State v. Smith

2005 UT 57
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
Plaintiff, Respondent, 	Nos. 20030341
and Cross-Petitioner, 	20030342
v.
Norm Smith, 	F I L E D
Defendant, Petitioner,
and 	Cross-Respondent. 	September 2, 2005
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Fifth District, St. George
The Honorable Rand G. Beacham
No. 961500364
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Brock R. Belnap, Asst. Att’ys Gen., Salt Lake City,
for plaintiff
Margaret P. Lindsay, Aaron P. Dodd, Provo, for
defendant
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
¶1 	This case is before us on cross-petitions for
certiorari. 	We are first asked to determine whether the offense
of aggravated assault under Utah Code section 76-5-103 is a
lesser included offense that, under Utah Code section 76-1-
402(3), should have merged with the offense of second-degree use
of a concealed weapon under Utah Code section 76-10-504(3), as it
existed in 1996. 	We conclude that Utah Code section 76-10-504 is
an enhancement statute and that therefore the two offenses do not
merge. 	We are further asked to determine whether the court of
appeals properly determined that the defendant’s counsel was
ineffective for failing to force the State to prove that the
defendant did not have a concealed weapons permit and, if so,
whether the appropriate remedy was to remand the case for a new
trial. 	We conclude that the lack of a concealed weapons permit

1 The underlying facts of this case are set forth in State
v. Smith, 2003 UT App 52, ¶¶ 2-7, 65 P.3d 648.
No. 20030341, 20030342 	2
is not an element of the offense under Utah Code section 76-10-
504(3) and that the court of appeals therefore erred in
concluding that defense counsel was ineffective.
BACKGROUND
¶2 	The defendant, Norm Smith, was convicted in a jury
trial of carrying a concealed dangerous weapon under Utah Code
section 76-10-504(3), a second-degree felony; two counts of
aggravated assault under Utah Code section 76-5-103(1)(b), third
degree felonies; and interfering with a lawful arrest. 1 	Among
other issues, Smith argued on appeal that the trial court should
have merged the aggravated assault charges with the concealed
weapon charge, and that his trial counsel was ineffective for
failing to request dismissal of the concealed weapon charge after
the State rested without introducing evidence that Smith did not
have a concealed firearm permit. 	State v. Smith, 2003 UT App 52,
¶¶ 7, 9, 12, 19, 31, 65 P.3d 648.
¶3 	The court of appeals rejected Smith’s merger claim on
the basis that, in accord with this court’s opinion in State v.
McCovey, 803 P.2d 1234 (Utah 1990), the legislature intended Utah
Code section 76-10-504 to be an enhancement statute, rendering
the merger doctrine inapplicable to an offense charged under the
provision. 	Smith, 2003 UT App 52 at ¶ 22. 	In reaching this
conclusion, the court of appeals looked primarily to the
structure of section 76-10-504, observing that “[t]he penalties
imposed by section 76-10-504 increase proportionally to the
increased risk to the public, and this graduated punishment scale
is indicative of an enhancement statute.” 	Id. 	The court also
appeared to rely on principles of common sense, reasoning that
the legislature has “‘the authority to increase the degree of
crime, where instruments of violence, such as explosives or
firearms are used.’” 	Id. (quoting State v. Angus, 581 P.2d 991,
994-95 (Utah 1978)).
¶4 	The court of appeals was, however, persuaded by Smith’s
ineffective assistance claim, concluding that because “the State
was required to prove that Smith did not have a valid permit to
carry a concealed weapon” under Utah Code section 76-10-504, the
trial court would have been forced to dismiss the concealed
weapon charge had Smith’s counsel requested it to do so. 	Id. at
¶¶ 32-34. 	The court therefore reversed Smith’s conviction on
this charge and remanded for a new trial. 	Id. at ¶ 35. 	In doing
so, the court of appeals noted that the remand would not violate

