SLC v. Hendricks

----ooOoo----

Salt Lake City,
Plaintiff and Appellee,

v.

Craig Norman Hendricks,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001006-CA

F I L E D
February 14, 2002 2002 UT App 47 -----

Third District, Salt Lake Department
The Honorable Ann Boyden

Attorneys:
Rudy J. Bautista, Salt Lake City, for Appellant
Paige Williamson and Simarjit Singh Gill, Salt Lake City, for Appellee -----

Before Judges Jackson, Orme, and Thorne.

ORME, Judge:

"When a court is called upon to tender . . . conflicting [jury] instructions, it must take specific care that the instructions remain distinct and cannot be confused or misapplied." State v. Potter, 627 P.2d 75, 78 (Utah 1981). The parties are "'entitled to . . . a presentation of the case to the jury under instructions that clearly, concisely and accurately state the issues and the law applicable thereto so that the jury will understand its duties.'" Nielsen v. Pioneer Valley Hosp., 830 P.2d 270, 274-75 (Utah 1992) (explaining that trial court's failure to simplify and clarify jury instructions resulted in confusing instructions that "may well have prejudiced [appellant's] . . . case.") (quoting Hanks v. Christensen, 11 Utah 2d 8, 354 P.2d 564, 566 (1960)). Fulfilling this obligation may require a court to tailor certain instructions to fit the facts of the case or to carefully explain to the jury how one instruction may or may not relate to another. See id.

For the trial court in this case to give the exact instruction for defense of habitation as an affirmative defense to a criminal charge, without tailoring the concept to apply to a non-party, and especially in conjunction with the self-defense instruction requested by defendant, was confusing and erroneous. The instruction contained language from Utah Code Ann. § 76-2-405(2) (1999) indicating that "[t]he person using force in defense of habitation is presumed . . . to have acted reasonably." This language, appropriate for an affirmative defense, has the potential to confuse the jury about the State's burden of proof in a case where the alleged victim, not the defendant, is claiming defense of habitation. Cf. State v. Moritzsky, 771 P.2d 688, 690-91 (Utah Ct. App. 1989) (explaining the burden on a defendant claiming the affirmative defense of defense of habitation); Utah Code Ann. § 76-2-405(2) (1999).

Without an appropriate explanation, the instruction could easily have misled the jury to believe that because Lowell claimed to be forcing defendant to leave his home at the time of the altercation, defendant had the burden of refuting the presumed reasonableness of Lowell's actions. In actuality, the State had the burden of proving, beyond a reasonable doubt, that defendant did not act in self-defense. Under the circumstances, modification of the defense of habitation instruction, or some clarification of the relationship between the two jury instructions, was necessary. Failure to do so constituted error.

However, a court's error in instructing a jury is harmless if "we are not convinced that without [the misleading] instruction the jury would have reached a different result." Green v. Louder, 2001 UT 62,¶17, 29 P.3d 638. We cannot say the error in this case was harmless. We believe a properly instructed jury could have found that defendant acted in self-defense.

Defendant provided detailed testimony describing a history of violence between himself and his brother--a history that defendant claimed put him in fear his brother would attempt to assault him with a dangerous weapon. This testimony, coupled with an acceptance of defendant's version of what transpired that evening, could reasonably support a jury finding that defendant acted in self-defense.

Further, the facts pertinent to whether defendant is legally precluded from claiming self-defense are very much in dispute.(1)

While one view of the evidence may be that the level of violence employed by defendant exceeded any self-defense privilege defendant might have had, the opposite conclusion is also possible. At trial, defendant testified that his brother Lowell, who defendant claimed had a history of attempting to injure defendant, had been drinking and grabbed defendant from behind, embracing him so tightly that defendant had to bite Lowell to force him to release defendant. Defendant further testified that a fight ensued and that he became afraid, as Lowell attempted to leave the room, that Lowell was going to his bedroom to retrieve a hatchet that defendant claimed Lowell had swung at him in the past or to the kitchen to arm himself with knives or tools and that, as a result, defendant took admittedly firm action to prevent such an attack from occurring. Defendant explained that he did not attempt to flee while Lowell was in the other room because Lowell's hold had injured defendant's back and the door to the home was difficult to unlock and open. Thus, he claimed to be concerned that he would not have enough time to escape before Lowell's return with a weapon. Defendant testified that he believed he could only protect himself by incapacitating his brother and that he therefore did so.

Mindful of the conflicting evidence at trial, we cannot say as a matter of law that a properly instructed jury could not have found defendant acted in self-defense. Consequently, we are unable to conclude that the trial court's error in instructing the jury was harmless. Accordingly, we reverse and remand for a new trial.
 
 
 

______________________________
Gregory K. Orme, Judge -----

I CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge

1. Thus, we do not believe the analysis of State v. Tuckett, 2000 UT App 295,¶13, 13 P.3d 1060, is applicable to this case. In Tuckett, neither party disputed the fact that the defendant had been repeatedly asked to leave but refused. In fact, Tuckett himself provided testimony describing the victim's attempt to remove him from his home. It being undisputed that Tuckett had become a trespasser, we concluded that he had a duty to retreat and held that the jury was properly informed that his self-defense privilege was very limited as a result. However, whether defendant in the instant case was a trespasser or an invited guest was disputed factually. While Lowell claimed that defendant was impermissibly on the premises on the night in question, defendant claimed that Lowell, who had allowed him to sleep at the residence the night before the incident, opened the door and let him in. In fact, he claimed that, lacking a key, he otherwise could not have entered the home.

