State v. Benson

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 92
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MALIK EAGLE BENSON,
Defendant and Appellant.
Opinion
No. 20120360-CA
Filed April 24, 2014
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 111901422
Richard G. Uday, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE RUSSELL W.
BENCH concurred.1
VOROS, Judge:
¶1 Defendant Malik Eagle Benson was charged with
committing four armed robberies in downtown Salt Lake City in
less than twenty-four hours. After his arrest, Benson confessed to
the first robbery, which included the theft of a car. That car served
as the getaway vehicle in at least one of the other robberies, and
police apprehended Benson after seeing him driving it. Benson

State v. Benson
20120360-CA 2 2014 UT App 92
unsuccessfully moved to sever charges relating to the first robbery
from charges relating to the other three. His principal contention on
appeal asserts that the trial court abused its discretion in denying
his motion to sever. We hold that it did not.
BACKGROUND
¶2 A spate of similar robberies took place in Salt Lake City on
February 18 and 19, 2011. At 1:30 p.m. on February 18, a parking lot
scuffle between two men spilled into a taqueria. One of the men
demanded the other’s money and car keys, then brandished a gun,
ordered a waitress and the patrons to “give him the cash,” and took
one patron’s wallet. The robber left in the stolen car, a blue Nissan.
¶3 Shortly after 7:00 p.m., an armed man robbed two people
outside a local restaurant, then went inside and demanded money
at the register. Half an hour later, an armed man held up a gas
station four miles away and left in a blue Nissan Sentra. And the
next morning, an armed man walked into the back office of a
Burger King, confronted the manager, and told her to open the
restaurant’s tills. The man left the Burger King in a blue Nissan
with the same plate numbers as the car stolen from the taqueria the
day before.
¶4 Later that day, Officer Michael Coles spotted the stolen blue
Nissan and made eye contact with the driver. The officer chased
the blue Nissan into a hotel parking lot, where the driver left the
car and ran into the hotel. A SWAT team evacuated the hotel
guests and eventually flushed out and arrested Malik Eagle
Benson, who had barricaded himself in a room. Officer Coles later
identified Benson as the man driving the blue Nissan.
¶5 Benson was charged with eight counts of aggravated
robbery using a dangerous weapon, one count of obstructing
justice, and one count of failing to respond to an officer’s signal to
stop. Benson moved to sever the first three aggravated-robbery

State v. Benson
20120360-CA 3 2014 UT App 92
counts, which were based on the taqueria robbery, from the
remaining five counts. Benson argued that the taqueria-robbery
counts were “neither based on the same conduct nor otherwise
connected together in their commission” to the other counts, that
the two sets of aggravated-robbery counts did not “cumulatively
comprise a common scheme or plan,” and that the “probative value
of any evidence related to the [other robberies] would be
significantly outweighed by its prejudicial effect” with respect to
the taqueria-robbery counts. The trial court denied Benson’s
motion to sever.
¶6 A jury convicted Benson of two of the three taqueria-
robbery counts, one count each for the gas station and Burger King
robberies, and the counts for obstructing justice and failing to
respond. It acquitted Benson of the third taqueria-robbery count
and of all three counts based on the robbery of the local restaurant.
The court sentenced Benson to five years to life for each of the
aggravated-robbery counts and ordered that those sentences run
consecutively. The court also sentenced Benson to one to fifteen
years for obstructing justice and zero to five years for failing to
respond and ordered that those sentences run concurrently with
the aggravated-robbery sentences. Benson appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 Benson contends that the trial court erred by denying his
motion to sever the taqueria-robbery charges from the remaining
charges. Granting or denying a severance motion “is a
discretionary function of the trial judge, who must weigh prejudice
to the defendant caused by joinder against considerations of
economy and expedition in judicial administration.” State v. Pierre,
572 P.2d 1338, 1350 (Utah 1977). Accordingly, we grant a trial court
that denies a severance motion “considerable latitude” and reverse
only if the trial court’s refusal to sever amounts to “a clear abuse of
discretion in that it sacrifices the defendant’s right to a
fundamentally fair trial.” Id.; see also State v. Collins, 612 P.2d 775,

