State v. Jeffs

2010 UT 49
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20080408
Plaintiff and Appellee,
v.
F I L E D
Warren Steed Jeffs,
Defendant and Appellant. July 27, 2010
---
Fifth District, St. George
The Honorable James L. Shumate
No. 061500526
Attorneys: Mark L. Shurtleff, Att’y Gen., Laura Dupaix, Craig L.
Barlow, Asst. Att’ys Gen., Salt Lake City, Brock R.
Belnap, Ryan J. Shaum, St. George, for plaintiff
Walter F. Bugden, Jr., Tara L. Isaacson, Salt Lake
City, Richard A. Wright, Las Vegas, NV, for defendant
---
PARRISH, Justice:
INTRODUCTION
¶1 Defendant Warren Jeffs was convicted of two counts of
rape as an accomplice for his role in the compelled marriage of
fourteen-year-old Elissa Wall to her nineteen-year-old first
cousin, Allen Steed, and the resulting sexual intercourse between
them. Jeffs appeals his convictions, arguing a variety of errors
in the proceedings before the trial court. While we are
unconvinced by the majority of Jeffs’ arguments, we conclude that
there were serious errors in the instructions given to the jury
that deprived Jeffs of the fair trial to which all are entitled
under our laws. We therefore reverse the convictions and remand
for a new trial.
¶2 Recognizing the highly publicized nature of this case,
we remind the parties, the trial court, and observers, that the
presumption of innocence guaranteed to all by our Constitution
demands great care from the courts and those who prosecute on
behalf of the people. As this state’s court of last resort, we

No. 20080408 2
are not at liberty to accept less, nor could we, consistent with
our oaths to support, obey, and defend the constitutions of this
state and country.
BACKGROUND
¶3 “On appeal, we review the record facts in a light most
favorable to the jury’s verdict.” State v. Holgate, 2000 UT 74,
¶ 2, 10 P.3d 346 (internal quotation marks omitted). Conflicting
evidence is presented “only as necessary to understand issues
raised on appeal.” Id. We recite the facts of this case
accordingly.
¶4 Elissa Wall was raised as a member of the
Fundamentalist Church of Jesus Christ of Latter-day Saints (“FLDS
Church”). As a follower of that religion, she was extensively
exposed to the teachings of the defendant, Warren Jeffs
(“Jeffs”), who is the son of, and the former first counselor to,
then-FLDS leader Rulon Jeffs (“Rulon”). From the first through
the sixth grade, Wall attended school at Alta Academy, a private
FLDS school where Jeffs acted as a teacher and as the principal.
Outside of school, Wall was further exposed to Jeffs’ teachings
through Sunday meetings, church literature, and recordings that
were broadcast through her home on a speaker system and that she
listened to on a personal cassette player.
¶5 Proper relationships between the sexes figured
prominently in Jeffs’ teachings. He taught that, prior to
marriage, boys and girls were to treat each other as “snakes,”
avoiding all intermingling or social contact. Girls were to
relax this standard only with their husbands after marriage.
However, most FLDS girls, including Wall, received no instruction
about anatomy or reproduction. Jeffs taught that girls would be
trained in these matters by their husbands.
¶6 Jeffs’ teachings also focused extensively on the
importance of obedience. As “God on earth,” the FLDS prophet and
his counselors were to be obeyed completely and willingly.
Failure to do so would result in forfeiture of spiritual
salvation, loss of family and friends, denial of marriage, and
removal from the FLDS community. In addition to obeying their
church leaders, Jeffs taught that women should obey their
husbands, who were their individual “priesthood heads.”
¶7 Wall witnessed the consequences of failing to follow
these teachings firsthand in 1999 when her father was deemed
disobedient to FLDS leaders and had his family “stripped from
him.” Wall, her mother, and her siblings were removed from her
father’s home in Salt Lake City and sent to live with Fred

