State v. Bourk

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2017 UT App 32
THE UTAH COURT OF APPEALS
STATE OF UTAH, Appellee, V. BRADLEY EDWARD BOURK, Appellant.
Opinion No. 20141069-CA Filed February 16, 2017
Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 141901810
Joel J. Kittrell and Kristina H. Ruedas, Attorneys for Appellant Sean D. Reyes and Thomas B. Brunker, Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
VOROS, Judge:
1 Defendant Bradley Edward Bourk was convicted of aggravated robbery. The aggravating factor was his use of a dangerous weapon. A victim of the crime testified that Bourk "put his hand into his jacket and pulled out a gun." Bourk contends on appeal that the trial evidence was insufficient to support a jury finding that he used a dangerous weapon in the course of committing a robbery. We affirm.
T2 In assessing a claim of insufficiency of the evidence, "we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Maestas, 2012 UT 46, I 302, 299 P.3d 892 (citation

State v. Bourk
20141069-CA 	2 	2017 UT App 32
and internal quotation marks omitted). We reverse “only when
the evidence, so viewed, is sufficiently inconclusive or inherently
improbable 	that 	reasonable 	minds 	must 	have 	entertained 	a
reasonable doubt that the defendant committed the crime of
which 	he 	or 	she 	was 	convicted.” 	Id. 	(citation 	and 	internal
quotation marks omitted). Also, “in reviewing the sufficiency of
the evidence, we refuse to re-evaluate the credibility of witnesses
or second-guess the jury’s conclusion.” State v. Fedorowicz, 2002
UT 67, ¶ 40, 52 P.3d 1194 (citation and internal quotation marks
omitted). 1
A person commits aggravated robbery if, in the course of	¶3
committing robbery, he “uses or threatens to use a dangerous
weapon as defined in Section 76-1-601.” Utah Code Ann. § 76-6-
302(1)(a) (LexisNexis 2012). Section 76-1-601 defines “dangerous
weapon” in part as “any item capable of causing death or serious
bodily injury” or “a facsimile or representation of the item,
if . . . the actor’s use or apparent intended use of the item leads
the victim to reasonably believe the item is likely to cause death
or serious bodily injury . . . .” Id. § 76-1-601(5).
Here, 	store 	employees 	stopped 	Bourk, 	suspecting	¶4
shoplifting. A scuffle ensued. During the fight, Bourk dropped a
number of items, including a holster he had just purchased and a
CO2 cartridge. One of the employees testified that, after the store
employees escorted Bourk to an office in the back of the store,
Bourk “put his hand into his jacket and pulled out a gun and we
saw the gun.” The employee, who was experienced with guns,
saw the barrel of the gun but couldn’t tell what kind of gun it
was, because Bourk placed his left hand over the top of the gun.
1. Both parties indicated that because Bourk did not preserve his
sufficiency challenge, we should apply a plain error standard of
review. However, our own review of the record indicates that
Bourk did preserve this challenge. Our disposition would be the
same under a plain error analysis.

State v. Bourk
20141069-CA 	3 	2017 UT App 32
The 	employee 	feared 	that 	Bourk 	would 	use 	the 	gun 	and
afterwards “felt very fortunate that he didn’t use it.” Bourk
never threatened to shoot or said “I have a gun.” But one of the
employees said, “He’s got a gun, he’s got a gun” and stepped
back from Bourk. No one was injured in the encounter.
Bourk testified that what the employee thought was a gun	¶5
was in fact a “little chrome torch lighter” used for lighting
cigarettes. No gun or torch lighter was ever recovered, but Bourk
did draw a sketch of the torch lighter, which was admitted as a
trial exhibit and is attached to this opinion.
The question here is whether the evidence was sufficient	¶6
to support a jury finding beyond a reasonable doubt that Bourk
either used a gun or used a facsimile or representation of a gun
where his use or apparent intended use of the facsimile led the
victim to reasonably believe it was a gun. See id. The evidence
here 	is 	not 	so 	“inconclusive 	or 	inherently 	improbable 	that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” See Maestas, 2012 UT 46, ¶ 302 (citation and internal
quotation marks omitted). One of the victims, who was familiar
with guns, testified that Bourk pulled out a gun, and the other
victim exclaimed, “He’s got a gun.” Bourk himself testified that
he pulled out a chrome torch lighter, and Bourk’s sketch of the
lighter resembles a gun. Viewing these facts in the light most
favorable to the jury’s verdict, we hold that reasonable minds
could conclude beyond a reasonable doubt that Bourk either
wielded a gun or wielded a facsimile of a gun in a manner that
led the victims to reasonably believe it was a gun.
Affirmed.	¶7

State v. Bourk

EXHIBIT A

20141069-CA 4 2017 UT App 32