State v. Bird , 345 P.3d 1141 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 7
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
STATE OF UTAH ,
Petitioner,
v.
DUSTIN LYNN BIRD ,
Respondent.
No. 20120906
Filed January 23, 2015
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable William W. Barrett
No. 091908403
Attorneys:
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Att’y Gen.,
Salt Lake City, for petitioner
Linda M. Jones, Noella A. Sudbury, Salt Lake City, for respondent
JUSTICE PARRISH authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE DURHAM , and
JUDGE ELIZABETH HRUBY-MILLS joined.
JUSTICE LEE authored a dissenting opinion.
Having recused himself, ASSOCIATE CHIEF JUSTICE NEHRING does
not participate herein; JUDGE ELIZABETH HRUBY-MILLS sat.
JUSTICE PARRISH , opinion of the Court:
INTRODUCTION
¶1 On certiorari, we are asked to review the court of appeals’
ruling that the trial court erred by not providing a mens rea jury
instruction for the charge of failure to respond to an officer’s signal
to stop under Utah Code section 41-6a-210. We are also asked to
determine whether the court of appeals erred by failing to provide
guidance on remand regarding a correct jury instruction. We affirm
the court of appeals, but exercise our discretion to provide such
guidance.
STATE v. BIRD
Opinion of the Court
BACKGROUND
¶2 On the evening of October 12, 2009, Salt Lake City police
officer Alma Sweeny was patrolling the Glendale area in an
unmarked police vehicle. Officer Sweeny drove past a blue Ford
Mustang and observed that the driver, Dustin Lynn Bird, and the
passenger looked “nervous” and appeared to be “ducking down in
the vehicle.” Officer Sweeny decided to follow the Mustang and
observed the driver and the passenger leaning over, causing the
vehicle to swerve. The Mustang approached a stop sign and slowly
rolled through it without coming to a complete stop. Officer Sweeny
thereafter activated the lights in his police vehicle. The Mustang
immediately slowed in speed but did not pull over. Officer Sweeny
testified that “[t]here were several safe places” to pull over, but the
Mustang continued driving and turned onto a different street. After
making the turn, the Mustang slowed down and pulled to the curb
as though it were going to stop, but then quickly pulled away and
continued driving for approximately half a block before stopping.
While the Mustang was still rolling to a stop, the passenger exited
the vehicle and began running. Officer Sweeny stopped his vehicle
behind the Mustang, stepped out, and walked toward the Mustang.
After seeing the passenger flee, he returned to his vehicle without
saying anything to Mr. Bird. He then drove past the Mustang and
around the corner, where he parked the police vehicle and pursued
the passenger on foot.
¶3 After apprehending the passenger, Officer Sweeny observed
the Mustang pull quickly away from the curb and drive off. Officer
Sweeny called for backup. Shortly thereafter, another officer located
the Mustang and activated his lights. The second officer testified
that Mr. Bird stopped “immediately.” Mr. Bird was then taken into
custody and later charged with failure to respond to an officer’s
signal to stop (failure to respond), a third degree felony under
section 41-6a-210 of the Utah Code. That statute provides that “[a]n
operator who receives a visual or audible signal from a peace officer
to bring the vehicle to a stop may not: . . . attempt to flee or elude a
peace officer by vehicle or other means.” UTAH CODE § 41-6a-
210(1)(a).
¶4 Mr. Bird’s case was tried to a jury. At the close of evidence,
the trial court presented the proposed jury instructions to the parties.
After reviewing the instructions, defense counsel objected to the
elements instruction for the failure-to-respond charge on the
grounds that it did not “outlin[e] the mental state” required for the
offense and that the requisite mental state “need[ed] to be defined
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for the jury.” The trial court disagreed, asserting, “I think it’s got the
elements here.” Defense counsel continued to press for an
instruction that included a mental state of either willfully or
recklessly. Although the State conceded to a “low knowingly”
mental state, the court disagreed, ending the colloquy by stating to
defense counsel, “You’ve made your record, I’ve denied it.” The
court thereafter adopted the following instruction, which tracked the
statutory language:
The defendant, Dustin Lynn Bird is charged with
Failure to Respond to Officer’s Signal to Stop. You
cannot convict him of this offense unless you find
beyond a reasonable doubt, based on the evidence,
each of the following elements:
1. That on or about October 12th, 2009;
2. the defendant, Dustin Lynn Bird;
3. did operate a motor vehicle, and;
4. having received a visible or audible signal from
a peace officer to bring the vehicle to a stop;
5. did attempt to flee or elude a peace officer by
vehicle or other means.