3 	No. 20030341, 20030342
double jeopardy principles because its reversal was for “‘trial
error’ and not for insufficiency of the evidence.” 	Id. at ¶ 35
n.8.
¶5 	Smith petitioned this court for certiorari review of
the court of appeals’s decisions that the merger doctrine did not
apply to Utah Code section 76-10-504 and that remand was the
appropriate remedy for the ineffectiveness of his trial counsel.
The State cross-petitioned, arguing that Smith’s counsel was not
ineffective because the lack of a concealed weapon permit was not
an element of the charged offense under Utah Code section 76-10-
504(3). 	This court has jurisdiction pursuant to Utah Code
section 78-2-2(3)(a) (2002).
STANDARD OF REVIEW
¶6 	On certiorari, we review the court of appeals on
questions of law for correctness. 	State v. Leatherbury, 2003 UT
2, ¶ 7, 65 P.3d 1180; State v. Weeks, 2002 UT 98, ¶ 10, 61 P.3d
1000. 	Specifically, whether one crime is a lesser included
offense, which merges with a greater included offense, is a legal
question of statutory interpretation reviewed for correctness.
State v. Bluff, 2002 UT 66, ¶ 37, 52 P.3d 1210. 	An ineffective
assistance of counsel claim presents a question of law that is
also reviewed for correctness. 	State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
ANALYSIS
I. 	APPLICATION OF MERGER DOCTRINE TO
UTAH CODE SECTION 76-10-504
¶7 	We first consider whether the court of appeals erred in
concluding that the legislature intended Utah Code section 76-10-
504 as an enhancement statute to which the merger doctrine, set
forth in Utah Code section 76-1-402, would not apply. 	As the
court of appeals observed, in its origin, “‘[m]erger is a
judicially-crafted doctrine available to protect criminal
defendants from being twice punished for committing a single act
that may violate more than one criminal statute.’” 	State v.
Smith, 2003 UT App 52, ¶ 19, 65 P.3d 648 (quoting State v. Diaz,
2002 UT App 288, ¶ 17, 55 P.3d 1131). 	The motivating principle
behind the merger doctrine is to prevent violations of
constitutional double jeopardy protection. 	State v. Lopez, 2004
UT App 410, ¶ 8, 103 P.3d 153 (“Courts apply the merger doctrine
as one means of alleviating the concern of double jeopardy that a
defendant should not be punished twice for the same crime.”); see
also Brown v. Ohio, 432 U.S. 161, 169 (1977) (“[T]he [Double

2 Utah Code section 76-10-504(3) has been amended to
describe the use of a concealed firearm “in the commission of a
violent felony” rather than a “crime of violence,” and it now
cites Utah Code section 76-3-203(5) for the relevant definition
of “violent felony.” 	Utah Code Ann. § 76-10-504(3) (2003)
(continued...)
No. 20030341, 20030342 	4
Jeopardy Clause] forbids successive prosecution and cumulative
punishment for a greater and lesser included offense.”).
¶8 	This principle has been codified at Utah Code section
76-1-402(3). 	See State v. Wood, 868 P.2d 70, 90 (Utah 1993)
(recognizing that the test for determining whether a conviction
for two separate offenses violates the Double Jeopardy Clause “is
essentially the same as that in Utah Code Ann. § 76-1-402(3)”);
State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (recognizing
that convictions for both a greater and a lesser included offense
would violate both the Double Jeopardy Clause and section 76-1-
402(3)); State v. Ross, 951 P.2d 236, 241 (Utah Ct. App. 1997)
(“The [statutory] prohibition on conviction for lesser-included
offenses flows from the double jeopardy clauses of the Utah and
the United States Constitutions.”). 	Section 76-1-402(3) provides
that “[a] defendant may be convicted of an offense included in
the offense charged but may not be convicted of both the offense
charged and the included offense.” 	Utah Code Ann. § 76-1-402(3)
(2003). 	The subsection further states that lesser included
offenses are “established by proof of the same or less than all
the facts required to establish the commission of the offense
charged.” 	Id. § 76-1-402(3)(a). 	Thus, “where the two crimes are
‘such that the greater cannot be committed without necessarily
having committed the lesser,’ then as a matter of law they stand
in the relationship of greater and lesser offenses, and the
defendant cannot be convicted or punished for both.” 	State v.
Hill, 674 P.2d 96, 97 (Utah 1983) (quoting State v. Baker, 671
P.2d 152, 156 (Utah 1983)).
¶9 	In Hill, we set forth a two-part test for determining
whether a conviction for a second offense arising out of the same
set of facts violates section 76-1-402(3), requiring a comparison
of “the statutory elements of the two crimes [first] as a
theoretical matter and [second], where necessary, by reference to
the facts proved at trial.” 	Id. 	It is uncontested here that
aggravated assault would constitute a lesser included offense of
felony use of a concealed weapon under the two-part Hill analysis
because the latter offense is defined as using a concealed weapon
during the commission of a “crime of violence,” which includes
aggravated assault. 	Utah Code Ann. §§ 76-10-501(2)(b), -504(3)
(1995). 2 	In McCovey, however, this court in effect added a third

