State v. Johnson

2014 UT App 161
_________________________________________________________
THE U TAH COURT OF A PPEALS
STATE OF U TAH,
Plaintiff and Appellee,
v.
MICHAEL WADDELL J OHNSON,
Defendant and Appellant.
Opinion
No. 20100393‐CA
Filed July 3, 2014
Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 071900184
Ronald Fujino, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
J UDGE J AMES Z. D AVIS authored this Opinion, in which J UDGE
STEPHEN L. R OTH concurred, with opinion, and SENIOR J UDGE
R USSELL W. BENCH dissented, with opinion. 1
DAVIS, Judge:
¶1 	Michael Waddell Johnson appeals from a conviction of
murder, a first‐degree felony, following a jury trial in March 2010.
We reverse and remand.
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R11‐201(6).

State v. Johnson
BACKGROUND
¶2 	The deceased (Decedent) in this case was discovered dead
on the night of Monday, January 12, 1998, by her son. 2 She was
found lying on her bed fully clothed and wearing shoes. The
medical examiner who performed the autopsy explained that
Decedent had high levels of alcohol and cocaine in her system. The
medical examiner also found that she had sustained injuries to her
face and mouth; two small, bloody puncture marks on her left
clavicle; hemorrhaging in several muscles on the left side of her
neck; and a fracture in the “cricoid” cartilage below her larynx. He
characterized the injuries to the face and mouth as recent and
indicative of “a blow or direct trauma to that area,” and attributed
the hemorrhaging in the neck muscles, the cartilage fracture, and
abrasions 	on 	Decedent’s 	chin 	as 	most 	likely 	the 	result 	of
strangulation. He ultimately assigned the cause of death as
“asphyxia by strangulation” and marked the high levels of cocaine
and alcohol detected in her blood stream as “significant” and
“contributory to her death.”
¶3 	Johnson was interviewed by authorities during the police
investigation following Decedent’s death. He told authorities that
he and Decedent went to a party and used cocaine on the night of
her death—Friday, January 9, 1998. He was not considered a
suspect at that time, and the investigation was eventually closed in
June 1998 “as a suspicious death.”
¶4 	Several years later, in 2005, the cold case was reopened and
assigned to a new homicide detective (Detective). Detective began
his investigation by submitting DNA samples from Decedent and
Johnson for analysis. The analysis identified the presence of
Johnson’s DNA on fingernail clippings that were taken from
Decedent during the initial investigation. Detective re‐interviewed
Johnson, at which time Johnson described having had an on‐and‐
off romantic relationship with Decedent. He admitted to Detective
2. “We relate the facts in the light most favorable to the jury’s
verdict.” See State v. Litherland, 2000 UT 76, ¶ 2, 12 P.3d 92.
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State v. Johnson
that he sometimes “slapped [Decedent] around” when they were
drinking but that they were in the process of patching things up
and getting back together. Johnson also told Detective that he and
Decedent had used cocaine at his daughter’s house the night of
Decedent’s death before going to the party that he had told the
police about during the initial investigation. He indicated that
Decedent left the party before him, that he was later picked up
from the party by two friends, and that he stayed at a friend’s
apartment for the rest of the weekend. Detective interviewed other
individuals 	who 	recounted 	the 	circumstances 	surrounding
Decedent’s death in ways that conflicted with Johnson’s account.
One individual informed Detective that Johnson had admitted to
him that he had strangled Decedent to death.
¶5 	Johnson was ultimately charged with alternative counts of
murder, one based on a theory of intentional murder and the other
based on a theory of depraved indifference murder, both first‐
degree felonies. See generally Utah Code Ann. § 76‐5‐203(2)(a),
(2)(c), (3)(a) (LexisNexis 2012). At trial, the primary controversy
was over causation—whether Decedent’s physical injuries were
caused by a fall, an altercation, or strangulation and whether she
died primarily as a result of the mixture of alcohol and cocaine in
her system or from strangulation.
¶6 	The testimony of the medical examiner, called as a witness
for the State, illustrates the complexity and closeness of the
causation issue. He testified that it was possible that Decedent’s
injuries were caused by a fall, punch, kick, or other “blunt‐force
trauma,” 	including 	the 	injuries 	he 	ultimately 	attributed 	to
strangulation. He noted that none of Decedent’s injuries were, on
their own, sufficient to cause death and that it is “possible that an
individual could sustain [all of] those injuries and still survive.” He
further testified that Decedent’s blood alcohol level of 0.33 could
potentially have caused her death “in and of itself,” that 0.33 is
“slightly greater than four times the legal limit,” and that other
physiological indicators suggested that Decedent was likely still
absorbing alcohol, i.e., becoming more intoxicated, at the time of
her death. Additionally, the medical examiner testified that
cocaine, even in “small amount[s],” can be deadly and that
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State v. Johnson
Decedent had a “significant amount of cocaine” in her system. The
medical examiner also noted that there were track marks on
Decedent’s body which “most likely” indicated that she had been
an intravenous drug user. Furthermore, the medical examiner
testified that the human body, in response to the combination of
alcohol and cocaine in the system, produces a third substance,
cocaethylene, that “is [thought] to be more toxic to the heart than
the 	cocaine 	itself.” 	The 	medical 	examiner 	testified 	that 	the
combination 	of 	intoxicants 	in 	a 	person’s 	system 	during 	an
altercation can also “[m]ake an individual more susceptible to the
injuries sustained,” while the physiological response to being in an
altercation can “increase the effects of the drugs and alcohol.” In
other words, the medical examiner testified that Decedent could
have died “just from the cocaine intoxication or just from the
alcohol or a combination,” though he believed strangulation to be
the most likely cause.
¶7 	On redirect, however, he also testified that as “a scientist” he
never “foreclose[s] possibilities totally” because “anything can
happen.” He explained that his determination that something is
“more likely or probable” means that “the odds are that this is the
type of event that took place, as opposed to just some reaching type
of hypothetical.” He also testified that there is no exact amount of
a drug or alcohol that is necessarily deadly because individuals
have varying tolerances to intoxicants and that where Decedent
was apparently both an intravenous drug user and potentially an
alcoholic, 	she 	presumably 	had 	a 	higher 	tolerance 	of 	those
substances and their combined effects. In other words, the levels
that may have been fatal to one person may not necessarily have
been fatal to Decedent.3
¶8 	Johnson’s expert witness, a forensic pathologist and a chief
medical examiner in Michigan, agreed with the medical examiner’s
analysis on many points—the general time of death estimate
3. This summary is a portion of the medical examiner’s testimony
and represents only a fraction of the evidence presented on
causation.
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State v. Johnson
provided; 	that 	there 	was 	evidence 	of 	an 	altercation; 	that
strangulation was a plausible consideration; and that the combined
effects of alcohol, cocaine, and the physiological responses to an
altercation could have contributed to Decedent’s death. The
primary difference between the two experts’ analyses was which
set of factors each believed more likely caused Decedent’s death.
Johnson’s expert believed that “the primary cause associated with
[Decedent’s] death [was] the drug and alcohol intoxication.” He
explained that though “there is evidence of an altercation,” it is
“not sufficient evidence . . . to outright call a strangulation cause of
death,” particularly in light of the intoxication evidence. He stated
that “[t]he toxicology testing demonstrates a very high level of
alcohol and a combination of alcohol and cocaine intoxication” that
is “not disputed and can’t be disputed.” In light of that evidence,
Johnson’s expert believed that although strangulation could not be
entirely excluded as a possible cause of death or contributing
factor, he “would not necessarily associate the [injuries from the]
altercation with a specific act of strangulation”; rather, he opined
that some of the injuries Decedent sustained only “potentially
could have been the result of neck injury associated with a
strangulation.” Like the medical examiner, Johnson’s expert could
not be totally certain which was the cause of death, noting that “the
evidence in this case does not allow distinct separation between
three 	different 	[cause 	of 	death] 	possibilities” 	because 	each
possibility was “reasonable . . . based on the evidence.”4
¶9 	The 	trial 	court 	granted 	Johnson’s 	request 	for 	a 	jury
instruction on the lesser included offense of homicide by assault,
and the court agreed to prepare the corresponding verdict form.
The trial court read the instructions to the jury, including an
instruction on the elements of homicide by assault, and later
observed that it included the same elements instruction in the jury
4. The expert identified those three “distinct” possible causes of
death as (1) drug and alcohol intoxication as the sole cause, (2) the
combination 	of 	a 	minor 	altercation 	with 	drug 	and 	alcohol
intoxication, or (3) an altercation with a strangulation component
in combination with drug and alcohol intoxication.
20100393‐CA 	2014 UT App 161	5

