author: DURRANT, Associate Chief Justice: PARRISH, Justice, DURHAM, Chief Justice,

text:
    2004 UT 4
    STATE of Utah, Plaintiff and Respondent, v. Roger Martin MacGUIRE, Defendant and Petitioner.
    No. 20020071.
    Supreme Court of Utah.
    Jan. 23, 2004.

      Mark L. Shurtleff, Att’y Gen., J. Frederic Voros, Jr., Christopher D. Ballard, Asst. Att’ys Gen., William K. McGuire, Davis County Att’y, Salt Lake City, for plaintiff.
    Scott L. Wiggins, Salt Lake City, for defendant.
   DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 Utah’s criminal homicide statute provides that a person may be prosecuted for causing the death of an unborn child. This interlocutory appeal concerns (1) whether the term “unborn child” is unconstitutionally vague both on its face and as applied, and (2) whether the criminal homicide and aggravated murder statutes violate the federal and state guarantees of equal protection.

¶ 2 Defendant Roger Martin MacGuire has been charged with two counts of aggravated murder for allegedly killing his former wife and her unborn child. In a motion to dismiss Count I in part and Count II in its entirety, defendant contended he could not be prosecuted for killing the unborn child or be charged with aggravated murder based on that killing because Utah’s criminal homicide and aggravated murder statutes are unconstitutional. The district court denied defendant’s motion to dismiss and defendant petitioned for review of the interlocutory order. We affirm.

BACKGROUND

¶ 3 Defendant has been charged with the murder of his former wife, Susan C. MacGuire, and her unborn child. According to accounts presented at the preliminary hearing, defendant learned, several days pri- or to the murder, that Ms. MacGuire was engaged and expecting a baby. He called his former father-in-law on January 14, 2001, to confirm the information. On the morning of January 15, 2001, defendant allegedly entered the insurance office where Ms. MacGuire worked and shot her four times.

¶ 4 One of the bullets entered Ms. MacGuire at the base of her neck and traveled through the occipital bone of the skull. A second bullet entered and exited her left forearm. A third bullet entered the side of her abdomen approximately at the waistline and pierced her abdominal wall and small intestine. A fourth bullet entered her abdomen and traveled through her uterus, lodging in the right wall of her pelvis.

¶ 5 This fourth bullet lethally injured the unborn child Ms. MacGuire was carrying. It severed the umbilical cord and traveled through the placenta and unborn child itself before lodging in the pelvic wall. The medical examiner estimated that the gestational age of the unborn child was between thirteen and fifteen weeks at the time of death. Ms. MacGuire was life-flighted to a hospital where she died later that day.

¶ 6 Defendant has been charged with two counts of aggravated murder. Count I of the information charges defendant with aggravated murder for the death of Ms. MacGuire and alleges two aggravating circumstances; namely, (1) two persons were killed during the same criminal episode, and (2) the homicide was committed to retaliate against or prevent Ms. MacGuire from testifying, providing evidence, or participating in a legal proceeding or official investigation. Count II of the information charges defendant with aggravated murder for the death of the unborn child during a criminal episode in which two persons were killed.

¶ 7 Defendant filed a motion to dismiss the first aggravating factor in Count I and to dismiss Count II in its entirety on the basis that an unborn child is not a person under the aggravated murder statute, and the criminal homicide and aggravated murder statutes are unconstitutionally vague and violate equal protection guarantees. The district court denied defendant’s motion, and defendant filed a petition for interlocutory appeal. We have jurisdiction pursuant to Utah Code Ann. section 78-2-2(3)(h) (2002).

ANALYSIS

I. STANDARD OF REVIEW

¶ 8 Whether the district court properly interpreted Utah’s criminal homicide and aggravated murder statutes “is a question of law that we review for correctness.” State v. Gomez, 2002 UT 120, ¶ 11, 63 P.3d 72. Likewise, “[w]hether a statute is constitutional is a question of law [that] we review for correctness, giving no deference to the trial court.” State v. Daniels, 2002 UT 2, ¶ 30, 40 P.3d 611 (citing State v. Mohi, 901 P.2d 991, 995 (Utah 1995)). Moreover, “legislative enactments are presumed to be constitutional.” Greenwood v. City of North Salt Lake, 817 P.2d 816, 819 (Utah 1991) (citations omitted). As a result, “those who challenge a statute ... as unconstitutional bear” a heavy “burden of demonstrating its unconstitutionality.” Id. (citations omitted); accord Mohi, 901 P.2d at 1009 (Russon, J., concurring and dissenting) (stating the burden of “challenging the constitutionality of a statute” is “a heavy one”); United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) (noting that a “strong presumptive validity” attaches to legislative acts).

II. VAGUENESS CHALLENGE

¶ 9 Defendant challenges the criminal homicide and aggravated murder statutes of the Utah Code as being unconstitutionally vague both facially and as applied. The criminal homicide statute provides as follows:

(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, with criminal negligence, or acting with a mental state otherwise specified in the statute defining the offense, causes the death of another human being, including an unborn child.
(b) There shall be no cause of action for criminal homicide for the death of an unborn child caused by an abortion.

Utah Code Ann. § 76-5-201(1) (1999) (emphasis added).

¶ 10 The aggravated murder statute provides, in relevant part, as follows:

(1) Criminal homicide constitutes aggravated murder if the actor intentionally or knowingly causes the death of another under any of the following circumstances:
(b) the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed ....

Id. § 76-5-202(l)(b) (emphasis added).

¶ 11 Defendant contends the term “unborn child” in the criminal homicide statute is unconstitutionally vague because the legislature failed to define the term and, absent that definition, it lacks a clear and specific meaning. Moreover, because “unborn child” is not defined, defendant contends the terms “another” and “persons” in the aggravated murder statute are also unconstitutionally vague because it is impossible to know when an unborn child achieves the status of a person. We disagree.

A. Void for Vagueness Doctrine

¶ 12 Where, as here, a statute “implicates no constitutionally protected conduct,” a court will uphold a facial vagueness challenge “only if the [statute] is impermissi-bly vague in all of its applications.” Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). A statute that is clear as applied to a particular complainant cannot be considered impermissibly vague in all of its applications and thus will necessarily survive a facial vagueness challenge. See id. at 495, 102 S.Ct. 1186 (“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”).

¶ 13 In order to establish that the complained-of provisions are impermissibly vague, a defendant must demonstrate either (1) that the statutes do not provide “the kind of notice that enables ordinary people to understand what conduct [is prohibited],” or (2) that the statutes “encourage arbitrary and discriminatory enforcement.” State v. Honie, 2002 UT 4, ¶ 31, 57 P.3d 977 (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). Defendant has failed to establish that the statutes violate either test.

B. Notice that Conduct Is Prohibited

¶ 14 “Vagueness questions are essentially procedural due process issues, i.e., whether the statute adequately notices the proscribed conduct.” State v. Frampton, 737 P.2d 183, 191-92 (Utah 1987) (citation omitted). If a statute “ ‘is sufficiently explicit to inform the ordinary reader what conduct is prohibited,’ ” it is not unconstitutionally vague. Id. (quoting State v. Theobald, 645 P.2d 50, 51 (Utah 1982)). Here, defendant contends that the criminal homicide and aggravated murder statutes do not provide adequate notice about what type of conduct is prohibited because an ordinary person is left to guess at the meaning of the term “unborn child.” Thus, defendant reasons, a person cannot “ ‘steer between lawful and unlawful conduct.’ ” Village of Hoffman Estates, 455 U.S. at 498, 102 S.Ct. 1186 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). We therefore must determine whether the term “unborn child” is sufficiently definite to provide adequate notice as to what conduct is proscribed.

1. Plain Meaning of “Unborn Child”

¶ 15 “In considering the meaning of a [statutory] provision, the analysis begins with the plain language of the provision.... We need not look beyond the plain language unless we find some ambiguity in it.” Utah Sch. Bds. Ass’n v. State Bd. of Educ., 2001 UT 2, ¶ 13, 17 P.3d 1125 (citation omitted). Moreover, “[t]he plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters.” Lyon v. Burton, 2000 UT 19, ¶17, 5 P.3d 616 (internal quotations and citations omitted).

¶ 16 In State v. Larsen, 578 P.2d 1280, 1281-82 (Utah 1978), we held that a person could not be convicted of automobile homicide for causing the death of a twenty-six-week-old fetus because a fetus was not specifically recognized in statute as a human being. In response to our decision, the legislature amended the criminal homicide statute to provide that a person is guilty of criminal homicide if, acting with the requisite mental state, the person “causes the death of another human being, including an unborn child.” Utah Code Ann. § 76-5-201(l)(a) (1999). By its plain meaning the statute recognizes that an unborn child is a human being.

¶ 17 Defendant contends nevertheless that the statute is unconstitutionally vague because “it is impossible to ascertain from statute, or otherwise, when unborn childhood begins.” As a result, he argues, an ordinary person is left to guess whether his or her conduct falls within the parameters of the statute because it is unknown at what point a potential life actually becomes an unborn child.

