Enrolled Copy H.B. 350
1 CRIMINAL INTENT AMENDMENTS
2024 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott Senate Sponsor: Heidi Balderree
2
3 LONG TITLE
4 General Description:
5 This bill concerns mental states for criminal offenses involving threats.
6 Highlighted Provisions:
7 This bill:
8 ▸ modifies the applicable mental state for a threat in the criminal offense of:
9 ● stalking;
10 ● threatened or attempted assault on an elected official; and
11 ● tampering with or retaliating against a juror; and
12 ▸ makes technical and conforming changes.
13 Money Appropriated in this Bill:
14 None
15 Other Special Clauses:
16 None
17 Utah Code Sections Affected:
18 AMENDS:
19 76-3-203.5, as last amended by Laws of Utah 2023, Chapter 111
20 76-5-106.5, as last amended by Laws of Utah 2022, Chapters 142, 181 and 418
21 76-8-313, as last amended by Laws of Utah 1996, Chapter 45
22 76-8-508.5, as last amended by Laws of Utah 1992, Chapter 219
23
24 Be it enacted by the Legislature of the state of Utah:
25 Section 1. Section 76-3-203.5 is amended to read:
26 76-3-203.5 . Habitual violent offender -- Definition -- Procedure -- Penalty.
27 (1) As used in this section:
28 (a) "Felony" means any violation of a criminal statute of the state, any other state, the
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29 United States, or any district, possession, or territory of the United States for which
30 the maximum punishment the offender may be subjected to exceeds one year in
31 prison.
32 (b) "Habitual violent offender" means a person convicted within the state of any violent
33 felony and who on at least two previous occasions has been convicted of a violent
34 felony and committed to either prison in Utah or an equivalent correctional institution
35 of another state or of the United States either at initial sentencing or after revocation
36 of probation.
37 (c) "Violent felony" means:
38 (i) any of the following offenses, or any attempt, solicitation, or conspiracy to
39 commit any of the following offenses punishable as a felony:
40 (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal
41 mischief, Chapter 6, Part 1, Property Destruction;
42 (B) assault by prisoner, Section 76-5-102.5;
43 (C) disarming a police officer, Section 76-5-102.8;
44 (D) aggravated assault, Section 76-5-103;
45 (E) aggravated assault by prisoner, Section 76-5-103.5;
46 (F) mayhem, Section 76-5-105;
47 (G) stalking, Subsection 76-5-106.5(2);
48 (H) threat of terrorism, Section 76-5-107.3;
49 (I) aggravated child abuse, Subsection 76-5-109.2(3)(a) or (b);
50 (J) commission of domestic violence in the presence of a child, Section 76-5-114;
51 (K) abuse or neglect of a child with a disability, Section 76-5-110;
52 (L) abuse or exploitation of a vulnerable adult, Section 76-5-111, 76-5-111.2,
53 76-5-111.3, or 76-5-111.4;
54 (M) endangerment of a child or vulnerable adult, Section 76-5-112.5;
55 (N) criminal homicide offenses under Chapter 5, Part 2, Criminal Homicide;
56 (O) kidnapping, child kidnapping, and aggravated kidnapping under Chapter 5,
57 Part 3, Kidnapping, Trafficking, and Smuggling;
58 (P) rape, Section 76-5-402;
59 (Q) rape of a child, Section 76-5-402.1;
60 (R) object rape, Section 76-5-402.2;
61 (S) object rape of a child, Section 76-5-402.3;
62 (T) forcible sodomy, Section 76-5-403;
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63 (U) sodomy on a child, Section 76-5-403.1;
64 (V) forcible sexual abuse, Section 76-5-404;
65 (W) sexual abuse of a child, Section 76-5-404.1, or aggravated sexual abuse of a
66 child, Section 76-5-404.3;
67 (X) aggravated sexual assault, Section 76-5-405;
68 (Y) sexual exploitation of a minor, Section 76-5b-201;
69 (Z) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
70 (AA) sexual exploitation of a vulnerable adult, Section 76-5b-202;
71 (BB) aggravated burglary and burglary of a dwelling under Chapter 6, Part 2,
72 Burglary and Criminal Trespass;
73 (CC) aggravated robbery and robbery under Chapter 6, Part 3, Robbery;
74 (DD) theft by extortion under Section 76-6-406 under the circumstances described
75 in Subsection 76-6-406(1)(a)(i) or (ii);
76 (EE) tampering with a witness under Subsection 76-8-508(1);
77 (FF) retaliation against a witness, victim, or informant under Section 76-8-508.3;
78 (GG) tampering with a juror under Subsection [76-8-508.5(2)(c)] 76-8-508.5
79 (2)(a)(iii);
80 (HH) extortion to dismiss a criminal proceeding under Section 76-8-509 if by any
81 threat or by use of force theft by extortion has been committed under Section
82 76-6-406 under the circumstances described in Subsection 76-6-406(1)(a)(i),
83 (ii), or (ix);
84 (II) possession, use, or removal of explosive, chemical, or incendiary devices
