2009 UT App 226, ¶ 18 (referring to a defense of
habitation argument as a “justification defense”); Salt Lake City v.
Hendricks, 2002 UT App 47U, para. 2 (referring to the language in
the defense of habitation statute as “appropriate for an
affirmative defense”); State v. Moritzsky,
771 P.2d 688, 691 n.2
(Utah Ct. App. 1989) (identifying what a defendant relying on
the defense of habitation statute must do “*t+o mount a
successful affirmative defense of this sort”).
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State v. Karr
entry is attempted or made for the purpose of
assaulting or offering personal violence to any
person, dwelling, or being in the habitation and he
reasonably believes that the force is necessary to
prevent the assault or offer of personal violence; or
(b) he reasonably believes that the entry is
made or attempted for the purpose of committing a
felony in the habitation and that the force is
necessary to prevent the commission of the felony.
(2) The person using force or deadly force in
defense of habitation is presumed for the purpose
of both civil and criminal cases to have acted
reasonably and had a reasonable fear of imminent
peril of death or serious bodily injury if the entry
or attempted entry is unlawful and is made or
attempted by use of force, or in a violent and
tumultuous manner, or surreptitiously or by
stealth, or for the purpose of committing a felony.
Utah Code Ann. § 76-2-405 (LexisNexis 2012).
¶7 This court has explained that “*w+hile not a model of
clarity”—subsection (1) of the statute “speaks of reasonable
beliefs and subsection (2) of reasonable action and reasonable
fear—the thrust of subsection (2) is to vest persons who defend
their habitation under circumstances described in subsection (1)
with the presumption that their beliefs and actions were
reasonable.” State v. Moritzsky,
771 P.2d 688, 691 (Utah Ct. App.
1989).
¶8 Two of the jury instructions provided at Karr’s trial
mirror the statutory language; Instruction 34 recites subsection
(1) of the statute, and Instruction 35 recites subsection (2).
Following those two instructions is Instruction 36, which reads,
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However, even though the defendant is entitled to
the presumption that his actions were
reasonable,[5] the state may rebut that presumption
by showing either that the entry was not made for
the purposes of assaulting or offering personal
violence to any person in the residence or for the
purpose of committing a felony, or by showing that
the defendant’s actions were not reasonable or
necessary. . . .
¶9 Karr argues that Instruction 36 “significantly undermined
the presumption of reasonableness *he+ was entitled to under”
subsection (2) of the statute. According to Karr,
Instruction 36 told the jury to find [him] guilty if
the prosecution proved any one of the following
four facts: (1) *Victim’s+ entry was not made for the
purpose of assaulting or offering personal violence
to any person in the residence; or (2) *Victim’s+
entry was not made for the purpose of committing
a felony; or (3) *Karr’s+ actions were not reasonable;
or (4) *Karr’s+ actions were not necessary.
¶10 Karr acknowledges that the State is entitled to rebut the
presumption of reasonableness contained in the statute but
argues that the State must do so exclusively by showing that
Karr’s belief that he needed to use deadly force to prevent the
entry was unreasonable. According to Karr, a showing that
Victim’s entry was lawful rebuts the availability of the defense
5. Instruction 37 adds, “In the context of defense of habitation,
the facts and circumstances constituting reasonableness must be
judged not from the actor’s subjective viewpoint, but rather from
the viewpoint of a person of ordinary care and prudence in the
same or similar circumstances.”
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State v. Karr
as a whole, not the presumption of reasonableness a defendant is
entitled to once the unlawfulness of the entry is supported by the
evidence. Karr’s argument implies that once a fact like the
unlawfulness of the entry is supported by the evidence, thereby
“triggering” the availability of the defense and the presumption
of reasonableness contained therein, that fact cannot be rebutted.
¶11 We disagree with Karr’s interpretation of the defense of
habitation statute. “When we interpret statutes, unless a statute
is ambiguous, we look exclusively to a statute’s plain language
to ascertain the statute’s meaning.” Prince v. Bear River Mut. Ins.
