The Appellate Group

State v. Lopez

State v. Lopez, 2020 UT App 101 (Orme, J.)


After a trial, a man was convicted of aggravated burglary and attempted aggravated murder. On appeal, he argued that his convictions should have merged and, alternatively, that the merger statute is unconstitutional. The Utah Court of Appeals affirmed his convictions, holding:

  • The district court did not err in finding that the charges did not merge. The aggravated murder conviction contains an anti-merger provision specifically mentioning that aggravated burglary “that constitutes a separate offense does not merge” with aggravated murder. The anti-merger provision also applies to attempted aggravated murder.
  • The anti-merger provision does not violate the uniform operation of laws provision of the Utah Constitution. The defendant is not being treated differently from others who commit attempted aggravated murder on the heels of another aggravating circumstance. The charges could be sustained independent of one another.
  • The anti-merger provision is not unconstitutionally vague. The language clearly defines the proscribed conduct. And merely because the language provides for prosecutorial discretion in deciding when to apply which charges does not necessarily encourage arbitrary enforcement.

Read the full court opinion