State v. Lebeau

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100072‐CA
)
v. ) FILED
) (August 23, 2012)
Andrew Lebeau, )
) 2012 UT App 235
Defendant and Appellant. )

‐‐‐‐‐

Third District, West Jordan Department, 091400631
The Honorable Terry L. Christiansen

Attorneys: Linda M. Jones and Brittany D. Enniss, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges Orme, Roth, and Christiansen.

ORME, Judge:

¶1 Defendant Andrew Lebeau appeals his convictions of aggravated kidnapping, a
first‐degree felony, see Utah Code Ann. § 76‐5‐302 (2008);1 aggravated assault, a third‐
degree felony, see id. § 76‐5‐103 (Supp. 2012); failure to respond to an officer’s signal to
stop, a third‐degree felony, see id. § 41‐6a‐210 (2010); and cruelty to an animal, a class B
misdemeanor, see id. § 76‐9‐301(2) (2008). Defendant asserts that his convictions were

1
Because the statutory provisions in effect at the pertinent time do not differ
materially, in any way relevant to this appeal, from the provisions currently in effect,
we cite the current version of the Utah Code for the convenience of the reader.
tainted by prosecutorial misconduct. He also appeals his life without parole sentence
on his conviction for aggravated kidnapping. Imposition of this sentence, usually
reserved for capital offenses, is indeed troubling. Nonetheless, we must affirm.

BACKGROUND

¶2 Defendant was charged in March 2009. During a three‐day trial in September of
that year, Defendant entered a guilty plea for failure to respond to an officer’s signal to
stop. The jury found Defendant not guilty of attempted murder but convicted him of
aggravated kidnapping, aggravated assault, and cruelty to an animal. The trial court
sentenced Defendant as follows: for count I, aggravated kidnapping, life in prison
without the possibility of parole; for count II, aggravated assault, a prison term not to
exceed five years; for count III, failing to respond to an officer’s signal to stop, a prison
term not to exceed five years; and for count IV, cruelty to an animal, a suspended jail
term of 180 days. The court ordered the prison terms on counts II and III to run
consecutively to count I, and it ordered full restitution.

I. Factual Background2

¶3 Defendant and his girlfriend (Girlfriend) had lived together for about eighteen
months as of the time of the events giving rise to this case. According to Girlfriend,
they had a “pretty good relationship” for about a year, but by late 2008 “things had
changed quite a bit.”

¶4 In February 2009, Girlfriend moved out of the bedroom she shared with
Defendant and into a different room in the house. Both Defendant and Girlfriend
regularly used drugs that they purchased from a friend of Defendant (Friend). Around
the time Girlfriend moved to her own room, Defendant became suspicious that
Girlfriend was seeing Friend for purposes unrelated to drug purchases. Girlfriend
testified that Defendant became so suspicious that he once tampered with her car to
keep her from going out.

2
Except where a factual conflict is relevant to the resolution of an issue on appeal,
“we review the record facts in a light most favorable to the jury’s verdict.” State v. Jeffs,
2010 UT 49, ¶ 3, 243 P.3d 1250 (citation and internal quotation marks omitted).

20100072‐CA 2
¶5 Later that month, Girlfriend left the house to do various errands and to see
Friend. She returned home around 5:30 p.m., but left again and spent the evening with
Friend. Throughout the day and evening, Defendant called her a number of times and
sent her text messages. She answered one or two of his calls but then turned off her
phone. Defendant left her multiple voicemail messages that went unanswered. When
Girlfriend returned home around 10:30 or 11:00 p.m., Defendant angrily confronted her.
She did not want to talk or fight, and she refused to tell him where she had been.
Defendant then sat on her, broke her phone, hit her in the face and head, and tried to
choke her. Eventually, she admitted she had been with Friend.

