State v. Winfield

2006 UT 4
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20040382
Plaintiff and Appellee,
v.
F I L E D
Carl Alton Winfield,
Defendant and Appellant. 	January 13, 2006
---
Third District, West Valley
The Honorable Pat B. Brian
No. 031102207
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Marian Decker, Asst.
Att’y Gen., Salt Lake City, for plaintiff
Joan C. Watt, Kent R. Hart, Salt Lake City, for
defendant
---
PARRISH, Justice:
INTRODUCTION
¶1 	Defendant Carl Alton Winfield appeals his conviction
for aggravated robbery, arguing that (1) the trial court’s voir
dire examination was inadequate to ensure an impartial jury, and
(2) the evidence presented at trial was insufficient to support
his conviction. 	We conclude that Winfield invited the alleged
error in jury selection when he affirmatively passed the jury for
cause and accordingly decline to review that claim. 	We similarly
decline to review Winfield’s claim that the evidence was
insufficient to support his conviction because he failed to
preserve that claim in the trial court.
BACKGROUND
¶2 	“On appeal from a jury verdict, we view the evidence
and all reasonable inferences in a light most favorable to that
verdict and recite the facts accordingly.” 	State v. Pinder, 2005
UT 15, ¶ 2, 114 P.3d 551 (internal quotation marks omitted).

1 Sonic Drive-Ins are somewhat unique in that the buildings
are used only for food preparation and related business
operations. 	Patrons do not enter the buildings, but remain in
their vehicles, where they are served by carhops.
No. 20040382 	2
¶3 	Winfield entered the employees-only building of a Sonic
Drive-In restaurant in Salt Lake County, Utah. 1 	At least three
employees were inside the building at the time. 	One of the
employees, a carhop, was standing a few feet from the entrance,
with her back to the door. 	The assistant manager was seated at a
desk where she was busy sorting the carhop’s cash and receipts as
part of a routine checkout procedure. 	In her lap was a bank bag
containing cash.
¶4 	Winfield approached the carhop from behind, pressed
either his finger, his hand, or another hard object into her
right side above her hip and verbally demanded that she give him
all of the money. 	Maintaining pressure in her side, Winfield
moved the carhop forward in the direction of the desk, repeating
his demand for the money. 	Winfield then snatched the bank bag
from the assistant manager’s lap, turned away, and fled the
scene. 	The assistant manager immediately contacted police, who
located Winfield shortly thereafter.
¶5 	Winfield was subsequently arrested and charged with
aggravated robbery. 	At a preliminary hearing, Winfield elected
to forgo appointed representation and proceeded pro se.
Following the hearing, the trial court bound Winfield over for
trial on the aggravated robbery charge. 	Winfield filed a timely
motion to quash the bindover, arguing that there was insufficient
evidence to establish aggravated robbery. 	The trial court denied
the motion and set the matter for trial.
¶6 	On the first day of trial, the trial judge questioned
Winfield to determine whether he wanted to continue pro se.
After Winfield responded affirmatively and indicated that he felt
competent to do so, the trial judge began the process of jury
selection. 	He began by asking questions designed to examine each
prospective juror’s ability to serve impartially. 	Questions
included whether any prospective juror or any of the jurors’
immediate family members or close friends (1) was or knew someone
who was a sworn law enforcement officer, (2) had been accused of
a crime, or (3) had been the victim of a crime similar to the one
with which Winfield was charged. 	Seven of the eight jurors who
ultimately sat on the jury gave at least one affirmative
response. 	Two jurors responded that they had been victims of a
similar crime, two jurors indicated that they had family members
who had been convicted of a serious crime, two jurors stated that

