This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 72

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Respondent,

v.

ANDY RASABOUT,

Petitioner.

No. 20130430

Filed August 14, 2015

On Certiorari to the Utah Court of Appeals

Attorneys:

Sean D. Reyes, Att’y Gen., Ryan D. Tenney, Asst. Att’y Gen.,

Salt Lake City, for respondent

Debra M. Nelson, Daniel Torrence,

Salt Lake City, for petitioner

JUSTICE PARRISH authored the opinion of the Court, in which

JUSTICE DURHAM and JUDGE HARRIS joined in full, CHIEF JUSTICE

DURRANT joined except as to Part I.C, and ASSOCIATE CHIEF

JUSTICE LEE joined except as to Part I.A, I.B, and I.C.

CHIEF JUSTICE DURRANT authored an opinion concurring in part

and concurring in the judgment.

ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in

part and concurring in the judgment.

Due to his retirement, JUSTICE NEHRING did not participate herein;

DISTRICT COURT JUDGE RYAN HARRIS sat.

JUSTICE DENO G. HIMONAS became a member of the Court on

February 13, 2015, after oral argument in this matter, 

and accordingly did not participate.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 Andy Rasabout fired twelve shots at a house in a gangrelated drive-by shooting. A jury convicted him of twelve felony

counts of unlawful discharge of a firearm, in violation of Utah Code

section 76-10-508. The trial court merged the twelve counts into one,
STATE v. RASABOUT

Opinion of the Court

1 State v. Rasabout, 2013 UT App 71, ¶ 33, 299 P.3d 625.

2 State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.

2

but the court of appeals reversed. We granted Mr. Rasabout’s

petition for certiorari and now affirm the ruling of the court of

appeals, holding that the allowable unit of prosecution for unlawful

discharge of a firearm is each discrete shot.

BACKGROUND

¶2 Mr. Rasabout is a member of the street gang known as the

Tiny Oriental Posse. On November 1, 2007, Mr. Rasabout, riding

shotgun in a Honda Civic, fired twelve shots from a Glock 9 mm

semiautomatic pistol at a house and a car parked in front. Lee Tran,

whom Mr. Rasabout knew to be a rival in the Original Laotian

Gangsters, owned the car and was inside the house at the time. But

Mr. Tran was not the only person in danger. Two young girls and

their mother were asleep upstairs. Several others were playing cards

in the basement. And one man was standing in the carport, enjoying

the crisp morning air and a cigarette.

¶3 A jury convicted Mr. Rasabout of twelve felony counts of

unlawful discharge of a firearm, in violation of Utah Code section

76-10-508. At Mr. Rasabout’s request, the trial court merged the

twelve counts and sentenced Mr. Rasabout on the basis of one

conviction. The court of appeals concluded that the trial court erred

and ordered that court to resentence Mr. Rasabout on all twelve

convictions.1

 We granted Mr. Rasabout’s petition for certiorari and

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

STANDARD OF REVIEW

¶4 On certiorari to the Utah Court of Appeals, we review the

decision of that court for correctness; we do not review the decision

of the trial court.2

ANALYSIS

¶5 When Mr. Rasabout fired twelve shots into a house that he

knew to be occupied by a rival gang member, Utah Code section 76-

10-508 provided,

(1)(a) A person may not discharge any kind of

dangerous weapon or firearm:

(i) from an automobile or other vehicle;

(ii) from, upon, or across any highway;
Cite as: 2015 UT 72

Opinion of the Court

3

 UTAH CODE § 76-10-508 (2007).

3

. . . .

(vii) without written permission . . . within 600

feet of . . . a house, dwelling, or any other building;

. . . .

(2) A violation of any provision of this section is a class

B misdemeanor unless the actor discharges a firearm

under any of the following circumstances . . . , in

which case it is a third degree felony and the convicted

person shall be sentenced to an enhanced minimum

term of three years in prison:

(a) the actor discharges a firearm in the

direction of any person or persons, knowing or having

reason to believe that any person may be endangered;

(b) the actor, with intent to intimidate or harass

another or with intent to damage a habitable

structure . . . , discharges a firearm in the direction of

any building; or

(c) the actor, with intent to intimidate or harass

another, discharges a firearm in the direction of any

vehicle.3

Pursuant to this statute, a jury convicted Mr. Rasabout of twelve

felony counts of unlawful discharge of a firearm. The trial court

merged the twelve counts into one. The court of appeals reversed

this ruling, reasoning that the allowable unit of prosecution for the

offense is each discrete shot. Thus, the court concluded that the

twelve discrete shots Mr. Rasabout fired support twelve convictions.

We affirm the court of appeals.

¶6 Our analysis proceeds in three parts: First, we hold that the

allowable unit of prosecution for unlawful discharge of a firearm is

each discrete shot; accordingly, Mr. Rasabout was properly

convicted of and may be punished for twelve separate counts

because he fired twelve discrete shots. Second, we reject as

inapplicable the single criminal episode statute and the single

larceny rule, on which Mr. Rasabout relies. Third, we hold that the

state and federal cruel and unusual punishment clauses are

inapplicable because those clauses deal with punishment, which is

distinct from the allowable unit of prosecution for an offense.
STATE v. RASABOUT

Opinion of the Court

4 State v. Rasabout, 2013 UT App 71, ¶ 33, 299 P.3d 625.

5

 UTAH CODE § 76-5b-201(1)(a)(ii).

6 Id. § 76-5b-201(3).

4

I. MR. RASABOUT WAS PROPERLY CONVICTED OF TWELVE

COUNTS OF UNLAWFUL DISCHARGE OF A FIREARM

BECAUSE HE FIRED TWELVE DISCRETE SHOTS

¶7 At the heart of this case is a single question: What is the

allowable unit of prosecution for the crime of unlawful discharge of

a firearm? The answer to that question determines whether Mr.

Rasabout was permissibly convicted of twelve counts. The court of

appeals concluded that “the unit of prosecution under the firearm

discharge statute is each discrete shot.”4

 Mr. Rasabout argues that

this conclusion was in error. He points instead to the intent required

by the enhancement provision and argues that the allowable unit of

prosecution is the continuous intent that motivates one or more

shots. He reasons that he violated the statute only once because a

single continuous intent motivated him to fire all twelve shots. The

State disagrees, arguing that the Legislature criminalized each

discrete shot. We agree with the State and therefore affirm the court

of appeals.

A. Identifying the Allowable Unit of Prosecution for an Offense

¶8 The allowable unit of prosecution for an offense determines

whether a perpetrator’s conduct constitutes one or more violations

of that offense. Take the example of child pornography. It is a crime

to “intentionally . . . view[] child pornography.”5

 If a perpetrator

views multiple images of multiple victims over a period of time,

how many times has he committed the offense? Perhaps there is one

violation for each viewing session, regardless of the number of

images or victims. Or maybe there is one violation for each victim or

one for each image. The allowable unit of prosecution provided by

the offense resolves this question. In the case of child pornography,

the Legislature has provided that “[i]t is a separate offense under

this section: (a) for each minor depicted in the child pornography;

and (b) for each time the same minor is depicted in different child

pornography.”6

¶9 But not all statutes explicitly define the allowable unit of

prosecution. State v. Morrison, which dealt with a prior version of the

child-pornography statute, illustrates the appropriate analysis when
Cite as: 2015 UT 72

Opinion of the Court

7

 2001 UT 73, ¶¶ 24–26, 31 P.3d 547.

8 Id. ¶ 24.

9 Id. ¶ 25 (alterations in original).

10 Id. ¶ 26.

11 Id.

12 Id. ¶¶ 25–26; see also Bell v. United States, 349 U.S. 81, 81 (1955)

(When determining how many times a federal offense has been

committed, courts must determine “[w]hat Congress has made the

allowable unit of prosecution.” (internal quotation marks omitted));

41 AM.JUR. 2D Indictments and Informations § 205 (2015) (“[W]hen the

same statutory violation is charged twice, the question is whether

[the Legislature] has intended the facts underlying each count to

make up a separate unit of prosecution.”); 42 C.J.S. Indictments § 213

(2015) (A court must “consider[] whether the legislature intended

the facts underlying each count to make up a separate unit of

prosecution.”).

13 LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.

14 See, e.g, Delta Canal Co. v. Frank Vincent Family Ranch, LC,

2013 UT 69, ¶ 16, __ P.3d __; Anderson v. United Parcel Serv.,

(continued...)

5

the statute at issue is not so explicit.7

 In that case, the defendant

contended that he violated the child-pornography statute only once

even though he possessed multiple visual representations of child

pornography.8

 Although the statute did not explicitly define the

allowable unit of prosecution, we nevertheless focused on the

statutory language that defined the offense as “‘knowingly . . .

possess[ing] . . . material . . . depicting’” child pornography and

defined “material” as “‘any visual representation.’”9

 We reasoned

that “[t]he clearest reading of the statute is that each individual

‘visual representation’ of child pornography that is knowingly

possessed by a defendant constitutes the basis for a separate

offense.”10 Accordingly, on the basis of the statutory language, we

held that the allowable unit of prosecution for child pornography is

each visual representation.11

¶10 In short, identifying the allowable unit of prosecution for an

offense is a question of statutory construction.12 And when

construing a statute, we seek to give effect to the intent of the

Legislature.13 Indeed, this has been our practice from the time of

statehood until now.14 To ascertain that intent, we look first to the
STATE v. RASABOUT

Opinion of the Court

14(...continued)

2004 UT 57, ¶ 24, 96 P.3d 903; Savage Indus., Inc. v. Utah State Tax

Comm’n, 811 P.2d 664, 671 (Utah 1991); Wells Fargo Armored Serv.

Corp. v. Pub. Serv. Comm’n of Utah, 626 P.2d 450, 451 (Utah 1981);

Scott v. Sch. Bd. of Granite Sch. Dist., 568 P.2d 746, 747–48 (Utah 1977);

Walker Bank & Trust Co. v. Taylor, 390 P.2d 592, 594 (Utah 1964);

Donahue v. Warner Bros. Pictures Distrib. Corp., 272 P.2d 177, 183

(Utah 1954); Norville v. State Tax Comm’n, 97 P.2d 937, 939 (Utah

1940); Moormeister v. Dep’t of Registration of State, 288 P. 900, 903

(Utah 1930); Roberts v. Lynch, 190 P. 930, 932 (Utah 1920); Hayes v.

Ross, 127 P. 340, 343 (Utah 1912); Armstrong v. Johnson (In re Owens’

Estate), 85 P. 277, 279 (Utah 1906); Pratt v. Bd. of Police & Fire Comm’rs,

49 P. 747, 749 (Utah 1897).

15 LPI Servs., 2009 UT 41, ¶ 11.

16 While some of our cases focus on ordinary meaning, they

should not be read to suggest that ordinary meaning is the exclusive

tool available to us in our effort to effectuate legislative intent when

a statutory term is not expressly defined or does not appear to be a

technical term of art. E.g., Barneck v. Utah Dep’t of Transp.,

2015 UT 50, ¶ 28, __ P.3d __; State v. Bagnes, 2014 UT 4, ¶ 13,

322 P.3d 719; Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 18,

304 P.3d 851; State v. Canton, 2013 UT 44, ¶¶ 10–27 & n.6,

308 P.3d 517; Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9,

248 P.3d 465.

6

text of the statute within its context.15 And while the ordinary

meaning of a word is powerful evidence in understanding statutory

text, it is not the only consideration because it is simply inconclusive

as to the meaning intended in a particular context.16 Even if a word

bears one meaning in the majority of cases where that word is used

proximate to another, that does not foreclose the possibility that the

Legislature intended a less-preferred meaning in a particular

context. We therefore begin with the plain language of the provision

at issue in our broader effort to ascertain the intent of the Legislature

disclosed by the language of the act as a whole, the act’s operation,

and its purpose.

B. The Allowable Unit of Prosecution for Unlawful Discharge of a

Firearm is Each Discrete Shot

¶11 The unlawful-discharge-of-a-firearm statute provides that

“[a] person may not discharge any kind of dangerous weapon or
Cite as: 2015 UT 72

Opinion of the Court

17 UTAH CODE § 76-10-508(1)(a) (2007) (emphasis added).

18 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 354 (11th ed.

2012).

19 Id. at 208.

20 Id. at 356 (equating discharge with shoot as in “[discharge] an

arrow”); see also id. at 471 (defining firearm as “a weapon from which

a shot is discharged by gunpowder”); THE AMERICAN HERITAGE

DICTIONARY OF THE ENGLISH LANGUAGE 514 (5th ed. 2011) (“The

musket discharged loudly.” (emphasis omitted)).

21 MERRIAM-WEBSTER, supra, at 1151; AMERICAN HERITAGE, supra,

at 1620 (defining shoot as “[t]o fire or let fly (a missile) from a

weapon” or “[t]o discharge (a weapon)”).

22 UTAH CODE § 76-10-501(9) (2007) (emphasis added).

23 Id. § 76-10-501(12).

7

firearm” in certain dangerous conditions.17 The allowable unit of

prosecution turns on the meaning of the term “discharge” in the

context of a “dangerous weapon or firearm.”

¶12 The word discharge is made up of two parts: a prefix and the

root word. Adding the prefix dis provides the negative or opposite

meaning of the root word.18 The root word charge includes the verb

meaning “to place a charge (as of powder) in” and the noun

meaning “the quantity of explosive used in a single discharge.”19

And the dictionary entry of the word discharge includes the meaning

“to release from confinement” or simply to shoot.20 The definition of

shoot confirms its synonymous meaning in the firearm context; it

means “to eject or impel . . . by a sudden release of tension” or “to

drive forth . . . by an explosion (as of a powder charge in a

firearm . . . ).”21 Under these dictionary entries, the clearest reading

of the statute is that discharging a weapon or firearm means

shooting a weapon or firearm.

¶13 This understanding is confirmed by the statutory definition

applicable to this offense. It defines a firearm as “any device . . . from

which is expelled a projectile by action of an explosive.”22 In other

words, it contemplates the expulsion of a single projectile with a

single explosion. Similarly, that section defines a handgun as a

“firearm of any description . . . from which any shot, bullet, or other

missile can be discharged, the length of which . . . does not exceed 12

inches.”23 This definition also contemplates a single “shot, bullet, or
STATE v. RASABOUT

Opinion of the Court

24 Id.

25 Mr. Rasabout points out that a shotgun expels multiple pellets

with a single explosion. But we are not persuaded that this is a

distinction with a meaningful difference. The statutory definition of

firearm equates a shotgun with a pistol and a rifle, all of which use a

single explosion to expel a projectile. Id. § 76-10-501(9). The fact that

a cartridge of ammunition includes multiple pellets does not change

the fact that it is a single shot. Mr. Rasabout also points to the case of

an automatic weapon. But a fully automatic weapon is a “firearm

which fires . . . automatically more than one shot without manual

reloading by a single function of the trigger.” Id. § 76-10-501(11).

Even though there is only “a single function of the trigger,” there are

still multiple shots.

8

other missile” that “can be discharged.”24 These definitions thus

confirm that the term discharge contemplates a discrete shot or

explosion.25

¶14 Additionally, it was reasonable for the Legislature to

criminalize each shot fired because each shot carries an independent

harm. Otherwise, an individual shooting once would have no

punitive deterrent from continuing to shoot as many times as

possible—essentially a buy one, harm as much as you like discount.

Thus, convicting Mr. Rasabout of a separate offense for each shot

fired creates an independent punitive deterrent for each pull of the

trigger.

¶15 In urging his position that the allowable unit of prosecution

is not each shot fired, Mr. Rasabout points to the “intent to

intimidate” language in subsection (2) of the statute. He argues that

this language suggests that the Legislature defined the allowable

unit of prosecution for this offense based on the singular intent of

the perpetrator, no matter haw many shots are actually fired. We are

unpersuaded by Mr. Rasabout’s argument for two reasons. First, the

“intent to intimidate” language is not part of the provision defining

the crime. Rather, it is located in the enhancement provision.

