State v. Pham

2015 UT App 233

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ANH TUAN PHAM,
Defendant and Appellant.

Memorandum Decision
No. 20130773-CA
Filed September 11, 2015

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 121904190

Michael J. Langford and Thomas J. Rollins, Attorneys
for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and KATE A.
TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Anh Tuan Pham appeals his convictions for
aggravated robbery, aggravated assault, and riot. Pham argues
that the trial court abused its discretion in denying his motion to
sever his case from that of a co-defendant.1 Because Pham failed
to preserve his argument below, we affirm.

1. Pham’s co-defendants each filed separate appeals. See State v.
Maama, 2015 UT App 234; State v. Maama, 2015 UT App 235.
State v. Pham

¶2 On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.
State v. Lee, 2006 UT 5, ¶ 2, 128 P.3d 1179. Pham, Semisi Maama,
and Mesia Maama robbed and assaulted a man and his son in
the parking lot of a restaurant. Pham and Semisi were charged
with aggravated robbery, aggravated assault, and riot for their
roles in the crime.2 Before trial, Pham moved to sever his trial
from the trial of Semisi. In his motion, Pham argued that
severance was required because the State intended to introduce,
through one or more of the victims, a statement made by Semisi
in the course of the robbery. Relying on Bruton v. United States,
391 U.S. 123, 127 (1968), Pham argued that admission of the
statement, should Semisi himself not testify at trial, ‚would
violate *Pham’s+ rights under the Confrontation Clause of the
Utah State Constitution and the United States Constitution.‛ In
response to Pham’s motion, the State agreed to redact Semisi’s
statements made to police officers and asserted that the State
would not seek to introduce Semisi’s statements that directly
implicated Pham in the aggravated robbery. The trial court held
a hearing on the motion to sever, took the matter under
advisement, and ordered supplemental briefing.

¶3 Several months later, but still before trial, Pham filed a
‚Motion to Sever or, in the Alternative, To Prohibit Admission of
Co-Defendant’s Statement.‛ The motion sought to prevent the
State from introducing at trial a statement by Semisi that was
directed at the adult victim and indirectly implicated Pham in
the robbery. Pham argued that the introduction of Semisi’s
statement would violate Pham’s right to confront and cross-

2. Mesia Maama was charged with aggravated assault and riot,
but not aggravated robbery.

20130773-CA 2 2015 UT App 233
State v. Pham

examine Semisi at their joint trial if Semisi did not testify.3 At the
final pretrial hearing, the trial court denied the motion to sever.
The trial court determined that Semisi’s statement was not the
type of statement contemplated by Bruton, that severance was
not warranted because the statement did not directly implicate
Pham, and that severance would not resolve the Confrontation
Clause issues.

¶4 Both Pham and Semisi testified at trial. Pham testified that
he believed the driver of a vehicle was giving him a ‚mad dog‛
look, that he confronted the driver, that the driver made a
motion that Pham interpreted as reaching for a gun, and that
Pham then drew his own gun to defend himself in response.
Pham denied robbing or even trying to rob the driver.

¶5 According to Pham, at trial, Semisi ‚essentially testified
that he witnessed Pham committing an armed robbery.‛
However, while Semisi’s actual trial testimony was that he saw
Pham arguing with the driver of another vehicle and saw Pham
pull out a gun, he also stated that he and Pham had not
discussed robbing anyone and that he never heard Pham make
any demands for money from the driver. Semisi testified that he
told the driver that he ‚better *give+ *Pham+ . . . what he wants‛
because he was confused and shocked by what was happening,
but that he never saw the driver give money to Pham. Semisi
also testified that he was not aware that a robbery had taken
place and only later learned a robbery had occurred during an
interview with a detective. While testifying, Semisi maintained
that at the time of the confrontation he was not aware of a
robbery and that the detective ‚put words in *his+ mouth during
[his] interview.‛ At the end of Semisi’s direct examination,

3. Because Semisi did testify at trial, Pham had the opportunity
to cross-examine him. Accordingly, Pham has abandoned his
Confrontation Clause claim on appeal.