¶6 Defendant and Girlfriend continued to argue, while also using drugs. At one
point during the evening, Defendant told Girlfriend, “You better not run, because I’ll
catch you.” Defendant eventually took her into the garage, which he had previously
modified by permanently sealing the bay door. The only remaining entrances to the
garage were two locked doors, to which Girlfriend had no keys. Defendant left
Girlfriend there alone for a few minutes. When he returned, he “beat [her] down,”
yelled at her, and ripped her clothes to “tattered shreds.” He threw a cue ball at a
mirror and shattered it. He eventually told her they were going for a “fast ride.”
Speaking to his dog, Sally, Defendant said, “Sorry that you have to come along with
us,” “Sorry you’ve got to go down with it,” and “If she just hadn’t have broke our heart,
you know, this—this wouldn’t have to happen.” Before leaving, he wrote the date and
following verse on the wall: “I was here, but now I’m gone. Those who knew me knew
me well; those who didn’t can go to hell. See you there.”

¶7 Girlfriend, Defendant, and Sally then walked to Defendant’s car, which was
parked in the driveway, and Girlfriend got into the passenger seat. Defendant put Sally
in the back seat and got behind the wheel. Before getting into the car, Girlfriend
smoked marijuana and Defendant took some pills, including Lortab and morphine.
Defendant then drove toward Friend’s neighborhood. As they were driving, Girlfriend
saw a police officer in a nearby vehicle and “stared at him,” hoping to get his attention.
Having observed that Defendant’s car lacked a rear license plate, the officer followed
the car and eventually engaged his emergency lights. Defendant was driving at about
25 miles per hour at that point. Girlfriend screamed at Defendant to pull over, but he
did not stop.

¶8 Defendant drove to the street where Friend lived. Once there, he pulled into a
driveway, turned around, and headed back toward the police car. The officer

20100072‐CA 3
maneuvered his car out of the way to avoid being hit. Defendant then drove his car
toward Friend’s truck, which was parked at the end of the dead‐end street. As he did
so, Girlfriend opened her door. Defendant accelerated as he drove toward the truck.
When he hit Friend’s truck, the impact pushed the truck through a fence, and it
eventually came to rest forty‐three feet from its location at the curb. An accident
reconstruction specialist estimated that Defendant was traveling at about 58 miles per
hour when he hit the truck. Another officer who observed the event testified that he
saw no brake lights as Defendant headed toward the truck. He also saw Girlfriend
ricochet off the passenger side door and into the street as the car hit the truck.
Girlfriend suffered severe injuries. The dog was also injured and required surgery.
Defendant was not seriously hurt.

II. Background Regarding Prosecutorial Misconduct

¶9 In closing arguments, during his rebuttal, the prosecutor talked about the trial
testimony at length. Regarding the State’s witnesses, the prosecutor stated that the
doctors, toxicologists, and police officers had no “personal interest in the outcome of
this case” and were unbiased and independent witnesses. He argued that Girlfriend
“has nothing to gain” and “no motive to lie.” The prosecutor also stated that the
consistency of Girlfriend’s statements should assure the jury that she had “an excellent
memory, and excellent knowledge of the events.” The prosecutor also stated that
Defendant’s witnesses were all close friends or family members who did not “want to
see their brother, their son, their pal; they [did not] want to see him go to jail.” The
prosecutor said that Defendant had the “biggest motive to tell [the jury] what [it]
want[ed] to hear. He’s got a lot at stake. He makes an effort to help himself out.” The
prosecutor stated that Defendant, in a telephone call from jail, had lied to Girlfriend
about whether he remembered what happened. The prosecutor described
inconsistencies between Defendant’s testimony and the testimony of other witnesses.

¶10 The prosecutor also commented about the lack of evidence corroborating
Defendant’s story. Concerning Defendant’s testimony that he spent some time on the
day of his crimes buying a shirt as a gift for one of his friends, the prosecutor stated that
this friend did not testify about the gift. Regarding Defendant’s sister’s testimony that
the verse Defendant wrote on his door before leaving the garage was one of
Defendant’s favorite sayings and that he had previously written it on the wall of his
mother’s Alabama home and in his school yearbook, the prosecutor pointed out that the
sister did not bring a copy of the yearbook or a picture of the wall to support her

20100072‐CA 4
testimony. The prosecutor also stated that Defendant’s mother was not questioned
about the verse and further stated that there was “no corroborative evidence to show
[the jury] that any of those claims [that Defendant had quoted the verse before] are
reliable.”

