State v. Lomu

1. Because the statutory provisions in effect at the relevant time do
not differ in any way material to our analysis from those now in
effect, we cite the current version of the Utah Code as a
convenience to the reader.
2014 UT App 42
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
PAILATE K. LOMU,
Defendant and Appellant.
Opinion
No. 20110713-CA
Filed February 27, 2014
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 101906111
Joanna E. Landau, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored the lead opinion, in which
JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
JUDGE VOROS authored a concurring opinion, in which JUDGE
ROTH concurred.
ORME, Judge:
¶1 Defendant Pailate Lomu appeals from a conviction for
robbery. See Utah Code Ann. § 76-6-301 (LexisNexis 2012). We1
affirm.

State v. Lomu
2. The day before trial in this case, Defendant was convicted of a
similar robbery that took place in April 2010. Defendant appealed
that conviction as well, and we have resolved that appeal in a
separate opinion also issued today. See State v. Lomu (Lomu I), 2014
UT App 41.
20110713-CA 2 2014 UT App 42
BACKGROUND
¶2 In June 2010, Defendant entered a Maverik convenience
store with two other men around 2:00 a.m. Defendant and one of2
the men went to the beer cooler and each grabbed two cases of
Budweiser beer. The third man stood at the door, holding it open.
Surveillance video shows Defendant rushing out the door while the
man holding the door begins to point at and speak to the store
clerk. After Defendant has exited the store, the man by the door can
be heard on the video speaking to the store clerk. Not everything
he says is audible, but the phrase “shoot you” comes through loud
and clear.
¶3 Defendant was charged with aggravated robbery but
convicted of the lesser crime of robbery, see id., which conviction
was subject to an in-concert enhancement, see id. § 76-3-203.1.
ISSUES AND STANDARDS OF REVIEW
¶4 Defendant first argues that there is insufficient evidence to
support his conviction. “[W]e 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. Shumway, 2002 UT 124,
¶ 15, 63 P.3d 94. “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.” Id.

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20110713-CA 3 2014 UT App 42
¶5 Second, Defendant argues that the trial court improperly
instructed the jury. “Claims of erroneous jury instructions present
questions of law that we review for correctness.” State v. Jeffs, 2010
UT 49, ¶ 16, 243 P.3d 1250.
¶6 Third, Defendant argues that statements made by the
prosecutor during closing argument and rebuttal constituted
prosecutorial misconduct and warrant reversal. Because this claim
is unpreserved, Defendant asks that we review it for plain error
and ineffective assistance of counsel. See State v. Calliham, 2002 UT
86, ¶ 62, 55 P.3d 573. Plain error requires obvious, prejudicial error.
See State v. Dunn, 850 P.2d 1201, 1209 (Utah 1993). And claims of
ineffective assistance raised for the first time on appeal present
questions of law. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶7 Defendant’s final argument is that reversal is warranted
under the doctrine of cumulative error. We will reverse a
conviction under this doctrine when “the cumulative effect of the
several errors undermines our confidence . . . that a fair trial was
had.” Dunn, 850 P.2d at 1229 (citation and internal quotation marks
omitted).
ANALYSIS
I. Sufficiency of the Evidence
¶8 Defendant argues that there was insufficient evidence to
prove he had the necessary mens rea to be convicted as a party to
robbery. A person commits robbery if “the person unlawfully and
intentionally takes . . . personal property in the possession of
another . . . against his will, by means of force or fear, and with a
purpose or intent to deprive the person . . . of the personal
property,” or if the person “intentionally or knowingly uses force
or fear of immediate force against another in the course of
committing a theft or wrongful appropriation.” Utah Code Ann.
§ 76-6-301(1) (LexisNexis 2012). In determining whether the

