State v. Gallegos

2018 UT App 112

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
STEPHANIE MARIE GALLEGOS,
Appellant.

Opinion
No. 20150881-CA
Filed June 14, 2018

Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 131401054

Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 During a birthday dance party gone wrong, Stephanie
Marie Gallegos and a group of celebrators formed a semicircle
around Victim and shouted expletives at her before breaking
into an all-out melee. A member of the group hit Victim on the
side of the head with a beer mug and pushed her over a table.
Victim may have blacked out as she was kicked on the ground.
A security video showed Gallegos eventually being pulled from
the brawl. Victim sustained a broken nose, broken toe, a torn ear,
and scrapes and bruises. The State charged Gallegos for her
involvement in the beating, and a jury convicted her as an
accomplice to assault. Gallegos appeals, contending that the
evidence at trial was insufficient to support her conviction and
 State v. Gallegos

that the conviction should be reversed for prosecutorial
misconduct. We affirm.

BACKGROUND 1

¶2 Gallegos and a group of her friends were at a dance club
celebrating Gallegos’s birthday. Victim happened to be at the
same club that evening. As Victim and her friend exited the
restroom, the door swung open and bumped one of Gallegos’s
friends. A member of Gallegos’s party warned Victim’s friend to
“watch yourself.” Victim’s friend apologized, but Gallegos’s
friend repeated her warning. Victim interjected, and Gallegos
and her friends began to focus their aggression on her.

¶3 Gallegos and three other women stood up and formed a
semicircle around Victim. They shouted profanities at Victim,
who testified that she felt threatened by the group’s verbal
attacks. Gallegos’s friend eventually shoved Victim, and Victim
retaliated with a punch. A security video shows the group,
including Gallegos, converging on Victim, advancing forward,
and forcing Victim backward several feet toward a wall. One of
the women hit Victim on the side of the head with a beer mug.
Victim was eventually thrown over a table and toppled to the
ground.

¶4 The women kicked and hit Victim and pulled her hair
while she lay on the ground in a fetal position. Others joined the
fight, but Victim could not see anyone’s face because of her
position. Victim testified that she “might have lost
consciousness” during the brawl.

¶5 Security personnel eventually broke up the fight. The
security video shows Gallegos being yanked from the fray.

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Brown, 948 P.2d 337, 339 (Utah 1997).

20150881-CA 2 2018 UT App 112
 State v. Gallegos

Victim was treated for a broken nose, a torn ear, and many
scrapes and bruises. Three years after the attack, Victim still
reported difficulty breathing as a result of her broken nose and
doctors have recommended nasal surgery.

¶6 After the beating, Victim identified Gallegos as “one of
the girls.” Victim’s friend and other club patrons also identified
Gallegos as one of the people involved in the skirmish. Police
detained Gallegos at the scene and the State eventually charged
her with assault, which was enhanced to a third degree felony
for having acted “in concert with two or more persons.” See Utah
Code Ann. § 76-3-203.1(2)(a) (LexisNexis 2017).

¶7 At trial, Gallegos moved for a directed verdict. She
argued, “The State did not make a prima facie case that [she]
assaulted the victim” and that “there’s been no evidence that her
activity led to the substantial bodily injury, or that there was any
meeting of the minds, no testimony of people saying jump her,
no party liability to attach that to.” The trial court denied the
motion.

¶8 Also at trial, the defense called Gallegos’s friend
(Witness), who was present during the altercation, to testify.
Witness testified that she believed Gallegos jumped in to break
up the fight rather than to assault Victim. However, Witness
testified that Gallegos was hit in the face and eventually began
throwing punches. Witness testified that the fight did not seem
to be directed at a particular person, but rather was “all amongst
themselves. . . . just arms flying and hitting whoever was the
closest.”

¶9 Finally, during rebuttal on closing argument, the State
explained accomplice liability and argued,

This is the same theory applied at a robbery. The
getaway driver is just as guilty as the person who’s
inside. They may treat it differently in sentencing,
but again you guys don’t worry about sentencing.

20150881-CA 3 2018 UT App 112
 State v. Gallegos

All you guys are there to determine is whether . . .
she’s guilty.

The State also offered during closing argument,

This is, like I said, just a gang beating. In my
opinion, not in a street gang sense of the term, but
they are ganging up on her and attack her.

Gallegos did not object to either statement.

