State v. V.T.

Utah Court of Appeals

State v. V.T.

5 P.3d 1234, 2000 UT App 189 

No. 990380-CA

2000-06-22

2000 Utah Ct. App. 189

ORME, Judge:

On June 12, 1998, V.T. and two friends, "Moose" and Joey, went to a relative's apartment to avoid being picked up by police for curfew violations. The boys ended up spending the entire night at the apartment.

The next morning, the relative briefly left to run an errand, while the boys remained in her apartment. She returned about fifteen minutes later to find the boys gone, the door to her apartment wide open, and two of her guns missing. She immediately went in search of the group and found them hanging out together near her apartment complex. She confronted the boys about the theft of her guns and demanded that they return them to her. When they failed to do so, she reported the theft to the police.

Two days after the theft of her guns, she discovered that her camcorder, which had been in the apartment when the boys visited, was also missing, and she immediately reported its theft to the police. The police found the camcorder at a local pawn shop, where it had been pawned on the same day the guns were stolen.

Still inside the camcorder was a videotape featuring footage of V.T., Moose, and Joey. The tape included a segment where Moose telephoned a friend, in V.T.'s presence, and discussed pawning the stolen camcorder. V.T. never spoke or gestured during any of this footage.

V.T. was charged with two counts of theft of a firearm; one count of theft, relating to the camcorder.

V.T. was tried under an accomplice theory on the three theft charges. The court found that V.T. had committed class A misdemean- or theft of the camcorder. The juvenile court summarized the basis for its adjudication concerning the camcorder theft as follows:

I am going to find him guilty and I think the additional information that I have here that brings me peace of mind is that he was present a second time, he was shown on the camcorder when the camcorder was being handled at a time when he could've distanced himself from the activity. Not only do I have him there once with the group ... on the second incident ... there is no gap on him being there when [the camcorder] is being handled and talked about and used in the confines of a room with a group of friends and those who were involved in this illegal activity.

The sole issue presented by V.T. is whether there was sufficient evidence to support the adjudication that he was an accomplice in the theft of the camcorder. Utah's accomplice liability statute, Utah Code Ann. § 76-2-202 (1999), provides:

Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

As with any other crime, the State must prove the elements of accomplice liability beyond a reasonable doubt. 

The State argues that V.T.'s continued presence during the theft and subsequent phone conversation about selling the camcorder, coupled with his friendship with the other two boys, is enough evidence to support the inference that he had "encouraged" the other two in committing the theft and that he is therefore an accomplice to the crime. Black's Law Dictionary defines encourage as: "[tlo instigate; to incite to action; to embolden; to help." Black's Law Dictionary 547 (ith ed.1999). The plain meaning of the word confirms that to encourage others to take criminal action requires some form of active behavior, or at least verbalization, by a defendant. Passive behavior, such as mere presence-even continuous presence-absent evidence that the defendant affirmatively did something to instigate, incite, embolden, or help others in committing a crime is not enough to qualify as "encouragement" as that term is commonly used.

The case law in Utah is consistent with this definition:

" 'Mere presence, or even prior knowledge, does not make one an accomplice'" to a crime absent evidence showing-beyond a reasonable doubt-that defendant "advise[d], instigate[d], encourage[d], or assist[ed] in perpetuation of the crime." 

The juvenile court's conclusion that V.T. was an accomplice to the camcorder theft was not supported by the evidence in this case. No evidence whatsoever was produced indicating V.T. had encouraged-much less that he solicited, requested, commanded or intentionally aided-the other two boys in the theft of the camcorder.