State v. Bell

2016 UT App 157THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BRYCE D. BELL,
Appellant.
Opinion
No. 20131175-CA
Filed July 21, 2016
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 131904431
Scott S. Bell, Nicole G. Farrell, Alan S. Mouritsen, and
Adam E. Weinacker, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred.
VOROS, Judge:
¶1 Bryce D. Bell appeals his convictions of two counts of
aggravated robbery. Bell was convicted of aggravated robbery
both with respect to a car and with respect to a purse inside the
car. We affirm the first conviction but reverse the second. In
addition, we reject Bell’s factual impossibility and voluntary
intoxication claims.
BACKGROUND
¶2 On Sunday, May 5, 2013, three friends drove to a cell
phone store. The owner of the car sat in the front passenger seat.
After parking the car, the driver took the car key but left the car
State v. Bell
unlocked. A different set of car keys to an unrelated rental car
were in the cup holder. The car owner left her purse on the
passenger floor of the car.
¶3 When the three friends entered the store, Bell was there
talking to a store employee. Bell displayed a number of strange
behaviors: fiddling with the merchandise racks, ‚lifting up his
shirt,‛ and using so much hand sanitizer that a store employee
asked him to stop. Bell left the store without buying a phone. He
left ‚pretty angry,‛ using his foot to kick open the front door. In
the parking lot, Bell ‚started checking‛ cars, grabbing their
handles and trying to open their doors. He tried to open at least
three cars before reaching the three friends’ car. When he pulled
on its handle, the door opened, and Bell sat down inside.
¶4 Seeing this, the three friends ran from the store into the
parking lot. The driver ran to the driver’s side of the car, and the
owner ran to the passenger’s side. The driver opened the
driver’s door and ‚repeatedly told *Bell+ to get out of [the] car.‛
Bell, holding the set of rental car keys he found in the cup
holder, responded by asking where the ignition was located. Bell
unsuccessfully searched for the ignition while the driver again
yelled, ‚Get out of the car.‛ After Bell tried to close the car door,
the driver ‚ripped it back open‛ and stood just inside the door.
Bell pulled a knife from under his shirt and pointed it at her. She
stepped back and yelled at the car owner, ‚He has a knife. You
need to get back.‛ Bell then pointed the knife at the car owner,
who stood frozen by the passenger door. When she ‚looked
down‛ at her purse on the floor, Bell saw the purse, grabbed it,
and started running.
¶5 The three friends and the store manager gave chase. Other
bystanders joined the pursuit. One ripped the purse from Bell’s
hands, scattering its contents. Bell grabbed the rental car keys
and some credit cards and took off again. The driver of a nearby
car ‚bumped‛ Bell with his car and told him ‚to drop the stuff.‛
Bell responded, ‚I will drop the stuff if you will get me out of
here.‛ The driver refused and bumped Bell again. Bell rolled
20131175-CA 2 2016 UT App 157State v. Bell
onto the hood, threw the rental car keys into some bushes, and
ran a bit farther before being arrested by police.
¶6 Police found a set of car keys and a ‚couple of IDs‛ in the
bushes. At the police station, Bell told police that he was on
methamphetamine and he had not slept for three days. He
answered questions coherently, but was moaning while
answering. Bell began vomiting and officers arranged for an
ambulance to take him to the hospital. Bell later stated that he
did not remember going to the cell phone store, getting into the
car, pulling out a knife, or any of the events afterwards;
however, he did remember drinking a beer beforehand, talking
with a friend, and going to the shopping center where the cell
phone store was located.
¶7 Bell was charged with four crimes: two felony counts of
aggravated robbery—one for the robbery of the car and one for
the robbery of the purse—one felony count of aggravated
assault, and one misdemeanor count of interference with an
arresting officer.1 At trial, defense counsel presented a voluntary
intoxication defense based on Bell’s statement that he had taken
methamphetamine; she argued that he was thus ‚too high to
form the requisite . . . intent.‛ Bell was convicted of and
sentenced for three crimes: aggravated robbery of the car,
aggravated robbery of the purse—both first degree felonies—
and brandishing a dangerous weapon in a fight or quarrel, a
class A misdemeanor.2 On appeal, Bell challenges only the two
felony convictions.
