State v. Ross

State v. Ross

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Dale Ross,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030223-CA
 

F I L E D
(April 29, 2004)
 

2004 UT App 140

 

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Second District, Ogden Department

The Honorable Michael Lyon

Attorneys: Dee W. Smith and Randall W. Richards, Ogden, for Appellant

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

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Before Judges Bench, Davis, and Jackson.

BENCH, Associate Presiding Judge:

Defendant Ross challenges the sufficiency of the evidence to sustain his conviction for aggravated robbery, a first-degree felony. See Utah Code Ann. § 76-6-302 (2003).(1) Ross raises this issue for the first time on appeal; thus, we review it for plain error. See 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.

The relevant portion of the aggravated robbery statute provides the following:

(1) A person commits aggravated robbery if in the course of committing robbery, he:

    (a) uses or threatens to use a dangerous weapon as defined in Section 76-1-    601;

. . . .

(3) For the purposes of this part, an act shall be considered to be "in the course of committing a robbery" if it occurs in an attempt to commit, during the commission of, or in the immediate flight after the attempt or commission of a robbery.

Utah Code Ann. § 76-6-302(1)(a), (3).

Ross directs us to State v. Colonna, 766 P.2d 1062 (Utah 1988), for the proposition that "the threat of bodily injury is a necessarily implied element of an aggravated robbery charge." Id. at 1065. The threat of bodily injury clearly exists "if the statutory elements of simple robbery and use of a weapon are proved." Id.

Here, the State presented uncontroverted evidence that Ross used a weapon by brandishing a knife and pointing it in the direction of Craner. Cf. In re R.G.B., 597 P.2d 1333, 1335 (Utah 1979) ("[I]t is not necessary that the State prove that the robber actually pointed a gun at the victim . . . . If merely exhibiting the gun creates fear in the victim, it constitutes 'use of a firearm' for that purpose."); State v. Weisberg, 2002 UT App 434,¶17, 62 P.3d 457 ("[A] weapon is used even if it is never actually pointed at a victim, so long as 'exhibiting the [weapon] creates fear in the victim.'" (citation omitted)). Ross's use of the knife created fear in the victim. Craner testified that he felt "threatened," "compromised," and that his "safety was in jeopardy."

Further, the elements of simple robbery were satisfied. The robbery statute, Utah Code Annotated section 76-6-301 (2003), requires that a "person intentionally or knowingly use[] force or fear of immediate force against another in the course of committing a theft." Id. § 76-6-301(1)(b). Ross concedes that he was "in the course of committing a theft," id., but argues that he did not use "force or fear of immediate force." Id. The evidence reflects, however, that Ross shook his knife at Craner while telling him not to use his cell phone. When Craner spoke to the police dispatcher on the phone, he backed away from Ross. Ross again shook the knife at Craner, took a step toward him, and told him "that was a mistake." Thus, Ross used "force or fear of immediate force," id., and thereby satisfied the elements of simple robbery.

The evidence was sufficient to convict Ross of aggravated robbery. We therefore affirm.

______________________________

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

______________________________

James Z. Davis, Judge

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Norman H. Jackson, Judge

1. For the sake of convenience, and because no pertinent changes have been made to the aggravated robbery statute, we cite to the most recent version.