3 	No. 20040382
they had either committed crimes themselves or been accused of
committing a crime, two other jurors indicated that they had
close familiarity with law enforcement, and one juror stated that
she was a victim’s rights advocate.
¶7 	The trial court followed up with six of the seven
responding jurors, asking them to explain the nature and time
period of their experiences and whether the experiences would
cause them to favor one side over the other. 	After elaborating
on their experiences, each of these six jurors ultimately
declared that he or she could be fair and impartial if selected
to serve on the jury, and the trial judge accepted their
responses without further questioning. 	The trial court failed to
ask any follow-up questions of the seventh juror, but Winfield
did not object, nor did he request any additional questioning of
that juror.
¶8 	Before concluding voir dire, the trial judge asked
Winfield if he had any additional questions for the jury panel.
Winfield responded affirmatively, asking the court to inquire
into one juror’s law enforcement background. 	The trial judge
allowed the additional questioning, and Winfield found the
juror’s response satisfactory. 	The trial judge then asked if
Winfield found the collective panel from which his jury would be
selected to be acceptable. 	Winfield responded, “Absolutely,” and
declined to use any of his four available peremptory challenges,
stating, “The defense concedes to the jury selection.” 	At the
conclusion of voir dire, Winfield again stated, “Let the record
reflect that I have conceded to the jury selection.”
¶9 	Following the presentation of evidence but before the
jury left to deliberate, Winfield inquired regarding a document
that had been placed on the table in front of him. 	The document
was entitled “Findings of Fact, Conclusions of Law and Order.”
The trial judge explained that the document reflected the court’s
written order denying Winfield’s motion to quash the bindover
following the preliminary hearing and indicated that the order
had been delivered to him at trial because he had previously
refused to approve it as to form. 	Winfield relied on the order
in objecting to a jury instruction that included a charge of the
lesser included offense of robbery. 	The trial court overruled
Winfield’s objection to the inclusion of such an instruction. 	At
this time, Winfield also moved for a directed verdict, claiming
that there was insufficient evidence to demonstrate that he had
taken any money from the restaurant. 	The trial court denied that
motion.

No. 20040382 	4
¶10 	The jury returned a verdict of guilty on the charge of
aggravated robbery. 	Winfield waived his right to a pre-sentence
investigation and hearing and was sentenced immediately.
¶11 	Winfield, acting with the assistance of legal counsel,
filed a timely notice of appeal with this court. 	We initially
transferred his appeal to the Utah Court of Appeals, but recalled
the case in order to hear it in conjunction with two other cases
involving similar issues, State v. King, 2006 UT 3, ___ P.3d ___,
and State v. Lee, 2006 UT 5, 128 P.3d 1179.
ANALYSIS
¶12 	Winfield urges us to reverse his conviction for two
reasons. 	Winfield first argues that he is entitled to a new
trial because the trial court’s voir dire examination was
inadequate to ensure an impartial jury. 	Second, Winfield argues
that the evidence presented at trial was insufficient to support
his conviction for aggravated robbery because there was no
evidence that he used a dangerous weapon. 	We discuss each issue
in turn.
I. 	JURY BIAS
¶13 	Winfield first claims that the trial court committed
reversible error by failing to fully probe seven of the eight
jurors who were ultimately empaneled. 	We hold that the doctrine
of invited error prevents us from reaching the merits of this
claim because Winfield affirmatively represented to the trial
court that he had no objection to the jury panel.
¶14 	“Generally speaking, a timely and specific objection
must be made [at trial] in order to preserve an issue for
appeal.” 	State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551; see
also State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. 	When a
party raises an issue on appeal without having properly preserved
the issue below, “we require that the party articulate an
appropriate justification for appellate review,” Pinder, 2005 UT
15, ¶ 45; specifically, the party must argue either “‘plain
error’” or “‘exceptional circumstance.’” 	Id. (quoting State v.
Pledger, 896 P.2d 1226, 1229 n.5 (Utah 1995)); accord State v.
Nelson-Waggoner, 2004 UT 29, ¶ 16, 94 P.3d 186. 	But under the
doctrine of invited error, we have declined to engage in even
plain error review when “counsel, either by statement or act,
affirmatively represented to the [trial] court that he or she had
no objection to the [proceedings].” 	State v. Hamilton, 2003 UT
22, ¶ 54, 70 P.3d 111; accord Pinder, 2005 UT 15, ¶ 62; State v.
Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742.