State v. Johnson
instruction packet. The jury ultimately found Johnson guilty of
intentional murder. The verdict form returned by the jury,
however, did not list the homicide by assault option, and a separate
verdict form for the lesser included offense is missing from the trial
record. Omitting the trial court’s heading and captioning, the
verdict form the jury received stated,
We, the Jurors empaneled in the above case, find the
defendant, MICHAEL WADDELL JOHNSON,
_______Guilty 	of 	Criminal 	Homicide, 	Murder,
intentionally and knowingly causing the death of
[Decedent]
Or
_______ Guilty of Criminal Homicide, Murder, acting
under 	circumstances 	evidencing 	depraved
indifference to human life
Or
_______ Not guilty of Criminal Homicide, Murder.
DATED this __ day of _____ 2010.
_______________
FOREPERSON
¶10 	Johnson appeals his conviction, arguing that the missing
verdict form indicates that the trial court did not actually provide
a verdict form for the lesser included offense of homicide by
assault and that this omission is reversible error. Upon the filing of
Johnson’s appeal, this court granted the State’s remand request to
allow 	the 	trial 	court 	to 	supplement 	the 	record 	with 	any
documentation related to the missing verdict form. On remand,
almost one‐and‐a‐half years after the trial, the trial court issued a
minute entry, stating, “After carefully combing through the case
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State v. Johnson
file, the exhibits, and all other materials associated with the record
of the case, the court was unable to locate the lesser‐included
offense verdict form.” Nonetheless, the trial court concluded that,
“Although the lesser‐included offense verdict form does not now
exist, it is the court’s recollection that the court created the lesser‐
included offense verdict form and sent the verdict form with the
jury instructions with the jury when it was released to deliberate.”
The trial court found that because the jury convicted Johnson of
murder, the missing verdict form “was not used by the jury and,
therefore, not signed by the jury foreperson” and, as a result, “may
not have been brought into the courtroom by the foreperson, but
was left in the jury room where it was ultimately discarded by
court staff.” The trial court issued its minute entry on remand
without holding a hearing, and Johnson amended his opening brief
to include his challenge to the propriety of the trial court’s
procedure and findings on remand.
ISSUES AND STANDARDS OF REVIEW
¶11 	As stated, Johnson’s primary argument is that the absence
in the record of a verdict form on the lesser included offense
establishes that the trial court failed to provide the jury with a
verdict form on the lesser included offense.5 We review the jury
5. Johnson also challenges the jury instruction on causation as
inadequate for failing to include a definition of proximate cause.
Because of the manner in which we resolve the other issues before
us, we do not address this argument. See State v. Tucker, 800 P.2d
819, 824 n.9 (Utah Ct. App. 1990) (“An appellate court has
discretion as to the nature and extent of the opinions it renders and
we need not address in writing each and every argument, issue, or
claim raised and properly before us on appeal.” (citation and
internal quotation marks omitted)). Rather, on remand, we invite
the trial court to reconsider the best wording of a causation jury
instruction under the facts and circumstances of this case and the
propriety 	of 	omitting 	proximate 	cause 	from 	the 	causation
(continued...)
20100393‐CA 	2014 UT App 161	7

State v. Johnson
instructions, including the jury verdict forms, for correctness. Cf.
State v. S.H., 2002 UT 118, ¶ 11, 62 P.3d 444.
¶12 	However, before we reach that issue, we must address the
question we posed to the parties in a request for supplemental
briefing: whether the lesser included offense jury instruction
(Instruction 24) misstated the mens rea element of homicide by
assault in a manner that effectively removed the lesser offense from
the jury’s consideration, rendering resolution of the primary issue
on appeal—whether the corresponding verdict form on the lesser
included offense was properly provided to the jury—irrelevant.
When an appellate court discovers an “astonishingly erroneous but
undetected ruling” that if left unaddressed “could subject the
losing party, especially a defendant in a criminal case, to ‘great and
manifest injustice,’” “[e]ven if the theory is uncovered after
arguments, in the final stages of opinion drafting, the [appellate]
court should allow the parties the chance to weigh in on its validity
through supplemental briefing.” State v. Robison, 2006 UT 65, ¶¶ 23,
24 n.4, 147 P.3d 448 (footnote omitted); see also State v. Breckenridge,
688 P.2d 440, 443 (Utah 1983) (vacating the defendant’s conviction
on grounds first addressed by the defendant on the suggestion of
the supreme court during oral argument on appeal). Accordingly,
we focus our review on Instruction 24 and review that instruction
for correctness. See S.H., 2002 UT 118, ¶ 11.
ANALYSIS
I. The Homicide By Assault Jury Instruction
¶13 	In response to this court’s request, the parties submitted
supplemental briefing addressing for the first time the argument
5. (...continued)
instruction. See generally State v. Gonzalez, 2002 UT App 256, ¶ 6, 56
P.3d 969 (providing the causation instruction that the trial court in
this case adopted almost in full, omitting the one sentence that
addressed proximate cause).
20100393‐CA 	2014 UT App 161	8

