2020 UT App 101

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ISMAEL ARENAS LOPEZ,

Appellant.

Opinion

No. 20190236-CA

Filed June 25, 2020

Fifth District Court, Cedar City Department

The Honorable Keith C. Barnes

No. 161500523

Jose A. Loayza, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, 

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Ismael Arenas Lopez challenges his convictions for 

aggravated burglary and attempted aggravated murder. He 

argues that the district court erred in ruling that Utah Code

section 76-5-202 prohibited the merging of his convictions. Lopez 

alternatively argues that the statute is unconstitutional. We 

affirm. 
State v. Lopez

20190236-CA 2 2020 UT App 101

BACKGROUND1

¶2 In the wee hours of the morning on November 6, 2016, 

Lopez, using a hammer, broke into his ex-girlfriend’s home

through a kitchen window. Once inside, he exchanged the 

hammer for a serrated knife he found in the kitchen, and he 

stripped down to his underpants and socks so that he could

move about the house more quietly. Lopez then proceeded to the 

upstairs bedroom of his ex-girlfriend’s mother (Victim). He 

approached Victim, who was sleeping, and began choking her 

and “repeatedly” stabbed her “in the neck, back, face, and arm” 

with the knife. Victim started screaming and fought back, 

scratching Lopez’s bare chest. 

¶3 Victim’s husband, who was sleeping on the downstairs 

couch, tackled Lopez as he fled the bedroom and attempted to 

exit the home. Victim’s husband held Lopez until police arrived. 

 

1. We were not favored with a trial transcript and accordingly 

recite the facts from the initial probable cause statement and 

other facts gleaned from the record, to which Lopez has 

stipulated on appeal. Ordinarily, an appellant’s failure to include 

a trial transcript will result in a summary affirmance, given the 

difficulty for the appellant to demonstrate preservation, see Utah 

R. App. P. 24(a)(5)(B); the appellate court’s inability to assess 

prejudice if it concludes an error was made, see State v. Courtney, 

2017 UT App 172, ¶ 22, 424 P.3d 198; and the appellate court’s 

inclination to “presume the regularity of the proceedings 

below,” see State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278, in the 

absence of a transcript. In this case, however, Lopez has 

stipulated to the relevant facts, and we are therefore able to 

address the legal issues he raises. We do remind appellants that 

failure to include a trial transcript, absent rare circumstances 

such as those presented in the current appeal, will almost always 

culminate in affirmance.
State v. Lopez

20190236-CA 3 2020 UT App 101

The injuries to Victim “were serious and life threatening,” but, 

fortunately, she survived the ordeal.

¶4 The State charged Lopez with aggravated burglary and

attempted aggravated murder. Following a two-day trial, a jury 

convicted Lopez on both counts. Before sentencing, Lopez 

moved to have his aggravated burglary conviction merged with 

his attempted aggravated murder conviction. Relying on State v. 

Shaffer, 725 P.2d 1301 (Utah 1986), Lopez argued that 

“aggravated burglary is a predicate felony for attempted . . . 

aggravated murder and a lesser included offense and merges 

with the greater offense of attempted . . . aggravated murder.”

Lopez further argued that Utah Code section 76-5-202, which 

provides that “any aggravating circumstance,” including 

“aggravated burglary,” “that constitutes a separate offense does 

not merge with the crime of aggravated murder,” see Utah Code 

Ann. § 76-5-202(1)(d), (5)(a) (LexisNexis Supp. 2019) (the 

anti-merger provision),

2 is “unconstitutional on its face or in its 

application to [Lopez].” Lopez asserted that the statute was 

“unconstitutionally vague, overbroad, and violates [his] due 

process rights . . . and is violative of the Equal Protection 

Clause.”

¶5 The district court denied Lopez’s motion, concluding that 

the plain language of the anti-merger provision “leave[s] no 

doubt that the legislature intended that [aggravated burglary]

does not merge with [attempted aggravated murder].” It also 

rejected his challenge to the constitutionality of the anti-merger 

provision.

