State of Utah v. Norton

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Brad Norton,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990026-CA

F I L E D
November 9, 2000
  2000 UT App 307 -----

Fourth District, Provo Department
The Honorable Steven L. Hansen

Attorneys:
Margaret P. Lindsay, Provo, and Richard P. Gale, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Orme.

ORME, Judge:

Our role in reviewing the sufficiency of evidence is to "review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Tolman, 775 P.2d 422, 424 (Utah Ct. App.), cert. denied, 783 P.2d 53 (Utah 1989). We will not reverse a jury verdict unless the evidence supporting the verdict was so "'slight and unconvincing as to make the verdict plainly unreasonable and unjust.'" State v. Heaps, 2000 UT 5,¶19, 386 Utah Adv. Rep. 31 (citation omitted).

The State introduced sufficient evidence of defendant's witness tampering to uphold his conviction. While there was more than one way a jury could have deciphered defendant's comments, and its apparent interpretation admittedly required some "reading between the lines," we cannot say its disposition was unreasonable. Moreover, the test is not whether the witness subjectively felt threatened, but whether a reasonable person would have felt threatened. See Utah Code Ann. § 76-8-508(2)(c) (1999). Despite defendant's argument that the witness never perceived any threat--which the State strongly disputes--the jury apparently had little difficulty recognizing defendant's comments for what they were. It was the exclusive province of the jury, once adequate evidence was produced to support each element of the crime, to evaluate the evidence. See State v. James, 819 P.2d 781, 784 (Utah 1991). We refuse to second guess the jury's assessment of defendant's statements, which is supported by the evidence and inferences which can reasonably be drawn therefrom. See, e.g., State v. Spainhower, 1999 UT App 280,¶¶6-8, 988 P.2d 452; State v. Fixel, 945 P.2d 149, 152 (Utah Ct. App. 1997).

We will not reverse a conviction for failure to sever charges unless "the trial judge's refusal to sever charges 'is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial.'" State v. Lopez, 789 P.2d 39, 42 (Utah Ct. App. 1990) (citation omitted). Pending charges may remain joined in one case if they are "connected together in their commission" and the court finds the defendant is not unfairly prejudiced. Utah Code Ann. § 77-8a-1(1)(a), (4)(a) (1999). See State v. Smith, 927 P.2d 649, 652-53 (Utah Ct. App. 1996), cert. denied, 937 P.2d 136 (Utah 1997). Defendant concedes the charges were sufficiently connected to allow joinder. We conclude the trial court did not abuse its discretion in finding that evidence of the aggravated assault would have been admissible in a separate trial on witness tampering and that the probative value of the evidence outweighed any tendency to unfairly prejudice defendant. See Smith, 927 P.2d at 654; State v. Lee, 831 P.2d 114, 118 (Utah Ct. App.), cert. denied, 843 P.2d 1042 (Utah 1992); Utah R. Evid. 403, 404(b). Thus, all counts were properly treated in one trial.

Defendant complains that when the trial court refused to sever the charges, it was obliged to give a jury instruction reminding the jury to treat each count individually--although defendant never requested such an instruction at trial. However, a review of the record shows that the jury was told in three separate instructions that it must find each element of the charged offenses to be proven beyond a reasonable doubt, which accomplished essentially the same purpose. Indeed, the jury quite obviously took that duty to heart, acquitting defendant of evidence tampering while convicting him of witness tampering. There is no error--at least no plain error--in failing to give an instruction "if the point is properly covered in the other instructions." State v. Sessions, 645 P.2d 643, 647 (Utah 1982).

See State v. Smith, 927 P.2d 649, 654-55 (Utah Ct. App. 1996), cert. denied, 937 P.2d 136 (Utah 1997).

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge