HARRIS, Judge
Opinion Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 131500547 Willard R. Bishop and Todd Macfarlane, Attorneys for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred. HARRIS, Judge: ¶1 After a free-range stallion known as Confetti Magic aggressively charged him, rancher Marvin Jay Hunt corralled the horse and castrated him, along with several other stallions. One of Hunt's neighbors (Neighbor) claimed to own two of the stallions Hunt castrated that day, including Confetti Magic, and complained to local law enforcement. Hunt was charged with wanton destruction of livestock, and a jury found him guilty. Hunt now appeals his conviction, arguing that the statutory definition of "wanton destruction of livestock" is unconstitutionally vague, that the trial court erred by refusing to give a self-defense instruction, and that the jury's determination of Confetti Magic's value was unsupported. We affirm.
BACKGROUND
¶2 Hunt is a rancher based in western Iron County, Utah, who raises cattle and horses, largely on property he leases. Several years ago, he drilled a well on the leased property and created a "water point" for animals to use. Most of the property Hunt uses is unfenced, including the area containing the water point, and animals are able to freely roam across the landscape. Indeed, many of the farmers and ranchers in the area—including Hunt—often turn their animals loose to graze freely on the land; in addition, the area is home to various herds of wild, abandoned, and runaway horses. As a result, many animals have access to Hunt's water point, including animals owned by other ranchers, and wild unowned horses. ¶3 Neighbor is one of the other residents of the area. When Neighbor first relocated to the area, he tended only small animals, such as dogs and chickens. At first, Hunt got along well with Neighbor and considered him to be a "good neighbor"; indeed, Hunt allowed Neighbor to use Hunt's water point for his small animals. The relationship began to sour, however, after Neighbor decided to keep horses. Hunt testified at trial that, for a while, Neighbor hauled hay in for his horses, which at that time were exclusively mares, and kept them in a small fenced enclosure. But at some point, Neighbor "opened the gate" and began allowing his horses to graze freely. Neighbor also informed Hunt that he had purchased a pinto Fox Trotter ¶10 Prior to trial, Hunt attempted to develop his first defense by filing a motion to suppress any testimony regarding livestock ownership that did not come from an official state brand inspector, arguing that, under the Utah Livestock Brand and Anti-Theft Act, only a state brand inspector could establish ownership of livestock. The court denied this motion, ruling that the State could endeavor to prove ownership of the horses through conventional means, and that it was not required to do so by proving that there had been an official brand inspection. Hunt then moved to dismiss the case, arguing that, if ownership of livestock could be proven without an official brand inspection, then the wanton destruction of livestock statute was unconstitutionally vague. The court also denied this motion. At trial, however, Hunt ended up acknowledging that both Confetti Magic and the two-year-old pinto stallion belonged to Neighbor. ¶11 During trial, Hunt attempted to develop his other two defenses. He asked the court to instruct the jury regarding self-defense, arguing that he acted only in defense of himself and third parties. The court refused to give these instructions, concluding that a self-defense or defense-of-third-parties instruction would be inappropriate under the facts of this case, because by the time Hunt castrated the horses, they had been corralled and any imminent threat had passed. Also, during trial, after the State presented expert testimony that the two stallions were worth $14,000 less as geldings than as stallions, Hunt presented expert testimony of his own that the stallions were worthless originally and that the castration actually increased the value of both horses as work animals, causing them to appreciate in value by up to $1,500. ¶12 At the conclusion of the trial, the jury found Hunt guilty, but found that the stallions' value was between $500 and $1,500, resulting in a class A misdemeanor conviction rather than a second-degree felony conviction.
Hunt testified that he built fences that could restrict access to the water point, but stated that he rarely closed the fences because he wanted his cattle to be able to freely access the water.
Whether Confetti Magic bears sole responsibility or not, neither party appears to dispute that the number of horses free-grazing in the area grew significantly over time.