3 No. 20080408
Jessop, Rulon’s then second counselor, in Hildale, Utah. Jeffs
subsequently performed a ceremony marrying Wall’s mother to
Jessop as one of his plural wives.
¶8 The doctrine that God will reveal to the FLDS prophet
which of his followers should be joined in marriage relationships
is fundamental to the FLDS faith. Wall, therefore, expected that
church leaders would arrange her marriage. But she was shocked
when, in 2001, Jessop told her that the prophet had a “place of
marriage” for her and that she was to prepare herself for that
place. Wall, who was then only fourteen years old, objected
because of her age, but Jessop again told her that she needed to
prepare herself. When Wall asked who she was to marry, Jessop
told her that it would be “revealed” to her later. A few days
before the wedding, Jessop told her she would marry Allen Steed,
her nineteen-year-old first cousin. Wall told Jessop she would
not marry Steed, but Jessop told her she would have to discuss
the matter with the prophet, Rulon, since it was he who had
arranged the marriage.
¶9 Rulon had recently suffered a debilitating stroke and
Jeffs was managing his affairs. Wall called Jeffs and arranged a
meeting with Rulon. Jeffs was present when Wall spoke with
Rulon. She told Rulon that she did not wish to be disobedient,
but asked him to let her wait until she was at least sixteen to
be married and to place her with someone other than her cousin.
Rulon told Wall, “Follow your heart, sweetie. Follow your
heart.” Wall understood this to mean that she would not have to
marry Steed. Jeffs, however, told her afterwards, “The prophet
wanted me to remind you that this is the right thing to do. And
you will go forward with this.” Later that day, Jessop, despite
Wall’s pleading, confirmed that her wedding to Steed would still
take place.
¶10 Two of Wall’s older sisters, both of whom were married
to Rulon, tried to intervene on Wall’s behalf. Jeffs was present
during their conversation with Rulon. Rulon expressed concern
over the arrangements, but Jeffs said that Jessop was “insisting
that this happen because of who he is” and “[w]e would like to
honor his request.”
¶11 Knowing that she would no longer be welcome in Jessop’s
home and that she would have to give up her relationships with
her mother and her siblings if she did not marry Steed, Wall felt
she had no option but to go through with the marriage. In April
2001, Wall was taken to Caliente, Nevada, for the wedding. Jeffs
performed the ceremony, throughout which Wall cried tears of
despair and fear. When Jeffs asked her if she took Steed to be
her husband, she hung her head and said nothing. Jeffs repeated

No. 20080408 4
the question, and again Wall did not answer. After a long
silence, Jeffs asked Wall’s mother to stand by Wall and hold her
hand. Jeffs repeated the question a third time, and Wall’s
mother squeezed her hand. Finally, Wall answered, “Okay, I do.”
Jeffs told Steed he could kiss the bride, but Wall hung her head
and shook it. Jeffs commanded, “Lisi, kiss Allen.” Wall gave
Steed “a peck on the lips,” then dropped his hand. Jeffs
rejoined Wall’s and Steed’s hands and pronounced, “Now go forth
and multiply and replenish the earth with good priesthood
children.” Wall then ran from the room and locked herself in a
bathroom. Although no marriage license had been obtained, Wall
considered herself married to Steed, which made him her leader
and “priesthood head.”
¶12 During the honeymoon trip that followed, Steed began
touching Wall sexually. Still ignorant of sex, Wall did not
understand why he was touching her and was “terrified” and
“horrified.” She repeatedly asked Steed to stop, telling him
that she hated him and did not want him to touch her. Two to
three weeks after the wedding, Steed exposed his genitals to Wall
at a park. She ran away from him crying and hid in her mother’s
room. She stayed in her mother’s room until the early hours of
the morning, hoping that Steed would go to sleep. When she
returned to her own room, however, she found Steed sitting on the
bed. Over Wall’s extensive protests, Steed began to undress her.
She broke away and fled back to her mother’s room, where she
stayed for several days. When Wall eventually returned to her
own room, Steed told her, “It is time for you to be a wife and do
your duty.” Although Wall cried and begged him not to, Steed
then had sexual intercourse with Wall. The first of the State’s
two charges against Jeffs is based on this act of intercourse.
¶13 In the late spring of 2001, Wall had another meeting
with Jeffs. She told Jeffs that Steed was touching her and doing
things that she “was not comfortable with and didn’t fully
understand.” She begged Jeffs for a “release” from the marriage,
the FLDS equivalent of a divorce. In response, Jeffs told Wall
that she needed to “repent” and that she was not being “obedient
. . . [and] submissive.” Instead of releasing her from the
marriage, Jeffs told her that she “needed to go home and give
[her]self to [Steed], who was [her] priesthood head and husband,
mind, body, and soul and obey without any question.” Within days
of this meeting, Steed again had sexual intercourse with Wall.
The second of the State’s two charges against Jeffs is based on
this act of intercourse. The relationship between Wall and Steed
continued through September 2003, with sex sometimes occurring
without Wall’s consent and sometimes with her consent.

