State v. Sorbonne , 2022 UT 5 ( 2022 )

2022 UT 5IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
ROBERT SORBONNE,
Petitioner.
No. 20200410
Heard October 12, 2021
Filed February 3, 2022
On Certiorari to the Utah Court of Appeals
Eighth District, Duchesne
The Honorable Samuel P. Chiara
No. 181800213
Attorneys:
Emily Adams, Sara Pfrommer, Bountiful, Laura Fuller,
Taylorsville, for petitioner
Grant Charles, Duchesne, for respondent
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Robert Sorbonne was charged and convicted on a
misdemeanor charge of threatening to use a dangerous weapon in a
quarrel with his father. He sought to justify his actions under the law
of self-defense, asserting that his father had a history of violent
behavior and claiming that he reasonably believed that his actions
were necessary to defend himself under the circumstances. The
district court admitted some evidence of the father’s prior violent
behavior, excluded other such evidence, and concluded that
Sorbonne’s “use or threat of the weapon was not necessary or
reasonable under the circumstances.” It found him guilty as charged.
The court of appeals affirmed. We granted certiorari to consider
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Opinion of the Court
Sorbonne’s claim that the court of appeals erred in affirming
Sorbonne’s conviction under an “objective standard of
reasonableness.”
¶2 An individual is “justified” in “threatening or using force”
against another if and where he “reasonably believes” such force is
necessary. UTAH CODE § 76-2-402(2)(a). This standard encompasses
both a subjective and an objective component—the defendant must
believe the force is necessary and the belief must be reasonable under
the relevant circumstances. By statute, those circumstances
encompass any evidence of an alleged victim’s “prior violent acts or
violent propensities” and “any patterns of abuse or violence in the
parties’ relationship.” Id. § 76-2-402(5)(d), (e).
¶3 We do not interpret the court of appeals’ opinion to depart
from these principles. And Sorbonne has identified no basis for
reversal. We accordingly affirm.
I
¶4 Sorbonne was convicted at a bench trial in the Eighth District
Court. We present the facts in the record in the light most favorable
to the decision of the trial court, addressing conflicting evidence as
necessary to understand the questions decided by the court of
appeals and presented for our review. We review the decision of the
court of appeals de novo.
A
¶5 On June 20, 2018, Robert Sorbonne got into a heated
argument with his father about his parents’ impending divorce.
Sorbonne and his younger sister got into a car and drove away to
avoid further confrontation. His father decided he ‘‘was going to
catch up with [Sorbonne] and apologize.’’ And his father eventually
tracked down Sorbonne and his sister and cut off their path on a dirt
road.
¶6 Both men got out of their vehicles. The father approached
Sorbonne and told him that he ‘‘was sorry and that [he] needed his
help.’’ When the father was within ten feet, Sorbonne retrieved a
handgun from his vehicle. He then pointed the gun at his father,
chambered a round, and told him he was “going to fuckin’ kill” him.
Sorbonne was later apprehended and charged with one count of
threatening with or using a dangerous weapon in a fight or quarrel
under Utah Code section 76-10-506.
¶7 Sorbonne sought to justify his acts under the law of self-
defense. At trial, Sorbonne and his sister both testified that their
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father had acted in an erratic and angry manner on the day in
question, causing him and his sister to fear that their father meant
them harm. Sorbonne also presented evidence of his father’s prior
violent acts to show why he feared his father and to justify his own
actions. Most of this evidence was admitted into the record. In fact,
the father himself admitted that he had engaged in a number of prior
violent acts that suggested he had a violent character.
¶8 The district court refused to consider some additional
evidence introduced by Sorbonne. It excluded testimony from
Sorbonne’s younger sister about whether there had been a “finding”
of abuse by the father by the Utah Division of Child and Family
Services (DCFS). And it excluded testimony by Sorbonne’s older
sister and grandmother about specific incidents of violent acts by the
father, including acts of “road rage.”
