighbor’s doorbell security camera earlier
that day. Based on the behavior seen in the video, the officer
suspected the individual was involved in the burglary. At trial,
the neighbor identified Rogers as the person in the video and in
the still image. An expert in footwear comparison also testified
that the shoe print on the front door was the same size and had
the same sole pattern as a pair of Rogers’s shoes.
¶4 On June 30, 2017, a nurse returned to her apartment in
central Salt Lake City (Central City Burglary and Theft). She
entered through the locked back door and did not notice
anything unusual for a number of minutes until she walked by
the front door. The front door was “closed but it just didn’t look
right.” The door frame was “splintered,” “broken on the inside, .
. . right down to the brickwork,” and the door had multiple
dents on the edge. After concluding “someone had kicked in
[her] front door,” the nurse went outside to look around. She
saw two police officers working on an unrelated assignment and
after explaining her suspicion that someone had broken down
her front door the officers agreed to take a look. One officer
observed “pry marks . . . along the door jam,” which he
attributed to “some kind of pry tool.”
¶5 Although on the night of the break-in the nurse did not
notice anything had been taken, over the next couple of days she
realized several things were missing. These included three
identification cards, two checkbooks, and a distinctive ring with
a Celtic knot design that she had purchased on a trip to Scotland
with her late husband.
¶6 On July 3, 2017, a grandmother went inside her house
after spending the day weeding in her backyard (Arlington Hills
Burglary and Theft). After lying down on her bed to take a nap,
she awakened to “a clinking noise” caused by “a man standing
in front of [her] dresser . . . messing around with [her] jewelry.”
20180842-CA 3 2020 UT App 78State v. Rogers
The man was Caucasian, clean shaven, and wearing a red long-
sleeved shirt, light colored baggy sweatpants, and a dark
baseball cap turned backward. After the grandmother observed
the man for about thirty seconds, he ran from the house, jumped
into the passenger’s side of a car, and left.
¶7 An inventory of the grandmother’s jewelry revealed that
several items were missing, including a diamond engagement
ring, a sapphire wedding band, a gold anniversary band, a gold
and diamond watch, a blue topaz and diamond ring, a silver
ring with an amber stone, a silver ring with the Greek alphabet,
a silver and turquoise ring, and another watch.
¶8 Also on July 3, 2017, a retiree returned to her house in the
Capitol Hill area of Salt Lake City after running errands and
discovered her front door frame was “all over [the] floor” inside
the house (Capitol Hill Burglary and Theft). A cursory search
revealed that a computer tablet was missing. The retiree called
the police, and the responding officer observed that the front
door “looked like it had been pried open with some sort of a
crowbar.” The retiree and the officer proceeded to track the
stolen tablet by using a locator program that had been installed
on another computer.
¶9 The locator program pointed police to a fast food
restaurant in South Salt Lake. The officer contacted South Salt
Lake’s dispatch and requested that officers be sent to the scene to
search for the individual in possession of the stolen tablet. The
suspect was described as “a white male, tall, bald wearing a red
long-sleeved shirt.”
¶10 A South Salt Lake officer (Officer) responded to the call.
After circling the restaurant parking lot and surrounding
neighborhood, Officer returned to the parking lot where he saw
Rogers, who matched the description of the suspect given to him
by the dispatcher, standing next to the driver’s side of a vehicle.
As Officer approached the vehicle, Rogers began to walk toward
20180842-CA 4 2020 UT App 78State v. Rogers
the restaurant and the driver of the vehicle—Codefendant—
whom Officer also recognized, quickly followed. Officer turned
on his lights and Rogers stopped but Codefendant ran; Officer
was unable to stop him. Officer exited his vehicle, and as he
approached Rogers, he noticed that Rogers was wearing
multiple rings on his fingers, including one with a “Celtic knot
band.”
¶11 Officer eventually searched the vehicle beside which
Rogers had been standing and from which Codefendant had
fled. There was a “very large amount of property in the car,”
including a crowbar and “six to eight” backpacks full of various
items. Among other things, the backpacks contained laptops,
checkbooks, jewelry, and identification cards. Some of this
property—including the identification cards—belonged to the
nurse and had been taken during the Central City Burglary and
Theft. The computer tablet belonging to the retiree that the
police had been tracking also was in a backpack. Additionally,
the backpacks contained various pieces of mail, some addressed
to Rogers and some addressed to Codefendant.