1. Bell’s initial charges included a second count of aggravated
assault which was struck after the preliminary hearing.
2. The jury convicted Bell of a fourth crime, interference with an
arresting officer. For presumably good reasons not apparent
from the record, the court did not sentence Bell on this charge.
20131175-CA 3 2016 UT App 157State v. Bell
ISSUES AND STANDARDS OF REVIEW
¶8 Bell first contends that his two aggravated robbery
convictions should have been merged. Bell next contends that he
could not as a matter of law be convicted of aggravated robbery
of the car, because it was impossible for him to drive the car
away without the key to that car, which he did not have. Bell
asks that we review these unpreserved claims for plain error and
ineffective assistance of counsel. See State v. Calliham, 2002 UT 86,
¶ 62, 55 P.3d 573. Plain error requires obvious, prejudicial error.
State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993). And claims of
ineffective assistance raised for the first time on appeal present
questions of law. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶9 Finally, Bell contends that his counsel rendered ineffective
assistance by ‚failing to move for a directed verdict or otherwise
objecting to the sufficiency of the State’s evidence‛ refuting his
defense of voluntary intoxication. As stated, a claim of
ineffective assistance raised for the first time on appeal presents
a question of law. Id.ANALYSIS
I. Merger
¶10 Bell first contends that his trial counsel performed
ineffectively by not seeking merger of the two aggravated
robbery counts under the single larceny rule. He further
contends that the trial court committed plain error by not sua
sponte merging the two counts under the single larceny rule.
A. Single Larceny Rule
¶11 The single larceny rule ‚evolved to limit charging
discretion in the context of aggregating or separating theft
counts based on their dollar values for the purpose of
maximizing criminal liability.‛ State v. Rasabout (Rasabout I), 2013
20131175-CA 4 2016 UT App 157State v. Bell
UT App 71, ¶ 15, 299 P.3d 625, aff’d, 2015 UT 72, 356 P.3d 1258.
No Utah court has applied the single larceny rule beyond the
context of theft-related crimes. See id.; see also State v. Rasabout
(Rasabout II), 2015 UT 72, ¶ 30, 356 P.3d 1258 (‚The single larceny
rule is also inapplicable [to the crime of unlawful discharge of a
dangerous weapon] because [the crime] does not involve
larceny.‛); State v. Escamilla-Hernandez, 2008 UT App 419, ¶¶ 10–
11, 198 P.3d 997 (refusing to extend the single larceny rule ‚to
the arena of child sexual abuse‛).
¶12 The gist of the rule is that ‚‘if the taking . . . constitutes
but a single act, then there is but one offense and the multiple
ownership of the property taken is immaterial.’‛ Rasabout I, 2013
UT App 71, ¶ 14 (omission in original) (quoting State v. Barker,
624 P.2d 694, 695 (Utah 1981)). ‚[T]he general test as to whether
there are separate offenses or one offense is whether the
evidence discloses one general intent or discloses separate and
distinct intents. . . . If there is but one intention, one general
impulse, and one plan, even though there is a series of
transactions, there is but one offense . . . .‛ State v. Kimbel, 620
P.2d 515, 518 (Utah 1980) (alteration and second omission in
original) (citing People v. Howes, 222 P.2d 969, 976 (Cal. Dist. Ct.
App. 1950)). See also State v. Crosby, 927 P.2d 638, 645 (Utah 1996)
(following Kimbel in the context of theft); State v. Irvin, 2007 UT
App 319, ¶¶ 18–19, 169 P.3d 798 (following Kimbel in the context
of aggravated robbery).