¶9 The district court found that Sorbonne’s “use or threat of the
weapon was not necessary or reasonable under the circumstances.”
And it entered a judgment of conviction on the misdemeanor charge
against him.
B
¶10 Sorbonne challenged his conviction in the Utah Court of
Appeals. He asserted that the district court had erred in (1) applying
a self-defense standard governing the use of force intended or likely
to cause death or serious bodily injury, instead of a lower standard
governing the mere use of force; (2) excluding evidence of specific
acts of violence, abuse, and “road rage” by the father; and
(3) applying an “objective” reasonableness standard in assessing
whether his conduct was justified under the law of self-defense.
¶11 On the latter point, Sorbonne identified what he saw as a
“contradiction of law between the Tenth Circuit Court of Appeal[s]
and the Utah Court of Appeals on the standard used for
reasonableness when applied to the use of self-defense.” He cited
Paine v. Massie, 339 F.3d 1194 (10th Cir. 2003), as establishing a
“modified objective” or “subjective” standard for assessing the
reasonableness of a defendant’s actions under the law of self-
defense. And he asserted that the Paine standard “appears to
contradict” the standard set forth in cases like State v. Sherard, which
observed that our code requires that “a defendant must ‘reasonably
believe[] that . . . force is necessary to defend . . . against [another]’s
imminent use of unlawful force,’” 818 P.2d 554, 561 (Utah Ct. App.
1991) (first alteration in original) (citing UTAH CODE § 76-2-402(1)
(1991)), and held that “reasonable” in this setting “means ‘objectively
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STATE v. SORBONNE
Opinion of the Court
reasonable,’” id. (quoting State v. Duran, 772 P.2d 982, 985 (Utah Ct.
App. 1989)).
¶12 Sorbonne urged the court of appeals to apply the standard
set forth in Paine—a case applying “Oklahoma’s self-defense statute,
which has requirements of imminence and reasonableness similar to
Utah’s self-defense statute.” In Sorbonne’s view, Paine established
that “the definition of ‘reasonableness’ needs to be viewed” in light
of “the perspective of the battered woman or victim of domestic
violence.” Sorbonne asserted that he was “a past victim of abuse by
the current alleged victim.” And he asked the court of appeals to
conclude that the district court had erred in “disregard[ing] as
irrelevant” Sorbonne’s “history of being abused by the alleged
victim,” and in applying an “objective” standard of reasonableness
under its case law instead of a “modified objective” or “subjective”
standard under Paine. The State, represented in this case by
Duchesne County, declined to file a brief on appeal.
¶13 A majority of the court of appeals affirmed. State v. Sorbonne,
2020 UT App 48, 462 P.3d 409. The majority opinion, authored by
Judge Hagen, noted that an appellee may decide to waive the right
to file a responsive brief with the understanding that “the only
sanction . . . is the possible exclusion of the appellee from oral
argument.” Id. ¶ 16 n.3 (citing UTAH R. APP. P. 26(c)). With that in
mind, the majority concluded that it could affirm on the basis of the
lack of an appellee brief only upon a determination “that Sorbonne
had carried his burden of persuasion on appeal in his opening brief.”
Id. (citing Paxman v. King, 2019 UT 37, ¶ 7, 448 P.3d 1199). And it
affirmed on the ground that Sorbonne had failed to carry such
burden on the three claims of error advanced on appeal. Id. ¶ 30.
¶14 First, the majority concluded that the district court had
“found that Sorbonne’s act of pointing a gun at his father was
unreasonable regardless of whether it was characterized as the ‘use’
of deadly force or as a ‘threat.’” Id. ¶ 21. “Because the district court
did not resolve the issue of which standard applied and instead
ruled that Sorbonne’s conduct was unreasonable under either
alternative,” the court held “there [wa]s no ruling on that issue for
[it] to review.” Id.
¶15 Second, the majority noted that the district court had
admitted and considered extensive evidence of Sorbonne’s father’s
history and past acts, but held that Sorbonne had failed to identify a
basis for concluding that the district court had abused its discretion
in excluding the additional testimony presented by Sorbonne at trial.