¶11 With regard to whether Defendant had the required intent to commit the alleged
crimes, the prosecutor stated:

Defense Counsel brought up in his opening statement
this issue of is this an accident or is it intentional? He’s
correct in saying that intent, it’s a high state of mind. So let’s
look at some of the evidence, and help you determine
whether or not this was an accidental or intentional act.

I’ll go – I’ll start by telling you, I submit to you that it
is an intentional act. So what do I use to come to that
conclusion? Look at the intentional acts of the defendant.
He intentionally disabled [Girlfriend]’s car. . . . He
intentionally broke [Girlfriend]’s phone. He intentionally
took [Girlfriend]’s keys.

He intentionally hit [Girlfriend] repeatedly in the face;
intentionally strangled her; intentionally threatened her not
to run; . . . intentionally threw the pool ball at [Girlfriend],
specifically her head; intentionally wrote the [verse], . . . ;
intentionally said, “We’re going on a fast ride”; intentionally
apologized to Sally for having to do this; intentionally took
hits of crack; intentionally took a handful of pills;
intentionally put the dog in the car.

Intentionally drove to [Friend]’s house; intentionally
refused to yield to police; intentionally ignored [Girlfriend]’s
pleas to stop the car; intentionally turned right on [Friend’s
street]; intentionally pulled in the driveway and turned
around; intentionally drove past [the officer], almost hitting
him; intentionally drove down [Friend’s street] at
approximately 60 miles an hour; intentionally turned into

20100072‐CA 5
 the truck just prior to the impact. He intentionally crashed
into [Friend]’s parked cargo truck . . . .

¶12 The prosecutor also made some statements regarding the evidence that
Defendant contends were inaccurate or misleading. Regarding the facial fractures that
Girlfriend sustained, the prosecutor stated that a doctor had testified that “a punch or a
hit to the face can cause [injuries such as] these,” implying that Defendant caused those
injuries when he hit Girlfriend before they left the house. He also stated that Defendant
had disabled Girlfriend’s car on the day of the incident.

III. Background Regarding Sentencing

¶13 At the sentencing hearing, Defendant raised several mitigating factors including
the following: (1) Defendant acted under strong provocation, (2) incarceration would
severely compromise Defendant’s ability to make restitution, (3) Defendant had
community support based on his good employment history and family relationships,
(4) imprisonment would cause Defendant’s dependents excessive hardship, (5)
Defendant had enjoyed an extended period of time when he had not been arrested for a
crime, and (6) the offenses all arose from a single criminal episode. Defendant also
argued during the sentencing hearing that the trial court should impose a sentence that
would allow the Board of Pardons and Parole to assess Defendant’s progress toward
rehabilitation.

¶14 The trial court expressly discussed each of Defendant’s proffered mitigating
factors at the hearing. The court then sentenced Defendant. On the aggravated
kidnapping count, the court sentenced Defendant to life in prison without parole.

ISSUES AND STANDARDS OF REVIEW

¶15 Defendant argues that the State committed misconduct during closing argument.
Ordinarily, we review rulings on prosecutorial misconduct for abuse of discretion. See
State v. Tilt, 2004 UT App 395, ¶ 11, 101 P.3d 838. However, because Defendant raises
the issue of prosecutorial misconduct for the first time on appeal, we review the claim
under the doctrine of plain error. See State v. Nelson‐Waggoner, 2004 UT 29, ¶ 16, 94 P.3d
186. In addition, Defendant contends that we may consider his claim of prosecutorial

20100072‐CA 6
misconduct under the doctrine of ineffective assistance of counsel because his trial
counsel did not object contemporaneously.
¶16 Defendant also argues that the trial court abused its discretion when it failed to
properly consider the interests of justice in sentencing Defendant to life in prison
without the possibility of parole for aggravated kidnapping. “We will set aside a
sentence only if the sentence represents an abuse of discretion, if the trial judge fails to
consider all legally relevant factors, or if the sentence imposed exceeds the limits
prescribed by law.” State v. Tryba, 2000 UT App 230, ¶ 10, 8 P.3d 274 (citation and
internal quotation marks omitted).