¶12 As part of his investigation, Officer removed each piece of
property from the vehicle and “spread [it] out” on the hood of
his car and photographed it. For the property he was able to
identify, Officer invited the victims to come to the restaurant
parking lot where he “immediately returned” the property to
them. The rest of the property was thrown back into the vehicle
at random. Later, as Officer was impounding the car, he used his
body camera to inventory the property that remained in the car.
As the result of an administrative oversight, the body camera
footage of the inventory was retained only for 180 days and
erased prior to trial. Officer did not make a complete written
inventory of the items he found in the vehicle.
¶13 The State charged Rogers with ten counts, one of which
was later dismissed. Of the nine remaining, Rogers was charged
20180842-CA 5 2020 UT App 78State v. Rogers
with four counts of second-degree felony burglary, one count of
second-degree felony theft, three counts of class-A misdemeanor
theft, and one class-A misdemeanor count for possession of
another’s identification documents (Identification Possession
Charge). Rogers was charged as a party for the Arlington Hills
Burglary and Theft, the Capitol Hill Burglary and Theft, and the
Identification Possession Charge stemming from the Central City
break-in.
¶14 At trial, the State called the grandmother to testify about
the value of the diamond engagement ring and the sapphire
wedding band stolen in the Arlington Hills Burglary and Theft.
She explained that the rings had been appraised for insurance
purposes, and their combined appraisal value was $12,500.
Rogers objected to this testimony, arguing that the grandmother
was “relying on hearsay information from appraisers to ascribe
value.” The district court sustained the objection and instructed
the jury to “disregard those figures” and “not to consider” that
testimony as evidence of the value of the rings. Later, on
redirect, the State asked again about the insurance policy. After
“not[ing]” another objection by Rogers, the court stated, “I will
direct the jury to consider that this insurance policy amount is
not to be considered as an accurate value of the jewelry, only
that they insured their jewelry for that amount, whether it’s
accurate as to the real value is not to be determined by that.”
¶15 Officer also testified for the State. After eliciting testimony
from Officer that the body camera footage of the inventory of
Codefendant’s vehicle had been lost, Rogers moved to dismiss
the case based on Officer’s “bad faith destruction of evidence.”
The district court denied the motion, concluding the footage had
been lost “simply because [Officer] didn’t know . . . that it would
disappear” and that the loss was not “intentional.”
¶16 After the close of the State’s case, Rogers moved for
directed verdicts on all charges. The district court denied the
20180842-CA 6 2020 UT App 78State v. Rogers
motion, and the jury convicted Rogers on eight counts but
acquitted him of the Central City Burglary. Rogers timely
appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Rogers first argues the district court erred in denying his
motion to dismiss all charges, under the due process clause of
the Utah Constitution, based on the State’s negligent destruction
of potentially exculpatory evidence. “Whether the State’s
destruction of potentially exculpatory evidence violates due
process is a question of law that we review for correctness,
though we incorporate a clearly erroneous standard for the
necessary subsidiary factual determinations.” State v. DeJesus,
2017 UT 22, ¶ 18, 395 P.3d 111 (quotation simplified).
¶18 Rogers next argues the district court erred when it
denied his motion for directed verdicts on the Arlington Hills
Theft and the Identification Possession Charge, arguing that
the evidence was insufficient to sustain either conviction. “We
review district court rulings on motions for directed verdict
for correctness.” State v. Escobar-Florez, 2019 UT App 135, ¶ 25,
450 P.3d 98.
ANALYSIS
I. The District Court’s Denial of Rogers’s Motion to Dismiss
¶19 Rogers first argues the district court erred in denying his
motion to dismiss, under the due process clause of the Utah
Constitution, based on the State’s negligent destruction of
evidence. The State asserts that Rogers failed to preserve this
issue for our review; Rogers contends he preserved this issue
“when he moved for dismissal, under the Utah Constitution, on
the basis that the State had destroyed evidence that was
20180842-CA 7 2020 UT App 78State v. Rogers
reasonably likely to be exculpatory.” Accordingly, we begin by
determining whether Rogers properly preserved this issue.
