ROTH, Judge.
¶1 Darren Berriel appeals his convictions for aggravated assault, a third degree felony, see Utah Code Ann. § 76-5-103(1)(b), (3) (2008) (current version at id. § 76-5-103(1)(a), (2)(a) (Supp. 2011)), and possession of a deadly weapon with intent to assault, a class A misdemeanor, see id. § 76-10-507 (2008). First, he argues that the trial court erred in refusing to instruct the jury on justification for the use of force in defense of another as a defense to the aggravated assault charge. Second, he contends that the trial court erroneously denied his motion to merge the weapon possession conviction with the aggravated assault conviction. We affirm the trial court's decision to deny the requested instruction but vacate the conviction for possession of a deadly weapon with intent to assault.
¶2 Berriel was charged with stabbing the victim, Luis, with a knife and with possession of the knife with the intent to commit the assault. Approximately three weeks before the incident from which these charges arose, Berriel's friend, Rachel, confided in him that Luis, her boyfriend, was physically abusing her.
¶3 In the meantime, Luis and Rachel had gone to pick up Rachel's younger brother. Rachel testified that the entire trip took fifteen to twenty minutes.
¶4 Berriel's first claim of error is that the trial court refused to instruct the jury on his defense that the attack on Luis was justified by the need to defend another person, Rachel. See Utah Code Ann. § 76-2-402(1) (2008) ("A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other's imminent use of unlawful force.") (current version at id. § 76-2-402(1)(a) (Supp. 2011)). We review the trial court's denial of a requested jury instruction as a question of law for correctness. See State v. Gallegos, 2009 UT 42, ¶ 10, 220 P.3d 136. In an analogous situation, the Utah Supreme Court addressed the circumstances that entitle a defendant to a jury instruction on self-defense, which is codified, along with defense of another, in Utah Code section 76-2-402(1) as a justification defense:
State v. Maestas, 564 P.2d 1386, 1390 (Utah 1977) (quoting State v. Castillo, 23 Utah.2d 70, 457 P.2d 618, 620 (1969)); see also State v. Garcia, 2001 UT App 19, ¶ 8, 18 P.3d 1123 (observing that it is the defendant's burden to "provide some reasonable basis for the jury to conclude" that the action was justified, though the evidence may be presented by either the prosecution or the defense (emphasis omitted)).
¶5 The trial court decided there was a sufficient basis for a self-defense instruction in this case because one witness testified that Luis first ran at Berriel. Unlike the self-defense claim, however, there is no evidence capable of creating a reasonable doubt that Berriel may have been acting in defense of Rachel.
¶6 Thus, while there was some evidence that Berriel had information that led him to believe Luis had been violent toward Rachel in the past, even the very recent past, under the circumstances at the time he assaulted Luis with a knife, a jury could not reasonably have concluded that the nature or immediacy of the danger to Rachel reasonably justified a belief that it was probable that Luis was about to use "unlawful force" against her. And 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. See generally Utah Code Ann. § 76-2-402. Therefore, we affirm the trial court's decision not to instruct the jury on defense of another as a justification for Berriel's conduct.
¶7 We turn now to Berriel's contention that the possession of a deadly weapon with intent to assault conviction should have merged
Utah Code Ann. § 76-1-402(1) (2008). Specifically, "[a] defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense." Id. § 76-1-402(3). We review whether a crime is a lesser included offense of another as a question of law for correctness. See State v. Chukes, 2003 UT App 155, ¶ 9, 71 P.3d 624.
¶8 To determine whether one offense is included within another, we apply a two-phase test. See State v. Ross, 951 P.2d 236, 241 (Utah Ct. App. 1997) (citing State v. Hill, 674 P.2d 96, 97 (Utah 1983)). First, we compare the statutory elements to determine if the lesser offense is proven by the same or less than all the elements required to prove the greater offense, that is, whether the crimes are "such that the greater cannot be committed without necessarily having committed the lesser." See id. (internal quotation marks omitted). If either of the crimes have multiple variations, as in this case, we must also "consider the evidence to determine whether the greater-lesser relationship exists between the specific variations of the crimes actually proved at trial." See id. (internal quotation marks omitted).
¶9 Two of our prior cases provide useful guidance in applying this test. In State v. Ross, 951 P.2d 236 (Utah Ct. App. 1997), the defendant was involved in a forged check cashing scheme, in which he and a male accomplice would pick up a female accomplice to whom they would provide false identification and a forged check. See id. at 237-38. The woman would then cash the check while the men waited in the car; she then returned the cash to the male accomplice, who divided it between them. See id. During the three-week scheme, they cashed, in this manner, thirty-five to forty checks, each worth $300 to $700. See id. The defendant was convicted of forgery and communications fraud, and he appealed, arguing that the forgery offense was included within communications fraud. See id. at 237-38, 241 & n.6. To be guilty of communications fraud, one must "devise[] any scheme or artifice to defraud another" of "property, money, or [other] thing" worth at least $5000 and must "communicate[] directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice." See id. at 241-42 (internal quotation marks omitted). Forgery requires a person to "make[], complete[], execute[], authenticate[], issue[], transfer[], publish[], or utter[]" a "check with a face amount of $100 or more" with the "purpose to defraud" or "knowledge that he is facilitating a fraud." See id. at 242 (internal quotation marks omitted).
