Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. )
v. ) F I L E D
) (August 23, 2012) Dustin Lynn Bird, )
) Defendant Appellant. ) ‐‐‐‐‐
Third District, Salt Lake Department, Honorable William W. Barrett
Attorneys: Linda M. Jones, Christopher L. Stout, Charity Shreve, Salt Lake
City, Appellant
Mark L. Shurtleff Karen A. Klucznik, Salt Lake City, Appellee ‐‐‐‐‐
Before Judges Orme, Thorne, Christiansen.
THORNE, Judge: ¶1 Dustin Lynn appeals his one count third degree felony. Ann. 210(1)(b) (2010). adequately instruct offense.
BACKGROUND
¶2 On October Salt Lake City police Alma Todd Sweeney was traveling eastbound South Salt Lake City observed blue Ford *2 Mustang approaching him in the oncoming lane. As the two vehicles passed each other, the Mustang’s driver and passenger looked at Sweeney and reacted with what he interpreted as nervousness. Suspicious, Sweeney turned around and began following the Mustang. A license plate check by Sweeney revealed “an ongoing investigation,” and observed the Mustang’s occupants bending down as if they were attempting to hide retrieve something underneath the seats. After observing the Mustang fail to stop at stop sign, Sweeney activated his lights initiate traffic stop as the two vehicles proceeded south Navajo Street.
¶3 Mustang’s driver, Bird, slowed but did stop. Instead, Bird continued southward, drifting in his lane and almost colliding with cars parked along street. Bird passed several spots where it would been safe pull over and turned west American Avenue. Bird then slowed and turned toward curb as though coming stop but then pulled back out and accelerated back up twenty twenty five miles per hour. Bird finally stopped Mustang at West.
¶4 As Bird was coming stop, his passenger got out and started jogging away while “shifting stuff in his clothing.” Sweeney, had left his vehicle approach the Mustang, got back in his vehicle and began pursuing passenger. After short pursuit, Sweeney apprehended passenger. In process apprehending passenger, Sweeney observed Bird drive away rapidly Mustang. Sweeney radioed description Bird and Mustang dispatch, and another stopped Bird without incident several minutes later. Bird initially denied knowing his passenger but ultimately admitted police passenger friend his and “he pulled over police, and then police chased his friend.” ¶5 charged with one count third degree felony. Prior closing arguments at Bird’s trial, district court discussed instructions counsel and State. proposed stated, 1. also and convicted at stop sign, but that at issue this appeal, and treat this matter if arose solely from conviction. Both appeared before through counsel, colloquies cited this opinion took place between respective counsel. However, simplicity, attribute respective counsel’s statements throughout opinion.
The defendant, Dustin Lynn Bird[,] charged with Failure Respond Officer’s Signal Stop. You cannot convict him this unless you find beyond a reasonable doubt, based evidence, each following elements:
1. That or about October 12th, 2009; 2. defendant, Dustin Lynn Bird; 3. did operate a motor vehicle, and; 4. having received a visible or audible signal from
peace officer bring vehicle stop; 5. did attempt flee or elude peace officer by
vehicle or other means.
. . . . This generally tracked statutory language Utah Code section 41 ‐ 6a ‐ 210(1)(a)(ii), under which charged. Utah Code Ann. § ‐ 6a ‐ 210(1)(a)(ii) (“An operator receives visual or audible signal from peace bring vehicle may . . . attempt flee or elude peace officer vehicle or other means.”). ¶6 After reviewing this objected, “I don’t see anything outlining or reckless as lower standard, I think should be defined jury.” inquired, “On what?” continued, “On element of—when we’re going through or about October 12th, Dustin did operate motor vehicle. I think needs explanation he needs do recklessly or willfully.” disagreed Bird’s assertion, discussion turned two different ways person can violate Utah Code section ‐ 6a ‐ 210(1)(a):
[The State]: Under—there are two theories this charge. One evaded public willfully— Utah Code ‐ 6a ‐ 210(1)(a)(i) provides alternative charging theory, prohibiting operation vehicle “in willful or wanton disregard [a stop] so interfere endanger operation vehicle person.” See 210(1)(a)(i) (2010). under alternate theory liability.
[The district court]: That’d be different.
[Bird]: Yeah.
[The State]: That’s what here.
[Bird]: That’s correct, but then other one, it’s not mentioned statute, standard reckless?
[The district court]: No, it’s—no, no, no, no, no, no, no, no.
The district court then stated, apparently reference proposed elements instruction, “I think it’s got elements here.” After further short discussion, Bird again stated, “I think it needs defined jury,” which district court responded, “I don’t think so. There’s word goes [to] reckless or knowing anything else—.” The district court concluded discussion stating, “[Y]ou’ve made your record, I’ve denied it. You ready go?” responded, “Yes.” ¶7 matter proceeded jury proposed no other addressed state issue. convicted, now appeals.
ISSUE AND STANDARD OF REVIEW
¶8 committed error instruct jury required signal stop. “The standard review jury instructions counsel has objected correctness.” Cooper , ¶ (internal quotation marks omitted).
ANALYSIS
¶9 defining applicable prove support officer’s stop. denied request, convicted without addressing mens rea for *5 the charged. We determine that the district court should have instructed the jury on this issue, reverse Bird’s conviction.
¶10 As initial matter, the State that Bird failed to preserve this issue for appeal. To end, the asserts that “[Bird’s] only challenge to the [elements] instruction was that to attach a mental state of ‘recklessly or willfully’ to the ‘did operate a motor vehicle’ element of the crime.” We disagree with the State’s characterization of Bird’s objection.