-----

THORNE, Judge (dissenting):

I dissent from the majority's conclusion that the defense of habitation instruction confused or misled the jury to such an extent that reversal of Defendant's conviction is necessary.

"One of the foundational principles in regard to the submission of issues to juries is that where the parties so request they are entitled to have instructions given upon their theory of the case . . . ." State v. Gillian, 23 Utah 2d 372, 463 P.2d 811, 812 (1970). Here, in the face of Defendant's expected proffer of self-defense as an explanation for his actions, the State presented evidence demonstrating that Defendant had been asked to leave the victim's property, and as such, the victim was within his rights to attempt to physically remove Defendant from his property. SeeState v. Tuckett, 2000 UT App 295,¶¶12-13, 13 P.3d 1060.

The majority would foreclose the State's use of a defense of habitation instruction in response to a defendant's self-defense claim on the sole ground that a defendant's status as a trespasser was in dispute. While I agree that Defendant's status was unclear, whether or not he was a trespasser is a factual question. Accordingly, the jury was in the best position to determine whether Defendant was a trespasser, and if so, his claim of self-defense would be given a legal context through application of a defense of habitation instruction. SeeSteele v. Breinholt, 747 P.2d 433, 436 (Utah Ct. App. 1987) (stating, in considering the elements of criminal trespass, "It is the exclusive province of the jury to determine the credibility of the witnesses and weight the evidence."). The trial court, therefore, correctly submitted the prosecutor's proffered instruction to give legal context to the victim's version of the incident.

Moreover, contrary to the majority's suggestion, I do not believe that the trial court erred in submitting the instruction as written. Although Defendant's trial counsel objected to the inclusion of the instruction, counsel did not object to the wording. Furthermore, after failing to convince the judge of the impropriety of the instruction, Defendant's trial counsel neither requested nor attempted to craft a tailored instruction to replace the prosecutor's proffered instruction. The trial court thus correctly submitted the prosecutor's instruction as drafted, because the prosecutor had presented sufficient evidence to support its inclusion.

Additionally, even if the instruction was improper, the focus should still be on the overwhelming evidence that shows that the totality of Defendant's actions, even according to his own testimony, clearly exceeded what was necessary to defend himself. The balance of the jury instructions informed the jury that they could not convict Defendant if the evidence, including Defendant's testimony concerning self-defense, created any reasonable doubt that Defendant committed the crime. I would, therefore, affirm Defendant's conviction. SeeState v. Diaz, 859 P.2d 19, 24 (Utah Ct. App. 1993) (stating "'When taken as a whole if [the jury instructions] fairly tender the case to the jury, the fact that one or more of the instructions, standing alone, are not as full or accurate as they might have been is not reversible error.'" (Citation omitted.)).

In my view, the evidence was clear. The Defendant, who no longer lived in the house with the victim, unexpectedly appeared at the victim's door at eleven o'clock in the evening. Then, accepting the Defendant's testimony as true,(1) the victim attempted to attack Defendant, an attack that, according to Defendant, may have injured Defendant's back. Defendant fought the victim off, and then, apparently to prevent him from walking to another room where a weapon may have been kept, Defendant knocked the victim to the floor. He then repeatedly struck the victim to keep him on the floor, and eventually began kicking the victim towards the door, which he unlocked and then threw, kicked, or pushed the victim outside.

Defendant testified that the locking mechanism on the victim's front door was too complex for him to attempt to retreat, especially in light of his injured back. He did not, however, seem to have any problem quickly overcoming any physical resistance that the victim may have attempted. He similarly had no problem unlocking and opening the door, a door that has only two locks, while continuing to assault the victim until the victim had been evicted from his own home. Following presentation of this evidence, the jury deliberated a total of 54 minutes, asked no questions of the court, and convicted Defendant of domestic abuse battery. The record thus reflects no evidence of jury confusion and it is not a proper role of this court to second guess the decision of a properly empaneled jury. See Green v. Louder, 2001 UT 62,¶14, 29 P.3d 638 (stating "'we will not reverse a jury verdict where there is sufficient evidence in the record to support the jury's verdict on legally sound grounds . . . .'" (quoting Cheves v. Williams, 1999 UT 86,¶20, 993 P.2d 191)).

Accordingly, I disagree with the majority's conclusion concerning the defense of habitation instruction given in this case. I am convinced that the trial court properly included the instruction, and if the instruction was improper, it was harmless error to include it.

I therefore respectfully dissent.
 
 
 

______________________________
William A. Thorne, Jr., Judge
 
 

1. The stories of Defendant and the victim concerning what precipitated the beating are somewhat different, and the jury was presented both versions. The victim testified that Defendant came through the unlocked back door and was told to get out. Defendant responded that he was moving back in and proceeded to savagely beat the victim. Once the beating began, both the victim and Defendant seem to agree on the essential details-- Defendant savagely beat the victim to the ground and continued the beating until the victim was not able to get up. Defendant then proceeded to kick the victim across the floor, through the front door and onto the porch.