A. Preservation
¶20 Appellate courts “generally will not consider an issue
unless it has been preserved for appeal.” Patterson v. Patterson,
2011 UT 68, ¶ 12, 266 P.3d 828. “An issue is preserved for appeal
when it has been presented to the district court in such a way
that the court has an opportunity to rule on it.” State v. Johnson,
2017 UT 76, ¶ 15, 416 P.3d 443 (quotation simplified). “To
provide the court with this opportunity, the issue must be
specifically raised by the party asserting error, in a timely
manner, and must be supported by evidence and relevant legal
authority.” Id. (quotation simplified). “This requirement puts the
trial judge on notice of the asserted error and allows for
correction at that time in the course of the proceeding.” Salt Lake
City v. Josephson, 2019 UT 6, ¶ 12, 435 P.3d 255 (quotation
simplified).
¶21 The State argues that Rogers failed to preserve the due
process claim he raises on appeal. It acknowledges that Rogers
asked the district court to dismiss the case based upon
“[Officer’s] bad faith destruction of evidence,” but contends the
bad faith claim Rogers raised below is “distinct from the
analysis” of due process under the Utah Constitution that he
argues here. The State reasons that “bad faith is ‘only one
consideration’ of due process under the Utah Constitution,” and
Rogers failed to cite State v. Tiedemann, 2007 UT 49, 162 P.3d
1106, the seminal Utah case addressing due process violations
arising from the negligent destruction of evidence. While we do
not disagree with the State on either point, we nevertheless
conclude that the issue was adequately preserved.
¶22 At trial, Rogers moved to dismiss on the ground that
Officer had engaged in “bad faith destruction of evidence” by
failing to preserve the body camera footage documenting the
20180842-CA 8 2020 UT App 78State v. Rogers
inventory of the vehicle from which the stolen property was
recovered. In support of his motion, Rogers cited California v.
Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S.
51 (1988), two cases in which the United States Supreme Court
grappled with the requirements imposed by the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution on law enforcement officials handling potentially
exculpatory evidence. But Rogers also argued that the district
court should dismiss the case under the Utah Constitution,
noting that “the court can interpret the Utah Constitution
differently [from the federal constitution]” and reasoning that
under the Utah Constitution, “extreme indifference to the
preservation of potentially exculpatory evidence should be
inferred to be bad faith.”
¶23 Although it is true that Rogers did not cite Tiedemann
to the district court, it is also true that the court cut off
defense counsel before he had completed his argument on
the state constitutional issue. Defense counsel argued that the
court should infer “bad faith under the Utah Constitution”
owing to law enforcement’s “extreme indifference to the
preservation of potentially exculpatory evidence” and “this case
should be dismissed for—.” At this point, the district court
interrupted counsel and announced it was denying the motion
to dismiss.
¶24 But defense counsel did not give up. He asked the court
whether he could “have a ruling just for completeness of the
record on [his] objection under the state constitution[.]” And the
court’s ruling was consistent with the analysis contemplated
under Tiedemann, even though defense counsel did not
specifically cite that case. It stated,
[My ruling applies to both the federal and state
constitutional arguments] because there was no
intent to destroy. There may have been some
20180842-CA 9 2020 UT App 78State v. Rogers
negligence and it doesn’t rise to the level that this
case should be dismissed for losing evidence. It’s
just not part of it. There’s no factual basis for it.
In short, the district court found that there “may have been some
negligence” on the part of law enforcement, implicitly balanced
that negligence against the evidence that had been presented,
and then concluded that dismissal was not warranted under the
circumstances. Defense counsel’s due process argument could
have been more complete, but the district court denied counsel’s
motion before he had finished his argument, leaving us to
wonder what counsel would have argued had he been given the
opportunity. Further, the court appeared to apply a Tiedemann
analysis, and thus the issue was “presented to the district court
in such a way that the court ha[d] an opportunity to rule on it.”
See Johnson, 2017 UT 76, ¶ 15 (quotation simplified). 3
3. In arguing that Rogers did not adequately preserve the issue,
the State relies on Salt Lake City v. Josephson, 2019 UT 6, 435 P.3d
255. But the unique circumstances in Josephson are absent here.
At issue in Josephson was whether a statutory double jeopardy
argument had been preserved when only a constitutional double
jeopardy theory had been raised below. Because defense counsel
had not raised the statutory claim, the evidence material to that
claim was not in the record, and the resultant “factual
deficiency” hampered appellate review. Id. ¶ 20. There is no
similar “factual deficiency” here. The facts surrounding the
State’s responsibility for the lost body camera footage and the
potential prejudice to Rogers were fully developed at trial. The
district court was cognizant of these facts when it denied the
motion to dismiss. Under these circumstances, it would be unfair
to preclude consideration of the state constitutional claim where
the district court prevented defense counsel from fully
developing his argument on that claim.
