State v. Robinson

2018 UT App 227

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TIMOTHY RYAN ROBINSON,
Appellant.

Opinion
No. 20160990-CA
Filed December 13, 2018

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 161901905

Debra M. Nelson and Wojciech S. Nitecki, Attorneys
for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

HAGEN, Judge:

¶1 Timothy Ryan Robinson appeals his sentence for
aggravated assault, arguing that the district court failed to
properly resolve an inaccuracy in his presentence investigation
report (PSR). Specifically, Robinson objected to the four points
added to his criminal history score based on his prior conviction
for assault on a police officer. In determining that the assault was
a “person crime with injury” for purposes of the sentencing
guidelines, the district court looked to the PSR, police report,
and photographs from the prior crime and concluded that an
“injury” occurred where Robinson punched the police officer in
the face, causing pain and a laceration to his nose. Robinson
State v. Robinson

argues that the court should not have relied on such evidence
and that the court abused its discretion by finding that the injury
sustained by the police officer qualified for the four-point
assessment. We affirm.

BACKGROUND

¶2 Following an episode of domestic violence between
Robinson and his wife, the State charged Robinson with several
offenses, including aggravated assault. In exchange for the State
dismissing six of the charges, Robinson pled guilty to one count
of aggravated assault, a third-degree felony, with a weapon
enhancement.

¶3 At the district court’s request, Adult Probation and Parole
(AP&P) conducted an investigation and submitted a PSR. As
part of the PSR, AP&P calculated a criminal history assessment
score for Robinson, which it then incorporated into the Utah
Sentencing Commission’s general matrix (Sentencing Matrix).
The Sentencing Matrix “compare[s] a defendant’s ‘criminal
history assessment’ score with the degree of the offense of which
he ha[s] been convicted” to “assist sentencing judges in deciding
whether or not to incarcerate.” State v. Egbert, 748 P.2d 558, 561–
62 (Utah 1987) (Durham, J., dissenting).

¶4 Robinson received a criminal history assessment score of
eight, placing him in criminal history category III. Four of the
eight criminal history points were based on Robinson’s prior
conviction for attempted homicide, which AP&P categorized as
a “person crime with injury.” 1 When viewed in conjunction with

1. This category no longer appears in the Utah Sentencing
Guidelines. “The distinction between prior person crimes
with or without injury has been replaced with a specific number
for a specific type of offense by severity.” Utah Sentencing
Comm’n, Adult Sentencing & Release Guidelines 1 (2017),
(continued…)

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State v. Robinson

the third-degree felony to which Robinson pled guilty,
Robinson’s category III score produced a recommendation of an
“intermediate sanction” on the Sentencing Matrix—i.e., “any
sanction between regular probation and prison.” Utah
Sentencing Comm’n, Adult Sentencing & Release Guidelines 17
(2015), https://www.utah.gov/pmn/files/172049.pdf. AP&P
recommended, however, that the district court deviate from that
recommendation and impose the maximum sentence of
one-to-ten years in the Utah State Prison “due to the extremely
brutal nature of the offense, as well as the defendant’s repeated
history of violent behaviors,” which indicate that Robinson is
“an immediate public safety risk.”

¶5 Robinson challenged the accuracy of the PSR, arguing
that AP&P had incorrectly categorized his prior attempted
homicide conviction as a “person crime with injury” based on
the mistaken belief that the offense had resulted in death.
Because no injury or death had occurred during the commission
of that prior crime, Robinson argued that he should have been
awarded only two points instead of four toward the total score
on his criminal history assessment. A reduced criminal history
score of six would have placed him in criminal history category
II, resulting in a recommendation of “probation” under the
Sentencing Matrix.

¶6 After reviewing the objections to the PSR, AP&P
admitted that it had erroneously stated that Robinson
had previously caused the death of another individual. But
AP&P determined that Robinson should nevertheless be
assessed four points for committing a prior person crime with
injury based on a separate class A misdemeanor conviction for
assaulting a police officer.

(…continued)
https://justice.utah.gov/Sentencing/Guidelines/Adult/2017%20A
dult%20Sentencing%20and%20Release%20Guidelines.pdf.