¶10 After comparing the elements, we determined that under at least one variation of the offenses, forgery was a lesser included offense of communications fraud. See id. Under that variation, a defendant would have to have devised a scheme that involved uttering or transferring forged checks of at least $100 and "communicated with another person for the purpose of executing the [fraudulent] scheme by uttering or transferring a forged check worth at least $100" with the goal of obtaining at least $5000 total. See id. We thus considered whether, under the specific variations of the crimes presented and proven at trial, forgery was an included offense. See id. The State conceded that it had told the jury that it could find that both a "communication" required for communications fraud and an "utterance" required for forgery occurred when the defendant passed the check to the female accomplice. See id. It argued on appeal, however, that the conviction could be upheld because there was evidence in the record from which the jury could have found an independent basis for the communications fraud conviction. See id. We disagreed, observing that the jury instructions perpetuated the State's theory that the "communication" and the "utterance" could both be the passing of the written check because they defined "communication" as including a writing such as a check. See id. at 245. Moreover, the jury was never asked to find a "communication" separate from the passing of the check. See id. Without a separate factual basis for each conviction, we determined that forgery was a lesser included offense of communications fraud and vacated the forgery conviction. See id.
¶11 A similar issue arose in State v. Chukes, 2003 UT App 155, 71 P.3d 624, in which this court considered whether forgery was a lesser included offense of identity fraud. See id. ¶ 16. We agreed with the parties that some variations of identity fraud included forgery because the forgery elements of "mak[ing] or execut[ing] a writing purporting to be an existent person" "with a purpose to defraud" could fall within the scope of the "us[ing] or attempt[ing] to use [personal] information with fraudulent intent" elements of identity fraud. See id. ¶¶ 16-18 (internal quotation marks omitted). Thus, we examined the evidence presented at trial to determine if the convictions of each offense were based on separate factual evidence. See id. ¶ 19. At trial, the State did not argue to the jury that the identity fraud was accomplished by acts different from those necessary to commit forgery. See id. ¶ 23. Nor did the jury instructions explicitly inform the jury that the forged writings themselves could not also fulfill the "us[ing] or attempt[ing] to use [personal] information" element of identity fraud. See id. ¶¶ 16, 26. Thus, having determined that the "the [arguments,] instructions[,] and evidence at trial" did not inform a reasonable jury that it had to base each conviction on separate evidence, we vacated the defendant's conviction for forgery as a lesser included offense of identity fraud. See id. ¶¶ 22-23, 27 (alterations in original) (internal quotation marks omitted).
¶12 Using the approach employed in Ross and Chukes, we now consider whether Berriel was appropriately convicted of both aggravated assault and possession of a deadly weapon with an intent to assault. A defendant is guilty of one variation of third degree aggravated assault if he commits an assault by using a dangerous weapon. See Utah Code Ann. § 76-5-103(1)(b), (3) (2008) (current version at id. § 76-5-103(1)(a), (2)(a) (Supp. 2011)). A "[d]angerous weapon" includes "any item capable of causing death or serious bodily injury," a definition that clearly includes most knives. See id. § 76-1-601(5)(a) (2008). The defendant must commit such acts intentionally, knowingly, or recklessly. See id. § 76-5-103 (specifying no culpable mental state for aggravated assault); id. § 76-2-102 (providing the culpable mental state for crimes where the definition of the offense does not specify one). A defendant is guilty of possession of a deadly weapon with intent to assault, a class A misdemeanor, if he possesses a dangerous weapon
¶13 Although aggravated assault involving the use of a dangerous weapon may be committed intentionally, knowingly, or recklessly, see Utah Code Ann. § 76-5-103(1)(b); id. § 76-2-102, the State focused its case at trial on evidence that Berriel both intended to assault Luis and intentionally did so. In particular, the State called a friend of Rachel's, who testified that Berriel had called her prior to the encounter and instructed her to get Rachel away from the house. Three of Berriel's friends also testified for the State. Their testimonies presented a picture for the jury of the events leading up to the assault: that Berriel received a call from Rachel, in which she was screaming and crying for Berriel's help and his protection from Luis; that Berriel had indicated to at least one friend that he needed to go to Rachel's house because Luis was beating her; that he immediately turned the car around and drove to Rachel's house; and that Berriel was quiet during the drive, as though he was "thinking through" his response to Rachel's request. When they arrived at Rachel and Luis's house, no one was home. As soon as Luis arrived though, which was at least fifteen minutes after Rachel's call, Berriel ran at Luis with a knife. The encounter lasted only a few moments during which Berriel stabbed Luis and then fled. In the car after the assault, Berriel admitted stabbing Luis with the knife. There was no testimony that suggested that the stabbing was an accident or was recklessly inflicted. Further, the instruction the jury received regarding culpable mental state discussed only intent:
(Emphasis added.) Thus, under the facts of this case, the weapon possession conviction is a lesser included offense of the aggravated assault conviction unless the jury could have found that Berriel possessed the knife with intent to assault from evidence separate and apart from the facts of the assault itself.
