State v. Casey
| Decision Date | 28 June 2001 |
| Docket Number | No. 20000122-CA.,20000122-CA. |
| Citation | 29 P.3d 25,2001 UT App 205 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Michael Shawn CASEY, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Michael R. Sikora, Salt Lake City, for Appellant.
Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.
Before GREENWOOD, P.J. and BILLINGS, and DAVIS, JJ.
¶ 1 Defendant Michael Shawn Casey appeals his convictions of attempted murder, a second degree felony, in violation of Utah Code Ann. §§ 76-5-203(1)(a) and 76-4-101 (1999), and aggravated assault, a third degree felony, in violation of Utah Code Ann. § 76-5-103 (1999).1 Defendant argues he was improperly convicted of attempted murder because the jury was not instructed that attempted murder requires the "intent" to cause a death. He also argues he was improperly convicted of aggravated assault and attempted murder because the offenses were based on the same conduct. We affirm.
¶ 2 "`We view the facts in the light most favorable to the jury verdict and recite them accordingly.'" State v. Lopez, 2001 UT App 123, ¶ 2, 419 Utah Adv. Rep. 3, 24 P.3d 993 (citation omitted). In early 1999, Defendant was romantically involved with Tresa Franz (Franz). After drinking alcohol with Terron Allred (Allred) and Franz, Defendant drove Allred, Franz, and Franz's son around. They eventually stopped to purchase a pint of rum. Defendant drank most of the pint and became intoxicated and belligerent towards Franz. Franz asked Defendant to take her home, but he instead threatened to kill her and drove to a friend's house. At the house, Allred left the car to speak with the friend. Defendant and Franz began arguing, and Franz asked if he was ready to go home. Defendant responded, and pointed a handgun at Franz's neck.
¶ 3 Seeing Defendant point the gun at Franz, the friend told them to leave. Defendant put the gun down and agreed to leave. As Allred returned to the car, Franz fled into the house. However, she returned a few minutes later because she realized her son was not with her. After Franz returned, Defendant began arguing with her and threatened her again. Hearing the argument, the friend's uncle emerged from the house and told them to leave. Defendant apologized, backed out of the driveway, and drove away.
¶ 4 Before they reached the end of the block, Defendant pointed the gun at Franz's face and pulled the trigger, but the gun misfired. Defendant then shot at Franz's feet, but missed, the bullet lodging in the floorboard. Defendant then pushed the gun barrel to Franz's head, but before he could pull the trigger, Franz pushed his arm in the air and jumped from the car. As she jumped, the gun discharged again. During the altercation, three shots were successfully fired.
¶ 5 Defendant was charged with attempted murder, aggravated assault, domestic violence in the presence of a child, and enhanced penalties on each count for using a dangerous weapon. The jury convicted Defendant on all counts. Prior to sentencing, Defendant's counsel withdrew. Subsequently, appointed counsel filed a motion for a new trial, arguing that the trial court improperly instructed the jury on the mens rea required for attempted murder and that the aggravated assault was a lesser included offense of the attempted murder. Following a hearing, the trial court denied Defendant's motion. Defendant filed this appeal.
¶ 6 This appeal presents issues of statutory interpretation. Statutory interpretation presents a question of law; "[t]herefore, we review the trial court's ruling[s] for correctness and give no deference to its conclusions." State v. Vigil, 842 P.2d 843, 844 (Utah 1992); see also State v. Keppler, 1999 UT App 89, ¶ 4, 976 P.2d 99
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¶ 7 Defendant argues that Utah's Criminal Code requires the State to prove that he had the "intent" to cause Franz's death. Therefore, he argues the jury was improperly instructed that the required mental state was "intentionally or knowingly" and his conviction must be reversed.
¶ 8 The attempt statute provides:
Utah Code Ann. § 76-4-101 (1999). Defendant was charged with attempted murder under section 76-5-203(1)(a) of the murder statute (the "intentional or knowing" alternative). This section provides: "Criminal homicide constitutes murder if [a defendant]... intentionally or knowingly causes the death of another." Utah Code Ann. § 76-5-203(1)(a) (1999).
