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State v. Gallegos

Court of Appeals of Utah

June 14, 2018

State of Utah, Appellee,
v.
Stephanie Marie Gallegos, Appellant.

          Third District Court, West Jordan Department The Honorable L. Douglas Hogan No. 131401054

          Alexandra S. McCallum, Attorney for Appellant

          Sean D. Reyes and Daniel W. Boyer, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.

          MORTENSEN, JUDGE.

         ¶1 During a birthday dance party gone wrong, Stephanie Marie Gallegos and a group of celebrators formed a semicircle around Victim and shouted expletives at her before breaking into an all-out melee. A member of the group hit Victim on the side of the head with a beer mug and pushed her over a table. Victim may have blacked out as she was kicked on the ground. A security video showed Gallegos eventually being pulled from the brawl. Victim sustained a broken nose, broken toe, a torn ear, and scrapes and bruises. The State charged Gallegos for her involvement in the beating, and a jury convicted her as an accomplice to assault. Gallegos appeals, contending that the evidence at trial was insufficient to support her conviction and that the conviction should be reversed for prosecutorial misconduct. We affirm.

         BACKGROUND[1]

         ¶2 Gallegos and a group of her friends were at a dance club celebrating Gallegos's birthday. Victim happened to be at the same club that evening. As Victim and her friend exited the restroom, the door swung open and bumped one of Gallegos's friends. A member of Gallegos's party warned Victim's friend to "watch yourself." Victim's friend apologized, but Gallegos's friend repeated her warning. Victim interjected, and Gallegos and her friends began to focus their aggression on her.

         ¶3 Gallegos and three other women stood up and formed a semicircle around Victim. They shouted profanities at Victim, who testified that she felt threatened by the group's verbal attacks. Gallegos's friend eventually shoved Victim, and Victim retaliated with a punch. A security video shows the group, including Gallegos, converging on Victim, advancing forward, and forcing Victim backward several feet toward a wall. One of the women hit Victim on the side of the head with a beer mug. Victim was eventually thrown over a table and toppled to the ground.

         ¶4 The women kicked and hit Victim and pulled her hair while she lay on the ground in a fetal position. Others joined the fight, but Victim could not see anyone's face because of her position. Victim testified that she "might have lost consciousness" during the brawl.

         ¶5 Security personnel eventually broke up the fight. The security video shows Gallegos being yanked from the fray. Victim was treated for a broken nose, a torn ear, and many scrapes and bruises. Three years after the attack, Victim still reported difficulty breathing as a result of her broken nose and doctors have recommended nasal surgery.

         ¶6 After the beating, Victim identified Gallegos as "one of the girls." Victim's friend and other club patrons also identified Gallegos as one of the people involved in the skirmish. Police detained Gallegos at the scene and the State eventually charged her with assault, which was enhanced to a third degree felony for having acted "in concert with two or more persons." See Utah Code Ann. § 76-3-203.1(2)(a) (LexisNexis 2017).

         ¶7 At trial, Gallegos moved for a directed verdict. She argued, "The State did not make a prima facie case that [she] assaulted the victim" and that "there's been no evidence that her activity led to the substantial bodily injury, or that there was any meeting of the minds, no testimony of people saying jump her, no party liability to attach that to." The trial court denied the motion.

         ¶8 Also at trial, the defense called Gallegos's friend (Witness), who was present during the altercation, to testify. Witness testified that she believed Gallegos jumped in to break up the fight rather than to assault Victim. However, Witness testified that Gallegos was hit in the face and eventually began throwing punches. Witness testified that the fight did not seem to be directed at a particular person, but rather was "all amongst themselves. . . . just arms flying and hitting whoever was the closest."

         ¶9 Finally, during rebuttal on closing argument, the State explained accomplice liability and argued,

This is the same theory applied at a robbery. The getaway driver is just as guilty as the person who's inside. They may treat it differently in sentencing, but again you guys don't worry about sentencing. All you guys are there to determine is whether . . . she's guilty.

         The State also offered during closing argument,

This is, like I said, just a gang beating. In my opinion, not in a street gang sense of the term, but they are ganging ...

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