State v. Benson
20120360-CA 4 2014 UT App 92
777 (Utah 1980); State v. Balfour, 2008 UT App 410, ¶ 10, 198 P.3d
471.
¶8 Benson also contends that one of the jury instructions was
unconstitutional, “violating his presumption of innocence and
impermissibly shifting the burden of proof.” Generally, we review
a trial court’s ruling on a jury instruction for correctness. State v.
Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892. But when a party does not
object to an instruction at trial, we review the trial court’s ruling
“under the manifest injustice or plain error standard.” State v.
Powell, 2007 UT 9, ¶ 11, 154 P.3d 788. Moreover, when “counsel,
either by statement or act, affirmatively represented to the court
that he or she had no objection to the jury instruction,” we will not
review the trial court’s ruling, even under the manifest injustice
exception. State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111.
ANALYSIS
I. Benson’s Motion to Sever
¶9 Benson contends that the trial court erred by denying his
motion to sever the three counts related to the robbery at the
taqueria from the five counts related to the remaining three
robberies. In reviewing a ruling on a motion to sever, we will
“reverse [a denial] only if the trial judge’s refusal to sever charges
is a clear abuse of discretion in that it sacrifices the defendant’s
right to a fundamentally fair trial. Under [the abuse of discretion]
standard, we will not reverse . . . unless the decision exceeds the
limits of reasonability.” Balfour, 2008 UT App 410, ¶ 10 (alterations
in original) (citations and internal quotation marks omitted).
¶10 Section 77-8a-1 of the Utah Code governs severance and
joinder. That section specifies that two or more felonies may be
tried together on two conditions. First, the charged offenses must
be sufficiently connected. This connection exists if the charged
offenses are (1) “based on the same conduct,” (2) “otherwise

State v. Benson
2. The Single Criminal Episode Statute is not relevant here. See
Utah Code Ann. §§ 76-1-401 to -403 (LexisNexis 2008). That statute
prohibits separate trials for “separate offenses” arising “under a
single criminal episode.” Id. § 76-1-402(2). Benson claims he was
entitled to separate trials. Moreover, section 76-1-401 states,
“Nothing in this part shall be construed to limit or modify the effect
of Section 77-8a-1 in controlling the joinder of offenses and
defendants in criminal proceedings.”
3. The trial court ruled that they were part of a common scheme or
plan. See Utah Code Ann. § 77-8a-1(1)(b). Because offenses that are
part of a common scheme or plan are necessarily “connected
together in their commission” and the evidence more readily
supports the latter, more general ground, we affirm on that
alternative ground. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d
1158 (“[A]n appellate court may affirm the judgment appealed
from . . . on any legal ground or theory apparent on the record.”
(citation and internal quotation marks omitted)).
20120360-CA 5 2014 UT App 92
connected together in their commission,” or (3) “alleged to have
been part of a common scheme or plan.” See Utah Code Ann. § 77-
8a-1(1) (LexisNexis 2008). Second, the court must not have found
that the defendant or the prosecution would be prejudiced by a
joinder. Id. § 77-8a-1(4)(a).2
A. Connected Offenses
¶11 We first consider whether the charged offenses were
connected. The parties agree that the counts related to the taqueria
robbery are not based on the “same conduct” as the remaining
counts. But we readily conclude that all four crimes are “otherwise
connected together in their commission.” Id. § 77-8a-1(1).3
¶12 “Under our rules of statutory construction, we look first to
the statute’s plain language to determine its meaning.” Sindt v.
Retirement Bd., 2007 UT 16, ¶ 8, 157 P.3d 797 (citation and internal

