District Court, West Jordan Department The Honorable L.
Douglas Hogan No. 131401054
Alexandra S. McCallum, Attorney for Appellant
D. Reyes and Daniel W. Boyer, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Kate A. Toomey and Diana Hagen concurred.
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.
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.
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.
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.
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.
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).
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.
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."
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.
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 ...