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State v. Robinson

¶7 Robinson moved the district court to correct the PSR,
contending that AP&P’s amended evaluation was “driven by the
earlier error[] rather than a fair assessment of the facts”
underlying the prior assault conviction. Robinson further argued
that the award of four points was “particularly inappropriate”
because the PSR for the prior assault conviction reflected that the
police officer reported “no physical or emotional injury as a
result of the incident.”

¶8 The district court requested that Robinson submit the
police report, photographs, and PSR from the prior assault case
for it to consider. Before relying on that evidence to determine
whether Robinson’s prior person crime conviction involved an
injury, the court asked, “[D]oes anybody contest what the
photograph and the police reports say?” Robinson’s counsel
responded, “No.” The court followed up by asking, “[D]oes
everybody agree the police reports are what they are? This is
what they say? The photographs of the police officer.” In
response, Robinson’s counsel stated, “That is correct.”

¶9 The district court ultimately determined that Robinson’s
prior assault conviction qualified as a “person crime with injury”
under the Sentencing Matrix. Because the sentencing guidelines
do not include a definition of “injury,” the district court referred
to the Utah Criminal Code, which defines “bodily injury” as
“physical pain, illness, or any impairment of physical condition.”
See Utah Code Ann. § 76-1-601 (LexisNexis 2017). Based on this
definition, the court found “the officer did have an injury,” even
if it was minor. In support of its finding, the court pointed to the
police report, which stated that the officer had been “punched in
the nose by [Robinson],” and the photograph, which showed
“blood on the left side of his nose.”

¶10 The district court adopted the PSR, including the
four-point enhancement for the prior assault, and ultimately
sentenced Robinson to one-to-ten years in prison, the maximum
permissible sentence for a third-degree felony with an
enhancement for the use of a dangerous weapon. In doing so,

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the court stated that its decision to send Robinson to prison was
not “based on those two extra points.”

¶11 Robinson appeals. Although he does not challenge the
ultimate sentence imposed, he asserts that his PSR “will follow
him through the justice system” and seeks “a remand for the
purpose of correcting the inaccuracy in his PSR.”

ISSUES AND STANDARDS OF REVIEW

¶12 Robinson raises two sentencing issues on appeal, one
procedural and one substantive. As to the procedural issue, he
contends that the district court failed to comply with its legal
duty to properly resolve the alleged inaccuracy contained in the
PSR. “Whether the [district] court properly complied with a legal
duty to resolve on the record the accuracy of contested
information in sentencing reports is a question of law that we
review for correctness.” State v. Waterfield, 2014 UT App 67, ¶ 29,
322 P.3d 1194 (quotation simplified). Robinson also argues that
the court erred in relying on unreliable police reports and
photographs to resolve his objection. Whether the court based its
sentencing decision on reliable information also “presents a
question of law that is reviewed for correctness.” State v.
Maroney, 2004 UT App 206, ¶ 24, 94 P.3d 295.

¶13 Substantively, Robinson contends that the district
court abused its discretion in determining that the injury
sustained by the police officer rendered that conviction a
“person crime with injury.” This sentencing determination
resulted in a higher criminal history assessment score. District
courts are afforded wide latitude in sentencing, and we will
reverse a sentencing decision only if the court abused its
discretion. See State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985. “This
court reviews the sentencing decisions to discover any abuse of
discretion by applying varying standards of review consistent
with the issues raised.” State v. Rhodes, 818 P.2d 1048, 1049 (Utah
Ct. App. 1991). For questions of law, we employ a correctness

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standard. See id. at 50. We review questions of fact for clear error.
See id.

ANALYSIS

I. Procedural Challenge

¶14 Under Utah Code section 77-18-1(6)(a), “[a]ny alleged
inaccuracies in the [PSR], which have not been resolved by the
parties and the department prior to sentencing, shall be brought
to the attention of the sentencing judge.” Utah Code Ann.
§ 77-18-1(6)(a) (LexisNexis Supp. 2018). To resolve such issues,
the district court must: (1) “consider the objection raised;”
(2) “make findings on the record regarding the accuracy of the
information at issue;” and (3) “determine on the record the
relevance of that information as it relates to sentencing.” State v.
Abelon, 2016 UT App 22, ¶ 19, 369 P.3d 113 (quotation
simplified).

