State v. LoPrinzi

2014 UT App 256
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
SARAH ANN LOPRINZI,
Defendant and Appellant.

Opinion
No. 20120513-CA
Filed October 23, 2014

Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 101900026

Michael P. Studebaker, Attorney for Appellant

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

JUDGE STEPHEN L. ROTH authored this Opinion, in which SENIOR
JUDGE RUSSELL W. BENCH concurred.1 JUDGE J. FREDERIC VOROS JR.
concurred, with opinion, except that as to Part II.A., he
concurred in the result.

ROTH, Judge:

¶1 Sarah Ann LoPrinzi appeals her two convictions for
unlawful sexual activity with a minor, asserting that the trial
court erred in multiple ways. First, she contends that the trial

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
 State v. LoPrinzi

court should have granted her motion to either recuse the entire
Salt Lake County District Attorney’s Office from prosecuting her
case or dismiss the case altogether. Second, she challenges two of
the court’s decisions regarding jury instructions. Finally, she
claims that the court erred in denying her motion for a new trial
because the verdicts were inconsistent. We affirm.

BACKGROUND

¶2 In January 2010, LoPrinzi was charged with three counts
of unlawful sexual activity with a minor, stemming from sexual
acts she had engaged in with a fifteen-year-old boy. Prior to trial,
LoPrinzi moved to have the entire Salt Lake County District
Attorney’s Office disqualified from prosecuting her case or,
alternatively, to dismiss the case. Her motion alleged
prosecutorial misconduct on the basis that her former attorney
had provided the entire defense file to the prosecutor and that
the prosecutor’s receipt of this file ‚adversely affected the
representation . . . and [had] given a significantly undue
advantage for the prosecution.‛2 The prosecutor opposed the
motion on the basis that it had received only LoPrinzi’s mental
health records and that defense counsel had properly shared that
information because LoPrinzi had intended to apply for
prosecution in the mental health court. The prosecutor further
argued that even though LoPrinzi had since withdrawn her
application for the mental health court, the State would still be
entitled to those records because LoPrinzi intended to assert a
diminished mental capacity defense at trial, which required that

2. The motion to disqualify the Salt Lake County District
Attorney’s Office or to dismiss the case was filed by LoPrinzi’s
second defense attorney.

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 State v. LoPrinzi

her records be made available to the prosecution for review.3 The
prosecutor denied receiving any other information from
LoPrinzi’s defense file. The trial court held an evidentiary
hearing at which LoPrinzi’s former attorney testified to the same
facts asserted by the prosecutor in his opposition to the motion.
Having heard the evidence, the court found that LoPrinzi’s
former counsel ‚delivered only the mental health records . . . ,
not other confidential materials in the defense counsel’s file‛ and
concluded that ‚*t+here was no prosecutorial misconduct for the
District Attorney to receive[] the mental health records . . . , as
[LoPrinzi] was attempting to apply for mental health court and
file a Diminished Mental Capacity defense.‛ The court denied
LoPrinzi’s motion to disqualify the prosecutor’s office or dismiss
the case. LoPrinzi was eventually tried before a jury.

¶3 At trial, the complaining witness testified that between
July 2 and July 5, 2009, when he was fifteen years old, he and
LoPrinzi engaged in multiple acts of oral and vaginal
intercourse. He testified that he had planned to go camping with
a friend, who was a member of the LoPrinzi family (Friend), and
a couple of other friends for the holiday weekend. However, the
camping trip fell through, and they decided to spend the
weekend at LoPrinzi’s house instead. The complaining witness
arrived on either Thursday or Friday night and stayed through
Sunday. He testified that on the night that he arrived, he had
oral and vaginal intercourse with LoPrinzi. He testified that after
they finished, he left LoPrinzi’s bedroom. On the second day, the
complaining witness went to LoPrinzi’s bedroom for the
purpose of having sex. They again engaged in oral and vaginal

3. The response also asserted that because LoPrinzi had
withdrawn her application to the mental health court, neither
the prosecutor nor anyone else in the office had ever reviewed
the mental health records. The prosecution did not introduce
evidence to support this statement, however, and the trial court
did not cite it as a basis for its decision.

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 State v. LoPrinzi

intercourse, but this time the complaining witness spent the
night in LoPrinzi’s bedroom. During one of these two incidents,
LoPrinzi’s ex-husband arrived at LoPrinzi’s home and heard
activity consistent with sexual intercourse coming from
LoPrinzi’s bedroom. On the third morning, the complaining
witness and LoPrinzi began having oral and vaginal intercourse
but were interrupted by Friend. LoPrinzi’s ex-husband arrived
soon after, and he confronted the complaining witness about his
activities with LoPrinzi before calling the police. The
complaining witness then went to another friend’s house, where
his parents picked him up. He and his parents subsequently
reported the events to the police.

¶4 LoPrinzi’s ex-husband and Friend offered corroboration
for the complaining witness’s account of two of the incidents.
They each testified that over the course of the weekend they had
heard and observed activity between LoPrinzi and the
complaining witness that was consistent with what he had
reported.

¶5 LoPrinzi testified in her defense. She denied that she had
engaged in any sexual activity with the complaining witness.