In its closing, the prosecution argued that the jury “[did] not have to
look in to the defendant’s mind” to determine his culpability. The
jury returned a guilty verdict.
¶5 Mr. Bird timely appealed his conviction to the court of
appeals where he argued that the trial court erred “when it failed to
instruct the jury on the mental state required for conviction of failure
to respond to an officer’s signal to stop.” State v. Bird, 2012 UT App
239, ¶ 8, 286 P.3d 11, cert. granted, 298 P.3d 69 (Utah 2013). The court
of appeals agreed with Mr. Bird, reversing the trial court. Id. ¶ 17.
Although the court of appeals remanded Mr. Bird’s case to the trial
court for a new trial, it did not provide guidance for the trial court
on remand. It asked the trial court “to determine in the first instance
what the contents of any requested mental state instruction should
be.” Id. ¶ 17 n.6.
¶6 We granted the State’s petition for certiorari. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶7 “On certiorari, we review the decision of the court of appeals
for correctness” and may affirm its decision “on any ground
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Opinion of the Court
supported in the record.” Collins v. Sandy City Bd. of Adjustment, 2002
UT 77, ¶ 11, 52 P.3d 1267 (internal quotation marks omitted).
ANALYSIS
I. MR. BIRD PRESERVED HIS OBJECTION TO THE
JURY INSTRUCTION
¶8 The State first argues that the court of appeals erred in
finding that Mr. Bird preserved his objection. It contends that Mr.
Bird did not preserve his mens rea argument because his only
request to the trial court was “that the mental states [intentionally,
knowingly, or recklessly] be added to the elements instruction,”
whereas on appeal, Mr. Bird argues that the trial court should have
defined the terms “receive” and “attempt.” In response, Mr. Bird
asserts that his argument on appeal is not that the trial court should
have defined “receive” and “attempt,” but rather that it should have
identified the requisite mental state for the jury because the mens rea
implications of the terms “receive” and “attempt” are unclear. Mr.
Bird also argues that continuing to pursue his objection in the trial
court would have been futile in light of the court’s comment to Mr.
Bird that “[he had] made [his] record.” We agree with the court of
appeals and hold that Mr. Bird sufficiently preserved his jury
instruction objection.
¶9 First, the State misconstrues Mr. Bird’s argument on appeal.
Although his brief includes a discussion of the terms “receive” and
“attempt,” the essence of his argument on appeal is that these terms
incorporate a mens rea element into the failure-to-respond offense.
Mr. Bird has not argued that “receive” and “attempt” should have
been defined to the jury, but instead that the jury should have been
instructed on the mental states embodied by these terms. In short,
Mr. Bird’s argument on appeal is the same argument he made to the
trial court.
¶10 Second, Mr. Bird presented his argument to the trial court in
a clear manner. To preserve an issue, counsel must raise the issue in
the trial court “in such a way that the trial court has an opportunity
to rule on that issue.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366.
We look to three factors to determine whether the trial court had
such an opportunity: (1) whether the issue was raised in a timely
fashion, (2) whether it was raised specifically, (3) and whether the
party “introduce[d] supporting evidence or relevant legal
authority.” Id.
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Opinion of the Court
¶11 In this case, Mr. Bird’s objection was timely. Defense counsel
raised the objection at her first opportunity to object to the proposed
jury instructions. The objection was also specific. The State attempts
to characterize Mr. Bird’s objection as overly narrow. But counsel
objected on the grounds that she did not “see anything outlining the
mental state,” and argued that “there needs to be [an] explanation
that [Mr. Bird acted] . . . recklessly or willfully.” In short, Mr. Bird
specifically objected to the lack of a mens rea instruction for the
failure-to-respond offense as a whole. Finally, although defense
counsel did not introduce relevant legal authority, counsel was
given only a brief moment to review the statute-based language in
the jury instructions and make her objection. Where there was not an
opportunity to gather relevant legal authority, it is sufficient—for
preservation purposes—that counsel relied on the statutory
language in making her objection.
¶12 In sum, we conclude the issue was preserved for appeal
because Mr. Bird presented his argument to the trial court in a way
that gave the court an opportunity to rule on the issue. Thus, we turn
to the merits.
II. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE
JURY ON THE REQUIRED MENS REA
¶13 The court of appeals held that the trial court erred by not
defining the required mental state for each element of the failure to
respond charge under Utah Code section 41-6a-210(1)(a). The failure-
to-respond statute provides, “An operator who receives a visual or
audible signal from a peace officer to bring the vehicle to a stop may
not: . . . attempt to flee or elude a peace officer by vehicle or other
means.” UTAH CODE § 41-6a-210(1)(a) (emphasis added). The court
of appeals explained that the terms “receive” and “attempt” indicate
that the offense “incorporates its own set of mental state
requirements on which [Mr.] Bird was entitled to a jury instruction.”
State v. Bird, 2012 UT App 239, ¶ 15, 286 P.3d 11. It acknowledged
that these are common terms, but reasoned that “the criminal law
mens rea implications of those terms would [not] necessarily be
obvious to a jury.” Id. ¶ 16 n.5. We agree with the court of appeals
and hold that the trial court erred in not instructing the jury on the
mens rea requirement for the failure-to-respond charge.
A. Mens Rea Is a Basic Element of an Offense and
Requires an Instruction
¶14 The general rule for jury instructions is that “an accurate
instruction upon the basic elements of an offense is essential. Failure
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Opinion of the Court
to so instruct constitutes reversible error.” State v. Bluff, 2002 UT 66,
¶ 26, 52 P.3d 1210 (internal quotation marks omitted). A mens rea
element is an “essential element of [an] offense.” State v. Cobo, 60
P.2d 952, 959 (Utah 1936). Thus, failure to instruct the jury as to the
required mens rea, when it is an element of the crime, is reversible
error.
¶15 A trial court should provide the jury with a mens rea
instruction when a criminal statute includes terms that have mens
rea implications. In State v. Stringham, 957 P.2d 602, 609 (Utah Ct.
App. 1998), for example, the defendant was convicted of
communications fraud, but the court of appeals reversed and
remanded for a new trial because the trial court failed to instruct the
jury on the mens rea element. Id. It explained, “It is too long a reach
to suggest the jury divined that defendant had to act intentionally
because such a level of volition is inherent in the concept of
‘devis[ing] a scheme.’” Id. (alteration in original).
¶16 Of particular concern is an instruction that leaves the
erroneous impression that a crime is one of strict liability, when it in
fact contains a mens rea element. In State v. Pearson, the defendant
had been convicted of failure to disclose a transaction to a
government employer. 1999 UT App 220, ¶ 1, 985 P.2d 919. The
court of appeals reversed the conviction, reasoning that “[b]y
selectively applying the mens rea to some, but not all, of the
elements of the offense, the jury could easily have believed
defendant was strictly liable for [the remaining element].” Id. ¶ 12.
¶17 An appropriate jury instruction must also distinguish
between the general and specific intent requirements of an offense.
State v. Potter, 627 P.2d 75, 78 (Utah 1981). In Potter, we remanded for
a new trial “[b]ecause the instructions given . . . failed to explain
adequately the distinction between the general and specific intent
requirements.” Id. Thus, a trial court must instruct the jury on the
proper mens rea for the offense charged. And the instruction must
identify the mens rea implicated by the statutory language, must
include a mens rea for all elements, and must distinguish between
general and specific intent.
B. The Required Mens Rea for Failure to Respond
¶18 In this case, both parties agree that the failure-to-respond
offense includes a mens rea element. Violations of the Utah Traffic
Code, such as this, are strict liability offenses “unless specifically
provided by law.” UTAH CODE § 76-2-101(2). In this case, however,
the terms “receive” and “attempt,” which are contained in the
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Opinion of the Court
statutory language, indicate that this crime includes some level of
mental appreciation. What the parties dispute is whether a jury
instruction that simply lists the statutory elements of the offense is
sufficient to alert the jury to the mens rea element.
¶19 The State argues that because the terms “receive” and
“attempt” are terms of common usage, it was unnecessary to instruct
the jury as to the meaning of these terms. We agree that the jury
would have understood the plain meaning of the terms “receive”
and “attempt.” But we cannot assume that the jury understood the
mens rea implications of these terms. Indeed, mens rea is a “legal
term of art” that ought to be explicitly explained to a jury. See State
v. Jeffs, 2010 UT 49, ¶ 43, 243 P.3d 1250.
¶20 We can expect a lay juror to understand that the term
“receive” contemplates a level of knowledge. See WEBSTER ’S NEW
COLLEGE DICTIONARY 1195 (2007) (including among the definitions
of “receive,” “to apprehend mentally; get knowledge of or
information about”). Therefore, a juror would likely have perceived
that the “receives a visual or audible signal from a peace officer”
element of the offense requires knowledge of the peace officer’s
signal. But we cannot assume that a juror would recognize the
significance of this knowledge requirement as an essential mens rea
element. Thus, it was error for the trial court not to instruct the jury
that the charge included a knowingly mens rea element and define
what would satisfy that element.
