State v. Walker

2017 UT App 2

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TIMOTHY NOBLE WALKER,
Appellant.

Opinion
No. 20150317-CA
Filed January 6, 2017

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 141904012

Lori J. Seppi and Michael R. Sikora, Attorneys
for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and KATE A. TOOMEY concurred.

POHLMAN, Judge:

¶1 Timothy Noble Walker asserts that he was denied his
federal constitutional right to a jury trial with respect to a key
element of the State’s case. We agree and therefore vacate his
conviction and remand for a new trial.
State v. Walker

BACKGROUND1

¶2 Walker and his wife (Wife) had been married less than a
month when Wife’s employer transferred her job from South
Carolina to Utah. The couple then moved to Utah, bringing
Wife’s teenage son (Son) with them. They stayed in hotels for a
few days while Wife began work at her new location.

¶3 One evening the three were together in their hotel room.
Walker and Wife had been drinking and, sometime during the
evening, Wife picked up Walker’s glass and poured his drink
down the sink. Upset, Walker struck Wife in the face. She fell
against the refrigerator, then stood up and walked around the
hotel room, searching for something. She found the keys to the
couple’s van in Walker’s clothing, and she put them in her
pocket.

¶4 Walker approached Wife from behind and put his right
wrist against her neck. He lifted her up with his right hand while
reaching into her pocket with his left hand, attempting to get the
keys. During the struggle that followed, Wife kicked at Walker
and pulled at his arm, trying to loosen his hold on her neck. But
Walker used his left hand to reinforce his grip, and he lifted Wife
completely off the floor. Wife was unable to wrench free.

¶5 Son was sitting on a bed a few feet away. He saw Wife
struggling to free herself and heard her making ‚choking
sounds.‛ He told Walker to stop, but Walker persisted. Walker
kept his wrist pressed against Wife’s neck until she suddenly
exhaled. Her eyes rolled back in her head, her arms fell to her

1. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.‛
Mackin v. State, 2016 UT 47, ¶ 2 n.1 (citation and internal
quotation marks omitted).

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sides, and her body went limp. She had been subject to Walker’s
grip for approximately ten to fifteen seconds.

¶6 Walker abruptly let go and pushed Wife away. She fell
face-first against the wall and did not move. Walker began
gathering his things. When Son asked him what he had done,
Walker replied that he ‚didn’t do anything‛ and that Wife was
‚faking it‛ because she was a ‚drama queen.‛ Walker then
walked out of the room. He drove away, ultimately returning to
South Carolina.

¶7 Son attempted to waken Wife and shift her into a sitting
position. He also called the police. After about a minute, Wife
began to regain her faculties. She heard Son crying and calling
her name. Not long afterward, she heard a knock on the door
when a police officer arrived.

¶8 The officer found Son and Wife in the hotel room. Wife
was conscious but ‚didn’t appear *to be+ in the right state of
mind,‛ and the officer ‚couldn’t understand what she was
saying at first.‛ After listening to Son’s description of the
evening’s events, the officer called for medical assistance to
evaluate Wife. He also photographed Wife’s injuries, which
consisted of ‚visible injury‛ to her right eye and ‚red marks
around her neck,‛ which ‚appeared to be swollen.‛ The officer
also called Walker. After the officer identified himself, Walker
said, ‚I’m driving out of the state, don’t worry about me,‛ and
hung up.

¶9 A paramedic evaluated Wife and asked if she wanted to
go to the hospital, but Wife declined. However, Wife saw a
doctor several days later and told him that she felt soreness and
tenderness about her head, face, and neck. She underwent
testing and was told to ‚take it easy‛ and allow her body time to
heal, but she was not prescribed any particular medical
treatment.

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¶10 Walker was charged with aggravated assault, a second
degree felony. See Utah Code Ann. § 76-5-103(2)(b) (LexisNexis
2012).2 He elected to have the charge tried by a jury. Wife, Son,
and the officer each testified for the State regarding the evening’s
events. During cross-examination, Wife was asked about the
medical documentation of her injuries. She testified that she had
suffered a concussion and headaches, but she could not identify
any reference to those injuries in the records from her doctor
visit. Wife also testified that she was unaware of any long-term
physical or medical complications resulting from the incident.

