State v. Lopez

2020 UT App 101
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ISMAEL A RENAS LOPEZ,
Appellant.
Opinion
No. 20190236-CA
Filed June 25, 2020
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 161500523
Jose A. Loayza, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray,
Attorneys for Appellee
J UDGE G REGORY K. ORME authored this Opinion, in which
J UDGES D AVID N. MORTENSEN and R YAN M. HARRIS concurred.
ORME, Judge:
¶1 	Ismael 	Arenas 	Lopez 	challenges 	his 	convictions 	for
aggravated 	burglary and attempted aggravated 	murder. He
argues that the district court erred in ruling that Utah Code
section 76-5-202 prohibited the merging of his convictions. Lopez
alternatively argues that the statute is unconstitutional. We
affirm.

State v. Lopez
20190236-CA 	2 	2020 UT App 101
BACKGROUND1
¶2 	In the wee hours of the morning on November 6, 2016,
Lopez, using a hammer, broke into his ex-girlfriend’s home
through a 	kitchen 	window. 	Once inside, he exchanged the
hammer for a serrated knife he found in the kitchen, and he
stripped down to his underpants and socks so that he could
move about the house more quietly. Lopez then proceeded to the
upstairs bedroom of his ex-girlfriend’s mother (Victim). He
approached Victim, who was sleeping, and began choking her
and “repeatedly” stabbed her “in the neck, back, face, and arm”
with 	the 	knife. 	Victim 	started 	screaming 	and 	fought 	back,
scratching Lopez’s bare chest.
¶3 	Victim’s husband, who was sleeping on the downstairs
couch, tackled Lopez as he fled the bedroom and attempted to
exit the home. Victim’s husband held Lopez until police arrived.
1. We were not favored with a trial transcript and accordingly
recite the facts from the initial probable cause statement and
other 	facts 	gleaned 	from 	the 	record, 	to 	which 	Lopez 	has
stipulated on appeal. Ordinarily, an appellant’s failure to include
a trial transcript will result in a summary affirmance, given the
difficulty for the appellant to demonstrate preservation, see Utah
R. App. P. 24(a)(5)(B); the appellate court’s inability to assess
prejudice if it concludes an error was made, see State v. Courtney,
2017 UT App 172, ¶ 22, 424 P.3d 198; and the appellate court’s
inclination 	to 	“presume 	the 	regularity 	of 	the 	proceedings
below,” see State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278, in the
absence 	of 	a 	transcript. 	In 	this 	case, 	however, 	Lopez 	has
stipulated to the relevant facts, and we are therefore able to
address the legal issues he raises. We do remind appellants that
failure to include a trial transcript, absent rare circumstances
such as those presented in the current appeal, will almost always
culminate in affirmance.

State v. Lopez
20190236-CA 	3 	2020 UT App 101
The injuries to Victim “were serious and life threatening,” but,
fortunately, she survived the ordeal.
¶4 	The State charged Lopez with aggravated burglary and
attempted aggravated murder. Following a two-day trial, a jury
convicted 	Lopez 	on 	both 	counts. 	Before 	sentencing, 	Lopez
moved to have his aggravated burglary conviction merged with
his attempted aggravated murder conviction. Relying on State v.
Shaffer, 	725 	P.2d 	1301 	(Utah 	1986), 	Lopez 	argued 	that
“aggravated burglary is a predicate felony for attempted . . .
aggravated murder and a lesser included offense and merges
with the greater offense of attempted . . . aggravated murder.”
Lopez further argued that Utah Code section 76-5-202, which
provides 	that 	“any 	aggravating 	circumstance,” 	including
“aggravated burglary,” “that constitutes a separate offense does
not merge with the crime of aggravated murder,” see Utah Code
Ann. 	§ 	76-5-202(1)(d), 	(5)(a) 	(LexisNexis 	Supp. 	2019) 	(the
anti-merger provision),2 is “unconstitutional on its face or in its
application to [Lopez].” Lopez asserted that the statute was
“unconstitutionally vague, overbroad, and violates [his] due
process rights . . . and is violative of the Equal Protection
Clause.”
¶5 	The district court denied Lopez’s motion, concluding that
the plain language of the anti-merger provision “leave[s] no
doubt that the legislature intended that [aggravated burglary]
does not merge with [attempted aggravated murder].” It also
rejected his challenge to the constitutionality of the anti-merger
provision.
¶6 	Lopez appeals.
2. Because the relevant provisions of the Utah Code in effect at
the time Lopez committed his offenses do not materially differ
from those currently in effect, we cite the current version of the
code for convenience.

