State v. Camara

2023 UT App 106

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
OUSMANE CAMARA,
Appellee.

Opinion
No. 20210668-CA
Filed September 21, 2023

Third District Court, Salt Lake Department
The Honorable Chelsea Koch
No. 181909526

Sean D. Reyes, John J. Nielsen, and
Natalie M. Edmundson, Attorneys for Appellant
Erick Grange, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1 A jury convicted Ousmane Camara of first-degree
aggravated kidnapping and second-degree assault with
substantial bodily injury. Before sentencing, Camara moved to
arrest judgment on the aggravated kidnapping conviction,
arguing the evidence was insufficient to prove the predicate
offense of kidnapping and the conviction should therefore be
entered as a third-degree felony instead. The district court granted
the motion, concluding the State failed to prove the victim was
detained or restrained in circumstances exposing her to “risk of
bodily injury,” and therefore entered the aggravated kidnapping
conviction as a third-degree felony. The State appeals the grant of
Camara’s motion to arrest judgment. We conclude the evidence
was sufficient to support the jury’s verdict of kidnapping based
State v. Camara

on the risk of bodily injury. We therefore reverse the grant of the
motion to arrest judgment and remand the matter with
instruction to reinstate the jury’s verdict.

BACKGROUND1

¶2 On September 6, 2018, at approximately 10:00 p.m., Ruby,2
a woman unknown to Camara, was walking down a sidewalk on
Redwood Road in Salt Lake City when Camara approached her
from behind. Ruby turned around, and Camara hit her in the face,
causing her to fall to the ground. Camara made a lewd comment,
grabbed Ruby’s arm, and proceeded to drag her across five lanes
of traffic on Redwood Road. Ruby struggled to get away from
Camara—who told her he had a gun—because she was afraid of
what he would do to her once they had crossed the road.

¶3 When Camara and Ruby reached the other side of the road,
several bystanders pulled Camara away and encircled Ruby to
prevent Camara from continuing to punch her. Camara ran into a
nearby business, where he was quickly located by responding
police officers and taken into custody. Ruby was transported to
the hospital, where she received stitches for lacerations on her
chin and above her eye. She was also diagnosed with a broken jaw
that required surgery to repair.

¶4 Camara was charged with first-degree aggravated
kidnapping and second-degree aggravated assault resulting in
serious bodily injury. He filed several pretrial motions

1. “We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
understand issues raised on appeal.” State v. Black, 2015 UT App
30, ¶ 2, 344 P.3d 644.

2. A pseudonym.

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challenging the first-degree aggravated kidnapping charge, all of
which the district court denied.

¶5 At trial, Ruby testified she was walking home from work
along Redwood Road between 9:30 and 10:00 p.m. when Camara
“attacked” her. According to Ruby, the night was dark but there
were “a few” streetlights illuminating Redwood Road. As to the
traffic on Redwood Road at the time, Ruby estimated that “at
least” twenty cars passed by in the time it took her to walk
approximately one-half mile. Ruby testified it took Camara
approximately two or three minutes to drag her across Redwood
Road because he stopped several times to let vehicles pass. Ruby
also testified she was “trying to get away from” Camara as he
dragged her and was “hoping” she would get hit by a car because
she “didn’t know what his intention was” with her.

¶6 The detective who investigated the incident (Detective)
testified. He described the stretch of Redwood Road where
Camara dragged Ruby as having four lanes of traffic and a middle
turning lane. Detective estimated that each lane is approximately
thirty-five feet wide. There are no crosswalks in the area where
the incident occurred. According to Detective, the speed limit is
forty-five miles per hour and vehicles ordinarily travel at that
speed. Detective told the jury he had responded to “dozens” of
motor vehicle accidents on Redwood Road over the previous six-
year period and, based on his experience, opined that a pedestrian
hit by a car traveling forty-five miles per hour would suffer
“pretty serious” and possibly “fatal” injuries.

¶7 A Salt Lake City Police patrol officer (Officer 1) described
Redwood Road as “a very busy road” with steady traffic “even at
10:00 at night.” Officer 1 testified there were vehicles traveling on
Redwood Road when he responded to the incident involving
Camara and Ruby and “you could hear the traffic going by.”