¶13 Bell maintains that the single larceny rule applies here. He
argues that his attempt to take the car and his successful taking
of the purse merge under the single larceny rule ‚where timing,
location, and a single victim all support the conclusion that a
single offense occurred.‛ Because the purse was inside the car,
Bell reasons, any aggravated robbery of the car ‚necessarily
included the vehicle’s contents, most notably the purse.‛ He
asserts that ‚Taking the contents of the vehicle (a purse) and
fleeing on foot is consistent with the original intent of taking the
vehicle and its contents—it was merely a different mode of
transportation for the purse.‛
20131175-CA 5 2016 UT App 157State v. Bell
¶14 The State concedes that if Bell ‚had actually stolen the car
with the purse in it, he could be charged with only one crime,
because in that case he would have possessed only one intent—
to steal the car. In that scenario, stealing the purse would be
incidental.‛ But here, the State maintains, Bell ‚had two separate
intents‛—stealing the car as Plan A, and when that failed,
stealing the purse as Plan B. ‚Stealing the purse was not
incidental,‛ the State maintains, but ‚a distinct act motivated by
a separate and newly formed plan.‛
¶15 Although no Utah case involves facts quite like the
present case, State v. Irvin comes close. See 2007 UT App 319.
Irvin robbed a convenience store. Id. ¶ 2. Brandishing a knife, he
took from the store clerk the cash in the till and the key to her
car, then drove off in the car. Id. Citing Crosby, we held that only
one act of aggravated robbery occurred. Id. ¶ 19. Noting that
Irvin ‚took both items of property within a matter of seconds,‛
that ‚the entire encounter lasted only a few minutes,‛ and that
Irvin likely took the clerk’s keys to facilitate his escape with the
stolen cash, we concluded that ‚the taking of the money and the
keys was part of ‘one intention, one general impulse, and one
plan,’‛ and therefore, that Irvin had committed only one crime.
Id. (quoting Crosby, 927 P.2d at 645). However, the opinion does
not mention the single larceny rule.3
3. Two non-Utah cases with opposite holdings present closer
factual analogues. Bell relies on the Ohio Court of Appeals’
decision in State v. Fischer, 368 N.E.2d 332 (Ohio Ct. App. 1977)
(per curiam). Fischer stole a car containing tools, abandoned the
car, and fled unobserved with the tools. Id. at 333. The Ohio
Court of Appeals held that, under an Ohio statute, Fischer could
not be convicted of stealing both the truck and the tools: ‚The
initial theft of the pickup truck was also a theft of everything that
was in it at that time; therefore, in the terms of the statute, ‘the
same conduct by defendant can be construed to constitute two or
more allied offenses of similar import.’‛ Id. at 333–34 (quoting
(continued<)
20131175-CA 6 2016 UT App 157State v. Bell
B. Ineffective Assistance of Counsel
¶16 To succeed on a claim of ineffective assistance of counsel,
‚the defendant must show that counsel’s performance was
deficient‛ and that ‚the deficient performance prejudiced the
defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶17 ‚To establish that counsel was deficient, a petitioner must
overcome the strong presumption that counsel rendered
constitutionally sufficient assistance, by showing that counsel’s
conduct ‘fell below an objective standard of reasonableness’
under prevailing professional norms.‛ Lafferty v. State, 2007 UT
73, ¶ 12, 175 P.3d 530 (quoting Strickland, 466 U.S. at 688). ‚A fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.‛ Strickland, 466 U.S. at 689.
(Ohio Rev. Code Ann. § 2941.25(A) (LexisNexis 2015). The Fischer
opinion does not mention the single larceny rule.
The Indiana Court of Appeals arrived at a contrary
conclusion on similar facts in Taylor v. State, 879 N.E.2d 1198(Ind. Ct. App. 2008). Taylor stole a car containing a purse,
abandoned the car, and fled with the purse while shooting his
pursuer. Id. at 1201. The court stated, ‚A car thief begins
asserting constructive control over the contents of the car when
the car is stolen, but that does not necessarily trigger application
of the single larceny rule.‛ Id. at 1204. The court observed that
Taylor, having concluded it was not worthwhile to keep the car,
‚made an independent decision to steal [the] purse when he
abandoned the car.‛ Id. Accordingly, the two ‚thefts were not
pursuant to a single design and do not warrant application of the
single larceny rule.‛ Id. We do not attempt to reconcile the
holdings of these different lines of jurisprudence.
