State v. Austin

2007 UT 55
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20060508
Plaintiff and Respondent,
v.
Graham Austin,
Defendant and Petitioner.
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Seventh District, Moab Dep’t
The Honorable Lyle R. Anderson
No. 041700101
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State of Utah, 	No. 20060541
Plaintiff and Respondent,
v.
Franklin Eric Halls,
Defendant and Petitioner.
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Seventh District, Monticello
The Honorable Lyle R. Anderson
No. 041700086
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State of Utah, 	No. 20060566
Plaintiff and Respondent,
v.
F I L E D
Devon Kinne,
Defendant and Petitioner. 	July 17, 2007
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Seventh District, Monticello
The Honorable Lyle R. Anderson
No. 047100014

1 Mr. Austin received a similar, but not identical,
instruction with the following language:
A defendant is presumed innocent until
proven guilty beyond a reasonable doubt.
This presumption follows the defendant
throughout the trial. 	If a defendant’s guilt
is not proven beyond a reasonable doubt, the
defendant should be acquitted.
Proof beyond a reasonable doubt is not
proof to an absolute certainty. 	It is the
burden of the State to eliminate all
(continued...)
Nos. 20060508, 020060541, 20060566 	2
Attorneys: 	Mark L. Shurtleff, Att’y Gen., J. Frederic
Voros, Jr., Joanne C. Slotnik, Erin Riley,
Asst. Att’ys Gen., for plaintiff
William L. Schultz, Moab, Autumn R. Fitzgerald,
Keith Andrew Fitzgerald, Monticello, for defendants
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
¶1 	The defendants in these consolidated cases were tried
and convicted of separate offenses. 	They each assert, however,
that the reasonable doubt jury instruction used at their trials
violated the standard set forth by this court in State v. Reyes,
2005 UT 33, 116 P.3d 305, because all the instructions included
the statement that the State’s evidence must “eliminate all
reasonable doubt.” 	We conclude that the instructions were
permissible because the instructions, in their entirety,
adequately conveyed to the jury the principle of reasonable
doubt.
BACKGROUND
¶2 	At his trial, the jury found Mr. Kinne guilty of
burglary, theft, receiving or transferring a stolen motor
vehicle, and possession of drug paraphernalia. 	Mr. Halls was
found guilty of possession of a controlled substance, possession
of an imitation controlled substance, and possession of drug
paraphernalia, and Mr. Austin was convicted of murder, theft of
an operable motor vehicle, and interference with an arresting
officer. 	Each defendant received a very similar reasonable doubt
instruction. 	Mr. Kinne and Mr. Halls received the following
instruction: 1

1 (...continued)
reasonable doubt. 	Reasonable doubt is a
doubt based on reason, which is reasonable in
view of all the evidence. 	Reasonable doubt
is not a doubt based on fancy, imagination,
or wholly speculative possibility. 	Proof
beyond a reasonable doubt is enough proof to
satisfy the mind, or convince the
understanding of those bound to act
conscientiously, and enough to eliminate
reasonable doubt. 	A reasonable doubt is a
doubt that reasonable people would entertain
based upon the evidence in the case.
(Emphasis added.)
2 In additional jury instructions provided during each
defendant’s trial, the court instructed that “[i]n order to
obtain a conviction, the state must prove each element of the
offense beyond a reasonable doubt.” 	The instructions then listed
the elements of each charged offense, and instructed, “If you
believe that the state has proved each of these elements beyond a
reasonable doubt, you should find defendant guilty. 	If the state
has failed to prove any one of those elements beyond a reasonable
doubt, you should find defendant not guilty.”
3 	Nos. 20060508, 20060541, 20060566
A defendant is presumed innocent until
proven guilty beyond a reasonable doubt.
This presumption follows the defendant
throughout the trial. 	If a defendant’s guilt
is not shown beyond a reasonable doubt, the
defendant should be acquitted.
The state must eliminate all reasonable
doubt. 	Proof beyond a reasonable doubt is
not proof to an absolute certainty.
Reasonable doubt is a doubt based on reason,
which is reasonable in view of all the
evidence. 	Reasonable doubt is not a doubt
based on fancy, imagination, or wholly
speculative possibility. 	Proof beyond a
reasonable doubt is enough proof to satisfy
the mind, or convince the understanding of
those bound to act conscientiously, and
enough to eliminate reasonable doubt. 	A
reasonable doubt is a doubt that people would
entertain based upon the evidence in the
case. 2
(Emphasis added.)

