State v. Harris

2015 UT App 282THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DERONE QUINTON HARRIS,
Appellant.
Memorandum Decision
No. 20140358-CA
Filed November 27, 2015
Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 131901796
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES JAMES Z. DAVIS and J. FREDERIC VOROS JR.
concurred. 1
ROTH, Judge:
¶1 Derone Quinton Harris appeals his convictions for
burglary, theft, and criminal mischief, each third degree felonies,
and possession of burglary tools, a class B misdemeanor. 2 We
affirm.
1. Judge James Z. Davis participated in this case as a member of
the Utah Court of Appeals. He retired from the court on
November 16, 2015, before this decision issued.
2. Harris was also convicted of failure to stop at the command of
a law enforcement officer, a class A misdemeanor, and
(continued…)
State v. Harris
¶2 “We view the facts in the light most favorable to the jury
verdict and recite them accordingly.” State v. Montoya, 2004 UT
5, ¶ 2, 84 P.3d 1183 (citation and internal quotation marks
omitted). At 4:15am on September 8, 2013, a door sensor alarm
and two interior motion detector alarms were triggered at a ski
specialty store (the Store) located in Ogden, Utah. The Store is a
U-shaped building set back from the public road by a parking
lot. The three sides of the building form a courtyard that
contains three large planter boxes, each one set further from the
public entrances than the last. The Store has two public
entrances located at the base of the U; both are glass doors with
floor-to-ceiling metal gates that are pulled across them at night.
There are also four non-public entrances: three at the back of the
building from the basement, and one at the front of the building.
All the Store’s entrances are locked at night.
¶3 When the alarms triggered, two Ogden City police
officers, Officer Nielsen and Officer Grogan, were dispatched to
investigate. The officers arrived at the Store in separate patrol
vehicles within seven minutes of the initial alarm. Once at the
scene, they began to investigate on foot, with Officer Nielsen
moving to check the courtyard while Officer Grogan went to the
rear of the building.
¶4 At first, neither officer saw anyone at the scene. When
Officer Nielsen approached the courtyard, he could see that one
of the glass doors had been broken, with most of the shards
having fallen out into the courtyard. He also noticed a large tree
branch lying on the ground next to the door. But as Officer
Nielsen approached the broken door, a man later identified as
Harris “jump[ed] out from behind” the planter box closest to the
Store’s entrances and ran away from the Store. Officer Nielsen
(…continued)
interference with an arresting officer, a class B misdemeanor. He
does not challenge either conviction on appeal.
20140358-CA 2 2015 UT App 282State v. Harris
and Officer Grogan soon cornered Harris near a fourplex not far
from the Store. Harris resisted arrest, and the officers physically
subdued him. When Officer Nielsen searched Harris, he
discovered a shard of glass in Harris’s pants pocket that matched
the thickness and hue of the glass from the Store’s broken door.
¶5 The officers then returned to the Store with Harris.
Further investigation revealed that all three of the front entrance
door locks had been tampered with and damaged. Pry marks
were also discovered on the exterior of two of the basement
doors.3 In the courtyard, a black backpack, a white shopping
bag, and a black duffle bag were discovered on the ground
“[j]ust around the corner” from the planter box located closest to
the broken door where Officer Nielsen had first seen Harris. The
white shopping bag had the Store’s labels on it and contained
two sets of headphones and two Bluetooth headsets, all new and
of the kind sold at the Store.4 The black backpack was also Store
merchandise, and was filled with women’s socks and a number
of pairs of sunglasses from the Store.5 There was a claw hammer
on top of the black duffle bag, and inside the duffle bag were a
“long straight screwdriver, three small screwdrivers and three
pairs of pliers.” A crime scene investigator processed the bags
and their contents but was only successful in recovering
fingerprints from two pairs of sunglasses; those prints did not
match Harris’s. Inside the store, a closed cash box had been
pried at and “mangled.” A suitcase from the Store’s inventory
3. The monetary damage to the doors and locks amounted to
nearly $2,000.
4. The crime scene investigator testified that the headsets
together retailed for $350 and the headphones were $30 each.
5. The Store’s owner testified that it appeared as though an
entire sunglasses rack had been dumped into the backpack. The
items were valued at around $2,000.