Because we presume that the Legislature used the term discharge

consistently throughout the statute, it must mean the same thing

whether or not the offense is enhanced. Because the word discharge

means shoot in the provision defining the crime, it must mean the

same thing when the perpetrator discharges a firearm with an

“intent to intimidate.” Second, there is nothing about an “intent to

intimidate” as an enhancement that suggests that the intimidation
Cite as: 2015 UT 72

Opinion of the Court

26 Infra ¶ 53.

27 Infra ¶ 55.

28 R.C.S. v. A.O.L. (In re Baby Girl T.), 2012 UT 78, ¶ 42,

298 P.3d 1251 (Lee, J., dissenting).

29 Id. ¶ 56.

30 See, e.g., St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 14, __ P.3d __ (noting

that “we would be ill-advised to reach a decision regarding unsettled law without the benefit of adversarial briefing” (internal

quotation marks omitted)); Munson v. Chamberlain, 2007 UT 91, ¶ 21,

173 P.3d 848 (overruling the last paragraph of a previous opinion

(continued...)

9

supercedes the flying bullet as the principal harm that the

Legislature sought to criminalize. Just as each flying bullet is

dangerous, so too is each flying bullet that was fired with the intent

to intimidate. Accordingly, the allowable unit of prosecution for the

unlawful-discharge-of-a-firearm statute under which Mr. Rasabout

was convicted is each discrete shot, whether or not the shot is fired

with a mens rea that enhances the classification of the offense.

C. Sua Sponte Corpus Linguistics Research is Not Appropriate

¶16 Justice Lee charges the court with coming to this conclusion

by plucking a definition from a dictionary on the basis of cloaked

intuition.26 Instead, he advances what he deems a “more

transparent” interpretation methodology that utilizes corpus

linguistics research.27 We decline to adopt his approach because,

among other reasons, it is unfair to the parties and it attempts

scientific research that is not subject to scientific review.

¶17 To begin, Justice Lee argues that we should decide this case

against Mr. Rasabout on the basis of the corpus linguistics research

he has conducted sua sponte. But because his rationale is so different

in kind from any argument made by the parties, Mr. Rasabout has

never had a reasonable opportunity to present a different

perspective. This violates the very notion of our adversary system,

which “assures fairness by exempting a party from the inequity of

[losing] on appeal on a ground that [he] had no opportunity to

address.”28 “[W]e should not dilute [the protections of our adversary

system] by stretching their standards to justify our consideration of

[an argument] we find interesting or important.”29 Moreover,

deciding this case on the basis of an argument not subjected to

adversarial briefing is a recipe for making bad law.30
STATE v. RASABOUT

Opinion of the Court

30(...continued)

because in deciding that issue “we were not able to benefit from any

adversarial briefing”).

31 See infra ¶¶ 107, 113, 116 (internal quotation marks omitted).

32 Seeinfra ¶ 58 (citing TONY MCENERY &ANDREW HARDIE,CORPUS

LINGUISTICS: METHOD, THEORY AND PRACTICE (2012), which notes

that “the combination of falsifiability and replication can make us

increasingly confident in the validity of corpus linguistics as an

empirical, scientific enterprise,” id. at 16); infra ¶¶ 114–15 (noting

that coprus linguistics “is not rocket science,” but is instead “like

math”); What is Linguistics?, LINGUISTIC SOCIETY OF AMERICA,

http://www.linguisticsociety.org/what-linguistics (last visited July

10, 2015) (“Linguistics, in a nutshell, is the scientific study of

language.”); Linguistics MA, BRIGHAM YOUNG UNIVERSITY,

http://linguistics.byu.edu/linguistics/ma/ (last visited July 10,

2015) (defining linguistics as “the scientific study of language”).

33 Bowman v. Kalm, 2008 UT 9, ¶ 7, 179 P.3d 754.

34 See, e.g., Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 20

n.9, 270 P.3d 456.

35 Infra ¶¶ 107, 113.

10

¶18 Additionally, it would be entirely inappropriate for this

court to conduct the independent scientific research that serves as

the basis for Justice Lee’s approach. Justice Lee admits that he is not

an expert in this field and does not completely understand its

methodologies, but asserts that we must “try.”31 Linguistics is a

scientific field of study that uses empirical research to draw

findings.32 And just as with other fields of scientific study, simply

trying harder will not lead us to a better answer. The knowledge and

expertise required to conduct scientific research are “usually not

within the common knowledge” of judges, so “testimony from

relevant experts is generally required in order to ensure that [judges]

have adequate knowledge upon which to base their decisions.”33 We

regularly refuse to conduct legal research, a field in which we are

experts.34 We should similarly refuse our inclination to contrive of

interesting research projects that require expertise in fields in which

we have no training.

¶19 Moreover, as Justice Lee points out, “[m]ost judges are

generalists.”35 Indeed, we are aware of almost no one sitting on the

bench or practicing law in this state who has the kind of scientific
Cite as: 2015 UT 72

Opinion of the Court

36 Infra ¶ 70.

37 Infra ¶ 90.

38 Infra ¶ 89.

11

expertise required to reliably conduct the research Justice Lee

requires. And issues of statutory construction where “both sides are

able to marshal dictionary definitions in support of their view”

permeate the majority of cases in this state.36 But in every such case,

Justice Lee would require ad hoc linguistics research that could only

be reliably conducted by dueling linguistics experts. Imposing such

a significant financial burden on so many of the litigants coming

through the doors of our courts would be tantamount to locking

those doors for all but the most affluent. Moreover, it would place an

unbearable burden upon our already thinly stretched district judges.

That is simply unacceptable.

¶20 Justice Lee’s appeal to linguistics research would not be so

disquieting if he were not conducting the research himself, but

merely citing findings that have been advanced by the parties,

published in a scholarly journal, or authored by a respected source.

Such sources include the reports of expert witnesses, published

academic articles, and widely available dictionaries. In those cases,

findings are subject to review by the relevant field of study or the

opposing party’s expert before we rely upon them. But if we conduct

our own research, the parties are bound by our decision even if our

methods or findings are subsequently found to be flawed.

Accordingly, it is unfair, and indeed unwise, for us to decide a case

on the basis of scientific research that is subject to neither prior

review by the relevant field of study or adversarial briefing.

¶21 We are not experts in this field and accordingly have no

intention of meeting Justice Lee on the merits of his research. But

there are at least a few questions that are immediately apparent with

regard to his methodology. To begin, of the eighty-six “hits” Justice

Lee found with his search, he simply ignores thirty-six as having

“insufficient detail to indicate whether the discharge at issue had

reference to a single shot or the emptying of a magazine.”37 And

thirty-one of the remaining hits required an interpretive assumption

or were “a bit more ambiguous.”38 So many apparently neutral or

questionable data points raise the question of whether the trend that

Justice Lee draws from the data is statistically insignificant—“the

figures extracted from the data are simply the result of random
STATE v. RASABOUT

Opinion of the Court

39 MCENERY & HARDIE, supra, at 251 (defining “statistical

significance,” noting that “statistical procedures [are] used to test

statistical significance,” and also defining a “significance test” as “[a]

mathematical procedure to determine whether a result is statistically

significant” (first and second emphasis added)); DOUGLAS BIBER ET

AL.,CORPUS LINGUISTICS:INVESTIGATION LANGUAGE STRUCTURE AND

USE 275 (2004) (discussing “[s]ignificance tests and the reporting of

statistics”).

40 Infra ¶ 92.

41 Infra ¶ 84.

42 Infra ¶ 54 n.10 (quoting BIBER ET AL., supra, at 3).

43 State v. Watkins, 2013 UT 28, ¶ 38 n.3, 309 P.3d 209 (“The rule of

lenity applies when, after consulting traditional canons of statutory

construction, we are left with an ambiguous statute and prescribes

the narrow construction of ambiguous penal laws against the state.”

(continued...)

12

chance, and do not indicate what they seem to indicate.”39 It

certainly calls into question his claim that “discharge of a weapon is

used overwhelmingly in the single shot sense.”40 Additionally, the

data set on which Justice Lee relies “‘contains more than 410 million

words of text and is equally divided among spoken, fiction, popular

magazines, newspapers, and academic texts.’”41 The point of a large

data set is to avoid “‘basing conclusions on a few speakers’

idiosyncrasies.’”42 But the “idiosyncrasies” of the Utah Legislature

constitute the rule of law in this state. And the only way to identify

those idiosyncrasies is through the text of the Utah Code, which is

wholly absent from Justice Lee’s data set. Apparently, there is no

statutory or legal text of any kind in the data set. Accordingly, in an

attempt to eschew the influence of any one speaker, Justice Lee’s

data set ignores the only speaker that matters. These are just two of

the many questions raised by Justice Lee’s methodology. And we

have no doubt that more would surface if his methodology were

subject to adversarial briefing or review by an expert in this field.

D. The Rule of Lenity Does Not Apply Because the Statute 

Is Not Ambiguous

¶22 Mr. Rasabout argues that we should use the rule of lenity

to find in his favor. The rule of lenity requires that we interpret an

ambiguous statute in favor of lenity toward the person charged with

criminal wrongdoing.43 Thus, in the context of determining the
Cite as: 2015 UT 72

Opinion of the Court

43(...continued)

(internal quotation marks and citations omitted)).

44 Bell, 349 U.S. at 84; 42 C.J.S. Indictments § 213 (2015) (“Any doubt

as to [the intended unit of prosecution] is resolved in favor of lenity

for the defendant.”).

45 Watkins, 2013 UT 28, ¶ 24.

46 Rasabout, 2013 UT App 71, ¶¶ 29–32; UTAH CODE § 76-1-106

(“The rule that a penal statute is to be strictly construed shall not

apply to this code, any of its provisions, or any offense defined by

the laws of this state. All provisions of this code and offenses defined

by the laws of this state shall be construed according to the fair

import of their terms to promote justice and to effect the objects of

the law and general purposes of Section 76-1-104.”).

47 Rasabout, 2013 UT App 71, ¶ 30.

48 Dunn v. United States, 442 U.S. 100, 112 (1979); see also United

States v. Lanier, 520 U.S. 259, 266 (1997) (“[T]he canon of strict

(continued...)

13

allowable unit of prosecution under an ambiguous criminal statute,

“doubt [must] be resolved against turning a single transaction into

multiple offenses.”44 But as both parties agree, the rule of lenity is

not implicated unless a statute is ambiguous. A statute is ambiguous

when ”its terms remain susceptible to two or more reasonable

interpretations after we have conducted a plain language analysis.”45

In this case, we have conducted a plain language analysis and

concluded that there is only one reasonable interpretation of the

statute at issue. Accordingly, the rule of lenity is not implicated here.

¶23 Nevertheless, we take this opportunity to vacate the

erroneous conclusion of the court of appeals with respect to the rule

of lenity. The court of appeals held that the rule of lenity has been

abrogated by the strict construction statute, Utah Code section 76-1-

106.46 It reasoned that the statute may permissibly abrogate the rule

of lenity because “the rule is one of statutory construction, not

constitutional law.”47 The State defends this reasoning on appeal.

Mr. Rasabout argues that the rule of lenity cannot be abrogated by

statute because it is based in due process. We agree.

¶24 The United States Supreme Court has held that the rule of

lenity “is rooted in fundamental principles of due process which

mandate that no individual be forced to speculate, at peril of

indictment, whether his conduct is prohibited.”48 The reasoning
STATE v. RASABOUT

Opinion of the Court

48(...continued)

construction of criminal statutes, or rule of lenity, ensures fair

warning[, as required by due process,] by so resolving ambiguity in

a criminal statute as to apply it only to conduct clearly covered.”).

49 United States v. Harriss, 347 U.S. 612, 617 (1954).

50 UTAH CONST. art. I, § 7.

51 State v. Mooney, 2004 UT 49, ¶ 17, 98 P.3d 420 (second and third

alterations in original) (internal quotation marks omitted).

52 Mr. Rasabout also asserts a double jeopardy claim under the

Utah Constitution, but we decline to reach it because he failed to

adequately differentiate this claim from its federal counterpart. We

will not reach a state constitutional argument unless it is distinctly

raised and adequately briefed. State v. Tiedemann, 2007 UT 49,

¶¶ 32–38, 162 P.3d 1106. There is no “formula . . . for adequate

framing and briefing of state constitutional issues,” but a clearly

raised and differentiated argument will likely include a separate

section of analysis that begins with the text of the state constitutional

provision. Id. ¶ 37.

14

behind the Court’s holding is simple. An ambiguous statute violates

the notice requirement of due process because it “fails to give a

person of ordinary intelligence fair notice that his contemplated

conduct is forbidden by the statute.”49 The Due Process Clause of the

Utah Constitution provides an alternative basis for the same

protection.50 That provision “do[es] not permit enforcement of a

statute that forbids an act in terms so vague that [persons] of

common intelligence must necessarily guess at [the statute’s]

meaning and differ as to its application.”51 Thus, the rule of lenity is

dictated by the notice protection afforded by both federal and state

due process. Accordingly, insofar as the strict construction statute

purports to abolish the rule of lenity, we hold that it does not.

E. Mr. Rasabout’s Twelve Convictions Do Not Violate the Rule Against

Multiplicity Under the Double Jeopardy Clause of the 

United States Constitution

¶25 Mr. Rasabout contends he committed only one offense and

accordingly the State cannot punish him for twelve counts without

violating the rule against multiplicity, which arises from the Double

Jeopardy Clause of the United States Constitution.52 We disagree.

¶26 The Double Jeopardy Clause protects a defendant from
Cite as: 2015 UT 72

Opinion of the Court

53 U.S. CONST. amend. V.

54 State v. Prion, 2012 UT 15, ¶ 30, 274 P.3d 919 (quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969)).

55 Morrison, 2001 UT 73, ¶¶ 24–26.

56 UTAH CODE § 76-1-401; see id. §§ 76-1-402 to -405.

15

“be[ing] twice put in jeopardy” “for the same offence.”53 From this

protection springs the rule against multiplicity, which prohibits

“‘multiple punishments for the same offense.’”54 The rule against

multiplicity is violated if the State punishes a defendant for more

counts of an offense than are allowed by the intended unit of

prosecution for that offense.55 But it is not implicated in determining

the allowable unit of prosecution for an offense or when the state

charges a defendant with multiple violations consistent with the

statutorily defined unit of prosecution.

¶27 In this case, Mr. Rasabout was convicted of twelve separate

counts of unlawful discharge of a firearm on the basis of twelve

discrete shots. Because the allowable unit of prosecution for that

offense is each discrete shot, the State may charge and punish Mr.

Rasabout for twelve counts without implicating Mr. Rasabout’s Fifth

Amendment rights.

II. THE SINGLE CRIMINAL EPISODE STATUTE AND THE

SINGLE LARCENY RULE ARE INAPPLICABLE

¶28 In merging Mr. Rasabout’s twelve convictions, the trial

court relied on the single criminal episode statute, Utah Code section

76-1-401, and a case applying the single larceny rule. Mr. Rasabout

urges us to adopt its reasoning. We conclude that neither the single

criminal episode statute nor the single larceny rule apply here.

¶29 First, the single criminal episode statute, Utah Code section

76-1-401, is inapplicable because it does not dictate the merger of

offenses. While this section provides that a “‘single criminal episode’

means all conduct which is closely related in time and is incident to

an attempt or an accomplishment of a single criminal objective,”

there is nothing in this or the operative sections that follow

mandating that a court merge offenses committed within a single

criminal episode.56 To the contrary, subsection (1) of section 76-1-402

specifically provides that “[a] defendant may be prosecuted in a

single criminal action for all separate offenses arising out of a single
STATE v. RASABOUT

Opinion of the Court

57 Id. § 76-1-402(1) (emphasis added).

58 Id. § 76-1-402(2) (emphasis added).

59 Id. § 76-1-402.

60 The trial court cited State v. Irvin, 2007 UT App 319, ¶¶ 14–21,

169 P.3d 798, an opinion from the court of appeals that cites our

opinion in State v. Crosby, 927 P.2d 638, 645 (Utah 1996). These

opinions apply the single larceny rule. They also cite the single

criminal episode statute for support. While the single larceny rule,

the Double Jeopardy Clause, and the single criminal episode statute

often operate in proximity to one another, they are nevertheless

distinct. When litigants and courts mingle them, as has been done in

this case, it muddies the legal analysis.

