State of Utah v. Barbosa

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State v. Barbosa Case No. 20001085-CA



State of Utah,
Plaintiff and Appellee,


Renato L. Barbosa,
Defendant and Appellant.

(Not For Official Publication)

Case No. 20001085-CA

(December 6, 2001)

2001 UT App 365



Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Edward K. Brass, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee


Before Judges Jackson, Billings, and Davis.


Defendant Renato Barbosa appeals his jury conviction of Attempted Kidnaping, a third degree felony, in violation of Utah Code Ann. §§ 76-4-101 and 76-5-301 (1999). We reverse and remand for a new trial.

Defendant argues the trial court's failure to instruct the jury on the specific elements of attempt(1) violates his right to a unanimous jury verdict under Article I, Section 10 of the Utah Constitution. Defendant did not object to the trial court's failure to instruct the jury, nor did he submit any instructions. Therefore, we review Defendant's claim for plain error.(2) See State v. Evans, 2001 UT 22,¶16, 20 P.3d 888. To succeed on his plain error claim, Defendant must establish an error that "should have been obvious to [the] trial court" and was prejudicial or "of sufficient magnitude that it affect[ed] [Defendant's] substantial rights." State v. Verde, 770 P.2d 116, 122 (Utah 1989) (quotations and citation omitted).

"[T]he general rule is that an accurate instruction upon the basic elements of an offense is essential;" thus, the "failure to provide such instruction is reversible error that can never be considered harmless" even though the challenging party failed to object to the lack of such instruction at trial. American Fork v. Carr, 970 P.2d 717, 720 (Utah Ct. App. 1998) (quotations and citations omitted). The State argues the trial court's failure to instruct on the elements of attempt was not prejudicial error because the record establishes Defendant's intent, whether Defendant's conduct amounted to a substantial step was not at issue, and the jury necessarily found that Defendant's conduct was a substantial step.

We agree that if the facts indisputably establish an element and the element is not at issue at trial, then a trial court's failure to instruct on the element is not prejudicial error. See, e.g., State v. Stevenson, 884 P.2d 1287, 1292 (Utah Ct. App. 1994) (holding failure to instruct on nonmarriage element of rape statute was harmless because nonmarriage was undisputed at trial). However, in the present case we cannot say the facts indisputably establish the elements of attempt.

Furthermore, Defendant's intent was clearly at issue. Defense counsel argued that Defendant grabbed J.H.'s arm to measure hands. The State argued that Defendant grabbed J.H.'s arm in attempt to kidnap him. Whether Defendant's conduct was a substantial step, strongly corroborative of the intent to kidnap J.H., was also at issue. We therefore conclude the failure to give an attempt elements instruction was prejudicial error that should have been obvious to the trial court. See State v. Harmon, 712 P.2d 291, 292 (Utah 1986) (per curiam) ("Since the jury was not instructed concerning the elements of the crime of which [the defendant] was convicted, we are unable to determine

whether the jury properly found each element of the crime beyond a reasonable doubt . . . .").

We accordingly reverse and remand for a new trial.

Judith M. Billings, Judge



Norman H. Jackson, Associate Presiding Judge

James Z. Davis, Judge

1. Under the Utah Criminal Code, "[A] person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the offense, he engages in conduct constituting a substantial step toward commission of the offense." Utah Code Ann. § 76-4-101(1) (1999). "[C]onduct does not constitute a substantial step unless it is strongly corroborative of the actor's intent to commit the offense." Id. § 76-4-101(2).

2. Defendant also claims his counsel was ineffective in not objecting to the lack of an attempt elements instruction and the evidence was insufficient to support his conviction. Because our plain error analysis is dispositive, we do not reach these claims.