SALT LAKE CITY — Can a single gunshot that wounds one man and kills another result in two separate counts of the same crime related to pulling the trigger?
Defense attorneys for a man in that situation say it can't, while federal prosecutors contend that it can.
An argument among armed men at a Navajo Nation housing complex in 2011 ended with a deadly bullet passing through Verveen Dawes and piercing the heart of Tedrick Francis, who was standing behind him.
In addition to second-degree murder and assault, federal prosecutors charged Philbert Rentz with two counts of using a firearm during a crime of violence — one for the injury to Dawes and one for the death of Francis.
Lawyers for Rentz argued the two charges based on the single use of a gun amount to double jeopardy. A federal judge agreed and dismissed one of the counts.
But federal prosecutors challenged the ruling, saying each count is connected to a separate crime of violence — murder and assault. The 10th Circuit Court of Appeals sided with prosecutors and reversed the U.S. District Court decision Monday.
A three-judge panel ruled that the district court failed to apply a 10th Circuit precedent when it dismissed the charge.
"We have repeatedly held that (using a firearm during a violent crime) can give rise to multiple charges arising from a single criminal episode, so long as the underlying offenses can be charged without violating double jeopardy," they wrote.
The appeals court also said the possibility of facing multiple charges can and should deter someone from firing a gun in the direction of two or more people.
Rentz remains in custody pending trial. According to court documents, he claims he shot in self-defense during the July 23, 2011, incident.
Witnesses reported seeing a pickup truck drive through the Navajo Housing Authority complex in Aneth, San Juan County, several times before stopping in front of a home.
Dawes and Francis approached the truck and started talking to the driver, Llewellyn Dee Benally, and the passenger, Rentz, both of whom were holding guns, according to a complaint filed in U.S. District Court.
"According to Dawes, Benally pointed an AK-47-type assault rifle at him. Dawes grabbed the barrel of the weapon Benally was holding. Rentz leaned across the front seat, pointed a black firearm and fired one round through the driver's side window of the truck. The bullet passed through Dawes and hit Francis, who was standing behind Dawes," the complaint says.
Francis died at the scene.
Benally fled the housing area, firing the AK-47 four times as he left. He, Rentz and a third man then drove around for several hours discussing how to get rid of the guns, according to the complaint.
They later returned to the scene with the truck's headlights dimmed. Seeing several cars at the home, Benally again drove away.
A police chase ensued and ended when Benally rolled the truck several times. Authorities said they found a 9mm rifle in the vehicle that Rentz allegedly used to shoot the two men.
During an interview with the FBI and Navajo Nation police, Rentz admitted to firing the shot that injured Dawes and killed Francis, according to the complaint.
Benally pleaded guilty to being a felon in possession of a firearm and fleeing in May 2012. A federal judge sentenced him to two years in prison.
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