State v. Sanders

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 25IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
ZANE CHARLES SANDERS,
Appellant.
No. 20160300
Filed June 24, 2019
On Certification from the Court of Appeals
Third District, West Jordan
The Honorable Judge William K. Kendall
No. 151400229
Attorneys:
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,
Salt Lake City, for appellee
Andrea J. Garland, Salt Lake City, for appellant
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶ 1 Zane Charles Sanders cannot legally possess a firearm
because the Utah Code prohibits any individual convicted of a
felony from, among other things, “intentionally or knowingly”
having a firearm in his possession. UTAH CODE § 76-10-503(1)(b),
(3) (2014). A jury convicted Sanders of violating section 503 after
police officers responding to a domestic complaint found Sanders in
his backyard carrying a rifle.
STATE v. SANDERS
Opinion of the Court
¶ 2 Sanders claimed that when the police officers arrived at his
home, he was moving his girlfriend’s son’s firearm back into the
house. Sanders argued that he was only transporting the rifle
because it had been left in the backyard, which abutted an
elementary school. He asked the district court to instruct the jury
that it could acquit him if it found that he was innocently possessing
the weapon. The district court refused. Sanders appeals, arguing that
refusal was error. We disagree with Sanders and affirm.
BACKGROUND
¶ 3 At the time of his arrest, Sanders lived with his Girlfriend. 1
Girlfriend’s teenage son, M.M., owned three firearms that he used
for hunting. The firearms were stored, unsecured, in the bedroom
closet Sanders and Girlfriend shared. Ammunition for those firearms
was supposed to be stored separately in M.M.’s bedroom.
¶ 4 One evening, Sanders learned that M.M. had left his hunting
rifle outside, unattended, in the backyard. Upset, Sanders argued
with Girlfriend about M.M.’s dereliction at a volume that prompted
a concerned neighbor to call the police.
¶ 5 The police responded to the complaint. When they arrived,
an officer heard a man yell Girlfriend’s name. The officer then saw
Sanders standing on the back porch holding a rifle. The officer
pulled out his flashlight and demanded to see Sanders’s hands.
Sanders set the rifle down, raised his hands, and said, “I’m not
armed.”
¶ 6 Sanders refused to talk to the officer and informed him in
salty, if somewhat unoriginal, language that he needed a warrant to
enter the house. Sanders then went inside, leaving the rifle on the
back porch. Sanders had spoken with slurred speech, and the officers
believed he was intoxicated. The officers then spoke with Girlfriend.
Based on her comments, the officers concluded that Girlfriend’s
young daughter might be inside. The officers conducted a safety
sweep of the home to ensure that the child was safe. During the
sweep, the officers observed ammunition in a bedroom and a
magazine for a rifle in the living room.
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1 “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation omitted)
(internal quotation marks omitted).
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¶ 7 After the safety sweep, the officers ran a records check and
discovered that Sanders was a restricted person; that is, because
Sanders had been convicted of a felony, Utah law restricts him from
possessing a firearm. The officers went to the back porch and
collected the rifle—which, as it turned out, was fully loaded. The
officers then left the home. A few days later, Sanders called the
police department and asked if he could get the rifle back.
¶ 8 Two weeks after the initial encounter, the officers returned
with a warrant to retrieve firearms, dangerous weapons,
ammunition, and any items related to firearms from Sanders’s home.
Sanders again asked the officers to return the rifle. And Girlfriend
told the officers that additional firearms belonging to M.M. were in
her bedroom closet. The officers arrested Sanders.
¶ 9 During their search of the home, the officers confiscated two
unsecured firearms, multiple magazines, ammunition, a machete,
and a sword. Additionally, the officers found a small amount of
marijuana.
¶ 10 The State charged Sanders with three counts of possession
of a firearm by a restricted person, third degree felonies in violation
of Utah Code section 76-10-503(3). 2
¶ 11 Before trial, Sanders requested an innocent possession jury
instruction. Sanders’s requested instruction would have told the jury
that a restricted person is not guilty of the offense of possession of a
firearm “if (1) the firearm was [ob]tained innocently and held with
no illicit or illegal purpose, and (2) the possession of the firearm was
transitory; that is, that the defendant took adequate measures to rid
himself of possession of the firearm as promptly as reasonably
possible.”
