State v. Lucero

IN THE UTAH COURT OF APPEALS

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State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100444‐CA
)
v. ) FILED
) (July 19, 2012)
Jacob Ronald Lucero, )
) 2012 UT App 202
Defendant and Appellant. )

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Third District, Salt Lake Department, 081906095
The Honorable Deno G. Himonas

Attorneys: Debra M. Nelson and Isaac E. McDougall, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Voros, Thorne, and Roth.

ROTH, Judge:

¶1 Defendant Jacob Ronald Lucero appeals his convictions for assault, see Utah
Code Ann. § 76‐5‐102 (2008), aggravated assault, see id. § 76‐5‐103 (current version at id.
(Supp. 2011)), failure to stop at the command of a law enforcement officer, see id. § 76‐8‐
305.5, and interference with an arresting officer, see id. § 76‐8‐305. We affirm.

¶2 Lucero challenges his convictions on the basis that there was insufficient
evidence from which the jury could find him guilty beyond a reasonable doubt. “We
will reverse a jury conviction for insufficient evidence only when the evidence, [viewed
in the light most favorable to the jury’s verdict], is sufficiently inconclusive or
inherently improbable that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime of which he . . . was convicted.” State v. White,
2011 UT App 162, ¶ 7, 258 P.3d 594 (omission in original) (internal quotation marks
omitted). “The court’s inquiry ends when there is some evidence, including reasonable
inferences, from which findings of all the requisite elements of the crime can reasonably
be made.” Id. ¶ 8 (internal quotation marks omitted).

I. Assault

¶3 Lucero first challenges his conviction for assault, a class A misdemeanor, arguing
that there was insufficient evidence to prove that the victim suffered substantial bodily
injury. At trial, the jury was instructed on self‐defense, and Lucero also argues that
there was insufficient evidence to prove beyond a reasonable doubt that he did not act
in self‐defense.

A. Substantial Bodily Injury

¶4 Lucero contends that there is insufficient evidence from which the jury could
find that he inflicted substantial bodily injury on the victim. “Assault is . . . an act,
committed with unlawful force or violence, that causes bodily injury to another or
creates a substantial risk of bodily injury to another.” Utah Code Ann. § 76‐5‐102(1)(c).
“Assault is a class A misdemeanor if . . . [it] causes substantial bodily injury to another.”
Id. § 76‐5‐102(3)(a). Substantial bodily injury is an injury “that creates or causes
protracted physical pain, temporary disfigurement, or temporary loss or impairment of
the function of any bodily member or organ.” Id. § 76‐1‐601(12).

¶5 At trial, the State presented evidence that Lucero hit the victim about twenty
times, causing the victim to suffer gaping cuts to his lip, below his lip, and on his chin.
Two of those cuts required stitches. Further, the victim had a visible scar at the time of
trial, almost two years after the assault. From this evidence, the jury could reasonably
conclude that the victim suffered substantial bodily injury. See, e.g., White, 2011 UT App
162, ¶ 11 (concluding that there was sufficient evidence from which the jury could
reasonably find that the defendant inflicted substantial bodily injury on the victim
where there was evidence of “a small facial laceration that bled significantly, continued
to bleed for up to thirty minutes, and left a two to three inch scar visible at trial five
months later,” even though at the time of trial the scar was not very apparent, had to be
pointed out to the jury, and may have been temporary).

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B. Self‐Defense

¶6 Lucero also challenges his conviction for assault, arguing that there was
insufficient evidence to prove beyond a reasonable doubt that he did not act in self‐
defense. “A person is justified in . . . using force against another [in self‐defense] when
and to the extent that he . . . reasonably believes that force is necessary to defend
himself . . . against such other’s imminent use of unlawful force.” Utah Code Ann. § 76‐
2‐402(1) (2008) (current version at id. § 76‐2‐402(1)(a) (Supp. 2011)). “In determining
[the] imminence or reasonableness” of force used in self‐defense, “the trier of fact may
consider . . . the nature . . . [and the] immediacy of the danger.” Id. § 76‐2‐402(5).
“[W]hen there is a basis in the evidence . . . , which would provide some reasonable
basis for the jury to conclude that . . . the defendant [acted to protect himself] from an
imminent threat . . . , an instruction on self‐defense should be given to the jury.” State v.
Knoll, 712 P.2d 211, 214 (Utah 1985). Once the jury has been instructed on self‐defense,
“the [State] has the burden to prove beyond a reasonable doubt that the [defendant did]
. . . not [act] in self‐defense.” Id.

¶7 The trial court instructed the jury on self‐defense based on evidence presented at
trial that Lucero only attacked the victim because he felt that he needed to protect
himself. Lucero testified that a friend had told him about six weeks before the assault
occurred that the victim was going “to jump” him. According to Lucero, when the
assault occurred, he and the victim “just started fighting.” The State, however, elicited
testimony that the victim did nothing to instigate the assault, nor did he fight back
when Lucero attacked him; rather, according to testimony given by other witnesses,
including the victim, Lucero simply approached the victim and started hitting him.
Lucero also testified that on the day of the assault, he and the victim had shared and
“enjoyed” some beers together, so he had “figured everything was okay.” Based on this
evidence, the jury could have found beyond a reasonable doubt that Lucero had not
acted in self‐defense.

