State of Utah v. Deiter

State of Utah v. Deiter  
IN THE UTAH COURT OF APPEALS
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MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

James Deiter,
Defendant and Appellant.

Case No. 971555-CA

F I L E D
(October 29, 1998)
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First District, Brigham City Department
The Honorable Ben H. Hadfield

Attorneys:
Candace S. Bridgess, Ogden, and Kevin McGaha, Brigham City, for Appellant
Jan Graham and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Orme.

GREENWOOD, Judge:

Defendant James Deiter appeals his convictions of possession of a firearm by a restricted person, a second degree felony, pursuant to Utah Code Ann. 76-10-503(2)(b) (Supp. 1998), and possession of a dangerous weapon by a restricted person, a second degree, felony pursuant to Utah Code Ann. 76-10-503(2)(a) (Supp. 1998). We affirm.

Interpretation of "Firearm"

Defendant challenges the trial court's interpretation of the definition of "firearm" under Utah Code Ann. 76-10-501(2)(g) (Supp. 1998). We review "a trial court's statutory interpretation for correctness, according no deference." State v. Martinez, 896 P.2d 38, 39 (Utah Ct. App. 1995).

Quoting the statutory language, the court instructed the jury that a firearm is "a pistol, revolver, shotgun, sawed-off shotgun, rifle or sawed-off rifle, or any device that could be used as a dangerous weapon from which is expelled a projectile by action of an explosive. See Utah Code Ann. 76-10-501(2)(g) (Supp. 1998). Defendant argues the jury should have been instructed that in order for any of the listed items to be characterized as a firearm, they must be capable of functioning as a firearm, i.e., capable of expelling a projectile by action of an explosive. We believe the defendant's interpretation of the statute is contrary to the clear meaning of the statute. In Brinkerhoff v. Forsyth, the Utah Supreme Court held, "[w]here statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent. Rather, we are guided by the rule that a statute should generally be construed according to its plain language." 779 P.2d 685, 686 (Utah 1989). In this case, the language of the statute is indeed clear. The statute defines a firearm as a pistol, etc. "or any device that could be used as a dangerous weapon from which is expelled a projectile by action of an explosive." Utah Code Ann. 76-10-501(2)(g) (Supp. 1998) (emphasis added). The use of the word "or" in the statute means that the phrase "expelled a projectile by action of an explosive" only modifies "any device," not the preceding list of firearms. This interpretation is supported by the legislative intent of the statute "'to deter those convicted of violent crimes from thereafter having guns, loaded or unloaded.'" State v. Davis, 711 P.2d 232, 234 (Utah 1985) (emphasis in original) (quoting State v. Nielsen, 544 P.2d 489, 490 (Utah 1975)). Therefore, a firearm need not be operable to fall within the definition in the statute.

Insufficiency of the Evidence

Defendant claims the evidence at trial did not support his conviction and the trial court therefore erred in denying his Motion for a New Trial based on insufficiency of the evidence. Where a defendant challenges a conviction based on sufficiency of the evidence, we will reverse only when the evidence "'is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted.'" State v. Johnson, 821 P.2d 1150, 1156 (Utah 1992) (quoting State v. Verde, 770 P.2d 116, 124 (Utah 1989)). In addition, we will review the "'evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict.'" See id.

Adhering to that standard, the evidence in this case includes the 911 phone call by defendant, the testimony of two officers that they saw defendant with a rifle, and the two .22 caliber shells found in defendant's bedroom. The sufficiency of that evidence comports favorably with that in State v. Gurr, 904 P.2d 238 (Utah Ct. App. 1995), in which this court upheld a defendant's conviction for possession of a dangerous weapon by a restricted person by finding that he both had knowledge of the presence of the firearm in his trailer and exercised some degree of control over the firearm. See id. at 242. Here, defendant obviously knew of the presence of the rifle and exercised control over the rifle, as he came out of the house carrying it and threatening to shoot. Cf. Davis, 711 P.2d at 234 (holding jury could reasonably infer from officers' testimony that defendant displayed pistol and kept it, that defendant possessed a firearm). Thus, there was substantial evidence presented at trial which could lead a jury to find beyond a reasonable doubt that defendant possessed a firearm within the meaning of the statute.

Confrontation Clause

Defendant argues that in limiting his cross-examination of Officer Smith, the trial court denied him his rights under the confrontation clause of the Sixth Amendment and caused harm beyond a reasonable doubt. See State v. Villarreal, 889 P.2d 419, 425 (Utah 1995) (holding reversal required only if error harmful). Defendant argues that Officer Smith's testimony regarding whether he may have given defendant permission to possess the bow and arrow would have given him a defense to the possession charge, thereby raising a reasonable doubt in the jurors' minds as to whether defendant was guilty of possession of a dangerous weapon. On appeal from the denial of a defendant's Motion for a New Trial, trial courts are normally given some latitude. Therefore, an abuse of discretion standard governs. See Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988).

Although Officer Smith testified at the sentencing hearing that any permission given would only have been effective for the specific parol agreement in effect around 1983, defendant argues that a jury could have found that defendant believed that permission was still effective, thereby relieving him of guilt for possession of the bow and arrow. However, we believe Officer Smith's equivocal testimony that any permission given in 1983 was no longer effective and that he did not recall anything one way or another about such permission would likely have defeated defendant's theory. Therefore, limiting the cross-examination of Officer Smith would not have affected the jury's verdict and was harmless beyond a reasonable doubt.

Jury Instruction on Definition of a Dangerous Weapon

Utah Code Ann. 76-10-501(2)(d) (Supp. 1998) states that a "'Dangerous weapon' means any item that in the manner of its use or intended use is capable of causing death or serious bodily injury." It also provides the following factors to be considered in determining whether an item not commonly known as a dangerous weapon is a dangerous weapon: (i) the character of the instrument, object, or thing;

(ii) the character of the wound produced, if any;

(iii) the manner in which the instrument, object, or thing was used; and

(iv) the other lawful purposes for which the instrument, object, or thing may be used. See id.

Defendant argues that the trial court erred in instructing the jury using the statutory language, contending that the bow and arrow under these circumstances is not commonly known as a dangerous weapon. Defendant's argument is inconsistent with two cases in which this court interpreted section 76-10-501(2)(d). In State v. Archambeau, we held that an object is a dangerous weapon "if, based upon its actual use, subjectively intended use, or objectively understood use, it can cause death or serious bodily injury." 820 P.2d 920, 927 (Utah Ct. App. 1991). Similarly, in State v. Pugmire, we held that the definition of a dangerous weapon includes "those objects whose uses (objective) or intended uses (subjective) are capable of causing death or serious bodily injury." 898 P.2d 271, 273 n.5 (Utah Ct. App. 1995). In both cases, we held it was proper for the trial court, after viewing the defendants' knives, to conclude that they fell in the category of dangerous weapons.

In this case, testimony indicated that the bow and arrow were next to defendant's bed in a position where he could quickly grab them and that the bow was loaded and ready to shoot. This is quite different than if the bow and arrow had, for example, been mounted on the wall as part of an interior decorating effort. The trial judge stated that "it depends on the evidence, but assuming it's a compound bow that someone would use to kill an elk or deer, I think it would be commonly known as a dangerous weapon." Based on this information, the trial court concluded, as a matter of law, that the bow and arrow were dangerous weapons within the meaning of the statute and instructed the jury accordingly. This determination was based on the trial court's understanding of the objective purpose for which a bow and arrow may be used, as well as defendant's subjective intended use. This determination is consistent with the holdings in Archambeau and Pugmire. Therefore, the trial court did not err in finding as a matter of law that the bow and arrow were dangerous weapons and refusing to instruct the jury on the factors relevant to those objects not commonly known as dangerous weapons.

Affirmative Defenses

Defendant argues the trial court improperly refused to instruct the jury on the defenses of compulsion and force in defense of person and habitation. "A trial court's refusal to give a jury instruction presents a question of law, which we review for correctness, giving no particular deference to the trial court." State v. Quada, 918 P.2d 883, 885 (Utah Ct. App. 1996). Failure to give a requested jury instruction constitutes reversible error only if the omission tends "'to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advise[s] the jury on the law.'" Summerill v. Shipley, 890 P.2d 1042, 1045 (Utah Ct. App. 1995) (citation omitted).

The defense of compulsion was irrelevant to defendant's case because that defense requires coercion of the defendant to engage in an offense through a "threatened imminent use of unlawful physical force." Utah Code Ann. 76-2-302 (1995). The facts in this case simply do not support such a defense. Defendant only claimed to have heard a noise at the door; there was no evidence to show that defendant was faced with any imminent threat. The defenses of force in the defense of habitation and force in the defense of person were similarly irrelevant. Both defenses are justifications for using force against another person in certain circumstances. See Utah Code Ann. 76-2-402(1) (Supp. 1998), 76-2-405(1) (1995). Here, as there was no force used against defendant, these defenses are clearly inapplicable. Even assuming arguendo that defendant was faced with a situation which would justify the use of force, he has no defense for the use of a firearm. A parole agreement which restricts a parolee's right to possess firearms trumps any justification that a person not on parole would have for the possession of a firearm.

In addition, the instructions requested by defendant had the potential to confuse the jury. See State v. Tennyson, 850 P.2d 461, 471 (Utah Ct. App. 1993) (finding jury instruction caused "superfluous obfuscation of the central issues before the jury."). A trial court is not required to instruct the jury on any possible law the defendant thinks applicable. On the contrary, "the trial court has a duty to instruct the jury on the law applicable to the facts of the case." State v. Potter, 627 P.2d 75, 78 (Utah 1981). Therefore, the trial court was correct in rejecting the jury instructions proposed by defendant.

Conclusion

Based on the foregoing discussion, the trial court's denial of defendant's Motion for a New Trial and the convictions of defendant for possession of a firearm and a dangerous weapon by a restricted person are affirmed.
 

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Pamela T. Greenwood, Judge ----- I CONCUR:
 

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Judith M. Billings, Judge ----- I CONCUR IN THE RESULT:
 

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Gregory K. Orme, Judge