¶11 In defense, Walker elicited brief testimony from the
paramedic, who stated that he had not characterized Wife’s
injuries as threatening life or limb. Walker also called Robert
Rothfeder as an expert witness on the subject of strangulation
injuries. Rothfeder’s testimony distinguished structural injuries
to the neck from suffocation injuries to the brain. According to
Rothfeder, causing structural damage to a person’s trachea
requires ‚a significant amount of force‛ and would result in a
‚serious situation‛ from which the body would not
‚automatically rebound.‛ Regarding suffocation, Rothfeder
testified that lack of oxygen could cause brain injury or death
after a ‚number of minutes. Most people would say two to three
minutes in an otherwise reasonably healthy person. . . . [But]
[t]he brain can survive those kinds of insults for a period, for
that period of time.‛

¶12 Rothfeder also testified that putting pressure on a certain
place on either side of the neck—on the carotid sinus—would
lead to a drop in blood pressure that could result in a person
fainting. Rothfeder explained that medical professionals may
massage the carotid sinus for therapeutic purposes—for

2. We reference the statutory provisions in effect in early 2014,
when the events at issue occurred.

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example, to treat a person experiencing a rapid heart rate. But a
‚complication of doing that‛ is a person may ‚faint or pass out
. . . if [his or her] blood pressure drops too quickly.‛ According
to Rothfeder, pressure on the carotid sinus for as little as ten to
fifteen seconds could cause a person to lose consciousness. But if
the pressure were removed, the person’s pulse would increase
and he or she would quickly regain consciousness.

¶13 Following Rothfeder’s testimony, the court instructed the
jury, giving it four options. The jury could find Walker not guilty
or find him guilty of one of the following offenses: aggravated
assault, a second degree felony; aggravated assault, a third
degree felony; or assault, a class B misdemeanor. If Walker had
committed more than one offense, the jury was instructed to find
him guilty of the most serious crime.

¶14 The instructions for the offenses largely tracked the
relevant statutory language. For the most serious charge—
aggravated assault, a second degree felony—the jury was
required to find that Walker had intentionally, knowingly, or
recklessly committed assault; used means or force likely to
produce death or serious bodily injury; and caused serious
bodily injury. See Utah Code Ann. §§ 76-2-102, 76-5-103(1), (2)(b)
(LexisNexis 2012). The instructions for aggravated assault, a
third degree felony, imposed the same requirements except that
Walker need not have caused serious bodily injury. See id. § 76-5-
103(1), (2)(a). The requirements for the misdemeanor assault
charge, per the applicable statutory language, dropped any
reference to ‚serious bodily injury.‛ See id. § 76-5-102. The jury
was instructed that Walker was guilty of misdemeanor assault if
he had intentionally, knowingly, or recklessly committed an act
with unlawful force or violence and caused bodily injury or
created a substantial risk of bodily injury. See id. §§ 76-2-102, 76-
5-102.

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¶15 ‚Serious bodily injury‛ was defined in accordance with
its statutory meaning as ‚bodily injury that creates or causes
serious permanent disfigurement, protracted loss or impairment
of the function of any bodily member or organ, or creates a
substantial risk of death.‛ See id. § 76-1-601(11). ‚Bodily injury‛
was also defined according to the relevant statutory language as
‚physical pain, illness[,] or an impairment of physical
condition.‛ See id. § 76-1-601(3).

¶16 Over Walker’s objection, the jury received an additional
instruction (Instruction 18) that did not mirror any statutory
language but was based on two Utah Supreme Court cases that
addressed whether strangulation or attempted strangulation
constituted serious bodily injury or force sufficient to cause such
injury. See State v. Speer, 750 P.2d 186, 191 & n.4 (Utah 1988); State
v. Fisher, 680 P.2d 35, 37 (Utah 1984). Instruction 18 stated, ‚You
are instructed that strangulation to the point of unconsciousness
constitutes serious bodily injury.‛ Walker objected that this
instruction violated his right to have the jury ‚make *a+
determination of proof beyond a reasonable doubt on each and
every element of the offense.‛ His objection was overruled.

