                   This opinion is subject to revision before final
                          publication in the Pacific Reporter

                                    2019 UT 5


                                      IN THE

          SUPREME COURT OF THE STATE OF UTAH

                                STATE OF UTAH,
                                  Respondent,
                                         v.
                         TIMOTHY JAMES TRUJILLO,
                               Petitioner.

                               No. 20170615
                           Filed January 29, 2019

               On Certiorari to the Utah Court of Appeals

                        Third District, Salt Lake
                     The Honorable Vernice Trease
                            No. 131907893

                                   Attorneys:
   Sean D. Reyes, Att’y Gen., Jeanne B. Inouye, Asst. Solic. Gen.,
                  Salt Lake City, for respondent
Nathalie S. Skibine, Christopher Jones, Salt Lake City, for petitioner


       CHIEF JUSTICE DURRANT authored the opinion of the Court, in
        which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
             JUSTICE PEARCE and JUSTICE PETERSEN joined.


   CHIEF JUSTICE DURRANT, opinion of the Court:

                                 Introduction
    ¶1 Timothy James Trujillo challenges his conviction under
Utah’s witness retaliation statute.1 This statute makes it a crime to
direct a threat of harm or a harmful action against a witness or a

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   1   UTAH CODE § 76-8-508.3.
                           STATE v. TRUJILLO
                         Opinion of the Court

person closely associated with that witness as retaliation against that
witness. It is undisputed in this case, however, that the witnesses—
who were the subject of the alleged threat—were not present when
Mr. Trujillo made the threat. And the State has not argued that
Mr. Trujillo intended to have someone relay the threat to the
witnesses, nor that it was likely to be relayed to them under the
circumstances. So we must decide whether the statute criminalizes
threats a person makes regarding a witness outside the witness’s
presence and without an intention to have the threat communicated
to the witness. We conclude that it does not.
    ¶2 Additionally, Mr. Trujillo argues that the district court
abused its discretion by admitting evidence of Mr. Trujillo’s
affiliation with the Familia Para Siempre gang. Because our holding
regarding the witness retaliation statute moots this issue, we need
not address it.
                             Background
   ¶3 Neither party disputes the facts underlying the legal issues
in this case. While on patrol one evening, a police officer
encountered an intoxicated minor who appeared to have been
assaulted. Although there were several people nearby, the officer
determined that none of them was the culprit. He cited the minor for
underage drinking and left. Later that night, the officer returned to
the scene after receiving a report of a man wielding a knife.
   ¶4 Upon his return, the officer saw two groups of people
arguing. One of these groups included the minor encountered
previously, the minor’s brother, Mr. Trujillo, and another man. The
other group consisted of three or four men who lived nearby
(neighbors). The officer detained the minor and his brother and told
Mr. Trujillo and the other man to leave. At this point, additional
police officers arrived on the scene to act as backup, which allowed
the first officer to search the scene for evidence. He found three
butcher knives. Believing that these knives could possibly belong to
Mr. Trujillo, the officer sent the backup officers to search for him.
    ¶5 The backup officers located Mr. Trujillo and the other man,
but were unable to speak with them before they ran inside a nearby
house. The officers followed, knocked on the door, and announced
that they were police officers, but they received no response. Fearing
the men might retrieve weapons, the officers kicked down the door.
The officers arrested Mr. Trujillo and the other man and then
confirmed their identities with the first officer. The first officer then
informed Mr. Trujillo and the other man that they were being
charged with aggravated assault.
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   ¶6 At this point, Mr. Trujillo began to argue with the officers
and proclaim his innocence. After Mr. Trujillo mentioned the
neighbors, the officers told him that the neighbors had not been
involved in the minor’s assault, that they were trying to help the
minor, and that Mr. Trujillo should “stay away from them.”
Mr. Trujillo responded by saying that “if I’m being charged with
[aggravated assault],” then “my boys will be paying them a visit,
[and] and it’s [the officers’] fault.” Mr. Trujillo repeated this several
times before continuing, “Do you expect me to go to . . . jail and
nothing happen?”
    ¶7 The State charged Mr. Trujillo with one count of retaliation
against a witness, victim, or informant under the witness retaliation
statute.2 Following his bindover on the charge, Mr. Trujillo filed a
motion to quash, arguing that the State did not present sufficient
evidence that he made a threat of harm. The trial court denied the
motion. Later, the State filed a motion in limine, seeking to introduce
evidence of Mr. Trujillo’s gang affiliation because of its importance
in demonstrating that his comments constituted a threat of harm.
The trial court granted the motion. At trial, the State called one of the
backup officers as an expert witness, and he testified as to the history
of gangs in prison, gang culture generally, and Mr. Trujillo’s role as a
leader in the gang with which he was affiliated. The jury convicted
Mr. Trujillo, and the trial court sentenced him to an indeterminate
prison term not to exceed five years. He appealed to the court of
appeals.
    ¶8 Mr. Trujillo made three arguments before the court of
appeals. First, he argued that there was insufficient evidence to
support a conclusion that his statements constituted a threat.3
Second, he argued that under the plain language of the witness
retaliation statute, a threat cannot be directed against a witness
unless the threat is communicated to the witness. 4 Third, he argued
that the district court abused its discretion by allowing evidence of
Mr. Trujillo’s gang affiliation.5 The court of appeals denied all three

