State of Utah v. Perez

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State of Utah v. Perez, Case No. 20000693-CA, Filed October 18, 2001, 2001 UT App 309 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


Maria Elena Perez,
Defendant and Appellant.

(Not For Official Publication)

Case No. 20000693-CA

October 18, 2001 2001 UT App 309 -----

Seventh District, Monticello Department
The Honorable Lyle R. Anderson

William L. Schultz, Moab, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee


Before Judges Greenwood, Bench, and Thorne.

GREENWOOD, Presiding Judge:

Defendant argues the evidence was insufficient to convict her of aggravated assault. When an appellant challenges the sufficiency of the evidence, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury. Under this standard, we will reverse a conviction only when the evidence . . . is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which [she] was convicted. State v. Widdison, 2000 UT App 185,¶16, 4 P.3d 100 (citations and internal quotations omitted).

Reviewing the evidence under this standard, the evidence supports the verdict. The trial testimony indicated that a fight between the victim (Pionke) and defendant's husband (Perez) began in defendant's home and moved to defendant's front yard. Perez was winning the fight, having pinned Pionke on the ground. At some point during the fight, defendant went into the home and exited with a gun, which belonged to her and was designed to be carried by a woman. Some of the people present shouted that defendant had a gun. The fight then broke up and the men stood up or were getting up from the ground. Defendant was standing at the front of the home, aimed the gun at Pionke's head, and fired from about five to six feet away. Pionke felt the heat from the gun and felt the bullet pass by him. After firing the first shot, defendant stated she would kill Pionke, pulled back the hammer, and motioned as if to fire a second shot. Before firing the second shot, Perez took the gun away from defendant. Defendant did not dispute that she is a restricted person.

In contrast to the evidence supporting the verdict, defendant argues other evidence presented to the jury demonstrates she was defending Pionke by firing the gun into the air. She cites evidence elicited at trial that Perez and Pionke had violent confrontations in the past, Pionke was losing the fight, and was in danger of being killed or suffering severe harm. Defendant also argues she was a good shot, and at that short of a distance, she could have hit Pionke. She concludes that her version of the events is more credible. However, "'[i]t is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses.'" State v. Boyd, 2001 UT 30,¶16, 25 P.3d 985 (citation omitted). In the present case, the jury accepted the testimony of the State's witnesses and their testimony supports the jury's verdict.(1)


Pamela T. Greenwood,
Presiding Judge -----


Russell M. Bench, Judge

William A. Thorne, Jr., Judge

1. Because the jury did not believe that defendant meant to fire the gun into the air in defense of Pionke, defendant's claim of error regarding the possession conviction necessarily fails.