¶21 The trial court’s error in not including a mens rea instruction
is even more apparent in the context of the “attempt to flee or elude
a police officer” element. The term “attempt” carries a distinct
meaning in criminal law that we cannot expect a lay juror to
understand without instruction. The common dictionary definition
of attempt is “to try, solicit,” or “to make an effort to do, get, have,
etc.” Id. at 91. In contrast, the statutory definition of attempt means
something more than to try or make an effort. As explained in Utah
Code section 76-4-101(1), attempt means to “engage[] in conduct
constituting a substantial step toward commission of the crime” and
to “intend[] to commit the crime.” Thus, the statutory meaning of
attempt connotes a conscious decision with more specific action than
does the common dictionary definition of the term.
¶22 Although the term “attempt” implicates a mental state
requirement, it does not necessarily indicate the applicable level of
mens rea. For example, the crime of assault, like failure to respond,
includes attempt as one of its elements. UTAH CODE § 76-5-102(1)
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Opinion of the Court
(“Assault is . . . an attempt, with unlawful force or violence, to do
bodily injury to another . . . .”). But we have explained that the
assault statute itself does not prescribe the requisite mental state.
State v. Hutchings, 2012 UT 50, ¶ 12, 285 P.3d 1183. In other words,
the requisite mens rea is not apparent from the statute’s use of the
term “attempt.” Utah Code section 76-2-102 explains that “intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility” “when the definition of the offense does not specify
a culpable mental state and the offense does not involve strict
liability.” Thus, intent, knowledge, or recklessness must “be found
to establish criminal responsibility” in the context of assault. Id. ¶ 12.
¶23 In the context of the failure-to-respond offense, the “attempt
to flee or elude” element implicates an intentional mens rea. To flee
or elude means something more than to merely leave or depart; the
terms indicate action with a specific purpose. See WEBSTER’S NEW
COLLEGE DICTIONARY 540 (2007) (defining “flee” as “to run away or
escape”); Id. at 463 (defining “elude” as “to avoid or escape from by
quickness, cunning, etc.”). Because the act of fleeing or eluding
requires a conscious decision to escape or avoid, one could not
recklessly flee from a peace officer. Although a person might act
recklessly by departing from a police stop without the police officer’s
permission, the person would not be fleeing unless it were his
intention to escape or avoid the police officer. To attempt to flee or
elude, therefore, requires that the actor leave in an effort to escape
or avoid a peace officer. Thus, the trial court should have instructed
the jury that an “attempt to flee or elude” requires an intentional
mental state.
¶24 In sum, the court of appeals correctly held that the trial court
erred in denying Mr. Bird a mens rea jury instruction because the
instruction given to the jury did not specify the essential mens rea
elements of the failure-to-respond charge.
III. GUIDANCE FOR REMAND
¶25 The State also argues that the court of appeals erred by not
providing guidance on remand. We disagree. Although appellate
courts have the discretion to provide guidance on remand, they are
not required to do so. Compare State v. Low, 2008 UT 58, ¶ 61, 192
P.3d 867 (exercising our discretion to provide guidance), with State
v. Verde, 2012 UT 60, ¶ 62, 296 P.3d 673 (deferring to the trial court’s
“superior position” in matters of evidence and withholding
guidance). Thus, it was not error for the court of appeals to ask the
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JUSTICE LEE, dissenting
trial court to determine, in the first instance, the proper mens rea
instruction.
¶26 We, however, choose to provide such guidance. If the State
recharges Mr. Bird, we direct the trial court to instruct the jury that
Mr. Bird must have knowingly “received a visual or audible signal
from a police officer” and must have intended “to flee or elude a
peace officer.” And the trial court should also include an instruction
defining the knowing and intentional mental states.
CONCLUSION
¶27 We affirm the court of appeals’ reversal of Mr. Bird’s
conviction because the trial court erred in failing to instruct the jury
on the mens rea requirements of section 41-6a-210 of the Utah Code.
On remand, the trial court should instruct the jury as to the mens rea
required for each of the elements of the failure-to-respond charge.
