Salt Lake City v. Gallegos

2015 UT App 78
_________________________________________________________

THE UTAH COURT OF APPEALS

SALT LAKE CITY,
Plaintiff and Appellee,
v.
ANTHONY MARK GALLEGOS,
Defendant and Appellant.

Memorandum Decision
No. 20140034-CA
Filed April 2, 2015

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 131903683

Elise C. Reinert, Attorney for Appellant

Padma Veeru-Collings, Richard Pehrson, and
Brandon Simmons, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

ROTH, Judge:

¶1 Anthony Mark Gallegos was convicted of failing to stop
at the command of law enforcement, a class A misdemeanor. See
Utah Code Ann. § 76-8-305.5 (LexisNexis 2012). He appeals,
arguing the trial court erred in denying his motion for a directed
verdict. We reverse and vacate Gallegos’s conviction.
Salt Lake City v. Gallegos

¶2 An officer from the Salt Lake City police force (the
Officer) was dispatched in response to a disturbance.1 A caller
had reported that several men, two of whom were wearing red
clothing,2 were wrestling in an alleyway in a location the Officer
later testified was a ‚high-crime area.‛ As the uniformed Officer
arrived at the address in his marked police car, he saw a vehicle
driving away. As he followed, the vehicle circled the block and
stopped across from a home at the address to which he was
responding. The home was next to an alleyway. Two men, one of
whom was wearing a red shirt, exited the vehicle. The Officer
aimed his patrol car’s spotlight at the men and shouted,
‚Gentlemen, stop.‛ The men failed to comply and went inside
the home.

¶3 The Officer then saw Gallegos and one other man in the
adjacent alleyway. Gallegos was wearing a shirt with red stripes.
After making eye contact with the men, the Officer ‚started to
point,‛ but before he said or did anything else, the two men
turned and ran away. The Officer followed but had to navigate
around a fence before entering the alleyway. Once in direct
pursuit, he yelled, ‚Police, stop,‛ partway down the alley.
Gallegos continued to run for roughly half a block, and when
another marked police car with its lights flashing came up from
the other end of the alleyway, he turned into an adjacent parking

1. On appeal, we recite the facts in the light most favorable to the
trial court’s denial of the directed verdict. See State v. Brown, 948
P.2d 337, 339 (Utah 1997) (reciting the facts in the light most
favorable to the jury’s verdict); see also State v. Hamilton, 2003 UT
22, ¶ 41, 70 P.3d 111 (explaining that the same standards applied
to a review of jury verdicts should be applied to the review of
directed verdicts).

2. On cross-examination, the Officer testified more specifically
that the caller had reported two of the men were wearing red
jackets.

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Salt Lake City v. Gallegos

area and hid behind a shed. The Officer began searching the
parking area with his pistol drawn, and after a few seconds,
Gallegos came out from behind the shed and surrendered. The
Officer testified that Gallegos said something to the effect of,
‚Sorry, I didn’t realize you were a cop.‛ Gallegos complied with
the Officer’s instructions and submitted to a search. The Officer
found no drugs, drug paraphernalia, or weapons on Gallegos’s
person or in the surrounding area. The Officer smelled alcohol
on Gallegos’s breath and observed fresh blood and scrapes on
his hands and elbows. Gallegos was charged with failure to stop
at the command of law enforcement. The Officer did not cite
Gallegos for any crime related to the disturbance that the Officer
had originally been dispatched for, nor did he cite Gallegos for
public intoxication.

¶4 At trial, the City called the Officer as its only witness.
After the close of the City’s evidence, Gallegos made a motion
for a directed verdict. The trial court denied the motion, stating,
‚The mere fact of taking off from a police officer is sufficient
implication associated with an inference that a jury could draw
about his desire to be either compliant or intentional[ly] fleeing
from an officer.‛ The jury convicted Gallegos as charged.

¶5 We will uphold the denial of a motion for a directed
verdict ‚if, 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 the
elements of the crime had been proven beyond a reasonable
doubt.‛ State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (citation
and internal quotation marks omitted). Gallegos argues the City
failed to present evidence sufficient to support his conviction
beyond a reasonable doubt. We agree.

