*2 BENCH, ORME, Before BILLINGS and JJ.
OPINION BILLINGS, Judgе: Danny Griego appeals his convictions by prisoner, two counts of assault a third- degree felony, in violation of Utah Code Ann. (1995), § 76-5-102.5 count one of inter- an arresting ference with B class misdemeanor, in violation of Utah (1995). Specifically, Griego claims that the trial court erred not dis- against missing charges him because the State failed to essential elements of the Griego crimes. also claims the trial court in giving jury erred instructions. We affirm.
FACTS p.m., 14, 1992, July Deputy
At 11:28 on County Haussler the Salt Lake Sheriffs dispatch Office a call from received abоut possible assault or domestic violence situa- Dispatch tion. informed him that a witness reported seeing pull a male a female into a green pickup report and white truck. This number, plate included the truck’s license owner, name of defendant as the truck’s well as where the truck was last seen and which going. direction it had been After unsuccessfully vehicle, trying to locate the Deputy report Haussler received another dispatch telling from him to check on Pierce, alleged whereabouts of one Julie abuse, victim of the to ensure that she was being against held Dispatch her will. also Deputy informed Haussler of Pierce’s possible location. deputy few minutes later ar- Haussler given
rived at the location
him dispatch
where he met Officer Bertram. Both officers
wearing
driving
were
uniforms and
marked
Deputy
up
cars.
Haussler went
spoke
Griego,
home and
with David
de-
explained
fendant’s son. Officer Haussler
Fujino
Mack,
Ronald S.
and David
looking
P.S.
David that he was
for Pierce and
City,
Salt Lake
Appellant.
response,
Defendant and
defendant.
David told Officer
obscenities, drawing
pick- gle
yell
the atten-
green
father
that his
drove
Haussler
truck,
girl-
neighbors.
Pierce was
father’s
tion of several
up
friend,
he did not know where
and that
patrol
the officers
car
Once
reached
left defendant’s
The two officers
were.
defendant, Deputy
bent defen-
thereafter,
Shortly
officers
the two
*3
keep
hood
him
dant over the
to
under
informing
by dispatch,
again contacted
were
car,
trol. While bent over the
defendant
searching for
they were
thеm that the truck
screaming
yelling
continued
obscenities and
just
they had
left.
been seen at the home
had
daughter
get
his
and
neighbors
at
to
They quickly
to defendant’s
returned
beating
“they
camera because
are
me like
arrived,
ap-
they
officers
both
When
Furthermore,
King.”
Rodney
once bent over
house, which
the front door of the
proached
car,
began kicking wildly
the defendant
open.
could see
defen-
was
The officers
him, striking Deputy
with
Haussler
behind
son,
teenage daughter,
dant’s
defendant’s
Eventually, due to
his feet several times.
they
to be
and man
believed
defendant
violence, Deputy
defendant’s
continued
sitting
Deputy Haussler
in the front room.
placed
under arrest and
Haussler
defendant
holding a
also noticed that defendant was
handcuffed him.
The
appeared intoxicated.
officers
beer and
fracas,
daughter,
During this
defendant’s
seeing
in a
reported
someone’s shadow
also
Cara,
house,
inside
retrieved a cam-
went
nearby hallway.
era,
began photographing
and
the events oc-
point Deputy
At this
Haussler exрlained
curring between defendant and
officers.
was,
there,
why
he
and asked
was
warnings
After
to move back and
speak
to
and
with
defendant
come outside
stop interfering,
disobeyed,
which she
Officer
him
Bertram. Officer Haussler
and Officer
after he
under
Bertram left defendant
with
that he wanted to talk
defen-
testified
placed
and
under arrest
control
Cara
to
dant outside so as
alleviate
stress
arresting
interfering with an
separate
as to
defendant
the situation well
getting
While Officer Bertram was
Cara
De-
to avoid
cоnfrontations.
from Pierce
control, Deputy
placed
under
Haussler
de-
vulgar
request
and
refused the
fendant
car,
patrol
fendant in
front seat of his
Deputy
de-
obscene terms.