5 No. 20080408
¶14 The State charged Jeffs with two counts of rape as an
accomplice, a first degree felony, under Utah Code sections
76-2-202 and 76-5-402 (2008). Following a preliminary hearing,
Jeffs was bound over for trial. A jury convicted him as charged.
Jeffs moved to arrest judgment, alleging that the evidence was
insufficient to support his convictions. The trial court denied
the motion and sentenced Jeffs to two consecutive prison terms of
five years to life. Jeffs moved for a new trial, arguing that
the court had erred in seating an alternate juror after
deliberations had begun. The court denied this motion on the
basis of invited error. This appeal followed. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(I)
(2008).
ANALYSIS
¶15 Jeffs raises seven issues that he claims invalidate
either the jury verdict or the resulting sentences. Jeffs argues
that: (1) the accomplice liability and consent instructions
given to the jury were erroneous, (2) the trial court erred by
failing to instruct the jury that it must reach a unanimous
decision on whichever of the prosecution’s theories supported its
finding that the victim did not consent, (3) there was
insufficient evidence to sustain Jeffs’ convictions, (4) there
was insufficient evidence that Jeffs enticed Wall into a sexual
relationship with Steed, (5) the “enticement” language of Utah
Code section 76-5-406(11) is unconstitutionally vague, (6) the
trial court erred in denying Jeffs’ motion for a new trial
because the court reconstituted the jury after deliberations had
begun, and (7) the trial court erred in imposing consecutive
sentences. We agree with Jeffs that the consent instructions
given to the jury were erroneous and warrant a reversal of his
convictions. Accordingly, we need not reach the remainder of his
claims. We do address, however, Jeffs’ argument with respect to
the correctness of the jury instruction on accomplice liability
to give guidance to the trial court on remand.
I. THE JURY INSTRUCTIONS ON CONSENT AND ACCOMPLICE LIABILITY
WERE ERRONEOUS
¶16 Jeffs contends that instructions given to the jury on
the issues of consent and accomplice liability were erroneous.
Specifically, Jeffs argues that the instruction on consent
erroneously focused the jury on Jeffs’ relationship with Wall
rather than on Steed’s relationship with Wall. With respect to
the accomplice liability instruction, Jeffs argues that the trial
court erred by refusing to instruct the jury that Jeffs could not
be found guilty as an accomplice to rape unless Jeffs intended
that Steed engage in nonconsensual sexual intercourse with Wall.

No. 20080408 6
Claims of erroneous jury instructions present questions of law
that we review for correctness. State v. Miller, 2008 UT 61,
¶ 13, 193 P.3d 92. We therefore review the instructions given to
the jury without deference to the trial court. Before turning to
the actual jury instructions themselves, however, we outline the
law applicable to the State’s charges against Jeffs.
A. The Charges Against Jeffs
¶17 The State charged Jeffs with two counts of rape as an
accomplice. The first count was alleged to have occurred shortly
after Wall and Steed were married when they first had
intercourse. The second count was alleged to have occurred after
Jeffs refused to “release” Wall from her marriage to Steed and
counseled her to “give herself to [Steed], . . . mind, body and
soul.”
¶18 These charges implicate three different sections of the
Utah Code: (1) the rape statute found in section 76-5-402, (2)
the consent statute found in section 76-5-406, and (3) the
accomplice liability statute found in section 76-2-202. We begin
our discussion with the rape statute.
¶19 “A person commits rape when the actor has sexual
intercourse with another person without the victim’s consent.”
Utah Code Ann. § 76-5-402(1) (2008). A rape can be committed
“whether or not the actor is married to the victim.” Id. § 76-5-
402(2).
¶20 To establish the required lack of consent, the State
relied on three separate subsections of section 76-5-406, the
statute that defines the circumstances under which an act of
sexual intercourse is deemed to be without the victim’s consent.
The relevant sections provide:
An act of sexual intercourse . . . is
without consent of the victim under any of
the following circumstances:
(1) the victim expresses lack of consent
through words or conduct;
. . .
(10) the victim is younger than 18 years
of age and at the time of the offense the
actor was the victim’s parent, stepparent,
adoptive parent, or legal guardian or
occupied a position of special trust in

