Opinion
Case No. 990972-CA.
Filed March 15, 2001. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Leon A. Dever.
Gregory G. Skordas and Stephanie Ames, Salt Lake City, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before Judges Greenwood, Bench, and Orme.
MEMORANDUM DECISION
Defendant appeals his conviction of murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp. 1998). We affirm.
Defendant first argues that the trial court erred in refusing to give a lesser included instruction of manslaughter to the jury. Under the standard set forth in State v. Kruger, 2000 UT 60, 6 P.3d 1116,
[w]hen a lesser included instruction is requested by the defendant, the trial court must apply an "evidence-based" standard to decide whether the instruction is appropriate. This standard . . . provides a two-pronged analysis that mirrors the statutory framework set out in section 76-1-402.
Id. at ¶ 12 (internal citations omitted). This analysis requires that the court (1) "determine whether the claimed lesser offense is an offense `included' in the charged offense," id., and (2) "decide whether `there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.'" Id. at ¶ 13 (quoting Utah Code Ann. § 76-1-402(4) (1999)).
Turning first to the second prong:
In determining whether there is a "rational basis" in the evidence to support both acquittal of the greater and conviction of the lesser offense, a trial judge, though he or she cannot weigh the credibility of the evidence, must nevertheless decide whether there is "a sufficient quantum of evidence" to send this issue to the jury. To make this determination, the trial court must "view the evidence and the inferences that can be drawn from it in the light most favorable to the defense."
Id. at ¶ 14 (citations omitted).
In this case, defendant has provided no explanation as to how he could have been acquitted of murder and convicted of manslaughter. Defendant's only defense was that he did not kill the victim, and that defense is inconsistent with manslaughter, given the evidence and the arguments presented at trial. Accordingly, defendant's argument that the lesser included offense should have been included in the jury instructions fails. Because we see no rational evidentiary basis in this case for a manslaughter conviction, we need not consider whether defendant has satisfied the first prong under Kruger.
Next, defendant argues that the trial court erred in failing to include the weapons enhancement provision in the jury instructions. The State concedes that the trial court erred in failing to instruct the jury on the weapons enhancement issue but argues the error was harmless.
In State v. Labrum, 881 P.2d 900 (Utah Ct.App. 1994), rev'd on other grounds, 925 P.2d 937 (Utah 1996) (reversal and remand limited to "plain error" in connection with gang enhancement; court of appeals' treatment of weapons enhancement issue not disturbed), this court stated that Utah's weapons enhancement statute "does not require a specific and separate finding that a firearm was used." Id. at 904 (citing State v. Angus, 581 P.2d 992, 995 (Utah 1978)). In so stating, the court noted that because
defendant points to no evidence, consistent with the jury's determination of guilt, that could possibly suggest a firearm was not used in the commission of the offense, any error that may have been made by not instructing the jury to make a separate and specific finding of firearm use would have to be harmless error.
Id. at 905 (emphasis added).
In the present case, the medical examiner who conducted the autopsy of the victim testified that the cause of death was from "sharp-force injuries to the neck." These injuries, the examiner testified, consisted of "a large gaping sharp-force injury that was approximately four inches in length," made by "slashes or cuts across the [victim's] neck" causing "injury to the jugular vein on the left side . . . [and] opening the [victim's] airway or trachea." Although no weapon was found, the testimony unequivocably indicates that the victim died from a laceration to her throat caused by a dangerous weapon. Like the defendant inLabrum, defendant in this case does not dispute that a dangerous weapon was used in the commission of the crime. Thus, "any error in not requiring a specific finding that a [dangerous weapon] was used prior to enhancing defendant's sentence is harmless indeed." Id.
Defendant also contends the trial court erred in (1) refusing to grant defendant a new trial; (2) allowing testimony that defendant had allegedly threatened to kill the victim; (3) refusing to grant a mistrial; and (4) failing to dismiss the case at the conclusion of the State's case. We have examined all of these issues and find no abuse of discretion. See State v. Thomas, 830 P.2d 243, 245 (Utah 1992) ("[W]e review the trial court's denial of defendant's motion for a new trial under an abuse of discretion standard."); State v. Pena, 869 P.2d 932, 938 (Utah 1994) (appellate court reviews trial court's ruling on the admission of evidence for an abuse of discretion); State v. Decorso, 1999 UT 57, ¶ 38, 933 P.2d 837 ("We review a trial court's denial of a motion for mistrial for abuse of discretion."). Similarly, we have examined defendant's argument that the trial court erred in denying his motion to dismiss based on insufficiency of the evidence and find it to be without support.
"`[T]he propriety of a trial court's decision to grant or deny a motion to dismiss is a question of law that we review for correctness.'"State v. Amoroso, 1999 UT App 060, ¶ 6, 975 P.2d 505 (quoting Tiede v. State, 915 P.2d 500, 502 (Utah 1996)) (alteration in original).
Therefore, we affirm.
Pamela T. Greenwood, Presiding Judge.
WE CONCUR: Russell W. Bench, Judge, Gregory K. Orme, Judge.