¶ 12 The State opposed the jury instruction. The State argued
that the felon-in-possession statute does not leave room for an
innocent possession defense. The State further argued that even if
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2The State also charged Sanders with two counts of possession of
a dangerous weapon by a restricted person, class A misdemeanors,
UTAH CODE § 76-10-503(3)(b), and one count of possession of drug
paraphernalia, a class B misdemeanor, UTAH CODE § 58-37a-5(1). The
court granted Sanders’s motion for a directed verdict as to the drug
paraphernalia charge, and the jury found Sanders not guilty of the
dangerous weapon charges.
3
STATE v. SANDERS
Opinion of the Court
there were such a defense, the facts did not support its application in
this case because Sanders’s possession was not “transitory.”
¶ 13 The district court denied Sanders’s request. The court ruled
that it did not “need to decide whether or not the innocent
possession defense is available here” because, based on the evidence
presented at trial, there was no “factual basis to give [the]
instruction.” The court reasoned that jurisdictions that recognize the
defense require the “defendant to demonstrate both that he intended
to turn the weapon over to the police and that he was pursuing such
an intent with immediacy and through a reasonable course of
conduct,” which Sanders did not do.
¶ 14 The jury convicted Sanders on one count of possession of a
firearm by a restricted person. The jury acquitted him of the two
additional charges of possession of a firearm by a restricted person,
which were based on a theory that Sanders constructively possessed
the firearms that the police officers found in his home. Sanders
appealed the conviction. The court of appeals certified the case to
this court.
STANDARD OF REVIEW
¶ 15 “Whether a jury instruction correctly states the law
presents a question of law which we review for correctness.” State v.
Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444.
ANALYSIS
¶ 16 Sanders asserts that the district court’s refusal to instruct
the jury on an innocent possession defense constitutes reversible
error. Sanders contends that: (1) the defense is consistent with the
felon-in-possession statute; (2) the defense is consistent with our
precedent; and (3) without the defense, Utah law will criminalize
innocent behavior in a fashion that will generate absurd results. The
State argues that neither the statute nor case law supports an
innocent possession defense and that the Legislature could have
rationally intended to criminalize Sanders’s conduct.
I. The Statute Does Not Support an
Innocent Possession Defense
¶ 17 To decide whether the felon-in-possession statute includes
an innocent possession defense, we begin our inquiry with the
statute itself. The point of statutory interpretation is to understand
what the Legislature intended. Bagley v. Bagley, 2016 UT 48, ¶ 10, 387
P.3d 1000. Because “‘[t]he best evidence of the legislature’s intent is
the plain language of the statute itself,’ we look first to the plain
4
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language of the statute.” Id. (alteration in original) (citation omitted).
As we examine the text, “‘[w]e presume that the legislature used
each word advisedly.’” Ivory Homes, Ltd. v. Utah State Tax Comm’n,
2011 UT 54, ¶ 21, 266 P.3d 751 (citation omitted).
¶ 18 Of course, “we do not view individual words and
subsections in isolation; instead, our statutory interpretation
‘requires that each part or section be construed in connection with
every other part or section so as to produce a harmonious whole.’”
Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984(emphasis omitted) (citation omitted). “Thus, we ‘interpret [] statutes
to give meaning to all parts, and avoid[] rendering portions of the
statute superfluous.’” Id. (alterations in original) (citation omitted).
¶ 19 When a party asks us to recognize a defense to a crime, we
must remember that “it is for the legislature to define affirmative
defenses to crimes under the Utah Code.” State v. Drej, 2010 UT 35,
¶ 18, 233 P.3d 476. The Utah Criminal Code governs “the
construction of, the punishment for, and defenses against any offense”
the Code defines. UTAH CODE § 76-1-103(1) (2014) (Emphasis
added). 3 Accordingly, “courts of this state ‘are bound by the
legislature’s decision to categorize’ and define affirmative defenses.”
Drej, 2010 UT 35, ¶ 18 (citation omitted). And the Code provides “a
number of general defenses as well as numerous specific defenses.”
State v. Gardiner, 814 P.2d 568, 574 (Utah 1991). 4
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3 We cite to the version of the statute in effect at the time of
Sanders’s violation of Utah Code section 76-10-503(3) in December
2014.
4 General defenses are those that “theoretically apply to all
offenses.” 1 PAUL H. ROBINSON, CRIM. L. DEF. § 21 (2018). For
example, compulsion is a general defense that the Legislature has
made available to the prosecution of any crime. UTAH CODE § 76-2-
302(1) (“A person is not guilty of an offense when he engaged in the
proscribed conduct because he was coerced to do so by the use or
threatened imminent use of unlawful physical force upon him or a
third person, which force or threatened force a person of reasonable
firmness in his situation would not have resisted.”).