20131175-CA 7 2016 UT App 157State v. Bell
¶18 To establish that counsel’s performance resulted in
prejudice, a defendant ‚must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.‛ Id. at 694.
‚A reasonable probability is a probability sufficient to
undermine confidence in the outcome.‛ Id. ‚It is not enough to
show that the errors had some conceivable effect on the outcome
of the proceeding.‛ State v. Nelson, 2015 UT 62, ¶ 28, 355 P.3d
1031 (citation and internal quotation marks omitted). ‚Instead,
the likelihood of a different result must be substantial and
sufficient to undermine confidence in the outcome.‛ Id. (citation
and internal quotation marks omitted).
¶19 The analytical basis for this court’s holding in Irvin lacks
clarity. Perhaps we were, as our supreme court has since stated,
‚applying the single larceny rule to aggravated robbery.‛
Rasabout II, 2015 UT 72, ¶ 30, n.63, 356 P.3d 1258. But in Irvin, we
never mentioned the single larceny rule.4 See Irvin, 2007 UT App
319. Instead, we relied on State v. Crosby, see id. ¶¶ 18–19, another
case that never mentions the single larceny rule. See 927 P.2d at
645. In any event, we need not decide today whether Irvin’s
holding rests more comfortably on a foundation of the single
larceny rule; the merger doctrine, see State v. Couch, 635 P.2d 89,
92–93 (Utah 1981) (affirming convictions for both kidnapping
and rape because ‚the kidnaping was not merely incidental or
subsidiary to‛ the ‚host crime‛ of rape); the rule against
multiplicity, see State v. Prion, 2012 UT 15, ¶ 30, 274 P.3d 919(stating that the rule against multiplicity prohibits multiple
punishments for the same offense); or the allowable unit of
4. ‚The single larceny rule is followed in the overwhelming
majority of jurisdictions, but the . . . ‘single robbery’ rule is the
minority view.‛ People v. Adams, 339 N.W.2d 687, 690 (Mich. Ct.
App. 1983); see, e.g., State v. Bernal, 2006-NMSC-050, ¶ 30, 146
P.3d 289 (declining ‚to extend the single-larceny doctrine to
robbery or to establish a categorical rule limiting the unit of
prosecution for robbery based upon a single intent‛).
20131175-CA 8 2016 UT App 157State v. Bell
prosecution, see Rasabout II, 2015 UT 72, ¶ 8 (stating that the
‚allowable unit of prosecution for an offense determines
whether a perpetrator’s conduct constitutes one or more
violations of that offense‛). Whatever its analytical foundation,
Irvin clearly held that a robber who took both the till cash and
the car keys in a single act committed only one aggravated
robbery. Irvin, 2007 UT App 319, ¶¶ 18–19.
¶20 Irvin’s holding applies here. The State concedes that if Bell
‚had actually stolen the car with the purse in it, he could be
charged with only one crime, because in that case he would have
possessed only one intent—to steal the car.‛ But the question as
we see it relies less on his completing the getaway than on his
completing the robbery. And Bell completed the robbery when,
intending to deprive the victim of her car (and its contents), he
attempted to take it from her immediate presence by means of
force or fear. See Utah Code Ann. § 76-6-301(1) (LexisNexis 2012).
Bell thus, under our statute, robbed both the car and its contents,
including the purse. A thief who steals a car may later remove its
contents and decide to keep or discard any particular item.
Arguably that decision involves, in the State’s phrase, ‚a
separate and distinct act motivated by a separate and newly
formed plan.‛ But it does not involve a new crime, any more
than Irvin committed two crimes by separately intending to steal
both the cash and the keys. Similarly here, under Irvin, Bell may
not be prosecuted once for stealing the purse with the car and a
second time for stealing the purse from the car. Accordingly, he
committed one robbery, not two.
