Representative Nelson T. Abbott proposes the following substitute bill:




Chief Sponsor: Nelson T. Abbott

Senate Sponsor: Heidi Balderree


8     General Description:
9          This bill concerns mental states for criminal offenses involving threats.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the applicable mental state for a threat in the criminal offense of:
13               •     stalking;
14               •     threatened or attempted assault on an elected official; and
15               •     tampering with or retaliating against a juror; and
16          ▸     makes technical and conforming changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          76-3-203.5, as last amended by Laws of Utah 2023, Chapter 111
24          76-5-106.5, as last amended by Laws of Utah 2022, Chapters 142, 181 and 418
25          76-8-313, as last amended by Laws of Utah 1996, Chapter 45

26          76-8-508.5, as last amended by Laws of Utah 1992, Chapter 219

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 76-3-203.5 is amended to read:
30          76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
31          (1) As used in this section:
32          (a) "Felony" means any violation of a criminal statute of the state, any other state, the
33     United States, or any district, possession, or territory of the United States for which the
34     maximum punishment the offender may be subjected to exceeds one year in prison.
35          (b) "Habitual violent offender" means a person convicted within the state of any violent
36     felony and who on at least two previous occasions has been convicted of a violent felony and
37     committed to either prison in Utah or an equivalent correctional institution of another state or
38     of the United States either at initial sentencing or after revocation of probation.
39          (c) "Violent felony" means:
40          (i) any of the following offenses, or any attempt, solicitation, or conspiracy to commit
41     any of the following offenses punishable as a felony:
42          (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief,
43     Chapter 6, Part 1, Property Destruction;
44          (B) assault by prisoner, Section 76-5-102.5;
45          (C) disarming a police officer, Section 76-5-102.8;
46          (D) aggravated assault, Section 76-5-103;
47          (E) aggravated assault by prisoner, Section 76-5-103.5;
48          (F) mayhem, Section 76-5-105;
49          (G) stalking, Subsection 76-5-106.5(2);
50          (H) threat of terrorism, Section 76-5-107.3;
51          (I) aggravated child abuse, Subsection 76-5-109.2(3)(a) or (b);
52          (J) commission of domestic violence in the presence of a child, Section 76-5-114;
53          (K) abuse or neglect of a child with a disability, Section 76-5-110;
54          (L) abuse or exploitation of a vulnerable adult, Section 76-5-111, 76-5-111.2,
55     76-5-111.3, or 76-5-111.4;
56          (M) endangerment of a child or vulnerable adult, Section 76-5-112.5;

57          (N) criminal homicide offenses under Chapter 5, Part 2, Criminal Homicide;
58          (O) kidnapping, child kidnapping, and aggravated kidnapping under Chapter 5, Part 3,
59     Kidnapping, Trafficking, and Smuggling;
60          (P) rape, Section 76-5-402;
61          (Q) rape of a child, Section 76-5-402.1;
62          (R) object rape, Section 76-5-402.2;
63          (S) object rape of a child, Section 76-5-402.3;
64          (T) forcible sodomy, Section 76-5-403;
65          (U) sodomy on a child, Section 76-5-403.1;
66          (V) forcible sexual abuse, Section 76-5-404;
67          (W) sexual abuse of a child, Section 76-5-404.1, or aggravated sexual abuse of a child,
68     Section 76-5-404.3;
69          (X) aggravated sexual assault, Section 76-5-405;
70          (Y) sexual exploitation of a minor, Section 76-5b-201;
71          (Z) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
72          (AA) sexual exploitation of a vulnerable adult, Section 76-5b-202;
73          (BB) aggravated burglary and burglary of a dwelling under Chapter 6, Part 2, Burglary
74     and Criminal Trespass;
75          (CC) aggravated robbery and robbery under Chapter 6, Part 3, Robbery;
76          (DD) theft by extortion under Section 76-6-406 under the circumstances described in
77     Subsection 76-6-406(1)(a)(i) or (ii);
78          (EE) tampering with a witness under Subsection 76-8-508(1);
79          (FF) retaliation against a witness, victim, or informant under Section 76-8-508.3;
80          (GG) tampering with a juror under Subsection [76-8-508.5(2)(c)] 76-8-508.5(2)(a)(iii);
81          (HH) extortion to dismiss a criminal proceeding under Section 76-8-509 if by any
82     threat or by use of force theft by extortion has been committed under Section 76-6-406 under
83     the circumstances described in Subsection 76-6-406(1)(a)(i), (ii), or (ix);
84          (II) possession, use, or removal of explosive, chemical, or incendiary devices under
85     Subsections 76-10-306(3) through (6);
86          (JJ) unlawful delivery of explosive, chemical, or incendiary devices under Section
87     76-10-307;

