State v. Smith

State v. Smith

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

James Henry Smith,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040323-CA
 

F I L E D
(June 23, 2005)
 

2005 UT App 284

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Third District, Sandy Department, 031400576

The Honorable Royal I. Hansen

Attorneys: Kent R. Hart and Stephen W. Howard, Salt Lake City, for Appellant

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Orme.

BILLINGS, Presiding Judge:

    James Henry Smith appeals from a jury conviction for theft, a second degree felony in violation of Utah Code section 76-6-404. See Utah Code Ann. § 76-6-404 (2003). Smith argues that there was not sufficient evidence for the jury to convict him of theft. We affirm.

    In reviewing cases for sufficient evidence, "we afford great deference to the jury verdict." State v. Goddard, 871 P.2d 540, 543 (Utah 1994). We view the "evidence and all inferences drawn therefrom in a light most favorable to the jury's verdict" and will only reverse a jury conviction for insufficient evidence when "the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted." State v. Holgate, 2000 UT 74,¶18, 10 P.3d 346 (quotations and citation omitted).

    To properly convict Smith of theft, the jury must have reasonably concluded that Smith "obtain[ed] or exercis[ed] unauthorized control over the property of another with a purpose to deprive him thereof." Utah Code Ann. § 76-6-404. The meaning of "purpose to deprive" as used in Utah's theft statute includes having "the conscious object . . . [t]o dispose of the property under circumstances that make it unlikely that the owner will recover it." Id. § 76-6-401(3)(c) (2003).

    Smith argues that this court should reverse his second degree felony theft conviction and enter a conviction on the lesser-included offense of unauthorized control of a vehicle. In so doing, Smith tacitly concedes, and the evidence demonstrates, that Smith exercised unauthorized control over a Ford Ranger truck (the vehicle), which belonged to Butterfield Ford (the dealership), and that he intended to deprive the dealership of the vehicle for at least twenty-five hours. Thus, the only issue on appeal is whether the evidence is sufficient to establish that Smith had the "purpose to deprive" by disposing of the vehicle under circumstances making it unlikely that the dealership would recover it. Id.

    We determine that Smith had the requisite "purpose to deprive" because there was sufficient evidence to establish that Smith purposefully disposed of the vehicle in such a way that it was unlikely the dealership would recover the vehicle. Id. The undisputed evidence shows that Smith took the vehicle for a test-drive, after several hours he called the dealership requesting that the dealership not contact the police because he was only twenty minutes away, and he ultimately failed to return the vehicle or to notify the dealership of its location. Moreover, the vehicle was discovered one week later in a Salt Lake City bus terminal parking lot. The vehicle was locked, there were no keys, it had false license plates, and all of the dealership's insignia had been removed.

    Therefore, we conclude that the evidence was sufficient for the jury to reasonably determine that Smith abandoned the vehicle in such a manner as to make the vehicle's recovery unlikely. Accordingly, we affirm.

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Judith M. Billings, Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Gregory K. Orme, Judge