¶21 We recognize that ‚strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.‛ Strickland v. Washington, 466 U.S. 668,
690 (1984). And ‚strategic choices about which lines of defense
to pursue are owed deference commensurate with the
reasonableness of the professional judgments on which they are
based.‛ Id. at 681. Factors relevant to deciding whether particular
strategic choices are reasonable include ‚the inconsistency of
unpursued and pursued lines of defense, and the potential for
20131175-CA 9 2016 UT App 157State v. Bell
prejudice from taking an unpursued line of defense.‛ Id. We will
not conclude that defense counsel’s performance was deficient if
‚there was a conceivable tactical basis for defense counsel’s
strategies.‛ State v. Lucero, 2014 UT 15, ¶ 41, 328 P.3d 841.
¶22 Here, we see no conceivable tactical basis for not seeking
merger in the trial court. Asserting the defense would not have
conflicted with any pursued line of defense, nor would it have
borne any potential for prejudice. Indeed, the State’s entire
argument that defense counsel did not perform deficiently is that
the merger motion would have been futile. ‚Failing to file a
futile motion does not constitute ineffective assistance of
counsel.‛ State v. Heywood, 2015 UT App 191, ¶ 48, 357 P.3d 565(citing State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546). Accordingly,
we must decide whether a merger motion would have been
futile or would have been granted.
¶23 We conclude that under correct application of the law, a
merger motion would not have been futile. For reasons
explained above, under our analysis in Irvin, Bell committed one
aggravated robbery, not two. It follows that a motion to merge
would have been successful, not futile. And because making the
motion would have been risk-free, counsel performed
ineffectively by not making it. The two aggravated robbery
convictions must therefore merge.
C. Plain Error
¶24 Our conclusion that trial counsel performed ineffectively
renders moot the question of whether the trial court committed
plain error. Accordingly, we do not address it.
II. Impossibility
¶25 Bell next contends that he could not as a matter of law be
convicted of aggravated robbery of the car, because it was
impossible for him to drive the car without the key to that car,
20131175-CA 10 2016 UT App 157State v. Bell
which he did not have. He alleges both ineffective assistance and
plain error.
¶26 This claim fails under the text of the applicable statutes.
Bell was convicted of aggravated robbery. A person commits
aggravated robbery if in the course of committing robbery he
also commits one of three aggravating elements not at issue here.
Utah Code Ann. § 76-6-302(1) (LexisNexis 2012). A person
commits robbery if the person ‚unlawfully and intentionally
takes or attempts to take personal property in the possession of
another from his person‛ under specified circumstances also not
at issue here. Id. § 76-6-301(1)(a) (emphasis added). Bell did not
succeed in taking the car; his aggravated robbery conviction
rested on his attempt to take it. But ‚factual or legal
impossibility‛ does not constitute a defense to an attempt if, as
here, ‚the offense could have been committed if the attendant
circumstances had been as the actor believed them to be.‛ Id.
§ 76-4-101(3)(b); see also State v. Johnson, 821 P.2d 1150, 1157 n.3
(Utah 1991) (noting that under Utah law ‚impossibility is no
defense to an attempt‛).
¶27 Because impossibility cannot serve as a defense to the
form of aggravated robbery charged here, Bell’s counsel did not
perform deficiently in not asserting that defense, nor did the trial
court err in not sua sponte dismissing the charge or setting aside
the jury’s verdict on that ground.
III. Voluntary Intoxication
¶28 Finally, Bell contends that his counsel rendered ineffective
assistance by ‚failing to move for a directed verdict or otherwise
objecting to the sufficiency of the State’s evidence‛ refuting his
defense of voluntary intoxication. To be clear, defense counsel
did argue the defense of voluntary intoxication to the jury. But
Bell contends that the State’s evidence countering the voluntary
intoxication defense was so weak that the two felony counts
should never have been submitted to the jury.