¶6 Lopez appeals. 

 

2. Because the relevant provisions of the Utah Code in effect at 

the time Lopez committed his offenses do not materially differ 

from those currently in effect, we cite the current version of the 

code for convenience. 
State v. Lopez

20190236-CA 4 2020 UT App 101

ISSUES AND STANDARDS OF REVIEW

¶7 Lopez argues that the district court erred by not merging 

his convictions. “Merger issues present questions of law, which 

we review for correctness.” State v. Diaz, 2002 UT App 288, ¶ 10, 

55 P.3d 1131.

¶8 Alternatively, Lopez argues that Utah Code section 

76-5-202 “is unconstitutionally vague and violates equal 

protection guarantees.”3 Lopez’s constitutional challenge 

presents a question of law, which we review de novo, 

“recognizing that all statutes are presumed to be constitutional 

and the party challenging a statute bears the burden of proving 

its invalidity.” State v. Roberts, 2015 UT 24, ¶ 16, 345 P.3d 1226

(quotation simplified). 

ANALYSIS

I. Merger

¶9 “The question of merger arises when two statutes or two 

portions of a single statute proscribe certain conduct, and the 

question is whether the defendant can be punished twice 

 

3. It is not entirely clear whether Lopez is arguing that in 

addition to the statute being unconstitutional as applied to him,

it is also unconstitutional on its face. But because we hold that 

the statute is not unconstitutional as applied to Lopez, we need 

not separately consider any potential claim of it being 

unconstitutional on its face. See State v. Herrera, 1999 UT 64, ¶ 50, 

993 P.2d 854 (holding that because “[f]acial challenges succeed 

. . . only if the statutes at issue are incapable of any valid 

application,” the defendant’s “facial challenge fails a fortiori”

where the court holds that the challenged statute was 

constitutional as applied to him).
State v. Lopez

20190236-CA 5 2020 UT App 101

because his conduct violates both proscriptions.” State v. Lopez, 

2004 UT App 410, ¶ 4, 103 P.3d 153 (quotation simplified). Utah 

Code section 76-1-402 provides that “when the same act of a 

defendant under a single criminal episode shall establish 

offenses which may be punished in different ways under 

different provisions of this code, the act shall be punishable 

under only one such provision.” Utah Code Ann. § 76-1-402(1) 

(LexisNexis 2017). And when one offense is a lesser-included 

offense of another charged offense, a defendant cannot be 

charged and convicted of both. See id. § 76-1-402(3). But the 

Legislature may “exempt[] a statute from the requirements of the 

merger doctrine,” provided that “an explicit indication of 

legislative intent is present in the specific offense statute.” State 

v. Bond, 2015 UT 88, ¶ 70, 361 P.3d 104 (quotation simplified). 

¶10 In the present case, the aggravated murder statute 

contains the anti-merger provision, which specifies that “any 

aggravating circumstance,” including “aggravated burglary,” 

“that constitutes a separate offense does not merge with the 

crime of aggravated murder.” Utah Code Ann. § 76-5-202(1)(d), 

(5)(a) (Supp. 2019). “The plain language of [the anti-merger 

provision] . . . can leave no doubt that the Legislature intended 

that [aggravated burglary] does not merge with the homicide 

conviction.” See Bond, 2015 UT 88, ¶ 71. Lopez, however, argues 

that the district court “erred by not looking at the reality of what 

constituted the ‘offense’ in fact” and “[i]nstead, . . . allow[ing]

itself to be guided by a conceivable conceptual definitional 

distinction to find ‘separate’ offenses.”4 Lopez also argues that 

 