¶6 ‚A person is guilty of a class A misdemeanor who flees
from or otherwise attempts to elude a law enforcement officer:
(1) after the officer has issued a verbal or visual command to
stop; (2) for the purpose of avoiding arrest.‛ Utah Code Ann.
§ 76-8-305.5 (LexisNexis 2012). The trial court’s conclusion that

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‚*t+he mere fact of taking off from a police officer‛ was sufficient
to meet the requirements of the statute suggests that the court
believed the City was required to prove only that Gallegos fled
after the Officer’s command to stop. But the statute also requires
that the defendant have fled with a particular intent—‚for the
purpose of avoiding arrest.‛ Id. § 76-8-305.5(2). We conclude the
evidence failed to meet this standard.

¶7 In order to prove that Gallegos fled from the Officer
to avoid arrest, the statute implicitly requires the City to
present evidence supporting an inference that Gallegos thought
he was at risk for arrest and was therefore motivated to flee. See
id. While the statute does not require proof that another
crime actually occurred, the element requiring the City to show
that Gallegos fled ‚for the purpose of avoiding arrest‛ requires
evidence in addition to the flight itself. See id. This is so
because ‚[l]ike ‘mere presence’ at the scene of a crime, [f]light
by itself is not sufficient to establish . . . guilt . . . but is merely a
circumstance to be considered with other factors as tending to
show a consciousness of guilt and therefore guilt itself.‛ State v.
Cristobal, 2010 UT App 228, ¶ 14, 238 P.3d 1096 (second
alteration and omissions in original) (citation and internal
quotation marks omitted). Thus, while flight ‚may be considered
as evidence of implication in [a] crime, it is only a circumstance [,
and i]t alone will not justify conviction of the defendant, in the
absence of other evidence tending to connect him with the
commission of the crime.‛ Id. (second alteration in original)
(citation and internal quotation marks omitted).

¶8 Although this principle has generally been applied in
cases where flight is a circumstance used to infer a defendant’s
consciousness of guilt of another substantive crime not involving
flight as an element, the principle seems to apply equally well to
the charge here, where the act of fleeing must be motivated by a
specific purpose. Cf. State v. James, 819 P.2d 781, 789 (Utah 1991)
(‚Flight or concealment shows the guilty conscience of the
accused as a result of the crime committed. It does not show the
state of mind prior to the criminal act or event.‛). Were this not

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the case, once an officer has issued a command to stop, flight
alone would nearly always be sufficient to convict, and the
specific intent element would be rendered largely superfluous.
See State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276 (stating that
when courts examine statutory language, they should ‚avoid
interpretations that will render portions of a statute superfluous
or inoperative‛ (citation and internal quotation marks omitted)).
Thus, there must be evidence separate from flight itself from
which a jury could conclude beyond a reasonable doubt that a
defendant’s motivation in fleeing from an officer was to avoid
arrest. See Utah Code Ann. § 76-8-305.5(2).

¶9 Here there was no direct evidence of Gallegos’s intent
presented at trial, but ‚*i+t is well established that intent can be
proven by circumstantial evidence.‛ State v. Holgate, 2000 UT 74,
¶ 21, 10 P.3d 346 (citation and internal quotation marks omitted).
The City argues that it presented sufficient indirect evidence
beyond flight alone to support a reasonable inference that
Gallegos fled with the purpose to avoid arrest for either a crime
related to the fight in the alleyway or public intoxication.

When intent is proven by circumstantial evidence,
we must determine (1) whether the [City]
presented any evidence that [Gallegos] possessed
the requisite intent, and (2) whether the inferences
that can be drawn from that evidence have a basis
in logic and reasonable human experience
sufficient to prove that [Gallegos] possessed the
requisite intent.

See id. (citation and internal quotation marks omitted).