¶10 The jury returned a guilty verdict. Gallegos appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Gallegos raises two issues on appeal. First, she contends
that the State presented insufficient evidence to support her
assault conviction, and particularly that the evidence does not
support that Gallegos “acted as an accomplice to the assault by
‘intentionally aid[ing]’ the principal actor in its commission.”
“We will reverse a jury conviction 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 [she] was convicted.” State v. Shumway, 2002 UT 124, ¶ 15,
63 P.3d 94.

¶12 Second, Gallegos contends that the prosecutor engaged in
misconduct during the State’s closing rebuttal argument.
Gallegos concedes that this challenge is unpreserved, and thus
asks that we review it for plain error or ineffective assistance of
counsel. “The plain error standard of review requires an
appellant to show the existence of a harmful error that should
have been obvious to the district court. An ineffective assistance
of counsel claim raised for the first time on appeal presents a
question of law.” State v. Ringstad, 2018 UT App 66, ¶ 32 (cleaned
up).

20150881-CA 4 2018 UT App 112
 State v. Gallegos

ANALYSIS

I. Preservation

¶13 We first address the State’s threshold argument that
Gallegos’s challenge to the sufficiency of the evidence was
unpreserved. After reviewing the record we are satisfied that
Gallegos’s contention was adequately preserved.

¶14 An issue is preserved if it is “presented to the trial court
in such a way that the trial court has an opportunity to rule on
that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801 (cleaned up). “For a trial court to be afforded an
opportunity to correct the error (1) the issue must be raised in a
timely fashion, (2) the issue must be specifically raised, and
(3) the challenging party must introduce supporting evidence or
relevant legal authority.” Id. (cleaned up). “Further, where a
motion for a directed verdict makes general assertions but fails
to assert the specific argument raised on appeal, the directed
verdict motion itself is insufficient to preserve the more specific
argument for appeal.” State v. Bosquez, 2012 UT App 89, ¶ 8, 275
P.3d 1032; see also State v. Patrick, 2009 UT App 226, ¶¶ 15–16, 217
P.3d 1150 (holding that a specific defense of habitation argument
was not preserved by argument on a separate claim of self-
defense).

¶15 Here, Gallegos “moved to dismiss,” saying “the State did
not make a prima facie case that defendant assaulted the victim”
and “there’s been no evidence that her activity led to the
substantial bodily injury, or that there was any meeting of the
minds, no testimony of people saying jump her, no party liability
to attach that to.” On appeal she rephrases her argument,
contending that the evidence does not support the finding that
her activities “amounted to intentionally aiding in the
commission of the assault that caused [Victim] to suffer
substantial bodily injury.”

¶16 First, there is no question that Gallegos made a timely
directed verdict motion. Second, we are satisfied that the issue

20150881-CA 5 2018 UT App 112
 State v. Gallegos

was specifically raised. On the surface, Gallegos’s argument on
appeal appears to shift its focus to challenge the State’s evidence
regarding intent. However, Gallegos’s motion and arguments
below are not so tangential that they do not mirror the specific
arguments on appeal. Though worded differently and cursorily,
the argument below was that the evidence adduced at trial was
insufficient to meet the elements of the offense, and particularly
that there was no “meeting of the minds.” The same is being
argued here with more flesh on the bone. Third, we are also
satisfied that Gallegos adequately supported her motion with
appropriate legal authority. Although Gallegos phrased her
motion as a motion to dismiss, there is no question, in context,
that she made a motion for a directed verdict based on the
sufficiency of the evidence.

¶17 Accordingly, we are satisfied that Gallegos preserved her
challenge to the sufficiency of the evidence. We thus consider the
challenge on its merits.

II. Sufficiency of the Evidence

¶18 Gallegos contends that the evidence presented by the
State at trial was insufficient to support her conviction as an
accomplice to assault. She argues that the evidence at trial could
not establish that she “intentionally aided in the commission of
the assault.” Because there was an “absence of direct evidence,”
she asserts that the jury could only reasonably infer her “passive
presence” during the brawl, it being equally likely that her
motive was to break up the fight as it was to join it. We disagree.

