(concurring and dissenting).
I join in affirming defendant’s conviction. I dissent from the affirmance of the imposition of the minimum mandatory sentence of 15 years.
I agree that the apparent error in instruction 21 does not qualify for consideration under the “manifest injustice” exception, rule 19(c) of the Utah Rules of Criminal Procedure. Even if we could say that the error was sufficiently obvious that it should have been noticed by the trial court, it was not harmful. See State v. Verde, 770 P.2d 116, 119-121 (Utah 1989). For the reasons stated by Justice Howe, there is not a reasonable likelihood that absent the error, the outcome of the trial would have been more favorable to defendant. Our confidence in the verdict is not undermined. See State v. Knight, 734 P.2d 913, 919-20 (Utah 1987).1
I cannot join the majority’s rejection of defendant’s challenge to the minimum mandatory sentencing scheme under which he was given the highest of the three available sentences, 15 years. In my view, the cases relied upon by the majority, including State v. Bishop, 717 P.2d 261 (Utah 1986), State v. Egbert, 748 P.2d 558 (Utah 1987), and State v. Bell, 754 P.2d 55 (Utah 1988), have not addressed the challenges defendant mounts under article I, section 24 and article I, section 7 of the Utah Constitution to the adequacy of the sentencing guidance given trial judges by the statute and the Judicial Council’s guidelines. In Egbert, we did reject similar claims, but they were considered only under the federal constitution.
While I do not necessarily think that the protections of sections 7 and 24 of article I are identical to those provided by the equal protection and due process clauses of the federal constitution, in the present context, I am of the view that the state constitution does not offer less protection than the federal. Therefore, for the reasons noted in my dissent in State v. Egbert, 748 P.2d at 563, I would find the statutory scheme, as it is presently implemented, violative of the protections guaranteed by the Utah Constitution, and I would reduce defendant’s mandatory minimum sentence to five years. And for the reasons noted in my concurring and dissenting opinion in State v. Bell, 754 P.2d at 60, I will refrain from noting this disagreement with the majority in the future.
DURHAM, J., concurs in the concurring and dissenting opinion of ZIMMERMAN, J.. It is worth noting that the apparently erroneous character of the instruction was not simply overlooked by defense counsel; that same error was contained in a proposed instruction submitted by defense counsel upon which the trial judge made the notation, "Substantially given.”