State v. Olola

2014 UT App 263
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
JULIUS OCHIENG OLOLA,
Defendant and Appellant.

Memorandum Decision
No. 20130435-CA
Filed November 14, 2014

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 121909990

Lacey C. Singleton and Nathalie S. Skibine,
Attorneys for Appellant

Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.

DAVIS, Judge:

¶1 Julius Ochieng Olola appeals his convictions of driving
under the influence of alcohol and related charges. We affirm.

¶2 Olola first argues that the evidence was insufficient to
support a determination beyond a reasonable doubt that he
operated a motor vehicle—an element of each offense of which he
was convicted. Olola argues that the trial court should have
granted his motion for a directed verdict because the evidence
supporting the jury’s determination that he operated a motor
vehicle was “sufficiently inconclusive or inherently improbable that
State v. Olola

reasonable minds must have entertained a reasonable doubt that
[Olola] committed the crime of which he was convicted.” See State
v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94.

In reviewing the denial of a motion for a directed
verdict based on a claim of insufficiency of the
evidence, [w]e will uphold the trial court’s decision
if, upon reviewing the evidence and all inferences
that can be reasonably drawn from it, we conclude
that some evidence exists from which a reasonable
jury could find that the elements of the crime had
been proven beyond a reasonable doubt.

State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (alteration in
original) (citation and internal quotation marks omitted).

¶3 The primary evidence that Olola operated a motor vehicle
came from a witness who testified that he was standing two to four
feet from Olola’s van when he saw Olola stagger toward the van,
climb in, and turn it on. The witness testified that while attempting
to leave his parking spot, Olola first hit the car in front of him, then
backed up and hit the car behind him. The witness then watched
Olola drive to a nearby gas station and hit a light pole in the gas
station parking lot.

¶4 There were several inconsistencies between the witness’s
testimony at trial and the written statement he filled out
immediately following the incident. In the written statement, the
witness did not mention the light pole, claimed that Olola hit the
cars while trying to park rather than while leaving his parking
spot, stated that Olola hit the car behind him before he hit the car
in front of him, and claimed to have witnessed the incident from
fifty feet away rather than the two to four feet he recalled at trial.

¶5 Relying on these inconsistencies, Olola asserts that the
witness’s testimony was so inherently improbable that it could not
support the jury’s verdict. “Substantial inconsistencies in a sole

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State v. Olola

witness’s testimony . . . can create a situation where the prosecution
cannot be said to have proven the defendant’s guilt beyond a
reasonable doubt . . . .” State v. Robbins, 2009 UT 23, ¶ 17, 210 P.3d
288. However, a jury’s credibility determinations may be
reevaluated on this basis only “where (1) there are material
inconsistencies in the testimony and (2) there is no other
circumstantial or direct evidence of the defendant’s guilt. The
existence of any additional evidence supporting the verdict
prevents the [trial] judge from reconsidering the witness’s
credibility.” Id. ¶ 19 (emphasis added).

¶6 Here, the State presented physical evidence of damage
caused to the two cars that Olola allegedly hit while trying to get
out of his parking spot. Photographs provided at trial depicted
damage matching the height and shape of Olola’s vehicle. This
physical evidence was sufficient to corroborate the witness’s
testimony. Thus, reevaluation of the jury’s verdict by the trial court
on the basis of inherently improbable witness testimony would
have been inappropriate. See id. Although the various
inconsistencies in the witness’s testimony certainly undermine his
credibility, his credibility was not “so weak that no reasonable jury
could find [Olola] guilty beyond a reasonable doubt.” See id. ¶ 18.

¶7 Olola next argues that the trial court erred in overruling his
objection to the prosecutor’s statement, “Why would people at the
[gas station] say, Don’t let that guy drive?” Olola asserts that this
statement, made during the prosecutor’s rebuttal closing argument,
improperly argued facts not in evidence. “We review a trial court’s
handling of claimed prosecutorial misconduct for an abuse of
discretion.” State v. Kozlov, 2012 UT App 114, ¶ 28, 276 P.3d 1207
(citation and internal quotation marks omitted).

¶8 In determining whether alleged prosecutorial misconduct
merits reversal, we must determine whether “the remarks call[ed]
to the attention of the jurors matters which they would not be
justified in considering in determining their verdict” and whether
“under the circumstances of the particular case, [the jurors were]

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State v. Olola

probably influenced by those remarks.” State v. Ross, 2007 UT 89,
¶ 54, 174 P.3d 628 (citation and internal quotation marks omitted).
“Counsel for both sides have considerable latitude in their closing
arguments. They have the right to fully discuss from their
perspectives the evidence and all inferences and deductions it
supports.” State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989).
Nevertheless, counsel may not argue or allude to matters not
introduced into evidence at trial. State v. Larrabee, 2013 UT 70, ¶ 23,
321 P.3d 1136; State v. Hopkins, 782 P.2d 475, 478 (Utah 1989). “In
assessing whether there was prejudicial error in the prosecutor’s
comments, we will consider the comments both in context of the
arguments advanced by both sides as well as in context of all the
evidence.” State v. Bakalov, 1999 UT 45, ¶ 56, 979 P.2d 799.