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20110713-CA 4 2014 UT App 42
evidence presented to the jury was sufficient to support its verdict,
we will “not sit as a second trier of fact.” State v. Boyd, 2001 UT 30,
¶ 16, 25 P.3d 985. “So long as there is some evidence, including
reasonable inferences, from which findings of all the requisite
elements of the crime can reasonably be made, our inquiry stops.”
State v. Booker, 709 P.2d 342, 345 (Utah 1985).
¶9 There is no dispute that Defendant committed theft when he
took the beer from the convenience store without paying for it. The
question is whether there was sufficient evidence for the jury to
reasonably conclude that Defendant took the beer “by means of
force or fear” or that he “use[d] . . . fear of immediate force” during
the theft, or whether, as he maintains, he was guilty only of
shoplifting.
¶10 Defendant argues that he was unaware of the threat made
by his associate and that nothing other than his mere presence
connects him to the threat. The store clerk, however, testified that
he was threatened by the associate as he stood at the door—a threat
that began when the associate raised his arm, pointing to the store
clerk. Surveillance video played for the jury shows Defendant was
still in the store and well within earshot of the associate at the door
when the associate raised his arm and, according to the clerk,
began to threaten the clerk. Based on this evidence, the jury could
have reasonably inferred that Defendant knew that the threat was
being made and that he therefore intentionally took advantage of
the threat and the fear it created when he continued to rush out
the door with stolen goods. See State v. Garcia-Vargas, 2012 UT
App 270, ¶ 17, 287 P.3d 474 (holding that intent to take advantage
of another’s conduct is assumed when a party continues to
“actively partipate[]” instead of “fleeing or remaining without
participating”). Thus, “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
Defendant committed robbery. See State v. Dibello, 780 P.2d 1221,
1225 (Utah 1989).

State v. Lomu
20110713-CA 5 2014 UT App 42
II. Jury Instructions
¶11 Defendant next argues that the trial court failed to properly
instruct the jury. “The court has a duty to instruct the jury on the
relevant law, and the court may, even over the defendant’s
objection, ‘give any instruction that is in proper form, states the law
correctly, and does not prejudice the defendant.’” State v. Low, 2008
UT 58, ¶ 27, 192 P.3d 867 (quoting State v. Hansen, 734 P.2d 421, 428
(Utah 1986)). We will reverse when “a substantial likelihood exists
that the instructions . . . , when considered together, confused and
misled the jury in its deliberation on the principal issues of the case
to the detriment of the defendant.” State v. Potter, 627 P.2d 75, 80
(Utah 1981).
¶12 Defendant first argues that Instruction 43A improperly
instructed the jury as to in-concert liability. The jury instruction
stated that in addition to determining whether Defendant
committed aggravated robbery, or any lesser included crime such
as robbery, the jury should also determine if the crime was
committed in concert with two or more other persons.
¶13 The instruction was based on Utah Code section 76-3-203.1,
which states, in part, that in-concert liability attaches when a
defendant is “aided or encouraged by at least two other persons in
committing the offense and was aware of this aid or
encouragement,” and each of those persons was “physically
present” or “participated as a party” to an offense such as theft,
robbery, or aggravated robbery. See Utah Code Ann. § 76-3-
203.1(1)(b), (5) (LexisNexis 2012). The statute also states that “other
persons participating as parties need not have the intent to engage
in the same offense or degree of offense as the defendant.” Id. § 76-
3-203.1(1)(c)(i).
¶14 Defendant argues that the instruction given to the jury is an
improper statement of the law, particularly the portion reading,
“[D]efendant can be found to have acted in concert with two or
more persons even if the other persons did not have the intent to

State v. Lomu
20110713-CA 6 2014 UT App 42
engage in the same offense or degree of offense as the defendant.”
Defendant argues that “[u]nder instruction 43a, if read literally, a
person who was merely physically present at a crime committed by
two others, could be guilty of in-concert activity through that
presence, because there would be no need to determine intent for
any particular crime.”
¶15 We disagree and conclude that Instruction 43A was a correct
statement of law and that there was accordingly no prejudice to
Defendant. The instruction clearly restated the applicable law,
instructing the jury to determine whether Defendant committed a
crime in concert with two or more persons. Another section of the
instruction stated that other persons are only considered to have
been involved in the commission of the crime if they “aided or
encouraged” Defendant. When considering the instruction as a
whole, there was no risk that the jury would believe that mere
physical presence was sufficient for in-concert liability.
¶16 We note that any error in this instruction would not have
impacted the jury’s determination that Defendant was guilty of
robbery. Defendant argues that the instruction “told jurors they
could convict [Defendant] of in-concert activity if he was merely
physically present when others committed a crime.” But
Defendant’s conviction of robbery had necessarily already been
determined by the jury. The wording of the instruction made it
clear that the jury was to deliberate over whether two or more
other persons were involved in the crime—robbery—that they had
already determined Defendant had committed, not whether
Defendant was liable or guilty for a crime because he himself was
present as an “other person” during the commission of someone
else’s crime. See Utah Code Ann. § 76-3-203.1. Thus, even if the
instruction had erroneously implied that a person can be guilty of
acting in concert because of the mere presence of two other people,
the only harm an erroneous instruction could have caused was an
improper enhancement of Defendant’s sentence. But an improper
enhancement was virtually impossible in light of the evidence in
this case. The evidence showed Defendant walking into the store