2 (...continued)
(emphasis added). 	Utah Code section 76-3-203(5), in turn, is an
amended and recodified version of section 76-10-501(2)(b) and now
defines “violent felony” rather than “crime of violence.” 	Id.
§ 76-3-203(5) (2003). 	Unless otherwise indicated, all citations
in this opinion are to the statutes as they existed at the time
of the offenses at issue.
5 	No. 20030341, 20030342
step to the analysis, holding that in cases where the legislature
intended a statute to be an enhancement statute, the merger
doctrine set forth in section 76-1-402(3) does not apply. 	803
P.2d at 1237. 	Here, the court of appeals agreed with the State
that section 76-10-504 is an enhancement statute, but Smith
argues it is not. 	We therefore focus our analysis on that
question.
¶10 	In McCovey, this court reasoned that “enhancement
statutes are different in nature than other criminal statutes”
because they single out particular characteristics of criminal
conduct as warranting harsher punishment. 	Id. 	The court
proceeded to rest its determination that the felony murder
statute was an enhancement statute on an examination of “the
nature and purpose” of the statute. 	Id. at 1238. 	The court
concluded that “[i]n essence, [felony murder] is a strict
liability offense that enhances an otherwise unintentional
killing to second degree murder.” 	Id.
¶11 	Here, revisiting the issue of enhancement statutes and
their relationship to section 76-1-402(3), we depart from
McCovey’s somewhat nebulous focus on a statute’s “nature and
purpose” and return to the core principle of statutory
construction: 	“‘Where statutory language is plain and
unambiguous, this Court will not look beyond to divine
legislative intent. 	Instead, we are guided by the rule that a
statute should be construed according to its plain language.’”
Id. at 1240 (Durham, J., dissenting) (quoting Allisen v. Am.
Legion Post No. 134, 763 P.2d 806, 809 (Utah 1988)). 	Section 76-
1-402(3), by its plain language, requires the determination of a
greater-lesser relationship between offenses to rest on a
comparison of “the facts required to establish the commission of
the offense[s] charged.” 	Utah Code Ann. § 76-1-402(3)(a). 	The
statute is devoid of any explicit indication that it should not
apply whenever a court decides that the “nature and purpose” of a
criminal provision warrants an exemption. 	We are therefore
persuaded that, when considering whether the legislature intended
to exempt an offense from operation of the merger doctrine, we
must base our conclusion on an objective examination of the plain
language and structure of the statute defining the offense. 	In

3 An example of such an express indication appears in Utah
Code section 76-6-202, which first defines the crime of burglary
as unlawfully entering or remaining in a building with the intent
to commit certain listed offenses, 	Utah Code Ann. § 76-6-
202(1)(a)-(g) (2003), and then specifies that a violation of the
burglary statute is a “separate offense” from any of those
offenses so listed, id. § 76-6-202(3). 	This language makes clear
that the burglary statute imposes an enhanced penalty on those
who would otherwise be considered guilty of the lesser crime of
criminal trespass, see id. § 76-6-206, where that crime is
committed in conjunction with an intent to commit one of the
listed offenses.
4 While our opinion today supersedes the analysis this court
followed in McCovey, we express no opinion on whether the felony
murder statute at issue in McCovey would be considered an
enhancement statute under the analysis we now adopt.
No. 20030341, 20030342 	6
other words, if the legislature intends to preclude section 76-1-
402(3) from requiring merger in a specific instance, it must
clearly indicate that the provision in question is intended to
enhance the penalty for one type of offense when certain
characteristics are present that independently constitute a
different offense. 3 	Only when such an explicit indication of
legislative intent is present in the specific offense statute
will we consider it appropriate to exempt that statute from
operation of the general merger requirements in section 76-1-
402(3). 4 	Such a plain language analysis is also consistent with
the constitutionally guaranteed double jeopardy interests that
section 76-1-402(3) was designed to protect.
¶12 	In accord with these principles, we consider whether
section 76-10-504(3) operates as an enhancement provision or,
alternatively, whether charges under that subsection must merge
with charges for the underlying “crime of violence.” 	Section 76-
10-504 provides, in relevant part:
(1) Except as provided in Section 76-10-503
and in Subsections (2) and (3):
(a) a person who carries a concealed
dangerous weapon which is not a firearm on
his person or one that is readily accessible
for immediate use which is not securely
encased, as defined in this part, in a place
other than his residence, property, or
business under his control is guilty of a
class B misdemeanor.