88          (KK) purchase or possession of a dangerous weapon or handgun by a restricted person
89     under Section 76-10-503;
90          (LL) unlawful discharge of a firearm under Section 76-10-508;
91          (MM) aggravated exploitation of prostitution under Subsection 76-10-1306(1)(a);
92          (NN) bus hijacking under Section 76-10-1504; and
93          (OO) discharging firearms and hurling missiles under Section 76-10-1505; or
94          (ii) any felony violation of a criminal statute of any other state, the United States, or
95     any district, possession, or territory of the United States which would constitute a violent
96     felony as defined in this Subsection (1) if committed in this state.
97          (2) If a person is convicted in this state of a violent felony by plea or by verdict and the
98     trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender
99     under this section, the penalty for a:
100          (a) third degree felony is as if the conviction were for a first degree felony;
101          (b) second degree felony is as if the conviction were for a first degree felony; or
102          (c) first degree felony remains the penalty for a first degree penalty except:
103          (i) the convicted person is not eligible for probation; and
104          (ii) the Board of Pardons and Parole shall consider that the convicted person is a
105     habitual violent offender as an aggravating factor in determining the length of incarceration.
106          (3) (a) The prosecuting attorney, or grand jury if an indictment is returned, shall
107     provide notice in the information or indictment that the defendant is subject to punishment as a
108     habitual violent offender under this section. Notice shall include the case number, court, and
109     date of conviction or commitment of any case relied upon by the prosecution.
110          (b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
111     intends to deny that:
112          (A) the defendant is the person who was convicted or committed;
113          (B) the defendant was represented by counsel or had waived counsel; or
114          (C) the defendant's plea was understandingly or voluntarily entered.
115          (ii) The notice of denial shall be served not later than five days prior to trial and shall
116     state in detail the defendant's contention regarding the previous conviction and commitment.
117          (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to
118     a jury, the jury may not be told, until after it returns its verdict on the underlying felony charge,

119     of the:
120          (i) defendant's previous convictions for violent felonies, except as otherwise provided
121     in the Utah Rules of Evidence; or
122          (ii) allegation against the defendant of being a habitual violent offender.
123          (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
124     being an habitual violent offender by the same jury, if practicable, unless the defendant waives
125     the jury, in which case the allegation shall be tried immediately to the court.
126          (c) (i) Before or at the time of sentencing the trier of fact shall determine if this section
127     applies.
128          (ii) The trier of fact shall consider any evidence presented at trial and the prosecution
129     and the defendant shall be afforded an opportunity to present any necessary additional
130     evidence.
131          (iii) Before sentencing under this section, the trier of fact shall determine whether this
132     section is applicable beyond a reasonable doubt.
133          (d) If any previous conviction and commitment is based upon a plea of guilty or no
134     contest, there is a rebuttable presumption that the conviction and commitment were regular and
135     lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the
136     conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution
137     to establish by a preponderance of the evidence that the defendant was then represented by
138     counsel or had lawfully waived the right to have counsel present, and that the defendant's plea
139     was understandingly and voluntarily entered.
140          (e) If the trier of fact finds this section applicable, the court shall enter that specific
141     finding on the record and shall indicate in the order of judgment and commitment that the
142     defendant has been found by the trier of fact to be a habitual violent offender and is sentenced
143     under this section.
144          (5) (a) The sentencing enhancement provisions of Section 76-3-407 supersede the
145     provisions of this section.
146          (b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in
147     Subsection (1)(c) shall include any felony sexual offense violation of Chapter 5, Part 4, Sexual
148     Offenses, to determine if the convicted person is a habitual violent offender.
149          (6) The sentencing enhancement described in this section does not apply if:

