In re Z.M., 2013 UT App 267, No.
20130615-CA (November 15, 2013)
ISSUES: Termination of Parental Rights
I
have not summarized this opinion, per my existing policy on summarizing appeals
of a decision terminating parental rights.
In re C.U., 2013 UT App 268, No.
20130620-CA (November 15, 2013)
ISSUES: Termination of Parental Rights
I
have not summarized this opinion, per my existing policy on summarizing appeals
of a decision terminating parental rights.
Rayner v. Rayner, 2013 UT App 269, No.
20120307-CA (November 15, 2013)
ISSUES: Divorce, Voluntary Underemployment
Determination, Dissipation of Marital Assets
Judge Christiansen,
Paul Thomas Rayner (Husband) appeals the trial court’s decree of divorce, challenging the trial court’s property distribution and alimony award. We reverse and remand.
At ¶ 1.
The Court sets forth the factual
background of this case.
At ¶¶ 2-3.
On appeal, Husband contends that the trial court exceeded its discretion by misapplying the law and that its findings of underemployment and dissipation are not supported by the evidence. “The trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation and internal quotation marks omitted). However, we will reverse if “(1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the evidence clearly preponderated against the finding; or (3) such a serious inequity has resulted as to manifest a clear abuse of discretion.” Id. (citation and internal quotation marks omitted). Furthermore, “we cannot affirm its determination when the trial court abuses its discretion” by failing to enter “specific, detailed findings supporting its financial determinations.” Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993).
At ¶ 4.
Husband first contends that the trial court’s finding of voluntary underemployment was unsupported by the evidence. . . .
At ¶ 5
. . . A spouse is “‘voluntarily unemployed or underemployed’ when [he or she] intentionally chooses of his or her own free will to become unemployed or underemployed.” [Busche v. Busche, 2012 UT App 16, ¶ 13, 272 P.3d 748.] . . . .
At ¶ 7.
In Busche, we recently explained what is required under the first step of the imputation analysis to support a finding of voluntary underemployment following the loss of a job. If the trial court determines that a spouse has been involuntarily terminated, the trial court “must then consider what the [spouse] has done in the aftermath of termination to determine whether he or she has become voluntarily underemployed by virtue of his or her failure to then make reasonable efforts to obtain employment at a pay rate comparable to that of the lost employment.” Id. ¶ 21. In addition to considering the spouse’s efforts, the trial court must consider the spouse’s “employment capacity and earnings potential.” Hall v. Hall, 858 P.2d 1018, 1026 (Utah Ct. App. 1993). Employment capacity involves consideration of the spouse’s abilities and limitations, qualifications, experience, and skills. Busche, 2012 UT App 16, ¶¶ 21–22; Hall, 858 P.2d at 1026. An earning potential determination involves comparison of the spouse’s current earnings with his or her historical income, “the prevailing wages for a person with his or her qualifications” and consideration of whether there are jobs reasonably available “in the relevant market for a person with the party’s qualifications and experience.” Busche, 2012 UT App 16, ¶¶ 21–23; Hall, 858 P.2d at 1026. In sum, “a finding of voluntary underemployment must be based on evidence that the party could be earning more with reasonable effort.” Busche, 2012 UT App 16, ¶ 22.
At ¶ 8.
. . . we read the statute as emphasizing the detailed findings of fact necessary to support a decision to impute income, as well as implicitly recognizing that whether a party is voluntarily underemployed or unemployed is really an ultimate fact or a legal conclusion which turns on the subsidiary facts found by the trial court. “Imputation is troubling when the obligor is charged with obligations that he may not be able to pay, even with the best of efforts.” Busche, 2012 UT App 16, ¶ 17 (citation and internal quotation marks omitted). Indeed, in the alimony context, the imputation analysis is a component of determining the obligor’s ability to pay and the recipient spouse’s ability to support himself or herself. Fish, 2010 UT App 292, ¶¶ 14, 22; Willey v. Willey, 866 P.2d 547, 554 (Utah Ct. App. 1993). Imputation “cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Willey, 866 P.2d at 554. Therefore, the trial court must enter not just a finding of voluntary unemployment or underemployment but specific, detailed findings “as to the evidentiary basis for the imputation,” Utah Code Ann. § 78B-12-203(7)(a). . . .
At ¶ 10.
“Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Hall, 858 P.2d at 1021 (citation and internal quotation marks omitted) . . . “Unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Id. . . . “Findings may not be implied, however, when the ambiguity of the facts makes such an assumption unreasonable.”
At ¶ 11.
Husband argues both that the evidence was insufficient to support the underemployment determination and that the trial court abused its discretion by disregarding the imputation analysis required by Busche and the statute. However, we are unable to review Husband’s arguments due to the inadequacy of the trial court’s findings. “‘[W]here the inadequacy of the trial court’s findings of fact and conclusions of law results in our inability to ascertain the basis of the trial court’s decision, [we are] prevented from effectively reviewing the trial court’s decision and may remand for the entry of more-detailed findings.’” Allen v. Ciokewicz, 2012 UT App 162, ¶ 42, 280 P.3d 425 (second alteration in original) (quoting Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App 188, ¶ 12, 257 P.3d 1073). We follow that course here.
