State v. Sanislo

2015 UT App 232
THE UTAH C OURT OF APPEALS
STATE OF UTAH ,
Appellee,
v.
T ROY A NDREW SANISLO ,
Appellant.
Memorandum Decision
No. 20131123-CA
Filed September 11, 2015
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111909249
John B. Plimpton, Alexandra S. McCallum, and Neal
G. Hamilton, Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
J UDGE J. FREDERIC VOROS J R . authored this Memorandum
Decision, in which J UDGES J AMES Z. D AVIS and STEPHEN L. R OTH
concurred.
VOROS, Judge:
¶1 	Troy Andrew Sanislo was charged with third degree felony
aggravated assault for an incident occurring in December 2011.
The jury acquitted Sanislo of aggravated assault but convicted
him of the lesser included offense of class B misdemeanor assault.
For reasons explained below—and that are not challenged on
appeal—after the jury returned its verdict, the trial court entered
a conviction for class A misdemeanor assault. Sanislo appeals that
conviction. We affirm.
¶2 	At trial, the State requested a jury instruction for class A
misdemeanor assault on the ground that it constituted a lesser

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included 	offense 	of 	the 	charged 	crime, 	third 	degree 	felony
aggravated 	assault. 	Sanislo 	objected, 	arguing 	that 	class 	A
misdemeanor assault did not constitute a lesser included offense
of aggravated assault but that class B misdemeanor assault did
constitute a lesser included offense on which the court could
instruct the jury. The trial court agreed with the State that class A
misdemeanor assault constituted a lesser included offense of
aggravated assault. But it also agreed with Sanislo that class B
misdemeanor assault constituted a lesser included offense of
aggravated assault.
¶3 	Sanislo did not want to confuse the jury by instructing on
two lesser included offenses. Accordingly, subject to his objection,
Sanislo suggested, “[I]f we’re going to include [a lesser included
instruction,] we should probably just . . . have it be the [class] A.”
Unfortunately, neither the State nor Sanislo had an accurate
instruction on class A misdemeanor assault at the ready. To move
things along, Sanislo agreed that the jury could be instructed on
class B misdemeanor assault as a lesser included offense with the
understanding that if the jury convicted on class B misdemeanor
assault “it’s a [class] A not a [class] B.” Importantly, Sanislo’s
objection preserved his right to challenge the trial court’s ruling
that class A misdemeanor assault constitutes a lesser included
offense of aggravated assault. Sanislo now challenges that ruling.
¶4 	On appeal, Sanislo contends that the trial court erred in
ruling that class A misdemeanor assault constitutes a lesser
included offense of aggravated assault. Specifically, he argues
that class A misdemeanor assault does not constitute a lesser
included offense of aggravated assault, because it requires proof
of substantial bodily injury. Sanislo maintains that substantial
bodily 	injury 	constitutes 	an 	additional 	element, 	one 	not
necessarily included in the elements of aggravated assault.
¶5 	A trial court’s decision “to grant a lesser included offense
instruction is a question of law, which we review for correctness.”

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20131123-CA 	3 	2015 UT App 232
State v. Reece, 2015 UT 45, ¶ 16, 349 P.3d 712 (citation and internal
quotation marks omitted).
¶6 	Under Utah law, one offense constitutes a lesser included
offense of another if “[i]t is established by proof of the same or less
than all the facts required to establish the commission of the
offense charged.” Utah Code Ann. § 76-1-402(3)(a) (LexisNexis
2008). Two standards govern whether a trial court may give a
lesser included instruction. See State v. Baker, 671 P.2d 152, 154
(Utah 	1983). 	One 	standard 	applies 	to 	defense-requested
instructions. See id. at 156–58. That standard, the “evidence-
based” standard, allows the defense to request a lesser included
instruction “if any reasonable view of the evidence would support
such a verdict.” Id. at 154 (citation and internal quotation marks
omitted); see also id. at 157–58. The other standard, and the
standard relevant here, applies to State-requested lesser included
instructions. See id. at 155, 156. That standard, the “necessarily
included offense” standard, allows for a State-requested lesser
included instruction if “both the legal elements and the actual
evidence or inferences needed to demonstrate those elements
must necessarily be included within the original charged offense.”
Id. at 156. This standard “relies upon a comparison of the abstract
statutory 	elements.” 	Id. 	at 	154. 	Therefore, 	“the 	relationship
between a lesser included offense and the charged offense will
generally be such that the greater cannot be committed without
committing the lesser.” State v. S.H., 2002 UT 118, ¶ 13, 62 P.3d
444. Finally, a “trial court may properly give a [State-requested]
lesser included offense instruction, even over a defendant’s
objection, if there is clearly no risk that the defendant will be
prejudiced by lack of notice and preparation so as to deprive him
of a full and fair opportunity to defend himself.” Id. ¶ 15 (citation
and internal quotation marks omitted).
¶7 	In 	this 	case, 	Sanislo 	was 	charged 	with 	third 	degree
aggravated 	assault. 	The 	relevant 	elements 	of 	third 	degree
aggravated assault required the State to prove that Sanislo