Id. ¶¶ 10, 22. As to the younger sister’s testimony about a DCFS
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finding, the majority noted that trial counsel had withdrawn his
question before the district court had an opportunity to rule on an
objection, so the district court “never had an opportunity to rule on
the issue” and the question was not properly presented on appeal.
Id. ¶ 23. As to testimony about specific acts of prior violence and
“road rage” by the father, the majority explained that such
“testimony is relevant only if Sorbonne actually knew about” the
acts in question. Id. ¶ 26. Because “nothing in the record indicate[d]
that Sorbonne knew about” the acts at issue, the majority held that it
could not conclude that the district court abused its discretion in
excluding this testimony. Id.
¶16 Finally, the majority held that Sorbonne had failed to carry
the burden of establishing a basis for abandoning the “objective”
standard set forth in Utah cases, or for replacing it with “a ‘modified
objective standard or a subjective standard.’” Id. ¶ 29. And it
affirmed on the ground that Sorbonne had failed to “convince[] [the
court] that [it] should overrule [its] prior cases holding that acts of
self-defense must be objectively reasonable.” Id.
¶17 Both of the other members of the panel of the court of
appeals wrote separately. Judge Christiansen Forster concurred in
the majority’s determination that Sorbonne had not “met his burden
of persuasion on any of the grounds raised in his appellate brief” but
wrote separately to note her “agreement with Sorbonne’s suggestion
that it might be time to reexamine the standard our courts use in
assessing the reasonableness of the responsive action exhibited by
domestic violence victims or abused children in the self-defense
context.” Id. ¶¶ 31–32. In Judge Christiansen Forster’s view, our case
law has not yet “wrestle[d] with the issue of how to assess the
reasonableness” of an assertion of self-defense in a “domestic-
violence” or “abusive-parent” context. Id. ¶ 32. And it may be
appropriate for our courts to “reassess the appropriate standard” in
these contexts in a future case—though not here because Sorbonne
had not “ask[ed] the district court to deviate from the ‘objectively
reasonable’ standard in considering the reasonableness of his claim
of self-defense.” Id. ¶ 33.
¶18 Judge Orme dissented, albeit without reaching the merits of
the issues presented on appeal. He acknowledged that the usual
effect of an appellee’s failure to file a brief is a mere waiver of a right
to participate in oral argument. Id. ¶ 35. But he also noted that the
State “all but invariably” files a responsive brief in criminal cases—
with a limited exception of the cases in which the Criminal Appeals
Division of the Utah Attorney General’s Office submits a letter either
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STATE v. SORBONNE
Opinion of the Court
“conced[ing] that the appellant is correct and entitled to the relief
sought on appeal” or explaining that the office is “overworked and
understaffed” and has chosen to “prioritize its work and concentrate
the talents of its attorneys on those cases where the defendant has a
colorable claim.” Id. ¶¶ 35–36. In this case, Judge Orme observed that
there is “no such letter”—“not because the Criminal Appeals
Division has deviated from its usual practice,” but because this case
involves a misdemeanor conviction and the county attorney “has the
responsibility to represent the State on appeal” and “[t]he county
attorney has filed no letter explaining why it has not submitted a
brief.” Id. ¶ 37. In the absence of a basis for concluding that the
Duchesne County Attorney had decided to forgo a brief “in the
interest of concentrating its resources” on “more weighty” matters,
Judge Orme viewed the failure to file a brief “in the unique posture
of this case” as “tantamount to a concession that Sorbonne’s
conviction should be reversed.” Id. ¶¶ 37–38. And he indicated that
he would have reversed on that basis. Id. ¶ 38.
¶19 Sorbonne filed a petition for writ of certiorari. We granted
the petition to consider whether the court of appeals majority “erred
in affirming defendant’s conviction by requiring satisfaction of an
objective standard of reasonableness as a condition for establishing
self-defense.”