State v. Benson
20120360-CA 6 2014 UT App 92
quotation marks omitted). The plain language of the statute
requires only that the charges be “otherwise connected together in
their commission.” Utah Code Ann. § 77-8a-1(1).
¶13 We have held that crimes are “otherwise connected together
in their commission” where a later crime is “precipitated by” an
earlier one, such as where the later crime facilitates flight after the
earlier one. See State v. Scales, 946 P.2d 377, 385 (Utah Ct. App. 1997)
(citation and internal quotation marks omitted). For example, in
Scales, the defendant borrowed a gun from his brother-in-law,
killed his wife with the gun, then fled in a car belonging to his
wife’s grandmother. Id. at 379–80. The trial court denied the
defendant’s motion to sever his murder count from his theft counts.
Id. at 380–81. This court upheld that ruling, concluding that “the
conduct resulting in the theft charges was precipitated by
defendant’s conduct resulting in the murder charge, and
consequently the theft and murder charges were sufficiently
‘connected together in their commission’ to allow the trial court to
order a single trial of the different offenses.” Id. at 385 (quoting
Utah Code Ann. § 77-8a-1(1)(a) (Michie 1995)). But crimes need not
be causally related to be connected; the category of connected cases
includes, but is not limited to, “precipitation cases” like Scales. See
State v. Smith, 927 P.2d 649, 653 (Utah Ct. App. 1996).
¶14 Here, the taqueria robbery and the other robberies were
“connected together in their commission.” See Utah Code Ann.
§ 77-8a-1(1). Benson committed all the crimes in the course of a
single robbery spree within a twenty-four-hour period, using what
appeared to be the same weapon and the same getaway car.
Indeed, the blue Nissan Sentra runs as a thread through the
robberies and Benson’s apprehension. Benson stole it in the course
of committing the taqueria robbery. He later confessed to this
crime. The gas station robber concealed his face but left in a blue
Sentra. The Burger King robber also concealed his face but left in a
blue Sentra whose license plate matched that of the car stolen at the
taqueria. Finally, police apprehended Benson after seeing him
driving the Sentra.

State v. Benson
4. Whoever robbed the local restaurant had covered his face with
a hood and a red bandana but left in a small, dark blue or black car.
Without further identification of the robber, the jury acquitted
Benson of the charges related to this incident.
20120360-CA 7 2014 UT App 92
¶15 This case differs from Scales principally in the order of
events, not in their degree of connection. There the car theft
allowed the perpetrator to drive away from the murder scene. See
Scales, 946 P.2d at 379–80. Here, the car theft allowed the
perpetrator to drive to the scene of each of the subsequent
robberies. These crimes were connected together in their4
commission.
B. Prejudice by Joinder
¶16 We next consider prejudice. As noted above, even offenses
otherwise properly joined must be severed if necessary to prevent
prejudice to the defendant: if a defendant “is prejudiced by a
joinder of offenses . . . , the court shall order an election of separate
trials of separate counts.” Utah Code Ann. § 77-8a-1(4)(a)
(LexisNexis 2008). However, “[t]he burden of demonstrating
prejudice is a difficult one, and the ruling of the trial [court] will
rarely be disturbed on review. The defendant must show
something more than the fact that a separate trial might offer him
a better chance of acquittal.” Smith, 927 P.2d at 653–54 (citation and
internal quotation marks omitted).
¶17 We have held that “an otherwise proper joinder of multiple
charges is prejudicial if evidence of the other bad acts would not
have been admissible in a separate trial.” State v. Hildreth, 2010 UT
App 209, ¶ 38, 238 P.3d 444. And we ordinarily analyze
admissibility under rule 404(b) of the Utah Rules of Evidence. See,
e.g., State v. Balfour, 2008 UT App 410, ¶ 21, 198 P.3d 471. Here,
however, Benson does not claim that the trial court erred in
analyzing admissibility under rule 404(b) or rule 403. In fact, he

