This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 7

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Petitioner,

v.

DUSTIN LYNN BIRD,

Respondent.

No. 20120906

Filed January 23, 2015

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable William W. Barrett

No. 091908403

Attorneys:

Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Att’y Gen.,

Salt Lake City, for petitioner

Linda M. Jones, Noella A. Sudbury, Salt Lake City, for respondent

JUSTICE PARRISH authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and

JUDGE ELIZABETH HRUBY-MILLS joined.

JUSTICE LEE authored a dissenting opinion.

Having recused himself, ASSOCIATE CHIEF JUSTICE NEHRING does

not participate herein; JUDGE ELIZABETH HRUBY-MILLS sat.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 On certiorari, we are asked to review the court of appeals’

ruling that the trial court erred by not providing a mens rea jury

instruction for the charge of failure to respond to an officer’s signal

to stop under Utah Code section 41-6a-210. We are also asked to

determine whether the court of appeals erred by failing to provide

guidance on remand regarding a correct jury instruction. We affirm

the court of appeals, but exercise our discretion to provide such

guidance.
STATE v. BIRD

Opinion of the Court

2

BACKGROUND

¶2 On the evening of October 12, 2009, Salt Lake City police

officer Alma Sweeny was patrolling the Glendale area in an

unmarked police vehicle. Officer Sweeny drove past a blue Ford

Mustang and observed that the driver, Dustin Lynn Bird, and the

passenger looked “nervous” and appeared to be “ducking down in

the vehicle.” Officer Sweeny decided to follow the Mustang and

observed the driver and the passenger leaning over, causing the

vehicle to swerve. The Mustang approached a stop sign and slowly

rolled through it without coming to a complete stop. Officer Sweeny

thereafter activated the lights in his police vehicle. The Mustang

immediately slowed in speed but did not pull over. Officer Sweeny

testified that “[t]here were several safe places” to pull over, but the

Mustang continued driving and turned onto a different street. After

making the turn, the Mustang slowed down and pulled to the curb

as though it were going to stop, but then quickly pulled away and

continued driving for approximately half a block before stopping.

While the Mustang was still rolling to a stop, the passenger exited

the vehicle and began running. Officer Sweeny stopped his vehicle

behind the Mustang, stepped out, and walked toward the Mustang.

After seeing the passenger flee, he returned to his vehicle without

saying anything to Mr. Bird. He then drove past the Mustang and

around the corner, where he parked the police vehicle and pursued

the passenger on foot.

¶3 After apprehending the passenger, Officer Sweeny observed

the Mustang pull quickly away from the curb and drive off. Officer

Sweeny called for backup. Shortly thereafter, another officer located

the Mustang and activated his lights. The second officer testified

that Mr. Bird stopped “immediately.” Mr. Bird was then taken into

custody and later charged with failure to respond to an officer’s

signal to stop (failure to respond), a third degree felony under

section 41-6a-210 of the Utah Code. That statute provides that “[a]n

operator who receives a visual or audible signal from a peace officer

to bring the vehicle to a stop may not: . . . attempt to flee or elude a

peace officer by vehicle or other means.” UTAH CODE § 41-6a210(1)(a).

¶4 Mr. Bird’s case was tried to a jury. At the close of evidence,

the trial court presented the proposed jury instructions to the parties.

After reviewing the instructions, defense counsel objected to the

elements instruction for the failure-to-respond charge on the

grounds that it did not “outlin[e] the mental state” required for the

offense and that the requisite mental state “need[ed] to be defined
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Opinion of the Court

3

for the jury.” The trial court disagreed, asserting, “I think it’s got the

elements here.” Defense counsel continued to press for an

instruction that included a mental state of either willfully or

recklessly. Although the State conceded to a “low knowingly”

mental state, the court disagreed, ending the colloquy by stating to

defense counsel, “You’ve made your record, I’ve denied it.” The

court thereafter adopted the following instruction, which tracked the

statutory language: 

The defendant, Dustin Lynn Bird is charged with

Failure to Respond to Officer’s Signal to Stop. You

cannot convict him of this offense unless you find

beyond a reasonable doubt, based on the evidence,

each of the following elements:

1. That on or about October 12th, 2009;

2. the defendant, Dustin Lynn Bird;

3. did operate a motor vehicle, and;

4. having received a visible or audible signal from

 a peace officer to bring the vehicle to a stop;

5. did attempt to flee or elude a peace officer by 

 vehicle or other means.

