This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 19

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Plaintiff and Respondent,

v.

DARREN BERRIEL,

Defendant and Petitioner.

No. 20110926

Filed April 5, 2013

Fourth District, Provo Dep’t

The Honorable Gary D. Stott

No. 081402953

On Certiorari to the Utah Court of Appeals

Attorneys:

John E. Swallow, Att’y Gen., Ryan D. Tenney, Asst. Att’y Gen.,

for respondent

Douglas J. Thompson, Provo, for petitioner

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE PARRISH and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 On certiorari, we consider whether the court of appeals

erred in affirming the district court’s refusal to instruct the jury on

defense of a third person. We consider whether the evidence supports defendant Darren Berriel’s theory that he stabbed the victim in

defense of a third person under Utah Code section 76-2-402. We

agree with the court of appeals that there is no basis in the evidence

to support this theory and accordingly affirm.

BACKGROUND

¶2 Darren Berriel was convicted of aggravated assault for

stabbing the victim, Luis. On the evening of the stabbing, Mr. Berriel

received a phone call from Rachel, Luis’s girlfriend. Rachel told

Mr. Berriel that Luis “had been hurting [her]” and asked him “to

come over and help.” According to Mr. Berriel’s friends who were
STATE v. BERRIEL

Opinion of the Court

1

 The jury also convicted Mr. Berriel of possession of a dangerous

weapon with intent to assault. However, the court of appeals

vacated this conviction because the jury was not informed “that it

had to find a separate factual basis for the possession . . . conviction

beyond the possession necessary to commit the aggravated assault.”

(continued...)

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with him when he received the call, Rachel was screaming and crying over the phone. After the phone call, Mr. Berriel told his friends

that Rachel “was getting beat up” by Luis and that he needed to go

to her house to help her.

¶3 Mr. Berriel and at least three friends immediately drove to

the house where Rachel and Luis lived with Rachel’s family. On the

way, Mr. Berriel called Krissy, Rachel’s friend, and asked her to “get

Rachel away from the house.” In the meantime, Luis and Rachel had

left the house and driven to pick up Rachel’s thirteen-year-old

brother.

¶4 Luis and Rachel returned to the house with Rachel’s

brother shortly after Mr. Berriel and his friends arrived. After parking on the street in front of the house, Rachel and her brother exited

from the passenger’s side of the car onto the sidewalk, and Luis

exited from the driver’s side onto the street. Mr. Berriel and his

friends were waiting on the opposite side of the street. Mr. Berriel

and Luis approached one another, meeting in the middle of the road.

According to Luis’s testimony, he told Mr. Berriel, “[Y]ou don’t need

that knife to fight with me, if you want to fight with me.” According

to another observer, Luis told Mr. Berriel, “You don’t know what’s

going on, stay out of it.”

¶5 Mr. Berriel then thrust a knife toward Luis’s torso. Luis

moved his arms to protect his abdomen, and the knife slashed his

left forearm, causing a laceration that required stitches. Luis then ran

toward the house to get his dog, and Mr. Berriel and his friends

drove away. Meanwhile, Rachel stood at least fifteen feet away from

where the stabbing occurred and was not involved in the altercation.

¶6 Mr. Berriel later turned himself in to law enforcement and

was prosecuted for the stabbing. At trial, the district court instructed

the jury on self-defense. However, the court refused to instruct the

jury on defense of a third person because it determined that

Mr. Berriel’s theory that he stabbed Luis in defense of Rachel was

“not supported by the evidence.” Following his conviction for aggravated assault, Mr. Berriel appealed the district court’s refusal to

instruct the jury on defense of a third person.1

 A divided panel of the
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Opinion of the Court

1

 (...continued)

State v. Berriel, 2011 UT App 317, ¶ 16, 262 P.3d 1212. We have not

been asked to review the vacatur.

