State v. Roman

2015 UT App 183THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ROBERTO MIRAMONTES ROMAN,
Defendant and Appellant.
Memorandum Decision
No. 20121027-CA
Filed July 30, 2015
Fourth District Court, Spanish Fork Department
The Honorable Donald J. Eyre Jr.
No. 111300712
Stephen R. McCaughey, Jeremy M. Delicino, and
Elizabeth A. Lorenzo, Attorneys for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.
PEARCE, Judge:
¶1 Roberto Miramontes Roman appeals his conviction for
possession of a dangerous weapon by a restricted person,
arguing that the finder of fact failed to properly consider
whether he was a restricted person. Because Roman did not
preserve the issue by objecting below and because any error the
district court may have committed would not have been obvious
to the court, we affirm.
¶2 Roman was arrested after a police officer was shot and
killed. Roman was charged with aggravated murder, tampering
with evidence, and possession of a dangerous weapon by a
restricted person. A jury ultimately acquitted him of aggravated
murder but convicted him of the other two charges. He appeals
State v. Roman
only his conviction for possession of a dangerous weapon by a
restricted person.
¶3 “A Category II restricted person who purchases, transfers,
possesses, uses, or has under his custody or control . . . any
firearm is guilty of a third degree felony.” Utah Code Ann. § 76-
10-503(3)(a) (LexisNexis 2008). At the time of Roman’s arrest, the
Utah Code provided that “[a] Category II restricted person is a
person who,” among other things, “is an alien who is illegally or
unlawfully in the United States.”1 Id. § 76-10-503(1)(b)(viii). To
obtain a conviction, the State had to prove two elements beyond
a reasonable doubt: (1) that Roman possessed a gun and (2) that
Roman was a restricted person because he was in the country
illegally or unlawfully.
¶4 Before trial, the parties agreed to bifurcate the
proceedings. With respect to the dangerous weapon charge, the
jury would only consider whether Roman had possessed a gun.
If the jury found that he had, the district court would then
consider whether Roman was a Category II restricted person.
¶5 At a subsequent pretrial hearing, the parties again
discussed bifurcation. Roman’s trial counsel stated, “I think
we’ve stipulated that he is here illegally, you know. I just don’t
think that needs to go to the jury . . . .” The district court then
asked Roman’s counsel, “*S+o you are going to stipulate that he
is here illegally so that all that the State would have to prove is
that he intentionally and knowingly possessed the firearm?”
1. The relevant version of Utah Code section 76-10-503 identified
several factors, each of which qualified a person as a Category II
restricted person. We confine our analysis to the factor
underlying Roman’s charge—unlawful presence in the country.
The Utah Legislature has since amended the statute to make the
offense of possessing a firearm while in the country unlawfully a
Category I offense, punishable as a second degree felony. See
Utah Code Ann. § 76-10-503(1)(a)(v) (LexisNexis 2012).
20121027-CA 2 2015 UT App 183State v. Roman
Roman’s counsel responded, “Right.”2 At trial, the jury found
that Roman had possessed a gun. The district court then
sentenced Roman for both evidence tampering and possession of
a dangerous weapon by a restricted person.
¶6 On appeal, Roman contends that the State did not present
sufficient evidence to support the latter conviction. Specifically,
he complains that no evidence was presented suggesting that he
was in the United States unlawfully. Because he did not raise
this issue below, he raises it as a matter of plain error. See State v.
Holgate, 2000 UT 74, ¶¶ 11–17, 10 P.3d 346 (discussing the plain
error exception to the general preservation rule in the context of
an insufficiency of the evidence claim). “The plain error standard
of review requires an appellant to show the existence of a
harmful error that should have been obvious to the district
court.” State v. Waterfield, 2014 UT App 67, ¶ 18, 322 P.3d 1194.
¶7 Roman asserts that, “if there is a stipulation, it must be
presented to the finder of fact” and that “*t+his simply never
occurred in this case.” He concedes that no Utah case has
addressed this proposition. Instead, Roman relies on cases from
other jurisdictions. He cites the Tenth Circuit Court of Appeals’
observation that “the government must inform the jury of the
defendant’s stipulation at some point, in order to provide jurors
with the information they need to convict under the statute.”
United States v. Smith, 472 F.3d 752, 753 (10th Cir. 2006). We
2. Roman appears to claim that this was not a stipulation but
was instead an agreement to stipulate at a future time. However,
counsel’s statement that “we’ve stipulated that he is here
illegally” leaves no room for this creative interpretation.
Moreover, the record contains a written stipulation “*t+hat the
defendant, Roberto Miramontes Roman, is an alien who is
illegally or unlawfully in the United States.” Roman’s counsel
and the prosecutor signed the stipulation and filed it with the
court.
20121027-CA 3 2015 UT App 183State v. Roman
assume without deciding that stipulations must be presented to
the factfinder.
