State v. Williams

2014 UT App 198
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH ,
Plaintiff and Appellee,
v.
CHRISTOPHER WILLIAMS,
Defendant and Appellant.

Opinion
No. 20121061-CA
Filed August 14, 2014

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111900665

Scott S. Bell, Nicole G. Farrell, and Alan S.
Mouritsen, Attorneys for Appellant

Sean D. Reyes and Michelle I. Young, Attorneys
for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.1

BENCH, Senior Judge:

¶1 Christopher Williams appeals from his conviction and
sentence for aggravated kidnapping and aggravated robbery. He
argues that the evidence presented was insufficient to support the
aggravated robbery conviction, that the trial court should have
allowed the admission of certain exculpatory evidence, and that the

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
 State v. Williams

trial court should have granted his motion for a mistrial due to
unanticipated testimony referencing prior bad acts. We affirm.

BACKGROUND2

¶2 In January 2011, Williams arranged to meet the victim at a
grocery store in an attempt to settle a drug debt the victim owed to
Williams’s girlfriend. Williams eventually drove the victim to the
home of his co-defendant, David Nichols. A short time after their
arrival, Nichols beat the victim with a walking stick, rendering him
unconscious. That beating was allegedly a reaction to an insult
made about Nichols’s sister and after Nichols had discovered
something that upset him on the victim’s cell phone. When the
victim awoke, Nichols and Williams were tying him to a chair and
threatening to kill him. They took the victim’s wallet and cell
phone, as well as a food stamp card worth several hundred dollars.
They also took the victim’s coat and shoes.

¶3 Williams then left to get the victim’s car and bring it back to
Nichols’s house. When he returned with the car, Williams
participated in going through the victim’s property that was in his
car. Williams also brought the title to the car into the house.
Nichols wrote a bill of sale transferring the title of the car to
Williams, which the victim was forced to sign.

¶4 Williams and another associate, Max Dozah, then put the
victim in Williams’s girlfriend’s car and told him not to move. They
drove the victim up Parley’s Canyon and then up Emigration
Canyon, threatening him as they drove. There was a metal pipe in
the car, and Dozah threatened to use the pipe both to break the
victim’s legs and to kill him. Williams told the victim that “this is
how they [took] care of their debts, their problems.” They stopped

2. “When reviewing a jury verdict, we examine the evidence and all
reasonable inferences in a light most favorable to the verdict,
reciting the facts accordingly.” State v. Heaps, 2000 UT 5, ¶ 2, 999
P.2d 565.

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 State v. Williams

the car at the snow closure gate in Emigration Canyon and made
the coatless victim get out. Dozah also exited the car and asked
Williams to hand him the metal pipe. Williams held the pipe out to
Dozah, but Dozah ultimately did not take it. After screaming
threats at the victim, Dozah reentered the car, and Dozah and
Williams drove away, leaving the victim in the canyon. The victim
later flagged down someone who called for help. The police
responded, and the victim was eventually transported to a hospital
via ambulance.

¶5 Williams was charged with aggravated kidnapping,
aggravated robbery, and aggravated assault. Prior to trial, the State
moved to exclude Williams’s claim that child pornography was
what Nichols had seen on the victim’s phone. The State argued that
the evidence was irrelevant and extremely prejudicial. But
Williams argued that the evidence was very relevant because it
showed that Nichols had acted alone and spontaneously when
beating the victim with the walking stick. The trial court agreed
with the State and excluded the evidence.

¶6 At trial, during the State’s questioning of the victim, the
victim testified that Williams had “dropped off” drugs to him on
one previous occasion and had been present during other drug
transactions. Williams moved for a mistrial, arguing that this was
prior bad acts evidence and that since it had not been disclosed
prior to trial, it could not be used. The trial court denied Williams’s
motion, reasoning that the State had not been trying to elicit prior
bad acts testimony and that the testimony was not unfairly
prejudicial because “this whole case is about drugs and people who
use drugs and collecting of debts and forgeries and etcetera, to
settle drug debts.”

¶7 At the end of the State’s case, Williams moved for a directed
verdict, arguing that the elements of the charged offenses had not
been proven. The trial court denied the motion, stating that there
had been sufficient evidence from which the jury could find that
Williams committed the charged crimes.

20121061-CA 3 2014 UT App 198
 State v. Williams

¶8 Williams was acquitted of aggravated assault but was
convicted of aggravated kidnapping and aggravated robbery. He
was thereafter sentenced to consecutive sentences of fifteen years
to life and five years to life, respectively. Williams timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Williams argues that the evidence was insufficient to
support his aggravated robbery conviction, specifically the
aggravating factor.

