State v. Sanislo

359 P.3d 1287

2015 UT App 232

STATE of Utah, Appellee

v.Troy Andrew SANISLO, Appellant.

No. 20131123–CA.

Court of Appeals of Utah.

Sept. 11, 2015.

John B. Plimpton, Alexandra S. McCallum, and Neal G. Hamilton, Attorneys for Appellant.

Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.

Judge J. FREDERIC VOROS JR. authored this Memorandum Decision, in which Judges JAMES Z. DAVIS and STEPHEN L. ROTH concurred.

Memorandum Decision

VOROS, Judge:

¶ 1 Troy Andrew Sanislo was charged with third degree felony aggravated assault for an incident occurring in December 2011. The jury acquitted Sanislo of aggravated assault but convicted him of the lesser included offense of class B misdemeanor assault. For reasons explained below—and that are not challenged on appeal—after the jury returned its verdict, the trial court entered a conviction for class A misdemeanor assault. Sanislo appeals that conviction. We affirm.

¶ 2 At trial, the State requested a jury instruction for class A misdemeanor assault on the ground that it constituted a lesser included offense of the charged crime, third degree felony aggravated assault. Sanislo objected, arguing that class A misdemeanor assault did not constitute a lesser included offense of aggravated assault but that class B misdemeanor assault did constitute a lesser included offense on which the court could instruct the jury. The trial court agreed with the State that class A misdemeanor assault constituted a lesser included offense of aggravated assault. But it also agreed with Sanislo that class B misdemeanor assault constituted a lesser included offense of aggravated assault.

¶ 3 Sanislo did not want to confuse the jury by instructing on two lesser included offenses. Accordingly, subject to his objection, Sanislo suggested, “[I]f we're going to include [a lesser included instruction,] we should probably just ... have it be the [class] A.” Unfortunately, neither the State nor Sanislo had an accurate instruction on class A misdemeanor assault at the ready. To move things along, Sanislo agreed that the jury could be instructed on class B misdemeanor assault as a lesser included offense with the understanding that if the jury convicted on class B misdemeanor assault “it's a [class] A not a [class] B.” Importantly, Sanislo's objection preserved his right to challenge the trial court's ruling that class A misdemeanor assault constitutes a lesser included offense of aggravated assault. Sanislo now challenges that ruling.

¶ 4 On appeal, Sanislo contends that the trial court erred in ruling that class A misdemeanor assault constitutes a lesser included offense of aggravated assault. Specifically, he argues that class A misdemeanor assault does not constitute a lesser included offense of aggravated assault, because it requires proof of substantial bodily injury. Sanislo maintains that substantial bodily injury constitutes an additional element, one not necessarily included in the elements of aggravated assault.

¶ 5 A trial court's decision “to grant a lesser included offense instruction is a question of law, which we review for correctness.” State v. Reece, 2015 UT 45, ¶ 16, 349 P.3d 712 (citation and internal quotation marks omitted).

¶ 6 Under Utah law, one offense constitutes a lesser included offense of another if “[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Utah Code Ann. § 76–1–402(3)(a) (LexisNexis 2008). Two standards govern whether a trial court may give a lesser included instruction. See State v. Baker, 671 P.2d 152, 154 (Utah 1983). One standard applies to defense-requested instructions. See id. at 156–58. That standard, the “evidence-based” standard, allows the defense to request a lesser included instruction “if any reasonable view of the evidence would support such a verdict. ” Id. at 154 (citation and internal quotation marks omitted); see also id. at 157–58. The other standard, and the standard relevant here, applies to State-requested lesser included instructions. See id. at 155, 156. That standard, the “necessarily included offense” standard, allows for a State-requested lesser included instruction if “both the legal elements and the actual evidence or inferences needed to demonstrate those elements must necessarily be included within the original charged offense.” Id. at 156. This standard “relies upon a comparison of the abstract statutory elements.” Id. at 154. Therefore, “the relationship between a lesser included offense and the charged offense will generally be such that the greater cannot be committed without committing the lesser.” State v. Houskeeper, 2002 UT 118, ¶ 13, 62 P.3d 444. Finally, a “trial court may properly give a [State-requested] lesser included offense instruction, even over a defendant's objection, if there is clearly no risk that the defendant will be prejudiced by lack of notice and preparation so as to deprive him of a full and fair opportunity to defend himself.”Id. ¶ 15 (citation and internal quotation marks omitted).

