State v. Liti

2015 UT App 186

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

RODNEY AMATO LITI,

Defendant and Appellant.

Opinion

No. 20130579-CA

Filed July 30, 2015

Third District Court, West Jordan Department

The Honorable Bruce C. Lubeck

No. 111401954

David M. Corbett and Craig L. Pankratz, Attorneys

for Appellant

Sean D. Reyes and John J. Nielsen, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in

which JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Rodney Amato Liti shot and killed his friend. A jury

convicted him of manslaughter and possession of a firearm by a

restricted person.1 Liti appeals, arguing that the trial court

erroneously instructed the jury on the meaning of ‚recklessly‛

for purposes of his manslaughter conviction and that his trial

counsel rendered ineffective assistance by not objecting to the

erroneous jury instruction. He also argues that the trial court

1. The jury also convicted Liti of other crimes. He does not

challenge those convictions and they are therefore not relevant

to this appeal.

State v. Liti

erred in finding that he was a Category I restricted person for

purposes of the firearm-possession charge, because that finding

was based on evidence not presented to the jury. He contends

that because the jury found only that he was a Category II

restricted person, the trial court’s finding resulted in his

erroneous conviction of a second-degree felony rather than a

third-degree felony.

¶2 We conclude that the trial court’s instruction to the jury

defining the reckless mental state for the offense of

manslaughter omitted a necessary element and that Liti is

therefore entitled to a new trial on the homicide charge. The

State concedes that the trial court erred by finding that Liti was a

Category I restricted person and entering the firearm-possession

conviction as a second-degree felony. The State agrees with Liti

that the conviction should properly be entered as a third-degree

felony. We therefore reverse Liti’s conviction for manslaughter

and vacate his conviction for possession of a firearm by a

Category I restricted person. We remand to the trial court for a

new trial on the homicide charge and for entry of Liti’s

conviction for possession of a firearm by a Category II restricted

person as a third-degree felony.

BACKGROUND

¶3 Liti shot his friend (Victim) during an argument.2 Victim

had borrowed Liti’s car to sell drugs and had not timely

returned the car. When Victim did not return on time, Liti sent

2. ‚On appeal, we review the record facts in a light most

favorable to the jury’s verdict and recite the facts accordingly.‛

State v. Brown, 948 P.2d 337, 339 (Utah 1997). Thus, we recite the

facts here in a light most favorable to the jury’s verdict that Liti

caused Victim’s death recklessly.

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Victim a number of text messages threatening to harm him for

not returning Liti’s car.

¶4 Victim eventually returned the car to Liti’s residence and

soon began arguing with Liti and another man. That argument

escalated into a brawl. At some point during the fight, Liti drew

and cocked a handgun. Shortly thereafter, the gun ‚went off‛

and Victim was fatally wounded. Liti began to cry and apologize

to Victim. He fled and was apprehended by police a short time

later. He was charged with murder, possession of a firearm by a

restricted person, and other crimes.

¶5 At trial, Liti testified that Victim had drawn a gun during

the fight, prompting Liti to draw his own weapon to protect

himself and to ‚[c]ontrol the situation.‛ Liti testified that he

‚didn’t even point the gun or aim the gun.‛ However, he had

‚fumbled‛ the gun while pulling it out and was ‚holding the

trigger area‛ when he saw that Victim ‚was coming towards

[him].‛ Then, ‚meaning to push him back,‛ Liti ‚grabbed on‛ to

Victim. In doing so, he ‚squeezed‛ and ‚the gun went off.‛

¶6 The State argued that Liti, angry that Victim had not

timely returned the car, intentionally killed Victim. Liti admitted

that he shot Victim but argued that the shooting was accidental

or done in self-defense. The jury was instructed on both of Liti’s

theories of the case. As relevant here, the jury was instructed that

it could convict Liti of manslaughter only if it found that Liti had

shot Victim under circumstances constituting imperfect self-

defense or if it found that Liti had acted recklessly in causing

Victim’s death. The State also argued that Liti was a Category II

restricted person because of his use or possession of drugs and

was therefore guilty of possession of a firearm by a restricted

person. The jury was instructed on this theory of the State’s case

but was not asked to determine whether Liti was a Category I

restricted person by virtue of a prior conviction for a violent

felony.