¶15 At sentencing, Robinson objected to the PSR’s calculation
of his criminal history assessment score. Specifically, Robinson
claimed that his prior conviction for assault on a police officer
did not qualify as a “person crime with injury,” which carried a
four-point assessment. Robinson argued that assessing four
points was only “rational when . . . someone is convicted or
pleads guilty to an offense which requires as an element some
type of injury, [and] this isn’t such an offense.”

¶16 The district court considered Robinson’s objection
and made findings on the record that Robinson’s
prior conviction qualified as a person crime with injury for
purposes of calculating his criminal history score. On
appeal, Robinson challenges the court’s use of the police
report and photographs from the prior offense in making
that determination. Whether it was permissible for the court to
look to this evidence to categorize the prior conviction
involves two sub-issues, only the first of which was
preserved. First, we consider whether the district court

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State v. Robinson

properly looked beyond the elements of the prior offense to
the underlying facts that gave rise to that conviction.
Second, because we conclude that the court properly looked
beyond the elements of the offense, we consider whether the
court based its determination on sufficiently reliable evidence.
This second sub-issue was not preserved, and although
Robinson asks us to reach it through the plain error exception to
the preservation rule, Robinson cannot establish plain error on
appeal. See State v. Johnson, 2017 UT 76, ¶¶ 18–19, 416 P.3d 443
(holding that appellate courts do not consider unpreserved
arguments unless an exception to the preservation rule applies
and acknowledging plain error as an exception to the
preservation rule).

A. Consideration of Facts Underlying Prior Conviction

¶17 First, Robinson contends that the district court erred in
categorizing his prior conviction for assault on a police officer as
a “person crime with injury” because that offense does not
include injury as an element. But nothing in the language of the
Sentencing Matrix limits the application of the “person crime
with injury” category to crimes in which injury is an element of
the offense.

¶18 The phrase appears only once in the 2015 Utah
Sentencing Guidelines, written as “person crime w/injury” at
the top of the Sentencing Matrix. See Utah Sentencing
Comm’n, Adult Sentencing & Release Guidelines 19 (2015),
https://www.utah.gov/pmn/files/172049.pdf. The instructions
accompanying the Sentencing Matrix provide no guidance on
how to interpret the phrase. Nor do they define or place any
limitation on the term “injury.” If the sentencing commission
had wished to limit application of the four points to those person
crimes in which injury was an element of the offense, it could
have easily done so, either in the instructions or by changing the
language in the Sentencing Matrix to “person crime w/injury as
an element.”

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State v. Robinson

¶19 In contrast, the instructions to the Sentencing Matrix do
define the term “person crime.” A person crime means “any
offense listed in Utah Code Annotated 76-3-203.5(c), as well as
those designated as person crimes in Addendum B.” Id. at 14.
Addendum B instructs courts to “first determine the degree of
the offense (1st degree, 2nd degree, or 3rd degree) by referring to
the judgment and commitment order or other official court
document. Then, look on this list to determine whether the
offense is categorized as murder, death, person, possession, or
other.” Id. at 43. While offenses that constitute “person” crimes
are listed by statute number, Addendum B does not indicate
which of those person crimes should be categorized as “person
crimes w/injury.” This omission strongly suggests that such a
determination is not categorical based on the elements of the
prior offense, but depends on the facts underlying the prior
conviction.