¶11 Bird’s original objection the lack of instruction on mental state was not limited the “did operate a motor vehicle” element, but instead generally that the elements instruction define the mental state for the charge. When the district court asked for clarification, Bird began “going through the elements,” the first which “that or about October 12th, Dustin did operate a motor vehicle.” However, also specifically addressed the mental state for liability under “the other one,” referring the second theory of liability enunciated statute, under which he charged. See 210(1)(a)(ii) (2010) (“An operator receives visual or audible from peace officer bring vehicle may . . . attempt flee or elude peace vehicle or other means.”). indicated district court that theory under he did expressly provide state suggested that appropriate mental state might be recklessness; district court responded, “No, it’s—no, no, no, no, no, no, no, no.” As continued request district court explained “I think [the proposed has] got elements here” “[t]here’s word in goes [to] reckless knowing anything else” before expressly denying Bird’s request.
¶12 Taken whole, Bird’s objection clearly alerted court was requesting each elements respond charge. This sufficient preservation issue appeal. Bujan , ¶ (finding adequate preservation where defendant’s objection “sufficiently precise alert trial court” alleged error gave “an opportunity make corrections deemed necessary” (internal quotation marks omitted)). Further, extent Bird’s objection lack all could been clearer, note that emphatically disagreed Bird’s position throughout preservation colloquy before expressly denying request comment that “you’ve made your record.” Under these circumstances, further pursuit mental *6 state instruction would clearly been futile, futile objections are not required to preserve issues appeal. State Rothlisberger , 2004 226, ¶ 29, P.3d 1193 (“In essence, trial court’s ruling that testimony lay witness testimony rendered any objection predicated expert ‐ testimony rules futile. Under our law, parties are not make futile objections in order preserve future claim.”).
¶13 Having determined preserved lack mental state as an issue appeal, turn question whether erred it give such an instruction. “[T]he general rule is an accurate instruction upon basic an offense is essential, [and] failure provide such is reversible error can never considered harmless.” v. Stringham , 957 602, 608 (Utah Ct. App. 1998) (internal quotation marks omitted). Thus, if failure respond charge against has requisite state, then court’s failure give error. ¶14 The element of because crime respond an officer’s is found Utah’s Traffic Code rather than its Criminal Code. State relies Utah Code 76 ‐ 2 ‐ 101:
(1)(a) A person guilty an offense unless person’s conduct prohibited by law; and (b)(i) person acts intentionally, knowingly, recklessly, criminal negligence, otherwise specified statute defining offense, definition offense requires; or (ii) person’s acts constitute involving strict liability.
(2) These standards responsibility do apply violations set forth Title 41, Chapter 6a, Traffic Code, unless specifically provided law. § ‐ ‐ (2008) (emphasis added). is
located within Title Chapter 6a, Traffic Code, see id. accordingly *7 State that the mental requirements enunciated in section 76 ‐ 2 ‐ 101(1)(b) do not apply to that crime.
¶15 Whether or not State is correct about the interplay between Utah Code sections language plain that determine we [4] 210, of ‐ ‐ 41 101 ‐ 2 ‐ 76 6a section 41 ‐ 6a ‐ 210 incorporates its own set of mental requirements Bird was entitled to a jury instruction. Under either theory of liability enumerated in section 41 ‐ 6a ‐ 210(1)(a), an operator commits no unless he first “receives” a signal to stop. See id. § 41 ‐ 6a ‐ 210(1)(a). Further, particular against that he “attempt” flee elude after receiving signal to stop. See id.
§ 41 ‐ ‐ 210(1)(a)(ii).
¶16 Both of these implicate particular states that required have in order be convicted of crime. requirement that “receive” a signal stop implies that he needed some level appreciation that he being hailed peace officer. Similarly, in order for jury to determine that “attempt[ed]” flee elude police after receiving to would necessarily find that purpose Bird’s actions flee or elude police. defining these states P.2d 957 , Stringham [5] at it. entitled jury, receive 608. court’s grant Bird’s request constitutes error, see id. , and accordingly we reverse conviction.
4. Despite plain language section 76 ‐ 2 ‐ 101, do not necessarily agree the State section 76 ‐ 2 ‐ 101(2) automatically removes concept mens rea from entire Utah Traffic Code. We note Utah Code 76 ‐ 2 ‐ 102 contains seemingly contradictory language, “Every involving strict liability shall require culpable state,” 2 102 (2008), exception offenses found Traffic Code. We recognize “[i]t is normally unnecessary undesirable trial judge volunteer definitions terms common usage jury.” v. Couch , P.2d (Utah 1981). However, while terms “receive” “attempt” are terms of common usage, do believe law mens rea implications those terms would necessarily obvious jury. Cf. Stringham , (Utah Ct. App. 1998) (“It too long reach suggest divined defendant had act intentionally because such level volition inherent concept of ‘devis[ing] scheme.’” (alteration original)).
CONCLUSION
¶17 Outside strict liability context, defendant requests instruction states conviction is entitled such an instruction, give instruction constitutes error. Here, requested entitled defined each element failing an its own terms strict liability crime. Because denied such reverse his charge. ____________________________________
William A. Thorne Jr., Judge
‐‐‐‐‐
¶18 I CONCUR:
____________________________________
Michele M. Christiansen, Judge
‐‐‐‐‐
¶19 I DISSENT:
____________________________________
Gregory K. Orme, Judge
Our enunciate exact requirement each element under 210(1)(a)(ii) intentional. Should opt retry charge, leave determine first instance what contents state should be. We will review adequacy if question comes before us.