State v. Sorbonne

2020 UT App 48

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT LYNN SORBONNE,
Appellant.

Opinion
No. 20190013-CA
Filed March 26, 2020

Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 181800213

Laura J. Fuller, Attorney for Appellant
Stephen D. Foote, Grant H. Charles, and W. Anthony
Wilcox, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGE
MICHELE M. CHRISTIANSEN FORSTER concurred. JUDGE MICHELE M.
CHRISTIANSEN FORSTER filed a concurring opinion, in which
JUDGE GREGORY K. ORME joined in part. JUDGE GREGORY K. ORME
filed a dissenting opinion.

HAGEN, Judge:

¶1 Following a heated argument with his father, nineteen-
year-old Robert Lynn Sorbonne got into a car with his younger
sister and drove away from their father’s property. Shortly
thereafter, the father chased them down in his own vehicle and
cut them off on the road, forcing them to stop. When the father
exited his vehicle and attempted to approach Sorbonne’s car,
Sorbonne pointed a gun at his father and threatened to kill him.
Based on that event, the State charged Sorbonne with one count
of threatening with or using a dangerous weapon in a fight or
quarrel, a class A misdemeanor. At his bench trial, Sorbonne
State v. Sorbonne

claimed self-defense, arguing that his father had a history of
violence and that Sorbonne reasonably feared for his and his
sister’s safety when he pulled the gun. The district court found
Sorbonne guilty.

¶2 On appeal, Sorbonne contends that his conviction
should be reversed because the district court erred by
(1) applying the self-defense standard for “using force
intended or likely to cause death or serious bodily injury”
rather than the standard for “threatening or using” non-deadly
force, (2) excluding evidence of the father’s prior violent and
abusive acts, and (3) misapplying the reasonableness standard
contained in Utah’s self-defense statute. We reject his arguments
and affirm.

BACKGROUND 1

The Prosecution’s Version of Events

¶3 Sorbonne’s family was “under a lot of stress” on the
morning of June 20, 2018, as a result of his mother leaving his
father and requesting a divorce the previous night. After
Sorbonne woke up, he asked his father where his mother was.
When his father told him that she “left and wanted a divorce,” a
heated argument ensued. They began yelling at each other, and
Sorbonne blamed his father for “screw[ing] up” and causing his
mother to leave. Sorbonne was also angry because they had
“done so much work on the[ir] ranch and [they] all wanted to

1. Sorbonne appeals his conviction from a bench trial.
Accordingly, “we recite the facts from the record in the light
most favorable to the findings of the trial court and present
conflicting evidence only as necessary to understand issues
raised on appeal.” State v. Cowlishaw, 2017 UT App 181, ¶ 2, 405
P.3d 885 (cleaned up).

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get it finished,” and, apparently, the mother leaving threw a
wrench in those plans.

¶4 Afterward, Sorbonne and his younger sister, who
witnessed the argument, told their father that they were leaving
to go to Salt Lake City, Utah. This news upset the father, who
still wanted his children’s help with some work to be done on
the ranch. After his children left the house, the father “stomped”
on and broke a chair in anger.

¶5 Sorbonne and his sister got in a car and drove down a
dirt road that led off the property. About one minute after
they left, the father decided that he “was going to catch up
with [Sorbonne] and apologize.” The father hopped into his
own vehicle and caught up with Sorbonne’s car about a mile
away from the house. The father pulled ahead of Sorbonne’s
car at about thirty-five miles per hour and with about five
feet separating the sides of the two vehicles. Then the father
“skidded to a stop” in front of Sorbonne’s vehicle, forcing
Sorbonne to stop as well but leaving enough space on the side
of the road that Sorbonne could have driven around if he
wanted.

¶6 The father climbed out of his vehicle, held his “arms out
to the left and right,” and told Sorbonne that he “was sorry and
that [he] needed his help.” Sorbonne got out of his car as the
father approached. When the father was about eight feet away,
Sorbonne opened the rear door of his car, retrieved a handgun,
chambered a round, pointed the gun at his father, and said, “I’m
going to fuckin’ kill you.”

