State v. Walker

2015 UT App 213

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
FRONTIS WALKER JR.,
Defendant and Appellant.

Amended Opinion1
No. 20131046-CA
Filed August 20, 2015

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 121901324

John B. Plimpton and Charity Shreve, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
STEPHEN L. ROTH and KATE A. TOOMEY concurred.

PEARCE, Judge:

¶1 Frontis Walker Jr. has been charged with aggravated
assault and intends to claim that he acted in self-defense. Walker
filed a motion in the district court seeking to admit evidence of
his alleged victim’s prior acts of violence, which Walker argues
is admissible pursuant to the Utah Rules of Evidence and Utah

1. After our original opinion issued on June 18, 2015, Walker
filed a stipulated petition for rehearing. That petition asked this
court to modify its recitation of one of the background facts in
paragraph 2. We grant the motion and now issue this amended
opinion.
State v. Walker

Code section 76-2-402(5). The district court granted Walker’s
motion in part and denied it in part. Walker brings this
interlocutory appeal from the district court’s order. We vacate
the district court’s order and remand this matter for further
proceedings, including reevaluation of the admissibility of the
proposed self-defense evidence.

BACKGROUND

¶2 The State charged Walker with aggravated assault
following an altercation between Walker and his girlfriend’s
cousin (Cousin).2 On February 12, 2013, Cousin visited the home
that Walker shared with his girlfriend. Walker and Cousin
argued over whether Cousin could drink beer in the house. At
some point, Walker told Cousin that he wanted to take the
dispute outside. Thereafter, Walker punched Cousin in the face,
knocking him unconscious and causing him to suffer an
apparent seizure.

¶3 Walker claimed that he struck Cousin in self-defense. In
support of that claim, Walker filed a motion in the district court
seeking to admit evidence of specific acts of violence Cousin had
committed between 1996 and 2013. This evidence included four
domestic-violence assault convictions resulting from acts
occurring in 1996, 1997, 2003, and 2007; a conviction for a 2009
battery; four allegations of various assaults occurring in 1998,
2007, 2012, and 2013; and the testimony of two witnesses who
would state that Cousin had become ‚intoxicated and violent‛
on several occasions. Walker’s motion argued that the evidence
consisted of Cousin’s ‚prior violent acts or violent propensities‛
and was therefore admissible under Utah Code section
76-2-402(5) to show the imminence of the threat to Walker and

2. We recite the background facts as alleged by the State,
recognizing that they are, at this point, unproven allegations.

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the reasonableness of his response. Walker also argued that
Cousin’s history was admissible under the Utah Rules of
Evidence without resort to section 76-2-402(5). In response, the
State filed a motion to exclude the evidence.

¶4 After a hearing on the competing motions, the district
court ruled that Cousin’s 1997 felony conviction was admissible
pursuant to the State’s stipulation and rule 609(a)(1) of the Utah
Rules of Evidence. The district court also ‚strictly constru*ed+‛
Utah Code section 76-2-402(5) to conclude that Cousin’s ‚prior
violent acts are admissible to show whether the defendant
reasonably believed that force was necessary and the danger was
imminent.‛ However, recognizing that ‚this is a novel issue and
there is no applicable case law,‛ the district court ruled that
Walker ‚may only admit evidence of prior violent acts that can
be proven in the form of certified convictions within the last ten
years.‛ This ruling established the admissibility of three more
convictions, those occurring in 2003, 2007, and 2009.

¶5 We granted Walker’s petition for interlocutory review of
the district court’s ruling.

ISSUE AND STANDARD OF REVIEW

¶6 Walker argues that all of Cousin’s prior violent acts must
be admitted at his trial pursuant to both Utah Code section
76-2-402(5) and the Utah Rules of Evidence. For the reasons
discussed herein, we limit our discretionary review to the
interpretation of Utah Code section 76-2-402(5). See McCloud v.
State, 2013 UT App 219, ¶ 19 n.3, 310 P.3d 767 (limiting the scope
of an interlocutory appeal to a single issue despite briefing of
additional issues); Gunn Hill Dairy Props., LLC v. Los Angeles
Dep’t of Water & Power, 2012 UT App 20, ¶¶ 20–21, 269 P.3d 980
(discussing discretionary nature of interlocutory appeals).
‚Questions of statutory interpretation are matters of law, which

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we review for correctness.‛ State v. Graham, 2011 UT App 332,
¶ 14, 263 P.3d 569.

