State of Utah v. Spainhower
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IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah,
Plaintiff and Appellee,
v.
Gary Wayne Spainhower,
Defendant and Appellant.
OPINION
(For Official Publication)
Case No. 971726-CA
F I L E D
October 7, 1999
1999 UT App 280
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Fifth District, Cedar City
Department
The Honorable J. Philip
Eves
Attorneys:
D. Bruce Oliver, Salt Lake
City, for Appellant
Jan Graham, Kris C. Leonard,
and Catherine M. Johnson, Salt Lake City, for Appellee
-----
Before Judges Greenwood, Jackson, and Orme.
ORME, Judge:
¶1
Appellant, Gary Wayne Spainhower,
appeals his conviction for retaliation against a witness, in violation
of Utah Code Ann. § 76-8-508(2)(c) (1995), arguing the evidence presented
by the State was insufficient to make a prima facie showing that he "communicate[d]
to a person a threat that a reasonable person would believe to be a threat
to do bodily injury to the person." Id. We conclude the State's
evidence was sufficient to establish a prima facie case and affirm.
BACKGROUND
¶2
Appellant was convicted
of retail theft on March 25, 1996. The trial court ordered him to serve
twelve months probation, during which he was not to "follow, intimidate,
nor harass" the witnesses who testified at his trial. Eleven months later,
on February 28, 1997, appellant encountered one of the witnesses while
she was grocery shopping. Appellant passed by the witness a number of times,
staring at her, making eye contact, and grinning. Eventually, appellant
said, as he passed, "You're pitiful." Shortly thereafter, he passed by
her again and said, "I'm going to get you for lying in court, you fat bitch."(1)
The witness then abandoned her grocery cart and left the store. Appellant
followed her out of the store, climbed into his own car, and followed her
car for a short distance after she pulled out of the parking lot.
¶3
Thereafter appellant was
charged by information with retaliation against a witness, a third degree
felony, in violation of Utah Code Ann. § 76-8-508(2)(c) (1995). He
was ultimately convicted by a jury and sentenced to a prison term of zero
to five years.
ISSUE AND STANDARDS OF REVIEW
¶4
Appellant urges us to reverse
his conviction, arguing the trial court erred when it denied his motion
to dismiss at the close of the State's case-in-chief. Appellant asserts
it was error for the court to submit the case to the jury because the State
presented insufficient evidence of a "threat to do bodily injury," Utah
Code Ann. § 76-8-508(2)(c) (1995), an element of the crime, during
its case-in-chief. See State v. Taylor, 818 P.2d 561, 573-74
(Utah Ct. App. 1991). The denial of a motion to dismiss for failure to
establish a prima facie case is a question of law we review for correctness.
See Grossen v. DeWitt, 369 Utah Adv. Rep. 31, 33 (Utah Ct.
App. 1999). The interpretation of a statute is likewise a question of law
we review for correctness. See State v. Fixel, 945 P.2d 149,
151 (Utah Ct. App. 1997).
ANALYSIS
¶5
Utah Code Ann. § 76-8-508(2)(c)
(1995) states, with our emphasis:
A person is guilty
of a third degree felony if he . . . communicates to a person a threat
that a reasonable person would believe to be a threat to do bodily injury
to the person, because of any act performed or to be performed by the person
in his capacity as a witness or informant in an official proceeding or
investigation.
"Bodily injury" is defined as
"physical pain, illness, or any impairment of physical condition." Id.
§ 76-1-601(3) (Supp. 1999). Appellant argues that the witness's testimony
that appellant said "I'm going to get you for lying in court, you fat bitch,"(2)
was not sufficient evidence of a threat to do bodily injury and did not
justify submitting the case to the jury. We disagree.
A defendant's motion
to dismiss for insufficient evidence at the conclusion of the State's case
in chief requires the trial court to determine whether the defendant must
proceed with the introduction of evidence in his defense. In order to submit
a question to the jury, it is necessary that the prosecution present some
evidence of every element needed to make out a cause of action.
State v. Noren, 704 P.2d 568, 570 (Utah 1985) (per curiam) (citations omitted). If the evidence
presented by the State is, as a matter of law, insufficient to establish
the elements of the offense, the trial court may dismiss the charge. See
State v. Gardner, 789 P.2d 273, 284 (Utah 1989), cert. denied,
494 U.S. 1090, 110 S. Ct. 1837 (1990). Evidence is sufficient, and the
denial of a motion to dismiss proper, if "the evidence and all inferences
that can be reasonably drawn from it [establish that] some evidence exists
from which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt." State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). Here, appellant's challenge to the trial court's
denial of his motion to dismiss requires us to determine whether the State
presented sufficient evidence from which the jury, "'acting fairly and
reasonably,'" could determine beyond a reasonable doubt that a threat to
do bodily injury was made. State v. Taylor, 884 P.2d 1293, 1296
(Utah Ct. App. 1994) (quoting State v. Iverson, 10 Utah 2d 171,
350 P.2d 152, 153 (1960)).
¶6
At trial, the jury had the
duty to determine whether a reasonable person would have understood appellant's
statement to be a threat of bodily injury. See Utah Code Ann. §
76-8-508(2)(c) (1995). When making such a determination, it is appropriate
for the jury to consider both the content of the statement and the context
in which it was spoken. The content of appellant's statement, "I'm going
to get you," surely may connote a threat of bodily injury. Among the many
dictionary definitions of the verb "get" are: "to bring to retribution[,]
take vengeance on[,] KILL" and "to strike with force[,] HIT." Webster's
Third New International Dictionary 953 (1976).