JUSTICE LEE, dissenting:
¶28 I respectfully dissent from the majority’s determination of
reversible error in the district court’s failure to give an instruction
clarifying the mens rea implications of the elements of the offense set
forth in Utah Code section 41-6a-210(1)(a). Perhaps such an
instruction would have aided the jury somewhat, by clarifying the
import of the elements of (a) “receiv[ing] a visual or audible signal
from a peace officer,” and (b) “attempt[ing] to flee or elude a peace
officer by vehicle or other means.” UTAH CODE § 41-6a-210(1)(a). But
the question presented is not whether the judges of this court would
have accepted a request to give such an instruction. It is whether the
district judge’s failure to give the instruction was error, and whether
any such error would have made any difference to the outcome.
¶29 I would affirm on two grounds. First, I would uphold the
jury instruction as given on its own terms, as the ordinary meaning
of the terms of the instruction adequately conveyed a fair
understanding of the mens rea issues identified by the majority.
Second, I would hold that any purported error in the instruction as
given was harmless, having no “‘reasonable likelihood’” of affecting
the outcome of the proceedings. State v. Powell, 2007 UT 9, ¶21, 154
P.3d 788.
¶30 It is an over-generalization to say that “[a] trial court should
provide the jury with a mens rea instruction when a criminal statute
includes terms that have mens rea implications.” Supra ¶ 15. Our
cases seem to me to stand for a more modest principle. Instead of
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STATE v. BIRD
JUSTICE LEE, dissenting
broadly mandating separate mens rea clarifications of all “terms that
have mens rea implications,” we have simply required that the jury
be fairly and accurately instructed on all elements (whether mens rea
or actus reus) of any offense.1 And we have hastened to add that “the
trial court does not err in refusing to give a requested instruction if
the point is properly covered in other instructions presented to the
jury.”2
¶31 The instruction given in this case easily satisfied these
standards. First, the instruction conveyed the requirement of
knowledge of the peace officer’s signal. It did so by requiring the jury
to find that the defendant “received a visible or audible signal from
a peace officer.” As the majority acknowledges, the knowledge
requirement is inherent in the common, ordinary understanding of
the verb receive. See supra ¶ 20 (citing WEBSTER’S NEW COLLEGE
DICTIONARY 1195 (2007), defining “receive” as “apprehend mentally;
get knowledge of or information about”).
¶32 Second, the instruction also conveyed the requirement of
intent to flee or evade. That requirement was again inherent in the
common, ordinary meaning of the terms of the district court’s
instruction. Here the operative terms are “attempt,” which “is ‘to try,
solicit,’ or ‘to make an effort to do, get, have, etc.,” supra ¶ 21 (citing
WEBSTER’S NEW COLLEGE DICTIONARY 91 (2007)); and “flee” or
“evade,” which mean, respectively, “run away or escape,” and
“avoid or escape from by quickness, cunning, etc.,” supra ¶ 23 (citing
WEBSTER’S NEW COLLEGE DICTIONARY 540, 463).
¶33 The elements of “receiv[ing]” a signal and of “attempt[ing]
to flee or elude a peace officer” thus gave the jury a fair and accurate
understanding of the mens rea elements of the offense of failure to
respond under Utah Code section 41-6a-210. The majority’s analysis
only confirms this conclusion. It does so by reciting the above
definitions of the operative terms of the statute—receive, attempt, flee,
and evade—and by conceding that these terms accordingly conveyed
the essential notion of the knowledge and intent elements of the
1
See State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (explaining
that we review jury instructions “in their entirety and will affirm
when the instructions taken as a whole fairly instruct the jury on the
law applicable to the case”); State v. Roberts, 711 P.2d 235, 239 (Utah
1985) (stating “the general rule” that “an accurate instruction upon
the basic elements of an offense is essential”).
2
State v. James, 819 P.2d 781, 799 (Utah 1991).
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JUSTICE LEE, dissenting
offense in question. Supra ¶ 20 (conceding that “a juror would likely
have perceived that the ‘receives a visual or audible signal from a
peace officer’ element of the offense requires knowledge of the peace
officer’s signal”); id. ¶ 23 (acknowledging that “the ‘attempt to flee
or elude’ element implicates an intentional mens rea”). That should
be the end of our analysis. The jury was fairly instructed, and we
should affirm the conviction on that basis.3
¶34 The majority’s justifications for overturning the jury verdict
are unpersuasive. As to the knowledge implications of the instruction
given to the jury, I accept that we do not know for certain whether
a “juror would recognize the significance of” the statutory
“knowledge requirement as an essential mens rea element.” Supra
¶ 20 (emphasis added). But the majority has not identified any sense
in which the ordinary meaning of “receive” would fall short of
giving the jury a full sense of the knowledge element of the offense in
question. Instead it has vaguely suggested that the jury might not get
it, and concluded that “[t]hus it was error” not to provide further
explanation in a more detailed instruction. Supra ¶ 20. This turns the
operative burden of persuasion on its head.