State v. Lopez
20190236-CA 	4 	2020 UT App 101
ISSUES AND STANDARDS OF REVIEW
¶7 	Lopez argues that the district court erred by not merging
his convictions. “Merger issues present questions of law, which
we review for correctness.” State v. Diaz, 2002 UT App 288, ¶ 10,
55 P.3d 1131.
¶8 	Alternatively, 	Lopez 	argues 	that 	Utah 	Code 	section
76-5-202 	“is 	unconstitutionally 	vague 	and 	violates 	equal
protection 	guarantees.”3 	Lopez’s 	constitutional 	challenge
presents 	a 	question 	of 	law, 	which 	we 	review 	de 	novo,
“recognizing that all statutes are presumed to be constitutional
and the party challenging a statute bears the burden of proving
its invalidity.” State v. Roberts, 2015 UT 24, ¶ 16, 345 P.3d 1226
(quotation simplified).
ANALYSIS
I. Merger
¶9 	“The question of merger arises when two statutes or two
portions of a single statute proscribe certain conduct, and the
question 	is 	whether 	the 	defendant 	can 	be 	punished 	twice
3. It is not entirely clear whether Lopez is arguing that in
addition to the statute being unconstitutional as applied to him,
it is also unconstitutional on its face. But because we hold that
the statute is not unconstitutional as applied to Lopez, we need
not 	separately 	consider 	any 	potential 	claim 	of 	it 	being
unconstitutional on its face. See State v. Herrera, 1999 UT 64, ¶ 50,
993 P.2d 854 (holding that because “[f]acial challenges succeed
. . . only if the statutes at issue are incapable of any valid
application,” the defendant’s “facial challenge fails a fortiori”
where 	the 	court 	holds 	that 	the 	challenged 	statute 	was
constitutional as applied to him).

State v. Lopez
20190236-CA 	5 	2020 UT App 101
because his conduct violates both proscriptions.” State v. Lopez,
2004 UT App 410, ¶ 4, 103 P.3d 153 (quotation simplified). Utah
Code section 76-1-402 provides that “when the same act of a
defendant 	under 	a 	single 	criminal 	episode 	shall 	establish
offenses 	which 	may 	be 	punished 	in 	different 	ways 	under
different provisions of this code, the act shall be punishable
under only one such provision.” Utah Code Ann. § 76-1-402(1)
(LexisNexis 2017). And when one offense is a lesser-included
offense 	of 	another 	charged 	offense, 	a 	defendant 	cannot 	be
charged and convicted of both. See id. § 76-1-402(3). But the
Legislature may “exempt[] a statute from the requirements of the
merger 	doctrine,” 	provided 	that 	“an 	explicit 	indication 	of
legislative intent is present in the specific offense statute.” State
v. Bond, 2015 UT 88, ¶ 70, 361 P.3d 104 (quotation simplified).
¶10 	In 	the 	present 	case, 	the 	aggravated 	murder 	statute
contains the anti-merger provision, which specifies that “any
aggravating 	circumstance,” 	including 	“aggravated 	burglary,”
“that constitutes a separate offense does not merge with the
crime of aggravated murder.” Utah Code Ann. § 76-5-202(1)(d),
(5)(a) (Supp. 2019). “The plain language of [the anti-merger
provision] . . . can leave no doubt that the Legislature intended
that [aggravated burglary] does not merge with the homicide
conviction.” See Bond, 2015 UT 88, ¶ 71. Lopez, however, argues
that the district court “erred by not looking at the reality of what
constituted the ‘offense’ in fact” and “[i]nstead, . . . allow[ing]
itself to be guided by a conceivable conceptual definitional
distinction to find ‘separate’ offenses.”4 Lopez also argues that
4. In making this argument, Lopez relies on State v. Shaffer, 725
P.2d 	1301 	(Utah 	1986). 	In 	that 	case, 	our 	Supreme 	Court
determined that under the Utah Code in effect at the time, the
defendant’s 	aggravated 	burglary 	offense 	“was 	a 	necessary
element to proof of first degree felony murder” and thus was a
“lesser included offense of first degree felony murder,” thereby
necessitating the merging of the two convictions. Id. at 1313. But
(continued…)

