State v. Langi

State v. Langi

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Joseph Langi,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030080-CA
 

F I L E D
(May 6, 2004)
 

2004 UT App 152

 

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Third District, Salt Lake Department

The Honorable Judith S. Atherton

Attorneys: Edwin S. Wall, Salt Lake City, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Jackson.

JACKSON, Judge:

Joseph Langi (Langi) raises five issues on appeal. Langi's first argument is that the trial court erred by refusing to permit questioning of the victims regarding their immigration status; Langi's second argument is that the trial court erred by allowing a police officer to testify about various statements that he had heard regarding whether one of the victims possessed a wallet. Both of these arguments are expressly predicated on Langi's contention that neither victim had a wallet at the time of the attack, and that it therefore could not be proven that Langi actually took anything from them after the attack. We disagree.

Utah Code Annotated section 76-6-301(1)(a) (2003) states that a person is guilty of robbery if he or she "intentionally takes or attempts to take personal property in the possession of another." (Emphasis added.) Thus, a conviction for robbery or aggravated robbery does not require proof that the defendant successfully took property from the victim; instead, all that is required for a robbery conviction is proof that the defendant attempted to take the other person's property. See State v. Hickman, 779 P.2d 670, 672 (Utah 1989). Under our statutory scheme, the issue of whether the victims actually had wallets on them at the time of the attack is irrelevant; all that was required was proof that Langi had attempted to take personal property from the victims during the course of the crime.

Here, Langi admits that he rummaged through the prostrate, unconscious victims' pockets after participating in their savage beating. This admission is supported by the videotape of the beating that was entered into evidence. The State contends that Langi went through the victims' pockets in an attempt to take personal property; Langi has not offered any convincing arguments as to how else these actions could be interpreted. Accordingly, the question of whether the victims actually had wallets on them is legally irrelevant. As such, we conclude that Langi's first two claims of error are meritless.(1)

Langi next argues that the trial court erred by allowing a police officer to narrate the videotape of the beating while it was played for the jury. Rule 701 of the Utah Rules of Evidence states that a lay person may testify where that testimony is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Langi does not contest that the officer's narration of the videotape was rationally based on his repeated viewings of the tape. Thus, the only question on appeal is whether the narration was "helpful to a clear understanding" of the events. Id. Here, the videotape in question was taken from the restaurant's security cameras. This tape is grainy, black and white, split into four separate quadrants, and unaccompanied by sound. Further, the jury was likely unfamiliar with the layout of the restaurant and with the identities of the various persons who move in and out of view on the tape. As such, the fact-based narration provided by an officer who, by Langi's own admission, has viewed the tape "approximately twenty times" could be deemed helpful to the jury's understanding of the factual events in question. Therefore, such narration was admissible under rule 701.(2)

Langi next asserts that it was reversible error for the trial court to fail to instruct the jury that testimony used by the prosecution to impeach various witnesses should not have been viewed as substantive evidence. We disagree. Under rule 801(d)(1) of the Utah Rules of Evidence, prior statements by a witness are admissible "as substantive evidence if (1) inconsistent or (2) the witness has forgotten, and [the rule] does not require the prior statement to have been given under oath or subject to perjury." Utah R. Evid. 801 advisory committee note. Langi does not contest that the challenged statements were in fact inconsistent with prior statements that had been made by those same witnesses. As such, the statements were admissible as substantive evidence under our rules.

Finally, Langi asserts that the trial court erred in denying his motion for a new trial. Langi argues that a new trial was warranted because subsequent statements made by Mr. Afu, one of the persons involved with Langi in the attack, apparently contradicted testimony that Mr. Afu had given at trial. We disagree. "The legal standard to be applied when considering a motion for a new trial based on newly discovered evidence is that the moving party must show that the evidence . . . must make a different result probable on retrial." State v. Boyd, 2001 UT 30,¶27, 25 P.3d 985 (quotations and citation omitted). Here, the newly discovered evidence was a recantation by Mr. Afu of prior statements that he had made indicating that Langi had the victims' wallets. As discussed above, however, proof that wallets were actually taken was not necessary for the prosecution to procure a conviction. Further, the defendants were caught on tape viciously beating the victims, and Langi was specifically caught on that same tape rummaging through the unconscious victims' pockets after the attack. Thus, we doubt that this newly discovered evidence would make a different result probable on retrial.

Accordingly, we affirm.

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Norman H. Jackson, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

1. In addition to identifying the specific code provisions that formed the basis of the charge, the information that was filed at the outset of this case specifically alleged that Langi committed robbery when he "intentionally took personal property" from the victims. Because this description specifically identified one particular prosecutorial theory, Langi now argues that it was legal error for the State to subsequently rely on the broader definition of robbery that is also provided in the statute. We disagree. According to rule 4 of the Utah Rules of Criminal Procedure, the information must reference "the offense for which the defendant is being prosecuted by using the name given to the offense by common law or by statute." "If the information apprises the defendant of the name given the offense by statute, then it adequately complies with our constitution." State v. Snyder, 932 P.2d 120, 127 (Utah Ct. App. 1997) (quotations, citations, and alteration omitted). Here, though the information did specify one particular prosecutorial theory, it did not contain any limiting language which would have misled the defendant into believing that the prosecution could not have also chosen to rely on the other definitions provided in the statute. Thus, given that Langi was informed of the statutory provision in the information, we see no error in the subsequent development of the prosecution's theory at trial.

Further, even if it was error for the prosecution to rely on a different prosecutorial theory at trial, the record indicates that Langi has waived the right to challenge his conviction on that basis. Upon learning that the prosecution intended to try the case under a different theory, Langi "did not request a continuance in order to remedy the alleged prejudice." State v. Gonzales, 2002 UT App 256,¶13, 56 P.3d 969 (quotations and citation omitted). "[W]henever the prosecution changes its position, a defendant may seek a continuance . . . [but] the failure of a defendant to seek a continuance negates any claim of surprise and amounts to a waiver of any claim of variance [in the State's theory]." Id. (quotations and citations omitted) (alterations and omission in original).

2. Langi also argues that, by affirmatively stating that the tape showed Langi rummaging through the victims' pockets, the officer was improperly giving testimony as to the legal questions in issue. We disagree with Langi's characterization of this testimony. Rule 701 of the Utah Rules of Evidence explicitly allows a lay witness's testimony if the testimony is helpful to "the determination of a fact in issue." Here, one of the facts in issue was whether Langi actually reached down and rifled through the victims' pockets. Thus, the challenged testimony was admissible insofar as it aided the jury in its resolution of a fact that was in issue.