150          (a) the offense for which the person is being sentenced is:
151          (i) a grievous sexual offense;
152          (ii) child kidnapping, Section 76-5-301.1;
153          (iii) aggravated kidnapping, Section 76-5-302; or
154          (iv) forcible sexual abuse, Section 76-5-404; and
155          (b) applying the sentencing enhancement provided for in this section would result in a
156     lower maximum penalty than the penalty provided for under the section that describes the
157     offense for which the person is being sentenced.
158          Section 2. Section 76-5-106.5 is amended to read:
159          76-5-106.5. Stalking -- Definitions -- Injunction -- Penalties -- Duties of law
160     enforcement officer.
161          (1) (a) As used in this section:
162          (i) "Course of conduct" means two or more acts directed at or toward a specific
163     individual, including:
164          (A) acts in which the actor follows, monitors, observes, photographs, surveils,
165     threatens, or communicates to or about an individual, or interferes with an individual's
166     property:
167          (I) directly, indirectly, or through any third party; and
168          (II) by any action, method, device, or means; or
169          (B) when the actor engages in any of the following acts or causes someone else to
170     engage in any of these acts:
171          (I) approaches or confronts an individual;
172          (II) appears at the individual's workplace or contacts the individual's employer or
173     coworker;
174          (III) appears at an individual's residence or contacts an individual's neighbor, or enters
175     property owned, leased, or occupied by an individual;
176          (IV) sends material by any means to the individual or for the purpose of obtaining or
177     disseminating information about or communicating with the individual to a member of the
178     individual's family or household, employer, coworker, friend, or associate of the individual;
179          (V) places an object on or delivers an object to property owned, leased, or occupied by
180     an individual, or to the individual's place of employment with the intent that the object be

181     delivered to the individual; or
182          (VI) uses a computer, the Internet, text messaging, or any other electronic means to
183     commit an act that is a part of the course of conduct.
184          (ii) (A) "Emotional distress" means significant mental or psychological suffering,
185     whether or not medical or other professional treatment or counseling is required.
186          (B) "Emotional distress" includes significant mental or psychological suffering
187     resulting from harm to an animal.
188          (iii) "Immediate family" means a spouse, parent, child, sibling, or any other individual
189     who regularly resides in the household or who regularly resided in the household within the
190     prior six months.
191          (iv) "Private investigator" means the same as that term is defined in Section 76-9-408.
192          (v) "Reasonable person" means a reasonable person in the victim's circumstances.
193          (vi) "Stalking" means an offense as described in Subsection (2).
194          (vii) "Text messaging" means a communication in the form of electronic text or one or
195     more electronic images sent by the actor from a telephone or computer to another individual's
196     telephone or computer by addressing the communication to the recipient's telephone number.
197          (b) Terms defined in Section 76-1-101.5 apply to this section.
198          (2) An actor commits stalking if the actor intentionally or knowingly:
199          (a) engages in a course of conduct directed at a specific individual and knows [or
200     should know that] or is reckless as to whether the course of conduct would cause a reasonable
201     person:
202          (i) to fear for the individual's own safety or the safety of a third individual; or
203          (ii) to suffer other emotional distress; or
204          (b) violates:
205          (i) a stalking injunction issued under Title 78B, Chapter 7, Part 7, Civil Stalking
206     Injunctions; or
207          (ii) a permanent criminal stalking injunction issued under Title 78B, Chapter 7, Part 9,
208     Criminal Stalking Injunctions.
209          (3) (a) A violation of Subsection (2) is a class A misdemeanor:
210          (i) upon the actor's first violation of Subsection (2); or
211          (ii) if the actor violated a stalking injunction issued under Title 78B, Chapter 7, Part 7,