¶17 In closing argument, the prosecutor asserted that the
‚paramount issue‛ was whether Wife ‚suffer[ed] serious bodily
injury.‛ Commenting that ‚this is the part where I’m going to
ask you to follow the law,‛ the prosecutor walked the jury
through the statutory definitions of bodily injury and serious
bodily injury and then turned to Instruction 18, stating: ‚*T+he
next instruction gives you a further definition of what the law
recognizes as serious bodily injury. It says, you are instructed
that strangulation to the point of unconsciousness constitutes
serious bodily injury.‛ The prosecutor then asked, ‚Do you see
what I mean when I said this just comes down to your ability to
follow the law?‛

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¶18 The case was submitted to the jury and, after deliberating
for more than an hour, the jury sent the court a note asking,
‚What is the definition of ‘constitutes’? As in [Instruction] 18.‛
The court responded, ‚Use the common and ordinary meaning
of the word. A dictionary definition is to ‘amount to’ or ‘add up
to.’‛ The jury continued deliberating for about another hour and
a half before reaching its verdict. The jury acquitted Walker of
the most serious offense but found him guilty of aggravated
assault, a third degree felony. Walker appeals.

ISSUE AND STANDARD OF REVIEW

¶19 Walker asserts that his federal constitutional right to a
jury trial, as secured by the Sixth and Fourteenth Amendments
to the United States Constitution, was violated when the trial
court instructed the jury that ‚strangulation to the point of
unconsciousness constitutes serious bodily injury.‛ According to
Walker, a trial court ‚violates the Sixth and Fourteenth
Amendments if it instructs a jury how to find on an element of
the offense.‛ Here, Walker claims that if the jury found that he
choked Wife and she lost consciousness, even briefly, the jury
was required to find that he used force likely to produce serious
bodily injury. Walker’s challenge to the jury instruction presents
a question of law, which we review for correctness. See State v.
Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.

ANALYSIS

¶20 The Sixth Amendment protects a defendant’s right to trial
by jury in federal criminal proceedings. U.S. Const. amend. VI
(‚In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury . . . .‛). The
Fourteenth Amendment guarantees that right to criminal
defendants in state courts—i.e., those who, ‚were they to be
tried in a federal court[,] would come within the Sixth

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Amendment’s guarantee.‛ Duncan v. Louisiana, 391 U.S. 145, 149
(1968). Read together, these provisions require criminal
convictions in state proceedings to rest upon a jury
determination that the defendant is guilty of every element of
the crime charged, beyond a reasonable doubt. See id.; cf. United
States v. Gaudin, 515 U.S. 506, 510 (1995) (discussing the Fifth and
Sixth Amendments in the context of a federal criminal
proceeding). A state must therefore persuade the jury ‚of the
facts necessary to establish each of those elements.‛ Sullivan v.
Louisiana, 508 U.S. 275, 278 (1993).3

¶21 Neither the legislature nor the judiciary may usurp the
jury’s role as fact-finder. While legislatures are largely ‚free to
choose the elements that define their crimes,‛ Jones v. United
States, 526 U.S. 227, 241 (1999), statutory directives that
‚foreclose[] independent jury consideration of whether the facts
proved establish[] certain elements of the offense[]‛ violate a
defendant’s Fourteenth Amendment rights, see, e.g., Carella v.
California, 491 U.S. 263, 266 (1989) (per curiam).