¶19 On appeal, Gallegos does not dispute that the trial
evidence established that the underlying assault occurred. Nor
does she challenge the group enhancement. We therefore
examine only the law as it pertains to liability for accomplice to
assault. “Every person, acting with the mental state required for
the commission of an offense who . . . intentionally aids another
person to engage in conduct which constitutes an offense shall
be criminally liable as a party for such conduct.” Utah Code

20150881-CA 6 2018 UT App 112
 State v. Gallegos

Ann. § 76-2-202 (LexisNexis 2017). Because the statute governing
assault does not include a prescribed mental state, see id. § 76-5-
102, the mental state applied to assault is “intent, knowledge, or
recklessness,” see id. § 76-2-102. Thus, the State had to prove
beyond a reasonable doubt that Gallegos intentionally aided
another in committing assault and that she intended, knew, or
was reckless that her conduct would result in the commission of
the assault. See State v. Jeffs, 2010 UT 49, ¶¶ 44–45, 243 P.3d 1250
(explaining the mental state required for accomplice liability for
a rape charge).

¶20 Intent is subjective and thus is rarely established by direct
evidence. State v. Holgate, 2000 UT 74, ¶ 26, 10 P.3d 346.

It is well established that intent can be proven by
circumstantial evidence. When intent is proven by
circumstantial evidence, we must determine
(1) whether the State presented any evidence that
[the defendant] possessed the requisite intent, and
(2) whether the inferences that can be drawn from
that evidence have a basis in logic and reasonable
human experience sufficient to prove that [the
defendant] possessed the requisite intent.

Id. ¶ 21 (cleaned up).

¶21 We conclude that the State presented sufficient evidence
for the jury to reasonably infer that Gallegos acted with the
requisite intent. The jury heard testimony that Gallegos joined
her friends in forming a semicircle around Victim while shouting
profanities at her. Victim testified that all of the women were
“aggressive” towards her. The security video showed Gallegos
and her friends advancing in unison toward Victim, forcing her
backward several feet, and corralling her near a wall where
Victim was eventually thrown over a table. Gallegos’s friend
testified that Gallegos began swinging her arms during the
ensuing melee. The security video also showed security
personnel throw Gallegos from the fight.

20150881-CA 7 2018 UT App 112
 State v. Gallegos

¶22 This evidence does not show that Gallegos was merely
present, as she claims. Gallegos relies on In re M.B., 2008 UT App
433, 198 P.3d 1007, in which this court concluded that the
evidence was insufficient to convict the defendant as an
accomplice to burglary “based on his mere passive presence in
the passenger seat of the getaway car.” Id. ¶ 27. In that case, a
witness saw two men late one night, one climbing out of the
back of her truck’s camper shell and another exiting through the
truck door while carrying a stereo and CDs. Id. ¶ 2. When the
two men returned to their car parked across the street, the dome
light revealed a third man, the defendant, “[j]ust sitting” in the
passenger seat. Id. The defendant was adjudicated delinquent in
juvenile court for vehicle burglary and theft. Id. ¶ 4. Under those
circumstances, this court reversed the defendant’s adjudication,
reasoning that the State had not presented evidence suggesting
that the defendant “actually behaved as a lookout or otherwise
aided or encouraged the crimes of vehicular burglary and theft.”
Id. ¶¶ 11, 17.

¶23 The facts in this case are dissimilar. Unlike the defendant
in In re M.B., Gallegos was not just sitting at the club during the
altercation. Instead, Gallegos helped form a semicircle around
Victim and aggressively shouted profanities at her. Victim was
pushed and then retaliated, at which point Gallegos and her
group simultaneously advanced on Victim, forcing her back
several feet and onto the ground. Gallegos threw punches
during the brawl and had to be pulled away by security. The
jury could reasonably infer that Gallegos was more than
passively present.

¶24 This court has made clear that, “while mere presence at
the scene of a crime affords no basis for a conviction, presence,
companionship, and conduct before and after the offense are
circumstances from which one’s participation in the criminal
intent may be inferred.” American Fork City v. Rothe, 2000 UT
App 277, ¶ 7, 12 P.3d 108 (cleaned up). The evidence here
supports an inference that Gallegos intentionally aided another
in committing assault and intended, knew, or was reckless that

20150881-CA 8 2018 UT App 112
 State v. Gallegos

her conduct would result in commission of an assault by
another. As explained, Gallegos acted aggressively toward
Victim, advancing with the group while forcing Victim
backward toward a wall. Gallegos’s aggression continued as she
swung her arms and was pulled away from the fight. The only
evidence proffered supporting the theory that Gallegos
attempted to break up the fight was the testimony of Witness.
But the jury was not obligated to believe that testimony.

¶25 In light of the evidence, we conclude that the jury could
reasonably infer that Gallegos intended to aid in the assault of
Victim. Therefore, the jury’s verdict was supported by sufficient
evidence.

