State v. Thompson

2017 UT App 183THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BILL ROBERT THOMPSON,
Appellant.
Opinion
No. 20150721-CA
Filed September 28, 2017
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 141400758
Teresa L. Welch, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and DIANA HAGEN concurred. 1
TOOMEY, Judge:
¶1 Bill Robert Thompson was intoxicated and enraged when
he assaulted and threatened people at his house, then got behind
the wheel of his full-sized pickup truck and sped away. He
eventually ran a red light, hitting seven other vehicles, injuring
several people and killing another. He was convicted of a
number of crimes and appeals some of those convictions on two
1. After hearing the arguments in this case, Judge J. Frederic
Voros Jr. retired and did not participate in the consideration of
the case. Judge Diana Hagen, having reviewed the briefs and
listened to a recording of the oral arguments, substituted for
Judge Voros and participated fully in this decision.
State v. Thompson
grounds: first, he contends that the trial court erred in permitting
the introduction of what he characterizes as irrelevant and
prejudicial evidence against him, and second, he argues that the
evidence was insufficient to support his conviction for first
degree murder. 2 We affirm.
BACKGROUND
¶2 Thompson was sound asleep in bed early one evening
when his wife (Wife) wakened him by spraying water on him. 3
Wife was distressed after discovering “inappropriate” and
“extremely flirty” text messages on Thompson’s phone. And
because she found vomit on the bedsheets, she suspected that he
had been drinking alcohol. Initially, she attempted to waken
Thompson by shaking him but resorted to spraying him with
water when he remained unresponsive.
¶3 Thompson woke up angry and agitated. The couple
argued about the text messages, then quarreled about
Thompson’s alcohol consumption. As the argument continued, a
friend (Friend) who was staying with them emerged from the
basement and saw Wife holding the couple’s three-year-old son
(Son). Wife told Friend that Thompson had “been drinking” and
was “drunk again.” Wife put down Son, and Friend picked him
up as Thompson chased Wife around the kitchen table.
Thompson pointed at Friend, looked at Wife, and said, “You
2. Thompson was convicted of first degree murder under a
theory of depraved indifference. See Utah Code Ann. § 76-5-
203(2)(c) (LexisNexis 2012).
3. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal
quotation marks omitted).
20150721-CA 2 2017 UT App 183State v. Thompson
don’t think I’ll fucking hit her?” Thompson then “smacked”
Friend and “bloodied [her] nose.” He hit her head “four or five
times” as she continued to hold Son.
¶4 Wife ran out of the house, and Thompson chased her.
Friend also raced outside, still carrying Son, and was attempting
to get to a neighbor’s house when Thompson grabbed her arm
and spun her around, causing her to fall to the ground. As
Friend shielded Son’s head, Thompson repeatedly hit her head
until she broke free and ran toward a neighbor’s house.
¶5 As Friend fled, a man, J.P., approached Thompson to
inquire about what had happened. 4 Thompson directed his
attention toward J.P., “angrily shouting” at him and repeatedly
yelling, “[W]ho are you?” He pushed J.P. and punched him in
the face, prompting J.P. to wrestle Thompson to the ground. As
the men struggled, Thompson called J.P. names and threatened
him: “[Y]ou’re a little bitch, you’re a little bitch, and I’m going to
kick your ass, you little bitch.” J.P. smelled alcohol on
Thompson, and Thompson’s speech was slurred. Several
neighbors eventually intervened to separate them. One of the
neighbors called 911, and Thompson told her, “Snitches get
stitches you fucking pu[ta].”
¶6 Thompson returned to his own house and got into his
truck, saying to the neighbors, “You’re going to fucking die.”
Thompson drove away at high speed, “fishtailing” the truck,
making its tires squeal, and sending “black smoke” pouring out
of the exhaust pipe as he accelerated down the street. On his way
out of the neighborhood, Thompson noticed a stop sign and at
the last second “slammed on the brakes,” and then continued on.