¶8 The State also presented the testimony of another Salt Lake
City Police patrol officer who responded to the incident (Officer

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2). Officer 2 testified he routinely patrols the area around
Redwood Road and normally begins his shift at 9:30 p.m. He
stated “there is still a fair amount of traffic” on Redwood Road
around 10:00 p.m. Officer 2 described the portion of Redwood
Road that Camara dragged Ruby across as having four travel
lanes, two in each direction, and a left-turn lane accessible to
drivers traveling in either direction. When asked about Camara’s
demeanor on the night of the incident, Officer 2 stated Camara’s
behavior—which included “yelling,” “pretending to sleep,” and
not responding to any questions—was consistent with someone
under the influence of narcotics.

¶9 A witness to the assault (Witness) also testified. Witness
stated he observed Ruby screaming for help as Camara dragged
her in front of a business located along Redwood Road. When
Witness told Camara to release Ruby, Camara punched her again
and said, “She is not a human. She is a robot.”

¶10 After the State rested, Camara moved for a directed verdict
on the aggravated kidnapping charge, arguing Ruby was not
exposed to a risk of bodily injury when Camara dragged her
across Redwood Road because he continually stopped to avoid
the vehicles traveling on the road. The district court denied the
motion. The jury returned a guilty verdict on both the aggravated
assault and aggravated kidnapping charges.

¶11 Before Camara was sentenced, he moved to arrest
judgment on the aggravated kidnapping conviction, asking the
court to reduce the severity of the charge from a first-degree
felony to a third-degree felony. This time the district court granted
the motion, concluding the State’s evidence was sufficient to
prove that Camara unlawfully detained Ruby while dragging her
across Redwood Road but insufficient to prove she was exposed
to risk of bodily injury separate from the inherent risk of injury
from the continued assault. According to the court, “no
reasonable jury could have found, beyond a reasonable doubt,

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that the act of dragging [Ruby] across the street for two to three
minutes exposed her to risk of bodily injury from the passing cars
. . . when [Ruby] specifically testified that [Camara] stopped for
cars, let them pass, and then proceeded to cross the street after the
cars had passed.” Because the jury had been separately instructed
on aggravated kidnapping based on unlawful detention, the
district court entered the aggravated kidnapping conviction as a
third-degree felony rather than as a first-degree felony.

ISSUE AND STANDARD OF REVIEW

¶12 The State challenges the district court’s grant of Camara’s
motion to arrest judgment, asserting that the evidence was
sufficient to show a risk of bodily injury. A district court “may
arrest a jury verdict when the evidence, viewed in the light most
favorable to the verdict, is so inconclusive or so inherently
improbable as to an element of the crime that reasonable minds
must have entertained a reasonable doubt as to that element.”
State v. Bolson, 2007 UT App 268, ¶ 10, 167 P.3d 539 (cleaned up).
“A district court’s determination that the evidence presented at
trial is not legally sufficient to establish the offense charged is a
legal determination, which we review for correctness.” State v.
Black, 2015 UT App 30, ¶ 13, 344 P.3d 644 (cleaned up).

ANALYSIS

I. Jurisdiction

¶13 Before we can proceed to the substantive arguments made
by the State, we first address Camara’s assertion that this court
lacks jurisdiction to review the grant of his motion to arrest
judgment. The law on whether the State can appeal from orders
arresting judgment is well-settled. The Utah Legislature has
expressly conferred appellate jurisdiction in cases involving the
entry of an order arresting judgment. Utah Code § 77-18a-1(3)(d)

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(“The prosecution may, as a matter of right, appeal from . . . an
order arresting judgment . . . .”). According to Camara, however,
the district court’s ruling, although denominated as an arrest of
judgment, was actually an acquittal because the court concluded
the evidence was insufficient to show Ruby was exposed to risk
of bodily injury. He relies on Utah Code section 76-1-403, the Utah
statute governing double jeopardy,3 which provides that “[t]here
is an acquittal if the prosecution resulted in a finding of not guilty
by the trier of facts or in a determination that there was
insufficient evidence to warrant conviction.” Id. § 76-1-403(2).
And the State, he argues, cannot appeal from an acquittal. See State
v. Willard, 801 P.2d 189, 191–92 (Utah Ct. App. 1990) (dismissing
the State’s appeal from a ruling of the trial court that was “in
substance, an acquittal”).