Co.,
2002 UT 68, ¶ 21,
56 P.3d 524. The defense of habitation
statute indicates that the presumption is available if two
conditions are met: (1) the victim’s entry was unlawful and (2)
the victim’s entry was “made or attempted by use of force, or in
a violent and tumultuous manner, or surreptitiously or by
stealth, or for the purpose of committing a felony.” See
Utah
Code Ann. § 76-2-405(2) (LexisNexis 2012); Moritzsky,
771 P.2d at
692. Thus, once the presumption applies, the State may defeat it
by refuting the defendant’s evidence that either of the two
presumption-creating elements exist, i.e., by showing that
the entry was (1) lawful or (2) not made with force, violence,
stealth, or felonious purpose. See
Utah Code Ann. § 76-2-405(2).
Our case law also provides that once the presumption is
triggered, the State may rebut it by proving “that in fact
defendant’s beliefs and actions under subsection (1) were not
reasonable.”6 Moritzsky,
771 P.2d at 691; see also
Utah Code Ann.
§ 76-2-405(1)(a)–(b) (describing the defendant’s beliefs and
actions under subsection (1) as pertaining to whether “the entry
[was] attempted or made for the purpose of assaulting or
offering personal violence to any person, dwelling, or being in
6. This refutes Karr’s argument that the “beliefs” at issue in
subsection (2) of the statute are not the same as those referenced
in subsection (1).
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State v. Karr
the habitation”; whether “the entry [was] made or attempted for
the purpose of committing a felony in the habitation”; and
whether force was necessary to prevent the unlawful entry,
assault, offer of violence, or commission of a felony). Thus, we
reject Karr’s argument that the only means by which the State
could rebut the presumption was by showing that Karr’s beliefs
were not reasonable.
¶12 Moreover, the method the State used to rebut the
presumption was to show that Karr’s beliefs and actions were
unreasonable—precisely the method Karr argues the State was
required to use. The State focused on evidence indicating that
Victim was neither inside the house nor attempting to reenter at
the time of the stabbing and that Victim’s intent in remaining by
the entryway was to get his alcohol back. Indeed, Karr
recognized in his opening brief that evidence showing that
Victim’s entry was, in fact, not “attempted or made for the
purpose of assaulting” anyone in the home, see
Utah Code Ann.
§ 76-2-405(1)(a), “might be relevant to deciding whether *his+
belief was reasonable.” (Emphasis omitted.) As the State asserted
in closing argument, Karr’s use of deadly defensive force “has to
be only to the extent that is necessary to stop [Victim] from
coming back in the house, . . . not just to get his alcohol, but from
coming back in the house to fight, beat up, cause a felony, to do
something.” The State acknowledged that Victim may have
acted inappropriately during the party but argued that Victim’s
“actions are not on trial” and that Victim’s alleged threats of
future harm do not provide a reasonable basis to use deadly
force. The prosecutor stated, “You can’t kill people because you
think they’re going to do something in the future. You can’t kill
people because of what they did [earlier], no matter how bad it
was.”
¶13 In closing argument, the prosecutor also pointed out that
several eyewitnesses testified that the fight occurred outside the
house and that any blood found inside the house could have
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State v. Karr
been tracked inside from other partygoers’ feet; that various
eyewitnesses testified about Victim’s desire to get his alcohol
before leaving; that Victim was unarmed; and that Victim did
not throw the proverbial “first punch” or even try to fight back.
Additionally, although it is undisputed that Victim was
behaving “obnoxiously” and “belligerently,” the record
contained evidence that Brother had Victim restrained in a
headlock on the front porch before and while Karr stabbed him
repeatedly. In other words, because the evidence indicated that
Victim was already outside the home and restrained prior to
Karr’s use of deadly force, it follows that Victim was neither
attempting to reenter the home nor attempting to commit an
assault in the home prior to Karr’s use of deadly force, rendering
unreasonable Karr’s fear of imminent peril and his belief that
deadly force was necessary.
II. Instruction 36 Contains Harmless Errors.
¶14 Instruction 36 explains that the State can rebut the
presumption by showing either (1) that Victim’s entry or
attempted entry was not made for purposes of assaulting or
committing a felony or (2) that Karr’s actions were unreasonable
or unnecessary. Instruction 36’s focus on the purpose of Victim’s
entry does not track the statute or case law applying it. But
whether the victim entered the home for the purpose of
assaulting someone or committing a felony is relevant to the
reasonableness of the defendant’s fears and beliefs at the time of
the victim’s entry. See
Utah Code Ann. § 76-2-405(1)(a)–(b).