ANALYSIS

I. Prosecutorial Misconduct

¶17 Defendant first argues that the prosecutor engaged in misconduct during the
rebuttal portion of closing argument. Specifically, he contends that by claiming that
Defendant’s witnesses could not be believed because they did not present physical
evidence to corroborate their statements, the prosecutor improperly expressed his
opinion regarding the credibility of witnesses, “emphasized a lack of credibility for the
defense witnesses,” distorted the burden of proof, and presented an incorrect
impression of the law. Defendant also contends that the prosecutor misstated the
prosecution’s burden and the law relating to the element of criminal intent when he
repeatedly used the word “intentionally” while describing Defendant’s activities on the
day in question. Finally, Defendant argues that the prosecutor misstated certain facts
regarding when Defendant disabled Girlfriend’s car and when Girlfriend suffered facial
fractures.

¶18 Defendant acknowledges that he did not preserve the issue of prosecutorial
misconduct, but he contends that we can nonetheless review his claims under the
doctrines of plain error and ineffective assistance of counsel. For a defendant to
establish plain error, he must show that “(i) [a]n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful,” i.e., prejudicial. State v.
Dunn, 850 P.2d 1201, 1208 (Utah 1993). To show ineffective assistance of counsel, a
defendant must satisfy the two‐prong test established in Strickland v. Washington, 466
U.S. 668 (1984), by proving (1) that his counsel rendered deficient performance that fell

20100072‐CA 7
below an objective standard of reasonable professional judgment and (2) that counsel’s
deficient performance prejudiced the defendant. See id. at 687.

¶19 The State concedes that the prosecutor misstated the facts regarding when
Defendant disabled Girlfriend’s car. However, neither that fact nor the prosecutor’s
statements relating to when the victim’s facial fractures occurred implicate any
elements of the charged offenses. Therefore, we conclude that any error related to those
statements is harmless.

¶20 In reviewing the other challenged statements for prosecutorial misconduct, we
must view those statements “in context of the arguments advanced by both sides as
well as in context of all the evidence.” State v. Bakalov, 1999 UT 45, ¶ 56, 979 P.2d 799.
We have carefully reviewed the prosecutor’s rebuttal argument in its entirety, and we
conclude that these statements were not improper. While “a prosecutor engages in
misconduct when he or she expresses personal opinion or asserts personal knowledge
of the facts[,] . . . a prosecutor may draw permissible deductions from the evidence and
make assertions about what the jury may reasonably conclude from those deductions.”
Id. ¶ 57 (citation omitted). See id. (concluding that the prosecutor did not err when he
stated, “You know that [the victim] told the truth” and “She told the truth,” because
those statements constituted assertions about what the jury may reasonably have
inferred from the evidence). Here, when the prosecutor referred to the lack of witness
credibility and the inconsistency of witness testimony, he was merely drawing
inferences based on the evidence and suggesting to the jury that it do the same.
Similarly, the prosecutor did not act improperly when he pointed out the lack of
corroborating evidence. Again, the prosecutor’s statements invited the jury to infer
from the evidence that certain testimony might not be entirely credible. “[T]he
prosecution has the duty to argue the case based on the total picture of the evidence or
lack of evidence, including the paucity or absence of evidence adduced by the defense.”
State v. Tilt, 2004 UT App 395, ¶ 18, 101 P.3d 838 (alteration in original) (citation and
internal quotation marks omitted). Therefore, the prosecutor’s statements regarding
witness testimony did not constitute misconduct.

¶21 Finally, Defendant objects to the prosecutor’s repeated use of the word
“intentionally.” He insists that the repetition of this word misrepresented the State’s
burden to prove criminal intent as to the kidnapping and assault charges and that it
misled the jury regarding the intent element of these offenses. Defendant argues that
this confused the jury by implying that Defendant’s intent to perform other acts, for

20100072‐CA 8
example, intentionally apologizing to his dog or intentionally writing his verse on the
wall, would “qualify as criminal intent for the offenses in this case.”