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committed assault as defined in Utah Code section 76-5-102, and
that he used force likely to produce death or serious injury: 1
A person commits aggravated assault if the person
commits assault as defined in Section 76-5-102 and
uses: 	(a) 	a 	dangerous 	weapon . . . ; 	or (b) 	other
means or force likely to produce death or serious
bodily injury.
Utah Code Ann. § 76-5-103(1) (LexisNexis Supp. 2011).2 Under the
plain language of the aggravated assault statute, aggravated
assault 	cannot 	be 	committed 	without 	necessarily 	having
committed “assault as defined in Section 76-5-102.” Id. Section 76-
5-102 defines, in relevant part, the offense of assault:
(1) 	Assault 	is: . . . (c) 	an 	act, 	committed 	with
unlawful force or violence, that causes bodily injury
to another . . . .
(2) Assault is a class B misdemeanor.
(3) Assault is a class A misdemeanor if: (a) the
person 	causes 	substantial 	bodily 	injury 	to
another . . . .
1. No one contends that Sanislo used a dangerous weapon.
2. Section 76-5-103 has been amended since the time of the events
relevant to this appeal. Compare Utah Code Ann. § 76-5-103
(LexisNexis Supp. 2011), with id. § 76-5-103 (2015). Though it may
go without saying, we “apply the law in effect at the time” of the
incident in question. State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829
(citation and internal quotation marks omitted). Accordingly,
throughout this opinion, we apply the version of the Utah Code
in effect at the time of the charged incident.

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Id. § 76-5-102 (LexisNexis 2008).3
¶8 	Sanislo argues, “From the plain language and structure of
section 76-5-102, it is evident that the definition of assault is
exclusively 	contained 	in 	subsection 	(1).” 	He 	continues 	that
“[s]ubsection (3)(a) merely enhances assault, which is a class B
misdemeanor, to a class A misdemeanor if it results in ‘substantial
bodily injury.’” He concludes that “[s]ubsection (3)(a) does not
define assault,” and that our precedent has “recognized that
subsection (1) defines assault and subsection (3)(a) is merely an
enhancement provision.” We disagree.
¶9 	First, 	Sanislo’s 	preferred 	interpretation 	of 	the 	statute
ignores the statute’s plain language. “Under our rules of statutory
construction, we look first to the statute’s plain language to
determine its meaning.” Sindt v. Retirement Bd., 2007 UT 16, ¶ 8,
157 P.3d 797 (citation and internal quotation marks omitted). The
aggravated assault statute is straightforward. It states that a
person commits aggravated assault if the person, among other
requirements, “commits assault as defined in Section 76-5-102.”
Utah Code Ann. § 76-5-103(1) (LexisNexis Supp. 2011). The plain
language of the aggravated assault statute incorporates section
76-5-102 in its entirety, and therefore any variation of assault
defined in that section satisfies the first element of the aggravated
assault statute.
¶10 	Section 76-5-102 defines at least five different variations of
assault. Subsection 102(1) states what “Assault is” and lists three
separate definitions. One of these definitions defines assault as an
unlawful 	act 	that 	causes 	bodily 	injury. 	Id. 	§ 76-5-102(1)(c)
(LexisNexis 2008). Subsection 102(2) classifies this variant of
3. Section 76-5-102 has also been amended since the time of the
events relevant to this appeal. Compare Utah Code Ann. § 76-5-102
(LexisNexis 2008), with id. § 76-5-102 (2012). We apply the version
of the Utah Code in effect at the time of the charged incident. See
Clark, 2011 UT 23, ¶ 11.