¶8 The cases Roman cites in which appellate courts reversed
convictions for failing to present stipulations to the factfinder
involved stipulations made outside the presence of, and never
presented to, the jury. See United States v. James, 987 F.2d 648 (9th
Cir. 1993); People v. Wright, 425 N.E.2d 42 (Ill. App. Ct. 1981); see
also Commonwealth v. Ortiz, 995 N.E.2d 1100, 1106–07 (Mass.
2013) (holding that, although stipulations should be presented to
the jury before the close of evidence, the jury in question had
been made aware of the substance of the stipulation by other
means). In James and Wright, the factfinder was not given the
chance to fulfill its duty of determining whether the stipulation
actually satisfied the relevant element of the crime.3 In contrast,
here, the factfinder—the district court judge—was well aware of
the stipulation. Indeed, the judge had asked Roman’s counsel
whether counsel was “going to stipulate so that all that the State
would have to prove is that he intentionally and knowingly
possessed the firearm” and counsel replied, “Right.” Unlike the
cases Roman cites, the trier of fact—here, the judge rather than a
jury—had the benefit of the stipulation at the time it ruled.
Notwithstanding the district court’s knowledge of the oral and
written stipulations, Roman appears to argue that the district
court should have required the parties to again present the
stipulation to the district court after the jury reached its verdict.
3. Stipulating that a fact is true does not necessarily mean that
the fact satisfies a legal element. “*The jury+ must accept any
stipulated facts as having been proven. However, the
significance of these facts, as with all facts, is for [the jury] to
decide.” Model Utah Jury Instructions (2d ed.), CR412. Here, we
note the apparently perfect congruence between Roman’s
stipulation of fact and the legal element to which it related. On
appeal, he does not claim that the legal element of being a
Category II restricted person was somehow unsatisfied by his
stipulation that he was in the United States unlawfully.
20121027-CA 4 2015 UT App 183State v. Roman
Roman’s complaint attacks, in essence, the timing of the
stipulation. However, any possible error arising from the district
court not requiring the parties to formalistically repeat the
stipulation after the jury portion of the trial was not an error that
would have been obvious to the district court. Indeed, even with
the benefit of hindsight, it is far from obvious that the district
court erred in not requiring the previously entered stipulation to
be repeated.
¶9 “To establish that the error should have been obvious to
the trial court, the appellant must show that the law governing
the error was clear at the time the alleged error was made.” State
v. Davis, 2013 UT App 228, ¶ 32, 311 P.3d 538 (brackets, citation,
and internal quotation marks omitted). “Thus, an error is not
obvious if there is no settled appellate law to guide the trial
court.” Id. (citation and internal quotation marks omitted).
Roman has directed us to no Utah authority to support his
argument. Without clear guidance in the law, any error would
not have been obvious to the district court. Roman cannot,
therefore, avail himself of the plain error exception to our
preservation rules.
¶10 Roman next asserts that the stipulation was invalid
because his counsel made it for him. Roman suggests that
because the stipulation amounted to a waiver of his right to
require the State to prove each element of the crime with which
he was charged, the district court should have undertaken a
colloquy with him to determine whether he knowingly and
voluntarily made the stipulation. He concedes that no Utah case
has addressed this issue but points to cases from other states that
have adopted such a requirement. See State v. Murray, 169 P.3d
955 (Haw. 2007); Ferguson v. State, 210 S.W.3d 53 (Ark. 2005);
State v. Evans, 557 S.E.2d 283 (W. Va. 2001).
¶11 As just mentioned, to invoke the plain error exception to
our preservation rules, Roman needs to demonstrate that the law
governing the error was clear at the time of the alleged error.
Davis, 2013 UT App 228, ¶ 32. The Utah Legislature has not
20121027-CA 5 2015 UT App 183State v. Roman
required that district courts undertake a colloquy aimed at
determining whether a defendant has knowingly and
voluntarily agreed to an evidentiary stipulation proffered by that
defendant’s counsel. Roman has not identified any Utah case
law to that effect and even concedes that Utah courts have not
addressed this issue. Because there is no settled law on this
point, any error in failing to conduct a colloquy of this nature
would not have been obvious to the district court.
¶12 We conclude that Roman has not demonstrated the
existence of an error that should have been obvious to the
district court. Roman’s counsel stipulated that Roman was in the
country unlawfully, both orally in front of the district court and
in a document filed with the court. Although Roman now claims
that the district court should have required that the stipulation
be presented to it again after the jury reached its verdict and that
the district court should have engaged in a colloquy to ensure
that the stipulation was the product of a knowing and voluntary
waiver, any error in the court’s failure to proceed in that manner
would not have been obvious to the district court. Roman has
therefore failed to establish that the plain error exception to the
preservation rule applies.4
¶13 Affirmed.
4. In resolving this appeal under the plain error doctrine, we do
not mean to imply that either of the two claimed errors actually
were errors.
20121027-CA 6 2015 UT App 183