State of Utah v. Terwilleger

State v. Terwilleger

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Peter Allen Terwilleger,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020322-CA

F I L E D
(October 17, 2003)

2003 UT App 345

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Seventh District, Moab Department

The Honorable Lyle R. Anderson

Attorneys: K. Andrew Fitzgerald, Moab, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Orme.

DAVIS, Judge:

Defendant appeals his conviction of assault with substantial bodily injury, a class A misdemeanor. See Utah Code Ann. § 76-5-102(3) (Supp. 2003).(1) Defendant challenges his conviction based upon the trial court's failure to give either a proper elements instruction or a mens rea instruction.

Elements Instruction

"This court reviews a trial court's failure to give accurate elements in a jury instruction under a correctness standard." State v. Stevenson, 884 P.2d 1287, 1290 (Utah Ct. App. 1994). "This court has consistently held that '[f]ailure to give an elements instruction for a crime satisfies the manifest injustice standard under rule 19(c) and constitutes reversible error as a matter of law.'" American Fork v. Carr, 970 P.2d 717, 720 (Utah Ct. App. 1998) (alteration in original) (citation omitted). "Further, because [t]he general rule is that an accurate instruction upon the basic elements of an offense is essential, failure to provide such an instruction is reversible error that can never be considered harmless." State v. Stringham, 957 P.2d 602, 608 (Utah Ct. App. 1998) (alteration in original) (quotations and citations omitted); see also State v. Jones, 823 P.2d 1059, 1061 (Utah 1991) ("[T]he failure to give [an elements] instruction can never be harmless error.").

"However, 'a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.'" State v. Chaney, 1999 UT App 309,¶54, 989 P.2d 1091 (quoting State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996)). "[T]he manifest injustice exception has no application in cases in which the defendant invited the very error complained of on appeal." State v. Kiriluk, 1999 UT App 30,¶22, 975 P.2d 469 (quotations and citation omitted).

Defendant challenges the trial court's jury instructions on the assault charges because the trial court omitted the element that a defendant use "unlawful force or violence." Utah Code Ann. § 76-5-102(1)(a), (c). However, Defendant "invited the very error complained of on appeal." Kiriluk, 1999 UT App 30 at ¶22 (quotations and citation omitted). At trial, Defendant conceded during opening argument, direct examination, and closing argument that he had assaulted the victim, thus establishing the elements of assault, including "unlawful force or violence." Utah Code Ann. § 76-5-102(1)(a), (c).

The issue Defendant argued to the jury was whether he should be found guilty of the class B misdemeanor version of assault, or the class A misdemeanor version where an individual "causes substantial bodily injury to another." Utah Code Ann. § 76-5-102(2), (3)(a). Whether Defendant acted with unlawful force or violence was never a disputed issue, and in this case, the trial court conformed the instructions to the evidence presented at trial. Cf. Stevenson, 884 P.2d at 1292 (finding absence of manifest injustice where trial court failed to instruct the jury on an element that was "never an issue at trial").

"[W]here invited error butts up against manifest injustice, the invited error rule prevails." State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct. App. 1991). Because Defendant admitted that he assaulted the victim, Defendant conceded he acted with unlawful force or violence. The trial court's amendment of the jury instructions conformed to the evidence presented at trial. Failure by the trial court to include the unlawful force or violence element in the instruction was error invited by Defendant.

Finally, the record does not support Defendant's contention that he objected to the removal of the unlawful force or violence element from the jury instructions. Objections to jury instructions must be clear and specific. "To merely indicate that the instruction was not 'appropriate' or to express 'concern' does not constitute a viable objection upon which the court can rule. . . . [C]ounsel must . . . articulate a reasonable basis for any objection . . . ." State v. Kotz, 758 P.2d 463, 466 (Utah Ct. App. 1988). At best, Defendant objected to the trial court's removal of a proposed justification instruction, and then generally objected to alterations made to the jury instructions as a whole.

Mens Rea Instruction

The trial court failed to give an instruction regarding the mens rea for assault, which requires "intent, knowledge, or recklessness . . . to establish criminal responsibility." Utah Code Ann. § 76-2-102 (1999). Failure to properly instruct the jury regarding mens rea may be non-prejudicial error. See State v. Fontana, 680 P.2d 1042, 1048 (Utah 1984) ("[A]ny error in the omission of an express instruction on the element of knowledge was not prejudicial in this case."). Furthermore, "[a]ny error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded." Utah R. Crim. P. 30(a). Utah courts "have applied . . . rule [30(a)] to errors in jury instructions in criminal cases." Fontana, 680 P.2d at 1048.

In this case, the trial court's failure to provide an express instruction on mens rea did not prejudice Defendant and did not affect his substantial rights because the record reflects that it was undisputed that Defendant was culpable for the assault, and the jury instructions conformed to this evidence. Therefore the error "shall be disregarded." Utah R. Crim. P. 30(a).

We affirm.

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James Z. Davis, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Gregory K. Orme, Judge

1. Although Defendant was charged with an assault from an incident arising in 2001, any changes made to the statute since that time are not relevant to this case. We cite to the most current version of the statute for the convenience of the reader.