IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100538‐CA
)
v. ) FILED
) (August 23, 2012)
Dustin Lynn Bird, )
) 2012 UT App 239
Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 091908403
The Honorable William W. Barrett
Attorneys: Linda M. Jones, Christopher L. Stout, and Charity Shreve, Salt Lake
City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Orme, Thorne, and Christiansen.
THORNE, Judge:
¶1 Dustin Lynn Bird appeals his conviction on one count of failure to respond to an
officer’s signal to stop, a third degree felony. See generally Utah Code Ann.
§ 41‐6a‐210(1)(b) (2010). Bird argues that the district court failed to adequately instruct
the jury on the elements of that offense.
BACKGROUND
¶2 On October 12, 2009, Salt Lake City police officer Alma Todd Sweeney was
traveling eastbound on 700 South in Salt Lake City when he observed a blue Ford
Mustang approaching him in the oncoming lane. As the two vehicles passed each
other, the Mustang’s driver and passenger looked at Sweeney and reacted with what he
interpreted as nervousness. Suspicious, Sweeney turned around and began following
the Mustang. A license plate check by Sweeney revealed “an ongoing investigation,”
and he observed the Mustang’s occupants bending down as if they were attempting to
hide or retrieve something underneath the seats. After observing the Mustang fail to
stop at a stop sign, Sweeney activated his lights to initiate a traffic stop as the two
vehicles proceeded south on Navajo Street.
¶3 The Mustang’s driver, Bird, slowed but did not stop. Instead, Bird continued
southward, drifting in his lane and almost colliding with cars parked along the street.
Bird passed several spots where it would have been safe to pull over and turned west
on American Avenue. Bird then slowed and turned toward the curb as though coming
to a stop but then pulled back out and accelerated back up to twenty or twenty‐five
miles per hour. Bird finally stopped the Mustang at 1400 West.
¶4 As Bird was coming to a stop, his passenger got out and started jogging away
while “shifting stuff in his clothing.” Sweeney, who had left his vehicle to approach the
Mustang, got back in his vehicle and began pursuing the passenger. After a short
pursuit, Sweeney apprehended the passenger. In the process of apprehending the
passenger, Sweeney observed Bird drive away rapidly in the Mustang. Sweeney
radioed a description of Bird and the Mustang to dispatch, and another officer stopped
Bird without incident several minutes later. Bird initially denied knowing his
passenger but ultimately admitted to police that the passenger was a friend of his and
that “he was pulled over by the police, and then the police chased his friend.”
¶5 Bird was charged with one count of failure to respond to an officer’s signal to
stop, a third degree felony.1 Prior to closing arguments at Bird’s jury trial, the district
court discussed the jury instructions with counsel for Bird and the State.2 The proposed
elements instruction stated,
1. Bird was also charged with and convicted of failure to stop at a stop sign, but that
conviction is not at issue in this appeal, and we treat this matter as if it arose solely from
Bird’s failure to respond conviction.
2. Both Bird and the State appeared before the district court through counsel, and the
colloquies cited in this opinion took place between the district court and respective
counsel. However, for simplicity, we attribute respective counsel’s statements to Bird
and the State throughout this opinion.
20100538‐CA 2
The defendant, Dustin Lynn Bird[,] is charged with Failure
to Respond to Officer’s Signal to Stop. You cannot convict
him of this offense unless you find beyond a reasonable
doubt, based on the evidence, each of the following
elements:
1. That on or about October 12th, 2009;
2. the defendant, Dustin Lynn Bird;
3. did operate a motor vehicle, and;
4. having received a visible or audible signal from a
peace officer to bring the vehicle to a stop;
5. did attempt to flee or elude a peace officer by
vehicle or other means.
....
This instruction generally tracked the statutory language of Utah Code section
41‐6a‐210(1)(a)(ii), under which Bird was charged. See generally Utah Code Ann.
§ 41‐6a‐210(1)(a)(ii) (“An operator who receives a visual or audible signal from a peace
officer to bring the vehicle to a stop may not . . . attempt to flee or elude a peace officer
by vehicle or other means.”).3
¶6 After reviewing this instruction, Bird objected, “I don’t see anything outlining
the mental state or reckless as the lower standard, I think it should be defined to the
jury.” The district court inquired, “On what?” Bird continued, “On the element
of—when we’re going through the elements that on or about October 12th, Dustin Bird
did operate a motor vehicle. I think there needs to be explanation that he needs to do
that recklessly or willfully.” The State and the district court disagreed with Bird’s
assertion, and the discussion turned to the two different ways in which a person can
violate Utah Code section 41‐6a‐210(1)(a):
[The State]: Under—there are two theories of this charge.
One is that he evaded the public willfully—
3. Utah Code section 41‐6a‐210(1)(a)(i) provides an alternative charging theory,
prohibiting the operation of a vehicle “in willful or wanton disregard of [a signal to
stop] so as to interfere with or endanger the operation of any vehicle or person.” See
Utah Code Ann. § 41‐6a‐210(1)(a)(i) (2010). Bird was not charged under this alternate
theory of criminal liability.