In contrast, a specific defense “must be grounded in the specific
code sections” at issue. Gardiner, 814 P.2d at 574. By way of example,
section 76-5-203 provides the following affirmative defense to
murder: “[T]he defendant caused the death of another . . . under a
(continued . . .)
5
STATE v. SANDERS
Opinion of the Court
¶ 20 The Utah Criminal Code does not contain an express
innocent possession defense—either as a general defense, 5 or within
the specific provision under which Sanders was convicted. A jury
convicted Sanders of violating section 76-10-503(3), which provides:
(3) A Category II restricted person 6 who intentionally
or knowingly purchases, transfers, possesses, uses, or
has under the person’s custody or control:
(a) any firearm is guilty of a third degree felony; or
(b) any dangerous weapon other than a firearm is
guilty of a class A misdemeanor.
¶ 21 Section 503(7) then sets forth the specific defense applicable
to that provision, under which a person may transfer a firearm
within ten days of becoming a restricted person, but may not “use,”
“purchase,” or “possess[] on the person” the firearm during that
period:
(7)(a) It is an affirmative defense to transferring a
firearm or other dangerous weapon by a person
restricted under Subsection (2) or (3) that the firearm or
dangerous weapon:
(i) was possessed by the person or was under the
person’s custody or control before the person
became a restricted person;
(ii) was not used in or possessed during the
commission of a crime . . .
(iii) is not being held as evidence by a court or
law enforcement agency;
(iv) was transferred to a person not legally
prohibited from possessing the weapon; and
(v) unless a different time is ordered by the court,
was transferred within 10 days of the person
becoming a restricted person.
reasonable belief that the circumstances provided a legal justification
or excuse for the conduct . . . .” UTAH CODE § 76-5-203(4)(a).
5 See UTAH CODE §§ 76-2-301 to -308; id. §§ 76-2-401 to -407.
6 Under section 76-10-503(1)(b), any person who has been
convicted of any felony, or meets another specified criteria, is a
Category II restricted person.
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(b) Subsection (7)(a) is not a defense to the use,
purchase, or possession on the person of a firearm or
other dangerous weapon by a restricted person.
UTAH CODE § 76-10-503(7). 7
¶ 22 Thus, section 503 evinces the legislature’s thinking on the
limited circumstance in which an individual may lawfully possess a
firearm after becoming a restricted person. Tellingly, the legislature
did not create a law that allows, as Sanders’s instruction proposed,
that a restricted person may possess a firearm “if (1) the firearm was
[ob]tained innocently and held with no illicit or illegal purpose, and
(2) the possession of the firearm was transitory; that is, that the
defendant took adequate measures to rid himself of possession of the
firearm as promptly as reasonably possible.”
¶ 23 Acknowledging that section 76-10-503 does not explicitly
contain his asserted innocent possession defense, Sanders
nevertheless claims that it exists implicitly in that statute. Sanders
argues that we should read the statutory term “possess” to exclude
innocent possession, as he defines that phrase. In Sanders’s view, the
statute does not “clarify whether the term ‘possess’ . . . includes . . .
temporary possession for the purpose of returning a [firearm] to its
lawful owner.” We disagree.
¶ 24 The Utah Criminal Code provides a general definition of
“possess,” which “means to have physical possession of or to
exercise dominion or control over tangible property.” UTAH CODE
§ 76-1-601(10). Section 503 prohibits “possession” of a firearm by a
restricted person, and section 76-10-503(7) contains the legislature’s
decision about the specific circumstance in which a restricted person
may engage in behavior that would otherwise violate the statute.
The Legislature appears to have concluded that a restricted person
may, under certain conditions, transfer a firearm—but only within
ten days of becoming a restricted person. See UTAH CODE § 76-10-
503(7)(a). And that exception does not apply to “use,” “purchase,” or
“possession on the person” of the firearm. Id. § 76-10-503(7)(b). 8
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7 Elsewhere in the Code, the Legislature also carved out an
exception permitting a restricted person to “own” or “possess”
“archery equipment, including crossbows, for the purpose of lawful
hunting and lawful target shooting.” UTAH CODE § 76-10-512(2).
8 The Legislature enacted this specific defense against the
backdrop of the Code’s general defenses, which exonerate a broader
(continued . . .)
