State v. Gourdin

2015 UT App 309
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JERAD GOURDIN ,
Appellant.
Memorandum Decision
No. 20140825-CA
Filed December 31, 2015
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 141401481
Dustin M. Parmley and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
S ENIOR JUDGE R USSELL W. BENCH authored this Memorandum
Decision, in which J UDGES GREGORY K. O RME and M ICHELE M.
C HRISTIANSEN concurred.1
BENCH, Senior Judge:
¶1 	Jerad Gourdin appeals his jury conviction of aggravated
assault, arguing that the trial court abused its discretion when it
omitted certain language from the self-defense jury instruction
(Instruction 17). Specifically, Gourdin contests the trial court’s
refusal to include language from the self-defense statute that
would permit the jury to consider the victim’s “prior violent acts
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).

State v. Gourdin
20140825-CA 	2 	2015 UT App 309
or 	violent 	propensities” 	in 	determining 	whether 	Gourdin
“reasonably believe[d] that force or a threat of force [was]
necessary to defend” himself against the victim’s “imminent use
of unlawful force.” See Utah Code Ann. § 76-2-402(1), (5)(d)
(LexisNexis 2012). We affirm Gourdin’s conviction.
¶2 	Gourdin 	argues 	that 	the 	victim’s 	uncontested 	use 	of
methamphetamine 	the 	day 	prior 	to the 	altercation 	and 	the
victim’s involvement in a later fight support inclusion of the
“prior violent acts or violent propensities” language. Gourdin
argued to the trial court that it is “common knowledge” that
“being 	under 	the 	influence 	of 	anything,” 	including
methamphetamine, “can be construed as . . . making that person
hav[e] a propensity towards violence.” The trial court rejected
this 	argument 	and 	ruled 	that 	whether 	methamphetamine
increases a person’s propensity for violence is not common
knowledge. 	The 	court 	noted 	that 	no 	expert 	testimony 	was
presented to the jury on this issue and that the only related
evidence 	presented 	was 	the 	victim’s 	testimony 	that
methamphetamine has a calming effect on him. Additionally, the
trial court ruled that the victim’s involvement in another fight
after his fight with Gourdin does not constitute a “prior violent
act[].” Accordingly, the trial court determined that there was no
evidence to support including the “prior acts of violence and
violent propensities” language in Instruction 17.
¶3 	We review a trial court’s refusal to give a requested jury
instruction for abuse of discretion. Miller v. Utah Dep’t of Transp.,
2012 UT 54, ¶ 13, 285 P.3d 1208. That said, “[w]hen the record
evidence supports a defendant’s theory, the defendant is legally
entitled to have [an] instruction [on that theory] given to the
jury” and the court’s refusal to give the instruction is “an error of
law,” which “always constitutes an abuse of discretion.” State v.
Berriel, 2013 UT 19, ¶ 10, 299 P.3d 1133 (alterations in original)
(citation and internal quotation marks omitted). “The issue of
whether the record evidence, viewed in its totality, supports the

State v. Gourdin
20140825-CA 	3 	2015 UT App 309
defendant’s theory of the case is primarily a factual question”
and, as such, is “entitled to more deference than any other kind
of determination.” Id. ¶ 9.
¶4 	The trial court did not abuse its discretion by declining to
include the contested language in Instruction 17. Gourdin does
not explicitly challenge the trial court’s rejection of his assertion
that 	methamphetamine’s 	effects 	on 	a 	user’s 	aggressiveness
is “common 	knowledge” 	or 	address 	the 	victim’s 	testimony
that the drug has a calming effect on him and that he was
likely no longer under its influence at the time of the fight.
No other 	evidence 	was 	presented 	regarding 	the 	effects 	of
methamphetamine in general or on the victim in particular.
Furthermore, Gourdin does not challenge the trial court’s ruling
that evidence of methamphetamine’s effects in general needed to
be introduced through expert testimony. Thus, we agree with
the trial court that the victim’s use of methamphetamine the day
before the fight with Gourdin was not indicative of the victim’s
“prior violent acts or violent propensities.”
¶5 	Likewise, the fact that the victim was involved in another
fight at some point after the fight with Gourdin is clearly
irrelevant as proof of a “prior violent act[].” Without knowing
more about it,2 the subsequent fight is also not relevant to show
the victim’s violent propensities.3 The phrasing of Instruction 17
2. The fact of the fight was before the jury, but not who started
the altercation or how violent it was.
3. Gourdin also asserts that the victim’s subsequent fight is
relevant to the jury’s consideration of who started the fight at
issue in this case. This argument, however, is not only raised for
the 	first 	time 	in 	Gourdin’s 	appellate 	reply 	brief, 	it 	is 	also
unpreserved. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346
(“As a general rule, claims not raised before the trial court may
not be raised on appeal.”); Romrell v. Zions First Nat’l Bank, NA,
(continued…)

State v. Gourdin
20140825-CA 	4 	2015 UT App 309
limited 	consideration 	of 	a 	person’s 	violent 	propensities 	to
gauging the reasonableness and imminence of the defendant’s
use of force at the 	time of the 	altercation. See Utah Code
Ann. § 76-2-402(1), (5). In other words, the victim’s “violent
disposition” is “material only . . . if it were known to the
defendant before the crime.” See State v. Canfield, 422 P.2d 196,
199 (Utah 1967); see also State v. Howell, 649 P.2d 91, 96 (Utah
1982) (“Evidence of a victim’s turbulent and violent character is
relevant to prove that the . . . defendant, if he knew of those
character traits, was fearful of the [victim].”). Gourdin could not
have known of the victim’s subsequent fight at the time he and
the victim got into a fight. Thus, the subsequent fight has no
bearing on whether the victim had violent propensities of which
Gourdin was aware at the time of the fight, nor is it evidence of a
prior act of violence. Thus, the trial court’s exclusion of the
contested language from Instruction 17 was not an abuse of
discretion, 	because 	there 	was 	no 	evidence 	in 	the 	record
supporting its inclusion.
¶6 	Accordingly, we affirm Gourdin’s conviction.
(…continued)
611 P.2d 392, 395 (Utah 1980) (“As a general rule, an issue raised
initially in a reply brief will not be considered on appeal . . . .”).