¶35 To succeed in establishing a basis for reversal, the defendant
bears the burden of demonstrating that the instruction in question
falls short of the goal of fairly and accurately stating the law (and of
indicating that the error is likely to have made a difference in the
outcome, a separate problem discussed below, infra ¶ 13). Powell,
2007 UT 9, ¶ 21. The court inverts that standard by reversing on the
basis of a vague insistence that the jury might not have “recognize[d]
the significance” of the instruction’s reference to “receiv[ing] a visual
or audible signal from a peace officer.” Supra ¶ 20. I dissent from a
decision that seems to me to ignore our cases regarding the operative
burden of persuasion.
3
See Philpot v. State, 486 S.E.2d 158, 160–61 (Ga. 1997) (dismissing
defendant’s argument that the trial court improperly failed to define
terms “knowingly” and “great risk” because “the terms . . . are
ordinary terms found in common usage and understood by people
of common and ordinary experience . . . and need not be specifically
defined in the charge to a jury”); People v. McCleod, 55 Cal. App. 4th
1205, 1216 (Cal. Ct. App. 1997) (upholding the inclusion of the
common term “residence” in a jury instruction without additional
elaboration, stating that a court “need only give explanatory
instructions when terms used in an instruction have a technical
meaning peculiar to the law” (internal quotation marks omitted)).
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JUSTICE LEE, dissenting
¶36 The majority’s analysis of the intent implications of the
instruction in question is similarly problematic. If the ordinary
meaning of “attempt to flee or elude . . . requires that the actor leave
in an effort to escape or avoid a peace officer,” supra ¶ 23, then
defendant Bird has failed to carry his burden of proof that the
instruction as given fell short of giving a fair and accurate
description of the law to the jury. That is a sufficient basis for
affirming the jury verdict in this case.
¶37 The court does not clearly identify any precise shortcoming
of the intent implications of the instruction in question. But in
discussing the statutory term attempt, the court appears to draw a
distinction between (a) “[t]he common dictionary definition of
attempt,” as “to try, solicit, or to make an effort to do, get, have,
etc.”; and (b) the legal sense of the inchoate crime of attempt, which
requires “a substantial step toward commission of the crime.” Supra
¶ 21 (internal quotations omitted). And in discussing this distinction,
the court suggests that “the statutory meaning of attempt connotes a
conscious decision with more specific action than does the common
dictionary definition of the term.” Supra ¶ 21 (emphasis added).
¶38 If the majority is suggesting that the “substantial step”
element of the inchoate crime of attempt should have been included
in the instruction as given, then I dissent from that conclusion. For
one thing, I see no basis for treating the failure to stop offense as
inchoate. It is not defined in terms of a “substantial step” toward a
choate offense. It appears instead to be a crime in itself. So there is no
reason to read the “substantial step” sense of an inchoate attempt into
this state. In any event, that notion of attempt was neither preserved
in the district court nor argued on appeal. So if the failure to instruct
on “substantial step” is the shortcoming that the court sees in the
instruction in question, it is a defect of the court’s own imagining.
And if that is not the problem, then the court has failed to identify
any distinction between the common, ordinary sense of the terms of
the district court’s instruction and the mens rea requirements
delineated in the majority opinion.
¶39 Finally, even assuming some minor, unarticulated
distinction between the ordinary meaning of “receiv[ing] a visual or
audible signal” and the knowledge required by the majority, or
between “attempt[ing] to flee or elude a peace officer” and the intent
requirement set forth by the court, we should still affirm Bird’s
conviction on harmless error grounds. Under settled law, Bird bears
the burden of establishing that any error in the instruction in
question was reasonably likely to affect the outcome in this case. See
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JUSTICE LEE, dissenting
State v. Vargas, 2001 UT 5, ¶ 39, 20 P.3d 271 (stating that it is the
defendant’s burden to establish that the error is harmful). In my
view he has utterly failed to carry that burden. Given the common,
ordinary sense of the operative terms of the instruction given to the
jury in this case, I would also hold that any arguable shortcoming in
failing to elaborate on the mens rea elements of the offense was
harmless.
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