State v. Baker

• Citation: 671 P.2d 152
• Decision Date: 21 September 1983
• Docket Number: No. 18245,18245
• Parties: STATE of Utah, Plaintiff and Respondent, v. Jeffrey Dean BAKER, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 152

671 P.2d 152

STATE of Utah, Plaintiff and Respondent, v. Jeffrey Dean BAKER, Defendant and Appellant.

No. 18245.

Supreme Court of Utah.

Sept. 21, 1983.

G. Fred Metos, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

The appellant, Jeffrey Dean Baker, appeals from a conviction of burglary, a third degree felony, and alleges that the trial court erred in refusing to instruct the jury regarding the offense of criminal trespass. Baker argues that criminal trespass, a class C misdemeanor, is a lesser included offense and that the court's refusal to instruct was prejudicial error.

The evidence presented at trial showed that at approximately 2:30 a.m. on the morning of September 18, 1981, Baker climbed over a chain link fence enclosing one side of a gas station, broke a window and entered the building. The sounds made by the rattling fence and the breaking glass awakened the resident of an adjacent home, who called the police. The police arrived within five or ten minutes. The neighbor heard their voices and saw their flashlights as they inspected the exterior of the station. The owner of the gas station arrived approximately 30 minutes later and opened the building. Inside, the police and the owner found that a lock had been broken off of a desk drawer and that the drawer was open and the contents scattered. The officers and owner saw no one and discovered nothing missing or moved except the contents of the desk drawer. Outside, the owner identified Baker's pickup truck, which was parked beside the station. Baker had been an employee there for about a month, but had been fired three days earlier for failure to come to work. The owner then left, leaving the police officers to wait for a tow truck so that Baker's pickup truck could be impounded. Approximately one hour later the owner returned to open his business for the day. As he entered he heard a loud noise in a storage closet. The owner summoned the police officers, who were still outside, and together they opened the door into the storage closet. Inside, they found Baker concealed in a very small area behind the station's air compressor. He had removed dirty uniforms from a bin and had piled them over his body. The officers placed Baker under arrest. He was subsequently convicted of burglary. The only question before this Court is whether the trial court erred in refusing to instruct the jury on criminal trespass.

A survey of Utah case law reveals two standards used by trial and appellate courts in determining when to instruct a jury regarding lesser included offenses. The first standard requires an analysis of the evidence offered at trial:

One of the foundational principles in regard to the submission of issues to juries is that where the parties so request they are entitled to have instructions given upon their theory of the case; and this includes on lesser offenses if any reasonable view of the evidence would support such a verdict.

State v. Gillian, 23 Utah 2d 372, 374, 463 P.2d 811, 812 (1970) (emphasis added). Although this case was decided prior to the current statute, U.C.A., 1953, § 76-1-402, which was enacted in 1973, it is not contrary to the statute and has been followed in many subsequent cases involving a variety of crimes. See, e.g., State v. Dougherty, Utah, 550 P.2d 175, 176 (1976) (defendant convicted of unlawful distribution of controlled substance); State v. Pierre, Utah, 572 P.2d 1338, 1353 (1977) (defendant convicted of first degree murder); State v. Hendricks, Utah, 596 P.2d 633, 634 (1979) (defendant convicted of burglary); State v. Howard, Utah, 597 P.2d 878, 880 (1979) (defendant charged with two counts of first degree murder and convicted of second degree murder and manslaughter).

The other standard frequently cited relies upon a comparison of the abstract statutory elements of the offenses. It states that "[t]he lesser offense must be a necessary element of the greater offense and must of necessity be embraced within the legal definition of the greater offense and be a part thereof." State v. Woolman, 84 Utah 23, 36, 33 P.2d 640, 645 (1934). This standard has also been followed in numerous cases. See, e.g., State v. Brennan, 13 Utah 2d 195, 198, 371 P.2d 27, 29 (1962) (charge of driving and injuring another while intoxicated); State v. Sunter, Utah, 550 P.2d 184, 185 (1976) (defendant convicted of attempted burglary); State v. Gandee, Utah, 587 P.2d 1064, 1066 (1978) (defendant convicted of carrying a concealed dangerous weapon). Even though the two standards are different, some cases refer to both. See e.g., State v. Close, 28 Utah 2d 144, 146, 499 P.2d 287, 288 (1972) (defendant convicted of indecent assault); State v. Hendricks, supra. This situation is not unique to Utah law.

