State v. Sanislo

2015 UT App 232

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TROY ANDREW SANISLO,
Appellant.

Memorandum Decision
No. 20131123-CA
Filed September 11, 2015

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111909249

John B. Plimpton, Alexandra S. McCallum, and Neal
G. Hamilton, Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

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

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
 State v. Sanislo

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

20131123-CA 2 2015 UT App 232
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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

20131123-CA 3 2015 UT App 232
 State v. 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 . . . .

1. No one contends that Sanislo used a dangerous weapon.

2. Section 76-5-103 has been amended since the time of the
events relevant to this appeal. Compare Utah Code Ann. § 76-5-
103 (LexisNexis Supp. 2011), with id. § 76-5-103 (2015). Though it
may go without saying, we ‚apply the law in effect at the time‛
of the incident in question. State v. Clark, 2011 UT 23, ¶ 11, 251
P.3d 829 (citation and internal quotation marks omitted).
Accordingly, throughout this opinion, we apply the version of
the Utah Code in effect at the time of the charged incident.

20131123-CA 4 2015 UT App 232
 State v. Sanislo

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 76-5-102 in 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)

3. Section 76-5-102 has also been amended since the time of the
events relevant to this appeal. Compare Utah Code Ann. § 76-5-
102 (LexisNexis 2008), with id. § 76-5-102 (2012). We apply the
version of the Utah Code in effect at the time of the charged
incident. See Clark, 2011 UT 23, ¶ 11.

20131123-CA 5 2015 UT App 232
 State v. Sanislo

(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. § 76-5-
103(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,

20131123-CA 6 2015 UT App 232
 State v. Sanislo

they refer to the element contained in class A misdemeanor
assault—and not in class B misdemeanor assault—as an
‚enhancement.‛ But the fact that an additional element may be
called an ‚enhancement‛ does not mean that it plays no part in
defining the crime.

¶13 The legislature defines crimes in Utah, and it does so by
specifying their elements. See State v. Drej, 2010 UT 35, ¶ 23, 233
P.3d 476 (‚Legislatures are free to declare what constitutes an
offense against society and to define the elements that constitute
such an offense.‛ (citation and internal quotation marks
omitted)); see also State v. Palmer, 2009 UT 55, ¶ 13, 220 P.3d 1198
(‚*I+t is the role of the legislature to choose the elements that
define their crimes.‛ (citation and internal quotation marks
omitted)). That those elements may, in some contexts, be termed
‚enhancements‛ does not alter their status as elements. Cf. State
v. Lopes, 1999 UT 24, ¶ 12, 980 P.2d 191 (explaining that while the
State need not separately charge an enhancement as a crime, it
still must prove each element of the crime, including the facts
supporting the enhancement, beyond a reasonable doubt).

¶14 In sum, we conclude that a person committing any
variation of assault as defined in section 76-5-102 commits an act
that satisfies the first element of the aggravated assault statute.
Thus, one cannot commit the greater offense of aggravated
assault without first having committed one of the lesser defined
variations of assault. Accordingly, we hold that class A
misdemeanor assault constitutes a lesser included offense of
aggravated assault.4

4. We understand that Sanislo’s argument makes intuitive sense.
An assault hierarchy might be constructed with class B
misdemeanor assault as the basic crime, enhanceable to class A
misdemeanor assault by infliction of substantial bodily injury, to
a third degree felony by use of a dangerous weapon or lethal
(continued…)

20131123-CA 7 2015 UT App 232
 State v. Sanislo

¶15 However, our inquiry does not end there. A ‚trial court
may properly give a 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.‛ State v. Houskeeper, 2002 UT 118, ¶ 15, 62 P.3d 444
(citation and internal quotation marks omitted). Thus, Sanislo
argues that the trial court erred in agreeing to give the State-
requested lesser included class A misdemeanor assault
instruction because it deprived him of notice that he would need
to defend ‚against the allegation that his use of unlawful force or
violence actually caused [the victim+ substantial bodily injury.‛
We do not agree.

¶16 The information in this case provided notice of the crime
with which Sanislo was charged, aggravated assault, and it
quoted the aggravated assault statute. As explained, the plain
language of the aggravated assault statute incorporates the
entirety of the assault statute and every variation of assault
contained therein. Thus, upon review of the charging document,

(…continued)
force, and to a second degree felony with infliction of serious
bodily injury. Under this conceptualization of assault, third
degree felony assault would not subsume class A misdemeanor
assault. The current version of the aggravated assault statute,
which does not apply to the present case, constructs the assault
hierarchy more along these lines. See Utah Code Ann. § 76-5-103
(LexisNexis Supp. 2015). But as we have explained, the earlier
version of the assault statute applicable to this case takes a
different approach. In any event, under any statutory scheme
including multiple lesser included offenses, State-requested
lesser included offense instructions may be given only where the
defendant received adequate notice of the instructed offense as
explained in this decision.

20131123-CA 8 2015 UT App 232
 State v. Sanislo

Sanislo had notice that he would have to defend against any
variation of assault that the evidence might support.

¶17 In addition, not only did Sanislo have notice of the legal
elements he would have to defend against, he had notice of the
alleged facts in the case—facts that if proven could establish
substantial bodily injury. First, the charging document put
Sanislo on notice of the following alleged facts: that when the
arresting officer arrived he found the victim ‚lying on the
ground going in and out of consciousness‛; that the victim had
‚multiple areas on his face that had clearly been struck‛; that the
victim ‚was bleeding from several‛ areas on his face; that the
victim’s face showed bruising and swelling; that the victim ‚was
transported to the hospital for medical treatment‛; that a witness
saw Sanislo punch the victim in the face; and that when the
victim tried to get up, Sanislo punched him in the back of the
head, then kicked him multiple times in the head and ribs while
the victim appeared to be unconscious.

¶18 Second, the preliminary hearing put Sanislo on notice of
the following facts: that on the night in question the last thing
the victim remembered was leaving a bar downtown, then
waking up, ‚sitting on the floor, beat up‛; that the victim noticed
blood on his shirt; that the victim felt like his nose was broken,
that his head felt numb, and that he felt disoriented; that the
victim had a cut on his chin, a broken tooth, a broken nose, a
black eye, a bloody eye, and ‚bumps all over *his+ head‛; that a
valet for the bar witnessed Sanislo punch the victim in the back
of the head, knocking him down; that when the victim tried to
stand up, Sanislo hit him and knocked him down again and then
repeatedly kicked the victim; that EMTs had to provide the
victim with medical care because ‚he was bleeding pretty
badly‛; and that the victim had scheduled surgery for his broken
nose.

¶19 No reasonable person aware of these facts and the
charged offenses could have been surprised that the prosecution

20131123-CA 9 2015 UT App 232
 State v. Sanislo

sought a jury instruction on the lesser included offense of assault
causing substantial bodily injury. Indeed, in discussing the
propriety of a lesser included instruction, Sanislo’s trial counsel
acknowledged, ‚I don’t know that I could argue . . . in good
faith, that there was not . . . substantial bodily injury.‛
Accordingly, Sanislo ‚had a full and fair opportunity to defend
against *it+.‛ Houskeeper, 2002 UT 118, ¶ 16.

¶20 In sum, we conclude that class A misdemeanor assault
constitutes a lesser included offense of aggravated assault—at
least as aggravated assault was defined at the time of the
incident relevant to this appeal—and the trial court did not err in
so ruling. In addition, we reject the notion that Sanislo had no
notice that substantial bodily injury would be an issue in the
case. We accordingly affirm.

20131123-CA 10 2015 UT App 232