20100538‐CA 3
[The district court]: That’d be different.
[Bird]: Yeah.
[The State]: That’s not what we have here.
[Bird]: That’s correct, but then the other one, it’s not
mentioned in the statute, and the standard is reckless?
[The district court]: No, it’s—no, no, no, no, no, no, no, no.
The district court then stated, apparently in reference to the proposed elements
instruction, “I think it’s got the elements here.” After a further short discussion, Bird
again stated, “I think it needs to be defined for the jury,” to which the district court
responded, “I don’t think so. There’s no word in there that goes [to] reckless or
knowing or anything else—.” The district court concluded the discussion by stating,
“[Y]ou’ve made your record, I’ve denied it. You ready to go?” Bird responded, “Yes.”
¶7 The matter proceeded to the jury with the proposed elements instruction, and no
other instruction addressed the mental state issue. Bird was convicted, and he now
appeals.
ISSUE AND STANDARD OF REVIEW
¶8 Bird argues that the district court committed reversible error when it failed to
instruct the jury on the mental state required for conviction of failure to respond to an
officer’s signal to stop. “The standard of review for jury instructions to which counsel
has objected is correctness.” State v. Cooper, 2011 UT App 234, ¶ 5, 261 P.3d 653 (internal
quotation marks omitted).
ANALYSIS
¶9 Bird requested a jury instruction defining the applicable mental state that the
State was required to prove to support the charge of failure to respond to an officer’s
signal to stop. The district court denied Bird’s request, and the jury convicted Bird
without any instruction addressing the mental state or mens rea that was required for
20100538‐CA 4
the crime charged. We determine that the district court should have instructed the jury
on this issue, and we reverse Bird’s conviction.
¶10 As an initial matter, the State argues that Bird failed to preserve this issue for
appeal. To this end, the State asserts that “[Bird’s] only challenge to the [elements]
instruction was that it failed to attach a mental state of ‘recklessly or willfully’ to the
‘did operate a motor vehicle’ element of the crime.” We disagree with the State’s
characterization of Bird’s objection.
¶11 Bird’s original objection to the lack of instruction on mental state was not limited
to the “did operate a motor vehicle” element, but instead generally requested that the
elements instruction define the required mental state for the failure to respond charge.
When the district court asked for clarification, Bird began “going through the
elements,” the first of which was “that on or about October 12th, Dustin Bird did
operate a motor vehicle.” However, Bird also specifically addressed the mental state
required for criminal liability under “the other one,” referring to the second theory of
liability enunciated in the failure to respond statute, under which he was charged. See
generally Utah Code Ann. § 41‐6a‐210(1)(a)(ii) (2010) (“An operator who receives a
visual or audible signal from a peace officer to bring the vehicle to a stop may not . . .
attempt to flee or elude a peace officer by vehicle or other means.”). Bird indicated to
the district court that the theory under which he was charged did not expressly provide
for a mental state and suggested that the appropriate mental state might be
recklessness; the district court responded, “No, it’s—no, no, no, no, no, no, no, no.” As
Bird continued to request a mental state instruction, the district court explained that “I
think [the proposed instruction has] got the elements here” and “[t]here’s no word in
there that goes [to] reckless or knowing or anything else” before expressly denying
Bird’s request.
¶12 Taken as a whole, Bird’s objection clearly alerted the district court that he was
requesting a mental state instruction on each of the elements of the failure to respond
charge. This is sufficient for preservation of that issue for appeal. See State v. Bujan,
2006 UT App 322, ¶ 23, 142 P.3d 581 (finding adequate preservation where the
defendant’s objection was “sufficiently precise to alert the trial court” of the alleged
error and gave the court “an opportunity to make any corrections deemed necessary”
(internal quotation marks omitted)). Further, to the extent that Bird’s objection to a lack
of mental state instruction on all of the elements could have been clearer, we note that
the district court emphatically disagreed with Bird’s position throughout the
preservation colloquy before expressly denying Bird’s request with the comment that
“you’ve made your record.” Under these circumstances, further pursuit of a mental
20100538‐CA 5
state instruction would clearly have been futile, and futile objections are not required to
preserve issues for appeal. See generally State v. Rothlisberger, 2004 UT App 226, ¶ 29, 95
P.3d 1193 (“In essence, the trial court’s ruling that the testimony was lay witness
testimony rendered any objection that was predicated on expert‐testimony rules futile.
Under our law, parties are not required to make futile objections in order to preserve a
future claim.”).
¶13 Having determined that Bird preserved the lack of a mental state instruction as
an issue for appeal, we turn to the question of whether the district court erred when it
failed to give such an instruction. “[T]he general rule is that an accurate instruction
upon the basic elements of an offense is essential, [and] failure to provide such an
instruction is reversible error that can never be considered harmless.” State v.