¶14 Camara’s assertion that he was acquitted is directly
contrary to decades-old precedent. In 1992, this court rejected an
argument nearly identical to Camara’s, acknowledging the

3. Under our double-jeopardy statute, “a criminal defendant is
protected from subsequent prosecutions for the same criminal act
after acquittal.” State v. Cahoon, 2009 UT 9, ¶ 16, 203 P.3d 957. The
State’s appeal, however, does not implicate statutory or
constitutional double jeopardy. Our reversal of the grant of
Camara’s motion will not result in Camara being retried; instead,
the jury’s guilty verdict will simply be reinstated. See State v.
Musselman, 667 P.2d 1061, 1065 n.2 (Utah 1983) (“If a jury verdict
of guilty is set aside by an order of a trial judge pursuant to a
motion in arrest of judgment, . . . that order may be appealed
pursuant to [section] 77-35-26(c)(2), and if reversed, the guilty
verdict reinstated.”); see also State v. Miller, 747 P.2d 440, 444 (Utah
Ct. App. 1987) (“The constitutional guarantee against double
jeopardy affords a criminal defendant three separate protections
by prohibiting: (1) a second prosecution for the same offense after
acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.”).

20210668-CA 6 2023 UT App 106
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language in section 76-1-403(2) but ruling that once a case is
“submitted to a jury, only the jury may acquit the defendant.”
State v. Larsen, 834 P.2d 586, 589 (Utah Ct. App. 1992). This court
distinguished between the actions of a district court taken before
a jury verdict and those taken after, stating:

In Utah, a judge may not acquit a defendant after a
jury returns a guilty verdict. Utah rules provide that
a judge may issue an order dismissing an
information or indictment at the conclusion of the
evidence by the prosecution, or at the conclusion of
all the evidence, if the evidence is not legally
sufficient to establish the offense charged therein or
any lesser included offense. The rules also allow a
judge to arrest judgment at any time prior to
sentencing. There is no rule, however, that allows a
judge, who is not the trier of fact, to acquit a
defendant following a jury verdict of guilty.

Id. (cleaned up).

¶15 Relying on our supreme court’s opinion in State v.
Musselman, 667 P.2d 1061 (Utah 1983), Camara nevertheless
argues the State cannot appeal an arrest of judgment if the basis
of the court’s ruling is that the State’s evidence was insufficient to
support the jury’s verdict. In Musselman, our supreme court
described an acquittal as a “ruling that constitutes a factual
resolution in favor of the defendant on one or more of the
elements of the offense charged.” Id. at 1064. According to
Camara, that is exactly what happened here. Musselman, however,
involved a situation wholly unlike the one presented here. In that
case, the defendant was “tried to the court sitting without a jury.”
Id. (emphasis added). After the trial court acquitted the defendant
on two charges, the State appealed. Id. Our supreme court
dismissed the State’s appeal of those counts, concluding the trial
court’s ruling was an acquittal that was not appealable. Id. But our

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State v. Camara

supreme court has also held that Utah law permits the State to
appeal a ruling arresting judgment after a jury’s guilty verdict
even if the ruling was based on the sufficiency of the State’s
evidence. See State v. Workman, 806 P.2d 1198, 1202 (Utah 1991).
Even Musselman states that when a jury’s guilty verdict is set aside
by the trial court “pursuant to a motion in arrest of judgment,” the
court’s order is appealable under Utah Code section 77-35-
26(c)(2)”4 and if reversed, the guilty verdict reinstated.” 667 P.2d
at 1065 n.2. That is precisely the situation here.

¶16 When the district court ruled in Camara’s favor and
granted his motion to arrest judgment on the first-degree
aggravated kidnapping conviction, it did not render its own
verdict in the first instance based on the sufficiency of the State’s
evidence. Instead, it set aside the jury’s guilty verdict pursuant to
a motion to arrest judgment. Thus, the district court’s ruling was
not an acquittal and this court has jurisdiction to address the
State’s appeal pursuant to Utah Code section 77–18a–1(3)(d).

II. Risk of Bodily Injury

¶17 There is no dispute that the crime committed by Camara
constitutes aggravated kidnapping because Utah law defines
aggravated kidnapping as either kidnapping or unlawful
detention, committed under aggravating circumstances. See Utah
Code § 76-5-302(1)(a). The parties disagree only on whether the
State’s evidence was sufficient to prove the predicate crime of
kidnapping or unlawful detention. The difference is significant
because aggravated kidnapping based on kidnapping is a first-
degree felony, see id. § 76-5-302(3)(b), whereas aggravated
kidnapping based on unlawful detention is a third-degree felony
see id. § 76-5-302(3)(a).

4. This statute was subsequently amended and renumbered as
section 77-18a-1(3)(d). The provision for appealing an arrest of
judgment remains unchanged.

