State v. Anderson, 940149

• Court: Supreme Court of Utah
• Citation: 929 P.2d 1107
• Docket Number: No. 940149,940149
• Parties: 305 Utah Adv. Rep. 36 STATE of Utah, Plaintiff and Appellee, v. Joe Reginal ANDERSON, Defendant and Appellant.
• Decision Date: 13 December 1996

Page 1107

929 P.2d 1107 305 Utah Adv. Rep. 36 STATE of Utah, Plaintiff and Appellee,
v.
Joe Reginal ANDERSON, Defendant and Appellant. No. 940149. Supreme Court of Utah. Dec. 13, 1996.

Jan Graham, Atty. Gen., Rodwicke Ybarra, Joanne C. Slotnik, Asst. Attys. Gen., Salt Lake City, for plaintiff and appellee.

Kevin J. Kurumada, Salt Lake City, for defendant and appellant.

Page 1108

HOWE, Justice:

Defendant Joe Reginal Anderson appeals from his convictions of aggravated sexual assault and interference with a peace officer making a lawful arrest. He was sentenced in absentia, which he contends denied him due process. He also assails a jury instruction given by the trial court.

FACTS

Defendant, a transient, was charged by information with aggravated sexual assault, a first degree felony, for allegedly forcing his way into a portable toilet with another transient, severely beating her, and forcing her to perform sexual acts. He was also charged with interference with a peace officer making a lawful arrest, a class B misdemeanor, for bolting past the officer who attempted to arrest him at the scene of the crime and fleeing. Anderson was arrested after a chase and search involving several officers.

The prosecution reported at pretrial conference that it could not locate the victim. The court consequently ordered that the proceedings be continued and that Anderson be released to pretrial services conditioned upon his waiver of extradition from any state should he flee the jurisdiction. Anderson later moved for permission to visit his parents in Las Vegas, Nevada. The court granted the motion upon Anderson's written and oral agreement to be tried in his absence should he fail to appear for trial. Although Anderson contacted pretrial services shortly before the trial date, he subsequently disappeared. The trial proceeded in his absence, as agreed to in his signed waiver, and the jury found him guilty on both counts.

Anderson still had not appeared at the time of sentencing. The court proceeded with sentencing after receiving memoranda on absentia sentencing and over defense counsel's objection. The court imposed a minimum mandatory prison sentence of ten years to life for aggravated sexual assault and six months in jail for interference with a peace officer making a lawful arrest, to run concurrently. Anderson appeals.

STANDARD OF REVIEW

This appeal involves only questions of law which we review for correctness. State v. Ramirez, 817 P.2d 774, 782 (Utah 1991). "Controlling Utah case law teaches that 'correctness' means the appellate court decides the matter for itself and does not defer in any degree to the trial judge's determination of law." State v. Pena, 869 P.2d 932, 936 (Utah 1994) (citations omitted).

ANALYSIS

A. Jury Instruction and Failure to Object

Defendant contends that the trial court erred in giving jury instruction 27. The instruction stated as elements of aggravated sexual assault that defendant performed or attempted to perform sexual acts with or upon the victim without her consent and that in the course of the act defendant either

3....

a. caused bodily injury to [the victim]; or

c. [sic] compelled or attempted to compel [the victim] to submit to submit [sic] to rape, forcible sodomy, or forcible sexual abuse by threat of kidnapping, death, or serious bodily injury to be inflicted imminently on any person; and

4. That the defendant did so knowingly or intentionally or recklessly.

Defendant failed to object to the instruction at the trial, even when specifically queried by the court. Now, however, he objects to the inclusion of "recklessly" as a culpable mental state.

Utah Rule of Criminal Procedure 19(c) provides:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury is instructed, stating distinctly the matter to which he objects and the ground of his objection. Notwithstanding a party's failure to object, error may be assigned to instructions in order to avoid a manifest injustice.

Under the guidance of this rule, we have been very reluctant to review jury instructions

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and other matters not preserved for appeal by means of an objection at trial. In State v. Medina, 738 P.2d 1021 (Utah 1987), we declined to review a challenged jury instruction under the manifest error exception to rule 19(c) even though, in retrospect, the instruction seemed ill-advised. We noted that the defendant's counsel consciously chose not to object and "affirmatively led the trial court to believe that there was nothing wrong with the instruction." Id. at 1023. In Medina, as in the instant case, defense counsel read the instruction and then affirmatively stated that she had no objection. We found no "occasion to reach that issue because it was not properly preserved below." Id.; see also State v. John, 770 P.2d 994, 995 (Utah 1989). Finally, in State v. Dunn, 850 P.2d 1201 (Utah 1993), we emphasized, "We have held repeatedly that on appeal, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." Id. at 1220 (footnote omitted). There we explained that this rule, known as the "invited error" doctrine, serves two purposes. "First, it fortifies our long-established policy that the trial court should have the first opportunity to address the claim of error. Second, it discourages parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal." Id. (citations omitted).

In the instant case, the trial court gave defendant ample opportunity to object to jury instruction 27, and he failed to do so. Consequently, we hold, consistent with our previous cases, that this defendant " 'cannot lead the court into error by failing to object and then later, when he is displeased with the verdict, profit by his actions.' " Parsons v. Barnes, 871 P.2d 516, 520 (Utah 1994) (quoting State v. Smith, 776 P.2d 929, 932 (Utah.Ct.App.1989)).

Defendant further argues, "It would be manifestly unjust and deny appellant due process of law to incarcerate him for a crime that should not be recognized in Utah, i.e., reckless aggravated sexual assault," apparently attempting to invoke the exception to rule 19(c). Defendant's brief sets forth the culpable mental states specified or implied for sex crimes and argues that recklessness does not appear among them. He then seeks to establish manifest injustice by relying on State v. Vigil, 842 P.2d 843 (Utah 1992), and State v. Haston, 846 P.2d 1276 (Utah 1993), for the proposition that an accused cannot be prosecuted for a crime the state does not recognize. The jury instruction in Haston permitted the jury to...