# State v. Hansen > Utah Supreme Court · November 5, 1986 · 45 Utah Adv. Rep. 19 URL: https://www.frixlaw.com/law-library/cases/9561776 ## 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 Howe - **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/9561776 ## 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 HOWE, Justice (concurring and dissenting): I, too, concur with the majority in holding that the “other than a party” language contained in section 76-5-203(l)(d) does not preclude prosecution thereunder of one who unintentionally causes the death of an innocent person, whether a victim or a bystander. However, I cannot concur in that part of the opinion which holds that it was error for the trial court to refuse to give the defendant’s requested instruction on second degree murder occurring in the commission of robbery or burglary. In the first place, the defendant’s requested instruction was incomplete and the court could have refused to have given it for that reason alone. Although it authorized the jury to find the defendant guilty of murder in the second degree if they found that Stewart’s death resulted directly from the defendant’s commission of aggravated robbery, robbery, aggravated burglary, or burglary, the instruction contained no definition or listing of the elements of those crimes. Nor did the defendant submit any other requested instruction which would have filled that void. Since the requested instruction was inadequate and the jury would have been left unguided as to what constituted the elements of those crimes, the trial court did not err in refusing it. Secondly, an instruction was given on second degree murder and manslaughter arising out of arson. Therefore, the argument fails that the jury was not given alternatives and that they were “forced” to find the defendant guilty of first degree murder arising out of an arson. Thirdly, and more basically, the defendant was not entitled to any instruction on second degree murder arising out of the commission of burglary or robbery. The latter crimes are completely unrelated in their elemente to arson. I do not believe that State v. Baker, 671 P.2d 152 (Utah 1983), should be stretched so far as to make murder arising out of burglary or robbery, an included offense of murder arising out of arson. It is true, as pointed *431 out by the majority, that there is the common element of a killing. But I believe that is insufficient. Baker requires some overlap of the statutory elements of the offenses; in this case, that would require that proof of arson would necessarily prove some of the elements of robbery and burglary. In iState v. Crick, 675 P.2d 527 (Utah 1983), we properly held that second degree murder and manslaughter were included offenses of first degree murder. The defendant here received instructions on those included offenses. However, I would not extend the rule of State v. Baker so far as to make killings committed under all other possible circumstances included offenses. A lesser included offense should be closely related to the crime charged as exemplified by State v. Baker, supra, where we held that criminal trespass was an included offense of burglary because only the mens rea differed. The strongest reason advanced by the defendant as to why he should have been entitled to his requested instruction is that it was his theory of the case. Our cases have uniformly held that a defendant is entitled to an instruction on his theory of the case, and trial courts have been admonished to accord defendants that right. Here, the defendant’s basic theory was that he did not in any way participate in the arson. The jury was instructed that if they so found, they should acquit him. Additionally, while the prosecution charged the defendant with first degree murder, the trial court properly gave instructions on the included offenses of second degree murder and manslaughter arising out of an arson. Thus, the jury was given four choices. Neither State v. Baker, supra, dealing with lesser included offenses, nor the law affording criminal defendants an instruction on their theory of the case go so far as to give the defendant the right to an instruction on another possible crime, which might have been charged, but which was not, and which is only tenuously related to the crime charged. Particularly is this true when the other possible crime is of the same degree as those on which instructions are given. I cannot accept the defendant’s argument that the jury was disposed to find him guilty of some crime because of his misconduct, and thus he was entitled to an instruction on second degree murder arising out of burglary or robbery simply to satisfy that disposition of the jury. The jury had wide discretion with the four options given them. Had the defendant’s requested instruction been given, his counsel could well have argued to the jury that the prosecution presented insufficient evidence of burglary and robbery since the prosecution made no attempt to prove all the elements of those crimes, and therefore he was entitled to an acquittal. Or would the defendant have urged the jury to find him guilty of second degree murder under his requested instruction? If so, he could have accomplished that objective under the second degree murder instruction which was given. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9561776. Public record. Not legal advice.