Haussler asked
belt,
locked and closed the
buckled
seat
two addition-
fendant to come outside
least
door,
went
to assist
Bertram.
and
Officer
responded with the
al times. Defendant
kick, damaging
began
yell
to
and
Defendant
Ultimately,
offi-
vulgar refusals.
same
being
patrol
Despite
car.
the inside
home,
into
walked over
cers went
defendant’s
handcuffs,
eventually
defendant
unfastened
grabbed
each
one
defen-
to defendant and
opened
ear
As
door.
seatbelt
occurring,
this was
Offi-
dant’s arms. While
ear,
crawling
began
out of the
defendant
seeing
reported
Bertram
a female stand-
cer
Sisneros,
Salt
dispatcher
with the
Shawn
hallway
in a
two
back
area. The
officers
County
riding
Lake
Sheriffs Office who
out of the home
then escorted defendant
night,
along
no-
with Officer Bertram
yelled
while he flailed his arms
obsceni-
attempt to
ticed defendant’s
leave
ties.
two
attentions were
car while the
officers’
physical
and verbal
Because
defendant’s
towards Cara.
directed
tirade, Deputy
it would
Haussler determined
patrol
Deputy
ran to
Haussler’s
imprudent simply
on
Sisneros
to release defendant
in the
attempted
him as
ear and
to hold defendant
porch of the
and talk with
home
Instead,
legs,
,
by grabbing
which was
originally planned.
the offi-
car
defendant’s
he had
very
to
due
defendant’s re-
Deputy
Haussler’s made
difficult
cers escorted defendant
kicking of
in the arms and
peated
arm
Sisneros
using a “control hold” on defendant’s
car
eventually
Deputy
noticed
investigation in a
chest.
Haussler
to conduct their
order
help
going on and rushed to
Sisne-
Despite
con- what was
environment.
the officers’
safe
Depu-
process,
kicked
requests
“calm down”
ros.
In
defendant
tinued
to defendant to
ty
Deputy
in the
Haussler
wanted
chest.
and their statements
seat, grabbed
him,
strug-
into
rear
then climbed
talk to
defendant continued to
arms,
attempted
prove
put
defendant under his
State failed
that hе was
arrest,”
position
pull
up
him
to a seated
“lawful
back
element
prisoner,
front
and that the State
seat.
failed
disobeyed
order,”
required
a “lawful
help
point,
At
came to
this
Officer Bertram
element of the
with
Deputy Haussler
subdue defendant. He
officer statute.
grabbed
legs
repeatedly
told
dealing
The seminal case Utah
with this
stop kicking.
calm down and to
issue as
person’s right
well as
Instead,
comply.
did
Defendant
defen-
against illegal police
defend himself
activities
legs,
dant freed one of his
drew it
back tо
Gardiner,
is State v.
modern (alteration origi- at 574 adopt a rule that right law and common illegal nal) may use force to resist (quoting Utah Code Ann. 76-5-102.4 citizens “[wjhere police (1990)). activity, officer uses police unless the officer This means that (citing n. 2 at 573 & force. See id. scope excessive acting wholly of his is not outside the rule). law rejecting cases common authority, may not be or her action Id. The court further concluded resisted.” However, the on to conclude: court went though officer Gardiner that even so, we free do [W]ere seizure, illegal conducted search English common reject law inclined authority, scope within the of his acting illegal defense adopt the diluted hence, statutory right had no Gardiner [v. articulated in Elson search or arrest (Alaska 1983)7 forcibly Id. at resist State, P.2d 1195 However, 575-76. we conclude decisions.1 similar are not free to fashion such rule that we Next, court examined Gardiner’s already legislature acted because arresting offi- for interference with an viction in the area. Id. 575. At the time Gardiner was cer. at (footnote and footnote omitted
Id.
crime,
charged
the statute read:
added). The
determined that because
court
*5
B
person
guilty
is
of a class misde-
“A
com-
Legislature had abolished all
the Utah
by
knowledge,
if he
has
or
[or she]
meanor
crimes,
guilty
person
“a
is
of a
law
mon
care, should
the exercise of reasonable
person’s action and state of
only
crime
if that
peace
knowledge,
a
officer is
that
statutory
fit
the
definitional ele-
mind within
a
arrest or deten-
seeking to effect
(citing
of a crime.” Id.