7
STATE v. SANDERS
Opinion of the Court
¶ 25 As noted above we do not view individual words, such as
“possess,” in isolation, but in the context of the section, chapter, and
code in which they are included. We also presume that the language
chosen by the Legislature is meaningful, and that “the expression of
one [term] should be interpreted as the exclusion of another.” State v.
Stewart, 2018 UT 24, ¶ 13, 438 P.3d 515 (alteration in original)
(citation omitted) (internal quotation marks omitted). Moreover, we
“will not infer substantive terms into the text that are not already
there. Rather, the interpretation must be based on the language used,
and [we have] no power to rewrite the statute to conform to an
intention not expressed.” I.M.L. v. State, 2002 UT 110, ¶ 25, 61 P.3d
1038 (alteration in original) (citation omitted) (internal quotation
marks omitted).
¶ 26 Sanders’s proposed innocent possession defense would
rewrite section 503 to permit a restricted person to “possess[] on
the[ir] person” a firearm, more than ten days after becoming a
restricted person, for transitory purposes, such as returning the
firearm to its lawful owner. For the reasons set forth above, we
presume that the Legislature considered when a restricted person
might possess a firearm and specified these circumstances in section
76-10-503(7) as well as in the Code’s general defenses.
¶ 27 In support of his position, however, Sanders points us to
the legislatively defined purposes of the Utah Criminal Code. As
Sanders points out, “Utah Code section 76-1-106 directs a court to
‘construe[] [criminal statutes] according to the fair import of their
terms to promote justice and to effect the objects of the law and
general purposes of [s]ection 76-1-104.’” (Quoting UTAH CODE § 76-1-
range of otherwise unlawful behavior. See UTAH CODE §§ 76-2-301
to -304, -305 to -308; id. §§ 76-2-401 to -407. None of the conduct
addressed in section 503 is unlawful if, e.g., the restricted person acts
under circumstances establishing compulsion, entrapment, or
justification. Id. §§ 76-2-302, -303, -401.
Sanders does not assert that the jury should have been instructed
on the general defense of justification, but he claims that an innocent
possession defense would be consistent with it. Even assuming that
an innocent possession defense would be “consistent” with the
general defense of justification, for the reasons discussed above, the
felon-in-possession statute does not leave room for us to use the
general defenses to imply a specific defense that the legislature did
not see fit to include.
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106.) Sanders also directs us to the statement that the Code shall be
construed to “safeguard conduct that is without fault from
condemnation as criminal.” UTAH CODE § 76-1-104(2).
¶ 28 And we sometimes resort to these principles when
addressing questions of statutory interpretation regarding the Utah
Criminal Code. See, e.g., State v. Perea, 2013 UT 68, ¶ 115, 322 P.3d 624(reasoning that sections 76-1-104 and 76-1-106 “make clear that a
sentencing court is to consider all the evidence before it—the totality
of the circumstances—in imposing a sentence that is proportionate to
the crime and the culpability of the defendant”).
¶ 29 But the Code’s general statements of purpose do not
support Sanders’s proposed innocent possession defense. To the
contrary, under the Code’s guidelines, we are obliged to construe
section 503 to “effect the objects of the law and general purposes of
[s]ection 76-1-104,” UTAH CODE § 76-1-106, which include
“forbid[ding] and prevent[ing] the commission of offenses” as the
legislature has defined them, id. § 76-1-104(1). As Sanders correctly
notes, we interpret the Code to safeguard conduct that is without
fault. See id. § 76-1-104(2). Whether the brief possession of a firearm
by a convicted felon is, generally speaking, conduct “without fault”
is a legislative judgment, and one the legislature has answered in the
negative. As a result, we do not conclude that the felon-in-possession
statute implicitly provides an innocent possession defense.
II. Our Case Law Does Not Require an
Innocent Possession Defense
¶ 30 Sanders next argues that two of our cases support the
conclusion that the felon-in-possession statute contains an implicit
innocent possession defense. Sanders first points to State v. Davis to
contend that we have already recognized an affirmative defense for a
restricted person who was “innocent[ly] handling” a weapon. 711
P.2d 232, 233 (Utah 1985) (per curiam). The State asserts that Davis
does not “support the broad innocent possession defense” Sanders
proposes and, even if it did, “this Court should overrule” Davis in
that respect. We agree with the State.