¶6 The investigating officer testified that on July 9 or July 10,
2009, he had talked with LoPrinzi by phone and told her about
the allegations of sexual activity with the complaining witness
made by her ex-husband, the complaining witness, and the
complaining witness’s parents. The police scheduled an
appointment for LoPrinzi to come in to talk with the police
about the matter. When LoPrinzi failed to appear for the
appointment, the officer contacted LoPrinzi’s ex-husband and
discovered that LoPrinzi had moved. The ex-husband testified
that he had gone to LoPrinzi’s house on July 24 or July 25, 2009,
and the house appeared to have been abandoned: ‚Things had
been dumped everywhere,‛ ‚*t+he place had been ransacked,‛
‚*t+he walls . . . had been scrubbed down,‛ ‚Ms. LoPrinzi’s
house key was hanging on her bedroom door,‛ and the pets,
LoPrinzi’s teenage son, and LoPrinzi were ‚gone.‛ Some months

20120513-CA 4 2014 UT App 256
 State v. LoPrinzi

later, the investigating officer learned that LoPrinzi was living in
Wyoming, and a warrant for LoPrinzi’s arrest issued in January
2010.

¶7 LoPrinzi admitted that she relocated to Wyoming shortly
after her initial conversation with the police. She denied,
however, that she had abandoned her home or that she had left
the house ‚ramshackle‛ or ‚trashed.‛ She claimed that she was
not trying to evade the investigation, explaining that she was not
aware of any obligation to meet with the police when she moved
and citing her return to Utah once she became aware of the
arrest warrant. On cross-examination, the investigating officer
acknowledged that although LoPrinzi had failed to show up for
a scheduled appointment, he had told her that she was not
obligated to come to that appointment and had not otherwise
indicated that she was under arrest.

¶8 Counsel for LoPrinzi and the State presented arguments
for and against giving the jury two instructions. First, LoPrinzi
argued that the jury should be instructed on the lesser included
offense of sexual battery. The court declined to give the sexual
battery instruction, reasoning that there was neither a sufficient
overlap of elements for unlawful sexual activity with a minor
and sexual battery nor ‚a rational basis for a verdict acquitting of
the primary offense, and convicting her of the included offense.‛
See Utah Code Ann. § 76-1-402(4) (LexisNexis 2012)4 (‚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 the offense charged and convicting
him of the included offense.‛). Second, LoPrinzi opposed giving
the jury a flight instruction because LoPrinzi had never been

4. The relevant code sections have not been amended in any way
material to our analysis since the time of the underlying offense
or trial. Accordingly, we cite the current version of the Utah
Code for the convenience of the reader.

20120513-CA 5 2014 UT App 256
 State v. LoPrinzi

advised that she had any obligation to cooperate with law
enforcement or to remain in the state. The State argued that a
flight instruction was warranted because LoPrinzi’s sudden
departure after talking to the police implied a consciousness of
guilt. The trial court agreed that there was a basis in the evidence
and gave the flight instruction. The jury convicted LoPrinzi of
two counts of unlawful sexual activity with a minor (Counts 1
and 3) but acquitted her of the third (Count 2). LoPrinzi now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 LoPrinzi first contends that the trial court improperly
denied her motion either to disqualify the entire Salt Lake
County District Attorney’s Office from prosecuting her case or to
dismiss the case based on prosecutorial misconduct. We review a
decision on a motion to dismiss under rule 25 of the Utah Rules
of Criminal Procedure for abuse of discretion, noting that
dismissals ‚grounded solely on prosecutorial misconduct are
rarely appropriate.‛ State v. White, 2011 UT App 155, ¶¶ 7, 12,
256 P.3d 255 (citation and internal quotation marks omitted)
(citing Utah R. Crim. P. 25(a)). We have stated that ‚*t]rial courts
are generally allowed considerable discretion in granting or
denying motions to disqualify counsel, and such decisions will
only be overturned when the discretion is exceeded.‛ State v.
Balfour, 2008 UT App 410, ¶ 11, 198 P.3d 471. Normally, in
‚situations implicating *attorney ethical+ rules,‛ we review the
trial court’s legal interpretation of the requirements of those
rules for correctness. Id. But LoPrinzi has not challenged, or even
acknowledged, the finding of fact underlying the trial court’s
determination that there was no misconduct, nor has she
identified any rule that the conduct the court found to have
occurred would violate. Accordingly, we have no occasion to
decide whether the court correctly applied any rule of conduct to
the unchallenged facts. We therefore simply affirm the trial
court’s determination that LoPrinzi has failed to show that any
misconduct occurred.

20120513-CA 6 2014 UT App 256
 State v. LoPrinzi

¶10 Second, LoPrinzi challenges the trial court’s decisions to
deny her request for an instruction on sexual battery as a lesser
included offense and to give the jury a flight instruction. We
review a trial court’s decision not to give a lesser included
offense instruction for abuse of discretion. State v. Berriel, 2013
UT 19, ¶ 8, 299 P.3d 1133 (noting that the precise amount of
deference afforded on review depends on the type of issue
presented). ‚We review the trial court’s decision to give a flight
instruction for correctness.‛ State v. Riggs, 1999 UT App 271, ¶ 7,
987 P.2d 1281, abrogated on other grounds by State v. Levin, 2006 UT
50, 144 P.3d 1095.5

¶11 Finally, LoPrinzi asserts that the court improperly denied
her motion for a new trial because the jury’s verdicts on the
charges against her were inconsistent.

