Opinion
Case No. 990880-CA.
Filed March 1, 2001. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Timothy R. Hanson.
David V. Finlayson, Heather Johnson, and Catherine E. Lilly, Salt Lake City, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Davis.
MEMORANDUM DECISION
Appellant, Michael Anderson (Anderson), appeals his conviction for aggravated robbery, in violation of Utah Code Ann. §§ 76-6-301 -302 (1999). We affirm.
Anderson first argues that the trial court abused its discretion when it denied his motion for a new trial based on newly discovered evidence. "We review the denial of a motion for a new trial based on newly discovered evidence on the same basis as any other denial of a new trial motion — whether the trial court abused its discretion." State v. Loose, 2000 UT 11, ¶ 16, 994 P.2d 1237; see also State v. James, 819 P.2d 781, 793 (Utah 1991).
The legal elements for analyzing a claim for a new trial based on newly discovered evidence are as follows: the moving party must demonstrate from the proffered evidence that: "(i) it could not, with reasonable diligence, have been discovered and produced at the trial; (ii) it is not merely cumulative; and (iii) it must make a different result probable on retrial."
Loose, 2000 UT 11 at ¶ 16 (citations omitted).
Here, the trial court denied Anderson's motion for a new trial based on the court's conclusion that "no prejudice can be gleaned from the new [evidence]." In other words, the trial court concluded that a different result was not probable on retrial. We agree. The results from the post-trial fingerprint analysis merely indicated that the one identifiable fingerprint on the shoe box was not made by Anderson. If Anderson's fingerprints had been on the shoe box, such evidence would surely have been inculpatory. However, the absence of Anderson's fingerprints is neither inculpatory nor necessarily exculpatory. See State v. Carter, 888 P.2d 629, 640 (Utah 1995) (affirming trial court's denial of new trial stating "[a]s for the lack of [defendant's] fingerprints and African-American hair samples at the murder scene, we fail to see how such evidence exculpates [defendant]"); cf. State v. Alvarado, 845 P.2d 966, 970 (Utah Ct.App. 1993) (holding trial counsel's failure to point out the lack of fingerprints linking defendant with the drug transaction did not create a reasonable probability verdict would have been different). Moreover, any possible exculpatory effect that may have resulted from the inability to identify Anderson's fingerprints on the shoe box would have been completely overshadowed by the abundance of inculpatory evidence presented by the State. Therefore, evaluating the newly discovered evidence in the context of the entire record, we are not convinced that the trial court abused its discretion when it denied Anderson's motion for a new trial.
The fact that there was only one identifiable print on a box that had been handled by numerous people supports the trial court's conclusion that the evidence was "inconclusive at best."
The inculpatory evidence included a store surveillance videotape containing a clear image of the suspect, testimony of a man who recognized Anderson on a television broadcast of the surveillance video, photo array identifications by two witnesses, and eyewitness testimony of store employees.
Anderson next argues that the trial court erred when it instructed the jury that Mervyn's California (Mervyns), a corporation, can act only through its employees or agents, and the conduct and activities of Mervyns's employees is considered the conduct and activities of Mervyns. The essence of Anderson's argument is that the trial court erred because the jury instruction indicated that Utah Code Ann. § 76-6-301(1)(a) (Supp. 1999) protects legal entities that act through their agent employees. Although we find it peculiar that the State chose to prosecute Anderson under section 76-6-301(1)(a), rather than subsection (1)(b), we are not convinced that the jury instruction was erroneous.
First, the instruction accurately states the law. See Baltimore Ohio R.R. Co. v. Baugh, 149 U.S. 368, 382, 13 S.Ct. 914, 919 (1893) (stating "a corporation only acts through agents"); Davis v. Payne Day, Inc., 10 Utah 2d 53, 348 P.2d 337, 339 (1960) ("Corporations can only act through agents, be they officers or employees."). Second, the instruction correctly indicates that section 76-6-301(1)(a) may be applied to corporations as well as natural persons. See Monell v. Dep't. of Soc. Serv., 436 U.S. 658, 687, 98 S.Ct. 2018, 2034 (1978) ("[C]orporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis."); Utah Code Ann. § 76-1-601(8) (1999) ("`Person' means an individual, public or private corporation, government, partnership, or unincorporated association."). Finally, we are not persuaded that the use of the term "another" in section 76-6-301(1)(a) necessarily refers to only natural persons. "When we interpret a statute, we must look first to the statute's plain language to determine the legislative intent and we look no further if the language is unambiguous on its face." Dairy Prod. Servs. v. City of Wellsville, 2000 UT 81, ¶ 20, 13 P.3d 581. Webster's Ninth New Collegiate Dictionary defines the pronoun "another" as "one that is different from the first or present one." Webster's Ninth New Collegiate Dictionary 88 (9th ed. 1986). Additionally, the pronoun "one" is defined as "a certain indefinitely indicated person or thing." Id. at 824. Therefore, the plain language of section 76-6-301(1)(a) is broad enough to include corporations, and the trial court did not err in giving the above mentioned instruction.
Anderson's final argument is that the trial court erred when it denied his motion for a directed verdict because the State did not present evidence of force or fear used concurrently with the taking of personal property. This court has stated, "if force or fear is used at any time prior to or concurrent with the victim actually losing the ability to control his chattel, then a robbery has occurred." D.B. v. State, 925 P.2d 178, 182 (Utah Ct.App. 1996) (footnote omitted). Here, Mervyns's employees stopped and questioned Anderson after he triggered an alarm while leaving the store. Anderson then brandished a knife in a threatening manner before he ran away. Thus, the record clearly shows that Anderson used fear concurrent with the employees losing their ability to control the personal property. Therefore, the trial court acted correctly when it denied Anderson's motion for a directed verdict.See State v. Taylor, 884 P.2d 1293, 1296 (Utah Ct.App. 1994) ("[A]ppellate courts should `uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, [the court] conclude[s] that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.'" (citation omitted) (alteration in original)).
Accordingly, we affirm Anderson's conviction.
James Z. Davis, Judge
WE CONCUR: Pamela T. Greenwood, Presiding Judge, Norman H. Jackson, Associate Presiding Judge.