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   2 Although Mr. Trujillo was also charged with aggravated assault
in a separate case, the charge was later dismissed.
   3   State v. Trujillo, 2017 UT App 116, ¶ 7, 400 P.3d 1213.
   4   Id. ¶ 8.
   5   Id. ¶ 9.


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claims.6 Mr. Trujillo petitioned for a writ of certiorari, which we
granted. We have jurisdiction pursuant to Utah Code section 78A-3-
102(3)(a).
                           Standard of Review
    ¶9 Mr. Trujillo raises two issues before us. First, he asks us to
determine whether the court of appeals erred in concluding that the
witness retaliation statute criminalizes a threat that was not
communicated, or intended to be communicated, to the intended
target of that threat. Second, he asks us to consider whether the court
of appeals erred in affirming the district court’s determination that
rule 403 of the Utah Rules of Evidence did not preclude evidence of
Mr. Trujillo’s gang affiliation. “On certiorari, we review the decision
of the court of appeals for correctness.”7 In doing so, we give no
“deference to its conclusions of law.”8
                                 Analysis
    ¶10 Mr. Trujillo argues that the court of appeals incorrectly
interpreted the requirements of the witness retaliation statute. That
court interpreted the statute as requiring only that a threat be made
regarding the witness.9 Mr. Trujillo, in contrast, interprets the plain
language of the statute as requiring threats to reach, or at least be
intended to reach, the targeted witness. We agree with Mr. Trujillo
and conclude that the witness retaliation statute only criminalizes
threats that the threat-maker intended to convey to the threat-target.
   ¶11 Additionally, Mr. Trujillo argues that the district court
abused its discretion by admitting evidence of his affiliation with the
Familia Para Siempre gang. Because our holding regarding the
witness retaliation statute moots this issue, we need not address it.
    ¶12 Mr. Trujillo argues that the plain meaning of the witness
retaliation statute requires, at a minimum, that the person who
makes a threat against a witness intend to communicate the threat to
that witness. The State argues that the statute criminalizes the
making of threats regarding a witness. We agree with Mr. Trujillo.

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   6   Id. ¶ 23.
   7   State v. Hansen, 2002 UT 125, ¶ 25, 63 P.3d 650 (citation omitted).
   8 State v. Lambdin, 2017 UT 46, ¶ 11, 424 P.3d 117 (citation
omitted).
   9   State v. Trujillo, 2017 UT App 116, ¶ 14, 400 P.3d 1213.


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                           Opinion of the Court

    ¶13 When interpreting a statute, “we seek to give effect to the
intent of the Legislature.”10 “To ascertain that intent, we look first to
the text of the statute within its context.”11 In doing so, we
acknowledge that “while the ordinary meaning of a word is
powerful evidence in understanding statutory text,” our aim is to
determine a word’s meaning in the context of the statute as a
whole.12
   ¶14 The witness retaliation statute makes it a crime to make a
threat or cause harm and to direct that threat or harmful action
against a witness as retaliation or retribution:
         A person is guilty of the third degree felony of
         retaliation against a witness, victim, or informant if,
         believing that an official proceeding or investigation is
         pending, is about to be instituted, or has been
         concluded, he: (a)(i) makes a threat of harm; or (ii)
         causes harm; and (b) directs the threat or action: (i)
         against a witness or an informant regarding any official
         proceeding, a victim of any crime, or any person
         closely associated with a witness, victim, or informant;
         and (ii) as retaliation or retribution against the witness,
         victim, or informant.13
In other words, under the statute it is a crime (1) to make a threat of
harm or cause harm and (2) direct the threat or harmful action
against a witness “as retaliation or retribution,” if (3) the person
making the threat or causing the harm does so while “believing that
an official proceeding or investigation is pending, is about to be
instituted, or has been concluded.”14




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   10   State v. Rasabout, 2015 UT 72, ¶ 10, 356 P.3d 1258.
   11   Id.
   12 Id.; see also Biedermann v. Wasatch Cty., 2015 UT App 274, ¶ 17,
362 P.3d 287 (explaining that when a “term has more than one
ordinary meaning, we interpret it ‘based upon the context in which it
is used’” (citation omitted)).
   13   UTAH CODE § 76-8-508.3(2).
   14   Id.


