lesser included offense jury instruction in Utah

2013"In addition, when the defense requests a jury instruction on a lesser included offense, the requirements for inclusion of the instruction, 'should be liberally construed." Id. (quoting State v. Hansen, 734 P.2d 421, 424 (Utah 1986)). 15 "A defendant's request for a lesser included offense instruction is evaluated under the evidence-based standard set out in [Utah Code] section 76-1-402(4)," Powell, 2007 UT 9, ¶ 24 , 154 P.3d 788 , which states: "The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the

2013“In addition, when the defense requests a jury instruction on a lesser included offense, the requirements for inclusion of the instruction, ‘should be liberally construed.’” Id. (quoting State v. Hansen, 734 P.2d 421, 424 (Utah 1986)). ¶5 “A defendant’s request for a lesser included offense instruction is evaluated under the evidence‐based standard set out in [Utah Code] section 76‐1‐402(4),” Powell, 2007 UT 9, ¶ 24 , which states: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of

2013“When considering whether a defendant is entitled to a lesser included offense jury instruction, we ‘view the evidence and the inferences that can be drawn from it in the light most favorable to the defense.’” State v. Spillers, 2007 UT 13, ¶ 10 , 152 P.3d 315 (quoting State v. Crick, 675 P.2d 527, 539 (Utah 1983)).

2013“When considering whether a defendant is entitled to a lesser included offense jury instruction, we ‘view the evidence and the inferences that can be drawn from it in the light most favorable to the defense.’” State v. Spillers, 2007 UT 13, ¶ 10 , 152 P.3d 315 (quoting State v. Crick, 675 P.2d 527, 539 (Utah 1983)).

2023“When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Guerro, 2021 UT App 136, ¶ 25 , 502 P.3d 338 (quotation simplified), cert. denied, 525 P.3d 1254 (Utah 2022). ¶18 Finally, Barnes has filed a motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, asking this court to remand the case to the trial court for supplementation of the record regarding additional claims of ineffective

2023“When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Guerro, 2021 UT App 136, ¶ 25 , 502 P.3d 338 (quotation simplified), cert. denied, 525 P.3d 1254 (Utah 2022). ¶18 Finally, Barnes has filed a motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, asking this court to remand the case to the trial court for supplementation of the record regarding additional claims of ineffective

2023“When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Guerro, 2021 UT App 136, ¶ 25 , 502 P.3d 338 (quotation simplified), cert. denied, 525 P.3d 1254 (Utah 2022). ¶18 Finally, Barnes has filed a motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, asking this court to remand the case to the trial court for supplementation of the record regarding additional claims of ineffective

2023In particular, Barnes asserts that his attorney should have 20210403-CA 17 2023 UT App 148 State v. Barnes asked that the jury be allowed to consider forcible sexual abuse as a possible lesser-included offense on that count, one that the jury could avail itself of if it believed that Barnes had touched Stepdaughter’s genitals during Incident 3 but had not actually achieved penetration.

2023For “a sufficiency of the evidence challenge, we will only reverse the fact finder’s verdict when the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted.” State v. Jok, 2021 UT 35, ¶ 17 , 493 P.3d 665 (quotation simplified). ¶17 Second, Barnes asserts that his trial counsel provided constitutionally ineffective assistance by not requesting a lesser- included-offense jury instruction on the object rape charge.

2023For “a sufficiency of the evidence challenge, we will only reverse the fact finder’s verdict when the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted.” State v. Jok, 2021 UT 35, ¶ 17 , 493 P.3d 665 (quotation simplified). ¶17 Second, Barnes asserts that his trial counsel provided constitutionally ineffective assistance by not requesting a lesser- included-offense jury instruction on the object rape charge.