3

court of appeals affirmed, explaining that “a jury could not reasonably have concluded” that Rachel was in imminent danger at the

time of the assault. State v. Berriel, 2011 UT App 317, ¶ 6, 262 P.3d

1212. Mr. Berriel petitioned this court for certiorari, and we agreed

to consider whether the court of appeals erred in affirming the district court’s refusal to give a jury instruction on defense of a third

person.

STANDARD OF REVIEW

¶7 “On certiorari, we review for correctness the decision of the

court of appeals, not the decision of the district court. The correctness of the court of appeals’ decision turns on whether that court

correctly reviewed the trial court’s decision under the appropriate

standard of review.” Utah Cnty. v. Butler, 2008 UT 12, ¶ 9, 179 P.3d

775 (internal quotation marks omitted).

ANALYSIS

I. THE DISTRICT COURT’S REFUSAL TO ISSUE A JURY

INSTRUCTION IS REVIEWABLE FOR ABUSE OF DISCRETION

¶8 “[T]he refusal to give a jury instruction is reviewed for

abuse of discretion . . . .” Miller v. Utah Dep’t of Transp. 2012 UT 54,

¶ 13, 285 P.3d 1208. The precise amount of deference we afford on

review depends on the type of issue presented. On issues that are

primarily or entirely factual, we afford significant deference; on

issues that are primarily or entirely legal in nature, we afford little

or no deference.

¶9 A district court’s refusal to instruct the jury on a defendant’s theory of the case presents questions on both sides of the

spectrum. The issue of whether the record evidence, viewed in its

totality, supports the defendant’s theory of the case is primarily a

factual question. Factual determinations are entitled to more deference than any other kind of determination, largely for reasons of

institutional competency. Manzanares v. Byington (In re Adoption of

Baby B.), 2012 UT 35, ¶ 40, __ P.3d __. Trial courts are better factfinders than appellate courts. See id. For example, here, the district

court’s first-hand familiarity with the testimony and other evidence

puts it in a better position than an appellate court to determine

whether the evidence supports the defendant’s theory.
STATE v. BERRIEL

Opinion of the Court

2

 At the time of Mr. Berriel’s offense, current Utah Code section

76-2-402 was located at 76-1-601 of the Code. We cite to the current

version because it is substantively identical to the provision in force

at the time of the offense.

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¶10 In contrast, the issue of whether to instruct the jury on a

theory that is supported by the evidence presents a legal question.

When the record evidence supports a defendant’s theory, the defendant “is legally entitled to have [an] instruction [on that theory]

given to the jury. In those circumstances, refusal constitutes an error

of law, and an error of law always constitutes an abuse of discretion.” Miller, 2012 UT 54, ¶ 13 n.1.

¶11 The court of appeals employed a correctness standard of

review, in accordance with our precedent at the time it issued its

opinion. State v. Berriel, 2011 UT App 317, ¶ 4, 262 P.3d 1212 (citing

State v. Gallegos, 2009 UT 42, ¶ 10, 220 P.3d 136). This error was

harmless to Mr. Berriel. In fact, the correctness standard was more

favorable to him than the abuse-of-discretion standard we set forth

in this opinion. As explained below, we hold that under either standard of review, the district court did not err in refusing to instruct

the jury on defense of a third person.

II. THE COURT OF APPEALS CORRECTLY HELD THAT THE

DISTRICT COURT DID NOT ERR BECAUSE MR. BERRIEL’S

THEORY IS NOT SUPPORTED BY THE EVIDENCE

¶12 A “[d]efendant is entitled to have the jury instructed on

[the defense’s] theory of the [case] if there is any basis in the evidence to support that theory.” State v. Brown, 607 P.2d 261, 265 (Utah

1980). Mr. Berriel contends that the record in this case supports his

theory that he stabbed Luis in defense of Rachel. 