¶7
While appellant's words
lend themselves to this interpretation, we recognize that they are at the
same time vague and indirect. They could conceivably carry a non-violent
meaning, such as "I'm going to get you in trouble with the district attorney
for lying in court." For this reason, the jury's determination whether
appellant's statement was threatening depends as much on the inferences
to be drawn from the context in which the words were spoken as on the words
themselves. "Uttered in one context, an apparently innocent statement such
as, 'I'd be careful crossing the street if I were you' can be merely helpful
advice to a senior citizen. Uttered in another context it may well be correctly
perceived by reasonable persons to be intended as a threat." State v.
Crescenzi, 539 A.2d 1250, 1253 (N.J. Super. Ct. App. Div.), cert.
denied, 546 A.2d 520 (N.J. 1988).
¶8
The trial court properly
deferred to the jury's assessment of appellant's statement. See, e.g.,
State v. Hamilton, 827 P.2d 232, 236 (Utah 1992). We were similarly
willing to defer to inferences drawn by a jury in State v. Fixel,
945 P.2d 149 (Utah Ct. App. 1997), another case that required interpretation
of objectively vague language. In that case, an individual was convicted
of threatening a judge after he stated, "When I get out the judge is dead."
Id. at 150. In affirming his conviction for threatening a judge,
this court held:
Looking at the verdict
in the required favorable light, we conclude the jury could readily find
that [the appellant] said, "When I get out the judge is dead," and that,
in so stating, [he] was not merely registering a prediction that upon his
release, by the sheerest coincidence, the judge would die of natural causes.
Rather, the jury was free to infer that in making the statement, [he] was
threatening to take a hand in the judge's demise, i.e., to murder the judge.
Id. at 152.
¶9
Other courts have also held
that it is for the jury to evaluate allegedly threatening language and
conduct, and that in doing so, a jury may consider both content and context.
In
People v. Ford, 193 Cal. Rptr. 684 (Cal. Ct. App. 1983), the
California Court of Appeals affirmed a jury's determination that the appellant,
who had shouted obscenities at a witness and stated, "'[W]e'll get you,
you've got kids,'" had uttered a threat in an attempt to prevent the witness
from offering further testimony against him. Id. at 685-86. The
court explained that the words spoken by the appellant
have more than a
plain meaning, as do all words. These words also carry with them an inherent
baggage of connotation which plainly suggests to the auditor, "You are
in trouble for testifying so do not let it happen again or things will
only get worse." The jury could interpret defendant's remarks to [the witness]
as a warning or threat not to testify in the future.
Id. at 686.
¶10
In another case, the appellant
was convicted of making terrorist threats after he stated, "'I'm going
to get you,'" and "'I'll get back to you, I'll get you,'" during an altercation
with his girlfriend's supervisor. People v. Martinez, 62 Cal. Rptr. 2d 303, 304-05 (Cal. Ct. App.), review denied, 1997 Cal. LEXIS 3942
(Cal. 1997). He argued on appeal that his statements were "vague and did
not specifically convey a threat of great bodily injury or death[, but
were] little more than 'mouthing off' and posturing." Id. at 306.
The court agreed that the appellant's words
may not, standing
alone, convey a threat to commit a crime which will result in death or
great bodily injury. But . . . the meaning of the threat by defendant must
be gleaned from the words and all of the surrounding circumstances. . .
. Defendant's words, combined with the surrounding circumstances, are susceptible
to an interpretation that defendant made a grave threat to [the supervisor's]
personal safety.
Id. at 306, 308.
¶11
Further demonstrating the
key role of context, an even more vague and indirect statement was
held sufficient to support a conviction for making a terrorist threat in
People v. Mendoza, 69 Cal. Rptr. 2d 728 (Cal. Ct. App. 1997). After
the victim testified at a preliminary hearing against the appellant's brother,
the appellant told her that, because she testified, he was "going to talk
to some guys from Happy Town." See id. at 730. "Happy Town" was
not the name of some local amusement park, but rather of the gang to which
appellant and his brother belonged, and to which the victim had formerly
belonged. Id. The court observed:
It is true that
in the abstract the words "I'm going to talk to some guys from Happy Town"
could mean something as innocuous as, for example, [the victim] would no
longer be invited to Happy Town parties, or because Happy Town members
do not keep secrets appellant would have to tell the other gang members
what she had done. However, based on appellant's and [the victim's] history
and their mutual involvement in Happy Town, [the victim] knew appellant's
words meant "they were going to kill me," "they were going to come back
and kill me" or "shoot me" for having given damaging testimony at a fellow
gang member's trial.