¶22 Intent is usually established by inference. See State v. Jenson, 280 P. 1046, 1048
(Utah 1929). See also State v. Colwell, 2000 UT 8, ¶ 43, 994 P.2d 177 (“We have held that
intent to commit a crime may be inferred from the actions of the defendant or from
surrounding circumstances.”) (citation and internal quotation marks omitted). And the
jury was so instructed in this case: “Intent, being a state of mind, is seldom susceptible
of proof by direct and positive evidence and may ordinarily be inferred from acts,
conduct, statements and circumstances.” Here, the prosecutor’s repetition of the word
“intentionally” when describing Defendant’s activities suggested that the jury could
infer from Defendant’s many intentional acts on the day in question that his criminal
acts were also intentional. The use of the word did not, however, imply that intent to
do these various other acts equated to legal intent to commit the crimes. The prosecutor
was, after all, responding to defense counsel’s argument that the key events were an
accident and, in context, his statements were not likely to cause confusion about the
jury’s duty to find the requisite intent for the underlying crimes. Thus, we conclude
that the prosecutor did not act improperly when he employed repetition as a rhetorical
device to underscore the intentional nature of all of Defendant’s actions on the day in
question, including his criminal acts.

¶23 As noted above, the prosecutor may properly suggest that the jury draw
inferences based on the evidence. See Bakalov, 1999 UT 45, ¶ 57. We also note that the
jury was instructed regarding the elements of the crimes, the burden of proof, and the
key terms used in the instructions, including “intent,” “intentionally,” and
“knowingly.”3 These instructions adequately directed the jury to find intent for the

3
The trial court instructed the jury that a conviction of aggravated kidnapping
required the State to establish that Defendant’s actions in committing the crime “were
done intentionally or knowingly” and that a conviction of aggravated assault required
the State to establish that Defendant “intentionally cause[d] serious bodily injury to
another; or . . . use[d] a dangerous weapon or other means of force likely to produce
death or serious bodily injury.” The court also instructed the jury as follows:
A person engages in conduct intentionally, or with
intent or willfully with respect to the nature of his conduct
(continued...)

20100072‐CA 9
underlying crimes and were phrased so as to minimize any potential confusion as to the
intent element that the prosecutor’s argument might otherwise have caused.
Accordingly, we conclude that the prosecutor’s repetition of the word “intentionally”
did not mislead the jury regarding the intent element of the charges or misstate the
State’s burden to establish intent.

¶24 Looking at the statements to which Defendant objects in the full context of the
prosecutor’s argument, we do not view this as the kind of “argument which would
divert the jury from its duty to decide the case on the evidence.” State v. Todd, 2007 UT
App 349, ¶ 18, 173 P.3d 170 (citation and internal quotation marks omitted), cert. denied,
186 P.3d 957 (Utah 2008). See, e.g., id. ¶¶ 19, 22, 28 (stating that prosecutors should not
appeal to the prejudices of the jury, allude to matters not supported by the evidence, or
misstate the law during closing argument). Instead, his statements simply reflect good
advocacy, the drawing of reasonable inferences, and the effective use of a rhetorical
device.

¶25 Moreover, “[i]f proof of defendant’s guilt is strong, the challenged conduct or
remark will not be presumed prejudicial.” State v. Troy, 688 P.2d 483, 486 (Utah 1984)
(citation and internal quotation marks omitted). Here, given the extensive evidence
against him, Defendant cannot prevail under either plain error or ineffective assistance
of counsel because he has not demonstrated that the prosecutor’s statements prejudiced
him, i.e., that in the absence of the challenged statements, the outcome would likely
have been more favorable to him. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)
(stating that the plain error doctrine requires a defendant to demonstrate harm);

3
(...continued)
or to a result of his conduct, when it is his conscious
objective or desire to engage in the conduct or cause the
result.
A person engages in conduct knowingly, or with
knowledge, with respect to his conduct or to circumstances
surrounding his conduct when he is aware of the nature of
his conduct or the existing circumstances. A person acts
knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably
certain to cause the result.