¶10 The City argues that there was sufficient evidence to
support a reasonable inference that Gallegos fled from the
Officer with the intent to avoid arrest for involvement in the
reported fight in the alleyway. First, the City contends that
Gallegos’s presence in the alley with three others, the red upper
clothing of two of them (including Gallegos’s red-striped shirt),

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and the scrapes on his hands and arms support a reasonable
inference Gallegos was involved in the disturbance described in
the call to dispatch. We agree. But a further step is required to
reach a conclusion that his involvement in the fight suggested
some sort of criminality from which it could be reasonably
inferred that Gallegos had fled ‚for the purpose of avoiding
arrest.‛ See Utah Code Ann. § 76-8-305.5(2). His clothing,
scrapes, and location imply that he was injured in an altercation,
but the nature of his participation is obscured, allowing no more
than speculation that Gallegos had been involved in a crime in a
role that would motivate him to flee to avoid arrest. Here, no one
was fighting when the Officer arrived, and other than Gallegos’s
flight, there was no evidence suggesting the possibility Gallegos
was a willing participant in a criminal altercation was more
likely than the possibility he was an unwilling or innocent victim
of an assault. ‚When the evidence supports more than one
possible conclusion, none more likely than the other, the choice
of one possibility over another can be no more than speculation.‛
Cristobal, 2010 UT App 228, ¶ 16. In short, there is simply not
enough information about the events that transpired before
Gallegos’s encounter with the Officer to support an inference
that he was seeking to avoid arrest when he fled the officers.
Rather, that conclusion requires not just one level of inference
but two: first, that he was involved in the fight, and second, that
his role suggested (at least to him) criminality. See id. ¶ 17
(‚While inferences drawn from facts in evidence are appropriate,
inferences drawn from inferences are not.‛ (citation and internal
quotation marks omitted)). There was thus nothing in the
evidence from which a reasonable jury could have concluded
beyond a reasonable doubt that Gallegos was fleeing from the
Officer ‚for the purpose of avoiding arrest‛ due to the possible
nature of his participation in a possible criminal altercation. See
Utah Code Ann. § 76-8-305.5(2).

¶11 The City also argues that it provided sufficient evidence
to support a reasonable inference that Gallegos was fleeing to
avoid arrest for public intoxication. The Officer reported that
Gallegos’s breath had a strong odor of alcohol. The City claims a

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jury could reasonably infer that the injuries on Gallegos’s arms
and hands were a result of intoxication because ‚*b+oth
aggressive behavior and lack of coordination are side effects of
alcohol use.‛ It argues that in combination with Gallegos’s slow
reaction in surrendering to the Officer’s commands, his scrapes
and odorous breath support a reasonable inference that Gallegos
was fleeing from the police to avoid arrest for public
intoxication. But an intoxication charge requires that a person be
either a danger to himself or others in a public place or
‚unreasonably disturb*+‛ another in a private place. Utah Code
Ann. § 76-9-701(1) (LexisNexis Supp. 2014).3 Gallegos was not
combative with the Officer, and he was not observed being
disruptive, being violent, or endangering anyone else. And given
the vague report of ‚wrestling‛ in the alley and the uncertain
origin of his scrapes, no other evidence was presented making it
more likely than not that Gallegos’s intoxication had become a
nuisance or danger to himself or others. See Cristobal, 2010 UT
App 228, ¶ 16. Thus, the leap from Gallegos’s slow reaction time
and the smell of alcohol to a conclusion that Gallegos fled for the
purpose of avoiding arrest requires speculation. See id.

¶12 We conclude that the City presented insufficient evidence
from which the jury could conclude beyond a reasonable doubt
that Gallegos fled from the Officer ‚for the purpose of avoiding
arrest.‛ See Utah Code Ann. § 76-8-305.5(2) (LexisNexis 2012).
We therefore reverse the trial court’s denial of Gallegos’s motion
for a directed verdict, and Gallegos’s conviction is accordingly
vacated.
____________

3. Any amendments made to this statute since the time of
Gallegos’s arrest in April 2013 do not affect our analysis, and we
therefore cite the current version of the Utah Code for the
reader’s convenience.

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