¶ 18 Although the defendant attempts “to inject doubt as to the meaning of words where no doubt would be felt by the normal reader,” such straining “is not required by the ‘void for vagueness’ doctrine, and we will not indulge in it” here. United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). Instead, we will attribute to the legislature the commonsense meaning of the term “unborn child.” Id.

¶ 19 “Unborn child” is defined as “[t]he individual human life in existence and developing prior to birth.” Black’s Law Dictionary 1058 (abridged 6th ed.1991). See also Merriam-Webster’s Collegiate Dictionary 1285 (10th ed.1998) (defining “unborn” as “not born,” “not brought into life,” or “existing without birth”). Therefore, without modifying language to the contrary, the commonsense meaning of the term “unborn child” is a human being at any stage of development in útero because once fertilization occurs, an unborn child is an “individual human life” that is “in existence and developing prior to birth.”

2. Definition of “Unborn Child” in Other Chapters of the Utah Criminal Code and in Other Jurisdictions

¶ 20 This definition is consistent with how the term “unborn child” is used in other parts of the criminal code. For example, in a chapter of the criminal code that regulates abortions, the legislature mandates that informational materials be made available to any person contemplating an abortion. Utah Code Ann. § 76-7-305.5(1) (1999). The informational materials must include “the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, accompanied by pictures or video segments representing the development of an unborn child at those gestational increments.” Id. § 76-7-305.5(l)(b) (emphasis added).

¶ 21 Additionally, the legislature mandates that the Utah Department of Health produce a videotape “show[ing] an ultrasound of the heart beat of an unborn child at three weeks gestational age, at six to eight weeks gestational age, and each month thereafter, until lip weeks gestational age.” Id. § 76-7-305.5(4) (emphasis added). Thus, when the plain language of the criminal homicide statute is read in harmony with other chapters of the criminal code, it is clear that the legislature intended the term “unborn child” to encompass the period from fertilization to birth.

¶ 22 Finally, ease law from other jurisdictions recognizes that “[tjhere is no unconstitutional vagueness in the description of the unborn as the ‘unborn child.’ ” Brinkley v. Georgia, 253 Ga. 541, 322 S.E.2d 49, 53 (1984) (affirming convictions of co-defendants for violation of Georgia’s feticide statute). Specifically, the Georgia Supreme Court noted that the term “unborn child” in Georgia’s feticide statute would have “clearly coverfed] the entire period of pregnancy” if the legislature had not limited it to the period where an unborn child is “so far developed as to be ordinarily called ‘quick.’ ” Id. at 51, 53 (quoting Ga.Code Ann. § 16-5-80 (1982)). The court’s conclusion that the state’s feticide statute was not unconstitutionally vague was later followed by the Eleventh Circuit Court of Appeals. Smith v. Newsome, 815 F.2d 1386,1387-88 (11th Cir.1987).

3. The Recent Amendment to the Criminal Homicide Statute Does Not Demonstrate that the Term “Unborn Child” Is Unconstitutionally Vague

¶ 23 Defendant also contends that the legislature’s recent amendment to the statute demonstrates “in and of itself’ that the term “unborn child” is unconstitutionally vague. Effective May 6, 2002, the legislature inserted “at any stage of its development” after the term “unborn child.” Utah Code Ann. § 76-5-201(l)(a) (Supp.2003). Hence, the statute now reads that “[a] person commits criminal homicide if he ... causes the death of another human being, including an unborn child at any stage of its development.” Id. (emphasis added).

¶24 Although we acknowledge that the statute is now more precise, this does not mean that the statute prior to amendment was unconstitutionally vague. Indeed, the United States Supreme Court has stated that “[t]he fact that Congress might, without difficulty, have chosen ‘[cjlearer and more precise language’ equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague.” United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975) (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)). Here, the legislature drafted a statute that achieved the end that it sought, namely, to include an unborn child within the definition of a human being for purposes of the criminal homicide statute. While adding the phrase “at any stage of its development” made the statute more precise, it did not alter the commonsense meaning of “unborn child.” We therefore conclude that the term “unborn child” provides the kind of notice that enables ordinary people to understand what conduct is statutorily prohibited.

4. The Term “Unborn Child” Does Not Render the Aggravated Murder Statute Unconstitutionally Vague

¶ 25 Finally, defendant contends that because the term “unborn child” fails to provide adequate notice concerning what conduct is proscribed, it renders the aggravated murder statute unconstitutionally vague. We disagree.

¶ 26 The criminal homicide statute expressly includes an unborn child within its definition of a human being. Utah Code Ann. § 76-5-201(l)(a) (1999). This definition of a human being is imported into the aggravated murder statute because of the statutory link between the criminal homicide statute and the aggravated murder statute.

¶27 Specifically, the aggravated murder statute provides that “[cjriminal homicide constitutes aggravated murder if the actor intentionally or knowingly causes the death of another ” under any one of seventeen circumstances, including killing two or more persons during the same criminal episode. Utah Code Ann. § 76-5-202(l)(b) (1999) (emphasis added).

¶28 Defendant argues that because the terra “unborn child” is not defined in the criminal homicide statute, it also renders the terms “another” and “persons” in the aggravated murder statute unconstitutionally vague because it is impossible to know when an unborn child achieves the status of a human being. Because we have already concluded, however, that the term “unborn child” provides the kind of notice that enables ordinary people to understand what conduct is statutorily prohibited, the term cannot render the words “another” and “persons” unconstitutionally vague. We now turn to a discussion of defendant’s second argument; namely, that the criminal homicide statute encourages arbitrary and discriminatory enforcement.

C. Defining Conduct Sufficiently to Preclude Arbitrary and Discriminatory Enforcement

¶29 In addition to providing adequate notice about what conduct is proscribed, the “void for vagueness” doctrine requires the legislature to “define the criminal offense ... in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citations omitted). In other words, the legislature must “ ‘establish minimal guidelines to govern law enforcement.’ ” Id. at 358, 103 S.Ct. 1855 (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)).

¶ 30 Here, defendant contends that “[t]he Legislature’s failure to clearly and specifically define the term ‘unborn child’ not only encourages but facilitates arbitrary and discriminatory enforcement” because “the prosecutor is left to speculate at what point an unborn child becomes a person for enforcement purposes.” Additionally, defendant contends that enforcement decisions will be made “at least in part, by the prosecutor’s own thoughts or beliefs concerning fetal rights,” because the statute fails to provide adequate guidance.

¶ 31 This argument fails for the same reason that defendant’s argument concerning adequacy of notice fails. Defendant’s argument is premised on the notion that the legislature had to define the term “unborn child” in order for the term to have a definite meaning. The “void for. vagueness” doctrine does -ndt, howdver, require a legislature to define terms that are readily ascertainable. Because the term “unborn child” has a straightforward definition, as we have discussed above, a prosecutor is not left to speculate, as to the statute’s meaning. Thus, the legislature adequately established minimal guidelines for the enforcement of the statute. We therefore conclude that the statute is not unconstitutionally vague either facially or as applied because it does not encourage or facilitate arbitrary and discriminatory enforcement.

¶ 32 In sum, we conclude that the term “unborn child” is not unconstitutionally vague because, absent modifying language to the contrary, it clearly encompasses a human being at any stage of development in útero. The statute thus provides adequate notice to an ordinary person about what conduct is proscribed. Moreover, because the meaning of the term is readily ascertainable, its inclusion does not encourage or facilitate arbitrary and discriminatory enforcement. Hence, the criminal homicide and aggravated murder statutes-are sufficiently clear as applied to the defendant and cannot be 'considered “impermissibly vague in all [their] applications.” Indeed, given our plain, commonsense reading of the term “unborn child,” it is difficult to imagine any circumstance in which the meaning would be unclear. Thus, defendant’s vagueness challenges fail, both facially and'as applied, and we affirm the decision of the district 'court on this issue.

III. EQUAL PROTECTION

33 In addition to challenging the criminal homicide and aggravated murder statutes for vagueness, • defendant contends the statutes violate equal- protection guarantees under the Fourteenth' .Amendment to the United States Constitution'and article 1, section 24 of the Utah Constitution.. Specifically, defendant contends that because physicians are not prosecuted for aborting fetuses and microbiologists, are not prosecuted for destroying fertilized embryos for stem cell research, the statute “does not apply equally to all persons within the class,” namely, those who cause the death of an unborn child. Hence, according to defendant, the statute is unconstitutional.

¶ 34 The State argues that we should not address defendant’s argument because he did not raise it before the district court. Although we note that defendant did make reference to equal protection guarantees in his motion to dismiss, we need not address whether such references were sufficient to preserve this issue for appeal because defendant failed to petition for interlocutory review of the issue.

