State v. Ekstrom

1. The Honorable Sheila K. McCleve presided over trial and the
Honorable Randall N. Skanchy presided over sentencing.
2. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2013 UT App 271
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ANGELA DAWN EKSTROM,
Defendant and Appellant.
Opinion
No. 20111111-CA
Filed November 15, 2013
Third District Court, Salt Lake Department
The Honorable Sheila K. McCleve
The Honorable Randall N. Skanchy1
No. 101904997
Ronald Fujino, Attorney for Appellant
John E. Swallow and John J. Nielsen,
Attorneys for Appellee
JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE
RUSSELL W. BENCH concurred.2
McHUGH, Judge:
¶1 Angela Dawn Ekstrom appeals from her conviction for
aggravated assault, a third degree felony, see Utah Code Ann. § 76-

State v. Ekstrom
3. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most favorable
to the verdict, and we recite the facts accordingly.” State v. Kruger,
2000 UT 60, ¶ 2, 6 P.3d 1116. “We present conflicting evidence only
when necessary to understand issues raised on appeal.” Id.
20111111-CA 2 2013 UT App 271
5-103 (LexisNexis 2008) (current version at id. (2012)). Ekstrom
claims that there was insufficient evidence of “serious bodily
injury,” that trial counsel performed deficiently in approving jury
instructions that failed to define “serious bodily injury,” that a
police officer improperly opined on the ultimate issue as an
undisclosed expert, and that trial counsel performed ineffectively
by failing to call an eyewitness identification expert. We conclude
that there was sufficient evidence presented to support the jury’s
verdict but that the jury was not properly instructed on the
definition of “serious bodily injury.” As a result, we reverse
Ekstrom’s conviction and remand for a new trial, without consider-
ing the other issues she advances on appeal.
BACKGROUND3
¶2 On June 26, 2010, an individual (Witness) was driving when
he saw and heard Ekstrom and a man (Victim) shouting at each
other “really close, like right at each other’s face[]” near an
intersection in Salt Lake City. Out of concern, Witness pulled his
car to the side of the road to observe the incident. Ekstrom began
hitting Victim with her hands, and Victim responded by embracing
Ekstrom in an apparent effort to stop her from hitting him. After a
few seconds, Victim released Ekstrom and began walking toward
a bicycle that had been left nearby. Witness saw Ekstrom grab
“what looked to be an irrigation pipe, [a] sprinkler pipe[,] and
beg[in] to strike [Victim] with it.” Witness called 911 and reported
the incident. Witness saw Ekstrom land numerous blows to
Victim’s legs, hand, and torso and saw her attempt to strike Victim

State v. Ekstrom
20111111-CA 3 2013 UT App 271
in the head. As Victim retreated on the bicycle, Ekstrom struck
Victim on the back, breaking the pipe.
¶3 A few minutes later, police officers arrived and found
Ekstrom a couple blocks from the intersection where the incident
had occurred. Ekstrom told one of the officers that she had a
“verbal dispute” with her boyfriend near the intersection, after
which she had suffered a seizure and had just awoken at her
current location. Police officers also spoke with Victim and took
several photographs of the injuries to his head and face. The item
used to strike Victim was never found.
¶4 On July 14, 2010, Ekstrom was charged with aggravated
assault. At a jury trial on May 24, 2011, Witness and two of the
responding officers testified but Victim and Ekstrom did not.
During cross-examination Witness acknowledged, “When I saw
[Ekstrom] grab a weapon and begin to strike [Victim] with a
weapon, I didn’t know that it was a pipe, I didn’t know what it
was. It looked to be an irrigation pipe . . . .” Witness did not
provide any other information as to whether the pipe was made of
metal or plastic.
¶5 The prosecution introduced the photographs of Victim’s
head and face into evidence and then asked one of the responding
officers (First Officer) whether the injuries he saw were consistent
with Victim having been hit on the head with a pipe. First Officer
said yes. During cross-examination trial counsel asked First Officer,
“[W]hen you were told pipe . . . are you picturing a metal pipe or
a plastic pipe?” First Officer responded, “At that time, a metal
pipe.” On redirect, the prosecution asked First Officer to give his
opinion of what had happened to Victim. Over trial counsel’s
objection, the trial court permitted First Officer to testify that
Victim “was assaulted with a blunt object that was described as a
pipe.”
¶6 The jury found Ekstrom guilty of aggravated assault. The
trial court sentenced Ekstrom to an indeterminate prison term not

