(Concurring in Part and Dissenting in Part).
I agree with the majority that defendant’s conviction for aggravated kidnapping should be affirmed but submit that instead of entering a judgment of manslaughter, the Court should reverse the second degree murder conviction and remand for a new trial.
In an opinion that is clearly result-driven, the majority adds a new legal maxim to statutory construction: When it’s impossible to stretch a statute to fit the facts, ignore it and decide the case on an amorphous “general power.” The result is an extreme example of flouting a statute that on its face should govern this case. More importantly, it is a violation of defendant’s Sixth Amendment right to trial by jury, the very basis of the statute itself. See Franks v. Alford, 820 F.2d 345, 347 (10th Cir.1987); Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986).
This Court initially affirmed Dunn’s convictions in State v. Dunn, 646 P.2d 709 (Utah 1982). We subsequently held in a habeas corpus proceeding that Dunn was denied the effective assistance of counsel on appeal in violation of his rights under the Sixth Amendment to the United States Constitution. Dunn v. Cook, 791 P.2d 873 (Utah 1990). Accordingly, the majority addresses the issues now before it as if this were a direct appeal from Dunn’s 1981 conviction.
The State concedes, as indeed it must, that the jury instruction on depraved indifference second degree murder was erroneous as a matter of law. For that reason, the second degree murder conviction must be set aside. The remedy for an erroneous jury instruction is a new trial. See People v. Evans, 182 Ill.App.3d 874, 131 Ill.Dec. 351, 354, 538 N.E.2d 726, 729 (1989), aff'd sub nom. People v. Shields, 143 Ill.2d 435, 159 Ill.Dec. 40, 47, 575 N.E.2d 538, 545 (1991); State v. Stark, 363 N.W.2d 53, 56-57 (Minn.1985); State v. Allen, 301 Or. 35, 717 P.2d 1178, 1181 (1986). Nevertheless, the majority, on its own, enters judgment against defendant for reckless manslaughter on the theory that manslaughter is a lesser included offense of second degree murder and, therefore, that the jury neces*1230sarily found every fact required for a conviction of manslaughter. I submit that this Court does not have the authority to enter a judgment for manslaughter against Dunn on the facts of this case and that the majority blatantly violates his Sixth Amendment right to trial by jury in doing so. The proper remedy is to reverse and remand for a new trial on the second degree murder charge.
An appellate court’s authority to enter judgment for a lesser included offense is spelled out in Utah Code Ann. § 76-1-402(5). That section authorizes an appellate court to direct entry of judgment for a lesser included offense if a conviction is reversed because (1) the court found insufficient evidence to support a conviction for the offense charged; (2) there is sufficient evidence to support a conviction for a lesser included offense; (3) the trier of fact necessarily found every fact required for conviction of that lesser included offense; and (4) the defendant seeks entry of judgment on the lesser included offense.
It is undisputed that the statutory requirements are not met in this case. First, the majority reverses Dunn’s second degree murder conviction, not because of insufficient evidence as specified in the statute, but because the jury instruction on depraved indifference second degree murder was faulty. Second, the jury did not necessarily find every fact required for the conviction of manslaughter. Third, Dunn has not sought entry of a judgment for a lesser offense.
In stunning disregard of basic principles of judicial responsibility, the majority simply abandons the requirements of § 76-1-402(5) and relies on a “general power to modify judgments on appeal,” even though it does not in fact modify a judgment, but enters a new one. The majority seeks to justify its position on the plainly expedient reason that “the obstacles to retrial on the second degree murder charge would be great,” if not impossible, after ten years. The standard for determining whether a defendant is entitled to a new trial is not, and has never been, the difficulty of retrying the defendant due to the passage of time.
The majority asserts authority to enter a judgment of conviction for manslaughter under Rule 28 of the Utah Rules of Criminal Procedure, which indicates that this Court may modify a judgment on appeal. Citing to other courts that have relied on a general power to modify judgments, the majority concludes that we also “may enter judgment on a lesser included offense when an error has tainted the conviction for the greater offense.” But that is precisely what § 76-1-402(5) addresses and disallows in the circumstances of this case. Not one of the cases cited by the majority gives a court authority to act contrary to a governing statute such as § 76-1-402(5). Furthermore, none of those cases holds that a court can enter a judgment of conviction on facts similar to the facts of the case, irrespective of a statute.
A defendant charged with a serious crime has the right to have a jury determine his guilt or innocence. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The essential requirements of § 76-1-402(5) are mandated by the Sixth Amendment right to trial by jury. The majority maintains that it is irrelevant whether Dunn’s conviction for second degree murder was reversed because the evidence was insufficient, as required by the statute, or because the instruction was erroneous. That distinction, however, is essential if a defendant’s right to a jury trial is to be maintained. When a jury has been erroneously instructed on the mens rea necessary to convict a defendant of second degree murder, the defendant is entitled to have a jury determine his guilt or innocence under the correct legal standard.