7 No. 20080408
relation to the victim as defined in
Subsection 76-5-404.1(4)(h);
(11) the victim is 14 years of age or
older, but younger than 18 years of age, and
the actor is more than three years older than
the victim and entices or coerces the victim
to submit or participate . . . .
Id. §§ 76-5-406(1), (10)-(11).
¶21 Because the sexual intercourse on which the charges
were based was between Wall and Steed, rather than between Wall
and Jeffs, the accomplice liability statute also comes into play.
It provides: “Every person, acting with the mental state
required for the commission of an offense who directly commits
the offense, who solicits, requests, commands, encourages, or
intentionally aids another person to engage in conduct which
constitutes an offense shall be criminally liable as a party for
such conduct.” Id. § 76-2-202.
¶22 Therefore, to convict Jeffs as an accomplice to rape,
the State was required to establish that Jeffs, acting with the
requisite mental intent, solicited, requested, commanded,
encouraged or intentionally aided Steed to have nonconsensual
sexual intercourse with Wall. We analyze the jury instructions
in light of these statutes to determine whether they accurately
stated the State’s burden. We begin with the consent instruction
and then turn to the accomplice liability instruction.
B. The Consent Instruction Was Erroneous
¶23 We first address Jeffs’ claim that the jury instruction
regarding consent was erroneous. Jeffs argues that the
instruction erroneously focused the jury on Jeffs’ actions and
position of special trust, rather than on Steed’s, for the
purpose of determining whether Wall consented to sexual
intercourse. We agree that the consent instruction was
erroneous.
¶24 As previously indicated, the State identified three
different sections of the consent statute pursuant to which it
argued that the sexual intercourse between Wall and Steed was
without Wall’s consent. First, under subsection (1) of the
consent statute, the State argued that Wall showed “express[]
lack of consent through words or conduct.” Id. § 76-5-406(1).
As evidence of this lack of consent, the State relied on Wall’s
pleas to Jeffs not to make her marry Steed, her repeated refusal
during the marriage ceremony to answer “I do,” her reluctance to

No. 20080408 8
kiss Steed, and her running from the room and locking herself in
the bathroom after the ceremony. The State additionally argued
that Wall continued to show an express lack of consent after the
ceremony by attempting to avoid physical contact with Steed,
crying, and begging Steed not to have sexual intercourse with
her.
¶25 Second, under subsection (10), the State argued that
Wall was under eighteen years of age and that Jeffs was in a
“position of special trust” in relation to Wall. Id.
§ 76-5-406(10). As used in subsection (10), “‘position of
special trust’ means [a] position occupied by a person in a
position of authority, who, by reason of that position is able to
exercise undue influence over the victim, and includes, but is
not limited to, a . . . religious leader . . . .” Id.
§ 76-5-404.1(4)(h). At trial, the State argued that Jeffs
occupied a position of special trust in relation to Wall because
he was her religious leader, and as such had near absolute
control over her, her family, and her entire community. Further,
he used his position as a religious leader to put Wall in a
circumstance where she had no choice but to submit to unwanted
sexual intercourse.
¶26 Third, under subsection (11), the State argued that
Wall was over fourteen years of age but under eighteen years of
age, that Jeffs was more than three years her senior, and that
Jeffs used psychological and religious manipulation to entice
Wall to submit to unwanted sexual intercourse. See id.
§ 76-5-406(11). To support this theory, the State cited Jeffs’
actions of convincing Wall to enter into the marriage, his
direction during the wedding ceremony that Wall and Steed
“multiply and replenish the earth,” and his later refusal to
release her from the marriage coupled with his counsel that she
“go home and give [her]self to [Steed] . . . mind, body and
soul.”
¶27 The instruction given to the jury reflected the State’s
three theories. It stated the following:
An act of sexual intercourse is without
consent of a person under any, all, or a
combination of the following circumstances:
1. The person expresses lack of consent
through words or conduct; or
2. The person was 14 years of age or
older, but younger than 18 years of age, and
the actor was more than three years older
than the person and enticed the person to
submit or participate; or

9 No. 20080408
3. The person was younger than 18 years
of age and at the time of the offense the
actor occupied a position of special trust in
relation to the person.
¶28 In order to clarify the State’s second and third
theories, the court also gave the following instructions:
In order to find the victim’s lack of
consent because the victim is younger than 18
years of age and at the time of the offense
that the Defendant occupied a position of
“special trust” in relation to Elis[s]a Wall
you must be convinced that the State has
proven beyond a reasonable doubt that the
offense was committed by a person who
occupied a position of special trust in
relation to the victim.
. . .
In order to find that Elissa Wall was
enticed the State must prove beyond a
reasonable doubt that the Defendant lured or
induced a person to submit to or to
participate in an act of sexual intercourse.
(Emphasis added.)
¶29 Jeffs argues that it was impermissible for the court to
focus the jury on his own position of special trust and on his
own enticing actions in determining whether the intercourse
between Steed and Wall was consensual. Rather, Jeffs contends
that the jury should have been asked to consider whether Steed
was in a position of special trust and whether Steed enticed
Wall. We agree with Jeffs.
¶30 While the jury instruction appears to track the
statutory language, the instruction erroneously interprets the
statute’s use of the term “actor,” as used in Utah Code sections
76-5-406(10) and (11), to refer to the defendant, Jeffs, rather
than to Steed. Those sections provide that the intercourse will
be deemed to be nonconsensual if “the victim is younger than 18
years of age and at the time of the offense the actor . . .
occupied a position of special trust in relation to the victim,”
or if “the victim is 14 years of age or older, but younger than
18 years of age, and the actor is more than three years older
than the victim and entices or coerces the victim to submit or
participate . . . .” Id. § 76-5-406(10)-(11) (emphases added).

No. 20080408 10
As evidenced by the additional clarifying instruction, the State
interprets the term “actor” to mean the “defendant.”
¶31 We conclude that the State’s interpretation is
erroneous. In interpreting a statute, we look to its plain
language. Dale T. Smith & Sons v. Utah Labor Comm’n, 2009 UT 19,
¶ 7, 208 P.3d 533. We read statutory provisions literally,
unless such a reading “would result in an unreasonable or
inoperable result.” State v. Jeffries, 2009 UT 57, ¶ 7, 217 P.3d
265. And “‘we assume the legislature used each term advisedly
and in accordance with its ordinary meaning.’” Id. (quoting
State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276). “‘[E]ach part
or section should be construed in connection with every other
part or section so as to produce a harmonious whole.’” State v.
Moreno, 2009 UT 15, ¶ 10, 203 P.3d 1000 (quoting Sill v. Hart,
2007 UT 45, ¶ 7, 162 P.3d 1099).
¶32 “Actor” is defined by statute as “a person whose
criminal responsibility is in issue in a criminal action.” Utah
Code Ann. § 76-1-601(2). The person whose criminal
responsibility is at issue in a criminal action will usually be
the defendant. For example, under the rape statute, “[a] person
commits rape when the actor has sexual intercourse with another
person without the victim’s consent.” Id. § 76-5-402(1). Under
the rape statute, therefore, the “actor” must be the person who
has nonconsensual sexual intercourse with the victim or, in other
words, the defendant who is being prosecuted for an act of rape.
¶33 But section 76-1-601 also provides that its definition
of “actor” does not apply to those statutes that provide
otherwise. And we conclude that the consent statute provides
otherwise. The opening words of section 76-5-406 specifically
indicate that the section discusses the “act of sexual
intercourse” and the circumstances under which that act occurs
without consent. Id. § 76-5-406. Because the act at issue is
the act of sexual intercourse, the term “actor” as used in
subsections (10) and (11) must necessarily relate back to the
underlying “act of sexual intercourse.” And the term “actor”
must refer to the person who engages in the act at issue.
Therefore, the “actor” is the person who engages in sexual
intercourse. To read the statute otherwise would require us to
sever the term “actor” from the context of the surrounding
provisions. Because Jeffs did not engage in sexual intercourse
with Wall, it was erroneous for the jury instructions to equate
the term “actor” with the term “defendant” in instructing the
jury as to whether the State had met its burden of proving that
the sexual intercourse between Steed and Wall was nonconsensual.