Nonetheless, whether Karr believed that Victim entered or
attempted to enter his home for the purpose of committing a
felony, rather than an assault, was not at issue in this case. See
Green v. Louder,
2001 UT 62, ¶ 17,
29 P.3d 638 (ruling that a trial
court errs when giving a jury instruction that is “inconsistent
with the evidence presented at trial”). Additionally, Instruction
36 focused only on the reasonableness of Karr’s action, when it
should have directed the jury to consider Karr’s “beliefs and
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State v. Karr
actions.” See State v. Moritzsky,
771 P.2d 688, 691 (Utah Ct. App.
1989) (emphasis added). For these reasons, we consider
Instruction 36 to be technically incorrect.
¶15 Nonetheless, “[o]nly harmful and prejudicial errors
constitute grounds for granting a new trial.” See State v. Young,
853 P.2d 327, 347 (Utah 1993). The errors here are harmless. The
State did not rely on the “committing a felony” language, see
State v. DeAlo,
748 P.2d 194, 198 (Utah Ct. App. 1987) (ruling that
the erroneous inclusion of a “superfluous” jury instruction was
“harmless”), and we are not convinced that the omission of the
words “and beliefs” in Instruction 36 had an effect on the
outcome of the trial where the State sought to rebut the
presumption by showing that both Karr’s beliefs and actions
were not reasonable. See supra ¶¶ 12–13; see also Green,
2001 UT
62, ¶ 17 (explaining that an error in a jury instruction is harmless
if “we are not convinced that without this instruction the jury
would have reached a different result”).
¶16 In sum, although Instruction 36 could have been clearer,
we reject Karr’s claims of error in the instruction and are not
convinced that any errors in the instruction were prejudicial. See
State v. Campos,
2013 UT App 213, ¶ 64,
309 P.3d 1160 (“*I+f taken
as a whole they fairly instruct the jury on the law applicable to
the case, the fact that one of the instructions, standing alone, is
not as accurate as it might have been is not reversible error.”
(alteration in original) (citation and internal quotation marks
omitted)). Accordingly, the trial court did not err when it gave
the jury Instruction 36.7
7. Because we have determined that only one error occurred
below—that Instruction 36 erroneously, but harmlessly,
contained the “committing a felony” language and omitted the
words “and beliefs”—we necessarily reject Karr’s cumulative
error argument. See generally State v. Dunn,
850 P.2d 1201, 1229
(continued<)
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State v. Karr
CONCLUSION
¶17 Instruction 36 did not undermine Karr’s entitlement to the
presumption of reasonableness provided by subsection (2) of the
defense of habitation statute. Accordingly, the instruction did
not prejudice Karr. We affirm Karr’s convictions.
VOROS, Judge (concurring):
¶18 I concur in the result. I agree with the majority that, on the
facts before the jury, the instructional errors were harmless. I
write to urge the legislature to consider clarifying the defense-of-
habitation statute and in particular its presumption of
reasonableness. See
Utah Code Ann. § 76-2-405 (LexisNexis
2012).
¶19 Subsection (1) of section 405 defines the defense of
habitation. It consists of a single sentence of 157 words. The
subsection’s proviso specifies when deadly force may be used in
defense of one’s habitation. Such force may be used in either of
two circumstances. See
id. § 76-2-405(1)(a) & (b).
¶20 The first circumstance occurs when three elements are all
present. See id. § 76-2-405(1)(a). The first element includes three
alternative sub-elements (“the entry is made or attempted in a
violent and tumultuous manner, surreptitiously, or by stealth”).
Id. The second element contains two alternative sub-elements,
each of which includes two alternative sub-sub-elements (the
defendant reasonably believes that the entry is either “attempted
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State v. Karr
or made” for either “assaulting or offering personal violence to
any person . . . dwelling . . . or being in the habitation”).
Id. The
third element requires only a single showing (“the force is
necessary to prevent the assault or offer of personal violence”).
Id.
