State v. Gibson

2013 UT App 243_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JEREMY ANDREW GIBSON,
Defendant and Appellant.
Memorandum Decision
No. 20120129‐CA
Filed October 10, 2013
Third District, West Jordan Department
The Honorable Bruce C. Lubeck
No. 101400787
Joanna E. Landau and Matthew A. Barraza,
Attorneys for Appellant
John E. Swallow and Kris C. Leonard, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
J. FREDERIC VOROS JR. concurred.1
BENCH, Senior Judge:
¶1 Jeremy Andrew Gibson appeals from his convictions for one
count of theft by deception and one count of theft by receiving
stolen property, both third degree felonies. See generally Utah Code
Ann. § 76‐6‐405 (LexisNexis 2012) (defining theft by deception); id.§ 76‐6‐408 (Supp. 2013) (defining theft by receiving stolen
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11‐201(6).
State v. Gibson
property); id. § 76‐6‐412 (setting penalties for theft offenses). We
affirm.
¶2 Both of Gibson’s convictions arise from the 2009 theft of a
wedding ring belonging to Gibson’s mother‐in‐law (Victim). On
appeal, Gibson argues only that his convictions should be reversed
because the evidence presented at trial was insufficient to prove
beyond a reasonable doubt that he pawned Victim’s ring.2 In
reviewing an insufficiency of evidence claim, we view “the
evidence and all inferences which may reasonably be drawn from
it in the light most favorable to the verdict of the jury.” State v.
Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94. “We reverse a jury verdict
only when the evidence, so viewed, is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.” State v. Hamilton, 2003
UT 22, ¶ 18, 70 P.3d 111 (citation and internal quotation marks
omitted).
¶3 Victim testified for the State at Gibson’s trial, as did an
employee of Big Dog Pawn, the investigating detective, and
Victim’s ex‐husband. Through their testimony, the State presented
evidence that Gibson and his wife—Victim’s daughter—lived in
Victim’s home during parts of 2009 and 2010 and that even when
they were not living there, they had access to the house by way of
2. Gibson concedes that he failed to preserve his argument in the
district court and asks us to review the sufficiency of the evidence
under the plain error doctrine. See State v. Dunn, 850 P.2d 1201,
1208 (Utah 1993) (“[T]o establish the existence of plain error and to
obtain appellate relief from an alleged error that was not properly
objected to, the appellant must show . . . (i) [a]n error exists; (ii) the
error should have been obvious to the trial court; and (iii) the error
is harmful.”). We resolve Gibson’s plain error argument under the
first prong of the plain error test by evaluating whether the district
court erred in not dismissing the case for insufficient evidence.
20120129‐CA 2 2013 UT App 243State v. Gibson
a garage code. In December 2009, Victim discovered that several
items of her jewelry, including her wedding ring, were missing
from the house. After she reported the jewelry missing, police
conducted a “pawn check”on Gibson and told Victim that Gibson
had pawned several items at Big Dog Pawn. Victim went to Big
Dog Pawn and located her wedding ring in a display case of items
for sale. The pawn ticket for the ring indicated that Gibson had sold
it outright to Big Dog Pawn on August 3, 2009. The State also
presented physical evidence, including the recovered ring itself,
photographs of Victim wearing the ring, and the pawn ticket
bearing Gibson’s signature and thumbprint.3
¶4 This is ample evidence from which the jury could
reasonably have found that Gibson pawned Victim’s wedding ring,
and it is therefore adequate to defeat Gibson’s sufficiency of the
evidence argument. See State v. Mills, 2012 UT App 367, ¶ 40, 293
P.3d 1129 (“We will affirm a jury’s verdict against a sufficiency of
the evidence challenge ‘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.’” (alteration in original) (quoting Hamilton, 2003 UT 22,
¶ 41)). Nevertheless, Gibson argues that the case should not have
been submitted to the jury due to insufficient physical evidence
and unreliable witness testimony. We disagree.
¶5 As to the physical evidence, Gibson argues that the pawn
ticket contained only a generic description of the pawned items and
that the State’s photographs of Victim’s wedding ring were too
grainy and unfocused to allow for a positive identification. Gibson
argues that, in light of these deficiencies in the physical evidence,
the State failed to prove that the ring presented by the State at trial
3. Gibson’s wife testified for the defense that the rings Gibson
pawned in August 2009 were actually the Gibsons’ own wedding
rings.
20120129‐CA 3 2013 UT App 243State v. Gibson
“was actually the ring that belonged to [Victim] or the ring Gibson
pawned in August, 2009.” However, both Victim and her ex‐
husband testified that the ring recovered from Big Dog Pawn and
presented at trial was Victim’s wedding ring. The photographic
evidence was not inconsistent with this testimony, and we agree
with the State that the evidentiary value of the pawn ticket was not
to establish that the ring belonged to Victim but rather to establish
that it was Gibson who had pawned the ring. For these reasons, we
reject Gibson’s argument that there was insufficient physical
evidence to support his convictions.
¶6 Gibson also argues that Victim’s testimony should be
disregarded as inherently improbable. See generally State v. Robbins,
2009 UT 23, ¶ 16, 210 P.3d 288 (“Though the court must ordinarily
accept the jury’s determination of witness credibility, when the
witness’s testimony is inherently improbable, the court may choose
to disregard it.”). Specifically, Gibson argues that despite Victim’s
identification of the recovered ring as her wedding ring, her
description of her wedding ring as “gold, [with] a center diamond,
a round diamond with three diamonds on either side” was too
generic to positively identify the recovered ring as her own. Gibson
also argues that Victim’s testimony about dates was inconsistent
because she initially testified that she still possessed the ring in
December 2009 and could ultimately only identify a six‐month
span from June to December 2009 during which the ring had gone
missing. These alleged deficiencies in Victim’s testimony
notwithstanding, we cannot say that Victim’s ultimate
identification of the recovered ring as her missing wedding ring
was either “physically impossible” or “apparently false,” and we
must therefore “accept the jury’s determination of [Victim’s]
credibility.” See id.4
4. Gibson also raises a cursory argument that the State’s decision to
charge Gibson only for the wedding ring theft indicates that there
was insufficient evidence to pursue charges relating to other items
(continued...)
20120129‐CA 4 2013 UT App 243State v. Gibson
¶7 Taken as a whole, the State’s evidence in this case was not
so “inconclusive or inherently improbable . . . that reasonable
minds must have entertained a reasonable doubt that the
defendant committed the crime[s] for which he or she was
convicted.” See State v. Hamilton, 2003 UT 22, ¶ 18, 70 P.3d 111(citation and internal quotation marks omitted). We conclude that
the district court committed no error, let alone plain error, in
submitting the case to the jury. We therefore affirm Gibson’s
convictions.
4. (...continued)
of jewelry that Victim had reported as missing. Gibson argues that
this supports his claims as to the weakness of the State’s case in the
instant matter. However, the State has “broad discretion in
determining whether and in what manner to prosecute each case,”
State v. Bell, 785 P.2d 390, 402 (Utah 1989), and we see no
connection between its charging decisions and the strength of the
evidence in this case.
20120129‐CA 5 2013 UT App 243