State of Utah v. Kocher

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State v. Kocher. Filed December 2, 1999 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


John Richard Kocher,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981513-CA

December 2, 1999
  1999 UT App 352 -----

Third District, Sandy Department
The Honorable Roger A. Livingston

Joan C. Watt and Karen Stam, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee


Before Judges Wilkins, Bench, and Orme.

WILKINS, Presiding Judge:

Defendant John R. Kocher challenges the sufficiency of evidence underlying his conviction for exercising unlawful control over a motor vehicle (misdemeanor joyriding), in violation of Utah Code Ann. § 41-1a-1311 (1993), as well as the trial court's denial of his motion for a mistrial. We affirm.


In Utah, a person is guilty of misdemeanor joyriding if he or she (1) exercises unauthorized control over someone else's vehicle; (2) without the owner's permission; and, (3) with intent to temporarily deprive the owner of possession of the motor vehicle. See Utah Code Ann. § 41-1a-1311(1) (1993); see also State v. Carruth, 947 P.2d 690, 693 n.8 (Utah Ct. App. 1997). Defendant first contends that the evidence presented at trial was insufficient to establish the second element of this offense.

Specifically, he argues that the State failed to meet its burden of proof because Mrs. Troester failed to testify at trial that she did not give defendant permission to use her vehicle.

When reviewing a sufficiency of evidence challenge, we owe "broad deference to the fact finder, . . . [and our] power to review a jury verdict challenged on grounds of insufficient evidence is limited." State v. Souza, 846 P.2d 1313, 1322 (Utah Ct. App. 1993). We review "the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the jury's verdict and reverse only if that evidence is so 'inconclusively or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he . . . [or she] was convicted.'" Id. (citation omitted). In other words, "[s]o long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops." State v. Booker, 709 P.2d 342, 345 (Utah 1985).

There was sufficient evidence before the jury from which it could reasonably find that Mrs. Troester did not give defendant permission to use her vehicle. Based on the testimony of Mr. Troester, Ms. Reeves and Officer Delao, evidence presented regarding defendant's behavior when he first saw the car and left the parking lot, the fact that defendant fled from officers, and defendant's own testimony, in context, that he "figured it would be ok to borrow [the car]," a jury could reasonably find that defendant did not have Mrs. Troester's permission to use her car.


Second, defendant argues that he is entitled to a new trial because a police officer testifying at trial improperly commented on inadmissible evidence. Defendant contends that this error was too prejudicial to be mitigated by the court's curative instruction.

We review the trial court's denial of a motion for a mistrial under an abuse of discretion standard. See State v. Robertson, 932 P.2d 1219, 1230-31 (Utah 1997). Under Robertson, a trial court "must determine whether an incident may have or probably influenced the jury," to prejudice a defendant. Id. at 1230 (emphasis in original) (citation omitted). If the court concludes that the incident probably did not prejudice the jury, then it should deny the motion. See id. at 1230-31. "'Once the trial court has exercised [its] discretion and made [its] judgment thereon, the prerogative of this court on review is much more limited.'" Id. at 1231 (citations omitted). "We review such a decision with just deference because of the advantaged position of the trial judge to determine the impact of events occurring in the courtroom on the total proceedings." Id.

We are not convinced that the court exceeded its discretion in this case. The court found that the error here was inadvertent, ordered the comment be stricken, and promptly gave a curative instruction to the jury to undo any potential prejudice. See State v. Harmon, 956 P.2d 262, 271 (Utah 1998) (curative instructions are important tools by which a court may remedy trial errors, such as improper answers given by witnesses); State v. Peters, 796 P.2d 708, 712 (Utah Ct. App. 1990) (indicating one avenue to undo serious prejudice is through a curative instruction). Moreover, given the jury's verdict--acquitting defendant on the theft charge and finding defendant guilty on the lesser included offense--we cannot conclude that the officer's remark prejudiced the outcome of the proceedings.


Michael J. Wilkins,
Presiding Judge



Russell W. Bench, Judge

Gregory K. Orme, Judge