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¶18 Under the provisions of Utah law relevant here,
kidnapping occurs when an “actor intentionally or knowingly,
without authority of law, and against the will of an individual . . .
detains or restrains the individual in circumstances exposing the
individual to risk of bodily injury.” Id. § 76-5-301(2)(b). Unlawful
detention requires only that “the actor intentionally or knowingly,
without authority of law, and against the will of an individual,
detains or restrains the individual.” Id. § 76-5-304(2)(a). Thus, the
severity of the crime committed by Camara turns on whether the
State proved that Ruby was exposed to risk of bodily injury.

¶19 Here, the evidence showed that Camara forcibly dragged
Ruby, who was struggling to free herself, across a five-lane active
road with a speed limit of forty-five miles per hour, at night, in an
area not marked by a crosswalk. And the jury heard Detective’s
testimony that a pedestrian hit by a car going forty-five miles per
hour would suffer “pretty serious” and possibly “fatal” injuries.
The State argues that, under these circumstances, a reasonable
jury could conclude beyond a reasonable doubt that there was a
real or actual risk Ruby could have been struck by a vehicle and
suffered bodily injuries. According to Camara, however, the
evidence was insufficient to sustain his conviction because he
“watched and waited for traffic to pass” as he dragged Ruby
across the road. We agree with the State.

¶20 At oral argument, the State agreed with Camara that
exposure to a mere hypothetical risk does not suffice and that the
statute requires exposure to a “real” or “actual risk” as described
in State v. Gallegos, 2007 UT 81, 171 P.3d 426. In Gallegos, our
supreme court interpreted the term “expose” as used in the child
endangerment statute to mean a “child must have a reasonable
capacity to actually access or get to the [chemical] substance or
[drug] paraphernalia or to be subject to its harmful effects, such
as by inhalation or touching.” Id. ¶ 11. In other words, showing a
child images of drugs on television amounts to an entirely
different type of exposure than allowing a child to be within arm’s

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length of the actual drugs. See id. ¶¶ 13–15 (explaining how
exposure under the statute requires a child to be “in a situation
where she is . . . near or accessible to anything that may affect her
detrimentally” and not just “simply expos[ed] to the image of a
controlled substance” (cleaned up)). Gallegos, then, is instructive
as to the meaning of “exposing the individual to risk of bodily
injury” in the kidnapping statute. See Utah Code § 76-5-301(2)(b).

¶21 Camara contends that there was no real or actual risk of
bodily harm to Ruby because he waited for traffic to pass as they
were proceeding across the road and no testimony at trial
suggested they were almost hit by a vehicle.5 But, while waiting
for traffic may have mitigated the risk to both Ruby and Camara,
based on the evidence presented, a reasonable jury could
conclude beyond a reasonable doubt that Camara exposed Ruby
to an actual risk of bodily injury.6 Ruby testified she and Camara
were in the road for approximately two to three minutes—not a
trivial amount of time. She also testified she was attempting to
break free of Camara’s grasp as she was being dragged, creating
the possibility she would extricate herself and run into oncoming
traffic in an attempt to escape. Both Officer 1 and Officer 2 testified

5. Camara further argues that he lawfully crossed the road and,
thus, there was no actual risk of bodily injury to Ruby. We find
this argument unavailing. First, there is no finding by the district
court that he crossed lawfully. Second, the risk Ruby would suffer
bodily injury was the same whether Camara crossed legally or
illegally, in part because she was struggling to get away from him
as he dragged her across Redwood Road against her will.

6. Witness testified that Camara made bizarre statements about
Ruby and Officer 2 testified that Camara’s behavior was
comparable to that of a person under the influence of narcotics. A
jury could reasonably conclude from this testimony that Camara’s
ability to safely identify and avoid vehicles in the road was
diminished as he crossed.

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State v. Camara

that, even at 10:00 at night, Redwood Road is a “very busy road”
with “still a fair amount of traffic.” And Detective testified that a
car traveling the speed limit of forty-five miles per hour would
produce “pretty serious” and potentially “fatal” injuries.

¶22 Just as a child is exposed to actual risk where she is “near
or accessible to” a controlled substance, so too was Ruby exposed
to actual risk of bodily injury7—trying to escape her attacker amid
multiple lanes of cars driving past on a busy road late at night—
despite not actually colliding with a car. See Gallegos, 2007 UT 81,
¶¶ 15, 18. Accordingly, there was sufficient evidence for a
reasonable jury to conclude she was detained or restrained “in
circumstances exposing [her] to risk of bodily injury.” Utah Code
§ 76-5-301(2)(b).