¶13 Under Utah Code section 76-2-402(1)(a), “[a] person is

justified in threatening or using force against another when and to

the extent that the person reasonably believes that force or a threat

of force is necessary to defend the person or a third person against

another person’s imminent use of unlawful force.”2

 “When interpreting a statute, we assume, absent a contrary indication, that the legislature used each term advisedly according to its ordinary and usually accepted meaning.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011

UT 50, ¶ 14, 267 P.3d 863 (internal quotation marks omitted). The

key terms in section 76-2-402 for purposes of this case are “imminent” and “necessary.”
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Opinion of the Court

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¶14 Black’s Law Dictionary defines “imminent danger” as “[a]n

immediate, real threat to one’s safety” and as “[t]he danger resulting

from an immediate threatened injury.” 450 (9th ed. 2009). Webster’s

Dictionary defines “imminent” as “[a]bout to occur at any moment”

and as “impending.” WEBSTER’S II NEW COLLEGE DICTIONARY 553

(1995). The imminence requirement distinguishes lawful defensive

force from two forms of unlawful force: that which comes too soon

and that which comes too late. “A preemptive strike against a feared

aggressor is illegal force used too soon; and retaliation against a

successful aggressor is illegal force used too late.” George P.

Fletcher, BASIC CONCEPTS OF CRIMINAL LAW 133–34 (1998). Defensive

force “is neither a punishment nor an act of law enforcement” but

rather “an act of emergency that is temporally and materially confined[,] with the narrow purpose of warding off the pending threat.”

Onder Bakircioglu, The Right to Self-Defence in National and International Law: The Role of the Imminence Requirement, 19 IND. INT’L &

COMP.L.REV. 1, 21 (2009). Webster’s Dictionary defines “necessary”

as “[a]bsolutely required,” “indispensable,” and “[u]navoidably

determined by prior conditions or circumstances.” WEBSTER’S IINEW

COLLEGE DICTIONARY 731 (1995). The necessary requirement distinguishes wanton violence from force that is crucial to averting an

unlawful attack. Force is justifiable under section 76-2-402 only if a

reasonable belief in the imminence of unlawful harm and in the

necessity of defensive force coincide with the defendant’s use of

force.

¶15 In this case, Mr. Berriel argues that three pieces of evidence

support his theory that he reasonably believed Rachel was in imminent danger at the time of the stabbing: (1) Rachel’s phone call for

help; (2) the fact that at the time of the stabbing, Rachel was still in

Luis’s presence and that Luis instructed Mr. Berriel to “stay out of

it”; and (3) Luis’s “violent character and his history of violence toward” Rachel.

¶16 We agree that Rachel’s phone call for help suggested that

she was in imminent danger at the time of the call. However, intervention by Mr. Berriel at that time was impossible because he was in a

different location than Rachel. When Mr. Berriel encountered Rachel

and Luis some time after the phone call, he had no basis for reasonably believing that Rachel continued to be in “imminent” danger or

that it was “necessary” for him to stab Luis. As the court of appeals

summarized,

when Rachel and Luis arrived at their residence . . . they

did not appear even to be arguing. There was no evi-
STATE v. BERRIEL

Opinion of the Court

3

 Although our analysis focuses on whether the evidence supports

a conclusion that Mr. Berriel reasonably believed his use of force was

necessary to defend Rachel from imminent harm, Mr. Berriel

appears to admit that he may not have even subjectively held this

belief. In his opening brief, Mr. Berriel states that en route to Rachel’s

house, he called her friend Krissy and told her “to get Rachel away

from the house.” Thus, he seems to concede that he drove to the

house to confront Luis, not to rescue Rachel from any immediate

harm.

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dence that Luis, during the time he could have been

observed by Berriel, had threatened, touched, harmed,

or even approached Rachel in any way, nor had he exhibited any weapons. In fact, from the point at which he

emerged from the car, Luis’s attention was directed entirely at Berriel, who was coming at him with a

knife. . . . Rachel was at least fifteen feet away and out

of the path of the confrontation.

Berriel, 2011 UT App 317, ¶ 5. We agree with the court of appeals

that, on these facts, Mr. Berriel could not have reasonably believed

that Rachel was in imminent danger at that time or that his stabbing

of Luis was necessary to defend her.3

¶17 In dissent, Judge Thorne reasoned that “once Berriel had

a reasonable basis to believe that Rachel was in imminent danger

due to her phone call, his actions in her defense were potentially

justifiable under Utah Code section 76-2-402 until such time as

Berriel had reason to believe that the danger to Rachel had passed.”

