State v. Stewart

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 112
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
CHAD MATTHEW STEWART,
Defendant and Appellant.
Memorandum Decision
No. 20130258-CA
Filed May 22, 2014
Third District Court, Salt Lake Department
The Honorable Gary D. Stott
No. 111903205
Nathalie S. Skibine and Michael R. Sikora,
Attorneys for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L.
ROTH concurred.1
BENCH, Senior Judge:
¶1 Chad Matthew Stewart appeals his conviction of aggravated
robbery, a first-degree felony, see Utah Code Ann. § 76-6-302
(LexisNexis 2012), and receiving stolen property, a second-degree
felony, see id. §§ 76-6-408, -412(1) (Supp. 2013). We affirm in part
and reverse and remand in part.

State v. Stewart
20130258-CA 2 2014 UT App 112
¶2 In April 2011, Stewart drove a blue Mini Cooper to a Salt
Lake City car dealership and test drove a BMW. The car salesman
from the dealership (the Salesman) accompanied Stewart on the
test drive. During the test drive, Stewart drove on Interstate 80 a
short way into Parley’s Canyon. The Salesman then requested that
Stewart exit the interstate and turn around. Stewart pulled over,
but instead of turning around, he stopped and told the Salesman
that he needed to make a phone call. The Salesman testified at trial
that after they had pulled over, Stewart “put a gun in [his] face and
told [him] to . . . put [his] stuff on the floor and get out of the car.”
The Salesman complied, and Stewart drove away in the BMW. The
Salesman ran to a nearby building and called the police.
¶3 A police officer (the Officer) was assigned to investigate the
incident and interviewed the Salesman that same day. The
Salesman told the Officer that Stewart had pointed a gun at his
head, “pulled the hammer back,” and told him to get out of the car.
The Officer also discovered that Stewart had left the blue Mini
Cooper at the dealership. The Officer checked the National Crime
Information Center (NCIC) database and learned that the Mini
Cooper had been reported stolen from Zipcar, an hourly car rental
company, in 2007. He then contacted the Zipcar manager listed in
the NCIC database and verified the theft.
¶4 After stealing the BMW, Stewart drove to his family’s home
in Morgan, Utah. Stewart’s stepbrother noticed a gun on the
passenger seat of the car and observed that the dealer plates were
still on the BMW. When Stewart’s father came home, he became
concerned about the dealer plates on the BMW and called the
police. Stewart was arrested, and after waiving his Miranda rights,
he admitted to the Officer that he had stolen the BMW. Stewart’s
father retrieved the gun and gave it to police. The gun turned out
to be a “prop gun” loaded with blank ammunition. Stewart
admitted to the Officer that he had the prop gun in his waistband
when he test drove the BMW and that he believed the Salesman
had seen it when he opened his jacket. Stewart denied that he ever
pointed the gun at the Salesman but admitted that the Salesman

State v. Stewart
20130258-CA 3 2014 UT App 112
“appeared to be in a state of shock” after seeing the gun and that
he told the Salesman, “[I]t’s time for you to go.”
¶5 Stewart also admitted that he had “obtained” the Mini
Cooper from Zipcar in 2007. He told the Officer that he had used
the Mini Cooper as his personal car since then and had performed
maintenance on it. Stewart also told the Officer that the Mini
Cooper had only sixty miles on it when he obtained it from Zipcar
and that he stole the BMW because the Mini Cooper now had
100,000 miles on it and “he just needed another car.” Based on
Stewart’s explanation, the Officer believed “[t]here was no
question” that Stewart stole the Mini Cooper.
¶6 Stewart was charged with aggravated robbery for stealing
the BMW and theft by receiving stolen property in connection with
the Mini Cooper. The jury convicted Stewart of both charges, and
he now appeals.
¶7 Stewart argues that we should reverse his aggravated
robbery conviction because the Officer’s testimony that the
Salesman told him Stewart had pointed the gun at him and pulled
back the hammer was inadmissible hearsay. He also argues that we
should reverse his theft-by-receiving conviction because the
Officer’s testimony that he learned the car was stolen was
inadmissible hearsay. “In reviewing the admissibility of hearsay,
legal questions are reviewed for correctness while the ultimate
ruling on admissibility is reviewed for an abuse of discretion.” State
v. Gonzalez-Camargo, 2012 UT App 366, ¶ 15, 293 P.3d 1121 (citation
and internal quotation marks omitted). Nevertheless, even where
we determine that a trial court’s admissibility ruling is erroneous,
“we will not overturn a conviction unless we conclude that there
is a reasonable likelihood that the error affected the outcome of the
proceedings.” State v. Workman, 2005 UT 66, ¶ 23, 122 P.3d 639
(citation and internal quotation marks omitted); see also Utah R.
Crim. P. 30(a).