¶ 35 Rule 5 of the Utah Rules of Appellate Procedure specifies that “[a]n appeal from an interlocutory order may be sought ... by filing a petition for 'permission to appeal from the interlocutory order.” Utah R.App. P. 5(a) (emphasis added). The petition must contain “[t]he issue presented” and a “concise analysis of the statutes, rules[,] or cases believed to be determinative of the issue stated.” Id. at 5(c)(l)(B)-(C).

¶ 36 Here, defendant’s petition for interlocutory appeal did not address the equal protection issue. We therefore did not grant permission for defendant to appeal this issue. Moreover, because the petition made no reference to the equal protection argument, and did not provide a concise analysis of the legal authority, the State was denied the opportunity to respond to this issue in its Opposition to Petition for Permission to Appeal from Interlocutory Order. We therefore decline to address defendant’s equal protection argument.

CONCLUSION

¶ 37 In summary, the term “unborn child” does not render Utah’s criminal homicide and aggravated murder statutes unconstitutionally vague. The criminal homicide statute provides that a person may be prosecuted for causing the death of a human being, including an unborn child. Because the commonsense meaning of the term “unborn child” is a human being at any stage of development in útero, the term provides sufficient notice to an ordinary person about what conduct is proscribed. Moreover, the term does not encourage arbitrary and discriminatory enforcement because its meaning is readily ascertainable. Consequently, we conclude that the term “unborn child” does not render the criminal homicide statute unconstitutionally vague. We also conclude that the terms “another” and “persons” are not rendered unconstitutionally vague in the aggravated murder statute by the fact that they encompass the term “unborn child.” We therefore affirm the district court on this issue.

¶38 We decline to address defendant’s equal protection argument. Although there is some question concerning whether defendant adequately raised this issue below, we need not determine whether the issue was adequately preserved because defendant did not petition for interlocutory review of his equal protection argument. As a result, we did not grant permission to defendant to appeal this issue and we decline to address it.

¶ 39 The district court’s decision to deny defendant’s motion to dismiss is affirmed.

¶ 40 Justice WILKINS, Justice PARRISH, and Judge NEHRING concur in Associate Chief Judge DURRANT’S opinion.

PARRISH, Justice,

concurring:

¶ 41 I join in both the reasoning and the holding of Associate Chief Justice Durrant’s lead opinion. I write separately to address the issue raised by the dissenting opinion of Chief Justice Durham.

¶ 42 The Chief Justice agrees with the lead opinion’s conclusion that the criminal homicide statute permissibly defines killing an “unborn child” as a homicide, but dissents with respect to whether the defendant may be prosecuted for aggravated murder. The dissent is predicated on the notion that a fetus is not a full legal “person” under the laws of the United States or the laws of Utah. Accordingly, because the aggravated murder statute, Utah Code Ann. § 76-5-202 (1999), provides that homicide is aggravated murder if committed incident to a scheme or course of conduct during which two or more “persons” are killed, the dissent concludes that the defendant may not be prosecuted for aggravated murder.

¶ 43 I disagree with the conclusion urged by the dissent for two reasons. First, when read in context, the term “person” as used in the aggravated murder statute is clearly intended to include an unborn child, and I do not believe this presents a constitutional problem because it does not infringe on any constitutionally protected rights. Second, the defendant would nevertheless be subject to prosecution for aggravated murder under a provision of the aggravated murder statute not addressed in the dissent.

¶ 44 The dissent is based on the premise that the word “person” in the aggravated murder statute was intended by the legislature to constitute a term of art with a meaning independent of the statutory scheme as a whole. In my view, however, the term “person” as used in the aggravated murder statute, constitutes only a generic reference back to the statutory provision defining the elements of criminal homicide, Utah Code Ann. § 76-5-201. In that section, the legislature unmistakably provided that causing the death of a human being, including an unborn child, constitutes homicide. The following section builds upon the criminal homicide statute by designating the circumstances under which “criminal homicide” constitutes “aggravated murder.” Accordingly, when considered in context, it is clear that the term “person” in the aggravated murder statute must be interpreted to include an unborn child.

¶ 45 Interpreting the term “person” in light of the statutory context and clearly expressed legislative intent is consistent with long-established principles of statutory construction. “ ‘One of the cardinal principles of statutory construction is that the courts will look to the reason, spirit, and sense of the legislation, as indicated by the entire context and subject matter of the statute dealing with the subject.’ ” Mountain States Tel. & Tel. Co. v. Payne, 782 P.2d 464, 466 (Utah 1989) (quoting Masich v. U.S. Smelting, 113 Utah 101, 191 P.2d 612, 616 (1948)). Indeed, the dissent’s singular focus on the word “person” as a term of art is inconsistent with the fundamental principle that words are tó be determined in light of their association with surrounding words and phrases and in harmony with other statutes in the same chapter. Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592.

¶ 46 For similar reasons, I am not persuaded by the dissent’s concern that interpreting the term “person” to include an unborn child would raise federal constitutional issues. The dissent implies that any statute that defines the term “person” to include an “unborn child” would necessarily run afoul of the federal Constitution, without regard to the context in which that definition occurs or the consequences that flow from that definition. I do not agree with this principle.

¶ 47 Our interpretation of the term “person” in the context of the particular statutory scheme before the court neither implies that the rights of a fetus are equivalent to those of a person for purposes of federal constitutional analysis nor mandates the conclusion that the term “person” is used in an unconstitutional manner. I believe the legislature’s use of the word “person” to refer to a fetus would create a clear constitutional issue only if it carried with it a restriction of a constitutionally protected right, such 'as in the context of a statute restricting a woman’s right to terminate her pregnancy. An entirely different context is presented where, as here, a third party is accused of attacking and killing a fetus against the will of the mother. See State v. Merrill, 450 N.W.2d 318, 321-22 (Minn.1990) (holding that a fetal homicide statute does not impinge directly or indirectly on a pregnant woman’s privacy rights); 66 Fed. Credit Union v. Tucker, 853 So.2d 104, 113-14 (Miss.2003) (holding that a wrongful death statute protects a fetus, and that the rights of a mother as outlined in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), have no relation to the rights of a defendant accused of causing the death of a fetus); People v. Ford, 221 Ill.App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189, 1199 (1991) (holding that a pregnant woman who chooses to terminate her pregnancy and a defendant who assaults a pregnant woman, causing the death of her fetus, are not similarly situated). This statute’s use of the term “person” to refer to a fetal victim defines the crime of aggravated murder. It does not declare a fetus to be a person entitled to equal protection, nor does it restrict a woman’s right to obtain an abortion. In fact, there is no possibility that the statute in question could undermine a woman’s right to obtain an abortion under the federal Constitution because the statute specifically provides that there “shall be no cause of action for criminal homicide for the death of an unborn child caused by an abortion.” Utah Code Ann. § 76 — 5—201(l)(b) (1999 & Supp.2003).

¶48 I am unpersuaded by the dissent’s conclusion that the defendant should not be subject to prosecution for aggravated murder for an independent reason as well. The dissent focuses on the portion of subsection (l)(b) of the aggravated murder statute that refers to homicides committed incident to one act, scheme, or course of conduct in which “two or more persons were killed.” Utah Code Ann. § 76-5-202(l)(b) (1999). However, even if we were to assume that the defendant could not be prosecuted under that portion of subsection (l)(b), it is my view that the defendant would be subject to prosecution under the second clause of that same subsection. Subsection (l)(b) reads in its entirety:

(1) Criminal homicide constitutes aggravated murder if the actor intentionally or knowingly causes the death of another under any of the following circumstances:
(b) the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed or during which the actor attempted to kill one or more persons in addition to the victim who was killed [.]

Utah Code Ann. § 76-5-202 (1999) (emphasis added). In this case, the defendant has been charged with the criminal homicide of an unborn child pursuant to section 76-5-201. When the unborn child is understood to be the “victim” of the homicide, that unborn child was killed during an alleged criminal episode in which the defendant allegedly attempted to kill one or more persons, in this case Susan MacGuire, in addition to the unborn victim. Accordingly, the defendant may be tried for aggravated murder under section 76 — 5—202(l)(b).

¶ 49 I believe that the statutory provisions addressing aggravated murder must be interpreted in the context of the statutory framework as a whole. Accordingly, I have no difficulty concluding that the term “person” as used in the aggravated murder statute includes an unborn child. I therefore concur in Associate Chief Justice Durrant’s conclusion that the defendant may appropriately be prosecuted for aggravated murder.

¶ 50 Associate Chief Justice DURRANT, Justice WILKINS, and Judge NEHRING concur in Justice PARRISH’s concurring opinion.

¶ 51 Justice RUSSON did not participate herein; then District Judge NEHRING sat.

DURHAM, Chief Justice,

dissenting:

¶ 52 I respectfully dissent. Defendant is charged with shooting and killing his pregnant ex-wife and her fetus. While these acts constitute two homicides within the meaning of section 76-5-201, a charge of aggravated murder based on the killing of Ms. MacGuire and her fetus cannot be sustained as the killing of two “persons” under Utah Code section 76 — 5—202(l)(b).