20180842-CA 10 2020 UT App 78State v. Rogers
B. Tiedemann Analysis
¶25 Having concluded the issue is preserved, we now turn to
its merits. The Utah Constitution’s due process clause “requires
the State to preserve exculpatory evidence from loss or
destruction.” State v. DeJesus, 2017 UT 22, ¶ 30, 395 P.3d 111; see
Utah Const. art. I, § 7. In State v. Tiedemann, 2007 UT 49, 162 P.3d
1106, our supreme court articulated a two-part analysis courts
must use when determining whether the loss or destruction of
evidence constitutes a due process violation.
¶26 This analysis comprises a threshold requirement followed
by a balancing test. “First, the defendant must demonstrate a
reasonable probability that the lost evidence would have been
exculpatory . . . .” DeJesus, 2017 UT 22, ¶ 27. Once this threshold
is satisfied, “the court must balance the culpability of the State
and the prejudice to the defendant in order to gauge the
seriousness of the due process violation and to determine an
appropriate remedy.” Id.
1. Threshold Showing
¶27 The first step in the analysis is to determine whether
Rogers has satisfied the threshold requirement by demonstrating
“a reasonable probability that the lost evidence would
have been exculpatory.” Id. A “reasonable probability” is “a
probability sufficient to undermine confidence in the outcome”
of the case. Id. ¶ 39 (quotation simplified). “It is above a mere
possibility, though it may fall substantially short of the more
probable than not standard.” State v. Mohamud, 2017 UT 23, ¶ 20,
395 P.3d 133 (quotation simplified). Although the bar to satisfy
this threshold is low and can be met by the defendant’s “proffer
as to the lost evidence and its claimed benefit,” the proffer
cannot be based on “pure speculation or wholly incredible.”
DeJesus, 2017 UT 22, ¶ 39; see also State v. Steele, 2019 UT App 71,
¶ 15, 442 P.3d 1204.
20180842-CA 11 2020 UT App 78State v. Rogers
¶28 The lost evidence at issue here is Officer’s body camera
footage documenting his inventory of the vehicle that
Codefendant was driving at the time Rogers and Codefendant
were approached by law enforcement. There is no dispute that
the recording was made, and that it would have shown what
remained in the vehicle at the time it was impounded. Rogers
asserts that he has satisfied the threshold requirement because
the missing footage likely would implicate Codefendant in the
burglaries and therefore likely would be exculpatory as to him.
The State responds that Rogers’s assertion is not only
speculative, but improbable. It observes that the footage was not
taken until after the stolen items were removed from and then
returned to the vehicle. By that time, some of the items had been
returned to their owners, and when the remaining items were
returned to the vehicle, they were not placed in their original
locations or containers.
¶29 The district court did not explicitly address whether
Rogers satisfied the threshold requirement. We similarly need
not decide the issue here because it is not outcome
determinative. Even assuming for argument’s sake that Rogers
satisfied the threshold requirement, his claim nevertheless fails
under the second step of the Tiedemann analysis. We therefore
turn to that analysis now.
2. Balancing Test
¶30 The second step of the Tiedemann analysis consists of a
balancing test in which we consider
(1) the reason for the destruction or loss of the
evidence, including the degree of negligence or
culpability on the part of the State; and (2) the
degree of prejudice to the defendant in light of the
materiality and importance of the missing evidence
in the context of the case as a whole, including the
strength of the remaining evidence.
20180842-CA 12 2020 UT App 78State v. Rogers
Tiedemann, 2007 UT 49, ¶ 44.
¶31 The facts surrounding the loss of the body camera footage
are not in dispute and are consistent with the district court’s
finding that the loss of the footage was not “intentional” in any
way. Officer was unaware that such footage was routinely
deleted after 180 days. Thus, he “didn’t know that it would
disappear.” In short, although there was “some negligence” on
the State’s part, it was the result of an administrative oversight
rather than an intentional failure to preserve the particular
footage at issue. Consequently, the State’s culpability was slight.