61 Irvin, 2007 UT App 319, ¶¶ 14–21; Crosby, 927 P.2d at 645–46.

62 Crosby, 927 P.2d at 645 (quoting State v. Kimbel, 620 P.2d 515, 518

(Utah 1980)).

16

criminal episode.”57 And subsection (2) explicitly accounts for a

situation when “conduct may establish separate offenses under a

single criminal episode.”58 Additionally, while the operative sections

provide specific double-jeopardy-like protections, such as protecting

a defendant from being “subject to separate trials for multiple

offenses,” being “convicted of both the offense charged and [an]

included offense,” and being “punished [for the same act] in

different ways under different provisions of [the] code,”59 none of

these concerns are implicated in this case. Mr. Rasabout was

convicted in a single trial of twelve separate counts of violating a

single offense. Thus, the trial court’s reliance on section 76-1-401 for

merging Mr. Rasabout’s convictions was misplaced.

¶30 The single larceny rule is also inapplicable here because this

case does not involve larceny.60 The single larceny rule governs the

aggregation of multiple thefts over a period of time when the

statutory text does not otherwise provide an allowable unit of

prosecution.61 In the context of theft, a statutory descendent of

common law larceny, we have held that “‘[i]f there is but one

intention, one general impulse, and one plan, even though there is

a series of transactions, there is but one offense.’”62 This doctrine was

developed in the context of common law larceny and has been

extended to larceny’s statutory progeny in this state, including theft
Cite as: 2015 UT 72

Opinion of the Court

63 See United States v. Sydnor, 12 F. App’x 141, 142 (4th Cir. 2001)

(noting the common law origin of the single larceny rule and

collecting cases that have applied it); Crosby, 927 P.2d at 645–46

(applying the single larceny rule to theft); Irvin, 2007 UT App 319,

¶¶ 14–21 (applying the single larceny rule to aggravated robbery).

64 U.S. CONST. amend. VIII; UTAH CONST. art. I, § 9.

65 Ex parte Hawkins, 6 S.W.3d 554, 557 n.8 (Tex. Crim. App. 1999)

(“‘The Eighth Amendment’s Cruel and Unusual Punishment Clause

might impose limits on the total amount of punishment that can be

heaped upon a person for a single ‘act’ or series of acts, but the

Double Jeopardy Clause imposes no limits on how the legislature

may carve up conduct into discrete legal offense units.’” (quoting

Akhil Reed Amar, Double Jeopardy Law Made Simple,

(continued...)

17

and robbery.63 But Mr. Rasabout has failed to provide us with a

rationale for extending this common law doctrine outside the realm

of larceny and into a statutory scheme that independently defines

the allowable unit of prosecution.

¶31 In sum, we hold that the single criminal episode statute is

inapplicable because Mr. Rasabout was convicted of twelve counts

of a single statutory offense in a single trial. And we hold that the

single larceny rule is inapplicable because this case is governed by

the allowable unit of prosecution defined by the Legislature in the

statute criminalizing unlawful discharge of a firearm.

III. CRUEL AND UNUSUAL PUNISHMENT IS NOT

IMPLICATED IN DETERMINING THE ALLOWABLE UNIT OF

PROSECUTION FOR AN OFFENSE

¶32 Mr. Rasabout finally argues that defining the allowable unit

of prosecution as each discrete shot may result in a sentence that is

cruel and unusual in violation of the United States Constitution and

the Utah Constitution. The State argues that this issue is not

implicated here. We agree with the State because this appeal raises

only the allowable unit of prosecution, an issue that is distinct from

punishment.

¶33 Both the United States Constitution and the Utah

Constitution prohibit cruel and unusual punishment.64 But these

protections are a constitutional backstop to the overall punishment

imposed for criminal conduct; they do not dictate the allowable unit

of prosecution.65 In this case, the question is how many convictions
STATE v. RASABOUT

Opinion of the Court

65(...continued)

106 YALE L.J. 1807, 1818 (1997))).

18

are permissible. On remand, the trial court will determine the

appropriate punishment for Mr. Rasabout’s criminal conduct. While

the number of convictions will be one factor in that determination,

the trial court will consider numerous other factors. It is at that point

that Mr. Rasabout may challenge the total sentence as cruel and

unusual.

¶34 In sum, we hold that the question of cruel and unusual

punishment is not implicated in a determination of the allowable

unit of prosecution for an offense.

CONCLUSION

¶35 Mr. Rasabout fired twelve shots at a house he knew to be

occupied by a rival gang member. A jury convicted him of twelve

counts of unlawful discharge of a firearm, in violation of Utah Code

section 76-10-508. That was permissible because each shot fired was

a separate discharge under the statute. We accordingly affirm the

court of appeals and remand this case for further proceedings

consistent with this opinion. 
Cite as: 2015 UT 72 

DURRANT, C.J., concurring in part and concurring in the judgment 

19 

CHIEF JUSTICE DURRANT, concurring in part and concurring in 

the judgment:

¶36 I concur in the majority’s affirmance of the court of 

appeals’ judgment and in all of the majority’s analysis—except the 

portion addressing Justice Lee’s corpus linguistics interpretive 

method. While I too would decline to use that method in this case, 

I applaud Justice Lee for his thoughtful exploration of corpus 

linguistics as a potential additional tool for our statutory 

interpretation tool box. I am open to the possibility that in certain 

cases it may well prove useful in our assessment of the ordinary 

meaning of statutory terms.1 But I do not consider it necessary in 

this case, because I find the majority’s analysis of the meaning of 

the term “discharge,” an analysis conducted using our long-

 

1 I consider the assessment of a term’s ordinary meaning to be 

an important tool, but not the only tool, in the process of statutory 

interpretation. See Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 

50, ¶ 14, 267 P.3d 863. But I do not believe such an assessment 

should displace our central objective in interpreting statutes—the 

ascertainment of legislative intent. See, e.g., L.G. v. State (In re A.T.), 

2015 UT 41, ¶ 16, __ P.3d __ (“With any question of statutory 

interpretation, our primary goal is to effectuate the intent of the 

Legislature.”). Rather, I apply the presumption, which I consider 

to be a common-sense one, that the legislature intends that words 

be understood in statutes as they are ordinarily used, unless there 

are indicia to the contrary. See Marion Energy, 2011 UT 50, ¶ 14. As 

examples of such indicia, our caselaw indicates that specialized 

usage, statutory definitions, or the structure of the statute itself 

can all show that the legislature did not intend to use a word 

according to its ordinary meaning. See, e.g., State v. Bagnes, 2014 

UT 4, ¶ 13, 322 P.3d 719 (noting that because a word was not 

“defined by statute[,] [w]e must accordingly look elsewhere to 

derive its meaning—to either the ordinary meaning of the word, 

or to its technical sense as a legal term of art” (footnote omitted)); 

State v. Canton, 2013 UT 44, ¶ 21, 308 P.3d 517 (noting that “all but 

one of the meanings” of a statutory term could be “eliminated by 

context” (internal quotation marks omitted)). I do not see the use 

of corpus linguistics as inconsistent with this approach. 
STATE v. RASABOUT

DURRANT, C.J., concurring in part and concurring in the judgment 

20 

established methods of statutory construction, to be compelling.2

And I would further note that although the dictionary 

alternatively defines “discharge” as “to shoot” or “to unload,”3

the former definition applies specifically to firearms while the 

latter seems to encompass the more general concept of unloading 

cargo or emptying a container.4 Granted, the cartridge of a firearm 

is in some sense a “container” that can be “unloaded,” but in the 

context of a statute that involves firearms, I am confident the 

legislature intended the term “discharge” to mean “to shoot,” not 

“to unload.” So unlike Justice Lee, I do not believe this is a case 

where the dictionary “fails to dictate the meaning that the 

statutory terms must bear.”5

¶37 Further, I am concerned about our use of corpus 

linguistics in a case where it has not been argued by the parties.6

Now, it is certainly true, that we may, and often have, employed 

dictionaries, canons of construction, or other tools for statutory 

interpretation that have not been argued by the parties.7 But 

 2 See supra ¶ 10 (noting that we look to the ordinary meaning of 

statutory terms as well as “the act as a whole, the act’s operation, 

and its purpose” when interpreting statutory language); supra 

¶¶ 12–15 (examining the dictionary definition of discharge and 

the structure and context of the unlawful discharge statute to 

conclude that the term “discharge” as used in the statute means 

“to shoot”). 

3 See infra ¶ 47; see also THE AMERICAN HERITAGE DICTIONARY 

514 (5th ed. 2011). 

4 See THE AMERICAN HERITAGE DICTIONARY, supra, at 514 

(defining “discharge” as “[t]o relieve (a ship, for example) of a 

burden or of contents; unload”). 

5 See infra ¶ 47 (internal quotation marks omitted). 

6 Cf. State v. Baker, 2010 UT 18, ¶ 57, 229 P.3d 650 (declining to 

address an issue in an “unsettled” area of the law because the 

court was “without the benefit of adversarial briefing on the 

subject”). 

7 See Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 

(noting that “we are unwilling to disregard controlling authority 

that bears upon the ultimate resolution of a case”); Kaiserman 

(Continued) 
Cite as: 2015 UT 72 

DURRANT, C.J., concurring in part and concurring in the judgment 

21 

primary linguistics research seems to me a step removed from 

these traditional tools. I fear that a sua sponte venture into such 

territory may be fraught with the potential for error.8 I think this 

is illustrated by Justice Lee’s critique of the flaws in Judge 

Posner’s sua sponte attempt at such research.9 The fact that a jurist 

of Judge Posner’s intellect and stature is capable of such missteps 

suggests to me that, even in those cases where corpus linguistics 

may be a useful addition to our traditional methods of statutory 

construction, it would be best employed by us, or by other judges, 

only after the parties have raised it and argued it.10 This would 

allow the respective sides in the dispute to challenge each other’s 

database, methodologies, and conclusions. 

¶38 Finally, in our exploration of whether or when corpus 

linguistics should play a role in our interpretation of statutes, it is 

important that we weigh the potential usefulness of the approach 

against its potential cost. In some cases, the linguistic analysis 

may be sufficiently complicated that an expert would be 

 

Assocs., Inc. v. Francis Town, 977 P.2d 462, 464 (Utah 1998) (“We 

should not be forced to ignore the law just because the parties 

have not raised or pursued obvious arguments.”); see also Carducci 

v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (noting that although 

courts in an adversarial system “are not precluded from 

supplementing the contentions of counsel through [independent] 

deliberation and research,” courts “will not remedy [a] defect” 

where “counsel has made no attempt to address the issue” and 

the issue involves “important questions of far-reaching 

significance” (internal quotation marks omitted)). 

8 See TONY MCENERY & ANDREW HARDIE, CORPUS LINGUISTICS:

METHOD, THEORY, AND PRACTICE 14 (2012) (noting that if one 

“approach[es] a corpus with a specific theory in mind, it can be 

easy to unintentionally focus on and pull out only the examples 

from the corpus that support the theory”). 

9 See infra ¶¶ 82–83. 

10 I should note that in my own examination of Justice Lee’s 

search on the corpus linguistics website, I found no such flaws 

and did find his search to be both replicable and transparent. 
STATE v. RASABOUT

DURRANT, C.J., concurring in part and concurring in the judgment 

22 

required.11 This would be an unfortunate cost to add to the 

already-too-expensive litigation process. But I think that in other 

cases the lawyers could themselves conduct the linguistic 

analysis, outline their methods and conclusions in their briefs, and 

present argument as to why we should adopt their approach over 

their opponents’. Because so few judges and, perhaps, even fewer 

members of the bar are familiar with corpus linguistics, I believe it 

is simply too soon to know whether the benefits of using this new 

tool warrant the increased expense. 

¶39 Finally, I wish to make clear that while I would not 

employ Justice Lee’s corpus linguistics analysis in this case for the 

reasons I have specified, and because of other concerns I have not 

discussed here nor resolved for myself, I look forward to our 

continued debate in this area. Should we elect to embark down 

this path, we should tread slowly and cautiously. And caution 

dictates that this potential method of statutory interpretation be 

fully tested in the crucible of the adversarial process, rather than 

simply applied sua sponte by our court. 

______________ 

 11 See PAUL BAKER, USING CORPORA IN DISCOURSE ANALYSIS 18 

(2006) (“[C]orpus data does not interpret itself, it is up to the 

researcher to make sense of the patterns of language which are 

found within a corpus.”); cf. State v. Rothlisberger, 2006 UT 49, ¶ 20, 

147 P.3d 1176 (noting that lay witnesses are not competent to offer 

testimony that is based upon “scientific, technical, or other 

specialized knowledge” (internal quotation marks omitted)). 
Cite as: 2014 UT 72 

LEE, A.C.J., concurring in part and concurring in the judgment 

23 

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring 

in the judgment: 

¶40 I concur in the judgment of the court and in elements of the 

majority’s analysis. Thus, I share the majority’s goal of “giv[ing] 

effect to the intent of the Legislature,” and of looking for such intent in “the text of the statute.” Supra ¶ 10. And I agree that our 

interpretation of the operative statutory text “turns on the meaning of the term ‘discharge’ in the context of a ‘dangerous weapon 

or firearm.’” Supra ¶ 11. Ultimately, moreover, I concur in the 

court’s construction of this statutory phrase—as defining the element of prosecution in terms of “each discrete shot” expelled from 

a gun. Supra ¶ 1. 

¶41 I write separately, however, because I cannot resolve the 

ambiguity in the term discharge as the court does—by mere resort 

to the dictionary. I see the need to look elsewhere. I would interpret the terms of the statute by looking for real-world examples of 

its key words in actual written language in its native context. This 

sort of analysis has a fancy name—corpus linguistics. But it is hardly unusual. We often resolve problems of ambiguity by thinking 

of examples of the use of a given word or phrase in a particular 

linguistic context. I propose to do that (as I have in a couple of 

prior opinions) on a systematic scale—by computer-aided searches of online databases in an effort to assemble a greater number of 

examples than I can summon by memory on my own. 

¶42 I begin with a description of the question presented in this 

case as I understand it. Then I outline my approach to answering 

it. And I close with a response to criticisms to my methodology. 