When considering an inconsistency challenge to
jury verdicts, we review the evidence in the light
most favorable to the verdict and will not overturn
a jury’s verdict of criminal conviction unless

5. The State v. Berriel, 2013 UT 19, 299 P.3d 1133, decision is
specifically limited to the ‚refusal to give a jury instruction.‛ Id.
¶ 8 (citation and internal quotation marks omitted). We therefore
cite the standard of review set forth in State v. Riggs, 1999 UT
App 271, 987 P.2d 1281, abrogated on other grounds by State v.
Levin, 2006 UT 50, 144 P.3d 1095, which involves the giving of a
flight instruction and therefore is directly on point. We recognize
that there may be some inconsistency in treating a trial court’s
decision to refuse an instruction as discretionary while treating
its decision to give one as a matter of correctness. But because
‚the correctness standard [is] more favorable to [LoPrinzi] than
the abuse-of-discretion standard‛ and because LoPrinzi cannot
prevail under even that more favorable standard, we need not
resolve whether the differential treatment is warranted. See
Berriel, 2013 UT 19, ¶ 11.

20120513-CA 7 2014 UT App 256
 State v. LoPrinzi

reasonable minds could not rationally have arrived
at a verdict of guilty beyond a reasonable doubt
based on the law and on the evidence presented.

State v. Hancock, 874 P.2d 132, 134 (Utah Ct. App. 1994) (citation
and internal quotation marks omitted).

ANALYSIS

I. Motion to Disqualify/Dismiss

¶12 LoPrinzi’s first argument on appeal is that the trial court
abused its discretion when it denied her motion to disqualify the
entire Salt Lake County District Attorney’s Office or, in the
alternative, to dismiss the case after her original defense counsel
shared her confidential defense file with the prosecutor. We
conclude that because LoPrinzi has not challenged the trial
court’s finding that there was no prosecutorial misconduct, the
court properly denied the motion.

¶13 The basis for LoPrinzi’s motion was prosecutorial
misconduct. According to LoPrinzi, the district attorney’s office
obtained confidential information from her file, significantly
prejudicing her defense. LoPrinzi’s argument to the trial court,
as well as on appeal, however, presumes that her counsel turned
over LoPrinzi’s entire confidential file to the prosecutor. But,
following an evidentiary hearing at which LoPrinzi’s original
defense counsel testified, the trial court found that counsel
‚delivered only the mental health records . . . , not other
confidential materials in the defense counsel’s file‛ and did so
for the ‚purpose of considering *LoPrinzi’s+ admission to mental
health court.‛ As a result, it concluded that ‚*t+here was no
prosecutorial misconduct for the District Attorney to receive[]
the mental health records . . . , as [LoPrinzi] was attempting to
apply for mental health court and file a Diminished Mental
Capacity defense.‛

20120513-CA 8 2014 UT App 256
 State v. LoPrinzi

¶14 LoPrinzi has not challenged the trial court’s finding that
the disclosure of her file was limited to her mental health
records. Rather, despite that contrary finding, LoPrinzi’s
argument on appeal is based on the premise that her former
defense counsel turned over the entire file. LoPrinzi advances
this position by citing emails between LoPrinzi and her former
defense counsel and between defense counsel and the prosecutor
in which defense counsel indicated that the prosecutor ‚ha*d
defense counsel’s+ file for Sarah LoPrinzi because *the prosecutor
and the District Attorney+ were going to review it.‛ At the
hearing, however, the former defense counsel clarified that the
‚file‛ mentioned in the emails ‚refers to the mental health
records‛ and not to the defense file as a whole. The trial court
believed defense counsel’s testimony, and LoPrinzi has made no
effort on appeal to demonstrate that the finding was clearly
erroneous. See State v. Balfour, 2008 UT App 410, ¶ 11, 198 P.3d
471 (‚*W+e review the district court’s factual conclusions
[regarding attorney disqualification] under a clear error
standard.‛).

¶15 Furthermore, LoPrinzi does not claim on appeal that the
disclosure of just her mental health records to the prosecution
required disqualification. Indeed, she does not challenge at all
the propriety of the prosecutor’s receipt of her mental health
records for the limited purpose of evaluating her eligibility for
the mental health court or in anticipation of a diminished
capacity defense. Accordingly, we affirm the trial court’s
conclusion that there was no prosecutorial misconduct under the
circumstances. See State v. Turner, 2012 UT App 189, ¶ 29, 283
P.3d 527 (noting that reviewing courts do not address issues that
a party has not briefed). And where there was no misconduct, it
was appropriate for the trial court to deny LoPrinzi’s motion to
either disqualify the district attorney’s office or to dismiss the
case.

20120513-CA 9 2014 UT App 256
 State v. LoPrinzi

II. Jury Instructions

¶16 LoPrinzi next challenges the trial court’s refusal to give
the jury a lesser included offense instruction on sexual battery
and its decision to instruct the jury on flight. We address each
issue in turn.

A. Sexual Battery Instruction

¶17 A criminal defendant is entitled to a jury instruction on a
lesser included offense if (1) ‚the charged offense and the lesser
. . . offense have overlapping statutory elements‛ and (2) there is
a rational basis in the record as a whole for convicting the
defendant of the lesser offense rather than the one charged. State
v. Powell, 2007 UT 9, ¶¶ 24, 27, 154 P.3d 788 (citing State v. Baker,
671 P.2d 152, 158–59 (Utah 1983)); see also Utah Code Ann. § 76-1-
402(4) (LexisNexis 2012). ‚The analysis of whether an offense is
included for purposes of deciding whether to grant a
defendant’s request for a jury instruction must . . . begin with the
proof of facts at trial.‛ Baker, 671 P.2d at 158. In this case, the jury
was presented with two alternative versions of the events over
the July 4, 2009 holiday weekend: (1) the complaining witness’s
account that LoPrinzi engaged in oral and vaginal sex with him
and (2) LoPrinzi’s account that there was no sexual contact
between them at all.