212     Civil Stalking Injunctions.
213          (b) Notwithstanding Subsection (3)(a), a violation of Subsection (2) is a third degree
214     felony if the actor:
215          (i) has been previously convicted of an offense of stalking;
216          (ii) has been previously convicted in another jurisdiction of an offense that is
217     substantially similar to the offense of stalking;
218          (iii) has been previously convicted of any felony offense in Utah or of any crime in
219     another jurisdiction which if committed in Utah would be a felony, in which the victim of the
220     stalking offense or a member of the victim's immediate family was also a victim of the
221     previous felony offense;
222          (iv) violated a permanent criminal stalking injunction issued under Title 78B, Chapter
223     7, Part 9, Criminal Stalking Injunctions; or
224          (v) has been or is at the time of the offense a cohabitant, as defined in Section
225     78B-7-102, of the victim.
226          (c) Notwithstanding Subsection (3)(a) or (b), a violation of Subsection (2) is a second
227     degree felony if the actor:
228          (i) used a dangerous weapon or used other means or force likely to produce death or
229     serious bodily injury, in the commission of the crime of stalking;
230          (ii) has been previously convicted two or more times of the offense of stalking;
231          (iii) has been convicted two or more times in another jurisdiction or jurisdictions of
232     offenses that are substantially similar to the offense of stalking;
233          (iv) has been convicted two or more times, in any combination, of offenses under
234     Subsection (3)(b)(i), (ii), or (iii);
235          (v) has been previously convicted two or more times of felony offenses in Utah or of
236     crimes in another jurisdiction or jurisdictions which, if committed in Utah, would be felonies,
237     in which the victim of the stalking was also a victim of the previous felony offenses; or
238          (vi) has been previously convicted of an offense under Subsection (3)(b)(iv) or (v).
239          (4) In a prosecution under this section, it is not a defense that the actor:
240          (a) was not given actual notice that the course of conduct was unwanted; or
241          (b) did not intend to cause the victim fear or other emotional distress.
242          (5) An offense of stalking may be prosecuted under this section in any jurisdiction

243     where one or more of the acts that is part of the course of conduct was initiated or caused an
244     effect on the victim.
245          (6) (a) Except as provided in Subsection (6)(b), an actor does not violate this section if
246     the actor is acting:
247          (i) in the actor's official capacity as a law enforcement officer, governmental
248     investigator, or private investigator; and
249          (ii) for a legitimate official or business purpose.
250          (b) A private investigator is not exempt from this section if the private investigator
251     engages in conduct that would constitute a ground for disciplinary action under Section
252     53-9-118.
253          (7) (a) A permanent criminal stalking injunction limiting the contact between the actor
254     and victim may be filed in accordance with Section 78B-7-902.
255          (b) This section does not preclude the filing of criminal information for stalking based
256     on the same act which is the basis for the violation of the stalking injunction issued under Title
257     78B, Chapter 7, Part 7, Civil Stalking Injunctions, or a permanent criminal stalking injunction
258     issued under Title 78B, Chapter 7, Part 9, Criminal Stalking Injunctions.
259          (8) (a) A law enforcement officer who responds to an allegation of stalking shall use all
260     reasonable means to protect the victim and prevent further violence, including:
261          (i) taking action that, in the officer's discretion, is reasonably necessary to provide for
262     the safety of the victim and any family or household member;
263          (ii) confiscating the weapon or weapons involved in the alleged stalking;
264          (iii) making arrangements for the victim and any child to obtain emergency housing or
265     shelter;
266          (iv) providing protection while the victim removes essential personal effects;
267          (v) arranging, facilitating, or providing for the victim and any child to obtain medical
268     treatment; and
269          (vi) arranging, facilitating, or providing the victim with immediate and adequate notice
270     of the rights of victims and of the remedies and services available to victims of stalking, in
271     accordance with Subsection (8)(b).
272          (b) (i) A law enforcement officer shall give written notice to the victim in simple
273     language, describing the rights and remedies available under this section and Title 78B,