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assault as a class B misdemeanor. Id. § 76-5-102(2). Subsection
102(3) also states what “Assault is” and lists two additional
definitions. One of these defines assault as an unlawful act that
causes substantial bodily injury to another. Id. § 76-5-102(3)(a).
Subsection 102(3) classifies this variant of assault as a class A
misdemeanor. Id. § 76-5-102(3). In other words, section 76-5-102
outlines at least five variations of assault, any one of which, if
proven beyond a reasonable doubt, satisfies the first element of
the aggravated assault statute. See id. § 76-5-103 (Supp. 2011).
¶11 	Second, Sanislo’s preferred interpretation of the statute
would yield an absurd result. Believing that our legislature would
not have intended such results, “we prefer the reading that avoids
absurd results.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT
50, ¶ 26, 267 P.3d 863 (citation and internal quotation marks
omitted). Sanislo would have us construe the aggravated assault
statute’s first element as including only assaults defined in section
76-5-102(1). Under this reading, a person who used lethal force to
commit an assault resulting in no bodily injury, see Utah Code
Ann. § 76-5-102(1)(a), (b) (LexisNexis 2008), would be guilty of
aggravated assault, see id. § 76-5-103(1)(b) (Supp. 2011), but a
person who used lethal force to commit an assault resulting in
substantial bodily injury, see id. § 76-5-102(3)(a) (LexisNexis 2008),
would not, see id. § 76-5-103(1)(b) (Supp. 2011). We do not believe
our legislature intended this result.
¶12 	Finally, none of the precedents Sanislo cites affect the
outcome of the case before us. Sanislo cites State v. Labrum, 2014
UT App 5, 318 P.3d 1151; State v. White, 2011 UT App 162, 258 P.3d
594; and Salt Lake City v. Newman, 2005 UT App 191, 113 P.3d 1007,
all for the proposition that “‘substantial bodily injury’ is merely
an enhancing element [that] . . . is not part of the definition of
assault,” and therefore, it does not constitute a lesser included
offense of aggravated assault. But none of these cases require
Sanislo’s interpretation of the assault statute. True, they refer to
the element contained in class A misdemeanor assault—and not
in class B misdemeanor assault—as an “enhancement.” But the

State v. Sanislo
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fact that an additional element may be called an “enhancement”
does not mean that it plays no part in defining the crime.
¶13 	The legislature defines crimes in Utah, and it does so by
specifying their elements. See State v. Drej, 2010 UT 35, ¶ 23, 233
P.3d 476 (“Legislatures are free to declare what constitutes an
offense against society and to define the elements that constitute
such an offense.” (citation and internal quotation marks omitted));
see also State v. Palmer, 2009 UT 55, ¶ 13, 220 P.3d 1198 (“[I]t is the
role of the legislature to choose the elements that define their
crimes.” (citation and internal quotation marks omitted)). That
those elements may, in some contexts, be termed “enhancements”
does not alter their status as elements. Cf. State v. Lopes, 1999 UT
24, ¶ 12, 980 P.2d 191 (explaining that while the State need not
separately charge an enhancement as a crime, it still must prove
each element of the crime, including the facts supporting the
enhancement, beyond a reasonable doubt).
¶14 	In 	sum, 	we 	conclude 	that 	a 	person 	committing 	any
variation of assault as defined in section 76-5-102 commits an act
that satisfies the first element of the aggravated assault statute.
Thus, one cannot commit the greater offense of aggravated assault
without 	first 	having 	committed 	one 	of 	the 	lesser 	defined
variations 	of 	assault. 	Accordingly, 	we 	hold 	that 	class 	A
misdemeanor assault constitutes a lesser included offense of
aggravated assault.4
4. We understand that Sanislo’s argument makes intuitive sense.
An 	assault 	hierarchy 	might 	be 	constructed 	with 	class 	B
misdemeanor assault as the basic crime, enhanceable to class A
misdemeanor assault by infliction of substantial bodily injury, to
a third degree felony by use of a dangerous weapon or lethal
force, and to a second degree felony with infliction of serious
bodily injury. Under this conceptualization of assault, third
degree felony assault would not subsume class A misdemeanor
(continued…)