III. Prosecutorial Misconduct

¶26 Gallegos next contends that her conviction should be
reversed based on inappropriate comments made by the
prosecutor during closing argument. Particularly, Gallegos
argues that the State’s reference to a “gang beating” and
suggestion that an accomplice might be treated differently at
sentencing improperly “encouraged the jurors to consider
matters outside the evidence.” We disagree that the State’s
reference to a “gang beating” was improper. Although we agree
with Gallegos that the State’s reference to sentencing was
improper, we disagree that it was so prejudicial that it warrants
reversal.

¶27 Gallegos concedes that her prosecutorial-misconduct
contention was not raised at trial. She therefore requests that we
review her contention in the context of plain error and
ineffective assistance of counsel. To establish plain error,
Gallegos must demonstrate that an error exists, the error should
have been obvious to the trial court, and the error is harmful.
State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276. Specifically, when
analyzing prosecutorial misconduct for plain error, we analyze
not only whether the prosecutor’s remarks were improper, i.e.,
whether an error exists, but also whether the prosecutor’s

20150881-CA 9 2018 UT App 112
 State v. Gallegos

remarks were “so egregious that it would be plain error for the
district court to decline to intervene sua sponte.” State v. Hummel,
2017 UT 19, ¶ 110, 393 P.3d 314 (emphasis in original). A
prosecutor’s remarks merit reversal when “the remarks call to
the attention of the jurors matters which they would not be
justified in considering in determining their verdict.” State v.
Valdez, 513 P.2d 422, 426 (Utah 1973). Under plain error, such an
error is prejudicial “when absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is
undermined.” State v. Ringstad, 2018 UT App 66, ¶ 57 (cleaned
up).

¶28 To show ineffective assistance, Gallegos must
demonstrate that her counsel’s performance was “so deficient as
to fall below an objective standard of reasonableness” and “but
for counsel’s deficient performance there is a reasonable
probability that the outcome of the trial would have been
different.” State v. Hales, 2007 UT 14, ¶ 68, 152 P.3d 321 (cleaned
up). We analyze the instances of alleged misconduct in turn.

A. The State’s Reference to a Street Gang

¶29 The State said the following during closing argument:

This is, like I said, just a gang beating. In my
opinion, not in a street gang sense of the term, but
they are ganging up on her and attack her.

¶30 To be sure, no evidence was presented regarding street
gangs. However, the facts of the case are that a group of women
ganged up in a colloquial sense against Victim. Thus, the
evidence presented at trial could be characterized as a gang or
group beating. The State used the term “street gang” only to
clarify that its use of the term “gang beating” was not meant to
suggest that the crime was gang-related but instead referred
only to the manner in which the group ganged up on Victim.
Because the evidence supported a finding that the group

20150881-CA 10 2018 UT App 112
 State v. Gallegos

“ganged up” on Victim, we conclude that the reference did not
call attention to matters that the jurors would not be justified in
considering. Therefore there was no error and this argument
fails under plain error and ineffective assistance of counsel.

B. The State’s Reference to Sentencing

¶31 The State’s reference to possible differences in sentencing
is another story. The State made the following reference to
sentencing during its closing argument:

This is the same theory applied at a robbery. The
getaway driver is just as guilty as the person who’s
inside. They may treat it differently in sentencing,
but again you guys don’t worry about sentencing.
All you guys are there to determine is whether . . .
she’s guilty.

¶32 “Possible punishment . . . is usually not a proper matter
for jury consideration.” State v. Cude, 784 P.2d 1197, 1202–03
(Utah 1989). The State had no business bringing up sentencing at
all; the reference added nothing to help jurors understand a
hypothetical about a robber and a getaway driver or how those
facts pertain to this case. And while the State reiterated the law,
saying “you guys don’t worry about sentencing,” the fact of the
matter is that the remark “call[ed] to the attention of the jurors
matters which they would not be justified in considering in
determining their verdict.” See State v. Valdez, 513 P.2d 422, 426
(Utah 1973).