We will affirm a jury’s verdict against a sufficiency of
the evidence challenge “if upon reviewing the
evidence and all inferences that can be reasonably
drawn from it, [we conclude] that some evidence
exists from which a reasonable jury could find that
the elements of the crime had been proven beyond a
reasonable doubt.”

State v. Mills, 2012 UT App 367, ¶ 40, 293 P.3d 1129 (alteration in
original) (quoting State v. Hamilton, 2003 UT 22, ¶ 41, 70 P.3d 111).

¶10 Williams next challenges the trial court’s decision to exclude
testimony regarding child pornography on the victim’s phone. “We
review a trial court’s decision to admit or exclude evidence under
Rule 403 of the Utah Rules of Evidence under an abuse of
discretion standard, and will not overturn a lower court’s
determination of admissibility unless it is beyond the limits of
reasonability.” Diversified Holdings, LC v. Turner, 2002 UT 129, ¶ 6,
63 P.3d 686 (citation and internal quotation marks omitted).
Furthermore, “like any other evidentiary ruling, an erroneous
decision to admit or exclude evidence based on rule 403 cannot
result in reversible error unless the error is harmful.” State v.
Hamilton, 827 P.2d 232, 240 (Utah 1992).

¶11 Finally, Williams challenges the trial court’s denial of his
motion for a mistrial based on the testimony arguably identifying
him as a drug dealer. “We will not reverse a trial court’s denial of

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 State v. Williams

a motion for mistrial absent an abuse of discretion.” State v. Cardall,
1999 UT 51, ¶ 19, 982 P.2d 79 (citation and internal quotation marks
omitted).

ANALYSIS

I. Sufficiency of the Evidence

¶12 Williams argues that the evidence presented at trial was
insufficient to support his aggravated robbery conviction.
Specifically, he argues that there was not sufficient evidence from
which the jury could have found that any aggravating factor was
met for the aggravated robbery charge.3 In his marshaling of the
evidence, see generally Utah R. App. P. 24(a)(9), Williams admits
that there was evidence at trial about the use of two objects that
could qualify as dangerous weapons: the walking stick and the
metal pipe.4 He argues, however, that he was not sufficiently
involved with the use of either object to support the finding of the
aggravating factor.

¶13 The requirement of an aggravating factor is met “if in the
course of committing robbery, [a person] . . . uses or threatens to
use a dangerous weapon.” Utah Code Ann. § 76-6-302(1)

3. The State argues that Williams did not preserve this argument
for appeal. Although the objection below could have been more
detailed, it was not so narrow as to prevent our consideration of
the issue on appeal.

4. Both parties address the possibility that the jury could have
relied on an additional aggravating factor, namely, that in the
course of the robbery the perpetrators “[took] or attempt[ed] to
take an operable motor vehicle,” see Utah Code Ann. § 76-6-
302(1)(c) (LexisNexis 2012). We need not address these arguments
due to our determination that the evidence was sufficient to
support a finding that the dangerous weapon aggravating factor
was met.

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 State v. Williams

(LexisNexis 2012). There was no contention that Williams actually
used a dangerous weapon himself, but he was instead convicted
under an accomplice liability theory. “Every person, acting with the
mental state required for the commission of an offense who directly
commits the offense, who solicits, requests, commands, encourages,
or intentionally aids another person to engage in conduct which
constitutes an offense shall be criminally liable as a party for such
conduct.” Id. § 76-2-202. Thus, for Williams’s conviction to stand,
there must have been evidence supporting the conclusion that
Williams solicited, requested, commanded, encouraged, or
intentionally aided another person in committing an aggravated
robbery.

¶14 Our decision in State v. Lomu, 2014 UT App 41, 321 P.3d 243,
is instructive here. In Lomu, the defendant challenged his
aggravated robbery conviction, arguing that there was insufficient
evidence to support the conviction because he did not anticipate
that his co-perpetrator would threaten the convenience store clerk
with the use of a gun just prior to the defendant taking beer from
the store. Id. ¶¶ 1–2, 19. This court determined that there was
sufficient evidence from which the jury could have found that the
defendant had the requisite mens rea for the aggravated robbery
charge. Id. ¶ 21. We stated,

When a defendant is put on notice that a
co-perpetrator has acted in a way that elevates a
simple theft to aggravated robbery and he chooses to
“actively participate[] and aid[]” that person “rather
than fleeing or even remaining without
participating,” it is proper for a jury to presume the
defendant had the requisite mental state for the
elevated crime.

Id. ¶ 20 (alterations in original) (quoting State v. Garcia-Vargas, 2012
UT App 270, ¶ 17, 287 P.3d 474). We determined that even if the
defendant did not make a threat and did not know that his co-
perpetrator planned to make a threat using a gun, he “actively
participated in the elevated crime by choosing to remove the beer
from the store after the threat was made.” Id. ¶ 21. Thus, a jury

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 State v. Williams

could conclude that the defendant “stole the beer knowing a threat
involving a gun had been made” and a “conviction of aggravated
robbery under an accomplice theory [was] legally sustainable.” Id.

