State v. Vigil, 900166

Decision Date03 September 1992
Docket NumberNo. 900166,900166
Citation842 P.2d 843
PartiesSTATE of Utah, Plaintiff and Appellee, v. Wilfred A. VIGIL, Jr., Defendant and Appellant.
CourtUtah Supreme Court

R. Paul Van Dam, David B. Thompson, Salt Lake City, for plaintiff and appellee.

James C. Bradshaw, Joan C. Watt, Salt Lake City, for defendant and appellant.


Wilfred A. Vigil, Jr., appeals from a trial court order denying a motion he directed against two counts of an information filed against him. He moved to amend one count of attempted second degree murder and to dismiss a second count of attempted second degree murder. The sole question presented on appeal is whether the trial court correctly ruled that Vigil could be prosecuted for attempted second degree murder under the depraved indifference alternative of section 76-5-203(1)(c) of the Code. Utah Code Ann. § 76-5-203(1)(c) (1990) (amended 1991). 1 We hold that Utah does not recognize attempted depraved indifference homicide and reverse the trial court order denying Vigil's motion.

Because the facts are unimportant to the issue before us, we will summarize them briefly. Vigil was charged with one count of second degree murder, a first degree felony, id. § 76-5-203(1)-(2), and two counts of attempted second degree murder, a second degree felony, id. §§ 76-5-203(1), -4-101, -4-102(2). These counts arose out of his allegedly shooting a rifle into a crowd on State Street in Salt Lake City. The shooting resulted in the death of one person and the wounding of two others. Before trial, Vigil moved to amend one count of the information and dismiss another. The aim of the motion was to delete from the information anything that would allow the jury to find him guilty of attempted depraved indifference homicide. The trial court denied the motion, whereupon Vigil petitioned this court for permission to make an interlocutory appeal. We granted his request and now consider the correctness of the trial court's ruling.

We first state the standard of review. The question of whether Utah recognizes attempted depraved indifference homicide is purely a matter of statutory interpretation. Therefore, we review the trial court's ruling for correctness and give no deference to its conclusions. State v. Petersen, 810 P.2d 421, 424 (Utah 1991); City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah), cert. denied, 498 U.S. 841, 111 S.Ct. 120, 112 L.Ed.2d 89 (1990); Provo City Corp. v. Willden, 768 P.2d 455, 456 (Utah 1989).

The issue before us is narrow. We are asked to determine whether proof of the "knowing" mental state required for depraved indifference homicide under section 76-5-203(1)(c) of the Code is sufficient to satisfy the mental state required by Utah's attempt statute found in section 76-4-101. If we find that the "knowing" mental state required for depraved indifference homicide is sufficient to satisfy the attempt statute, the State will be able to prosecute a defendant for attempt to commit depraved indifference homicide.

We begin with the two statutes. The first is the second degree murder statute, which sets out several alternative formulations of second degree murder. Utah Code Ann. § 76-5-203(1) (1990) (amended 1991). The formulation we are concerned with is subparagraph (1)(c), the depraved indifference formulation. Subparagraph (1)(c), as construed by this court in State v. Standiford, 769 P.2d 254, 263-64 (Utah 1988), and State v. Fontana, 680 P.2d 1042, 1046-47 (Utah 1984), provides that a defendant may be convicted of second degree murder if he or she killed another with a "knowing" mental state, i.e., if the defendant knew his or her conduct created a grave risk of death to another. 2

The other statute of concern is the attempt statute, section 76-4-101. The mental state required by the attempt statute is found in the first two paragraphs, as indicated by emphasis below:

(1) For purposes of this part a person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the offense, he [or she] engages in conduct constituting a substantial step toward commission of the offense.

(2) For purposes of this part, conduct does not constitute a substantial step unless it is strongly corroborative of the actor's intent to commit the offense.

(3) No defense to the offense of attempt shall arise:

(a) Because the offense attempted was actually committed; or

(b) Due to factual or legal impossibility if the offense could have been committed had the attendant circumstances been as the actor believed them to be.

Utah Code Ann. § 76-4-101 (emphasis added).

To determine whether the legislature intended to recognize attempted depraved indifference homicide, we begin with the statutes' plain language. We will resort to other methods of statutory interpretation only if we find the language of the statutes to be ambiguous. See Shurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991); Bonham v. Morgan, 788 P.2d 497, 500 (Utah 1989) (per curiam).