State v. Lomu
20110713-CA 7 2014 UT App 42
with two men, one of whom stood at the door and threatened the
clerk and the other of whom exited the store with Defendant while
both carried a case of Budweiser in each hand. No evidence exists
upon which the jury could have found that one of the men was
only an innocent bystander or at the store on a wholly independent
mission during Defendant’s crime instead of actively aiding or
encouraging Defendant. Therefore, any error in the instruction was
harmless.
¶17 We are similarly unpersuaded as to Defendant’s other
claims regarding Instructions 32A, 32B, and 33. Defendant argues
that these three instructions inaccurately instructed the jury on how
to determine mens rea. During deliberations, the jury sent a note to
the trial court. The note stated:
The prosecution states that if one person in a group
of three commits aggravated robbery, all three
are guilty of aggravated robbery. However, the
defense states that when assessing the mental
state, we should consider the defendant’s intentions
individually, not collectively with his associates.
Help us to reconcile these two notions.
The trial court responded, “I believe that you may reconcile these
notions by reviewing Instructions No. 9, 32A, 32B, and 33 of your
jury instructions.”
¶18 Quoting State v. Briggs, 2008 UT 75, 197 P.3d 628, Defendant
argues that Instruction 33 was an inadequate explanation of
accomplice liability because it “did not clarify to the jury that they
had to determine whether [Defendant] ‘acted with both the intent
that the underlying offense be committed and the intent to aid the
principal in robbery.’” Id. ¶ 13. Defendant also contends that
Instructions 32A and 32B failed to “accurately state the law, clarify
the terms necessary to understand mens rea, or explain how to
determine accomplice mens rea versus mens rea for in-concert
activity.” Defendant argues that the jury was confused by the

State v. Lomu
20110713-CA 8 2014 UT App 42
instructions, as evidenced by their question during deliberations.
Defendant contends that the verdict is the clearest evidence of the
error in the instructions because “[t]he jury verdict suggests either
the jury did not believe the evidence of a threat or did not believe
[Defendant] intended to use a threat to take beer.” Defendant goes
on to argue that “[w]here the only threat was one to use a
dangerous weapon, there was no way to disbelieve the threat AND
convict [Defendant] of robbery for the use of force in taking the
beer, yet the jury did just that.”
¶19 We conclude that the instructions properly informed the
jury as to the relevant law. We first note that Instruction 33 quoted
the applicable statutory provision verbatim. See Utah Code Ann.
§ 76-2-202 (LexisNexis 2012) (“Every person, acting with the mental
state required for the commission of an offense who directly
commits the offense, who solicits, requests, commands, encourages,
or intentionally aids another person to engage in conduct which
constitutes an offense shall be criminally liable as a party for such
conduct.”). We determined this exact instruction to be adequate in
State v. Augustine, 2013 UT App 61, 298 P.3d 693, because it was
accompanied by another instruction that clearly laid out the intent
necessary for the underlying crime. Id. ¶ 10. Here, Instruction 33
was similarly accompanied by an instruction outlining the elements
of robbery, including the requisite intent, i.e., intent to deprive
someone of personal property. We therefore reject the argument
that Instruction 33 was insufficient or improper.
¶20 As to the other two instructions, we conclude—contrary to
Defendant’s reasoning—that the jury’s verdict is actually proof of
the accuracy and clarity of the instructions. Granted, the jurors
were initially confused by the conflicting statements of the
prosecutor and defense counsel, and they asked for clarification.
But they apparently found the instructions the trial court pointed
them to adequate because they then quickly came to a verdict
convicting Defendant of a lesser crime than they would have had

