Courtroom gavel

SALT LAKE CITY — The Utah Supreme Court has affirmed the conviction of a former Unified Police officer who was convicted of pulling out his service weapon gun after a hunter in Box Elder County accidentally fired in the direction of him and his family.

Lance Bess, 38, had his appeal dismissed by the state’s high court in an opinion submitted Monday. Bess was charged in November 2015 in Brigham City’s 1st District Court with one count of threat or use of a dangerous weapon in a fight, a class A misdemeanor.

In October 2015, Bess and his family were hunting on public land in Box Elder County when another hunter accidentally fired shots toward Bess’ group. Bess, who was also holding a shotgun, drew his service weapon and held it at his knee as he approached the other hunting group. As he got closer, Bess reportedly shouted profanities at the other group and “demanded to know who had shot at his family,” according to the court’s opinion.

A man with the hunting group said an inexperienced hunter had accidentally shot in the direction of the other group and admitted fault, then asked that Bess holster his service weapon. Bess refused, and the other man said that he was going to call the police. It was then that Bess revealed he was a police officer, and he initially refused to show his badge to the other man. The man later reported the incident to local police, leading to the misdemeanor charge against Bess.

Bess, who at the time of the incident was an officer with the Unified Police Department, was found guilty by a jury on May 5, 2017, according to court records. He later filed motions for a new trial, which was rejected by the district court.

The former officer appealed the case, saying the criminal statute under which he was convicted “makes an exception for persons acting in self-defense and peace officers in performance of their duties,” according to the opinion.

The case has been a point of contention for state law enforcement groups. In August 2017, a number of state and local law enforcement groups — including the Utah Federation of Police, the International Union of Police Associations AFL-CIO, the Utah Peace Officers Association, and others — filed a notice in support of Bess, and advocated for the officer to be awarded a new trial.

The basis of the appeal rested mainly on questions regarding jury instructions and whether the court’s deadlock instruction was “unconstitutionally coercive.”

However, the case also draws into question how law enforcement officers can intervene in situations that may arise while they are off-duty, and if and how they should notify others of their status as a peace officer.

One instance of an off-duty officer intervening is that of former Ogden Police officer Kenneth Hammond, who in 2007 was in Salt Lake City when a gunman opened fire at the Trolley Square shopping center. Hammond, who was carrying his service weapon, was able to return fire against the gunman as Salt Lake City police arrived. In total, five people died and four more were injured.

In his appeal to the Supreme Court, Bess argued that the district court erred during the jury instruction, which changed between the preliminary instruction and the final instruction. In the preliminary instruction, jurors were asked to prove five elements for a conviction. Bess argued that the instruction does not include two “negative elements” that the state would have had to prove beyond a reasonable doubt: that Bess was acting in self-defense or acting as a peace officer in performance of his duties.

The district court concluded these two elements were actually affirmative defenses, and the jury would not be instructed on these two elements until enough evidence was introduced to support the claims.

In the final jury instruction, jurors were told they could not convict Bess unless they found beyond a reasonable doubt that he “did not draw or exhibit the weapon in self-defense” and that he “was not a peace officer . . . acting in the performance of his duties,” according to the opinion. The two points were not included in the original jury instruction.

Bess also appealed his case on the basis that further instructions given to jurors were coercive, after the six-person jury indicated their vote was five to one in favor of guilty. After the deadlock instruction was given and the jury deliberated for an additional three hours, all six jurors voted for guilty.

The Supreme Court struck down that claim, stating that Bess did not include any reasoned analysis to support his claim.

One of Bess’ attorneys, Paul Cassell, said Wednesday that the Utah Supreme Court’s ruling was “disappointing.” Cassell added that he had filed a petition for his Bess’ case to be heard once more in the Supreme Court.

The new petition filed Wednesday argues that the state Supreme Court overlooked three state provisions in their decision issued Monday.

“This Court apparently overlooked these arguments in its opinion, as these three provisions are not analyzed – or even cited – in the Court’s ruling against Detective Bess,” the petition read.

One of the arguments raised in the newly-filed petition was the comparisons between state and federal law, even citing a 2007 Supreme Court case where the court encouraged attorneys “a principled exploration of the interplay between federal and state protections of individual rights.”

For example, Bess’ counsel argues in the new petition that because Utah’s constitution specifies the right to a unanimous jury conviction and federal law does not contain that protection, the priority to follow federal law superseded state law.

The petition is to seek a new hearing in front of the Utah Supreme Court in the effort to be awarded a new trial in district court.

Bess was employed at the Unified Police Department as a sworn officer starting on July 14, 2003, to July 23, 2017. At that time, he was moved to non-sworn position at the department until Aug. 21, 2018, according to Sgt. Melody Gray, UPD public information officer.

As of Wednesday, Bess has an inactive peace officer certification, according to the Utah Department of Public Safety.

Jacob Scholl is the Cops and Courts Reporter for the Standard-Examiner. Email him at jscholl@standard.net and follow him on Twitter at @Jacob_Scholl.

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