State v. Ekstrom
4. Ekstrom also argued in her brief that the trial court’s failure to
recognize and correct the defective instructions constituted plain
error. However, Ekstrom conceded at oral argument that trial
counsel invited any error when he approved the jury instructions,
and thus Ekstrom is not entitled to relief under the doctrine of plain
error. See State v. Geukgeuzian, 2004 UT 16, ¶¶ 9–12, 86 P.3d 742.
20111111-CA 4 2013 UT App 271
to exceed five years but then suspended that sentence and ordered
Ekstrom to serve six months in jail and three years of probation.
Ekstrom appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 First, Ekstrom argues that the evidence was insufficient to
establish either that Victim suffered “serious bodily injury” or that
Ekstrom used a “dangerous weapon.” “An appellate court may
overturn a criminal conviction for insufficiency of evidence only
‘when it is apparent that there is not sufficient competent evidence
as to each element of the crime charged for the fact-finder to find,
beyond a reasonable doubt, that the defendant committed the
crime.’” State v. Gardner, 2007 UT 70, ¶ 24, 167 P.3d 1074 (quoting
State v. Boyd, 2001 UT 30, ¶ 13, 25 P.3d 985).
¶8 Second, Ekstrom argues that the jury instructions improp-
erly omitted the definition of “serious bodily injury.” Because this
issue was not preserved, Ekstrom argues that her trial counsel
rendered ineffective assistance in failing to ensure that such an
instruction was included. “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of law.”
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.4
¶9 Because we reverse Ekstrom’s conviction and remand for a
new trial based on her trial counsel’s ineffective performance, we
need not reach her other claims raised on appeal.

State v. Ekstrom
5. Ekstrom does not dispute that she assaulted Victim. An assault
is:
(a) an attempt, with unlawful force or violence, to do
bodily injury to another;
(b) a threat, accompanied by a show of immediate
force or violence, to do bodily injury to another; or
(c) an act, committed with unlawful force or violence,
that causes bodily injury to another or creates a
substantial risk of bodily injury to another.
Utah Code Ann. § 76-5-102(1) (LexisNexis 2012).
20111111-CA 5 2013 UT App 271
ANALYSIS
I. Sufficiency of the Evidence
¶10 Ekstrom first challenges the sufficiency of the evidence to
support the conviction of aggravated assault. In particular,
Ekstrom claims that the evidence did not establish the required
elements of “serious bodily injury” and the “use of a dangerous
weapon,” because Victim did not actually suffer serious bodily
injury. Ekstrom’s argument misconstrues the elements of aggra-
vated assault.
¶11 Utah Code section 76-5-103 provides in part,
(1) A person commits aggravated assault if he com-
mits assault as defined in Section 76-5-102[ ] and he:5
(a) intentionally causes serious bodily injury to
another; or
(b) under circumstances not amounting to a
violation of Subsection (1)(a), uses a dangerous
weapon as defined in Section 76-1-601 or other means
or force likely to produce death or serious bodily
injury.

State v. Ekstrom
20111111-CA 6 2013 UT App 271
Utah Code Ann. § 76-5-103(1) (LexisNexis 2008) (current version at
id. (2012)). Here, the State argues that the facts supported a
conviction for aggravated assault because the pipe used by
Ekstrom to hit Victim is a dangerous weapon. The Utah Legislature
has defined “dangerous weapon” to include “any item capable of
causing death or serious bodily injury.” Id. § 76-1-601(5)
(LexisNexis 2012).
¶12 Thus, to prove aggravated assault, the State was not
required to establish that Victim actually suffered “serious bodily
injury.” State v. Peterson, 681 P.2d 1210, 1219 (Utah 1984) (noting,
under the variant of aggravated assault requiring the state to prove
the use of “such means of force likely to produce death or serious
bodily injury,” that “[i]t is not necessary to prove that death or
serious bodily injury occurred, but only that the actor used means
or force likely to have that result” (citation and internal quotation
marks omitted)); see also State v. Brown, 853 P.2d 851, 860 (Utah
1992) (rejecting a sufficiency of the evidence challenge to an
aggravated assault charge where defendant threatened, but did not
harm, victim with a wrench); State v. C.D.L., 2011 UT App 55, ¶ 18,
250 P.3d 69 (“Even though the evidence in this case shows that
Husband did not use his vehicle in a way that actually caused death
or serious bodily injury, there is sufficient evidence from which a
reasonable jury could conclude that Husband purposefully and
angrily used his vehicle as a ramming device to hit Wife’s
vehicle—a use that the jury could reasonably conclude was capable
of causing serious bodily injury or death.”). Instead, Ekstrom could
be found guilty of aggravated assault if she used an item capable
of causing serious bodily injury during the altercation. See Utah
Code Ann. § 76-1-601(5) (defining “dangerous weapon”); State v.
Ireland, 447 P.2d 375, 376 (Utah 1968) (stating that a jury should
decide whether a razor blade was used in a way that rendered it a
dangerous weapon); C.D.L., 2011 UT App 55, ¶ 16 (“[B]ecause an
item must simply be capable of causing death or serious bodily
injury, an item not necessarily manufactured as a dangerous