¶33 But our analysis does not end there. Whether under plain
error or ineffective assistance, Gallegos must demonstrate that
absent the error there is a reasonable likelihood that she would
have received a more favorable outcome at trial. See Ringstad,
2018 UT App 66, ¶ 68 (explaining that a defendant is prejudiced
under plain error when “absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant”
(cleaned up)); State v. Hales, 2007 UT 14, ¶ 68, 152 P.3d 321

20150881-CA 11 2018 UT App 112
 State v. Gallegos

(explaining that a defendant is prejudiced under ineffective
assistance where “but for counsel’s deficient performance there
is a reasonable probability that the outcome of the trial would
have been different” (cleaned up)). We conclude that even if the
trial court erred by not intervening, and even if defense counsel
was deficient for not objecting, Gallegos was not prejudiced
because there is no reasonable likelihood that without the
statement she would have received a more favorable outcome.
See Ringstad, 2018 UT App 66, ¶ 68 (analyzing prejudice without
deciding whether an error occurred).

¶34 We think it highly unlikely that, absent the comment,
there is a reasonable likelihood of a more favorable outcome for
Gallegos. In so concluding, we find the reasoning in People v.
Wrest, 839 P.2d 1020 (Cal. 1992), persuasive. In that case, the
prosecutor argued in favor of the death penalty by telling the
jury what was not being argued. Id. at 1028. Particularly, the
prosecutor said he would not argue that the Bible supports the
death penalty and that he would not argue about deterrence,
each of which the court ruled was improper. Id. The court
reasoned that the prosecutor’s arguments “embod[ied] the use of
a rhetorical device—paraleipsis—suggesting exactly the
opposite. Repetition of the statement, ‘I am not arguing X,’
strongly implied the prosecutor was in fact asserting the validity
and relevance of X, but, for lack of time, was concentrating on
other, presumably more important topics.” Id. Nevertheless, the
court held that the prosecutor’s comments were not prejudicial,
reasoning,

The brief reference to deterrence was immediately
undermined by the prosecutor himself, who
represented that evidence existed on both sides of
the issue and then immediately reminded the jury
of its duty to judge this defendant as an individual
in the context of his crimes. The reference came in
the course of a long argument, the bulk of which
was properly and specifically focused on the
factors in aggravation and mitigation. . . . The same

20150881-CA 12 2018 UT App 112
 State v. Gallegos

can be said of the prosecutor’s brief reference to
Scripture, which was totally undeveloped in the
course of the argument.

Id. at 1028–29.

¶35 The State’s reference to sentencing here—telling the jury
not to worry about sentencing after raising the possibility that
accomplices may be treated differently—is similar to the
prosecutor’s statement in Wrest. The State’s comment about
sentencing was a single sentence, which it recanted immediately
after uttering it. Further, the court properly instructed the jury
not to consider what punishment could result from a guilty
verdict, and “we presume that the jury follows such
instructions,” absent evidence to the contrary. State v. Fairbourn,
2017 UT App 158, ¶ 37, 405 P.3d 789 (cleaned up). These facts
weigh in favor of concluding that the jury was not influenced by
the prosecutor’s improper statement, see State v. Calliham, 2002
UT 86, ¶ 65, 55 P.3d 573 (“[W]e assume that the jury was
properly instructed by the court on the intent element of
accomplice liability, and was therefore unlikely to be misled by a
single sentence from the prosecutor’s argument, taken out of
context.”), and thus there is little likelihood that absent the
statement there would have been a more favorable result.

¶36 We also note that the evidence against Gallegos in this
case weighed heavily against her. See supra Part II. “In analyzing
the potentially prejudicial effect of a prosecutor’s comments, we
look at the evidence of the defendant’s guilt. If proof of
defendant’s guilt is strong, the challenged conduct or remark
will not be presumed prejudicial, but when the evidence is less
compelling we will more closely scrutinize the conduct.” State v.
Cuaquentzi, 2015 UT App 311, ¶ 7, 365 P.3d 735 (cleaned up).
Because the proof of Gallegos’s guilt is strong, we do not
presume that the State’s remark was prejudicial.

¶37 In light of the evidence before the jury and the context of
the State’s remark regarding sentencing, we conclude that the

20150881-CA 13 2018 UT App 112
 State v. Gallegos

statement was not prejudicial. Accordingly, even if we assume
the court’s failure to intervene constituted error, or if we were to
conclude that defense counsel’s failure to object constituted
deficient performance, we would still affirm.

CONCLUSION

¶38 In sum, the evidence presented at trial was sufficient to
support Gallegos’s conviction. Further, the State’s improper
remark during closing arguments was not so prejudicial that,
absent the error, the outcome would likely have been more
favorable for Gallegos.

¶39 Affirmed.

20150881-CA 14 2018 UT App 112