¶9 We agree with the State that the prosecutor’s reference to the
statements of the gas station employees did not improperly
influence the jurors or call to their attention matters they were not
justified in considering. See Ross, 2007 UT 89, ¶ 54. Although no
testimony was admitted at trial indicating that the gas station
employees specifically said, “Don’t let that guy drive,” the
employees’ concern for Olola’s driving was implicit in the
testimony that was presented. After witnessing the accident, the
primary witness reported the accident to employees at the gas
station. The employees then approached an officer at the gas
station and repeated the information they had learned, which led
the officer to investigate Olola. The officer testified that the
employees’ statements caused him to be concerned for “public
safety” and prompted him to pull behind Olola’s vehicle so that
Olola could not leave the parking lot. Although the court did not
permit the officer to testify to hearsay statements made by the gas
station employees, it was clear from the officer’s testimony that his
concern for the safety risk posed by Olola arose from his
conversation with the employees. Thus, the fact that the gas station
employees wanted the officer to prevent Olola from driving could
be fairly inferred from the officer’s testimony and was not, under
the facts of this case, impermissibly addressed by the prosecutor
during closing arguments. See Dibello, 780 P.2d at 1225.

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State v. Olola

¶10 Finally, Olola takes issue with the prosecutor’s statement
during closing argument that the jury should convict Olola in order
to “nip” his conduct “before somebody gets killed.” Olola asserts
that this statement was “inflammatory and inappropriately
appealed to passion and prejudice.” See State v. Campos, 2013 UT
App 213, ¶ 49, 309 P.3d 1160. Because defense counsel did not
object to the prosecutor’s statement at trial, we review this
argument for plain error. See State v. Cram, 2002 UT 37, ¶ 4, 46 P.3d
230 (recognizing plain error as an exception to the preservation
rule). In order to prevail on grounds of plain error, an appellant
must show that “(i) [a]n error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e., absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant.” State v. Dunn, 850 P.2d 1201, 1208 (Utah
1993).

¶11 “[R]eference to the jury’s societal obligation is inappropriate
when it suggests that the jury base its decision on the impact of the
verdict on society and the criminal justice system rather than the
facts of the case.” Campos, 2013 UT App 213, ¶ 51 (citation and
internal quotation marks omitted). The prosecutor’s statement in
this case was not as pointed as improper statements identified in
other cases—e.g., statements urging the jury to become the victim’s
advocate, see State v. Wright, 2013 UT App 142, ¶ 41, 304 P.3d 887,
or to disregard the rights of the individual defendant in favor of a
duty to the criminal justice system, see Dunn, 850 P.2d at 1224.
Nevertheless, the statement does appear to suggest that the jury
base its decision on an obligation to society rather than the facts of
the case. See Campos, 2013 UT App 213, ¶ 51. The statement was
therefore inappropriate.

¶12 However, the prosecutor’s statement was not so prejudicial
as to require reversal. First, as a single phrase within the
prosecutor’s rebuttal argument, this statement appears to be fairly
innocuous, see Wright, 2013 UT App 142, ¶ 42; the fact that neither
defense counsel nor the trial court took issue with the statement at
the time it was made further supports this conclusion, see State v.

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Redcap, 2014 UT App 10, ¶ 33, 318 P.3d 1202 (“The failure of
defense counsel to object to statements made by a prosecutor
during the closing is a matter to which we attach significance. It is
not only a sign that what was said sounded less exciting at trial
than appellate counsel now would have it seem, but it is also some
indication that the tone and manner of the now challenged aspect
of the prosecutor’s argument were not unfairly prejudicial.”
(citations and internal quotation marks omitted)). Additionally, any
impact the statement may have had was mitigated by the jury
instructions, which directed the jury that the lawyers’ statements
were not evidence, that the jury should decide the case based only
on the evidence presented, and that the jurors “should not use this
case as a forum for correcting perceived wrongs in other cases or
as a means of expressing individual or collective views about
anything other than the guilt or innocence of Mr. Olola.” See Dunn,
850 P.2d at 1225 (determining that jury instructions helped to
mitigate the effect of an inappropriate statement by the prosecutor);
Wright, 2013 UT App 142, ¶ 42 (same). Accordingly, we conclude
that any error in the prosecutor’s statement was harmless beyond
a reasonable doubt. See Wright, 2013 UT App 142, ¶ 41 & n.6
(employing the harmless-beyond-a-reasonable-doubt standard in
the prosecutorial misconduct context).

¶13 In sum, we determine that the trial court did not err in
denying Olola’s motion for directed verdict, because the witness’s
testimony was not inherently improbable and was corroborated by
additional evidence. We further determine that the prosecutor’s
reference to the gas station employees’ statements did not
impermissibly refer to facts not in evidence. Finally, although the
prosecutor’s statement urging jurors to convict Olola “before
somebody gets killed” was improper, it was harmless beyond a
reasonable doubt. Accordingly, we affirm Olola’s convictions.

20130435-CA 6 2014 UT App 263