ISSUES AND STANDARDS OF REVIEW
¶13 Hunt now appeals, and asks us to consider three issues. First, Hunt contends that, if brand inspection is not required to prove ownership, then Utah's wanton destruction of livestock statute is unconstitutionally vague. Whether a statute is unconstitutionally vague is a question of law, which we review for correctness. State v. Norris, 2007 UT 6, ¶ 10, 152 P.3d 293. Relatedly, Hunt contends that the trial court erred when it determined that, under Utah's wanton destruction of livestock statute, the State could prove ownership of the horses through conventional means, rather than solely by presenting the testimony of a state livestock brand inspector. We review a trial court's interpretation of a statute for correctness. Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 12, 267 P.3d 863. ¶14 Second, Hunt contends that the trial court erred when it declined to instruct the jury on the subjects of self-defense or defense of a third party. We review the court's refusal to issue specific jury instructions for an abuse of discretion. State v. Berriel, 2013 UT 19, ¶ 8, 299 P.3d 1133. ¶15 Third, Hunt contends that there was insufficient evidence to support the jury's valuation of the stallions. "We will reverse a guilty verdict for insufficient evidence only when the evidence is so inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crimes of which he or she was convicted." State v. Kennedy, 2015 UT App 152, ¶ 19, 354 P.3d 775.
In his statement of issues on appeal, Hunt also asserts that the trial court erred by refusing to give additional jury instructions on various topics, including trespassing and estray horses. However, Hunt does not elaborate on these arguments, other than to briefly note that he wishes to challenge the trial court's decision to exclude those instructions. While failing to elaborate on arguments raised on appeal is not necessarily "an absolute bar to our review of an argument," an appellant who "fails to devote adequate attention to an argument . . . will almost certainly fail to carry [his] burden of persuasion." State v. Gardner, 2018 UT App 126, ¶ 22, 428 P.3d 58 (quotation simplified). Because Hunt has not clarified why he believes he was entitled to those instructions, he has not met that burden. See State v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138 (noting that we decline to address an issue when "the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court" (quotation simplified)). We therefore have no reason to disturb the trial court's decisions regarding these other requested instructions.
ANALYSIS
I
¶16 Hunt first contends that the wanton destruction of livestock statute used to convict him is unconstitutionally vague, as applied to the facts of this case, unless it is interpreted to incorporate a mandate that livestock ownership be established by an official state brand inspector. ¶17 The relevant statute provides that "a person is guilty of wanton destruction of livestock if that person . . . injures . . . livestock" and does so "intentionally or knowingly" and "without the permission of the owner." Utah Code Ann. § 76-6-111(2) (LexisNexis 2017). When interpreting a statute, our objective is "to give effect to the intent of the legislature in light of the purpose the act was meant to achieve." Gutierrez v. Medley, (1982). "This is because a [person] who engages in some conduct that is clearly proscribed by statute cannot complain of the vagueness of the law as applied to the conduct of others." State v. Tulley, 2018 UT 35, ¶ 55 (quotation simplified). More broadly,
to survive a vagueness challenge, a criminal statute must (1) define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement, and (2) establish minimal guidelines that sufficiently instruct law enforcement so as to avoid arbitrary and discriminatory enforcement.
Id. ¶ 54 (quotation simplified). As applied to the circumstances of this case, Hunt has failed to establish that the statute violates either element of this test. ¶20 As to the first element, we are not convinced that the statute's language is so vague that Hunt would have had no reason to suspect that castrating two horses he knew belonged to Neighbor would violate the statute. Hunt argues that the statute is vague if it does not require ownership to be proven by the testimony of a brand inspector because, absent a brand proving ownership, a person of ordinary intelligence would not know "whether castration of a feral, estray horse"
would be prohibited. But Hunt's own testimony undermines his argument. At trial, Hunt stated clearly that Confetti Magic and the pinto stallion he castrated belonged to Neighbor, and that he
ownership beyond brand inspection. But this claim is again undermined by Hunt's own testimony that he was aware that the stallions belonged to Neighbor. "In an as applied challenge" we "focus on the particular conduct at hand and not on the possible conduct of hypothetical parties."
State v.
Green, 2004 UT 76, ¶ 51,
99 P.3d 820. Considering Hunt's particular conduct, we conclude that any "reasonable law enforcement official acquainted with [Hunt's] behavior" could determine that his actions might well violate the wanton destruction of livestock statute.