4. In making this argument, Lopez relies on State v. Shaffer, 725 

P.2d 1301 (Utah 1986). In that case, our Supreme Court 

determined that under the Utah Code in effect at the time, the 

defendant’s aggravated burglary offense “was a necessary 

element to proof of first degree felony murder” and thus was a 

“lesser included offense of first degree felony murder,” thereby 

necessitating the merging of the two convictions. Id. at 1313. But 

(continued...)
State v. Lopez

20190236-CA 6 2020 UT App 101

because the anti-merger provision does not explicitly reference 

attempted aggravated murder, it does not apply to his case. We 

disagree on both counts

¶11 First, under the anti-merger provision, aggravated 

burglary “constitutes a separate offense [and] does not merge 

with the crime of [attempted] aggravated murder.” See Utah 

Code Ann. § 76-5-202(5)(a). Cf. Bond, 2015 UT 88, ¶ 70 (“[W]here 

the Legislature has designated a statute as an enhancing statute, 

the merger doctrine has no effect.”). Here, Lopez committed 

aggravated burglary by unlawfully entering Victim’s home 

“with intent to commit . . . a felony [or] an assault on [Victim],” 

see Utah Code Ann. § 76-6-202(1)(a), (c) (2017), and while 

committing the burglary, “caus[ing] bodily injury to,” or 

“us[ing] . . . a dangerous weapon against” Victim, see id. 

§ 76-6-203(1)(a)–(b). Lopez then committed attempted 

aggravated murder when he took “a substantial step toward,” 

see id. § 76-4-101(1)(a), “intentionally . . . caus[ing] the death of 

[Victim],” see id. § 76-5-201(1)(a), “incident to an act, scheme, 

course of conduct, or criminal episode during which [he] 

 

(...continued)

prior to 2008 the aggravated murder statute did not contain the

anti-merger provision, see Utah Code Ann. § 76-5-202 

(LexisNexis 2008), and the court in Shaffer concluded that the 

generally applicable lesser-included-offense statute directed it to 

merge the convictions, 725 P.2d at 1313. By the time Lopez 

committed his crimes in 2016, however, the Legislature had 

added the anti-merger provision, explicitly prohibiting courts 

from merging aggravated burglary with aggravated murder. See 

Utah Code Ann. § 76-5-202(5) (Supp. 2016). Thus, Shaffer is not 

controlling on this issue. To the extent that Lopez argues that 

Shaffer requires the merger of his convictions under the United 

States or Utah constitutions, Lopez is mistaken because the 

Court explicitly noted that it did not reach the constitutional 

question. See 725 P.2d at 1312.
State v. Lopez

20190236-CA 7 2020 UT App 101

committed or attempted to commit . . . aggravated burglary,” see

id. § 76-5-202(1)(d) (Supp. 2019). While aggravated burglary is an 

aggravating circumstance, which elevates Lopez’s attempted 

murder offense to attempted aggravated murder, it is clearly a 

separate offense from attempted aggravated murder as the latter 

requires the intent to cause death. The two offenses therefore do 

not merge given the mandate of the anti-merger provision.

¶12 Second, the anti-merger provision applies equally to 

attempted aggravated murder and completed aggravated 

murder. We recently dealt with a nearly identical argument in 

State v. Martinez, 2019 UT App 166, 452 P.3d 496, cert. granted, 462 

P.3d 798 (Utah 2020), concerning a similar provision in the 

murder statute, id. ¶ 23. Compare Utah Code Ann.

§ 76-5-203(5)(a) (2017) (“Any predicate offense . . . that 

constitutes a separate offense does not merge with the crime of 

murder.”), with id. § 76-5-202(5)(a) (Supp. 2019) (“Any 

aggravating circumstance . . . that constitutes a separate offense 

does not merge with the crime of aggravated murder.”). There, 

Martinez made the same argument that Lopez now advances, 

namely that the language barring merger “does not apply to 

attempt crimes, because the statute states that the enumerated 

predicate offenses are prohibited from merging with ‘murder’ 

and does not explicitly mention attempted murder.” Martinez, 

2019 UT App 166, ¶ 23. We rejected Martinez’s argument, id.,

and so we are bound to reject Lopez’s argument for the same 

reasons, see State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (“Under 

the doctrine of horizontal stare decisis, the first decision by a 

court on a particular question of law governs later decisions by 

the same court” and “has equal application when one panel of a 

multi-panel appellate court is faced with a prior decision of a 

different panel.”) (quotation simplified). 