State v. Stewart
20130258-CA 4 2014 UT App 112
¶8 Stewart first argues that the trial court should not have
permitted the Officer to testify that the Salesman told him that
Stewart had pointed the gun at the Salesman’s head and pulled
back the hammer. However, we agree with the State that there was
no reasonable likelihood that this testimony impacted the outcome
of the trial. Accordingly, any error in admitting the testimony was
harmless.
¶9 “A person commits aggravated robbery if in the course of
committing robbery, he . . . uses or threatens to use a dangerous
weapon . . . .” Utah Code Ann. § 76-6-302(1)(a) (LexisNexis 2012).
“[I]t is not necessary that the State prove that the robber actually
pointed a gun at the victim” in order to establish use or threatened
use of a dangerous weapon. In re R.G.B., 597 P.2d 1333, 1335 (Utah
1979). “If merely exhibiting the gun creates fear in the victim, it
constitutes use of a [dangerous weapon] for that purpose.” State v.
Graham, 2011 UT App 332, ¶¶ 29–31, 263 P.3d 569 (alteration in
original) (citation and internal quotation marks omitted).
¶10 Here, Stewart’s admission that he had the gun in his
waistband and that he exposed the gun to the Salesman’s view
when he threatened him was sufficient for the jury to convict him
of aggravated robbery, and it is likely that the jury would have
convicted Stewart on that evidence alone. See In re R.G.B., 597 P.2d
at 1334–35 (holding that a robber could be deemed to have used a
firearm in the commission of a robbery, despite never removing the
gun from the waistband of his jeans, where he revealed the gun to
the victim for the purpose of invoking fear); State v. Weisberg, 2002
UT App 434, ¶¶ 2–3, 10, 16–17, 62 P.3d 457 (holding that the
defendant’s action of taking a shotgun from the passenger
compartment of his car and moving it to the trunk, while in the
parking lot of his alleged stalking victim’s workplace, constituted
use of a dangerous weapon because the jury could reasonably find
that his action was intended to create fear in the victim). In any
event, the Salesman’s testimony that Stewart pointed the gun at
him was strong evidence that Stewart used a dangerous weapon.
This evidence was only marginally undercut by defense counsel’s

State v. Stewart
2. The State asserts that Stewart failed to preserve his objection to
the Officer’s testimony that the Salesman told him Stewart pulled
back the hammer on the gun. However, even assuming that this
objection was preserved, we do not agree that the testimony had
any likelihood of impacting the result of the trial.
3. A number of other jurisdictions have concluded that NCIC
information is hearsay, see, e.g., Vlietstra v. State, 800 N.E.2d 972, 975
n.5 (Ind. Ct. App. 2003) (collecting cases), though under
appropriate circumstances, it may be admissible under the business
records exception to the hearsay rule, see, e.g., Frye v.
Commonwealth, 345 S.E.2d 267, 279–80 (Va. 1986); see also Utah R.
Evid. 803(6) (outlining the business records exception). In this case,
(continued...)
20130258-CA 5 2014 UT App 112
emphasis of the Salesman’s uncertainty regarding whether the gun
was pointed at his head or his face, and it was only marginally
bolstered by the Officer’s testimony, which was largely cumulative
of what the Salesman himself testified. Given the Salesman’s
testimony that Stewart pointed the gun at him, coupled with
Stewart’s own admission that he revealed the gun to the Salesman,
we are simply not convinced that there was a reasonable likelihood
of a different outcome in the absence of the Officer’s testimony.2
¶11 Stewart next argues that his conviction for theft by receiving
stolen property should be reversed because the Officer’s testimony
that he confirmed the car was stolen was based on inadmissible
hearsay. Although the trial court prevented the Officer from
testifying about what the Zipcar manager told him about the Mini
Cooper, it permitted the Officer to testify that as a result of calling
the manager, he “verified that the vehicle had been reported stolen
back in 2007.” It further permitted him to testify that he discovered,
“[a]s a result of [his] investigation,” “[t]hat the Mini was listed as
a stolen vehicle.” This discovery was apparently the result of the
Officer’s search of the NCIC database. Stewart asserts that both the
contents of the NCIC database and the information obtained from3

State v. Stewart
3. (...continued)
the State made no attempt to lay a proper foundation for the
admission of the NCIC information under the business records
exception. See State v. Bertul, 664 P.2d 1181, 1184 (Utah 1983)
(outlining the foundational requirements for admitting hearsay
under the business records exception).
20130258-CA 6 2014 UT App 112
the Zipcar manager were hearsay. See Utah R. Evid. 801(c)(1)–(2)
(defining hearsay as a statement “the declarant does not make
while testifying at the current trial” but which is offered “to prove
the truth of the matter asserted in the statement”); State v. Sibert,
310 P.2d 388, 390 (Utah 1957) (“The term hearsay is applied to
testimony offered to prove facts of which the witness has no
personal knowledge, but which have been told to him by others.”).
The State does not contest Stewart’s assertion but maintains that
any error in admitting the hearsay was harmless in light of
Stewart’s own admissions. We disagree.
¶12 Stewart admitted to the Officer that he “obtained” the Mini
Cooper from Zipcar when it had only sixty miles on it, and the
Officer testified that there was “no question in [his] mind” that
what Stewart meant by this admission was that he had stolen the
car from Zipcar. However, Stewart did not explicitly admit to
stealing the Mini Cooper. As Stewart points out, the Officer’s
statement that Stewart told him he “obtained” the Mini Cooper
from Zipcar leaves open alternative possibilities, such as that
“Stewart was paying to rent the car for an extended period of time
or that he had purchased it used from the rental company.”
Though the jury may still ultimately have convicted Stewart of
theft by receiving on the evidence presented, the Officer’s
testimony that he had confirmed the car to be stolen was strong
evidence in support of conviction. Under the circumstances, we are
convinced “that there is a reasonable likelihood that the error
affected the outcome of the proceedings.” State v. Workman, 2005
UT 66, ¶ 23, 122 P.3d 639 (citation and internal quotation marks

State v. Stewart
20130258-CA 7 2014 UT App 112
omitted). In light of our conclusion, we need not address Stewart’s
confrontation clause argument.
¶13 In summary, we conclude that any error committed by the
trial court in permitting the Officer to testify to what the Salesman
told him was harmless. However, the trial court’s error in
permitting the Officer to testify regarding information he obtained
from the Zipcar manager and to testify, without proper foundation,
regarding the contents of the NCIC database was harmful. We
therefore affirm Stewart’s conviction for aggravated robbery but
reverse his conviction for theft by receiving and remand for a new
trial on that charge.