¶ 31 In Davis, the defendant contended that an additional jury
instruction should have been given regarding the definition of
“possess,” as that term is used in section 503. Davis, 711 P.2d at 233–
34. Davis had been convicted of unlawfully possessing a firearm in
violation of that provision, following the district court’s instruction
to the jury that: “possession, custody or control of a firearm [is] more
than the innocent handling of the weapon, but require[s] a willing
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STATE v. SANDERS
Opinion of the Court
and knowing possession with the intent to control its use or
management.” Id. at 233 (internal quotation marks omitted). On
appeal, neither Davis nor the State asserted this instruction was
erroneous. With respect to whether an additional instruction—
addressing the same topic—was required, we concluded it was not.
Id. at 233–34 (“Defendant’s requested additional paragraph to the
instruction was an unnecessary embellishment of an otherwise
adequate statement. It was not error for the trial court to decline its
inclusion in the instructions.”).
¶ 32 We reached that conclusion in a quaint two-page per
curiam opinion. 9 Along the way, we commented that we “s[aw] no
error in the jury instruction . . . explaining the intent and conduct
necessary to sustain a finding of possession by defendant.” Id. at 233.
The instruction did “not create confusion or misunderstanding as to
the statutory elements or mens rea of the crime.” Id. (Emphasis
omitted). And it allowed Davis to argue his theory that he only
“innocent[ly] handl[ed]” the weapon. Id.
¶ 33 Sanders reads our opinion as endorsing Davis’s argument
that he could not be convicted if he innocently handled the firearm.
We are not persuaded, however, that it is the correct reading of Davis
nor that Davis dictates our resolution of this matter.
¶ 34 As an initial matter, it appears the question of an innocent
possession affirmative defense was never squarely presented to us.
Davis did not hold that Utah law recognized an innocent possession
defense. Rather, it reasoned that the jury instruction was not
erroneous because it properly “explain[ed] the intent and conduct
necessary to sustain a finding of possession.” Id. Davis observed that
the instruction did “not create confusion or misunderstanding as to
the statutory elements or mens rea of the crime” and noted that it
“allowed defendant to argue his theory of the case that his was only
an ‘innocent handling of the weapon,’” meaning that he did not have
an “intent to control its use or management.” Id. (Emphasis omitted).
Therefore, Davis does not establish any precedent with respect to an
innocent possession affirmative defense.
¶ 35 Even assuming that Davis speaks to the issue, the
precedential value of such a holding would be minimal and makes
this portion of Davis susceptible to being overruled under the rubric
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9 Brevity may be the soul of wit, but it is anathema to our more
recent practice.
10
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that Eldridge v. Johndrow, 2015 UT 21, 345 P.3d 553, outlines for
revisiting our precedents. And the State has shouldered its burden of
demonstrating that the portion of Davis that could be read to speak
to the innocent possession defense should be overturned.
¶ 36 “Because stare decisis is so important to the predictability
and fairness of a common law system, we do not overrule our
precedents ‘lightly.’” Eldridge, 2015 UT 21, ¶ 21 (citation omitted).
“However, our presumption against overruling precedent is not
equally strong in all cases.” Id. ¶ 22. This court has “identified two
broad factors that distinguish between weighty precedent and less
weighty ones.” Id. Those factors are “(1) the persuasiveness of the
authority and reasoning on which the precedent was originally
based, and (2) how firmly the precedent has become established in
the law since it was handed down.” Id. The State contends that we
should overrule Davis under the Eldridge factors. We agree. To the
extent that Davis established precedent for an innocent possession
affirmative defense, we overrule it.
¶ 37 “The first factor in determining how much deference a
precedent should be afforded is the persuasiveness of the authority
and reasoning on which the precedent is based.” Id. ¶ 24. As the
State argues, Davis’s analysis does not inspire much respect. In
reaching our conclusion, we remarked on the law regarding
possession, but we never referenced section 503’s text, parsed the
Utah Criminal Code’s general definition of “possess,” see UTAH CODE
§ 76-1-601(10), or analyzed whether the plain language left room for
an affirmative defense. We did not even nod at the cases from other
jurisdictions that have wrestled with the topic. Simply stated, if
Davis recognized an innocent possession defense, it appears to have
done so accidentally.
¶ 38 Even when we acknowledge that our reasoning is weak, or
that we would decide a case differently if we were writing on a
tabula rasa, we are still hesitant to overrule precedent if it has
become “firmly established in Utah law.” Eldridge, 2015 UT 21, ¶ 33.
That is not the case here. To determine if an opinion has been firmly
established as precedent, we consider a wide variety of factors
“including the age of the precedent, how well it has worked in
practice, its consistency with other legal principles, and the extent to
which people’s reliance on the precedent would create injustice or
hardship if it were overturned.” Id. ¶ 22.
¶ 39 The State argues that even though we decided Davis thirty-
three years ago, it has never been cited in a written opinion for the
proposition that the felon-in-possession statute permits an innocent
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STATE v. SANDERS
Opinion of the Court
possession defense. Rather, Davis is typically cited for the
proposition that a defendant’s intent or state of mind can be proven
by inferences based on his conduct and the surrounding
circumstances. 10 See, e.g., State v. Garcia-Mejia, 2017 UT App 129, ¶ 30,
402 P.3d 82.
¶ 40 Moreover, Davis did not rely on any “precursors in Utah
law,” see Eldridge, 2015 UT 21, ¶ 34, with respect to an innocent
possession defense, see Davis, 711 P.2d at 233–34. As noted above, we
made no effort to tie Davis to the debate in other jurisdictions about
an innocent possession defense. And none of the cases we cite in
Davis spoke to the creation of an affirmative defense. Id. at 233.
¶ 41 Finally, in deciding whether to overturn precedent, we
consider whether doing so would “undermine the public’s
substantial reliance upon an established legal principle.” Eldridge,
2015 UT 21, ¶ 35 (citation omitted). However, when “a doctrine has
not been necessary to the outcome of many cases, it is unlikely that
the public has relied on it in any substantial way.” Id. ¶ 36. Such is
the case here.
¶ 42 The Eldridge factors thus weigh in favor of overruling that
portion of Davis. Therefore, to the extent that Davis can be read to
establish an innocent possession affirmative defense, we overrule it.
¶ 43 Sanders’s next argument presents a more compelling, if
ultimately unavailing, theory. Sanders contends that because we
found that the Controlled Substances Act (Act), UTAH CODE §§ 58-37-
1 et seq., contained an implicit innocent possession defense, State v.
Miller, 2008 UT 61, 193 P.3d 92, we should find one here. And
Sanders has something of a point—the cases present similar
questions of statutory construction and, without further inquiry, we
might expect to reach the same result here as we did in Miller.
¶ 44 We nevertheless conclude that Miller does not control the
outcome in this case. Important textual differences preclude our
reaching the same result with respect to both statutes. And we
recognize that Miller addressed a question relating specifically to the
possession of controlled substances, and we see no compelling
reason to extend Miller’s reasoning to the felon-in-possession statute.
¶ 45 In Miller, the defendant was convicted of possessing a
controlled substance in violation of the Act. 2008 UT 61, ¶ 1. He
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10 A holding that remains untouched by this opinion.
12
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appealed, arguing that the jury should have been instructed on his
proposed defense of innocent possession. Id. We examined the
definition of “possess” that applied to the Act, see id. ¶ 19 n.14 (citing
UTAH CODE § 58-37-2(1)(ii)), and concluded that its broad terms did
not “clarify whether the term ‘possess[]’ . . . includes . . . temporary
possession for the purpose of returning a controlled substance to its
lawful owner,” id. ¶ 19. In other words, we found no language in the
Act directly addressing the question of temporary or transitory
possession.
¶ 46 Seeking further guidance, we noted our responsibility
under the Utah Criminal Code to construe provisions “according to
the fair import of their terms to promote justice” and to “safeguard
conduct that is without fault from condemnation.” Id. ¶ 20
(emphases omitted) (quoting UTAH CODE §§ 76-1-104, -106). We then
recited a number of scenarios in which we could see the Act
sweeping in “conduct that is without fault.” Id. ¶¶ 20–21. For
example, we hypothesized about a “daughter who no longer lives at
home but who picks up her sick mother’s prescription medication
and drives it to her mother’s home,” and a “house guest who
inadvertently leaves a prescription bottle of pills” in a friend’s house,
creating a situation in which the friend “could do nothing short of
immediately fleeing her home to avoid ‘possessing’ the pills.” Id.
¶ 21. In light of “a myriad of absurd prosecutorial possibilities,” we
concluded that the Act implicitly included an innocent possession
defense. Id.
¶ 47 As noted above, the similarities between the Act and the
felon-in-possession statute could tempt us to simply apply Miller’s
reasoning here. But our task is not that simple—we must interpret
section 503 as the legislature intended. To do so, we construe the
statute according to its plain language, giving meaning to its terms
and reading those terms in context. Ultimately, the differences in the
statutes prove more powerful than their commonalities.