I. Section 76-3-201

¶ 53 Pursuant to the language of section 76-5-201(1), “eaus[ing] the death of another human being, including an unborn child” is homicide, except that if-the death is caused by abortion it is not homicide. Utah Code Ann. § 76-5-201(1) (1999). Defendant contends that this provision is unconstitutionally vague. I agree with the majority that the statutory language is not so unclear as to violate minimal constitutional requirements.

¶54 The term “unborn child” is not defined in the statute and is not entirely clear in ordinary or legal usage. In our society, the moral status of the fetus is highly controversial. For many, a fetus, especially in the early stages of pregnancy, exists in a liminal state, somewhere between fully human and not human. Our fellow citizens disagree radically over when in this period of developing life an egg and sperm combined have matured enough to warrant moral or legal consideration as a person or a full human being.

¶ 55 Some Americans, attempting to make sense of the difficult issues surrounding family responsibility and abortion, reserve the word “child” for infants who have been born, or begin to refer to a fetus as a “child” only at the point at which they believe there is a reasonable likelihood that it will be born. Thus, for example, one commentator contends that in the view of many Americans, “child” refers to a member of the family. See Daniel JH Greenwood, Beyond Dwor-kin’s Dominions: Investments, Memberships, the Tree of Life, and the Abortion Question, 72 Tex. L.Rev. 471 (1994) (disputing Professor Dworkin’s view that no one believes that a fetus is a moral “person” and arguing instead that a wide variety of religious and secular observers see the fetus as developing into a “person” and becoming entitled to more rights and consideration over time, while others see varying moments, ranging from the sex act to birth, when those rights attach). Families have a period of time after pregnancy has begun in which they still may legally reject the responsibility of raising a child — something that is morally impermissible once they accept the developing fetus as a child. In that usage, an “unborn child” would refer only to a wanted pregnancy sufficiently far developed to be likely to come to term. To apply Utah’s statute from that perspective, a prosecutor would be required to prove that the mother had, in fact, decided not to abort and that the pregnancy was reasonably likely to come to term. Hence the moral ambiguity of the term “unborn child” in the statute.

¶ 56 A statute that used the word “fetus” rather than “unborn child” would be clearer and more respectful of the diversity of opinion in our society. Nonetheless, the legislature is entitled to use polemical and political language, even on highly controversial issues, so long as the language gives clear notice of what is intended to be criminalized. The word “child” clearly includes the unborn in such ancient phrases as “quick with child”; indeed, the Oxford English Dictionary reports that it appears to be descended from a word specifically referring to the womb rather than an infant. The modern usage of “unborn child,” I believe, reflects less an attempt (like Professor Greenwood’s) to make sense of how so many Americans can support legal abortion while also believing that mothers have a duty to care for their children even pre-natally, than the desire of those who oppose abortion to find new linguistic opportunities to emphasize respect for the fetus. In the context of this case, I agree with the majority that it is sufficiently clear that the legislature meant to classify the killing of every fetus as a homicide and that ordinary citizens will understand that intent. Section 76-5-201 therefore passes “void for vagueness” muster.

II. Section 76-5-202(1) (b)

¶ 57 Section 76-5-202(l)(b), however, is a different matter. It provides that homicide is aggravated murder if “the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed.” Utah Code Ann. § 76-5-202(l)(b) (1999) (emphasis added). As discussed below, a fetus is not a full legal “person” and cannot be so constituted under the law of the United States or Utah. The plain meaning of section 76-5-202(l)(b) is that killing a mother and her fetus cannot constitute aggravated homicide.

¶ 58 Preliminarily, it is clear that the legislature is entitled to protect to the fullest extent pregnant mothers and their expectations of bringing their pregnancies to term. Even supporters of legal abortion agree that an assault which destroys a developing fetus is a particularly heinous crime. See, e.g., Beyond Dworldn’s Dominions, supra, at 489. A violent attack by a third person on a mother that also kills her fetus injures more than the mother alone. One of the most fundamental of life’s experiences has been cut short; parents’ aspirations to bring forth a new generation have been shattered; a family that could have been will not be; a life that could have developed into an independent individual has been extinguished. We need not enter into any debate regarding the status of the fetus itself to see that a state may freely increase penalties for a homicide or an assault that also kills a fetus: respect for the mother alone would be sufficient. The power of the legislature to classify a homicide that also unlawfully destroys a fetus as aggravated murder, then, is not at issue here. The problem is, rather, that the legislature has not clearly done so. The aggravated homicide statute applies when two “persons” are killed, and a fetus is not a person under our law.

¶ 59 “Person” is a legal category with important consequences. Most important, persons are entitled to rights under the Fourteenth Amendment of the United States Constitution. It would be an obvious denial of equal protection to allow doctors, or anyone else, to kill one “person” in order to save another, and clearly a denial of due process to permit this without any legal process at all. Thus, declaring a fetus to be a “person” entitled to equal protection would require not only overturning Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), but also making abortion, as a matter of constitutional law, illegal in all circumstances, even to save the life of the mother. Utah law reflects this principle. The legislature has stated that “a woman’s liberty interest, in limited circumstances, may outweigh the unborn child’s right to protection,” and has specified when abortion is warranted. Utah Code Ann. § 76-7-301.1(4) (1999). A fortio-ri, if a fetus were deemed a legal “person,” its life could not be taken intentionally in the process of honoring a pregnant woman’s “liberty interest.” Roe, 410 U.S. at 157 n. 54, 93 S.Ct. 705 n. 54.

¶ 60 For these reasons, as Justice Stevens has stated,

[N]o member of the Court has ever questioned this fundamental proposition [i.e., that a fetus is not a “person”]. Thus as a matter of federal constitutional law, a developing organism that is not yet a “person” does not have what is sometimes described as a “right to life.” This has been and ... remains a fundamental premise of our constitutional law ....

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 913, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Stevens, J., concurring in part and dissenting in part).

¶ 61 To declare a fetus a “person” is beyond the power of the state of Utah, whether acting through either its legislature or its courts. A state cannot overrule the United States Supreme Court by changing who counts as a “person” for constitutional purposes. Justice Stevens, quoting Professor Dworkin, put it this way:

The suggestion that states are free to declare a fetus a person ... assumes that a state can curtail some [existing] persons’ constitutional rights by adding new persons to the constitutional population. The constitutional rights of one citizen are of course very much affected by who or what else has constitutional rights, because the rights of others may compete or conflict with his. So any power to increase the constitutional population by unilateral decision would be, in effect, a power to decrease the rights the national Constitution grants to others.

Id. at 913 n. 2, 112 S.Ct. 2791 n. 2 (quoting Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. Chi. L.Rev. 381, 400-01 (1992)).

¶ 62 Finally, even if the Utah Legislature could define “person” to include a fetus, which I believe it cannot, the legislature does not seem to have done so. At any rate, no statutory language defining “person,” as opposed to “unborn child” or “human being” has been cited to us.

¶ 63 If a fetus is not a “person” in the language of the law, it follows that the defendant in this case, heinous as his crime is, has not committed aggravated murder within the meaning of Utah Code section 76-5-202(l)(b). That provision applies only when “two or more persons were killed.” In the ease at hand, two lives were extinguished: that of Ms. MaeGuire and that of the fetus she was carrying. Under Utah law, these two killings may each be prosecuted as separate homicides, but only one “person” was killed. Defendant cannot be prosecuted for killing two or more “persons,” when only one of his victims was a “person.” I do not believe defendant can be tried for aggravated murder under section 76-5-202(l)(b).

      . The facts included in this section have not been established at trial but remain mere allegations.

      . Although the medical examiner did not specify the exact order of the gunshot wounds, she did testify that the gunshot wounds to the abdomen likely occurred prior to the gunshot wound to the head. She had no opinion as to when the.gunshot wound to the arm occurred.

      .The second aggravating factor is based upon the allegation that when defendant arrived at Ms. MacGuire's workplace just prior to the murder, Ms.-MacGuire threatened to call the police and report defendant for violating a protective order that was in place at the time.

      . The criminal homicide statute is statutorily linked to the automobile homicide statute, which sets forth the conditions under which criminal homicide constitutes the specific crime of automobile homicide. Utah Code Ann. § 76-5-207(l)(a), (2)(a) (1999).

      . The dissent points out that, in a variety of contexts, the term “person” has been interpreted not to include a fetus or unborn child. While this is true, there is nothing that requires the term “person” in one context to be interpreted co-extensively with the term "person” when used in an entirely different context. In light of the clearly expressed legislative intent, I see no constitutional impediment to interpreting the term “person” to include an "unborn child” in the context of this particular statutory provision.

      . The fact that subsection (l)(b) uses the terms "victim” and "person” in a seemingly interchangeable manner bolsters my conclusion that the term "person” as used in that subsection was not intended by the legislature to constitute a term of art, but rather a generic reference to a human being, including an unborn child, as used in the criminal homicide statute, Utah Code Ann. § 76-5-201.