¶7 He drove onto the freeway, where he encountered two
teenage girls, K.R. and S.B., in a small car. They noticed
4. J.P. was visiting his mother, who lived near Thompson.
20150721-CA 3 2017 UT App 183State v. Thompson
Thompson driving in the emergency lane, avoiding rush-hour
traffic. K.R. and S.B. exited the freeway, lost their way, and then
found themselves on a frontage road traveling behind
Thompson’s truck. K.R., who was at the wheel, thought
Thompson was intoxicated because his driving was “kind of
crazy” and his speed varied. S.B. observed the truck “drift into”
oncoming traffic, causing an oncoming car to swerve out of the
way, and nearly hitting another.
¶8 Still following Thompson’s truck on the frontage road, the
teenagers reached a dead end with a cul-de-sac that allowed
vehicles to turn around. K.R. pulled to the side of the road while
Thompson maneuvered his truck. He turned it toward the girls’
car, which had suddenly stalled. They called 911 as Thompson
and his truck accelerated in their direction, then slowed and
“bumped” their car, leaving “a couple of little dents.” Thompson
backed up, then hit the car again, “laughing in amusement,”
before he sped away “recklessly and fast.” Moments later, the
girls heard a loud crashing noise. Shortly thereafter, K.R.’s
parents picked them up, and as they drove by the intersection of
12300 South and Lone Peak Parkway, the girls observed a multi-
car accident and saw Thompson’s truck in the wreckage.
¶9 After Thompson left the cul-de-sac, he continued to drive
erratically and “really fast,” and he was “increasing his speed.”
Moments later, Thompson negotiated a nearly 90-degree curve
in the road at freeway speed and headed toward a busy
intersection. As Thompson approached the intersection at 12300
South and Lone Peak Parkway, he continued to accelerate
despite having a red light in his direction.
¶10 Video footage from a nearby gas station showed that the
traffic light had been red for 29 seconds before Thompson’s
truck went through the intersection, and another 78 seconds
elapsed before it turned green. An inspection of the airbag
control modules from Thompson’s truck, which convey
20150721-CA 4 2017 UT App 183State v. Thompson
information about the truck’s “throttle, RPM, brake switch, [and]
accelerator pedal,” revealed that the gas pedal had been “pushed
as far to the floor as possible” when the truck entered the
intersection. It was traveling 68 miles per hour “2.5 seconds prior
to the crash,” then 63 miles per hour two seconds before the
crash, and then slowed to 62 miles per hour at .5 seconds before
the crash. But during the half second before impact, Thompson
slightly increased speed to 62.78 miles per hour. Thompson
never touched the brakes in the seconds before the collision, and
he did not attempt any evasive maneuvers.
¶11 As Thompson ran the red light, his 7,500-pound truck,
with its “lifted suspension,” crashed into the driver’s side door
of the victim’s (Victim) car, sending Victim’s car “flying through
the air,” hitting the top of the vehicle next to it as it soared over.5
Victim’s car landed on its wheels and “backed into a pole at the
corner of the intersection.” The driver’s side of Victim’s car
“looked like it was gone,” and the car “looked like half a car.”
The truck penetrated roughly half-way through Victim’s car,
leaving Victim unconscious and mortally injured 6 and her
daughter seriously injured. 7 The force of the impact separated
Victim’s skull from her vertebral column, severing her brain
stem. The impact also tore her aorta from her heart, fractured
most of her ribs, lacerated her diaphragm, liver, spleen, left
kidney, and large intestine, and punctured her lungs.
5. In the course of plowing through the intersection, Thompson’s
truck collided with other vehicles as well.
6. Victim likely died on impact.
7. Victim’s daughter was unconscious, her head was bleeding,
and she had “at least two” compound fractures in her legs. She
was missing a significant amount of skin and muscle from her
legs, had a fractured skull and wrist, and her jaw was broken in
two places. She also suffered a traumatic brain injury.
20150721-CA 5 2017 UT App 183State v. Thompson
¶12 A police officer who happened to be on the scene at the
time of the crash noticed that Thompson was “bleeding pretty
heavily from his head” and “wasn’t breathing correctly.”
Another officer testified Thompson had “watery, red” eyes,
dilated pupils, slurred speech, and a dazed look. A paramedic
and an emergency medical technician, who attended to
Thompson after the crash, testified that in response to their
questions, Thompson repeatedly responded, “[F]uck you” and
raised his middle finger. He attempted to grab at the paramedics
as they started an intravenous line, put him on oxygen, and
attached a cardiac monitor. His belligerence, anger, and
combativeness initially made the paramedics consider whether
he had a head injury, but ultimately they concluded that he was
drunk.
