State v. Gregg

State v. Gregg

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

David Vincent Gregg,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030843-CA

F I L E D

(June 3, 2005)

2005 UT App 258

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Second District, Farmington Department, 031700275

The Honorable Rodney S. Page

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

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

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Before Judges Bench, Davis, and Jackson.

DAVIS, Judge:

Defendant David Vincent Gregg appeals the trial court's denial of his motion to arrest judgment.

The standard for determining whether a trial court correctly granted or denied a motion for arrest of judgment is the same standard appellate courts apply in determining whether a jury verdict should be set aside for insufficient evidence. Under that standard, "a trial court may arrest a jury verdict when the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element."

State v. Hoffhine, 2001 UT 4,¶20, 20 P.3d 265 (citations omitted).

Defendant argues that the evidence presented at trial concerning the elements of consent and his state of mind was "'so inconclusive or so inherently improbable . . . that reasonable minds must have entertained a reasonable doubt as to th[ose] element[s].'" Id. (citation omitted). Defendant's argument fails.

"[I]n order to prevail on a sufficiency challenge to a jury verdict, 'the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.'" State v. Pritchett, 2003 UT 24,¶22, 69 P.3d 1278 (citation omitted). Defendant has failed in his obligation to marshal the evidence in support of the jury's verdict. Instead, Defendant simply reargues the weight of the evidence supporting his position, which is a futile tactic on appeal. See State v. Lopez, 2001 UT App 123,¶19, 24 P.3d 993 ("'[D]efendant may not reargue the weight of th[e] evidence, relying upon testimony favoring his innocence and ignoring the conflicting testimony against him. The fact that [D]efendant's evidence contradicts the jury's determination does not require reversal on appeal.'" (citation omitted)).

Furthermore, even if we disregard Defendant's failure to marshal the evidence, our review of the record "'in the light most favorable to the verdict,'" Hoffhine, 2001 UT 4 at ¶20 (citation omitted), reveals that there was sufficient evidence presented at trial--namely, the victim's testimony--to support the jury's verdict. See State v. Studham, 572 P.2d 700, 701-02 (Utah 1977) ("Most crimes are committed in such secrecy as can be effected; and that is particularly so of [rape]. Therefore, the question of guilt or innocence often depends upon the weighing of the credibility of the victim against that of the accused. Accordingly, the rule is that if there is nothing so inherently incredible about the victim's story that reasonable minds would reject it, a conviction may rest upon her testimony alone.").

For the foregoing reasons, we affirm the trial court's denial of Defendant's motion to arrest judgment.

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James Z. Davis, Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Norman H. Jackson, Judge