State v. Loeffel , 731 Utah Adv. Rep. 25 ( 2013 )

2013 UT App 85_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MICHAEL DENNIS LOEFFEL,
Defendant and Appellant.
Memorandum Decision
No. 20120108‐CA
Filed April 4, 2013
Fifth District, St. George Department
The Honorable G. Rand Beacham
No. 081500761
Gary W. Pendleton, Attorney for Appellant
John E. Swallow and Ryan D. Tenney, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR.
and MICHELE M. CHRISTIANSEN concurred.
ORME, Judge:
¶1 Defendant Michael Dennis Loeffel appeals his conviction for
three counts of aggravated assault, a third degree felony. See Utah
Code Ann. § 76‐5‐103 (LexisNexis 2008).1 We affirm.
1. Because there have been subsequent amendments to the
applicable statutory provisions, we cite the version of the Utah
Code in effect at the time of the incident.
State v. Loeffel
¶2 “When reviewing a jury verdict, we examine the evidence
and all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly.” State
v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. On April 24, 2008, the police
were notified of a public disturbance and possible domestic dispute
between Defendant and his girlfriend. An off‐duty police officer
responded to the call and drove to the location of the disturbance
in his personal vehicle. The officer spotted Defendant and his
girlfriend driving in Defendant’s truck and followed them back to
Defendant’s house. Defendant’s girlfriend entered the home, and
Defendant stood in the yard for twenty or thirty seconds before
entering behind her. The officer did not approach Defendant or
attempt to make contact with either person when he reached
Defendant’s home, and he left a few moments later to get his
official squad car.
¶3 When the officer returned in his squad car, he approached
the front of Defendant’s house. Defendant was standing inside the
screen‐enclosed porch at the front of the house, and he refused to
unlock the screen door and come out to talk with the officer when
asked. Defendant eventually went back inside the house, and the
officer returned to his vehicle to wait for backup.2
¶4 Three additional officers arrived at the home soon after, and
they began calling out to Defendant and his girlfriend with a
loudspeaker. This prompted Defendant to come back out of his
house and begin swearing and yelling very loudly at the officers
from the enclosed porch. The officers repeatedly asked Defendant
to come out of the porch area to speak with them, but Defendant
refused each time. While he was screaming at the officers,
Defendant referred to a gun and said that the officers were “fair
game” if they tried to enter his house. Defendant also told the
2. The officer testified that, consistent with his training on domestic
violence situations, he was not going to leave the home until he
could separate the parties and make sure that they were both all
right.
20120108‐CA 2 2013 UT App 85State v. Loeffel
officers that if they approached, “it’s on.” During the commotion,
Defendant’s girlfriend came out onto the porch. The officers started
encouraging her to come out of the porch area to talk and informed
Defendant that if he prevented her from coming out to speak to
them, he could be charged with kidnapping. Defendant’s girlfriend
eventually agreed to speak with the officers outside, and as she
moved to unlock the screen door, Defendant went back inside his
house and slammed the door.
¶5 Concerned that Defendant had gone in to retrieve the gun
he had referred to, the officers drew their weapons and proceeded
through the screen door that Defendant’s girlfriend had unlocked
and through which she had just exited. The officers kicked the front
door of the house open3 and found Defendant in the entryway
holding what turned out to be a loaded rifle with the safety off.
One officer testified that Defendant was holding the rifle at the
“low ready” position, and two of the officers testified that he
started to raise the rifle toward them when they entered the house.
As soon as he began to raise the rifle, the officers opened fire on
Defendant, hitting him twice.
¶6 Because Defendant stated that he would shoot the officers
if they entered his home and then pointed a rifle at them when they
actually entered, Defendant was arrested and charged with, inter
alia, three counts of aggravated assault. At the close of evidence at
trial, the court instructed the jury on the elements of aggravated
assault and included an instruction on a reckless mental state.
Defendant objected to the instruction, arguing that recklessness
was insufficient to satisfy the offense’s mens rea requirement. The
court overruled the objection and allowed the instruction.
Defendant was ultimately convicted. He now appeals.
3. Defendant mentions the Fourth Amendment only in the context
of his argument that there was insufficient evidence to support his
conviction. The lawfulness of the entry is thus not before us.
20120108‐CA 3 2013 UT App 85State v. Loeffel
¶7 Defendant argues that the trial court erred by instructing the
jury that aggravated assault can be committed by recklessly
threatening to do bodily injury to another. “Claims of erroneous
jury instructions present questions of law that we review for
correctness.” State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.
Defendant also contends that even if aggravated assault can be
committed recklessly, the State presented insufficient evidence to
support his conviction. When reviewing an insufficiency of the
evidence claim, we will reverse a jury verdict only if the evidence
“is sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” State v. Maestas, 2012 UT 46, ¶ 302, (citation and
internal quotation marks omitted).
¶8 Defendant first argues that the word “threat” and the phrase
“show of immediate force or violence,” as those terms are used in
Utah Code section 76‐5‐102, plainly involve intentional or knowing
conduct. See Utah Code Ann. § 76‐5‐102 (LexisNexis 2008). He
reasons that a jury instruction on recklessness undermines the
offense’s prescribed mental state that can be inferred from the
statutory text. We believe that the framework of Utah’s criminal
code, as well as a long line of precedent, contradicts Defendant’s
position.
¶9 A person is guilty of aggravated assault if that person
commits an assault under Utah Code section 76‐5‐102 and, inter
alia, uses a dangerous weapon as defined in Utah Code section 76‐
1‐601(5).4 See id. § 76‐5‐103(1)(b). For purposes of this appeal, an
4. Assault elevates to aggravated assault if an assault is
accompanied by either of two aggravating factors. See Utah Code
Ann. § 76‐5‐103(1)(a), (b) (LexisNexis 2008). Here, the jury was only
instructed on the “dangerous weapon” aggravator. Defendant’s
rifle is certainly an “item capable of causing death or serious bodily
(continued...)
20120108‐CA 4 2013 UT App 85State v. Loeffel
assault under section 76‐5‐102 is either “(a) an attempt, with
unlawful force or violence, to do bodily injury to another ”; or “(b)
a threat, accompanied by a show of immediate force or violence, to
do bodily injury to another.”5 Id. § 76‐5‐102(1)(a), (b). Under our
criminal code, every offense not involving strict liability requires
a prescribed culpable mental state. See id. § 76‐2‐102. However, if
the definition of an offense “does not specify a culpable mental
state and the offense does not involve strict liability, [then] intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility.” Id.
¶10 Nothing in the text of either assault provision explicitly
prescribes a culpable mental state. See id. §§ 76‐5‐102, ‐103.
Therefore, our statutory framework prescribes that section 76‐2‐102
controls and that the mens rea requirement defaults to “intent,
knowledge, or recklessness.” See id. § 76‐2‐102. Contrary to
Defendant’s assertion, section 76‐2‐102 is not merely a canon of
interpretation or a non‐binding suggestion that gives way to
educated guesswork based upon inferences drawn from the
language of a criminal offense. Rather, our cases confirm that
section 76‐2‐102 controls when criminal offenses do not explicitly
identify the applicable mens rea requirement. See, e.g., State v.
Hutchings, 2012 UT 50, ¶ 12, 285 P.3d 1183 (noting that in absence
of some particular mens rea required in the assault statute,
prosecution had to prove intent, knowledge, or recklessness); State
v. Royball, 710 P.2d 168, 170 (Utah 1985) (holding that the mens rea
statute controls unless a culpable mental state is otherwise
specifically defined); State v. McElhaney, 579 P.2d 328, 328–29 (Utah
1978) (holding that because the applicable aggravated assault
4. (...continued)
injury,” see id. § 76‐1‐601(5)(a), and therefore qualifies as a
dangerous weapon.
5. The trial court did not instruct the jury on the third statutory
type of assault, see Utah Code Ann. § 76‐5‐102(1)(c) (LexisNexis
2008), and we consequently do not address it here.
20120108‐CA 5 2013 UT App 85State v. Loeffel
statute did not specify a culpable mental state, the mens rea statute
controlled and allowed reckless conduct to establish criminal
responsibility). Because neither the aggravated assault statute nor
the underlying simple assault statute specified a more culpable
mental state, section 76‐2‐102 controls. Accordingly, the trial court
did not err in giving the jury a recklessness instruction.
¶11 Defendant next argues that there was insufficient evidence
presented at trial to support his conviction even under a theory of
recklessness. A person acts recklessly “with respect to
circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will
occur.” Utah Code Ann. § 76‐2‐103(3) (LexisNexis 2008).
¶12 During the course of a volatile and profane confrontation
with the police, Defendant referred to a gun and specifically told
the officers that they were “fair game” if they attempted to enter
his home. After making these threatening statements, Defendant
retreated into his home and waited for the officers with his rifle at
the ready. When the officers came through his front door,
Defendant was standing in the entryway and began to raise his rifle
toward them. Even if Defendant did not intend the statements he
made on the porch as actual threats to inflict bodily injury on the
officers, he certainly disregarded the risk that raising a rifle at the
officers shortly after making such statements would amount to a
threat accompanied by a show of immediate force or violence. See
id. § 76‐5‐102(1)(b). Simply put, by telling the officers that they
were “fair game” and then pointing a rifle at them, Defendant
clearly satisfied the elements of aggravated assault, even if his
conduct was not intentional or knowing. We conclude that the
State put on more than enough evidence to allow a reasonable jury
to convict Defendant.
¶13 Affirmed.
20120108‐CA 6 2013 UT App 85