¶18 Unlawful sexual activity with a minor occurs when a
person ‚has sexual intercourse with‛ another person between
the ages of fourteen and sixteen or ‚engages in any sexual act
with the minor involving the genitals of one person and the
mouth . . . of another.‛6 Utah Code Ann. § 76-5-401. Sexual
battery involves ‚intentional*+ touch*ing+, whether or not

6. The other variations of unlawful sexual activity of a minor do
not apply given the facts presented here. See Utah Code Ann.
§ 76-5-401(2)(b)–(c) (LexisNexis 2012).

20120513-CA 10 2014 UT App 256
 State v. LoPrinzi

through clothing, [of] the anus, buttocks, or any part of the
genitals of another person, or the breast of a female person‛
under circumstances that ‚the actor knows or should know will
likely cause affront or alarm to the person touched.‛ Id. § 76-9-
702.1(1) (LexisNexis Supp. 2013). The complaining witness’s trial
testimony demonstrates that LoPrinzi had oral and vaginal
intercourse with him when he was fifteen years old. It is not
apparent from the language of the sexual battery statute itself
that the kind of ‚touching‛ that occurs through vaginal or oral
intercourse falls within the scope of the ‚intentional*+
touch[ing]‛ that the sexual battery statute intends to punish. See
id. But even if it does, we nevertheless conclude that there was
no rational basis in the facts of this case for instructing the jury
on sexual battery.

¶19 A rational basis exists if the evidence ‚view*ed+ . . . in the
light most favorable to the defendant requesting the instruction‛
would justify sending the question to the jury. Powell, 2007 UT 9,
¶ 27 (citation and internal quotation marks omitted); see also
Baker, 671 P.2d at 159. In assessing whether there is a rational
basis for a particular lesser included instruction, a court must
take into account whether there are multiple variations of the
charged or lesser offense and whether there are alternative
interpretations the jury could reasonably give to the evidence.
Baker, 671 P.2d at 159.

¶20 We agree with the trial court that the evidence at trial
does not provide a rational basis for the jury to both acquit
LoPrinzi of unlawful sexual activity with a minor and convict
her of sexual battery. In particular, there is no evidence that
LoPrinzi touched the complaining witness’s genitals under
circumstances in which she knew or should have known her
touching was likely to cause him ‚affront or alarm,‛ an element
of sexual battery. See Utah Code Ann. § 76-9-702.1(1). Because
the offense of sexual battery may be committed on a person of
any age, not just a minor, id. § 76-9-702.1, the affront or alarm
language must implicate a lack of consent. Certainly a person
could not be convicted of sexual battery if the person touched a

20120513-CA 11 2014 UT App 256
 State v. LoPrinzi

statutorily protected body part with the other’s consent because
such circumstances would not suggest that the touching was
‚likely *to+ cause affront or alarm to the person touched.‛ Id.
§ 76-9-702.1(1). In other words, consent seems to preclude a
response of ‚affront or alarm *by+ the person touched‛ and
therefore an appreciation by the actor that the touching was
likely to evoke such a response. See id.

¶21 On the other hand, unlawful sexual activity with a minor,
by its definition, seems to involve consensual sexual activity:

A person commits unlawful sexual activity with a
minor[, defined as a person who is older than
fourteen but younger than sixteen,] if, under
circumstances not amounting to rape . . . [or] forcible
sodomy . . . , the actor: (a) has sexual intercourse
with the minor; [or] (b) engages in any sexual act
with the minor involving the genitals of one person
and the mouth . . . of another person . . . .

Id. § 76-5-401 (LexisNexis 2012) (emphasis added); see also id.
§ 76-5-402 (LexisNexis Supp. 2013) (defining ‚*r+ape‛ as ‚sexual
intercourse . . . without the victim’s consent‛); id. § 76-5-403(1)–
(2) (defining ‚*f+orcible sodomy‛ as ‚when the actor engages in
any sexual act with a person who is 14 years of age or older
involving the genitals of one person and mouth or anus of
another person‛ ‚without the other’s consent‛); cf. State v. Elton,
680 P.2d 727, 728–29 & n.5 (Utah 1984) (stating that the unlawful
sexual intercourse statute, which precluded a person from
having ‚sexual intercourse with a person, not that person’s
spouse, who is under sixteen years of age,‛ ‚prohibited . . . not
rape but a consensual act on the part of both parties‛), superseded
on other grounds by statute as stated in State v. Jimenez, 2012 UT 41,
¶ 9 n.5, 284 P.3d 640. The legislature, however, has determined
that persons between the ages of fourteen and sixteen should be
protected from this type of conduct even when they willingly
participate because of their vulnerability to exploitation. See State
v. Martinez, 2000 UT App 320, ¶¶ 22–24 & n.11, 14 P.3d 114

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 State v. LoPrinzi

(explaining that the legislature has a ‚legitimate interest in
protecting the health and safety of our children‛ and that it has
elected to provide protections on a scale based on the age of the
minor, with children under fourteen having no capacity to
consent and minors between fourteen and eighteen having only
limited capacity to consent to sexual activity with adults); see also
Elton, 680 P.2d at 729 (noting that aside from deterring
intercourse outside of wedlock, the unlawful sexual intercourse
statute is intended to protect ‚younger, more impressionable,
and perhaps more persuadable persons . . . from engaging in
sexual intercourse‛ and to prevent them from suffering from
‚the personal and social consequences of an out-of-wedlock
pregnancy‛ when they ‚are not likely to be fully knowledgeable
in any realistic way about‛ such consequences). Thus, unlike
rape and forcible sodomy, unlawful sexual activity with a minor
penalizes a person for sexual activity not because of a lack of
consent but rather solely based on the age of the participants.