¶13 Blood drawn from Thompson later that evening showed a
blood alcohol content of .22 grams per 100 milliliters. The lab test
also showed an “indication” of chlordiazepoxide, an anti-anxiety
drug with a sedative effect that can amplify the effect of alcohol,
but its presence was never confirmed.
¶14 Thompson was charged with a number of crimes, and
eventually the case proceeded to a jury trial. During trial and
over Thompson’s objection, evidence was introduced of the
content of a text message conversation between Thompson and a
woman (Woman) who was not his wife. These were transmitted
over a 90-minute period on the day of the crash, ending
approximately two hours before Wife confronted Thompson.
Thompson: U alive (2:30 pm)
[Woman]: Haha. Yup (2:32 pm)
Thompson: Wanna be naked (2:32 pm)
[Woman]: Want me to be? Oh wait, yours was not
a question. (2:41 pm)
20150721-CA 6 2017 UT App 183State v. Thompson
Thompson: Last time was pretty awesome
(2:41 pm)
[Woman] YOU want to be naked. Lol[.] Was I
naked?? (2:42 pm)
Thompson: You had just got done with girl’s best
friend (2:43 pm)
[Woman] Really?? Wow (2:45 pm)
Thompson: Don’t be afraid[.] You think I’m a V
tease (2:46 pm)
[Woman] No. No. (2:47 pm)
Thompson: Wanna??? (2:50 pm)
[Woman] I’m driving. So I can’t text (2:51 pm)
Thompson: Can you touch (2:51 pm)
[Woman]: And . . . . I’m flattered but I can’t[].
Kinda wish I could. I’m sure it would be fun[.] I
can speak in text (2:53 pm)
Thompson: I’ve seen you spe[ak] text one of the
hottest conversation[s] I’ve ever had (2:55 pm)
[Woman]: Are you sure you have the right person?
(2:56 pm)
Thompson: Yes I came to your house[,] you
answered “come in[.]” [A]s I entered you were
slowly putting on your robe with commercial
grade vibrator by your feet[.] [Y]ou said sorry[,] I
said no[,] my pleasure[.] I also have a great 8x 10 of
your perfect body (3:02 pm)
20150721-CA 7 2017 UT App 183State v. Thompson
[Woman]: 8x 10? (3:04 pm)
Thompson: Well phone pic[.] 8x 10 just sounded
good (3:05 pm)
[Woman]: Lol (3:05 pm)
Thompson: You even fed me cereal and told me
you loved me (3:07 pm)
Thompson: Cat got you by the pussy (3:12 pm)
Thompson: Was that too much (3:12 pm)
Thompson: Guess so sorry (3:32 pm)
[Woman]: A[m] on the phone, still (4:00 pm)
¶15 Wife read only a couple of these texts, and on this basis
Thompson’s counsel argued that the messages were not relevant.
Additionally, he argued that the messages were “more
prejudicial than probative.”
¶16 On the second day of trial, Thompson pleaded guilty to
some of the charges: one count of driving under the influence of
alcohol/drugs, a third degree felony; seven counts of driving
under the influence of alcohol/drugs, a class A misdemeanor;
and one count of domestic violence in the presence of a child, a
class B misdemeanor. The jury convicted him of three others:
murder, a first degree felony, and two counts of aggravated
assault, a third degree felony. Thompson filed a timely appeal.
ISSUES AND STANDARDS OF REVIEW
¶17 Thompson advances two arguments on appeal. First, he
contends the district court erred by admitting the contents of the
text message conversation he had with Woman. “We afford
20150721-CA 8 2017 UT App 183State v. Thompson
district courts a great deal of discretion in determining whether
to admit or exclude evidence and will not overturn an
evidentiary ruling absent an abuse of discretion.” State v. Cuttler,
2015 UT 95, ¶ 12, 367 P.3d 981 (citation and internal quotation
marks omitted).
¶18 Second, Thompson contends sufficient evidence does not
support the jury’s verdict that Thompson committed first degree
murder, particularly in light of his voluntary intoxication
defense. “When considering an insufficiency-of-the-evidence
claim, we review the evidence and all reasonable inferences in
the light most favorable to the jury’s verdict” and reverse the
conviction “only if we determine that the evidence is so
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt” as to whether the
defendant committed the crime. State v. Kennedy, 2015 UT App
152, ¶ 39, 354 P.3d 775.