¶32 Because the touchstone for the balancing process is
“fundamental fairness,” where there is no intentional
wrongdoing on the State’s part, there must be a higher showing
of prejudice. Id. ¶ 45. Rogers has failed to meet that burden.
¶33 Rogers contends the body camera footage was
exculpatory because it may have revealed that some of the stolen
property was found in the same backpack containing mail
addressed to Codefendant. But that contention is belied by the
trial testimony. And, even assuming for purposes of this
argument that some of the stolen property was found in
Codefendant’s backpack, Rogers fails to establish the
significance of that fact considering the other evidence presented
at trial and considering that Rogers was charged as a party on
many of the counts.
¶34 First, the trial testimony does not support Rogers’s
contention that the body camera footage would have shown that
some of the stolen property was found in Codefendant’s
backpack. The footage did not record Officer’s initial search of
Codefendant’s vehicle. Rather, the inventory on the missing
footage was conducted after Officer had removed the backpacks
from the car, emptied each, spread their contents on the hood of
Officer’s patrol car, photographed the stolen property, returned
identifiable items to the victims, and then haphazardly returned
20180842-CA 13 2020 UT App 78State v. Rogers
the remaining property back to the car. Indeed, Officer testified
that by the time he started recording the inventory on his body
camera, he had “tor[n] the car apart” and “thr[own] everything
back in.”
¶35 Even Rogers seems to acknowledge the dubious nature of
his claim by arguing that “the possibility exists that property
and other items found inside each backpack were returned to the
same backpack.” The fact that something is “possible” does not
make it probable. And because the missing body camera footage
likely would not have disclosed the original location of the
property, the balancing test does not come out in Rogers’s favor.
¶36 Moreover, even were we to assume that the missing body
camera footage showed the stolen property in Codefendant’s
backpack, Rogers fails to explain how that fact would have been
exculpatory considering the full evidentiary picture. Rogers
asserts that the footage may have shown that (1) the computer
tablet from the Capitol Hill Burglary and Theft was found in a
backpack with Codefendant’s mail; (2) the grandmother’s
sapphire ring from the Arlington Hills Burglary and Theft also
may have been found in a backpack with Codefendant’s mail or
other property linking it to Codefendant; (3) property from the
Central City Burglary and Theft, including checkbooks, laptops,
and identification cards, may have been found with
Codefendant’s mail or were intermingled with items or other
property linking them to Codefendant, rather than Rogers; and
(4) property from the Marmalade Burglary and Theft may have
been “intermingled with the plethora of property” found in
Codefendant’s car. But Rogers does not explain why any of these
facts would have made a material difference, other than to
generally speculate that they might have caused the jury to
acquit him.
¶37 The evidentiary picture as a whole does not support
Rogers’s claim that the placement of the stolen property in any
20180842-CA 14 2020 UT App 78State v. Rogers
particular backpack would have been exculpatory. Stolen
property from each of the charged burglaries and thefts was
found in the vehicle in which Rogers and Codefendant
apparently were traveling. All the burglaries were similar in
that they involved the use of a pry tool that enabled the
perpetrator to enter the houses. And testimony from the
victim of the Arlington Hills Burglary and Theft established
that the perpetrator was not acting alone; she witnessed
him leave her house and get into the passenger’s seat of a
getaway vehicle.
¶38 In addition, there was other evidence specifically
identifying Rogers as a perpetrator in the burglaries. A shoe
print matching Rogers’s shoe was on the front door of the
Marmalade Burglary house and a neighbor positively identified
Rogers as the individual who appeared on security footage. The
other burglaries involved the same pattern of a pry tool being
used to open a door, followed by a broken door frame caused by
kicking in the door. More importantly, the missing body camera
footage could not have provided any potentially exculpatory
evidence with respect to the Capitol Hill Burglary because
Officer had already returned the computer tablet to the victim in
that burglary before using his body camera to record the
inventory of the remaining stolen property. Thus, the footage
could not have shed any light on the location of the computer
tablet. 4
4. Rogers suggests that the evidence against him was weaker on
the Capitol Hill Burglary than on the Central City Burglary of
which he was acquitted. He then argues that the missing body
camera footage may have caused the jury to acquit him on that
charge as well. But Rogers fails to explain how this could be so
since the footage could not have shed any light on the location of
the computer tablet stolen in the Capitol Hill Burglary.