¶22 Because the offense of sexual battery punishes
nonconsensual touching of ‚any part of the genitals of another
person,‛ Utah Code Ann. § 76-9-702.1, and unlawful sexual
activity with a minor seems to punish consensual sexual
intercourse or oral sex performed on a person between fourteen
and sixteen years of age, a rational basis for sending both
charges to the jury can exist only if the evidence raises a question
about consent.7 The evidence in this case, however, supports

7. We have our doubts about whether the legislature intended
sexual battery to be a lesser included offense to offenses
involving sexual intercourse or sodomy. Conduct that amounts
to sexual intercourse or sodomy performed on a person without
his or her consent is explicitly excluded from the scope of the
sexual battery statute. Utah Code Ann. § 76-9-702.1(1), (2)(a), (e)
(LexisNexis Supp. 2013). But the unlawful sexual activity with a
minor statute makes even consensual acts with a person between
ages fourteen and sixteen unlawful. While it seems unlikely to us
(continued...)

20120513-CA 13 2014 UT App 256
 State v. LoPrinzi

only two pertinent alternatives: Either the complaining witness
consented to the sexual activity (according to his testimony) or
there was no sexual activity at all (according to LoPrinzi’s).
Thus, the evidence supported either a conviction for unlawful
sexual activity with a minor (if the jury believed the complaining
witness) or an outright acquittal (if the jury believed LoPrinzi).
But it did not provide the jury with a rational basis to both acquit
LoPrinzi of the unlawful sexual activity charges and convict her
of sexual battery. 8

¶23 Accordingly, we find no abuse of discretion in the trial
court’s refusal to give an instruction on sexual battery as a lesser
included offense of unlawful sexual activity with a minor.

B. Flight Instruction

¶24 Over LoPrinzi’s objection, the trial court gave the jury a
flight instruction suggesting inferences could be drawn from

that any conduct with a minor within that age range that was not
consensual would be charged under the unlawful sexual activity
statute rather than as a more serious forcible offense, the
question has not been presented here in a way that we believe
would justify a conclusive determination that sexual battery
could never be a lesser included offense of unlawful sexual
activity with a minor. Rather, that is an issue for another day.

8. LoPrinzi points to evidence of other activities besides oral and
vaginal intercourse that she argues warranted a sexual battery
instruction. But the activities she identifies do not qualify as
intentional touching under the sexual battery statute, either
because they do not involve protected body parts (e.g.,
LoPrinzi’s rubbing of the complaining witness’s chest and leg) or
they involve the complaining witness’s touching of LoPrinzi
(e.g., the complaining witness’s suggestive slap of LoPrinzi’s
buttocks).

20120513-CA 14 2014 UT App 256
 State v. LoPrinzi

LoPrinzi having left the state of Utah after her phone
conversation with the police. The instruction provided,

Evidence was introduced at trial that the defendant
may have fled or attempted to flee after having
been accused of the crime. This evidence alone is
not enough to establish guilt. However, if you
believe that evidence, you may consider it along
with the rest of the evidence in reaching a verdict.
It’s up to you to decide how much weight to give
that evidence.

Keep in mind that there may be reasons for flight
that could be fully consistent with innocence. Even
if you choose to infer from the evidence that the
defendant has a ‚guilty conscience,‛ that does not
necessarily mean she is guilty of the crime charged.

We conclude that the trial court did not err in giving this
instruction.

¶25 Evidence of flight is probative because it can demonstrate
consciousness of guilt. State v. Franklin, 735 P.2d 34, 39 (Utah
1987); see also Black’s Law Dictionary 714 (9th ed. 2009) (defining
‚flight‛ as ‚*t+he act or an instance of fleeing, esp. to evade arrest
or prosecution‛). Therefore, ‚*f+light instructions are proper
when supported by the evidence,‛ meaning the instructions
‚bear a relationship to evidence reflected in the record.‛ State v.
Riggs, 1999 UT App 271, ¶ 9, 987 P.2d 1281 (citation and internal
quotation marks omitted), abrogated on other grounds by State v.
Levin, 2006 UT 50, 144 P.3d 1095. ‚A flight instruction bears a
relationship to the evidence reflected in the record if the flight
occurred after *the+ commission of the crime charged.‛ State v.
Dupont, 2002 UT App 378U, para. 9 (alteration in original)
(citation and internal quotation marks omitted).

¶26 LoPrinzi argues that a flight instruction was not justified
in this case because she did not flee from law enforcement.

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 State v. LoPrinzi

LoPrinzi points out that the investigating officer ‚did not tell
[her] she was under any restrictions or mandatory orders of not
leaving the State‛ or that she was subject to arrest and,
furthermore, that the same officer admitted at trial that LoPrinzi
had no obligation to cooperate with law enforcement. She also
asserts that the fact that an arrest warrant did not issue until six
months later is further indication that she did not leave the state
out of a consciousness of guilt or in an attempt to avoid arrest or
prosecution. As support for her position, LoPrinzi cites several
cases where a defendant fled in the course of being pursued or
detained by police. See, e.g., Franklin, 735 P.2d at 35 (defendant
escaped through a holding cell window after being questioned
about murder); State v. Bales, 675 P.2d 573, 574 (Utah 1983)
(defendant fled after being ordered to stop during police pursuit
following commission of aggravated burglary); State v. Simpson,
236 P.2d 1077, 1079 (Utah 1951) (defendant fled when police
arrived at the location where he was committing burglary).
These cases, however, do not mandate a conclusion that a flight
instruction was improper in this case.