      . The due process and equal protection clauses state, in relevant part, "nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, cl. 1 (emphasis added).


source: Caselaw Access Project

author: DURRANT, Associate Chief Justice:

license: Public Domain

text:
    2004 UT 5
    STATE of Utah, Plaintiff and Appellee, v. Peter Victor MONTOYA, Defendant and Appellant.
    No. 20010458.
    Supreme Court of Utah.
    Jan. 23, 2004.

      Mark L. Shurtleff, Att’y Gen., Joanne C. Slotnik, J. Frederic Voros, Jr., Asst. Att’ys Gen., Carlos Esqueda, Cy Castle, Deputy Salt Lake Dist. Att’ys, Salt Lake City, for plaintiff.
    Sharon Preston, Salt Lake City, for defendant.
   DURRANT, Associate Chief Justice:

¶ 1 Defendant Peter Victor Montoya was tried and convicted on one count of criminal homicide, a first degree felony, and two counts of attempted criminal homicide. On appeal, defendant argues that the trial court erred in denying his motion for a new trial based on newly discovered evidence. Alternatively, defendant argues that he received ineffective assistance of counsel because the contested evidence was not produced at trial. Defendant also contends that the trial court erred in denying his motion for a directed verdict based on insufficiency of the evidence. We affirm.

BACKGROUND

¶ 2 “We view the, facts in the. light most favorable to the jury verdict and recite them accordingly.” State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237. On the night of May 16, 1997, sixteen-year-old Kelly Seal drove his younger brother, Matt Seal, and his friend, Greg Ulibarri, to Beck Street to watch drag races. During the course of the evening, the boys stopped at a combination Amoco station and Rainbo Mart to buy drinks and use the restroom. While there, Matt Seal noticed a red GMC truck squealing its tires as it maneuvered into position at the gas pump. The driver of the truck, identified as Russell Thornwall, exited the vehicle and began pumping gas. Matt Seal recalled that Thornwall was “throwing up his hands” and yelling “VLT,” which Matt understood to be a gang reference.

¶ 3 The three boys left the gas station and began to drive back to the races, but returned shortly in order for Kelly Seal to use a payphone to-respond to a page that he had received. Kelly Seal exited the car to use the phone, and Ulibarri soon joined him. Matt Seal stayed in the back seat of the car. Ulibarri and Matt Seal both noticed Thorn-wall still gesturing with his hands and yelling. Kelly Seal quickly finished his phone call, and he and Ulibarri returned to the ear. By this time, Thornwall had pulled his truck behind the boys’ Honda .Civic and was revving the engine. At this point, the defendant exited the Rainbo Mart, crossed between the truck and the Honda, and entered the truck through the front passenger door. Matt Seal testified that he noticed a third passenger in the truck who appeared to be sitting in the back seat.

¶ 4 As Kelly Seal drove toward the station exit, the red truck came up along the right side of the boys’ car and swerved towards them. Kelly reacted to avoid a collision. Matt Seal and Ulibarri saw the defendant leaning over the driver of the truck, looking directly into the Honda, and yelling. The boys testified that they heard two or three voices yelling “VLT” and “pussies.” The track moved behind the Honda again, following very closely with its headlights shining directly into the boys’ car. Evidence produced at trial showed that the track was a manual stick-shift and that Thornwall, the driver, was right-handed.

¶5 As Kelly Seal exited the station and began to turn left onto Beck Street, at least two shots were fired from the truck, shattering the back window of the Honda and piercing the back right pillar of the body of the car. One bullet ripped through the right passenger seat and hit Ulibarri in his lower, right back. Another bullet struck Kelly Seal in the back of the head, killing him. The Honda coasted to a stop in the middle of Beck Street, and the red track sped off to the right, squealing its tires. Matt Seal heard someone yell, “VLT rales.”

¶ 6 On May 25, 1999, defendant was charged with one count of criminal homicide, a first degree felony, and two counts of attempted criminal homicide. During the jury trial, after the presentation of the state’s case-in-chief, defendant moved for a directed verdict. The trial court deferred ruling on this motion until defendant had presented his ease, at which point, defendant moved to dismiss. The trial court took the motion under advisement. After the jury convicted defendant as charged, the trial court considered and then denied defendant’s motions for a directed verdict and to dismiss.

¶ 7 The trial court sentenced defendant to a term of imprisonment of five years to life on Count I and a term of one-to-fifteen years each on Counts II and III, the sentences to run consecutively, with a one-year firearm enhancement on each count. On January 22, 2001, defendant moved for a new trial based on newly discovered evidence. This motion was also denied by the trial court. Defendant appeals.

ANALYSIS

¶ 8 Defendant argues on appeal that the trial court erred in denying his motion for a new trial based on newly discovered evidence. Alternatively, he argues that he received ineffective assistance of counsel due to his counsel’s failure to introduce certain evidence at trial. Defendant also contends that the trial court erred in denying his motion for a directed verdict, arguing that the evidence was insufficient to support the convictions. We will address the issues in the order presented.

I. DENIAL OF DEFENDANT’S MOTION FOR A NEW TRIAL

¶ 9 Approximately one month following the conclusion of the jury trial, defendant filed a motion for a new trial, asserting that critical new evidence had become known to defense counsel. This “new evidence” consisted of statements from two witnesses: (1) a confidential witness, who would not reveal his identity but claimed to be the third person in the truck on the night of the shooting, and (2) Jason Thornwall, Russell Thornwall’s older brother. The confidential witness was purportedly too frightened to come forward but told a defense investigator that it was he, not Peter Montoya, who was the front seat passenger on the night in question and that Russell Thornwall was the shooter. The second witness, Jason Thornwall, stated that his brother, Russell, had talked to him about the incident and told him, “Pete [Montoya]’s in [jail] for something I did.”

A. Standard of Review

¶ 10 We afford trial judges “a wide range of discretion” in determining whether newly discovered evidence warrants the grant of a new trial. State v. James, 819 P.2d 781, 793 (Utah 1991). Thus, “[w]e review the denial of a motion for a new trial based on newly discovered evidence on the same basis as any other denial of a new trial motion — whether the trial court abused its discretion.”' State v. Loose, 2000 UT 11, ¶ 16, 994 P.2d 1237.

[5] ¶ 11 Evidence must meet three criteria in order to constitute grounds for a new trial: “(1) [i]t must be such as could not with reasonable diligence have been discovered and produced at the trial; (2) it must not be merely cumulative; [and] (3) it must be such as to render a different result probable on the retrial of the case.” James, 819 P.2d at 793; see also State v. Goddard, 871 P.2d 540, 545 (Utah 1994) (“All three of these criteria must be met”). Since we conclude that the statements of both witnesses are inadmissible, these statements do not constitute evidence that would “render a different result probable” on retrial. Thus, the statements fail to fulfill the third requirement for granting a new trial.

B. Statement of the Confidential Witness

¶ 12 In his motion for a new trial, defendant claimed that “following the trial, the defense was able to locate the actual third occupant of Russell Thornwall’s truck.” Defendant sought to introduce statements from this witness through the testimony of a defense investigator, Dennis Couch, because the witness was purportedly “tremendously frightened” to come forward. According to Mr. Couch’s affidavit, the witness stated that, though he had not been involved in the shooting, it was he, not Peter Montoya, who was the front seat passenger in the truck and that Russell Thornwall was the shooter.

¶ 13 Since the witness himself refused to testify, the testimony of Mr. Couch consists of out-of-court statements being “offered in evidence to prove the truth of the matter asserted,” and thus is paradigmatic hearsay. Utah R. Evid. 801. The statements of the confidential witness, therefore, are inadmissible unless they fall within the ambit of one of the hearsay exceptions.

¶ 14 Defendant suggests that the confidential witness’s statements satisfy the “statement against interest” exception because, by so attesting, the witness places himself in the same position, in the truck as the defendant, and consequently opens himself up to possible criminal prosecution. See Utah R. Evid. 804. However, the statement against interest exception, as with all of the exceptions under Utah Rule of Evidence 804, initially requires the unavailability of the witness. See Utah R. Evid. 804(a). Defendant has not shown that the confidential witness is unavailable for purposes of this hearsay exception.

[7] ¶ 15 We have previously stated that “for a witness to be constitutionally unavailable, it must be practically impossible to produce the witness in court. It is not enough to show that the witness would be uncomfortable on the stand or that testifying would be stressful. Every reasonable effort must be made to produce the witness.” State v. Webb, 779 P.2d 1108, 1113 (Utah 1989) (citations omitted). This requires the proponent of the out-of-court statement to do his utmost to “procure the declarant’s attendance by process or other reasonable means.” Utah R. Evid. 804(a)(5).

