State v. Close
499 P.2d 287
Utah
1972
Check Treatment

*1 made pronounce- was before or after the ment of sentence. Utah, The STATE Plaintiff and Respondent, had, After a trial was court findings plaintiff represented was Douglas CLOSE, F. Defendant

by competent stages counsel at all of the Appellant. and proceedings plaintiff criminal and that the No. 12554. completely fully and of his advised rights implications Supreme constitutional and the Court Utah. entering plea of his The court July 10, 1972. fully plaintiff also found that the aware changed plea that at time he his from guilty prosecution

not

agreed to dispose dismiss and to of other

charges against him. Based these

facts the plaintiff’s court concluded that the

rights by had not been plea violated agreement.

bargaining plaintiff’s contention before this

court is that court below erred

refusing permit change plea him to his pronounced.

after sentence had been

record plaintiff does not reveal

applied permission to the court for to with- plea

draw his either before or pronounced.1 sentence was The con- Henriod, J., filed concurring opinion. plaintiff tention of the is without merit. carefully haveWe reviewed the record be- Ellett, J., filed dissenting opinion con- Callister, curred fore us find C. no error which would J.

justify a judgment reversal. The below affirmed.

CALLISTER, J., C. CROCKETT, JJ.,

HENRIOD concur. Plum,

1. State v. 14 Utah 2d 378 P.2d 671.

of which we found have to be of control- ling importance is the failure to instruct on the lesser offense of as- sault. *2 August 16, 1970,

On the afternoon of swimming defendant was in at Rainbow public swimming pool Ogden, Gardens playing Utah. He was with a number of children in pool and performing vari- “gymnastics” ous by tossing about or them flipping them over He did water. this with a (up many number of to as as 15) Among children. them was Catherine H...., girl years nine age, the al- leged victim of charged. the offense She pool come to the with her sisters M- age 11, E- and age seven. After engaging in playful these antics for some time Catherine told the defendant she had a stomach ache and pool. left the She and her picked up sisters were by her father Associates, Phil L. Hansen & taken Salt Lake home. She told her City, mother defendant-appellant. for process that in the play of the defendant had “rubbed the front of her Romney, Atty. Gen., Vernon B. David S. legs” and private touched the (genita- area Young Irvine, Attys. and David R. Asst. lia). There followed notification of the Gen., City, Salt plaintiff-respon- Lake police, arrest, charge and conviction. dent.

In submitting the case the instruct- ed the in Instruction 18: No. CROCKETT, Justice: appeals Defendant from a conviction Your this case be: must jury upon Guilty the crime of indecent assault Assault a Child Indecent a child 14 in under violation of Section Under as Fourteen in the infor- 76-7-9, complained U.C.A.1953. The error mation or not objection making

In his 'to this 'instruc- offense of indecent assault. In State v. submitting tion case in that manner Waid this court said: defendant’s counsel stated: Indecent assault aggravated is an as sault, respectfully excepts simple assault is necessarily

instruction No. 18 in that said instruc- included therein.2 tion amounts to a to instruct as failure This court in a number of decisions to the included offense of has affirmed the rule requir above stated definition, and fails to instruct as to the ing the submission of lesser included of statutory definition of the crime of as- fenses when the evidence and circum [Emphasis sault. added.] justify,3 stances so gone and has further in indicating that even in the absence of an rule, general well established appropriate objection, if is clear that the should be instructed on lesser justice interests of require, so the court included offenses when such a conviction should instruct on included offenses.4 would be warranted reasonable evidence, view the is in accord with and Though it prerogative is not our supported by statutory our law. Section pass upon weight credibility 77-33-6, U.C.A.19S3,provides that: *3 evidence, we are concerned with whether may jury find the defendant there is a basis therein justify which would any offense the commission of a verdict of of the lesser offense. necessarily which is included in that alleged victim Catherine testified that with which charged he is in the indict- she was alone with the defendant at the information, ment or or of an attempt to time of the point occurrence. that On her commit the offense.1 testimony is not corroborated. Her sister just older, We have 11, heretofore held age that M- the of- said that she fense responsible assault is included watching in the for over her 1. Referring 297, 2. (1937) to this ; statute this court 92 Utah stated 67 P.2d 647 see Woolman, 23, Smith, in 482, v. State Utah 84 33 P. also v. State 90 Utah 62 P.2d 640, (1936) ; 2d “The Smith, statute allows conviction for 1110 and State v. 16 any necessarily 374, lesser offense in included Utah 2d 401 P.2d 445. ” the . offense . . See also Johnson, 130, 3. See State v. 112 Utah Brennan, 195, v. State 13 Utah 2d 371 P. 738; Castillo, 185 P.2d State v. 23 Utah (1962) ; Rohletter, 2d 27 State v. 70, 618; Gillian, 2d P.2d State v. 452, (1945) ; 160 P.2d 963 State 372, 23 Utah 2d 463 P.2d 811. Solomon, 70, v. 93 Utah 71 P.2d 104 Cobo, 89, 952; 4. State v. 90 Utah 60 P.2d Poe, 113, State 21 Utah 2d (1968) ; see also Rule U.R.C.P. HENRIOD, sisters, (concurring) that did : younger but she not at Justice see the and Catherine time defendant for error I think was I because concur harmony in the themselves. This is with perfectly give a the have failed to court to testimony given by the defendant. There included of- legitimate as to an are other circumstances to be taken into empha- fense, simple assault. The dissent — account, including the fact that the inci- exception was taken sizes fact that no the dent occurred in the middle of the after- jury until to such failure after the noon and that there were other people in by the up been and locked bail- instructed pool. the fault iff. This circumstance is no of de- As apparent should from has be what counsel, opportunity fense who has no above, particularly been said de- the timely courts, object because trial some- exception fendant’s to instruction No. times, understand, require suggest or we this is not a where it case should be stipulation exceptions from counsel that be deemed that the defendant made a deliber- retired, jury taken has and not after risking ate choice of all nothing by or 51, U.R.C.P., violation of Rule before —in electing go jury only to the on the ma- requires exceptions which such to be taken jor civil, before such retirement offense.5 I take Under circumstances Hence, objec- shown we jus- it, believe that the an interests of cases. also criminal require tice jury re- exception jury’s should in- tion taken after formed tirement, my just as valid an money lesser and is offense given so, and be the opportunity exception, one taken more consider it —than —and possible as one of appeal has as much on verdicts.6 before —and stature spite implication the dissent’s that it The conviction reversed and the cause exception hasn’t. The fact that trial, remanded appro- for a or other new inconse- seems priate proceedings not with inconsistent quential. early This author discovered opinion.7 this No costs awarded. that on occasion the returned before exception counsel could dictate an to a TUCKETT, J., reporter. concurs. Lawrence, Mitchell, 5. See 2d trial see but to a new State v. *4 323, P.2d and authori- 618. 120 cited; also State v. ties Hyams, therein see 2