State v. Lopez
20190236-CA 	6 	2020 UT App 101
because the anti-merger provision does not explicitly reference
attempted aggravated murder, it does not apply to his case. We
disagree on both counts
¶11 	First, 	under 	the 	anti-merger 	provision, 	aggravated
burglary “constitutes a separate offense [and] does not merge
with the crime of [attempted] aggravated murder.” See Utah
Code Ann. § 76-5-202(5)(a). Cf. Bond, 2015 UT 88, ¶ 70 (“[W]here
the Legislature has designated a statute as an enhancing statute,
the merger doctrine has no effect.”). Here, Lopez committed
aggravated 	burglary 	by 	unlawfully 	entering 	Victim’s 	home
“with intent to commit . . . a felony [or] an assault on [Victim],”
see 	Utah 	Code 	Ann. 	§ 	76-6-202(1)(a), 	(c) 	(2017), 	and 	while
committing 	the 	burglary, 	“caus[ing] 	bodily 	injury 	to,” 	or
“us[ing] 	. 	. 	. 	a 	dangerous 	weapon 	against” 	Victim, 	see 	id.
§ 76-6-203(1)(a)–(b). 	Lopez 	then 	committed 	attempted
aggravated murder when he took “a substantial step toward,”
see id. § 76-4-101(1)(a), “intentionally . . . caus[ing] the death of
[Victim],” see id. § 76-5-201(1)(a), “incident to an act, scheme,
course 	of 	conduct, 	or 	criminal 	episode 	during 	which 	[he]
(…continued)
prior to 2008 the aggravated murder statute did not contain the
anti-merger 	provision, 	see 	Utah 	Code 	Ann. 	§ 	76-5-202
(LexisNexis 2008), and the court in Shaffer concluded that the
generally applicable lesser-included-offense statute directed it to
merge the convictions, 725 P.2d at 1313. By the time Lopez
committed his crimes in 2016, however, the Legislature had
added the anti-merger provision, explicitly prohibiting courts
from merging aggravated burglary with aggravated murder. See
Utah Code Ann. § 76-5-202(5) (Supp. 2016). Thus, Shaffer is not
controlling on this issue. To the extent that Lopez argues that
Shaffer requires the merger of his convictions under the United
States or Utah constitutions, Lopez is mistaken because the
Court explicitly noted that it did not reach the constitutional
question. See 725 P.2d at 1312.

State v. Lopez
20190236-CA 	7 	2020 UT App 101
committed or attempted to commit . . . aggravated burglary,” see
id. § 76-5-202(1)(d) (Supp. 2019). While aggravated burglary is an
aggravating circumstance, which elevates Lopez’s attempted
murder offense to attempted aggravated murder, it is clearly a
separate offense from attempted aggravated murder as the latter
requires the intent to cause death. The two offenses therefore do
not merge given the mandate of the anti-merger provision.
¶12 	Second, 	the 	anti-merger 	provision 	applies 	equally 	to
attempted 	aggravated 	murder 	and 	completed 	aggravated
murder. We recently dealt with a nearly identical argument in
State v. Martinez, 2019 UT App 166, 452 P.3d 496, cert. granted, 462
P.3d 798 (Utah 2020), concerning a similar provision in the
murder 	statute, 	id. 	¶ 	23. 	Compare 	Utah 	Code 	Ann.
§ 76-5-203(5)(a) 	(2017) 	(“Any 	predicate 	offense 	. 	. 	. 	that
constitutes a separate offense does not merge with the crime of
murder.”), 	with 	id. 	§ 	76-5-202(5)(a) 	(Supp. 	2019) 	(“Any
aggravating circumstance . . . that constitutes a separate offense
does not merge with the crime of aggravated murder.”). There,
Martinez made the same argument that Lopez now advances,
namely that the language barring merger “does not apply to
attempt crimes, because the statute states that the enumerated
predicate offenses are prohibited from merging with ‘murder’
and does not explicitly mention attempted murder.” Martinez,
2019 UT App 166, ¶ 23. We rejected Martinez’s argument, id.,
and so we are bound to reject Lopez’s argument for the same
reasons, see State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (“Under
the doctrine of horizontal stare decisis, the first decision by a
court on a particular question of law governs later decisions by
the same court” and “has equal application when one panel of a
multi-panel appellate court is faced with a prior decision of a
different panel.”) (quotation simplified).
¶13 	In Martinez, we held that attempted murder was simply a
derivative of the crime of murder and the two offenses “are
evaluated using the same statutory elements,” and thus Utah
Code section 76-5-203(5)(a) 	applied with 	equal force to the