¶22 For example, a jury instruction that ‚*t+he law presumes
that possession of property recently stolen, when no satisfactory
explanation of such possession is made, shall be deemed prima
facie evidence that the person in possession stole the property,‛
although tracking statutory language, creates an impermissible
mandatory presumption. State v. Crowley, 2014 UT App 33, ¶¶ 3,
8–13, 16, 320 P.3d 677 (internal quotation marks omitted)
(holding the instruction unconstitutional because it lacked
‚language clarifying that the jury [was] allowed to make a

3. Moreover, following Apprendi v. New Jersey, 530 U.S. 466
(2000), and Blakely v. Washington, 542 U.S. 296 (2004), ‚every
defendant has the right to insist that the prosecutor prove to a
jury all facts legally essential to the punishment.‛ Blakely, 542
U.S. at 313 (emphasis omitted).

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permissive inference, and because the instruction contain[ed] the
confusing words ‘prima facie’ with no supporting explanation‛).
‚Such directions subvert the presumption of innocence accorded
to accused persons and also invade the truth-finding task
assigned solely to juries in criminal cases.‛ See Carella, 491 U.S. at
265 (concluding that jury instructions incorporating statutory
presumptions violated the Fourteenth Amendment); see also, e.g.,
Sandstrom v. Montana, 442 U.S. 510, 518 & n.6, 524 (1979) (same).

¶23 The judiciary likewise must take care not to step into the
jury’s fact-finding shoes. While ‚it is the role of the judge to
‘instruct the jury on the law,’‛ State v. Palmer, 2009 UT 55, ¶ 14,
220 P.3d 1198 (quoting Gaudin, 515 U.S. at 513), it is the jury’s
constitutional prerogative to determine the facts and ‚to apply
the law to those facts and draw the ultimate conclusion of guilt
or innocence,‛ Gaudin, 515 U.S. at 514. A judge, therefore, may
not direct a verdict for the State, in whole or in part, no matter
how damning the evidence. See Sullivan, 508 U.S. at 277.

¶24 There is an exception to these principles for ‚pure
question[s] of law,‛ which are not within the province of the jury
and thus ‚cannot implicate the right to a jury trial.‛ Palmer, 2009
UT 55, ¶¶ 14–18 (concluding that the timing of a defendant’s
conviction—either at the time of sentencing or at the time he
pleaded guilty—was a pure question of law for the judge to
decide). But a fact question, or a mixed question of law and fact,
does not morph into a pure legal question for Sixth Amendment
purposes merely because the evidence is overwhelming and
might be characterized as supporting only one reasonable
conclusion as a matter of law. Cf. Rose v. Clark, 478 U.S. 570, 579–
82 & n.10 (1986) (suggesting that instructing a jury to presume
malice or intent is error even if that ‚inference is overpowering‛
and it would ‚defy common sense‛ to conclude otherwise),
abrogated on other grounds by Brecht v. Abrahamson, 507 U.S. 619
(1993). Thus, a court errs by instructing a jury that, as a matter of
law, a bicycle path is a public park constituting a drug-free zone,

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State v. Davis, 2007 UT App 13, ¶ 12, 155 P.3d 909, or by
determining that a defendant is a ‚Category I restricted person‛
barred from possessing a firearm, State v. Liti, 2015 UT App 186,
¶¶ 25–26, 355 P.3d 1078.

¶25 In this case, the trial court instructed the jury that
‚strangulation to the point of unconsciousness constitutes
serious bodily injury,‛ relying on two Utah Supreme Court
opinions that addressed whether strangulation or attempted
strangulation constituted serious bodily injury or force sufficient
to cause such injury. See State v. Speer, 750 P.2d 186, 191 & n.4
(Utah 1988); State v. Fisher, 680 P.2d 35, 37 (Utah 1984). But as set
forth below, whether strangulation to unconsciousness
constitutes serious bodily injury is not a pure legal question. The
matter is within the province of the jury and, in urging us to
conclude otherwise, the State fails to properly distinguish the
Legislature’s role in defining elements of criminal offenses, the
appellate court’s role in reviewing criminal proceedings, and the
trial court’s role in instructing the jury.