State v. Benson
20120360-CA 8 2014 UT App 92
concedes that evidence relating to the taqueria robbery would be
admissible in a trial on the other robberies.
¶18 Benson argues rather that “trying the counts together
created a heightened degree of prejudice to the defendant denying
him his right to a fair trial on each separate event” and that “[t]here
is an inherent prejudicial impact to the defendant trying all eight
robbery counts in one proceeding,” which “clearly justifies and
even requires the severance of these proceedings.” “Otherwise,” he
argues, “the defendant will be wrongfully stigmatized by the
evidence of the multiple charges and will suffer inherent unjust
prejudice.” Such generalized but unanalyzed assertions of
prejudice fall short of demonstrating trial court error; rather, an
appellant “must provide meaningful legal analysis.” West Jordan
City v. Goodman, 2006 UT 27, ¶ 29, 135 P.3d 874 (citation and
internal quotation marks omitted). His brief “must go beyond
providing conclusory statements and fully identify, analyze, and
cite [his] legal arguments.” Id. (citation and internal quotation
marks omitted).
¶19 Furthermore, Benson cites no law supporting his theory that
joinder prejudiced him notwithstanding the fact that severance
would not have resulted in the exclusion of any evidence. Cf., e.g.,
Hildreth, 2010 UT App 209, ¶ 38 (stating that in joinder challenges,
“we have equated prejudice with whether the evidence would have
properly come in anyway under rule 404(b)”); Balfour, 2008 UT
App 410, ¶ 22 n.9 (“The test for joinder of charges . . . utilizes an
analysis under rule 404(b) . . . .”).
¶20 Benson does suggest that State v. Gotfrey demonstrates how
he was prejudiced in the present case. See 598 P.2d 1325 (Utah
1979). In Gotfrey, the defendant was convicted of raping his
stepdaughter in September 1975, sodomizing his stepson in
October 1976, and raping a second stepdaughter in March 1977. Id.
at 1327. Our supreme court “conclude[d] that the separate and
different charges of rape upon the step-daughters and of sodomy
involving the step-son are not of such similarity in character and

State v. Benson
20120360-CA 9 2014 UT App 92
circumstances of commission that, considering fairness to the
defendant, they should have joined under the [joinder] statute.” Id.
at 1328. The court stressed that “the two charges of rape relate to
incidents several months apart and with different victims; and that
the charge of sodomy is a separate and distinct offense with
different elements.” Id. Gotfrey offers little guidance here. While the
robbery victims here were of course different, Benson committed
all the robberies within a twenty-four-hour period. And after
stealing a car in the first robbery, he used it to commit the others.
¶21 Benson also relies on State v. Balfour, 2008 UT App 410, 198
P.3d 471. Balfour was charged with four counts of forcible sexual
abuse and attempted forcible sexual abuse. Id. ¶ 2. This court held
that the fourth count was improperly joined with the other three.
Id. ¶ 30. Relying on Gotfrey, we noted dissimilarities between the
fourth count and the remaining counts. Id. We also observed that
the fourth count “occurred on September 15, 2003, while the other
three counts occurred on January 21, 2005—a full sixteen months
later.” Id. We concluded that the trial court had exceeded its
discretion in finding that the fourth count was part of the same
common scheme or plan as the other three. Id. In short, we
reversed not under the prejudice prong of the joinder test, but
under the connection prong. Accordingly, Balfour does not aid
Benson’s claim that he was prejudiced by joinder here. Moreover,
the temporal proximity of Benson’s crimes distinguishes this case
from Balfour.
¶22 In sum, Benson has not shown that the trial court abused its
discretion in refusing to sever the taqueria-robbery counts from the
remaining counts. The taqueria robbery and the ensuing robberies
were connected together in their commission, and Benson has not
demonstrated that joinder of the charges prejudiced him. On the
contrary, Benson’s acquittal on the local restaurant charges
indicates that the jury was clearly able to evaluate each of the
robberies independently. See supra ¶ 15 n.4.

