State v. Lolani

2025 UT App 138

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KITIONA LOLANI,
Appellant.

Opinion
No. 20220790-CA
Filed September 25, 2025

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 181908923

Dain Smoland and Staci Visser,
Attorneys for Appellant
Derek E. Brown and Emily Sopp,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1 Kitiona Lolani viciously struck Dylan 1 in the head and neck
more than twenty times over the span of thirty seconds. Dylan
was then taken to the hospital and pronounced dead, and Lolani
was charged with and convicted of murder. On appeal, Lolani
claims ineffective assistance of counsel, arguing that his trial
counsel (Counsel) was ineffective in failing to object to a faulty
jury instruction. While the jury instruction was incorrect as a
matter of law, we need not decide whether Counsel’s failure to

1. A pseudonym.
State v. Lolani

object constituted deficient performance because Lolani was not
prejudiced by the failure. We therefore affirm Lolani’s conviction.

BACKGROUND 2

The Fight

¶2 In the summer of 2018, Lolani and Dylan were inmates at
the Salt Lake County Jail. One day in early August, the two men
got into an argument during a card game. Dylan challenged
Lolani to “go outside” and fight, but Lolani ignored him.

¶3 The next day, Lolani and Dylan had a few more exchanges.
Dylan taunted Lolani, asking him if he “want[ed] to take on the
champ” and telling him that he was a “bitch, just like [his] mom.”
For his part, Lolani kicked Dylan’s chair while the inmates were
watching a movie and said, “[F]uck you, bitch.” Lolani also told
Dylan that he was “going to get [him]” and “fuck [him] up.”

¶4 Lolani spoke with his wife (Wife) about the dispute on the
telephone. He told Wife that he “went at it with somebody today,”
“almost” fought that person, and would “fucking break [that
person’s] fucking face.” Lolani also told Wife that he had “been
wanting to swing on” Dylan and “whoop his ass.” He mentioned
that he was trying—but failing—to calm down. When Wife asked
Lolani not to fight Dylan, Lolani responded that he was “sorry”
and that he loved her “a lot.” He nonetheless also said that he
“might end up staying [in custody] longer . . . because [he] might
break some part of [Dylan’s] bones.”

¶5 Lolani also spoke with a fellow inmate about the matter.
The inmate recommended that Lolani give up his job as a

2. “On appeal from a jury verdict, we recite the facts in the light
most favorable to that verdict.” State v. Fullerton, 2018 UT 49, ¶ 4
n.1, 428 P.3d 1052 (cleaned up).

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State v. Lolani

“trustee,” 3 which would have resulted in his transfer to another
jail section. Lolani asked an officer to be removed as a trustee, but
he did not explain why. The officer told Lolani to “think about it.”

¶6 The next day, Lolani was helping serve breakfast to the
other inmates as part of his trustee duties. Dylan picked up his
breakfast tray, walked over to Lolani, and appeared to exchange
words with him. After the brief exchange, Lolani punched Dylan
in the face and knocked him to the floor. He then delivered about
twenty more blows to Dylan’s head and neck in approximately
thirty seconds. Dylan did not appear to be fighting back. In fact,
according to one witness, Lolani was “[b]eating” Dylan “so bad
that [the] punches were knocking him out and waking him up one
after the other to the point where [other] inmates . . . were telling
[Lolani], ‘[T]hat’s enough, that’s enough.’” A deputy (Deputy)
yelled at Lolani to stop and used pepper spray on him. Once
Dylan “stopped moving,” Lolani stood up, put his hands behind
his back, and told Deputy to “cuff him up.” He also said that
Dylan had “messed with the wrong guy.”

¶7 Other officers arrived to find Dylan bleeding and making
“gurgling noises,” and they began administering CPR. Dylan was
taken to the hospital, where he was pronounced dead. A medical
examiner (Examiner) conducted an autopsy and concluded that
Dylan died due to a “vertebral artery tear,” which was caused by
blunt-force trauma. 4 Examiner ruled the death a homicide, and
Lolani was charged with murder.

3. Trustees assist the deputies with various tasks, including
preparing meals. In return, they receive certain benefits.

4. At trial, Examiner testified that blunt-force trauma alone was
not sufficient to cause the tear and suggested that Dylan had to
have been struck at a specific spot from a specific angle for the tear
(continued…)

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State v. Lolani

The Trial

¶8 At trial, the State introduced, among other evidence, a
video recording of the incident and audio recordings of Lolani’s
various phone conversations with Wife. The State also called
multiple witnesses, including Deputy and Examiner, to testify
about the incident and surrounding events.