State v. Johnson
that Instruction 24 misstated the mens rea element of the lesser
included offense in a manner that effectively removed the lesser
offense from the jury’s consideration and rendered the question of
the 	missing 	verdict 	form 	inconsequential. 	Our 	request 	for
supplemental briefing first instructed the parties to address the
propriety 	of 	this 	court’s 	review 	of 	Johnson’s 	conviction 	on
alternative grounds under State v. Robison, 2006 UT 65, 147 P.3d
448, and other applicable law.
A. 	The Facts of this Case Satisfy the Robison Standard.
¶14 	The State argues that the invited error doctrine precludes
our review of Instruction 24 under a plain error analysis because
Johnson’s trial counsel provided and approved of the instruction
given to the jury. “The doctrine of invited error bars review for
plain error when the defendant led the trial court to believe that
there was nothing wrong with the instruction,” State v. Binkerd,
2013 UT App 216, ¶ 21, 310 P.3d 755 (citation and internal
quotation marks omitted), which includes situations in which the
defendant proposed the jury instruction he challenges on appeal,
see State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct. App. 1991) (citing
invited error grounds in refusing to consider the defendant’s
arguments challenging the correctness of a jury instruction that
defense counsel submitted to the trial court), aff’d sub nom. Perdue
v. Utah Bd. of Pardons, 900 P.2d 1093 (Utah 1995). The State also
contends that because Johnson’s appellate counsel has not raised
an ineffective assistance claim related to the instruction, we are
precluded 	from 	reviewing 	the 	matter 	under 	an 	ineffective
assistance framework. See State v. McNeil, 2013 UT App 134, ¶ 25,
302 P.3d 844 (“While invited error precludes a plain error claim, it
does not preclude a claim for ineffective assistance of counsel.”),
cert. granted, 317 P.3d 432 (Utah 2013). Indeed, our case law favors
application of the invited error rule even “where invited error butts
up against manifest injustice.” Perdue, 813 P.2d at 1206. We are also
mindful that “[a]n appellate court that does the lifting for an
appellant distorts [the] fundamental allocation of benefits and
burdens” between the parties on appeal. Robison, 2006 UT 65, ¶ 21.
While we agree that we cannot review this issue under an
ineffective assistance framework and that the doctrine of invited
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State v. Johnson
error likely applies here as well, 6 our appellate courts have also
long recognized that an unpreserved issue may be considered on
appeal if exceptional circumstances exist. See State v. Archambeau,
820 P.2d 920, 923 n.5 (Utah Ct. App. 1991) (collecting cases); see also
State v. Kazda, 545 P.2d 190, 193 (Utah 1976) (explaining that a
party’s failure to comply with standard preservation rules should
be excused “rarely” and only “where there appears to be a
substantial likelihood that an injustice has resulted”).
¶15 	In State v. Breckenridge, 688 P.2d 440 (Utah 1983), the
defendant addressed an argument challenging the adequacy of his
guilty plea for the first time during oral argument on appeal, “[o]n
the suggestion of [the] Court.” Id. at 443 (emphasis added). The
supreme court reasoned that “[t]he general rule that constitutional
issues not raised at trial cannot be raised on appeal is excepted to
when a person’s liberty is at stake” and determined that because
the defendant’s “felony conviction and sentence rest[ed] on the
outcome of his appeal,” the court needed to address the otherwise
unargued question of the adequacy of the defendant’s plea. Id.
(citing Pratt v. City Council of the City of Riverton, 639 P.2d 172,
6. The applicability of the invited error doctrine is not as obvious
as the State’s argument implies. It is true that Johnson’s trial
counsel requested the lesser included offense instruction, but the
record does not contain the two drafts of the elements instruction
that his trial counsel provided to the court. Further, the trial court
acknowledged that it was going to use the version of 	the
instruction offered by Johnson’s trial counsel “that quotes the
statute[] itself,” and the court had earlier correctly quoted the
homicide by assault statute while questioning the prosecutor about
the propriety of providing a lesser included offense instruction. In
other words, we cannot definitively ascertain if the language
employed in the final instruction matches the language supplied by
Johnson’s trial counsel. Additionally, unlike the majority of invited
error cases, here we are not presented with a challenge initially
raised by the defendant that the instruction incorrectly stated the law.
See, e.g., State v. Perdue, 813 P.2d 1201, 1205 (Utah Ct. App. 1991)
(collecting cases).
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State v. Johnson
173–74 (Utah 1981)). Subsequent case law has clarified that
“[f]actually, . . . Breckenridge is a case in which the ‘exceptional
circumstances’ exception would have allowed appellate review”
and that a defendant’s liberty interest is just one factor to be
considered in determining whether exceptional circumstances
exist. See Archambeau, 820 P.2d at 924–25; see also State v. Lopez, 886
P.2d 1105, 1113 (Utah 1994) (agreeing with the Archambeau court’s
rejection of a stand‐alone “jeopardized liberty exception”).
¶16 	Our supreme court revisited Breckenridge in its Robison
decision, in which it held that the court of appeals erred by
reversing the defendant’s conviction on an unargued legal theory.
Robison, 2006 UT 65, ¶ 25. The Robison court identified the
exceptional circumstance relied on in Breckenridge as the court’s sua
sponte recognition “that the briefing overlooked a compelling
argument that, if presented, would likely merit reversal of Mr.
Breckenridge’s conviction.” Id. ¶ 24. The Robison court explained
that appellate courts could avoid the catch‐22 of addressing an
unargued issue on the merits or “refusing, out of principle, to
reverse an astonishingly erroneous but undetected ruling,” that
would “subject the losing party, especially a defendant in a
criminal case, to ‘great and manifest injustice,’” by providing the
parties an opportunity to address the unargued issue “before using
it to justify a reversal.” Id. ¶¶ 23–25 (footnote omitted). Inviting
supplemental briefing, or as was the case in Breckenridge, directly
questioning the parties during oral argument, provides a forum for
the parties to argue the issue and both “honor[s] the adversarial
process” and reduces the risk of subjecting a criminal defendant to
a “‘great and manifest injustice.’” Id. ¶¶ 24–25. The Robison court
explained that had it “agreed with the court of appeals that a ‘great
and manifest injustice’ would befall Mr. Robison were he not
allowed to present the argument [first raised by the court of
appeals] . . . , it would then be appropriate . . . to remand the case
for arguments on the merits of the [unargued legal theory].” Id.
¶ 25. Because the supreme court determined that the court of
appeals’ legal theory was erroneous, however, the court held that
remand was not necessary; “a ‘great and manifest injustice’” would
not “befall Mr. Robison were he not allowed to” address a
repudiated legal argument. Id. (internal quotation marks omitted).
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State v. Johnson
¶17 	Robison seeks to balance the sometimes conflicting ideals of
procedural regularity and the institutional integrity of the courts
with basic notions of fairness and justice. In other words, as has
long been recognized by our jurisprudence, Robison effectively
reaffirms the notion that “the safeguards of the rights and
privileges of the accused should not be overlooked and a loose rein
held for the prosecution and a tight, technical, and restricted rein
held on the accused.” State v. Cobo, 60 P.2d 952, 958 (Utah 1936)
(“[I]n cases of grave and serious charged offenses and convictions
of long terms of imprisonment, cases involving the life and liberty
of the citizen, we think that when palpable error is made to appear
on the face of the record and to the manifest prejudice of the
accused, the court has the power to notice such error and to correct
the same, though no formal exception was taken to the ruling.”); see
also State v. Bullock, 791 P.2d 155, 164 (Utah 1989) (Stewart, J.,
dissenting) (“Neither a counsel’s nor a judge’s error should be the
cause of one’s going to prison. Although we often refuse to
entertain a claim of error because an attorney failed to make proper
objections in the trial court or failed to raise an error on appeal, the
law should seek to make a party liable for his own transgressions,
not for the sins of his lawyer.”); cf. Utah R. Civ. P. 1 advisory
committee note (“[A] long‐standing but often overlooked directive
in Rule 1 [is] that the Rules of Civil Procedure should be construed
and 	applied 	to 	achieve 	the 	just, 	speedy 	and 	inexpensive
determination 	of 	every 	action.” 	(internal 	quotation 	marks
omitted)); Utah R. Crim. P. 1(b) (“These rules are intended and
shall be construed to secure simplicity in procedure, fairness in
administration, and the elimination of unnecessary expense and
delay.”); State v. Eldredge, 773 P.2d 29, 42 (Utah 1989) (Stewart, J.,
dissenting) (recommending a broad application of the plain error
standard so as to permit appellate review of potentially reversible
errors “at the earliest possible stage,” rather than delay a court’s
“consideration of reversible error until the case returns on a writ of
habeas corpus,” at which time the court would address “the
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State v. Johnson
question of whether the trial was fundamentally fair, irrespective
of whether there were appropriate objections” (citation omitted)).7
¶18 	The facts of this case are similar to Breckenridge because “[o]n
the suggestion of this court,” the parties have “addressed for the
first time” an issue that will implicate Johnson’s “felony conviction
and sentence.” See Breckenridge, 688 P.2d at 443; see also State v.
Brown, 853 P.2d 851, 853 (Utah 1992) (construing Breckenridge as
presenting 	“clear 	plain 	error 	and 	obvious 	constitutional
ramifications”); Archambeau, 820 P.2d at 926 (citing Breckenridge as
an example of when “extenuating or unusual circumstances”
justify the application of the exceptional circumstances exception).
Further, the issue this court has asked the parties to brief is at the
heart of Johnson’s primary argument on appeal—that reversal is
necessary because the missing verdict form for the lesser included
offense indicates that the jury never received the form. It would be
anomalous to address the missing verdict form issue without
acknowledging the graver issue that Instruction 24 is so fatally
defective that any verdict form based on that instruction would
have been meaningless. Accordingly, exceptional circumstances
permit our review of the jury instruction issue here. See generally
State v. Irwin, 924 P.2d 5, 9–11 (Utah Ct. App. 1996) (collecting cases
7. 	This 	principle 	has 	been 	recognized 	by 	courts 	in 	other
jurisdictions as well. See, e.g., Wiborg v. United States, 163 U.S. 632,
658 (1896) (stating that when “a plain error [is] committed in a
matter so absolutely vital to defendants, [the court is] at liberty to
correct it,” regardless of whether the “question was . . . properly
raised”); United States v. Santistevan, 39 F.3d 250, 256 (10th Cir.
1994) (recognizing that an issue “not raised below” or “asserted in
the briefs on appeal” “ordinarily constitutes a waiver of the issue,
precluding [the appellate court] from reviewing the merits of the
claim,” but that the circuit’s “case law unquestionably recognizes
[the appellate court’s] inherent power to raise an issue sua sponte
as 	plain 	error 	under 	circumstances 	strongly 	implying 	a
fundamental defect or error of sufficient magnitude to undermine
our confidence that justice was served”).
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State v. Johnson
applying 	the 	exceptional 	circumstances 	exception 	and 	cases
rejecting the applicability of the exception).
¶19 	For reasons explained infra, we determine that the error in
the homicide by assault jury instruction presents the very type of
“astonishingly 	erroneous 	but 	undetected 	ruling” 	that 	our
jurisprudence and the State, in its supplemental briefing, agree an
appellate court should not “refus[e], out of principle, to reverse.”
State v. Robison, 2006 UT 65, ¶ 23, 147 P.3d 448. We have
accordingly adhered to the Robison requirement that we first seek
supplemental briefing from the parties before addressing the
merits of this otherwise unargued legal theory. See id. ¶ 24.
B. 	The Homicide By Assault Instruction Misstates the Law.
¶20 	Here, there is no dispute that Johnson was entitled to a
lesser included offense instruction or that the trial court read such
an instruction to the jury. See generally State v. Spillers, 2007 UT 13,
¶ 12, 152 P.3d 315 (explaining the two‐part test to determine when
an instruction on a lesser included offense must be granted).
Rather, the issue is whether the instruction provided correctly
stated the mens rea element of homicide by assault and, if an error
did occur, whether it was harmful. See Crookston v. Fire Ins. Exch.,
817 P.2d 789, 796 (Utah 1991) (“[A]n error is harmful only if the
likelihood 	of 	a 	different 	outcome 	is 	sufficiently 	high 	as 	to
undermine our confidence in the verdict.”).
¶21 	To determine whether Instruction 24 correctly states the law,
“we compare the instruction given with the statutory elements of
the offense.” See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
Instruction 24 states,
Homicide by Assault [requires that the jury] find
from all of the evidence, beyond a reasonable doubt
each and every one of the following elements . . . :
1. That on or about the 10th day of January, 1998, . . .
[Johnson], . . . under circumstances not amounting to
aggravated murder, murder, or manslaughter caused
the death of [Decedent];
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State v. Johnson
2. And that he did so intentionally or knowingly
while attempting, with unlawful force or violence, to
do bodily injury to [Decedent].
¶22 	The Utah Code defines homicide by assault, stating, “A
person commits homicide by assault if, under circumstances not
amounting to aggravated murder, murder, or manslaughter, a
person causes the death of another while intentionally or knowingly
attempting, with unlawful force or violence, to do bodily injury to
another.” Utah Code Ann. § 76‐5‐209(1) (LexisNexis 2012) (emphasis
added).8 The statute defines the mens rea element of homicide by
assault as the intent to assault. Unlike the statute, Instruction 24
places the “while” after the mens rea language, separating the
“intentionally and knowingly” elements from the act of assault. As
a result of this difference, Instruction 24 instructed the jury that for
Johnson to be convicted of the lesser included offense, it must find
that Johnson “intentionally and knowingly” “caus[ed] the death of”
Decedent, whereas the statute actually requires a finding that a
defendant “intentionally or knowingly attempt[ed], with unlawful
force or violence, to do bodily injury to another.” Not only does
Instruction 24 misapply the mens rea element for homicide by
assault, the mens rea that it does describe is the same as that
required for a conviction on the greater offense of criminal
homicide. See generally id. § 76‐5‐203. By defining homicide by
assault as requiring the same mens rea as criminal homicide,
Instruction 24 essentially removed from the jury the ability to
meaningfully consider the lesser included offense.
¶23 	The differences between Instruction 24 and the criminal
homicide instruction (Instruction 21) do not remedy this error. See
generally State v. Lawson, 688 P.2d 479, 481 (Utah 1984) (explaining
that “a reviewing court must consider all of the jury instructions
read together in light of the total evidence before the jury” in
“determining 	whether 	the 	jury 	was 	properly 	instructed”).
Instruction 21 states,
8. We cite the current version of the Utah Code for the convenience
of the reader.
20100393‐CA 	2014 UT App 161	15

