               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 sup-
ports 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

with him when he received the call, Rachel was screaming and cry-
ing 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 park-
ing 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 aggra-
vated 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

  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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                        Opinion of the Court

court of appeals affirmed, explaining that “a jury could not reason-
ably 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 dis-
trict 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 correct-
ness 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 defen-
dant’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 defer-
ence 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 fact-
finders 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.



  1
    (...continued)
State v. Berriel, 2011 UT App 317, ¶ 16, 262 P.3d 1212. We have not
been asked to review the vacatur.

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                         STATE v. BERRIEL
                        Opinion of the Court

   ¶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 defen-
dant “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 discre-
tion.” 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 stan-
dard 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 evi-
dence 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 interpret-
ing a statute, we assume, absent a contrary indication, that the legis-
lature used each term advisedly according to its ordinary and usu-
ally 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 “immi-
nent” and “necessary.”



  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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   ¶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 con-
fined[,] with the narrow purpose of warding off the pending threat.”
Onder Bakircioglu, The Right to Self-Defence in National and Interna-
tional 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 II NEW
COLLEGE DICTIONARY 731 (1995). The necessary requirement distin-
guishes 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 immi-
nent 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 to-
ward” 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, interven-
tion 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 reason-
ably 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-


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                          STATE v. BERRIEL
                         Opinion of the Court

       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 ex-
       hibited any weapons. In fact, from the point at which he
       emerged from the car, Luis’s attention was directed en-
       tirely 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 ag-
gressor’s act of violence does not give a would-be rescuer a continu-
ing 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.



   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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   ¶18 This case is analogous to State v. Hernandez, 861 P.2d 814
(Kan. 1993), in which the Kansas Supreme Court ruled that a defen-
dant 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 threat-
ened to take her life. Id. at 816–17. The killing of the husband oc-
curred 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 de-
fendant retrieved a gun from his car and invited the husband out-
side 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 im-
minent 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 dan-
ger.” 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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                        STATE v. BERRIEL
                       Opinion of the Court

Luis’s history of violence, render erroneous the district court’s re-
fusal 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.




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