¶20 In the absence of any contrary direction in the sentencing
guidelines, we apply the general proposition that the sentencing
court “must be permitted to consider any and all information
that reasonably might bear on the proper sentence for the
particular defendant, given the crime committed.” Wasman v.
United States, 468 U.S. 559, 563 (1984). The calculation of a
defendant’s criminal history score does not increase the
statutorily prescribed sentence. 2 “The Sentencing Matrix creates

2. We note that the United States Supreme Court has adopted a
categorical approach to determining whether a prior offense
triggers an enhanced sentence under federal recidivism statutes.
Under this approach, a court may look “only to the statutory
definitions of the prior offenses, and not to the particular facts
underlying those convictions.” Taylor v. United States, 495 U.S.
575, 600 (1990). Lower courts have extended this approach to
enhancements under the federal sentencing guidelines based on
prior convictions, see, e.g., United States v. Taylor, 843 F.3d 1215,
1221–22 (10th Cir. 2016), and some states have applied the
(continued…)

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a starting point for sentencing judges by reflecting a
recommendation for a typical case, but judges are not bound
by the recommendations and are to take both aggravating
and mitigating circumstances into account, along with
other pertinent considerations, when making sentencing
decisions.” State v. Harvey, 2015 UT App 92, ¶ 3, 348 P.3d
1199 (quotation simplified). In particular, “the decision
whether to grant probation is within the complete discretion of
the trial court,” and, in making that decision, district
courts properly consider a defendant’s “character, personality[,]
and attitude” in conjunction with his or her “prior record.” State
v. Miera, 2015 UT App 46, ¶ 7, 345 P.3d 761 (quotation
simplified). We see no reason why, as part of this assessment,
courts should be prohibited from considering the underlying
facts forming the basis of a defendant’s prior person crime
conviction, including whether the victim of that crime was
injured. See State v. Howell, 707 P.2d 115, 117–18 (Utah 1985)
(holding that district courts have “substantial discretion in
imposing a sentence” and may consider all “reasonably reliable
and relevant information in exercising [that] discretion”).

(…continued)
categorical approach to their own recidivism statutes as well, see,
e.g., State v. Dickey, 329 P.3d 1230, 1240 (Kan. Ct. App. 2014).
However, a criminal history assessment under the Utah
Sentencing Guidelines does not function as a sentencing
enhancement. Robinson’s third-degree felony conviction with
the weapons enhancement carried a term of imprisonment not to
exceed ten years, see Utah Code Ann. §§ 76-3-203(3), -203.8(2)
(LexisNexis 2017), regardless of how his prior conviction for
assault on an officer was characterized. Therefore, the court’s
determination that Robinson’s prior conviction involved injury
had no impact on the statutorily prescribed sentence. We express
no opinion on whether the categorical approach would apply if
the classification of Robinson’s prior conviction had subjected
him to an increased penalty.

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B. Due Process Challenge to Reliability of Evidence

¶21 Having decided that a court may look beyond
the elements of the prior offense in categorizing a prior
conviction as a “person crime with injury,” we turn to the
second procedural sub-issue: whether the court’s determination
was based on reliable evidence. The State argues that Robinson
has waived this issue under the doctrine of invited error. We
disagree.

¶22 Under the doctrine of invited error, “where a party
makes an affirmative representation encouraging the court to
proceed without further consideration of an issue, an appellate
court need not consider the party’s objection to that action on
appeal.” State v. Bruun, 2017 UT App 182, ¶ 59, 405 P.3d 905
(quotation simplified). According to the State, Robinson
repeatedly assured the district court that he did not contest the
reliability of the police reports and photographs. In support of its
position, the State points to the sentencing hearing where the
court asked, “[D]oes anybody contest what the photograph and
the police reports say?” Robinson responded, “No.” Soon after,
the court again inquired, “[D]oes everybody agree the police
reports are what they are? This is what they say? The
photographs of the police officer.” In response, Robinson stated,
“That is correct.”

¶23 The district court’s inquiry went to the authenticity of the
documents, not their reliability. Under rule 901(a) of the Utah
Rules of Evidence, a “proponent must produce evidence
sufficient to support a finding that the item is what the
proponent claims it is.” Utah R. Evid. 901(a). In affirming that
the documents “are what they are” or say “what they say,”
Robinson waived any challenge to the authenticity of the
documents, an evidentiary issue distinct from Robinson’s
challenge to the reliability of the evidence. Because Robinson
never affirmatively represented that he had no objection to the
court considering the documents for purposes of sentencing, he
did not waive the issue asserted on appeal.

