CR1302 states the elements of Assault to include “Intentionally, knowingly, or recklessly” attempting, with unlawful force or violence, to do bodily injury”

Can a person recklessly attempt in Utah?

Some comments:

The proposed CR411 404(b) reads: “This evidence (is) (was) not admitted to prove a character trait of the defendant or to show that (he) (she) acted in a manner consistent with that trait” – The proposed rule substitute’s Rule 404’s “a person’s character or character trait” with just “character trait.” It also omits the Rule’s language of “on a particular occasion.”

I think there’s something different between “a person’s character” and a “character trait.” The former speaks to the quality of the person, the latter speaks to an aspect of that person. To illustrate the difference, improper 404(b) evidence may include a statement like, “the defendant is a drunk.” Assuming that the statement is inadmissible, it appears to me to be inadmissible because it says something about the character of the person as a drunk, not the trait of drunkenness. I worry that a jury might not appreciate the scope of “character trait” to be as broad as to include “a person’s character.” Both terms should be included.

Secondly, I can see how, in cases that involve multiple counts over a period of time, the words “on a particular occasion” (which are found in 404) might not fit. But the proposed wording loses some clarity without that phrase. The idea behind the rule is that you can’t hold someone’s past against them in this instance. And the words “on a particular occasion” help to anchor that the concern is biasing jurors towards convicting on propensity of action, not just pattern of who the defendant is. There may be other solutions here, but omitting “on a particular occasion” loses some meaning without any obvious benefit of clarity.

I wonder if the committee would consider doing focus groups with community members. Well, not now since we’re in a pandemic. But soon, perhaps.

Final point, the proposed rules related to Defense of Self or Others bring up “combat by agreement” several times without a definition. And the term pops up in places where it assumes that people understand what it means, e.g. CR530. Maybe there’s not an easy fix based on what I assume is a lack of clarity in either statute or caselaw on the topic. That said, I don’t really see that it fits where it’s at, either.

–David Ferguson, Public Defender

Comments for CR1301:

It might be helpful for the attorneys and the jury to format this instruction differently and reword portions of it.

(1) The code sections immediately follow each definition and appear with the instruction when a document is generated. It would be better for the references to appear at the bottom as in other instructions or for the code sections to be separated by at least one line space and labeled as “Reference.”

(2) The definitions are currently listed in alphabetical order, but it would be helpful to the attorneys copying the definitions and to the jury determining the level of bodily injury for the bodily injury instructions to be listed together in order of severity: “Bodily Injury,” “Substantial Bodily Injury,” and then “Serious Bodily Injury.”

(3) On the MUJI 2d webpage (but not in the proposed instruction) a dash is missing in the code section for “Bodily injury.”

(4) The code sections need to be updated to reflect revisions in the code.
Bodily Injury is § 76-1-601(4)
Dangerous Weapon is § 76-1-601(7)
Serious Bodily Injury is § 76-1-601(17)
Substantial Bodily Injury is § 76-1-601(18)

(5) In the “Targeting a Law Enforcement Officer” definition, the term “commission of” is not in common usage and is not plain English. I would change “the commission of” to “committing.”

(6) For the “peace officer” definition, the fourth element is not enumerated in the proposed instruction. On the MUJI 2d webpage, it is also not separated from the third element.

(7) The “military servicemember in uniform” and “peace officer” definitions refer the jury to sections of the code that are not defined. The jury should not be referring to the code, so these need to be defined. For example, the second element in the “military servicemember in uniform” now worded “a member of the National Guard serving as provided in Section 39-1-5 or 39-1-9” could be worded as “a member of the National Guard who the governor has ordered into active service or who the President of the United States has called into service.”

(8) Some of the defined terms have each word capitalized while others have only the first word capitalized. This should be consistent.

On the defense of habitation instructions (CR520-523), we noted that some of the language seemed antiquated, and the Committee may want to consider referring the statute to the Criminal Code Evaluation Task Force. For example, the defense applies when the defendant reasonably believes that the victim has entered the habitation “for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation.” The MUJI does substitute “threatens” for “offer[s]” personal violence. But it’s unclear what kind of “being” is anticipated other than a “person.” Also, I assume that the statute intends to provide a defense when the victim damages or threatens to damage the habitation, but typically that kind of damage or threat would not be called an assault or threat of violence.
Further, the definition of habitation comes from case law; there is no statutory definition. And it applies to a place that the defendant inhabits “peacefully.” There is, however, no requirement that the victim inhabit the place “lawfully.” So someone who is squatting in an abandoned building “peacefully” may have this defense available to them when they use force against another squatter, even though both are trespassers.
On the presumption of reasonableness (CR522), the list under #2 has three subpoints stated in the disjunctive, but some of the subpoints include more than one item also stated in the disjunctive. We recognize that those group related items, but we think it would be a little clearer to break each one out into a subpoint.

