2021 UT App 46

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ALBERTO HERRERA,

Appellant.

Opinion

No. 20190614-CA

Filed April 15, 2021

Third District Court, Salt Lake Department

The Honorable Elizabeth A. Hruby-Mills

No. 181904680

Nathalie S. Skibine, Elise Lockwood, and Nick 

Falcone, Attorneys for Appellant

Sean D. Reyes and Jeffrey S. Gray, Attorneys

for Appellee

SENIOR JUDGE KATE APPLEBY authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN

concurred.1

APPLEBY, Senior Judge:

¶1 Alberto Herrera appeals his conviction of driving with a 

measurable controlled substance in the body and causing serious 

bodily injury or death. He argues that the district court erred 

when it denied his request to instruct the jury on several lesser

included offenses. We affirm.

 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
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BACKGROUND

¶2 One morning Herrera was driving a car more than ten 

miles per hour over the speed limit. As he reached over to pick 

up a sports drink from the center console, the car veered across 

the center line into oncoming traffic. The car collided, nearly 

head-on, with a pickup truck pulling a trailer loaded with heavy 

machinery. The collision sent both vehicles spinning off the road. 

Herrera suffered some broken bones, but his passenger

ultimately died from her injuries. When police officers 

questioned him about the collision, Herrera explained that the 

car veered into oncoming traffic as he reached to get his drink. 

He also said it seemed that something may have been wrong 

with the alignment, but he did not know.

¶3 When officers searched the car to find the passenger’s 

identification, they discovered methamphetamine and a 

marijuana pipe. A blood draw performed on Herrera revealed 

that the level of methamphetamine in his blood was higher 

than 1,000 nanograms per milliliter.1F

2 But the amount of 

methamphetamine could not be precisely determined because it 

exceeded the maximum the test could precisely ascertain.

¶4 Herrera was charged with several crimes, including the 

charge at issue here—negligently driving with a measurable 

controlled substance in the body and causing serious bodily 

injury or death. During the proceedings, Herrera asked the 

district court to instruct the jury on the lesser included offenses 

of automobile homicide, driving under the influence (DUI) with 

serious bodily injury, and DUI. The court denied the request, 

reasoning that these offenses had an impairment element “that is 

not overlapping with the charge in this matter.” The jury 

 

2. A toxicologist testified at trial that more than 200 nanograms 

per milliliter is a “toxic level” and an amount of 2,000 

nanograms per milliliter can be lethal.
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ultimately convicted Herrera on the controlled substance charge. 

Herrera timely appeals.

ISSUES AND STANDARD OF REVIEW

¶5 Herrera argues the district court erred by denying his 

request to instruct the jury on several lesser included offenses. 

“The refusal to give a requested jury instruction on a claimed 

lesser included offense is a legal determination, which we review 

for correctness.” State v. Simpson, 904 P.2d 709, 711 (Utah Ct.

App. 1995).

ANALYSIS

¶6 When determining whether another crime constitutes a 

lesser included offense of the charged crime, district courts 

employ different analyses depending on which party is 

requesting the lesser-included-offense instruction. A narrower

standard is applied when the prosecutor requests a lesserincluded-offense instruction. “[W]hen the prosecution seeks 

instruction on a proposed lesser included offense, both the legal 

elements and the actual evidence or inferences needed to 

demonstrate those elements must necessarily be included within 

the original charged offense.” State v. Baker, 671 P.2d 152, 156 

(Utah 1983). Thus, “no element may be included in the lesser 

offense that is not included in the greater offense.” Id. (quotation 

simplified). This narrow standard serves to protect a defendant 

from having to defend against a crime for which he was not 

charged, as “his defense against the greater will, of necessity, be 

a defense against the lesser also.” Id.

¶7 But when, as in this case, the defendant is the party 

requesting the jury instruction, what constitutes a lesser

included offense is more expansive. In this situation, there must 

“exist some overlap in the statutory elements of allegedly 

‘included’ offenses.” Id. at 159; see also Utah Code Ann. § 76-1-
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402(3)(a) (LexisNexis 2017) (defining an included offense as one 

“established by proof of the same or less than all the facts 

required to establish the commission of the offense charged”).3

“[W]here two offenses are related because some of their 

statutory elements overlap, and where the evidence at the trial of 

the greater offense includes proof of some or all of those 

overlapping elements, the lesser offense is an included offense 

. . . .” Baker, 671 P.2d at 159. This more expansive test “gives the 

defendant the benefit of the reasonable doubt standard” by 

giving the jury a third option between acquittal and conviction 

when proof of the charged crime is in dispute. See id. at 157.