State v. Johnson
Before you can convict [Johnson] . . . of the crime of
Criminal 	Homicide, 	Murder 	as 	charged 	in 	the
Alternative Count I of the Information, you must
find 	from 	all 	of 	the 	evidence 	and 	beyond 	a
reasonable 	doubt 	each 	and 	every 	one 	of 	the
following elements of that offense:
1. That on or about the 10th day of January, 1998, . . .
[Johnson], . . . caused the death of [Decedent]; and
2. That he did so intentionally and knowingly.
(Emphases added.) With the exception of the phrases “under
circumstances not amounting to aggravated murder, murder, or
manslaughter” and “while attempting, with unlawful force or
violence, to do bodily injury to [Decedent]” (the assault language),
the two instructions are identical. The first phrase merely asserts
that homicide by assault is not the same as murder, but the effect
of this on a jury could easily have been negated by the fact that
Instruction 24 then duplicates the elements given in Instruction 21
on criminal homicide. Likewise, to a jury, the inclusion of the
assault language in Instruction 24 may appear as little more than
stylistic.9 And the assault language is not contrary to the notion that
murder, in its simplest definition, necessarily involves the use of
“unlawful force or violence[] to do bodily injury.” Indeed, a finding
by the jury that Johnson intended to place his hands on Decedent’s
neck and squeeze her throat supports a conviction of either
criminal homicide or homicide by assault, with the distinguishing
factor being whether Johnson intended only to assault Decedent or
whether he intended to kill her. Cf. State v. Fisher, 680 P.2d 35, 37
(Utah 1984). In essence, the jury was erroneously provided with
two semantically different but substantively identical instructions
9. Both homicide by assault and criminal homicide are intent‐based
crimes. However, the instructions defining “intentionally” and
“knowingly” offer little clarification because each is defined in
conduct‐based and result‐based terms and in an either/or fashion.
See generally State v. Lawson, 688 P.2d 479, 481 (Utah 1984).
20100393‐CA 	2014 UT App 161	16