[8] ¶ 16 Thus, in general, a witness will not be found unavailable until the proponent of the evidence demonstrates that he has used all reasonable means at his disposal to secure the attendance of the witness. See State v. White, 671 P.2d 191, 193 (Utah 1983) (finding witness was not unavailable where defense counsel merely stated that the witness was likely to assert his Fifth Amendment privilege against self-incrimination; the witness had to take the stand and personally assert the privilege for his testimony to be unavailable); State v. Chapman, 655 P.2d 1119, 1121-22 (Utah 1982) (holding witness not unavailable where state made no attempt to secure attendance of the out-of-state witness through the Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceeding); State v. Drawn, 791 P.2d 890, 893 (Utah Ct.App.1990) (holding, that where the state had subpoenaed each witness three times prior to trial, these efforts were sufficient to demonstrate unavailability for purposes of the hearsay exception); Brown v. Harry Heathman, Inc., 744 P.2d 1016, 1018 (Utah Ct.App.1987) (finding service of process not necessary to show unavailability where reasonable, but ultimately unsuccessful, efforts were made to ascertain the address of a witness whose whereabouts were completely unknown).

¶ 17 Here, defendant has merely asserted that the confidential witness is fearful to come forward. Defendant has not demonstrated that he made any effort to compel the witness’s attendance at the hearing, on the motion for a new trial. Therefore, defendant has failed to show that the witness is unavailable for purposes of the statement against interest exception. Defendant has not indicated any other potentially applicable hearsay exception' under which this testimony would be admissible, and we find none. We turn next to an examination of Jason Thorn-wall’s statement.

C. Statement of Jason Thomwall

¶ 18 After defendant’s trial, Russell Thornwall’s brother, Jason, contacted defense counsel to discuss the case. Jason said that Russell had spoken to him about the shooting and admitted to being the shooter. According to Jason, Russell stated that he “felt bad that Pete [Montoya] was locked up, when he (Russell) was the one that did it.”

¶ 19 This statement, though hearsay, meets the initial requirements of the statement against interest exception. Russell Thornwall’s death prior to defendant’s trial renders him unavailable under the evidentia-ry rule, and the statement is plainly against his penal interest. See Utah R. Evid. 804(a)(4), (b)(3). However, rule 804 further requires that “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Utah R. Evid. 804(b)(3).

¶20 This requirement, which attaches to third-party confessions in a criminal case, renders defendant’s proffered evidence inadmissible since defendant has failed to produce any corroborating circumstances that clearly demonstrate the trustworthiness of Jason Thornwall’s statement. Indeed, it is difficult to imagine circumstances under which this statement would be less trustworthy. While it is conceivable that Jason Thornwall, out of a sense of familial duty, refrained from divulging Russell’s alleged admissions during Russell’s lifetime, he had ample opportunity to come forward during the four months after Russell’s death and prior to defendant’s trial, but chose not to do so. Instead, he waited some fourteen months after Russell purportedly made the admissions and did not reveal the information until well after Russell’s close friend had been arrested, tried, and convicted of the crime. Defendant has offered no indicia of reliability in connection with this statement to recommend its admissibility. Consequently, this statement, like that of the confidential witness, fails to satisfy any exception to the rule against hearsay.

¶21 Because both witnesses’ statements constitute inadmissible hearsay, this “newly discovered” evidence would be incapable of effecting a different outcome if the case were retried. Therefore, the trial court did not abuse its discretion in denying defendant’s motion for a new trial.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 22 Defendant’s second argument on appeal is that he was denied effective assistance of counsel in violation of the Sixth Amendment because his counsel failed to discover and produce a critical eyewitness at the time of trial. During the hearing on the motion for a new trial, defense counsel stated that, prior to trial, he had attempted to find the third occupant of Russell Thornwall’s truck. Counsel indicated that he was, in fact, able to locate this witness’s mother but, finding her uncooperative, decided not to pursue the witness’s whereabouts. Twelve days before trial, the state moved for a continuance in order to allow more time for discovery. Defendant’s counsel vigorously opposed this motion, and the trial went forward as originally scheduled. Defendant asserts that if his counsel had simply stipulated to the continuance, and been otherwise diligent, counsel could have produced the third passenger in the truck, who, other than defendant himself, was the only eyewitness to the crime.

¶23 In determining whether a criminal defendant has been denied effective assistance of counsel, this court adheres to the test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim under the Strickland test, “a defendant must show (1) that counsel’s performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” Wickham v. Galetka, 2002 UT 72, ¶ 19, 61 P.3d 978 (quoting State v. Smith, 909 P.2d 236, 243 (Utah 1995)) (internal quotation and further citation omitted). We emphasize that in making this evaluation, the court must “indulge in the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is[,] the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” State v. Templin, 805 P.2d 182,- 186 (Utah 1990) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (internal quotation omitted).

¶ 24 To prevail on the first prong of the test, a defendant “must identify specific acts or omissions demonstrating that counsel’s representation failed to meet an objective standard of reasonableness.” Taylor v. Warden, 905 P.2d 277, 282 (Utah 1995) (citing Templin, 805 P.2d at 186). Defendant contends that his counsel’s “failure to discover and produce [a critical defense witness], or to request a continuance for the purpose of doing so,” constituted ineffective assistance because “the failure to conduct a reasonable investigation into possible defense witnesses” is an indefensible omission on the part of counsel. See Templin, 805 P.2d at 188 (“If counsel does not adequately investigate the underlying facts of a case, including the availability of prospective defense witnesses, counsel’s performance cannot fall within the wide range of reasonable professional assistance.” (internal quotation and citation omitted)). Although failure to investigate may, in some cases, satisfy the first prong of the Strickland test, it is within counsel’s discretion to make reasonable decisions regarding the extent to which particular investigations are necessary. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”). If counsel has reason to believe that pursuing certain evidence “would be fruitless or even harmful,” a tactical decision not to investigate may indeed be reasonable. See id.

¶25 In the present case, counsel’s failure to locate the third passenger in the truck does not rise to the level of an unreasonable act or omission. After finding that this witness’s mother was either unable or unwilling to inform counsel of her son’s whereabouts, counsel made a decision to move forward without this witness. Upon the state’s motion for a continuance, defense counsel declined the opportunity to have more time to locate this witness and, instead, earnestly opposed the motion. Indeed, counsel may have hoped to deprive the state of any additional time to further develop its case against his client, apparently hoping that the circumstantial nature of the case would force an acquittal. In addition, counsel may have doubted the advantageousness of this witness’s testimony. In explaining why he did not further pursue this witness, counsel stated that “we had no idea what [the witness] was going to say.” Counsel may very well have feared that finding this individual would do his client more harm than good.

¶26 Although counsel’s choice may have contributed to an undesired outcome, we cannot say that this conduct necessarily fell outside the range of reasonable professional assistance. Given the deference with which we view counsel’s judgments, defendant has failed to demonstrate that, under the circumstances, the challenged action could not be considered sound trial strategy.

¶27 Even if we determined that counsel’s performance was deficient under the first prong of the Strickland test, defendant has failed to satisfy the second prong of the test by demonstrating that he was prejudiced by the alleged deficiencies. Defendant asserts that the witness’s testimony “would not only have affected the credibility of Matt Seal, with regard[ ] to ... Montoya’s location within the vehicle, but would have provided the only testimony as to who actually fired the shots.” However, in the course of counsel’s motion for a new trial, this individual, once located, refused to come forward. As discussed above, the statements of this witness, offered through a defense investigator, constitute inadmissible hearsay. Hence, we cannot say that if counsel had been successful in locating this witness prior to trial, that the outcome of the trial would have been any different. For these reasons, defendant’s claim for ineffective assistance of counsel must fail.

III. DENIAL OF MOTION FOR DIRECTED VERDICT

¶ 28 Finally, defendant contends that the trial court erred in denying his motion for a directed verdict because there was insufficient evidence to support a verdict against him.

¶ 29 In reviewing the denial of a motion for a directed verdict based on a claim of insufficiency of the evidence, “[w]e will uphold the trial court’s decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). Therefore, a motion for a directed verdict made at the close of the state’s case may be denied if the trial court finds that the state has established a “prima facie case against the defendant by producing ‘believable evidence of all the elements of the crime charged.’ ” State v. Emmett, 839 P.2d 781, 784 (Utah 1992) (quoting State v. Smith, 675 P.2d 521, 524 (Utah 1983)). The evidence is to be viewed in the light most favorable to the state. See Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (“When reviewing any challenge to a trial court’s denial of a motion for directed verdict, we review the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the party moved against .... ” (internal quotation omitted)).

¶30 In reviewing the evidence presented in this case, we conclude that there was sufficient evidence for the trial court to submit the ease to the jury and, consequently, to support a verdict against the defendant.

¶ 31 At trial, the central issue before the jury was which of the three occupants in the truck fired the gun. In its case-in-chief, the state introduced evidence that included the following: (1) up to four shots were fired from the truck; (2) just prior to the shooting, defendant was seen leaning over the driver, staring at the victims’ car, and yelling; (3) the boys heard two or three voices shouting gang references and derogatory remarks; (4) defendant was seated in the front passenger side of the truck; (5) it was stipulated that Russell Thornwall, the driver of the truck, was right-handed, and that the truck had a stick shift; (6) the truck was following behind the victims’ car directly before the shooting and sped away immediately afterwards; (7) the trajectory of the bullet paths was slightly right to left; and (8) the location of shell casings found at the scene could have been used to infer that the shots were fired from the passenger side of the truck.