State v. Lopez
20190236-CA 	8 	2020 UT App 101
attempt, prohibiting attempted murder from being merged with
a predicate offense. 2019 UT App 166, ¶ 23. This same reasoning
applies here. Because “both [aggravated] murder and attempted
[aggravated] murder are evaluated using the same statutory
elements, the prohibition against [aggravated burglary] merging
with 	[aggravated] 	murder 	also 	prevents 	that 	offense 	from
merging with attempted [aggravated] murder.” See id.
¶14 	Thus, the district court did not err in denying Lopez’s
motion to merge the two convictions. The anti-merger provision,
especially when read in light of Martinez, prohibited such a
merger.
II. Constitutionality
A. 	Equal Protection and Uniform Operation of Laws
¶15 	Lopez argues that the anti-merger provision violated his
constitutional rights to equal protection under the United States
Constitution and the uniform operation of laws provision under
the Utah Constitution. Specifically, Lopez argues that he “is
being singled out and treated differently from other persons
convicted under the aggravated murder statute.” The federal
Equal Protection Clause and Utah’s Uniform Operation of Laws
Clause 	both 	“require 	that 	similarly 	situated 	individuals 	be
treated alike under the law unless there is a reasonable basis for
treating them differently.” Met v. State, 2016 UT 51, ¶ 48, 388
P.3d 447 (quotation simplified). “Because our analysis under the
uniform operation of laws provision is at least as rigorous as it
would be under the federal equal protection provision, we limit
our review to [Lopez’s] state constitutional claims.” See State v.
Merrill, 2005 UT 34, ¶ 31, 114 P.3d 585. See also Gallivan v. Walker,
2002 UT 89, ¶ 33, 54 P.3d 1069 (“Utah’s uniform operation of
laws provision is at least as exacting and, in some circumstances,
more rigorous than the standard applied under the federal
constitution.”) (quotation simplified). “To determine whether a
statute violates the uniform operation of laws, we apply a

State v. Lopez
20190236-CA 	9 	2020 UT App 101
three-step 	analysis: 	(1) 	whether 	the 	statute 	creates 	any
classifications; 	(2) 	whether 	the 	classifications 	impose 	any
disparate treatment on persons similarly situated; and (3) if there
is 	disparate 	treatment, 	whether 	the 	legislature 	had 	any
reasonable 	objective 	that 	warrants 	the 	disparity.” 	State 	v.
Robinson, 2011 UT 30, ¶ 17, 254 P.3d 183 (quotation simplified).
Because “[t]he first two steps are threshold inquiries we address
the third step only if we find that the statute both creates
classifications and imposes disparate treatment among persons
similarly situated within those classifications.” Id.
¶16 	Here, even assuming for purposes of argument that the
aggravated murder statute creates classifications among those
who commit aggravated murder, Lopez’s claim fails under the
second step of our analysis. Under that step, we must determine
“whether the classifications impose any disparate treatment on
persons similarly situated.” Id. (quotation simplified). Lopez
claims that he is being treated differently from other persons
similarly situated, i.e., those convicted under the aggravated
murder statute, because all the other aggravating circumstances
contained 	in 	Utah 	Code 	section 	76-5-202(1)(d), 	which 	the
anti-merger provision prohibits from merging with aggravated
murder, 	could 	be 	committed 	independently 	of 	aggravated
murder, while his aggravated burglary offense could not.5 We
disagree.
5. Lopez’s uniform operation of laws argument is not entirely
clear. At one point, he also argues that he “is being treated
differently, more harshly, than other actors who enter a dwelling
without consent with intent . . . to commit a felony.” This
statement, however, is unsupported by analysis explaining how
Lopez is similarly situated to others who, for example, commit a
burglary but do not attempt murder during the commission of
the burglary. See generally State v. Outzen, 2017 UT 30, ¶ 19, 408
P.3d 334 (explaining the applicable analysis for determining
(continued…)

