State v. Ireland

2006 UT 82
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20050600
Plaintiff and Respondent,
v.
F I L E D
William Joseph Ireland,
Defendant and Petitioner. 	December 15, 2006
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Third District, Salt Lake
The Honorable Paul G. Maughan
No. 031908349
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Brett J. Delporto,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Joan C. Watt, Michael A. Peterson, Salt Lake City,
for defendant
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
¶1 	Defendant William Joseph Ireland seeks review of his
conviction for aggravated robbery. 	Ireland argues that the
concealed gesture he used when robbing a jewelry store did not
justify elevating the charge against him from simple robbery to
aggravated robbery. 	The court of appeals upheld Ireland’s
conviction, and 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 Ireland’s use of a concealed gesture falls within
the express terms of the aggravated robbery statute, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	On December 6, 2003, Ireland entered a jewelry store
located in a Salt Lake City shopping mall. 	When employee Jeffrey
Reinkoester greeted him, Ireland responded by saying, “I want you
to go and get me all the money in the cash drawer right now.”

1 Utah Code Ann. § 76-6-302 (2003).
2 Id. § 76-6-409.
3 State v. Ireland, 2005 UT App 209, ¶ 1, 113 P.3d 1028.
4 State v. Warren, 2003 UT 36, ¶ 12, 78 P.3d 590.
No. 20050600 	2
During this exchange, Ireland’s hand was in his pocket, pointing
toward Reinkoester in a manner Reinkoester described as
“gesturing like there was a weapon, but it was more subtle.”
Although Ireland did not verbally indicate that he had a weapon,
Reinkoester speculated that Ireland might have a gun.
¶3 	Reinkoester then went to the desk where the cash drawer
was located. 	Because the desk was high and blocked Reinkoester’s
view, Reinkoester could not see whether Ireland’s hand remained
inside his pocket, and Reinkoester did not see Ireland make any
additional gestures. 	After Reinkoester filled a dark plastic bag
with cash, Ireland demanded that the bag be filled with jewelry.
Before Reinkoester was able to comply with this demand, however,
Ireland grabbed the bag and ran out the front door.
¶4 	The owner of the jewelry store, Nelson Fortier,
unsuccessfully attempted to block Ireland’s escape and then
chased after him. 	When Ireland attempted to climb into a waiting
cab, Fortier told the cab driver that Ireland had just robbed a
jewelry store. 	Ireland then fled on foot. 	Fortier eventually
caught up to him and demanded that he return the money. 	Ireland
complied and then ran off. 	He was later arrested.
¶5 	Ireland was charged with one count of aggravated
robbery, a first degree felony, 1 and one count of theft of
services, a class B misdemeanor. 2 	He moved to reduce the charge
of aggravated robbery to simple robbery, a second degree felony,
but the district court denied his motion. 	Ireland pled guilty to
the aggravated robbery charge, conditioned on his right to appeal
the denial of his motion to reduce the charge to simple robbery.
Ireland appealed, and the court of appeals affirmed his
conviction. 3 	We granted Ireland’s petition for a writ of
certiorari and have jurisdiction pursuant to Utah Code section
78-2-2(3)(a).
ANALYSIS
¶6 	On certiorari, we review the decision of the court of
appeals, not that of the district court. 4 	Determining whether a
defendant’s conduct constitutes aggravated robbery is “a legal