I 

¶43 My starting point is in line with the majority’s: I would 

seek to discern the intent of the legislature, and to find it in the 

language it enacted into law. When the text is plain that enterprise 

is straightforward. But in cases litigated to an appeal that is rarely 

the case. The statutory text in such cases is often ambiguous. One 

form of ambiguity concerns a conflict between the “ordinary” and 

“specialized” meaning of a term. Thus, a threshold question is 

whether the legislative text conveys some specialized meaning—

as in the case of a statutorily defined term, a scientific phrase, or a 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

24 

legal term of art.1 If so that is the end of the matter; the specialized 

meaning controls if it was intended by the legislature.2

 

1 See Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 28, __ P.3d __ 

(unanimous opinion) (construing the statute according to its ordinary meaning after determining that the statute does not expressly define the term at issue and the term was not a “technical term 

of art”); State v. Bagnes, 2014 UT 4, ¶ 13, 322 P.3d 719 (unanimous 

opinion) (noting that because the term at issue is not defined by 

statute, the Court “must accordingly look elsewhere to derive its 

meaning—to either the ordinary meaning of the word, or to its 

technical sense as a legal term of art”) (footnote omitted); HiCountry Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 18, 304 P.3d 851 

(unanimous opinion) (only seeking to determine the ordinary 

meaning of the term at issue after finding that the “term is not expressly defined in the Act, and does not appear to be a technical 

term of art”) (footnote omitted); State v. Canton, 2013 UT 44, ¶¶ 12-

13, 308 P.3d 517 (unanimous opinion) (determining the ordinary 

meaning of the terms in question only after rejecting the proposition that it was a technical term of art); Olsen v. Eagle Mountain 

City, 2011 UT 10, ¶ 9, 248 P.3d 465 (unanimous opinion) (interpreting the statute according to its plain meaning because it uses 

nontechnical speech); Parkinson v. State Bank of Millard County, 35 

P.2d 814, 821 (Utah 1934) (“Ordinarily the Legislature speaks only 

in general terms. . . . Words and phrases are presumed to have 

been used according to their plain, natural, and common import 

and usage of the language, unless obviously used in a technical 

sense.”); State v. Navaro, 26 P.2d 955, 956 (Utah 1933) (“Under the 

ordinary canons of construction of statutes we are required to give 

the word its plain, natural, ordinary, and commonly understood 

meaning, in the absence of any statutory or well-established technical meaning, unless it is plain from the statute that a different 

meaning is intended.”); State v. Hendrickson, 245 P. 375, 378 (Utah 

1926) (“[It is] the fundamental rule recognized in every jurisdiction of the country that words and phrases are construed according to the context and the approved usage of the language. Except 

in the case of technical words and phrases, they must be construed according to their plain and ordinary meaning.”); Miles v. 

Wells, 61 P. 534, 536 (1900) (“[W]here there is no ambiguity, the 

language must be taken as the expression of the legislature’s in-

(continued...) 
Cite as: 2014 UT 72 

LEE, A.C.J., concurring in part and concurring in the judgment 

25 

¶44 Another form of ambiguity concerns a contest between two 

different definitions of a word in common usage. But “[t]he fact 

that the statutory language may be susceptible of multiple meanings” does not leave us without an answer, as all but one of the 

meanings is often “eliminated” by the structure or context of the 

statute. Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 13, 248 P.3d 

465. When neither of two competing meanings can be so eliminated, however, we opt for the meaning we deem as more “ordinary.” See Hi-Country Prop. Rights Group v. Emmer, 2013 UT 33, ¶¶ 

18–19, 21–22, 304 P.3d 851. 

¶45 This case presents this latter question. No one has suggested that discharge is a specialized term,3 or that the structure of the 

statute eliminates one of the parties’ proposed definitions. So we 

are left to construe the relevant statutory language to convey the 

“ordinary meaning” of its terms—the meaning its words would 

have in the mind of a “reasonable person familiar with the usage 

and context of the language in question.” Olsen, 2011 UT 10, ¶ 9.4

 

tention, unless other provisions of the statute clearly show that the 

language was used in a sense different from its natural and ordinary meaning.”).

2 The majority appears to paint my views with a different brush. 

See supra ¶ 10 n.16 (implying that I “suggest that ordinary meaning is the exclusive consideration” in matters of statutory interpretation). But that misreads the unanimous cases it cites, compare supra ¶ 43 n.1 with supra ¶ 10 n.16, and misunderstands my interpretive methodology. 

3 The majority does not so claim. It concedes that this is a case 

that comes down to a question of the ordinary meaning of “discharge.” 

4 See Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 

HARV. L. REV. 417, 417–19 (1899) (explaining that we consider not 

the “idiosyncrasies of the writer” but “the general usages of 

speech,” or “what those words would mean in the mouth of a 

normal speaker of English”); Felix Frankfurter, Some Reflections on 

the Reading of Statutes, 47 COLUM. L. REV. 527, 536 (1949) (“And so 

we assume that Congress uses common words in their popular 

meaning, as used in the common speech of men.”); Frank H. 

Easterbrook, The Role of Original Intent in Statutory Construction, 11 

(continued...) 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

26 

¶46 Dictionaries are a good “starting point” for analyzing ordinary meaning. Hi-County Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 

19, 304 P.3d 851. They are “useful in cataloging a range of possible 

meanings that a statutory term may bear.” Id. (citing HENRY M.

HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS 

IN THE MAKING AND APPLICATION OF LAW 1375–76 (William N. 

Eskridge, Jr. & Phillip P. Frickey eds., 1994) [hereinafter HART &

SACKS]). Dictionaries provide “‘an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne.’” 

Id. (quoting HART & SACKS, at 1190). “Such a record, however, will 

often fail to dictate ‘what meaning a word must bear in a particular context.’” Id. (quoting HART & SACKS, at 1190). “That question 

will often require further refinement—of selecting the best meaning among a range of options, based on other indicators of meaning . . . .” Id. 

¶47 This case requires such “further refinement.” It is “one of 

those cases where the dictionary fails to dictate the meaning that 

the statutory terms ‘must bear’ in this context.” State v. Canton, 

2013 UT 44, ¶ 14, 308 P.3d 517. That is because, as in Canton, “dictionary definitions” of the operative terms of the statute “leave the 

statute semantically open to” both parties’ positions. Id. On one 

hand, as the majority indicates, discharge is susceptible to the definition advanced here by the State—of discharge as “to release from 

confinement” or “to shoot.” Supra ¶ 12 (quoting MERRIAMWEBSTER’S COLLEGIATE DICTIONARY 356 (11th ed. 2012)).5 Yet that 

is not the only sense of discharge identified in the dictionary. Discharge is also understood as “to empty of a cargo: UNLOAD.” See

WEBSTER’S THIRD INT’L DICT. 644 (3d ed. 2002). And that is the 

sense of discharge advanced here by the defense. Rasabout urges a 

unit of prosecution defined by unloading or emptying the contents of a weapon, asserting that the latter sense of discharge supports his position. 

 

HARV. J.L. & PUB. POL’Y 59, 65 (1988) (“We should look at the statutory structure and hear the words as they would sound in the 

mind of a skilled, objectively reasonable user of words.”). 

5 See also State v. Rasabout, 2013 UT App 71, ¶ 21, 299 P.3d 625 

(citing the MERRIAM-WEBSTER definition, as well as the MacmillanDictionary.com definition of discharge as to “fire a weapon”). 
Cite as: 2014 UT 72 

LEE, A.C.J., concurring in part and concurring in the judgment 

27 

¶48 The majority paints part of the relevant picture. It cites the 

first of the above definitions and adopts it as the operative sense 

of discharge of a firearm under Utah Code section 76-10-508(1)(a). 

But the majority fails to acknowledge the second dictionary definition set forth above. And I am unsure of its basis for preferring 

the first definition over the second. 

¶49 In context, I see three possible grounds for the court’s conclusion. But each falls short. 

¶50 First, the definition invoked by the court may be listed first 

in the dictionary, see MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

at 356 (listing, as the first sense of the verb discharge, “to relieve of 

a charge, load, or burden”), but there is no such thing as a “main” 

or “primary” dictionary definition.6 “The dictionaries most relied 

upon by courts in statutory interpretation make no claims about 

the ordinariness of the words they define or the senses they assign 

to those words.” J.M.W. v. T.I.Z. (In re Baby E.Z.), 2011 UT 38, ¶ 98, 

266 P.3d 702 (Lee, J., concurring) (citing Stephen C. Mouritsen, The 

Dictionary Is Not a Fortress: Definitional Fallacies and the Corpus-

 

6 Some courts have offered this premise more explicitly. See, e.g.,

Muscarello v. United States, 524 U.S. 125, 128 (1998) (interpreting 

“carries a firearm” in federal sentencing enhancement provision, 

18 U.S.C. § 924(c), to encompass the conveyance of a firearm in a 

locked glove compartment of a vehicle; crediting what the court 

views as the “primary” definition of “carry,” meaning the firstlisted definition in various dictionaries). But the sense-ranking 

premise is a fallacy. See Stephen C. Mouritsen, The Dictionary Is 

Not a Fortress: Definitional Fallacies and the Corpus-Based Approach to 

Plain Meaning, 2010 BYU L. REV. 1915, 1926-1938 (criticizing this 

analysis while developing extensive scholarly grounds for questioning the “sense-ranking fallacy”—the “notion that a given 

sense of a term may be considered somehow primary or ordinary 

or more likely to be legally operative than another sense simply 

because it is listed first in a dictionary”); see also J.M.W. v. T.I.Z. (In 

re Baby E.Z.), 2011 UT 38, ¶¶ 98-99, 266 P.3d 702 (Lee, J., concurring) (marshaling scholarly authority for the proposition that “dictionaries do not tell us how words are commonly or ordinarily 

used,” particularly in the context-specific circumstances of a particular statute). 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

28 

Based Approach to Plain Meaning, 2010 BYU L. REV. 1915, 1925–45 

(discussing problems with dictionary usage by courts)). “Nor do 

they present their lexical information in a way that reveals ‘ordinary’ usage.” Id. “A number of dictionaries simply rank their definitions according to evidence of historical usage.” Id. (emphasis 

added). The dictionary cited by the majority, Webster’s, “expressly disavows any attempt to establish a hierarchy of ordinariness in 

the ranking of its senses, admitting that sometimes an ‘arbitrary’ 

listing of senses is used.” Id.; see also MERRIAM-WEBSTER’S 

COLLEGIATE DICTIONARY at 20a. So the dictionary generally cannot 

provide the basis for preferring one of its definitions over another. 

¶51 Second, the majority seems to attribute significance to the 

apparent meaning of the component parts of the term discharge. In 

embracing the shoot sense of discharge, the court notes that the 

term “is made up of . . . a prefix [‘dis’] and the root word 

[‘charge’].” Supra ¶ 12. And because “dis” conveys a “negative or 

opposite,” and “charge” indicates a “quantity of explosive,” the 

majority concludes that “the clearest reading of the statute is that 

discharging a weapon or firearm means shooting a weapon or 

firearm.” Supra ¶ 12. The ordinary meaning of a word is not always discernible by simple addition, however. Many words take 

on meanings that bear a strained relation to the sum of their constituent parts—including words with the prefix “dis,” like disease

or disheveled. The former is more than a mere state of unease.7 And 

the latter is not the opposite of sheveled. 

¶52 In this case, discharge does appear to convey the undoing of 

a charge. But that conclusion still begs the question of the nature 

of the charge being undone. Even if the relevant charge is, as the 

majority says, a “quantity of explosives,” we must decide here 

what quantity of explosives must be undone to count as a discharge. The majority says that it’s a “single projectile with a single 

explosion.” Supra ¶ 13. That sounds fine. But Rasabout’s alternative is no less defensible; all of the bullets in a gun’s magazine also 

qualify as a “quantity of explosives.” So the majority’s deconstruction of the component parts of discharge does not yield a conclusive answer to the interpretive question presented. 

 

7 See WEBSTER’S THIRD INT’L DICTIONARY 648 (3d ed. 2002) (noting the “lack of comfort” meaning of disease is now obsolete). 
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LEE, A.C.J., concurring in part and concurring in the judgment 

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¶53 That leaves a third explanation for the majority’s conclusion: The court’s sense of discharge as shoot may simply be an expression of the majority’s linguistic intuition. That is the way most 

problems of lexical ambiguity are resolved by our courts.8 Instead 

 

8 See, e.g., Moon v. Salt Lake County, 76 P. 222, 226 (Utah 1904) 

(“By the phrase ‘to Salt Lake City,’ Congress evidently meant the 

inhabited portion of the city, where the station buildings were located, without reference to the artificial line which marked its territorial limits. That phrase was employed in the act in the same 

sense in which it is ordinarily used in common parlance with reference to the city. When Mr. A. says, ‘I am going to Salt Lake 

City,’ he does not mean that he is simply going to the line that 

marks its territorial limits, but that he is going into the city where 

the people live.”); Davasier v. James, 278 S.W.3d 625, 631 (Ky. 2009) 

(“The next question is whether Cissell communicated ‘an actual 

threat’ at all. The word ‘threat’ is an ordinary English word in 

common usage and readily understood by English-speaking people. It requires no specialized legal definition, but in common usage the word “threat” carries two different meanings.”); Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 727 (7th 

Cir. 2008) (“An interpreter as normally understood is a person 

who translates living speech from one language to another. He is 

a type of translator, but the translator of a document is not referred to as an interpreter. Robert Fagles made famous translations into English of the Iliad, the Odyssey, and the Aeneid, but no 

one would refer to him as an English-language ‘interpreter’ of 

these works.”) (citations omitted); Mallard v. U.S. Dist. Court for the 

S. Dist. of Iowa, 490 U.S. 296, 301 (1989) (“[The statute’s] operative 

term is ‘request’: ‘The court may request an attorney to represent’ 

an indigent litigant. The import of the term seems plain. To request that somebody do something is to express a desire that he 

do it, even though he may not generally be disciplined or sanctioned if he declines. Of course, somebody who frequently refuses 

another person’s requests might not win that person’s favor. A 

soldier who regularly fails to fulfill his superior's requests might 

not rise in the ranks as rapidly as would someone who was more 

compliant. But somebody who refuses a request, as the word is 

(continued...) 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

30 

of acknowledging and rejecting contrary senses of a statutory 

term, judges tend to ignore them—identifying only the sense of a 

word they deem ordinary without acknowledging any others. 

¶54 Reliance on judicial intuition is entirely appropriate. When 

confronted with problems of ambiguity in legal text, judges must 

employ their intuition to discern the proper sense of its terms. Too 

often, however, we proffer our intuition as if it were authoritative; 

and when we do so in a manner cloaking alternative senses of the 

operative terms, we deprive the parties and the public of a clear 

understanding of the complex nature of the linguistic problems 

that we confront. We also risk confirmation bias, or just oldfashioned mistake. The former risk is well-known.9 And it is mag-

 

ordinarily used, may not be penalized formally for doing so, as a 

soldier who disobeyed orders might be court-martialed.”).

9 See, e.g., CASS SUNSTEIN & REID HASTIE, WISER: GETTING BEYOND 

GROUPTHINK TO MAKE GROUPS SMARTER 190 (2014) (“People usually assimilate new information in a way that confirms their view of 

the world—confirmation bias . . . .”); Barbara A. Spellman & Frederick Schauer, Legal Reasoning, IN THE OXFORD HANDBOOK OF 

THINKING AND REASONING 720–21 (Keith J. Holyoak & Robert G. 

Morrison eds., 2012) (“[T]he research on confirmation bias . . . . 

teaches us that both novice and expert decision makers are inclined to design their tasks in ways that yield results consistent 

with their initial beliefs. In light of what we know about motivated reasoning and confirmation bias, therefore, it is plausible that 

judges often consult the formal law after having tentatively decided how the case, all or many things other than the law considered, 

ought to come out. The judges would then select or interpret the 

formal law to support outcomes reached on other grounds, as the 

Realists contend, rather than using the formal law to produce 

those outcomes in the first place, as the traditional view of legal 

reasoning maintains”). Chief Justice Durrant correctly notes a 

concern for this type of error (or perhaps for its cousin—

motivated reasoning). See supra ¶ 37 n.8. But such error is at least 

as likely to occur when a judge is assessing competing dictionary 

definitions or examples from memory as when considering examples of language from a corpus. And the point of the latter is to 

(continued...) 
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LEE, A.C.J., concurring in part and concurring in the judgment 

31 

nified in cases where our analytical methods are opaque. Our 

human intuition of ordinary meaning, moreover, is fallible. As 

linguists have noted, our analysis of word meaning and usage 

“remains hidden from introspection,” and may thus too often be 

mistaken.10

¶55 For these reasons we should be more transparent about our 

means of resolving the difficult problems of interpretation that 

come before us. When confronted with a contest between two 

competing constructions that each find tenable support in our lexicon, we should openly acknowledge the ambiguity. And when 

we resolve that ambiguity based purely on instinct or intuition, 

we should be open about that. 

