State v. Herrera

2021 UT App 46
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A LBERTO HERRERA,
Appellant.
Opinion
No. 20190614-CA
Filed April 15, 2021
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 181904680
Nathalie S. Skibine, Elise Lockwood, and Nick
Falcone, Attorneys for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
S ENIOR JUDGE K ATE A PPLEBY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and JILL M. POHLMAN
concurred.1
APPLEBY, Senior Judge:
¶1 	Alberto Herrera appeals his conviction of driving with a
measurable controlled substance in the body and causing serious
bodily injury or death. He argues that the district court erred
when it denied his request to instruct the jury on several lesser
included offenses. We affirm.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

State v. Herrera
20190614-CA 	2 	2021 UT App 46
BACKGROUND
¶2 	One morning Herrera was driving a car more than ten
miles per hour over the speed limit. As he reached over to pick
up a sports drink from the center console, the car veered across
the center line into oncoming traffic. The car collided, nearly
head-on, with a pickup truck pulling a trailer loaded with heavy
machinery. The collision sent both vehicles spinning off the road.
Herrera 	suffered 	some 	broken 	bones, 	but 	his 	passenger
ultimately 	died 	from 	her 	injuries. 	When 	police 	officers
questioned him about the collision, Herrera explained that the
car veered into oncoming traffic as he reached to get his drink.
He also said it seemed that something may have been wrong
with the alignment, but he did not know.
¶3 	When officers searched the car to find the passenger’s
identification, 	they 	discovered 	methamphetamine 	and 	a
marijuana pipe. A blood draw performed on Herrera revealed
that the level of methamphetamine in his blood was higher
than 	1,000 	nanograms 	per 	milliliter.1F
2 	But 	the 	amount 	of
methamphetamine could not be precisely determined because it
exceeded the maximum the test could precisely ascertain.
¶4 	Herrera was charged with several crimes, including the
charge at issue here—negligently driving with a measurable
controlled substance in the body and causing serious bodily
injury or death. During the proceedings, Herrera asked the
district court to instruct the jury on the lesser included offenses
of automobile homicide, driving under the influence (DUI) with
serious bodily injury, and DUI. The court denied the request,
reasoning that these offenses had an impairment element “that is
not 	overlapping 	with 	the 	charge 	in 	this 	matter.” 	The 	jury
2. A toxicologist testified at trial that more than 200 nanograms
per 	milliliter 	is 	a 	“toxic 	level” 	and 	an 	amount 	of 	2,000
nanograms per milliliter can be lethal.

State v. Herrera
20190614-CA 	3 	2021 UT App 46
ultimately convicted Herrera on the controlled substance charge.
Herrera timely appeals.
ISSUES AND STANDARD OF REVIEW
¶5 	Herrera argues the district court erred by denying his
request to instruct the jury on several lesser included offenses.
“The refusal to give a requested jury instruction on a claimed
lesser included offense is a legal determination, which we review
for correctness.” State v. Simpson, 904 P.2d 709, 711 (Utah Ct.
App. 1995).
ANALYSIS
¶6 	When determining whether another crime constitutes a
lesser included offense of the charged crime, district courts
employ 	different 	analyses 	depending 	on 	which 	party 	is
requesting the lesser-included-offense instruction. A narrower
standard 	is 	applied 	when 	the 	prosecutor requests a 	lesser-
included-offense 	instruction. 	“[W]hen 	the 	prosecution 	seeks
instruction on a proposed lesser included offense, both the legal
elements 	and 	the 	actual 	evidence 	or 	inferences 	needed 	to
demonstrate those elements must necessarily be included within
the original charged offense.” State v. Baker, 671 P.2d 152, 156
(Utah 1983). Thus, “no element may be included in the lesser
offense that is not included in the greater offense.” Id. (quotation
simplified). This narrow standard serves to protect a defendant
from having to defend against a crime for which he was not
charged, as “his defense against the greater will, of necessity, be
a defense against the lesser also.” Id.
¶7 	But when, as in this case, the defendant is the party
requesting 	the 	jury 	instruction, 	what 	constitutes 	a 	lesser
included offense is more expansive. In this situation, there must
“exist 	some 	overlap 	in 	the 	statutory 	elements 	of 	allegedly
‘included’ offenses.” Id. at 159; see also Utah Code Ann. § 76-1-