5 See State v. Smith, 2005 UT 57, ¶ 6, 122 P.3d 615.
6 State v. Maestas, 2002 UT 123, ¶ 52, 63 P.3d 621 (internal
quotation marks omitted).
7 State v. Hunt, 906 P.2d 311, 312 (Utah 1995) (citation and
internal quotation marks omitted).
8 Travelers/Aetna Ins. Co. v. Wilson, 2002 UT App 221, ¶ 12,
51 P.3d 1288 (internal quotation marks omitted).
9 Utah Code Ann. § 76-6-302 (2003).
3 	No. 20050600
question of statutory interpretation,” which we review for
correctness. 5
¶7 	Interpreting the aggravated robbery statute requires us
to discern “the true intent and purpose of the Legislature.” 6
The best evidence of the legislature’s “intent and purpose” is
the plain language of the statute. 7 	When analyzing statutory
language, “we presume that the legislature used each word
advisedly and give effect to each term according to its ordinary
and accepted meaning.” 8
I. 	IRELAND’S USE OF A CONCEALED GESTURE CONSTITUTED
AGGRAVATED ROBBERY
¶8 	The crime of aggravated robbery is defined by section
76-6-302 of the Utah Code. 	It provides that “[a] person commits
aggravated robbery if in the course of committing robbery, he:
(a) uses or threatens to use a dangerous weapon as defined in
Section 76-1-601.” 9 	Section 76-1-601(5) defines a dangerous
weapon as
(a) any item capable of causing death or
serious bodily injury; or
(b) a facsimile or representation of the
item; and:
(i) the actor’s use or apparent
intended use of the item leads the
victim to reasonably believe the item is
likely to cause death or serious bodily
injury; or

10 Id. § 76-1-601(5).
11 Id. § 76-1-601(5)(b)(i)-(ii).
12 Id. § 76-1-601(5).
13 State v. Candelario, 909 P.2d 277, 279 (Utah Ct. App.
1995) (quoting Webster’s Third New Int’l Dictionary 813 (1986)).
14 Id. at 278-79 (indicating that “representation” is “an
expansive term” that is subject to “multiple meanings” including
“a verbal or nonverbal statement”).
15 Black’s Law Dictionary 1303 (7th ed. 1999).
No. 20050600 	4
(ii) the actor represents to the
victim verbally or in any other manner
that he is in control of such an item. 10
¶9 	Our analysis turns on whether Ireland used a dangerous
weapon during the robbery. 	We first address whether Ireland used
a “representation of an item” capable of causing death or serious
bodily injury as defined by section 76-1-601(5)(b). 	If so, we
must then address whether Ireland’s use of such a representation
led “the victim to reasonably believe the item [was] likely to
cause death or serious bodily injury” or whether he represented
“to the victim verbally or in any other manner that he [was] in
control of such an item.” 11
A. 	A Concealed Gesture Is a Representation Under
Utah Code Section 76-1-601(5)
¶10 	Under section 76-1-601(5), a dangerous weapon can be
“any item capable of causing death or serious bodily injury” or
“a facsimile or representation of the item” used in a manner
specified by subsections (i) and (ii). 12 	The State contends that
Ireland’s concealed gesture constitutes a representation of a
weapon. 	We agree.
¶11 	The plain meaning of the term “representation,” as used
by section 76-1-601(5), encompasses a gesture. 	Unlike a
facsimile, which is “‘an exact and detailed copy,’” 13 a wide
array of items, conduct, and statements can be considered
representations. 14 	Black’s Law Dictionary defines a
“representation” as “[a] presentation of fact–-either by words or
by conduct–-made to induce someone to act.” 15 	A representation
has also been defined as “[a]n image or likeness of something” or