20140358-CA 3 2015 UT App 282State v. Harris
was found lying open on the floor. An entire rack of jackets had
been cleared; a few of them were found at the bottom of the
basement stairwell, and the rest were in a pile in the Store’s
storage room.
¶6 Harris was charged with burglary, theft, criminal
mischief, interference with an arresting officer, failing to stop at
the command of a law enforcement officer, and possession of
burglary tools. At trial, defense counsel moved for a directed
verdict at the conclusion of the State’s case. The trial court
denied the motion, stating that “reasonable minds could
disagree” regarding the sufficiency of the State’s evidence. The
jury convicted Harris on all charges.
¶7 On appeal, Harris argues that the State presented
insufficient evidence to convict him of burglary, theft, criminal
mischief, and possession of burglary tools. Specifically, Harris
argues there was insufficient evidence to establish that he
entered the Store; that he possessed any of the items found
outside the Store, whether burglary tools or Store inventory; or
that he damaged the Store or its contents. He dismisses the
significance of the glass shard found in his pocket and contends
that the only evidence of any substance that ties him to the
crimes was his presence at the scene and his flight—but then
argues that neither presence at the scene of a crime nor flight are
sufficient under Utah law to support the convictions. Harris
asserts that the trial court therefore should have “forthwith
order[ed] him discharged.” See Utah Code Ann. § 77-17-3
(LexisNexis 2012). The State argues that the evidence was
sufficient for the case to go to the jury.6 We conclude that the
6. The State also argues that Harris has not preserved the
insufficiency arguments he makes on appeal. Considering the
proceedings related to Harris’s directed verdict motion as a
whole, including the prosecutor’s response to the motion, we
conclude the issues were sufficiently preserved.
20140358-CA 4 2015 UT App 282State v. Harris
State presented sufficient evidence to defeat Harris’s directed
verdict motion, and affirm.
ANALYSIS
¶8 A party seeking reversal of a directed verdict denial has a
difficult burden of persuasion on appeal because we “review the
evidence and all reasonable inferences that may fairly be drawn
therefrom in the light most favorable to the jury verdict,” State v.
Colwell, 2000 UT 8, ¶ 11, 994 P.2d 177, and we will reverse the
denial only if we determine that the evidence “is so inconclusive
or so inherently improbable as to an element of the crime that
reasonable minds must have entertained a reasonable doubt as
to that element,” State v. Workman, 852 P.2d 981, 984 (Utah 1993)
(citations omitted). Put another way, the trial court’s decision
will be affirmed “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 (citation and internal quotation marks omitted).
¶9 In addition, while the evidence against Harris is largely
circumstantial, it “is a well-settled rule that circumstantial
evidence alone may be sufficient to establish the guilt of the
accused,” Salt Lake City v. Carrera, 2015 UT 73, ¶ 11 (citation and
internal quotation marks omitted), and “[d]irect evidence is not
required” to establish guilt, State v. Nielsen, 2014 UT 10, ¶ 47, 326
P.3d 645. Convictions based solely on circumstantial evidence
are reviewed to determine “‘(1) whether there is any evidence
that supports each and every element of the crime charged, and
(2) whether the inferences that can be drawn from that evidence
have a basis in logic and reasonable human experience sufficient
to prove each legal element of the offense beyond a reasonable
doubt.’” State v. Lyman, 966 P.2d 278, 281 (Utah Ct. App. 1998)
(quoting State v. Brown, 948 P.2d 337, 344 (Utah 1997)). “A
20140358-CA 5 2015 UT App 282State v. Harris
reasonable inference is a conclusion that can be drawn from the
evidence and is based on logic and reasonable human
experience.” State v. Cristobal, 2014 UT App 55, ¶ 4, 322 P.3d
1170. “Additionally, a reasonable inference arises when the facts
can reasonably be interpreted to support a conclusion that one
possibility is more probable than another.” Id. (citation and
internal quotation marks omitted). On the other hand,
circumstantial evidence is insufficient if the inferences derived
from it give rise to only “remote or speculative possibilities of
guilt.” See Carrera, 2015 UT 73, ¶ 11 (citation and internal
quotation marks omitted). But where the fabric of circumstantial
evidence “reasonably sustain[s]” inferences of guilt, Nielsen, 2014
UT 10, ¶ 47, and “‘cover[s] the gap between the presumption of
innocence and the proof of guilt,’” Lyman, 966 P.2d at 281(quoting State v. Petree, 659 P.2d 443, 444–45 (Utah 1983)), the
evidence will be sufficient. We first consider the sufficiency of
the evidence in the case and then turn to the cases Harris uses to
support his arguments.
