## Facts

- David James Howard became involved in a feud between friends associated with Marilyn Rust and Tammy Johnson.
- After threats and escalating vandalism, Howard brought loaded firearms to Rust’s apartment, including a loaded 12-gauge shotgun on January 14, 1978, expecting trouble.
- Near midnight, Tammy and Danny Johnson and others came to the apartment; an argument about tire slashing lasted about an hour.
- During the argument, Howard stood in the living room holding the shotgun in plain view and indicated it was loaded.
- As the visitors were leaving, Danny Johnson returned to the doorway, demanded Howard come out to fight, and threatened to enter if Howard did not comply.
- When Danny lunged through the door, Howard fired the shotgun; Stan Crager, a bystander, moved between them and was struck.
- Howard then shot Danny Johnson; both Crager and Danny died from their wounds.
- Howard was charged with two counts of first-degree murder and claimed self-defense at trial.
- The jury was instructed on second-degree murder and manslaughter as lesser included offenses, but the court refused Howard’s request for an additional instruction on negligent homicide.
- The jury convicted Howard of second-degree murder for Danny Johnson’s death and manslaughter for Stan Crager’s death.

## Issues

1. Whether the evidence provided a rational basis to instruct the jury on negligent homicide as a lesser included offense, in addition to second-degree murder and manslaughter.

## Decision

- The Utah Supreme Court affirmed the convictions.
- The court held the trial court did not err by refusing a negligent-homicide instruction.
- The evidence did not reasonably support a finding that Howard acted only with criminal negligence rather than at least recklessness.

## Legal Principles

- A defendant is entitled to a lesser included offense instruction only when the evidence provides a rational basis for acquittal on the greater offense and conviction on the lesser.
- A trial court has no duty to instruct on a lesser offense unsupported by the evidence.
- Recklessness involves conscious disregard of a substantial and unjustifiable risk; criminal negligence involves a failure to perceive such a risk.
- Discharging a loaded firearm in a volatile, confined setting with multiple people present constitutes, at minimum, recklessness where the risk of killing or seriously injuring others is obvious.

## Conclusion

Because Howard armed himself in anticipation of conflict, displayed a loaded shotgun during a prolonged confrontation, and fired it in a setting where serious harm to others was plainly foreseeable, the evidence supported at least reckless conduct and did not justify a negligent-homicide instruction; the convictions for second-degree murder and manslaughter were affirmed.


State v. Howard, 597 P.2d 878 (Utah 1979)