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                           Opinion of the Court

   ¶15 The State argues that a person violates the statute if the
person makes a threat of harm regarding a witness, even if the
witness is not present, and the threat-maker did not intend the
witness to hear it. The State does not support this argument with its
own textual analysis of the statutory language. Instead, it refers us to
the court of appeals’ decision, which focused on the meaning of the
word “against.”15 According to the court of appeals, “against” is
used in the statute to mean “in opposition or hostility to.”16 With this
definition in mind, the court of appeals concluded that the statute “is
devoid of any language suggesting that the threat must be made
with the intent that it reach the witness.”17
    ¶16 Mr. Trujillo, on the other hand, argues that the text of the
statute requires that the threatening words reach, or at least be
intended to reach, their target. In support, he points to the plain
meaning of the phrase “as retaliation or retribution” to suggest that
the statute criminalizes only threats that a person communicates—
or, alternatively, intends to communicate—to a witness cooperating
with the justice system.18 Because the meaning of the phrase “as
retaliation or retribution” supports only Mr. Trujillo’s interpretation,
we conclude that the witness retaliation statute only criminalizes
threats that the threat-maker intended to convey to the threat-target.
    ¶17 For a threat against a witness to constitute a criminal
violation under the witness retaliation statute, it must be directed “as
retaliation or retribution against the witness.” Mr. Trujillo argues
that this phrase indicates that a person does not violate the
retaliation statute unless the threat reaches the witness. And,
alternatively, he argues that even if the witness retaliation statute
does not require that the threat reach the witness, it does require that
the person making the threat intend the threat to reach the witness.
Although we do not accept Mr. Trujillo’s first argument, because it



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   15   Trujillo, 2017 UT App 116, ¶ 14.
   16   Id. (citation omitted) (internal quotation marks omitted).
   17   Id.
   18 Mr. Trujillo also argues that the plain meaning of the phrases
“threat” and “directs against” supports his proposed interpretation
of the statute. Because we do not find these arguments helpful to our
analysis, we do not address them.


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                             Opinion of the Court

would render one component of the witness retaliation statute
superfluous, we agree with his second argument.
    ¶18 Mr. Trujillo argues that the phrase “as retaliation or
retribution against the witness” requires that the witness actually
hear the threat. According to Mr. Trujillo, this is so because the
definitions of the words “retaliation” and “retribution” both require
that some type of “harm in return,” “punishment,” or “repayment”
occur. Because there is no “harm in return,” “punishment,” or
“repayment” when the witness is unaware of the threat, Mr. Trujillo
argues, the statute necessarily requires that the witness hear the
threat and therefore be harmed by it. But this argument fails because
nothing in the language of the statute requires that the threat-maker
successfully retaliate against the witness.
    ¶19 As it is currently written, the subject of the operative
sentence in the witness retaliation statute is the “person” who makes
the threat.19 And a violation of the statute occurs when the
threat-maker (the subject) directs the threat against a witness “as
retaliation or retribution.”20 Importantly, “as retaliation or
retribution” operates as an adverbial phrase that modifies the verb
phrase “direct against.” So the statute is violated where the
threat-maker (the subject) directs the threat as retaliation, not
necessarily where the witness (the indirect object) is retaliated
against. Because it is possible for a person to direct a threat against a
witness without the witness hearing the threat—and this remains
possible even where the person directs the threat as a form of
retaliation—the statute does not require that the witness actually
hear the threat. Accordingly, Mr. Trujillo’s first argument related to
the meaning of the phrase “as retaliation or retribution” fails.
    ¶20 But Mr. Trujillo also argues that even if the witness
retaliation statute does not require that the threat reach the witness,
it does require that the person making the threat intend the threat to
reach the witness. This is a subtle, yet important distinction. And it is
a distinction that is supported by the phrase “as retaliation or
retribution.”




