State v. Gainer

2014 UT App 286
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
NATHANIEL SHANE GAINER,
Defendant and Appellant.

Per Curiam Decision
No. 20140355-CA
Filed December 11, 2014

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 131908274

Joanna E. Landau and Michael A. Peterson,
Attorneys for Appellant

Sean D. Reyes and Tera J. Peterson,
Attorneys for Appellee

Before JUDGES GREGORY K. ORME, JAMES Z. DAVIS, and
J. FREDERIC VOROS JR.

PER CURIAM:

¶1 Nathaniel Shane Gainer1 appeals his sentence following his
conviction of aggravated robbery, a first degree felony. Gainer
claims that his prison sentence was both inherently unfair and
unreasonable in light of the particular facts and circumstances of
this case and that he was denied due process because his sentence
was based on unreliable information. We affirm.

1. The correct spelling of Appellant’s last name is Ganier. To avoid
confusion, we use the spelling of Appellant’s name as it appears in
the district court record.
State v. Gainer

¶2 As Gainer was leaving a Salt Lake City Walmart store with
merchandise for which he had not paid, he was stopped by two
loss prevention employees. As Gainer attempted to get away, he bit
one of the employees on the arm and stabbed him in the hip with
a folding knife. Gainer was intercepted by a police officer as he fled
on a bicycle. Gainer pleaded guilty to aggravated robbery,
admitting in his written statement in advance of his guilty plea that
while attempting to exit the Walmart store with stolen
merchandise, he “fought with two loss prevention store
employees” and “used a knife to stab one of these employees.”

¶3 In exchange for the guilty plea, the State agreed to
recommend that Gainer be sentenced to a jail term and probation.
The defense argued for a jail sentence of 365 days, completion of a
drug treatment program, and a period of probation during which
Gainer would engage in mental health treatment. However, a
presentence investigation report (PSI) prepared by Adult Probation
and Parole (AP&P) recommended the statutory prison sentence. In
its reasoning for the recommendation, the PSI cited the injury to the
victim, the score of imprisonment in the criminal history
assessment, and the fact that the use of force was “out of line”
under the circumstances. At sentencing, Gainer argued that a
sentence of jail and probation was appropriate, given his “lack of
a terribly significant prior criminal history,” substantial educational
background, employment opportunities, support of seven children,
stable residence, religious participation, and appropriate attitude
about resolving the case, including expressing remorse. Despite
admitting the facts of the offense at the time of his guilty plea,
Gainer later stated to AP&P that he reacted as he did because he
did not know who the loss prevention employees were and he
“poked” one loss prevention employee in the hip to avoid seriously
injuring him.

¶4 At sentencing, the loss prevention employee whom Gainer
stabbed stated that he identified himself and asked Gainer to stop.
When Gainer reacted aggressively, the employee decided to let him
leave the store. Gainer then bit him on the arm and attempted to

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State v. Gainer

stab him in the stomach, but the employee was able to move in
time to sustain only an injury to his hip rather than a more serious
injury. The district court specifically asked Gainer at sentencing if
he agreed that he knew the persons who confronted him were loss
prevention employees. Although Gainer answered affirmatively,
he followed with a confusing explanation that he was trying to
remain consistent in his statements. In his brief on appeal, Gainer
again asserts that he did not know the persons attempting to stop
him were store employees.2

¶5 Gainer first argues that the sentencing court did not
adequately consider his “character, personality, attitude and
rehabilitative needs” and imposed “an excessively harsh and unfair
prison sentence.” An appellate court “will overturn a sentencing
decision only if it is clear that the actions of the [trial] judge were so
inherently unfair as to constitute an abuse of discretion.” State v.
Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17 (citation and internal
quotation marks omitted). A district court has broad discretion in
deciding whether or not to order probation, because the “granting
or withholding of probation involves considering intangibles of
character, personality and attitude.” State v. Rhodes, 818 P.2d 1048,
1049 (Utah Ct. App. 1991) (citation and internal quotation marks
omitted). Gainer’s sentence is within the statutory range for the
offense. The PSI evaluated Gainer’s criminal history, employment
history, educational history, family situation, alcohol and drug use,
emotional and personal problems, and attitude toward the offense.
The sentencing court necessarily considered those factors, as well
as the statements of defense counsel, Gainer, and the victim. The
court noted that Gainer had not taken his medication for bipolar
disorder and was not mentally clear at the time of the offense. Even
if the sentencing court does not specifically refer to all factors in its
ruling, reliance on a PSI demonstrates that it gave appropriate

2. The relevance of this assertion is unclear. Gainer would be no
more privileged to stab a private citizen seeking to prevent his theft
than he would be an employee.

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State v. Gainer

consideration to the relevant sentencing factors. Under the
circumstances, the district court did not abuse its discretion in
sentencing Gainer to a prison term.

¶6 Gainer also claims that the sentencing court violated his due
process rights because it considered the victim’s statements at
sentencing. He asserts that the victim’s statements were unreliable
and unsubstantiated. The victim disputed Gainer’s statements to
AP & P that he did not know the victim was a loss prevention
employee and that Gainer stabbed the victim in the hip to avoid
inflicting a more serious injury. The victim stated that he identified
himself to Gainer, that Gainer reacted violently, and that the victim
avoided being stabbed in the stomach because he turned his body
in order to receive the contact in his hip. Gainer did not object to
the victim’s statements at sentencing or seek to rebut any of the
victim’s statements when given the opportunity to respond.
Accordingly, Gainer did not preserve his due process claim. See
State v. Patience, 944 P.2d 381, 389 (Utah Ct. App. 1997). In any
event, the victim had a right to appear and be heard at sentencing.
See Utah Code Ann. § 77-38-4(1)(b) (LexisNexis 2012).

¶7 Gainer also does not demonstrate that the sentencing court
committed plain error in considering the victim’s statements at
sentencing. “The due process clause in both the United States and
Utah Constitutions requires that a sentencing judge act on
reasonably reliable and relevant information and in exercising
discretion in fixing a sentence.” Patience, 944 P.2d at 389 (citation
and internal quotation marks omitted). The victim’s statements
were clearly relevant and they were reasonably reliable because
they were “made by a witness with personal knowledge of the facts
related.” Id. Gainer cannot argue that he was not given adequate
notice of the victim’s statements, which were also included in the
PSI. Gainer had an opportunity to challenge the accuracy or
reliability of the statements at sentencing. See id. Gainer’s due
process rights were not violated and the sentencing court acted
within its discretion in considering the victim’s statements for
purposes of sentencing. See id. at 390. Although Gainer “suggests

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State v. Gainer

[his] due process rights were violated because [the victim] was not
placed under oath and was not cross-examined, [Gainer] offers no
legal authority to support [his] argument that this is a due process
violation.” See id. at 389 n.12 (noting that the United States Supreme
Court and courts of other states have found “no due process
violation where no cross-examination is allowed or where
witnesses are not placed under oath, so long as the defendant has
the opportunity to refute the evidence presented or challenge its
reliability”).

¶8 Accordingly, we affirm the sentence imposed by the district
court.

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