Orem City v. Boswell

----ooOoo----

Orem City,
Plaintiff and Appellee,

v.

Christy Lee Boswell,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981823-CA

F I L E D
April 6, 2000
  2000 UT App 93 -----

Fourth District, Orem Department
The Honorable John Backlund

Attorneys:
Randy M. Lish, Provo, for Appellant
Robert J. Church, Orem, for Appellee -----

Before Judges Greenwood, Billings, and Orme.

BILLINGS, Judge:

Christy Boswell appeals her conviction for retail theft, asserting there was insufficient evidence to support a conviction.

"An appellate court should overturn a conviction for insufficient evidence [only] when it is apparent that there is not sufficient competent evidence as to each element of the crime charged for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime." State v. Layman, 1999 UT 79, ¶12, 985 P.2d 911. A defendant challenging the sufficiency of the evidence "must first marshal all the evidence supporting the . . . verdict and then demonstrate how this evidence, even viewed in the most favorable light, is insufficient to support the verdict." State v. Strain, 885 P.2d 810, 819 (Utah Ct. App. 1994).

Boswell has failed to meet her burden to marshal the evidence in support of the verdict. Instead, she merely reargues her position and focuses on conflicting testimony, ignoring the evidence supporting the verdict. The failure to marshal improperly leaves the burden "to the court to sort out what evidence actually supported" the verdict. State v. Scheel, 823 P.2d 470, 473 (Utah Ct. App. 1991). When a defendant does not marshal the evidence and instead attempts to shift the burden to the reviewing court, we need not consider whether the evidence was insufficient. SeeState v. Hopkins, 1999 UT 98, ¶16, 380 Utah Adv. Rep. 15; Scheel, 823 P.2d at 473. Thus, we affirm Boswell's conviction.

Were we to reach the merits, however, we would find sufficient evidence to support the verdict. We reverse a verdict for insufficient evidence only when, after viewing the evidence and all inferences therefrom in a light most favorable to the verdict, we conclude the "evidence is so lacking and insubstantial that a reasonable [person] could not possibly have reached a verdict beyond a reasonable doubt." State v. Bradley, 752 P.2d 874, 876 (Utah 1985). Moreover, disturbing a verdict is not necessary merely because there is contradictory evidence or testimony, or conflicting inferences to be drawn. See id. at 877.

Boswell relies on testimony presented in her defense which conflicts with the city's evidence. This in itself is not enough to overcome a verdict. The city presented sufficient evidence from which each element of retail theft could be found beyond a reasonable doubt. See Utah Code Ann. § 76-6-602(1) (1999) (stating that person commits retail theft if he or she "takes possession of, conceals, [or] carries away" merchandise with intent to keep it and without paying for it). Officers' testimony during trial established the following facts and inferences drawn therefrom supporting the verdict: Boswell carried a box from the store entrance to the car and put the box in the trunk, along with the box of cards her mother had taken; Boswell used a key to open the trunk and store the items; after being confronted by the officers, Boswell hid the trunk key in the visor of the car; she told the officers she had no trunk key, having lost it months previously; she said there was nothing in the trunk; she started the car attempting to drive away; and she had no receipts for the box of noodles or the video in the trunk. From this evidence, the fact-finder could conclude that Boswell removed items from the store without paying for them, and/or concealed those items or the cards her mother took. Accordingly, we affirm Boswell's conviction.
 
 
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Gregory K. Orme, Judge