2 We note the application of the invited error doctrine to a
claim of erroneous voir dire in State v. Lee, 2006 UT 5, ¶ 20,
128 P.3d 1179, issued concurrently with this case.
3 When asked to pass a jury panel for cause, counsel must
either object or provide an affirmative representation of
consent. 	Consequently, claims of error in jury selection will
often be precluded under the invited error doctrine. 	We note,
(continued...)
5 	No. 20040382
¶15 	Our invited error doctrine arises from the principle
that “‘a party cannot take advantage of an error committed at
trial when that party led the trial court into committing the
error.’” 	Geukgeuzian, 2004 UT 16, ¶ 9 (quoting State v.
Anderson, 929 P.2d 1107, 1109 (Utah 1996)); accord Pinder, 2005
UT 15, ¶ 62; Hamilton, 2003 UT 22, ¶ 54. 	By precluding appellate
review, the doctrine furthers this principle by “discourag[ing]
parties from intentionally misleading the trial court so as to
preserve a hidden ground for reversal on appeal.” 	Geukgeuzian,
2004 UT 16, ¶ 12 (internal quotation marks omitted). 	Encouraging
counsel to actively participate in all proceedings and to raise
any possible error at the time of its occurrence “‘fortifies our
long-established policy that the trial court should have the
first opportunity to address a claim of error.’” 	Hamilton, 2003
UT 22, ¶ 54 (quoting Anderson, 929 P.2d at 1109).
¶16 	Affirmative representations that a party has no
objection to the proceedings fall within the scope of the invited
error doctrine because such representations reassure the trial
court and encourage it to proceed without further consideration
of the issues. 	See State v. Medina, 738 P.2d 1021, 1023 (Utah
1987) (“[T]he fact remains that counsel consciously chose not to
assert any objection that might have been raised and
affirmatively led the trial court to believe that there was
nothing wrong with the instruction.”). 	Although this court has
yet to apply the invited error doctrine to a claim of error
during voir dire, our prior use of the doctrine fully supports
the application of invited error in the voir dire context. 2 	See
Anderson, 929 P.2d at 1109 (“[A] party cannot take advantage of
an error committed at trial when that party led the trial court
into committing the error.”); Geukgeuzian, 2004 UT 16, ¶ 9
(same).
¶17 	Because trial judges often ask counsel to pass jury
panels for cause, we acknowledge that application of the invited
error doctrine may severely limit appellate challenges to the
adequacy of voir dire. 3 	But we find no reason to create a

3 (...continued)
however, that plain error review may be appropriate even in the
face of an affirmative representation by counsel in situations
where “a juror expresses a bias or conflict of interest so strong
or unequivocal as to inevitably taint the trial process.” 	State
v. Litherland, 2000 UT 76, ¶ 32, 12 P.3d 92. 	Moreover, we may
elect not to apply invited error when an appellee fails to raise
it. 	E.g., King, 2006 UT 3, ¶ 15.
4 In King, we noted that voir dire is not fundamentally
distinct from other trial court proceedings and therefore should
not be exempt from generally applicable standards of review.
2006 UT 3, ¶ 18.
5 Going hand in hand with our application of the invited
error doctrine to claims that the trial court erred in conducting
voir dire is our instruction to trial courts that they should
“err on the side of caution in ruling on for-cause challenges.”
State v. Saunders, 1999 UT 59, ¶ 51, 992 P.2d 951.
No. 20040382 	6
special exemption for such challenges. 4 	During jury selection,
it is generally “a simple matter to obviate any problem of bias
simply by excusing the prospective juror and selecting another.”
Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981), overruled on
other grounds by State v. Menzies, 889 P.2d 393 (Utah 1994).
Accordingly, “the principle of refusing to sanction invited
error” is particularly compelling in the “jury selection
context.” 5 	State v. Litherland, 2000 UT 76, ¶ 32, 12 P.3d 92.
¶18 	Here, Winfield responded to the trial court’s query
regarding the acceptability of the jury panel by stating that he
“[a]bsolutely” found the panel acceptable and agreed to have the
jury selected therefrom. 	His acceptance of the jury panel is
further highlighted by his later unsolicited statement that
“[t]he [d]efense concedes to the jury selection.” 	These
affirmative representations fall squarely within the scope of our
established invited error doctrine.
¶19 	Winfield asks us to excuse him from the invited error
doctrine because he was acting pro se. 	Our approach to pro se
litigants seeks to balance the procedural demands of litigation
and the rights of unrepresented parties. 	“‘[A]s a general rule,
a party who represents himself will be held to the same standard
of knowledge and practice as any qualified member of the bar.’”
Lundahl v. Quinn, 2003 UT 11, ¶ 3, 67 P.3d 1000 (quoting Nelson
v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983)). 	Nevertheless,
“‘because of his lack of technical knowledge of law and procedure
[a layman acting as his own attorney] should be accorded every