A. The Evidence
¶10 Harris contends that the case against him is “not
particularly strong” because there are only three pieces of
evidence relevant to his charges of burglary, 7 theft, 8 possession
7. “An actor is guilty of burglary who enters or remains
unlawfully in a building or any portion of a building with intent
to commit: (a) a felony [or] (b) theft . . . .” Utah Code Ann. § 76-6-
202 (LexisNexis 2012).
8. “A person commits theft if he obtains or exercises
unauthorized control over the property of another with a
purpose to deprive him thereof.” Id. § 76-6-404; see also id. § 76-6-
412(1)(b)(i) (stating that theft is a third degree felony if, “the
value of the property or services is or exceeds $1,500 but is less
than $5,000”).
20140358-CA 6 2015 UT App 282State v. Harris
of criminal tools, 9 and criminal mischief: 10 (1) his proximity to
the “stolen property on the outside of the store;” (2) his flight
from the police; and (3) the “small piece of glass” found in his
pocket. In particular, he contests the sufficiency of evidence as to
the specific elements of entry, constructive possession 11 of the
tools, constructive possession of the stolen items, and
destruction of the Store’s property, pointing out that the State
9. “Any person who manufactures or possesses any instrument,
tool, device, article, or other thing adapted, designed, or
commonly used in advancing or facilitating the commission of
any offense under circumstances manifesting an intent to use or
knowledge that some person intends to use the same in the
commission of a burglary or theft is guilty of a class B
misdemeanor.” Id. § 76-6-205.
10. “A person commits criminal mischief if the person . . .
intentionally damages, defaces, or destroys the property of
another,” id. § 76-6-106(2)(c). Additionally, to qualify as third
degree felony criminal mischief, the “actor’s conduct [must]
cause[] or [be] intended to cause pecuniary loss equal to or in
excess of $1,500 but is less than $5,000 in value.” Id. § 76-6-
106(3)(b)(ii).
11. Constructive possession is a highly fact-intensive inquiry that
is wholly dependent on the “facts and circumstances of each
case” with a view toward determining whether there is a legally
sufficient connection between the accused and the contraband.
See State v. Burdick, 2014 UT App 34, ¶ 36, 320 P.3d 55 (citations
and internal quotation marks omitted). Factors particularly
pertinent in this case include “incriminating behavior of the
accused,” “presence of [items] in a specific area over which the
accused has control,” State v. Fox, 709 P.2d 316, 319–20 (Utah
1985) (citations omitted), the accused’s presence at the time
contraband items are found, and the accused’s “proximity to the
[items],” Burdick, 2014 UT App 34, ¶ 36.
20140358-CA 7 2015 UT App 282State v. Harris
presented no direct evidence (such as fingerprints or video
surveillance) that affirmatively put him inside the Store or in
contact with the Store’s merchandise found outside it.
¶11 But the legal standard applicable to a sufficiency
challenge does not focus on the strength of the prosecution’s
evidence. Rather, our review is limited to a determination of
whether there is “some evidence” that would allow a reasonable
jury to find that the elements of the crimes had been “proven
beyond a reasonable doubt.” Montoya, 2004 UT 5, ¶ 29 (citation
and internal quotation marks omitted). Here, in addition to the
three pieces of evidence Harris identifies, the prosecution
presented evidence that: (1) Harris was the only person observed
in the vicinity of the Store in the early morning hours just
minutes after three of the Store’s alarms, including two interior
motion detectors, were triggered; 12 (2) Harris was discovered,
not on the public street, but deep in the courtyard, mere feet
from the broken glass and door, crouched over the stolen items
and burglary tools, and behind a planter box that concealed him
from view; (3) the Store bore proof of damage in the form of
tampered entrance locks and pry marks surrounding entry
doors, consistent with the burglary tools; (4) when the officers
approached the Store, rather than engage with them or attempt
to explain his presence, Harris fled the scene and subsequently
resisted arrest; and (5) Harris’s pocket contained a piece of glass
that matched the shattered glass from the Store’s entrance.