State v. Johnson
outlining the elements of criminal homicide and no instruction
accurately outlining the elements of homicide by assault.
C. 	The Error Is Harmful.
¶24 	For the error in Instruction 24 to warrant reversal, it must be
prejudicial, i.e., absent the error “the likelihood of a different
outcome 	[must 	be] 	sufficiently 	high 	as 	to 	undermine 	our
confidence in the verdict.” Crookston, 817 P.2d at 796. “[W]here
proof of an element of the crime is in dispute, the availability of the
‘third option’—the choice of conviction of a lesser offense rather
than conviction of the greater or acquittal—gives the defendant the
benefit of the reasonable doubt standard.” See State v. Baker, 671
P.2d 152, 157 (Utah 1983); see also Beck v. Alabama, 447 U.S. 625,
644–45 (1980) (describing lesser included offense instructions as
“provid[ing] a necessary additional measure of protection for the
defendant,” especially “in a case in which the jury agrees that the
defendant is guilty of some offense, though not the offense
charged”).
¶25 	The State argues that any error in Instruction 24, and for that
matter any error in providing the jury with the proper homicide‐
by‐assault verdict form, is harmless because Johnson’s conviction
of the greater offense “necessarily forecloses” the jury from having
convicted him of the lesser offense.10 In other words, although the
State acknowledges that an appellate court should not “refuse ‘to
reverse an astonishingly erroneous but undetected ruling,’” it
contends 	that 	Johnson’s 	conviction 	of 	the 	greater 	offense
undermines any harm that may have been caused by the error in
10. To the extent the State’s argument may be read to imply that
depraved indifference murder is a lesser included offense of
intentional murder, we disagree. These two types of murder are
two theories of the same offense that were here charged in the
alternative. Both constitute first degree felonies subject to the same
sentence. 	See 	Utah 	Code 	Ann. 	§ 	76‐5‐203(2)(a), 	(2)(c), 	(3)
(LexisNexis 2012). There is only one lesser included offense at issue
in this case—homicide by assault.
20100393‐CA 	2014 UT App 161	17

State v. Johnson
Instruction 24 and the now‐missing verdict form.11 (Quoting State
v. Robison, 2006 UT 65, ¶ 23, 147 P.3d 466). We disagree.
¶26 	Both the convicted offense of criminal homicide and the
lesser included offense of homicide by assault are intent‐based
offenses. The cases the State relies on in support of its argument
involve challenges to the omission of instructions on lesser
included offenses that have lower mens rea requirements than the
convicted offenses and are therefore not helpful to our analysis. See,
e.g., State v. Pearson, 943 P.2d 1347, 1351 (Utah 1997) (determining
that 	the 	trial 	“court’s 	refusal 	to 	give 	an 	instruction 	on
manslaughter, an offense requiring recklessness, constituted . . .
harmless error” where the jury convicted 	the 	defendant of
“aggravated murder, which requires knowing or intentional
killing”); 	State 	v. 	Gotschall, 	782 	P.2d 	459, 	464 	(Utah 	1989)
(concluding that it was harmless error “for the trial court not to
instruct the jury on negligent homicide” where the defendant was
convicted of second‐degree depraved indifference murder); State
v. Standiford, 769 P.2d 254, 267 (Utah 1988) (“[S]ince the jury
convicted of second degree murder despite the fact that an
instruction 	was 	given 	on 	the 	lesser 	included 	offense 	of
manslaughter, failure to give a negligent homicide instruction was,
at the very best, harmless error.”).
¶27 	Given how close the causation evidence is, as discussed
supra ¶¶ 6–8, and the fact that both the lesser and greater offenses
here involve an “intentionally and knowingly” mens rea, we
cannot agree that Johnson’s conviction of the greater offense
indicates that any error in Instruction 24 or in providing the
homicide‐by‐assault verdict form was harmless. We agree with
Johnson that because Instruction 24 effectively mirrored the
11. The State also argues that even though Instruction 24 does not
track the statutory language for homicide by assault, this error
harms the State, not Johnson, by imposing on the State “the
additional burden of proving that [Johnson] intend[ed] the result
of his conduct, rather than just the act.” We reject this argument as
unavailing.
20100393‐CA 	2014 UT App 161	18

State v. Johnson
elements of the criminal homicide instruction, the jury may have
believed that the two instructions required it to make “essentially
the same factual determinations and that it did not matter which
offense was selected.” As Johnson put it, “[t]he choice is not a
choice when,” as instructed, “there is no real difference between”
criminal homicide and homicide by assault. The error in Instruction
24 left the jury with the option of either “convicting the defendant
of [the charged offense], or acquitting him outright.” See Keeble v.
United States, 412 U.S. 205, 213 (1973). And “[w]e cannot say that
the availability of a third option—convicting the defendant of
[homicide by assault]—could not have resulted in a different
verdict.” See id.; cf. Beck, 447 U.S. at 642 (explaining the importance
of lesser included offense instructions and stating that to “expect
a jury to . . . find a defendant innocent and thereby set him free
when the evidence establishes beyond doubt that he is guilty of
some 	violent 	crime” 	is 	to 	“require[] 	of 	our 	juries 	clinical
detachment from the reality of human experience” (citation and
internal quotation marks omitted)). Accordingly, the judgment
must be reversed and the case remanded to the trial court. Cf. State
v. Oldroyd, 685 P.2d 551, 555–56 (Utah 1984) (reversing the
defendant’s conviction because he was improperly denied a jury
instruction on a lesser included offense).
II. Whether the Verdict Form Was Properly Provided to the Jury
Is Immaterial.
¶28 	Johnson’s primary argument on appeal is that the absence
of a lesser‐included‐offense verdict form in the record indicates
that the trial court failed to provide one. Cf. People v. Nguyen, 4 Cal.
Rptr. 3d 211, 232 (Cal. Ct. App. 2003) (stating that instructions on
lesser included offenses must be accompanied by corresponding
verdict forms). The evidence before us indicates that the verdict
form is missing from the official record, as well as from the files
retained by the State’s and Johnson’s trial attorneys and any extra‐
record files maintained by the court, such as personal files of the
trial judge and court staff. But as we have stated before, even
assuming that the verdict form was properly sent to the jury, it
would have reflected a verdict option that was not properly
defined for the jury and, indeed, was defined in a manner equating
20100393‐CA 	2014 UT App 161	19

