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State v. Bess

Supreme Court of Utah

June 3, 2019

State of Utah, Appellee,
Lance Bess, Appellant.

          On Certification from the Court of Appeals First District, Box Elder The Honorable Brandon J. Maynard No. 151100329

          Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Solic. Gen., Salt Lake City, for appellee

          Paul G. Cassell, Salt Lake City, Lindsay Jarvis, South Jordan, for appellant

          Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.




         ¶1 Lance Bess, a detective with the Unified Police Department, was bird hunting with several family members when another hunter accidentally fired three shots in their direction. When the firing stopped, Bess angrily confronted the hunter's group with his service weapon drawn and held at his side. As a result of this incident, the State charged Bess with one count of threatening with or using a dangerous weapon in a fight or quarrel (threatening with a dangerous weapon).[1] He was convicted after a trial and timely appeals.

         ¶2 The relevant criminal statute makes an exception for persons acting in self-defense and peace officers in performance of their duties (performance of duties). The court of appeals certified this case to us to determine whether these exceptions are elements of the offense or affirmative defenses.

         ¶3 Bess argues that the district court's treatment of these exceptions as affirmative defenses caused a structural error in the trial. He also argues that the court wrongly excluded a declaration from a juror in support of his motion for a new trial and that the court gave the jury an unconstitutionally coercive deadlock instruction.[2]

         ¶4 We affirm.


         ¶5 Bess and his family were hunting at public shooting grounds when an inexperienced hunter shot in their direction. Despite the family's attempts to alert the shooter to their presence, the shooter fired twice more. After the shooting stopped, Bess-still holding his shotgun-drew his service weapon and approached the hunting party. He shouted profanities at the group and demanded to know who had shot at his family. Admitting fault, an adult man in the hunting party acknowledged that a young, inexperienced hunter in their group had accidently fired shots in the family's direction. And the young hunter was in tears, upset at his mistake. The man requested that Bess put his service weapon away. When Bess refused, the man suggested that they call the police. In response, Bess said, "[G]o right ahead, I am a fucking cop." The man then asked to see Bess's badge, but Bess denied having it with him. After the man expressed doubts as to Bess's credentials, Bess quickly flashed his badge at them. Bothered by the encounter, the man from the hunting party notified the police.

         ¶6 The State ultimately charged Bess with one count of threatening with a dangerous weapon, and the case proceeded to trial.

         ¶7 At the beginning of trial, over Bess's objection, the district court provided the jury with the following instruction:

Lance Bess is charged with committing [the offense of] threatening with or using a dangerous weapon in a fight or quarrel. You cannot convict him of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:
No. 1: That the defendant, Lance Bess;
No. 2: In the presence of two or more persons;
No. 3: Intentionally, knowingly or recklessly;
No. 4: Drew or exhibited a dangerous weapon;
No. 5: In an angry and threatening manner.

         ¶8 Bess argued that the jury instruction omitted what he termed "negative elements" of the charged crime, specifically that (1) he did not act in self-defense and (2) he was not a peace officer in performance of his duties. In overruling Bess's objection, the district court concluded that these provisions of Utah Code section 76-10-506 were affirmative defenses, not elements. Accordingly, the district court explained that some evidence supporting the defenses must be presented by either party before it would instruct the jury on them.

         ¶9 After the defense rested, the district court determined that sufficient evidence had been presented to instruct the jury on both affirmative defenses. Thus, before closing arguments, the court gave its final instructions on the law. In addition to listing the five elements included in the preliminary jury instruction, the replacement instruction provided that the jury could not convict Bess unless it also found beyond a reasonable doubt that he "did not draw or exhibit the weapon in self-defense" and that he "was not a peace officer . . . acting in the performance of his duties." The final jury instruction was the same instruction that Bess had requested at the beginning of trial.

         ¶10 During its closing argument, the State noted that it had to prove "essentially seven elements" beyond a reasonable doubt, including disproving the affirmative defenses. The defense also focused their closing arguments on the affirmative defenses.

         ¶11 After deliberating for approximately three hours, the jurors sent a note to the judge indicating they were deadlocked. Bess moved for a mistrial, but the district court denied the motion and instead read the jury the deadlock instruction from the Model Utah Jury Instructions. The jury deliberated for three more hours and ultimately convicted Bess. When polled, each juror affirmed that his or her verdict was guilty.

         ¶12 Bess then moved for a new trial, arguing that the district court had erroneously omitted two "negative elements" from the preliminary jury instruction. The motion included a declaration from Bess's trial counsel summarizing several conversations she had had with jurors regarding the difference between the preliminary and final elements instructions. According to Bess's trial counsel, several jurors stated that they were surprised by the change in the jury instructions and said that they could have been listening for evidence supporting those provisions if they had known to do so from the beginning of trial.

         ¶13 The parties stipulated to a briefing schedule for the motion for a new trial. Bess agreed to submit his reply to the State's response to the motion by 5:00 p.m. on August 11, 2017. However, on the due date, Bess did not file his reply memorandum until shortly after 7:00 p.m. Along with the motion, he attached a juror declaration impeaching the verdict and an accompanying motion to supplement the new trial motion.

         ¶14 The State moved to strike the juror statements impeaching the verdict, arguing that they violated rule 606 of the Utah Rules of Evidence. At oral argument on these motions, the district court, on its own, excluded both parties' late filings, noting that they had both been "very adamant about deadlines." The court thus decided to ...

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