¶12 We conclude that this evidence fulfills the requirement of
“some evidence” from which a jury might reasonably infer,
based on “logic and reasonable human experience,” that Harris
12. Officer Nielsen testified as to the significance of the multiple
alarms. He stated that in “[t]his one we had two motions and a
door so you had three alarms set off” and concluded that that
“usually” meant the alarms were not “false.” The Store’s owner
agreed.
20140358-CA 8 2015 UT App 282State v. Harris
committed the crimes with which he was charged. See Cristobal,
2014 UT App 55, ¶¶ 3, 4, 7. “Logic” and “human experience”
suggest that a person found alone on the Store’s private
property, in the dark of the early morning, just minutes after
alarms were triggered, at some remove from the common
thoroughfare, crouched over stolen items and burglary tools,
with a piece of glass from the Store’s shattered entryway in his
pocket, was not at the scene of the crime through mere
happenstance. Rather, considered together, we think this
evidence is sufficient to support a reasonable inference that it
was probable that Harris’s presence at the Store was due to his
direct involvement in the criminal activity that had just
occurred. In this case, that direct involvement necessarily
included entry into the Store, constructive possession of the tools
and stolen items, and criminal mischief.
¶13 In particular, this evidence reasonably and logically
suggests that Harris was in close proximity at the very moment
the glass door was broken. There was testimony at trial that the
majority of the shattered glass had fallen outward toward the
courtyard. Harris was apprehended with a piece of glass that
matched the broken door in his pocket. A jury could reasonably
conclude that the presence of the glass shard on Harris’s person
was consistent with both the violent manner in which the glass
was broken and the way the glass fell outward into the
courtyard. It would thus be reasonable to infer that the piece of
glass was in Harris’s pocket because he was standing next to the
glass door when it was broken, and, in conjunction with other
evidence, that he broke the glass himself.
¶14 Harris’s attempts to dismiss the glass shard’s significance
by claiming it is just as likely that the “glass touched his hands”
while he knelt to look at the items behind the planter and “later
was transferred to his pocket” are unpersuasive. It seems
unlikely that in the course of kneeling down at the scene of the
break-in, a piece of glass would have found its way from the
ground into his pocket. Certainly, the jury could have reasonably
20140358-CA 9 2015 UT App 282State v. Harris
concluded that the more plausible explanation was that Harris
was in close proximity to the door when the glass was broken,
not that he “inadvertently transferred” a piece of the glass to his
pocket while innocently kneeling down to look at items behind
the planter. See Cristobal, 2014 UT App 55, ¶ 7 (“Because these
inferences support a conclusion that one possibility is more
probable than another . . . the inferences are reasonable and not
speculative.” (citation and internal quotation marks omitted)).
¶15 Consequently, because the evidence supports reasonable
inferences that place Harris in close proximity the moment the
glass door was shattered, the contested elements of the charges
fall into place. In order to enter the well-secured building, entry
had to be forced, and Harris was discovered crouched alone over
a bag of tools that would have afforded him the means to create
a point of entry. Other than the tree branch, no other evidence
was recovered from the scene to suggest another means to force
an entry. And the exterior damage—the broken door, the
damaged exterior door locks, and the damage to the paint and
wall surfaces next to the exterior basement doors—was
consistent with the kinds of tools in the bag. 13 It would be
reasonable to infer from this damage that, because he was
present when the glass door shattered, Harris exercised “power”
and “control” over the tools to engage in criminal mischief by
creating the entry point.
¶16 It would also be reasonable to infer that Harris used the
tools to enter the Store and thereafter exercise control over the
merchandise by removing it from the premises. Harris was
discovered hiding behind a planter box with the stolen
merchandise within minutes after interior motion detectors had
13. These inferences were strengthened by Officer Nielsen’s
testimony that the pry marks “in relation to the tools” were
“[v]ery similar to possibly the hammer or the screwdriver” and
that the pry marks were “fresh.”