State v. Ekstrom
6. The primary authority Ekstrom relies on for her argument is In
re Besendorfer, 568 P.2d 742 (Utah 1977). However, Besendorfer is
inapposite because the case involved a proceeding under the
variant of aggravated assault requiring proof that the person
intentionally caused serious bodily injury to another. See id. at
743–44; see also Utah Code Ann. § 76-5-103(1)(a) (LexisNexis 2008)
(current version at id. (2012)).
20111111-CA 7 2013 UT App 271
weapon may nonetheless become one.”). Accordingly, we examine6
the “evidence and all reasonable inferences drawn therefrom in a
light most favorable to the verdict” to determine if there is
sufficient evidence to support a finding that Ekstrom used an item
capable of causing serious bodily injury during her altercation with
Victim. See State v. Rowley, 2008 UT App 233, ¶ 15, 189 P.3d 109
(citation and internal quotation marks omitted).
¶13 At the close of the State’s case, Ekstrom moved for a directed
verdict based, in part, on the State’s failure to produce evidence of
the type of pipe involved. According to Ekstrom, only a metal pipe
could constitute a dangerous weapon. However, we agree with the
State and the trial court that irrespective of whether the pipe was
metal or plastic, the jury could have found that the pipe was
capable of causing serious bodily injury when used to strike Victim
repeatedly. See, e.g., Sanders v. State, 623 So. 2d 428, 430–31 (Ala.
Crim. App. 1993) (holding that a PVC pipe with a jagged edge was
a deadly weapon); People v. Macklem, 57 Cal. Rptr. 3d 237, 240, 242
(Ct. App. 2007) (affirming a defendant’s conviction for assault with
a deadly weapon based on the defendant’s use of a PVC pipe in the
attack); State v. Boiteux, 74 So. 3d 731, 735–36 (La. Ct. App. 2011)
(holding that evidence was sufficient to support a conviction for
aggravated battery where defendant struck the victim with a metal
pipe). While the jury need not have found that the pipe used by
Ekstrom was a dangerous weapon, there was evidence in the
record from which it could have made such a finding. Therefore,
Ekstrom is not entitled to relief on the basis that the evidence was
insufficient to support the jury’s verdict.

State v. Ekstrom
20111111-CA 8 2013 UT App 271
II. Ineffective Assistance of Counsel
¶14 Ekstrom next argues that her trial counsel was ineffective for
failing to object to the absence of a jury instruction defining
“serious bodily injury,” which she claims is an essential component
of aggravated assault. The Sixth Amendment guarantees criminal
defendants the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). “To support an ineffective
assistance of counsel claim, a defendant must demonstrate, first,
‘that counsel’s performance was deficient’ and, second, ‘that
counsel’s deficient performance was prejudicial.’” State v. Walker,
2010 UT App 157, ¶ 13, 235 P.3d 766 (quoting State v. Litherland,
2000 UT 76, ¶ 19, 12 P.3d 92). To establish deficient performance, a
defendant “must identify specific acts or omissions demonstrating
that counsel’s representation failed to meet an objective standard
of reasonableness.” State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183
(citation and internal quotation marks omitted). In doing so, “[a]
defendant must overcome the strong presumption that [her] trial
counsel rendered adequate assistance, by persuading the court that
there was no conceivable tactical basis for counsel’s actions.” State
v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis omitted) (citations
and internal quotation marks omitted); accord State v. Gunter, 2013
UT App 140, ¶ 30, 304 P.3d 866. “The court ‘give[s] trial counsel
wide latitude in making tactical decisions and will not question
such decisions unless there is no reasonable basis supporting
them.’” Clark, 2004 UT 25, ¶ 6 (alteration in original) (citation
omitted); accord Gunter, 2013 UT App 140, ¶ 30; see also Strickland,
466 U.S. at 689 (indicating that counsel should be given wide
latitude in making tactical decisions).
¶15 “The Due Process Clause of the Fourteenth Amendment
‘protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime
with which he is charged.’” Francis v. Franklin, 471 U.S. 307, 313
(1985) (quoting In re Winship, 397 U.S. 358, 364 (1970)); accord State
v. Kelson, 2012 UT App 217, ¶ 16, 284 P.3d 695, cert. granted, 298