The statute includes a component that is missing from the instruction—a failure to retreat cannot be considered in deciding reasonableness. 76-2-402(4)(b). That should either be added here or in the MUJI on factors for determining imminence and reasonableness (CR531). Also, the statutory reference should be to sub (4), not sub (3).

6CR1301 Definitions for Assault and Related Offenses. This is just definitions pulled from the definitions statute. The one potential assault-related definition the proposed instruction does not have is “act” (UCA 76-1-601(1)). While not frequently in need of explanation, the term “act” has a specific definition under the law and ought to be included in the instruction.

CR1320 Aggravated Assault.
Parts 1-3 look good and are accurate reflections of the statute and caselaw. But the way part 4 is included makes it look like it should be present in every aggravated assault case, when it is just needed for a charge that is a F2 or F1. Maybe the committee thought that it should be obvious, but things that should be obvious don’t always gets interpreted that way.

CR1322 Aggravated Assault – Targeting Law Enforcement Officer. Parts 1b and 2 should be combined to state in 1b that serious bodily injury was caused, since that is the only way to commit the crime.

CR141 Murder.
The murder elements instruction is fine with one exception; the victim in the case of felony murder theory must not be a participant in the felony. Thus I think the following language must be added to the elements instruction:
“d. While engaging in the commission, attempted commission, or immediate flight from the commission or attempted commission of [the predicate offense(s)], or as a party to [the predicate offense(s)], i. (VICTIM’S NAME), [ADD THIS LANGUAGE: “who was not a participant in the predicate offense(s)”] was killed; and…”

CR1452 Special Verdict Form- Imperfect Self Defense.
The proposal to make imperfect self defense subject to a special verdict has some logic to it in my opinion, but the defense results in a lesser included manslaughter. The supporting practitioners’ notes only refer to a court of appeals case Lee and in the end Drej. State v. Lee does not take on the issue straight ahead. It has dicta that the method of the instruction misplaced the burden which is a pitfall I think the Muji drafters were trying to avoid. Drej does not apply (it is a mitigation case and not an affirmative defense case). The problem is that State v. Shumway, a Supreme Court case, says that you cannot instruct the jury on a specific order of deliberation with a lesser included manslaughter. However, the proposed instruction tells the jury they can only consider the affirmative defense (lesser included manslaughter) if they first find the defendant guilty of murder, a thing I think Shumway prohibits. I have attached the citations for the relevant cases at the bottom of this note. SHUMWAY, 63 P.3d 94; LEE, 318 P.3d 1164; LOW, 192 P.3d 867

CR 1601 Definitions

Regarding “indecent liberties,” where it says “any conduct” I think that should say “any sexual conduct.” To leave it as it is would mean that any act with equal seriousness would be a sex crime – so a punch or a slap could be a sex crime.
Also, Could we include a definition of “penetration” and of “touching” here? That way, we could make clear the differences between those terms for the elements of adult crimes and child crimes.

SVF 1613 Aggravated Sexual Abuse of a Child.

The language should delete the Aggravated Sexual Abuse of a Child from the […] area because they found the person guilty of Sexual Abuse of a Child, it is by checking one of the following boxes that makes it aggravated.

CR 1616A Unlawful Sexual Conduct

I echo Donna’s comments with the exception of “between the outer folds of the labia”. I believe that this definition is important and should be included as it is the same language being requested for Object Rape. In addition, I believe that this same language should be included in the special verdict form for SVF1613, CR1601 and CR613 to be consistent with the other proposed changes.

CR1601 Definitions; CR1613 Aggravated Sexual Abuse of a Child.

The committee notes for CR 1601 and 1613 state that the committee considered the use of the word “victim” in light of State v. Vallejo, 2019 UT 38, ¶¶99-103, but that it chose to preserve the language used in the statutes. It then opines that “[a]ny attempt to alter the instruction in an effort to avoid the use of the word ‘victim’ appears to impermissibly change the meaning of the statute.”