11 No. 20080408
¶34 Our conclusion that the term “actor” refers to the
individual engaging in the act of intercourse is consistent with
the principle that, in order for accomplice liability to arise,
there must be an underlying offense. Only after there is a
determination that an offense has been committed can the law
impose liability on another party who “solicit[ed], request[ed],
command[ed], encourag[ed], or intentionally aid[ed]” in the
commission of that offense. Id. § 76-2-202. To determine
whether a rape has occurred, section 76-5-406 is applied and a
determination is made of whether there was sexual intercourse
without consent. The question of accomplice liability cannot
enter the equation until after a determination has been made that
a crime has been committed. As a result, the use of the term
“actor” under the consent statute can refer only to the person
engaging in the act of intercourse.
¶35 To construe the statute otherwise would lead to absurd
results. For example, if the term “actor” as used in subsection
(10) of the consent statute is deemed to refer to the defendant
in an accomplice-liability case, a parent who encourages his
pregnant minor daughter to marry the adult father of her unborn
baby would satisfy the requirements of that subsection, thereby
rendering any further intercourse between the couple
nonconsensual and the parent guilty of a first degree felony as
an accomplice to rape.
¶36 In summary, we hold that the term “actor” as used in
subsections (10) and (11) of Utah Code section 76-5-406 refers to
the person who engaged in the act of sexual intercourse. As a
result, those subsections could not be applied to Jeffs. Only
Steed’s position of special trust or Steed’s efforts of
enticement were relevant in determining whether Wall consented to
sexual intercourse. Because the consent instructions told the
jury that defendant Jeffs’ position of special trust and
defendant Jeffs’ enticement of Wall could give rise to a lack of
consent, they were erroneous.
¶37 Having concluded that the jury instructions on consent
were erroneous, we must consider whether they require reversal of
Jeffs’ convictions. “[T]o reverse a trial verdict, [we] must
find not a mere possibility, but a reasonable likelihood that the
error affected the result.” Cheves v. Williams, 1999 UT 86,
¶ 20, 993 P.2d 191 (quoting Steffensen v. Smith’s Mgmt. Corp.,
862 P.2d 1342, 1347 (Utah 1993)). We find such a likelihood
here.
¶38 The consent instruction given to the jury stated: “An
act of sexual intercourse is without consent of a person under
any, all, or a combination of the following circumstances

No. 20080408 12
. . . .” (emphasis added). It then listed the State’s three
theories of non consent, two of which we have held to be
erroneous. Because no special verdict form was employed at
trial, the jury was not required to indicate the basis for its
finding that the intercourse between Steed and Wall was
nonconsensual. We therefore cannot determine with certainty
whether Jeffs was convicted on the basis of the one valid theory,
the two erroneous theories, or on some combination of the three.
And because there was no real dispute at trial that Jeffs was in
a position of special trust with respect to Wall, a theory we
have held to be erroneous, it is highly likely that Jeffs was
convicted on the basis of an erroneous theory. Such a likelihood
requires reversal of his convictions and a remand for a new
trial.
C. The Accomplice Liability Instruction Was Erroneous
¶39 Because we reverse Jeffs’ convictions on the basis of
the erroneous consent instructions, his remaining claims of error
are not dispositive and we need not reach them. We nevertheless
address his claim that the trial court erroneously instructed the
jury with regard to the mens rea element of the accomplice
liability statute in order to guide the trial court on remand.
See IHC Health Servs., Inc. v. D & K Mgmt., 2003 UT 5, ¶ 10, 73
P.3d 320 (considering nondispositive argument for guidance of the
parties on remand).
¶40 Jeffs asserts that he could not be convicted as an
accomplice to the rape of Wall unless the State proved that he
intended that Steed rape Wall. At trial, Jeffs unsuccessfully
requested a jury instruction stating that, in order to reach a
conviction, the jury must find that Jeffs “intended that the
result of his conduct would be that Allen Steed rape Elissa
Wall.” We agree with Jeffs that he was entitled to the requested
instruction.
¶41 The trial court instructed the jury on party liability
as follows:
To convict Warren Jeffs as an accomplice to
the crime of rape, you must find from the
evidence, beyond a reasonable doubt, all of
the following elements of that crime:
1. That the defendant, Warren Jeffs:
a. intentionally, knowingly, or recklessly
solicited, requested, commanded, or
encouraged another–-
I. to have sexual intercourse