20160990-CA 10 2018 UT App 227
State v. Robinson

¶24 But neither did Robinson preserve the issue. To preserve
an issue for appeal, a party “must specifically raise the issue in a
timely fashion and must introduce supporting evidence and
relevant legal authority.” State v. Salgado, 2018 UT App 139, ¶ 27,
427 P.3d 1228. Although Robinson objected to looking beyond
the elements of the offense in determining whether his prior
assault conviction was a person crime with injury, he never
argued that the police report and photographs from the prior
offense were unreliable. Because the issue was unpreserved,
Robinson must establish an exception to the preservation
requirement.

¶25 Robinson argues that the court’s reliance on this evidence
amounted to plain error. To prevail under the plain-error
exception to the preservation rule, Robinson must establish that:
(1) “an error exists”; (2) “the error should have been obvious to
the district court”; and (3) “absent the error, there is a reasonable
likelihood of a more favorable outcome.” State v. Williams, 2018
UT App 176, ¶ 8 (quotation simplified). “If any one of these
requirements is not met, plain error is not established.” State v.
Diaz-Arevalo, 2008 UT App 219, ¶ 13, 189 P.3d 85 (quotation
simplified).

¶26 Robinson contends that the district court plainly
erred because police reports and photographs are insufficiently
reliable to satisfy due process. Due process “requires that a
sentencing judge act on reasonably reliable and relevant
information in exercising discretion in fixing a sentence.”
State v. Howell, 707 P.2d 115, 118 (Utah 1985). “When there
is evidence in the record showing a sentencing judge’s
reliance on specific information, we will not consider it
improper for a judge to rely on such information if the
evidence in question had indicia of reliability and was
relevant in sentencing.” State v. Moosman, 2017 UT App 11, ¶ 9,
391 P.3d 395 (quotation simplified). “It is the defendant’s
burden to demonstrate that the information relied upon was
unreliable or irrelevant.” Id. (quotation simplified).

20160990-CA 11 2018 UT App 227
State v. Robinson

¶27 Robinson has cited no authority to support the
proposition that police reports and photographs generated
during the investigation of a prior offense do not meet this
threshold standard of reliability. Instead, he cites cases
concerning the reliability of police reports for purposes of
determining their admissibility under the Utah Rules of
Evidence. See State v. Bertul, 664 P.2d 1181, 1184 (Utah 1983)
(concluding that police reports made in anticipation of
prosecution and offered by the State do not provide a basis for
reliability required under the business records exception); Layton
City v. Peronek, 803 P.2d 1294, 1297–98 (Utah Ct. App. 1990)
(extending Bertul to an incident report introduced at a probation
revocation hearing where the district court applied the Utah
Rules of Evidence). But it is well established that “[e]vidence that
is inadmissible at the guilt stage may be admissible for the
purpose of sentencing.” Howell, 707 P.2d at 117. “The rules of
evidence in general, and the rules on hearsay exclusions in
particular, are inapplicable in sentencing proceedings.” State v.
Sanwick, 713 P.2d 707, 709 (Utah 1986); see also Utah R. Evid.
1101(c) (providing that the Utah Rules of Evidence do not apply
at sentencing). The cases Robinson cites, which involve the
application of the business records exception to the hearsay rule,
are similarly inapplicable in the sentencing context.

¶28 “For an error to be obvious to the trial court, the party
arguing for the exception to preservation must show that the law
governing the error was clear or plainly settled at the time the
alleged error was made.” State v. Johnson, 2017 UT 76, ¶ 21, 416
P.3d 443 (quotation simplified). In the absence of any authority
suggesting that police reports and photographs relating to a
prior conviction are inherently unreliable for purposes of
sentencing, Robinson cannot establish that the district court
plainly erred in relying on such evidence.

II. Substantive Challenge

¶29 In addition to the procedural claims addressed above,
Robinson raises a substantive challenge to the district court’s

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State v. Robinson

conclusion that the injuries sustained by the police officer
warranted a four-point increase to his criminal history score.
Specifically, Robinson argues that because the victim’s injuries
were minor, Robinson’s score and the resulting sentence
recommendation were disproportionate, especially when
compared with other offenses listed under the person crimes
category in the sentencing guidelines.