State v. Johnson
it with the greater offense on which the jury was properly
instructed.
CONCLUSION
¶29 	The “astonishingly erroneous” placement of the mens rea
element in Instruction 24 effectively removed the lesser included
offense from the jury’s consideration by equating the lesser offense
with the greater offense. This error renders the question of whether
the verdict form on the lesser included offense was ever provided
to the jury irrelevant. Accordingly, the jury did not have a
meaningful opportunity to consider the lesser included offense.
That the jury convicted Johnson of the greater offense does not
demonstrate that a proper instruction on the lesser offense would
not have resulted in a different outcome for Johnson, particularly
in light of the closeness of the causation issue. Our confidence in
the 	verdict 	is 	therefore 	undermined. 	We 	reverse 	Johnson’s
conviction and remand the case to the trial court.
ROTH, Judge (concurring):
¶30 	The lead opinion concludes that we may review an error in
a jury instruction that was unpreserved below and unargued on
appeal based on the supreme court’s opinion in State v. Robison,
2006 UT 65, 147 P.3d 448. In that case, the court explained that
where an appellate court notices an “astonishingly erroneous but
undetected ruling” that would “subject the losing party . . . to great
and manifest injustice,” the court may address the issue, but only
if it invites supplemental briefing from the parties. Id. ¶¶ 23–25
(citation and internal quotation marks omitted). Because the jury
instruction is clearly defective and the issue “is at the heart of
Johnson’s 	primary 	argument 	on 	appeal,” 	the 	lead 	opinion
concludes that “exceptional circumstances permit our review of the
jury instruction issue here.” See supra ¶ 18. In dissent, Judge Bench
argues that Johnson’s counsel invited any error, and in a footnote
he questions the applicability of the “extraordinary circumstances”
20100393‐CA 	2014 UT App 161	20

State v. Johnson
exception in this context, noting that Robison did not discuss it. See
infra ¶ 48 n.2.
¶31 	Our 	court 	has 	determined 	that 	“the 	plain 	error 	and
exceptional circumstances exceptions are sufficiently broad to
encompass any situation requiring Utah’s appellate courts to
consider a constitutional issue for the first time on appeal in the
interest of justice.” State v. Archambeau, 820 P.2d 920, 926 (Utah Ct.
App. 1991) (internal quotation marks omitted); see State v. Lopez,
886 P.2d 1105, 1113 (Utah 1994) (adopting Archambeau’s statement
about plain error and exceptional circumstances). Thus, it seems
that whatever preservation exception Robison recognized, it should
fit into one of these two exceptions. The Robison court noted that
the plain error exception did not apply, see 2006 UT 65, ¶ 15, and
the case it cited for the proposition that an appellate court can
invite supplemental briefing on an unpreserved issue has been
recognized as an exceptional circumstances case, see id. ¶ 24 (citing
State v. Breckenridge, 688 P.2d 440, 441–43 (Utah 1983)); Archambeau,
820 	P.2d 	at 	924 	(noting 	that 	Breckenridge 	is 	an 	exceptional
circumstances case). So it appears that the Robison exception to the
preservation requirement must be at least a kind of exceptional
circumstance.
¶32 	The exceptional circumstances exception is “ill‐defined,”
however. State v. Holgate, 2000 UT 74, ¶ 12, 10 P.3d 346. And it may
be that courts have avoided placing clear limits on that exception
because it is meant to be a rarely used safety valve, permitting
review of errors so serious that ignoring them would not only be
manifestly unjust to a particular defendant, but would also
undermine the public’s confidence in the integrity and efficacy of
our system of justice. For example, the Utah Supreme Court has
recognized that exceptions to the preservation rule reflect the need
to “‘balance . . . procedural regularity with the demands of
fairness,’” noting that “‘[a]t bottom, the plain error rule’s purpose
is to permit us to avoid injustice.’” Id. ¶ 13 (quoting, respectively,
State v. Verde, 770 P.2d 116, 122 n.12 (Utah 1989), and State v.
Eldredge, 773 P.2d 29, 35 n.8. (Utah 1989)).
20100393‐CA 	2014 UT App 161	21

State v. Johnson
¶33 	As a consequence, while I concur in Judge Davis’s opinion,
I write separately to articulate further why I believe reaching the
merits is appropriate despite any invited error and even though the
facts here are different in some aspects from recent cases that have
applied the exceptional circumstances exception.
¶34 	The 	supreme 	court 	has 	stated 	that 	the 	exceptional
circumstances exception to the preservation rule “applies primarily
to rare procedural anomalies,” id. ¶ 12 (citation and internal
quotation marks omitted), and the court has cautioned that the
exception is “applied . . . sparingly,” being reserved for “the most
unusual circumstances where our failure to consider an issue that
was not properly preserved for appeal would have resulted in
manifest injustice,” State v. Nelson‐Waggoner, 2004 UT 29, ¶ 23, 94
P.3d 186. The most prominent cases where Utah courts have found
exceptional circumstances and reviewed unpreserved issues are
“where a change in law or the settled interpretation of law color[s]
the failure to have raised an issue at trial.” See Provo City v. Ivie,
2008 UT App 287, ¶ 6, 191 P.3d 841 (citation and internal quotation
marks omitted); see also State v. Lopez, 873 P.2d 1127, 1134 n.2 (Utah
1994); State v. Haston, 846 P.2d 1276 (Utah 1993) (per curiam). For
example, in Haston, the supreme court reached an unpreserved
issue to reverse a defendant’s conviction because while his appeal
was pending, the court issued a decision abolishing the offense for
which he was convicted. 846 P.2d at 1277. It noted that failing “to
consider [the] defendant’s assigned error merely because he was
tardy or inartful in raising the issue previously strikes us as
manifestly unjust.” Id.
¶35 	Admittedly, there is no intervening change in law here that
would have affected Johnson’s decision to object to an error in the
jury instructions like there was in Haston. But allowing Johnson’s
conviction to stand despite a fatally flawed jury instruction that
misstated a material element of a plausible lesser included offense
with significantly reduced consequences (zero to five years for
homicide by assault versus five years to life for murder) seems to
me to be manifestly unjust for reasons already articulated in the
lead opinion. And those reasons include troubling circumstances
20100393‐CA 	2014 UT App 161	22