2021And because Nelson presented no evidence that he obtained the keys from Victim absent the use of force, while the 20190495-CA 12 2021 UT App 26 State v. Nelson State produced ample evidence that force was used when Nelson stole Victim’s car, the district court did not err in denying Nelson’s request for a lesser-included-offense jury instruction. ¶25 Affirmed. 20190495-CA 13 2021 UT App 26

2021And because Nelson presented no evidence that he obtained the keys from Victim absent the use of force, while the 20190495-CA 12 2021 UT App 26 State v. Nelson State produced ample evidence that force was used when Nelson stole Victim’s car, the district court did not err in denying Nelson’s request for a lesser-included-offense jury instruction. ¶25 Affirmed. 20190495-CA 13 2021 UT App 26

2020Although both offenses have an element of operating a vehicle, this is not sufficient overlap to constitute a lesser included offense, see Baker, 671 P.2d at 159 , and we conclude the court did not err when it denied Higley’s motion for a lesser included offense jury instruction.

2014And ‚*w+hen considering whether a defendant is entitled to a lesser included offense jury instruction, we ‘view the evidence and the inferences that can be drawn from it in the light most 20120513-CA 23 2014 UT App 256 State v. LoPrinzi favorable to the defense.’‛ Id. (quoting State v. Crick, 675 P.2d 527, 539 (Utah 1983)). ¶42 Berriel alters this regime.

2014And ‚*w+hen considering whether a defendant is entitled to a lesser included offense jury instruction, we ‘view the evidence and the inferences that can be drawn from it in the light most 20120513-CA 23 2014 UT App 256 State v. LoPrinzi favorable to the defense.’‛ Id. (quoting State v. Crick, 675 P.2d 527, 539 (Utah 1983)). ¶42 Berriel alters this regime.

2014It states, "The issue of whether the record evidence, viewed in its totality, supports the defendant's theory of the case is primarily a factual question." 2018 UT 19 , % 9, 299 P.8d 1133.

2014And "[when considering whether a defendant is entitled to a lesser included offense jury instruction, we 'view the evidence and the inferences that can be drawn from it in the light most favorable to the defense."" Id. (quoting State v. Crick, 675 P.2d 527, 589 (Utah 1983)). 1 42 Berriel alters this regime.

2014When an appellate court discovers an "astonishingly erroneous but undetected ruling" that if left unaddressed "could subject the losing party, especially a defendant in a criminal case, to 'great and manifest injustice," "(elven if the theory is uncovered after arguments, in the final stages of opinion drafting, the [appellate] court should allow the parties the chance to weigh in on its validity through supplemental briefing." State v. Robison, 2006 UT 65, ¶ 23 , 24 n. 4, 147 P.3d 448 (footnote omitted); see also State v. Breckenridge, 688 P.2d 440, 443 (Utah 1983) (vacating the defendant's c

2014When an appellate court discovers an "astonishingly erroneous but undetected ruling" that if left unaddressed "could subject the losing party, especially a defendant in a criminal case, to 'great and manifest injustice," "(elven if the theory is uncovered after arguments, in the final stages of opinion drafting, the [appellate] court should allow the parties the chance to weigh in on its validity through supplemental briefing." State v. Robison, 2006 UT 65, ¶ 23 , 24 n. 4, 147 P.3d 448 (footnote omitted); see also State v. Breckenridge, 688 P.2d 440, 443 (Utah 1983) (vacating the defendant's c

2014It states, ‚The issue of whether the record evidence, viewed in its totality, supports the defendant’s theory of the case is primarily a factual question.‛ 2013 UT 19 , ¶ 9.

2014Cf. State v. Houskeeper, 2002 UT 118 , ¶ 11, 62 P.3d 444 . (12 However, before we reach that issue, we must address the question we posed to the parties in a request for supplemental briefing: whether the lesser included offense jury instruction (Instruction 24) misstated the mens rea element of homicide by assault in a manner that effectively removed the lesser offense from the jury's consideration, rendering resolution of the primary issue on appeal-whether the corresponding verdict form on the lesser included offense was properly provided to the jury-irrelevant.

2014Cf. State v. Houskeeper, 2002 UT 118 , ¶ 11, 62 P.3d 444 . (12 However, before we reach that issue, we must address the question we posed to the parties in a request for supplemental briefing: whether the lesser included offense jury instruction (Instruction 24) misstated the mens rea element of homicide by assault in a manner that effectively removed the lesser offense from the jury's consideration, rendering resolution of the primary issue on appeal-whether the corresponding verdict form on the lesser included offense was properly provided to the jury-irrelevant.