In its closing, the prosecution argued that the jury “[did] not have to

look in to the defendant’s mind” to determine his culpability. The

jury returned a guilty verdict.

¶5 Mr. Bird timely appealed his conviction to the court of

appeals where he argued that the trial court erred “when it failed to

instruct the jury on themental state requiredfor convictionof failure

to respond to an officer’s signal to stop.” State v. Bird, 2012 UT App

239, ¶ 8, 286 P.3d 11, cert. granted, 298 P.3d 69 (Utah 2013). The court

of appeals agreed with Mr. Bird, reversing the trial court. Id. ¶ 17.

Although the court of appeals remanded Mr. Bird’s case to the trial

court for a new trial, it did not provide guidance for the trial court

on remand. It asked the trial court “to determine in the first instance

what the contents of any requested mental state instruction should

be.” Id. ¶ 17 n.6.

¶6 We granted the State’s petition for certiorari. We have

jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶7 “On certiorari, we review the decision of the court of appeals

for correctness” and may affirm its decision “on any ground
STATE v. BIRD

Opinion of the Court

4

supported in the record.” Collins v. Sandy City Bd. of Adjustment, 2002

UT 77, ¶ 11, 52 P.3d 1267 (internal quotation marks omitted).

ANALYSIS

I. MR. BIRD PRESERVED HIS OBJECTION TO THE 

JURY INSTRUCTION

¶8 The State first argues that the court of appeals erred in

finding that Mr. Bird preserved his objection. It contends that Mr.

Bird did not preserve his mens rea argument because his only

request to the trial court was “that the mental states [intentionally,

knowingly, or recklessly] be added to the elements instruction,”

whereas on appeal, Mr. Bird argues that the trial court should have

defined the terms “receive” and “attempt.” In response, Mr. Bird

asserts that his argument on appeal is not that the trial court should

have defined “receive” and “attempt,” but rather that it should have

identified the requisite mental state for the jury because the mens rea

implications of the terms “receive” and “attempt” are unclear. Mr.

Bird also argues that continuing to pursue his objection in the trial

court would have been futile in light of the court’s comment to Mr.

Bird that “[he had] made [his] record.” We agree with the court of

appeals and hold that Mr. Bird sufficiently preserved his jury

instruction objection.

¶9 First, the State misconstrues Mr. Bird’s argument on appeal.

Although his brief includes a discussion of the terms “receive” and

“attempt,” the essence of his argument on appeal is that these terms

incorporate a mens rea element into the failure-to-respond offense.

Mr. Bird has not argued that “receive” and “attempt” should have

been defined to the jury, but instead that the jury should have been

instructed on the mental states embodied by these terms. In short,

Mr. Bird’s argument on appeal is the same argument he made to the

trial court.

¶10 Second, Mr. Bird presented his argument to the trial court in

a clear manner. To preserve an issue, counsel must raise the issue in

the trial court “in such a way that the trial court has an opportunity

to rule on that issue.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366.

We look to three factors to determine whether the trial court had

such an opportunity: (1) whether the issue was raised in a timely

fashion, (2) whether it was raised specifically, (3) and whether the

party “introduce[d] supporting evidence or relevant legal

authority.” Id.
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Opinion of the Court

5

¶11 In this case,Mr. Bird’s objection was timely. Defense counsel

raised the objection at her first opportunity to object to the proposed

jury instructions. The objection was also specific. The State attempts

to characterize Mr. Bird’s objection as overly narrow. But counsel

objected on the grounds that she did not “see anything outlining the

mental state,” and argued that “there needs to be [an] explanation

that [Mr. Bird acted] . . . recklessly or willfully.” In short, Mr. Bird

specifically objected to the lack of a mens rea instruction for the

failure-to-respond offense as a whole. Finally, although defense

counsel did not introduce relevant legal authority, counsel was

given only a brief moment to review the statute-based language in

the jury instructions and make her objection. Where there was not an

opportunity to gather relevant legal authority, it is sufficient—for

preservation purposes—that counsel relied on the statutory

language in making her objection.

¶12 In sum, we conclude the issue was preserved for appeal

because Mr. Bird presented his argument to the trial court in a way

that gave the court an opportunity to rule on the issue. Thus, we turn

to the merits.

II. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE

JURY ON THE REQUIRED MENS REA

¶13 The court of appeals held that the trial court erred by not

defining the required mental state for each element of the failure to

respond charge under Utah Code section 41-6a-210(1)(a). The failureto-respond statute provides, “An operator who receives a visual or

audible signal from a peace officer to bring the vehicle to a stop may

not: . . . attempt to flee or elude a peace officer by vehicle or other

means.” UTAH CODE § 41-6a-210(1)(a) (emphasis added). The court

of appeals explained that the terms “receive” and “attempt” indicate

that the offense “incorporates its own set of mental state

requirements on which [Mr.] Bird was entitled to a jury instruction.”

State v. Bird, 2012 UT App 239, ¶ 15, 286 P.3d 11. It acknowledged

that these are common terms, but reasoned that “the criminal law

mens rea implications of those terms would [not] necessarily be

obvious to a jury.” Id. ¶ 16 n.5. We agree with the court of appeals

and hold that the trial court erred in not instructing the jury on the

mens rea requirement for the failure-to-respond charge.

A. Mens Rea Is a Basic Element of an Offense and 

Requires an Instruction

¶14 The general rule for jury instructions is that “an accurate

instruction upon the basic elements of an offense is essential. Failure
STATE v. BIRD

Opinion of the Court

6

to so instruct constitutes reversible error.” State v. Bluff, 2002 UT 66,

¶ 26, 52 P.3d 1210 (internal quotation marks omitted). A mens rea

element is an “essential element of [an] offense.” State v. Cobo, 60

P.2d 952, 959 (Utah 1936). Thus, failure to instruct the jury as to the

required mens rea, when it is an element of the crime, is reversible

error.

¶15 A trial court should provide the jury with a mens rea

instruction when a criminal statute includes terms that have mens

rea implications. In State v. Stringham, 957 P.2d 602, 609 (Utah Ct.

App. 1998), for example, the defendant was convicted of

communications fraud, but the court of appeals reversed and

remanded for a new trial because the trial court failed to instruct the

jury on the mens rea element. Id. It explained, “It is too long a reach

to suggest the jury divined that defendant had to act intentionally

because such a level of volition is inherent in the concept of

‘devis[ing] a scheme.’” Id. (alteration in original).

¶16 Of particular concern is an instruction that leaves the

erroneous impression that a crime is one of strict liability, when it in

fact contains a mens rea element. In State v. Pearson, the defendant

had been convicted of failure to disclose a transaction to a

government employer. 1999 UT App 220, ¶ 1, 985 P.2d 919. The

court of appeals reversed the conviction, reasoning that “[b]y

selectively applying the mens rea to some, but not all, of the

elements of the offense, the jury could easily have believed

defendant was strictly liable for [the remaining element].” Id. ¶ 12.

¶17 An appropriate jury instruction must also distinguish

between the general and specific intent requirements of an offense.

State v. Potter, 627 P.2d 75, 78 (Utah 1981). In Potter, we remanded for

a new trial “[b]ecause the instructions given . . . failed to explain

adequately the distinction between the general and specific intent

requirements.” Id. Thus, a trial court must instruct the jury on the

proper mens rea for the offense charged. And the instruction must

identify the mens rea implicated by the statutory language, must

include a mens rea for all elements, and must distinguish between

general and specific intent.

B. The Required Mens Rea for Failure to Respond

¶18 In this case, both parties agree that the failure-to-respond

offense includes a mens rea element. Violations of the Utah Traffic

Code, such as this, are strict liability offenses “unless specifically

provided by law.” UTAH CODE § 76-2-101(2). In this case, however,

the terms “receive” and “attempt,” which are contained in the
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Opinion of the Court

7

statutory language, indicate that this crime includes some level of

mental appreciation. What the parties dispute is whether a jury

instruction that simply lists the statutory elements of the offense is

sufficient to alert the jury to the mens rea element.

¶19 The State argues that because the terms “receive” and

“attempt” are terms of common usage, it was unnecessary to instruct

the jury as to the meaning of these terms. We agree that the jury

would have understood the plain meaning of the terms “receive”

and “attempt.” But we cannot assume that the jury understood the

mens rea implications of these terms. Indeed, mens rea is a “legal

term of art” that ought to be explicitly explained to a jury. See State

v. Jeffs, 2010 UT 49, ¶ 43, 243 P.3d 1250.

¶20 We can expect a lay juror to understand that the term

“receive” contemplates a level of knowledge. See WEBSTER’S NEW

COLLEGE DICTIONARY 1195 (2007) (including among the definitions

of “receive,” “to apprehend mentally; get knowledge of or

information about”). Therefore, a juror would likely have perceived

that the “receives a visual or audible signal from a peace officer”

element of the offense requires knowledge of the peace officer’s

signal. But we cannot assume that a juror would recognize the

significance of this knowledge requirement as an essential mens rea

element. Thus, it was error for the trial court not to instruct the jury

that the charge included a knowingly mens rea element and define

what would satisfy that element.