¶ 48 In Miller, we lacked any indication that the legislature had
considered temporary or transitory possession of a controlled
substance for purposes of, e.g., delivering the substance to its lawful
owner. Accordingly, we examined the possible consequences of such
a rule and concluded that the legislature would not have intended to
criminalize that conduct. Id. ¶ 21. Thus, for purposes of the Act, we
construed the definition of “possess[]” in section 58-37-2(1)(ii) as
“exclud[ing] temporary possession of a controlled substance for the
purpose of returning it to its lawful owner.” Id. ¶¶ 19 & n. 14, 24.
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Opinion of the Court
¶ 49 Here, we address a similar question but in the context of a
different statutory scheme. And with respect to legislative intent, we
have guidance that we lacked in Miller. The legislature’s textually
expressed judgment that temporary or transitory possession of a
firearm by a restricted person is not generally a lawful activity must
govern our interpretation. See UTAH CODE § 76-10-503(7).
Accordingly, we are not at liberty to alter that background rule and
imply a defense under which temporary or transitory possession is,
generally, lawful. While the legislature could have excused
temporary possession of firearms by restricted persons, in the way
we concluded it had when dealing with the temporary possession of
controlled substances by members of the general public, the
legislature did not.
¶ 50 Relying in part on Miller, Sanders points to two related
canons of construction and argues that their application supports his
reading of section 503. Both deal with absurd results. Under the first,
“when the statutory language plausibly presents the court with two
alternative readings, [this court] prefer[s] the reading that avoids
absurd results.” State ex rel. Z.C., 2007 UT 54, ¶ 15 n.5, 165 P.3d 1206.
Under the second, “a court should not follow the literal language of
a statute if its plain meaning works an absurd result.” Id. ¶ 11
(citation omitted) (internal quotation marks omitted). The second
canon demands a stronger showing of absurdity, given “the level of
caution required when this court interprets a statute contrary to its
plain meaning.” See id. ¶ 15 n.5. Sanders’s briefing does not delineate
between the two, and we interpret it as raising both points.
¶ 51 Sanders argues that the criminalization of transitory
possession, as outlined in his proposed instruction, would be
“absurd,” and he cites the example of his own conviction as
“demonstrat[ing] the injustice that may result from strictly
construing the term ‘possess.’” Sanders characterizes his own
conduct as “innocently handl[ing] the weapon temporarily” “to
place the rifle out of the reach of passersby, particularly children in
the adjacent schoolyard,” “until he could return the firearm to M.M.”
His argument fails, however, because he has not demonstrated that a
legislative policy barring convicted felons from temporarily
possessing firearms would be absurd. Or that the application of that
policy to him, under the circumstances presented here, yielded an
absurd result. As the State asserts, the legislature could reasonably
have intended to criminalize Sanders’s conduct, as well as
temporary or transitory possession of a firearm by a convicted felon
generally.
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¶ 52 We have recognized the dangers the legislature sought to
criminalize in the felon-in-possession statute. 11 In State v. Willis, we
reasoned that the legislature was able to “regulat[e] the potentially
deadly privilege of firearm possession by convicted felons.” 2004 UT
93, ¶ 6, 100 P.3d 1218. In State v. Nielsen, we said that the purpose of
section 76-10-503 “was to deter those convicted of violent crimes
from thereafter having guns, loaded or unloaded.” 544 P.2d 489, 490
(Utah 1975). While the legislature has since broadened the statute to
deter all felons—not just those convicted of violent crimes—this
policy choice remains the same.
¶ 53 With respect to brief possession of a firearm, the legislature
could rationally have concluded that permitting an exception for
temporary or transitory possession would run afoul of section 503’s
legislative purpose. And, therefore, prohibited restricted persons
from possessing firearms, even briefly. Drawing the line in that
manner, the legislature provides a bright demarcation between legal
and illegal conduct. This bright line is particularly helpful here,
since, as the State argues, “Utah’s statutory scheme reflects the
legislature’s recognition that ‘danger may arise quickly.’” (Quoting
United States v. Johnson, 459 F.3d 990, 998 (9th Cir. 2006).) This bright
line also prevents trials from focusing on the felon’s rationale for
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11 Other jurisdictions have recognized these risks as well. The
Ninth Circuit Court of Appeals has opined that the federal felon-
in-possession statute reflects a congressional awareness that “danger
may arise quickly” once a gun is in a felon’s hands. United States v.