7 	No. 20040382
consideration that may reasonably be indulged.’” 	Id. (quoting
Nelson, 669 P.2d at 1213).
¶20 	In this case, Winfield’s decisions during voir dire can
hardly be accredited to a lack of technical knowledge of law and
procedure. 	While Winfield is not an attorney, he had previously
defended himself in another trial and appeared to have a
reasonable knowledge of his rights and of trial procedure.
Indeed, during voir dire, Winfield effectively made a for-cause
challenge to a potential juror, requested additional questioning
of another potential juror, and even objected to the trial
court’s repeated use of the term “overabundance of caution” when
striking potential jurors from the panel for cause. 	We therefore
decline Winfield’s invitation that we disregard the invited error
doctrine because of his pro se status.
¶21 	In summary, Winfield’s affirmative representations
regarding the acceptability of the jury panel invited the trial
court to proceed without further questioning of the panel and
without removing any additional jurors for cause. 	If the trial
court’s administration of voir dire constituted error, that error
was invited by Winfield. 	We therefore decline to review his
claim of inadequate voir dire.
II. 	SUFFICIENCY OF THE EVIDENCE
¶22 	Winfield next argues that there was insufficient
evidence to convict him of aggravated robbery because there was
no evidence that he had a dangerous weapon. 	Winfield was
convicted under Utah’s aggravated robbery statute, Utah Code Ann.
§ 76-6-302 (2003). 	That statute incorporates the definition
found in the general provisions of the Utah Criminal Code, which
defines a “dangerous weapon” as “any item capable of causing
death or serious bodily injury” or “a facsimile or
representation” of such an item. 	Utah Code Ann. § 76-1-601(5)
(2003).
¶23 	The State argues that we cannot consider Winfield’s
insufficiency claim because Winfield failed to raise it in the
trial court. 	As noted in our analysis of Winfield’s voir dire
claim, “‘[u]nder ordinary circumstances, we will not consider an
issue brought for the first time on appeal unless the trial court
committed plain error or exceptional circumstances exist.’”
State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551 (quoting State v.
Nelson-Waggoner, 2004 UT 29, ¶ 16, 94 P.3d 186); accord Monson v.
Carver, 928 P.2d 1017, 1022 (Utah 1996). 	Because Winfield argued
neither plain error nor exceptional circumstances in his brief on
appeal, review is available only if the issue was adequately