¶26 Whether a defendant caused serious bodily injury or used
means or force likely to produce such injury, for purposes of an
aggravated assault offense, is a question for the jury to decide
based on the facts presented in the case before it. The Utah Code
sets forth the elements of aggravated assault and provides a
legal definition of the term ‚serious bodily injury‛ to guide the
fact-finder’s inquiry. Utah Code Ann. §§ 76-5-103, 76-1-601(11)
(LexisNexis 2012) (‚‘Serious bodily injury’ means bodily injury
that creates or causes serious permanent disfigurement,
protracted loss or impairment of the function of any bodily
member or organ, or creates a substantial risk of death.‛). When
the State brings charges and prosecutes a defendant for that
offense, ‚it is within the province of the jury to consider the
means and manner by which the victim’s injuries were inflicted
along with the attendant circumstances in determining whether
a defendant caused serious bodily injury,‛ see State v. Bloomfield,

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2003 UT App 3, ¶ 18, 63 P.3d 110 (citation and internal quotation
marks omitted), or used means or force likely to produce such
injury, cf. id.

¶27 In addition, Utah appellate courts have routinely noted in
similar contexts that this type of fact-intensive question must be
put to the jury. See, e.g., Mackin v. State, 2016 UT 47, ¶ 28
(‚Whether in the course of committing a robbery a defendant
uses an item in a way that is capable of causing death or serious
bodily injury is a question of fact for the jury.‛); State v. Pham,
2016 UT App 105, ¶¶ 20–22, 372 P.3d 734 (addressing whether a
jury could reasonably conclude that a shooting resulted in
serious bodily injury by creating a substantial risk of death,
relying on Bloomfield, 2003 UT App 3, ¶ 18), cert. granted, 384 P.3d
567 (Utah Sept. 12, 2016); State v. Ekstrom, 2013 UT App 271,
¶¶ 18–26, 316 P.3d 435 (reversing the defendant’s conviction
because the statutory definition of ‚serious bodily injury‛ was
not given to the jury tasked with deciding whether the
defendant committed aggravated assault by using an item
capable of causing serious bodily injury or by using other means
or force likely to produce death or serious bodily injury).

¶28 The State nevertheless asserts that the Utah Supreme
Court has limited the jury’s role with regard to one type of
serious bodily injury and the use of force likely to produce it.
According to the State, ‚the Utah Supreme Court has long held
that strangulation to unconsciousness constitutes serious bodily
injury as a matter of law,‛ and the State therefore asserts that a
jury instruction incorporating that proposition must be upheld.
We do not believe the cases cited by the State require that result.

¶29 In State v. Fisher, 680 P.2d 35 (Utah 1984), the Utah
Supreme Court addressed a question of evidentiary
sufficiency—namely, whether sufficient evidence supported the
defendant’s conviction of second degree murder under a
statutory provision requiring that the defendant ‚inten*ded] to

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cause serious bodily injury.‛ Id. at 37. Because the defendant
‚testified that he intentionally placed his hands on the victim’s
neck, that he intentionally squeezed her throat, and that he
intended to get her to go unconscious,‛ the defendant
‚intentionally committed an act that is dangerous to human life
(strangulation), intending to cause serious bodily injury
(protracted loss or impairment of both the heart and the brain,
i.e., unconsciousness).‛ Id. (internal quotation marks omitted).
Based on this reasoning, the supreme court concluded that the
evidence amply supported the conviction, ‚holding that
strangulation constitutes ‘serious bodily injury.’‛ Id. at 37–38.

¶30 Notwithstanding the categorical sweep of Fisher’s
language, the opinion held that strangulation with intent to
cause unconsciousness was, at least under the circumstances of
that case, ‚virtually conclusive‛ of ‚intent to inflict serious
bodily injury.‛ Id. But the Fisher court did not hold—or even
address—whether juries in subsequent cases should be
instructed that if a defendant strangles another with intent to
cause unconsciousness, the jury must find that the defendant
intended to cause serious bodily injury. See id. at 36–38. In light
of the categorical phrasing in Fisher, the trial court’s decision to
instruct the jury as it did was understandable. Nevertheless, it
was incorrect.