State v. Johnson
that I believe qualify this case as a “rare procedural anomal[y].” See
Holgate, 2000 UT 74, ¶ 12.
¶36 	For example, the verdict form the trial court claims to have
provided to the jury is absent from the official record, and it is
missing from the files retained by the State, Johnson’s trial
attorneys, and the trial court. A central dispute in the parties’ initial
briefing was whether the trial court had actually given the jury the
verdict form for the lesser included offense. As the lead opinion
notes, the undetected error is therefore virtually inseparable from
the underlying merits of the issues preserved below and argued on
appeal: Does it really matter if the jury received the form if the jury
instruction that provided the option of conviction on a lesser
offense was itself fatally flawed? And this seems to me to be the
basis for taking this issue up, though unpreserved and unargued;
if the unpreserved issue bore no relation to the missing verdict
form or other arguments Johnson addressed in his initial briefing,
I believe we would not be faced with the type of “rare procedural
anomaly” that would justify a departure from well‐established
preservation requirements.
¶37 	The dissent argues that defense counsel invited any error12
because after obtaining for his client the considerable benefits of a
lesser‐included‐offense instruction, he appears to have provided
one that in effect mirrored the elements of the greater crime,
thereby precluding relief on the basis of plain error. And it is
generally true that “[b]ased on the invited error doctrine, . . . ‘if
counsel, either by statement or act, affirmatively represented to the
12. It is not entirely clear to me that trial counsel ended up being
the source of the jury instruction. As the lead opinion points out,
the court invited Johnson’s trial counsel to provide the lesser
included offense jury instruction after stating that counsel’s
proposed instruction “quotes the statute[] itself.” See supra ¶ 14 n.6.
The final instruction, of course, misquotes the statute in a way that
deprives Johnson of the benefits of obtaining the instruction in the
first place. And the draft instructions Johnson’s counsel submitted
to the court are not in the record.
20100393‐CA 	2014 UT App 161	23

State v. Johnson
court that he or she had no objection to the jury instruction, we will
not review the instruction under the manifest injustice exception.’”
State v. Halls, 2006 UT App 142, ¶ 13 n.1, 134 P.3d 1160 (quoting
State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111). But the kind of
error that warrants Robison’s “astonishingly erroneous” description
is very likely to involve plain error, invited error, and almost
inevitably, ineffective assistance of 	counsel. Such errors are
unlikely 	to 	occur 	at 	trial—and 	then 	be 	overlooked 	on
appeal—without counsel involvement, and the more astonishing
the error, the more likely it is to have involved some serious
misstep by counsel. So, in such circumstances, invited error should
not 	pose 	another 	barrier 	to 	review 	but 	rather 	should 	be
acknowledged as an integral aspect of the flawed process that
makes the error so astonishing to begin with.
¶38 	The dissent also argues that any error is best left to a
postconviction proceeding, a position that has some appeal. For
example, while in the face of the error in the jury instruction itself,
I could not have joined the dissent’s proposed resolution of the
original issue by simply affirming the trial court’s decision on
remand that the jury had indeed received a verdict form for the
lesser included offense, the severity of the instruction error itself
suggests another path to affirmance—we might conclude that the
error in the homicide‐by‐assault jury instruction is egregious
enough to render any failure to provide the jury with the
corresponding verdict form essentially harmless and then simply
affirm on Johnson’s failure to have addressed that overarching
problem. And the lead opinion sufficiently articulates the error in
the jury instruction and its likely significance to the outcome of the
case to provide Johnson with a fairly weighty attachment to a
potential 	petition 	for 	postconviction 	relief 	having 	obvious
substance. The lead opinion, however, has convinced me that the
significance of both the substantive error and the rare anomaly that
brought it before us unnoticed and unremarked by either Johnson’s
trial and appellate counsel or by the trial court13 clears the bar of
13. It is to the State’s credit that it pointed out in a footnote in its
initial brief that the jury instruction did not correspond to the
(continued...)
20100393‐CA 	2014 UT App 161	24

State v. Johnson
Robison’s standard—an “astonishingly erroneous but undetected
ruling” that would “subject the losing party . . . to a great and
manifest injustice,” 2006 UT 65, ¶ 23 (internal quotation marks
omitted)—in the context of an appeal where the undetected error
rendered the issue actually presented to us not simply “harmless,”
but entirely superfluous. And the ultimate result seems sufficiently
foreseeable that to require the defendant to now go through the
exercise of clearing the hurdle of unpreserved and invited error by
showing ineffective assistance of both trial and appellate counsel
in a postconviction proceeding—in which he has no statutory or
constitutional right to be represented by counsel at all—in my
view, would simply compound a series of serious and inexplicable
missteps while doing little to reinforce the integrity of our
preservation rules.
¶39 	Finally, I disagree with the dissent’s suggestion that the
flawed instruction was harmless error because it “may have
increased the likelihood of a complete acquittal by overstating the
mens rea required for conviction of the lesser offense.” See infra
¶ 50. Our supreme court has noted that defendants are entitled to
lesser‐included‐offense instructions to “afford[ them] the full
benefit of the reasonable doubt standard.” State v. Baker, 671 P.2d
152, 156 (Utah 1983). Accordingly, the failure to provide such an
instruction 	where 	it 	is 	warranted 	implicates 	a 	defendant’s
constitutional rights. State v. Oldroyd, 685 P.2d 551, 555 (Utah 1984)
(stating that where “the evidence offered in the case would permit
a jury to find a defendant guilty of the lesser offense and not guilty
of the greater, due process requires that a lesser included offense
instruction must be given”). The interests at issue here are therefore
simply too important to leave their protection to the off chance that
the jury could have selected a less severe punishment from two
instructions that described essentially the same criminal conduct.
(...continued)
statute’s definition of the offense of homicide by assault. But the
State did not explore in depth the details of that divergence or its
significance, nor was it required to do so; and we did not come to
appreciate the problem until well after oral argument.
20100393‐CA 	2014 UT App 161	25

