Should a finger in a coat pocket during a jewelry store robbery have landed a Salt Lake man a five-to-life prison sentence?
Before the Utah Court of Appeals last Wednesday, an attorney for William Joseph Ireland argued that simply gesturing with his finger in his coat pocket is not enough to convict him on a first-degree felony. A state attorney general argued that the gesture was real enough to cause the store clerk to believe Ireland may have had a gun.
"It was simply a finger in a pocket," argued attorney Joan Watt. Had the clerk not believed it was a gun, the crime would have been simple robbery. According to court testimony, the clerk said he thought Ireland might have had a gun but was not certain.
"It's not a subjective test about how scared the victim was. It's a robbery; the victim is always scared," Watt said. Under Utah's criminal code, there is essentially no difference between Ireland's finger in his pocket and using a real gun, she said.
Watt also argued that Ireland did not verbally indicate he had a gun.
Holding his finger in his jacket pocket before the justices, Deputy Attorney General Brett Delporto argued that Ireland's mere gesture was itself a nonverbal communication.
"That says, 'I have a gun, and I'm going to hurt you,' " Delporto said.
According to police, on Dec. 6, 2003, Ireland entered the Fortier Jewelers at The Gateway mall in Salt Lake City. With his hand in his pocket, he demanded that the clerk give him money. The clerk later said Ireland raised his pocket while making demands. "Give me all the money you have" and "make it fast," the clerk testified Ireland said.
After fleeing the store, Ireland was chased down by the store's manager and surrendered the money. Having pleaded guilty in district court, Ireland was found guilty of aggravated robbery, and the judge sentenced him to five years to life in prison.
"The witness felt that the defendant may have had a weapon in his hand, and the witness testified that he was afraid that he might be shot if he did not comply with the defendant's request," wrote 3rd District Judge Paul Maughan, who ruled that Utah law is clear that anyone who uses, or threatens to use, a dangerous weapon or leads a victim to reasonably believe an item can cause death or harm, is guilty of aggravated robbery.
Delporto said the case is very similar to a 1987 Utah Supreme Court case in which a man entered a credit union with his finger in his pocket and demanded money. The state's high court overturned the aggravated robbery conviction in state vs. Suniville because Utah's law did not cover such actions.
The case prompted the Utah Legislature to amend the law to include anyone who leads a person to believe he has a dangerous weapon.
Appellate Justice Judith Billings asked if one victim believes he will die during a robbery and another does not, does it result in the same crime?
Delporto said a reasonable person must be led to believe a robber has a gun, as opposed to someone pointing a squirt gun.
Watt countered that Ireland's gestures were too "subtle" and that the clerk had to show some other reason to believe he had a gun. She asked the court to send the case back to the district court and reduce the crime to a second-degree felony, which carries a sentence of one to 15 years in prison.
The justices will issue a written ruling in the coming weeks.
E-mail: gfattah@desnews.com