¶56 I would do so here. Instead of embracing one accepted 

sense of discharge of a firearm and ignoring the contrary under-

 

check the former. Adding one more set of data cannot do anything but minimize the risk of bias. 

10 See SUSAN HUNSTON, CORPORA IN APPLIED LINGUISTICS 20 

(2002) (“Although a native speaker has experience of very much 

more language than is contained in even the largest corpus, much 

of that experience remains hidden from introspection.”); TONY 

MCENERY & ANDREW WILSON, CORPUS LINGUISTICS 12–14 (2d ed. 

2003) (“[H]uman beings have only the vaguest notion of the frequency of a construct or a word. Natural observation of data 

seems the only reliable source of evidence for such features as frequency. . . . There are certain types of language data which can 

only be gathered accurately from a corpus. . . . [Frequency information] is not susceptible to recovery via introspection.”); 

DOUGLAS BIBER, SUSAN CONRAD, & RANDI REPPEN, CORPUS 

LINGUISTICS: INVESTIGATING LANGUAGE STRUCTURE AND USE 26 

(1998) (“Finding patterns of use and analyzing contextual factors 

can present difficult methodological challenges. Because we are 

looking for typical patterns, analyses cannot rely on intuitions or 

anecdotal evidence. In many cases, humans tend to notice unusual 

occurrences more than typical occurrences, and therefore conclusions based on intuition can be unreliable. Furthermore, we need 

to analyze a large amount of language collected from many 

speakers, to make sure that we are not basing conclusions on a 

few speakers’ idiosyncrasies.”). 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

32 

standing, I would acknowledge both. To the extent my intuition 

tells me (as it does) that the single shot sense of discharge is the 

more ordinary sense of discharging a firearm, moreover, I would 

openly present that as the basis for our decision. I would also take 

the matter a step further, however. I would also check my intuition against publicly available means for assessing the ordinary 

meaning of a statutory phrase. My proposed means for doing so 

are outlined below. 

II 

¶57 In this age of information, we have ready access to means 

for testing our resolution of linguistic ambiguity. Instead of just 

relying on the limited capacities of the dictionary or our memory, 

we can access large bodies of real-world language to see how particular words or phrases are actually used in written or spoken 

English. Linguists have a name for this kind of analysis; it is 

known as corpus linguistics. 

¶58 The fancy Latin name makes this enterprise seem esoteric 

and daunting. It is not. We all engage in it even if we don’t attach 

the technical label to it. A corpus is a body, and corpus linguistics

analysis is no more than a study of language employing a body of 

language.11 When we communicate using words we naturally access a large corpus—the body of language we have been exposed 

to during our lifetimes—to decode the groups of letters or sounds 

we encounter. The most basic corpus linguistics analysis involves 

our split-second effort to access the body of language in our heads 

in our ongoing attempt to decode words or phrases we may be 

uncertain of. We all do that repeatedly every day. 

¶59 The first time we heard a skateboarder described as “so 

sick,” we may have misperceived that description as negative—if 

not an indication of illness, then at least a general notion of repellence. OXFORD ENGLISH DICTIONARY online, “sick” (defintitions 1a 

and 4a(d)). In time we learned to decode the above use of this 

term in this context. We came to understand that “so sick” in this 

context was not criticism but high praise. OXFORD ENGLISH 

DICTIONARY online, “sick” (“slang (now esp. Skateboarding and 

Surfing). Excellent, impressive; risky”). Our means of sensing that 

 

11 See TONY MCENERY & ANDREW HARDIE, CORPUS LINGUISTICS:

METHOD, THEORY AND PRACTICE 1–6 (2012). 
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LEE, A.C.J., concurring in part and concurring in the judgment 

33 

meaning, moreover, was not a matter of looking the word up in 

the dictionary (as the word sick itself can mean all of the above, 

and this new meaning does not yet appear in most dictionaries). It 

was a matter of accessing the body of language we have encountered to view the meaning of the word in its broader context—the 

object of the adjective (skateboarder), the broader phrase (“so 

sick”), and even the demographics of the speaker (millennial). 

¶60 Judges have long employed similar methods of decoding 

the language of the law. To resolve ambiguities in statutes, judges 

access their memory of the use of uncertain terms in the context in 

which they have heard them used.12 In so doing they are engaged 

in corpus linguistics analysis. And no one bats an eye, because 

this is a natural, accepted method for humans to resolve ambiguities in language. 

¶61 It is a small step to utilize a tool to aid our linguistic 

memory. Judges do this with some frequency as well. Naturally. If 

judges are entitled to consult the corpus of language in our heads 

(and how could we not?), we must also be permitted to supplement and check our memory against publicly available sources of 

language. 

¶62 A dictionary, in fact, is a corpus. Its material—definitions 

of an extensive body of words—is compiled from broader linguistic corpora.13 And some dictionaries include snippets of concord-

 

12 See, e.g., FCC v. AT&T, 562 U.S. 397, 403–404 (2011) (citing, in 

deciding that the “personal privacy” exemption in the Freedom of 

Information Act did not encompass corporate privacy, examples 

of “personal” as an adjective limited to individuals—as in “personal expenses,” “personal life,” and “personal opinion”); Smith v. 

United States, 508 U.S. 223, 242–43 (1993) (Scalia, J., dissenting) (citing, in asserting that a sentence enhancement for “use” of a firearm in committing a crime should not extend to use as a bargaining chip, examples of “use” of an object for its intended purpose—

as in the notion that the question whether someone “use[s] a 

cane” is not aimed at asking whether they beat their children with 

one). 

13 See, e.g., SIDNEY I. LANDAU, DICTIONARIES: THE ART AND CRAFT 

OF LEXICOGRAPHY 190 (2d ed. 2001). To the extent the majority and 

(continued...) 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

34 

ance lines from those corpora, as examples of instances in which a 

particular sense of a word might be intended. Judges also use dictionaries as a means of this kind of corpus analysis. 

¶63 Judges have also looked to databases available in Westlaw 

or Lexis, or more broadly through an internet search engine, to 

help us recall how particular words or phrases are commonly 

used in written or spoken English. We have done so in opinions 

for this court.14 The U.S. Supreme Court has also taken this ap-

 

Chief Justice Durrant’s concurrence rely on dictionaries, they are 

relying on the corpus analysis of others, as dictionaries are compiled through corpus analysis, and cite corpus examples to give 

readers an idea of usage. See “Illustrative Examples” in Guide to 

the Dictionary, in THE AMERICAN HERITAGE DICTIONARY XXV (5th 

ed. 2011) (“In this dictionary there are tens of thousands of illustrative examples that follow the definitions and show the entry 

word in typical contexts. . . . The examples are taken from our files 

of electronic and printed citations showing patterns of word usage 

by a broad group of educated speakers in a wide array of publications”). Thus, it may be that the shoot notion of discharge “applies 

specifically to firearms while the [empty notion] encompasses the 

more general concept of unloading cargo or emptying a container.” Supra ¶ 36. But this conclusion is based on corpus linguistic 

analysis presented in the cited dictionary. THE AMERICAN 

HERITAGE DICTIONARY cited by the Chief Justice does not limit the 

empty notion of discharge to a container or “ship.” It just gives an 

example of a real-world use of language in which this sense of the 

word is used—in a sentence speaking of the discharge of a ship. 

That is corpus analysis. 

14 See State v. Canton, 2013 UT 44, ¶ 27 & n.6, 308 P.3d 517 (interpreting the phrase “out of the state” in Utah Code § 76-1-304(1) 

based on an analysis of the use of that phrase in newspaper articles compiled through a Google News search); Carranza v. United 

States, 2011 UT 80, ¶ 24, 267 P.3d 912 (plurality opinion of Lee, J., 

joined by Durrant, J.) (interpreting “minor child” in Utah Code 

section 78-11-6 to include a fetus based, in part, on the fact that 

“the term ‘child’ is used extensively in the popular press to refer 

to the unborn”); id. ¶ 35 (dissenting opinion of Nehring, J.) (asserting the need for “caution against overreliance on dictionaries” 

(continued...) 
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LEE, A.C.J., concurring in part and concurring in the judgment 

35 

proach.15 And judges have long analyzed the meaning of legal 

words and phrases by seeing how other courts have used them.16

That too is corpus analysis. 

¶64 I would employ this sort of tool in resolving this case. In 

part II.A. below, I present the results of a Google News search. 

The results of that search demonstrate that the verb discharge as 

used in conjunction with a firearm is almost always used in the 

sense of a single shot (and not the emptying of all of the bullets 

available in the magazine). 

¶65 I would also take this analysis a step further, however. For 

reasons described below, there are reasons to look beyond Google 

News to consult an additional tool for understanding the notion 

of discharge of a weapon as that phrase is commonly used in written or spoken English. In part II.B., I present a parallel analysis 

employing an online tool for analyzing a large online collection of 

written and spoken English—the Corpus of Contemporary American English (COCA), available at corpus.byu.edu/coca. The 

search results from this analysis confirm this same understanding 

 

and asserting that “since 1851, the term ‘minor child’ has appeared in the pages of the [New York] Times 2,866 times without 

ever referring to a fetus”). 

15 See, e.g., Muscarello v. United States, 524 U.S. 125, 129 (1998) 

(opinion of the court per Breyer, J.) (interpreting federal sentencing enhancement for one who “carries a firearm” in relation to a 

drug trafficking crime, 18 U.S.C. §924(c)(1), in light of results of an 

online search of “computerized newspaper databases,” which included “thousands of ... sentences” using the phrase to “convey 

the meaning at issue here, i.e., the carrying of guns in a car”).

16 See, e.g., Moskal v. United States, 498 U.S. 103, 114–117 (interpreting phrase “falsely made” in 18 U.S.C. § 2314 by reference to 

the use of this phrase in common-law decisions); Morissette v. 

United States, 342 U.S. 246, 263 (1952) (“[W]here Congress borrows 

terms of art in which are accumulated the legal tradition and 

meaning of centuries of practice, it presumably knows and adopts 

the cluster of ideas that were attached to each borrowed word in 

the body of learning from which it was taken and the meaning its 

use will convey to the judicial mind unless otherwise instructed.”). 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

36 

of discharge of a weapon, but with greater transparency and reliability. 

A 

¶66 A natural place to go for access to a large body of linguistic 

data is the internet. Most all of us (even judges) are familiar with 

this source of data, and with the search tools for accessing it. And 

thoughtful analysis using the results of a common search engine 

can generate data we may use as an empirical check on our (imperfect) linguistic intuition.17

¶67 Judges on this court and elsewhere have begun to access 

this resource as we tackle problems of lexical ambiguity. Over the 

past few years, members of this court have authored several separate opinions presenting internet search results in support of our 

construction of ambiguous statutory text.18 More recently, in State 

v. Canton, 2013 UT 44, 308 P.3d 517, we employed such an approach in an opinion of the court. Our unanimous Canton opinion 

resolved an ambiguity in a tolling provision for our criminal statutes of limitations, Utah Code section 76-1-304(1). The critical 

statutory phrase tolls the statute of limitations during any period 

in which the defendant is “out of the state.” And we resolved a 

critical ambiguity in that phrase—as to whether it referred to 

physical absence beyond a state’s boundaries, or mere unavailability for legal process—by use of a Google News search. 

 

17 See THE ROUTLEDGE HANDBOOK OF CORPUS LINGUISTICS 6 

(Anne O’Keeffe and Michael McCarthy, eds., 2010) (touting the 

“potential of the entire world-wide web as a corpus, with its trillions of words, a veritable treasure trove of linguistic phenomena 

accessible at the click of a mouse”).

18 See Carranza, 2011 UT 80, ¶ 24 (interpreting “minor child” in 

Utah Code section 78-11-6 to include a fetus based, in part, on the 

fact that “the term ‘child’ is used extensively in the popular press 

to refer to the unborn”); id. ¶ 35 (dissenting opinion of Nehring, J.) 

(asserting the need for “caution against overreliance on dictionaries” and asserting that “since 1851, the term ‘minor child’ has appeared in the pages of the [New York] Times 2,866 times without 

ever referring to a fetus”).
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LEE, A.C.J., concurring in part and concurring in the judgment 

37 

¶68 In Canton we concluded that “[d]ictionaries [we]re . . . insufficient by themselves to resolve the interpretive task before 

us.” Id. ¶ 20. And we therefore indicated a need to “look elsewhere to determine the ordinary meaning of the language of the 

tolling statute.” Id. The “elsewhere” was a Google News search, 

which we employed to assess the “way the full phrase [‘out of the 

state’] is typically used in common parlance.” Id. ¶ 26. The results 

of that search confirmed that “[w]hen the phrase ‘out of the state’ 

is used in its full context, it refers to the physical territory of a 

state, not its political power or influence.” Id. ¶ 27. 

¶69 We described the search and its results as follows: 

This conclusion is based on results of a Google News 

search, http://news.google.com, considering 150 instances 

in which the phrase “out of the state” was used in news 

stories published in May 2013—27 of which involved references to the relationship between a person and the state. 

Not one of those 27 relevant references use “out of the 

state” in a manner involving absence of a person from the 

legal authority or influence of a state. Every single one of 

them makes unequivocal reference to the physical confines 

of a state. 

Id. ¶ 27 n.6. On the basis of these search results, we concluded that 

“although Canton’s construction” of the Utah tolling provision 

was “semantically plausible based on dictionary definitions of 

‘out of’ and ‘the state,’ it cannot be reconciled with the uniform 

understanding of the extended statutory phrase ‘out of the state.’” 

Id. ¶ 27. Because “[t]hat phrase is not used in the way that Canton 

construes it,” we rejected it as incompatible with the ordinary 

meaning of the statutory text. Id. 

¶70 I would follow the Canton model in this case. Because both 

sides are able to marshal dictionary definitions in support of their 

view of discharge, we must reach beyond the dictionary to resolve 

this case. And, as in Canton, a Google News search confirms the 

conclusion that the majority adopts but cannot justify on the basis 

of the dictionary, or etymology, or mere intuition. 

¶71 Google is a widely used, well-known search engine. As 

most people know, this search engine can do more than search the 

world-wide web. It may also be employed to search an extensive 

body of published newspaper articles. 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

38 

¶72 Such a corpus is a reliable resource for assessing the ordinary meaning of a statutory term. Published newspaper articles 

are a useful body of natural language due to their size.19 The 

Google News corpus, moreover, is both well-understood by the 

public (including judges and lawyers) and easily adapted for 

analysis (in that a search may be time-delimited and the search 

results may be reviewed in a systematic, transparent way). Unlike 

a dictionary, moreover, a Google search allows for analysis of 

phrases—or key words in a particular context—and not just individual words. 

¶73 A Google News search confirms the single shot sense of 

discharge when that term is used in connection with a firearm. On 

a search conducted on June 4, 2015, the phrase “discharge a firearm” generated 43 hits for newspaper articles published between 

March 1 and June 4, 2015. Fifteen of those hits were inconclusive 

in terms of the intended sense of “discharge.” I omitted those hits 

from my analysis. Of the remaining 28 articles, none of them 

clearly support Rasabout’s notion of discharge involving emptying 

all bullets in a gun’s magazine.20 And 27 clearly employ the single 

shot sense of the term. 

 

19 See THE ROUTLEDGE HANDBOOK OF CORPUS LINGUISTICS, supra, 

31-32 (explaining the importance of size in assembling a reliable 

corpus, noting that “for most questions that are pursued by corpus researchers, the question of size is resolved by two factors: 

representativeness (have I collected enough texts (words) to accurately represent the type of language under investigation?) and 

practicality (time constraints)”). 

20 I found one article that vaguely supports Rasabout’s view. See

Colorado Man Ends Battle with Computer by Shooting it 8 Times, NBC 

News (April 21, 2015), http://www.nbcnews.com/news/usnews/colorado-man-ends-battle-computer-shooting-it-8-timesn345841. This article recounts the story of a “Colorado Springs 

man” who “was hit with a municipal violation after he ended a 

long-running battle with an uncooperative computer by blasting it 

eight times with a handgun.” And it notes that the man “was given a violation for discharging a weapon inside city limits.” This 

vaguely suggests a sense of discharge as encompassing the eight 

shots from a handgun. But only very vaguely. In context, it is not 

(continued...) 
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LEE, A.C.J., concurring in part and concurring in the judgment 

39 

¶74 The 27 relevant hits linked to articles cited below.21 Each of 

them conclusively indicates that when we speak of discharging a 

 

at all clear whether the referenced “violation” was one count or 

eight. And in any event that question is a legal one—of the number of counts charged under the Colorado law, not the ordinary 

sense of a statutory phrase. 

21 The 27 articles supporting the single-shot notion of discharge 

of a firearm are listed below, in the same order generated by my 

Google news search: 

1. http://www.mccookgazette.com/story/2193311.html 

2. http://www.news-gazette.com/news/local/2015-05-

18/10-year-review-shots-fired-few-and-far-between.html 

3. http://www.wpxi.com/news/news/local/2-chargedshooting-showered-6-year-old-glass/nmCNS/ 

4. http://www.smh.com.au/nsw/police-shoot-aknifewielding-gosford-man-20150418-1mnsnt.html 

5. http://www.officer.com/article/12070687/citizens-guideto-armed-defense-book-review 

6. http://www.nbcmontana.com/news/missoula-policeinvestigate-shooting-death-of-dog/33216176 

7. http://fox5sandiego.com/2015/04/15/bill-would-imposestricter-penalties-for-making-school-threats/ 

8. http://www.newsweek.com/man-shot-fbi-boston-couldhave-ties-isis-338334 

9. http://www.dailycamera.com/boulder-countynews/ci_28248557/officials-elk-shot-illegally-rockymountain-national-park 

10. http://www.coloradoan.com/story/sports/outdoors/201

5/06/04/elk-shot-rocky-mountain-nationalpark/28456193/ 

11. http://www.adn.com/article/20150501/east-anchorageswat-standoff-suspect-charged 

12. http://elkodaily.com/news/police-arrest-felon-forfirearm-possession/article_8e8341b6-65f9-5542-8ede8f559de77ecf.html 

13. http://www.tuscaloosanews.com/article/20150530/news

/150539979 

(continued...) 
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LEE, A.C.J., concurring in part and concurring in the judgment 

40 

firearm, we are talking about a single shot, and not a complete 

emptying of a gun’s magazine. In nine of the articles it is clear 

from the context that only one shot was fired. In two, each discharge is described as a separate event. In ten others, the term dis-

 

14. http://www.wlky.com/news/police-investigateofficerinvolved-shooting-at-i265-and-brownsborord/32355560 

15. http://www.wacotrib.com/news/environment/missingkilled-pets-prompt-concern-from-waco-residents-aboutcoyotes/article_7fb2a4df-017b-5e63-88b0-

15af2496f7b5.html 

16. http://postonpolitics.blog.palmbeachpost.com/2015/04/2

3/state-republican-lawmakers-approve-of-provision-tooutlaw-back-yard-firing-ranges/ 

17. http://www.spokesman.com/stories/2015/apr/26/noshootings-at-hospitals/ 

18. http://www.azcentral.com/story/claythompson/2015/04

/20/birds-pests-pigeons-guns/26085253/ 

19. http://www.azcentral.com/story/claythompson/2015/04

/16/pigeons-pests-control-birds-prevention/25905255/ 

20. http://www.mississauga.com/news-story/5575267-videopolice-respond-to-criticism-over-spate-of-cop-shootings-inpeel/ 

21. http://tbo.com/news/florida/florida-could-soon-placelimits-on-drone-use-20150428/ 

22. http://www.therecord.com/news-story/5638717-siuevidence-gathering-complete-in-guelph-general-hospitalshooting/ 

23. http://www.coastreporter.net/news/local-news/councilkills-goose-shooting-in-sechelt-1.1812362 

24. http://news.stv.tv/west-central/1320084-man-shot-andmowed-down-by-mitsubishi-4x4-in-targeted-hit-is-named/ 

25. http://www.cknw.com/2015/04/09/71448/ 

26. http://www.magnoliareporter.com/news_and_business/l

ocal_news/article_42d4f490-df3e-11e4-8bd9-

9342377a4a21.html 

27. http://www.inquisitr.com/2022402/ian-gibson-trampledwhile-hunting-elephant-hunters-death-cheered-byconservationists/ 
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LEE, A.C.J., concurring in part and concurring in the judgment 

41 

charge is used in close connection with the terms shoot, fire or similar words describing a single firing of a gun. And in the remaining 

six, the use of discharge simply doesn’t make sense grammatically 

if read as a reference to multiple shots. 

¶75 I would employ the above corpus analysis to sustain the 

conclusion that each single shot is a separate discharge of a weapon 

under Utah Code section 76-10-508(1)(a). That is the conclusion 

suggested by my linguistic intuition. But, more transparently, it is 

also confirmed by an analysis of the use of natural language in 

current newspaper articles. 

B 

¶76 Most any analysis of public sources of real-world language, 

in my view, is better than a judge’s take-my-word-for-it assertion 

of ordinariness. But not all searches are created equal. A Google 

News search bears some of the key hallmarks of reliable analysis. 

It is certainly more transparent and easier to replicate than a 

judge’s intuition. 

¶77 Yet a Google News search is hardly unimpeachable.22 The 

Google algorithm is proprietary and thus not fully transparent. So 

we cannot tell exactly what factors affect the results of any given 

search on Google News.23 Another concern goes to the replicability of a given search. My search terms and results are memorialized in the above footnotes. But because the Google algorithm is 

hidden, and the results of any given search may be affected by 

factors unknown to (or particularized for) an individual user, 

 

22 See Adam Kilgarriff, Googleology Is Bad Science, 33 

COMPUTATIONAL LINGUISTICS 147 (2007) (touting the benefits of 

using the web “as a data source” for corpus analysis, but discussing the limitations of Google as a corpus search engine). 

23 See id. at 148 (noting that Google “hits are sorted according to 

a complex and unknown algorithm (with full listings of all results 

usually not permitted) so we do not know what biases are being 

introduced,” such that “[i]f we wish to investigate the biases, the 

area we become expert in is googleology not linguistics”). 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

42 

there is no guarantee that the same search performed at another 

time on another computer will generate identical results.24

¶78 These problems will be heightened—and others added to 

them—in a broader Google search of the world-wide web (as opposed to the Google News database). A search for relative hit 

counts is especially problematic. Consider the Seventh Circuit’s 

analysis in United States v. Costello, 666 F.3d 1040, 1044 (7th Cir. 

2012). In Costello the court was faced with the question of the 

scope of the crime of “habor[ing]” an illegal alien under 8 U.S.C. § 

1324(a)(1)(A)(iii) (2012). Judge Posner, writing for the court, conducted a Google search to try to resolve an ambiguity—of whether the statute used harbor in the sense of “to give shelter or refuge 

to” (see WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, sense 

1a(1)) or “to receive clandestinely and conceal” (id., sense 1a(2)). 

To Judge Posner’s credit, the Costello opinion acknowledged the 

limits of dictionaries. It noted that “[d]ictionary definitions are . . . 

contextual, whereas the meaning of sentences depends critically 

on context, including all sorts of background understandings.” 

666 F.3d at 1042. And the court’s instincts were generally in line 

with the tools and methods that I propose. Instead of purporting 

to resolve the lexical ambiguity by resort to a dictionary, Judge 

Posner sought to do so by means of a corpus analysis of the 

world-wide-web—via a Google search. 

¶79 Yet Judge Posner’s search highlights some deficiencies in 

standard Google internet searches. His search, as described in the 

Costello opinion, was as follows: 

A Google Search . . . of several terms in which the word 

“harboring” appears—a search based on the supposition 

that the number of hits per term is a rough index of the frequency of its use—reveals the following: 

 

24 See id. (noting that search engines like Google “will give you 

substantially different counts, even for repeats of the same query,” 

while recounting an experiment in which “queries repeated the 

following day gave counts over 10% different 9 times in 30, and a 

factor of two different 6 times in 30,” while explaining that “queries are sent to different computers, at different points in the updated cycle, and with different data in their caches”). 
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LEE, A.C.J., concurring in part and concurring in the judgment 

43 

“harboring fugitives”: 50,800 hits 

“harboring enemies”: 4,730 hits 

“harboring refugees”: 4,820 hits 

“harboring victims”: 114 hits 

“harboring flood victims”: 0 hits 

“harboring victims of disasters”: 0 hits 

“harboring victims of persecution”: 0 hits 

“harboring guests”: 184 hits 

“harboring friends”: 256 hits (but some involve harboring 

Quakers—“Friends,” viewed in colonial New England as 

dangerous heretics) 

“harboring Quakers”: 3,870 hits 

“harboring Jews”: 19,100 hits25

¶80 From these results, the Costello opinion concludes that “[i]t 

is apparent . . . that ‘harboring,’ as the word is actually used, has a 

connotation—which ‘sheltering,’ and a fortiori ‘giving a person a 

place to stay’—does not, of deliberately safeguarding members of 

a specified group from the authorities, whether through concealment, movement to a safe location, or physical protection.”26 And 

on that basis the court reversed the conviction under review, concluding that there was no evidence to support the conclusion that 

Costello had “harbored” her boyfriend, an illegal alien, in the 

sense of seeking to conceal him from the authorities. 

¶81 The Costello opinion is a step in the right direction. But it also highlights some deficiencies of Google web searches as a basis 

for assessing ordinary meaning. The Costello analysis is vulnerable 

for reasons noted above—that hit counts are unreliable because 

the Google algorithm is unknown, as underscored by the fact that 

different searches at different times on different computers may 

reveal very different results.27 

 

25 Costello, 666 F.3d at 1044. 

26 Id. 

27 See supra ¶ 77 n.24. 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

44 

¶82 But the Costello approach is also vulnerable to other attacks. 

One is that Judge Posner’s choice of search terms seems arbitrary. 

To assess the ordinary meaning of harbor, he searches only the 

present participle form of the verb (harboring). And he chooses objects of the verb (fugitives, enemies, refugees, flood victims, victims of 

disasters, victims of persecution, guests, friends, Quakers, and Jews) on 

grounds that are not stated. (Curiously, the statutory object—

alien—is not included.) 

¶83 These search terms are understandable. But they are 

somewhat arbitrary (presumably based on Posner’s linguistic intuition), and could easily skew the results. The use of intuition is, 

again, understandable. But if the goal of this type of analysis is to 

check the judge’s intuition, this move undermines a key benefit of 

the approach. 

¶84 These problems can be addressed by means of a more 

transparent, reliable search tool. The tool that I would employ is 

one developed by a renowned corpus linguist, Professor Mark 

Davies. This corpus is known as the Corpus of Contemporary 

American Usage (COCA). See Mark Davies, The Corpus of Contemporary American English: 410+ million words, 1990-present, 

http://corpus.byu.edu/coca (2008-). COCA is “the largest freelyavailable corpus of English, and the only large and balanced corpus of American English. . . . The corpus contains more than 410 

million words of text and is equally divided among spoken, fiction, popular magazines, newspapers, and academic texts.” Id. 

¶85 Like Google or Westlaw, the COCA search engine is easy to 

use. But unlike Google, and to a lesser extent Westlaw, COCA is 

also completely transparent, and it generates search results that 

are easily replicable. COCA, moreover, avoids the shortcomings 

of a Google web search as noted above, and illustrated in the Costello opinion. With the COCA search engine, there is no need for a 

user to think up her own objects of the verb harbor. COCA allows 

the user to generate a list of the most common words used near 

harbor. Significantly, moreover, the user can search only for the 

verb forms of harbor.

28 So the COCA user can generate the most 

 

28 This is because the COCA is a lemmatized corpus, meaning that 

its words are coded for the type of speech they represent (noun, 

verb, adjective, etc.). 
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LEE, A.C.J., concurring in part and concurring in the judgment 

45 

common nouns near harbor as a verb, instead of guessing at what 

they might be. That list of collocates (essentially, “word neighbors”) in itself will give some insight into the ordinary meaning of 

harbor. 

¶86 COCA also allows the user to do more than get a simple 

“hit count.” A COCA search yields a display of each use of harbor, 

exactly like Google or Westlaw, in the context of each of its most 

common word neighbors. By examining each instance of harbor

with its common word neighbors, we can assess the frequency of 

each of the attested meanings of the verb. 

¶87 COCA also facilitates transparency and replicability. A 

search performed on the COCA site can be saved and linked for 

future reference, allowing a party, counsel, or interested commentator to review the search results and assess the court’s analysis. 

¶88 I would accordingly utilize a COCA search to analyze the 

meaning of discharge of a firearm. My search29 identified 86 instances30 of the verb discharge within five words of the nouns firearm, firearms, gun, and weapon. By examining the instances of discharge in connection with these nearby nouns, I confirmed that the 

single shot sense of this verb is overwhelmingly the ordinary 

sense of the term in this context. 

¶89 Twelve of the 81 hits in the COCA search clearly linked discharge to a single bullet. In 16 other hits, the discharge was accidental. I deemed those hits as also consistent with the single shot 

sense of discharge, as it seems highly unlikely if not impossible that 

an accidental trigger-pull could result in a release of all of the bullets in a gun’s magazine. Fifteen other hits were a bit more ambiguous; but on closer examination, the discharge in question 

seemed to imply a single shot (based on the nature of the weapon, 

the circumstance of the discharge, or description of the resulting 

damage). 

 

29 The COCA interface allows you to save your searches—a feature that enhances transparency and replicability. My search is 

saved at http://corpus.byu.edu/coca/?c=coca&q=34104740. 

30 The original list included 86 hits, but 5 were discarded as duplicates. 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

46 

¶90 In 36 other instances I concluded that there was insufficient 

detail to indicate whether the discharge at issue had reference to a 

single shot or to the emptying of a magazine. One additional hit 

was rejected as irrelevant (involving a patient being discharged 

from a hospital, which happened to occur within five words of the 

word gun). 

¶91 In all, I found only one instance of discharge of a weapon 

that seemed consistent with the firing of multiple shots. Based on 

the context of this usage, it seemed likely that the discharge in 

question referred to a stream or burst of bullets instead of a single 

shot. 

¶92 This COCA search accordingly confirms our linguistic intuition and is consistent with the Google News analysis above. It 

indicates that discharge of a weapon is used overwhelmingly in the 

single shot sense. Of 81 hits, (44 that were conclusive and relevant) only one seems consistent with Rasabout’s notion of a burst 

of bullets (and even then, there is no basis for concluding that the 

burst involved emptying the entire contents of a gun’s magazine). 

Thus, almost every conclusive instance of discharge of a weapon 

involves a single shot. 

¶93 This provides strong confirmation of the basis of our holding in this case. And it does so on the basis of a transparent database that is publicly available, created by linguists, and subject to 

replication by anyone seeking to confirm (or reject) my analysis. 

III 

¶94 Novel tools for tackling old problems naturally prompt 

skepticism. That reaction is all the more predictable when the new 

tool implicates unfamiliar technology. 

¶95 For decades lawyers used paper digests and other hardcopy compilations to find judicial opinions to support their arguments. When computer-searchable databases of opinions were 

first introduced, some were dubious. For years some even predicted that computer-based research would undermine the lawyer’s craft.31 Not many of us think that way now. The addition of 

 

31 See, e.g., Barbara Bintliff, From Creativity to Computerese: Thinking Like a Lawyer in the Computer Age, 88 LAW. LIBR. J. 338, 339 

(continued...) 
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LEE, A.C.J., concurring in part and concurring in the judgment 

47 

the tool of computer-based research is widely viewed as an enhancement, particularly when used in combination with other, 

traditional methods. 