6. cases and 3 above. See footnotes 230 F. 349. prejudicial 7. That determination free, go error defendant is not entitled to complain give of the court’s failure to (dissenting): Justice it.

I dissent. the evidence would warrant a Where the con- prevailing opinion reverses offense, finding by the of an included the trial because viction of' the defendant court, prevent appellate an in order to a jury that their verdict instructed the court justice, miscarriage might notice an er- guilty of indecent should either give ror in the failure of the trial court to no re- or not The defendant thereon, though an instruction even de- jury be quest an that fense counsel overlooked the matter and they guilty find of a told could him except However, failed to thereto. merely excepted assault. He to the in- present requires case is not one which an given by court, struction as and that instruction on included offense. only had been the verdict jury. The law seems to be that found the failure instruct aon lesser offense The identical matter was before this only would be error if the defendant can McCarthy.1 court in the case of jury upon show that the the evidence be-' case, speaking through This that might fore it rationally acquit him of the Crockett, Mr. said: Justice greater charge and convict him of the appeal Defendant’s sole contention on lesser.2 improperly is that the trial court refused The defendant in this case was either to submit to in- the lesser and guilty of the offense with which he was attempted petty cluded offense of larce- charged or he was not anything.

ny. procedural difficulty There If put he did not private his hand on the position. with the defendant’s parts girl, then he committed no bat- any request record does not show tery, for what he did was with her consent was made for such an instruction. The entirely proper. merely He was only reference matter is that after group tossing a of children into pool given, the instructions had been an ex- play. ception was stated to the failure to so in- I do not see how there could be having struct. The defendant error in failed to failing instruction, to instruct request on an included position such is in offense no Lovely, Cal.App.3d 196, 425, 426, (1971) 1. Utah2d 93 Cal. 488 P.2cl 890 Rptr. Lumpkins, U.S.App. 2. United States v. (1970) ; People D.C. 439 F.2d 494 *5 n which rape charge an in- properly that in held given not could under the evidence of- struction assault was an included exist. the evi- not error because fense would pre- the cited footnote The cases finding un- support a dence there would impress opinion me as hold- vailing do not ability coupled present attempt with lawful simple ing on assault that an instruction person the injury on to commit violent given this case. should have been there was carnal another. In that case age knowledge girl under the of 13 of a Smith,3 did the trial court In State v. incapable years. was by statute she Since but give an on instruction act, of ne- there must consenting to the attempt coupled defined it as an unlawful battery, at- cessity therefore an be a present ability with a to commit a violent tempt would be an as- to the relation have injury upon person The the of another. every sault, assault is included since an jury requested clarification of term battery. injury.” explanation given “violent by excepted was to the de- the defendant was wise Counsel fendant, enough request and that what this court had on an was not to an instruction offense, question hoping of whether it was before it. The to have a verdict crafty enough except the in- proper guilty, to instruct on was not of not given before the court. cluded offense was not to the the court after received, in the the verdict was further one v. The case of State Waid4 hope might seize that this court there an actual assault made where point grant his client a new trial. testimony upon the showed victim. province of the It is the exclusive get away from the de- that she tried to facts of this case. It has found find the pulled her fendant but he held her and did liber- defendant take indecent building. If not did around per- ties with the The trial court victim. liberties believe he took indecent with stand, mitted the and I think this as- girl, properly find that he did could court should the conviction. affirm sault her. CALLISTER, J., concurs in dis- C. the defendant was In Smith5 senting opinion of rape, and the court there with J. Smith, (1965). 62 P.2d 5. State P.2d 445 3. 16 2d (1936). 4. 92 Utah