¶8 Nonetheless, a district court is not required to honor a 

defendant’s request to instruct the jury on a lesser included 

offense “unless there is a rational basis for a verdict acquitting 

the defendant of the offense charged and convicting him of the 

included offense.” Utah Code Ann. § 76-1-402(4). It is not 

enough that there is evidence supporting the lesser included 

offense, but that evidence must at the same time support an 

acquittal of the greater offense. “In determining whether there is 

a ‘rational basis’ for acquitting the defendant of the offense 

charged and convicting him of a lesser included offense, the 

court must, of course, view the evidence and the inferences that 

can be drawn from it in the light most favorable to the defense.” 

State v. Crick, 675 P.2d 527, 532 (Utah 1983).

I. Automobile Homicide

¶9 To determine whether automobile homicide is a lesser

included offense in this case, we start by comparing the elements 

of that offense with the elements of the charged crime. Herrera’s 

 

3. Because the relevant portions of the Utah Code remain 

unchanged from those in effect at the time Herrera committed 

this crime, we cite the current version as a convenience to the 

reader.
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charged crime under the Utah Controlled Substances Act 

required the State to show that while he “knowingly and 

intentionally ha[d] in [his] body any measurable amount of a 

controlled substance,” he “operate[d] a motor vehicle . . . in a 

negligent manner, causing serious bodily injury . . . or the death 

of another.” Utah Code Ann. § 58-37-8(2)(g) (LexisNexis Supp. 

2020). The elements of automobile homicide are met when a 

person “is under the influence of . . . any drug . . . to a degree 

that renders the person incapable of safely operating a vehicle” 

and the person “operates a motor vehicle in a negligent manner 

causing the death of another.” Id. § 76-5-207(2)(a) (2017). Because 

automobile homicide and the charged offense each include 

overlapping elements of operating a vehicle in a negligent 

manner and causing the death of another, automobile homicide 

constitutes a lesser included offense.4

¶10 But as discussed above, the district court is not 

required to instruct the jury on all lesser included offenses. Such

an instruction is given only if “there is a rational basis for a

verdict acquitting the defendant of the offense charged and

convicting him of the included offense.” Id. § 76-1-402(4). 

Regarding automobile homicide and the controlled substance 

charge, the difference between the crimes is the element 

addressing what, precisely, must be proved relative to the 

level of drug present. The controlled substance charge 

 

4. The district court denied Herrera’s request for lesser-includedoffense instructions because the impairment element included in 

each proposed lesser included offense is not an element of the 

charged controlled substance offense. Thus, it appears the court 

mistakenly applied the narrower evaluative standard required

when a prosecutor is the party requesting the lesser-includedoffense instruction. The State recognizes this likelihood on 

appeal and concedes that each of the crimes for which Herrera 

requested additional jury instructions were, indeed, lesser

included offenses under the applicable standard.
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required showing that Herrera “knowingly and intentionally 

ha[d] in [his] body any measurable amount of a controlled 

substance,” id. § 58-37-8(2)(g), while automobile homicide would 

have required a showing that Herrera was “under the influence” 

of a drug, id. § 76-5-207(2)(a). Therefore, the district court was 

not obligated to give the automobile homicide jury instruction 

unless there was a rational basis for a jury to determine that 

Herrera was under the influence of methamphetamine but did

not knowingly and intentionally have a measurable amount of it 

in his system.

¶11 Herrera argues there is evidence from which a jury could 

have inferred he was under the influence of methamphetamine, 

including “evidence of erratic driving,” methamphetamine 

possession, and very high blood test results. But he fails to 

provide some interpretation of the facts under which there 

would be a rational basis for the jury to find both that he was 

under the influence of methamphetamine and that he did not 

knowingly and intentionally have a measurable amount in his 

system. See State v. Baker, 671 P.2d 152, 160 (Utah 1983) (focusing 

on whether “any of those alternative interpretations would 

provide both a rational basis for a verdict acquitting the 

defendant of the offense charged and convicting him of the 

included offense” (emphasis added) (quotation simplified)). And

we do not see any interpretation of the presented facts that 

would fit this requirement.

