State v. Gandee ( 1978 )

CROCKETT, Justice:

Defendant seeks reversal of his conviction by a jury of the crime of carrying a concealed dangerous weapon in violation of Sec. 76-10-504, U.C.A., 1953, a third degree felony. His grounds of attack are: (1) Insufficiency of the evidence, and (2), failure to instruct on what he claims is an included offense of carrying a loaded firearm which is proscribed by the succeeding Section, 76-10-505.

On the evening of September 29, 1975, Officer Corey Bott of the South Ogden Police responded to a call that there was violence at the residence, 5415 South 800 East. As the officer approached the place, he heard four gunshots in rapid succession. He parked his car behind a truck-camper and called for backup assistance. He observed the defendant come quickly down the driveway and get into the cab of the camper. The officer shined his hand spotlight into the truck’s rearview mirror. When defendant saw this, he started the truck and attempted to move away. But by using his siren and warning lights, and by driving his car in front of the truck, the officer managed to compel defendant to stop.

The officer approached the truck with his gun drawn and ordered the defendant to get out of the truck.

To this, the defendant stated: “Shoot away, pig.”

When the officer asked the defendant where the gun was, defendant lifted his shirt, which enabled the officer to see the handle of what proved to be a .22 caliber pistol. According to the officer, there was a brief altercation and the defendant released his gun. It holds nine shells, six had been fired, and there were three live rounds in it.

Defendant’s first contention, that the evidence was not sufficient to justify the verdict of guilty of carrying a concealed weapon, is sufficiently disposed of by these observations: that where the evidence is in dispute, we are obliged to assume on appeal that the jury believed those aspects of the evidence which support their verdict;¹ and that, in doing so, there is a reasonable basis therein upon which the jury could believe that the defendant committed that offense as charged.

In addressing the defendant’s contention that error was committed in failing to submit the case to the jury on what he claims is the lesser and included offense of carrying a loaded firearm, as prohibited by Sec. 76-10-505, U.C.A., 1953, it is appropriate to first look at our statute Sec. 77-33-6, which states:

The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense.

As this Court has previously pointed out, the greater offense includes a lesser one when the proof of the greater offense would necessarily include proof of all of the elements necessary to prove the lesser offense. But when the proof of what is claimed to be a lesser offense requires some element not necessarily involved in the greater offense, then the claimed lesser offense would not necessarily be an offense included in the greater one.²

Section 504, supra, under which the defendant was convicted reads:

Any person, except those persons described in Section 76-10-503, carrying a concealed dangerous weapon as defined in this part is guilty of a class B misdemeanor, and if the dangerous weapon is a firearm, or sawed-off shotgun he shall be guilty of a felony of the third degree.

Section 505, supra, which the defendant argues defines a lesser included offense reads:

Every person who carries a loaded firearm in a vehicle or on any public street in an incorporated city or in a prohibited area of an unincorporated territory within this state is guilty of a class B misdemeanor.

[All emphasis herein added.]

In comparing those two sections of the statute, it will be seen that there is a significant difference between them; and that they therefore do not present the usual situation of a major crime with lesser degrees included therein, such as homicide, with the various lesser degrees thereof, or grand larceny, wherein if the property is not of sufficient value, the included offense of petit larceny may be found. The essential of Section 504 is to prohibit the secretiveness in “carrying a concealed dangerous weapon.” This could be any kind of a dangerous weapon such as a knife, or a gun, or a bomb, or any type of a dangerous or explosive instrumentality.

On the other hand, the prohibition of Section 505 is directed specifically toward the carrying of a “loaded firearm” in just three specified places, towit: in any vehicle, or in any public street in any incorporated city, or in any expressly prohibited area of an unincorporated territory. Under Section 504, a person could be charged with carrying a “concealed weapon,” which might be the knife, bomb, or explosive device, but if the proof of the element of concealment failed, he would not be guilty of a violation of Section 505 because it would not be a “loaded firearm” as prohibited in that section.

Related to the foregoing, there is a further difficulty with defendant’s claim that there should have been an instruction on Section 505 as a lesser included offense. The defense he asserted in his own testimony was that the gun was not loaded. It is thus plainly apparent from his own position that there is an element in the offense of violating Section 505, i. e., that the firearm must be loaded, which is not required to prove a violation of Section 504.

The purpose of the foregoing observations is to point out that these two statutes are not parallel and to show that there was some justification for the concern of court and counsel as to whether it would be appropriate to instruct on the claimed included offense under Section 505.

Far more important are the following facts: that a discussion in chambers between the court and counsel plainly indicates that plaintiff’s then counsel, Mr. Gary Gale, was aware of the problem and voiced no disagreement with the court’s reservation concerning the included offense. To the contrary, in response to the suggestion of the possibility that instruction on both offenses could be given to the jury, defense counsel expressly stated that he rejected that suggestion. It is significant that notwithstanding that discussion indicating defense counsel’s full awareness of the problems involved, he chose not to submit a request for such an instruction; and further, that after the instructions were given and exceptions taken to other instructions, when the court asked counsel if there was any further objection to the instructions as given by the court, defendant’s counsel answered, “none.”

Consistent with our conclusion herein, it is plainly apparent that his counsel thought the defendant’s best chance of acquittal was his claim of non-concealment of the pistol, both because of the foregoing, and because that was the position taken for the defendant both in the evidence presented and his argument. The fair and proper holding in such circumstances is that if the defendant chooses to go to the jury on the greater offense, he cannot wait until after he is convicted thereon and then complain about failure to submit a lesser offense.³

Finally, and what should be the controlling proposition here, is that the question as to the giving of a written instruction on an included offense was not raised nor in any manner presented to the lower court for its action thereon after the discussion in chambers. The invariably accepted rule of appellate review is that no issue will be considered by the appellate court unless it was properly raised in the lower court in order to give the parties and the court notice and fair opportunity to meet, consider and pass upon that issue.⁴

Affirmed. No costs awarded.

ELLETT, C. J., and HALL, J., concur.

1 . See State v. Seymour, 18 Utah 2d 153, 417 P.2d 1021. P.2d 655 (1966); Titus v. State, Okl.Cr., 351

2 . See State v. Woolman, 84 Utah 23, 33 P.2d 640 (1934); State v. Brennan, 13 Utah 2d 195, 371 P.2d 27 (1962).

3 . State v. Mitchell, 3 Utah 2d 70, 278 P.2d 618; State v. Valdez, 19 Utah 2d 426, 432 P.2d 53 and authorities cited therein.

4 . Hamilton v. Salt Lake County, etc., 15 Utah 2d 216, 390 P.2d 235. It is of curious interest that the dissent cites State v. Bell, Utah, 563 P.2d 186, in support of its contentions. It is true that that decision does mention that, in exceptional cases, the court might review the failure to give an instruction on an included offense where that would be necessary to avoid serious injustice. But the actual holding of the Bell case was that it was not error to refuse to give orally requested instructions for lesser included offenses because, as is true here, there had been no request therefor in writing as required by Rule 51, U.R.C.P.