20140358-CA 10 2015 UT App 282State v. Harris
been triggered. Because the stolen merchandise had been inside
the Store before the burglary, the only way the bags of stolen
merchandise could have made it out to the courtyard was
through an unauthorized entry, and the very presence of the
bags outside of the Store supports this inference. 14 In addition,
the presence of the merchandise outside the Store right next to
the bag of tools reasonably supports inferences that the
procurement of stolen merchandise was the endgame and that,
had the police arrived later, Harris would have absconded with
both the tools and the merchandise.
¶17 Thus, all of the evidence taken together would permit a
jury to infer that Harris committed the crimes with which he was
charged. Accordingly, the evidence of burglary, theft, criminal
mischief, and possession of burglary tools was sufficient to
survive Harris’s motion to dismiss at the close of the State’s
evidence.
B. Cases Cited by Harris
¶18 The cases Harris relies on do not persuade us to reach a
different result. Harris cites a number of cases standing for the
general proposition that “mere presence” 15 at a crime scene is
14. The Store’s owner testified that, when she locked up the Store
on the night of the burglary, both the backpack and the shopping
bag used to carry the stolen merchandise had also been inside
the Store.
15. Harris cites a number of Fourth Amendment cases to support
his argument that mere proximity should not be enough to
support his burglary conviction. See, e.g., State v. Swanigan, 699
P.2d 718, 719 (Utah 1985) (per curiam) (holding that proximity to
an area where recent burglaries had been reported was
insufficient to establish “reasonable suspicion” to justify an
investigatory stop); State v. Trujillo, 739 P.2d 85, 86, 89 (Utah Ct.
(continued…)
20140358-CA 11 2015 UT App 282State v. Harris
insufficient to support a criminal conviction. 16 Harris also cites a
number of cases that have held that a defendant’s presence near
(…continued)
App. 1987) (concluding that walking along the street at a late
hour in a “high crime area” was insufficient to establish probable
cause that would have justified a stop and frisk of the
defendant). We do not disagree with the holdings of these cases,
but rather conclude, as we have explained, that this is not a
“mere presence” case.
16. For example, Harris cites Rawls v. State, 513 So. 2d 942 (Miss.
1987). In Rawls, the only evidence supporting conviction was
that, around midnight, “[Rawls] walked around the side of [a
house], shortly after two other men, who had carried several
unidentified objects.” Id. at 944. While all three men were on the
sidewalk after coming around the house, only the two men
holding items ran and hid behind another car after being
suddenly illuminated by the eyewitness’s headlights. Rawls did
not run and hide, and thereafter, the two men drove away in a
car together, leaving Rawls alone. Id. at 943. It was later
discovered that “two television sets and a stereo were missing”
from the house. Id. The court reversed Rawls’s burglary
conviction. Id. at 944. See also Edwards v. State, 867 S.W.2d 90, 94
(Tex. Ct. App. 1993) (evidence insufficient to support a burglary
conviction for one of the burglarized houses at issue where the
witness testified that she saw the defendant approach the front
door of the house in the company of another person but could
not verify that he entered the house because her view was
blocked, the defendant disappeared from view “for less than a
minute,” and he did not carry anything back to the waiting car
with him); cf. Azcuy v. State, 705 So. 2d 129, 129 (Fla. Dist. Ct.
App. 1998) (a defendant’s “mere proximity to an instrument,” in
this instance a stick, that “may have been used[] by anyone” to
burglarize a flower cart was insufficient to support his burglary
conviction).