20100072‐CA 10
Strickland v. Washington, 466 U.S. 668, 692 (1984) (stating that the ineffective assistance of
counsel doctrine requires a showing of prejudice). Accordingly, we conclude that the
prosecutor’s statements do not warrant reversing Defendant’s convictions.
II. Sentencing

¶26 Defendant argues that the trial court abused its discretion by sentencing him to
life in prison without the possibility of parole for the aggravated kidnapping conviction.
Specifically, Defendant contends that the court failed to adequately consider the
interests of justice when it rejected evidence of mitigating factors and disregarded the
role of the Board of Pardons and Parole to assess whether Defendant would eventually
be able to make progress toward rehabilitation. We will not overturn a sentence on
appeal “unless the trial court has abused its discretion, failed to consider all legally
relevant factors, or imposed a sentence that exceeds legally prescribed limits.” State v.
Nuttall, 861 P.2d 454, 456 (Utah Ct. App. 1993).

¶27 The presumptive sentence for a conviction of aggravated kidnapping is
ordinarily a term of imprisonment of fifteen years to life. See Utah Code Ann. § 76‐5‐
302(3)(a) (2008). However, where, as in this case, a defendant causes serious bodily
injury to another during the course of the aggravated kidnapping,4 the presumptive
sentence is imprisonment for life without parole. See id. § 76‐5‐302(3)(b). The trial court
may impose a lesser term if it is “in the interests of justice.” See id. § 76‐5‐302(4).

¶28 Defendant first argues that the trial court abused its discretion by (1) failing to
consider evidence that Defendant was provoked, (2) disregarding Defendant’s
community and family support, and (3) failing to consider that he had no recent serious
convictions. Defendant raised these factors at the sentencing hearing and now contends
that the court “rejected the mitigating factors without assessing their proper merit.”

¶29 Defendant’s argument is unpersuasive. Defendant bears the burden to show that
the trial court did not properly consider all appropriate factors. See State v. Helms, 2002
UT 12, ¶ 16, 40 P.3d 626. The record shows that the trial court expressly considered all
of Defendant’s mitigating evidence. Defendant has demonstrated no more than his
disagreement with how the court weighed the mitigating factors. See id. ¶ 14. After

4
Defendant stipulated that Girlfriend’s injuries constituted “serious bodily
injury” under the statute.

20100072‐CA 11
reviewing the court’s discussion of the mitigating evidence Defendant offered, we
conclude that the court adequately assessed it.

¶30 Defendant also argues that the trial court abused its discretion because the
presumptive sentence of life without parole for aggravated kidnapping with serious
bodily injury disregards the role of the Board of Pardons and Parole to assess whether
Defendant “would be able to make progress in his rehabilitation for parole in the
future.” We note that the presumptive sentence is not a mandatory minimum sentence.
The statutory language provides that the presumptive sentence is merely a starting
point, and the trial court retains discretion to reduce the sentence based on mitigating
factors and other factors in the interests of justice. See Utah Code Ann. § 76‐5‐302(4).

¶31 As an initial matter, the State argues that we should not consider this issue
because Defendant failed to preserve it. Defendant contends that he preserved this
claim based on his counsel’s argument during the sentencing hearing in which counsel
stated:
Although what he’s convicted of is extraordinarily
serious, there ought to be some possibility of hope, some
possibility that at some distant point in time if he can
demonstrate a sufficient reformation by that time, that the
State would—that the Board of Pardons would at least be in
a position to consider it.

Counsel’s statement clearly advocates for a sentence that would allow the Board of
Pardons and Parole to assess Defendant’s rehabilitation prospects at some future time.
Accordingly, Defendant preserved this issue.

¶32 In support of his argument that the trial court’s sentence of life without parole
constituted an abuse of discretion by divesting the Board of Pardons and Parole of its
discretion to consider Defendant’s progress toward rehabilitation,5 Defendant relies on
State v. Smith, 909 P.2d 236 (Utah 1995), and State v. Strunk, 846 P.2d 1297 (Utah 1993),
superseded by statute on other grounds, Utah Code Ann. § 76‐3‐401 (2008). In Smith, the
trial court imposed a sentence of four consecutive terms of fifteen years to life for

5
Defendant does not contend that the trial court erred by imposing consecutive
sentences.

20100072‐CA 12
aggravated kidnapping, rape of a child, and two counts of sodomy on a child, all arising
from a single criminal episode. See 909 P.2d at 238, 245. Recognizing that the four
consecutive terms effectively constituted a minimum sentence of sixty years, which the
Utah Supreme Court deemed “tantamount to a minimum mandatory life sentence,” id.
at 244, the Court vacated the sentence and remanded for resentencing. See id. at 245.
Similarly, in Strunk, a sixteen‐year‐old defendant received consecutive sentences
totaling twenty‐four years and the Court vacated his sentence and remanded for
resentencing. See Strunk, 846 P.2d at 1298, 1301–02.