¶ 32 When evaluating a motion for a directed verdict “ ‘the court is not free to weigh the evidence and thus invade the province of the jury, whose prerogative it is to judge the facts.’ ” Mahmood, 1999 UT 104 at ¶ 18, 990 P.2d 933 (quoting Mgmt. Comm, of Gray stone Pines Homeowners Ass’n v. Graystone Pines, Inc., 652 P.2d 896, 897 (Utah 1982)). Rather, the court’s role is to determine whether the state has produced “believable evidence” on each element of the crime from which a jury, acting reasonably, could convict the defendant.

¶ 33 Although the evidence presented by the state in this case was largely circumstantial, “it has long been established” that the elements needed to make out a cause of action “may be proven by direct and by circumstantial evidence.” State v. Romero, 554 P.2d 216, 217 (Utah 1976) (citing State v. Richards, 29 Utah 310, 81 P. 142 (1905)). “[I]f there is any evidence, however slight or circumstantial, which tends to show guilt of the crime charged or any of its degrees, it is the trial court’s duty to submit the case to the jury.” State v. Hamilton, 827 P.2d 232, 237 (Utah 1992) (evaluating the sufficiency of fingerprint evidence) (internal quotation omitted).

¶ 34 We cannot say that there was insufficient evidence to submit this case to the jury. In light of the evidence related above, we conclude that a reasonable jury could have found that the elements of the crime had been proven beyond a reasonable doubt. Thus, the trial court did not err in denying defendant’s motion for a directed verdict.

¶ 35 In addition to arguing that there was insufficient evidence to prove that defendant was the shooter, defendant argues that the state did not produce evidence of his intent to kill the other two occupants in the ear sufficient to support the two counts of attempted criminal homicide. Because defendant raises this argument for the first time on appeal, we decline to address it. Espinal v. Salt Lake City Bd. of Educ., 797 P.2d 412, 413 (Utah 1990) (“With limited exceptions, the practice of this court has been to decline consideration of issues raised for the first time on appeal.”).

CONCLUSION

¶ 36 The trial court was correct in denying defendant’s motion for a new trial based on newly discovered evidence. The proffered statements from the confidential witness and from Jason Thornwall constitute hearsay not within any exception. Therefore, the evidence would not be admissible and would not render a different result probable on retrial.

¶ 37 Defendant’s ineffective assistance of counsel claim also fails. Defense counsel’s decision to force the matter to trial prior to locating the third person in the truck was likely a tactical one and fell within the range of reasonable professional assistance. Moreover, even had defense counsel located the witness prior to trial, the witness’s testimony, offered through a defense investigator, constitutes inadmissible hearsay and, thus, would not have altered the outcome of the trial.

¶ 38 Finally, the trial court correctly denied defendant’s motion for a directed verdict. The state established a prima facie case against the defendant. Accordingly, the trial court properly submitted the case to the jury, and there was sufficient evidence to support the verdict.

¶ 39 We therefore affirm defendant’s convictions on all counts.

¶ 40 Chief Justice DURHAM, Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Associate Chief Justice DURRANT’s opinion.

      . At trial, there was some confusion as to the exact position of this third passenger. Although Matt Seal testified that the passenger appeared to be in the middle of the back seat, he also stated that the passenger could have been seated in the middle of the front seat. In any event, this third passenger remained unidentified and did not testify at trial.

      . The officer called to the scene testified that, although he could not conclusively determine how many shots were fired, he ascertained that at least two and “possibly as many as four” bullets hit the victims’ car.

      .After defendant was charged, but prior to trial, Russell Thornwall became the subject of a felony stop. Deputy Sheriff Rob Neilsen, testifying at defendant’s trial, stated that Thornwall fled from police, ran behind a building, and fatally shot himself in the head.


author: PARRISH, Justice:

text:
    2004 UT 6
    STATE of Utah, Plaintiff and Petitioner, v. Jose Luis VICENTE, Defendant and Respondent.
    No. 20020201.
    Supreme Court of Utah.
    Jan. 23, 2004.

      Mark L. Shurtleff, Att’y Gen., ’Jeanne B. Inouye, Asst. Att’y Gen., Salt Lake City, for plaintiff.
    Joan C. Watt, Nisa J. Sisneros, Salt Lake City, for defendant.
   PARRISH, Justice:

¶ 1 This petition arises from the in absen-tia sentencing of Jose Luis Vicente. In August 2000, Vicente pled guilty to attempted possession of marijuana with intent to distribute, a class A misdemeanor. The district court ordered Vicente to submit to a presen-tence investigation and appear for sentencing at a later date. Vicente failed to follow either of these orders, and the district court thereafter sentenced Vicente in absentia to the maximum penalty possible for his offense. Counsel for Vicente appealed the sentence, and the State objected, arguing that a fugitive defendant is not entitled to appeal. Despite Vicente’s fugitive status, the court of appeals addressed the merits of Vicente’s appeal and vacated the in absentia sentence as inconsistent with Utah Rule of Criminal Procedure 22(a) and Vicente’s constitutional right to due process. State v. Vicente, 2002 UT App 43U, 2002 WL 257680; see also State v. Wanosik, 2003 UT 46, 79 P.3d 937.

¶ 2 We granted the State’s petition for a writ of certiorari to address the question of whether or under what circumstances a fugitive defendant is entitled to pursue an appeal. At oral argument, counsel for the parties informed this court that Vicente was again in custody and therefore was no longer a fugitive. In addition, on December 5, 2003, Vicente was present for a district court hearing at which he was resentenced.

¶ 3 Vicente’s recapture and subsequent resentencing render moot the issue raised by Vicente in the court of appeals, as well as the issue raised by the State in its petition for certiorari review. Because of Vicente’s resentencing, a decision by this court on the issues raised by the parties would have no impact on Vicente’s rights. See State v. Sims, 881 P.2d 840, 841 (Utah 1994) (“An issue on appeal is considered moot when the requested judicial relief cannot affect the rights of the litigants.” (citation and quotation omitted)). This court generally does not consider mooted questions on appeal. “When an issue is moot, judicial policy dictates against our rendering an advisory opinion.” Id. at 841-42 (citation and quotation omitted). Accordingly, we decline to address the question raised by the State on grounds of mootness and dismiss the petition.

¶ 4 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice NEHRING concur in Justice PARRISH’s opinion.


author: WILKINS, Justice:

text:
    2004 UT 10
    STATE of Utah, Plaintiff, Respondent, and Cross-Petitioner, v. Jeffery Russell FINLAYSON, Defendant, Petitioner, and Cross-Respondent.
    No. 20020339.
    Supreme Court of Utah.
    Jan. 27, 2004.

      Mark L. Shurtleff, Att’y Gen., Jeanne B. Inouye, Asst. Att’y Gen., James M. Cope, Salt Lake City, for plaintiff.
    Heather Johnson, Robert K. Heineman, Salt Lake City, for defendant.
   WILKINS, Justice:

¶ 1 Jeffery Russell Finlayson was originally convicted of rape, forcible sodomy, and aggravated kidnaping. On appeal, the aggravated kidnaping conviction was reversed. State v. Finlayson, 956 P.2d 283, 295 (Utah Ct.App.1998). When the case was eventually remitted to the trial court, that court resen-tenced Finlayson on the two remaining convictions, for which he had already been sentenced. The court of appeals affirmed that resentencing because of the lack of prejudice to Finlayson. We reverse because the trial court had no jurisdiction to resentence Fin-layson on the rape and forcible sodomy convictions previously affirmed by the court of appeals.

BACKGROUND

¶ 2 Finlayson raped and sodomized his victim, whom he knew from school. Finlayson, 956 P.2d at 286 (upholding convictions for rape and forcible sodomy). He was sentenced to concurrent terms of five years to life each for his rape and forcible sodomy convictions. Although he was initially convicted of aggravated kidnaping as well, that conviction was reversed on appeal. Id. at 295. We affirmed that reversal, State v. Finlayson, 2000 UT 10, ¶ 36, 994 P.2d 1243, and the case was remitted to the trial court pursuant to rule 36 of the Utah Rules of Appellate Procedure. The trial court then resentenced Finlayson on the rape and forcible sodomy convictions. The sentences mirrored those initially imposed by the trial court. Finlayson appealed that resentencing to the court of appeals.

¶ 3 Before the court of appeals, Finlayson argued that the resentencing was improper because the trial court failed to resolve alleged discrepancies between the official version of the offense as listed in a presentenee investigation report and the evidence at trial. In its disposition of Finlayson’s appeal of the resentencing, the court of appeals noted the possibility that the trial court lacked jurisdiction to resentence Finlayson, but ultimately affirmed the action of the trial court because it held that Finlayson was not prejudiced by the failure to resolve any alleged discrepancies, and the “new” sentences were unchanged from those originally imposed.

