State of Utah v. Holland

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Robert Scott Holland,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010359-CA

F I L E D
February 14, 2002 2002 UT App 48 -----

Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
James K. Slavens, Fillmore, for Appellant
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). A challenge to a jury instruction as incorrectly stating the law presents a question of law, which we review for correctness. Jury instructions must be read and evaluated as a whole. They must accurately and adequately inform a criminal jury as to the basic elements of the crime charged. However, if taken as a whole they fairly instruct the jury on the law applicable to the case, the fact that one of the instructions, standing alone, is not as accurate as it might have been is not reversible error. State v. Lucero, 866 P.2d 1, 3 (Utah Ct. App. 1993) (citations omitted).

Defendant contends: "Jury Instruction No. 14 erroneously included 'reckless' as an adequate mens rea to find the Defendant guilty." Defendant is mistaken. Instruction 14, with our emphasis, reads in relevant part: "A person is only guilty of a criminal offense when his conduct is prohibited by law and he acts with some kind of criminal intent, that is, he acts intentionally, knowingly, or recklessly as the definition of the offense requires."

As defendant acknowledges, Instruction 10 accurately informed the jury of the elements of attempted murder, including, as shown with our emphasis, the intent element of that crime: Before you can convict [defendant] of Attempted Murder, . . . the State must prove, and you must find, unanimously and beyond a reasonable doubt, each and every one of the following elements: 1. That the defendant

2. attempted

3. knowing and intentionally

4. to cause the death of another, and

5. that those acts occurred on or about July 12, 2000 in Iron County, State of Utah. See Utah Code Ann. §§ 76-4-101 (1999), 76-5-203 (Supp. 2000).

Thus, Instruction 14 is not erroneous. It explicitly says that a finding of recklessness is sufficient to establish criminal intent only if "the definition of the offense requires" recklessness. Instruction 10 makes clear that the definition of attempted murder does not include recklessness as a mens rea for that crime.(1) Therefore, we conclude that Instruction 14 is not in error, and at any rate, if "read and evaluated as a whole," the instructions "fairly instruct[ed] the jury on the law applicable to the case." Lucero, 866 P.2d at 4.(2)

If, as defendant implies in his opening brief, the trial court's response to the jury had been limited to calling its attention to Instruction 14, concern about the jury being confused would be greatly heightened. However, the court's written response, approved in writing by defendant's counsel, actually called the jury's attention to "the Instructions defining Attempted Murder, such as Instructions 10, 13, 14 and 15."

Affirmed.
 
 
 

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

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge

1. Not only does Instruction 10 specifically state that the defendant must have acted either intentionally or knowingly, but Instruction 13 includes definitions for "intentionally" and "knowingly" but not for "recklessly."

2. Defendant's argument that the instructions were misleading rests almost entirely on the affidavit of one juror, stating that she was led by the other jurors to misconstrue Instruction 14 as meaning that a person could be found guilty of attempted murder if he only acted recklessly. "However, Rule 606(b) [of the Utah Rules of Evidence] provides that evidence by affidavit will not be admitted as to 'any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror.'" Lucero, 866 P.2d at 3. "All inquiries into the thought processes of the jurors are improper because they undermine the integrity of the verdict." Id. "Because the affidavit contains information concerning the jury's deliberations, the trial court properly refused to consider it." Id.