¶31 ‚*T]here is a distinction between determining whether the
evidence [is] sufficient to support a plea or conviction . . . and
instructing the jury as a matter of law that an element of the
offense has been established . . . .‛ State v. Moore, 699 N.W.2d
733, 737 (Minn. 2005). While the State would have us interpret
Fisher as addressing both questions, the supreme court’s
discussion does not indicate that it was addressing the latter
issue or that it intended its conclusion, based on the facts of that
case, to be used as a jury instruction in future cases. We see no
reason to read Fisher so broadly, particularly when doing so risks
‚violating the requirement that criminal convictions must ‘rest

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upon a jury determination that the defendant is guilty of every
element of the crime with which he is charged, beyond a
reasonable doubt.’‛ Id. (quoting United States v. Gaudin, 515 U.S.
506, 510 (1995)). The State’s reliance on Fisher is thus misplaced.

¶32 The State’s reliance on State v. Speer, 750 P.2d 186 (Utah
1988), is similarly unavailing. In Speer, the defendant was
convicted of aggravated assault and aggravated burglary. Id. at
188. At issue on appeal was whether the jury should also have
been instructed on lesser offenses. Id. at 190–91. That
determination turned on whether ‚there [was] a rational basis
for a verdict acquitting the defendant of the offense[s] charged
and convicting him of the included offense[s].‛ Id. at 190
(citation and internal quotation marks omitted).

¶33 Citing evidence of strangulation or attempted
strangulation, the Utah Supreme Court concluded that the
requisite rational basis was lacking. Id. at 191. Because the
‚defendant admitted choking *the victim+ about the throat until,
by her testimony, she almost passed out,‛ there was
‚uncontroverted testimony establish[ing] that [the defendant]
used force likely to cause death or serious bodily injury.‛ Id.
(citation and internal quotation marks omitted). There was thus
‚no theory of the evidence that would have supported a verdict
acquitting [the defendant] of aggravated burglary or aggravated
assault and convicting him of the lesser offenses.‛ Id. In support
of this conclusion, the supreme court stated in a footnote, ‚See
State v. Fisher, 680 P.2d 35, 37 (Utah 1984), where we held that
strangulation constitutes ‘serious bodily injury.’‛ Speer, 750 P.2d
at 191 & n.4.

¶34 The Utah Supreme Court thus concluded, based on the
circumstances before it, that the evidence did not trigger the trial
court’s obligation to provide lesser offense instructions. Id. at
190–91. But as in Fisher, the supreme court neither held nor
addressed whether juries in subsequent cases would be required

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to find that strangulation or attempted strangulation constituted
serious bodily injury or force likely to cause such injury. See id.
And as set forth above, such a requirement would be improper.

¶35 While the strength of the State’s evidence may be a crucial
factor with regard to lesser offense instructions, it does not
provide grounds for removing an element of an offense from the
jury’s consideration. See Rose v. Clark, 478 U.S. 570, 581–82 & n.10
(1986) (noting that ‚*s+tates are not constitutionally required to
instruct juries about lesser included offenses where such
instructions are not warranted by the evidence,‛ but even when
the evidence is ‚overpowering,‛ instructing the jury that an
element of the offense may be presumed would still be error),
abrogated on other grounds by Brecht v. Abrahamson, 507 U.S. 619
(1993). An appellate court may hold that a defendant is not
entitled to a lesser included offense instruction because, under
the circumstances of that case, there is no ‚question of fact as to
whether [the injury] is mere bodily harm or great bodily
harm‛—it ‚constitutes great bodily harm.‛ State v. Brice, 80 P.3d
1113, 1117 (Kan. 2003) (citation and internal quotation marks
omitted). But an appellate court’s statement that an injury is
‚great bodily harm‛ as a matter of law is not ‚precedent*+ for the
trial judge’s instructing the jury that [such an injury] is great
bodily harm.‛ Id. at 1123. ‚It *may seem+ a fine point, but *it is+
one that due process requires.‛ Id.