274     Chapter 7, Part 7, Civil Stalking Injunctions.
275          (ii) The written notice shall also include:
276          (A) a statement that the forms needed in order to obtain a stalking injunction are
277     available from the court clerk's office in the judicial district where the victim resides or is
278     temporarily domiciled; and
279          (B) a list of shelters, services, and resources available in the appropriate community,
280     together with telephone numbers, to assist the victim in accessing any needed assistance.
281          (c) If a weapon is confiscated under this Subsection (8), the law enforcement agency
282     shall return the weapon to the individual from whom the weapon is confiscated if a stalking
283     injunction is not issued or once the stalking injunction is terminated.
284          Section 3. Section 76-8-313 is amended to read:
285          76-8-313. Threatened or attempted assault on an elected official.
286          [A person commits] An actor commits threatened or attempted assault on an elected
287     official [when he]:
288          (1) if the actor attempts or threatens, irrespective of a showing of immediate force or
289     violence, to inflict bodily injury [to the] on an elected official with the intent to impede,
290     intimidate, or interfere with the elected official in the performance of [his] the elected official's
291     official duties or with the intent to retaliate against the elected official because of the
292     performance of [his] the elected official's official duties[.]; and
293          (2) if the actor's conduct described in Subsection (1) involves a threat, the actor is
294     reckless as to whether the actor's threat would be considered to be threatening by a reasonable
295     person who received the threat.
296          Section 4. Section 76-8-508.5 is amended to read:
297          76-8-508.5. Tampering with or retaliating against a juror.
298          (1) (a) As used in this section, "juror" means [a person] an individual:
299          [(a)] (i) summoned for jury duty; or
300          [(b)] (ii) serving as or having served as a juror or alternate juror in any court or as a
301     juror on any grand jury of the state.
302          (b) Terms defined in Sections 76-1-101.5, 76-8-101, and 76-8-501 apply to this
303     section.
304          (2) [A person is guilty of tampering with a juror if he] An actor commits tampering or

305     retaliating against a juror if the actor:
306          (a) attempts to or actually influences a juror in the discharge of the juror's service by:
307          [(a)] (i) communicating with the juror by any means, directly or indirectly, except for
308     [attorneys] an attorney in the lawful discharge of [their] the attorney's duties in open court;
309          [(b)] (ii) offering, conferring, or agreeing to confer any benefit upon the juror; or
310          [(c)] (iii) (A) communicating to the juror a threat that a reasonable person would
311     believe to be a threat to injure:
312          [(i)] (I) the juror's person or property; or
313          [(ii)] (II) the person or property of [any other person] another individual in whose
314     welfare the juror is interested[.]; and
315          (B) the actor is reckless as to whether the actor's threat would be considered to be
316     threatening by a reasonable person who received the threat; or
317          [(3)] (b) [A person is guilty of tampering with a juror if he commits any] commits an
318     unlawful act in retaliation for [anything done] an action taken by the juror in the discharge of
319     the juror's service:
320          [(a)] (i) to the juror's person or property; or
321          [(b)] (ii) to the person or property of [any other person] another individual in whose
322     welfare the juror is interested.
323          [(4)] (3) [Tampering with a juror] A violation of Subsection (2) is a third degree
324     felony.
325          Section 5. Effective date.
326          This bill takes effect on May 1, 2024.