ANALYSIS
I. Admissibility of the Text Messages
¶19 Thompson contends the district court erred by admitting
the text message conversation he had with Woman because it
was “irrelevant and more prejudicial than probative.”
A. Relevance
¶20 Rules 401 and 402 of the Utah Rules of Evidence govern
relevancy. “Irrelevant evidence is not admissible.” Utah R. Evid.
402. “Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Id.R. 401. Thompson claims that “the content of the messages did
not, and could not, assist the fact finder in determining whether
[he] acted with depraved indifference.” But before a jury may
20150721-CA 9 2017 UT App 183State v. Thompson
convict someone of depraved indifference murder, it must find
that the person acted knowingly. See Utah Code Ann. § 76-5-
203(2)(c) (LexisNexis 2012) (stating that criminal homicide
constitutes murder if “acting under circumstances evidencing a
depraved indifference to human life, the actor knowingly
engages in conduct which creates a grave risk of death to
another and thereby causes the death of another”).
¶21 Critical to this appeal, in making his defense at trial,
Thompson raised the affirmative defense of voluntary
intoxication, arguing he was so intoxicated that he could not
form the requisite mental state. See id. § 76-2-306. Thompson also
argued that on the day of Victim’s death, he was suffering from
extreme emotional distress, massive anxiety, and withdrawal
symptoms because of a gap in the anti-anxiety medication he
was taking. Thus, we must assess the text messages’ relevance in
light of Thompson’s voluntary intoxication defense and his
general theory of the case.
¶22 The State contends “the content of the texts was relevant
because it showed [Thompson’s] mental state just three hours
before the fatal crash, which was critical to determining whether
[Thompson] acted with depraved indifference, was suffering
from extreme emotional distress, and whether the voluntary
intoxication defense applied.” The State also argues the content
of the text message conversation was relevant to show why
Thompson’s wife “had confronted him just twenty minutes
before the fatal crash, thus supporting the inference that
[Thompson] may have believed his world [was] coming apart
and possibly could have felt that he had nothing to lose.”
(Second alteration in original) (internal quotation marks
omitted). We agree.
¶23 The test for relevance presents a very low bar, and the
content of the text message conversation tended to aid the jury in
determining whether Thompson acted knowingly, a required
20150721-CA 10 2017 UT App 183State v. Thompson
element of depraved indifference murder. See Utah R. Evid. 401;
Utah Code Ann. § 76-5-203(2)(c). The text messages also tended
to aid the jury in determining whether Thompson was so
intoxicated that he could not act knowingly. See Utah Code Ann.
§ 76-2-306.
¶24 Thompson further asserts the State’s arguments “all suffer
from a temporal problem because the content of the text
messages show Thompson’s state of mind when he wrote the
texts, not his state of mind when he was confronted by his wife
about them, nor his state of mind when he caused the fatal
crash.” In support of this argument, Thompson relies on State v.
Maurer, 770 P.2d 981 (Utah 1989), where our supreme court
concluded that statements in a letter sent by the defendant to the
victim’s father while the defendant was in jail awaiting trial on
charges of second degree murder were irrelevant because they
spoke to defendant’s mental state after the commission of the
crime, and therefore should not have been admitted. Id. at 982–
83. But here, the text message conversation occurred before the
commission of the crimes, just hours before Thompson’s
drunken rampage. And where Thompson’s mental state in the
hours leading up to the killing of Victim was directly at issue,
the content of the text messages was relevant.
B. Rule 403 Balancing
¶25 Thompson contends the content of the text messages was
unfairly prejudicial and cumulative. Specifically, Thompson
argues the text messages were unfairly prejudicial “because they
showed him having improper sexual conversations with a
woman who was not his wife,” which “could have provoked an
emotional response from the jury and provoked its instinct to
punish or otherwise divert the jury from its task to determine the
mental state of the defendant at the time of the killing.” (Citation
and internal quotation marks omitted.) And he argues the text
messages were cumulative because “the State had other
20150721-CA 11 2017 UT App 183State v. Thompson
witnesses to testify about [his] state of mind around the time the
crash occurred.” We first address Thompson’s unfair prejudice
argument and then turn to his argument that the text messages
were cumulative evidence.