¶7 The father told Sorbonne that “he was making a really
big mistake and that he’s gonna go to jail” and asked him to
put the gun down. Sorbonne asked his younger sister to call
the police, but his father told him that he did not “want
to involve the police” because Sorbonne would end up “going
to . . . jail.” The sister fumbled with her phone in the car, and

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the father volunteered to call the police himself. The father
put the police on speaker phone and then retreated from
the scene because he feared that he “was going to get shot.”

¶8 Sorbonne resumed driving but soon encountered a
police roadblock and peacefully surrendered himself into
custody. The State then charged Sorbonne with one count of
threatening with or using a dangerous weapon in a fight or
quarrel.

The Defense’s Theory at Trial

¶9 At his bench trial, Sorbonne argued that he was acting in
self-defense and presented a different version of the foregoing
events to back up that claim. According to Sorbonne and his
younger sister, their father displayed multiple instances of
erratic and angry behavior that day, causing them to fear that
their father meant them harm when he cut them off on the road
as they attempted to leave the property.

¶10 In further support of his self-defense theory at trial,
Sorbonne presented evidence of his father’s prior violent and
abusive acts to “show the reasonableness of [Sorbonne’s] fear
which justified his threat of force.” Much of this evidence was
admitted, but some pieces were excluded.

¶11 The father himself admitted to multiple facts indicating
that he had a violent character, including that (1) the mother
obtained a protective order against him during their divorce
proceedings; (2) he and the mother were “both abusive” to each
other; (3) he sprayed starter fluid in the mother’s eyes; (4) he
spanked all his children until they were six or seven years old;
(5) he punched the mother in the shoulder eleven years earlier;
and (6) he once fought with Sorbonne and, while they were
“wrestling,” Sorbonne’s head was smashed through a cupboard
and Sorbonne’s grandmother was knocked to the ground.
However, the father categorically denied ever abusing any of his

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children. 2 All these admissions and denials were admitted into
evidence.

¶12 In addition to the father’s admissions, the defense sought
to introduce further evidence of the father’s prior violent acts.
Sorbonne’s grandmother testified that there were “[m]any
times” that the father was involved in road rage incidents.
However, the district court struck that testimony after an
objection from the prosecutor.

¶13 Sorbonne’s younger sister testified that she had spoken
to Utah’s Division of Child and Family Services (DCFS).
However, when trial counsel asked her if DCFS ever made
“supported findings” that her father had abused her, the
prosecutor made a hearsay objection. After some back and forth
between the prosecutor and trial counsel, the district court
expressed uncertainty about “what a DCFS-supported finding
is.” As the district court continued to discuss its uncertainty, trial
counsel interjected, “Yeah. All right. No further questions.
Thank you.”

¶14 Sorbonne’s older sister, who was not present during the
events leading to Sorbonne’s arrest, also testified. Trial counsel
asked her, “Has [your father] ever hit you or put his hand
around your throat or anything like that?” The older sister
responded, “Yes.” The prosecutor objected on the basis of
relevance. Trial counsel responded that it was relevant because it
demonstrated that the father had a “pattern” of violent or
abusive conduct. The district court sustained the objection,
ruling that the testimony was “not admissible under the Rules of
Evidence.”

2. Father also denied other violent acts, such as pulling a llama
behind his car until the llama died—although, curiously, he did
admit that “[w]e’ve all pull[ed] llamas behind our cars.”

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¶15 The district court determined that Sorbonne’s actions
were not justified by self-defense and found Sorbonne guilty as
charged.

ISSUES AND STANDARDS OF REVIEW

¶16 Sorbonne raises three issues on appeal. 3 First, he argues
that the district court erroneously concluded that pointing a gun

3. As noted by the dissent, the State (represented in this case by
the Duchenne County Attorney) did not file a brief in response
to Sorbonne’s appeal. As a result, if we were convinced that
Sorbonne had carried his burden of persuasion on appeal in his
opening brief, we could affirm on that basis alone. See, e.g.,
Paxman v. King, 2019 UT 37, ¶ 7, 448 P.3d 1199 (noting that an
appellate court may “reverse, even absent any argument from an
appellee, upon a determination that the appellant had made a
prima facie showing of a plausible basis for reversal”); Broderick
v. Apartment Mgmt. Consultants, 2012 UT 17, ¶ 19, 279 P.3d 391
(reversing where the appellants met their burden of persuasion
on appeal and appellee’s briefing was inadequate). However, we
do not view the failure to file a brief as a confession of error on
the part of the appellee. Our rules provide that the only sanction
for failure to file a responsive brief is the possible exclusion of
the appellee from oral argument. See Utah R. App. P. 26(c). As
the dissent notes, appellees may make an informed decision to
forego filing a responsive brief based on an assessment that the
appeal is meritless. Of course, doing so risks the possibility that
the court will disagree and conclude that the appellant has
“made a prima facie showing of a plausible basis for reversal.”
Paxman, 2019 UT 37, ¶ 7. But our rules do not place appellees on
notice that the failure to file a response brief will be treated as a
confession of error. Therefore, we do not treat the State’s failure
to file a brief as dispositive but instead consider whether
Sorbonne has carried his burden of persuasion on appeal.

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is a use of deadly force rather than a threat of force under Utah’s
self-defense statute. According to Sorbonne, that error led the
district court to incorrectly apply a heightened reasonableness
standard to justify the use of deadly force when a lower
standard should have been applied. “The proper interpretation
and application of a statute is a question of law reviewed for
correctness.” State v. Robertson, 2017 UT 27, ¶ 14, 438 P.3d 491
(cleaned up).

¶17 Second, Sorbonne argues that the district court abused its
discretion by excluding testimony concerning the father’s prior
violent and abusive acts. A district court’s decision to admit or
exclude testimony is reviewed for abuse of discretion. State v.
Perea, 2013 UT 68, ¶ 31, 322 P.3d 624.

¶18 Third, Sorbonne argues that the district court erred by
applying an objective reasonableness standard under the self-
defense statute, contending that the district court should have
instead applied a “modified objective standard or a subjective
standard.” Again, “the proper interpretation and application of a
statute is a question of law reviewed for correctness.” Robertson,
2017 UT 27, ¶ 14 (cleaned up).

ANALYSIS

I. Self-Defense Standard

¶19 Utah’s self-defense statute provides two standards to
determine whether a person’s act of self-defense is justified. The
level of justified force that may be used in self-defense depends
on the degree of danger that the defendant reasonably believed
he or she was facing. The first standard provides that an
“individual is justified in threatening or using force against
another individual when and to the extent that the individual
reasonably believes that force or a threat of force is necessary to
defend the individual or another individual against the

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imminent use of unlawful force.” Utah Code Ann. § 76-2-
402(2)(a) (LexisNexis Supp. 2019). 4 The second standard
provides in relevant part that an “individual is justified in using
force intended or likely to cause death or serious bodily injury
only if the individual reasonably believes that force is necessary
to prevent death or serious bodily injury to the individual or
another individual as a result of imminent use of unlawful
force.” Id. § 76-2-402(2)(b). In other words, a person is justified in
using deadly force only if defending him- or herself against an
equally serious threat of harm.

¶20 In this case, where Sorbonne held his father at gunpoint,
there was some debate between the prosecutor and trial counsel
over which standard applied. The prosecutor argued that
holding someone at gunpoint qualifies as “using force intended
or likely to cause death or serious bodily injury” and, therefore,
Sorbonne must have reasonably believed that he or his sister was
at risk of death or serious bodily injury to justify that level of
force. See id. In contrast, trial counsel argued that merely
pointing a gun at another person is not a use of deadly force but
a threat of force and, therefore, Sorbonne need only have
believed his actions to be reasonably necessary to defend himself
or his sister from unlawful force of a lesser nature. See id.
§ 76-2-402(2)(a). Sorbonne argues that the district court erred by
accepting the prosecutor’s argument and incorrectly holding
Sorbonne to a higher standard to justify his self-defensive
actions.

¶21 However, on review of the record, we do not believe that
the district court ruled on this issue. After hearing both parties’
arguments, the court said, “Based on the evidence that the Court
heard, the Court finds that the defendant is guilty of the charge

4. We cite the current version of the statute for ease of reference,
as the current version does not differ in any relevant way from
the version in effect at the time of Sorbonne’s actions.

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in the Information. The Court finds that his use or threat of the
weapon was not necessary or reasonable under the circumstances
and so I’m going to enter a conviction.” (Emphasis added.)
Utah’s self-defense statute mentions the “threat” of force only
with the lower standard that does not involve fear of death or
serious bodily harm. See id. Thus, the court found that
Sorbonne’s act of pointing a gun at his father was unreasonable
regardless of whether it was characterized as the “use” of deadly
force or as a “threat.” Because the district court did not resolve
the issue of which standard applied and instead ruled that
Sorbonne’s conduct was unreasonable under either alternative,
there is no ruling on that issue for us to review.

II. Exclusion of Testimony of the Father’s Prior Violent Acts

¶22 Sorbonne next argues that the district court abused its
discretion by excluding three pieces of testimony regarding the
father’s prior violent acts: (1) the younger sister’s testimony
about whether DCFS found that the father abused her,
(2) the grandmother’s testimony about the father’s road rage
incidents, and (3) the older sister’s testimony about whether
the father “ever hit [her] or put his hand around [her]
throat or anything like that.” We first address the younger
sister’s testimony and conclude that there is no adverse
evidentiary ruling to review. We then address the grandmother’s
and older sister’s testimony and hold that we cannot, on
this record, conclude that the district court abused its
discretion in excluding it.

¶23 Although Sorbonne asserts that the district court excluded
the younger sister’s testimony on relevance grounds, the record
does not support that proposition. When trial counsel asked the
younger sister about DCFS’s findings concerning her father, the
prosecutor objected based on hearsay, not relevance. Following
the objection, the district court expressed uncertainty about
“what a DCFS-supported finding is.” But before the district
court actually ruled on the objection, trial counsel effectively

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withdrew his question by interjecting, “Yeah. All right. No
further questions. Thank you.” Because trial counsel withdrew
his question, the district court “never had an opportunity to rule
on the issue,” so the issue is “not properly before us.” See Hi-
Country Prop. Rights Group v. Emmer, 2013 UT 33, ¶ 15 n.5, 304
P.3d 851 (cleaned up).

¶24 Both the grandmother’s and older sister’s testimony
concerned specific instances of prior violent acts on the part of
the father: alleged incidents of road rage and another incident
where the father allegedly hit or choked his oldest daughter.
Sorbonne contends that the district court abused its discretion in
excluding such testimony on relevance grounds because Utah’s
self-defense statute explicitly states that a factfinder may
consider “the other individual’s prior violent acts or violent
propensities” and “any patterns of abuse or violence in the
parties’ relationship” when evaluating a self-defense claim. See
Utah Code Ann. § 76-2-402(5)(d)–(e). However, this court has
held that Utah Code section 76-2-402(5) does not “bestow
defendants with the right to present evidence with broad
narrative value of the alleged victim’s violent character” but
rather such evidence “must still satisfy the Utah Rules of
Evidence to be admissible.” State v. Walker, 2015 UT App 213,
¶¶ 10, 16, 358 P.3d 1120 (cleaned up). Accordingly, Sorbonne
bears the burden of demonstrating that this testimony was
admissible under the Utah Rules of Evidence. More
specifically—because the testimony concerns the father’s prior
crimes, wrongs, or other acts—he must demonstrate that the
testimony would be admissible under rule 404.

¶25 Sorbonne suggests two reasons why the grandmother’s
and older sister’s testimony might be relevant, with the rules
governing admission of the testimony varying based on the
purpose for which it was offered. First, the testimony could have
been offered to demonstrate that the father, not Sorbonne, was
the first aggressor, and so Sorbonne acted in self-defense when
he pulled the gun on his father. Because, under this theory, the

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testimony was offered to demonstrate that the father acted in
conformity with his violent character, rule 404(a) governed its
admission. Under rule 404(a), proof of an alleged victim’s
propensity for violence “is limited to reputation and opinion
testimony on direct examination.” State v. Campos, 2013 UT App
213, ¶ 88, 309 P.3d 1160. Here, Sorbonne did not seek to admit
evidence that his father had a violent reputation. Rather, he
sought to introduce testimony concerning specific violent acts
that his father had committed in the past. Accordingly, the
testimony was not admissible to prove that the father was the
first aggressor, and the district court did not abuse its discretion
by excluding it.

¶26 Second, Sorbonne suggests that the testimony may have
been offered to prove that Sorbonne reasonably feared that
his father was going to harm him or his sister, regardless of
whether that was actually the father’s intent. Because such
testimony would not be offered to show that the father acted
in conformity with his violent character trait, specific instances
of violence could be admissible under rule 404(b). But, under
this theory, the testimony is relevant only if Sorbonne actually
knew about the father’s prior violent acts—otherwise the acts
could have no bearing on Sorbonne’s state of mind and
whether he reasonably evaluated the risk that his father posed.
See State v. Gourdin, 2015 UT App 309, ¶ 5, 365 P.3d 737. Here,
nothing in the record indicates that Sorbonne knew about his
father’s alleged prior road rage incidents or about the incident in
which his father allegedly hit or choked his older sister.
Accordingly, we cannot, on this record, conclude that the district
court abused its discretion by excluding the testimony on
relevance grounds.

¶27 Based on the foregoing analyses, we conclude that the
district court did not abuse its discretion by excluding any of the
challenged testimony concerning the father’s prior violent
actions.

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III. Use of Objective Reasonableness Standard for Self-Defense

¶28 Sorbonne’s final argument is that the district court erred
by applying an objective reasonableness standard when
determining whether his conduct was justified as self-defense.
On our reading of the record, it is unclear whether the district
court used an objective or subjective standard. However, this
court has previously held that an objective standard applies
when evaluating the reasonableness of self-defensive actions, see
State v. Sherard, 818 P.2d 554, 561 (Utah Ct. App. 1991) (holding
that “reasonable” in the context of Utah’s self-defense statute
means “objectively reasonable”), and so we may presume that
the court correctly applied that standard, see Gerwe v. Gerwe, 2018
UT App 75, ¶ 13, 424 P.3d 1113 (“A reviewing court will not
presume from a silent record that the court applied an incorrect
legal standard but must presume the regularity and validity of
the district court’s proceedings, and that it applied the correct
legal standard, in the absence of evidence to the contrary.”
(cleaned up)).

¶29 Sorbonne acknowledges that this court has previously
held that Utah’s self-defense statute requires objective
reasonability, but urges us to revisit that question and to adopt a
“modified objective standard or a subjective standard.”
However, we are bound by the doctrine of “horizontal stare
decisis” and owe “great deference to the precedent established”
by earlier panels of this court. State v. Legg, 2018 UT 12, ¶ 9, 417
P.3d 592. And although we have the power to overrule our
earlier cases, doing so requires us to “distinguish between
weighty precedents and less weighty ones” by analyzing “(1) the
persuasiveness of the authority and reasoning on which the
precedent was originally based, and (2) how firmly the
precedent has become established in the law since it was handed
down.” Id. ¶ 10 (cleaned up). On appeal, Sorbonne has not
engaged in this analysis and, therefore, has not convinced us that
we should overrule our prior cases holding that acts of self-
defense must be objectively reasonable. Moreover, although it

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has not squarely considered this issue, our supreme court has
also applied the objective standard in assessing whether a
defendant is entitled to a self-defense jury instruction. See State v.
Berriel, 2013 UT 19, ¶¶ 14, 16, 299 P.3d 1133. And “we are bound
by vertical stare decisis to follow strictly the decisions rendered
by the Utah Supreme Court.” Ortega v. Ridgewood Estates LLC,
2016 UT App 131, ¶ 30, 379 P.3d 18 (cleaned up)).

CONCLUSION

¶30 We decline to reach the question of whether pointing a
gun at another is a use of deadly force or a threat of force
because the district court found that Sorbonne’s conduct was
unreasonable under either standard. We also conclude that
Sorbonne has failed to demonstrate that the challenged
testimony concerning the father’s prior acts of violence was
admissible under the Utah Rules of Evidence. And we are not at
liberty to overrule controlling precedent holding that Utah’s self-
defense statute requires acts of self-defense to be objectively
reasonable. Accordingly, we affirm.

CHRISTIANSEN FORSTER, Judge (concurring):

¶31 I agree with the lead opinion’s reasoning as to all the
claims of error Sorbonne has raised on appeal. In my opinion,
Sorbonne has not met his burden of persuasion on any of the
grounds raised in his appellate brief, so I am not bothered by the
Duchesne County Attorney’s failure to file any responsive
briefing, see supra note 3, in this appeal. I therefore concur fully
in the lead opinion.

¶32 However, I write separately to note my agreement with
Sorbonne’s suggestion that it might be time to reexamine the
standard our courts use in assessing the reasonableness of the

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responsive action exhibited by domestic violence victims or
abused children in the self-defense context. Under Utah law,
“[a]n individual is justified in threatening or using force against
another individual when and to the extent that the individual
reasonably believes that force or a threat of force is necessary to
defend the individual or another individual against the
imminent use of unlawful force,” and “[a]n individual is
justified in using force intended or likely to cause death or
serious bodily injury only if the individual reasonably believes
that force is necessary to prevent death or serious bodily injury
to the individual or another individual as a result of imminent
use of unlawful force.” Utah Code Ann. § 76-2-402(2)(a)–(b)
(LexisNexis Supp. 2019). The lead opinion correctly points out
that currently in our law, “an objective standard applies when
evaluating the reasonableness of self-defensive actions.” See
supra ¶ 28. This “objectively reasonable” standard was
established by this court in State v. Sherard, 818 P.2d 554, 561
(Utah Ct. App. 1991), and applied by the Utah Supreme Court in
State v. Berriel, 2013 UT 19, ¶¶ 14, 16, 299 P.3d 1133. But neither
of those cases involved defendants whose claims of self-defense
arose in domestic-violence or abusive-parent contexts, so neither
appellate court had to wrestle with the issue of how to assess the
reasonableness of such a defendant’s self-defense claim. See, e.g.,
Berriel, 2013 UT 19, ¶¶ 2–5 (aggravated assault and defense of a
third person); Sherard, 818 P.2d at 556 (criminal homicide
resulting from fight between two rival gang members); see also
Bechtel v. State, 840 P.2d 1, 10–11 (Okla. Crim. App. 1992)
(“Standards of reasonableness ha[ve] been traditionally
characterized as either ‘objective’ or ‘subjective.’ Under the
objective standard of reasonableness, the trier of fact is required
to view the circumstances, surrounding the accused at the time
of the use of force, from the standpoint of hypothetical
reasonable person. Under the subjective standard of
reasonableness, the fact finder is required to determine whether
the circumstances, surrounding the accused at the time of the
use of force, are sufficient to induce in the accused an honest and

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reasonable belief that he/she must use force to defend
himself/herself against imminent harm.”).

¶33 It is true that at trial Sorbonne did not offer any expert
testimony explaining the significance of the history of violence
in his family or ask the district court to deviate from
the “objectively reasonable” standard in considering the
reasonableness of his claim of self-defense. Thus, Sorbonne
cannot demonstrate that the district court erred. But going
forward, I think our courts should reassess the appropriate
standard to be applied in domestic violence and abuse
situations in which self-defense by the abused person is at
issue. I feel that it is time for Utah law to recognize that repeated
abuse of an intimate partner or a child can cause that abused
person to reasonably perceive a threat of imminent danger from
conduct that may not appear imminently threatening to
someone who had not been subjected to a repetitive cycle of
violence.