85 under Subsections 76-10-306(3) through (6);
86 (JJ) unlawful delivery of explosive, chemical, or incendiary devices under Section
87 76-10-307;
88 (KK) purchase or possession of a dangerous weapon or handgun by a restricted
89 person under Section 76-10-503;
90 (LL) unlawful discharge of a firearm under Section 76-10-508;
91 (MM) aggravated exploitation of prostitution under Subsection 76-10-1306(1)(a);
92 (NN) bus hijacking under Section 76-10-1504; and
93 (OO) discharging firearms and hurling missiles under Section 76-10-1505; or
94 (ii) any felony violation of a criminal statute of any other state, the United States, or
95 any district, possession, or territory of the United States which would constitute a
96 violent felony as defined in this Subsection (1) if committed in this state.
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97 (2) If a person is convicted in this state of a violent felony by plea or by verdict and the trier
98 of fact determines beyond a reasonable doubt that the person is a habitual violent
99 offender under this section, the penalty for a:
100 (a) third degree felony is as if the conviction were for a first degree felony;
101 (b) second degree felony is as if the conviction were for a first degree felony; or
102 (c) first degree felony remains the penalty for a first degree penalty except:
103 (i) the convicted person is not eligible for probation; and
104 (ii) the Board of Pardons and Parole shall consider that the convicted person is a
105 habitual violent offender as an aggravating factor in determining the length of
106 incarceration.
107 (3) (a) The prosecuting attorney, or grand jury if an indictment is returned, shall provide
108 notice in the information or indictment that the defendant is subject to punishment as
109 a habitual violent offender under this section. Notice shall include the case number,
110 court, and date of conviction or commitment of any case relied upon by the
111 prosecution.
112 (b) (i) The defendant shall serve notice in writing upon the prosecutor if the
113 defendant intends to deny that:
114 (A) the defendant is the person who was convicted or committed;
115 (B) the defendant was represented by counsel or had waived counsel; or
116 (C) the defendant's plea was understandingly or voluntarily entered.
117 (ii) The notice of denial shall be served not later than five days prior to trial and shall
118 state in detail the defendant's contention regarding the previous conviction and
119 commitment.
120 (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to a
121 jury, the jury may not be told, until after it returns its verdict on the underlying felony
122 charge, of the:
123 (i) defendant's previous convictions for violent felonies, except as otherwise provided
124 in the Utah Rules of Evidence; or
125 (ii) allegation against the defendant of being a habitual violent offender.
126 (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
127 being an habitual violent offender by the same jury, if practicable, unless the
128 defendant waives the jury, in which case the allegation shall be tried immediately to
129 the court.
130 (c) (i) Before or at the time of sentencing the trier of fact shall determine if this
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131 section applies.
132 (ii) The trier of fact shall consider any evidence presented at trial and the prosecution
133 and the defendant shall be afforded an opportunity to present any necessary
134 additional evidence.
135 (iii) Before sentencing under this section, the trier of fact shall determine whether this
136 section is applicable beyond a reasonable doubt.
137 (d) If any previous conviction and commitment is based upon a plea of guilty or no
138 contest, there is a rebuttable presumption that the conviction and commitment were
139 regular and lawful in all respects if the conviction and commitment occurred after
140 January 1, 1970. If the conviction and commitment occurred prior to January 1,
141 1970, the burden is on the prosecution to establish by a preponderance of the
142 evidence that the defendant was then represented by counsel or had lawfully waived
143 the right to have counsel present, and that the defendant's plea was understandingly
144 and voluntarily entered.
145 (e) If the trier of fact finds this section applicable, the court shall enter that specific
146 finding on the record and shall indicate in the order of judgment and commitment
147 that the defendant has been found by the trier of fact to be a habitual violent offender
148 and is sentenced under this section.
149 (5) (a) The sentencing enhancement provisions of Section 76-3-407 supersede the
150 provisions of this section.