¶13 In Martinez, we held that attempted murder was simply a 

derivative of the crime of murder and the two offenses “are 

evaluated using the same statutory elements,” and thus Utah 

Code section 76-5-203(5)(a) applied with equal force to the 
State v. Lopez

20190236-CA 8 2020 UT App 101

attempt, prohibiting attempted murder from being merged with 

a predicate offense. 2019 UT App 166, ¶ 23. This same reasoning 

applies here. Because “both [aggravated] murder and attempted 

[aggravated] murder are evaluated using the same statutory 

elements, the prohibition against [aggravated burglary] merging 

with [aggravated] murder also prevents that offense from 

merging with attempted [aggravated] murder.” See id.

¶14 Thus, the district court did not err in denying Lopez’s 

motion to merge the two convictions. The anti-merger provision, 

especially when read in light of Martinez, prohibited such a 

merger. 

II. Constitutionality 

A. Equal Protection and Uniform Operation of Laws

¶15 Lopez argues that the anti-merger provision violated his 

constitutional rights to equal protection under the United States 

Constitution and the uniform operation of laws provision under 

the Utah Constitution. Specifically, Lopez argues that he “is 

being singled out and treated differently from other persons 

convicted under the aggravated murder statute.” The federal 

Equal Protection Clause and Utah’s Uniform Operation of Laws 

Clause both “require that similarly situated individuals be 

treated alike under the law unless there is a reasonable basis for 

treating them differently.” Met v. State, 2016 UT 51, ¶ 48, 388 

P.3d 447 (quotation simplified). “Because our analysis under the 

uniform operation of laws provision is at least as rigorous as it 

would be under the federal equal protection provision, we limit 

our review to [Lopez’s] state constitutional claims.” See State v. 

Merrill, 2005 UT 34, ¶ 31, 114 P.3d 585. See also Gallivan v. Walker, 

2002 UT 89, ¶ 33, 54 P.3d 1069 (“Utah’s uniform operation of 

laws provision is at least as exacting and, in some circumstances, 

more rigorous than the standard applied under the federal 

constitution.”) (quotation simplified). “To determine whether a 

statute violates the uniform operation of laws, we apply a 
State v. Lopez

20190236-CA 9 2020 UT App 101

three-step analysis: (1) whether the statute creates any 

classifications; (2) whether the classifications impose any 

disparate treatment on persons similarly situated; and (3) if there 

is disparate treatment, whether the legislature had any 

reasonable objective that warrants the disparity.” State v. 

Robinson, 2011 UT 30, ¶ 17, 254 P.3d 183 (quotation simplified). 

Because “[t]he first two steps are threshold inquiries we address 

the third step only if we find that the statute both creates 

classifications and imposes disparate treatment among persons 

similarly situated within those classifications.” Id.

¶16 Here, even assuming for purposes of argument that the 

aggravated murder statute creates classifications among those 

who commit aggravated murder, Lopez’s claim fails under the 

second step of our analysis. Under that step, we must determine 

“whether the classifications impose any disparate treatment on 

persons similarly situated.” Id. (quotation simplified). Lopez 

claims that he is being treated differently from other persons 

similarly situated, i.e., those convicted under the aggravated 

murder statute, because all the other aggravating circumstances 

contained in Utah Code section 76-5-202(1)(d), which the 

anti-merger provision prohibits from merging with aggravated 

murder, could be committed independently of aggravated 

murder, while his aggravated burglary offense could not.5 We 

disagree.