¶21 The second circumstance occurs when two elements are
both present. See
id. § 76-2-405(1)(b). The first element includes
two alternative sub-elements (“the entry is made or attempted
for the purpose of committing a felony in the habitation”). Id.
The second element requires a single showing (the defendant
reasonably believes “that the force is necessary to prevent the
commission of the felony”).
¶22 The complexity of subsection 405(1) renders the
defense of habitation difficult to apply in practice. By my
calculation, subsection 405(1)’s one sentence creates 24 possible
permutations for establishing the defense of habitation.
¶23 Subsection 405(2)’s presumption of reasonableness further
complicates the analysis. See
Utah Code Ann. § 76-5-405(2)
(LexisNexis 2012). That subsection lists five facts that, if
established, trigger the rebuttable presumption of two facts: (1)
that the actor “acted reasonably” and (2) that the actor “had a
reasonable fear of imminent peril of death or serious bodily
injury” (the presumed facts).
Id. The first presumed fact roughly
correlates to the elements of the defense of habitation in
subsection (1), which requires that the defendant acted while
“reasonably believing” certain things. But it does not track the
text of the defense of habitation as defined in subsection (1).
¶24 Similarly, the second presumed fact loosely correlates to
certain elements of the defense of habitation, such as whether the
defendant “reasonably believes” the victim entered for the
purpose of “offering personal violence to any person” (whatever
that means). But again, it does not track the text of any element
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State v. Karr
of the defense of habitation and in fact seems aimed at
establishing an element of the related—but nevertheless
distinct—defense-of-person statute. See
id. § 76-2-402(1)(b) (“A
person is justified in using force intended or likely to cause death
or serious bodily injury only if the person reasonably believes
that force is necessary to prevent death or serious bodily injury
to the person or a third person as a result of another person's
imminent use of unlawful force, or to prevent the commission of
a forcible felony.”).
¶25 In short, subsection 405(1) creates a complex matrix of
elements necessary to establish the defense of habitation, and
subsection 405(2) creates a presumption that permits certain facts
to be presumed. But the presumed facts only approximate, not
duplicate, elements of the defense of habitation. For these
reasons, I urge the legislature to consider amending this section
to the extent it deems appropriate.
¶26 Of course, while legislatures enact statutes, courts apply
them in live cases, and we have one before us. Like the majority,
I believe the appeal turns on prejudice. Karr explicates well the
flaws in Instruction 36—flaws that (I believe) derive from the
defense-of-habitation statute’s complexity as catalogued above.
That said, Instruction 36 instructed the jury that “defendant is
entitled to the presumption that his actions were reasonable.”
It then described how the prosecution could rebut that
presumption. That description was, as Karr contends, wrong. I
agree with Karr’s contention that “to rebut the presumption of
reasonableness under § 76-2-405(2), the prosecution must show
that it was unreasonable for the defendant to believe that deadly
force was necessary.”
¶27 For reasons explained in the majority opinion,
demonstrated in the State’s brief, and apparent on the record, I
conclude that the prosecution did show, beyond a reasonable
doubt, that Karr could not have reasonably believed that deadly
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State v. Karr
force was necessary here. Uncontroverted trial testimony
established that Victim, after partying for some time, stepped
out momentarily then stepped back inside to retrieve some
liquor; that Karr quarreled with Victim, who was drunk; that
Karr stabbed Victim outside on the porch; that Karr stabbed
Victim, who was unarmed, seven times; that Brother restrained
Victim during the stabbing; and that Victim did not resist. In
contrast, Karr’s own version of events, as reported to police,
evolved over time. First he said he was not present at the house
where the stabbing occurred; then that he acted in defense of
Brother; then that Victim attacked him with a knife; and finally
that when he saw Victim go for Brother, he “snapped.”
¶28 On this record, the instructional errors do not undermine
my confidence in the jury’s verdict. I accordingly concur in the
result.
ROTH, Judge (concurring):
¶29 I concur in the lead opinion. In addition, I join Judge
Voros in “urg*ing+ the legislature to consider clarifying the
defense-of-habitation statute and in particular the presumption
of reasonableness.” See supra ¶ 18. I do so for the reasons he has
cogently stated in his concurrence.
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