¶26 Rule 403 of the Utah Rules of Evidence provides:
The court may exclude relevant evidence if its
probative value is substantially outweighed by a
danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.
Rule 403 “imposes . . . the heavy burden not only to show that
the risk of unfair prejudice is greater than the probative value,
but that it ‘substantially outweighs’ the probative value.” State v.
Jones, 2015 UT 19, ¶ 29, 345 P.3d 1195 (brackets omitted). Indeed,
rule 403 is an “inclusionary rule.” State v. Kooyman, 2005 UT App
222, ¶ 26, 112 P.3d 1252 (citation and internal quotation marks
omitted). Evidence is unfairly prejudicial when it has “‘an undue
tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.’” Maurer, 770 P.2d at
984 (quoting Fed. R. Evid. 403 advisory committee’s notes). “But
even if a trial court improperly admits unfairly prejudicial or
cumulative evidence, we will not overturn a jury verdict based
on that evidence if the admission of the evidence did not
reasonably [affect] the likelihood of a different verdict.” State v.
Gonzalez, 2015 UT 10, ¶ 36, 345 P.3d 1168 (citation and internal
quotation marks omitted).
¶27 Rule 403 is, at its heart, a balancing test. See Maurer, 770
P.2d at 984. To carry his burden of persuasion, Thompson must
show that the text messages’ probative value was “substantially
outweighed by a danger of . . . unfair prejudice.” See Utah R.
Evid. 403. But Thompson glosses over the text messages’
probative value and addresses only the potential risk they may
20150721-CA 12 2017 UT App 183State v. Thompson
have had. This is insufficient to carry his burden of persuasion.
And in any event, the text messages were probative of whether
Thompson acted knowingly or was suffering from extreme
emotional distress or anxiety.
¶28 The text messages show that Thompson was able to
engage in written conversation, that he was aware enough to
build on Woman’s responses, that he could recall memories, that
he was aware that he might have offended Woman with a few of
his messages, and that he appeared to be in a light-hearted and
content mood.
¶29 Thompson next argues the text messages were cumulative
and unnecessary because other witnesses testified about
Thompson’s mental state and because “it would have been
sufficient for the prosecution to put on evidence that
Thompson’s wife confronted him about inappropriate text
messages.” But Wife read only “[a] couple” of the text messages
before she confronted Thompson and therefore could not testify
about the majority of them. Moreover, the text messages were
different in kind from the evidence elicited by the other
witnesses who observed Thompson’s rampage.
¶30 We are also not convinced that if the district court had
refrained from admitting the text messages, there would have
been a “likelihood of a different verdict.” See Gonzalez, 2015 UT
10, ¶ 36 (citation and internal quotation marks omitted).
Thompson complains that the text messages depicted him as “a
coarse and indecent individual.” But the jury heard a great deal
of evidence that arguably damaged his character far more than
the text messages: for example, assaulting Friend as she held his
three-year-old son; threatening the neighbors who tried to
intervene; aggressively driving through a residential
neighborhood and then into heavy traffic; ramming a small car
carrying teenagers as he laughed; and cursing the emergency
responders who were attempting to render medical assistance.
20150721-CA 13 2017 UT App 183State v. Thompson
¶31 We conclude the district court did not abuse its discretion
in admitting the text messages because they were relevant to
Thompson’s mental state and their probative value was not
substantially outweighed by a danger of unfair prejudice.
II. Sufficiency of the Evidence
¶32 Thompson contends that even when viewing the evidence
in the light most favorable to the verdict, “the evidence did not
prove that [he] acted with depraved indifference,” and “the
evidence did not disprove the affirmative defense of voluntary
intoxication.”
¶33 When reviewing the sufficiency of the evidence, this court
does not “sit as a second fact finder.” Salt Lake City v. Miles, 2014
UT 47, ¶ 10, 342 P.3d 212 (citation and internal quotation marks
omitted). Rather, our review “is limited to [ensuring] that there
is sufficient competent evidence regarding each element of the
charge to enable a jury to find, beyond a reasonable doubt, that
the defendant committed the crime.” Id. (citation and internal
quotation marks omitted). “So long as there is some evidence,
including reasonable inferences, from which findings of all the
requisite elements of the crime can reasonably be made, our
inquiry stops.” State v. Ring, 2013 UT App 98, ¶ 2, 300 P.3d 1291(per curiam) (citation and internal quotation marks omitted).