6 In his brief, Winfield argues simply that the prosecution
presented insufficient evidence to prove that he represented a
gun as defined under the law. 	While it is possible that Winfield
contemplated plain error review, he never uses such language,
despite specifically arguing plain error in his previous voir
dire claim. 	We therefore will not infer a plain error argument.
7 We note the distinction between the type of pretrial
(continued...)
No. 20040382 	8
preserved. 6 	See Carver, 928 P.2d at 1022. 	We find that it was
not.
¶24 	Winfield argues that he preserved his sufficiency claim
by filing a pretrial motion to quash his bindover for trial. 	He
also argues that he preserved the claim during his discussion
with the trial court following the delivery of the court’s
written order denying his motion to quash. 	We disagree on both
counts.
¶25 	First, we conclude that Winfield’s pretrial motion to
quash his bindover was insufficient to preserve his claim
regarding the sufficiency of the evidence at trial. 	There is a
disparity between the standards of proof for a pretrial motion to
quash a bindover based on insufficient evidence and an objection
to the sufficiency of the evidence following a trial. 	To defeat
a pretrial motion to quash, “the prosecution is not required to
introduce enough evidence to establish the defendant’s guilt
beyond a reasonable doubt, but must present a quantum of evidence
sufficient to warrant submission of the case to the trier of
fact.” 	State v. Talbot, 972 P.2d 435, 437 (Utah 1998) (internal
quotation marks omitted). 	In contrast, to overturn a conviction
based on insufficient evidence, a court must find that “the
evidence is sufficiently inconclusive or inherently improbable
such that reasonable minds must have entertained a reasonable
doubt that the defendant committed the crime.” 	State v. Holgate,
2000 UT 74, ¶ 18, 10 P.3d 346 (internal quotation marks omitted).
¶26 	Because a bindover determination requires less evidence
than a conviction, there is an inference that any flaw in a
bindover determination is necessarily “‘cured if the defendant is
later convicted beyond a reasonable doubt.’” 	Thomas v. State,
2002 UT 128, ¶ 7, 63 P.3d 672 (quoting State v. Quas, 837 P.2d
565, 566 (Utah Ct. App. 1992)). 	A party must therefore renew any
sufficiency objection at trial to inform the trial court of his
claim that the evidence presented at trial is insufficient to
support a conviction. 7 	Winfield failed to do so, and we

7 (...continued)
motion at issue in this case and a pretrial motion to suppress
evidence. 	In cases involving motions to suppress, “‘a defendant
[is not required] to object or to renew his motion to suppress at
trial where the trial judge is also the judge who ruled on the
pretrial motion.’” 	State v. Hansen, 2002 UT 114, ¶ 20, 61 P.3d
1062 (quoting State v. Johnson, 748 P.2d 1069, 1071 (Utah 1987)).
In contrast to pretrial motions challenging the sufficiency of
the evidence, motions to suppress are not complicated by
differing standards of review governing pretrial and
postconviction objections.
8 Winfield relied on the written order denying his motion to
quash in connection with his objection to a jury instruction
relating to a lesser included offense. 	But the record does not
reflect any objection to the sufficiency of the evidence
regarding the dangerous weapon statute.
9 	No. 20040382
accordingly hold that his pretrial motion to quash his bindover
for trial did not preserve his objection that there was
insufficient evidence to support his conviction.
¶27 	Winfield’s second attempt to establish preservation
also fails. 	Winfield asserts that his conversation with the
trial court regarding the “Findings of Fact and Conclusions of
Law and Order” was adequate to preserve his sufficiency claim.
But a review of that conversation reveals that it lacked the
requisite specificity. 	Generally speaking, “a timely and
specific objection must be made in order to preserve an issue for
appeal.” 	Pinder, 2005 UT 15, ¶ 45 (emphasis added); accord State
v. Whittle, 780 P.2d 819, 820-21 (Utah 1989). 	“This specificity
requirement arises out of the trial court’s need to assess
allegations by isolating relevant facts and considering them in
the context of the specific legal doctrine placed at issue.”
State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993); see also
State v. Elm, 808 P.2d 1097, 1099 (Utah 1991). 	Any references
Winfield may have made to the insufficiency of evidence presented
at trial were so cryptic and vague that they did not satisfy the
specificity requirement. 8 	We accordingly conclude that Winfield
failed to preserve his sufficiency objection for appeal.
¶28 	Winfield urges us to overlook any deficiency in the
preservation of his sufficiency claim because he appeared pro se.
For the same reasons addressed above in connection with
Winfield’s claim of jury bias, we find that Winfield’s pro se
status did not obviate his duty to preserve his objections. 	We
therefore decline to review the sufficiency of the evidence.

No. 20040382 	10
CONCLUSION
¶29 	Because Winfield invited any error committed during
voir dire and failed to preserve his challenge to the sufficiency
of the evidence, we do not reach the merits of either claim. 	We
therefore affirm Winfield’s conviction.
---
¶30 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.