State v. Sanislo
20131123-CA 	8 	2015 UT App 232
¶15 	However, our inquiry does not end there. A “trial court
may properly give a lesser included offense instruction, even over
a defendant’s objection, if 	there is clearly no 	risk 	that 	the
defendant will be prejudiced by lack of notice and preparation so
as to deprive him of a full and fair opportunity to defend himself.”
State v. S.H., 2002 UT 118, ¶ 15, 62 P.3d 444 (citation and internal
quotation marks omitted). Thus, Sanislo argues that the trial court
erred in agreeing to give the State-requested lesser included class
A misdemeanor assault instruction because it deprived him of
notice that he would need to defend “against the allegation that
his use of unlawful force or violence actually caused [the victim]
substantial bodily injury.” We do not agree.
¶16 	The information in this case provided notice of the crime
with which Sanislo was charged, aggravated assault, and it
quoted the aggravated assault statute. As explained, the plain
language 	of 	the 	aggravated 	assault 	statute 	incorporates 	the
entirety of the assault statute and every variation of assault
contained therein. Thus, upon review of the charging document,
Sanislo had notice that he would have to defend against any
variation of assault that the evidence might support.
¶17 	In addition, not only did Sanislo have notice of the legal
elements he would have to defend against, he had notice of the
alleged facts in the case—facts that if proven could establish
substantial bodily injury. First, the charging document put Sanislo
assault. The current version of the aggravated assault statute,
which does not apply to the present case, constructs the assault
hierarchy more along these lines. See Utah Code Ann. § 76-5-103
(LexisNexis Supp. 2015). But as we have explained, the earlier
version of the assault statute applicable to this case takes a
different approach. In any event, under any statutory scheme
including multiple lesser included offenses, State-requested lesser
included offense instructions may be given only where the
defendant received adequate notice of the instructed offense as
explained in this decision.

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on notice of the following alleged facts: that when the arresting
officer arrived he found the victim “lying on the ground going in
and out of consciousness”; that the victim had “multiple areas on
his face that had clearly been struck”; that the victim “was
bleeding from several” areas on his face; that the victim’s face
showed bruising and swelling; that the victim “was transported
to the hospital for medical treatment”; that a witness saw Sanislo
punch the victim in the face; and that when the victim tried to get
up, Sanislo punched him in the back of the head, then kicked him
multiple times in the head and ribs while the victim appeared to
be unconscious.
¶18 	Second, the preliminary hearing put Sanislo on notice of
the following facts: that on the night in question the last thing the
victim remembered was leaving a bar downtown, then waking
up, “sitting on the floor, beat up”; that the victim noticed blood
on his shirt; that the victim felt like his nose was broken, that his
head felt numb, and that he felt disoriented; that the victim had a
cut on his chin, a broken tooth, a broken nose, a black eye, a
bloody eye, and “bumps all over [his] head”; that a valet for the
bar witnessed Sanislo punch the victim in the back of the head,
knocking him down; that when the victim tried to stand up,
Sanislo hit him and knocked him down again and then repeatedly
kicked the victim; that EMTs had to provide the victim with
medical care because “he was bleeding pretty badly”; and that the
victim had scheduled surgery for his broken nose.
¶19 	No reasonable person aware of these facts and the charged
offenses could have been surprised that the prosecution sought a
jury instruction on the lesser included offense of assault causing
substantial bodily injury. Indeed, in discussing the propriety of a
lesser included instruction, Sanislo’s trial counsel acknowledged,
“I don’t know that I could argue . . . in good faith, that there was
not . . . substantial bodily injury.” Accordingly, Sanislo “had a full
and fair opportunity to defend against [it].” S.H., 2002 UT 118,
¶ 16.

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20131123-CA 	10 	2015 UT App 232
¶20 	In sum, we conclude that class A misdemeanor assault
constitutes a lesser included offense of aggravated assault—at
least as aggravated assault was defined at the time of the incident
relevant to this appeal—and the trial court did not err in so ruling.
In addition, we reject the notion that Sanislo had no notice that
substantial bodily injury would be an issue in the case. We
accordingly affirm.