State v. Lopez
20190236-CA 	10 	2020 UT App 101
¶17 	Lopez 	could 	have 	committed 	aggravated 	burglary
independently of attempted aggravated murder, just as with any
other aggravating circumstance listed under Utah Code section
76-5-202(1)(d), 	because 	attempted 	murder 	is 	in 	no 	sense 	a
necessary element of aggravated burglary. Aggravated burglary
is completed whenever a person “enters or remains unlawfully
in a building . . . with intent to commit . . . [among other things,]
a 	felony 	[or] 	an 	assault 	on 	any 	person,” 	Utah 	Code 	Ann.
§ 76-6-202(1)(a), 	(c) 	(LexisNexis 	2017), 	and 	while 	doing 	so
“causes bodily injury to any person who is not a participant in
the crime,” “uses or threatens the immediate use of a dangerous
weapon against any person who is not a participant in the
crime,” 	or 	“possesses 	or 	attempts 	to 	use 	any 	explosive 	or
dangerous weapon,” id. § 76-6-203(1)(a)–(c). The statute does not
require an attempt to commit murder during the commission of
a burglary to sustain a charge of aggravated burglary. All that it
requires is the intent to commit a felony or assault on a person—
(…continued)
whether individuals are similarly situated under the uniform
operation of laws provision of the Utah Constitution). To the
extent that this is the basis for Lopez’s uniform operation of laws
argument, we decline to address it further because Lopez fails to
carry his burden of persuasion on appeal. See State v. Roberts,
2015 UT 24, ¶ 18, 345 P.3d 1226 (“Rule 24 of the Utah Rules of
Appellate 	Procedure 	prescribes 	standards 	for 	the 	form,
organization, and content of a brief on appeal [and] requires that
the 	arguments 	contain 	the 	contentions 	and 	reasons 	of 	the
appellant with respect to the issues presented with citations to
the authorities, statutes, and parts of the record relied on. This
standard for adequate briefing is a subjective standard, and
determining compliance is left to the discretion of the appellate
court. . . . [A]ppellants who fail to follow rule 24’s substantive
requirements will likely fail to persuade the court of the validity
of their position.”) (quotation simplified).

State v. Lopez
20190236-CA 	11 	2020 UT App 101
not the actual commission of such felony or assault, although its
commission 	undoubtedly 	goes 	a 	long 	way 	in 	proving 	that
intent—and while entering the building with this intent, using or
simply possessing a dangerous weapon or causing bodily injury.
Thus, 	the 	jury 	could 	have 	convicted 	Lopez 	of 	aggravated
burglary and acquitted him of the attempted aggravated murder
charge if it concluded (1) that after he broke into the home and
attacked Victim with the knife he meant only to hurt Victim and
was not trying to kill her, or (2) he broke into the home and took
possession of the knife, a dangerous weapon. See id.
¶18 	Therefore, under the rationale Lopez advances, he is not
being treated differently from others who commit attempted
aggravated murder on the heels of one of the other aggravating
circumstances contained in Utah Code section 76-5-202(1)(d).
Lopez’s conviction for aggravated burglary could be sustained
independently of the attempted aggravated murder charge, just
as all the other aggravating circumstances could be in different
factual scenarios, and Lopez cannot complain that he is being
treated differently from others situated similarly to him.6 Thus,
6. 	In 	making 	this 	argument, 	Lopez 	seems 	to 	confuse 	his
convictions and the corresponding elements of the two crimes
for which he was convicted. Attempted aggravated murder is
not 	a 	necessary 	element 	of 	aggravated 	burglary. 	Rather,
aggravated burglary in this case was a necessary element to
elevate 	Lopez’s 	attempted 	murder 	charge 	to 	attempted
aggravated murder. Compare Utah Code Ann. § 76-5-202(1)(d)
(LexisNexis Supp. 2019) (stating that murder is elevated to
aggravated murder if during the course of the murder the
defendant 	committed 	an 	aggravated 	burglary), 	with 	id.
§ 76-6-203(1)(a)–(c) (2017) (stating that aggravated burglary is
committed if during the commission of a burglary the person
“causes bodily injury to any person who is not a participant in
the crime,” “uses or threatens the immediate use of a dangerous
weapon against any person who is not a participant in the
(continued…)