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State v. Liti

¶7 The jury convicted Liti of manslaughter and possession of

a firearm by a restricted person. The jury found that Liti

possessed a firearm and was an unlawful user or possessor of a

controlled substance. At sentencing, the trial court observed that,

during trial, the State had provided to the court evidence that

Liti was on probation for a felony at the time of the shooting. The

trial court therefore found that Liti was a Category I restricted

person and that his firearm-possession conviction should thus be

entered as a second-degree felony rather than a third-degree

felony. The trial court noted that the jury ‚didn’t have the

opportunity to find‛ the prior conviction ‚because [the court]

didn’t submit it to them.‛ The trial court explained, however,

[There is] no question whatsoever, in fact, that Mr.

Liti is a Category I restricted person. The jury

didn’t find that. But I’m going to declare that that

conviction of possession of a firearm by a restricted

person is a second-degree felony, finding beyond

all doubt that he is a Category I restricted person.

So I’m going to rule [the firearm-possession

conviction] is a second-degree felony.

Liti now appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Liti argues that the jury instructions failed to correctly

define ‚recklessly‛ for purposes of his manslaughter conviction.

Whether jury instructions correctly state the law is a question of

law. State v. Weaver, 2005 UT 49, ¶ 6, 122 P.3d 566. We therefore

review jury instructions for correctness. Id.

¶9 Liti also argues that the trial court deprived him of his

due process right to a jury trial on every element of the charged

offense when the court found that Liti was Category I restricted

person. Issues of due process are questions of law, and we

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State v. Liti

review for correctness the process afforded the defendant by the

trial court. State v. Turner, 2012 UT App 189, ¶ 15, 283 P.3d 527.

ANALYSIS

I. Trial Counsel Rendered Constitutionally Ineffective

Assistance by Failing to Object to the Erroneous Jury Instruction.

¶10 Liti first argues that the jury instruction defining

‚recklessly‛ for purposes of his manslaughter conviction was

incorrect because it omitted an element of the statutory

definition of recklessness. Because trial counsel failed to object to

the instruction, Liti concedes that the issue is unpreserved. He

therefore argues that trial counsel rendered ineffective assistance

by failing to ensure that the jury instructions were correct.3

¶11 To succeed on a claim of ineffective assistance of counsel,

a defendant must show both ‚that counsel’s performance was

deficient‛ and ‚that the deficient performance prejudiced the

defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish that counsel’s performance was deficient, a defendant

‚must show that counsel’s representation fell below an objective

standard of reasonableness.‛ Id. at 688. This showing requires

the defendant to ‚overcome the presumption that, under the

circumstances, the challenged action might be considered sound

trial strategy.‛ Id. at 689 (citation and internal quotation marks

omitted); see also State v. Larrabee, 2013 UT 70, ¶ 19, 321 P.3d 1136.

To establish prejudice in an ineffective-assistance-of-counsel

claim, the ‚defendant must show that a reasonable probability

3. He also argues that the trial court plainly erred in submitting

the instruction to the jury. Due to our disposition of this claim on

the basis of ineffective assistance of counsel, we do not evaluate

whether the trial court plainly erred.

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exists that, but for counsel’s error, the result would have been

different.‛ State v. Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151

(citation and internal quotation marks omitted).

A. The Jury Instructions Were Incorrect.

¶12 To evaluate whether trial counsel performed deficiently in

failing to object to the jury instructions, we must first consider

whether those instructions were legally correct. We review jury

instructions in their entirety to determine whether the

instructions, taken as a whole, fairly instructed the jury about the

applicable law. State v. Stringham, 957 P.2d 602, 608 (Utah Ct.

App. 1998).

¶13 A defendant who ‚recklessly causes the death of another‛

is guilty of manslaughter. Utah Code Ann. § 76-5-205(1)(a)

(LexisNexis Supp. 2011). The Utah Criminal Code defines what

constitutes a reckless mental state:

A person engages in conduct . . . [r]ecklessly with

respect to circumstances surrounding his conduct

or the result of his conduct when he is aware of but

consciously disregards a substantial and

unjustifiable risk that the circumstances exist or the

result will occur. The risk must be of such a nature

and degree that its disregard constitutes a gross

deviation from the standard of care that an

ordinary person would exercise under all the

circumstances as viewed from the actor’s

standpoint.