¶30 Robinson’s challenge again involves two sub-issues:
whether the district court correctly interpreted “injury” to
include minor injury and whether the district court abused its
discretion in concluding that the police officer suffered such an
injury. These two sub-issues are each subject to a different
standard of review. See State v. Rhodes, 818 P.2d 1048, 1049–50
(Utah Ct. App. 1991). First, we review the district court’s legal
interpretation of the term “injury” for correctness. See id. Second,
we review for clear error the court’s factual finding that
Robinson’s prior assault conviction involved “injury.” See id.

A. Legal Interpretation of “Injury”

¶31 We first consider whether the district court correctly
interpreted the term “injury,” as used in the Sentencing Matrix,
to include minor injury. Sentencing guidelines are commonly
interpreted using traditional canons of statutory interpretation.
See, e.g., United States v. Enrique-Ascencio, 857 F.3d 668, 672 (5th
Cir. 2017) (“Federal sentencing guidelines are analyzed
according to the rules of statutory interpretation.”); State v.
Campbell, 814 N.W.2d 1, 4 (Minn. 2012) (“We apply the rules of
statutory construction to our interpretation of [Minnesota’s]
sentencing guidelines.”).

¶32 If the guidelines included a definition of “injury,” “we
would of course look there first.” See O’Hearon v. Hansen, 2017
UT App 214, ¶ 24, 409 P.3d 85. But as we have explained, see
supra ¶¶ 18–19, the sentencing guidelines neither define the
term, nor do they specify the type or severity of injuries
contemplated by this category of offenses. Notably, the

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sentencing commission did not use a modifier to limit the prior
person crime category to only those crimes involving “serious”
or “substantial” injuries, as the legislature often does throughout
the Utah Criminal Code. See, e.g., Utah Code Ann. §§ 76-1-
601, -102, -103, 76-5-107, 76-6-102 (LexisNexis 2017).

¶33 In the absence of a specialized definition, we interpret
“injury” according to its plain meaning. See O'Hearon, 2017 UT
App 214, ¶ 24. “A starting point for a court’s assessment of
ordinary meaning is the dictionary.” Id. ¶ 25 (quotation
simplified). Black’s Law Dictionary defines “bodily injury” as
“[p]hysical damage to a person’s body.” Injury, Black’s Law
Dictionary (10th ed. 2014). Similarly, the Utah Code’s definition
provides that “bodily injury” includes “physical pain, illness, or
any impairment of physical condition.” Utah Code Ann. § 76-1-
601. Either definition is sufficiently broad to include a punch to
the face resulting in pain and a small laceration. Therefore, the
district court did not err in concluding that “a minor injury . . . is
nonetheless an injury” that qualifies for the four-point
assessment.

B. Factual Finding that an Injury Occurred

¶34 Second, we review the district court’s factual finding that
Robinson’s prior assault conviction involved injury. We defer to
factual findings at sentencing unless they are clearly erroneous.
See State v. Rhodes, 818 P.2d 1048, 1049–50 (Utah Ct. App. 1991).
In finding that the victim of the prior assault was injured, the
district court relied on the prior PSR as well as a police report
and photographs of the victim’s injuries. According to the police
report, Robinson “punched [the police officer] in the nose,”
resulting in “a cut on the [left] side of [his] nose.” This account
was reiterated in the PSR and corroborated by a photograph
depicting the victim with a small laceration and blood on the left
side of his nose.

¶35 Although the police officer reported in his victim impact
statement that he suffered no physical or emotional injury as a

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result of the incident, the district court, as the finder of fact, was
entitled to resolve apparent conflicts in the evidence. See State v.
Black, 2015 UT App 30, ¶ 19, 344 P.3d 644 (“It is the role of the
factfinder to examine and resolve such conflicts.”). This conflict
alone does not render the court’s finding clearly erroneous.

CONCLUSION

¶36 We conclude that the district court properly resolved the
alleged inaccuracy in the PSR and did not abuse its discretion in
assessing four criminal history points for Robinson’s prior
assault conviction. Accordingly, we affirm.

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