State v. Ekstrom
20111111-CA 9 2013 UT App 271
P.3d 69 (Utah Jan. 14, 2013) (No. 20120843). “[W]e review jury
instructions in their entirety to determine whether the instructions,
taken as a whole, fairly instruct the jury on the applicable law.”
State v. Stringham, 957 P.2d 602, 608 (Utah Ct. App. 1998) (citation
and internal quotation marks omitted). “So long as the jury is
informed what each element is and that each must be proved
beyond a reasonable doubt, the instructions taken as a whole may
be adequate . . . .” State v. Laine, 618 P.2d 33, 35 (Utah 1980)
(emphasis omitted). “Ordinarily, non-technical words of ordinary
meaning should not be elaborated upon in the instructions given
by the court.” State v. Day, 572 P.2d 703, 705 (Utah 1977). In
contrast, an instruction defining a term is necessary when the term
“has a technical legal meaning so different from its ordinary
meaning that the jury, without further explanation, would
misunderstand its import in relation to the factual circumstances.”
Compton v. State, 931 P.2d 936, 941 (Wyo. 1997) (holding that the
trial court erred in failing to give the jury the definition of
“substantial step” as used in the context of attempted sexual
assault). Furthermore, trial counsel’s performance may be deficient
if counsel fails to object or otherwise act to remove the ambiguity
of two jury instructions where, although individually correct as a
matter of law, the jury instructions used together, “with no
explanation or clarification as to their applicability[,] created the
potential for confusion and could have misled the jury.” See State
v. Hutchings, 2012 UT 50, ¶¶ 19–23, 285 P.3d 1183.
¶16 As discussed above, Utah’s aggravated assault statute
provides that a person commits aggravated assault if she commits
an assault while using a weapon capable of inflicting death or
serious bodily injury. Utah Code Ann. § 76-5-103 (LexisNexis 2008)
(current version at id. (2012)); see also id. § 76-1-601(5) (LexisNexis
2012) (defining “dangerous weapon” as any item capable of
inflicting death or serious bodily injury). The Utah Legislature has
also created three classifications of bodily injury. It has defined
“bodily injury” as “physical pain, illness, or any impairment of
physical condition,” id. § 76-1-601(3); “substantial bodily injury” as
“bodily injury, not amounting to serious bodily injury, that creates

State v. Ekstrom
7. See, e.g., State v. Smith, 909 P.2d 236, 239, 244 (Utah 1995) (noting
that victim of a sexual assault suffered substantial bodily injury
when she was still bleeding two hours after the assault occurred
and required surgery); State v. Bloomfield, 2003 UT App 3, ¶¶ 4,
17–18, 63 P.3d 110 (holding that victim suffered serious bodily
injury when he had tennis shoe marks and “multiple bruises,
scrapes, and contusions” on his head and face and lost
consciousness and remained unconscious for several hours after
being kicked and stomped in the head); State v. Boone, 820 P.2d 930,
937 (Utah Ct. App. 1991) (concluding that a reasonable jury could
have found that victim suffered bodily injury when, after being hit
in the mouth and face, he tasted blood in his mouth, his “lips were
swollen, and there was a pinkish color around his teeth, making it
evident that he had been bleeding”); see also In re D.K., 2006 UT
App 461, ¶¶ 9–11, 153 P.3d 736 (collecting cases addressing the
various levels of injury).
20111111-CA 10 2013 UT App 271
or causes protracted physical pain, temporary disfigurement, or
temporary loss or impairment of the function of any bodily
member or organ,” id. § 76-1-601(12); and “serious bodily injury”
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,” id.
§ 76-1-601(11). These different categories of injury are not subject
to analysis using ordinary meaning. See Day, 572 P.2d at 705.
Rather, the Utah Legislature has assigned each a technical legal
meaning that requires further explanation. See Compton, 931 P.2d
at 941. Indeed, the Utah appellate courts have been asked
repeatedly to clarify the injuries that fall within each classification.7
While a “bodily injury” constitutes the lowest tier in the injury
scale, see Utah Code Ann. § 76-1-601(3), the term is used as part of
the definition for both “substantial bodily injury,” which itself is
categorized, in part, as “bodily injury, not amounting to serious
bodily injury,” id. § 76-1-601(12), and “serious bodily injury,” id.
§ 76-1-601(11).

