What does 'in concert' mean under Utah's gang enhancement statute? State v. Labrum Explained

In State v. Labrum, the Utah Court of Appeals clarified the demanding requirements for imposing sentence enhancements under Utah’s gang enhancement statute, Utah Code section 76-3-203.1. The case provides crucial guidance on what constitutes acting “in concert” with others for enhancement purposes.

Background and Facts

Troy Labrum was convicted of attempted criminal homicide after shooting at passengers in another vehicle. During the incident, Labrum was accompanied by David Mills, who drove the car, and seventeen-year-old Joshua Behunin, who sat in the back seat. Behunin was present when Labrum and Mills planned to “go shoot somebody” and during the actual shooting. The next day, Behunin was present when Labrum bragged about the shooting and burned a newspaper article about the incident. The trial court imposed the gang enhancement, increasing Labrum’s minimum sentence from one year to six years.

Key Legal Issues

The central issue was whether Behunin’s conduct satisfied the “in concert with two or more persons” requirement under section 76-3-203.1. The statute defines this phrase by reference to section 76-2-202, requiring that accomplices be “criminally liable” as parties to the offense.

Court’s Analysis and Holding

The Court of Appeals reversed the enhancement, holding that the trial court’s findings were insufficient. Under section 76-2-202, criminal liability requires proof beyond a reasonable doubt that an accomplice solicited, requested, commanded, encouraged, or intentionally aided the offense. The court emphasized that “mere presence, or even prior knowledge, does not make one an accomplice” when the person neither advises, instigates, encourages, nor assists in the crime’s perpetration. Behunin’s presence during planning and commission, his silent presence during Labrum’s boasting, and his burning of the newspaper article were insufficient to establish criminal liability.

Practice Implications

This decision establishes a high bar for gang enhancement prosecutions. Prosecutors must prove active participation beyond mere presence, even when defendants have knowledge of criminal plans. Defense attorneys should carefully scrutinize enhancement allegations and demand specific evidence of how alleged accomplices actively participated in the underlying offense.