The jury in this case was instructed that it could convict Dunn of second degree murder if he (1) intentionally or knowingly caused the death of Sprinkle or (2) acted under circumstances evidencing a depraved indifference to human life. The instruction on an intentional or knowing killing was *1231correct; it was incorrect with respect to depraved indifference. Because a general verdict was returned, this Court cannot possibly know whether the jury convicted Dunn of intentionally killing Sprinkle or of causing Sprinkle’s death by depraved indifference. If the jury convicted Dunn of intentional murder, which it appears to have done from the evidence, it need not have found, and probably did not find, that Dunn acted recklessly. Therefore, the majority is simply wrong in saying that the jury necessarily found all the elements of reckless manslaughter.
There is clear evidence that Dunn intended to kill Sprinkle. If he did, as the jury apparently found, Dunn is guilty of intentional second degree murder. Whether the jury could have found Dunn guilty of second degree murder based on “depraved indifference” conduct is at best highly problematical, because that would have required a finding of a type of reckless conduct. It is clear that Dunn was not present when Scott killed Sprinkle in the back of the camper because Dunn was driving at the time. If the basis for Dunn’s conviction was his telling Scott to kill the victim, that act was done intentionally, and Dunn was guilty of second degree murder. Thus, Dunn’s acts did not recklessly create a risk of death, as required by the manslaughter statute. In holding Dunn liable for recklessly causing Sprinkle’s death on the basis of Scott’s intentional killing, the Court not only assumes the role of the jury, but also distorts the definition of reckless conduct and makes Dunn vicariously guilty of manslaughter for another’s intentional killing, an entirely new and extremely troubling concept.
The majority erroneously asserts that the jury necessarily found every element required for a conviction of reckless manslaughter. The majority’s theory is that reckless manslaughter is always a lesser included offense of second degree murder and that a conviction of second degree intentional homicide necessarily means that a jury found reckless conduct by the defendant. Some of our prior cases state that manslaughter is a. lesser included offense of second degree murder, and in some cases it can be. E.g., State v. Crick, 675 P.2d 527, 530 (Utah 1983); State v. Bindrup, 655 P.2d 674, 676 (Utah 1982); see also State v. Day, 815 P.2d 1345, 1348 (Utah Ct.App.1991). Nevertheless, in cases where the mens rea of second degree murder is intent and the mens rea of manslaughter is recklessness, manslaughter is not a lesser included offense. If the right to trial by jury is to be preserved, it cannot automatically be assumed that manslaughter is a lesser included offense of second degree murder simply because it is a less serious crime.
Franks v. Alford, 820 F.2d 345, 347 (10th Cir.1987), is similar on its facts and applies the rule of law that the majority ought to apply here. In Franks, the Tenth Circuit held that an Oklahoma appellate court violated the defendant’s right to trial by jury when it reduced his conviction from first to second degree murder. Id. A jury had convicted the defendant of felony murder, which made the defendant’s state of mind with respect to the homicide irrelevant. The Oklahoma Court of Criminal Appeals reversed, holding that the facts did not support a conviction of felony murder. The court then held that the evidence supported a conviction of second degree murder and entered judgment for that crime. The Tenth Circuit held that the Oklahoma court erroneously assumed that “depraved mind” [i.e., reckless] second degree murder is a lesser included offense of first degree felony murder, which required intent. Id. The court stated:
When a jury convicts a defendant of the offense charged, it thus necessarily finds all the elements of a true lesser included offense. Under those circumstances, a reduction on appeal to the lesser included offense does not run afoul of the Sixth Amendment because the jury has found all the elements of the lesser offense. See, e.g., Morris v. Mathews, 475 U.S. 237 [244-46], 106 S.Ct. 1032, 1037-38, 89 *1232L.Ed.2d 187 (1986). In this case, to the contrary, “depraved mind” murder is not a lesser included offense of felony murder because it requires proof of a mental state that felony murder does not.
Id. (emphasis added). The italicized part of the quotation applies four-square to the instant case.
In Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986), the United States Supreme Court made clear that a trial court violates the Sixth Amendment if it directs a verdict for the prosecution, no matter how “overwhelmingly the evidence” may point to a guilty verdict. The Court stated:
We have stated that “a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict ... regardless of how overwhelmingly the evidence may point in that direction.” United States v. Martin Linen Supply Co., 430 U.S. 564 [97 S.Ct. 1349, 51 L.Ed.2d 642] (1977) (citations omitted). Accord, Carpenters v. United States, 330 U.S. 395 [67 S.Ct. 775, 91 L.Ed. 973] (1947). This rule stems from the Sixth Amendment’s clear command to afford jury trials in serious criminal cases. See Duncan v. Louisiana, 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491] (1968). Where that right is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant's guilt; the error in such a case is that the wrong entity judged the defendant guilty.
Id.
Dunn has a Sixth Amendment right to demand that a jury, not this Court, make the determination as to his innocence or guilt. The majority denies him that right. It also makes him vicariously liable for manslaughter based on another’s intentional killing. This case ought to be remanded for a new trial.