¶33 In both cases, the Utah Supreme Court focused on the role of the Board of
Pardons and Parole when considering whether the lower courts had abused their
discretion by imposing consecutive sentences. In Smith, the Court focused on the “wide
latitude” that the Board of Pardons has to decide “what a maximum sentence ought to
be” and noted that the Board “is in a far better position than a court to monitor a
defendant’s subsequent behavior and possible progress toward rehabilitation while in
prison and to adjust the maximum sentence accordingly.” 909 P.2d at 244. In Strunk,
the Court stated that “the twenty‐four‐year [minimum] term rob[bed] the Board of
Pardons of any flexibility to parole [the defendant] sooner,” 846 P.2d at 1301, and that
the trial court “fail[ed] to sufficiently consider defendant’s rehabilitative needs in light
of his extreme youth and the absence of prior violent crimes,” id. at 1302.

¶34 We are not persuaded that the trial court in this case abused its discretion by
imposing a sentence that precludes the Board of Pardons and Parole from considering
Defendant’s progress toward rehabilitation. First, the Legislature expressly provided
for a presumptive sentence of life without parole for Defendant’s crime. Practically
speaking, the presumptive sentence itself, not an exercise of judicial discretion,
forecloses the usual role of the Board of Pardons and Parole. Second, implicit in the
statutory language establishing the presumptive sentence of life without parole is the
Legislature’s judgment that rehabilitation is not a primary goal for defendants
convicted under this statute.6 See Graham v. Florida, 130 S. Ct. 2011, 2029–30 (2010) (“A

6
“Incarceration may be for purposes other than rehabilitation.” State v. Bishop,
717 P.2d 261, 268 (Utah 1986). Retribution, deterrence, and incapacitation are other
penalogical justifications that have been recognized as legitimate. See Ewing v.
California, 538 U.S. 11, 25 (2003) (plurality opinion).

20100072‐CA 13
sentence of life imprisonment without parole . . . forswears altogether the rehabilitative
ideal.”).

¶35 “The apportionment of punishment entails, in Justice Frankfurter’s words,
‘peculiarly questions of legislative policy.’” Solem v. Helm, 463 U.S. 277, 314 (1983)
(Burger, C.J., dissenting) (citation omitted). “Legislatures are far better equipped [than
courts] to balance the competing penal and public interests and to draw the essentially
arbitrary lines between appropriate sentences for different crimes,” id., and therefore,
we defer to the Legislature’s determination regarding criminal penalties.7 See State v.
Bishop, 717 P.2d 261, 269 (Utah 1986) (“[S]ubstantial deference must be accorded to the
prerogatives of legislative power ‘in determining the types and limits of punishments
for crimes.’”) (quoting Solem, 463 U.S. at 290).

7
We would be remiss if we did not note that the sentence in this case does,
indeed, seem drastic, not only when considered in the context of the crime at issue, but
also when this sentence is compared to sentences recently imposed for other, more
heinous acts. For example, one defendant fatally beat and stabbed his girlfriend in an
attack the trial court described as “brutal in the extreme.” Brooke Adams, “Demons”
Will be with You, Killer Told, Salt Lake Tribune, Sept. 10, 2011, at B1. Another defendant
stabbed his victim fourteen times in an altercation about a cigarette. See Stephen Hunt,
Ogden Man Gets up to Life for 2009 Slaying, Salt Lake Tribune, Sept. 10, 2011, at B3. Both
defendants were convicted of murder, yet each received a sentence of fifteen years to
life. As compared to those cases, it is troubling that Defendant would receive a sentence
of life without the possibility of parole for crimes which, while very serious, did not
include a homicide.
Nevertheless, we recognize that “[o]utside the context of capital punishment”
successful challenges based on a proportionality argument are “exceedingly rare,”
Solem v. Helm, 463 U.S. 277, 289–90 (1983) (citation and internal quotation marks
omitted), which no doubt explains why Defendant did not raise this argument. See, e.g.,
Harmelin v. Michigan, 501 U.S. 957, 994–96 (1991) (upholding a mandatory life sentence
without possibility of parole for possession of more than 650 grams of cocaine even
though the defendant had no prior felony convictions). But see Solem, 463 U.S. at 281,
303 (holding that a life sentence without the possibility of parole for the crime of
uttering a “no account” check for $100 was unconstitutionally harsh).