¶15 Here Nichols beat the victim with the walking stick,
rendering him unconscious. When the victim awoke, both Nichols
and Williams were tying him to a chair, while Williams threatened
the victim’s life. Nichols and Williams then stole the victim’s
possessions out of his pockets and later made him sign over title to
his car. Thus, even if Williams did not anticipate the beating, he
actively participated in the crime after he knew the beating
occurred, that is, he actively participated in the crime after it had
been elevated to an aggravated status. Thus, there is sufficient
evidence from which the jury could find that he was intentionally
participating in an aggravated robbery.

¶16 As to the metal pipe, Williams’s involvement is even more
apparent. During the drive up the canyon, Williams heard Dozah
threaten to break the victim’s legs and kill him, and Williams
added his own threat that “this is how they [took] care of their
debts, their problems.” Then when Dozah was outside with the
victim and asked for the metal pipe, Williams handed it out the
window to Dozah. Thus, Williams intentionally aided in
threatening the victim with the metal pipe.

¶17 Williams further argues that neither the beating with the
walking stick nor the threats with the metal pipe occurred “in the
course of committing robbery,” as required by the aggravated
robbery statute, see Utah Code Ann. § 76-6-302(1) (LexisNexis
2012). “[A]n 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.” Id. § 76-6-302(3). There is evidence from
which the jury could have determined that the acts here were
committed in the course of a robbery.

¶18 As to the walking stick, there was testimony that Williams
and Nichols intended to rob the victim before bringing him to
Nichols’s house, that Nichols beat the victim at the house, and that

20121061-CA 7 2014 UT App 198
 State v. Williams

Nichols and Williams then took the victim’s property. The jury
could therefore have concluded that the beating occurred “during
the commission of” a robbery. See id. As to the metal pipe, there is
testimony that Dozah and Williams drove the victim up the canyon
immediately after the robbery. And Williams provides us with no
authority that would suggest that the drive up the canyon was too
long to qualify as the “immediate flight” after the robbery. Thus,
we determine that the jury could have concluded that both actions
were taken in the course of the commission of the robbery as
required by statute.

II. Excluded Evidence

¶19 Williams argues that the court erred by excluding evidence
that Nichols found child pornography on the victim’s cell phone.
However, any error that the trial court may have made in this
regard was harmless. See generally State v. Hamilton, 827 P.2d 232,
240 (Utah 1992) (“[W]e can make an examination of the correctness
of the trial court’s rule 403 ruling unnecessary by finding that any
error was harmless.”).

¶20 “Harmless errors are errors which, although properly
preserved below and presented on appeal, are sufficiently
inconsequential that we conclude there is no reasonable likelihood
that the error affected the outcome of the proceedings.” Id. (citation
and internal quotation marks omitted). “For an error to require
reversal, the likelihood of a different outcome must be sufficiently
high to undermine confidence in the verdict.” Id. (citation and
internal quotation marks omitted).

¶21 Williams argues that the evidence was highly probative
because it supported his assertion that he was not a part of a plan
to beat the victim with the walking stick and that Nichols acted
spontaneously and independently. Although the trial court
allowed testimony that there was something on the phone that
enraged Nichols, Williams argues that knowing the specific detail
that child pornography was the trigger makes it much more
believable that Nichols would have spontaneously lashed out at the
victim. But as we have discussed above, see supra ¶¶ 15–16, the

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 State v. Williams

aggravated robbery conviction did not rest on the question of
whether Williams had prior knowledge that Nichols would beat
the victim. Instead, the jury needed only to determine that Williams
intentionally aided in the robbery once it had been elevated to an
aggravated robbery. Thus, we do not agree that the exclusion of the
specifics as to what prompted the beating created a sufficiently
high likelihood of a different outcome to undermine our confidence
in the verdict. We therefore determine that any error in this regard
was harmless. Cf. State v. White, 880 P.2d 18, 23–24 (Utah Ct. App.
1994) (determining any error was harmless where “[t]he presence
or absence of the [challenged evidence] would be wholly irrelevant
to the jury’s determination [regarding the defendant’s mental
state]”).

III. Rule 404(b) Evidence

¶22 Williams argues that the trial court erred in denying the
motion for a mistrial that he made after the victim referenced
meeting him at drug pick-ups and drop-offs. Specifically, Williams
challenged the following testimony:

Q. So when did you first get to know the
defendant?
A. I had quite a few dealings with [his
girlfriend] and then I think he was at a pickup I was
at one time that I got introduced to him at. I believe
that’s how I met him.
Q. So prior to January 20th of 2011 how many
times did you interact with the defendant?
A. [Williams] actually dropped off to me one
time at Jubilee Parking lot in West Valley and
probably maybe three other interactions besides that.
Q. And are those interactions usually with [his
girlfriend] involved?
A. Yeah, I think Jubilee was the only time I
was alone with [Williams] when he dropped off.

