State v. Rasabout, 20130430

• Citation: 2015 UT 72
• Decision Date: 14 August 2015
• Docket Number: No. 20130430,20130430
• Parties: STATE OF UTAH, Respondent, v. ANDY RASABOUT, Petitioner.
• Court: Supreme Court of Utah

2015 UT 72

STATE OF UTAH, Respondent,
v.
ANDY RASABOUT, Petitioner.

No. 20130430

SUPREME COURT OF THE STATE OF UTAH

August 14, 2015

This opinion is subject to revision before final publication in the Pacific Reporter

On Certiorari to the Utah Court of Appeals

Attorneys:
Sean D. Reyes, Att'y Gen., Ryan D. Tenney, Asst. Att'y Gen., Salt Lake City, for respondent
Debra M. Nelson, Daniel Torrence, Salt Lake City, for petitioner

JUSTICE PARRISH authored the opinion of the Court, in which JUSTICE DURHAM and JUDGE HARRIS joined in full, CHIEF JUSTICE DURRANT joined except as to Part I.C, and ASSOCIATE CHIEF JUSTICE LEE joined except as to Part I.

CHIEF JUSTICE DURRANT authored an opinion concurring in part and concurring in the judgment.

ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in part and concurring in the judgment.

Due to his retirement, JUSTICE NEHRING did not participate herein; DISTRICT COURT JUDGE RYAN HARRIS sat.

JUSTICE DENO G. HIMONAS became a member of the Court on February 13, 2015, after oral argument in this matter, and accordingly did not participate.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 Andy Rasabout fired twelve shots at a house in a gang-related drive-by shooting. A jury convicted him of twelve felony counts of unlawful discharge of a firearm, in violation of Utah Code section 76-10-508. The trial court merged the twelve counts into one,

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but the court of appeals reversed. We granted Mr. Rasabout's petition for certiorari and now affirm the ruling of the court of appeals, holding that the allowable unit of prosecution for unlawful discharge of a firearm is each discrete shot.

BACKGROUND

¶2 Mr. Rasabout is a member of the street gang known as the Tiny Oriental Posse. On November 1, 2007, Mr. Rasabout, riding shotgun in a Honda Civic, fired twelve shots from a Glock 9 mm semiautomatic pistol at a house and a car parked in front. Lee Tran, whom Mr. Rasabout knew to be a rival in the Original Laotian Gangsters, owned the car and was inside the house at the time. But Mr. Tran was not the only person in danger. Two young girls and their mother were asleep upstairs. Several others were playing cards in the basement. And one man was standing in the carport, enjoying the crisp morning air and a cigarette.

¶3 A jury convicted Mr. Rasabout of twelve felony counts of unlawful discharge of a firearm, in violation of Utah Code section 76-10-508. At Mr. Rasabout's request, the trial court merged the twelve counts and sentenced Mr. Rasabout on the basis of one conviction. The court of appeals concluded that the trial court erred and ordered that court to resentence Mr. Rasabout on all twelve convictions.¹ We granted Mr. Rasabout's petition for certiorari and have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶4 On certiorari to the Utah Court of Appeals, we review the decision of that court for correctness; we do not review the decision of the trial court.²

ANALYSIS

¶5 When Mr. Rasabout fired twelve shots into a house that he knew to be occupied by a rival gang member, Utah Code section 76-10-508 provided,

(1)(a) A person may not discharge any kind of dangerous weapon or firearm:

(i) from an automobile or other vehicle;

(ii) from, upon, or across any highway;

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. . . .

(vii) without written permission . . . within 600 feet of . . . a house, dwelling, or any other building;

. . . .

(2) A violation of any provision of this section is a class B misdemeanor unless the actor discharges a firearm under any of the following circumstances . . . , in which case it is a third degree felony and the convicted person shall be sentenced to an enhanced minimum term of three years in prison:

(a) the actor discharges a firearm in the direction of any person or persons, knowing or having reason to believe that any person may be endangered;

(b) the actor, with intent to intimidate or harass another or with intent to damage a habitable structure . . . , discharges a firearm in the direction of any building; or

(c) the actor, with intent to intimidate or harass another, discharges a firearm in the direction of any vehicle.³

Pursuant to this statute, a jury convicted Mr. Rasabout of twelve felony counts of unlawful discharge of a firearm. The trial court merged the twelve counts into one. The court of appeals reversed this ruling, reasoning that the allowable unit of prosecution for the offense is each discrete shot. Thus, the court concluded that the twelve discrete shots Mr. Rasabout fired support twelve convictions. We affirm the court of appeals.