 

5. Lopez’s uniform operation of laws argument is not entirely 

clear. At one point, he also argues that he “is being treated 

differently, more harshly, than other actors who enter a dwelling 

without consent with intent . . . to commit a felony.” This 

statement, however, is unsupported by analysis explaining how 

Lopez is similarly situated to others who, for example, commit a 

burglary but do not attempt murder during the commission of 

the burglary. See generally State v. Outzen, 2017 UT 30, ¶ 19, 408 

P.3d 334 (explaining the applicable analysis for determining 

(continued...)
State v. Lopez

20190236-CA 10 2020 UT App 101

¶17 Lopez could have committed aggravated burglary 

independently of attempted aggravated murder, just as with any 

other aggravating circumstance listed under Utah Code section 

76-5-202(1)(d), because attempted murder is in no sense a 

necessary element of aggravated burglary. Aggravated burglary 

is completed whenever a person “enters or remains unlawfully 

in a building . . . with intent to commit . . . [among other things,] 

a felony [or] an assault on any person,” Utah Code Ann. 

§ 76-6-202(1)(a), (c) (LexisNexis 2017), and while doing so 

“causes bodily injury to any person who is not a participant in 

the crime,” “uses or threatens the immediate use of a dangerous 

weapon against any person who is not a participant in the 

crime,” or “possesses or attempts to use any explosive or 

dangerous weapon,” id. § 76-6-203(1)(a)–(c). The statute does not 

require an attempt to commit murder during the commission of 

a burglary to sustain a charge of aggravated burglary. All that it 

requires is the intent to commit a felony or assault on a person—

 

(...continued)

whether individuals are similarly situated under the uniform 

operation of laws provision of the Utah Constitution). To the 

extent that this is the basis for Lopez’s uniform operation of laws 

argument, we decline to address it further because Lopez fails to 

carry his burden of persuasion on appeal. See State v. Roberts, 

2015 UT 24, ¶ 18, 345 P.3d 1226 (“Rule 24 of the Utah Rules of 

Appellate Procedure prescribes standards for the form, 

organization, and content of a brief on appeal [and] requires that 

the arguments contain the contentions and reasons of the 

appellant with respect to the issues presented with citations to 

the authorities, statutes, and parts of the record relied on. This 

standard for adequate briefing is a subjective standard, and 

determining compliance is left to the discretion of the appellate 

court. . . . [A]ppellants who fail to follow rule 24’s substantive 

requirements will likely fail to persuade the court of the validity 

of their position.”) (quotation simplified). 
State v. Lopez

20190236-CA 11 2020 UT App 101

not the actual commission of such felony or assault, although its 

commission undoubtedly goes a long way in proving that 

intent—and while entering the building with this intent, using or

simply possessing a dangerous weapon or causing bodily injury. 

Thus, the jury could have convicted Lopez of aggravated 

burglary and acquitted him of the attempted aggravated murder 

charge if it concluded (1) that after he broke into the home and 

attacked Victim with the knife he meant only to hurt Victim and 

was not trying to kill her, or (2) he broke into the home and took 

possession of the knife, a dangerous weapon. See id.

¶18 Therefore, under the rationale Lopez advances, he is not 

being treated differently from others who commit attempted 

aggravated murder on the heels of one of the other aggravating 

circumstances contained in Utah Code section 76-5-202(1)(d).

Lopez’s conviction for aggravated burglary could be sustained 

independently of the attempted aggravated murder charge, just 

as all the other aggravating circumstances could be in different 

factual scenarios, and Lopez cannot complain that he is being 

treated differently from others situated similarly to him.6 Thus, 

 

6. In making this argument, Lopez seems to confuse his 

convictions and the corresponding elements of the two crimes 

for which he was convicted. Attempted aggravated murder is 

not a necessary element of aggravated burglary. Rather, 

aggravated burglary in this case was a necessary element to 

elevate Lopez’s attempted murder charge to attempted 

aggravated murder. Compare Utah Code Ann. § 76-5-202(1)(d) 

(LexisNexis Supp. 2019) (stating that murder is elevated to 

aggravated murder if during the course of the murder the 

defendant committed an aggravated burglary), with id. 