16 The American Heritage Dictionary of English Language (4th
ed. 2004), available at
http://dictionary.reference.com/browse/representation.
17 Candelario, 909 P.2d at 278.
18 741 P.2d 961 (Utah 1987).
19 Id. at 962.
20 Id. at 965.
5 	No. 20050600
an “account . . . of facts.” 16 	In context, the use of the term
“representation” refers to verbal or nonverbal statements or
conduct “conveying an impression for the purpose of influencing
action.” 17 	Because a concealed gun-like gesture is intended to
influence a victim to act out of fear for his life or safety, it
falls within the definition of representation.
¶12 	The plain meaning of the word “representation” as used
in the statute is buttressed by the available legislative
history. 	The term “representation” was added to the statute in
response to this court’s decision in State v. Suniville.18 	In
that case, the defendant pointed his concealed hand at a bank
teller and demanded that she give him all her money to prevent
the robbery from turning “into a homicide.” 19 	Under the prior
version of the statute, which did not include the term
“representation,” this court ruled that a “[d]efendant’s menacing
gesture accompanied by verbal threats is not sufficient evidence
alone to establish the use of a firearm or a facsimile of a
firearm.” 20 	The legislature responded to our ruling by adding
the term “representation” to the statute, evincing its intent
that gestures, at least those accompanied by verbal threats,
should be covered by the aggravated robbery statute.
¶13 	Utah precedent also supports our conclusion that the
term “representation” includes concealed gestures and verbal
statements. 	For example, in State v. Candelario, the court of
appeals affirmed a firearm enhancement, reasoning that even
though the defendant did not use an actual firearm, “[t]he plain
meaning of the phrase ‘the representation of a dangerous weapon’
requires that courts apply the firearm enhancement if a defendant
makes a verbal or a nonverbal statement that he possesses a

21 909 P.2d at 279.
22 2004 UT App 151, 91 P.3d 861.
23 Id. ¶ 4 (internal quotation marks omitted).
24 783 P.2d 544 (Utah 1989).
25 Id. at 547; see also State v. Adams, 830 P.2d 310, 313-14
(Utah Ct. App. 1992) (indicating that the defendant’s touching a
bulging pocket while communicating to a victim that he had a gun
was sufficient to constitute aggravated robbery).
26 581 S.E.2d 365, 366-67 (Ga. Ct. App. 2003).
27 Id. at 367.
28 663 A.2d 972 (Conn. 1995).
29 Id. at 978 (emphasis in original).
No. 20050600 	6
firearm.” 21 	Similarly, in State v. Reyos,22 the court of appeals
upheld an aggravated robbery charge, reasoning that “a
representation of a dangerous weapon may include a statement
conveying an impression for the purpose of influencing action.” 23
And in State v. Hartmann,24 we indicated that a charge can be
aggravated when a defendant verbally represents that he has a
dangerous weapon, reasoning that “[u]se or display of a weapon is
not required; threat of such use is sufficient.” 25
¶14 	The majority of courts from other jurisdictions have
similarly held that statutes containing terms such as
“representation” are broad enough to encompass verbal threats,
menacing gestures, and the use of everyday objects in a
threatening manner. 	For example, in Faulkner v. State,26 a
defendant threatened a victim by placing a sock-covered chisel to
her back. 	The Georgia Court of Appeals upheld the defendant’s
conviction for armed robbery, reasoning that “he used an article
that had the appearance of a gun to persuade [the victim] to
comply with his demand and that his acts created a reasonable
apprehension on her part that he was threatening her with a
gun.” 27 	Similarly, in State v. Arena,28 the Connecticut Supreme
Court indicated that “[t]he state only had to prove that the
defendant represented by his conduct that he had a firearm” and
that he need not actually possess a real firearm. 29 	And in

