In State v. Bell, 2016 UT App 157, Bell appealed his convictions for 2 counts of aggravated robbery, one for stealing a car by knife point and one for stealing a purse by knife point. The Court of Appeals affirmed the first conviction and vacated the second conviction as the convictions merged under the Single Larceny Doctrine. The Court of Appeals also rejected his defenses of factual impossibility and voluntary intoxication.
Victim parked her car in a parking lot and left the car unlocked. A set of keys to a separate rental vehicle were left in a cup holder. Victim went into a phone store. Bell was inside the phone store acting strangely. When he left the store, Bell tried to door handles of three cars before victim's car. Bell let himself into victim's car and got into the driver's seat. In response, victim and her friends went out to stop him. Bell pulled out a knife, grabbed a purse sitting on the passenger floor board, and fled with the purse and rental car keys.
After being apprehended Bell was interviewed by the police. Bell told police he had been on methamphetamine for three days straight. Bell started vomiting and was taken to the hospital. Bell claimed to have no memory of being in the phone store or the events that occurred with the car, knife, and purse.
Bell was charged with two counts of aggravated robbery, one count of aggravated assault, and one count of interfering with a law enforcement officer. At trial, Bell presented a defense of voluntary intoxication - he was too high to form the requsite intent to commit the crime. Bell was convicted of 2 counts of aggravated robbery, 1 count of brandishing, and 1 count of interfering with an officer.
Bell's first appeals on the grounds that his aggravated robbery convictions merge under the single larceny doctrine. The appeal was based in plain error and ineffective assistance of counsel. The single larceny doctrine exists to prevent prosecutors from joining or separating theft counts based on dollar amount to maximize criminal liability. If the theft is a single act, there is only one offense, even if there are multiple owners. There is only one offense if there is only one intent, plan, or general impulse.
In the present case, the purse was inside the car. Any robbery of the car automatically included the taking of the purse. The State even conceded that if Bell took the car with the purse inside, he would have only been charged with one crime. The determining issue is not when the getaway was complete, but when the robbery was complete. The robbery here was complete when Bell attempted to take the car (and its contents) from the victim with the intent to deprive her of those items. Therefore, the counts merge.
To prove ineffective assistance of counsel, Bell must show that trial counsel's performance was deficient and the deficient performance prejudiced the defendant. Counsel's performance is viewed under an objective standard of reasonableness under the prevailing professional norms. Prejudice is shown if there is a reasonable probability that but for the deficient performance the results would be different. Deficient performance is different than making strategic decisions that turn out badly. In the present case, it could not be considered strategic or tactical to not move for merger since merger would not be incompatible or in conflict with any other pursued defense. It would also not be futile as a motion for merger should have been granted. Therefore, counsel's performance was constitutionally ineffective. A conclusion that ineffective assistance of counsel occurred moots the plain error argument.
Bell next appealed his conviction for aggravated robbery of the car for factual impossibility: since he did not have possession of the car keys he was factually unable to steal the car. This appeal was also based in plain error and ineffective assistance of counsel. Factual or legal impossibility is not a defense to a crime of attempt if the attendant facts and circumstances had been as the actor believed them to be.
Finally, Bell claimed his trial counsel provided ineffective assistance for failing to move for a directed verdict and not objecting to the State's sufficiency of the evidence refuting his voluntary intoxication argument. Essentially, the State's argument against his affirmative defense was so weak, the case should not have been submitted to the jury. Issues raised for the first time on appeal are reviewed as a matter of law standard.
The court is not free to weigh the evidence and invade the province of the jury. To submit a case to a jury, the prosecutor has to provide believable evidence for every element of the crime from which a reasonable jury could convict. If there us any evidence, no matter how slight or circumstantial, the judge must give the case to the jury. If a directed verdict would not have been granted, then it cannot be found that counsel's performance was deficient.
To prevail on a claim of voluntary intoxication, Bell must show more than incoherence: he must show he was so intoxicated he was incapable of forming the mens rea of the crime. Once he provides any evidence he was incapable of forming the mental state, only then must the prosecutor disprove his affirmative defense beyond a reasonable doubt. However, there was no testimony to suggest that Bell was anything more than confused and agitated due to intoxication. That is not the same as an inability to form the requite intent to commit the crime. As such, no directed verdict wold have been granted and counsel did not provide ineffective assistance as a matter of law.
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