II
¶20 Sorbonne’s briefing in this court covers much of the same
ground he covered in the court of appeals. He cites Paine v. Massie,
339 F.3d 1194 (10th Cir. 2003), and other cases and scholarly material
in support of a request that we establish a “modified objective” or
“modified subjective” standard of reasonableness under the law of
self-defense. Sorbonne does not clearly define these terms. But he
suggests that the words “objective” and “subjective” may be more
confusing than helpful. And he asserts that the inquiry should turn
on “whether the fear that triggered the defensive action was genuine
and not whether a hypothetical person would have been afraid.”
¶21 Sorbonne compares his circumstance to that of a “battered
spouse” and asserts that “Utah appellate courts have not approached
head-on how a history of abuse might affect a claim of self-defense.”
Echoing Judge Christiansen Forster and citing published scholarship
on “battered spouse syndrome,” he urges us to recognize that a
“history of violence and abuse is one of the factors that needs to be
considered in determining the reasonableness of an action taken in
self-defense.”
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¶22 Sorbonne claims that the district court erred in excluding
“relevant circumstances” of the history of his relationship with his
father, including evidence of his father’s prior acts of violence and
“road rage.” And he asks us to conclude that “[t]he majority of the
Court of Appeals incorrectly applied [an] objective standard” that
ratified the district court’s erroneous approach.
¶23 Some of Sorbonne’s threshold points are correct as far as
they go. This court has not had occasion to interpret the governing
terms of the self-defense statute—the requirement that a defendant
“reasonably believe[]” that a threat or use of force is a “necessary”
response in light of non-exclusive “factors” enumerated by the
legislature. UTAH CODE § 76-2-402(2), (5). We thus have not
established whether the requirement of a “reasonabl[e] belie[f]” is
properly characterized as an “objective” standard, or may be better
viewed as a “modified objective” or “subjective” one. And we have
not previously applied this statutory framework to a case involving
allegations of a “history of violence and abuse.”
¶24 We accordingly acknowledge a need to provide some clarity
on the threshold questions raised by Sorbonne. We seek to do so
below by establishing that Utah Code section 76-2-402 encompasses
both a subjective and an objective component, under a standard that
opens the door to a non-exhaustive list of factors that includes a
history or pattern of abuse or violence between the parties. After
clarifying this standard, we affirm the decision of the court of
appeals on the narrow question that it decided and that is presented
to us on certiorari. We hold that Sorbonne has failed to identify a
basis for reversal of the legal standard applied by the district court in
its determination that Sorbonne’s actions were “not necessary or
reasonable under the circumstances.”
A
¶25 “An individual is justified in threatening or using force
against another individual when and to the extent that the
individual reasonably believes that force or a threat of force is
necessary to defend the individual or another individual against the
imminent use of unlawful force.” UTAH CODE § 76-2-402(2)(a)
(emphasis added). A parallel standard applies where the force used
is “intended or likely to cause death or serious bodily injury.” Id.
§ 76-2-402(2)(b). Such force is “justified . . . if the individual
reasonably believes that force is necessary to prevent death or serious
bodily injury to the individual or another individual as a result of
imminent use of unlawful force, or to prevent the commission of a
forcible felony.” Id. (emphasis added).
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STATE v. SORBONNE
Opinion of the Court
¶26 The key element of relevance here is the requirement that
the defendant “reasonably believe[]” that the threat or use of force is
necessary. In assessing the reasonableness of a defendant’s belief,
“the trier of fact may consider: (a) the nature of the danger; (b) the
immediacy of the danger; (c) the probability that the unlawful force
would result in death or serious bodily injury; (d) the other
individual’s prior violent acts or violent propensities; (e) any
patterns of abuse or violence in the parties’ relationship; and (f) any
other relevant factors.” Id. § 76-2-402(5).
