State v. Duran

State v. Duran

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Lewis Ricky Duran,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030851-CA
 

F I L E D
(December 30, 2004)
 

2004 UT App 492

 

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Second District, Ogden Department

The Honorable W. Brent West

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Lewis Duran appeals his conviction for Aggravated Arson, a first degree felony.

    Aggravated arson occurs when a person "by means of fire or explosives . . . intentionally and unlawfully damages: (a) a habitable structure; or (b) any structure or vehicle when any person not a participant in the offense is in the structure or vehicle." Utah Code Ann. § 76-6-103 (2003). Duran does not dispute that the fire damaged a habitable structure or that the fire was nonaccidental. Duran first claims that his trial counsel was ineffective in failing to move for a directed verdict at the close of the State's case. In State v. Smith, 2003 UT App 52, 65 P.3d 648, we held that trial counsel was ineffective because he did not move for dismissal of a concealed weapon charge after the State failed to introduce evidence that Smith did not have a valid concealed weapon permit. Id. at ¶¶32-33. Applying the prejudice prong of the analysis for an ineffectiveness of counsel claim, this court held that Smith was prejudiced because "there is a reasonable probability that the trial court would have dismissed the concealed weapon charge." Id. at ¶¶33-34. Duran argues that because the State's case against him was based on circumstantial evidence, counsel was ineffective by failing to move for directed verdict. However, this case does not involve failure to present evidence on the elements of the offense, and there was no reasonable probability that the charge would have been dismissed.

    Duran next claims that the district court committed plain error by failing to dismiss the charge at the conclusion of the State's case. Utah Code section 77-17-3 states that "[w]hen it appears to the court that there is not sufficient evidence to put a defendant to his defense, it shall forthwith order him discharged." Utah Code Ann. § 77-17-3 (2003). "It necessarily follows that the trial court plainly errs if it submits the case to the jury and thus fails to discharge a defendant when the insufficiency of the evidence is apparent to the court." State v. Holgate, 2000 UT 74,¶17, 10 P.3d 346. "[T]o establish plain error, a defendant must demonstrate first that the evidence was insufficient to support a conviction of the crime charged and second that the insufficiency was so obvious and fundamental that the trial court erred in submitting the case to the jury." Id. Only after an appellant demonstrates that the evidence was insufficient to support the verdict is the appellate court called upon to "determine whether the evidentiary defect was so obvious and fundamental that it was plain error to submit the case to the jury." Id. at ¶18.

    We reverse a jury verdict only when the evidence "is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt." State v. Mead, 2001 UT 58,¶65, 27 P.3d 1115. "So 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." Id. at ¶67. An appellant's "burden on appeal when challenging the sufficiency of the evidence after a jury trial is to marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." State v. Silva, 2000 UT App 292,¶40, 13 P.3d 604.

    Duran has admittedly not undertaken this burden, arguing that the State wholly failed to prove how the fire was started or who started it. We disagree. The uncontested evidence at trial indicated that the fire started in a pile of garbage located on the apartment floor between the couch and the kitchen and that all accidental causes were eliminated in the investigation. Furthermore, as the State's brief demonstrates, the evidence was sufficient to support the jury's reasonable inferences that Duran intentionally set the fire in his apartment.

    The claim that the district court committed plain error in submitting the case to the jury fails because Duran "failed to establish, as a threshold matter, that there was insufficient evidence to support [the] charge." Holgate, 2004 UT 74 at ¶29.

    Accordingly, we affirm the judgment and conviction.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge