BILLINGS, Associate Presiding Judge:
Defendant George B. Archambeau appeals his conviction for possession of a dangerous weapon by a restricted person, a third-degree felony, in violation of Utah Code Ann. §§ 76-10-501(2)(a) and -503(2) (Supp. 1988).
Defendant was on parole for aggravated robbery, a first-degree felony. In May of 1988, defendant's parole officers confiscated a 10-inch knife with a 5 1/2-inch blade in a sheath bearing the initials "G.A.," a 10-inch bowie knife with a 6-inch blade, a 48-inch blowgun, and blowdarts from defendant's home. The officers considered them dangerous weapons that defendant was prohibited from possessing while on parole. The parole officers released the confiscated items to a third party designated by defendant.
Defendant's parole officers conducted a search of defendant's home on March 28, 1989. During the search, the officers discovered and seized knives, a blowgun, and blowdarts identical to the ones previously confiscated. There was no evidence that defendant had used or intended to use the knives or blowgun in a dangerous manner. Based upon the seized items, the State subsequently filed charges against defendant for possession of a dangerous weapon by a
On appeal, defendant alleges: (1) Section 76-10-503(2) is an unconstitutional infringement upon the right of Utah citizens to keep and bear arms, as provided in Article I, Section 6 of the Utah Constitution; (2) Section 76-10-503(2), as defined by section 76-10-501(2)(a), is unconstitutionally vague; and (3) there is insufficient evidence to support his conviction.
PROPRIETY OF CONSIDERING A CONSTITUTIONAL ISSUE FOR THE FIRST TIME ON APPEAL
Defendant contends that Utah Code Ann. § 76-10-503(2) (Supp. 1988) is unconstitutional because it infringes upon his right to bear arms. He claims Article I, Section 6 of the Utah Constitution provides the legislature may only limit the use of weapons, not their possession. He, therefore, reasons that because section 76-10-503(2) purports to penalize possession of weapons without regard to their use, it is unconstitutional. As a threshold matter, the State argues this court should not consider the merits of defendant's constitutional challenge as he raises it for the first time on appeal.
Generally, a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal.
However, there are two limited but wellestablished exceptions to this general rule. An appellate court may address a constitutional issue for the first time on appeal if: (1) the trial court committed "plain error;" or (2) there are "exceptional circumstances." See State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); State v. Webb, 790 P.2d 65, 78 (Utah App. 1990).
The Utah Supreme Court outlined the principles involved in determining whether "plain error" exists in State v. Eldredge, 773 P.2d 29 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989):
Eldredge, 773 P.2d at 35.
The second exception to the rule prohibiting consideration of issues for the first
Defendant contends there is a third exception to the general rule that constitutional issues will not be considered for the first time on appeal. He argues that a constitutional issue may always be raised for the first time on appeal by any defendant whose "liberty interest" is in jeopardy, citing State v. Jameson, 800 P.2d 798, 802-03 (Utah 1990).
The "liberty interest" doctrine is of questionable origin and uncertain development. The doctrine first appeared in an early Utah Supreme Court case, In re Woodward, 14 Utah.2d 336, 384 P.2d 110, 111 n. 2 (1963). Woodward was committed to the Utah State Industrial School after committing a delinquent act. Even though matters in juvenile court are civil in nature, a more accurate designation would be quasi-criminal because Woodward was incarcerated for violating the criminal law. On appeal, Woodward attacked the constitutionality of Utah Code Ann. §§ 55-10-1 and -3 (1953), arguing that the sections violated the separation of powers doctrine. In a footnote, the court, by way of dicta, relied on American Jurisprudence for the proposition that
Woodward, 384 P.2d at 111, n. 2.
Almost twenty years later, the court resurrected this doctrine in a civil appeal by Riverton police officers seeking to enjoin Salt Lake County from providing police services to Riverton. See Pratt v. City Council of City of Riverton, 639 P.2d 172 (Utah 1981). The court opined: "Issues not raised at trial cannot be raised on appeal. This general rule applies equally to constitutional issues, with the limited exception of where a person's liberty is at stake." Id. at 173-74.
Neither Woodward nor Pratt illuminates the meaning of "liberty interest" or provides guidance for its application.
The Utah Supreme Court first mentioned the "liberty interest" exception in a criminal case in State v. Breckenridge, 688 P.2d 440 (Utah 1983), an appeal to set aside a guilty plea to a charge of arson. Factually, however, Breckenridge is a case in which the "exceptional circumstances" exception would have allowed appellate review.
After Breckenridge, the Utah Supreme Court ignored the "liberty interest" exception in four subsequent criminal cases, choosing instead to apply the traditional "plain error" or "exceptional circumstances" standards. See Gibbons, 740 P.2d at 1311 (Utah 1987) ("ordinarily, this Court will not entertain an issue first raised on appeal in the absence of exceptional circumstances or plain error"); Eldredge, 773 P.2d at 35 (Utah) (emphasizing and discussing elements of "plain error"); Jolivet v. Cook, 784 P.2d 1148, 1151 (Utah 1989) ("We have held that in the absence of exceptional circumstances, this Court will not entertain a claim raised for the first time on appeal), cert. denied, 493 U.S. 1033, 110 S.Ct. 751, 107 L.Ed.2d 767 (1990); and State v. Anderson, 789 P.2d 27, 29 (Utah 1990) ("The error must be obvious (`plain'), and it must be harmful.").
However, in October, 1990, the Utah Supreme Court ambiguously alluded to the "liberty interest" exception in State v. Jameson, 800 P.2d 798 (Utah 1990), an appeal from a probation revocation.
We read Jameson differently. We conclude that a defendant may not assert a constitutional issue for the first time on appeal unless he can demonstrate "plain error" or "exceptional circumstances." The fact that a "liberty interest" is at stake is merely one factor articulated by the court to be considered when determining whether "exceptional circumstances" exist.
Our interpretation is grounded in the ambiguous directive of Jameson, the mottled history of the "liberty interest" exception, and the practical difficulty with recognizing a per se "liberty interest" exception in criminal cases. A "liberty interest" exception may be useful in civil appeals, like Pratt, as a means of isolating "unusual circumstance" civil cases in which an appellate court should consider a constitutional issue initially on appeal. In a criminal case, however, it is almost always true that the defendant's "conviction and sentence rest on the outcome of his [or her] appeal," Breckenridge, 688 P.2d at 443, and, therefore, his or her "liberty" is at stake. A per se "liberty interest" exception to the rule prohibiting the consideration of issues for the first time on appeal would effectively swallow the general rule in criminal appeals.
While defendant's "liberty interest" is at stake, we find no "exceptional circumstances." Although the "exceptional circumstances" exception is broad and remains somewhat undefined, our reading of prior cases and the examples therein reveals that there are no extenuating or unusual circumstances in the instant case. See, e.g., our discussion of Breckenridge set forth above.
Secondly, we find no "plain error" on the part of the trial court. For the "plain error" exception to apply, the lower court must have committed an error which is both obvious and harmful. Defendant asserts that the trial court obviously erred by failing to recognize the unconstitutionality of Utah Code Ann. § 76-10-503(2) (Supp. 1988) in view of the plain language of Article I, Section 6. We disagree. An amendment to the state constitution
In sum, we decline to reach the merits of defendant's constitutional challenge that Utah Code Ann. § 76-10-503(2) (Supp. 1988) violates Article I, Section 6 of the Utah Constitution.
UTAH CODE ANN. § 76-10-503(2) IS NOT UNCONSTITUTIONALLY VAGUE
Defendant was convicted under Utah Code Ann. § 76-10-503(2) (Supp. 1988) which provides, in pertinent part:
(emphasis added). Utah Code Ann. § 76-10-501(2)(a) (Supp. 1988) defines dangerous weapons as follows:
Defendant contends the statutory definition of "dangerous weapon" is unconstitutionally vague as it does not give notice of prohibited behavior with sufficient specificity, as required by Article I, Section 7 of the Utah Constitution and the fourteenth amendment to the United States Constitution.
The State counters that Utah Code Ann. § 76-10-501(2)(a) (Supp. 1988) sets forth a sufficiently definite standard for distinguishing those items that are dangerous weapons from those that are not. The State contends that, rather than engage in a futile effort to enact an exhaustive list of "dangerous weapons," the legislature has created descriptive categories by which one may determine whether a given item is a "dangerous weapon." The State claims the statute states that an item will be considered a dangerous weapon if, based upon its actual use, subjectively intended use, or objectively understood use, it can cause death or serious bodily injury. The State argues that defendant's knives and blowgun fall within the category of items which are dangerous weapons because of their objectively understood use. We agree.
Generally, we review a legislative enactment with the presumption that it is constitutional. See Greenwood v. City of North Salt Lake, 817 P.2d 816, 819 (Utah 1991); see also Provo City Corp. v. State, 795 P.2d 1120, 1125 (Utah 1990) ("We have a duty to construe statutes to avoid constitutional conflicts.").
The Utah Supreme Court recently set forth a vagueness analysis in Greenwood, considering an ordinance imposing special requirements upon the owners of vicious dogs.
A constitutional vagueness challenge can proceed either as a facial challenge or in its application, based upon the facts of the case. See id. Defendant has not specified the basis of his challenge. We assume defendant intends to challenge the constitutionality of § 76-10-503(2), as defined by § 76-10-501(2)(a), both facially and in application.
Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 reh'g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982). See State v. Murphy, 674 P.2d 1220, 1222 (Utah 1983).
Section 76-10-501(2)(a) does not implicate fundamental first amendment rights. See United States v. Mazurie, 419 U.S. 544, 551, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975).
To understand Utah Code Ann. § 76-10-501(2)(a) (Supp. 1988), it is necessary to break the statute into its component parts. The first sentence states: "`Dangerous weapon' means any item that in the manner of its use or intended use is capable of causing death or serious bodily
However, this statement does not appear in isolation but is limited by the second sentence, which states: "In construing whether an item, object, or thing not commonly known as a dangerous weapon is a dangerous weapon, the character of the instrument, object, or thing; the character of the wound produced, if any; and the manner in which the instrument, object, or thing was used are determinative" (emphasis added). Implicit in this second sentence are two separate categories: (1) items commonly known as dangerous weapons; and (2) items not commonly known as dangerous weapons but included if, in considering the three enunciated characteristics, they qualify.
The State does not contend that the second category is at issue in this case. There is no evidence that the knives and blowgun were used or were intended to be used in a dangerous manner. Rather, our decision must rest on whether defendant should have been reasonably aware that his hunting knives and blowgun were objectively dangerous weapons. We conclude that defendant's two 10-inch knives with 5-6-inch blades and his 48-inch blowgun are commonly known as dangerous weapons.
Although § 76-10-501(2)(a) is not marked by "meticulous specificity," it is sufficient that it has "flexibility and reasonable breadth" in dealing with which items are characterized as dangerous weapons. Grayned, 408 U.S. at 110, 92 S.Ct. at 2300.
INSUFFICIENCY OF EVIDENCE
Defendant's final contention is that there is insufficient evidence to prove that the items seized from his home are dangerous weapons.
In State v. Webb, 790 P.2d 65 (Utah App. 1990), this court discussed the proper standard under which to evaluate a claim for insufficient evidence. Accordingly, "so long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops." Id. at 84 (citation omitted).
The trial judge not only had the opportunity to view the items in question personally but had the benefit of having an expert demonstrate the use of the blowgun by shooting it in the courtroom. Additionally, the expert testified about the damage a blowgun dart may cause to a human. We agree with the State that there was ample evidence to prove that defendant's knives and blowgun are objectively the type of instruments reasonable people would assume were dangerous weapons, as they
In sum, we uphold defendant's conviction for possession of a dangerous weapon by a restricted person. We decline to reach defendant's constitutional claim under Article I, Section 6, because defendant did not present this question to the trial court and has failed to demonstrate either "plain error" or "exceptional circumstances." Furthermore, we hold that Utah Code Ann. § 76-10-501(2)(a) (1990) is not unconstitutionally vague as applied to defendant but provided defendant adequate notice that his knives and blowgun were "dangerous weapons." Finally, there is ample evidence that defendant's knives and blowgun are, objectively, dangerous weapons under section 76-10-501(2)(a).
GARFF and RUSSON, JJ., concur.
3 Am.Jur. Appeal and Error § 293 (1936).
Subsequently, Breckenridge moved to withdraw his guilty plea, and he reached a stipulation to that effect with the Assistant Salt Lake County Attorney. He claimed that his guilty plea resulted from threats, coercion, and lies by the prosecutor. The lower court denied Breckenridge's motion, sentencing him to prison and imposing a fine and restitution.
On appeal, and at the suggestion of the supreme court, Breckenridge raised, for the first time, the issue that he did not receive due process since the lower court accepted his guilty plea without a sufficient factual basis and without ensuring that Breckenridge understood the elements of arson. Although Breckenridge failed to assert his due process argument until he came before the supreme court, the events leading to his arson conviction for accidentally starting a fire certainly qualify as "exceptional circumstances" under which the supreme court could have entertained a constitutional claim advanced for the first time on appeal.
Some time after the probation revocation hearing, the State acknowledged that, because of errors in the procedure of that hearing, the defendant had been denied due process. The defendant was then granted another opportunity for a hearing addressing the revocation of his probation. During this second hearing, the defendant admitted that he had refused to participate in certain aspects of his therapy. At the conclusion of this hearing, the judge determined that the defendant had violated the conditions of his parole and incarcerated him for the remainder of his original sentence.
Judge Bench of the Court of Appeals, sitting by designation in Espinal v. Salt Lake City Bd. of Educ., 797 P.2d 412 (Utah 1990), proposed in his concurrence a two-prong requirement:
Id. at 415-16 (citations omitted).
In State v. Harrison, 805 P.2d 769 (Utah App.), cert. denied, 817 P.2d 327 (Utah 1991), Judge Greenwood accepted the Utah Supreme Court's treatment of "plain error," "exceptional circumstances," and "liberty interest" as alternative exceptions to the general rule. She noted that an objection to the gender basis of a peremptory challenge could be raised on appeal for the first time if it involved any of these exceptions. She expressed concern, however, at the prospect of having to treat a threat against liberty as a distinct exception:
Harrison, 805 P.2d at 779 (citation omitted).
Defendant contends that the above version provides broader protection to the right to bear arms than did the previous version, which read: