State v. Epps

2013 UT App 29_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JUSTIN A. EPPS,
Defendant and Appellant.
Per Curiam Decision
No. 20120325‐CA
Filed January 31, 2013
Fourth District, Heber Department
The Honorable Derek P. Pullan
No. 121500012
J. Edward Jones, Attorney for Appellant
Mckay G. King, Attorney for Appellee
Before JUDGES DAVIS, MCHUGH, and VOROS.
PER CURIAM:
¶1 Justin A. Epps appeals his conviction after a jury trial of
violation of a protective order, a class A misdemeanor. We affirm.
¶2 Epps argues that the district court erred in denying his
motion for a directed verdict, claiming that the State failed to
present sufficient evidence that he was the person named in the
protective order or that the place of business that Epps was
restricted from visiting was located in Heber City, Utah, within the
jurisdiction of the district court. The analysis of a claim that the
district court erred in denying a motion for directed verdict
involves “basically the same analysis” that applies to a challenge
State v. Epps
to the jury’s verdict for insufficiency of the evidence. See State v.
Cardona‐Gueton, 2012 UT App 336, ¶ 6 n.2 (quoting State v. Hirschi,
2007 UT App 255, ¶¶ 15–16, 167 P.3d 503). We will uphold the
district court’s denial of a motion for directed verdict “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. Harrison, 2012 UT
App 261, ¶ 10, 286 P.3d 1272 (citation and internal quotation marks
omitted).
¶3 Epps has not satisfied his burden to marshal the evidence
supporting the jury’s verdict and therefore cannot demonstrate that
the district court erred in denying the motion for directed verdict.
The statement of the facts in Epps’s opening brief is limited to
recitation of the evidence that might support his arguments on
appeal. “When challenging the sufficiency of evidence, the
challenging party has a duty to ‘marshal all record evidence that
supports’ a court’s ruling that there is sufficient evidence.” Id. ¶ 10
n.3 (quoting Utah R. App. P. 24(a)(9)). An appellant arguing
insufficiency of the evidence “has the heavy burden of marshaling
the evidence in support of the verdict and showing that the
evidence, viewed in the light most favorable to the verdict, is
insufficient.” State v. Maese, 2010 UT App 106, ¶ 16, 236 P.3d 155.
“This means that [the party] must marshal ‘every scrap’ of
evidence that supports the jury’s verdict,” before demonstrating its
insufficiency. See id.
¶4 In his motion for directed verdict, Epps claimed that the
State failed to present sufficient evidence that he was the person
named in the protective order. Epps argued that the record was
unclear “whether or not [he] is Justin Epps or at least the Justin
Epps that is alleged to [have committed] the offense” because
“[n]obody pointed him out” at the trial. The district court denied
the motion for directed verdict, finding that there was evidence
“upon which a reasonable jury could find that the defendant, Justin
Epps, is the same individual who is the client of the public
20120325‐CA 2 2013 UT App 29State v. Epps
defender in this case.” The district court found that the officer
testifying during the State’s case “was asked repeatedly whether or
not he had served the defendant Justin Epps and in each case he
indicated yes.” Furthermore, the witness to the alleged violation
of the protective order was Epps’ former sister‐in‐law, whom he
had contacted at her workplace to ask her to be a character witness
for him. The court ruled that it was “not persuaded that the
evidence is so lacking that a reasonable jury could not draw [the]
inference” that the defendant was the person alleged to have
committed the offense. The district court did not err in denying the
motion for directed verdict.
¶5 Epps also moved for a directed verdict based upon a claim
that the work address listed in the protective order did not state
that it was located in Heber City, Utah. Epps conceded that the
witness to the alleged violation of the protective order testified that
the workplace where she was employed with Epps’s ex‐girlfriend,
the petitioner in the protective order, was located in Heber City.
Nevertheless, Epps claimed that the witness did not testify that the
workplace was located in Heber City, Utah, and “[t]here may be
more than one Heber City in the United States.” The district court
found that there was sufficient evidence from which a reasonable
jury could infer that the offense occurred in Utah, also noting that
Epps was ordered in the temporary protective order to appear at
a hearing to be held in Heber, Utah. Accordingly, the district court
ruled that it was satisfied that a jury could find that the Heber City
referred to was located in Wasatch County, State of Utah within the
jurisdiction of the district court. The district court did not err in
denying the motion for a directed verdict.
¶6 Finally, Epps challenges the sufficiency of the evidence to
support his conviction claiming that there was insufficient evidence
that he was served with the protective order. In considering a
challenge to a jury verdict,
[w]e review the evidence and all inferences which
may reasonably be drawn from it in the light most
20120325‐CA 3 2013 UT App 29State v. Epps
favorable to the verdict of the jury [and] reverse a
jury conviction for insufficient evidence only when
the evidence, so viewed, is sufficiently inconclusive
or inherently improbable that reasonable minds must
have entertained a reasonable doubt that the defen‐
dant committed the crime of which he was convicted.
State v. Hamilton, 827 P.2d 232, 236 (Utah 1992) (citations and
internal quotations marks omitted).
¶7 Epps again fails to satisfy his burden to marshal the
evidence and then demonstrate that it is insufficient to support the
jury verdict. His insufficiency of the evidence argument is sup‐
ported only by an incomplete recitation of the testimony of the
officer who signed the return of service. Properly marshaled, the
evidence is sufficient to support the jury verdict. The officer
testified that he recalled serving Epps with a protective order in
January. He identified the return of service and a copy of the
temporary protective order and identified his signature on the
return of service. Those documents were admitted as evidence. On
cross‐examination, the officer testified that he had a “pretty clear
recollection” of standing at the door to Epps’s home when he
served the protective order. However, when confronted with the
fact that the return of service stated that service occurred at an
address on Main Street, rather than at Epps’s home, the officer
testified that he believed on that basis that service occurred at a
place other than Epps’s home and that the return of service
accurately stated that the service took place on Main Street. On
redirect, the officer stated he now recalled that he served Epps at
about First South and Main, but he had also served Epps at his
home “a couple of times.” During further cross‐examination, the
officer testified that he would not have put Epps’s name on the
return if he had not served him at the address on Main Street. He
identified his signature on the return of service, which he testified
was filled out on the same night, and testified that it would have
been filed with the court on the following morning. On further
redirect, the officer stated that without the paperwork to jog his
20120325‐CA 4 2013 UT App 29State v. Epps
memory, he did not have an independent recollection of the
service, but he remembered serving someone on Main Street and
he reiterated that he would not have put Justin Epps’s name on the
return of service and would not have signed the return of service
if it was not Justin Epps who was served with the protective order.
¶8 Viewing “the evidence and all inferences that may be
reasonably drawn from it in the light most favorable to the verdict,
‘the evidence was not so’ inclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt”about
whether Justin Epps was served with the temporary protective
order prior to the date of the alleged violation of that order. See id.
¶9 Accordingly, we affirm the conviction.
____________________
20120325‐CA 5 2013 UT App 29