¶9 Additionally, the State called a witness (Bouncer) whom
Lolani had assaulted years before the incident. Bouncer testified
that he had been working as a bouncer at a bar when Lolani broke
the orbital bone in his face in four places with a single punch,
causing a concussion and traumatic brain injury. Lolani pled
guilty to aggravated assault in connection with the encounter. 5

to have occurred. However, he also stated what seems to be the
obvious: that “head trauma” and “head injuries” can cause death
even when they don’t cause vertebral artery tearing.

5. Before trial, the State filed a notice under rule 404(b) of the Utah
Rules of Evidence of its intent to call Bouncer to testify about the
previous encounter. Lolani objected, and the district court
sustained the objection. The State filed another rule 404(b) notice
after Lolani pled guilty to assaulting Bouncer. Over Lolani’s
renewed objection, the court allowed Bouncer to testify about the
assault. The court concluded that evidence of the assault was
proper to show Lolani’s intent when he attacked Dylan, finding
that “[s]omebody with the ability to do serious bodily injury with
one punch, two punch[es], or 24 punches to an individual,
certainly has the . . . idea associated with what the intent of his
pummeling of somebody would be.” The court alternatively
concluded that evidence of the assault was admissible to prove
lack of mistake or accident. Lolani does not challenge the district
court’s decision to admit the rule 404(b) evidence.

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State v. Lolani

¶10 The prosecutor told the jury it could convict Lolani of
murder under any one of three theories: (1) Lolani intended to
cause or knowingly caused Dylan’s death, (2) Lolani intended to
cause serious bodily injury to Dylan and committed an act clearly
dangerous to human life that caused Dylan’s death, or (3) Lolani,
acting under circumstances evidencing a depraved indifference to
human life, knowingly engaged in conduct that created a grave
risk of death to another and thereby caused Dylan’s death. See
Utah Code § 76-5-203(2)(a)–(c). The prosecutor also argued that
the case was decidedly not one of homicide by assault—a lesser
included offense to murder—because that crime occurs “where
you just don’t expect” the victim to die. As an example, the
prosecutor described a scenario in which “[a] teenage soccer
player punches a [referee] one time and the referee dies.” 6

¶11 Lolani elected not to testify. Counsel conceded that Lolani
caused Dylan’s death and focused instead on sowing the seeds of
reasonable doubt about whether he intended to kill Dylan. To this
end, Counsel stressed how rarely a fistfight results in death. 7 The

6. The prosecutor may have been referring to the April 2013
incident in which a single punch from a seventeen-year-old soccer
player caused a referee to lapse into a coma and die. See Mike
Prindiville, Utah Soccer Referee Dies After Teen Punches Him in the
Face, NBC Sports, https://www.nbcsports.com/soccer/news/utah-
soccer-referee-dies-after-teen-punches-him-in-the-face [https://
perma.cc/3PCJ-V5M4].

7. Indeed, Examiner testified that he had previously never seen a
case in which a fistfight caused a vertebral artery tear. Describing
the incident in this case as a “fistfight” would seem to be a
mischaracterization, however, given its one-sided nature: Lolani
landed at least twenty blows, and Dylan didn’t even appear to
throw a punch.

20220790-CA 5 2025 UT App 138
State v. Lolani

defense ultimately asked the jury to convict Lolani of homicide by
assault instead of murder.

¶12 Lolani requested, and received, a jury instruction on
homicide by assault. He proposed the following language:

Homicide by Assault has been submitted as a lesser
included charge stemming from on or about August
4, 2018. You cannot convict the defendant of this
offense unless, based on the evidence, you find
beyond a reasonable doubt each of the following
elements:

1. [Lolani]

2. caused the death of another

3. while intentionally or knowingly attempting,
with unlawful force or violence, to do bodily
injury to another.

After you carefully consider all the evidence in this
case, if you are convinced that each and every
element has been proven beyond a reasonable
doubt, then you must find the defendant GUILTY.
On the other hand, if you are not convinced that
each and every element has been proven beyond a
reasonable doubt, then you must find the defendant
NOT GUILTY.

The State’s proposed instruction largely tracked Lolani’s but
added one element: “1. [Lolani]; 2. Under circumstances not
amounting to murder; 3. While intentionally or knowingly
attempting, with unlawful force or violence, to do bodily injury to
[Dylan]; 4. Caused the death of [Dylan].” (Emphasis added.)

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State v. Lolani

¶13 The district court elected to use the State’s proposed
instruction, and Counsel did not object. Another instruction
informed the jury that it “must determine whether the defendant
is guilty of Murder, guilty of Homicide by Assault, or not guilty
of either offense.” The instruction also explained that while the
jury was “not require[d] . . . to make these determinations in any
particular order,” it could not “find the defendant guilty of both
Murder and Homicide by Assault.”

¶14 The jury convicted Lolani of murder. He timely appeals.