State v. Ekstrom
8. Although these factors are not included in the definition of
“dangerous weapon” found in section 76-1-601, which provides
(continued...)
20111111-CA 11 2013 UT App 271
¶17 In this case, Jury Instruction 6 directed the jury on the
necessary elements for a conviction of aggravated assault:
Before you can convict the defendant of the
crime of AGGRAVATED ASSAULT, you must find
from the evidence, beyond a reasonable doubt, all of
the following elements:
1 That on or about the 26th day of June, 2010, in
Salt Lake County, State of Utah, the
defendant, Angela Dawn Ekstrom, assaulted
[Victim]; and
2 That the said defendant intentionally or
knowingly assaulted [Victim]; and
3 That the said defendant then and there used a
dangerous weapon or such other means or
force likely to produce death or serious bodily
injury.
If you believe that the evidence establishes each and
all of the essential elements of the offense beyond a
reasonable doubt, it is your duty to convict the
defendant. On the other hand, if the evidence has
failed to so establish one or more of the elements,
then you should find the defendant not guilty.
Next, Jury Instruction 7 defines “dangerous weapon” as “any item
capable of causing death or serious bodily injury.” That instruction
further indicates that the jury may consider certain factors “[i]n
determining whether an object is a dangerous weapon,” including
“the character of the instrument, object, or thing; . . . the character
of the wound produced, if any; . . . the manner in which the
instrument, object, or thing was used; . . . [and] the other lawful
purposes for which the instrument, object, or thing may be used.”8

State v. Ekstrom
8. (...continued)
definitions generally applicable to the criminal code, they are
included in the definition of “dangerous weapon” in section 76-10-
501(6), which provides definitions applicable to the part of the
criminal code regulating weapons. Compare Utah Code Ann. § 76-1-
601(5)(a) (LexisNexis 2012), with id. § 76-10-501(6) (Supp. 2013).
Section 76-10-501(6) defines “dangerous weapon” as “an item that
in the manner of its use or intended use is capable of causing death
or serious bodily injury,” and then lists the factors, set forth in Jury
Instruction 7, that should be considered when determining whether
an “item, object, or thing not commonly known as a dangerous
weapon is a dangerous weapon.” Id. § 76-10-501(6). This court has
previously characterized the section 76-10-501(6) factors as being
“complementary to our interpretation of the term [‘dangerous
weapon’] under section 76-1-601(5)(a),” the “dangerous weapon”
definition applicable to aggravated assault. See State v. C.D.L., 2011
UT App 55, ¶¶ 16–19 & n.4, 250 P.3d 69.
9. Although neither party raises the issue on appeal, the jury
instructions also fail to provide a definition for “assault” as defined
in Utah Code section 76-5-102, which is an underlying prerequisite
for aggravated assault. See Utah Code Ann. § 76-5-103 (LexisNexis
2008) (current version at id. (2012)) (“A person commits aggravated
assault if he commits assault as defined in Section 76-5-102 . . . .”).
20111111-CA 12 2013 UT App 271
Immediately thereafter, Jury Instruction 8 defines “[b]odily injury”
to mean “physical pain, illness or an impairment of physical
condition.”
¶18 As the State concedes, the jury instructions fail to provide
the statutory definition of “serious bodily injury,” the type of injury
a dangerous weapon must be capable of inflicting. At oral9
argument, the State also conceded that trial counsel’s failure to
object to that omission was deficient performance. Thus, the only
dispute here is whether trial counsel’s deficient performance