Rather than commenting on whether replacing the word “victim” would impermissibly change the meaning of the statute, the committee notes should simply mention State v. Vallejo, and the Supreme Court’s concern with the word “victim.” I suggest that the comment should read as follows, “In Vallejo, the Supreme Court ‘recognize[d] the gravity of referring to witnesses as victims during a trial.’ Attorneys should consider Vallejo’s concerns in determining how to word this instruction.”

The Criminal Appeals Division of the Utah Attorney General’s Office submits the following comments on the criminal MUJI.

Defense of habitation (CR520-523): The instruction tracks the statutory language, but some of the language seems antiquated, and the Committee may want to consider referring the statute to the Criminal Code Evaluation Task Force. For example, the defense applies when the defendant reasonably believes that the victim has entered the habitation “for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation.” The MUJI does substitute “threatens” for “offer[s]” personal violence. But it’s unclear what kind of “being” is anticipated other than a “person.” Also, the statute presumably intends to provide a defense when the victim damages or threatens to damage the habitation, but typically that kind of damage or threat would not be called an assault or threat of violence.

Further, the definition of habitation comes from case law; there is no statutory definition. And it applies to a place that the defendant inhabits “peacefully.” There is, however, no requirement that the victim inhabit the place “lawfully.” So someone who is squatting in an abandoned building “peacefully” may have this defense available to them when they use force against another squatter, even though both are trespassers.

Defense of other (CR530, et al.). There is a typo in the title—it should read “defense of other,” not “defense or other.”

The statute makes the defense available to someone committing or fleeing from committing a felony if the use of force is “a reasonable response to factors” unrelated to the felony. The MUJI does not include this contingency. Instead, it relegates the issue to the committee note, and suggests that the parties “should consider” modifying the statutory language when that is at issue.

This alternative theory should not be relegated to a committee note. Rather, the instruction should include optional language to cover that contingency when it arises. And when it applies, it’s something that the jury should be instructed on, not something that the parties should just consider.

On the no-duty-to-retreat MUJI (CR533), the statute includes a component that is missing from the instruction—a failure to retreat cannot be considered in deciding reasonableness. 76-2-402(4)(b). That should either be added here or in the MUJI on factors for determining imminence and reasonableness (CR531). Also, the statutory reference should be to sub (4), not sub (3).

Imperfect self-defense (CR1450-1452, SVF1452). The Division has seen several cases with defective imperfect self-defense instructions. As the practitioner’s note points out, it has been particularly problematic when the instructions try to fold imperfect self-defense into the elements instruction. It has resulted in either misstating who has the burden of proof or potentially misleading the jury into believing that it must reach unanimity on whether the State had failed to disprove imperfect self-defense. So the Division agrees that the imperfect self-defense instruction should be separate from the elements instruction.

But the proposed MUJI procedure arguably conflicts with the rules. As relevant here, Utah R. Crim. P. 21(a) requires the jury to enter a verdict of “guilty” or “not guilty of the crime charged but guilty of a lesser included offense.” The proposed MUJI procedure, however, results in there being no verdict on the lesser crime.

As proposed, and as relevant here, the jury verdict is either guilty of the greater offense or guilty of the lesser offense for reasons other than imperfect self-defense. The jury is then instructed only to make a finding on imperfect self-defense. But it is not asked to enter a verdict on the lesser crime if it finds in favor of the defendant on imperfect self-defense. So contrary to rule 21’s requirement, there is no verdict on the lesser offense.

The parties sometimes agree to bifurcate proceedings so that the jury enters a verdict on a particular crime and the judge decides whether aggravating circumstances that enhance the crime—usually prior convictions—exist. But in that case, the defendant has agreed to waive a jury verdict on the second step. Here, the defendant has not expressly waived the jury verdict on the lesser offense. Rather than entering a verdict on the lesser offense, the jury enters a verdict on the greater offense and only enters a finding that results in a lesser offense.

It may be that the disconnect between the rule and the proposed MUJI won’t make a difference. But a fix would eliminate the problem.

A related concern is that the proposed instructions speak in terms of the jury finding the defendant guilty of the greater offense before considering imperfect self-defense. For example, CR 1451 states, “You must consider imperfect self-defense only if you find the defendant guilty of [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder].” But if the jury ultimately finds that the State has not disproven imperfect self-defense beyond a reasonable doubt, then the defendant is not guilty of the greater crime. We therefore recommend that when describing the jury’s finding on the greater offense the instructions should speak in terms of the jury having found that the State proved all the elements of the greater offense, or some similar phrasing, not that the jury has found the defendant guilty of the greater offense. This change would need to be incorporated into CR 1450, 1451, 1452, and the Special Verdict Form.