ISSUE AND STANDARD OF REVIEW

¶15 On appeal, Lolani argues that Counsel rendered ineffective
assistance by failing to object to the homicide-by-assault
instruction. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
State v. Gonzalez, 2021 UT App 135, ¶ 6, 501 P.3d 1205 (cleaned up).

ANALYSIS

¶16 A defendant asserting a claim for ineffective assistance of
counsel must show that “(1) counsel’s performance was
objectively deficient and (2) the deficient performance resulted in
prejudice.” State v. Fleming, 2019 UT App 181, ¶ 9, 454 P.3d 862
(citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). The
reviewing court need not always address both prongs because the
defendant must establish each to prevail on an ineffective
assistance claim. Id. Here, we need not address deficient
performance because Lolani has not established that he was
prejudiced by the asserted errors.

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State v. Lolani

¶17 To demonstrate prejudice “in the context of erroneous jury
instructions,” a defendant must show “a reasonable probability
the jury” would not have rendered a conviction if the
“instructions had been correct.” State v. Grunwald, 2020 UT 40,
¶ 22, 478 P.3d 1. “A reasonable probability is a probability
sufficient to undermine our confidence in the outcome. This
determination hinges on the following questions: (1) did the error
in the jury instructions create the possibility that the jury
convicted the defendant based on factual findings that would not
have led to conviction had the instructions been correct? and,
(2) if so, is there a reasonable probability that at least one juror based
its verdict on those factual findings?” State v. Seach, 2021 UT App
22, ¶ 24, 483 P.3d 1265 (cleaned up).

¶18 The first step in this analysis requires that we “identify the
theoretical factual scenarios in which the error in the jury
instructions permitted the jury to wrongfully convict the
defendant.” Grunwald, 2020 UT 40, ¶ 25. The second step
mandates that we “determine whether there is a reasonable
probability that, based on the totality of the evidence, a juror
convicted the defendant based on one of those impermissible
scenarios.” Id. ¶ 26. “[I]f we conclude there is a reasonable
probability a juror convicted the defendant based on one of the
identified, impermissible factual scenarios (or rather, on an
accepted version of events that would not have led to a conviction
with a correct jury instruction), we may confidently hold that
there is a reasonable probability the jury would not have reached
a guilty verdict but for the errors in the jury instructions.” Id. 8

8. The State appears to argue that the two-step prejudice analysis
articulated in Grunwald is no longer good law because our
supreme court did not apply it in a later case. See State v. Bonds,
2023 UT 1, ¶¶ 53–58, 524 P.3d 581. Because Grunwald is directly
on point here, however, we are bound to apply it until the
(continued…)

20220790-CA 8 2025 UT App 138
State v. Lolani

¶19 As an initial matter, we agree with Lolani and the State that
the instruction was incorrect as a matter of law because “‘under
circumstances not amounting to’ clauses (when accompanied by
an associated list of other crimes) do not constitute elements of the
actual crime that follows.” State v. Powell, 2020 UT App 63, ¶ 34,
463 P.3d 705. Moreover, Lolani is correct that the instruction was
erroneous to the extent it dictated the order in which the jury
considered the homicide offenses, and we assume without
deciding that the instruction was indeed erroneous in this respect.
See State v. Powell, 872 P.2d 1027, 1031 (Utah 1994) (noting that
district courts may not “mandate a specific order of deliberation
to the jury concerning lesser included offenses” and that “such
instruction should be given by way of suggestion and
recommendation”).

¶20 Invoking Grunwald, Lolani argues that Counsel’s failure to
object to the instruction prejudiced his defense. He asserts that
Grunwald’s first step is “easily” met because “had the jury not
been improperly precluded from considering the lesser included
offense in this case, it certainly could have made a factual finding
that . . . Lolani intended only to commit a regular assault on
[Dylan], resulting in a conviction for the lesser offense of
[h]omicide by [a]ssault.”

¶21 We disagree. On this record, the asserted errors in the jury
instruction simply did not create a possibility that the jury
convicted Lolani based on factual findings that would not have
led to conviction had the instructions been correct. To convict a
defendant of murder, the State must establish, as is relevant here,
that the defendant “intend[ed] to cause serious bodily injury to
another individual” and “commit[ted] an act clearly dangerous to

supreme court expressly states otherwise. See State v. Dickerson,
2022 UT App 56, ¶ 36 n.4, 511 P.3d 1191 (“Principles of vertical
stare decisis . . . compel[] a court to follow strictly the decisions
rendered by a higher court.” (cleaned up)).

20220790-CA 9 2025 UT App 138
State v. Lolani

human life that cause[d] the death of the other individual.” Utah
Code § 76-5-203(2)(b). Convicting a defendant of homicide by
assault, by contrast, requires the State to show only that the
defendant, “under circumstances not amounting to aggravated
murder, murder, or manslaughter[,] . . . cause[d] the death of
another individual . . . while intentionally or knowingly
attempting, with unlawful force or violence, to do bodily injury to
the other individual.” Id. § 76-5-209(2)(a)–(b).