Id. § 76-2-103(3) (LexisNexis 2008). In this case, the jury was

instructed that ‚[a] person acts recklessly when he is aware of a

substantial and unjustifiable risk that his or her conduct will

cause a particular result, consciously disregards the risk, and

acts anyway.‛ We agree with Liti that this instruction failed to

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fairly instruct the jury on the applicable law because it failed to

require a jury finding that the defendant’s conscious disregard of

the risk constituted a ‚gross deviation‛ from the standard of care

expected of an ordinary person as viewed from the defendant’s

standpoint.

¶14 We conclude that the plain language of the statute

compels this result. When interpreting a statute, we rely first on

the statute’s plain language as the best evidence of the

legislature’s intent. LeBeau v. State, 2014 UT 39, ¶ 20, 337 P.3d

254. We interpret statutes to give meaning to all parts and to

avoid rendering portions of the statute superfluous. Id. We also

presume that the legislature ‚used each word advisedly,‛ and

thus we ‚give effect to each term according to its ordinary and

accepted meaning.‛ Id. (citation and internal quotation marks

omitted). Because the jury instruction omitted the second

sentence of the statute, we must consider whether the inclusion

of the omitted portion would have changed the meaning of the

jury instruction. We determine that it would have.

¶15 The first sentence in the statute defines reckless behavior

in terms of the defendant’s knowledge and disregard of a

substantial and unjustifiable risk. Utah Code Ann. § 76-2-103(3).

This portion of the statute speaks primarily to the magnitude or

type of risk that the defendant’s conduct imposes on another.

The second sentence of the statute addresses whether the

defendant’s decision to disregard that risk constitutes a ‚gross

deviation from the standard of care that an ordinary person

would exercise under all the circumstances as viewed from the

actor’s standpoint.‛ Id. This portion of the statute asks the jury to

measure the defendant’s decision to ignore the risk against an

objective standard of behavior we would expect of a reasonable

person similarly situated. This second inquiry is therefore

analytically distinct from the first, and its omission represents a

significant change to the statutory standard. The legislature’s use

of the word ‚must‛ indicates that a finding of a ‚gross

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deviation‛ is necessary to a finding that a defendant acted

recklessly.

¶16 We also find support for this conclusion in our caselaw

interpreting the similarly structured criminal-negligence statute.

That statute has a comparable ‚gross deviation‛ requirement:

A person engages in conduct . . . [w]ith criminal

negligence or is criminally negligent with respect

to circumstances surrounding his conduct or the

result of his conduct when he ought to be aware of

a substantial and unjustifiable risk that the

circumstances exist or the result will occur. The

risk must be of a nature and degree that the failure

to perceive it constitutes a gross deviation from the

standard of care that an ordinary person would

exercise in all the circumstances as viewed from

the actor’s standpoint.

Id. § 76-2-103(4). Our supreme court has explained that this

statute ‚requires proof that [the] defendant’s conduct place[d]

another at risk; that the risk [was] substantial and unjustifiable;

and that failure to perceive the risk constitute[d] a gross

deviation from the reasonable [person] standard.‛ State v.

Chavez, 605 P.2d 1226, 1227 (Utah 1979) (emphasis omitted). Our

caselaw recognizes that the nature of the risk involved in both

criminal negligence and recklessness is the same; ‚the only

difference between the two is whether the defendant was aware

of that risk.‛ State v. Boss, 2005 UT App 520, ¶ 14 n.2, 127 P.3d

1236. But ‚[i]n both cases, a defendant’s conduct must be ‘a gross

deviation’ from the standard of care exercised by an ordinary

person.‛ State v. Standiford, 769 P.2d 254, 267 (Utah 1988). Thus,

our caselaw confirms what the plain language of the statute

reveals: to obtain a conviction on a theory of reckless

manslaughter, the State must prove that the defendant’s conduct

in disregarding the risk of death was ‚‘a gross deviation’ from

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the standard of care exercised by an ordinary person‛ in the

defendant’s circumstances. Id. The omission of the gross-

deviation element in the jury instructions here constitutes error.

