State v. Lopes

In State v. Lopes, 1999 UT 24, 980 P.2d 191, the Court determined that a previous version of the gang enhancement statute was unconstitutional because it allowed a judge to serve as a factfinder when determining whether the underlying crime was committed "in concert" with other individuals. As a predicate to that conclusion, we initially determined that, by enacting the gang enhancement statute, the legislature had essentially created a new offense and that every element of that offense must be proven to a jury beyond a reasonable doubt. Id. Specifically, we stated that the legislature, "in essence, . . . created a specific new crime or a crime of a higher degree." Id. In Lopes, the Court also analogized the gang enhancement statute to Utah's firearm enhancement statute, as then in effect, stating that "the legislature, by enacting the firearm enhancement, . . . increased the degree of the crime by establishing a separate set of elements that, if proven, warranted a higher punishment. . . . While the State did not need to separately charge the enhancement as a crime, it did need to prove each element, including the defendant's use of a firearm, beyond a reasonable doubt because the crime was increased as to degree by the presence of the firearm." Id. Lopes concluded "that the gang enhancement statute creates a new and separate offense." Id. The Court held subsection (5)(c) of section 76-3-203.1 of the Utah Code unconstitutional. There, the Court concluded that the enhancement statute created a new and separate offense and, therefore, held that due process requires the state to prove each element of this crime beyond a reasonable doubt. Additionally, the Court held that a defendant has a constitutional right to have a jury, rather than the sentencing judge, determine whether the group enhancement statute applies and determine whether the state proved each element of this crime beyond a reasonable doubt. See id.