State v. Lomu
3. As we noted in Lomu I, identical mental states among
perpetrators are not required for conviction under a theory of
accomplice liability. See 2014 UT App 41, ¶ 8 n.3. See also State v.
Binkerd, 2013 UT App 216, ¶¶ 24–29, 310 P.3d 755.
20110713-CA 9 2014 UT App 42
they conflated Defendant’s mental state with that of the man at the
door who made the threat to employ a dangerous weapon.
According to the clerk’s testimony, Defendant was still inside the
store when the man at the door began to threaten the clerk. The
jury clearly thought this was sufficient evidence to convict
Defendant of robbery. See supra ¶ 10. But despite the fact that,
according to the clerk, the threat eventually morphed into one
involving the threatened use of a dangerous weapon, the jury still
did not convict Defendant of aggravated robbery. The jurors
clearly took into account only the mental state that they believed
Defendant possessed and convicted him accordingly. We conclude3
that the instructions regarding mens rea were correct statements of
the law. See State v. Low, 2008 UT 58, ¶ 27, 192 P.3d 867.
III. Prosecutorial Misconduct
¶21 Defendant argues that the prosecutor misstated the law
during closing argument. Because this claim was not preserved,
Defendant relies on the doctrines of plain error and ineffective
assistance of counsel. See State v. Calliham, 2002 UT 86, ¶ 62, 55 P.3d
573. Defendant must therefore show “(1) that the prosecutor’s
comments were so obviously improper that the trial court had an
opportunity to address the error, or (2) that in failing to object
to the prosecutor’s remarks, his counsel’s performance ‘fell below
an objective standard of reasonable professional judgment.’” Id.
(quoting State v. Chacon, 962 P.2d 48, 50 (Utah 1998)) (additional
citations omitted). “The line which separates acceptable from
improper advocacy is often difficult to draw; there is frequently a
gray zone.” State v. Hopkins, 782 P.2d 475, 480 (Utah 1989).
¶22 For Defendant to prevail under either theory, the error must
have been prejudicial. See Calliham, 2002 UT 86, ¶ 62. And in this

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20110713-CA 10 2014 UT App 42
context, we will assume that prejudice resulted to Defendant unless
we can conclude that the error was harmless beyond a reasonable
doubt. See State v. Davis, 2013 UT App 228, ¶¶ 9–12, 311 P.3d 538.
A determination of whether the jury was likely influenced by the
remarks “involves a consideration of the circumstances of the case
as a whole. In undertaking such a consideration, it is appropriate
to look at the evidence of defendant’s guilt.” State v. Troy, 688 P.2d
483, 486 (Utah 1984). In cases with “less compelling proof” we will
“more closely scrutinize” the prosecutor’s conduct. Id. But in cases
where proof of guilt is strong, prejudice is less likely to have
resulted from prosecutorial misconduct. Id. We will also take into
account whether defense counsel had the opportunity to respond
to the alleged error and whether any curative instructions were
given by the court. See State v. Kozlov, 2012 UT App 114, ¶ 42, 276
P.3d 1207.
¶23 Defendant argues that the prosecutor conflated in-concert
and accomplice liability when he stated,
These guys, as you’ve seen and as you’ve heard,
were acting together, okay, in concert with each
other. So if that’s the $10,000 question . . . I’m going
to direct you to the what I call the $10,000 jury
instruction, okay? So instruction number 33 is that
instruction from the State’s perspective, okay? This
instruction is what I’m going to refer to you as party
liability, okay? That’s the term we’re talking about in
this instruction.
The prosecutor then read to the jury the instruction regarding
accomplice liability. Defendant additionally argues that the
prosecutor misstated the law by conflating in-concert and
accomplice liability when he said the following during rebuttal:
I want to talk to you one more time about party
liability, okay, and this notion that these are
just—these three individual people are acting

State v. Lomu
20110713-CA 11 2014 UT App 42
independently of each other and the defendant is just
a thief, and this threatening big guy over there is
somebody who he’s not acting in concert with, okay?
This is perhaps the best evidence of the fact that they
are parties to each other, okay? And they are acting
in concert with each other, okay?
Defendant argues that “[t]he jury was confused and led to believe,
contrary to Utah law, [that] they could convict [Defendant] for
robbery if he had only the intent to act in concert with the other
men in the [s]tore.”
¶24 We first conclude that any error was not so obviously
improper that the trial court should have corrected the error sua
sponte or that defense counsel should have objected to the
statements. While the prosecutor did mention in-concert and
accomplice liability, the facts before the jury made possible both a
finding of accomplice liability and of eligibility for an enhancement
based on in-concert activity. And while mentioning them together
may have been confusing, the prosecutor never told the jury that
a finding of in-concert liability should automatically lead to a
finding of the mens rea for accomplice liability.
¶25 More importantly, however, we determine that any alleged
plain error on the part of the trial court or ineffectiveness of counsel
would have been harmless beyond a reasonable doubt when the
statements are viewed in context. See Troy, 688 P.2d at 486. First,
proof of Defendant’s guilt was strong. There was video evidence of
Defendant and an associate taking beer out of the store without
paying for it and eyewitness testimony that Defendant and the
associate removed the beer while the store clerk was being
threatened by a third man.
¶26 Second, defense counsel was able to respond to the first of
the prosecutor’s statements during closing argument. Defense
counsel emphasized the jury’s duty, pursuant to the instruction it
was given, to determine Defendant’s individual mental state in