ORME, Judge (dissenting):

¶34 I respectfully dissent. 5 I have a definite and firm belief
that Sorbonne’s conviction was a product of multiple errors. Cf.
State v. Rincon, 2012 UT App 372, ¶ 6, 293 P.3d 1142 (“When
reviewing a bench trial for sufficiency of the evidence, we must
sustain the trial court’s judgment unless it is against the clear
weight of the evidence, or if we otherwise reach a definite and
firm conviction that a mistake has been made.”) (quotation
simplified). I decline to belabor the point, because I think the
State concedes as much. In the face of Sorbonne’s compelling

5. I share the sentiments expressed by Judge Christiansen Forster
in her separate opinion, and so I join her opinion with the
exception of its first paragraph.

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arguments made in his brief, the State chose not to respond. At
all. I think the fair inference is that the State concedes that one or
more prejudicial errors were made and that Sorbonne’s
conviction should not stand.

¶35 It is important to note that an appellee is not strictly
required to file a brief. See generally Utah R. App. P. 26(c) (stating
that an appellant’s failure to file a principal brief could result in
dismissal of the case but providing for a less severe consequence
if an appellee does not file a brief). The downside for an appellee
not filing a brief is to forgo the opportunity to participate in oral
argument. See id. (“If an appellee fails to file a principal brief
within the time provided by this rule, or within the time as may
be extended by order of the appellate court, an appellant may
move that the appellee not be heard at oral argument.”). That
said, the importance of criminal cases all but invariably results in
the State filing a brief to refute a defendant’s arguments and
urge affirmance if the State believes that position can be
advanced in good faith.

¶36 There is a limited exception to this practice. The Criminal
Appeals Division of the Utah Attorney General’s Office, which
bears the responsibility to represent the State when felony
convictions are at issue on appeal, will occasionally forgo a
responsive brief. But it does not cavalierly blow off its
responsibility, leaving us to wonder whether the case has
slipped through the cracks or whether the State has made an
informed decision to confess error or to forgo filing a brief on
some other basis. When the State does not file a brief in such
cases, the responsible assistant attorney general will file a letter
explaining why. Rarely, the State will concede that the appellant
is correct and entitled to the relief sought on appeal. More
commonly, it will refer to the Criminal Appeals Division being
overworked and understaffed, resulting in the need to prioritize
its work and concentrate the talents of its attorneys on those
cases where the defendant has a colorable claim, forgoing

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briefing in those cases where it is clear that the conviction is
manifestly free of error and should be affirmed.

¶37 We have no such letter here—and not because the
Criminal Appeals Division has deviated from its usual practice.
This appeal is from a misdemeanor conviction and, thus, the
county attorney—not the attorney general—has the
responsibility to represent the State on appeal. The county
attorney has filed no letter explaining why it has not submitted a
brief. Unlike with the Criminal Appeals Division, we have no
track record with the Duchesne County Attorney suggesting that
its appellate caseload is so overwhelming that it must prioritize
its appellate work, forgoing a brief in the easiest cases in the
interest of concentrating its resources on the more weighty ones.
On the contrary, our Clerk of Court reports that this is one of
only two misdemeanor cases pending in the Utah Court of
Appeals for which the Duchesne County Attorney is
responsible—hardly an overwhelming appellate burden.

¶38 In the unique posture of this case, I take the State’s—well,
Duchesne County’s—failure to file a brief to be tantamount to a
concession that Sorbonne’s conviction should be reversed. The
so-called victim in this case had a history of violence at the
expense of family members. He had been violent on the morning
when his children sought to escape, and he tried to stop them in
a very aggressive way. And come sentencing, the victim
specifically urged the district court not to impose jail time on
Sorbonne. In context, I believe the lack of a brief from the
County—indeed, a lack of any communication from the
County—is tantamount to a concession that, in the interest of
justice, Sorbonne’s conviction should be reversed. I agree, and I
would vacate Sorbonne’s conviction.

20190013-CA 17 2020 UT App 48