¶36 Thus, here again, the State’s argument fails. The Utah
Supreme Court did not write ‚strangulation to unconsciousness‛
into the Legislature’s definition of ‚serious bodily injury.‛ And
the instruction to that effect violated Walker’s federal
constitutional rights because it ‚foreclose*d+ independent jury
consideration of whether the facts proved established [a] certain
element*+ of the offense*+‛ and thus ‚relieved the State of its
burden of . . . proving by evidence every essential element of
[the] crime beyond a reasonable doubt.‛ See Carella v. California,
491 U.S. 263, 266 (1989) (per curiam).

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¶37 ‚If a defendant preserves a claim of federal constitutional
error at trial and establishes a constitutional violation on appeal,
the burden shifts to the State to demonstrate that the error was
harmless beyond a reasonable doubt.‛ State v. Sanchez, 2016 UT
App 189, ¶ 33, 380 P.3d 375 (citing cases, including Chapman v.
California, 386 U.S. 18, 24 (1967), and State v. Calliham, 2002 UT
86, ¶ 45, 55 P.3d 573), petitions for cert. filed, Oct. 27, 2016 (No.
20160891) and Oct. 31, 2016 (No. 20160911); see also Neder v.
United States, 527 U.S. 1, 6, 8–15 (1999). Here the State has not
argued that the jury instruction, if improper, was harmless
beyond a reasonable doubt. Thus, the State has not carried its
burden in that regard. See State v. Draper-Roberts, 2016 UT App
151, ¶ 39, 378 P.3d 1261.

¶38 Moreover, the improper instruction may well have played
a role in the jury’s decision-making process. As Walker asserts, a
juror could ‚naturally understand [Instruction 18] to mean that,
as a matter of law, (1) strangulation constitutes force likely to
cause serious bodily injury, and (2) unconsciousness caused by
strangulation constitutes serious bodily injury.‛ While the
instruction did not lead the jury to convict Walker of the most
serious offense, the second degree felony, the record
demonstrates that the instruction still may have been meaningful
as to Walker’s conviction of the third degree felony.

¶39 During the trial, the jury heard unrebutted expert
testimony that individuals may promptly recover from
temporary unconsciousness induced by brief pressure on the
carotid sinus. The jury also heard undisputed testimony that
Wife was choked for approximately ten to fifteen seconds,
regained consciousness fairly quickly, declined to go to the
hospital immediately thereafter, was not given specialized
treatment during a subsequent doctor visit, and was unaware of
any long-term physical or medical complications resulting from
the altercation.

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¶40 In closing argument, the prosecutor emphasized
Instruction 18, stating that the ‚paramount issue‛ was whether
Wife ‚suffer[ed] serious bodily injury‛ and that ‚this is the part
where I’m going to ask you to follow the law.‛ After discussing
the statutory definitions of bodily injury and serious bodily
injury, the prosecutor continued: ‚[T]he next instruction gives
you a further definition of what the law recognizes as serious
bodily injury. It says, you are instructed that strangulation to the
point of unconsciousness constitutes serious bodily injury.‛ ‚Do
you see what I mean,‛ the prosecutor asked, ‚when I said this
just comes down to your ability to follow the law?‛

¶41 After the case was submitted, the jury’s sole question
sought guidance on the meaning of ‚constitutes‛ as used in
Instruction 18: ‚*S+trangulation to the point of unconsciousness
constitutes serious bodily injury.‛ (Emphasis added.) Given the
jury’s question, the prosecution’s closing argument, and the
evidence at trial, we conclude that the jury instruction was not
harmless beyond a reasonable doubt with regard to whether
Walker used means or force likely to produce death or serious
bodily injury. See State v. Crowley, 2014 UT App 33, ¶¶ 18–19, 320
P.3d 677.

CONCLUSION

¶42 The jury instruction given in this case relieved the State of
its burden of proving, beyond a reasonable doubt, the facts
necessary to establish every element of the crime for which
Walker was convicted. The instruction thus violated Walker’s
Sixth and Fourteenth Amendment rights. Because the State has
not demonstrated that the instruction was harmless beyond a
reasonable doubt, we vacate Walker’s conviction for aggravated
assault and remand for a new trial.

20150317-CA 16 2017 UT App 2