¶27 This text contains answers to the threshold questions raised
by Sorbonne. First, we agree with Sorbonne that the statutory
standard is not a “purely objective” one. The statute requires that the
individual defendant “reasonably believe[]” that a threat or use of
force is necessary. Id. § 76-2-402(2)(a), (b) (emphasis added). And the
requirement of individual belief introduces a component of
subjectivity. See Subjective, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining “subjective” as “based on an individual’s perceptions,
feelings, or intentions”).
¶28 That said, the statutory standard is likewise not purely
subjective. It does not turn only on “whether the fear that triggered
the defensive action was genuine,” or obviate the inquiry into
“whether a hypothetical person would have been afraid” in the
circumstances faced by the defendant. Genuineness is part of the
inquiry—embedded in the subjective requirement of a reasonable
belief. But genuineness is only half of the statutory picture. A person
must “reasonably believe[]” that a threat or use of force is necessary.
Id. § 76-2-402(2)(a), (b) (emphasis added). And the reasonableness of
the individual’s belief introduces a component of objectivity. See
Objective, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
“objective” as “[o]f, relating to, or based on externally verifiable
phenomena, as opposed to an individual’s perceptions, feelings, or
intentions”).
¶29 This is reinforced by the non-exclusive “factors” that are
considered in assessing the reasonableness of a defendant’s belief.
UTAH CODE § 76-2-402(5)(f). Those factors include circumstances that
may be considered in assessing whether and to what extent an
individual defendant’s belief is a reasonable one. And the
reasonableness inquiry is a hypothetical one, which asks the fact-
finder to decide whether a person in the defendant’s circumstances
would have reasonably believed that a threat or use of force was
necessary.
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¶30 This court may not yet have decided whether a history or
pattern of abuse is relevant to the assessment of a person’s
reasonable belief under the law of self-defense. But the legislature
has conclusively resolved this question. It has expressly provided
that a “trier of fact may consider” “the other individual’s prior
violent acts or violent propensities” and “any patterns of abuse or
violence in the parties’ relationship” in assessing the
“reasonableness” of a defendant’s belief that a threat or use of force
was necessary. Id. § 76-2-402(5)(d), (e).
B
¶31 The statutory text thus resolves the threshold questions
raised by Sorbonne and highlighted in Judge Christiansen Forster’s
concurring opinion. That leaves the question of whether Sorbonne
has carried his burden of showing that there was error in the
standard articulated and applied by the court of appeals in its
decision before us on certiorari.
¶32 Sorbonne’s argument is twofold. He asserts that the court of
appeals erred in (1) establishing a purely “objective” standard of
reasonableness; and (2) applying that standard in its review of the
district court’s decision.
¶33 We affirm. Sorbonne has not established that the court of
appeals adopted a standard of reasonableness that differs from the
one we articulated above. And he has not preserved or presented a
basis for concluding that there was error in the application of the
statutory standard in the district court.
1
¶34 The court of appeals cited its prior case law in support of the
view that “an objective standard applies when evaluating the
reasonableness of self-defensive actions.” State v. Sorbonne, 2020 UT
App 48, ¶ 28, 462 P.3d 409 (citing State v. Sherard, 818 P.2d 554, 561
(Utah Ct. App. 1991)). It also rejected Sorbonne’s request that it
repudiate that standard in favor of “a ‘modified objective standard
or a subjective standard.’” Id. ¶ 29.
¶35 In so doing, the court of appeals was not endorsing a
“purely objective” standard that obviates the requirement of proof of
an individual defendant’s subjective belief in the necessity of a given
threat or use of force. It was reinforcing the point we made above—
that an individual defendant’s belief must be reasonable, and that
“‘reasonable’ in the context of Utah’s self-defense statute means
‘objectively reasonable.’” Id. ¶ 28 (citing Sherard, 818 P.2d at 561, for
this proposition). This is clear from the cited authority—the Sherard
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STATE v. SORBONNE
Opinion of the Court
case. Sherard did not adopt a “purely objective” standard, or
eliminate the requirement of an individual defendant’s subjective
belief. It simply interpreted the term “reasonable” as we do now—as
meaning “‘objectively reasonable’” under the circumstances. Sherard,
818 P.2d at 561 (cleaned up).
¶36 Sorbonne asked the court of appeals to abandon the Sherard
standard in favor of the standard endorsed by the Tenth Circuit in
Paine v. Massie, 339 F.3d 1194 (10th Cir. 2003). But he presented no
salient basis for so doing. And the court of appeals did not err in
rejecting that argument and reinforcing the standard in Sherard.