13 No. 20080408
ii. with Elissa Wall without consent; or
b. intentionally aided another–-
I. to have sexual intercourse
ii. with Elissa Wall without consent; and
2. Allen Steed had sexual intercourse with
Elissa Wall without consent.
¶42 Jeffs argues that one cannot be found guilty as an
accomplice unless he has the required mental state for the
underlying crime to be committed. In this case, Jeffs argues
that the jury was not adequately instructed of this requirement.
The State disagrees, pointing out that the instruction properly
informed the jury of the mental state required which, in the case
of rape, is an “intentional, knowing or reckless mental state.”
State v. Calamity, 735 P.2d 39, 43 (Utah 1987); see also Utah
Code Ann. § 76-2-102 (“[W]hen the definition of the offense does
not specify a culpable mental state and the offense does not
involve strict liability, intent, knowledge, or recklessness
shall suffice to establish criminal responsibility.”). The
problem, however, is that the instruction only indicated that the
reckless, knowing, or intentional mental state attached to the
actions of “solicited, requested, commanded, or encouraged,” not
to the underlying criminal conduct of rape.
¶43 We addressed the requisite mental state under the
accomplice liability statute in State v. Briggs. 2008 UT 75, 197
P.3d 628. There, we stated that “[a]n accomplice must . . . have
the intent that the underlying offense be committed.” Id. ¶ 14.
“Intent,” as used in this context, is a legal term of art that
means “[t]he state of mind accompanying an act.” Black’s Law
Dictionary 881 (9th ed. 2009). It should not be confused with
the mental state designated as “intentionally.” See Utah Code
Ann. § 76-2-103(1). To restate the essential principle,
“accomplice liability adheres only when the accused acts with the
mens rea to commit the principal offense.” State v. Calliham,
2002 UT 86, ¶ 64, 55 P.3d 573.
¶44 The accomplice liability statute reflects this
principle in the requirement that the defendant act “with the
mental state required for the commission of [the] offense.” Utah
Code Ann. § 76-2-202. This mandates that the defendant, in this
case one who acts as an accomplice to rape, undertake his actions
intentionally, knowingly, or recklessly. But intentionally,
knowingly, or recklessly in regard to what? The obvious answer
is that he must act intentionally, knowingly, or recklessly as to
the results of his conduct. And in order for criminal liability
to attach, the results of his conduct must be a criminal offense.

No. 20080408 14
¶45 This principle is further clarified by the statutory
definitions of the possible “mental state[s] required for the
commission of” rape. Id. A person acts “[i]ntentionally . . .
with respect to the nature of his conduct or to a result of his
conduct, when it is his conscious objective or desire to engage
in the conduct or cause the result.” Id. § 76-2-103(1). Under
this mental state, the accomplice desires to cause rape. “A
person acts knowingly, or with knowledge, with respect to a
result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.” Id. § 76-2-103(2).
Under this mental state, the accomplice knows that his conduct
will most likely cause rape. Finally, a person acts
“[r]ecklessly with respect to circumstances surrounding his
conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur.” Id.
§ 76-2-103(3). Under this mental state, the accomplice
recognizes that his conduct could result in rape but chooses to
proceed anyway. Thus, in specifying that the accomplice act with
the mental state required for the commission of the underlying
offense, the accomplice liability statute clearly contemplates
that the accomplice is aware of, at a minimum, the substantial
and unjustifiable risk that his actions will result in the
commission of a crime--in this case rape--by another person.
¶46 The State urges an alternate interpretation of the
accomplice liability statute, under which one could act
intentionally, knowingly, or recklessly in the abstract and incur
criminal liability if his actions resulted in soliciting,
requesting, commanding, encouraging, or intentionally aiding
another in committing a crime. We reject this alternate
interpretation because it would sweep in too much innocent
behavior. Taken to its logical extreme, this interpretation
could result in accomplice liability attaching to a person who
leaves his house unlocked, leading to the theft of his own
personal property inside the house. But we have been careful to
avoid expanding the law to this extent.
¶47 In State v. Comish, we held that a security officer who
purchased marijuana in a sting operation could not be considered
an accomplice for testimonial purposes because “[u]nder [the]
statute and under the [generally accepted meaning of the term,
. . . ‘accomplice’ . . . does not include a person who . . .
merely provides an opportunity for one who is disposed to commit
a crime.” 560 P.2d 1134, 1136 (Utah 1977).
¶48 And we have also held that even less innocent behaviors
do not appropriately categorize an individual as an accomplice if
that individual had no intention that the underlying crime be