30 522 N.Y.S.2d 145 (App. Div. 1987).
31 Id. at 146 (citation, internal quotation marks, and
brackets omitted).
32 Utah Code Ann. § 76-1-601(5)(b) (2003).
7 	No. 20050600
People v. Lopez,30 the New York Supreme Court held that “[w]hile
the display of what appears to be a firearm test requires a
display of something that could reasonably be perceived as a
firearm, there is no requirement that the object need be anything
other than the defendant’s hand.” 31
¶15 	In this case, Ireland clearly gestured in a menacing
manner. 	Although Ireland did not have a real firearm or even a
facsimile of one, he gestured with his concealed hand in order to
influence Reinkoester to turn over the money. 	We accordingly
conclude that Ireland’s concealed gesture constitutes a
representation within the meaning of the statute.
B. 	The Use of a Concealed Gesture Meets the Requirements of
Subsections (i) and (ii) of Utah Code Section 76-1-601(5)
¶16 	Having concluded that Ireland’s gesture qualifies as a
representation, we return to the statutory definition of a
dangerous weapon. 	To qualify as the use of a “dangerous weapon,”
a defendant’s representation must also satisfy one of the
following requirements: 	(i) the use of the representation must
lead “the victim to reasonably believe the item is likely to
cause death or serious bodily injury” or (ii) the defendant must
represent “to the victim verbally or in any other manner that he
is in control of” the representation. 32
¶17 	Ireland argues that his conduct did not satisfy either
requirement. 	He reasons that even if a concealed hand gesture
qualifies as a representation under the first part of the
statute, the structure of the statute and its use of the
conjunction “and” requires an additional representation, verbal
or otherwise, that the robber is in control of or will use the
dangerous weapon. 	In short, Ireland argues that the statute
requires something in addition to the mere use of a facsimile or
representation.
¶18 	The way in which section 76-1-601(5) is structured does
suggest that subsections (i) and (ii) will add additional
requirements beyond what is contained in subsection (5)(b)
itself. 	But the actual verbiage of the subsections belies that
suggestion. 	Indeed, virtually any use of a representation will

33 Id. § 76-1-601(5)(b)(i).
34 Id. § 76-1-601(5)(b)(ii).
35 See Gardner v. Chrysler Corp., 89 F.3d 729, 736 (10th
Cir. 1996) (refusing to adopt an interpretation that would
“essentially eliminate[]” a provision from the statute).
36 Id.; Chris & Dick’s Lumber & Hardware v. Tax Comm’n, 791
P.2d 511, 516 (1990) (Howe, J., dissenting).
37 Horne v. Horne, 737 P.2d 244, 247 (Utah Ct. App. 1987)
(citations and internal quotation marks omitted); State v. Ewell,
883 P.2d 1360, 1363 (Utah Ct. App. 1993).
No. 20050600 	8
necessarily satisfy the requirements of either subsection (i) or
(ii). 	For example, one using a “representation” of a dangerous
weapon will necessarily represent to the victim “verbally or in
any other manner that he is in control of such an item” (emphasis
added). 33 	Similarly, one using a “representation” of a dangerous
weapon will almost always use it to lead the victim to believe
that “the item is likely to cause death or serious bodily
injury.” 34 	Indeed, in this case, Ireland’s representation,
almost by definition, satisfies the requirements of both
subsections (i) and (ii).
¶19 	Although the structure of the statute is confusing, we
are unwilling to rework the statutory terms as Ireland
suggests. 35 	In our interpretive rubric, the plain language of
the statute trumps any deference to seemingly contradictory
structure. 	Thus, even though the statutory structure is somewhat
inconsistent with its actual language, we will not attempt to
rewrite it.
¶20 	As Ireland rightly states, we try to avoid surplusage
in statutory interpretation. 36 	But in this case, avoiding the
suggestion of surplusage creates untenable interpretive options.
Adopting Ireland’s plus-factor interpretation would require us to
ignore the plain meaning of the language employed by the
legislature either by interpreting “representation” in an unduly
narrow manner or by ignoring the phrase “in any other manner”
found in subsection (b)(i). 	Another option would be to craft an
additional plus factor out of whole cloth, solely on the basis of
the statutory structure and the statute’s use of the conjunction
“and.” 	But creating additional statutory requirements is not our
role. 	Rather, our role is to interpret the statute “according to
its literal wording unless it is unreasonably confusing or
inoperable.” 37