3 This court had granted certiorari in Reyes prior to the
defendants’ trials. 	The opinion was issued after the trials but
before the parties filed their briefs with the court of appeals.
Nos. 20060508, 020060541, 20060566 	4
¶3 	Neither Mr. Kinne’s nor Mr. Halls’ trial counsel ever
objected to this instruction, and in fact, Mr. Kinne’s proposed
reasonable doubt jury instruction contained the language, “The
State’s evidence must eliminate all reasonable doubt.” 	Mr.
Austin’s proposed jury instruction contained the sentence, “It is
the burden of the State to obviate all reasonable doubt.” 	At
trial, Mr. Austin’s counsel objected to the court’s use of the
term “eliminate” in place of the term “obviate” contained in the
defense’s proposed instruction. 	The court, reasoning that jurors
would more easily understand the term “eliminate,” did not change
the instruction. 	Thus, the substance of the instruction was
never contested by any of the defendants.
¶4 	On appeal to the court of appeals, however, the
defendants objected to the instruction’s use of the phrase
“eliminate all reasonable doubt,” claiming that it incorrectly
stated the law and violated their due process rights. 	See State
v. Halls, 2006 UT App 142, 134 P.3d 1160; State v. Austin, 2006
UT App 184U; State v. Kinne, 2006 UT App 156U. 	We granted
certiorari to determine whether our holding in State v. Reyes,
2005 UT 33, 116 P.3d 305, applied to the court of appeals’
consideration of the defendants’ appeals, 3 whether the court of
appeals erred in reviewing the challenges to the reasonable doubt
instruction for plain error, and whether the instruction that the
State’s evidence must “eliminate all reasonable doubt”
constituted reversible error in light of our decision in Reyes.
We consolidated the cases and have jurisdiction pursuant to Utah
Code section 78-2-2(3)(a), (5) (2002).
ANALYSIS
¶5 	We begin by recognizing that the parties presented
arguments and analysis regarding appellate review of the
contested jury instruction where trial counsel failed to object
to the instruction, and where, for two of the defendants, trial
counsel in fact requested that the particular phrase, or a
functionally equivalent phrase, be used. 	The parties treated the
doctrines of plain error, structural error, exceptional
circumstances, and manifest injustice. 	The State presented
arguments suggesting that appellate review is barred by the
invited error doctrine. 	However, because we conclude that no
error occurred and because we deem it advisable to treat the
substance of the claim in this matter due to confusion that has
arisen as a result of our opinion in State v. Reyes, 2005 UT 33,