¶21 The trial court’s error in not including a mens rea instruction

is even more apparent in the context of the “attempt to flee or elude

a police officer” element. The term “attempt” carries a distinct

meaning in criminal law that we cannot expect a lay juror to

understand without instruction. The common dictionary definition

of attempt is “to try, solicit,” or “to make an effort to do, get, have,

etc.” Id. at 91. In contrast, the statutory definition of attempt means

something more than to try or make an effort. As explained in Utah

Code section 76-4-101(1), attempt means to “engage[] in conduct

constituting a substantial step toward commission of the crime” and

to “intend[] to commit the crime.” Thus, the statutory meaning of

attempt connotes a conscious decision with more specific action than

does the common dictionary definition of the term.

¶22 Although the term “attempt” implicates a mental state

requirement, it does not necessarily indicate the applicable level of

mens rea. For example, the crime of assault, like failure to respond,

includes attempt as one of its elements. UTAH CODE § 76-5-102(1)
STATE v. BIRD

Opinion of the Court

8

(“Assault is . . . an attempt, with unlawful force or violence, to do

bodily injury to another . . . .”). But we have explained that the

assault statute itself does not prescribe the requisite mental state.

State v. Hutchings, 2012 UT 50, ¶ 12, 285 P.3d 1183. In other words,

the requisite mens rea is not apparent from the statute’s use of the

term “attempt.” Utah Code section 76-2-102 explains that “intent,

knowledge, or recklessness shall suffice to establish criminal

responsibility” “when the definition of the offense does not specify

a culpable mental state and the offense does not involve strict

liability.” Thus, intent, knowledge, or recklessness must “be found

to establish criminal responsibility” in the context of assault. Id. ¶ 12.

¶23 In the context of the failure-to-respond offense, the “attempt

to flee or elude” element implicates an intentional mens rea. To flee

or elude means something more than to merely leave or depart; the

terms indicate action with a specific purpose. See WEBSTER’S NEW

COLLEGE DICTIONARY 540 (2007) (defining “flee” as “to run away or

escape”); Id. at 463 (defining “elude” as “to avoid or escape from by

quickness, cunning, etc.”). Because the act of fleeing or eluding

requires a conscious decision to escape or avoid, one could not

recklessly flee from a peace officer. Although a person might act

recklessly by departing from a police stop without the police officer’s

permission, the person would not be fleeing unless it were his

intention to escape or avoid the police officer. To attempt to flee or

elude, therefore, requires that the actor leave in an effort to escape

or avoid a peace officer. Thus, the trial court should have instructed

the jury that an “attempt to flee or elude” requires an intentional

mental state.

¶24 In sum, the court of appeals correctly held that the trial court

erred in denying Mr. Bird a mens rea jury instruction because the

instruction given to the jury did not specify the essential mens rea

elements of the failure-to-respond charge.

III. GUIDANCE FOR REMAND

¶25 The State also argues that the court of appeals erred by not

providing guidance on remand. We disagree. Although appellate

courts have the discretion to provide guidance on remand, they are

not required to do so. Compare State v. Low, 2008 UT 58, ¶ 61, 192

P.3d 867 (exercising our discretion to provide guidance), with State

v. Verde, 2012 UT 60, ¶ 62, 296 P.3d 673 (deferring to the trial court’s

“superior position” in matters of evidence and withholding

guidance). Thus, it was not error for the court of appeals to ask the
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JUSTICE LEE, dissenting

9

trial court to determine, in the first instance, the proper mens rea

instruction.

¶26 We, however, choose to provide such guidance. If the State

recharges Mr. Bird, we direct the trial court to instruct the jury that

Mr. Bird must have knowingly “received a visual or audible signal

from a police officer” and must have intended “to flee or elude a

peace officer.” And the trial court should also include an instruction

defining the knowing and intentional mental states.

CONCLUSION

¶27 We affirm the court of appeals’ reversal of Mr. Bird’s

conviction because the trial court erred in failing to instruct the jury

on the mens rea requirements of section 41-6a-210 of the Utah Code.

On remand, the trial court should instruct the jury as to the mens rea

required for each of the elements of the failure-to-respond charge.