20131175-CA 11 2016 UT App 157State v. Bell
¶29 ‚When evaluating a motion for a directed verdict, the
court is not free to weigh the evidence and thus invade the
province of the jury, whose prerogative it is to judge the facts.‛
State v. Montoya, 2004 UT 5, ¶ 32, 84 P.3d 1183 (citation and
internal quotation marks omitted). Rather, so long as the State
‚has produced believable evidence on each element of the crime
from which a jury, acting reasonably, could convict the
defendant,‛ the court must deny the motion. Id. (internal
quotation marks omitted). Therefore, ‚*i+f there is any evidence,
however slight or circumstantial, which tends to show guilt of
the crime charged or any of its degrees, it is the trial court’s duty
to submit the case to the jury.‛ Id. ¶ 33 (citation and internal
quotation marks omitted). And ‚if the evidence was such that a
motion for a directed verdict would not have been granted, trial
counsel cannot be deemed to have performed deficiently‛ by not
filing the motion. State v. Valencia, 2015 UT App 285, ¶ 3, 363
P.3d 563.
¶30 A directed verdict would not have been granted here.
Voluntary intoxication does not serve as a defense to a criminal
charge unless the intoxication ‚negates the existence of the
mental state which is an element of the offense.‛ Utah Code
Ann. § 76-2-306 (LexisNexis 2012). Thus, ‚to prevail on a
voluntary intoxication defense,‛ Bell must demonstrate that his
‚state of intoxication . . . deprived him of the capacity to form
the mental state necessary‛ for the charged offenses. See Honie v.
State, 2014 UT 19, ¶ 49, 342 P.3d 182. ‚It is not enough to merely
present evidence showing that the defendant *was intoxicated+.‛
Id. ¶ 50. ‚Rather, to establish a viable voluntary intoxication
defense, the defendant must point to evidence showing that he
was so intoxicated that he was incapable of forming the requisite
mental state for the crimes committed.‛ Id. And of course, once
he does, the prosecution must disprove it beyond a reasonable
doubt. See State v. Sellers, 2011 UT App 38, ¶¶ 16–18, 248 P.3d 70.
¶31 Bell argues that due to his intoxication, he ‚was not acting
rationally,‛ his acts made ‚no sense at all,‛ he did ‚not have his
senses about him,‛ his behavior was ‚not rational,‛ and he
20131175-CA 12 2016 UT App 157State v. Bell
lacked the ability to ‚comprehend the situation.‛ These
arguments do not address the controlling test. But Bell also
argues that, ‚Simply put, [he] did not have the ability to
intentionally commit aggravated robbery.‛ This argument hits
the nail on the head. We do not agree, however, that the
evidence supports it.
¶32 We do not doubt that Bell’s intoxication impaired his
judgment, perhaps even to the point that he committed acts he
would not otherwise have committed. But that is not the
statutory test. See supra ¶ 30. And no testimony suggests that—
even if intoxicated—Bell did not intend to use a dangerous
weapon to take personal property in the possession of another
from their person or immediate presence against their will by
means of force or fear. See Utah Code Ann. §§ 76-6-301(1)(a), 76-
6-302(1) (LexisNexis 2012). True, he was agitated, perhaps
confused, and later claimed to have no memory of the crime. But
neither Bell nor anyone else testified that his intoxication caused
him to think he was wielding a carrot rather than a knife, or to
think the car belonged to him, or to believe the victims did not
possess the car or were not human. On these facts, we cannot
agree that the State’s evidence that Bell intended to commit
aggravated robbery was so weak that defense counsel performed
ineffectively by not moving for a directed verdict on the ground
of voluntary intoxication rather than merely arguing it to the
jury.
CONCLUSION
¶33 Bell’s conviction of aggravated robbery in connection
with the car is affirmed; his conviction of aggravated robbery in
connection with the purse is vacated.
20131175-CA 13 2016 UT App 157