State v. Carruth

• Citation: 1999 UT 107,993 P.2d 869
• Decision Date: 10 December 1999
• Docket Number: No. 970597.,970597.
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Lynn CARRUTH, Defendant and Respondent.
• Court: Supreme Court of Utah

993 P.2d 869

1999 UT 107

STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Lynn CARRUTH, Defendant and Respondent.

No. 970597.

Supreme Court of Utah.

December 10, 1999.

Jan Graham, Att'y Gen., James H. Beadles, Asst. Att'y Gen., Salt Lake City, James R. Taylor, Utah County Attorney Office, Provo, for petitioner.

Margaret P. Lindsay, Provo, for respondent.

On Certiorari to the Utah Court of Appeals

DURHAM, Associate Chief Justice:

¶ 1 This case is before us on writ of certiorari to the Utah Court of Appeals, which vacated a jury verdict convicting Jeffrey Lynn Carruth of felony joyriding and entered a conviction for misdemeanor joyriding. See State v. Carruth, 947 P.2d 690 (Utah Ct.App.1997)

. The court of appeals held that the trial court erred in giving a State-requested jury instruction on felony joyriding. Under this court's decision in State v. Baker, 671 P.2d 152 (Utah 1983), the court of appeals concluded that the State's request for a lesser-included offense instruction should be granted only if the lesser-included offense is a "necessarily-included offense," and that felony joyriding is not a "necessarily-included offense" of the offense charged.

FACTS

¶ 2 On February 1, 1996, defendant rented a mini-van from Freedom Rent-A-Car in Provo, Utah. Defendant contracted to rent the van for four days and stated that he intended to use the van solely within the state. About two weeks later, one of the owners of Freedom Rent-A-Car traced defendant to Las Vegas, Nevada, where she spoke with him by telephone. Defendant told the owner that he could not return the van because he lacked the funds to pay for its rental. Although the owner offered to make payment arrangements, defendant did not return the van. On March 27, 1996, police went to defendant's Las Vegas apartment, where they found the van and arrested defendant.

¶ 3 The State charged defendant with theft, a second-degree felony, in violation of Utah Code Ann. § 76-6-404 (1995).¹ Although the State does not have to prove any time element to establish the offense of theft, the information in this case indicated that defendant had retained the van for over twenty-four hours.

¶ 4 At the State's request, the trial court instructed the jury on the uncharged offense of felony joyriding, a third-degree felony under Utah Code Ann. § 41-1a-1314 (1993).² The jury convicted defendant of felony joy-riding and defendant appealed. The court of appeals vacated the conviction and entered a judgment for misdemeanor joyriding, a class A misdemeanor, in violation of Utah Code Ann. § 41-1a-1311 (1993).³

ANALYSIS

¶ 5 The State argues that the court of appeals incorrectly applied State v. Baker, 671 P.2d 152 (Utah 1983), to find error in the trial court's grant of the State's request for a jury instruction on felony joyriding. According to the State, Baker is no longer good law because it was decided under a statute, section 77-35-21(e),⁴ that has since been repealed. Furthermore, the State argues a better standard has been adopted by numerous other jurisdictions, which have moved away from the "necessarily-included offense" standard and adopted a more lenient "charging document" standard. Under the "charging document" approach, an accused person may be convicted of any offense for which the indictment or its attachments provide sufficient factual notice for him to defend himself. Carruth argues that Baker remains good law because, although the statute in question has been repealed, rule 21(e) of the Utah Rules of Criminal Procedure provides the same protection.⁵ Carruth further argues that adoption of the "charging document" standard would violate a defendant's right to due process to the extent that it exposes him to conviction of a crime against which he has had insufficient notice and thus no true opportunity to defend himself. ¶ 6 In Baker, this court discussed the evolution of the lesser-included offense doctrine in Utah. Although noting some confusion in the application of the doctrine, the opinion recognized that two distinct standards had developed to determine "when to instruct a jury regarding lesser included offenses." Baker, 671 P.2d at 154.

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)....

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).

Baker, 671 P.2d at 154-55. Baker explained that "[w]hen considered in their original contexts, it becomes clear that these standards developed to protect different interests." Id. at 155. The statutory standard "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, 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)).... U.C.A., 1953, § 76-1-402(5) also refers to necessarily included offenses....

...

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).... The offenses must be such that the greater cannot be committed without necessarily having committed the lesser.

Baker, 671 P.2d at 155-56. "Different concerns are raised when the defendant requests an instruction on a lesser included offense.... By having the jury instructed regarding a lesser included offense, the defendant is afforded the full benefit of the reasonable doubt standard." Id. at 156.

This is not to say that the defendant's right to a lesser included offense instruction is absolute or unqualified.... The defendant's right ... is limited by the evidence presented at trial. This limitation requires the application of the evidence-based standard discussed earlier, which is the appropriate basis for determining whether to instruct a jury regarding a lesser included offense at the defendant's request.

Id. at 157. Baker then tied this standard to the language found in section 76-1-402(3)(a) of the Utah Code and held that application of this standard "must therefore begin with the proof of facts at trial." Id. at 158. "[W]here two offenses are related because some of their statutory elements overlap, and where the evidence at the trial of the greater offense includes proof of some or all of those overlapping elements, the lesser offense is an included offense under subsection (3)(a)." Id. at 159.

¶ 7 Because Baker did not involve review of a prosecutor's request for a jury instruction on a lesser-included offense, its discussion of the standard applicable to such requests may technically be regarded as dicta. The court's statement in Baker, however, that "[w]e are now persuaded that the `necessarily-included offense' standard should be limited to cases where the prosecution requests the instruction," was in fact an affirmation that the standard had been "correctly used ... in State v. Woolman, [84 Utah 23, 33 P.2d 640 (1934)] ..., State v. Brennan, [13 Utah 2d 195, 371 P.2d 27 (1962)] ..., and State v. Howell, [649 P.2d 91 (Utah 1982)]...." Baker, 671 P.2d at 156. Thus, the proper standard for assessing prosecution-requested jury instructions was confirmed, although not technically announced, in Baker. We are now asked by the State to revise that standard.

¶ 8 Prior to its repeal in 1989, section 77-35-21(e) of the Utah Code provided that a 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." Utah Code Ann. § 77-35-21(e) (1982 & Supp.1989). An earlier version contained similar language. See id. 77-33-6 (1978). Indeed, substantively similar statutes have been part of Utah's statutory code since the state's early days. See Woolman, 84 Utah at 34-36, 33 P.2d at 645; State v. Anderton, 69 Utah 53, 252 P. 280, 282 (1926).

¶ 9 When Baker was decided in 1983, chapter 35 of Title 77 of the Utah Code was entitled "Utah Rules of Criminal Procedure." In January 1989, pursuant to the 1984 amendment of Article VIII, section 4 of the Utah Constitution, this court adopted "all existing statutory rules of procedure and evidence contained in Utah Code Ann. §§ 77-35-1 to -33 (1982 & Supp.1988)." In re Rules (January 13, 1989) (per curiam). Effective July 1, 1990, the Utah Legislature reciprocally repealed all of chapter 35. See State v. Dunn, 850 P.2d 1201, 1210 n. 5 (Utah 1993)

("After we adopted these statutory rules as court rules, the legislature repealed the superfluous provisions effective July 1, 1990.") Although section 77-35-21(e) was among the provisions repealed, there is no indication that it received any particular attention in this process.

¶ 10 Even prior to 1989, however, rule 21(e) of the Utah Rules of Criminal Procedure provided that "[t]he jury may return a verdict of guilty to the offense...