Can aggravated burglary merge with attempted aggravated murder in Utah? State v. Lopez Explained

In State v. Lopez, the Utah Court of Appeals addressed whether aggravated burglary can merge with attempted aggravated murder, and whether Utah’s anti-merger statute violates constitutional principles.

Background and Facts

Lopez broke into his ex-girlfriend’s mother’s home using a hammer, exchanged it for a kitchen knife, and stripped to his underwear to move quietly through the house. He proceeded to the victim’s bedroom and repeatedly stabbed her in the neck, back, face, and arm while choking her. The victim survived the life-threatening injuries. Lopez was convicted of both aggravated burglary and attempted aggravated murder following a jury trial.

Key Legal Issues

Lopez moved to merge his convictions, arguing that aggravated burglary was a predicate felony and lesser included offense that should merge with attempted aggravated murder under State v. Shaffer. He alternatively argued that Utah Code section 76-5-202’s anti-merger provision was unconstitutionally vague and violated equal protection guarantees.

Court’s Analysis and Holding

The court affirmed the convictions, finding that Utah Code section 76-5-202(5)(a) explicitly states that “any aggravating circumstance” including “aggravated burglary” that “constitutes a separate offense does not merge with the crime of aggravated murder.” The court determined this language applies equally to attempted aggravated murder, relying on State v. Martinez which held that attempted murder is simply a derivative of completed murder evaluated using the same statutory elements.

Regarding the constitutional challenges, the court found Lopez was not treated differently from others similarly situated because aggravated burglary could be committed independently of attempted aggravated murder. The statute was not unconstitutionally vague because it clearly defines prohibited conduct and grants prosecutors traditional prosecutorial discretion rather than encouraging arbitrary enforcement.

Practice Implications

This decision reinforces that Utah’s Legislature has explicitly exempted certain offenses from the merger doctrine through clear statutory language. Practitioners should note that the anti-merger provision applies equally to completed and attempted aggravated murder charges. Constitutional challenges to anti-merger statutes face a high burden, particularly when the statute provides clear guidance about prohibited conduct and merely grants traditional prosecutorial discretion in charging decisions.