State v. Anderson
| Decision Date | 13 December 1996 |
| Docket Number | No. 940149,940149 |
| Citation | 929 P.2d 1107 |
| Parties | 305 Utah Adv. Rep. 36 STATE of Utah, Plaintiff and Appellee, v. Joe Reginal ANDERSON, Defendant and Appellant. |
| Court | Utah Supreme Court |
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.
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.
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.
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).
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 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. 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 consider attempted depraved indifference homicide, a crime which our holding in Vigil declared to be unrecognized in Utah and which is, prima facie, logically inconsistent since attempt is always an intent crime. Vigil, 842 P.2d at 845-46 ().
As we explained in State v. Verde, 770 P.2d 116 (Utah 1989):
[W]hen faced with a claim that a particular assertion of instructional error not raised at trial should be considered on appeal because failure to do so would result in manifest injustice under Utah Rule of Criminal Procedure 19(c), we will determine whether to review such a claim of error under the same standard we use when determining the presence of plain error under Utah Rule of Evidence 103(d).
That standard is two-pronged. First, the error must be "obvious." Second, the error must be of sufficient magnitude that it affects the substantial rights of a party.
Assuming that the first prong is met in the instant case, it is clear to us that the second prong cannot be met. The undisputed facts are that the victim's injuries were the result of an intentional beating and sexual assault, which defendant himself insists must statutorily and logically always be knowing or intentional. He has not been convicted of a crime not recognized in this state. Consequently, we conclude that no "manifest injustice" will result from our holding.
While Anderson admits to waiving his right to be present at trial, he objects through counsel to his sentencing in absentia, asserting that this violated his rights to due process and to allocution. Utah Constitution article I, section 12 guarantees the right of an accused to appear and defend in person against any cause against him. Utah Rule of Criminal Procedure 22 implements the constitutional right, providing:
(a)....
Before imposing sentence the court shall afford the defendant an opportunity to make a statement and to present any information in mitigation of punishment, or to show any legal cause why sentence should not be imposed....
(b) On the same grounds that a defendant may be tried in defendant's absence, defendant may likewise be sentenced in defendant's absence.
The grounds for trial in defendant's absence are set forth in Utah Rule of Criminal Procedure 17, which states in relevant part:
In prosecutions for offenses not punishable by death, the defendant's voluntary absence from the trial after notice to defendant of the time for trial shall not prevent the case from being tried and a verdict or judgment entered therein shall have the same effect as if defendant had been present[.]
Utah R.Crim.P. 17(a)(2). Therefore, under the Rules of Criminal Procedure, a defendant not accused of a capital crime waives his right to be present at sentencing by voluntary absence.
However, Anderson does not contend that he was sentenced in violation of the rules. Rather, he relies on State v. Young, 853 P.2d 327 (Utah 1993), for the proposition that the right to allocution is absolute. Black's Law Dictionary 76 (6th ed. 1990) defines allocution as the
[f]ormality of court's inquiry of defendant as to whether he has any legal cause...
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