¶8 Because there is sufficient evidence from which the jury could find that Lucero
caused the victim to suffer substantial bodily injury, and because there is sufficient
evidence from which the jury could find that Lucero did not act in self‐defense, we
conclude that there was sufficient evidence from which the jury could find Lucero
guilty beyond a reasonable doubt for assault, a class A misdemeanor.

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II. Other Convictions

¶9 Lucero next argues that there was insufficient evidence to support his
convictions for aggravated assault, see Utah Code Ann. § 76‐5‐103(1)(b) (2008) (current
version at id. § 76‐5‐103(1)(a) (Supp. 2011)), failure to stop at the command of a law
enforcement officer, see id. § 76‐8‐305.5, and interference with an arresting officer, see id.
§ 76‐8‐305.

¶10 These offenses arose out of the series of events following the assault and leading
to Lucero’s arrest. Lucero fled on a bicycle as officers responded to the scene of the
assault. One of the responding officers saw Lucero on the bicycle and followed him in a
marked patrol car. The officer activated his overhead lights and began chirping the
siren. Lucero looked back, apparently saw the officer following him, and began to
pedal his bicycle faster and harder.1

¶11 After following Lucero through the area, the officer passed him and pulled the
patrol car into Lucero’s path, blocking him. Lucero did not stop in time, hit the front
fender of the patrol car, and fell off his bike onto the ground. The officer got out of his
patrol car and yelled, “Stop. Police. You are under arrest.” Lucero, however, started to
get up, apparently in an attempt to run away. The officer ran toward Lucero, preparing
to tackle him. As the officer closed in, he saw Lucero reach behind his back. When the
officer tackled him, Lucero had a knife in his hand and was screaming, “I am going to
fucking kill you.” The officer and Lucero fought until the officer managed to get the
knife out of Lucero’s hand.2 Lucero continued to resist the officer’s attempts to subdue
him and take him into custody, and the knife, though then on the ground, remained
within Lucero’s reach. Eventually, two other officers arrived to find Lucero actively
hitting the officer who had pursued him; they also saw the knife on the ground. The

1
“A person is guilty of” failure to stop at the command of a law enforcement
officer if that person “flees from or otherwise attempts to elude a law enforcement
officer[] after the officer has issued a verbal or visual command to stop[,] for the
purpose of avoiding arrest.” Utah Code Ann. § 76‐8‐305.5 (2008).
2
“A person commits aggravated assault if he commits assault . . . and . . . uses a
dangerous weapon.” Utah Code Ann. § 76‐5‐103(1)(b) (2008) (current version at id. § 76‐
5‐103(1)(a) (Supp. 2011)).

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officers joined in the effort to subdue Lucero and managed to take him into custody
only with the use of a taser.3

¶12 In arguing that there was insufficient evidence to support these convictions,
Lucero relies on his own testimony and the testimony of another witness, which
testimonies describe a different version of the events. According to those testimonies,
Lucero did not see the officer pursuing him in a patrol car; the patrol car did not have
its lights or siren on; the patrol car hit Lucero’s bicycle from behind, causing him to fall
over his handle bars; and after the patrol car hit Lucero’s bicycle, Lucero did not
struggle or resist but was hurt and lying on the ground when the officers beat and tased
him without provocation. Lucero argues that this contradictory testimony makes the
evidence supporting his convictions “so inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt” as to his guilt. See
generally State v. White, 2011 UT App 162, ¶ 7, 258 P.3d 594 (“We will reverse a jury
conviction for insufficient evidence only when the evidence . . . is sufficiently
inconclusive or inherently improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime of which he . . . was
convicted.” (second omission in original) (internal quotation marks omitted)).

3
“A person is guilty of” interference with an arresting officer
if
he has knowledge, or by the exercise of reasonable care should have
knowledge, that a peace officer is seeking to effect a lawful arrest or
detention of that person or another and interferes with the arrest or
detention by:
(1) use of force or any weapon;
(2) the arrested person’s refusal to perform any act required
by lawful order:
(a) necessary to effect the arrest or detention;
and
(b) made by a peace officer involved in the
arrest or detention; or
(3) the arrested person’s or another person’s refusal to
refrain from performing any act that would impede the
arrest or detention.
Utah Code Ann. § 76‐8‐305 (2008).

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¶13 The evidence Lucero relies upon, however, does not render the evidence that
supports the jury’s verdict inconclusive or inherently improbable. Rather, the evidence
is merely contradictory, and “[c]ontradictory [evidence] alone is not sufficient to disturb
a jury verdict.” State v. Watts, 675 P.2d 566, 568 (Utah 1983). “When . . . evidence . . . is
conflicting or disputed, the jury serves as the exclusive judge of both the credibility of
witnesses and the weight to be given particular evidence.” State v. Workman, 852 P.2d
981, 984 (Utah 1993). Accordingly, we will “not reassess credibility or reweigh the
evidence, but [will] resolve conflicts in the evidence in favor of the jury verdict.” See id.
And because “there is some evidence . . . from which findings of all the requisite
elements of the crime[s] can reasonably be made,” we conclude that there is sufficient
evidence from which the jury could find Lucero guilty of those crimes beyond a
reasonable doubt. See White, 2011 UT App 162, ¶ 8 (internal quotation marks omitted).

¶14 Accordingly, we affirm.

____________________________________
Stephen L. Roth, Judge

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¶15 WE CONCUR:

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

____________________________________
William A. Thorne Jr., Judge

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