¶27 Evidence of flight may still be probative even if it does not
occur immediately after a criminal offense is committed or the
police begin an investigation. Indeed, in State v. Franklin, 735
P.2d 34 (Utah 1987), the defendant’s flight did not follow his
commission of two murders but rather occurred while the
defendant was being held in Kentucky on other charges. Id. at
35. When the Kentucky detectives had asked the defendant
about the murders in Utah, he became emotional. Id. During a
subsequent break in questioning, the defendant escaped through
a window. Id. The defendant was eventually tried in Utah for
murder, and the State presented evidence of the defendant’s
flight from Kentucky law enforcement. Id. at 38. On appeal, the
defendant asserted that the flight evidence was inadmissible
because it was not probative of his guilt of murder. Id. at 39. The
Utah Supreme Court rejected that contention because the jury
could still consider the flight to be probative of his guilt for the
murders even though it followed his detention on other, later
committed crimes. Id. The California Supreme Court,

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 State v. LoPrinzi

considering the admissibility of a defendant’s flight several days
after committing murder, has also found such flight to be
probative: ‚Common sense . . . suggests that a guilty person does
not lose the desire to avoid apprehension for [grave] offenses . . .
after only a few days.‛ People v. Loker, 188 P.3d 580, 595 (Cal.
2008) (first omission in original) (citation and internal quotation
marks omitted).

¶28 Thus, a flight instruction is appropriate if the
circumstances could support a reasonable inference that the
defendant is fleeing out of a consciousness of guilt. In this case,
LoPrinzi’s ex-husband testified that by July 24 or July 25, two
weeks after she initially spoke with the investigating officer,
LoPrinzi was gone from her home. He described the home as
having ‚been ransacked‛ because ‚*t+hings had been dumped
everywhere‛ and the pets, LoPrinzi’s teenage son, and LoPrinzi
were ‚gone.‛ Furthermore, ‚*t+he walls . . . had been scrubbed
down,‛ and ‚LoPrinzi’s house key was hanging on her bedroom
door,‛ indicating that she was not planning to return. Sudden,
permanent departure following police questioning can be
probative of a consciousness of guilt.9 See State v. Hunter, 664
P.2d 195, 198 (Ariz. 1983) (in banc) (‚If the manner of leaving the
scene suggests consciousness of guilt then a flight instruction is

9. Certainly, LoPrinzi’s departure could have other innocent
explanations as well. And Utah law requires juries to be advised
of that possibility: ‚*I+t is not error to give *a flight instruction+ so
long as it instructs the jury that there might be reasons for flight
that are fully consistent with innocence of the crime charged and
that even if consciousness of guilt is inferred from flight, it does
not necessarily reflect actual guilt.‛ State v. Franklin, 735 P.2d 34,
39 (Utah 1987). The instruction in this case informed the jury of
the possibility of innocent explanations for LoPrinzi’s departure,
and LoPrinzi has made no challenge to the wording of the
instruction. She simply contends that the instruction should not
have been given, however correctly it stated the law.

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 State v. LoPrinzi

proper.‛); People v. Bonilla, 160 P.3d 84, 89 (Cal. 2007) (explaining
that a flight instruction is proper where the circumstances
indicate that the person fled to avoid arrest). LoPrinzi’s
arguments against the instruction may have some basis in the
facts, but they go to the weight of the evidence and do not
establish that the evidence is incapable of supporting a
reasonable inference that LoPrinzi fled the state out of a
consciousness of guilt arising from commission of the charged
offenses. Accordingly, we conclude that the trial court did not
err when it gave the jury the flight instruction.

III. Motion for New Trial

¶29 Finally, LoPrinzi contends that the trial court erred in
denying her motion for new trial. LoPrinzi’s motion asserted
that the verdicts were internally inconsistent because the
evidence did not justify the jury’s decision to convict on Counts
1 and 3 but acquit on Count 2. According to LoPrinzi, all three
counts ‚involved the same witnesses, same parties, same
allegations, and same evidence.‛ Therefore, ‚the jury would
have *to+ either convict on all Counts, or acquit on all Counts.‛

¶30 When considering a defendant’s argument that the
verdicts are inconsistent, ‚we review the evidence in the light
most favorable to the verdict and will not overturn a jury’s
verdict of criminal conviction unless reasonable minds could not
rationally have arrived at the verdict of guilty beyond a
reasonable doubt based on the law and on the evidence
presented.‛ State v. Hancock, 874 P.2d 132, 134 (Utah Ct. App.
1994) (citation and internal quotation marks omitted). This is
because

‚where truly inconsistent verdicts have been
reached, ‘the most that can be said . . . is that the
verdict shows that either in the acquittal or the
conviction the jury did not speak their real
conclusions, but that does not show that they were

20120513-CA 18 2014 UT App 256
 State v. LoPrinzi

not convinced of the defendant’s guilt.’ The rule that
the defendant may not upset such a verdict embodies a
prudent acknowledgement of a number of factors. First,
as the above quote suggests, inconsistent verdicts
. . . should not necessarily be interpreted as a
windfall to the Government at the defendant’s
expense. It is equally possible that the jury,
convinced of guilt, properly reached its conclusion
. . . and then through mistake, compromise, or
lenity, arrived at an inconsistent conclusion on the
*other+ offense.‛

