State v. Bird

• Decision Date: 23 January 2015
• Docket Number: No. 20120906.,20120906.
• Citation: 345 P.3d 1141,2015 UT 7
• Parties: STATE of Utah, Petitioner, v. Dustin Lynn BIRD, Respondent.
• Court: Utah Supreme Court

345 P.3d 1141

2015 UT 7

STATE of Utah, Petitioner

v.Dustin Lynn BIRD, Respondent.

No. 20120906.

Supreme Court of Utah.

Jan. 23, 2015.

Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Salt Lake City, for petitioner.

Linda M. Jones, Noella A. Sudbury, Salt Lake City, for respondent.

Justice PARRISH authored the opinion of the Court, in which Chief Justice DURRANT, Justice DURHAM, and Judge ELIZABETH HRUBY–MILLS joined.

Justice LEE authored a dissenting opinion.

Having recused himself, Associate Chief Justice NEHRING does not participate herein; Judge ELIZABETH HRUBY–MILLS sat.

On Certiorari to the Utah Court of Appeals

Justice PARRISH, opinion of the Court:

INTRODUCTION

¶ 1 On certiorari, we are asked to review the court of appeals' ruling that the trial court erred by not providing a mens rea jury instruction for the charge of failure to respond to an officer's signal to stop under Utah Code section 41–6a–210. We are also asked to determine whether the court of appeals erred by failing to provide guidance on remand regarding a correct jury instruction. We affirm the court of appeals, but exercise our discretion to provide such guidance.

BACKGROUND

¶ 2 On the evening of October 12, 2009, Salt Lake City police officer Alma Sweeny was patrolling the Glendale area in an unmarked police vehicle. Officer Sweeny drove past a blue Ford Mustang and observed that the driver, Dustin Lynn Bird, and the passenger looked “nervous” and appeared to be “ducking down in the vehicle.” Officer Sweeny decided to follow the Mustang and observed the driver and the passenger leaning over, causing the vehicle to swerve. The Mustang approached a stop sign and slowly rolled through it without coming to a complete stop. Officer Sweeny thereafter activated the lights in his police vehicle. The Mustang immediately slowed in speed but did not pull over. Officer Sweeny testified that “[t]here were several safe places” to pull over, but the Mustang continued driving and turned onto a different street. After making the turn, the Mustang slowed down and pulled to the curb as though it were going to stop, but then quickly pulled away and continued driving for approximately half a block before stopping. While the Mustang was still rolling to a stop, the passenger exited the vehicle and began running. Officer Sweeny stopped his vehicle behind the Mustang, stepped out, and walked toward the Mustang. After seeing the passenger flee, he returned to his vehicle without saying anything to Mr. Bird. He then drove past the Mustang and around the corner, where he parked the police vehicle and pursued the passenger on foot.

¶ 3 After apprehending the passenger, Officer Sweeny observed the Mustang pull quickly away from the curb and drive off. Officer Sweeny called for backup. Shortly thereafter, another officer located the Mustang and activated his lights. The second officer testified that Mr. Bird stopped “immediately.” Mr. Bird was then taken into custody and later charged with failure to respond to an officer's signal to stop (failure to respond), a third degree felony under section 41–6a–210 of the Utah Code. That statute provides that “[a]n operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not: ... attempt to flee or elude a peace officer by vehicle or other means.” Utah code § 41–6a–210(1)(a).

¶ 4 Mr. Bird's case was tried to a jury. At the close of evidence, the trial court presentedthe proposed jury instructions to the parties. After reviewing the instructions, defense counsel objected to the elements instruction for the failure-to-respond charge on the grounds that it did not “outlin[e] the mental state” required for the offense and that the requisite mental state “need[ed] to be defined for the jury.” The trial court disagreed, asserting, “I think it's got the elements here.” Defense counsel continued to press for an instruction that included a mental state of either willfully or recklessly. Although the State conceded to a “low knowingly” mental state, the court disagreed, ending the colloquy by stating to defense counsel, “You've made your record, I've denied it.” The court thereafter adopted the following instruction, which tracked the statutory language:

The defendant, Dustin Lynn Bird is charged with Failure to Respond to Officer's Signal to Stop. You cannot convict him of this offense unless you find beyond a reasonable doubt, based on the evidence, each of the following elements:

1. That on or about October 12th, 2009;

2. the defendant, Dustin Lynn Bird;

3. did operate a motor vehicle, and;

4. having received a visible or audible signal from a peace officer to bring the vehicle to a stop;

5. did attempt to flee or elude a peace officer by vehicle or other means.