JUSTICE LEE, dissenting:

¶28 I respectfully dissent from the majority’s determination of

reversible error in the district court’s failure to give an instruction

clarifying the mens rea implications of the elements of the offense set

forth in Utah Code section 41-6a-210(1)(a). Perhaps such an

instruction would have aided the jury somewhat, by clarifying the

import of the elements of (a) “receiv[ing] a visual or audible signal

from a peace officer,” and (b) “attempt[ing] to flee or elude a peace

officer by vehicle or other means.” UTAH CODE § 41-6a-210(1)(a). But

the question presented is not whether the judges of this court would

have accepted a request to give such an instruction. It is whether the

district judge’s failure to give the instruction was error, and whether

any such error would have made any difference to the outcome.

¶29 I would affirm on two grounds. First, I would uphold the

jury instruction as given on its own terms, as the ordinary meaning

of the terms of the instruction adequately conveyed a fair

understanding of the mens rea issues identified by the majority.

Second, I would hold that any purported error in the instruction as

given was harmless, having no “‘reasonable likelihood’” of affecting

the outcome of the proceedings. State v. Powell, 2007 UT 9, ¶21, 154

P.3d 788. 

¶30 It is an over-generalization to say that “[a] trial court should

provide the jury with a mens rea instruction when a criminal statute

includes terms that have mens rea implications.” Supra ¶ 15. Our

cases seem to me to stand for a more modest principle. Instead of
STATE v. BIRD

JUSTICE LEE, dissenting

See State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (explaining

1

that we review jury instructions “in their entirety and will affirm

when the instructions taken as a whole fairly instruct the jury on the

law applicable to the case”); State v. Roberts, 711 P.2d 235, 239 (Utah

1985) (stating “the general rule” that “an accurate instruction upon

the basic elements of an offense is essential”). 

State v. James, 819 P.2d 781, 799 (Utah 1991). 2

10

broadly mandating separate mens rea clarifications of all “terms that

have mens rea implications,” we have simply required that the jury

be fairly and accurately instructed on all elements (whether mens rea

or actus reus) of any offense. And we have hastened to add that “the 1

trial court does not err in refusing to give a requested instruction if

the point is properly covered in other instructions presented to the

jury.”2

¶31 The instruction given in this case easily satisfied these

standards. First, the instruction conveyed the requirement of

knowledge of the peace officer’s signal. It did so by requiring the jury

to find that the defendant “received a visible or audible signal from

a peace officer.” As the majority acknowledges, the knowledge

requirement is inherent in the common, ordinary understanding of

the verb receive. See supra ¶ 20 (citing WEBSTER’S NEW COLLEGE

DICTIONARY 1195(2007),defining “receive” as “apprehend mentally;

get knowledge of or information about”). 

¶32 Second, the instruction also conveyed the requirement of

intent to flee or evade. That requirement was again inherent in the

common, ordinary meaning of the terms of the district court’s

instruction. Here the operative terms are “attempt,” which “is ‘to try,

solicit,’ or ‘to make an effort to do, get, have, etc.,” supra ¶ 21 (citing

WEBSTER’S NEW COLLEGE DICTIONARY 91 (2007)); and “flee” or

“evade,” which mean, respectively, “run away or escape,” and

“avoid or escape from by quickness, cunning, etc.,” supra ¶ 23 (citing

WEBSTER’S NEW COLLEGE DICTIONARY 540, 463).

¶33 The elements of “receiv[ing]” a signal and of “attempt[ing]

to flee or elude a peace officer” thus gave the jury a fair and accurate

understanding of the mens rea elements of the offense of failure to

respond under Utah Code section 41-6a-210. The majority’s analysis

only confirms this conclusion. It does so by reciting the above

definitions ofthe operative terms of the statute—receive, attempt, flee,

and evade—and by conceding that these terms accordingly conveyed

the essential notion of the knowledge and intent elements of the
Cite as: 2015 UT 7

JUSTICE LEE, dissenting

See Philpot v. State, 486 S.E.2d 158, 160–61 (Ga. 1997) (dismissing 3

defendant’s argument that the trial court improperly failed to define

terms “knowingly” and “great risk” because “the terms . . . are

ordinary terms found in common usage and understood by people

of common and ordinary experience . . . and need not be specifically

defined in the charge to a jury”); People v. McCleod, 55 Cal.App.4th

1205, 1216 (Cal. Ct. App. 1997) (upholding the inclusion of the

common term “residence” in a jury instruction without additional

elaboration, stating that a court “need only give explanatory

instructions when terms used in an instruction have a technical

meaning peculiar to the law” (internal quotation marks omitted)). 

