State of Utah v. Madrid

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Frank Madrid,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981404-CA

F I L E D
October 15, 1999
    1999 UT App 294 -----

Third District, Sandy Department
The Honorable Roger A. Livingston

Attorneys:
Catherine E. Lilly, Salt Lake City, for Appellant
Jan Graham, Scott Keith Wilson, and J. Frederic Voros, Jr., Salt Lake City, for Appellee

-----

Before Judges Wilkins, Bench, and Jackson.

BENCH, Judge:

Appellant first contends that he received ineffective assistance of counsel. Assuming for purposes of this appeal that trial counsel was deficient in not moving to dismiss, appellant must still demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984). A reasonable probability of a different outcome is a "probability sufficient to undermine confidence in the outcome." Id.

Our confidence that this case would have gone to the jury, even if appellant's counsel had moved to dismiss, is not undermined. There was no reasonable probability that the trial court would have granted a motion to dismiss at the end of the State's case because the evidence sufficiently established a prima facie case for both offenses charged. See Utah R. Crim. P. 17(o) ("At the conclusion of the evidence by the prosecution . . . the court may issue an order dismissing any information or indictment, or any count thereof, upon the ground that the evidence is not legally sufficient to establish the offense charged therein or any lesser included offense."). Because a reasonable jury could find that the State proved beyond a reasonable doubt the elements of both crimes, given the evidence presented in its case in chief and all reasonable inferences related thereto, the motion would not reasonably have been granted. See State v. Taylor, 818 P.2d 561, 573-74 (Utah Ct. App. 1991). Similarly, there was no reasonable probability that the trial court would have granted a motion to dismiss notwithstanding the verdict because reasonable minds would not have "entertain[ed] a reasonable doubt as to defendant's guilt." State v. Hill, 727 P.2d 221, 222 (Utah 1986).

The facts, when viewed together, prove beyond a reasonable doubt that appellant acted as an accomplice in burglary and attempted theft, and is therefore liable as a principal. See Utah Code Ann. § 76-2-202 (1995) ("Every person, acting with the mental state required for the commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct."). Even the circumstantial evidence in this case "'is of such quality and quantity as to justify a jury in determining guilt beyond a reasonable doubt, and is sufficient to sustain a conviction.'" State v. Lyman, 966 P.2d 278, 281 (Utah Ct. App. 1998) (quoting State v. Nickles, 728 P.2d 123, 127 (Utah 1986)). The trial judge, having received this evidence, would not reasonably have granted either motion to dismiss. Thus, even if appellant's counsel had moved to dismiss, there was no reasonable probability that the outcome would have been different because "'there [was] sufficient competent evidence . . . to enable a jury to find, beyond a reasonable doubt, that the defendant committed the crime.'" State v. Blubaugh, 904 P.2d 688, 695 (Utah Ct. App. 1995), cert. denied, 913 P.2d 749 (Utah 1996) (quoting State v. James, 819 P.2d 781, 784 (Utah 1991)). Appellant's ineffective assistance of counsel claim therefore fails.

Appellant also contends that the court erred by giving a flight instruction, arguing that the evidence did not sufficiently support it. We conclude that the evidence supported the instruction in this case, and it was therefore proper. See, e.g., State v. Bales, 675 P.2d 573, 574-75 (Utah 1983). As appellant recognized in his brief, flight does not require the physical act of running, but only a purpose to avoid being observed or arrested. See California v. Crandell, 760 P.2d 423, 442 (Cal. 1988). One could reasonably infer, from all the facts here, that appellant's purpose in driving away with the co-perpetrator was to avoid being arrested. Therefore, because appellant's actions reasonably constituted flight, the evidence sufficiently justified the instruction.

Accordingly, we affirm appellant's convictions of burglary and attempted theft.
 
 
 

______________________________
Russell W. Bench, Judge

-----

WE CONCUR:
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Norman H. Jackson, Judge