20140358-CA 12 2015 UT App 282State v. Harris
the crime scene, even in conjunction with flight or possession of
stolen items or tools, is not sufficient to support an inference of
entry with intent required for a burglary conviction. 17 In contrast
17. Harris cites Commonwealth v. Hargrave, 2000 PA Super 5, 745
A.2d 20, as being particularly persuasive here. But in Hargrave,
the only evidence the prosecution presented was proximity to
both the crime scene and the stolen items along with the
defendant’s subsequent flight, and the surrounding
circumstances were decidedly less substantial than in Harris’s
case. In Hargrave, the defendant was standing late at night with
another man outside a Woolworth store next to boxes of stolen
merchandise and a broken display window at the time police
were notified that the store had been burglarized. Id. ¶¶ 2–4. In
addition, following a preliminary hearing on the charges, the
defendant fled the state for a year, and the case was not tried for
another nine years. Id. ¶ 1. Even though the officer could not
recall whether he had seen the defendant carrying a box from
Woolworth’s, the trial court found that the officer’s testimony in
conjunction with the defendant’s flight provided sufficient
evidence to convict the defendant of burglary. Id. ¶ 6. The
reviewing court determined that while the Commonwealth had
“proved beyond a reasonable doubt [that the defendant was
present] at the scene of the crime” and was proximate “both to a
box containing merchandise from the Woolworth’s store and to
[the other implicated] individual,” it had not connected the
defendant “beyond a reasonable doubt to the box, the
merchandise, the other individual, the broken store window or
any other entry of the store.” Id. ¶ 9. Further, the court
concluded that while “[f]light does indicate consciousness of
guilt,” inferences of guilt based on flight are only proper where
“the other evidence of guilt consists of more than mere presence
at the scene.” Id. ¶ 11. The reviewing court thus held the
evidence to be insufficient for the defendant’s conviction of
burglary and other related offenses. Id. ¶ 13.
20140358-CA 13 2015 UT App 282State v. Harris
to the cases he cites, however, the circumstances surrounding
Harris’s presence at the Store suggest that he was more than
merely proximate to the scene of the crime and that his
constructive possession of the stolen items and tools was not
isolated from the other circumstances connecting him to the
burglary but tied to them. 18 The piece of glass tied Harris to the
Store, the tools, and the stolen items in a way that the defendants
in the cases he cites were not: It supports a reasonable inference
18. Harris cites several other cases to support his argument that
possession of the stolen items and tools, even in addition to
“mere presence,” cannot prove that he entered the Store. See, e.g.,
State v. Arrington, 514 So. 2d 675 (La. Ct. App. 1987) (a
defendant’s mere possession of three rings stolen from a house
could not support an inference of entry where the defendant
could not be placed any closer than a block from the house on
the day of the burglary and where other evidence supported the
defendant’s innocence); People v. Smith, 333 N.Y.S.2d 135 (N.Y.
App. Div. 1972) (evidence was insufficient to support an
inference of entry where the defendant was apprehended on the
fire escape stairway of an apartment building while purportedly
in possession of two items from a burglarized apartment, but
where the evidence also established that the defendant had been
visiting a friend in an apartment two stories above the crime
scene and no evidence placed him on the same story where the
burglary occurred); see also Corbin v. State, 585 So. 2d 713 (Miss.
1991) (a defendant’s fingerprints on stolen merchandise that
merely showed that “at some point in time” the defendant had
touched some of the stolen merchandise was insufficient
evidence to support a burglary conviction where the only person
who was seen holding the stolen merchandise dropped it and
fled upon being approached by a police officer a couple of blocks
from the burglarized grocery store, and where that person was
never identified). To the extent these cases do apply to this case,
we are not persuaded by them.
20140358-CA 14 2015 UT App 282State v. Harris
that he was present at the Store at the point in time when the
glass door was shattered and entry was accomplished. And
although flight alone is not sufficient to support an inference of
entry, it is not improper to infer guilt from flight in a case, like
Harris’s, where there are other circumstances that support such
an inference. 19 See State v. Holgate, 2000 UT 74, ¶ 23, 10 P.3d 346(“While a defendant’s flight from a crime scene, standing alone,
does not support an inference of intentional conduct, the
circumstances of a defendant’s flight, in addition to other
circumstantial evidence, may be adequate to support such an
inference.” (citation and internal quotation marks omitted)); see
also id. ¶ 23 n.6 (“‘Flight by itself is not sufficient to establish the
guilt of the defendant, but is merely a circumstance to be
considered with other factors as tending to show . . . guilt itself.’”