Johnson, 459 F.3d 990, 998 (9th Cir. 2006). An individual “need only
pull the trigger, an act which can be completed in a split second and
which is controlled and influenced by nothing more than the
defendant’s whim.” United States v. Matthews, 520 F.3d 806, 809 (7th
Cir. 2008) (citation omitted) (internal quotation marks omitted).
“Neither the language of the [federal] felon-in-possession statute,
nor its evident purpose, encourage the court to develop defenses that
leave much room for benign transitory possession. The statute bans
possession outright without regard to how great a danger exists of
misuse in the particular case.” United States v. Teemer, 394 F.3d 59, 64
(1st Cir. 2005). “The very structure of the Gun Control Act
demonstrates that Congress . . . sought broadly to keep firearms
away from the persons Congress classified as potentially
irresponsible and dangerous. These persons are comprehensively
barred by the Act from acquiring firearms by any means.” Barrett v.
United State, 423 U.S. 212, 218 (1976).
15
STATE v. SANDERS
Opinion of the Court
possessing a gun he is forbidden from possessing. Accordingly, we
cannot say that it was absurd for the legislature to enact a law that
required Sanders to find some other way of getting the firearm into
the house.
¶ 54 That is not to say that Sanders’s argument is completely
devoid of merit. It is not difficult to conceive of factual scenarios
where the lack of an innocent possession defense might lead to an
absurd result. For example, if a felon dispossessed a toddler of a
loaded gun, and immediately placed the gun out of harm’s way, we
might conclude that a conviction for that behavior would be
absurd. 12 But that is not the case before us. 13
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12 In this regard, there seems to be an interesting interaction
between the absurd results doctrine and the common law defense of
necessity. Although Utah criminal law is wholly statutory and there
are no longer common law defenses to statutory crimes, see UTAH
CODE § 76-1-103, at first blush it appears that many of the instances
in which we can envision a court concluding that a conviction under
the felon-in-possession statute would be absurd would be those in
which a jury applying the common law defense might have found
that the defendant’s actions were necessary.
The necessity defense applied where a person was confronted
with a “choice of two evils: either he may violate the literal terms of
the criminal law and thus produce a harmful result, or he may
comply with those terms and thus produce a greater . . . amount of
harm.” 2 WAYNE R. LAFAVE, SUBST. CRIM. L. § 10.1 (3d ed. 2018). The
public policy underlying the necessity defense is that “the law ought
to promote the achievement of higher values at the expense of lesser
values, and sometimes the greater good for society will be
accomplished by violating the literal language of the criminal law.”
Id. § 10.1(a). The necessity defense is narrow, however, and it fails “if
there was a reasonable, legal alternative to violating the law.” State v.
Tuttle, 730 P.2d 630, 635 (Utah 1986) (quoting United States v. Bailey,
444 U.S. 394, 410 (1980)). The necessity defense therefore requires
that the defendant (1) acted with the intent to avoid the greater
harm, (2) honestly and reasonably believed that the act was
necessary to avoid the greater harm, (3) no alternative course of
action existed to avoid the imminent harm, (4) successfully avoided
the greater harm, and (5) was not personally at fault in creating the
situation that led to the imminent harm. See 2 SUBST. CRIM. L.
§ 10.1(d)(1)–(6).
(continued . . .)
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¶ 55 Here, the legislature could have rationally intended to
criminalize Sanders’s conduct. His retrieval of the rifle from the
backyard was not reasonably necessary to avoid an imminent
greater harm; the firearm was in a fenced backyard on a Friday
night. Thus, we cannot conclude that a reasonable legislature could
not have intended for this statute to apply to Sanders, and
application of the statute to Sanders does not lead to an absurd
result.
CONCLUSION
¶ 56 We find no innocent possession defense explicitly or
implicitly in Utah Code section 76-10-503. Our case law does not
require us to recognize an implicit innocent possession defense in
this statute. And Sanders’s conviction does not yield an absurd
result. We affirm the conviction.
Because the question is not presented to us in these terms, and
because we conclude that Sanders’s conviction is one that a rational
legislature could have intended, we offer no opinion on the topic.
But it appears that common law necessity could, in an appropriate
case, inform an absurd results analysis.
13 In other words, we can envision hypothetical circumstances
involving possession of a firearm that the legislature would not have
intended to criminalize, but they fall into a much narrower category
than Sanders’s proposed instruction. And we anticipate that, when
those cases arise, they may be addressed through the absurd results
doctrine.
17