State v. Lomu
20110713-CA 12 2014 UT App 42
evaluating of which crime Defendant was guilty. Defense counsel
also explained that in-concert liability only involved the number of
persons participating in the crime, that it was not related to intent,
and that in-concert liability should only be determined after the
jury had determined Defendant’s mens rea and the corresponding
crime of which he was guilty.
¶27 Third, any remaining confusion was certainly cleared up
when the jurors sent a question inquiring whether they should
assess Defendant’s mental state individually or collectively. The
trial court, with defense counsel’s blessing, pointed the jury to its
instructions. As discussed above, supra ¶ 20, the quick verdict at
which the jury then arrived is evidence that the jury followed the
law and was not confused by the prosecutor’s remarks. By
convicting Defendant of robbery instead of aggravated robbery, the
jurors necessarily differentiated between what they found to be
Defendant’s own individual mens rea and the mens rea
demonstrated by the man who threatened the store clerk. In sum,
because proof of Defendant’s guilt is strong; because defense
counsel had the opportunity to respond, at least in part, to the
prosecutor’s statements; and because the trial court offered
appropriate and sound guidance in directing them to the
instructions that mattered, we conclude, beyond a reasonable
doubt, that Defendant was not harmed by the prosecutor’s
statements during closing argument.
IV. Cumulative Error
¶28 Defendant argues that the cumulative effect of the errors
that occurred at trial warrants reversal. Because we have
determined that Defendant was not prejudiced by the claimed
prosecutorial misconduct and has demonstrated no other errors,
our confidence in the verdict has in no way been undermined, and
we decline to reverse on a theory of cumulative error. See State v.
Dunn, 850 P.2d 1201, 1229 (Utah 1993).

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20110713-CA 13 2014 UT App 42
CONCLUSION
¶29 Sufficient evidence existed from which a jury could find
Defendant guilty of robbery. The jury instructions properly stated
the relevant law and did not prejudice Defendant. And Defendant
cannot show that he was harmed by the prosecutor’s statements
during closing argument.
¶30 Affirmed.
VOROS, Judge (concurring):
¶31 I concur in the majority opinion. I write separately to
suggest that our accomplice liability statute be amended to clearly
reflect relevant case law and that, in the interim, trial judges would
do well to instruct juries on that case law if requested.
¶32 The accomplice liability statute expands criminal liability to
embrace a person who assists another person to commit an offense:
Every person, acting with the mental state
required for the commission of an offense who
directly commits the offense, who solicits, requests,
commands, encourages, or intentionally aids another
person to engage in conduct which constitutes an
offense shall be criminally liable as a party for such
conduct.
Utah Code Ann. § 76-2-202 (LexisNexis 2012). Utah courts read this
statute to mean that “an accomplice need not act with the same
intent, or mental state, as the principal,” State v. Jeffs, 2010 UT 49,
¶ 49, 243 P.3d 1250, “as long as the accomplice intended that an
offense be committed,” State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d
628 (citing State v. Alvarez, 872 P.2d 450, 461 (Utah 1994)). Thus,
“[a]n accomplice will be held criminally responsible to the degree
of his own mental state, not that of the principal.” Briggs, 2008 UT

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20110713-CA 14 2014 UT App 42
75, ¶ 14; accord State v. Crick, 675 P.2d 527, 534 (Utah 1983). But see
State v. Telford, 2002 UT 51, ¶ 4, 48 P.3d 228 (per curiam) (“The
accomplice liability provision requires the fact finder to determine
that the accomplice had the same mental state as the person who
directly committed the crime.”), called into question by State v.
Binkerd, 2013 UT App 216, ¶ 28 n.5, 310 P.3d 755.
¶33 This court has held that the foregoing principles are
sufficiently communicated to a jury by a combination of an
instruction reciting section 76-2-202 verbatim and an instruction
stating that to convict the defendant of attempted murder based on
the accomplice liability statute the jury must find that he
“intentionally attempted to cause the death of another person.”
State v. Augustine, 2013 UT App 61, ¶ 10, 298 P.3d 693 (stating also
that the jury had before it “compelling evidence of [the
defendant’s] liability as a principal”). But I question whether an
ordinary juror is likely to glean from the words of the statute alone
the rule that criminal actors with different mental states are guilty
of different crimes.
¶34 Accordingly, I encourage the legislature to consider
amending the accomplice liability statute to clearly reflect the gloss
our case law has properly put on it: that each actor’s mental state
determines that actor’s liability. In the meantime, I believe justice
would be served if trial courts explicitly instructed juries to this
effect upon request.