¶96 The point is not that corpus linguistic analysis is the next 

Westlaw or Lexis. Its utility is obviously more narrow. But the 

analogy is apt in that the tool I’m proposing would not replace 

but add to existing methods, and it would do so in a manner that 

takes advantage of technology available to us in the computer age. 

¶97 That said, I accept many of the points raised by Chief Justice Durrant in his concurrence. I too see a need to proceed with 

caution, supra ¶ 39, and to “weigh the potential usefulness” of 

corpus analysis “against its potential cost.” Supra ¶ 38. And I certainly agree that this analysis “would be best employed by us, or 

by other judges, . . . after the parties have raised it and argued it.” 

Supra ¶ 37. That is true for anything we do. We depend on the adversary process. Our opinions are better when adversary briefing 

is complete and in-depth. 

¶98 Yet I do not see these as barriers for employing corpus 

analysis in this case. The parties have squarely presented the issue 

of the meaning of discharge of a weapon for our resolution, and 

they have given their best shot at offering linguistic analysis (using dictionaries and the lawyers’ own linguistic intuition) on that 

issue. To some extent all members of the court have gone beyond 

the parties’ briefing in deciding that issue. It is no affront to the 

adversary system for us to do that, as it is not just inevitable but 

entirely appropriate. (No one thinks that a careful judge should 

 

(1996) (warning that computer-aided legal research will undermine the ability to think like a lawyer); Molly Warner Lien, Technocentrism and the Soul of the Common Law Lawyer, 48 AM. U. L. REV. 

85, 85-86 (1998) (arguing that computer-aided legal research “may 

be harmful to the process of legal reasoning” and that lawyers 

should be aware of the “negative impacts” of using technology in 

this way); Robert C. Berring, Legal Research and the World of Thinkable Thoughts, 2 J. APP. PRAC. & PROCESS 305, 316 (2000) (declaring 

that it “scares” the author “[i]f search engines like Google move 

into legal information”); Scott P. Stolley, Shortcomings of Technology: The Corruption of Legal Research, ABA’S APP. ADVOC. COMMITTEE 

NEWSL. 39 (April 2004) (the title says it all). 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

48 

suspend independent analysis.) And it adds mostly transparency 

to extend our discussion to encompass the corpus analysis set 

forth in my opinion.32

¶99 I concede that the Google News and COCA tools that I 

have employed will be unfamiliar to many. But it is not the case 

that my “rationale” is “different in kind from any argument made 

by the parties,” or even from analysis presented by my colleagues. 

Supra ¶ 17. Every member of this court is addressing the same issue,33 and we all are engaged in the same basic analysis—of seeking the ordinary sense of discharge when that term is used in connection with a firearm. We can do that using our intuition and the 

corpus-based information compiled in a dictionary (as my colleagues do), or we can extend the analysis (as I have) to look at 

examples of real-world language compiled by a Google News or 

COCA search. Neither approach is “subject to scientific review.” 

Supra ¶ 16. And neither yields to Mr. Rasabout “a reasonable opportunity to present a different perspective,” supra ¶ 17, if by that 

we mean the chance to engage with us at the opinion-writing 

stage to respond to our arguments. 

¶100 Parties never have that opportunity, however. And they 

have no more opportunity to do that with regard to the majority’s 

approach than with mine. The majority’s insistence that discharge

means shoot in this context is based on the majority judges’ linguistic intuition—informed, no doubt, by the body of language 

that they have encountered during their lifetime. Certainly that 

 

32 There is a bit of a chicken-and-egg problem in the complaint 

about a lack of briefing. Until judges convey openness to analysis 

using a corpus like COCA, lawyers will not present it. My opinion 

is aimed at opening the door to better briefing. 

33 Certainly it’s true that “‘we would be ill-advised to reach a 

decision regarding unsettled law without the benefit of adversarial briefing.’” Supra ¶ 17 n.30 (quoting St. Jeor v. Kerr Corp., 2015 

UT 49, ¶ 14, __ P.3d __). But no one is reaching out to resolve an 

additional question of law in this case, or an unpreserved issue. 
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LEE, A.C.J., concurring in part and concurring in the judgment 

49 

analysis is not “subject to scientific review,” much less to 

pushback from Mr. Rasabout.34

¶101 The majority’s remaining concerns are a bit more substantial, or at least deserving of a more fulsome response. In the 

paragraphs below, I respond to the court’s charges (a) that corpus 

analysis is a “scientific field of study” that is the domain of an expert witness and not a generalist judge, supra ¶¶ 18–19; (b) that 

judges lack the expertise necessary to conduct reliable corpus 

analysis, supra ¶¶ 19–21; (c) that the introduction of corpus analysis will “place an unbearable burden” on the judicial system by 

requiring “dueling linguistics experts” “in every case,” supra ¶ 19; 

(d) that my approach ignores corpus analysis of “the text of the 

Utah Code,” supra ¶ 21, and suggests that “ordinary meaning is 

the exclusive tool available to us in our effort to effectuate legislative intent,” supra ¶ 10 n.16; and (e) that my corpus analysis is 

problematic in that it discards a certain number of hits “as having 

‘insufficient detail’” to be conclusive, supra ¶ 21. 

A 

¶102 The legal or ethical propriety of “sua sponte” corpus 

analysis by a judge is a valid question. See supra ¶ 17. On a range 

of scientific matters, we think of research or analysis as the domain of experts. And we rightly eschew a judge’s independent 

attempts at his own scientific “findings.” Supra ¶ 20. Such analysis, in fact, would be a breach of judicial ethics. 

¶103 In Utah, our Code of Judicial Conduct provides that “[a] 

judge shall not investigate facts in a matter independently, and 

shall consider only the evidence presented and any facts that may 

 

34 If the concern is for a chance for the parties to challenge our 

analysis, my approach is less troubling. The main way that parties 

raise concerns with our opinions is through petitions for rehearing. 

A judge who presents a transparent corpus analysis opens the 

curtain in a manner allowing the parties to review and analyze his 

approach, and even challenge it on a petition for rehearing. No 

such response is available under the majority’s approach. A takemy-word-for-it assertion of linguistic intuition is as unscientific 

and opaque as it gets. No party can challenge that kind of decision—on a petition for rehearing or otherwise. 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

50 

properly be judicially noticed.” UTAH R. J. ADMIN. CODE Canon 2, 

Rule 2.9(C). So the majority would be right to reject my corpus 

analysis if it were a matter of independent factual investigation. 

That is usually what is involved in the “scientific field[s] of study” 

cited by the court. Supra ¶ 18. And on such questions, it would 

undoubtedly be improper for us to “conduct scientific research” 

or to “contrive of interesting research projects that require expertise in fields in which we have no training.” Supra ¶ 18. 

¶104 But that is not at all what I am engaged in. Independent 

investigation is foreclosed only as to “facts,” not law. That is significant. Judicial analysis of the meaning of language, using corpus analysis or anything else, is aimed at interpreting the law. 

That is the judge’s role. In performing the core function of deciding what the law is or should be, we cannot properly be restricted 

from consulting sources that inform our understanding.35

¶105 The operative rule makes that abundantly clear. It opens 

the door to the consideration of “facts that may properly be judicially noticed.” UTAH R. J. ADMIN. CODE Canon 2, Rule 2.9(C). To 

the extent the analysis presented above encompasses “facts” (e.g., 

as to the way the verb discharge is typically used in our language 

in connection with the noun firearm or its synonyms), moreover, 

 

35 The majority claims that “[w]e regularly refuse to conduct legal research, a field in which we are experts.” Supra ¶ 18. By that I 

assume the court means only that we rely on adversary briefing 

on legal issues, and do not take it upon ourselves to construct legal arguments not presented by the parties. Fair enough. But that 

only underscores the need to stay focused on the legal issues presented by the parties. And here the question of the meaning of the 

unlawful discharge statute is undoubtedly and squarely raised. 

On issues that are squarely presented, moreover, we regularly 

do take it upon ourselves to conduct independent legal research. No party would be surprised to read an opinion citing authority not presented in the briefs, or analysis taking a somewhat 

different angle than the parties. Our legal research is supposed to 

be sua sponte, and not at all limited to the legal material cited to us 

by the parties. Linguistic analysis is purely legal—aimed at understanding the terms of the law. So there is no bar on it being independent. 
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LEE, A.C.J., concurring in part and concurring in the judgment 

51 

our law makes clear that we are free to consider them as a matter 

of judicial notice. Otherwise my colleagues’ opinions also cross 

the line, as they also consider evidence not presented in the briefs 

regarding the ordinary meaning of discharge. A judge’s judicial 

notice power is addressed by rule 201 of our rules of evidence. 

That rule indicates that the limitations in the rule are addressed to 

“an adjudicative fact only, not a legislative fact.” UTAH R. EVID.

201(a). And the advisory committee note explains the distinction. 

It says that “[s]ince legislative facts are matters that go to the policy of a rule of law as distinct from the true facts that are used in 

the adjudication of a controversy they are not appropriate for a 

rule of evidence and best left to the law-making considerations by 

appellate and trial courts.” UTAH R. EVID. 201 advisory committee’s note. Thus, this type of analysis is an appropriate method of 

judicial analysis because it goes to “the policy of a rule of law as 

distinct from the true facts that are used in the adjudication of a 

controversy.”36 Id. 

¶106 On reflection, moreover, this must be correct. A contrary 

conclusion would call into question a wide range of opinions of 

this court and many others. If we were foreclosed from considering outside material that informs our resolution of open questions 

 

36 To the extent courts and commentators have addressed this

question, they appear to universally accept the propriety of judi‐

cial consideration of “legislative facts”—of outside investigation

of matters of relevance to the resolution of an open legal question.

See Bulova Watch Co. v. K. Hattori & Co., 508 F. Supp. 1322, 1328

(E.D. N.Y. 1981) (asserting that “whether we explore the econom‐

ic, political, or social settings to which the law must be applied

explicitly, or suppress our assumptions by failing to take note of

them, we cannot apply the law in a way that has any hope of mak‐

ing sense unless we attempt to visualize the actual world with

which it interacts,” and that the “courtʹs power to resort to less

well known and accepted sources of data to fill in the gaps of its

knowledge for legislative and general evidential hypothesis pur‐

poses must be accepted because it is essential to the judicial pro‐

cess”); see also ROBERT E. KEETON, JUDGING 38‐39 (1990) (discussing

distinction between legislative and adjudicative facts).
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

52 

of law, we would be barred from engaging in historical analysis 

relevant to a question of original meaning of a provision of the 

constitution, or from considering social science literature in resolving a difficult question under the common law. Linguistic 

analysis is no different; to the extent we charge our judges with 

resolving ambiguities in language, we cannot (and do not) reasonably restrict their ability to do so on a well-informed basis—even 

on grounds not presented by the parties, and not within the domain of judges’ professional training. Such a restriction, after all, 

would not just foreclose corpus analysis; it would also prevent us 

from consulting a dictionary or our own experience with language. 

B 

¶107 It is likewise fair to question our ability to perform corpus 

analysis properly. Most judges are generalists. And few if any 

have specialized training in corpus linguistics. So I concede the 

point that judges will not bring to bear the kind of training possessed by “linguistics experts” retained by the parties. Supra ¶ 19. 

¶108 But that, respectfully, is not the point. We judges are experts on one thing—interpreting the law. And the fact that that 

enterprise may implicate disciplines or fields of study on which 

we lack expertise is no reason to raise the white flag. It is reason to 

summon all our faculties as best we can, and to overcome any 

weaknesses we may possess. This is not a matter of dreaming up 

“interesting research projects.” Supra ¶ 18. It is a matter of doing 

our job—of doing all we can to understand and implement the 

will of the legislature as expressed in the terms of its statutes, and 

to convey our grounds for doing so in a written opinion. 

¶109 That job isn’t always easy. It involves not just linguistic 

analysis but also historical inquiry—e.g., in finding original meaning. Few of us have training in historical research. It may even be 

said that lawyers and judges “are for the most part extremely bad 

historians,” and may “make up an imaginary history and use curiously unhistorical methods.”37 Yet judges of all stripes engage in 

historical analysis, particularly in their interpretation of the constitution. So the response to our lack of historical training is not to 

 

37 MAX RADIN, LAW AS LOGIC AND EXPERIENCE 138 (1940). 
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LEE, A.C.J., concurring in part and concurring in the judgment 

53 

back away from the enterprise; it is to arm ourselves with the 

tools necessary to do the best history we can. 

¶110 We face a parallel problem when it comes to our analysis 

of the meaning of language. When it comes to training or experience in methods of linguistic analysis, most of us lack specialized 

training. So there is certainly a risk, to paraphrase Max Radin, of 

judges using curiously unscientific linguistic methods. 

¶111 But the proper response to this risk is not the abandonment of the enterprise of linguistic analysis. That enterprise is an 

integral element of judging. Judges cannot do their job without 

assessing the ordinary meaning of words. So the question is not 

whether to engage in linguistic analysis; it is whether to do so with 

the aid of—instead of in open ignorance of or rebellion to—

modern tools developed to facilitate that analysis. 

¶112 We could continue to judge the ordinary meaning of 

words based on intuition, aided by the dictionary. But those tools 

are problematic, for reasons explained above. And the impact of a 

judge’s mere gut intuition is entirely opaque. So it is our current

methodology and tools that involve bad linguistics produced by 

unscientific methods. If the concern is reliability, the proper response is to embrace—and not abandon—corpus-based analysis. 

¶113 To do so well, we judges must seek to understand this 

field better. We are not experts. At least I am not; I do not possess 

a complete understanding of the methodologies at our disposal. 

But I am convinced that the approach employed above is essential 

to a more reliable, transparent fulfillment of this judicial task. 

¶114 Corpus analysis, in all events, is not rocket science. At 

some level we all do it intuitively in our minds. It’s a small leap to 

check our intuition against examples of real-world language revealed by a Google- or COCA-based38 search of a body of written 

English. We don’t need much expertise to do that well.39 

 

38 I concede that the COCA database is less familiar, and may 

seem daunting. But my use of it—and the principal use for which 

it can be employed by lawyers and judges—is quite rudimentary. 

I am simply using it as an online database or search engine to find 

examples of language—as a parallel to a Google News or LexisNexis search. COCA is no harder to use, and the output is no 

(continued...) 
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

54 

¶115 Corpus analysis is like math—at one level it’s something 

basic that everyone does; at another level it’s something complicated that only “experts” can do. The type of corpus analysis I am 

doing—and advocating—is the former. I just think we should be 

using a calculator instead of doing it in our heads. 

¶116 As to historical analysis, Justice Antonin Scalia and his 

co-author Bryan Garner have aptly repudiated the charge that 

“‘no one can reconstruct original understanding precisely’” with a 

powerful reminder of the judicial task: “Our charge is to try.”40

The same can be said of linguistic analysis. It may not be possible 

to resolve questions of ordinary meaning with absolute certainty. 

But we must try. And in so doing we must bring to bear the 

methods and tools developed in the 21st Century to better understand the meaning of language for this crucial element of judging. 

C 

¶117 I see no reason to expect that the introduction of corpus 

analysis in judging ordinary meaning will require “dueling linguistics experts” “in every . . . case” where both sides present 

plausible dictionary definitions to support their position. Supra

 

more difficult to read or understand. It’s just better than other 

search tools for reasons explained above. 

Admittedly a linguist would get more out of COCA than I can. 

But the mere fact that someone with greater training and expertise 

can use a tool in a way that lay people cannot does not deny the 

lay person of the ability to use it. Otherwise, cars would be used 

only by stunt drivers, knives would be used only by chefs, and 

smartphones would be used only by teenagers. 