Stringham, 957 P.2d 602, 608 (Utah Ct. App. 1998) (internal quotation marks omitted).
Thus, if the failure to respond charge against Bird has a requisite mental state, then the
district court’s failure to give a mental state instruction was reversible error.
¶14 The State argues that there was no required mental state for any element of
Bird’s failure to respond charge because the crime of failure to respond to an officer’s
signal to stop is found in Utah’s Traffic Code rather than its Criminal Code. The State
relies on Utah Code section 76‐2‐101:
(1)(a) A person is not guilty of an offense unless the person’s
conduct is prohibited by law; and
(b)(i) the person acts intentionally, knowingly, recklessly,
with criminal negligence, or with a mental state otherwise
specified in the statute defining the offense, as the definition
of the offense requires; or
(ii) the person’s acts constitute an offense involving strict
liability.
(2) These standards of criminal responsibility do not apply to
the violations set forth in Title 41, Chapter 6a, Traffic Code,
unless specifically provided by law.
Utah Code Ann. § 76‐2‐101 (2008) (emphasis added). The crime of failure to respond is
located within Title 41, Chapter 6a, Traffic Code, see id. § 41‐6a‐210, and accordingly the
20100538‐CA 6
State argues that the mental state requirements enunciated in section 76‐2‐101(1)(b) do
not apply to that crime.
¶15 Whether or not the State is correct about the interplay between Utah Code
sections 76‐2‐101 and 41‐6a‐210,4 we determine that the plain language of section
41‐6a‐210 incorporates its own set of mental state requirements on which Bird was
entitled to a jury instruction. Under either theory of liability enumerated in section
41‐6a‐210(1)(a), an operator commits no crime unless he first “receives” a signal to stop.
See id. § 41‐6a‐210(1)(a). Further, the particular charge against Bird required that he
“attempt” to flee or elude an officer after receiving the signal to stop. See id.
§ 41‐6a‐210(1)(a)(ii).
¶16 Both of these elements implicate particular mental states that Bird was required
to have in order to be convicted of the charged crime. The requirement that Bird
“receive” a signal to stop implies that he needed some level of mental appreciation that
he was being hailed to a stop by a peace officer. Similarly, in order for the jury to
determine that Bird “attempt[ed]” to flee or elude police after receiving the signal to
stop, it would necessarily have to find that the purpose of Bird’s actions was to flee or
elude the police. Bird requested a jury instruction defining these required mental states
to the jury, and he was entitled to receive it.5 See generally Stringham, 957 P.2d at 608.
The district court’s failure to grant Bird’s request constitutes reversible error, see id., and
accordingly we reverse Bird’s conviction.
4. Despite the plain language of section 76‐2‐101, we do not necessarily agree with the
State that section 76‐2‐101(2) automatically removes the concept of mens rea from the
entire Utah Traffic Code. We note that Utah Code section 76‐2‐102 contains the
seemingly contradictory language, “Every offense not involving strict liability shall
require a culpable mental state,” Utah Code Ann. § 76‐2‐102 (2008), with no exception
for offenses found in the Traffic Code.
5. We recognize that “[i]t is normally unnecessary and undesirable for a trial judge to
volunteer definitions of terms of common usage for the jury.” State v. Couch, 635 P.2d
89, 94 (Utah 1981). However, while the terms “receive” and “attempt” are terms of
common usage, we do not believe that the criminal law mens rea implications of those
terms would necessarily be obvious to a jury. Cf. State v. Stringham, 957 P.2d 602, 609
(Utah Ct. App. 1998) (“It is too long a reach to suggest the jury divined that defendant
had to act intentionally because such a level of volition is inherent in the concept of
‘devis[ing] a scheme.’” (alteration in original)).
20100538‐CA 7
CONCLUSION
¶17 Outside of the strict liability context, a defendant who requests a jury instruction
on the mental state or states required for conviction is entitled to such an instruction,
and the failure to give that instruction constitutes reversible error. Here, Bird requested
and was entitled to a jury instruction that defined the required mental state for each
element of the charged crime of failing to respond to an officer’s signal to stop, an
offense that by its own terms is not a strict liability crime. Because Bird was denied
such an instruction, we reverse his conviction on that charge.6
____________________________________
William A. Thorne Jr., Judge
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¶18 I CONCUR:
____________________________________
Michele M. Christiansen, Judge
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¶19 I DISSENT:
____________________________________
Gregory K. Orme, Judge
6. Our failure to enunciate the exact mental state requirement as to each element of a
failure to respond charge under Utah Code section 41‐6a‐210(1)(a)(ii) is intentional.
Should the State opt to retry Bird on this charge, we leave it to the district court to
determine in the first instance what the contents of any requested mental state
instruction should be. We will review the adequacy of that instruction if and when the
question comes before us.
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