Paragraph (1) of the attempt statute provides that an attempt can occur whenever the actor acts with the "kind of culpability otherwise required" for the completed crime and his or her act is a "substantial step" toward committing the crime. Utah Code Ann. § 76-4-101(1). Because the criminal code specifies four discrete mental states that may result in criminal liability, i.e., intent, knowledge, recklessness, or negligence, id. § 76-2-101(1), the language in paragraph (1) seems to suggest that an attempt conviction may be based upon the incomplete perpetration of any of the crimes in the Code.

On the other hand, paragraph (2) of the attempt statute states that the defendant's conduct must be corroborative of his or her "intent to commit the offense." Id. § 76-4-101(2). At first blush, this provision appears to contradict the broad "culpability" language in paragraph (1). While paragraph (1) seems to allow for any mental state so long as it falls within the "kind of culpability otherwise required" for the underlying offense, paragraph (2) seems to require a mental state of "intent."

However, closer examination indicates that paragraphs (1) and (2) are not contradictory. "Culpability," the term used in paragraph (1), and "intent," the term used in paragraph (2), are distinct concepts. Intent is a mental state. Black's Law Dictionary 415 (5th abr. ed. 1983). Culpability, on the other hand, refers to blameworthiness, id. at 200; 25 C.J.S. Culpability (1966), a value society assigns to particular behaviors that it deems punishable. Culpability is an inclusive term that comprehends actions or omissions, the mental state with which they are done, and the circumstances in which the acts or omissions take place. See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 24 (1979) [hereinafter Criminal Law ]. Thus, although culpability includes consideration of the actor's mental state, it is a much broader concept than intent. See 25 C.J.S. Culpable (1966) (defining culpability as "deserving punishment ... or blame or censure," but noting that it does not necessarily connote "guilt," "malice," or "guilty purpose"). 3

With this distinction in mind, we interpret paragraphs (1) and (2) of section 76-4-101. In doing so, we rely on two well-established rules of statutory construction. Cf. Utah Code Ann. § 76-1-106 (requiring terms to be construed according to their fair import). First, specific statutory provisions take precedence over general statutory provisions. E.g., Osuala v. Aetna Life & Casualty, 608 P.2d 242, 243 (Utah 1980). Second, statutory provisions should be construed to give full effect to all their terms. E.g., Shurtz, 814 P.2d at 1112.

Applying these two rules to the attempt statute resolves the apparent contradiction between paragraphs (1) and (2). The more specific requirement of intent in paragraph (2) (i.e., "intent to commit the [underlying] offense") takes precedence over the general culpability requirement in paragraph (1) (i.e., "culpability otherwise required for the commission of the [underlying] offense"). And to give the fullest possible effect to the terms of paragraphs (1) and (2), we construe the culpability requirement in paragraph (1) to refer to the attendant circumstances, if any, 4 of the underlying offense and construe the intent language in paragraph (2) to limit the attempt statute to offenses with a mental state of "intent." In other words, attempt can be found for uncompleted offenses that require "intent," even though those offenses have attendant circumstances that require lesser mental states.

Our construction of Utah's attempt statute finds support in the attempt provisions of the Model Penal Code ("MPC") and the 1971 Proposed Federal Criminal Code ("PFCC"), both of which served as bases for the Utah provision. See State v. Pearson, 680 P.2d 406, 408 (Utah 1984) (per curiam) (noting that the Utah attempt statute was modeled after the MPC version); Loren Martin, Utah Criminal Code Outline 169 (1973) (noting that the Utah attempt statute was modeled after section 1001 of the PFCC); cf. 1 National Commission on Reform of Federal Criminal Laws, Working Papers of the National Commission on Reform of Federal Criminal Laws 351-52 (1970) (relying on the stated purposes of the MPC attempt provision as the current penalogical thinking) [hereinafter National Commission Working Papers ].

Both the MPC and PFCC provisions include two phrases regarding the requisite mental states for attempt that are the same as or analogous to the provisions of the Utah attempt statute. One phrase is the "kind of culpability otherwise required" that is also used in paragraph (1) of the Utah attempt statute. The other phrase specifies the mental state necessary for the conduct that constitutes the substantial step, which corresponds to the "intent" requirement in paragraph (2) of the Utah attempt statute. See Model Penal...

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