State v. Lopez
20190236-CA 	12 	2020 UT App 101
the 	anti-merger 	provision 	did 	not 	unconstitutionally 	violate
Lopez’s right to the uniform operation of laws.
B. 	Vagueness
¶19 	Lopez 	argues 	that 	the 	anti-merger 	provision 	is
unconstitutionally 	vague 	because 	it 	does 	not 	clearly
“communicate to ordinary persons . . . that [they] would be
charged, convicted, and sentenced for [their] commission of
aggravated burglary, in addition to aggravated murder.”7 The
vagueness doctrine encompasses two considerations. State v.
Garcia, 2017 UT 53, ¶ 56, 424 P.3d 171. “First, a criminal statute is
not unconstitutionally vague if it defines the criminal offense
(…continued)
crime,” 	or 	“possesses 	or 	attempts 	to 	use 	any 	explosive 	or
dangerous weapon”).
7. Lopez also argues that “it is not clear if the section applies
equally to attempted murder cases” to elevate those crimes to
attempted 	aggravated 	murder. 	This 	argument 	is 	unavailing
because “[a]ttempt crimes are derivatives of completed crimes,
and the express language of both the completed crime statute
and the attempt statute determines the elements of the attempt
crime.” State v. Casey, 2003 UT 55, ¶ 13, 82 P.3d 1106. Accord State
v. Martinez, 2019 UT App 166, ¶ 23, 452 P.3d 496, cert. granted,
462 P.3d 798 (Utah 2020). And we fail to see how this reasoning
would not also apply to those crimes and put ordinary persons
on notice that if their conduct fit within the statute, then their
attempted aggravated murder crime would not be merged with
the 	aggravating 	crime, 	even 	though 	they 	did 	not 	actually
complete 	the 	murder. 	Furthermore, 	Utah’s 	attempt 	statute
clearly informs individuals that they can be convicted as if they
completed the actual crime, even though for whatever reason
they 	were 	unable 	to 	complete 	it. 	See 	Utah 	Code 	Ann.
§ 76-4-101(1) (LexisNexis 2017).

State v. Lopez
20190236-CA 	13 	2020 UT App 101
with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not
encourage 	arbitrary 	and 	discriminatory 	enforcement.” 	Id.
(quotation 	simplified). 	And 	“second, 	when 	a 	vagueness
challenge does not involve First Amendment freedoms, this
court examines the statute only in light of the facts of the case at
hand.” Id. (quotation simplified).
¶20 	Regarding the first step, we disagree with Lopez that the
statute is so unclear that an ordinary person would be unable to
understand what conduct is prohibited and that if the prohibited
conduct was undertaken, that the crimes would not merge. First,
the 	statute 	clearly 	states 	that 	if 	a 	person 	“intentionally 	or
knowingly causes the death of another,” and that death “was
committed incident to an act, scheme, course of conduct, or
criminal episode during which the actor committed or attempted
to 	commit 	. 	. 	. 	aggravated 	burglary,” 	then 	they 	would 	be
punished 	for 	aggravated 	murder. 	Utah 	Code 	Ann.
§ 76-5-202(1)(d) (LexisNexis Supp. 2019). Next, it states that “any
aggravating circumstance described . . . does not merge with the
crime of aggravated murder” and “a person who is convicted of
aggravated 	murder, 	based 	on 	an 	aggravating 	circumstance
described . . . that constitutes a separate offense may also be
convicted, 	and 	punished 	for, 	the 	separate 	offense.” 	Id.
§ 76-5-202(5)(a)–(b). 	This 	language 	is 	clear 	because 	it
“specifically 	defines 	the 	types 	of 	[prohibited 	activity] 	and
describes 	the 	act 	required 	to 	violate 	the 	statute” 	and 	its
corresponding consequences, and Lopez “cannot persuasively
argue that he would not have known that [entering Victim’s
home and nearly killing her with a knife] would constitute acts
sufficient to violate the [statute].” See State v. Pence, 2018 UT App
198, ¶ 22, 437 P.3d 475.
¶21 	Nor do these sections encourage arbitrary enforcement.
“The United States Supreme Court has stated that to avoid
unconstitutional vagueness, a statute must ‘establish minimal
guidelines 	to 	govern 	law 	enforcement’ 	such 	that 	it 	avoids