In its closing, the prosecution argued that the jury “[did] not have to look in to the defendant's mind” to determine his culpability. The jury returned a guilty verdict.

¶ 5 Mr. Bird timely appealed his conviction to the court of appeals where he argued that the trial court erred “when it failed to instruct the jury on the mental state required for conviction of failure to respond to an officer's signal to stop.” State v. Bird, 2012 UT App 239, ¶ 8, 286 P.3d 11, cert. granted, 298 P.3d 69 (Utah 2013). The court of appeals agreed with Mr. Bird, reversing the trial court. Id. ¶ 17. Although the court of appeals remanded Mr. Bird's case to the trial court for a new trial, it did not provide guidance for the trial court on remand. It asked the trial court “to determine in the first instance what the contents of any requested mental state instruction should be.” Id. ¶ 17 n. 6.

¶ 6 We granted the State's petition for certiorari. We have jurisdiction pursuant to Utah Code section 78A–3–102(3)(a).

STANDARD OF REVIEW

¶ 7 “On certiorari, we review the decision of the court of appeals for correctness” and may affirm its decision “on any ground supported in the record.” Collins v. Sandy City Bd. of Adjustment, 2002 UT 77, ¶ 11, 52 P.3d 1267 (internal quotation marks omitted).

ANALYSIS

I. MR. BIRD PRESERVED HIS OBJECTION TO THE JURY INSTRUCTION

¶ 8 The State first argues that the court of appeals erred in finding that Mr. Bird preserved his objection. It contends that Mr. Bird did not preserve his mens rea argument because his only request to the trial court was “that the mental states [intentionally, knowingly, or recklessly] be added to the elements instruction,” whereas on appeal, Mr. Bird argues that the trial court should have defined the terms “receive” and “attempt.” In response, Mr. Bird asserts that his argument on appeal is not that the trial court should have defined “receive” and “attempt,” but rather that it should have identified the requisite mental state for the jury because the mens rea implications of the terms “receive” and “attempt” are unclear. Mr. Bird also argues that continuing to pursue his objection in the trial court would have been futile in light of the court's comment to Mr. Bird that “[he had] made [his] record.” We agree with the court of appeals and hold that Mr. Bird sufficiently preserved his jury instruction objection.

¶ 9 First, the State misconstrues Mr. Bird's argument on appeal. Although his brief includes a discussion of the terms “receive” and “attempt,” the essence of his argument on appeal is that these terms incorporate a mens rea element into the failure-to-respond offense. Mr. Bird has not argued that “receive” and “attempt” should have been defined to the jury, but instead that the jury should have been instructed on the mental states embodied by these terms. In short, Mr. Bird's argument on appeal is the same argument he made to the trial court.

¶ 10 Second, Mr. Bird presented his argument to the trial court in a clear manner. To preserve an issue, counsel must raise the issue in the trial court “in such a way that the trial court has an opportunity to rule on that issue.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366. We look to three factors to determine whether the trial court had such an opportunity: (1) whether the issue was raised in a timely fashion, (2) whether it was raised specifically, (3) and whether the party “introduce[d] supporting evidence or relevant legal authority.” Id.

¶ 11 In this case, Mr. Bird's objection was timely. Defense counsel raised the objection at her first opportunity to object to the proposed jury instructions. The objection was also specific. The State attempts to characterize Mr. Bird's objection as overly narrow. But counsel objected on the grounds that she did not “see anything outlining the mental state,” and argued that “there needs to be [an] explanation that [Mr. Bird acted] ... recklessly or willfully.” In short, Mr. Bird specifically objected to the lack of a mens rea instruction for the failure-to-respond offense as a whole. Finally, although defense counsel did not introduce relevant legal authority, counsel was given only a brief moment to review the statute-based language in the jury instructions and make her objection. Where there was not an opportunity to gather relevant legal authority, it is sufficient—for preservation purposes—that counsel relied on the statutory language in making her objection.

¶ 12 In sum, we conclude the issue was preserved for appeal because Mr. Bird presented his argument to the trial court in a way that gave the court an opportunity to rule on the issue. Thus, we turn to the merits.

II. THE TRIAL COURT SHOULD HAVEINSTRUCTED THE JURY ON THEREQUIRED MENS REA

¶ 13 The court of appeals held that the trial court erred by not defining the required mental state for each element of the failure to respond charge under Utah Code section 41–6a–210(1)(a). The failure-to-respond statute provides, “An operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not: ... attempt to flee or elude a peace officer by vehicle or other means.” Utah Code § 41–6a–210(1)(a) (emphasis added). The court of...