¶22 Lolani’s telephone conversation with Wife the day before
the incident is particularly probative of his intent to cause serious
bodily injury to Dylan. Lolani told Wife that he would “fucking
break” Dylan’s “fucking face,” that he had “been wanting to
swing on” Dylan and “whoop his ass,” and that he “might end up
staying [in custody] longer . . . because [he] might break some part
of [Dylan’s] bones.” And even Lolani appears to concede that the
jury could have reasonably concluded that the words “were not
just bluster or hyperbole.”

¶23 And if Lolani’s comments to Wife tend to show his intent,
his previous encounter with Bouncer speaks to his capacity to
commit an act clearly dangerous to human life that caused
Dylan’s death—and, more importantly, to Lolani’s knowledge of
that capacity. Indeed, Bouncer testified that, with a single punch,
Lolani broke his orbital bone in four places and caused him to
suffer a concussion and traumatic brain injury. This incident
effectively placed Lolani on notice of his capacity to cause serious
damage with even a single punch, let alone twenty. Cf. Utah R.
Evid. 404(b)(2) (noting that other-acts evidence is admissible to
prove knowledge).

¶24 Lolani stresses that Dylan may have survived but for the
vertebral artery tear. He is obviously correct to the extent he
suggests that a “death resulting from a fist fight” does not
constitute murder per se. Commonwealth v. Buzard, 76 A.2d 394,
396 (Pa. 1950). As noted above, however, the incident can be

20220790-CA 10 2025 UT App 138
State v. Lolani

described as a “fistfight” in name only. See supra note 7. Indeed,
Lolani’s conduct went far beyond “regular” assault: the recording
shows him viciously and mercilessly attacking Dylan, who does
not appear to be defending himself, especially as the attack
progresses. 9 And as Examiner quite correctly opined, blunt-force
trauma to the head and neck can kill even when it does not cause
vertebral artery tearing. It necessarily follows that an act inflicting
such trauma can constitute an act clearly dangerous to human life.

¶25 In short, based on the evidence—including Lolani’s
comments to Wife, his previous assault on Bouncer, and footage
of and testimony about the vicious beating itself—we cannot
conclude that there is a theoretical scenario in which a jury,
correctly instructed, would have determined that Lolani intended
merely to inflict bodily injury on Dylan as opposed to serious
bodily injury or that Lolani didn’t commit an act clearly
dangerous to human life. Stated otherwise, the asserted errors in
the jury instruction simply didn’t drive the outcome here. Had the
jury not been told that “under circumstances not amounting to
murder” was an element of homicide by assault and had it been
properly instructed about the order in which it was to consider
the offenses, the jury would still have been required to address
whether Lolani intended to cause serious bodily injury to Dylan
and whether he committed an act clearly dangerous to human life
that caused Dylan’s death. And we have a good idea how the jury
would have resolved that issue: the same way it resolved the issue
at trial.

¶26 Therefore, we are confident that the asserted errors in the
jury instruction fell far short of “creat[ing] the possibility that the
jury convicted [Lolani] based on factual findings that would not
have led to conviction had the instructions been correct.” See

9. As one witness observed, the blows were “so bad that [they]
were knocking [Dylan] out and waking him up one after the
other.”

20220790-CA 11 2025 UT App 138
State v. Lolani

Grunwald, 2020 UT 40, ¶ 22. For this reason, we necessarily
conclude that no reasonable probability existed that even a single
juror would have voted to do anything other than convict Lolani
of murder if the jury had been properly instructed. See id. ¶ 26
(“[A]fter we have identified the factual scenarios that theoretically could
have formed the basis of a wrongful conviction, we must determine
whether there is a reasonable probability that, based on the
totality of the evidence, a juror convicted the defendant based on
one of those impermissible scenarios.” (emphasis added)).

¶27 Therefore, Lolani’s claim fails for lack of prejudice.

CONCLUSION

¶28 The district court’s inclusion of the “under circumstances
not amounting to” language in the jury instruction on homicide
by assault was incorrect as a matter of law. For purposes of this
case, we have also assumed that the instruction was erroneous to
the extent that it dictated the order in which the jury considered
the offenses. Based on the facts of this case, however, Lolani was
not prejudiced by Counsel’s failure to object. We are not
persuaded that there was a possibility that the jury would have
convicted him of homicide by assault instead of murder had it
been properly instructed. For this reason, we necessarily conclude
that no reasonable probability exists that even one juror would
have done anything other than vote to convict Lolani of murder if
the instruction had correctly stated the law. We therefore affirm.

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