20130773-CA 3 2015 UT App 233
State v. Pham

Pham’s counsel waived the right to cross-examine Semisi. Pham
did not renew his motion for severance or file a motion for
mistrial based on allegedly antagonistic defenses between him
and Semisi. The jury convicted Pham on all counts. Pham now
appeals.

¶6 Pham contends that the trial court erred in denying his
motion to sever. While Pham characterizes the issue generally as
a question of whether ‚the [Trial] Court err[ed] in denying
Pham’s Motion to Sever the trial from that of his co-defendant,
because holding a joint trial with co-defendant [Semisi] was
unduly prejudicial to Pham,‛ he does not make the same
argument on appeal that he originally made to the trial court for
severance. In his motions to sever, Pham argued only that a joint
trial would result in injustice because it would pit his Sixth
Amendment right to confront Semisi against Semisi’s Fifth
Amendment right to remain silent. Because Semisi testified at
trial, Pham necessarily abandoned this argument for severance
altogether. Pham now claims that the joint trial resulted in
injustice because Semisi testified to a different version of events
than Pham testified to, which Pham now claims ‚substantially
impeded if not completely derailed the presentation of Pham’s
defenses.‛

¶7 We do not reach the merits of this claim, because Pham
failed to present his claim of antagonistic defenses to the trial
court in his pretrial motions to sever or at trial and thus he failed
to preserve this argument for appeal. See State v. Velarde, 734 P.2d
440, 445 (Utah 1986). We generally do not address unpreserved
arguments raised for the first time on appeal. State v. Holgate,
2000 UT 74, ¶ 11, 10 P.3d 346. To preserve an argument for
appellate review, the appellant must first ‚‘present[] [the
argument] to the district court ‘in such a way that the court has
an opportunity to rule on *it+.’‛ State v. Kozlov, 2012 UT App 114,
¶ 32 (third alteration in original) (quoting Patterson v. Patterson,
2011 UT 68, ¶ 12, 266 P.3d 828). Pham’s motions to sever did not

20130773-CA 4 2015 UT App 233
State v. Pham

assert that he would be unfairly prejudiced by a joint trial
because his co-defendant’s defense and his defense were
‚irreconcilable and mutually exclusive.‛ See Velarde, 734 P.2d at
445; cf. State v. O’Brien, 721 P.2d 896, 899 (Utah 1986) (‚*T+he fact
that one defendant attempts to cast blame on his co-defendant is
not alone sufficient reason to require severance of the co-
defendants’ trials. The defendants must prove their defenses
were irreconcilable.‛); State v. Telford, 940 P.2d 522, 526 (Utah Ct.
App. 1997) (stating that defenses are mutually exclusive when
‚the jury *has+ to reject one defense to believe the other‛). Nor
does Pham argue on appeal that the trial court committed plain
error when it failed to recognize that Pham’s and Semisi’s
testimonies at trial created antagonistic defenses that prevented
Pham from receiving a fair trial.4 See Oseguera v. State, 2014 UT
31, ¶ 15, 332 P.3d 963 (declining to consider an issue on appeal
where the defendant had failed to argue that ‚‘exceptional
circumstances’‛ or ‚‘plain error’‛ justified review of the issue).
Because Pham has abandoned his preserved argument and
presents a new and, in fact, inconsistent argument on appeal, we
decline to address the merits of Pham’s claim.

¶8 We affirm.

4. At oral argument before this court, counsel for Pham argued
for the first time that it was not just error but plain error for the
trial court to not sever the trials based on Semisi’s and Pham’s
antagonistic defenses. However, ‚the party seeking appellate
review on issues not brought before the lower court‛ must
‚articulate the justification for review in the party’s opening
brief.‛ State v. Weaver, 2005 UT 49, ¶ 19, 122 P.3d 566. Because
Pham failed to argue plain error in his opening brief, we decline
to address the argument on appeal. Id.

20130773-CA 5 2015 UT App 233