State v. Johnson

1 2006 UT 82, 150 P.3d 532.
2006 UT 83
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20050599
Plaintiff and Respondent,
v.
F I L E D
Ryan Wayne Johnson,
Defendant and Petitioner. 	December 15, 2006
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Third District, Salt Lake
The Honorable Leslie A. Lewis
No. 041900176
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Brett J. Delporto,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Joan C. Watt, Patrick L. Anderson, Debra Meek Nelson,
Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
¶1 	Defendant Ryan Wayne Johnson seeks to have five charges
of aggravated robbery reduced to simple robbery. 	Johnson argues
that a concealed gesture of a hand in a pocket cannot sustain a
charge of aggravated robbery unless it is accompanied by “a
verbal representation or threat.” 	The district court agreed and
reduced the charges. 	On interlocutory appeal, however, the court
of appeals reversed. 	We granted certiorari to determine whether
a concealed gesture of a hand in a pocket is sufficient to meet
the criteria for aggravated robbery under Utah Code section
76-6-302. 	Finding that Johnson’s use of a concealed gesture
satisfies the requirements of the aggravated robbery statute, as
explained by our decision in State v. Ireland,1 we affirm.

2 State v. Johnson, 2005 UT App 210U, para. 1.
3 State v. Warren, 2003 UT 36, ¶ 12, 78 P.3d 590.
4 State v. Smith, 2005 UT 57, ¶ 6, 122 P.3d 615.
No. 20050599 	2
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	Johnson was charged with six counts of aggravated
robbery for crimes that occurred between December 2003 and
January 2004, though only five of these charges are before us on
certiorari. 	The alleged facts from which the charges arise are
similar. 	Johnson would allegedly enter a business wearing a
bulky jacket, with a cloth over his head, and approach a cashier.
With his hand in his pocket, pointing toward the cashier, Johnson
would demand money. 	The cashiers testified that although Johnson
neither verbally threatened them nor indicated that he had a gun,
they believed that he may have had some sort of dangerous weapon
and complied with his demands. 	Several of them also testified
that they were scared or feared for their lives.
¶3 	Johnson was bound over on six first degree counts of
aggravated robbery. 	He moved to reduce all of the counts to
second degree counts of simple robbery. 	The district court
granted Johnson’s motion, reasoning that the aggravated robbery
statute required “more than just a hand in a pocket.”
¶4 	The State filed a petition for interlocutory appeal in
this court, which we transferred to the Utah Court of Appeals for
disposition pursuant to Utah Code section 78-2-2(4) (2002). 	On
May 12, 2005, the court of appeals issued a memorandum decision
reversing the trial court on five of the six counts. 2 	Johnson
filed a petition for certiorari on those five counts, which we
granted. 	We have jurisdiction pursuant to Utah Code section
78-2-2(3)(a).
ANALYSIS
¶5 	On certiorari review, we review the decision of the
court of appeals, not that of the district court. 3 	Determining
whether a defendant’s conduct constitutes aggravated robbery is
“a legal question of statutory interpretation,” which we review
for correctness. 4
¶6 	Johnson argues that his concealed gesture does not
qualify as using a dangerous weapon under Utah Code section
76-1-601(5). 	We disagree. 	In State v. Ireland, which we also
issue today, we determine that use of a concealed gesture,

5 2006 UT 82, ¶ 23, 150 P.3d 532.
6 Utah Code Ann. § 76-1-601(5)(b)(i) (2003).
3 	No. 20050599
without more, constitutes use of a dangerous weapon under the
aggravated robbery statute. 5 	Because the facts of this case are
nearly identical to those in Ireland, the same reasoning used in
that case applies here.
¶7 	In this case, Johnson allegedly directed a concealed
gesture toward each of his victims. 	He therefore used a
representation of a dangerous weapon. 	Moreover, each of the
victims reasonably believed that the gesture could be a weapon
that was “likely to cause death or serious bodily injury.” 6 	The
court of appeals therefore correctly determined that the five
robbery charges under review could be elevated from simple to
aggravated robbery. 	Accordingly, we affirm.
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¶8 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.