State v. Lopez
20190236-CA 	14 	2020 UT App 101
entrusting ‘lawmaking to the moment-to-moment judgment of
the policeman on his beat.’” State v. Green, 2004 UT 76, ¶ 50, 99
P.3d 820 (quoting Kolender v. Lawson, 461 U.S. 352, 358, 360
(1983)). Lopez argues that because the anti-merger provision
“provides that the aggravating circumstance and the aggravated
murder do not merge,” but then “states a person ‘may also’ be
convicted of and punished for the separate offense as well as
aggravated 	murder,” 	that 	these 	discrepancies 	encourage
arbitrary enforcement. Lopez argues that this is because “[i]n
one 	jurisdiction 	[he] 	could 	have 	easily 	been 	charged 	with
aggravated burglary while here he is charged and convicted of
both.” Lopez is incorrect.
¶22 	Lopez’s argument is unavailing because his complaint
concerns only the statute’s grant of traditional prosecutorial
discretion, 	not 	its 	supposed 	encouragement 	of 	arbitrary
enforcement. Here, the statute’s use of the term “may” grants
prosecutors the “traditional prosecutorial discretion” they have
“in determining what charges to pursue.” State v. Angilau, 2011
UT 3, ¶ 28, 245 P.3d 745 (quotation simplified). See Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978) (holding that the “decision
whether or not to prosecute, and what charge to file . . . ,
generally rests entirely in [the prosecutor’s] discretion,” so long
as it is not “based upon an unjustifiable standard such as race,
religion, or other arbitrary classification”); State v. Martinez, 2013
UT 23, ¶ 17, 304 P.3d 54 (holding that “[t]he decision to charge
aggravated murder . . . is a classic exercise of prosecutorial
discretion”). And a prosecutor’s ability to determine whether to
bring charges based on the particular facts of each case does not
amount to arbitrary enforcement. See State v. Mohi, 901 P.2d 991,
1003 (Utah 1995) (explaining that “traditional prosecutor[ial]
discretion” 	encompasses 	“selecting 	a 	charge 	to 	fit 	the
circumstances of a defendant and his or her alleged acts” and is
not a violation of the uniform operation of laws).
¶23 	Accordingly, 	the 	complained-of 	language 	does 	not
encourage 	arbitrary 	enforcement. 	While 	it 	does 	grant

State v. Lopez
20190236-CA 	15 	2020 UT App 101
prosecutors discretion in deciding to charge conduct that clearly
violates the statute, it does not leave law enforcement officials
who encounter Lopez’s circumstances free “to pursue their own
personal predilections in determining the applicability of [the]
statute.” See Green, 2004 UT 76, ¶ 51.
¶24 	Therefore, 	Utah 	Code 	section 	76-5-202 	is 	not
unconstitutionally 	vague 	because 	it 	is 	straightforward 	and
clearly informs an individual of ordinary intelligence that if
during the commission of an aggravated burglary, he attempts
an aggravated murder, he could be charged with both crimes,
and those crimes would not merge. The statute also does not
encourage 	arbitrary 	enforcement, 	because 	it 	simply 	grants
prosecutors the traditional discretion they have to determine if
charges should be brought and, if so, which charges.
CONCLUSION
¶25 	The 	district 	court 	did 	not 	err 	in 	declining 	to 	merge
Lopez’s convictions because the anti-merger provision in Utah
Code section 76-5-202(5) prohibited their merger. The district
court also did not err in finding that the anti-merger provision
was constitutional because the provision does not violate equal
protection 	or 	the 	uniform 	operation 	of 	laws, 	and 	it 	is 	not
unconstitutionally vague.
¶26 	Affirmed.