Misdemeanor assault (CR1302). The instruction purports to cover both class B and class A misdemeanor assault. But when there are aggravators at issue that may increase the assault to a class A misdemeanor, the instruction, as written, allows the jury only to either convict or acquit of the higher crime. It should allow for a conviction of the lower crime if the State fails to prove the aggravator.

The elements instruction says (both before and after the listed elements) that the jury must find that each of the elements applies before it can convict. Elements 3 and 4 list alternative facts that must be found by the jury to enhance the penalty to a class A misdemeanor. If neither of those facts are found, but every other element is found, then the defendant is still guilty of a class B misdemeanor. But as the instruction is written, the jury is required to find the enhancement in order to find the defendant guilty of any assault. In other words, including elements 3 and 4 effectively eliminates class B misdemeanor assault as a crime. Elements 3 and 4 should be handled through a special verdict form rather than the elements instruction.

Aggravated Assault (CR1320). The enhancement element on aggravated assault (element 4) raises a similar problem. Again, the elements instruction says (both before and after the listed elements) that the jury must find that each of the elements applies before it can convict. Element 4 lists facts that must be found by the jury to enhance the penalty to a second- or first-degree felony. If none of those facts are found, but every other element is found, then the defendant is still guilty of a third-degree felony. But as the instruction is written, the jury is required to find the enhancement facts in order to find the defendant guilty of aggravated assault. In other words, including element 4 effectively eliminates third degree felony aggravated assault as a crime.

The committee notes indicate that if “more than one” possible enhancement factor under element 4 is involved in the case, then a special verdict form should be used. The committee note should be rewritten to list all the enhancement factors and state that a special verdict form should be used if ANY factor is at issue, and cross-reference SVF1301. Even if only one enhancement factor is at issue, a special verdict form should be used. Otherwise, the instruction tells the jury to acquit if the State fails to prove the enhancement. In reality, the jury should convict if the State proves every element of aggravated assault but fails to prove an enhancement—but the conviction will be for a third degree felony rather than a second or first.

The instruction could also entirely eliminate the reference to targeting a law enforcement officer as an enhancement, because CR1322 should be used in place of CR1320 in that situation. However, if a prosecutor uses CR1322, she may want to use CR1320 as a lesser-included offense to avoid the problems addressed above.

Aggravated Assault—Targeting Law Enforcement Officer (CR1322). The MUJI is confusing because it effectively requires the jury to find both bodily injury and serious bodily. But aggravated assault targeting a law enforcement officer requires serious bodily injury. So element 2 should be eliminated and 1(b) changed to require a finding of serious bodily injury. If the intent was to try to capture both a greater and lesser offense, the better approach would be to suggest in committee notes asking for separate instructions on aggravated assault targeting a law enforcement officer and aggravated assault.

Definitions of Assault and Related Offenses (CR1301). Consider removing the definition of “targeting a law enforcement officer.” CR1322 presents an elements instruction for aggravated assault involving targeting a law enforcement officer. That could be used as a model for other offenses that involve targeting a law enforcement officer. The statutory language defining targeting a law enforcement officer is hard to follow; repeating that language for the jury is not helpful. Breaking it out into elements, as in CR1322, is helpful.

Assault Offenses (SVF1301). If you remove the definition of “targeting a law enforcement officer” from CR1301 and keep the elements instruction for aggravated assault—targeting a law enforcement officer (CR1322), then targeting a law enforcement officer should be eliminated from the special form.

404(b) instruction (CR411). The language in the brackets would be clearer if it were reworded to be “practitioners must specify a proper non-character purpose such as motive, intent, etc., whether the evidence is to prove or disprove that purpose, and the issues to which that purpose applies.” Ambiguity issues have arisen when the jury is not instructed how to use the 404(b) evidence. For example, in a self-defense case, instructing the jury that the 404(b) evidence is to be used “for the limited purpose of self-defense” is ambiguous when it’s being offered “for the limited purpose of rebutting a claim of self-defense.” Or if the defendant argues mistake or accident, the instruction should say “for the limited purpose of rebutting a claim of mistake or accident.” And if the evidence is to prove motive, it should say “for the limited purpose of proving motive.”