20180842-CA 15 2020 UT App 78State v. Rogers
¶39 Rogers similarly fails to explain how the body camera
footage would have provided exculpatory evidence on the four
theft charges. As previously discussed, ample other evidence
supported Rogers’s convictions on the burglary charges; this
same evidence supported his conviction on the theft charges.
And there was unrebutted evidence linking Rogers to the
Central City Theft. Indeed, at the time he encountered Officer,
Rogers was wearing the Celtic knot ring stolen during that
burglary.
¶40 Tiedemann’s second step requires us to balance the
negligence of the State in the loss of the evidence against the
degree of prejudice to the defendant considering the materiality
and importance of the missing evidence in the context of the
entire evidentiary picture. Tiedemann, 2007 UT 49, ¶ 44. Here, the
loss of the missing body camera footage was not intentional; any
culpability on the part of law enforcement was slight. And it is
unlikely that the missing footage would have provided any
evidence as to the location of the stolen property within the
vehicle. Thus, there is little, if any, potential prejudice to Rogers.
Even assuming for argument’s sake that the lost footage may
have provided some information as to the location of the stolen
property, when considered in the context of the entire
evidentiary picture, its materiality is negligible, if not non-
existent. After balancing the highly questionable materiality of
the missing footage against the relatively benign negligence of
the State, we affirm the district court’s conclusion that dismissal
was not warranted under the circumstances.
II. The District Court’s Denial of Rogers’s
Motion for Directed Verdicts
¶41 Rogers next argues the district court erred when it denied
his motion for directed verdicts on the Arlington Hills Theft and
the Identification Possession Charge because the evidence was
insufficient to sustain either conviction. When reviewing a
20180842-CA 16 2020 UT App 78State v. Rogers
challenge to a district court’s denial of a motion for a directed
verdict based on a claim of insufficiency of the evidence, “we
will uphold the [district] 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. Montoya, 2004 UT 5, ¶ 29, 84
P.3d 1183 (quotation simplified). In so doing, we do not “weigh
the evidence.” Id. ¶ 32 (quotation simplified). Instead, our role is
to determine whether, viewing the evidence in the light most
favorable to the State, “the State has produced believable
evidence on each element of the crime.” Id. ¶¶ 29, 32 (quotation
simplified).
A. Arlington Hills Theft
¶42 Rogers contends the evidence is insufficient to support his
conviction for the Arlington Hills Theft “because the State
presented no competent evidence by which the jury could
determine value, an element of the offense.” The State charged
Rogers with a second-degree felony for the Arlington Hills Theft
based on the notion that the value of the stolen jewelry “is or
exceeds $5,000.” See Utah Code Ann. § 76-6-412(1)(a)(i)
(LexisNexis 2012) (“Theft of property . . . is punishable as a
second degree felony if the value of the property . . . is or
exceeds $5,000.”). Accordingly, to obtain a conviction on this
count, the State was not required to prove the jewelry’s precise
value, but was required to prove that its value met or exceeded
$5,000.
¶43 The State put forth at least “some evidence” from which
the jury could find beyond a reasonable doubt that the value of
the jewelry exceeded $5,000. See Montoya, 2004 UT 5, ¶ 29
(quotation simplified). At trial, it called the grandmother to
testify as to the value of the stolen jewelry. She testified that
some years before trial, an insurance company appraised the
20180842-CA 17 2020 UT App 78State v. Rogers
diamond engagement ring at $10,300 and the sapphire wedding
band at $2,200. Based on their appraised values, the
grandmother had obtained a $12,500 insurance policy to cover
both rings.
¶44 Rogers objected to the grandmother’s testimony on
multiple grounds, prompting the district court to instruct the
jury that the “insurance policy amount is not to be considered as
an accurate value of the jewelry, only that they insured their
jewelry for that amount, whether it’s accurate as to the real value
is not to be determined by that.”
¶45 Rogers argues the insurance value of the jewelry, which
was “the only evidence regarding value,” is insufficient to
establish value because the district court specifically instructed
the jury that the insurance policy was not “an accurate value of
the jewelry.” But this argument is misplaced. The jury was not
responsible for determining the jewelry’s exact value. Rather, it
was tasked with determining whether the value satisfied the
statutory requirement in that its value met or exceeded $5,000.