See Tulley, 2018 UT 35, ¶ 73 (quotation simplified). ¶26 Accordingly, the trial court did not err in determining that ownership of livestock could be determined independent of an official brand inspection, and Hunt has failed to demonstrate that the wanton destruction of livestock statute is unconstitutionally vague as applied to him.
This statute was initially numbered as Utah Code section 4-24-12, but was renumbered in 2017. Because the pertinent text of the statute has not changed, we cite to the current version of the statute for convenience.
An "estray" is defined, under Utah law, as "an unbranded sheep, cow, horse, mule, or ass found running at large," or as "a branded sheep, cow, horse, mule, or ass found running at large whose owner cannot be found after reasonable search." Utah Code Ann. § 4-25-102(1)(a). --------
II
¶27 Hunt next contends that the trial court erred when it declined to instruct the jury about self-defense and defense of third parties. Hunt argues that he "was justified in exercising force against" Confetti Magic and the pinto stallion in order to defend himself and others, and that the trial court therefore abused its discretion when it refused to instruct the jury regarding Hunt's self-defense theory. ¶28 A defendant is generally entitled to instructions that support his theory of the case. State v. Berriel, 2013 UT 19, ¶ 10, 299 P.3d 1133. But this entitlement only applies if "the record evidence supports [the] defendant's theory." Id. In this case, Hunt asked that the jury be instructed that he had the right to defend himself or a third party "against another person's imminent use of unlawful force" by "using force . . . when and to the extent" that he reasonably believed it was necessary. See Utah Code Ann. § 76-2-402(1)(a) (LexisNexis 2017). Even instruct the jury about Hunt's self-defense and defense-of-others theories.
III
¶30 Finally, Hunt contends that the evidence was insufficient to support the jury's determination that the stallions had an aggregate value between $500 and $1,500 prior to their castration. Here, Hunt bases his argument on the fact that the jury was given competing assessments of value by his expert and the State's expert. Hunt's expert testified that the stallions had no cash value prior to their castration, but were worth up to $1,500 after their castration because they would be better work animals. The State's expert, in contrast, focused more on the animals' value as stud horses, and testified that the stallions were worth $16,000 prior to their castration, and were worth only $2,000 afterwards. Because the jury determined that the value of the stallions was between $500 and $1,500, Hunt posits that it must have accepted his expert's valuations and rejected the State's, and therefore asserts that the jury must have found that the stallions were valueless prior to his actions. ¶31 We disagree with Hunt's analysis of the jury's valuation. While the jury clearly did not completely accept the valuation provided by the State's expert, it does not follow that the jury completely rejected that valuation either. Certainly, the jury did not wholeheartedly accept the conclusions of Hunt's experts, or it would have acquitted him. Indeed, it is entirely possible that jurors made use of their entitlement to refrain from accepting any "expert's testimony as conclusive," and instead exercised their right to give each expert's testimony the "weight they choose, including no weight at all." See Dixon v. Stewart, 658 P.2d 591, 597 (Utah 1982). As has been noted in the analogous context of calculating damages in civil trials, "juries are generally allowed wide discretion in the assessment of damages," Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1084 (Utah 1985) (quotation simplified), and we will "uphold [a jury's] calculation of damages so long as there is competent evidence to sustain it," Cornia v. Wilcox, 898 P.2d 1379, 1386 (Utah 1995). Here, the jury received expert testimony that the value of the stallions ranged between $0 and $16,000, and it selected a value within that range. Because it was entitled to afford whatever weight to the experts' damage valuations it wanted, and because the value it selected was within the range the experts presented, the jury's conclusions as to value were supported by competent evidence.
CONCLUSION
¶32 Hunt has not established that the wanton destruction of livestock statute is unconstitutionally vague as applied to his conduct, nor that, under Utah law, livestock ownership in criminal cases may only be proven through brand inspection. The trial court did not err when it permitted the State to prove ownership through the testimony of the putative owner and other conventional evidence. Further, the court did not err when it refused to give jury instructions regarding self-defense or defense of a third party. Finally, the evidence was sufficient to support the jury's valuation of the stallions Hunt castrated. Accordingly, we affirm Hunt's conviction.