¶14 The State asserts that there is such an independent basis for the weapon possession conviction. "In essence, the State [is] argu[ing] that the evidence establishes that the [possession] and [aggravated assault] convictions were separate acts," based on separate facts sufficient to support each conviction. See Chukes, 2003 UT App 155, ¶ 20; id. ¶ 21 (stating that multiple acts may be charged as separate offenses if one could be committed without necessarily committing the other or they are separated by time and space sufficient to create an independent ground for a conviction on each offense); see also State v. Roth, 2001 UT 103, ¶ 8, 37 P.3d 1099 (upholding separate convictions for possession of methamphetamine and possession of equipment or supplies with intent to engage in a clandestine laboratory operation where the special verdict form indicated that the clandestine laboratory conviction was based on possession of manufacturing equipment rather than the methamphetamine that formed the basis of the possession conviction).
¶15 The record evidence, however, does not support a conclusion that the convictions were based on separate conduct. For example, there is nothing in the record that shows that Berriel was in possession of the knife with intent to assault prior to the assault itself. Rather, the witnesses first place Berriel in possession of a knife as he is running toward Luis, that is, in the course of actually assaulting him. Indeed, the State itself, in its closing statement, told the jurors that they might not be able to determine precisely when Berriel formed his intent to assault Luis, thus conceding by implication that the same limitation applied to his possession of the knife with the requisite intent:
(Emphases added.) Although the jury may have been able to draw an inference that Berriel arrived with the knife based on the fact that he came in his own car and the absence of any testimony that Berriel obtained the knife upon arriving, such an inference does not constitute independent evidence sufficient to uphold separate convictions because it is necessarily derived from the direct evidence of the assault itself, i.e., Berriel's possession of the weapon as he charged at Luis.
¶16 Moreover, the jury was not specifically instructed that its convictions for each offense had to be based on separate evidence. Our precedent is clear that not only must separate convictions for offenses arising out of the same criminal episode be based on different facts but that the jury must be so instructed. See generally State v. Chukes, 2003 UT App 155, ¶¶ 23, 26-27, 71 P.3d 624 (vacating the defendant's conviction for forgery where "the [arguments,] instructions[,] and evidence at trial" did not inform the jury that "it had to find an additional element beyond the elements of [identity fraud] before it could convict defendant of forgery," that is, the convictions could not be based on the same forged writings (alterations in original) (internal quotation marks omitted)); State v. Ross, 951 P.2d 236, 242 (Utah Ct. App. 1997) (concluding that the forgery offense was included within the communications fraud conviction where the jury was not "`required to find'" that the communications fraud was based on separate acts (quoting State v. Bradley, 752 P.2d 874, 878 (Utah 1988) (per curiam))). Cf. Roth, 2001 UT 103, ¶ 8 (upholding separate convictions where the jury filled out a special verdict form that indicated that the clandestine laboratory conviction was based on the defendant's possession of equipment rather than on the possession of the methamphetamine that formed the basis of the possession conviction). Nothing in the jury instructions informed the jury that the possession conviction could not be based simply on Berriel's possession of the knife during the assault, nor did the evidence or assertions of counsel clarify the matter. Thus, because "the [arguments,] instructions[,] and evidence at trial" did not clearly inform the jury that it had to find a separate factual basis for the possession of a deadly weapon with intent to assault conviction beyond the possession necessary to commit the aggravated assault, his conviction for possession of the knife with intent to assault is not independently sustainable. See Chukes, 2003 UT App 155, ¶ 23 (alterations in original) (internal quotation marks omitted). We therefore vacate Berriel's conviction for possession of a deadly weapon with an intent to assault.
¶17 Affirmed in part and reversed in part.
¶18 James Z. Davis, Presiding Judge, concur.