ANALYSIS

¶7 Utah Code section 76-2-402 permits a defendant to assert
self-defense in certain circumstances. ‚A person is justified in
threatening or using force against another when and to the
extent that the person reasonably believes that force or a threat
of force is necessary to defend the person . . . against another
person’s imminent use of unlawful force.‛ Utah Code Ann.
§ 76-2-402(1) (LexisNexis 2012). Section 76-2-402(5) expressly
identifies certain factors that may be considered in evaluating
the reasonableness and imminence aspects of a self-defense
claim:

In determining imminence or reasonableness
under Subsection (1), the trier of fact may consider,
but is not limited to, any of the following factors:
(a) the nature of the danger; (b) the immediacy of
the danger; (c) the probability that the unlawful
force would result in death or serious bodily
injury; (d) the other’s prior violent acts or violent
propensities; and (e) any patterns of abuse or
violence in the parties’ relationship.

Id. § 76-2-402(5).

¶8 Walker intends to assert a claim of self-defense. Walker
argues that evidence of Cousin’s prior violent acts must be
admitted under the plain language of Utah Code section
76-2-402(5) to show that Walker reasonably believed force was
necessary to defend himself against Cousin’s imminent use of
unlawful force. Walker contends that section 76-2-402(5)
supersedes the Utah Rules of Evidence because it substantively
affects the elements of a self-defense claim. In the alternative,

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Walker argues that section 76-2-402(5) implements evidentiary
or procedural changes that effectively amend the Utah Rules of
Evidence.

¶9 We first address Walker’s contention that Utah Code
section 76-2-402(5) has a substantive effect on the law of self-
defense. According to Walker, section 76-2-402(5)(d) ‚is either a
substantive law that defines ‘reasonableness’ and ‘imminence’ in
the context of self-defense or it is a prima facie rule of evidence
that is so intertwined with the substantive right to plead self-
defense that the Court must treat it as substantive.‛ We disagree.

¶10 Nothing in the plain language of section 76-2-402(5)
suggests that the factors enumerated therein are intended to
substantively alter the definitions of reasonableness or
imminence. Rather, that section provides that ‚the trier of fact
may consider‛ the enumerated factors, including an alleged
victim’s violent acts and propensities. Utah Code Ann.
§ 76-2-402(5) (emphasis added). The ultimate question before the
trier of fact remains the reasonableness of a defendant’s belief
that force was necessary to defend against another’s imminent
use of unlawful force. See id. § 76-2-402(1). Further, since the
Utah Legislature enacted section 76-2-402(5), both this court and
the Utah Supreme Court have stated that a claim of self-defense
‚‘does not place . . . character at issue.’‛ State v. Campos, 2013 UT
App 213, ¶ 87, 309 P.3d 1160 (omission in original) (quoting State
v. Leber, 2009 UT 59, ¶ 23, 216 P.3d 964). This statement appears
to be incompatible with Walker’s assertion that ‚the purpose of
[section] 76-2-402(5)(d) is to bestow defendants with the right to
present evidence with broad narrative value of the alleged
victim’s violent character.‛ (Citation and internal quotation
marks omitted.)

¶11 We conclude that section 76-2-402(5) does just what its
plain language states—it identifies a nonexclusive list of factors
that may appropriately bear on a factfinder’s evaluation of a self-

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defense claim. Section 76-2-402(5) thereby establishes that the
enumerated factors may not be categorically excluded as
potentially admissible evidence. Section 76-2-402(5) also serves
as a guide for judges and practitioners by identifying factors that
may be useful in establishing or refuting self-defense. But we
cannot read the language ‚may consider‛ as enshrining an
absolute right to admit evidence of an alleged victim’s prior
violent acts or propensities. Nor does the language otherwise
substantively change the law of self-defense.

¶12 By way of comparison, the Utah Supreme Court has held
that the Legislature substantively changed the law of negligence
when it enacted Utah Code section 41-6-186. See Ryan v. Gold
Cross Servs., Inc., 903 P.2d 423, 425 (Utah 1995). Section 41-6-186
stated, ‚The failure to wear a seat belt does not constitute
contributory or comparative negligence, and may not be
introduced as evidence in any civil litigation on the issue of
injuries or on the issue of mitigation of damages.‛ Utah Code
Ann. § 41-6-186 (Michie 1988). Rejecting a challenge that the
statute violated constitutional restrictions on the Legislature’s
power to make evidentiary rules, the supreme court concluded
that ‚the statute’s operative provisions announce a substantive
principle: ‘The failure to wear a seat belt does not constitute
contributory or comparative negligence . . . .’‛ Ryan, 903 P.2d at
425 (omission in original). Here, there is no corresponding
language in Utah Code section 76-2-402(5) that effects any
substantive change to the law of self-defense.

¶13 Walker also argues that the Legislature intended section
76-2-402(5) to amend the Utah Rules of Evidence. Walker
contends that the language ‚may consider . . . any of the
following factors‛ means that evidence of the enumerated
factors must necessarily be admitted for the factfinder’s
consideration. See Utah Code Ann. § 76-2-402(5) (LexisNexis
2012). We are not convinced that the Utah Legislature intended
section 76-2-402(5) to amend the Utah Rules of Evidence.

