State of Utah v. Etherington

State v. Etherington

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Daniel Duane Etherington II,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010308-CA
 

F I L E D
(November 14, 2003)
 

2003 UT App 393

 

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Fourth District, Provo Department

The Honorable Lynn W. Davis

Attorneys: Anthony Howell, Provo, for Appellant

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

BILLINGS, Associate Presiding Judge:

Defendant Daniel Etherington II appeals his conviction for assault by a prisoner, a third degree felony, in violation of Utah Code Annotated section 76-5-102.5 (1999). We affirm.

Relying on State v. Hill, 688 P.2d 450 (Utah 1984), Etherington argues he was improperly charged with assault by a prisoner because his conduct is more specifically covered by Utah Code Annotated section 76-5-102.6 (1999), entitled "[a]ssault on a correctional officer." We disagree.

Under Hill, "when an individual's conduct can be construed to be a violation of two overlapping statutes, the more specific statute governs." 688 P.2d at 451. However, that rule only applies where "the defendant's conduct [is] fully covered by both a general and a specific statute." State v. Chaney, 1999 UT App 309,¶42, 989 P.2d 1091 (emphasis added). Where the elements of the two statutes differ, see id. at ¶59, and the defendant's conduct "falls squarely under" the charged crime, id. at ¶43, Hill does not apply.

Here, the two statutes involve different elements. Section 76-5-102.6 prohibits a prisoner from "throw[ing] or otherwise propel[ling] fecal material or any other substance or object at a peace or correctional officer." Utah Code Ann. § 76-5-102.6. In contrast, section 76-5-102.5 requires the prohibited activity be in the course of an assault,(1) with the intent to commit bodily injury. See Utah Code Ann. § 76-5-102.5.(2)

Even if Etherington's act of shoving the table into the deputy violated section 76-5-102.6, "that was not the sum total of his misconduct." Chaney, 1999 UT App 309 at ¶42. Etherington's threats of physical harm, followed by his use of the table to slam the deputy into the wall, additionally constituted an assault and evinced an intent to cause bodily injury. Those actions fall beyond the scope of section 76-5-102.6 and "squarely under" section 76-5-102.5. Id. at ¶43.

Thus, the trial court did not err in finding Hill inapplicable and denying Etherington's motion to amend to a lesser charge. Affirmed.

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Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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William A. Thorne Jr., Judge

1. Assault encompasses an attempt, threat, or act of bodily injury. See Utah Code Ann. § 76-5-102 (Supp. 2003).

2. Section 76-5-102.5 provides, "Any prisoner who commits assault, intending to cause bodily injury, is guilty of a felony of the third degree." Utah Code Ann. § 76-5-102.5 (1999).