At ¶ 12.
. . . The trial court included findings on Husband’s minimal efforts to search for a job following his termination and Husband’s ultimate decision to work with a low-paying multi-level marketing company. However, the trial court’s findings of Husband’s employment capacity are sparse. It stated that Husband had degrees “in the computer field” and had the ability to work “regardless of the health concerns that he has.” Extensive evidence was presented at trial that Husband suffered from significant health problems that prevented him from maintaining rigorous or stressful employment or employment with a restrictive schedule. The only contradictory testimony provided at trial was that Wife saw Husband doing physical labor in March 2011. The trial court may have determined that Husband’s testimony was not credible. On the other hand, it could have concluded that the testimony was credible but that the health limitations did not preclude certain types of employment in the fields of computers or teaching, in which he had previously worked. The trial court never identified which types of employment for which Husband was qualified and able to do.
At ¶ 13.
The trial court’s findings on earning potential are equally sparse. . . . [the Court explains].
At ¶ 14.
While the trial court’s subsidiary findings on Husband’s job search efforts may contribute to a conclusion of voluntary underemployment, Husband’s employment capacity and earning potential are necessary elements of that analysis. Given the inadequacy of the trial court’s findings on these elements, we are unable to review the merits of the trial court’s decision to impute income to Husband. We therefore reverse and remand for the entry of adequately detailed findings on the relevant factors and for such recalculations or redeterminations as may then be in order.
At ¶ 15
Husband next challenges the sufficiency of the evidence supporting the trial court’s finding that Husband dissipated marital assets. In the alternative, he argues that, at most, the evidence supports only a finding that he spent $29,364 of the marital assets on non-family expenses and investments. Husband also argues that the trial court abused its discretion by not making adequate findings and by misapplying the law on the issue of dissipation.
At ¶ 16.
. . . as with Husband’s challenge to the trial court’s imputation of income, we are “prevented from effectively reviewing the trial court’s decision” regarding dissipation given the inadequacy of the trial court’s findings. See Allen v. Ciokewicz, 2012 UT App 162, ¶ 42, 280 P.3d 425 (citation and internal quotation marks omitted).
At ¶ 17.
. . . Utah case law suggests a number of factors that may be relevant to determining whether a party should be held accountable for the dissipation of marital assets: how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses, . . . ; the parties’ historical practices, . . . ; the magnitude of any depletion, . . . ; the timing of the challenged actions in relation to the separation and divorce, . . . ; and any obstructive efforts that hinder the valuation of the assets, . . . . After an “initial showing of apparent dissipation” by one party, the burden shifts to the other party “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” . . . .
At ¶ 19.
Because the principle of dissipation represents a deviation from the general rule, its use “must be supported by sufficiently detailed findings of fact that explain the trial court’s basis for such deviation.” . . . .
At ¶ 21.
Here, the trial court’s findings are inadequate to explain its deviation from the general rules governing the valuation of marital property. The parties did not dispute that the assets were liquidated and spent. But the evidence addressing the use of the liquidated assets was disputed, and subsidiary findings cannot be reasonably implied. See Hall v. Hall, 858 P.2d 1018, 1025 (Utah Ct. App. 1993). The trial court did not explain why it concluded that the liquidation and spending of the assets qualified as dissipation. The trial court stated only that Husband had “spent a lot of money on himself, on trips, on entertainment[,] on doing things that were not by way of family expenses.” This finding does not provide “sufficiently detailed” support for the trial court’s conclusion. See Rappleye, 855 P.2d at 262–63. Furthermore, rather than calculating the amount of assets actually dissipated, the trial court based its valuation on an assumption of legitimate family expenses. A trial court may “estimate, to the best of its ability, the upper limit of the amount of assets that the spouse may have dissipated.” Goggin, 2013 UT 16, ¶ 49. But such an approach is appropriate only “when a spouse’s behavior prevents the court from determining the precise amount of dissipated assets.” Id. ¶ 53; see also Andrus, 2007 UT App 291, ¶ 13. The trial court did not enter any findings suggesting that Husband’s behavior in any way prevented it from determining the precise amount of dissipated assets.5 In fact, as the trial court acknowledged, extensive testimony and exhibits were presented regarding how the liquidated funds were spent. The trial court stated, “There were many documents filed and statement[s] as to what income and expenses were. There was much that would have taken a forensic accountant to analyze.” When insufficient evidence is presented to the court to support a finding of dissipation, the general rules governing the valuation of marital property apply. See Parker, 2000 UT App 30, ¶¶ 13, 15 (explaining the burdens of production and persuasion attending a claim of dissipation). However, if sufficient evidence is presented to the court to support a finding of dissipation, the trial court must explain any deviation from the general rule with “sufficiently detailed findings.” See Rappleye, 855 P.2d at 262–63.