¶17 The State opposes this conclusion by arguing that ‚the

‘gross deviation’ language would have added little, if anything,

to this definition under the circumstances of this case.‛ The State

asserts that ‚there is very little daylight—if any—between

consciously disregarding a risk that is ‘substantial and

unjustifiable’ and grossly deviating from the standard of care

required under the existing circumstances.‛ Thus, the State

reasons, ‚the ‘gross deviation’ language adds little or nothing to

the requirement of consciously disregarding a ‘substantial and

unjustifiable’ risk of death.‛ However, the State’s argument asks

us to conclude that the second half of the statute defining

reckless behavior is, essentially, superfluous. Given the

standards by which we interpret statutes, we cannot accept this

invitation and must presume that the legislature intended for

each portion of the statute to impose a meaningful requirement.

See LeBeau, 2014 UT 39, ¶ 20. We therefore conclude that the jury

instructions in this case failed to correctly state the law with

respect to the mental-state finding required to convict Liti of

reckless manslaughter.

B. Trial Counsel Performed Deficiently.

¶18 Having concluded that the jury instructions failed to

correctly state the law, we must next consider whether trial

counsel performed deficiently by not objecting to the erroneous

instructions. In evaluating trial counsel’s performance, ‚we give

trial counsel wide latitude in making tactical decisions and will

not question such decisions unless there is no reasonable basis

supporting them.‛ State v. Crosby, 927 P.2d 638, 644 (Utah 1996).

However, absent some tactical explanation, defense counsel’s

‚failure to object to a jury instruction that [does] not alert the

jury to every element of the crime with which his client was

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charged‛ constitutes deficient performance. State v. Eyre, 2008

UT 16, ¶ 19, 179 P.3d 792.

¶19 As discussed above, the jury instruction defining the

mens rea for reckless manslaughter omitted the requirement that

the State prove that the defendant’s conduct was a ‚gross

deviation‛ from the care exercised by a reasonable person. We

conclude that trial counsel should have objected to this legally

erroneous jury instruction because it failed to charge the jury

with finding every element necessary to convict Liti of reckless

manslaughter. See id.

¶20 The State argues that trial counsel ‚could

have . . . reasonably decided not to ask for the ‘gross deviation’

language because it was not material to the defense theory of

self-defense.‛ The State contends that trial counsel could have

reasonably concluded that ‚exploring a subtle nuance of

recklessness would risk distracting the jury from [the self-

defense] narrative and lessen Liti’s chances of a full acquittal.‛

However, though trial counsel focused on self-defense in closing

argument, Liti’s own testimony was that the shooting was an

accident. Thus, even though trial counsel’s principal argument

may have been self-defense, given the testimony presented,

‚[t]here is only upside in a complete statement of the

requirement of mens rea‛ with respect to the reckless-

manslaughter charge. See State v. Barela, 2015 UT 22, ¶ 27, 349

P.3d 676. We therefore conclude that ‚no reasonable lawyer

would have found an advantage in understating the mens rea

requirement‛ of reckless manslaughter, see id., and we further

conclude that trial counsel performed deficiently by failing to

object to the erroneous instruction.

C. Trial Counsel’s Deficient Performance Prejudiced Liti.

¶21 To merit reversal of his conviction, Liti must also

demonstrate that his defense was prejudiced by trial counsel’s

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deficient performance—that there is a reasonable probability of a

more favorable result absent the error. State v. McNeil, 2013 UT

App 134, ¶ 42, 302 P.3d 844. We conclude that trial counsel’s

deficient performance prejudiced Liti’s defense.

¶22 The jury convicted Liti of manslaughter without

indicating whether it did so under a theory of recklessness or

imperfect self-defense. Given the evidence presented, it is

reasonably likely that the jury’s verdict was based at least in part

on a determination that Liti acted recklessly.4 The omission of

the gross-deviation requirement therefore allowed the jury to

convict Liti without considering whether the State had proved

everything necessary to obtain a reckless-manslaughter

conviction.

¶23 The State argues that the omitted language would have

made no difference to the verdict because Liti ‚threatened to

shoot the victim numerous times and admitted pulling out a

gun, cocking it, and putting his finger on or near the trigger

during a fight.‛ The State contends this is ‚textbook

recklessness.‛ We agree that Liti’s drawing a gun, arming it, and

exercising poor trigger discipline created a substantial and

unjustifiable risk of death to another—a conclusion borne out by

the jury’s verdict on the manslaughter charge when instructed to

find only those elements. But we cannot conclude that the

evidence in this case necessarily proves beyond a reasonable

4. Indeed, while our review of the record discloses some

evidence from which a jury could have conceivably concluded

that Liti reasonably believed ‚lethal force was ‘necessary to

prevent death or serious bodily injury,’‛ we see no evidence that

Liti ‚reasonably but incorrectly believed his actions were legally

justifiable‛ such that a jury could have found imperfect self-

defense. See State v. Lee, 2014 UT App 4, ¶¶ 38–40, 318 P.3d 1164

(Voros, J., concurring).