In our own jurisdiction we have cases apparently speaking as if the elements of the two offenses were to be determined in the abstract solely by the indictment without recourse to the proof adduced at trial, and other opinions pointing out that in the context of particularized offenses an exact replica of the lesser included offense need not be contained in the greater.

United States v. Whitaker, 447 F.2d 314, 318 (D.C.Cir.1971) (footnotes omitted). The simultaneous use of these two standards in our jurisdiction has resulted in some confusion in the law on lesser included offenses.

When considered in their original contexts, it becomes clear that these standards developed to protect different interests. The narrower standard, requiring a comparison of the statutory elements of the offenses in the abstract, is the older of the two standards.

At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged.

Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392 (1980) (citations omitted) (emphasis added). This is the "necessarily included offense" standard which is found in Utah R.Crim.P. 21(e) (codified at U.C.A., 1953, § 77-35-21(e)) (emphasis added):

The jury may return a verdict of guilty to the offense charged or to any offense necessarily included in the offense charged or an attempt to commit either the offense charged or an offense necessarily included therein.

U.C.A., 1953, § 76-1-402(5) also refers to necessarily included offenses:

If the district court on motion after verdict or judgment, or an appellate court on appeal or certiorari, shall determine that there is insufficient evidence to support a conviction for the offense charged but that there is sufficient evidence to support a conviction for an included offense and the trier of fact necessarily found every fact required for conviction of that included offense, the verdict or judgment of conviction may be set aside or reversed and a judgment of conviction entered for the included offense, without necessity of a new trial, if such relief is sought by the defendant.

(Emphasis added.) The requirement that the lesser offense be necessarily included in the charged offense is for the protection of the defendant.

[T]he nature of the charge in the indictment must be such as to give the defendant notice that he could at the same time face the lesser included offense charge.

This stricture has developed from numerous decisions of the Supreme Court emphasizing the restrictions that both the common law and the Constitution have placed upon the power of the court and prosecution to change the charging part of the indictment to the jeopardy of the defendant.

United States v. Whitaker, supra, at 320 (citations omitted). The Court in that case quoted from a venerable Supreme Court decision:

If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says "no person shall be held to answer," may be ... destroyed.... Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney ....

Id. at n. 17 (quoting Ex parte Bain, 121 U.S. 1, 10-13, 7 S.Ct. 781, 786-87, 30 L.Ed. 849 (1886)). See also De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937). Just as a defendant is constitutionally protected from alterations in the indictment, he is similarly protected from instructions to the jury which might subject him to a conviction of a crime against which he has had no opportunity to defend. In discussing necessarily included offenses, the Supreme Court of Michigan summarized:

It is elementary that a defendant may not be convicted of a crime with which he was not charged. The reason is apparent: The Sixth and Fourteenth Amendments give a defendant the right to know the nature and cause of the accusation against him.

People v. Jones, 395 Mich. 379, 388, 236 N.W.2d 461, 464 (1975) (citations omitted). See also Utah Const. art. I., §§ 7, 12 & 13. Thus, when the prosecution seeks instruction on a proposed lesser included offense, both the legal elements and the actual evidence or inferences needed to demonstrate those elements must necessarily be included within the original charged offense. See U.C.A., 1953, § 76-1-402(3)(a). In State v. Howell, supra, we stated that "there can be no unfairness to the defendant in giving a lesser included offense instruction because of a lack of notice or preparation since no element may be included in the lesser offense that is not included in the greater...