15 No. 20080408
committed. In State v. Schreuder, for example, we held that a
man who knew that a woman wanted to kill her father and who
concealed the murder weapon after the crime was committed was not
an accomplice. 726 P.2d 1215, 1220 (Utah 1986). In so holding,
we stated that “[p]rior knowledge does not make a person an
accomplice when that person does not have the mental state
required” for the underlying crime. Id. While there were
clearly other crimes with which the defendant in Schreuder could
have been charged, “there was insufficient evidence to establish
that he . . . had the mental state required to commit the crime
[of murder],” and thus he was not an accomplice. Id.
¶49 We clarify that an accomplice need not act with the
same intent, or mental state, as the principal. “Party liability
under section 76-2-202 does not require that the persons involved
in the criminal conduct have the same mental state.” State v.
Alvarez, 872 P.2d 450, 461 (Utah 1994). “A defendant can be
criminally responsible for an act committed by another, but the
degree of his responsibility is determined by his own mental
state in the acts that subject him to such responsibility, not by
the mental state of the actor.” State v. Crick, 675 P.2d 527,
534 (Utah 1983) (emphasis omitted). “[I]t is not necessary for
the accomplice to have the same intent that the principal actor
possessed as long as the accomplice intended that an offense be
committed.” State v. Briggs, 2008 UT 75, ¶ 14.
¶50 Jeffs was also entitled to his requested instruction
for the independent reason that it was necessary to clarify the
“intentionally aids” portion of the accomplice liability statute.
In those cases where the defendant solicits, requests, commands,
or encourages another to commit an offense, the accomplice
liability statute incorporates the default mental state of
recklessly, knowingly, or intentionally. However, in those cases
where the defendant is charged with aiding another in the
commission of the offense, the accomplice liability statute
requires that the defendant’s aiding be “intentional.” See Utah
Code Ann. § 76-2-202.
¶51 While the jury instruction used in this case did
incorporate the phrase “intentionally aided,” it was nevertheless
confusing with respect to the issue of intent. As we explained
in Briggs, “To show that a defendant is guilty under accomplice
liability, the State must show that an individual acted with both
the intent that the underlying offense be committed and the
intent to aid the principal actor in the offense.” 2008 UT 75,
¶ 13. This is precisely the alternate instruction that Jeffs
requested, but was denied.

No. 20080408 16
¶52 Without Jeffs’ proposed instruction as to intent, the
jury could have convicted Jeffs if it found that Jeffs
“intentionally” did some act, and such intentional act
unintentionally “aided” Steed in having nonconsensual sexual
intercourse with Wall. For example, even if Jeffs never intended
for Steed to rape Wall, the jury instruction allowed for the
possibility that he would be found guilty simply because he
intentionally performed the marriage ceremony and the existence
of the marriage aided Steed in raping Wall. For this reason, the
jury instruction was also erroneous.
CONCLUSION
¶53 Because we hold that the trial court’s instructions to
the jury regarding lack of consent were in error, we reverse
Jeffs’ two convictions of rape as an accomplice and remand for a
new trial.
¶54 We regret the effect our opinion today may have on the
victim of the underlying crime, to whom we do not wish to cause
additional pain. However, we must ensure that the laws are
applied evenly and appropriately, in this case as in every case,
in order to protect the constitutional principles on which our
legal system is based. We must guarantee justice, not just for
this defendant, but for all who may be accused of a crime and
subjected to the State’s power to deprive them of life, liberty,
or property hereafter.
¶55 Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Nehring concur in Justice Parrish’s opinion.
¶56 Justice Wilkins sat for oral argument; however, due to
his retirement from this court, did not participate herein.