Thus, the amount of the insurance policy, although insufficient
for establishing exact value, is sufficient for our purpose here as
it constitutes “some evidence” from which the jury could find
that the value exceeded $5,000. See id. (quotation simplified).
Accordingly, the district court did not err in denying Rogers’s
directed verdict motion on this point. 5
5. Rogers advances two other arguments on this point, both of
which are unavailing. First, he asserts insurance value does not
establish fair market value. But like the Utah statute under
which Rogers was convicted, most theft statutes do not require
that the jury determine the fair market value of the stolen
property. Rather, they require only a finding that the value of the
stolen property exceeded a specified threshold. Sister states that
(continued…)
20180842-CA 18 2020 UT App 78State v. Rogers
B. Identification Possession Charge
¶46 Rogers also contends there was insufficient evidence to
support his conviction for the Identification Possession Charge.
Rogers was charged, under an accomplice-liability theory, for
the unlawful possession of another’s identification documents in
violation of Utah Code section 76-6-1105(2)(a). “To show that a
defendant is guilty under accomplice liability, the State must
show that an individual acted with both the intent that the
underlying offense be committed and the intent to aid the
principal actor in the offense.” State v. Briggs, 2008 UT 75, ¶ 13,
(…continued)
have addressed the admissibility of insurance appraisals or
insured value in this context have recognized that they provide
“legally sufficient evidence of value” for theft. Lieber v. State, 483
S.W.3d 175, 179 (Tex. Ct. App. 2015); see also, e.g., Mims v. State,
823 S.E.2d 325, 330–31 (Ga. 2019) (finding insurance payout
constituted sufficient evidence of value in a theft case).
Second, Rogers asserts the insurance appraisal was not
current. Citing State v. Lyman, 966 P.2d 278, 282 (Utah Ct. App.
1998), he argues that even if the appraisal accurately reflected
fair market value on the date it was prepared, it did not
necessarily reflect fair market value at the time of the theft. But
Lyman is distinguishable. At issue in Lyman was the value of a
stolen VCR and surveillance equipment, highly depreciable
property for which the original purchase price was barely above
the statutory threshold for a felony. Id. at 280, 283–84. In contrast
here, the appraised insurance value of the jewelry was more than
double the amount required for a second-degree felony charge
and nearly ten times the amount required for a third-degree
felony. And unlike technology, the value of jewelry “typically
do[es] not depreciate.” See Michael J. Graetz, Implementing A
Progressive Consumption Tax, 92 Harv. L. Rev. 1575, 1617 (1979).
20180842-CA 19 2020 UT App 78State v. Rogers
197 P.3d 628; see also Utah Code Ann. § 76-2-202 (LexisNexis
2016).
¶47 The State argues that we cannot consider this
insufficiency claim because Rogers failed to raise it in the district
court. As discussed above, absent a valid exception we will not
consider an issue on appeal unless the defendant has preserved
it below by lodging “a timely and specific objection.” State v.
Winfield, 2006 UT 4, ¶ 27, 128 P.3d 1171 (quotation simplified).
“[W]here a motion for a directed verdict makes general
assertions but fails to assert the specific argument raised on
appeal, the directed verdict motion itself is insufficient to
preserve the more specific argument for appeal.” State v. Bosquez,
2012 UT App 89, ¶ 8, 275 P.3d 1032. Such specificity is necessary
to allow the district court “to assess allegations by isolating
relevant facts and considering them in the context of the specific
legal doctrine placed at issue.” Winfield, 2006 UT 4, ¶ 27
(quotation simplified).
¶48 Rogers contends he preserved this claim when he
“timely, and specifically” moved for a directed verdict on
the Identification Possession Charge, arguing that the
documents “were in [Codefendant’s] car along with
[Codefendant’s] mail and [Rogers] [wa]s not placed in that
vehicle.” We disagree.