State v. Herrera
20190614-CA 	4 	2021 UT App 46
402(3)(a) (LexisNexis 2017) (defining an included offense as one
“established by proof of the same or less than all the facts
required to establish the commission of the offense charged”).3
“[W]here 	two 	offenses 	are 	related 	because 	some 	of 	their
statutory elements overlap, and where the evidence at the trial of
the 	greater 	offense 	includes 	proof 	of 	some 	or 	all 	of 	those
overlapping elements, the lesser offense is an included offense
. . . .” Baker, 671 P.2d at 159. This more expansive test “gives the
defendant the benefit of the reasonable doubt standard” by
giving the jury a third option between acquittal and conviction
when proof of the charged crime is in dispute. See id. at 157.
¶8 	Nonetheless, a district court is not required to honor a
defendant’s request to instruct the jury on a lesser included
offense “unless there is a rational basis for a verdict acquitting
the defendant of the offense charged and convicting him of the
included 	offense.” 	Utah 	Code 	Ann. 	§ 	76-1-402(4). 	It 	is 	not
enough that there is evidence supporting the lesser included
offense, but that evidence must at the same time support an
acquittal of the greater offense. “In determining whether there is
a ‘rational basis’ for acquitting the defendant of the offense
charged and convicting him of a lesser included offense, the
court must, of course, view the evidence and the inferences that
can be drawn from it in the light most favorable to the defense.”
State v. Crick, 675 P.2d 527, 532 (Utah 1983).
I. Automobile Homicide
¶9 	To determine whether automobile homicide is a lesser
included offense in this case, we start by comparing the elements
of that offense with the elements of the charged crime. Herrera’s
3. 	Because 	the 	relevant 	portions 	of 	the 	Utah 	Code 	remain
unchanged from those in effect at the time Herrera committed
this crime, we cite the current version as a convenience to the
reader.

State v. Herrera
20190614-CA 	5 	2021 UT App 46
charged 	crime 	under 	the 	Utah 	Controlled 	Substances 	Act
required 	the 	State 	to 	show 	that 	while 	he 	“knowingly 	and
intentionally ha[d] in [his] body any measurable amount of a
controlled substance,” he “operate[d] a motor vehicle . . . in a
negligent manner, causing serious bodily injury . . . or the death
of another.” Utah Code Ann. § 58-37-8(2)(g) (LexisNexis Supp.
2020). The elements of automobile homicide are met when a
person “is under the influence of . . . any drug . . . to a degree
that renders the person incapable of safely operating a vehicle”
and the person “operates a motor vehicle in a negligent manner
causing the death of another.” Id. § 76-5-207(2)(a) (2017). Because
automobile 	homicide 	and 	the 	charged 	offense 	each 	include
overlapping 	elements of 	operating 	a 	vehicle 	in 	a 	negligent
manner and causing the death of another, automobile homicide
constitutes a lesser included offense.4
¶10 	But 	as 	discussed 	above, 	the 	district 	court 	is 	not
required to instruct the jury on all lesser included offenses. Such
an instruction is given only if “there is a rational basis for a
verdict acquitting the defendant of the offense charged and
convicting 	him 	of 	the 	included 	offense.” 	Id. 	§ 	76-1-402(4).
Regarding automobile homicide and the controlled substance
charge, 	the 	difference 	between 	the 	crimes 	is 	the 	element
addressing 	what, 	precisely, 	must 	be 	proved 	relative 	to 	the
level 	of 	drug 	present. 	The 	controlled 	substance 	charge
4. The district court denied Herrera’s request for lesser-included-
offense instructions because the impairment element included in
each proposed lesser included offense is not an element of the
charged controlled substance offense. Thus, it appears the court
mistakenly applied the narrower evaluative standard required
when a prosecutor is the party requesting the lesser-included-
offense 	instruction. 	The 	State 	recognizes 	this 	likelihood 	on
appeal and concedes that each of the crimes for which Herrera
requested 	additional 	jury 	instructions 	were, 	indeed, 	lesser
included offenses under the applicable standard.