20100072‐CA 14
¶36 We recognize that Utah has an “acknowledged policy of ensur[ing] that the
Board of Pardons is given the appropriate opportunity to determine the ultimate length
of an individual’s sentence.” State v. Spencer, 2011 UT App 219, ¶ 12, 258 P.3d 659
(alteration in original) (citation and internal quotation marks omitted). See Smith, 909
P.2d at 244 (“[T]he Board of Pardons [has] wide latitude in deciding what a maximum
sentence ought to be.”). Nevertheless, its authority is not unlimited. See Utah Const.
art. VII, § 12(2)(a) (“The Board of Pardons and Parole . . . may grant parole . . . , subject to
regulations as provided by statute.”) (emphasis added); Utah Code Ann. § 77‐27‐5(1)(a)
(Supp. 2012) (“The Board of Pardons and Parole shall determine . . . when and under
what conditions, subject to this chapter and other laws of the state, persons committed to
serve sentences in . . . all felony cases . . . may be released upon parole[.]”) (emphasis
added). “[T]he Legislature is specifically authorized to enact standards governing
when persons convicted of various crimes are eligible for parole.” Bishop, 717 P.2d at
264. See, e.g., Utah Code Ann. § 76‐3‐201(2) (Supp. 2012) (“Within the limits prescribed
by this chapter, a court may sentence a person convicted of an offense to any one of the
following sentences or combination of them: . . . (e) . . . to life in prison without
parole[.]”). Thus, when the Legislature amended the aggravated kidnapping statute to
make life without parole the presumptive sentence for Defendant’s offense, it
essentially countermanded, for this crime, Utah’s long‐standing sentencing philosophy
of indeterminate sentencing, which typically vests discretion in the Board of Pardons
and Parole to determine the actual time served by a defendant. This policy judgment is
reinforced in section 76‐3‐406 of the Utah Code, which specifically states that “probation
shall not be granted, the execution or imposition of sentence shall not be suspended,
[and] the court shall not enter a judgment for a lower category of offense, . . . the effect
of which would in any way shorten the prison sentence for any person who commits . . .
a first degree felony involving . . . aggravated kidnaping.” Utah Code Ann. § 76‐3‐406
(Supp. 2012).8

¶37 By establishing a presumptive sentence of life in prison without the possibility of
parole when aggravated kidnapping results in serious bodily injury, the Legislature

8
We note that the Board retains some limited authority over a defendant
sentenced to life without parole. See Utah Code Ann. § 77‐27‐9(6) (Supp. 2012) (“The
board may parole a person sentenced to life in prison without parole if the board finds
by clear and convincing evidence that the person is permanently incapable of being a
threat to the safety of society.”).

20100072‐CA 15
clearly identified what it considers to be an appropriate sentence for this serious crime.
Here, the trial court’s sentence was consistent with the presumptive sentence under
section 76‐5‐302(3)(b) of the Utah Code. We therefore conclude that the court did not
abuse its discretion by imposing a sentence that precludes the Board of Pardons and
Parole from performing its usual role in Defendant’s case.

CONCLUSION

¶38 The prosecutor’s statements during closing argument do not warrant reversing
Defendant’s convictions. The trial court adequately considered Defendant’s proffered
mitigating evidence and did not abuse its discretion by sentencing Defendant to life in
prison without the possibility of parole for his conviction of aggravated kidnapping.

¶39 Affirmed.

____________________________________
Gregory K. Orme, Judge

‐‐‐‐‐

¶40 WE CONCUR:

____________________________________
Stephen L. Roth, Judge

____________________________________
Michele M. Christiansen, Judge

20100072‐CA 16