State v. Sjoberg, 2005 UT App 81U, para. 2 (omissions and
alteration in original) (quoting United States v. Powell, 469 U.S. 57,
64–65 (1984) (quoting Dunn v. United States, 284 U.S. 390, 393
(1932))). Therefore, so ‚‘long as sufficient evidence supports each
of the guilty verdicts, state courts generally have upheld’‛ the
convictions. See id. (quoting People v. Frye, 898 P.2d 559, 570
(Colo. 1995)). In other words, a ‚claim of inconsistency alone is
not sufficient to overturn [the] conviction‛; rather, ‚*t+here must
be additional error beyond a showing of inconsistency because
appellate courts ‘have always resisted inquiring into the jury’s
thought processes and deliberations.’‛ Hancock, 874 P.2d at 134
(quoting State v. Stewart, 729 P.2d 610, 614 (Utah 1986) (per
curiam)).

¶31 We applied this standard in State v. Sjoberg, 2005 UT App
81U.10 There, the jury convicted the defendant of one count of

10. State v. Sjoberg, 2005 UT App 81U, was unpublished. At the
time it was issued, unpublished decisions carried much
diminished weight as precedent because they were often more
cursory in their presentation of the facts and analysis of the
issues. But the treatment of memorandum decisions has changed
in the meantime to accord them precedential value. And we
consider Sjoberg itself to be sufficiently well reasoned and
(continued...)

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 State v. LoPrinzi

sexual abuse of a minor and acquitted him of the second, even
though the evidence consisted of the minor’s testimony that the
defendant committed two separate acts of sexual abuse. Id. para.
4. The defendant appealed, arguing the same basis for reversal
that LoPrinzi asserts in this appeal: the jury either had to believe
the minor and convict of all charges or disbelieve the minor and
acquit of all charges. Id. para. 2. In rejecting that argument, we
explained, ‚*W+e are under no duty to reconcile the acquittal of
count II with the conviction for count I. . . . [I]t would make no
difference to our review if the evidence as to both counts was
precisely the same‛ because ‚*c+learly, the jury determined, for
its own presumably valid reasons, that the evidence only
supported one conviction . . . and the evidence supports that
conviction.‛ Id. para. 4.

¶32 Like the jury in Sjoberg, ‚the jury *in this case+
determined, for its own presumably valid reasons, that the
evidence only supported *two+ conviction*s+.‛ See id. LoPrinzi’s
only remedy then is to ‚take refuge in challenging the
sufficiency of the evidence that supports the conviction*s+.‛ See
id. para. 3. We conclude that there was sufficient evidence of
unlawful sexual activity with the complaining witness to
support both convictions. See State v. Honie, 2002 UT 4, ¶ 44, 57
P.3d 977 (explaining that there is sufficient evidence to support a
verdict if ‚competent evidence was admitted to satisfy each
element of the charge‛ and that evidence enabled ‚the jury . . . to
find, beyond a reasonable doubt, that the defendant committed
the crime‛).

articulate in expressing the state of the law in this area to
warrant our reliance in this case. See generally Grand County v.
Rogers, 2002 UT 25, ¶ 16, 44 P.3d 734 (noting that memorandum
decisions, even when unpublished, constitute ‚the law of this
state, unless and until contravened,‛ and ‚may be cited to the
degree that they are useful, authoritatively and persuasively‛).

20120513-CA 20 2014 UT App 256
 State v. LoPrinzi

¶33 The complaining witness testified that he and LoPrinzi
engaged in both oral and vaginal intercourse on three separate
occasions. LoPrinzi’s ex-husband and Friend presented
corroborating evidence for two of those occasions. And although
LoPrinzi offered an alternative account of the events, it is within
the province of the trier of fact to assess credibility and weigh
the evidence as a whole. See Stewart, 729 P.2d at 612. Because
there is a basis in the evidence for the jury’s verdicts on Counts 1
and 3, we will not disturb them. See Hancock, 874 P.2d at 134; see
also Sjoberg, 2005 UT App 81U, para. 4.

CONCLUSION

¶34 We affirm the trial court’s decision that there was no
prosecutorial misconduct in receiving LoPrinzi’s mental health
record to warrant disqualification of the Salt Lake County
District Attorney’s Office or dismissal of the case. The court also
acted within its discretion when it denied LoPrinzi’s request for
a jury instruction on sexual battery because there was no rational
basis in the record for convicting on the lesser offense as
opposed to the higher offense of unlawful sexual activity with a
minor. The court properly instructed the jury on flight because
the record evidence supported such an instruction. Finally, the
court did not err in denying LoPrinzi’s request for a new trial
because there is sufficient evidence to uphold the two
convictions. Accordingly, we affirm.

_____________

VOROS, Judge (concurring):

¶35 I concur in the judgment of the court and in the lead
opinion except as to the discussion of consent in paragraphs 20
through 22, which in my view is unnecessary to the holding of
the court. In addition, I write separately (1) to explain why I
think judges should not give flight instructions and (2) to

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 State v. LoPrinzi

comment on the new standard of review applicable to lesser-
included-offense challenges.

1

¶36 Facts adduced at trial often support competing inferences.
We generally leave the role of urging the jury to draw one
inference or another to counsel in closing argument. I see no
reason why evidence of flight presents a special case requiring
judicial instruction. Pointing out to the jury that a perpetrator
might flee a crime scene for reasons consistent with guilt falls
within the prosecutor’s job description; pointing out that a
bystander might flee a crime scene for reasons consistent with
innocence falls within defense counsel’s job description; opting
for one inference or the other falls within the jury’s job
description. I see no necessary role for the judge in this process.