State v. Herrera
20190614-CA 	6 	2021 UT App 46
required showing that Herrera “knowingly and intentionally
ha[d] in [his] body any measurable amount of a controlled
substance,” id. § 58-37-8(2)(g), while automobile homicide would
have required a showing that Herrera was “under the influence”
of a drug, id. § 76-5-207(2)(a). Therefore, the district court was
not obligated to give the automobile homicide jury instruction
unless there was a rational basis for a jury to determine that
Herrera was under the influence of methamphetamine but did
not knowingly and intentionally have a measurable amount of it
in his system.
¶11 	Herrera argues there is evidence from which a jury could
have inferred he was under the influence of methamphetamine,
including 	“evidence 	of 	erratic 	driving,” 	methamphetamine
possession, and very high blood test results. But he fails to
provide some interpretation of the facts under which there
would be a rational basis for the jury to find both that he was
under the influence of methamphetamine and that he did not
knowingly and intentionally have a measurable amount in his
system. See State v. Baker, 671 P.2d 152, 160 (Utah 1983) (focusing
on 	whether 	“any of those 	alternative 	interpretations would
provide 	both 	a 	rational 	basis 	for 	a 	verdict 	acquitting 	the
defendant of the offense charged and convicting him of the
included offense” (emphasis added) (quotation simplified)). And
we do not see any interpretation of the presented facts that
would fit this requirement.
¶12 	Indeed, 	Herrera 	recognizes 	that 	his 	driving, 	drug
possession, 	and 	test 	results 	support 	the 	elements 	of 	both
offenses. Yet he argues that because the lesser included offense is
a “better fit” with the evidence presented, the jury had a rational
basis to acquit him on the charged offense and convict him on
the lesser offense. But this argument is contrary to both the
established 	rule 	for 	a 	lesser-included-offense 	instruction, 	see
Utah Code Ann. § 76-1-402(4) (LexisNexis 2017), and our case
law addressing that rule:

State v. Herrera
20190614-CA 	7 	2021 UT App 46
If the jury were free to acquit of the greater offense
and convict of any lesser offense simply because
the lesser offense had been proved, this would
allow the jury to preempt the prosecutor’s function
in charging offenses and the judge’s function in
imposing 	sentences. 	. 	. 	. 	Instruction 	on 	lesser
included 	offenses 	in 	that 	circumstance 	would
confuse the jury as well as invite them to exceed
their function.
State v. Crick, 675 P.2d 527, 532 (Utah 1983).
¶13 	Herrera’s argument emphasizes the “fundamental policy
of permitting the jury to find a defendant guilty of any offense
that fits the facts, rather than forcing it to elect between the
charges the prosecutor chooses to file and an acquittal.” See State
v. Hansen, 734 P.2d 421, 424 (Utah 1986). But this concern arises
only when the jury is confronted with a dilemma because it is
unconvinced that the charged offense has been proved yet is
certain that the defendant is guilty of some wrongdoing. See id.
at 424–25 (“Where one of the elements of the offense charged
remains in doubt but the defendant is plainly guilty of some
offense, the jury is likely to resolve its doubts in favor of
conviction.” 	(quotation 	simplified)). 	Giving 	the 	jury 	a 	third
option in such a situation protects the defendant by giving him
the benefit of the reasonable doubt standard. See Baker, 671 P.2d
at 157. And in such a situation, where there is a rational basis for
the jury to have doubt on elements of the charged offense and
yet certainty that elements of a lesser offense have been shown,
the rational basis requirement for providing a lesser-included-
offense instruction would be met.
¶14 	But in a case such as the one before us, where there is no
rational basis to acquit a defendant on the charged offense but
convict of the lesser offense, the district court is not required to
give the jury the opportunity to determine which of all the
proven offenses best fits the facts of the case. “Although . . . the

State v. Herrera
20190614-CA 	8 	2021 UT App 46
jury has an inherent mercy-dispensing power as an inevitable
consequence of the jury system, . . . the jury does not have the
right to find a fact and then refuse to render the verdict which
such a finding necessarily requires.” Crick, 675 P.2d at 531
(quotation simplified). The jury may not acquit on the charged
offense simply because it determines a more fitting offense
exists, and the court should avoid giving an instruction “that
would constitute an invitation to the jury to foreswear its duty
and return a compromise or otherwise unwarranted verdict,” id.
(quotation simplified). The jury’s function is not to determine
which offense is the “best fit” when the facts meet the elements
of multiple offenses and when there is not a rational basis to
both acquit of the greater offense and convict on the lesser
offense. In short, it was not error for the district court to refuse to
give a jury instruction on automobile homicide.
II. DUI with Serious Bodily Injury
¶15 	Our analysis again starts with comparing the elements of
the charged offense with those of the proposed lesser included
offense. The elements of DUI with serious bodily injury are met
when a person “is under the influence of . . . any drug . . . to a
degree that renders the person incapable of safely operating a
vehicle,” id. § 41-6a-502(1)(b), and ”the person has also inflicted
serious bodily injury upon another as a proximate result of
having operated the vehicle in a negligent manner,” id. § 41-6a-
503(2)(a). Both this offense and Herrera’s controlled substance
charge have overlapping elements of negligent driving and
causing serious bodily injury, and thus, DUI with serious bodily
injury constitutes a lesser included offense. But once again, the
distinguishing element between the offenses is the precise level
of drug involvement that must be shown—the charged offense
requiring a measurable amount of drugs in Herrera’s system and
the lesser included offense requiring that Herrera was under the
influence. And as we discussed above, there is no interpretation
of the facts presented to the jury that would provide a rational
basis for it to conclude that Herrera did not knowingly and

