# State v. Hansen

> Utah Supreme Court · November 5, 1986 · 45 Utah Adv. Rep. 19

URL: https://www.frixlaw.com/law-library/cases/9561775

## Case

- **Full name:** STATE of Utah, Plaintiff and Respondent, v. David M. HANSEN, Defendant and Appellant
- **Court:** Utah Supreme Court
- **Decided:** November 5, 1986
- **Citations:** 45 Utah Adv. Rep. 19; 734 P.2d 421; 1986 Utah LEXIS 912
- **Precedential status:** Published
- **Opinion:** Concurring in part by Hall
- **Judges:** Zimmerman, Hall, Howe, Durham, Stewart
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by State v. Guard, 803 Utah Adv. Rep. 13 (2015).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9561775

## How later opinions describe it (automated extraction)

- stating that "[the proper course would be for the court to explicitly state that the defendant has no particular burden of proof regarding an affirmative defense because even when a jury instruction "does not expressly shift the burden of proof to the defendant," it "can be mi…
- holding that state law precluded second-degree felony-murder conviction where co-felon is killed because language in statute requires the death to be "other than a party" to the crime
- discussing the Baker test for lesser included offense instructions

## Opinion text

HALL, Chief Justice
(concurring and dissenting):
I concur with the majority in holding that the “other than a party” language contained in the second degree felony-murder statute 1 does not preclude prosecution thereunder of one who unintentionally causes the death of an innocent person, whether victim or bystander. However, I do not agree that it was error to refuse to instruct the jury on the offense of second degree felony-murder because I find no rational basis in the evidence to support a *430 verdict of acquittal of the offense charged and conviction of the lesser offense. 2
Defendant was charged with first degree felony-murder, intentionally causing the death of another during the commission of arson. 3 In contrast, second degree felony-murder is the unintentional killing of another not a party to the underlying felony. 4
The evidence adduced at trial was sufficient to prove that defendant hog-tied the victim and caused his death by setting the house on fire. The reasonable inference to be drawn therefrom was that defendant intended to destroy the victim and the house by fire for the purpose of covering up the crimes of burglary and robbery that had already been consummated.
Defendant offered a different factual scenario. He testified that he hog-tied the victim merely to facilitate the acts of burglary and robbery. He denied having committed arson or in any way having participated with Rocco in the commission of that offense which was the cause of death. Thus, under defendant’s own theory of the case, there was no rational basis in the evidence to convict defendant of second degree felony-murder. 5 Had the jury believed defendant’s version of the facts, it reasonably could have acquitted him of the offense of murder as charged because the victim died, not from defendant’s acts of burglary and robbery or flight from the crime scene, but from Rocco’s commission of arson in which only Rocco participated. However, had the jury so acquitted defendant, no rational basis remained in the evidence to convict him of an unintentional killing which he caused.
I would affirm the conviction and judgment.
. U.C.A., 1953, § 76-5-203(1)(d) (Repl.Vol. 8B, 1978 ed., Supp.1985) (amended 1986).
. See State v. Baker, 671 P.2d 152, 159-60 (Utah 1983); U.C.A., 1953, § 76-1-402(4) (Repl.Vol. 8B, 1978 ed.).
. U.C.A., 1953, § 76-5-202(1)(d) (Repl.Vol. 8B, 1978 ed.).
. U.C.A., 1953, § 76-5-203(1)(d) (Repl.Vol. 8B, 1978 ed., Supp.1985) (amended 1986).
. See State v. Shabata, 678 P.2d 785, 790 (Utah 1984).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9561775. Public record. Not legal advice.