The Appellate Group

State v. Florez

State v. Florez, 2020 UT App 76 (Harris, J.)


The defendant poked a wire from a sprinkler into a doorknob of a house. The homeowner told the defendant to leave, but he ignored her and kept jiggling the wire in the doorknob. But before police arrived, the defendant stepped away from the house and put his hands on his head. He told police the house was his and that he was the feds. Earlier in the day, he had run into two other neighbors’ houses, asked if they were “the feds,” and left. The jury never heard about his bizarre but ultimately harmless entries into the other houses in the neighborhood. The jury convicted the defendant of attempted burglary, among other things. On appeal, the defendant argued that insufficient evidence supported the attempted burglary charge and that the trial court erred when it denied his request for a lesser-included-offense instruction. He also filed a rule 23B motion to supplement the record, arguing that counsel was ineffective for failing to investigate a potential key witness. The Utah Court of Appeals affirmed his convictions but remanded for further proceedings concerning his 23B motion, holding:

  • The State presented sufficient evidence to allow the jury to infer that the defendant had formed the specific intent to commit a felony inside the house he was attempting to enter to support the attempted burglary conviction. The jury may infer specific intent from conduct and attendant circumstances. 
  • The defendant’s argument concerning the trial court’s refusal to grant a lesser-included-offense instruction is unpreserved as argued on appeal. When a party asks a trial court to take action on a particular legal theory, that party has preserved for appeal only the theory raised and will not be allowed to assign error to the trial court’s ruling based upon a different legal theory.
  • The 23B motion is supported with affidavits containing a nonspeculative allegation of facts not currently in the record. A neighbor was available to testify that the defendant entered his house, apparently on drugs, asked the occupants if they were “the feds,” and then left. The neighbor then observed the defendant barge into another nearby house and start “yelling at the neighbor if they were the feds.” Defendant then left the house, loitered in the street, and ran down the street. The neighbor also spoke with the occupants of the other house who reported that “a crazy person” had just entered their house, asked if they were “the feds,” and then left. This evidence could support a conclusion that trial counsel performed deficiently and prejudiced the defendant’s case by not presenting this witness’s testimony to the jury. This evidence could have made a jury more likely to believe that the defendant’s intent in attempting to enter the victim’s house was merely to annoy her or inquire about “the feds,” rather than to steal something or assault her—making the defendant liable for misdemeanor criminal trespass rather than felony attempted burglary.

Read the full court opinion