State v. Benson
5. That subsection reads as follows:
The following presumption shall be applicable to this
part:
(1) Possession of property recently stolen, when no
satisfactory explanation of such possession is made,
shall be deemed prima facie evidence that the person
in possession stole the property.
Utah Code Ann. § 76-6-402(1) (LexisNexis 2008).
20120360-CA 10 2014 UT App 92
II. Jury Instruction
¶23 Benson further contends that the trial court erred by giving
a jury instruction quoting verbatim the language of Utah Code
section 76-6-402(1). He argues that “[t]his instruction as given has5
been declared unconstitutional by our Supreme Court as violative
of the constitutionally protected presumption of innocence and has
been successfully challenged as impermissibly shifting the burden
of proof from the State to the Defendant.” The State concedes that
our supreme court “has held that trial courts should not give a jury
instruction that uses this statutory language verbatim.” But the
State argues that the trial court’s error was harmless and that
Benson’s defense counsel invited any error when she told the court
that the jury instruction was supported by caselaw. We agree with
the State.
¶24 As a general rule, “claims not raised before the trial court
may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346. This preservation rule applies to “every claim, including
constitutional questions, unless a litigant demonstrates that
‘exceptional circumstances’ exist or ‘plain error’ occurred.” Id.
(citation and internal quotation marks omitted). To preserve an
issue for appeal, “[t]rial counsel must state clearly and specifically
all grounds for objection.” State v. Larsen, 865 P.2d 1355, 1363 n.12
(Utah 1993). The objection must “be specific enough to give the trial
court notice of the very error of which counsel complains.” State v.
Bryant, 965 P.2d 539, 546 (Utah Ct. App. 1998) (citation and internal

State v. Benson
20120360-CA 11 2014 UT App 92
quotation marks omitted). And the issue “must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51,
99 P.3d 801 (brackets, citation, and internal quotation marks
omitted).
¶25 Under these standards, Benson did not preserve his present
claim of error in the trial court. Jury Instruction 49 paraphrases
section 76-6-402(1) of the Utah Code:
If a person is in possession of property that has
recently been stolen, when no satisfactory
explanation of such possession is made, that shall be
deemed prima facie evidence that the person in
possession stole the property.
Benson’s attorney did object to the instruction, but in objecting, she
represented to the trial court that under relevant caselaw, the
instruction did not unconstitutionally shift the burden of proof to
the defense:
And this is an objection for the record [to] Instruction
49, which is the instruction about the
presumption . . . that if a person is in possession of
property that’s been recently stolen, that it shall be
deemed prima facie evidence. I know that there’s case
law that indicates that it is not burden shifting, and
therefore constitutionally permissible. For the record, I
would still like to say that I don’t agree with those
cases that say that, and believe that it still is
unconstitutional.
(Emphasis added.) The trial court gave Instruction 49 over her
objection, and the prosecutor highlighted the instruction in his
closing argument.

State v. Benson
20120360-CA 12 2014 UT App 92
¶26 We recognize that defense counsel here did not, “either by
statement or act, affirmatively represent[] to the court that he or
she had no objection to the jury instruction.” State v. Hamilton, 2003
UT 22, ¶ 54, 70 P.3d 111. She did object. But in the course of that
objection, she assured the court that the instruction did not suffer
from the very infirmity Benson now claims on appeal.
¶27 On appeal, Benson asserts that the jury instruction was
unconstitutional. But at trial Benson asserted that the instruction
was constitutional—albeit under caselaw that defense counsel
disagreed with. Benson thus did not alert the trial court to the
“very error” he asserts on appeal. That trial counsel disagreed with
the caselaw would preserve an appellate challenge to the caselaw,
but it would not cause the trial court to refuse the instruction.
¶28 If anything, Benson invited the error he now alleges.
Although obviously not “a conscious attempt to mislead the trial
court,” counsel’s assurance that the jury instruction had been held
constitutional nevertheless “effectively led the trial court into
adopting the erroneous jury instruction that he now challenges on
appeal.” See State v. Geukgeuzian, 2004 UT 16, ¶ 12, 86 P.3d 742.
“Vertical stare decisis . . . compels a court to follow strictly the
decisions rendered by a higher court.” State v. Menzies, 889 P.2d
393, 399 n.3 (Utah 1994). Consequently, assuring the trial court that
the instruction had been held constitutional virtually guaranteed
that the trial court would not refuse to give it.
¶29 Like our supreme court, “we are resolute in our refusal to
take up constitutional issues which have not been properly
preserved, framed and briefed.” Brigham City v. Stuart, 2005 UT 13,
¶ 14, 122 P.3d 506, rev'd on other grounds, 547 U.S. 398 (2006).
Accordingly, Benson is foreclosed from arguing the
unconstitutionality of Instruction 49 on appeal.
¶30 But even if Benson’s argument were not foreclosed, we
would agree with the State that giving Instruction 49 constituted
harmless error. To hold a constitutional error harmless, we “must

