Opinion
No. 990914-CA.
September 14, 2000. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Leon A. Dever.
Joan C. Watt, Salt Lake City, for Appellant.
Jan Graham and Marion Decker, Salt Lake City, for Appellee.
Before Judges GREENWOOD, BENCH, and ORME.
MEMORANDUM DECISION
Defendant appeals her conviction for theft, claiming two errors: (1) that the trial court failed to properly instruct the jury that they must find defendant aided and abetted Chastity Quintana in the theft beyond a reasonable doubt, and (2) that the evidence was insufficient to convict defendant of either actual theft or as an accomplice to theft. We affirm.
First, defendant argues that the elements instruction, instruction number eleven, did not include the element of aiding and abetting another. While instruction number seven did inform the jury of the aiding and abetting element, defendant claims the instructions were defective because the jury was not informed that it must find beyond a reasonable doubt defendant aided and abetted.
We agree that the jury instructions were not a model of clarity. Nevertheless, "jury instructions to which a party failed to object at trial will not be reviewed absent a showing of manifest injustice." State v. Gibson, 908 P.2d 352, 354 (Utah Ct.App. 1995). "When reviewing a claim of manifest injustice, we generally use the same standard that is applied to determine whether plain error exists under rule 103(d) of the Utah Rules of Evidence."State v. Rudolph, 970 P.2d 1221, 1226 (Utah 1998). Under this analysis, defendant must show that the error was obvious and that the error was "`of sufficient magnitude that it affects the substantial rights of a party.'" Id. (citation omitted).
In order to meet the first prong of the plain error test, defendant must show the error was obvious. As noted, the instructions given were not ideal; however, any deficiency in the instructions was not obvious. The lack of an obvious error in this case is highlighted by defendant's failure to object to the instructions. See, e.g., State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996) (holding "defendant '"cannot lead the court into error by failing to object and then later, when he is displeased with the verdict, profit by his actions."'" (citations omitted)).
If the error should have been obvious to the trial court, it also should have been obvious to defense counsel. In this case, our review of the record indicates that defendant had ample opportunity to object to the jury instructions. In fact, the trial judge specifically asked counsel if she had any objections to the proposed instructions. Thus, the failure to object at trial suggests the error was not obvious, and defendant cannot satisfy the first prong of the plain error analysis.
The following discussion took place in chambers:
THE COURT: So, I guess, does the defense have any objections to the proposed instructions to the jury?
MS. AMES: We do not.
Next, defendant claims the evidence was not sufficient to support a conviction for either theft or as an accomplice to theft. Throughout the trial, the State never attempted to prove that defendant was guilty of actually stealing the car. We therefore address only whether the evidence was sufficient to support a conviction as an accomplice to theft.
Defendant relies on State v. Kalisz, 735 P.2d 60 (Utah 1987) (per curiam) to argue that the evidence was insufficient because no evidence was presented that defendant was at the crime scene or affirmatively acted to assist Chastity Quintana in stealing the car. Furthermore, defendant argues that mere presence or knowledge of the crime is insufficient to convict as an accomplice to a crime. See State v. Labrum, 959 P.2d 120, 123 (Utah Ct.App. 1998).
"In reviewing a challenge to the jury verdict for insufficiency of the evidence, we `must view the evidence in the light most favorable to the verdict and will interfere only when the evidence is so lacking and insubstantial that a reasonable person could not possibly have reached a verdict beyond a reasonable doubt.'" State v. Blubaugh, 904 P.2d 688, 694 (Utah Ct.App. 1995) (citation omitted). In Blubaugh, we determined that not only is it "well accepted that `circumstantial evidence alone may be competent to establish the guilt of the accused,'" id. (citation omitted), but also that it is the jury's responsibility "to judge the credibility of the testimony, assign weight to the evidence, and reject . . . alternate hypotheses." Id. at 694-95.
In this case, the jury was presented with eyewitness testimony which suggested that, far from rejecting Chastity Quintana's request to steal a car, defendant was present at the crime scene, facilitated Quintana's stealing the car, and tried to cover up the crime by requesting that her co-workers remain silent. Based on the testimony produced at trial and the reasonable inferences drawn therefrom, we cannot say that evidence was so lacking that a reasonable person could not have found defendant guilty beyond a reasonable doubt.
Accordingly, we affirm.
WE CONCUR: RUSSELL W. BENCH, Judge, and GREGORY K. ORME, Judge.