Utah Code
ments
lawful
herself]
another and
[or
tion of himself
or
(1973)).
§Ann.
The court farther
76-1-105
by
or
interferes with such arrest
detention
legislature
“the
enacted a number
noted that
by
any weapon.”
use of
use of force or
throughout
specific defenses
general”
of
code,
recognize
general
none of which
added) (quoting
(emphasis
Utah Code
Id.
police
illegality
of
con-
defense “based on
§
court
(Supp.1990)).
Ann.
76-8-305
The
Thus, the
at 574.
court concluded
duct.” Id.
hit the officer for
that when “Gardiner
noted
Utah,
it
such a defense exists
“[i]f
time,
had
section 76-5-
first
hе
violated
grounded
specific
code sec-
must be
peace
Id. The
officer].”
of a
[assault
102.4
defendant]
con-
[the
under which
was
tions
concluded that because Gardiner
court then
victed.” Id.
him
attempts
place
the officers’
resisted
analyze
court went on to
The Gardiner
the crime of
arrest after he committed
was
under which Gardiner
two statutes
officer,
peace
interfering
he
on a
was
assault
if
charged
to determine
those
and convicted
seeking to
a lawful
with an “officer
effect
particular
an individual to
statutes authorized
arrest,”
of
properly
hence was
convicted
forcibly
illegal
Id. After
resist an
arrest.
Id.
interfering with an
closely
statutory language
scrutinizing the
of
defendant,
case,
rely
(1990) (assault-
present
§
Code Ann. 76-5-102.4
Utah
Gardiner, argues that
analysis of
officer),2
ing on the
police
the court concluded a
charged,
which he was
the statutes under
person
forcibly resist
was not authorized to
§
prisoner,
Ann.
76-
by a
Utah
illegal
subsequent
if
assault
Code
arrest
an
search
“
(1995),3
with
ar-
‘acting
scope of his
5-102.5
and interference
officer
within the
(1995) provides:
§
person
Code Ann. 76-5-102.5
have allowed a
to forci-
3.Utah
1. This rule would
bly
illegal
cases
arrest
in those
resist
assault, intending
Any prisoner who commits
police
used excessive force.
which a
officer
felony
injuty,
guilty
bodily
is
of a
to cause
degree.
the third
(1990) provides:
§
2. Utah Code Ann. 76-5-102.4
as:
Prisoner is defined
officer,
peace
[a]ny
custody
person
of a
Any
peace
person
is
who assaults
officer,
who is
pursuant to
arrest or
knowledge
police
officer
he
and when
is
lаwful
penal
jail
or a
acting
scope
in a
or other
institution
confined
peace
is
within the
officer
officer,
delinquent ju-
facility
peace
guilty
used for confinement of
authority
is
of a
as a
by
Cor-
operated
Division of Youth
veniles
class A misdemeanor.
resting
Utah Code Ann.
76-8-305
that have a sufficient causal connection to
misconduct_
(1995),4require
State to
the lawful-
police
Unlike the sit-
arrest,
ness
which the
failed to
State
response
uation
where
to the unlawful
and, thus,
granting
do
the court erred in not
police
merely
action
reveals
Specifically,
his motion to dismiss.
defen-
already
being
a crime that
been
is
original
dant claims that because his
seizure
committed, extending the fruits doctrine to
illegal,
from his home was
there was no
a defendant from arrest for
immunize
new
arrest,
required
lawful
as
Ann.
gives
crimes
a defendant an intolerable
(1995),
legal
76-5-102.5
or no
arrest or
carte blanche to commit further criminal
order,
required
as
Utah
long
sufficiently
acts so
are
(1995),
accordingly,
he could not
nected to the chain of causation started
violating
convicted
these statutes. We
police
misconduct.
This result
too
validly
legally
conclude defendant was
reaching
high price
pay
far
and too
arrested, and therefore
affirm
police
order
deter
misconduct.”
convictions.
