Opinion
Case No. 20030816-CA.
Filed February 25, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Robin W. Reese.
Edward K. Brass, Salt Lake City, for Appellant.
David E. Yocom and Cristina P. Ortega, Salt Lake City, for Appellee.
Before Judges Bench, Orme, and Thorne.
MEMORANDUM DECISION
Donald Kent Sjoberg appeals his conviction for sexual abuse of a minor, a class A misdemeanor. See Utah Code Ann. § 76-5-401.1 (2003). We affirm.
Sjoberg's sole argument on appeal is that because the jury returned inconsistent verdicts regarding the two charges of sexual abuse of a minor that he faced, his conviction must be reversed.
When considering an inconsistency challenge to jury verdicts, we "review the evidence in the light most favorable to the verdict" and will "not overturn a jury's verdict of criminal conviction unless reasonable minds could not rationally have arrived at a verdict of guilty beyond a reasonable doubt based on the law and on the evidence presented."
State v. Hancock, 874 P.2d 132, 134 (Utah Ct.App. 1994) (quoting State v. Bergwerff, 777 P.2d 510, 511 (Utah Ct.App. 1989)). Moreover,
where truly inconsistent verdicts have been reached, "the most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." The rule that the defendant may not upset such a verdict embodies a prudent acknowledgment of a number of factors. First, as the above quote suggests, inconsistent verdicts . . . should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion . . . and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense.
United States v. Powell, 469 U.S. 57, 64-65 (1984) (emphasis added) (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)); see also People v. Frye, 898 P.2d 559, 570 (Colo. 1995) (highlighting the several states that have adopted thePowell rule and stating "[a]s long as sufficient evidence supports each of the guilty verdicts, state courts generally have upheld such convictions irrespective of their rational incompatibility with the acquittals").
Thus, when faced with two verdicts that seem factually inconsistent, a defendant must take refuge in challenging the sufficiency of the evidence that supports the conviction that was rendered by the jury. Of course, in making such a challenge, a defendant must keep in mind that "[i]t is the jury's prerogative to weigh the evidence, infer the material facts from it, and apply the law stated in the jury instructions to the facts."Bergwerff, 777 P.2d at 511. The defendant must also acknowledge that the jury is not obligated to accept any witness's version of the facts; instead, it is expected to "draw its own inferences and conclusions" concerning the evidence. State v. Stewart, 729 P.2d 610, 612 (Utah 1986). Finally, it is axiomatic, and must be accepted by a defendant who challenges his conviction on this basis, "that the fact finder may accept all, part, or none of a witness's testimony," and that while "`the verdict may have been a result of compromise, or of a mistake on the part of the jury, . . . verdicts cannot be upset by speculation or inquiry into such matters.'" Id. (emphasis added) (quoting Dunn, 284 U.S. at 394).
Here, Sjoberg argues only that the verdicts are factually inconsistent, not that the evidence was insufficient to support his conviction. Moreover, and contrary to Sjoberg's argument on appeal, we are under no duty to reconcile the acquittal of count II with the conviction for count I. Finally, and again contrary to Sjoberg's argument on appeal, it would make no difference to our review if the evidence as to both counts was precisely the same. However, the evidence in this case is better described as establishing a series of events, which resulted in two charges of sexual abuse of a minor, and which, had the jury accepted the victim's account in its entirety, could have resulted in Sjoberg being convicted for both charged crimes. Clearly, the jury determined, for its own presumably valid reasons, that the evidence only supported one conviction. After reviewing the evidence, we conclude that the evidence supports that conviction.
Accordingly, we affirm.
WE CONCUR: Russell W. Bench, Associate Presiding Judge and Gregory K. Orme, Judge.