State v. Ekstrom
20111111-CA 13 2013 UT App 271
prejudiced Ekstrom. See generally Strickland, 466 U.S. at 687–88;
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
¶19 “To show prejudice, a defendant must establish that ‘there
is a reasonable probability that, absent the errors, the fact finder
would have had a reasonable doubt respecting guilt.’” State v.
Walker, 2010 UT App 157, ¶ 13, 235 P.3d 766 (quoting Strickland v.
Washington, 466 U.S. 668, 695 (1984)). “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also State v. Lenkart, 2011 UT 27, ¶ 38,
262 P.3d 1. Therefore, the question here “is whether there is a
reasonable probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt.” Strickland, 466 U.S.
at 695; see also State v. Fowers, 2011 UT App 383, ¶ 21, 265 P.3d 832.
¶20 To convict Ekstrom of aggravated assault, the jury had to
find that Ekstrom committed an assault—which requires actual,
threatened, or attempted bodily injury—and, under the variant
argued by the State, also find that Ekstrom used a weapon capable
of inflicting death or serious bodily injury or used other means or
force likely to produce death or serious bodily injury. See Utah
Code Ann. § 76-5-102 (defining assault); id. § 76-5-103 (defining
aggravated assault); id. § 76-1-601(5)(a) (defining dangerous
weapon). However, the jury instructions defined only “bodily
injury,” thereby “creat[ing] the potential for confusion.” See State
v. Hutchings, 2012 UT 50, ¶¶ 19–23, 285 P.3d 1183. Where the jury
was not provided with a definition for “serious bodily injury,” it
may have applied the bodily injury definition to both the question
of whether Ekstrom had assaulted Victim and the determination of
whether the pipe was a dangerous weapon or whether Ekstrom
used other means or force likely to produce serious bodily injury.
Because the jury was not instructed on the elements of simple
assault under section 76-5-102, which is the only requirement of
aggravated assault that involves “bodily injury,” it is more likely
that the jurors applied the sole injury definition provided to the
questions of whether the pipe was a dangerous weapon and what

State v. Ekstrom
20111111-CA 14 2013 UT App 271
level of force Ekstrom used. Moreover, trial counsel further
confused the issue by telling the jury during closing arguments,
“Serious bodily injury was defined and told [to] you by the Judge
and you’ll have a chance to look at that instruction as you
deliberate,” and “[Y]ou can determine what that is when you read
that jury instruction.” This inaccurate statement reinforced the
likely impression that the only type of injury defined in the
instructions should be used to determine whether Ekstrom was
guilty of aggravated assault due to the use of a dangerous weapon
or the level of force used.
¶21 The strength of the evidence is also relevant to the question
of prejudice. “Because ‘[s]ome errors will have had a pervasive
effect on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated
trivial effect,’ in determining the effect of the error, we ‘consider the
totality of the evidence before the . . . jury.’” State v. Hales, 2007 UT
14, ¶ 86, 152 P.3d 321 (alteration and omission in original) (quoting
Strickland, 466 U.S. at 695–96). “[A] verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”
Strickland, 466 U.S. at 696.
¶22 In the present case, our confidence in the jury’s verdict is
undermined because there is a reasonable probability that, had a
proper instruction on “serious bodily injury” been given, the jury
would have determined that the pipe Ekstrom used to attack
Victim was not a dangerous weapon capable of causing death or
“serious bodily injury” and the force Ekstrom used was not likely
to produce such injury. The prosecutor did not proceed on a theory
that Ekstrom had caused serious bodily injury to Victim, but
instead on the theory that Ekstrom had used a dangerous weapon
or force likely to produce serious bodily injury. Indeed, both
parties acknowledge that Victim had not suffered serious bodily
injury. Thus, to support a conviction for aggravated assault the jury
had to find that the pipe Ekstrom used to strike Victim was a
dangerous weapon or that Ekstrom used other means or force

State v. Ekstrom
10. The only indication that the object used by Ekstrom was a
metal pipe came from First Officer, who did not witness the attack
or ever see the pipe. Thus, any indication that Victim was hit by a
metal pipe was, at best, speculative.
20111111-CA 15 2013 UT App 271
likely to produce death or serious bodily injury. See Utah Code
Ann. § 76-5-103 (LexisNexis 2008) (current version at id. (2012)).
Although sufficient, the record evidence is not overwhelming on
this point.
¶23 First, the pipe was never found or introduced into evidence.
Second, Witness was uncertain about the object Ekstrom used to
strike Victim, stating on direct examination that it looked like an
irrigation or sprinkler pipe, but conceding on cross-examination
that he did not know for sure what the item was. Third, there is no
record evidence that the pipe was made of metal.10
¶24 Had the record strongly established that Ekstrom used a
metal pipe to strike Victim, we would agree with the State that trial
counsel’s failure to object to jury instructions that did not define
“serious bodily injury” was harmless. Cf. State v. Lambert, 612
N.W.2d 810, 814–15 (Iowa 2000) (holding that there was not a
reasonable probability of a different result even if counsel
performed ineffectively in failing to object to a jury instruction
stating that a metal pipe was a dangerous weapon as a matter of
law). Under those circumstances, we could not conclude that there
was a reasonable probability that, if instructed properly, the jury
would have found that Ekstrom did not use a dangerous weapon
on Victim. Cf. McKinney v. State, 463 S.E.2d 136, 139 (Ga. Ct. App.
1995) (holding that there was sufficient evidence to support an
aggravated assault conviction where the defendant had attacked
victim with a metal pipe); State v. Johnson, 322 N.W.2d 358, 359
(Minn. 1982) (holding that there was sufficient evidence to support
a first degree assault conviction where the defendant had attacked
victim with a metal pipe).

State v. Ekstrom
20111111-CA 16 2013 UT App 271
¶25 However, the evidence here does not strongly support a
finding that the pipe was metal. As trial counsel stated at closing
argument, the fact that the object broke suggests that it “wasn’t a
metal pipe” because a “[m]etal pipe is not going to break when you
hit somebody in the back with it or over the head with it.”
Although we have little doubt that a properly instructed jury
would find that a typical metal pipe is capable of inflicting serious
bodily injury as that term has been defined by our legislature, there
is a reasonable probability that the jury would reach a different
outcome with respect to a pipe made of a substance weak enough
to break when used to hit Victim. In some instances, plastic or PVC
pipe may constitute a dangerous weapon capable of causing death
or serious bodily injury. See, e.g., Sanders v. State, 623 So. 2d 428,
430–31 (Ala. Crim. App. 1993) (holding that “a broken piece of PVC
pipe that had a jagged edge and a portion of a wooden broom or
mop handle that had a pointed end” met the standard for a
“deadly weapon,” which was statutorily defined as “‘anything
manifestly designed, made or adapted for the purposes of inflicting
death or serious physical injury’”). However, while minimally
sufficient, the evidence that the pipe Ekstrom used here was
capable of causing “serious permanent disfigurement, protracted
loss or impairment of the function of any bodily member or organ,
or . . . a substantial risk of death” is weak. See Utah Code Ann. § 76-
1-601(11) (LexisNexis 2012) (defining “serious bodily injury”).
Furthermore, the only evidence as to the force Ekstrom used is the
photographs and the testimony that the pipe broke, and the fact
that the pipe broke is of limited evidentiary value without further
evidence as to the nature of the pipe. Although Ekstrom landed
numerous blows to Victim’s legs, hands, and torso before breaking
the pipe over Victim’s back, the record establishes, and both parties
concede, that Victim’s injuries were minor.
¶26 Considering the record as a whole, our confidence in the
verdict has been undermined by the error in the jury instructions,
which may have confused or misled the jury into believing that the
pipe was a dangerous weapon simply because it was capable of
causing “physical pain, illness or any impairment of physical

State v. Ekstrom
20111111-CA 17 2013 UT App 271
condition.” See id. § 76-1-601(3) (defining “bodily injury”).
Similarly, the jury may have been confused or misled into believing
Ekstrom committed aggravated assault simply because she used
force likely to cause “physical pain, illness or any impairment of
physical condition.” See id. Had the jury been properly instructed
on the meaning of “serious bodily injury,” there is a reasonable
probability that it would have found that Ekstrom’s actions did not
rise to the level of an aggravated assault. See State v. Lenkart, 2011
UT 27, ¶ 38, 262 P.3d 1. Therefore, we reverse Ekstrom’s conviction
and remand for a new trial.
CONCLUSION
¶27 The evidence was sufficient to support Ekstrom’s conviction.
However, trial counsel’s failure to challenge the absence of a jury
instruction on the statutory definition of “serious bodily injury”
undermines our confidence in the verdict because there is a
reasonable probability that if the jury had been properly instructed,
it would have concluded that the pipe was not a dangerous
weapon capable of causing death or serious bodily injury, and that
Ekstrom did not use force likely to cause death or serious bodily
injury. Accordingly, we reverse Ekstrom’s conviction and remand
for a new trial.