7 	No. 20030341, 20030342
(b) a person without a valid concealed
firearm permit who carries a concealed
dangerous weapon which is a firearm and that
contains no ammunition is guilty of a class B
misdemeanor, but if the firearm contains
ammunition the person is guilty of a class A
misdemeanor.
(2) A person who carries concealed a sawed-
off shotgun or a sawed-off rifle is guilty of
a second degree felony;
(3) If the concealed firearm is used in the
commission of a crime of violence as defined
in Section 76-10-501, and the person is a
party to the offense, the person is guilty of
a second degree felony.
Utah Code Ann. § 76-10-504(1)-(3).
¶13 	The plain language and structure of this statute
demonstrate that subsection (3) is intended to operate as an
enhancement provision, enhancing the penalty for the offense of
carrying a concealed firearm when the offense is committed in
conjunction with a crime of violence, a separate offense. 	The
statute sets forth different levels of offenses depending on the
circumstances in which carrying a concealed weapon occurs and on
the type of weapon involved. 	As the court of appeals correctly
observed, “[t]he penalties imposed by section 76-10-504 increase
proportionally to the increased risk to the public.” 	Smith, 2003
UT App 52 at ¶ 22. 	We agree with the court of appeals that this
structure, evidencing a “graduated punishment scale[,] is
indicative of an enhancement statute.” 	Id.
¶14 	We also note that applying the merger requirement of
section 76-1-402(3) to the offenses of carrying a concealed
weapon and committing a crime of violence would lead to an absurd
result in cases where the crime of violence itself carries a
higher penalty than an offense under section 76-10-504(3), which
is a second-degree felony. 	See Millett v. Clark Clinic Corp.,
609 P.2d 934, 936 (Utah 1980) (“[S]tatutory enactments are to be
so construed as to render all parts thereof relevant and
meaningful, and . . . interpretations are to be avoided which
render some part of a provision nonsensical or absurd.”). 	Many
of the crimes of violence listed in section 76-10-501(2)(b) are
first-degree felonies. 	Thus, if section 76-1-402 applied to
section 76-10-504(3), cases might arise in which a first degree
felony would be considered a lesser included offense that was

No. 20030341, 20030342 	8
required to merge into a second degree felony. 	Such a result is
prevented by our recognition that section 76-10-504(3) is an
enhancement provision.
¶15 	We thus affirm the court of appeals’s conclusion that
the charges against Smith for aggravated assault should not
merge with the charge for using a concealed firearm in the
commission of a crime of violence.
II. 	INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
¶16 	Both Smith and the State challenge the court of
appeals’s conclusion in regard to Smith’s ineffective assistance
of counsel claim. 	Smith argues that the court of appeals
correctly determined that Smith’s right to counsel was violated
but that the court’s remand for a new trial contravened double
jeopardy principles. 	The State argues that Smith’s right to
effective assistance of counsel was not violated because,
contrary to the court of appeals’s conclusion, the State was not
required under section 76-10-504(3) to prove at trial that Smith
did not have a valid concealed firearm permit. 	Because we agree
with the State that Smith’s right to effective assistance of
counsel was not violated, we need not reach Smith’s double
jeopardy argument.
¶17 	The court of appeals based its ruling that Smith
received ineffective assistance of counsel on the conclusion that
his counsel failed to hold the State to its burden of proof
regarding an element of the crime. 	Smith, 2003 UT App 52 at
¶¶ 32-34. 	Specifically, the court of appeals held that in order
to prove a violation of section 76-10-504(3), the State must
demonstrate that Smith did not have a valid concealed firearm
permit. 	Id. at ¶ 32.
¶18 	We disagree with the court of appeals’s reading of
section 76-10-504(3). 	In reaching its conclusion that lack of a
permit was an element of the crime defined in section 76-10-
504(3), the court looked to the language of section 76-10-
504(1)(b), which provides that “a person without a valid
concealed firearm permit who carries a concealed dangerous weapon
which is a firearm” is guilty of either a class A or B
misdemeanor, depending on whether the firearm contains
ammunition. 	Utah Code Ann. § 76-10-504(1)(b) (Supp. 1995)
(emphasis added). 	Section 76-10-504(3) then provides an enhanced
penalty for the offense if “the concealed firearm is used in the
commission of a crime of violence.” 	Id. § 76-10-504(3). 	The
court of appeals read the phrase “the concealed firearm” in
subsection (3) as referring back to the weapon carried “without a