§ 76-6-203(1)(a)–(c) (2017) (stating that aggravated burglary is 

committed if during the commission of a burglary the person

“causes bodily injury to any person who is not a participant in 

the crime,” “uses or threatens the immediate use of a dangerous 

weapon against any person who is not a participant in the 

(continued...)
State v. Lopez

20190236-CA 12 2020 UT App 101

the anti-merger provision did not unconstitutionally violate 

Lopez’s right to the uniform operation of laws. 

B. Vagueness

¶19 Lopez argues that the anti-merger provision is 

unconstitutionally vague because it does not clearly 

“communicate to ordinary persons . . . that [they] would be 

charged, convicted, and sentenced for [their] commission of 

aggravated burglary, in addition to aggravated murder.”7 The 

vagueness doctrine encompasses two considerations. State v. 

Garcia, 2017 UT 53, ¶ 56, 424 P.3d 171. “First, a criminal statute is 

not unconstitutionally vague if it defines the criminal offense 

 

(...continued)

crime,” or “possesses or attempts to use any explosive or 

dangerous weapon”). 

7. Lopez also argues that “it is not clear if the section applies 

equally to attempted murder cases” to elevate those crimes to 

attempted aggravated murder. This argument is unavailing 

because “[a]ttempt crimes are derivatives of completed crimes, 

and the express language of both the completed crime statute 

and the attempt statute determines the elements of the attempt 

crime.” State v. Casey, 2003 UT 55, ¶ 13, 82 P.3d 1106. Accord State 

v. Martinez, 2019 UT App 166, ¶ 23, 452 P.3d 496, cert. granted,

462 P.3d 798 (Utah 2020). And we fail to see how this reasoning 

would not also apply to those crimes and put ordinary persons

on notice that if their conduct fit within the statute, then their 

attempted aggravated murder crime would not be merged with 

the aggravating crime, even though they did not actually 

complete the murder. Furthermore, Utah’s attempt statute 

clearly informs individuals that they can be convicted as if they 

completed the actual crime, even though for whatever reason 

they were unable to complete it. See Utah Code Ann. 

§ 76-4-101(1) (LexisNexis 2017).
State v. Lopez

20190236-CA 13 2020 UT App 101

with sufficient definiteness that ordinary people can understand 

what conduct is prohibited and in a manner that does not 

encourage arbitrary and discriminatory enforcement.” Id. 

(quotation simplified). And “second, when a vagueness 

challenge does not involve First Amendment freedoms, this 

court examines the statute only in light of the facts of the case at 

hand.” Id. (quotation simplified).

¶20 Regarding the first step, we disagree with Lopez that the 

statute is so unclear that an ordinary person would be unable to 

understand what conduct is prohibited and that if the prohibited

conduct was undertaken, that the crimes would not merge. First,

the statute clearly states that if a person “intentionally or 

knowingly causes the death of another,” and that death “was 

committed incident to an act, scheme, course of conduct, or 

criminal episode during which the actor committed or attempted 

to commit . . . aggravated burglary,” then they would be 

punished for aggravated murder. Utah Code Ann. 

§ 76-5-202(1)(d) (LexisNexis Supp. 2019). Next, it states that “any 

aggravating circumstance described . . . does not merge with the 

crime of aggravated murder” and “a person who is convicted of 

aggravated murder, based on an aggravating circumstance 

described . . . that constitutes a separate offense may also be 

convicted, and punished for, the separate offense.” Id. 

§ 76-5-202(5)(a)–(b). This language is clear because it

“specifically defines the types of [prohibited activity] and 

describes the act required to violate the statute” and its 

corresponding consequences, and Lopez “cannot persuasively 

argue that he would not have known that [entering Victim’s 

home and nearly killing her with a knife] would constitute acts 

sufficient to violate the [statute].” See State v. Pence, 2018 UT App 

198, ¶ 22, 437 P.3d 475.

¶21 Nor do these sections encourage arbitrary enforcement. 

“The United States Supreme Court has stated that to avoid 

unconstitutional vagueness, a statute must ‘establish minimal 

guidelines to govern law enforcement’ such that it avoids 
State v. Lopez

20190236-CA 14 2020 UT App 101

entrusting ‘lawmaking to the moment-to-moment judgment of 

the policeman on his beat.’” State v. Green, 2004 UT 76, ¶ 50, 99 

P.3d 820 (quoting Kolender v. Lawson, 461 U.S. 352, 358, 360 

(1983)). Lopez argues that because the anti-merger provision

“provides that the aggravating circumstance and the aggravated 

murder do not merge,” but then “states a person ‘may also’ be 

convicted of and punished for the separate offense as well as 

aggravated murder,” that these discrepancies encourage 

arbitrary enforcement. Lopez argues that this is because “[i]n 

one jurisdiction [he] could have easily been charged with 

aggravated burglary while here he is charged and convicted of 

both.” Lopez is incorrect.

¶22 Lopez’s argument is unavailing because his complaint

concerns only the statute’s grant of traditional prosecutorial 

discretion, not its supposed encouragement of arbitrary 

enforcement. Here, the statute’s use of the term “may” grants 

prosecutors the “traditional prosecutorial discretion” they have 

“in determining what charges to pursue.” State v. Angilau, 2011 

UT 3, ¶ 28, 245 P.3d 745 (quotation simplified). See Bordenkircher 

v. Hayes, 434 U.S. 357, 364 (1978) (holding that the “decision 

whether or not to prosecute, and what charge to file . . . , 

generally rests entirely in [the prosecutor’s] discretion,” so long 

as it is not “based upon an unjustifiable standard such as race, 

religion, or other arbitrary classification”); State v. Martinez, 2013 

UT 23, ¶ 17, 304 P.3d 54 (holding that “[t]he decision to charge 

aggravated murder . . . is a classic exercise of prosecutorial 

discretion”). And a prosecutor’s ability to determine whether to 

bring charges based on the particular facts of each case does not 

amount to arbitrary enforcement. See State v. Mohi, 901 P.2d 991, 

1003 (Utah 1995) (explaining that “traditional prosecutor[ial]

discretion” encompasses “selecting a charge to fit the 

circumstances of a defendant and his or her alleged acts” and is 

not a violation of the uniform operation of laws).

¶23 Accordingly, the complained-of language does not 

encourage arbitrary enforcement. While it does grant 
State v. Lopez

20190236-CA 15 2020 UT App 101

prosecutors discretion in deciding to charge conduct that clearly 

violates the statute, it does not leave law enforcement officials 

who encounter Lopez’s circumstances free “to pursue their own 

personal predilections in determining the applicability of [the] 

statute.” See Green, 2004 UT 76, ¶ 51. 

¶24 Therefore, Utah Code section 76-5-202 is not 

unconstitutionally vague because it is straightforward and 

clearly informs an individual of ordinary intelligence that if 

during the commission of an aggravated burglary, he attempts 

an aggravated murder, he could be charged with both crimes,

and those crimes would not merge. The statute also does not 

encourage arbitrary enforcement, because it simply grants 

prosecutors the traditional discretion they have to determine if 

charges should be brought and, if so, which charges.

CONCLUSION

¶25 The district court did not err in declining to merge 

Lopez’s convictions because the anti-merger provision in Utah 

Code section 76-5-202(5) prohibited their merger. The district 

court also did not err in finding that the anti-merger provision 

was constitutional because the provision does not violate equal 

protection or the uniform operation of laws, and it is not 

unconstitutionally vague. 

¶26 Affirmed.