38 W. Jordan v. Morrison, 656 P.2d 445, 447 (Utah 1982); see
also Kincheloe v. Coca-Cola Bottling Co., 656 P.2d 440, 442 (Utah
1982) (“[A]ny recommended change to [statutory] law should be
addressed to the legislature and not the court.”); State v.
Gibson, 908 P.2d 352, 358 (Utah Ct. App. 1995) (“Of course, if we
have gone further than the Legislature intended, it will be an
easy enough matter for the Legislature to revise the statute to
better accord with its intent.”).
39 Kawamoto v. Fratto, 2000 UT 6, ¶ 17 n.5, 994 P.2d 187;
see also Uzelac v. Thurgood (In re Estate of Thurgood), 2006 UT
46, ¶ 36, 144 P.3d 1083 (“[W]e suggest, and indeed encourage,
that our state legislature clarify the statute to provide more
guidance to courts.”).
40 See, e.g., Minn. Stat. § 609.245 (LEXIS through 2005
Sess.) (dividing aggravated robbery into first degree aggravated
robbery, which is committed with a dangerous weapon or a
facsimile of a dangerous weapon, and second degree aggravated
robbery, which is committed through the implication by word or
act of having a dangerous weapon); N.D. Cent. Code § 12.1-22-01
(LEXIS through 2005 Sess.) (dividing robbery into class A, B, and
C felonies); Or. Rev. Stat. §§ 164.405, .415 (LEXIS through 2005
Sess. of the 73d leg. assembly) (punishing robberies committed
with dangerous weapons as robbery in the first degree and
robberies with representations as robberies in the second
degree); Tenn. Code Ann. §§ 39-13-401 to -403 (LEXIS through 2006
Sess.) (classifying robberies as especially aggravated robbery,
aggravated robbery, and robbery).
9 	No. 20050600
¶21 	Ireland also argues that sustaining a conviction for
aggravated robbery because of the mere use of a representation
destroys the critical distinction between simple and aggravated
robbery. 	While we are sympathetic to Ireland’s argument, it is
an argument appropriately directed to the legislature rather than
to this court. 	Should the legislature wish to maintain such a
distinction or should any part of our “interpretation bring[]
about a result contrary to the intention of the Legislature, it
is a matter for the Legislature to remedy.” 38
¶22 	Although it is not within our purview to rewrite the
statute, we acknowledge the confusing statutory structure and
Ireland’s concern that the statute destroys the distinction
between simple and aggravated robbery, and we encourage the
legislature to consider these matters. 39 	For example, several
states classify robbery in three different tiers: 	simple
robbery, robbery using a facsimile or representation of a
dangerous weapon, and robbery using an actual deadly weapon. 40
Such classifications enable these states to maintain a

41 See, e.g., Conn. Gen. Stat. § 53a-134 (LEXIS through 2006
Supp.) (indicating that a defendant can be found guilty of a
first degree felony for using a representation of a dangerous
weapon but that “it is an affirmative defense that such [a
dangerous weapon] was not a weapon from which a shot could be
discharged”); N.Y. Penal Law § 160.15 (LEXIS through ch. 742,
10/31/2006) (indicating that it is an affirmative defense to
first degree robbery if a defendant can show that a weapon was
not loaded or was inoperable).
42 Utah Code Ann. § 76-1-601(5)(b)(i) (2003).
No. 20050600 	10
distinction between simple and aggravated robbery, while still
punishing the use of representations and facsimiles. 	In other
states, a defendant can be convicted of first degree robbery for
using what appears to be a representation of a dangerous weapon;
however, the charge drops to second degree robbery if the
defendant can show that what appeared to be a dangerous weapon
was not loaded or was inoperable. 41
CONCLUSION
¶23 	We conclude that Ireland’s actions constitute
aggravated robbery under our aggravated robbery statute.
Ireland’s concealed gesture constitutes a representation of a
dangerous weapon. 	Ireland also meets the requirements of
subsections (i) and (ii) of the statute inasmuch as he used the
representation in a manner that led Reinkoester to reasonably
believe the representation was “likely to cause death or serious
bodily injury” 42 and he represented to Reinkoester that he was
“in control” of the item. 	We therefore hold that Ireland was
properly charged with aggravated robbery and affirm the court of
appeals.
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¶24 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.