39 The “fact that a jurist of Judge Posner’s intellect and stature is 

capable of . . . missteps” in corpus analysis, supra ¶ 37, is no reason to back away from this enterprise. Judge Posner’s opinion is a 

helpful step in the right direction. We judges learn from each other incrementally over time. Past missteps in this field are no reason to stop trying to forge ahead. 

40 ANTONIN SCALIA & BRYAN GARNER, READING THE LAW: THE 

INTERPRETATION OF LEGAL TEXTS 400 (2012) (quoting KENT 

GREENAWALT, LEGAL INTERPRETATION: PERSPECTIVES FROM OTHER 

DISCIPLINES AND PRIVATE TEXTS 168 (2010)). 
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LEE, A.C.J., concurring in part and concurring in the judgment 

55 

¶ 19. First, as noted, this isn’t rocket science. Just as lawyers in 

constitutional litigation have learned to present historical analysis 

of original meaning, counsel in statutory cases can compile 

Google- or COCA-based examples of the use of statutory phrases 

in real-world written English. To do this well, lawyers will have to 

inform themselves a bit in basic linguistic methodology. But lawyers are crafty and ingenious. They learn new methods and tools 

all the time. I see no barrier to their presentation of helpful analysis in this field.

¶118 Perhaps there will be an occasional case where linguistics 

expertise could be useful, and where a party may wish to retain 

an expert. But even if an expert were retained in every case in 

which corpus analysis were determinative, we would hardly see 

experts in “every . . . case” in which the parties proffer dueling 

dictionary definitions. Again the majority misunderstands my approach. Corpus analysis is something of a last resort. It comes into 

play only if we find that the legislature is not using words in some 

specialized sense, and only if we cannot reject one of the parties’ 

definitions based on the structure or context of the statute. See supra ¶¶ 43–44. Corpus analysis comes in, in other words, as something of a tie-breaker where we find no better way of resolving the 

matter. In my five years on this court, I have employed such analysis only a very few times.41 In the many other statutory cases that 

come before us, I have disposed of the matter using more traditional tools of interpretation. 

¶119 The “unbearable burden” imagined by the majority, supra

¶ 19, is a strawman. Lawyers can easily learn to present corpus 

analysis in the vast run of cases that implicate this approach, and 

the need for experts will at most be very occasional.

D

 

41 See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 88-105, 266 P.3d 

702 (Lee, J., concurring in part and concurring in the judgment); 

State in re J.M.S., 2011 UT 75, ¶ 40 & n. 3, 280 P.3d 410; Carranza v. 

United States, 2011 UT 80, ¶ 24, 267 P.3d 912 (opinion of Lee, J., 

joined by Durrant, J.); State v Canton, 2013 UT 44, ¶ 27 & n. 6, 308 

P.3d 517 (unanimous majority opinion).
STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

56 

¶120 The majority’s next criticisms of my corpus analysis—that 

it ignores consideration of “the text of the Utah Code,” supra ¶ 21, 

and suggests that “ordinary meaning is the exclusive tool available to us in our effort to effectuate legislative intent,” supra ¶ 10 

n.16—are based on misconceptions. First, a corpus analysis of the 

“text of the Utah Code” would make sense if we were thinking of 

discharge of a firearm as a legal term of art. In that case I would 

agree wholeheartedly with the notion of searching for uses of the 

statutory language to “identify . . . idiosyncrasies” in the way this 

term is used in the “rule of law in this state.” Supra ¶ 21. But no 

one (certainly not the majority) has proffered the view that discharge is a legal term of art subject to specialized meaning in the 

law. Everyone agrees that this term is being used in its ordinary 

sense. So the critique for the lack of this kind of analysis is puzzling.

¶121 Second, I am not at all seeking to limit the enterprise of 

statutory interpretation to a search for “ordinary meaning” in all 

cases. None of my (unanimous) opinions string-cited dismissively 

by the majority “suggest that ordinary meaning is the exclusive 

tool available to us in our effort to effectuate legislative intent.” 

Supra ¶ 10 n.16 (citing, in reference to this criticism, Barneck v. 

Utah Dep’t of Transp., 2015 UT 50, ¶ 28, __ P.3d __; State v. Bagnes, 

2014 UT 4, ¶ 13, 322 P.3d 719; Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 18, 304 P.3d 851; State v. Canton, 2013 UT 44, ¶¶ 

12-13, 308 P.3d 517; Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 

248 P.3d 465). All of these opinions are in line with the approach I 

have outlined here—of asking first about specialized meaning, 

looking next for structural or contextual grounds for eliminating 

one of the parties’ definitions, and resorting to ordinary meaning 

only at the end of the interpretive road. None proposed a search 

for ordinary meaning as “the only consideration” in statutory interpretation. See also supra ¶ 43 n.1.

¶122 I have no quarrel, of course, with the goal of “giv[ing] effect to the intent of the Legislature.” Supra ¶ 10. That is the aim of 

any thoughtful jurist on a matter of statutory interpretation. And 

it is the enterprise that we are all engaged in here.

¶123 Sometimes we speak of a difference in the theory or 

methodology for getting there. There is a purported division—

sometimes acknowledged in judicial opinions, and more often in 

law journals—between judges who approach matters of interpre-
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57 

tation from the standpoint of “purposivism” and those who see 

their enterprise as a matter of “textualism.”42 But these “label[s] 

tend[] toward caricature”;43 “textualism and purposivism . . . 

share more conceptual common ground than” is “sometimes emphasized.”44 “[N]o ‘textualist’ favors isolating statutory language 

from its surrounding context, and no critic of textualism believes 

that statutory text is unimportant.”45 So the overlap is significant. 

Both approaches look for legislative intent, both seek to find it in 

the statutory text, and both acknowledge the relevance of context 

in interpreting the text.

¶124 In my opinions on statutory interpretation, I tend to 

speak of our role in interpreting the text of the statute, as that is 

what was voted on and signed into law by the legislature and the 

governor.46 This is a basic premise of textualism. But my approach 

 

42 See John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70 (2006); Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347 (2005). 

43 Nelson, supra, 91 VA. L. REV. at 348. 

44 Manning, supra, 106 COLUM. L. REV. at 75. 

45 Nelson, supra, 91 VA. L. REV. at 348. 

46 See, e.g., State v. Clark, 2011 UT 23, ¶ 17, 251 P.3d 829 (opinion 

of Lee, J., for a unanimous court) (“Any suppositions about what 

the legislature may have intended cannot properly override what 

it actually did.”); Schroeder Invs., L.C. v. Edwards, 2013 UT 25, ¶ 25, 

301 P.3d 994 (opinion of Lee, J., for a unanimous majority) (“Given 

the enactment of the [] statute, we are no longer tasked with advancing public policy as we see it. We instead must implement the 

particular balance of policies reflected in the terms of [the] statute. 

Those terms are the law . . . .”); Graves v. North Eastern Services, 

Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (Lee, J., opinion of the court) 

(“The governing law is defined not by our abstract sense of legislative purpose, but by the statutory text that survived the constitutional process of bicameralism and presentment. We may resolve ambiguities in the text of the law by reference to reliable indications of legislative understanding or intent (as in legislative 

history). But the invocation of extra-statutory intent as a matter 

overriding the statutory text gets things backwards. The statutory 

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STATE v. RASABOUT

LEE, A.C.J., concurring in part and concurring in the judgment 

58 

to interpretation is founded on the notion of legislative supremacy 

and is aimed at finding legislative intent. And it acknowledges the 

need to consider context—and even a carefully informed sense of 

legislative purpose—in resolving ambiguities in statutory language.47 To a large extent this is just a flipside of modern purposivism.48

¶125 I have long understood my colleagues on the court to 

share this essential view of our role. We may occasionally use different labels to describe our aims, but it has always seemed to me 

that we are engaged in the same essential function.49 Thus, I have 

 

language is primary; legislative history is of secondary significance.”). 

47 See Manning, supra, 106 COLUM. L. REV. at 78 (explaining that 

“textualists recognize that meaning can never be found exclusively within the enacted text,” and “that evidence of purpose . . . may 

also form an appropriate ingredient of the context used to define 

the text”). 

48 See id. at 87 (explaining that modern purposivism concedes 

that “the semantic meaning of the text casts . . . the most important light [] on the purposes to be attributed to the legislature”). 

49 That is not to say that there are no differences between the 

two approaches. The different starting premises lead to some nuanced differences in emphasis. Textualists tend to “give precedence to semantic context—evidence that goes to the way a reasonable person would use language under the circumstances.” 

Manning, supra, 106 COLUM. L. REV. at 76. And purposivists tend 

to “give priority to policy context—evidence that suggests the 

way a reasonable person would address the mischief being remedied” by the legislation in question. Id. “[P]ractitioners of each 

methodology will consider both forms of contextual evidence in 

cases of ambiguity. But textualists give determinative weight to 

clear semantic cues even when the conflict with evidence from the 

policy context. Purposivists allow sufficiently pressing policy cues 

to overcome such semantic evidence.” Id.; see also Nelson, supra, 91 

VA. L. REV. at 349 (explaining that purposivists tend to be more 

accepting of “open-ended” sources for finding intent, while textu-

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not viewed our court’s opinions as embracing “old-school” purposivism—of a prerogative of “adjust[ing] the enacted text to capture what [the legislature] would have intended” if it had thought 

about the issue before the court more carefully.50 My colleagues’ 

purposivism, as I understand it, is one that looks to statutory language to find legislative intent, and is bound by the meaning of 

those words as we interpret them.

¶126 I am comfortable that this is a close cousin to the textualist approach that I have taken. So I have joined opinions authored 

by my colleagues even though they do not speak in explicitly textualist terms. And my colleagues have joined my opinions even 

though they are framed in textualist terms51 (and may even include corpus analysis52). 

 

alists are more focused on “relatively rule-like” grounds for interpretation). 

50 Manning, supra, 106 COLUM. L. REV. at 71. This is “spirit of the 

law” purposivism—the notion that courts should seek to vindicate the law’s spirit even when it is incompatible with its text. It is 

classically represented by the U.S. Supreme Court’s decision in 

Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). The 

statute in that case prohibited “the importation and migration of 

foreigners and aliens under contract or agreement to perform labor or service of any kind in the United States, its territories, and 

the District of Columbia.” Id. at 463. And despite the fact that the 

statute exempted “professional actors, artists, lecturers, singers 

and domestic servants” but not pastors or ministers, the court 

concluded that a contract to pay for the migration of a church pastor was not covered. Id. at 459-60. It based its conclusion, moreover, not on the terms of the statute but on its confident sense of 

legislative purpose—that Congress was concerned only about the 

importation of “an ignorant and servile class of foreign laborers,” 

and not “brain toilers” like church pastors. Id. at 463-64. In further 

support of that decision, moreover, the court cited extra-textual 

evidence of purpose (in legislative history and its sense of our history as a “Christian nation”). Id. at 471. 

51 Seesupra ¶ 43 n.1 & ¶ 121. 

52 See Canton, 2013 UT 44, ¶ 27 n.6. 
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60 

¶127 My textualism has never been about finding “ordinary 

meaning” as the “exclusive tool available to us in our effort to effectuate legislative intent.” Supra ¶ 10 n.16. The court’s critique 

along those lines is simply mistaken. In this case I’m asking the 

exact same question the court is asking; I’m just resorting to an 

additional tool for answering it. 

¶128 The tool I employ (COCA) and the methodology I use 

(corpus analysis), moreover, are not just for textualists. They are 

for anyone who is interested in analyzing text. All judges—

textualists and purposivists and others—focus on the meaning of 

statutory language. The question is how to do so—whether to 

stick with using our intuition and dictionaries only, or whether to 

check our intuition by searching a database of language. I see 

more upside than downside to taking that step. 

E 

¶129 I welcome focused critiques of the corpus analyses I have 

presented as grounds for my decision. A main point of my approach, after all, is to facilitate transparency and discourse. But 

the majority’s criticism of my exclusion of 36 “inconclusive” hits 

from my COCA analysis is puzzling, as is its challenge to the 

“statisitical[] significan[ce]” of my conclusions. Supra ¶ 21. The 

decision to exclude 36 of the hits in the COCA analysis is straightforward. I didn’t “ignore” them. Supra ¶ 21. I found “insufficient 

detail to indicate whether the discharge at issue had reference to a 

single shot or to the emptying of a magazine.” Supra ¶ 90. 

¶130 I am unsure of the majority’s discomfort with that decision. If it thinks the 36 hits that I excluded cut against my conclusion, it should say so. The sentences I analyzed are available to the 

majority at the link I provided, so the majority could easily have 

examined those 36 hits I left out to determine whether I did so 

appropriately. Absent a specific critique, I will simply stand by 

the above analysis. 

¶131 The same goes for the “interpretive assumption[s]” that 

led to my treatment of other hits. See supra ¶ 21. The COCA data 

are preserved and available for review. Chief Justice Durrant apparently reviewed them and was satisfied with my conclusions. 

See supra ¶ 37 n.10 (indicating that he “found no . . . flaws” in his 

“own examination” of my COCA analysis). The majority is free to 

do the same. If it disagrees with my “interpretive assumption[s]” 
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61 

or my exclusion of inconclusive hits it should offer reasons for so 

concluding. 

¶132 I am unsure what the majority is looking for in terms of 

statistical significance. I found only one sole instance of discharge

of a firearm that had arguable reference to multiple bullets. That 

was out of 81 hits, or 44 hits after excluding those that were inconclusive or irrelevant. That is statistically significant under any 

measure.53

 

53 See, e.g., TONY MCENERY & ANDREW HARDIE CORPUS 

LINGUISTICS: METHOD, THEORY AND PRACTICE 251 (2012) (“A quantitative result is considered statistically significant if there is a low 

probability (typically less than 5 per cent) that the figures extracted from the data are simply the result of random chance . . . .“). To 

the extent the majority is arguing that the 36 hits excluded for 

ambiguity could have carried the same sense as the only one hit 

did—making many more types of that kind of sense—it is drawing the wrong baseline. The analogy would be to 36 of 81 people 

fielding calls from a pollster indicating that they were undecided. 

The 36 simply aren’t part of the baseline for determining statistically significant differences between two candidates. 

The majority’s invocation of statistical significance highlights 

broader conceptual problems not with corpus analysis, but with 

the definition of ordinary meaning itself. Unlike so many other 

legal terms (i.e., negligence or preponderance of the evidence), 

ordinary meaning has escaped definition, perhaps because judges 

have viewed the concept as self-defining. See also BLACK’S LAW 

DICTIONARY 1128 (10th ed. 2014) (cross-referencing “ordinary 

meaning” to “plain meaning,” and defining the latter as “[t]he 

meaning attributed to a document (usu. by a court) by giving the 

words their ordinary sense, without referring to extrinsic indications of the author’s intent”). The majority seems to embrace a 

sense of ordinary meaning encompassing a principle of statistical 

significance—that a sense of a word is more ordinary if it is statistically significantly more common than another. But other definitions seem possible—including that sense of a word is more ordinary if it is merely more frequent than another (occurring more 

than 50% of the time). I do not seek to define the correct sense of 

ordinary meaning. But I do suggest that by any reasonable defini-

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62 

¶133 In all events, the majority’s criticisms again are a boomerang for its position. If the concern is for statistical significance, you 

can’t get more insignificant than a data point of one—particularly 

if the data point is not unbiased. The problem with the majority’s 

analysis, at its core, is that it is rooted in the subjective linguistic 

intuition of an individual judge (or a panel of them). The aspiration for statistical significance is a good one, but that goal is hardly advanced by the insistence on a judicial prerogative of resolving ambiguity based on pure intuition without resort to objective 

means for testing it. 

IV 

¶134 The resolution of ambiguities in legal language is one of 

the most important of all judicial tasks. It is also one of the most 

opaque; for that reason it is fraught with the potential for bias and 

error. We should do what we can to minimize those risks. The approach I have outlined is a step in that direction. 

 

tion, the corpus findings here show that the ordinary meaning of 

discharge (of a firearm) is that of a single shot.