In denying Williams’s motion, the trial court reasoned,

20121061-CA 9 2014 UT App 198
 State v. Williams

[T]his whole case is about drugs and people who use
drugs and collecting of debts and forgeries and
etcetera, to settle drug debts. It just seem[s] to me
that it’s [not] that harmful for the jury to hear that the
defendant may have been engaged in some other
incident with the complaining witness where drugs
were dropped off or picked up. It just doesn’t seem
to me to be that harmful.

¶23 “It is the trial court’s responsibility to determine if an
incident rises to the level requiring a mistrial, and it is the trial
court which must decide if an incident may have or probably
influenced the jury, to the prejudice of [the defendant].” State v.
Cardall, 1999 UT 51, ¶ 18, 982 P.2d 79 (alteration in original)
(citation and internal quotation marks omitted). “Moreover, [w]e
review such a decision with just deference because of the
advantaged position of the trial judge to determine the impact of
events occurring in the courtroom on the total proceedings.” Id.
¶ 20 (alteration in original) (citation and internal quotation marks
omitted). And “[u]nless a review of the record shows . . . that the
incident so likely influenced the jury that the defendant cannot be
said to have had a fair trial, we will not find that the court’s
decision was an abuse of discretion.” Id. ¶ 19 (alteration and
omission in original) (citation and internal quotation marks
omitted).

¶24 We cannot say that the limited testimony challenged here
was so likely to have influenced the jury that Williams did not have
a fair trial. The only new information in the challenged testimony
was simply that on one occasion Williams himself dropped drugs
off to the victim. Other unchallenged testimony, some by Williams
himself, showed Williams’s drug use and his connection with drug
dealing. Indeed, the very reason Williams was involved in the
situation here was to collect a drug debt owed to his girlfriend.
Thus, the trial court did not abuse its discretion in denying
Williams’s motion for a mistrial.

¶25 Williams argues that rule 404(b) of the Utah Rules of
Evidence prohibits admission of the contested testimony. Rule

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 State v. Williams

404(b) prohibits admission of “[e]vidence of a crime, wrong, or
other act . . . to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character.” Utah R. Evid. 404(b)(1). However, prior bad acts
evidence “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. R. 404(b)(2). The State
here was not intentionally introducing the evidence to argue that
Williams acted like a drug dealer during the events in question, but
instead the evidence came in when the State was trying to show
prior association between Williams and the victim. Thus, the
testimony had a proper non-character purpose. And, as discussed
above, we cannot say the trial court abused its discretion when
determining that the contested testimony was not unfairly
prejudicial to Williams. See generally id. R. 403 (“The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice . . . .”).

¶26 Williams alternatively argues that under rule 404(b), the
State was required to give him pretrial notice that the contested
evidence would be used. However, rule 404(b) requires that, when
requested, the State must “provide reasonable notice of the general
nature of any [bad acts] evidence that the prosecutor intends to offer
at trial.” Id. R. 404(b)(2)(A) (emphasis added). Because the trial
court determined that the State did not intend to elicit the contested
testimony, the notice requirement of rule 404(b) is not applicable.5

5. Further, even were the notice requirement applicable, Williams
should have requested a continuance to remedy any harm caused
by the surprise evidence. See State v. Rugebregt, 965 P.2d 518, 522
(Utah Ct. App. 1998) (“When the prosecution introduces
unexpected testimony, a defendant essentially waive[s] his right to
later claim error if the defendant fails to request a continuance or
seek other appropriate relief under Rule 16(g) [of the Utah Rules of
Criminal Procedure].” (first alteration in original) (citation and
internal quotation marks omitted)); see also State v. Alvarado, 2014
UT App 87, ¶ 27 n.5, 325 P.3d 116 (“Admission of the evidence after
(continued...)

20121061-CA 11 2014 UT App 198
 State v. Williams

CONCLUSION

¶27 There was sufficient evidence from which the jury could
have convicted Williams of aggravated robbery. And any error
regarding the trial court’s exclusion of testimony regarding the
child pornography found on the victim’s phone was harmless
error. Also harmless were the unanticipated responses of the victim
regarding his prior association with Williams, and the trial court
therefore did not err in denying Williams’s motion for a mistrial.
We affirm.

5. (...continued)
consideration of the State’s failure to provide notice under rule
404(b) would likely trigger the same analysis as under rule 16, that
is, the application of the requirement to request a
continuance . . . .”).

20121061-CA 12 2014 UT App 198