¶34 A defendant is guilty of depraved indifference murder if,
“acting under circumstances evidencing a depraved indifference
to human life, the actor knowingly engages in conduct which
creates a grave risk of death to another and thereby causes the
death of another.” Utah Code Ann. § 76-5-203(2)(c) (LexisNexis
2012). Thompson contends there was insufficient evidence to
prove that (A) he acted with depraved indifference to human
life, (B) his conduct created a grave risk of death, and (C) he
acted knowingly in creating the grave risk of death.
20150721-CA 14 2017 UT App 183State v. Thompson
A. Depraved Indifference to Human Life
¶35 The element of depraved indifference cannot be proved
by evidence of “a single, unanticipated tragic result”; depraved
indifference “means an utter callousness toward the value of
human life and a complete and total indifference as to whether
one’s conduct will create the requisite risk of death . . . of
another.” State v. Standiford, 769 P.2d 254, 261 (Utah 1988). “The
term ‘depraved indifference to human life’ does not refer to the
mens rea, or subjective culpable mental state, of depraved
murder, but rather to an objective reasonable person standard as
to the value of human life.” Id. (footnote omitted).
¶36 Through this lens, the question becomes whether a
reasonable factfinder could find that driving a large and heavy
pickup truck at freeway speeds through a red light and into
heavy traffic without applying the vehicle’s breaks or otherwise
attempting to avoid a collision objectively demonstrated “an
utter callousness toward the value of human life.” See id. We
conclude it could.
¶37 Thompson argues that because motor vehicles have great
social utility, his conduct did not “rise to the level” of utter
callousness. Although it is true that social utility is a factor in
determining whether a person has acted with depraved
indifference, it is just one factor. Factors a jury may consider
include the following: “(1) the utility of the defendant’s conduct,
(2) the magnitude of the risk, (3) the defendant’s knowledge of
the risk, and (4) any precautions taken by the defendant to
minimize that risk.” State v. Bolsinger, 699 P.2d 1214, 1220 (Utah
1985).
¶38 Although motor vehicles generally have great social
utility, this “vanishes when a driver is intoxicated, on the wrong
side of the road, driving at a high rate of speed, and running red
lights.” David Luria, Death on the Highway: Reckless Driving as
Murder, 67 Or. L. Rev. 799, 827 (1988); see also Jeffries v. State, 169
20150721-CA 15 2017 UT App 183State v. Thompson
P.3d 913, 921 (Alaska 2007) (“While there is certainly utility in
driving, that utility is, except in rare circumstances, completely
negated by the grave danger posed to society by an extremely
intoxicated driver.”); Brown v. Commonwealth, 174 S.W.3d 421,
427 (Ky. 2005) (stating that the social utility of driving a motor
vehicle through a red light at a high rate of speed “was
nonexistent”). “This type of driver has converted an automobile
from a benign, yet powerful, instrument of transportation into a
lethal weapon, one often more deadly than a gun.” David Luria,
Death on the Highway: Reckless Driving as Murder, 67 Or. L. Rev.
799, 827 (1988).
¶39 Thompson did not merely cause an accident while
driving intoxicated. He ignored speed limits and traffic signals
and accelerated into a busy intersection with the traffic light
turned red. Moreover, Thompson did nothing to minimize the
significant risk of injury that occurs when a motor vehicle
collides with another vehicle at a high rate of speed. Thompson
did not try to brake or swerve out of the way but instead
accelerated his large truck through the intersection with the gas
pedal pressed to the floor at the moment of impact.
¶40 We conclude the evidence was sufficient to demonstrate
that Thompson acted with depraved indifference to human life.