Wagstaff,
(quoting Bailey,
officers, well as that he resisted his lawful young himself as defendant’s son. The man use girl- arrest of force.7 We further said that Juliе Pierce was father’s friend, that the trial court did not conclude commit that father and Julie were not time, jury allowing At pickup reversible error deter- truck was lawfully driveway mine whether defendant was arrest- and Officer Haussler saw ed. We therefore affirm. no one else the house. house, leaving After the offi-
ORME, J., concurs.
dispatch
regarding
cers received another
call
domestic violence. Officer Bertram testified
result):
BENCH, Judge (concurring in
reported seeing
that the same witnesses had
I
affirm
the convictions on the basis
fighting
the same man and woman
probable
had
the officers
cause to enter
pickup truck at the address the officers had
him for
defendant’s house and arrest
assault.
just visited. When the officers returned to
77-7-2(3)(e) (1995)
See Utah Code Ann.
house,
Officer Haussler saw the white
(providing authority for
if
warrantless arrest
green pickup
parked
truck
in the front
probable
suspect
officer has
cause to believe
yard.
approached
open
As the officers
public
may “injure
committed
offense and
door,
man,
thеy
front
saw a
whom
be-
person”).
approach
another
This was the
defendant, sitting
lieved to be
on a couch and
prosecution
taken
at trial and is the
holding a can of beer. Officer Haussler testi-
straightforward
most
basis for affirmance.
appeared
fied that defendant
intoxicated.
requires nothing
Probable cause
than
more
Defendant admitted to the officers that he
probability.
rational conclusion of
v.
State
was the driver
pickup
of the
truck. Officer
1085,
(Utah 1986).
Dorsey, 731 P.2d
separate
that he
testifiеd
wanted to
probable
“Determinations
whether
cause
defendant and Julie to avoid
further
require
exists
a common sense assessment of violence. The officers recalled that defen-
totality
confronting
of the circumstances
verbally
response
dant became
abusive
searching
officer.” State v.
repeated
Officer
requests
Haussler’s
that de-
(Utah
Spurgeon,
App.1995).
904 P.2d
step
fendant
outside.
ease,
In this
Officer Haussler
facts,
received a
probable
On these
the officers had
dispatch
rеgarding
possible
call
“a
cause
believe that defendant had commit
domestic violence situation.”
witness
earlier-reported
ted the
assault. See Utah
reported seeing
pulling
had
man
77-7-2(3) (1995);
woman
Code Ann.
see also State
green
truck,
pickup
Leonard,
into white and
which
v.
App.
registered to
1991)
defendant.
Ber-
Officer
(holding
proper
warrantless arrest
if
tram, who was called to
assist Officer Haus-
“from the facts known to the
and the
sler,
spoken
had
with several
witnesses
fairly might
inferences which
be drawn
pickup
described the
truck and said that
therefrom,
prudent
person
reasonable and
they had seen a man assault a woman. The
position
justified
in his
believing
would be
*8
appeared
said that
witnesses
the man
intoxi-
suspect
that the
had committed the offense”
verbally
cated and was
Hatcher,
abusive. Officer
(quoting
318,
v.
27
State
Utah 2d
dispatch call,
received
second
an-
320,
1259,
(1972))),
495 P.2d
1260
cert. de
nouncing
(Utah 1992).
nied,
Julie Pierce had
taken
been
When officers went to the address that Domestic violence is “one of the through Officer potentially Haussler had received dis- dangerous, most volatile arrest patch, they young confronting met man who identified police.” situations v. State Rich statute, arrest,” prisoner 7. We requiring note that the law now exists under a “lawful Gardiner, today might might giving result we reach be construed as individual right "illegal occur in othеr factual situations. Some of the to resist an arrest” and result in language in statutes such as the assault unintended results.
1011 (Utah 689, ards, App.1989). P.2d and defendant’s
light domestic violence of the verbally abu apparent intoxicated state behavior, justified in officers were sive prevent any further defendant violence. acts of own interfered with his Because arrest, his conviction for can affirm arresting officer. See with an (1995); see also v. State 1991). Similarly, defendant assault- because he was under lawful officers while
ed the arrest, convicted §§ 76- Code Ann. prisoner. See Utah (1995).
5-101, -102.5 I in the result. therefore concur BONDS, BAIL BEEHIVE Petitioner, INC.,
v. Utah; COURT; State of FIFTH DISTRICT County; Washington James L. Shu Respondents. mate, Judge, District No. 960735-CA. Appeals of Utah. Court Feb. 1997.