(emphasis added) (quoting 1 Wharton’s Criminal Evidence
19. Harris cites Commonwealth v. Goodman, 350 A.2d 810 (Pa.
1976), for the proposition that presence at a crime scene
combined with flight is insufficient to support a burglary
conviction. In that case, the court held that the evidence was not
sufficient to support an inference that the defendant was a
participant in the burglary because the evidence showed only
that the defendant emerged empty-handed from a doorway
leading to the rear of a grocery store shortly after another man
had emerged carrying a box of stolen meat, and that the
defendant fled when the other man fled. Id. at 812. The court
considered it significant that the doorway the defendant and the
other man had emerged from also led to an apartment stairway,
and that because of this fact, the evidence was “as consistent
with the inference that [the defendant] innocently happened
upon the scene and fled out of fear as it [was] with the inference
that [the defendant] was a participant in the burglary.” Id. Thus,
the defendant’s guilt could not be proven beyond a reasonable
doubt. Id. As discussed above, the circumstances supporting an
inference of entry in Harris’s case are more substantial.
20140358-CA 15 2015 UT App 282State v. Harris
§ 214, at 450 (Charles E. Torcia ed., 13th ed. 1972))). Indeed, even
if the combination of flight, proximity, and possession of stolen
items and tools, was not sufficient to justify a burglary
conviction, these pieces of evidence are not entirely irrelevant.
Rather, they can properly be weighed together with other
circumstances indicative of guilt to provide sufficient weight in
the aggregate to support a guilty verdict. And that is the case
here.
¶19 Harris’s case can also be distinguished from cases he uses
to support his constructive possession arguments. 20 Harris’s
“intent to exercise control” over the tools flowed directly from
their presence at a scene where, among other damage, a glass
door was forcibly shattered and the circumstances supported a
reasonable inference that Harris was implicated. Harris had a
glass shard resembling the door glass in his pocket and the
stolen items and the tools were in his plain sight. In particular,
the hammer was lying “on top” of the bags Harris was kneeling
over. And Harris was found alone and adjacent to the items at a
time of day when people were unlikely to have been outside, let
20. See, e.g., In re M.B., 2008 UT App 433, ¶¶ 20, 26, 198 P.3d 1007(concluding that the juvenile court improperly inferred that the
defendant “constructively possessed the burglary tools” found
between a seat and the console where the only evidence was that
the defendant “was in a car that contained the gloves and
screwdrivers, and that a screwdriver and some gloves were in
his vicinity but not in plain sight”); State v. Salas, 820 P.2d 1386,
1389 (Utah Ct. App. 1991) (holding that the evidence was
insufficient to connect the defendant to the cocaine found in his
car where there were two other passengers in the car, where the
cocaine was “found in an area that was not easily accessible to
the defendant,” and where the other passenger closest to where
the cocaine had been found was “seen moving around in a
furtive manner just before the traffic stop”).
20140358-CA 16 2015 UT App 282State v. Harris
alone crouched behind a planter box near the Store’s entrance.
The evidence that Harris possessed the tools is therefore
significantly more substantial than the evidence in the cases he
cites.
CONCLUSION
¶20 Reviewing the evidence presented and the inferences
reasonably drawn therefrom, we conclude that the State
presented sufficient evidence to survive Harris’s motion to
dismiss. Harris has not met his difficult burden of showing that
there was no evidence sufficient to submit the case to the jury,
nor has he persuaded us that the circumstantial nature of the
evidence renders inferences regarding entry and constructive
possession merely speculative. We reiterate that our role on
appeal is not to re-weigh the evidence but is instead limited to
determining whether the State presented “some evidence” to
support the elements of the contested convictions from which a
jury could have arrived at guilty verdicts on the contested
charges. See Mahmood v. Ross, 1999 UT 104, ¶ 18, 990 P.2d 933(“[T]he court is not free to weigh the evidence and thus invade
the province of the jury whose prerogative it is to judge the
facts.” (citation and internal quotation marks omitted)). While
Harris contends that “[h]e was literally in the wrong place at the
wrong time,” we cannot say that there is no evidence to support
reasonable inferences regarding the elements of the charges that
Harris challenges. Thus, the trial court did not err by denying
Harris’s directed verdict motion at the close of the State’s
evidence. We affirm.
20140358-CA 17 2015 UT App 282