B. Grave Risk of Death
¶41 This element requires the jury to find that the defendant
created such a risk that there is “a highly likely probability that
death will result.” State v. Standiford, 769 P.2d 254, 264 (Utah
1988). “Risk has two dimensions: the likelihood of the potential
harm and the magnitude of that harm.” State v. Ricks, 2013 UT
App 238, ¶ 15, 314 P.3d 1033. “This standard is less than what is
required for an intentional or knowing murder, but greater than
what is required for reckless manslaughter.” Standiford, 769 P.2d
at 264.
20150721-CA 16 2017 UT App 183State v. Thompson
¶42 Thompson argues that because “‘drunk driving is, at least
from a statistical point of view, not all that dangerous,’ the
‘highly likely probability’ of [Victim’s] death was absent.”
(Quoting David Luria, Death on the Highway: Reckless Driving as
Murder, 67 Or. L. Rev. 799, 828 (1988).) We find this wholly
unpersuasive. The conduct to be evaluated is not drunk driving
in general but where and how Thompson was driving. This
entails analyzing the magnitude and likelihood of injury where a
person drives a large truck through a red light at freeway speeds
into a busy intersection. Such driving created a high magnitude
and likelihood of death.
¶43 We conclude there was sufficient evidence to demonstrate
that Thompson’s driving created a grave risk of death.
C. Mens Rea
¶44 To be convicted of depraved indifference murder, the
defendant must act knowingly in creating the grave risk of death
to another. Standiford, 769 P.2d at 263. “That means that to be
convicted, a defendant must know the nature of his conduct,
must know the circumstances that give rise to the risk of death,
and must know that the risk constitutes a grave risk of death.”
Id. A person acts knowingly with respect to his conduct “when
he is aware of the nature of his conduct or the existing
circumstances. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.” Utah Code
Ann. § 76-2-103(3) (LexisNexis 2012).
¶45 Thompson contends “his high level of intoxication”
prevented him from acting knowingly. Thompson’s argument
on this element is identical to his argument concerning his
voluntary intoxication defense, and we therefore address them
together.
20150721-CA 17 2017 UT App 183State v. Thompson
¶46 “Voluntary intoxication shall not be a defense to a
criminal charge unless such intoxication negates the existence of
the mental state which is an element of the offense . . . .” Id. § 76-
2-306. Thus, intoxication alone is not enough; the defendant
must have been so intoxicated that it negated the requisite
mental state, in this case, knowingly. Where a jury is instructed
on a voluntary intoxication defense, the prosecution must
“disprove the existence of affirmative defenses beyond a
reasonable doubt.” State v. Drej, 2010 UT 35, ¶ 15, 233 P.3d 476(citation and internal quotation marks omitted).
¶47 Thompson argues the State did not “meet its burden of
disproving [his] affirmative defense of voluntary intoxication” 8
because his blood alcohol content was nearly three times the
legal limit and there was some evidence that he was intoxicated
at the time of the incident, evidenced by the altercation at his
home and his erratic driving. 9 But it is not enough to show that
he was intoxicated.
¶48 In State v. Burke, 2011 UT App 168, 256 P.3d 1102, we held
that although the defendant had consumed alcohol and was
intoxicated at the time of the charged offenses, the evidence was
insufficient to entitle him to a voluntary intoxication jury
8. As we understand it, the State argues in its brief that
Thompson was not entitled to a jury instruction on the voluntary
intoxication defense. It does not appear the State contested the
jury instruction but rather stipulated to it. Because the State did
not object to the instruction, we do not analyze whether
Thompson was entitled to it.
9. Thompson also contends that the indication of the presence of
chlordiazepoxide, an anti-anxiety drug, in his blood aided in
showing he did not act knowingly. But the presence of the drug
was not confirmed by the forensic toxicologist because the
indication did not “meet [the lab’s] acceptance criteria.”
20150721-CA 18 2017 UT App 183State v. Thompson
instruction on his charge of aggravated sexual abuse of a child.
Id. ¶¶ 1, 84. We reached this holding despite evidence that the
defendant’s speech had been slurred, that he looked “glazed-
over,” and that his father had found a vomit-filled towel left by
the defendant. Id. ¶ 83. Although there were signs of
intoxication, the defendant was “coherent enough to give
directions” to his father’s house. Id.
¶49 Although in the present case the jury was instructed on
voluntary intoxication, Burke is instructive to our analysis. In
both the present case and Burke, testimony was elicited that the
defendants were intoxicated, that their speech was slurred, and
that they had vomited around the time of the offenses. But
notwithstanding their intoxication, they appeared coherent and
aware of their conduct.