151 (b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in
152 Subsection (1)(c) shall include any felony sexual offense violation of Chapter 5, Part
153 4, Sexual Offenses, to determine if the convicted person is a habitual violent offender.
154 (6) The sentencing enhancement described in this section does not apply if:
155 (a) the offense for which the person is being sentenced is:
156 (i) a grievous sexual offense;
157 (ii) child kidnapping, Section 76-5-301.1;
158 (iii) aggravated kidnapping, Section 76-5-302; or
159 (iv) forcible sexual abuse, Section 76-5-404; and
160 (b) applying the sentencing enhancement provided for in this section would result in a
161 lower maximum penalty than the penalty provided for under the section that
162 describes the offense for which the person is being sentenced.
163 Section 2. Section 76-5-106.5 is amended to read:
164 76-5-106.5 . Stalking -- Definitions -- Injunction -- Penalties -- Duties of law
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165 enforcement officer.
166 (1) (a) As used in this section:
167 (i) "Course of conduct" means two or more acts directed at or toward a specific
168 individual, including:
169 (A) acts in which the actor follows, monitors, observes, photographs, surveils,
170 threatens, or communicates to or about an individual, or interferes with an
171 individual's property:
172 (I) directly, indirectly, or through any third party; and
173 (II) by any action, method, device, or means; or
174 (B) when the actor engages in any of the following acts or causes someone else to
175 engage in any of these acts:
176 (I) approaches or confronts an individual;
177 (II) appears at the individual's workplace or contacts the individual's employer
178 or coworker;
179 (III) appears at an individual's residence or contacts an individual's neighbor, or
180 enters property owned, leased, or occupied by an individual;
181 (IV) sends material by any means to the individual or for the purpose of
182 obtaining or disseminating information about or communicating with the
183 individual to a member of the individual's family or household, employer,
184 coworker, friend, or associate of the individual;
185 (V) places an object on or delivers an object to property owned, leased, or
186 occupied by an individual, or to the individual's place of employment with
187 the intent that the object be delivered to the individual; or
188 (VI) uses a computer, the Internet, text messaging, or any other electronic
189 means to commit an act that is a part of the course of conduct.
190 (ii) (A) "Emotional distress" means significant mental or psychological suffering,
191 whether or not medical or other professional treatment or counseling is
192 required.
193 (B) "Emotional distress" includes significant mental or psychological suffering
194 resulting from harm to an animal.
195 (iii) "Immediate family" means a spouse, parent, child, sibling, or any other
196 individual who regularly resides in the household or who regularly resided in the
197 household within the prior six months.
198 (iv) "Private investigator" means the same as that term is defined in Section 76-9-408.
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199 (v) "Reasonable person" means a reasonable person in the victim's circumstances.
200 (vi) "Stalking" means an offense as described in Subsection (2).
201 (vii) "Text messaging" means a communication in the form of electronic text or one
202 or more electronic images sent by the actor from a telephone or computer to
203 another individual's telephone or computer by addressing the communication to
204 the recipient's telephone number.
205 (b) Terms defined in Section 76-1-101.5 apply to this section.
206 (2) An actor commits stalking if the actor intentionally or knowingly:
207 (a) engages in a course of conduct directed at a specific individual and knows [or should
208 know that] or is reckless as to whether the course of conduct would cause a
209 reasonable person:
210 (i) to fear for the individual's own safety or the safety of a third individual; or
211 (ii) to suffer other emotional distress; or
212 (b) violates:
213 (i) a stalking injunction issued under Title 78B, Chapter 7, Part 7, Civil Stalking
214 Injunctions; or
215 (ii) a permanent criminal stalking injunction issued under Title 78B, Chapter 7, Part
216 9, Criminal Stalking Injunctions.
217 (3) (a) A violation of Subsection (2) is a class A misdemeanor:
218 (i) upon the actor's first violation of Subsection (2); or
219 (ii) if the actor violated a stalking injunction issued under Title 78B, Chapter 7, Part
220 7, Civil Stalking Injunctions.
221 (b) Notwithstanding Subsection (3)(a), a violation of Subsection (2) is a third degree
222 felony if the actor:
223 (i) has been previously convicted of an offense of stalking;
224 (ii) has been previously convicted in another jurisdiction of an offense that is
225 substantially similar to the offense of stalking;
226 (iii) has been previously convicted of any felony offense in Utah or of any crime in
227 another jurisdiction which if committed in Utah would be a felony, in which the
228