State v. Herrera
20190614-CA 	9 	2021 UT App 46
intentionally have a measurable amount of methamphetamine in
his system but was under its influence. Therefore, we also see no
error in the district court’s refusal to instruct the jury on DUI
with serious bodily injury.
III. DUI
¶16 	The elements of DUI are met when a person operates a
vehicle while “under the influence of . . . any drug . . . to a
degree that renders the person incapable of safely operating a
vehicle.” Utah Code Ann. § 41-6a-502(1) (LexisNexis Supp. 2020).
This offense overlaps with Herrera’s controlled substance charge
because each offense includes the operation of a vehicle, and
thus, 	DUI 	also 	constitutes 	a 	lesser 	included 	offense 	of 	the
charged controlled substance offense.
¶17 	As to whether there is a rational basis on which a jury
could convict Herrera of this offense while acquitting him of the
charged controlled substance offense, he argues that the jury
rationally could have acquitted him on the controlled substance
charge if it was unconvinced the State had proved that he drove
negligently or that his negligent driving caused the collision—
elements that are not required for the DUI offense. But even
assuming that the rational basis test was met and it therefore
was erroneous for the court to refuse to instruct on DUI, we are
unconvinced that any such failure was harmful under the facts
of this case. See generally State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d
888 	(“[H]armless 	error 	is 	an 	error 	that 	is 	sufficiently
inconsequential that there is no reasonable likelihood that it
affected the outcome of the proceedings. Put differently, an error
is harmful only if the likelihood of a different outcome is
sufficiently 	high 	that 	it 	undermines 	our 	confidence 	in 	the
verdict.” (citation omitted)).
¶18 	Scant evidence in the record supports a determination
that something other than Herrera’s negligent driving caused the
collision. Although Herrera argues there might have been some

State v. Herrera
20190614-CA 	10 	2021 UT App 46
malfunction in the car’s alignment, the only evidence of this
presented at trial was Herrera’s post-collision explanation to
officers 	that 	he 	thought 	maybe 	the 	car’s 	alignment 	had 	a
problem. 	No 	evidence 	other 	than 	Herrera’s 	speculation
supported the theory that an alignment malfunction caused the
collision, 	nor 	was 	any 	evidence 	presented 	that 	alignment
problems could suddenly cause the car to veer from its lane after
it had maintained for some time its position in the appropriate
lane of travel.
¶19 	Furthermore, 	there 	was 	overwhelming 	evidence 	to
support the jury’s determination that Herrera’s negligent driving
caused the collision. The evidence shows that Herrera had been
successfully keeping the car in its appropriate lane for some time
before 	the 	collision, 	that 	he 	was 	speeding 	just 	before 	the
collision, that he was reaching to pick up his drink just when the
car veered, and that the level of methamphetamine in his system
was extremely high. Indeed, for the jury to convict of the lesser
included DUI offense, it would have to believe that Herrera was
under the influence of methamphetamine “to a degree that
render[ed him] incapable of safely operating a vehicle.” See Utah
Code Ann. § 41-6a-502(1)(b). It does not seem reasonably likely
in such a case that a jury would determine that although Herrera
was driving under the influence of methamphetamine, speeding,
and had reached for his drink just as the car veered, that the
hypothesized alignment issues were the true cause of the car
suddenly veering into oncoming traffic. Thus, our confidence in
the verdict is not undermined, and we determine that any error
in failing to give a DUI jury instruction was harmless.4F
5
5. Herrera also argues that the jury may not have believed that
any negligent driving caused the passenger’s serious injury or
death, citing some evidence that the passenger may not have
been properly wearing her seatbelt. But even assuming the
passenger’s seatbelt was not properly situated on her chest, we
(continued…)

State v. Herrera
20190614-CA 	11 	2021 UT App 46
CONCLUSION
¶20 	We 	determine 	that 	the 	district 	court 	did 	not 	err 	in
denying Herrera’s request to instruct the jury on automobile
homicide and DUI with serious bodily injury because there was
no rational basis to acquit him of the charged offense while
convicting him on either of these lesser offenses. And to the
extent there was any error in the district court’s refusal to
instruct the jury on the DUI offense, we find any such error
harmless under the facts of this case. We therefore affirm.
(…continued)
are not persuaded that it is reasonably likely that the jury would
have found that a misuse of the seatbelt, as opposed to the
negligent collision, caused her to suffer serious bodily injury and
death.