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doubt that Liti’s conduct was a ‚gross deviation‛ from what a

reasonable person may have done under the circumstances.

Given the evidence before the jury, particularly if the jury

believed the testimony that Victim himself was armed, we

cannot confidently say that the jury would necessarily have

concluded that Liti’s conduct in drawing a loaded gun during

the fight was a gross deviation from what was reasonable under

the circumstances. We therefore conclude that there is a

reasonable likelihood that a properly instructed jury would have

returned a verdict more favorable to Liti.

II. The Trial Court Erred in Finding That Liti Was a Category I

Restricted Person.

¶24 Liti next argues that the trial court erred in finding that he

was a Category I restricted person when the jury found only that

he was a Category II restricted person. The State concedes that

the trial court erred and asks us to vacate Liti’s conviction for

unlawful possession of a firearm as a Category I restricted

person and order his conviction entered in accordance with the

jury’s verdict.

¶25 Under Utah law, a restricted person may not legally

possess a firearm. Utah Code Ann. § 76-10-503 (LexisNexis 2008).

The degree of conviction for possession of a firearm by a

restricted person varies by whether the defendant is a Category I

or Category II restricted person: A Category I restricted person

who possesses a firearm is guilty of a second-degree felony. Id.

§ 76-10-503(2). A Category II restricted person who possesses a

firearm is guilty of a third-degree felony. Id. § 76-10-503(3). Here,

the jury found that Liti possessed a firearm and that he was an

unlawful user or possessor of a controlled substance. These

findings are sufficient to support a conviction for possession of a

firearm by a Category II restricted person. Id. § 76-10-

503(1)(b)(iii). The jury’s findings are not, however, sufficient to

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support Liti’s conviction as a Category I restricted person. Id.

§ 76-10-503(1)(a).

¶26 Nevertheless, the trial court found that Liti was a

Category I restricted person because the State had provided the

court, but not the jury, with evidence that Liti was on probation

for a prior felony offense at the time of the shooting. See id. § 76-

10-503(1)(a)(ii). However, a defendant has a federal due process

right to have the jury find every element of an offense with

which he is charged. United States v. Gaudin, 515 U.S. 506, 511

(1995). Thus, ‚[e]lements of a crime must be charged in an

indictment and proved to a jury beyond a reasonable doubt.‛

United States v. O’Brien, 560 U.S. 218, 224 (2010). The prior

conviction here is an element of the offense because possession

of a firearm is not a crime in the absence of a finding that a

defendant is a restricted person. See State v. Higginbotham, 917

P.2d 545, 550 (Utah 1996).

¶27 Accordingly, the trial court erred in finding that Liti was a

Category I restricted person—a question that Liti had a

constitutional right to try to a jury. Liti was prejudiced by that

error because it resulted in his conviction for an offense greater

than that supported by the jury’s findings. We agree with Liti

and the State that Liti’s conviction for unlawful possession of a

firearm by a Category I restricted person cannot stand. We

therefore vacate that conviction, and we direct the trial court on

remand to enter Liti’s conviction for possession of a firearm by a

Category II restricted person—a third-degree felony—as found

by the jury.

CONCLUSION

¶28 The jury instruction defining the reckless mental state for

Liti’s manslaughter conviction failed to charge the jury with

finding that Liti’s conduct was a ‚gross deviation‛ from what a

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reasonable person would do under the circumstances. Trial

counsel rendered ineffective assistance by failing to object to the

erroneous instruction. The trial court erred in finding that Liti

was a Category I restricted person, because the question should

have been presented to the jury. We therefore reverse Liti’s

conviction for manslaughter, vacate his conviction for possession

of a firearm by a Category I restricted person, and remand to the

trial court for a new trial on the homicide charge and entry of a

conviction for possession of a firearm by a Category II restricted

person.

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