State v. Hittle

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IN THE UTAH COURT OF APPEALS ----ooOoo---State of Utah, Plaintiff and Appellee, v. David Robert Hittle, Defendant and Appellant. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20070108-CA F I L E D (March 20, 2008) 2008 UT App 100 ----Third District, Salt Lake Department, 051903613 The Honorable Robin W. Reese Attorneys: Lori J. Seppi, Salt Lake City, for Appellant Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee ----- Before Judges Greenwood, Thorne, and Billings. PER CURIAM: David Robert Hittle and the State filed a stipulated motion for summary reversal of Hittle's convictions of criminal nonsupport. We reverse. Hittle and the State agree that the trial court erred by failing to instruct the jury that the State was required to disprove Hittle's affirmative defense beyond a reasonable doubt. Inability to pay support is an affirmative defense to a charge of criminal non-support. See Utah Code Ann. § 76-7-201(5)(a) (Supp. 2007). The State "carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense once the defense is put into issue." State v. Martinez, 2000 UT App 320, ¶ 9, 14 P.3d 114. Hittle testified that he was unable to provide support due to his involuntary underemployment and involuntary unemployment, and by doing so raised an affirmative defense. See Utah Code Ann. § 76-7-201(5)(a). Thus, the trial court erred by failing to instruct the jury that the State was required to disprove Hittle's affirmative defense beyond a reasonable doubt. Accordingly, Hittle's convictions are vacated and this case is remanded to the trial court for further proceedings. ______________________________ Pamela T. Greenwood, Presiding Judge ______________________________ William A. Thorne Jr., Associate Presiding Judge ______________________________ Judith M. Billings, Judge 2

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