¶6 Our analysis proceeds in three parts: First, we hold that the allowable unit of prosecution for unlawful discharge of a firearm is each discrete shot; accordingly, Mr. Rasabout was properly convicted of and may be punished for twelve separate counts because he fired twelve discrete shots. Second, we reject as inapplicable the single criminal episode statute and the single larceny rule, on which Mr. Rasabout relies. Third, we hold that the state and federal cruel and unusual punishment clauses are inapplicable because those clauses deal with punishment, which is distinct from the allowable unit of prosecution for an offense.

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I. MR. RASABOUT WAS PROPERLY CONVICTED OF TWELVE COUNTS OF UNLAWFUL DISCHARGE OF A FIREARM BECAUSE HE FIRED TWELVE DISCRETE SHOTS

¶7 At the heart of this case is a single question: What is the allowable unit of prosecution for the crime of unlawful discharge of a firearm? The answer to that question determines whether Mr. Rasabout was permissibly convicted of twelve counts. The court of appeals concluded that "the unit of prosecution under the firearm discharge statute is each discrete shot."⁴ Mr. Rasabout argues that this conclusion was in error. He points instead to the intent required by the enhancement provision and argues that the allowable unit of prosecution is the continuous intent that motivates one or more shots. He reasons that he violated the statute only once because a single continuous intent motivated him to fire all twelve shots. The State disagrees, arguing that the Legislature criminalized each discrete shot. We agree with the State and therefore affirm the court of appeals.

A. Identifying the Allowable Unit of Prosecution for an Offense

¶8 The allowable unit of prosecution for an offense determines whether a perpetrator's conduct constitutes one or more violations of that offense. Take the example of child pornography. It is a crime to "intentionally . . . view[] child pornography."⁵ If a perpetrator views multiple images of multiple victims over a period of time, how many times has he committed the offense? Perhaps there is one violation for each viewing session, regardless of the number of images or victims. Or maybe there is one violation for each victim or one for each image. The allowable unit of prosecution provided by the offense resolves this question. In the case of child pornography, the Legislature has provided that "[i]t is a separate offense under this section: (a) for each minor depicted in the child pornography; and (b) for each time the same minor is depicted in different child pornography."⁶

¶9 But not all statutes explicitly define the allowable unit of prosecution. State v. Morrison, which dealt with a prior version of the child-pornography statute, illustrates the appropriate analysis when

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the statute at issue is not so explicit.⁷ In that case, the defendant contended that he violated the child-pornography statute only once even though he possessed multiple visual representations of child pornography.⁸ Although the statute did not explicitly define the allowable unit of prosecution, we nevertheless focused on the statutory language that defined the offense as "'knowingly . . . possess[ing] . . . material . . . depicting'" child pornography and defined "material" as "'any visual representation.'"⁹ We reasoned that "[t]he clearest reading of the statute is that each individual 'visual representation' of child pornography that is knowingly possessed by a defendant constitutes the basis for a separate offense."¹⁰ Accordingly, on the basis of the statutory language, we held that the allowable unit of prosecution for child pornography is each visual representation.¹¹

¶10 In short, identifying the allowable unit of prosecution for an offense is a question of statutory construction.¹² And when construing a statute, we seek to give effect to the intent of the Legislature.¹³ Indeed, this has been our practice from the time of statehood until now.¹⁴ To ascertain that intent, we look first to the

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text of the statute within its context.¹⁵ And while the ordinary meaning of a word is powerful evidence in understanding statutory text, it is not the only consideration because it is simply inconclusive as to the meaning intended in a particular context.¹⁶ Even if a word bears one meaning in the majority of cases where that word is used proximate to another, that does not foreclose the possibility that the Legislature intended a less-preferred meaning in a particular context. We therefore begin with the...