¶ 7 In this case, Sanislo was charged with third degree aggravated assault. The relevant elements of third degree aggravated assault required the State to prove that Sanislo committed assault as defined in Utah Code section 76–5–102, and that he used force likely to produce death or serious injury:¹

A person commits aggravated assault if the person commits assault as defined in Section 76–5–102 and uses: (a) a dangerous weapon ...; or (b) other means or force likely to produce death or serious bodily injury.

Utah Code Ann. § 76–5–103(1) (LexisNexis Supp. 2011).² Under the plain language of the aggravated assault statute, aggravated assault cannot be committed without necessarily having committed “assault as defined in Section 76–5–102.” Id. Section 76–5–102 defines, in relevant part, the offense of assault:

(1) Assault is: ... (c) an act, committed with unlawful force or violence, that causes bodily injury to another....

(2) Assault is a class B misdemeanor.

(3) Assault is a class A misdemeanor if: (a) the person causes substantial bodily injury to another....

Id. § 76–5–102 (LexisNexis 2008).³

¶ 8 Sanislo argues, “From the plain language and structure of section 76–5–102, it is evident that the definition of assault is exclusively contained in subsection (1).” He continues that “[s]ubsection (3)(a) merely enhances assault, which is a class B misdemeanor, to a class A misdemeanor if it results in ‘substantial bodily injury.’ ” He concludes that “[s]ubsection (3)(a) does not define assault,” and that our precedent has “recognized that subsection (1) defines assault and subsection (3)(a) is merely an enhancement provision.” We disagree.

¶ 9 First, Sanislo's preferred interpretation of the statute ignores the statute's plain language.

“Under our rules of statutory construction, we look first to the statute's plain language to determine its meaning.” Sindt v. Retirement Bd., 2007 UT 16, ¶ 8, 157 P.3d 797 (citation and internal quotation marks omitted). The aggravated assault statute is straightforward. It states that a person commits aggravated assault if the person, among other requirements, “commits assault as defined in Section 76–5–102.” Utah Code Ann. § 76–5–103(1) (LexisNexis Supp. 2011). The plain language of the aggravated assault statute incorporates section 76–5–102in its entirety, and therefore any variation of assault defined in that section satisfies the first element of the aggravated assault statute.

¶ 10 Section 76–5–102 defines at least five different variations of assault. Subsection 102(1) states what “Assault is” and lists three separate definitions. One of these definitions defines assault as an unlawful act that causes bodily injury. Id. § 76–5–102(1)(c) (LexisNexis 2008). Subsection 102(2) classifies this variant of assault as a class B misdemeanor. Id. § 76–5–102(2). Subsection 102(3) also states what “Assault is” and lists two additional definitions. One of these defines assault as an unlawful act that causes substantial bodily injury to another. Id. § 76–5–102(3)(a). Subsection 102(3) classifies this variant of assault as a class A misdemeanor. Id. § 76–5–102(3). In other words, section 76–5–102 outlines at least five variations of assault, any one of which, if proven beyond a reasonable doubt, satisfies the first element of the aggravated assault statute. See id. § 76–5–103 (Supp.2011).

¶ 11 Second, Sanislo's preferred interpretation of the statute would yield an absurd result. Believing that our legislature would not have intended such results, “we prefer the reading that avoids absurd results.” Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 26, 267 P.3d 863 (citation and internal quotation marks omitted). Sanislo would have us construe the aggravated assault statute's first element as including only assaults defined in section 76–5–102(1). Under this reading, a person who used lethal force to commit an assault resulting in no bodily injury, see Utah Code Ann. § 76–5–102(1)(a), (b) (LexisNexis 2008), would be guilty of aggravated assault, see id. § 76–5–103(1)(b) (Supp.2011), but a person who used lethal force to commit an assault resulting in substantial bodily injury, see id. § 76–5–102(3)(a) (LexisNexis 2008), would not, see id. § 76–5103(1)(b) (Supp. 2011). We do not believe our legislature intended this result.

¶ 12 Finally, none of the precedents Sanislo cites affect the outcome of the case before us. Sanislo cites State v. Labrum, 2014 UT App 5, 318 P.3d 1151 ; State v. White, 2011 UT App 162, 258 P.3d 594 ; and Salt Lake City v. Newman, 2005 UT App 191, 113 P.3d 1007, all for the proposition that “ ‘substantial bodily injury’ is merely an enhancing element [that] ... is not part of the definition of assault,” and therefore, it does not constitute a lesser included offense of aggravated assault. But none of these cases require Sanislo's interpretation of the assault statute. True, they refer to the...