Id. at 733. The court
held that "[a] rational juror could reasonably find a threat to bring a
person to the attention of a criminal street gang as someone who has 'ratted'
on a fellow gang member presents a serious danger of death or great bodily
injury." Id.
¶12
At oral argument in the
instant case, appellant's counsel emphasized that the witness did not testify
that she feared bodily injury during her encounter with appellant, suggesting
that the evidence was insufficient because his words did not make the witness
fear bodily injury. Although the witness did testify that she was "scared,"
"very nervous," and "intimidated," the State was not required to prove
the witness herself feared bodily injury because subjective fear on the
part of the victim is not an element of the crime. The plain language of
the statute unequivocally requires the element of a threat to do bodily
injury to be evaluated from an objective perspective. A person is guilty
under the statute if he communicates "a threat that a reasonable person
would believe to be a threat to do bodily injury." Utah Code Ann. §
76-8-508(2)(c) (1995) (emphasis added). "Under this test, the subjective
courageousness or timidity of the victim is irrelevant[.]" United States
v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987) (analyzing taking by intimidation
under objective test), cert. denied, 484 U.S. 1075, 108 S. Ct. 1051
(1988). Instead, as we have discussed, it is for the jury to determine
"whether a reasonable person, given the conduct of the defendant and the
context in which it occurred, would experience" a threat of bodily harm.
United States v. France, 57 F.3d 865, 866-67 (9th Cir. 1995) (applying
objective standard and construing "I have dynamite" as express threat of
death).
¶13
While proof of the victim's
subjective fear is not necessary, neither is it irrelevant. "Evidence that
. . . acts did induce fear in an individual victim is probative
of whether [the] acts were objectively [threatening]." Higdon, 832 F.2d at 315. "It is the jury's unique role to evaluate the victim's temperament,
to determine from her demeanor the weight to be given her testimony, and,
ultimately, to decide whether the defendant's acts reasonably would induce
fear in an ordinary person standing in the victim's shoes." Id.
¶14
We readily determine in
this case that the State presented sufficient evidence, as a matter of
law, to make a prima facie showing that appellant communicated a threat
of bodily harm. Appellant's statement, "I'm going to get you," uttered
after appellant had been following the witness through the grocery store,
repeatedly passing near her, making eye contact, staring, and grinning
was sufficient evidence from which a jury could reasonably conclude that
he had threatened the witness with bodily harm. In making this determination,
it was appropriate for the jury to consider both the meaning of the words
themselves and the context in which they were spoken. The jury was presented
with additional evidence of the witness's subjective state of mind. This
testimony was probative of whether appellant's comments were objectively
threatening.
CONCLUSION
¶15
The trial court did not
err when it denied appellant's motion to dismiss at the close of the State's
case-in-chief. The evidence presented by the State was sufficient to establish
a prima facie case that appellant communicated to the witness a threat
of bodily injury.
¶16
Affirmed.(3)
______________________________
Gregory K. Orme, Judge
-----
¶17
WE CONCUR:
______________________________
Pamela T. Greenwood,
Associate Presiding Judge
______________________________
Norman H. Jackson, Judge
1. Appellant disputes that he said any such thing. But, as always, when reviewing the denial of a motion to dismiss, "we consider the facts and all the inferences to be drawn therefrom in a light most favorable to the nonmoving party," in this case, the State. O'Neal v. Division of Family Servs., 821 P.2d 1139, 1140 (Utah 1991).
2. The witness testified at trial that this is what appellant said to her in the grocery store. At an earlier probation violation hearing, she testified that appellant's statement was simply, "I'm going to get you." Appellant makes much of this discrepancy, apparently asserting that the evidence was insufficient to convict him because the witness either "lied" or her testimony was "the product of suggestion." Appellant's argument is unavailing. His counsel questioned the witness about her inconsistent statement on cross-examination in an effort to impeach her credibility. "It [was then] within the province of the jury to decide whether or not to believe [her testimony] in light of [her] prior inconsistent statements." State v. Vigil, 840 P.2d 788, 793-94 (Utah Ct. App. 1992), cert. denied, 857 P.2d 948 (Utah 1993). In any event, as hereafter explained, we consider "I'm going to get you" to be the legally significant statement. Because both the simpler and the more elaborate version of the statement contained those words, either version was sufficient to establish a prima facie showing of a threat to do bodily harm.
3. We have carefully considered the two other issues raised by appellant and conclude they are wholly without merit. We decline to address them further. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (holding that appellate court "need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal"). See also id. at 889 ("[I]t is a maxim of appellate review that the nature and extent of an opinion rendered by an appellate court is largely discretionary with that court."). Cf. Reese v. Reese, 376 Utah Adv. Rep. 3, 4 (Utah 1999) (to facilitate Supreme Court certiorari review, court of appeals must "at the very least identif[y] the basis for refusing to treat an issue").
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