11

offense in question. Supra ¶ 20 (conceding that “a juror would likely

have perceived that the ‘receives a visual or audible signal from a

peace officer’ element of the offense requires knowledge of the peace

officer’s signal”); id. ¶ 23 (acknowledging that “the ‘attempt to flee

or elude’ element implicates an intentional mens rea”). That should

be the end of our analysis. The jury was fairly instructed, and we

should affirm the conviction on that basis.

3

¶34 The majority’s justifications for overturning the jury verdict

are unpersuasive. As to the knowledge implications of the instruction

given to the jury, I accept that we do not know for certain whether

a “juror would recognize the significance of” the statutory

“knowledge requirement as an essential mens rea element.” Supra

¶ 20 (emphasis added). But the majority has not identified any sense

in which the ordinary meaning of “receive” would fall short of

giving the jury a full sense of the knowledge element of the offense in

question. Instead it has vaguely suggested that the jury might not get

it, and concluded that “[t]hus it was error” not to provide further

explanation in a more detailed instruction. Supra ¶ 20. This turns the

operative burden of persuasion on its head. 

¶35 To succeed in establishing a basis for reversal, the defendant

bears the burden of demonstrating that the instruction in question

falls short of the goal of fairly and accurately stating the law (and of

indicating that the error is likely to have made a difference in the

outcome, a separate problem discussed below, infra ¶ 13). Powell,

2007 UT 9, ¶ 21. The court inverts that standard by reversing on the

basis of a vague insistence that the jury might not have “recognize[d]

the significance” of the instruction’s reference to “receiv[ing] a visual

or audible signal from a peace officer.” Supra ¶ 20. I dissent from a

decision that seems to me to ignore our cases regarding the operative

burden of persuasion.
STATE v. BIRD

JUSTICE LEE, dissenting

12

¶36 The majority’s analysis of the intent implications of the

instruction in question is similarly problematic. If the ordinary

meaning of “attempt to flee or elude . . . requires that the actor leave

in an effort to escape or avoid a peace officer,” supra ¶ 23, then

defendant Bird has failed to carry his burden of proof that the

instruction as given fell short of giving a fair and accurate

description of the law to the jury. That is a sufficient basis for

affirming the jury verdict in this case.

¶37 The court does not clearly identify any precise shortcoming

of the intent implications of the instruction in question. But in

discussing the statutory term attempt, the court appears to draw a

distinction between (a) “[t]he common dictionary definition of

attempt,” as “to try, solicit, or to make an effort to do, get, have,

etc.”; and (b) the legal sense of the inchoate crime of attempt, which

requires “a substantial step toward commission of the crime.” Supra

¶ 21 (internal quotations omitted). And in discussing this distinction,

the court suggests that “the statutory meaning of attempt connotes a

conscious decision with more specific action than does the common

dictionary definition of the term.” Supra ¶ 21 (emphasis added).

¶38 If the majority is suggesting that the “substantial step”

element of the inchoate crime of attempt should have been included

in the instruction as given, then I dissent from that conclusion. For

one thing, I see no basis for treating the failure to stop offense as

inchoate. It is not defined in terms of a “substantial step” toward a

choate offense. It appears instead to be a crime in itself. So there is no

reason to read the “substantial step” sense of an inchoate attempt into

this state. In any event, that notion of attempt was neither preserved

in the district court nor argued on appeal. So if the failure to instruct

on “substantial step” is the shortcoming that the court sees in the

instruction in question, it is a defect of the court’s own imagining.

And if that is not the problem, then the court has failed to identify

any distinction between the common, ordinary sense of the terms of

the district court’s instruction and the mens rea requirements

delineated in the majority opinion.

¶39 Finally, even assuming some minor, unarticulated

distinction between the ordinary meaning of “receiv[ing] a visual or

audible signal” and the knowledge required by the majority, or

between “attempt[ing]to flee or elude a peace officer” and the intent

requirement set forth by the court, we should still affirm Bird’s

conviction on harmless error grounds. Under settled law, Bird bears

the burden of establishing that any error in the instruction in

question was reasonably likely to affect the outcome in this case. See
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JUSTICE LEE, dissenting

13

State v. Vargas, 2001 UT 5, ¶ 39, 20 P.3d 271 (stating that it is the

defendant’s burden to establish that the error is harmful). In my

view he has utterly failed to carry that burden. Given the common,

ordinary sense of the operative terms of the instruction given to the

jury in this case, I would also hold that any arguable shortcoming in

failing to elaborate on the mens rea elements of the offense was

harmless.