THORNE, Judge (concurring and dissenting):
¶19 I dissent from the majority opinion as to its defense-of-others analysis but concur as to the remainder. I agree with the majority opinion that, under the circumstances of this case, Berriel's conviction for possession of a deadly weapon with intent to assault must be vacated as a lesser included offense of his aggravated assault conviction. However, I disagree with the majority's conclusion that Berriel was not entitled to a jury instruction on defense of others. I would reverse both of his convictions on that basis in addition to vacating the weapons charge on the grounds cited by the majority.
¶20 Pursuant to Utah Code section 76-2-402, "[a] person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force . . . is necessary to defend . . . a third person against another person's imminent use of unlawful force." Utah Code Ann. § 76-2-402(1) (Supp. 2011). The statute expressly assigns the questions of imminence and reasonableness to the "trier of fact" and provides a nonexclusive list of factors to be considered in making that determination. See id. § 76-2-402(5).
¶21 Multiple witnesses testified about a phone call from Rachel to Berriel shortly before the stabbing, informing Berriel that Luis was beating Rachel. One of Berriel's companions testified that Rachel's call prompted the group to go to her house to help her because Luis had been hitting her. Another testified that Rachel was crying because Luis was hitting her. And a third, Scott Carlisle, testified that Rachel was screaming and crying on the phone, that he thought Rachel was being beaten because it had happened before, and that after the phone call Berriel indicated that the group should go to Rachel's house because she was being beaten up.
¶22 A reasonable jury could easily conclude from this testimony that, at the time Berriel spoke with Rachel on the phone, she was in imminent danger and the use of reasonable force in her defense at that moment would have been justified under the statute. The question before us is whether Berriel continued to have a reasonable belief that she remained in imminent danger a short time later,
¶23 In my view, 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.
¶24 Based on this testimony, reasonable jurors could conclude that as soon as Luis arrived, he jumped from his car and charged at Berriel in an angry and hostile manner. These actions raised the additional issue of self-defense, but they also deprived Berriel of any meaningful opportunity to revise his assessment of the ongoing danger to Rachel. Absent such an opportunity, Berriel had insufficient information and opportunity to believe that the threat to Rachel had dissipated and was therefore entitled to act in the continued belief that Rachel remained in danger as well as to defend himself. Carlisle's testimony thus provides some reasonable basis upon which to conclude that Berriel reasonably believed that Rachel remained in danger and that using force against Luis in her defense remained justified.
¶25 In light of the evidence, an instruction on defense of others was critical to Berriel's defense, not only for its potential to provide an independent justification for his presence and subsequent actions, but also as a necessary complement to the self-defense instruction. The jury was instructed that Berriel was not justified in using force in self-defense if he was the "aggressor,"
¶26 I also note that it is highly relevant that the threat to Rachel was one of domestic violence. This court has recognized on multiple occasions that "a domestic violence complaint is one of the most potentially dangerous, volatile arrest situations confronting police." State v. Vallasenor-Meza, 2005 UT App 65, ¶ 16, 108 P.3d 123 (internal quotation marks omitted); see also State v. Comer, 2002 UT App 219, ¶ 25, 51 P.3d 55 (same); State v. Richards, 779 P.2d 689, 691 (Utah Ct. App. 1989) (same). In State v. Vallasenor-Meza, 2005 UT App 65, 108 P.3d 123, police responded to reports of a domestic dispute at the defendant's house. The defendant was initially reluctant to cooperate with the officers, but eventually "explained to the officers that there had been a fight, but the woman involved had since gone to work." Id. ¶ 18. Despite this explanation, the court determined that exigent circumstances justified the officers entering the house without a warrant due to their reasonable belief that "the victim was potentially inside the residence injured or unconscious, and that their immediate intervention was necessary." Id. ¶ 19.
¶27 If the jury was to believe Carlisle's version of events, Berriel's defense-of-others claim seems even stronger than the claim of police exigency in Vallasenor-Meza. Berriel was aware of a history of domestic violence between Luis and Rachel, became aware of a new and potentially ongoing domestic violence incident perpetrated by Luis against Rachel, and went to assist Rachel against that clear threat. When Berriel came into contact with Luis and Rachel, it was not obvious that their hostilities were continuing but it was also not obvious that they had ceased. Berriel did not know if Rachel was "injured or unconscious," see id., if she was being held in Luis's vehicle against her will or under duress of his threats, or if Luis's beating of her would continue as soon as Luis was not busy driving. Importantly, Berriel's ability to confirm that Rachel was no longer in danger was short-circuited by Luis's jumping from the car and running at Berriel-an aggressive act that was entirely consistent with the violence against Rachel that had brought Berriel to the scene in the first place.
¶28 In light of Carlisle's testimony, the interplay between self-defense and defense of others in this case, and the clear and very real danger presented by Luis's repeated acts of domestic violence, Berriel was entitled to his requested instruction on the defense of others.