¶ 9 Both parties rely on State v. Maestas, 652 P.2d 903 (Utah 1982) and State v. Vigil, 842 P.2d 843 (Utah 1992). Construing the attempt and murder statutes in Maestas, the Utah Supreme Court rejected a claim that an attempt to commit first degree murder3 requires a mental state greater than "knowing." See Maestas, 652 P.2d at 904-05
. The court offered two rationales for its decision. First, the court interpreted paragraph one of the attempt statute to require "only the kind of culpability otherwise required for the commission of the [completed] offense." Id. at 904 (alteration in original) (quotations omitted). Accordingly, the court concluded that "there [is] no difference between the intent required as an element of the crime of attempted first degree murder and that required for first degree murder." Id. Alternatively, the court explained, even if the common law governed, the "intentional or knowing" mental state required for first degree murder was sufficient under the common law. See id. at 905.
¶ 10 Significantly, the jury instructions in Maestas were similar to the jury instructions in the present case. They "described the elements of attempted first degree murder and defined the terms `intentionally' and `knowingly' in precisely the language used by the Utah Criminal Code." Id. at 907 (citing Utah Code Ann. § 76-2-103(1)-(2) (1953)). The Maestas court specifically noted that the jury "received proper instruction[s] concerning the act and intent requirements for the crime charged." Id.
¶ 11 Subsequently, in Vigil, the Utah Supreme Court held that attempted murder under the depraved indifference murder alternative in section 76-5-203(1)(c)4 is not a crime. See Vigil, 842 P.2d at 843-44
. The court first noted the mental state required to support a depraved indifference murder conviction is "knowledge" that conduct "created a grave risk of death to another." Id. at 844. The court then rejected the Maestas court's interpretation of paragraph one of the attempt statute. Paragraph one provides that an attempt occurs when a defendant "acts with the `kind of culpability otherwise required'" for the underlying offense. Id. at 845 (quoting Utah Code Ann. § 76-4-101(1)). The court construed that language "to refer to the attendant circumstances, if any, of the underlying offense." Id. at 845-46 (footnote omitted).
¶ 12 The court then construed paragraph two of the attempt statute. Paragraph two provides that "the defendant's conduct must be corroborative of his or her `intent to commit the offense.'" Id. at 845 (quoting Utah Code Ann. § 76-4-101(2)). The court concluded paragraph two limits attempts to offenses with the mental state of "intent," as defined by section 76-2-103(1). See id. at 847. Section 76-2-103(1) defines "intent" as "`conscious objective or desire.'" Id. (emphasis and citation omitted). Accordingly, the court held:
[T]o convict a defendant of attempted second degree murder, the prosecution must prove that the defendant had a conscious objective or desire to cause the death of another. Because the mental state required for depraved indifference homicide falls short of that intent, the crime of attempted depraved indifference homicide does not exist in Utah.
Id. at 848 (emphasis added).
¶ 13 Although in Vigil the court overruled Maestas in part, the court explicitly refused to completely overrule Maestas and approved the second rationale articulated in Maestas.
The first alternative rationale relied on in Maestas is clearly inconsistent with ... [State v. Bell, 785 P.2d 390 (Utah 1989), State v. Howell, 649 P.2d 91 (Utah 1982), and State v. Norman, 580 P.2d 237 (Utah 1978) ] and with our holding in the instant case. Thus, that portion of Maestas ... is incorrect. However, we note that Maestas is still good law insofar as it authorizes prosecution for attempted aggravated murder under the intentional or knowing formulation of section 76-5-202(1) or attempted murder under the intentional or knowing formulation of section 76-5-203(1)(a).
Id. at 848 n. 5. (emphasis added). Thus, Vigil explicitly allows a conviction for a "knowing" mental state under § 76-5-203(1)(a), which is the section under which Defendant was convicted.
¶ 14 Defendant argues that following Vigil, attempted murder requires the "intent" to cause a death, therefore, the "knowing" state of mind in the "intentional or knowing" alternative is insufficient. We disagree. The court noted, "The issue before us is narrow[,]... to determine whether ... the `knowing' mental state required for depraved indifference homicide under section 76-5-203(1)(c)... is sufficient to satisfy the mental state required by Utah's attempt statute." Id. at 844. If the court intended to eliminate attempted "knowing" murders under the "intentional or knowing" alternative, instead of writing that "Maestas is still good law insofar as it authorizes prosecution for ... attempted murder under the intentional ...
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