¶ 4 Both parties petitioned this court for a writ of certiorari. We granted both petitions to consider whether the trial court had jurisdiction to resentence Finlayson after the af-firmance of the rape and forcible sodomy convictions and, if so, whether the court of appeals erred in affirming the resentencing despite the trial court’s failure to resolve the alleged discrepancies in the presentenee investigation report.

ANALYSIS

I. STANDARD OF REVIEW

¶ 5 On certiorari review, we review the court of appeals’ decision for correctness. State ex rel. M.W., 2000 UT 79, ¶ 8, 12 P.3d 80. Jurisdictional questions are likewise reviewed for correctness. Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147.

II. JURISDICTION TO RESENTENCE

¶ 6 Finlayson contends that due process and rules of procedure required the trial court to resentence him when his conviction for aggravated kidnaping was reversed. According to his argument, sentencing in multiple-conviction cases is based on an overall plan and may be rendered invalid to some degree when one of those convictions is reversed on appeal. The State argues that the two remaining convictions were affirmed by the court of appeals and the trial court had no jurisdiction to resentence Finlayson on those convictions.

¶ 7 After his conviction by a jury of the crimes of aggravated kidnaping, rape, and forcible sodomy, Finlayson appealed to the court of appeals which reversed the aggravated kidnaping charge but “affirm[ed] all other aspects of [Finlayson’s] conviction.” Finlayson, 956 P.2d at 286. Thus, the central question we now face is whether the trial court had jurisdiction to resentence Finlay-son for convictions affirmed and unchanged on appeal, simply because another conviction from the same criminal episode was reversed.

A. Jurisdiction Conveyed by Remittitur

¶ 8 Upon remittitur in this case the trial court apparently concluded that it must resentence Finlayson for his affirmed convictions. The record does not disclose that either party requested the resentencing. The trial court’s action was beyond the scope of its jurisdiction because an appellate court’s remittitur only conveys such jurisdiction as may be necessary to effectuate the decision of the appellate court, and the appellate decisions in Finlayson’s case provided for nothing other than reversal of the aggravated kid-naping conviction. No resentencing was either directed or required.

¶ 9 As we noted in Chase Manhattan Bank v. Principal Funding Corp., 2004 UT 9, ¶ 12,-P.3d-, 2004 WL 116416, a remand will almost always contemplate further action by a trial court, but a remittitur is merely the transmission of the record back to the trial court with whatever jurisdiction may be necessary to implement the decision of the appellate court. Id. at ¶¶ 9, 12. Where, as here, the appellate opinion simply affirms a conviction, no action is needed by the trial court. The appellate opinions in Finlayson’s case were insufficient to convey any jurisdiction for any reconsideration or resentencing on the affirmed counts.

¶ 10 There are essentially three ways that a trial court will regain jurisdiction of a case to do more than merely enter the orders necessary to implement an appellate decision. First, an appellate court may remand with express directions. In such a scenario, the appellate court will expressly use the word “remand,” and will sometimes identify the matter to be considered by the trial court. Second, a trial court may regain jurisdiction for further proceedings where the language of the appellate decision unequivocally requires that action. Third, there may be appellate decisions where the language of the decision does not prohibit further action by the trial court and some specific provision of law requires that action. When an appellate court fails to recognize or identify the impact of its ruling on related matters governed by statutes, rules, and the like, the absence of a clear directive by the appellate court will not deprive the trial court of the jurisdiction needed to adjudicate those matters.

¶ 11 In the present case, the appellate language regarding Finlayson’s convictions for rape and forcible sodomy does not fall into any of the enumerated categories. Neither this court nor the court of appeals “remanded” those matters. Nor did the appellate language indicate that further action was required. In fact, the court of appeals’ language pertaining to the rape and forcible sodomy convictions noted that those convictions were affirmed in “all ... aspects.” Finlayson, 956 P.2d at 286. Finlayson argues, however, that due process, presumably under the U.S. and Utah Constitutions, rule 22(e) of the Utah Rules of Criminal Procedure, and rule 30(b) of the Utah Rules of Appellate Procedure, required resentencing despite the failure of either appellate court to order it. We disagree.

B. Jurisdiction Conveyed by Constitutional Due Process Protections

¶ 12 The due process clauses of the U.S. and Utah Constitutions are insufficient to confer jurisdiction on the trial court for resentencing in this case. In support of his due process arguments, Finlayson cites the cases of United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.1989), and United States v. Bentley, 850 F.2d 327 (7th Cir.1988), for the proposition that a criminal defendant must be resentenced after one of a number of convictions is reversed on appeal, despite the affirmance of the convictions for which resentencing is sought. The cases support no such rule. Pimientar-Redondo is a ease in which the appellate court specifically ordered resentencing, unlike this case where the trial court acted sua sponte. Pimienta-Redondo, 874 F.2d at 12. The lesson to be learned from Pimientar-Redondo is that an appellate court may remand for resentencing, not that it must. The Bentley case involved an illegal sentence, not an affirmance of a sentence. Bentley does not support the proposition that an otherwise legal sentence must be revisited in the trial court after reversal of a related conviction. Jurisdiction for correction of an illegal sentence is not found in due process principles but in rule 22(e) of the Utah Rules of Criminal Procedure, which we address below. When a person is convicted and sentenced for multiple crimes in one proceeding, and one or more of those convictions is reversed on appeal, due process does not necessarily require that the defendant be resen-teneed on the affirmed convictions.

¶ 13 According to Finlayson, resentencing must be available because there may be situations where a trial court’s overall sentencing plan is so damaged by the reversal of a component conviction that justice requires resentencing to restore the balance of aggravating and mitigating factors, to properly evaluate sentence enhancements, and to ameliorate other such concerns raised by the reversal. Indeed, the court in Pimientar-Redondo recognized this rationale for resen-tencing when it concluded that

when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand ... if that appears necessary in order to ensure that the punishment still fits both crime and criminal.

874 F.2d at 14. Although due process principles are not necessarily violated by a failure to permit resentencing after reversal of a component conviction, we recognize that there may be instances where resentencing is warranted. In such cases, appellants should include as part of their appeal a request for resentencing in the event that one or more component convictions is reversed. Accompanying that request should be arguments why resentencing is appropriate given the facts of the specific case. If the appellate court agrees that resentencing is appropriate, it will direct the trial court to resentence. No such direction was made by either the court of appeals or this court in Finlayson’s initial appeals.

C. Jurisdiction Conveyed by Rule 22(e)ofthe Utah Rules of Criminal Procedure

¶ 14 Another jurisdictional basis argued by Finlayson is rule 22(e) of the Utah Rules of Criminal Procedure, which provides for continuing jurisdiction for a trial court to correct an illegal sentence. Finlayson essentially argues that the sentence for aggravated kidnaping was illegal and resentencing on the other convictions is warranted. However, Finlayson was sentenced not to one term of imprisonment for three separate crimes, but for three separate terms for three separate crimes. The court of appeals only reversed one conviction and sentence, affirming all the others. Accordingly, only the sentence for aggravated kidnaping was illegal. Each conviction and sentence was distinct and a determination of its legality must be based on that conviction and sentence, not the entirety of offenses covered by one proceeding. As such, rule 22(e) has no application here.

D. Jurisdiction Conveyed by Rule 30(b) of the Utah Rules of Appellate Procedure

¶ 15 Finlayson also asserts that rule 30(b) of the Utah Rules of Appellate Procedure conveyed jurisdiction on the trial court for resentencing. He argues that the rule provides for proceedings in order to execute the judgment of the appellate court. Given that neither this court nor the court of appeals identified how its decision affected his sentence, contends Finlayson, the trial court must conduct further proceedings to implement the appellate decisions. For much the same reason that his rule 22(e) argument fails, his argument under rule 30(b) fails as well — each conviction must be viewed independently. The court of appeals unequivocally affirmed Finlayson’s convictions for rape and forcible sodomy. Nothing further was required of the trial court relative to those convictions — a valid sentence existed for each conviction. As for the aggravated kidnaping conviction, all that was required was an order vacating the judgment of conviction. Rule 30(b) does not contemplate the total resentencing urged by Finlayson.

CONCLUSION

¶ 16 Because neither this court nor the court of appeals ordered the trial court to resentenee Finlayson on the affirmed counts — either expressly or impliedly — and there is no other provision of law requiring resentencing in this case, the trial court was without jurisdiction to resentence Finlayson. Accordingly, we reverse the court of appeals and order vacation of the resentencing. The sentences originally imposed by the trial court are valid and we do not reach the issues regarding the accuracy of the presen-tence investigation report used in the resen-tencing proceeding. We reverse and remand for proceedings consistent with this opinion.

¶ 17 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS’ opinion.