¶37 Consistent with this reasoning, a sizeable minority of
jurisdictions hold that ‚because the significance of flight should
be left to argument, . . . instructions on the significance of flight
should not be given.‛ State v. Stilling, 590 P.2d 1223, 1230 (Or.
1979); see also Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)
(holding that, although flight may be considered by a jury in
determining a defendant’s guilt, and evidence of flight may be a
proper subject for counsel’s closing argument, ‚it does not
follow that a trial court should give a discrete instruction
highlighting such evidence‛); State v. Hall, 1999 MT 297, ¶¶ 46–
47, 991 P.2d 929 (rejecting claim of error in giving flight
instruction but observing that ‚the better policy in future cases
where evidence of flight has been properly admitted is to reserve
comment to counsel, rather than the court‛); id. ¶ 45 (collecting
cases).

¶38 While this court lacks the authority to make this change—
at least in a case in which a flight instruction was given—I urge
our supreme court to do so in the appropriate case.

20120513-CA 22 2014 UT App 256
 State v. LoPrinzi

2

¶39 I agree with the majority that, under our supreme court’s
recent opinion in State v. Berriel we must review trial court
rulings rejecting lesser-included-offense instructions for an
abuse of discretion. 2013 UT 19, 299 P.3d 1133. I am writing
merely to comment on the change I believe Berriel has made in
the law of lesser included offenses.

¶40 At trial, a defendant is entitled to a jury instruction on a
lesser included offense only when (1) the elements of the
charged offense and the lesser offense overlap and (2) the record
as a whole provides a rational basis to acquit the defendant of
the charged offense and to convict the defendant of the lesser
offense. State v. Baker, 671 P.2d 152, 158–59 (Utah 1983). ‚In
determining whether the evidence supports a lesser included
offense instruction, a trial court does not weigh the evidence‛
but ‚views the evidence in the light most favorable to the
defendant requesting the instruction.‛ State v. Powell, 2007 UT 9,
¶ 27, 154 P.3d 788. A defendant’s version of the evidence need
not be the only reasonable interpretation of the evidence, State v.
Shumway, 2002 UT 124, ¶ 13, 63 P.3d 94, so long as ‚a jury could
choose to believe [the d]efendant’s version,‛ State v. Spillers, 2007
UT 13, ¶ 20, 152 P.3d 315. This light-most-favorable standard
‚establishes a procedural safeguard that protects the defendant’s
right to the presumption of innocence, maintains the state’s
burden of proving the defendant’s guilt, and reserves the
responsibility of evaluating the weight and credibility of the
evidence for the jury.‛ Powell, 2007 UT 9, ¶ 27.

¶41 On appeal, under the traditional standard of review,
‚*w+hether a jury instruction on a lesser included offense is
appropriate presents a question of law,‛ the trial court’s
resolution of which we review for correctness. Spillers, 2007 UT
13, ¶ 10 (citing State v. Hamilton, 827 P.2d 232, 238 (Utah 1992)).
And ‚*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. It 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. And because ‚trial courts are better factfinders
than appellate courts,‛ their ‚*f+actual determinations‛ are
entitled to deference on appeal. Id. Accordingly, the trial court’s
refusal to issue a lesser-included-offense instruction is
reviewable only for abuse of discretion. Id. ¶ 11.

¶43 As Berriel itself recognizes, its ‚abuse-of-discretion
standard‛ is less favorable to defendants than the traditional
‚correctness standard.‛ Id. Under the traditional standard we
reviewed rulings of this type for correctness, viewing the facts
and inferences on appeal in the light most favorable to the
defense. Spillers, 2007 UT 13, ¶ 10. Under that standard, to
reverse the denial of a lesser-included-offense instruction we
needed to conclude only that a reasonable person could find the
defendant’s version of events plausible. In contrast, under the
new standard, we review the denial for abuse of discretion.
Berriel, 2013 UT 19, ¶ 11. A trial court abuses its discretion ‚only
if ‘no reasonable *person+ would take the view adopted by the
trial court.’‛ State v. Maestas, 2012 UT 46, ¶ 36, 299 P.3d 892
(alteration in original) (citation omitted). Consequently, under
the new standard, to reverse a denial of the instruction we must
conclude, under the facts as found by the trial court, that all
reasonable people would find the defendant’s version of events
plausible.11

11. Or, more precisely, that no reasonable person could conclude
that the record as a whole does not provide a rational basis to
acquit the defendant of the charged offense and to convict the
defendant of the lesser offense.

20120513-CA 24 2014 UT App 256
 State v. LoPrinzi

¶44 This shift carries several potential consequences. First, the
new standard makes reversing the denial of a lesser-included-
offense instruction far more difficult. Consequently, such denials
are likely to become more common. Furthermore, Berriel’s
characterization of trial courts as ‚factfinders,‛ 2013 UT 19, ¶ 9,
casts doubt on the traditional rule that when considering a
lesser-included-offense instruction ‚a trial court does not weigh
the evidence,‛ but ‚views the evidence in the light most
favorable to the defendant requesting the instruction.‛ Powell,
2007 UT 9, ¶ 27. As noted above, the traditional rule has been
seen as protective of a number of important trial values. Id.

¶45 My point is not that the step taken in Berriel should not
have been taken—that is a question for a higher court. I am
simply noting the significance of the step and that future cases
may need to sort out its ramifications. In any event, Berriel
controls, and the lead opinion here correctly applies it.

_____________

20120513-CA 25 2014 UT App 256