¶50 Here, the State presented enough evidence to carry its
burden that, despite his intoxication, Thompson was aware of
his actions and knew of their consequences. For example, on his
way out of the neighborhood, Thompson saw a stop sign and
had the presence of mind to slam on his brakes at the last second
to stop his truck. Later, Thompson encountered two teenage
girls in their vehicle at the end of a cul-de-sac and showed
precision in maneuvering his truck. Twice, Thompson pointed
his truck at the driver’s side door of the teenagers’ vehicle,
accelerated, and then slowed right before bumping the vehicle.
And as he pulled away, he smirked and laughed at the
teenagers, creating an inference that he intended to scare them
and knew he had succeeded. Thompson then negotiated several
turns, one of which was a 90-degree curve in the road which he
traversed at freeway speeds. Just 2.5 seconds prior to the
collision, Thompson removed his foot from the accelerator. But
one second later, he fully engaged the accelerator and did so
through impact. And when paramedics were attending to
Thompson after the crash, he did not respond by asking what
had happened or by otherwise acting as though he was not
20150721-CA 19 2017 UT App 183State v. Thompson
aware of his conduct. Rather, he responded by using offensive
language and gestures. Based on this evidence, the jury could
reasonably infer that Thompson had the capacity to control his
vehicle but instead chose to barrel through a busy intersection
knowing that his conduct created a grave risk of death.
¶51 Thompson’s text message conversation with Woman just
a few hours before the fatal crash also suggests he was aware of
his conduct. As we previously discussed, supra ¶ 28,
Thompson’s messages demonstrate that he was able to carry a
conversation, that he was aware enough to comprehend and
reply to Woman’s responses, that he could recall memories, and
that he was aware enough that he felt the need to apologize for
his inappropriate words. While the evidence did not establish
when Thompson began drinking that day, the text messages
showed that Thompson was clearheaded just a few hours before
the crash. This evidence cast doubt on Thompson’s claim that he
was so intoxicated that he could not form the requisite mental
state for depraved indifference murder.
¶52 On the surface, it may appear contradictory that a person
can be intoxicated enough to be convicted of driving under the
influence of alcohol but not so intoxicated as to mount a
successful voluntary intoxication defense. But driving under the
influence of alcohol is a strict-liability crime and therefore does
not have a mens rea requirement. See Utah Code Ann. § 76-2-102(LexisNexis 2012) (“An offense shall involve strict liability if the
statute defining the offense clearly indicates a legislative
purpose to impose criminal responsibility for commission of the
conduct prohibited by the statute without requiring proof of any
culpable mental state.”); State v. Larsen, 2000 UT App 106, ¶ 25,
999 P.2d 1252 (“Traffic violations are regulatory type crimes or
malum prohibitum offenses for which strict liability is generally
imposed.”); see also Utah Code Ann. § 41-6a-502 (LexisNexis
2014) (stating that a person may not operate a vehicle if the
person “has sufficient alcohol in the person’s body that a
20150721-CA 20 2017 UT App 183State v. Thompson
subsequent chemical test shows that the person has a blood or
breath alcohol concentration of .08 grams or greater at the time
of the test”). More importantly, the voluntary intoxication
defense applies only to offenses that require something more
than a reckless mental state so long as the person is so intoxicated
that it negates the requisite mental state. See Utah Code Ann.
§ 76-2-306 (LexisNexis 2012).
¶53 Although Thompson demonstrated he was intoxicated,
the State met its burden to prove beyond a reasonable doubt that
he was not so intoxicated as to negate his knowing mental state.
Therefore, there was sufficient evidence that he acted knowingly
in creating a grave risk of death.
¶54 We conclude there was sufficient evidence to convict
Thompson of depraved indifference murder and therefore affirm
his conviction for murder.
CONCLUSION
¶55 We conclude that the content of Thompson’s text message
conversation with Woman was properly admitted because it was
relevant and because its probative value was not substantially
outweighed by any danger of unfair prejudice. We also conclude
there was sufficient evidence to convict Thompson of depraved
indifference murder.
¶56 Affirmed.
20150721-CA 21 2017 UT App 183