State v. Benson
20120360-CA 13 2014 UT App 92
be able to declare a belief” that the error “was harmless beyond a
reasonable doubt.” See Chapman v. California, 386 U.S. 18, 24 (1967).
When assessing an error’s harmfulness, we look, in part, to “the
overall strength of the State’s case”: “[t]he more evidence
supporting the verdict, the less likely there was harmful error.”
State v. Hamilton, 827 P.2d 232, 240 (Utah 1992); see also State v.
Crowley, 2014 UT App 33, ¶ 17, 320 P.3d 677. In State v. Fontana, for
example, our supreme court noted the “nature and quantity of the
evidence” against the defendant and declined to reverse a
defendant’s murder conviction, concluding that there was “no
reasonable likelihood” that a different jury instruction “would have
produced a more favorable result for the defendant.” 680 P.2d 1042,
1049 (Utah 1984).
¶31 State v. Crowley illustrates the harm caused by an erroneous
jury instruction when the prosecution presents an otherwise weak
case against the defendant. See 2014 UT App 33. After pawning a
stolen iPod, Crowley was charged with theft by receiving. Id.
¶¶ 2–3. The trial court gave a stolen-property instruction nearly
identical to the instruction given here. Id. ¶ 3. The prosecution
“based its case almost entirely on the jury’s application of the
presumption” contained in that jury instruction. Id. ¶ 18. In fact, the
prosecution “presented no evidence directly linking [Crowley] to
the iPod’s theft.” Id. As a result, this court concluded that the
Crowley jury instruction was both erroneous and prejudicial. Id.
¶¶ 16, 19.
¶32 Unlike the State’s case in Crowley, the State’s case against
Benson did not rely heavily on the presumption contained in the
erroneous jury instruction. Even without the stolen-property
presumption, the State’s case against Benson was strong. In
Benson’s hotel room, police found a cell phone stolen during the
Burger King robbery and a bag with $500 in small bills. This is the
only property to which the challenged jury instruction could apply.
Even excluding the cell phone and cash, the evidence presented at
trial tied Benson closely to the charged robberies. Benson admitted

State v. Benson
20120360-CA 14 2014 UT App 92
stealing the blue Nissan Sentra in the course of robbing the
taqueria. Within hours of the taqueria robbery, the stolen blue
Nissan was used in the Burger King robbery and a car matching its
description was used in the gas station robbery. Behind the
bathroom wall in Benson’s hotel room, officers found a black
airsoft gun matching the description of the weapon wielded in
those robberies. Eyewitnesses from each of the four robberies
described an armed man whose height, build, and complexion are
generally consistent with Benson’s. And Benson’s decision to flee
from Officer Coles when he was spotted in the blue Nissan
supported the inference that Benson committed the Burger King
robberies. See State v. Holgate, 2000 UT 74, ¶ 23 & n.6, 10 P.3d 346.
Given the robustness of the State’s case against Benson, we
conclude that giving Instruction 49 was harmless beyond a
reasonable doubt. Accordingly, we would not reverse Benson’s
convictions based on Instruction 49 even if his counsel had not
invited the trial court’s error.
CONCLUSION
¶33 For the foregoing reasons, the judgment of the trial court is
affirmed.