STATE v. WHITEHEAD, 2001 UT App 385

Case No. 20001150-CA.Utah Court of Appeals.
FILED: December 13, 2001. (Not For Official Publication)

Third District, Murray Department, The Honorable Joseph C. Fratto, Jr.

Heather Johnson and Kimberly Clark, Salt Lake City, for Appellant.

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.

Before Judges Greenwood, Billings, and Orme.

MEMORANDUM DECISION
ORME, Judge:

On the continuum of culpable mental states, “recklessness is not marked by a sharp analytical line.” State v. Singer, 815 P.2d 1303, 1307 (Utah Ct.App. 1991). Rather, determining when one’s conduct crosses from mere negligence to recklessness is, “[i]n essence[,] . . . a matter of judging when conduct is no longer just gray but dark gray.” Id. Furthermore, “[i]t is within the province of a properly instructed jury to consider all evidence admitted at trial and then decide whether the defendant acted recklessly.” Id. See State v. Petree, 659 P.2d 443, 444 (Utah 1983).

Here, there is no real dispute as to defendant’s actions. All that is contested is (1) whether defendant was “aware of but consciously disregard[ed] a substantial and unjustifiable risk that the circumstances [surrounding his conduct] exist[ed] or the result [of his conduct would] occur,” and (2) whether the risk was “of such a nature and degree that its disregard constitute[d] a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Utah Code Ann. § 76-2-103(3) (1999) (defining criminal recklessness).

Defendant conceded that he had been around guns his whole life. Defendant acknowledged that he had been taught gun safety by his father and in gun safety courses. Defendant knew that the action of pulling the slide on his gun back a certain distance and releasing it would load a bullet into the firing chamber. He knew that two of the first rules of gun safety are to never load a gun until you are ready to shoot it, and always point the gun in a safe direction. Finally, defendant had been trained that to safely decock his gun, he was to point it upward and, using both hands, slowly pull the trigger while holding and then slowly lowering the hammer, using both thumbs.

Defendant pulled into the parking lot of a “pretty packed” business establishment with a loaded handgun under the seat of his truck. He removed the gun from his truck and “started to fool around with the gun” while two people stood within three to four feet of him. Although he initially removed the magazine from the gun and a bullet from the chamber, he replaced the magazine and pulled the slide back, chambering a bullet.

Lindsay had been standing four feet from defendant for over ten minutes, occasionally drawing defendant’s attention when she spoke to Nichol. Eventually, defendant’s actions caused Nichol to “move away.” Lindsay testified, “It was apparent that . . . he wasn’t funny, wasn’t being macho, and I had stuck my leg out and taken a step forward to pivot and turn to walk away around the back of his truck.” At the moment Lindsay took her step to leave, defendant determined to decock his gun. With “one sweeping motion,” defendant turned his upper body toward where Lindsay was standing, with one hand pointing the gun down only fifteen inches from Lindsay’s leg. While pulling the trigger, he attempted to hold the hammer with one thumb. Defendant’s thumb slipped, and the gun discharged a bullet into Lindsay’s leg.

In light of the above, we cannot say, as a matter of law, that the evidence was legally insufficient to show that defendant had every reason to know his gun was loaded, that Lindsay was standing within a few feet of him, and that a “sweeping” single-handed attempt to decock his gun while pointing it within inches of Lindsay’s leg created a substantial risk to Lindsay, and perhaps others. Furthermore, we cannot say as a matter of law that defendant’s actions under these circumstances did not constitute “a gross deviation from the standard of care that an ordinary person would exercise under all the [same] circumstances.” Utah Code Ann. § 76-2-103(3) (1999).

Affirmed.

WE CONCUR: Pamela T. Greenwood, Presiding Judge, Judith M. Billings, Judge.