4 Contrary to the opinion of the court of appeals, we find
no discernible difference between the terms “obviate” and
“eliminate,” and our analysis applies to both. 	Cf. State v.
Halls, 2006 UT App 142, ¶ 16, 134 P.3d 1160.
5 	Nos. 20060508, 20060541, 20060566
116 P.3d 305, we take this opportunity to clarify the use of the
terms “eliminate” and “obviate” in reasonable doubt jury
instructions. 4 	We review the contested reasonable doubt
instructions for correctness because “whether a jury instruction
correctly states the law presents a question of law.” 	State v.
Cruz, 2005 UT 45, ¶ 16, 122 P.3d 543 (internal quotation marks
omitted).
¶6 	The government must prove every element of a charged
offense beyond a reasonable doubt. 	In re Winship, 397 U.S. 358,
364 (1970). 	For several years, our standard for reasonable doubt
jury instructions was that outlined in State v. Robertson, 932
P.2d 1219 (Utah 1997), overruled by State v. Reyes, 2005 UT 33.
That test mandated, among other requirements, that the
instructions “specifically state that the State’s proof must
obviate all reasonable doubt.” 	Id. at 1232 (internal quotation
marks omitted). 	In Reyes, this court abandoned the Robertson
test. 	However, what the defendants fail to recognize is that in
Reyes the focal point of our concern was the United States
Supreme Court’s decision in Victor v. Nebraska, 511 U.S. 1
(1994), rather than the term “obviate.” 	In State v. Cruz, a case
argued the same day as Reyes, we made this clear. 	In Cruz, we
described the effect of Reyes: 	“[T]he Robertson test is no
longer in force. 	We now adhere instead to the Victor test for
assessing the validity of reasonable doubt instructions.” 	Cruz,
2005 UT 45, ¶ 21 (citation omitted). 	In Victor, the Supreme
Court recognized that “the Constitution neither prohibits trial
courts from defining reasonable doubt nor requires them to do so
as a matter of course.” 	Victor, 511 U.S. at 5. 	Furthermore,
“the Constitution does not require that any particular form of
words be used in advising the jury of the government’s burden of
proof.” 	Id. 	The Victor test requires only that “the
instructions, taken as a whole, correctly communicate the
principle of reasonable doubt, namely, that a defendant cannot be
convicted of a crime ‘except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is
charged.’” 	Cruz, 2005 UT 45, ¶ 21 (quoting In re Winship, 397
U.S. 358, 364 (1970)). 	Thus, the Robertson test, mandating
specific language, was at odds with the Supreme Court’s
“expansive approach to the content of reasonable doubt
instructions”; and this was the driving force behind our decision
in Reyes, not the use of one word or phrase in a particular
instruction. 	Reyes, 2005 UT 33, ¶ 8.

Nos. 20060508, 020060541, 20060566 	6
¶7 	The instruction given at the defendants’ trials meets
the Victor standard. 	The instruction, read as a whole, properly
conveys the concept of reasonable doubt. 	Victor, 511 U.S. at 5.
Review of the entire instruction reveals that there is not a
“reasonable likelihood that the jury understood the instruction[]
to allow conviction based on proof” below beyond a reasonable
doubt. 	Id. at 6. 	As the Supreme Court recognized in Victor, one
particular word or phrase “cannot be sequestered from its
surroundings.” 	Victor, 511 U.S. at 16; see also Reyes, 2005 UT
33, ¶ 20 (“[E]ven words that in isolation might be
constitutionally offensive may be rehabilitated when considered
in their context.”). 	Applying this principle to the instructions
presented at the defendants’ trials, the remainder of the
instructions “lends meaning to the [objectionable] phrase” and
the instructions taken as a whole adequately conveyed to the jury
the concept of “beyond a reasonable doubt.” 	Victor, 511 U.S. at
16. 	In Victor, the Supreme Court upheld an instruction that
included the phrase “moral certainty” even though the Court did
not “condone the use of the phrase.” 	Id. 	Similarly, although we
do not deem use of the terms “eliminate” and “obviate” advisable,
their use within an instruction that, taken as a whole, properly
communicates the concept of reasonable doubt does not create a
constitutional error. 	While we did speculate in Reyes that in a
hypothetical case the “obviate all reasonable doubt” language
could create a problem if the State failed to put on adequate
evidence and the jury found “guilt based on a degree of proof
below beyond a reasonable doubt,” Reyes, 2005 UT 33, ¶¶ 28, 30
(explaining that the obviate language has constitutional
implications only to the extent that “it would permit the State
to argue that it need only obviate doubts that are sufficiently
defined”), we also recognize that the “obviate” or “eliminate”
language is generally favorable to the defense. 	Generally, the
phrase suggests a heightened standard of reasonable doubt, and
the hypothetical case where the instruction could create a lower
burden than constitutionally permissible is not before us today.
¶8 	Accordingly, we affirm the decision of the court of
appeals. 	The jury instructions presented at the trials of Mr.
Kinne, Mr. Halls, and Mr. Austin were not erroneous.
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¶9 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.