365 P.3d 737
Utah Ct. App.2015Background
- Jerad Gourdin was convicted by a jury of aggravated assault and appealed the conviction challenging the self-defense jury instruction (Instruction 17).
- Gourdin requested inclusion of statute language allowing consideration of a victim’s "prior violent acts or violent propensities" when assessing whether the defendant reasonably believed force was necessary (Utah Code § 76-2-402).
- Gourdin pointed to the victim’s methamphetamine use the day before the altercation and the victim’s involvement in a subsequent fight as evidence of violent propensities.
- The trial court refused to include the contested language, finding no evidence that methamphetamine made the victim more violent (not common knowledge), no expert testimony on drug effects, the victim testified the drug calmed him, and the later fight could not be a ‘‘prior’’ act known to Gourdin.
- On appeal the Utah Court of Appeals reviewed the instruction refusal for abuse of discretion and affirmed, holding there was no record evidence supporting inclusion of the contested statute language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by omitting statute language permitting consideration of a victim’s prior violent acts/propensities in the self-defense instruction | Gourdin: victim’s recent methamphetamine use and a later fight show violent propensities and justify the instruction language | State: no admissible evidence showed the victim had violent propensities known to Gourdin; methamphetamine effects weren’t established and subsequent fight isn’t a prior act known at the time | No abuse of discretion; instruction properly omitted because record lacked evidence supporting inclusion |
| Whether methamphetamine use the day before the altercation constitutes admissible evidence of violent propensity | Gourdin: common knowledge supports inference meth increases violence, so evidence is relevant | State: effects are not common knowledge; expert proof required; victim testified drug calmed him | Trial court reasonably excluded inference; no expert evidence and victim’s testimony contradicted Gourdin’s claim |
| Whether a subsequent fight by the victim can be used to show prior violent acts or propensities | Gourdin: subsequent fight indicates violent propensity relevant to who started the altercation | State: subsequent fight is not a ‘‘prior’’ act known to defendant and is irrelevant without context | Subsequent fight is not a prior act known to defendant at the time and is irrelevant to self-defense instruction |
| Preservation of novel arguments on appeal | Gourdin raised argument about subsequent fight’s relevance in reply brief | State: argument was not raised below and is unpreserved | Court declined to consider the new theory; unpreserved issues will not be considered on appeal |
Key Cases Cited
- Miller v. Utah Dep’t of Transp., 285 P.3d 1208 (Utah 2012) (standard of review for jury instruction refusals)
- State v. Berriel, 299 P.3d 1133 (Utah 2013) (defendant entitled to instruction when record evidence supports theory)
- State v. Canfield, 422 P.2d 196 (Utah 1967) (victim’s violent disposition material only if known to defendant before the crime)
- State v. Howell, 649 P.2d 91 (Utah 1982) (evidence of victim’s violent character relevant to defendant’s fear if defendant knew of traits)
- State v. Holgate, 10 P.3d 346 (Utah 2000) (issues not raised at trial generally cannot be raised on appeal)
- Romrell v. Zions First Nat’l Bank, 611 P.3d 392 (Utah 1980) (issues raised first in a reply brief will not be considered on appeal)