State v. OliveAnnotate this Case
IN THE UTAH COURT OF APPEALS
State of Utah,
Plaintiff and Appellee,
Defendant and Appellant.
(Not For Official Publication)
Case No. 20030359-CA
F I L E D
(March 10, 2005)
2005 UT App 120
Third District, Salt Lake Department
The Honorable Anthony B. Quinn
Attorneys: Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
Before Judges Davis, Jackson, and Greenwood.
Silia Olive appeals her convictions of felony murder and aggravated kidnapping. We affirm.
Olive asserts that the trial court committed plain error. To show plain error, Olive has the burden of showing "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e. absent the error, there is a reasonable likelihood of a more favorable outcome." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
Olive makes three arguments regarding the existence of error. Olive first argues that an error exists because the felony murder rule should be abolished. However, the Utah Supreme Court has recently ruled that the felony murder rule is constitutional. See State v. Arguelles, 2003 UT 1,¶127, 63 P.3d 731, cert. denied, 540 U.S. 1098 (2004); State v. Honie, 2002 UT 4,¶¶17-35, 57 P.3d 977. Hence, it is not an error, and the notion that the felony murder rule should be abolished could not have been obvious to the trial court.
Olive next argues that an error exists because she was convicted of both aggravated kidnapping and felony murder, and these convictions were enhanced. She claims that the conviction for kidnapping was enhanced to aggravated kidnapping, see Utah Code Ann. § 76-5-302 (2001), which was further enhanced by the "Gang Enhancement," see id. § 76-3-203.1 (2001), and in essence enhanced again through the felony murder statute, see id. § 76-5-203(2)(d) (2001). This double enhancement, she argues, results in a double jeopardy violation.
Olive was convicted of aggravated kidnapping, rather than kidnapping. A conviction for an aggravated offense does not implicate double jeopardy. See generally Gryger v. Burke, 334 U.S. 728, 732 (1948) (rejecting double jeopardy challenge to recidivism statute because the enhanced penalty "is considered to be an aggravated offense" rather than a "new jeopardy or additional penalty" for the same crime). Moreover, while the jury did find that Olive committed the crime described by the "gang enhancement provision," see Utah Code Ann. § 76-3-203.1, there is no indication that the court took that into account in the sentencing. Rather, the court indicated that it sentenced Olive to the maximum of the mandatory minimum sentences because of the result of the crime, i.e. the death of an innocent person. Thus, Olive's claim that her sentence was enhanced by the aggravated kidnapping conviction and the "gang enhancement provision" fails.
Further, "[a]llowing punishment for both felony murder and the underlying felony violates neither the double jeopardy principles of the [F]ifth [A]mendment to the United States Constitution" nor article I, section 12 of the Utah State Constitution. State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990). That is, Olive's convictions for both aggravated kidnapping and felony murder do not implicate double jeopardy.
Third, Olive argues that an error exists because there was insufficient evidence to support a conviction for the aggravated kidnapping. More specifically, she asserts that the kidnapping conviction, which involved one victim, lacked sufficient evidence because she was acquitted of the charges involving the other victim. However, inconsistent verdicts do not equate to insufficient evidence. See United States v. Powell, 469 U.S. 57, 66-67 (1984); State v. Hancock, 874 P.2d 132, 134-35 (Utah Ct. App. 1994). Accordingly, we conclude that the trial court did not commit plain error.
Finally, Olive asserts that she was represented by ineffective counsel. To prove ineffective assistance of counsel, Olive has the "heavy burden of showing" that her counsel's performance "fell below an objective standard of reasonable professional judgment" and that "counsel's deficient performance prejudiced" her. State v. Chacon, 962 P.2d 48, 50 (Utah 1998). Counsel's failure "to make motions or objections [that] would be futile if raised does not constitute ineffective assistance." State v. Whittle, 1999 UT 96,¶34, 989 P.2d 52 (quotations and citations omitted). Because Olive has not established that the court erred, she cannot succeed on the claim that her counsel was ineffective.
Norman H. Jackson, Judge
James Z. Davis, Judge
Pamela T. Greenwood, Judge