Id. ¶ 23 (Thorne, J., concurring and dissenting). We disagree. An

aggressor’s act of violence does not give a would-be rescuer a continuing license to attack the aggressor at any time until the would-be

rescuer is assured of the victim’s safety. As the majority of the court

of appeals explained, “it is the imminence of harm to another that is

central to the legal justification of violence to prevent it; otherwise,

this humane law of justification could be extended to countenance

retribution or vigilantism.” Id. ¶ 6 (majority opinion). Given the

abusive relationship between Luis and Rachel, there might never

have come a time when Mr. Berriel “had reason to believe that the

danger to Rachel had passed.” Thus, while Mr. Berriel’s ongoing

concern for Rachel’s safety was appropriate, his assault on Luis at a

time when Luis was not harming or threatening Rachel was not

justifiable.
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Opinion of the Court

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¶18 This case is analogous to State v. Hernandez, 861 P.2d 814

(Kan. 1993), in which the Kansas Supreme Court ruled that a defendant who killed his sister’s abusive husband was not entitled to a

jury instruction on defense of a third person. The husband had

abused the sister throughout their relationship and had even threatened to take her life. Id. at 816–17. The killing of the husband occurred at the industrial plant where the defendant, the sister, and the

husband were all employed. Id. at 816–18. On the morning of the

killing, the husband “told [the sister] that she had until 11 o’clock

that morning to make up her mind.” Id. at 817. Upon learning of this

confrontation, the defendant feared the husband would harm or kill

the sister at eleven o’clock. Id. Sometime after nine o’clock, the defendant retrieved a gun from his car and invited the husband outside to talk. Id. When the defendant thought he saw the husband

reaching for a knife, the defendant shot the husband. Id. Having

survived the initial attack, the husband said, “Now, I'm gonna kill

you too” and began running toward the plant. Id. at 818. Thinking

that the word “too” indicated that the husband intended to kill the

defendant’s sister, the defendant continued to shoot at the husband

as he ran toward and into the plant. Id. The husband died from the

gunshot wounds. Id.

¶19 The Kansas Supreme Court concluded that “a rational

factfinder could not find that [the defendant] acted in defense of his

sister . . . at the time he shot [the husband]” because the defendant,

“who was armed, approached [the husband], asked him to come

outside, and then provoked the conflict.” Id. at 820. “[T]he only imminent danger was that created by [the defendant] himself.” Id. The

court held that “[t]he history of violence” and the threat of future

harm, “could not turn the killing into a situation of imminent danger.” Id.

¶20 Similarly, we conclude that Luis’s past abuse of Rachel and

the likelihood of future abuse cannot justify Mr. Berriel’s assault on

Luis. Like the defendant in Hernandez, Mr. Berriel armed himself,

approached the abusive partner, and provoked a violent conflict. See

id. at 820. Mr. Berriel is correct that under section 76-2-402(5), the

aggressor’s “prior violent acts or violent propensities” and “any

patterns of abuse or violence in the parties’ relationship” are relevant

to a jury’s assessment of whether a defendant reasonably believed

harm was imminent. However, relevancy and sufficiency are distinct

concepts. We agree with the Kansas Supreme Court that, standing

alone, a history of violence or threats of future violence are legally

insufficient to create “a situation of imminent danger.” Id. at 820.

And we see no other facts in the record which, taken together with
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Opinion of the Court

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Luis’s history of violence, render erroneous the district court’s refusal to instruct the jury on defense of a third person.

CONCLUSION

¶21 We agree with the court of appeals that there is no basis in

the evidence to support Mr. Berriel’s theory that he acted in defense

of Rachel when he stabbed Luis. Thus, we affirm the court of

appeals’ holding that the district court did not err in refusing to

instruct the jury on defense of a third person.