¶37 Sorbonne follows a similar pattern in his briefing in our
court. He asks us to “disavow” the language of “objective
reasonableness” set forth in In re R.J.Z., 736 P.2d 235, 236 (Utah 1987).
But R.J.Z. is in line with Sherard and is consistent with the statutory
text. R.J.Z. applies a statute providing a justification for the use of
force in defending a person’s habitation where the defendant “had a
reasonable belief that the force was necessary.” Id. And it simply
“interpret[s] the term ‘reasonable’ to mean objectively reasonable.”
Id. In R.J.Z. as in Sherard, there was no elimination of the requirement
of a subjective belief—just a determination that such belief must also
be “reasonable,” and a conclusion that “reasonable” means
“objectively reasonable” under the circumstances.
¶38 Sorbonne has not established a basis for overturning the
cited precedent, or even concluding that it is inconsistent with the
text of the governing statute. We affirm on that basis.
2
¶39 The court of appeals held that Sorbonne had failed to
establish an abuse of discretion in the exclusion of evidence of “the
father’s prior violent actions.” Sorbonne, 2020 UT App 48, ¶ 27.
Sorbonne seeks to challenge that decision here by: (a) asserting that
the district court failed to “consider” the “relevant circumstances
surrounding” his act of self-defense, such as the father’s “road rage”
and acts of abuse of one of Sorbonne’s sisters; and (b) contending
that the district court erred in concluding that he lacked a reasonable
belief in the necessity of a threat of force—a conclusion it allegedly
made without assigning the burden of proof to the prosecution.
¶40 Both arguments fall short. On the first point, Sorbonne
broadly claims error in the exclusion of acts of “domestic abuse”
analogous to “battered spouse” syndrome. But in advancing this
claim, Sorbonne nowhere addresses the fact that the district court
admitted and considered a range of evidence of his father’s past acts
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of abuse. And he fails to engage with the grounds for the court of
appeals’ decision—its conclusion, for example, that Sorbonne failed
to establish that the evidence of acts of “road rage” was relevant
given that “nothing in the record indicates that Sorbonne knew
about” those incidents. See Sorbonne, 2020 UT 48, ¶ 26. For these
reasons, Sorbonne’s first point is inadequately briefed. And in any
event, it falls outside our grant of certiorari—to consider whether the
court of appeals “erred in affirming defendant’s conviction by
requiring satisfaction of an objective standard of reasonableness as a
condition for establishing self-defense.”
¶41 The second point likewise fails. Nowhere in the court of
appeals did Sorbonne ever challenge the evidentiary basis for the
district court’s decision. And nowhere did he assert that the district
court erred in failing to assign the burden of proof to the
prosecution. These arguments again are not properly presented. And
Sorbonne has accordingly failed to carry his burden of identifying a
basis for reversal of the decision of the court of appeals.
III
¶42 A defendant’s threat or use of force is justified if and where
he “reasonably believes” it is necessary under the circumstances.
UTAH CODE § 76-2-402(2). This standard encompasses both a
subjective and an objective component. And the assessment of an
individual’s reasonable belief should be undertaken in light of all
relevant circumstances, including any past pattern or history of
abuse (as with “battered spouse syndrome”).
¶43 Sorbonne has rightly raised questions about the terms and
conditions of our law in this field. But he has identified no basis for
reversal of the court of appeals’ decision. And we accordingly affirm.
11