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¶14 As discussed above, the plain language of section
76-2-402(5) states only that the trier of fact ‚may consider‛ a non-
exhaustive list of factors. See id. This statutory language does not
expressly purport to amend or override any provisions of the
Utah Rules of Evidence; indeed, it does not even use the word
‚evidence,‛ speaking instead in terms of ‚factors.‛ Further, the
bill enacting section 76-2-402(5) contained a statement of
legislative intent, indicating, ‚It is intended that otherwise
competent evidence regarding a victim’s response to patterns of
domestic abuse or violence be considered by the trier of fact in
determining reasonableness or imminence.‛ H.B. 13, 50th Leg.,
Gen. Sess. (Utah 1994) (emphasis added). Because the Utah Rules
of Evidence comprise the yardstick by which evidence is deemed
‚competent,‛ the reference to ‚otherwise competent evidence‛
strongly suggests that the Legislature did not intend for section
76-2-402(5) to override or amend the Utah Rules of Evidence.

¶15 We also note that, in enacting section 76-2-402(5), the Utah
Legislature did not employ the procedure that has been
recognized as the method by which the Legislature can
constitutionally amend the Utah Rules of Evidence. ‚While the
Legislature has the constitutional authority to amend the Rules
of Procedure and Evidence adopted by the Utah Supreme Court,
it may only do so by joint resolution adopted ‘upon a vote of
two-thirds of all members of both houses of the Legislature.’‛
Allred v. Saunders, 2014 UT 43, ¶ 3 n.2, 342 P.3d 204 (quoting
Utah Const. art. VIII, § 4). Here, although the parties agree that
section 76-2-402(5) was enacted by a two-thirds vote, it was not
enacted by joint resolution. Nor did the enacting bill expressly
purport to amend the Utah Rules of Evidence. Thus, even
though section 76-2-402(5) was adopted by a two-thirds
majority, ‚it constitutes an amendment to a statute, not an
amendment to a rule of procedure adopted by the Supreme Court.‛
See Allred, 2014 UT 43, ¶ 3 n.2; see also State v. Larsen, 850 P.2d
1264, 1266–67 (Utah 1993) (‚It would appear that article VIII,
section 4 requires any legislation which amends a court rule to

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comply with the same legislative joint rules and practice
governing amendments to statutes, that is, to refer to the rule
specifically by number and indicate how it is to be amended.‛
(citing Utah House and Senate Joint Rule 4.11)).

¶16 In light of the statute’s plain language and the
Legislature’s statement of intent in enacting Utah Code section
76-2-402(5), as well as to avoid separation-of-powers concerns,
we decline Walker’s invitation to interpret that section as
amending or otherwise affecting the application of the Utah
Rules of Evidence. Thus, while section 76-2-402(5) identifies a
non-exclusive list of factors that may be considered, evidence in
support of those factors must still satisfy the Utah Rules of
Evidence to be admissible.

¶17 Walker also argues that Cousin’s prior violent acts are
admissible under the Utah Rules of Evidence without regard to
Utah Code section 76-2-402(5). We decline to evaluate that issue
at this interlocutory stage of the proceedings. It is apparent from
the district court’s ruling that the court made its evidentiary
ruling under the erroneous impression that Utah Code section
76-2-402(5) controlled over the ordinary evidentiary rules. Thus,
the district court has yet to analyze the prior violent acts under
the applicable evidentiary rules, and we decline to conduct that
analysis in the first instance. See Gunn Hill Dairy Props., LLC v.
Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶¶ 20–21,
269 P.3d 980 (discussing discretionary nature of interlocutory
appeals). Additionally, at least one of Walker’s evidentiary
arguments—that the prior acts evidence is admissible under the
doctrine of chances, see State v. Verde, 2012 UT 60, ¶¶ 47–62, 296
P.3d 673—does not appear to have been presented to the district
court in support of Walker’s motion to admit the evidence. ‚As a
general rule, claims not raised before the trial court may not be
raised on appeal.‛ State v. Benson, 2014 UT App 92, ¶ 24, 325 P.3d
855 (citation and internal quotation marks omitted). For these
reasons, we decline to evaluate the evidence under the Utah

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Rules of Evidence at this time. Walker may pursue those
arguments before the district court on remand.

CONCLUSION

¶18 We conclude that evidence of an alleged victim’s prior
violent acts or propensities—and the other factors enumerated in
Utah Code section 76-2-402(5)—must satisfy the Utah Rules of
Evidence to be admissible. We therefore vacate the district
court’s evidentiary ruling and remand this matter for further
proceedings consistent with this opinion.

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