9 	No. 20030341, 20030342
valid concealed firearm permit” in subsection (1)(b) and thus
inferred that lack of a permit was an element of the offense
defined in subsection (3).
¶19 	Even assuming the court of appeals’s reading is
correct, we do not agree that the State was required to prove
lack of a permit. 	Rather, we understand the possession of a
valid concealed firearm permit to be an affirmative defense that
the defendant may invoke to escape conviction under section 76-
10-504(1)(b). 	To conclude otherwise would be to render
meaningless Utah Code section 76-10-523, which explicitly states
that “[t]he provisions of Subsections 76-10-504(1)(a), [and]
(1)(b) . . . do not apply to any person to whom a permit to carry
a concealed firearm has been issued pursuant to Section 53-5-
704.” 	Id. § 76-10-523(2) (1995). 	Exemptions from laws,
particularly when based on possession of a license or permit,
such as that contained in section 76-10-523, are typically
construed as affirmative defenses, partly because a defendant is
in a better position to prove he has a permit than is the State
to prove that he lacks such a permit. 	See, e.g., State v.
Bowdry, 337 N.W.2d 216, 218 (Iowa 1983) (concluding that the
legislature “intended to place the onus on the person to produce
the permit, since he, rather than the State, has personal
knowledge regarding the existence of a permit if one does
exist”); Commonwealth v. Jones, 361 N.E.2d 1308, 1311 (Mass.
1977) (“The holding of a valid license brings the defendant
within an exception to the general prohibition against carrying a
firearm, and is an affirmative defense. 	Absence of a license is
not an ‘element of the crime,’ as that phrase is commonly used.
In the absence of evidence with respect to a license, no issue is
presented with respect to licensing.” (citations omitted));
Seattle v. Parker, 467 P.2d 858, 859-60 (Wash. Ct. App. 1970)
(placing on the defendant the burden to raise facts indicating
possession of a license based on the rule that “[w]here the facts
lie more immediately within the knowledge of the defendant, the
onus probandi should be his”); see also State v. Swenson, 838
P.2d 1136, 1138 (Utah 1992) (holding that the defendant had the
initial burden to put forth evidence that he was eligible for an
exemption from securities laws); State v. Knoll, 712 P.2d 211,
214 (Utah 1985) (recognizing that “forc[ing] the prosecution to
prove a negative” is “a burden the law does not often impose”).
¶20 	Moreover, section 76-10-504(1) expressly excludes
subsections (2) and (3) from its requirements. 	Utah Code Ann.
§ 76-10-504(1) (“Except as provided in Section 76-10-503 and in
Subsections (2) and (3) . . . .”). 	Section 76-10-523 also fails
to exempt firearm permit holders from operation of section 76-10-
504(3). 	Id. § 76-10-523(2). 	We conclude from these exclusions

5 Citing no authority in support of his assertion, Smith
argues that the actual requirements of section 76-10-504(3) are
irrelevant to the question of whether his counsel was ineffective
because the jury instructions, whether right or wrong, clearly
placed the burden on the State to prove Smith lacked a valid
concealed weapon permit. 	However, for the reasons explained by
the United States Supreme Court in Lockhart v. Fretwell, 506 U.S.
364, 371 (1993), we conclude that a defendant cannot meet the
prejudice prong of an ineffective assistance of counsel claim by
relying on a statutory interpretation that the appellate court
recognizes as incorrect, even if the trial court relied on that
erroneous interpretation in formulating its jury instructions.
No. 20030341, 20030342 	10
and omissions that the possession of a valid permit does not even
qualify as an affirmative defense where a defendant has used a
firearm during the commission of a crime of violence.
¶21 	We therefore hold that Smith’s counsel was not
ineffective for failing to require the State to prove Smith
lacked a valid concealed weapons permit, and we reverse the court
of appeals’s order of remand and reinstate Smith’s conviction
under section 76-10-504(3). 5
CONCLUSION
¶22 	For the reasons set forth above, we hold that Utah Code
section 76-10-504(3) operates as an enhancement of the offense of
unlawful carrying of a concealed weapon, and that the charges
against Smith under Utah Code section 76-5-103 for aggravated
assault therefore do not merge with the charge under Utah Code
section 76-10-504(3). 	We affirm the court of appeals’s holding
on that issue. However, we reverse the court of appeals’s remand
for a new trial because we conclude that Utah Code section 76-10-
504(3) does not require the State to prove the defendant’s lack
of a concealed weapon permit as an element of the crime, and that
Smith’s counsel was therefore not ineffective.
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¶23 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.