¶12 Indeed, Herrera recognizes that his driving, drug 

possession, and test results support the elements of both 

offenses. Yet he argues that because the lesser included offense is 

a “better fit” with the evidence presented, the jury had a rational 

basis to acquit him on the charged offense and convict him on 

the lesser offense. But this argument is contrary to both the 

established rule for a lesser-included-offense instruction, see 

Utah Code Ann. § 76-1-402(4) (LexisNexis 2017), and our case 

law addressing that rule:
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If the jury were free to acquit of the greater offense 

and convict of any lesser offense simply because 

the lesser offense had been proved, this would 

allow the jury to preempt the prosecutor’s function 

in charging offenses and the judge’s function in 

imposing sentences. . . . Instruction on lesser 

included offenses in that circumstance would 

confuse the jury as well as invite them to exceed 

their function. 

State v. Crick, 675 P.2d 527, 532 (Utah 1983).

¶13 Herrera’s argument emphasizes the “fundamental policy 

of permitting the jury to find a defendant guilty of any offense 

that fits the facts, rather than forcing it to elect between the 

charges the prosecutor chooses to file and an acquittal.” See State 

v. Hansen, 734 P.2d 421, 424 (Utah 1986). But this concern arises 

only when the jury is confronted with a dilemma because it is 

unconvinced that the charged offense has been proved yet is 

certain that the defendant is guilty of some wrongdoing. See id.

at 424–25 (“Where one of the elements of the offense charged 

remains in doubt but the defendant is plainly guilty of some

offense, the jury is likely to resolve its doubts in favor of 

conviction.” (quotation simplified)). Giving the jury a third 

option in such a situation protects the defendant by giving him 

the benefit of the reasonable doubt standard. See Baker, 671 P.2d 

at 157. And in such a situation, where there is a rational basis for 

the jury to have doubt on elements of the charged offense and 

yet certainty that elements of a lesser offense have been shown, 

the rational basis requirement for providing a lesser-includedoffense instruction would be met. 

¶14 But in a case such as the one before us, where there is no 

rational basis to acquit a defendant on the charged offense but

convict of the lesser offense, the district court is not required to 

give the jury the opportunity to determine which of all the 

proven offenses best fits the facts of the case. “Although . . . the 
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20190614-CA 8 2021 UT App 46

jury has an inherent mercy-dispensing power as an inevitable 

consequence of the jury system, . . . the jury does not have the 

right to find a fact and then refuse to render the verdict which 

such a finding necessarily requires.” Crick, 675 P.2d at 531 

(quotation simplified). The jury may not acquit on the charged 

offense simply because it determines a more fitting offense 

exists, and the court should avoid giving an instruction “that 

would constitute an invitation to the jury to foreswear its duty 

and return a compromise or otherwise unwarranted verdict,” id.

(quotation simplified). The jury’s function is not to determine 

which offense is the “best fit” when the facts meet the elements 

of multiple offenses and when there is not a rational basis to 

both acquit of the greater offense and convict on the lesser 

offense. In short, it was not error for the district court to refuse to 

give a jury instruction on automobile homicide.

II. DUI with Serious Bodily Injury

¶15 Our analysis again starts with comparing the elements of 

the charged offense with those of the proposed lesser included 

offense. The elements of DUI with serious bodily injury are met 

when a person “is under the influence of . . . any drug . . . to a 

degree that renders the person incapable of safely operating a 

vehicle,” id. § 41-6a-502(1)(b), and ”the person has also inflicted 

serious bodily injury upon another as a proximate result of 

having operated the vehicle in a negligent manner,” id. § 41-6a503(2)(a). Both this offense and Herrera’s controlled substance 

charge have overlapping elements of negligent driving and 

causing serious bodily injury, and thus, DUI with serious bodily 

injury constitutes a lesser included offense. But once again, the 

distinguishing element between the offenses is the precise level 

of drug involvement that must be shown—the charged offense 

requiring a measurable amount of drugs in Herrera’s system and 

the lesser included offense requiring that Herrera was under the 

influence. And as we discussed above, there is no interpretation 

of the facts presented to the jury that would provide a rational 

basis for it to conclude that Herrera did not knowingly and 
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20190614-CA 9 2021 UT App 46

intentionally have a measurable amount of methamphetamine in 

his system but was under its influence. Therefore, we also see no 

error in the district court’s refusal to instruct the jury on DUI 

with serious bodily injury.

III. DUI

¶16 The elements of DUI are met when a person operates a 

vehicle while “under the influence of . . . any drug . . . to a 

degree that renders the person incapable of safely operating a 

vehicle.” Utah Code Ann. § 41-6a-502(1) (LexisNexis Supp. 2020). 

This offense overlaps with Herrera’s controlled substance charge

because each offense includes the operation of a vehicle, and

thus, DUI also constitutes a lesser included offense of the 

charged controlled substance offense.

¶17 As to whether there is a rational basis on which a jury 

could convict Herrera of this offense while acquitting him of the 

charged controlled substance offense, he argues that the jury 

rationally could have acquitted him on the controlled substance 

charge if it was unconvinced the State had proved that he drove 

negligently or that his negligent driving caused the collision—

elements that are not required for the DUI offense. But even 

assuming that the rational basis test was met and it therefore 

was erroneous for the court to refuse to instruct on DUI, we are 

unconvinced that any such failure was harmful under the facts 

of this case. See generally State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 

888 (“[H]armless error is an error that is sufficiently 

inconsequential that there is no reasonable likelihood that it 

affected the outcome of the proceedings. Put differently, an error 

is harmful only if the likelihood of a different outcome is 

sufficiently high that it undermines our confidence in the 

verdict.” (citation omitted)).

¶18 Scant evidence in the record supports a determination 

that something other than Herrera’s negligent driving caused the 

collision. Although Herrera argues there might have been some
State v. Herrera

20190614-CA 10 2021 UT App 46

malfunction in the car’s alignment, the only evidence of this 

presented at trial was Herrera’s post-collision explanation to 

officers that he thought maybe the car’s alignment had a 

problem. No evidence other than Herrera’s speculation 

supported the theory that an alignment malfunction caused the 

collision, nor was any evidence presented that alignment 

problems could suddenly cause the car to veer from its lane after

it had maintained for some time its position in the appropriate

lane of travel.

¶19 Furthermore, there was overwhelming evidence to 

support the jury’s determination that Herrera’s negligent driving

caused the collision. The evidence shows that Herrera had been

successfully keeping the car in its appropriate lane for some time 

before the collision, that he was speeding just before the 

collision, that he was reaching to pick up his drink just when the 

car veered, and that the level of methamphetamine in his system

was extremely high. Indeed, for the jury to convict of the lesser

included DUI offense, it would have to believe that Herrera was 

under the influence of methamphetamine “to a degree that 

render[ed him] incapable of safely operating a vehicle.” See Utah 

Code Ann. § 41-6a-502(1)(b). It does not seem reasonably likely 

in such a case that a jury would determine that although Herrera 

was driving under the influence of methamphetamine, speeding, 

and had reached for his drink just as the car veered, that the 

hypothesized alignment issues were the true cause of the car 

suddenly veering into oncoming traffic. Thus, our confidence in 

the verdict is not undermined, and we determine that any error 

in failing to give a DUI jury instruction was harmless.4F

5

 

5. Herrera also argues that the jury may not have believed that 

any negligent driving caused the passenger’s serious injury or 

death, citing some evidence that the passenger may not have 

been properly wearing her seatbelt. But even assuming the 

passenger’s seatbelt was not properly situated on her chest, we

(continued...)
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20190614-CA 11 2021 UT App 46

CONCLUSION

¶20 We determine that the district court did not err in 

denying Herrera’s request to instruct the jury on automobile 

homicide and DUI with serious bodily injury because there was 

no rational basis to acquit him of the charged offense while 

convicting him on either of these lesser offenses. And to the 

extent there was any error in the district court’s refusal to 

instruct the jury on the DUI offense, we find any such error 

harmless under the facts of this case. We therefore affirm.

 

(...continued)

are not persuaded that it is reasonably likely that the jury would 

have found that a misuse of the seatbelt, as opposed to the 

negligent collision, caused her to suffer serious bodily injury and 

death.