III. Alternative Arguments

¶23 Camara raises two alternative arguments in support of the
district court’s grant of the motion to arrest judgment. First,
Camara asserts that this court can affirm the district court’s ruling
because the State failed to prove he acted knowingly. See Utah
Code § 76-2-103(2) (“A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is
aware that his conduct is reasonably certain to cause the result.”);

7. We acknowledge that some level of exposure to risk of bodily
injury is inherent in daily life. For instance, had Camara dragged
her across a quiet cul-de-sac or placed Ruby in a car and simply
driven away, Ruby likely would have been exposed to no more
risk of bodily injury than people who willingly choose to engage
in ordinary daily activities. But because those are not the
circumstances here, we do not opine on whether a reasonable jury
could find beyond a reasonable doubt that such activities would
expose a person to actual risk of bodily injury. And we note,
again, the State’s agreement that the relevant statute requires
something more than a mere hypothetical risk of injury.

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id. § 76-5-301(2) (requiring proof an actor acted “intentionally or
knowingly”). According to Camara, he did not intentionally
detain Ruby in circumstances exposing her to risk of bodily injury
because he purposefully waited for cars to pass before proceeding
across the road. Rather than negating Camara’s mens rea, the
evidence showing he paused for passing vehicles sufficiently
supports the jury’s finding that he was well aware of the risks
created by his conduct. After all, Camara did not have to be aware
that his conduct was reasonably certain to cause injury, just that
his conduct was reasonably certain to create a risk of injury. The
State’s evidence was more than sufficient to show Camara acted
with the required mens rea.

¶24 Second, although he acknowledges that the legislature
amended the kidnapping statute in 2001 to remove the
requirement that the bodily injury be “serious,” Camara
nevertheless asks us “to make Utah’s kidnapping statute more in
unison with the rest of the country” because other states require
“either a substantial risk, a serious injury, or both.” Specifically,
Camara urges this court to interpret the statute to require more
than merely the risk of bodily injury by applying two rules of
statutory interpretation—the canon of noscitur a sociis and the
rule of lenity.

¶25 First, under the noscitur a sociis canon, “a word is known
by the company it keeps,” Gustafson v. Alloyd Co., Inc, 513 U.S. 561,
575 (1995), and we utilize it to give words grouped in a list related
meanings, see Richards v. Cox, 2019 UT 57, ¶ 34, 450 P.3d 1074
(“Under the interpretive canon noscitur a sociis, we read associated
words as bearing similar contextual meanings to each other.”).
Camara notes that the other subsections of Utah Code section
76-5-301(2) define kidnapping as (1) detaining an individual for
“any substantial period of time,” (2) holding an individual “in
involuntary servitude,” (3) detaining a minor without parental
consent, and (4) moving an individual a “substantial distance or
across a state line.” He argues “risk of bodily injury” must be

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interpreted to involve conduct that is similarly serious. Second,
under the rule of lenity, this court must “interpret an ambiguous
statute in favor of lenity toward the person charged with criminal
wrongdoing.” State v. Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258.

¶26 But we have no need to resort to canons of statutory
interpretation or the rule of lenity because the text of Utah Code
section 76-5-301(2)(b) is not ambiguous. See Marion Energy, Inc., v.
KFJ Ranch P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863 (“When the
meaning of a statute can be discerned from its language, no other
interpretive tools are needed.” (cleaned up)); Rasabout, 2015 UT
72, ¶ 22 (“[T]he rule of lenity is not implicated unless a statute is
ambiguous.”). The statute uses the term “risk” with no modifiers
like “substantial” or “likely.” And risk, by definition, involves
possibilities, not certainties or near certainties. See Risk, Merriam-
Webster, https://www.merriam-webster.com/dictionary/risk
[https://perma.cc/TU4F-ARDF] (defining risk as the “possibility
of loss or injury”). Thus, the statute does not contain language
requiring the level of risk for which Camara advocates. Utah Code
section 76-5-302(3)(b) is clear on its face, and this court cannot
rewrite an unambiguous statute or substitute its judgment for that
of the Utah Legislature. See State v. Jeffries, 2009 UT 57, ¶ 13 n.3,
217 P.3d 265 (“The job of the legislature is to define crimes,
prescribe penalties, and establish guidelines for prosecutors,
judges, and juries for enforcing the law.”).

CONCLUSION

¶27 The district court’s order arresting judgment is reversed.
We remand the matter with instruction to reinstate the jury’s
verdict finding Camara guilty of first-degree aggravated
kidnapping and to resentence Camara accordingly.

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