¶49 The sole focus of Rogers’s directed verdict motion was
whether there was sufficient evidence to establish that he
possessed the identification documents—a theory of principal
liability. But his claim on appeal is different. Rogers was charged
as an accomplice and now argues the evidence was insufficient
to show accomplice liability. To establish accomplice liability, the
State would have to show he acted with “both the intent that the
underlying offense be committed and the intent to aid the
principal actor in the offense.” See Briggs, 2008 UT 75, ¶ 13
(emphasis added); see also Utah Code Ann. § 76-2-202. This
20180842-CA 20 2020 UT App 78State v. Rogers
argument requires we conduct an analysis “distinct from the
analysis” that the district court engaged in when it ruled on
Rogers’s motion. See Salt Lake City v. Josephson, 2019 UT 6, ¶ 13,
435 P.3d 255. The district court was required only to consider
whether Rogers possessed the identification documents. It was
not asked to determine the question of Rogers’s intent. We
accordingly conclude that Rogers’s directed verdict motion did
not preserve the claim he now raises.
¶50 Although this claim is not preserved, Rogers asks that we
review it under the ineffective assistance of counsel exception to
our general preservation rule. See State v. Johnson, 2017 UT 76,
¶¶ 19, 22, 416 P.3d 443. To succeed on an ineffective assistance
claim, Rogers must demonstrate that his defense counsel
performed deficiently and that counsel’s deficient performance
prejudiced him. See Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.
“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Rogers’s] claim[] under either prong.” See id.¶51 Rogers argues that his defense counsel was ineffective
by failing to argue in his motion for a directed verdict that
the evidence was insufficient based on both a theory of
accomplice liability and a theory of principal liability. But even
if one assumes, for purposes of this argument, that counsel
should have raised both arguments, failure to do so was not
prejudicial.
¶52 To establish prejudice, Rogers “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). Here, there was
strong evidence from which the jury could find beyond a
reasonable doubt that Rogers had the requisite intent to be found
guilty as an accomplice for unlawful possession of the
identification documents. See Utah Code Ann. § 76-6-1105(2)(a).
20180842-CA 21 2020 UT App 78State v. Rogers
It was undisputed that the identification documents at issue
were stolen from the nurse’s residence along with other
possessions, including laptops, checkbooks, and a Celtic knot
ring. Officer testified at trial that Rogers was wearing the nurse’s
Celtic knot ring at the time of his arrest and, in addition to the
nurse’s identification documents, “a number of [her] things,”
including laptops and checkbooks, were recovered from
Codefendant’s vehicle.
¶53 “The criminal intent of a party may be inferred from
circumstances such as presence, companionship, and conduct
before and after the offense.” Briggs, 2008 UT 75, ¶ 13 (quotation
simplified). Rogers’s conduct at the time of his arrest coupled
with the property recovered from Codefendant’s car support
an inference that he was guilty as an accomplice for possessing
the identification documents. Officer testified that when he
first spotted Rogers in the parking lot, Rogers was standing
next to the driver’s side window of Codefendant’s vehicle. As
Officer approached, Rogers communicated with Codefendant,
who was sitting inside the car, and the two then attempted
to flee. A crowbar—the same type of tool used to break in
the nurse’s front door—was found on the front seat of
Codefendant’s car and the nurse’s identification documents
and other stolen possessions were recovered from that
same vehicle. These facts, when combined with the undisputed
fact that Rogers was wearing the nurse’s Celtic knot ring at
the time of his arrest, are sufficient to support the inference
that he had both the intent that the underlying offense be
committed and the intent to aid Codefendant in the commission
of that offense.
¶54 Because there is no reasonable probability that the
outcome would have been different had counsel included both
arguments in his motion for a directed verdict, Rogers has not
established prejudice. Accordingly, his claim fails.
20180842-CA 22 2020 UT App 78State v. Rogers
CONCLUSION
¶55 Rogers preserved his claim that the district court erred in
denying his motion to dismiss, under the due process clause of
the Utah Constitution, based on the State’s negligent destruction
of evidence, but this claim fails on the merits. After balancing the
highly questionable materiality of the missing evidence against
the relatively benign negligence of the State, we affirm the
district court’s conclusion that dismissal was not warranted. We
also affirm the district court’s denial of Rogers’s motion for a
directed verdict on the Arlington Hills Theft charge and
conclude that defense counsel was not ineffective for failing to
argue an additional theory of liability in his motion for a
directed verdict on the Identification Possession Charge.
¶56 Affirmed.
20180842-CA 23 2020 UT App 78