2016 UT App 111
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LEANDRO REY GARCIA,
Appellant.
Memorandum Decision
No. 20140507-CA
Filed May 26, 2016
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 131909107
Joel J. Kittrell and Kristina H. Ruedas, Attorneys
for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L.
ROTH concurred.1
BENCH, Senior Judge:
¶1 Leandro Rey Garcia appeals his conviction of robbery, a
second-degree felony. We affirm.
¶2 Garcia first argues that the evidence presented at trial was
insufficient for the jury to convict him of robbery. Because this
issue is unpreserved, Garcia requests that we consider it on
grounds of plain error and ineffective assistance of counsel.
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Garcia
Garcia cannot prevail on the ground of plain error without first
demonstrating that an error exists. State v. King, 2006 UT 3, ¶ 21,
131 P.3d 202. Similarly, he cannot prevail on the ground of
ineffective assistance based on counsel’s failure to make a futile
motion or objection. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546. Because we determine that Garcia’s conviction was
supported by sufficient evidence, Garcia cannot prevail on either
ground.
¶3 A jury verdict will be set aside for insufficient evidence
‚only when the evidence is sufficiently inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime of which he was convicted.‛ State v. Shumway, 2002 UT
124, ¶ 15, 63 P.3d 94.
A person commits robbery if . . . the person
unlawfully and intentionally takes or attempts to
take personal property in the possession of another
from his person, or immediate presence, against his
will, by means of force or fear, and with a purpose
or intent to deprive the person permanently or
temporarily of the personal property . . . .
Utah Code Ann. § 76-6-301 (LexisNexis 2012).
¶4 The victim testified that she was walking down the street
at approximately 2:00 a.m. when Garcia began yelling at her
from across the street, saying, ‚Hey, sexy mama‛ and ‚Hey, I’m
talking.‛ The victim ignored Garcia and began walking faster.
Soon after, the victim heard someone running behind her. The
victim turned around to see who was running and made eye
contact with Garcia, who ‚stopped and stood there and stared at
[her].‛ The victim began walking quickly toward a nearby 7-
Eleven, but before she could get there, Garcia grabbed the strap
of her purse and pulled her around to face him. When the victim
turned around, she shoved Garcia away from her and told him
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State v. Garcia
not to touch her. Garcia responded by threatening her with a
statement along the lines of ‚I will kick your ass.‛ The victim
turned away, went ‚as fast as [she] could . . . to the 7-Eleven,‛
and called 911. Garcia did not pursue her further or offer her any
explanation for his behavior.
¶5 When confronted by police, Garcia attempted to explain
his behavior by asserting that when he saw the victim from
across the street, he mistakenly believed she was his cousin. He
claimed that when she ignored him, he thought she must have
been wearing headphones and could not hear him, so he ran up
behind her and tapped her on the shoulder to get her attention.
¶6 The victim’s testimony was sufficient to support the jury’s
finding of the elements of robbery beyond a reasonable doubt,
even in light of Garcia’s defense. Her testimony contradicted
Garcia’s claim because she testified that she turned and made
eye contact with Garcia and that he stopped and stared at her
before he grabbed her purse. If the jury believed the victim, then
Garcia’s defense would not have raised a reasonable doubt as to
his intent. The jury could infer from Garcia’s behavior in
grabbing a stranger’s purse that he intended to deprive her of it.
Thus, the evidence was sufficient to support the jury’s verdict.
¶7 Garcia next argues that his counsel performed
ineffectively by failing to object to the jury instructions on the
ground that they did not include an adequate definition of the
mental state required for a robbery conviction. To prevail on the
ground of ineffective assistance, a defendant must demonstrate,
first, ‚that counsel’s performance was deficient, in that it fell
below an objective standard of reasonable professional
judgment‛ and, second, ‚that counsel’s deficient performance
was prejudicial—i.e., that it affected the outcome of the case.‛
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.
Washington, 466 U.S. 668, 687–88 (1984)). Because we conclude
that further instruction on mental state was unnecessary in the
20140507-CA 3 2016 UT App 111
State v. Garcia
context of this case, Garcia cannot demonstrate that he received
ineffective assistance of counsel.
¶8 Garcia asserts that a more specific definition of
‚intentionally,‛ distinguishing between intentionally engaging
in conduct and intentionally causing a result, was necessary in
order for the jury to have ‚a complete understanding of the
applicable law governing the charge of Robbery.‛ He maintains
that a more specific definition ‚would have clarified to the jury
that it could only convict Mr. Garcia if it found that his
‘conscious objective or desire,’ beyond a reasonable doubt, was
to deprive [the victim] of her purse.‛
¶9 But the jury instructions, as written, did not present any
possibility of confusing the jury on this point. The jury
instruction on robbery mirrored the language of the statute.
Utah Code Ann. § 76-6-301(1)(a) (LexisNexis 2012). Specifically,
it required the jury to find both that Garcia ‚intentionally [took]
or attempt[ed] to take‛ the purse and that he did so ‚with a
purpose or intent to deprive‛ the victim of the purse. See id. In
other words, the jury instructions indicated that Garcia must
have both intentionally engaged in conduct—taking or
attempting to take the purse—and intended a result—that the
victim be deprived of her purse. Providing a more detailed
instruction on the definition of ‚intentionally‛ would have given
the jury no additional clarity; the instructions, as written, clearly
required the jury to find that Garcia acted ‚with a purpose or
intent to deprive‛ the victim of her purse.
¶10 We conclude that the trial court did not plainly err in
failing to direct a verdict for Garcia. We further conclude that
Garcia’s counsel did not perform ineffectively by failing to object
to the sufficiency of the evidence or to the jury instructions.
Accordingly, we affirm.
20140507-CA 4 2016 UT App 111