IN THE UTAH COURT OF APPEALS
State of Utah,
(Not For Official Publication)
Plaintiff and Appellee,
Case No. 20040426-CA
F I L E D
Michael Ray Clegg,
(February 9, 2006)
Defendant and Appellant.
2006 UT App 44
Fifth District, St. George Department, 011501283
The Honorable James L. Shumate
Margaret P. Lindsay and Aaron Dodd, Orem, for
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake
City, for Appellee
Before Judges Bench, Greenwood, and Thorne.
BENCH, Presiding Judge:
Michael Clegg appeals a conviction of theft by deception, a
third degree felony, in violation of Utah Code section 76-6-405.
See Utah Code Ann. § 76-6-405 (2003). We affirm.
Clegg first asserts that the evidence was not sufficient to
sustain his conviction of theft by deception. "To demonstrate
that the evidence is insufficient to support [a] jury verdict,
[Clegg] must marshal the evidence in support of the verdict and
then demonstrate that the evidence is insufficient when viewed in
the light most favorable to the verdict." State v. Hopkins, 1999
UT 98,¶14, 989 P.2d 1065 (quotations and citations omitted).1
1Clegg did not preserve this issue below, and therefore, now
claims plain error and ineffective assistance of counsel on
review. See State v. Weaver, 2005 UT 49,¶18, 122 P.3d 566.
Under the plain error doctrine, after an adequate showing of
insufficient evidence, Clegg must then show "that the
insufficiency was so obvious and fundamental that the trial court
"[T]hree separate components of the 'by deception' element
are imbedded in that language." State v. LeFevre, 825 P.2d 681,
685 (Utah Ct. App. 1992). Clegg asserts that the evidence does
not support a finding of the first and third components. The
first component is that the "defendant's acts satisfied the
statutory definition of deception." Id. "'Deception' occurs
when a person intentionally: . . . [c]reates or confirms by words
or conduct an impression of law or fact that is false and that
the actor does not believe to be true and that is likely to
affect the judgment of another in the transaction." Utah Code
Ann. § 76-6-401(5) (2003) (emphasis added).
Clegg argues that his actions were unlikely to affect the
judgment of his cashier because she failed to follow Wal-Mart
procedures. The "likely to affect the judgment of another"
language, however, is a "separate inquiry from that used to
determine the victim's reliance." LeFevre, 825 P.2d at 686 n.9.
The sole purpose of section 76-6-401 is to
define those words or actions that may be
considered a 'deception.' As such, the
language 'and is likely to affect the
judgment of another in the transaction' is
meant only to test the relationship between
the falsehood and the transaction, so as to
determine if a deception exists.
Id. Therefore, the definition turns not on the cashier's
actions, but on Clegg's. When viewing Clegg's actions in the
light most favorable to the verdict, the evidence was sufficient
to satisfy "the statutory definition of deception." Id. at 685.2
The third component of the "by deception" element is "that
the victim relied upon the deception, at least to some extent, in
parting with property." Id. Clegg asserts that because the
cashier failed to follow proper procedures in accepting Clegg's
erred in submitting the case to the jury." State v. Holgate,
2000 UT 74,¶17, 10 P.3d 346 (footnote omitted). Because we
conclude that the evidence was sufficient to support the
conviction, any further analysis of plain error or ineffective
assistance of counsel is unnecessary.
2Further, whether Clegg knew that his misrepresentations
were false is a question of credibility, a determination left to
the jury's judgment. See State v. Workman, 852 P.2d 981, 984
(Utah 1993) (holding that a jury serves as the exclusive judge of
the credibility of witnesses).
representation of the price, "her reliance was inappropriate."
The appropriateness of the reliance, however, is not the relevant
inquiry. Rather, the necessary level of reliance is determined
using a materiality test. See id. at 687. "'Materiality seems
to require that the victim to some extent must believe the
pretense to be true, but the greater focus is the objective issue
of whether the misrepresentation was instrumental in effecting
the transfer of [property].'" Id. (quoting State v. Schneider,
715 P.2d 297, 300 (Ariz. Ct. App. 1986)). The evidence reflects
that, though the cashier had doubts, she still relied upon
Clegg's misrepresentation of the price in completing the
transaction. The evidence was therefore sufficient to show
Clegg next contends that his actions constituted puffing.
He argues that the court therefore erred in not instructing the
jury on Utah Code section 76-6-405(2), which provides:
Theft by deception does not occur, however,
when there is only falsity as to matters
having no pecuniary significance, or puffing
by statements unlikely to deceive ordinary
persons in the group addressed. "Puffing"
means an exaggerated commendation of wares or
worth in communications addressed to the
public or to a class or group.
Utah Code Ann. § 76-6-405(2) (2003). Clegg's actions, however,
did not constitute puffing. He did not overstate the value of
the items but rather misrepresented the price by presenting an
incorrect price tag. Because Clegg's actions did not constitute
puffing, the court did not err in omitting section 76-6-405(2)
from the jury instructions. Thus, Clegg's plain error claim
Finally, Clegg argues that the court committed plain error
by making improper statements in the jury's presence. First,
Clegg asserts that the court's statements about his wife's
employment as a pharmacist at Wal-Mart put into question the
court's impartiality. These statements were gratuitous, but
3Clegg also argues that his trial counsel rendered
ineffective assistance of counsel for failing to request the
instruction. Clegg's trial counsel did not perform deficiently
by not insisting upon an irrelevant jury instruction, and
therefore, Clegg's ineffective assistance of counsel claim also
fails. See State v. Litherland, 2000 UT 76,¶¶16-17, 12 P.3d 92
(stating that a claim of ineffective assistance of counsel
requires a showing of deficient performance).
counsel did not file a motion to recuse. In any event, because
Clegg did not show that "there is a reasonable likelihood of a
more favorable outcome," absent the court's statements, he did
not establish plain error. State v. Dunn, 850 P.2d 1201, 1208
(Utah 1993). Clegg further contends that the court improperly
admonished the defendant in the jury's presence, and by doing so
"demonstrated bias against him which influenced the jury." Such
an admonishment should generally be done outside the jury's
presence. However, the "[m]ere expressions of impatience,
dissatisfaction, annoyance, and even anger, are insufficient to
establish the existence of bias or partiality." Campbell, Maack
& Sessions v. DeBry, 2001 UT App 397,¶25, 38 P.3d 984 (quotations
and citation omitted). Because the court's statements did not
rise to the level of bias, there was no plain error.
Accordingly, we affirm.
Russell W. Bench,
Pamela T. Greenwood,
Associate Presiding Judge
William A. Thorne Jr., Judge