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   19   UTAH CODE § 76-8-508.3(2).
   20   Id. § 76-8-508.3(2)(b)(ii).


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                          Opinion of the Court

    ¶21 Black’s Law Dictionary defines “retaliation” as “[t]he act of
doing someone harm in return for actual or perceived injuries or
wrongs; an instance of reprisal, requital, or revenge.”21 And it
defines “retribution” as “[p]unishment imposed for a serious
offense” or “[s]omething justly deserved; repayment; reward.”22
Both of these words suggest that the person retaliating intends the
harm to actually affect the target of the retaliation or retribution.
    ¶22 This interpretation is further supported by the legislature’s
inclusion of the preposition “as” at the beginning of the phrase.23 By
drafting the statute so that the threat-maker must make the threat as
retaliation, the legislature conveyed a different meaning than it
would have if it had drafted the statute to criminalize a defendant’s
threat of retaliation, or threat to retaliate.24 “As,” when used as it is in
the statute, means “in the capacity, character, condition, or role of.”25
So when a person makes a threat as retaliation, the threat operates as
the form of retaliation against the intended target.
   ¶23 And if the threat operates as the form of retaliation, then the
person retaliating must intend the threat to cause harm or punish the
person who is the target of the threat. This is so because “retaliation”
and “retribution” mean an act of either harm or punishment done in
response to another person’s action,26 and a threat cannot be an act of
harm or punishment against a person unless the threat actually
reaches that person. It follows, therefore, that a person who makes a
threat as retaliation must intend that the threat reach the targeted


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   21   Retaliation, BLACK’S LAW DICTIONARY (10th ed. 2014).
   22   Retribution, BLACK’S LAW DICTIONARY (10th ed. 2014).
   23 See State v. Stewart, 2018 UT 24, ¶ 12, ---P.3d--- (“We ‘presume
that the legislature used each word advisedly and read each term
according to its ordinary and accepted meaning.’” (citation
omitted)).
   24 A threat of retaliation, or a threat to retaliate, would be a threat
to retaliate in the future. If the person making the threat does not
intend it to reach the subject of the threat, then it cannot be said that
the person made the threat as retaliation.
   25    As, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed.
1998).
   26   See supra ¶ 21.


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witness.27 Accordingly, we hold that the phrase “as retaliation or
retribution” limits the scope of the “threat” prong of the witness
retaliation statute to those instances where a person makes a threat
and intends it to reach the targeted witness.28
    ¶24 In contrast, the State argues that this phrase “merely
required the State to prove the reason [Mr. Trujillo] made the
threat.” In other words, the State claims that the phrase “as
retaliation or retribution” includes those instances where the
threat-maker makes a threat because of a desire to retaliate against
the witness. Under this interpretation, the threat is not a form of
retaliation; it is an expressed desire to retaliate in the future. But as
we have explained above, this interpretation is contradicted by the
legislature’s use of the word “as,” which limits the scope of the
statute to those instances where the threat-maker makes the threat as
a form of retaliation against the threat’s target. Accordingly, the
State’s proposed interpretation is not supported by the plain
language of the statute.
   ¶25 Because the phrase “as retaliation or retribution” requires, at
the very least, that the threat-maker intend to communicate the
threat to the threat’s target, we reverse Mr. Trujillo’s conviction
under the witness retaliation statute.
                              Conclusion
    ¶26 The witness retaliation statute makes it a crime to direct a
threat or a harmful action against a witness as retaliation or
retribution. Because the phrase “as retaliation or retribution”

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   27When the witness retaliation statute is interpreted in this way,
Mr. Trujillo did not make a threat as retaliation against the
neighbors. He either made a threat as retaliation against the police,
or he made a threat to retaliate against the neighbors in the future.
Neither theory was the basis for Mr. Trujillo’s conviction in this case.
   28 We note that the language of the statute encompasses threats
directed against “a witness” as well as threats directed against “any
person       closely      associated       with      a       witness.”
UTAH CODE § 76-8-508.3(2). So under the statute the subject of the
threat could be the witness or any person closely associated with the
witness, as long as the threat is made as a form of retaliation against
the witness—or in other words, was made with the intent that it reach
the witness.


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                        Opinion of the Court

necessarily limits the scope of the statute to those instances where a
threat is made as an intended form of retaliation or retribution, we
conclude that the statute criminalizes only those threats that the
threat-maker intended to be communicated to the witness.
Accordingly, we reverse Mr. Trujillo’s conviction.




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