State v. Johnson
¶40 	For these reasons, I concur in Judge Davis’s decision.
BENCH, Senior Judge (dissenting):
¶41 	I respectfully dissent. The jury in this case concluded
beyond a reasonable doubt that Johnson committed the first degree
felony of murder by intentionally and knowingly causing the death
of Decedent. The majority opinion reverses Johnson’s conviction
because of a misstatement in the jury instructions that was invited
by defense counsel below and was not raised as an issue by the
parties on appeal. By reversing Johnson’s conviction on this basis,
my colleagues have, in my opinion, abandoned their adjudicative
responsibilities and improperly become advocates for a party. I
would address only the arguments that Johnson initially raised on
appeal and, because I find those arguments to be unavailing, affirm
Johnson’s conviction.
¶42 	As originally briefed by the parties, this appeal involved just
two issues. First, Johnson argued that the trial court improperly
instructed the jury on the issue of causation. Johnson wanted an
instruction on “intervening causes” for Decedent’s death, and he
argued on appeal that the trial court erred when it refused to give
his requested instruction. I agree with the State that this issue was
inadequately briefed. See Utah R. App. P. 24(a)(9) (enumerating
requirements for argument sections of appellate briefs); see also
State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (“Implicitly, rule
24(a)(9) requires not just bald citation to authority but development
of that authority and reasoned analysis based on that authority.”
(citation and internal quotation marks omitted)). Further, even if
Johnson could establish error from the lack of instruction on
intervening causes, he has failed to establish that he was prejudiced
by the lack of such an instruction. Cf. State v. Stringham, 2001 UT
App 13, ¶ 17, 17 P.3d 1153 (“Failure to give requested jury
instructions constitutes reversible error only if their omission tends
to mislead the jury to the prejudice of the complaining party or
insufficiently or erroneously advises the jury on the law.” (citation
and internal quotation marks omitted)).
¶43 	Second, Johnson contended that he is entitled to a new trial
because the record on appeal does not include a verdict form on
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State v. Johnson
the lesser included offense of homicide by assault. “[N]ot every
instance of a missing portion of the record necessitates reversal.”
State v. King, 2010 UT App 396, ¶ 56, 248 P.3d 984. Here, Johnson
acknowledged that the trial court expressly stated, in a minute
entry on remand, that the court remembered preparing and
providing the jury with a verdict form on the lesser included
offense. I would hold that the trial court’s recollection that the jury
received the verdict form defeats Johnson’s claim that he was
prejudiced by the lack of that form in the record. See id. ¶¶ 54–57
(affirming the post‐trial reconstruction of an entire set of missing
jury instructions where trial court relied on its own memory and
typical practices); see also State v. Davis, 2013 UT App 228, ¶¶ 89–95,
311 P.3d 538 (discussing record reconstruction procedures); State
v. Fowers, 2011 UT App 383, ¶ 19, 265 P.3d 832 (relying, in part, on
the trial court’s memory of an off‐the‐record evidentiary ruling to
evaluate an ineffective assistance of counsel claim).
¶44 	Thus, on the issues originally raised by the parties, this
appeal should result in a straightforward affirmance. However,
over my objection, my colleagues decided to call for additional
briefing on the ground that the court had “identified an issue that
was not addressed by the parties’ briefing”—a misstatement of the
mens rea element in the lesser included offense instruction on
homicide by assault (Instruction 24). The briefing order sought the
parties’ input on whether the language of Instruction 24 constitutes
error and, if so, what the effect of that error should be. Almost as
an afterthought, the briefing order invited the parties to discuss “as
a threshold issue, the propriety of this court addressing an
unpreserved and otherwise unbriefed issue in general and in light
of the circumstances and the supreme court’s decision in State v.
Robison, 2006 UT 65, 147 P.3d 448.”
¶45 	In his supplemental brief, Johnson agrees with the briefing
order’s suggestion that Instruction 24 is erroneous and urges that
the error warrants reversal of his conviction. Johnson argues that
this result is appropriate under Robison because this is a criminal
matter, failure to address the unargued issue would subject him to
“great and manifest injustice,” and the parties were allowed to
present supplemental briefing on the issue. See 2006 UT 65,
¶¶ 23–24 & n.3. However, Johnson’s supplemental brief never
20100393‐CA 	2014 UT App 161	27

State v. Johnson
specifically addresses the lack of preservation of the mens rea issue,
nor does it raise a claim that his trial counsel provided him with
ineffective assistance by submitting the erroneous instruction to the
trial court.
¶46 	The State, in its supplemental brief, argues that Instruction
24 does not fall within Robison’s guidelines for when an appellate
court can raise issues sua sponte. The State goes on, however, to
point out that Instruction 24 was proposed by defense counsel.
Therefore, the State argues, our consideration of the issue is barred
by the doctrine of invited error. See, e.g., State v. Binkerd, 2013 UT
App 216, ¶ 21, 310 P.3d 755.
¶47 	I agree with the State that the apparent error in Instruction
24 was invited by defense counsel below and that we are therefore
precluded from considering it. “Unless a party objects to an
instruction or the failure to give an instruction, the instruction may
not be assigned as error except to avoid a manifest injustice.” Utah
R. Crim. P. 19(e). However, “if counsel, either by statement or act,
affirmatively represented to the court that he or she had no
objection to the jury instruction, we will not review the instruction
under the manifest injustice exception.” State v. Hamilton, 2003 UT
22, ¶ 54, 70 P.3d 111. Here, defense counsel affirmatively proposed
Instruction 24, and we are thus precluded from reviewing it as a
manifest injustice. 14 See id.; State v. Perdue, 813 P.2d 1201, 1204–06
(Utah Ct. App. 1991) (“[T]he act of submitting an instruction to a
court of law . . . constitutes a representation by the attorney that he
or she has read the instruction, waives any objection thereto, and
endorses it as legally sound.”).
14. I acknowledge that the issue addressed in State v. Robison, 2006
UT 65, 147 P.3d 448, was also unpreserved in the trial court, see id.
¶ 9, and that the supreme court nevertheless stated it would have
been appropriate for this court to consider the issue if the failure to
do so would have caused the defendant to suffer a “‘great and
manifest injustice,’” id. ¶ 25. However, the unpreserved issue in
Robison was not invited by defense counsel, and Robison thus does
not obviate the application of the invited error doctrine to allow
our consideration of the unpreserved issue in this case.
20100393‐CA 	2014 UT App 161	28

State v. Johnson
¶48 	Notwithstanding this preservation problem, the majority
opinion concludes that analysis of the wording of Instruction 24 is
warranted to avoid a “great and manifest injustice” as discussed in
Robison. 15 See 2006 UT 65, ¶ 25. I disagree. While I certainly believe
that 	jury 	instructions, 	and 	particularly 	criminal 	elements
instructions, should accurately state the law, I fail to see how our
refusal to consider the issue in this case would result in great or
manifest injustice to Johnson.
¶49 	As 	noted 	above, 	Johnson’s 	trial 	counsel 	invited 	the
misworded instruction by submitting it to the trial court. Johnson
could have challenged his trial counsel’s actions by raising an
ineffective assistance of counsel claim in his supplemental briefing,
but he failed to do so. Had he done so, he would have borne the
high burden of demonstrating both deficient performance by
counsel and resulting prejudice. See Strickland v. Washington, 466
U.S. 668, 687 (1984).
¶50 	I am not at all sure that the error in the wording of
Instruction 24 was prejudicial to Johnson. First and foremost, the
flawed instruction still preserved the jury’s ability to convict
Johnson on the lesser offense if it harbored concerns about the
State’s case on the greater offense. However, by equating the mens
reas for murder and homicide by assault, it also gave the jury the
option of convicting Johnson on the lesser offense even if it
concluded 	that 	Johnson 	knowingly 	and 	intentionally 	killed
Decedent. At the same time, Instruction 24 may have increased the
likelihood of a complete acquittal by overstating the mens rea
required for conviction of the lesser offense.
15. The majority opinion also seems to import the preservation
concept of “exceptional circumstances” into the Robison analysis,
even though that case did not discuss exceptional circumstances as
a basis for reaching unargued issues. Whatever the majority’s
purpose for invoking “exceptional circumstances” may be, I see
nothing extraordinary about this case so as to warrant the reversal
of Johnson’s murder conviction on the unpreserved and unargued
jury instruction issue.
20100393‐CA 	2014 UT App 161	29

State v. Johnson
¶51 	In light of these considerations, I am not persuaded that
Johnson would have been able to establish ineffective assistance of
counsel even if such a claim were properly before us. However,
Johnson could still attempt to establish an ineffective assistance of
counsel 	claim 	on 	a 	petition 	for 	postconviction 	relief. 	The
availability of this alternate avenue for relief furthers my conviction
that no manifest injustice will result if we properly decline to
address the homicide by assault instruction in this direct appeal.
¶52 	For all of these reasons, I would refrain from considering the
jury instruction issue relating to the lesser included offense of
homicide by assault. This issue was not preserved below, was
invited by Johnson’s trial counsel, and was not raised by the parties
in their initial appellate briefing. The two issues that Johnson did
raise on appeal are without merit. I would therefore affirm
Johnson’s conviction.
20100393‐CA 	2014 UT App 161	30