At ¶ 22.
We therefore reverse and remand for the trial court to enter more detailed findings determining whether the liquidated assets were in fact dissipated and what the precise amount of any dissipated assets was or why the amount of any dissipated assets must be estimated. We also direct the trial court to enter any recalculations and redeterminations as may then be in order, such as an updated division of the marital estate, including redivision of the marital home, Husband’s annuity plan, and Husband’s retirement account.
At ¶ 23.
State v. Guard, 2013 UT App 270, No.
20100720-CA (November 15, 2013)
ISSUES: Expert Evidence About the
Reliability of Eyewitness Identification; Applicability of New Rule
Judge Roth,
Jimmy D. Guard appeals from his conviction for child kidnapping. Guard asserts that the trial court abused its discretion when it excluded his expert’s testimony on the reliability of eyewitness identification from trial. We vacate the conviction and remand for a new trial.
At ¶ 1.
The Court reviews the factual and
procedural history of this case.
At ¶¶ 2-9.
After Guard’s trial, the Utah Supreme Court issued State v. Clopten, 2009 UT 84, 223 P.3d 1103, which addresses the precise issue Guard raises here. In Clopten, the supreme court held that eyewitness expert testimony should be routinely admitted in most stranger identification cases. Id. ¶¶ 30, 49. . . .
At ¶ 10.
The Court states the similarities and
differences this case has with Clopten.
At ¶¶ 10-14.
Overall, we believe that the facts of this case substantially parallel the facts that led the supreme court to be concerned about the conviction in Clopten in the absence of expert testimony to educate the jury on the fallibility of eyewitness testimony. This conclusion, coupled with the similarity of the issue presented, the commonality of the proposed expert, and the proximity of the trials, thus confronts us with the question of whether our resolution of Guard’s case should follow Clopten.
At ¶ 14.
Following oral argument, we requested supplemental briefing from the parties to address the question of whether Clopten should apply to the decision before us [because it was decided after the trial in this case.]
At ¶ 15.
In Griffith v. Kentucky, 479 U.S. 314 (1987), the United States Supreme Court discussed the application of the clear break exception to questions of retroactivity when a conviction is not yet final, meaning the appeal period has not expired and the appeal process has not been exhausted. . . . The Court concluded that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review and not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328 (emphasis added). The United States Supreme Court and the Utah Supreme Court have since limited Griffith’s holding to its context, cases involving rule changes of constitutional dimension. . . . Clopten was not decided on a constitutional basis, and the reasoning of Griffith is therefore not controlling.
At ¶ 16.
Where a rule change is not constitutional, Utah appellate courts have ordinarily not applied “a new rule . . . retroactively if it constitutes a clear break with the past.”8 State v. Lovell, 2011 UT 36, ¶ 73, 262 P.3d 803 (citation and internal quotation marks omitted). “A new rule is a clear break with the past if it caused an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced the older one.” Id. (citation and internal quotation marks omitted). . . . We assume, without deciding, that Clopten is a clear break from prior law. Thus, because Griffith does not control, the general rule precluding retroactive application of a rule change that amounts to a clear break with prior precedent applies here.
At ¶ 17.
Despite our conclusion that Clopten is not retroactive, we believe that the unusual circumstances of Guard’s case nevertheless require application of Clopten’s analysis. Clopten was tried and convicted in February 2006, id. ¶ 2, and Guard’s trial and conviction occurred in May 2006. Both filed timely appeals. Guard’s initial appeal was dismissed due to defense counsel’s failure to file a docketing statement, and his appeal rights were duly reinstated four years later. Had Guard’s initial appeal gone forward in a timely manner, it would have been at roughly the same stage of proceedings on appeal as Clopten. Given the similarities of both the facts and the issues in each case, as well as both defendants’ intention to call the same expert witness, it seems almost inevitable that the two cases would have been either consolidated on appeal or treated as companion cases. . . . Under the circumstances, we conclude that had Guard’s case proceeded on appeal as it would have without his counsel’s default, the result would have been identical to the result in Clopten.
At ¶ 18.
. . . Thus, we conclude that the same analysis that the supreme court applied in Clopten should be applied here. Applying that analysis, we conclude that Dr. Dodd’s testimony should have been admitted.
At ¶ 19.
It is in this kind of stranger identification-plus situation that the Utah Supreme Court determined that expert testimony is critical to ensuring that jurors understand the limitations of an eyewitness identification. As the court explained in Clopten, in the absence of expert testimony, defense attorneys have only two tools for conveying to the jury the possibility that an identification is mistaken: cross-examination and cautionary jury instructions. 2009 UT 84, ¶ 16. These tools, however, “suffer from serious shortcomings when it comes to addressing the merits of eyewitness identifications” of a stranger because an eyewitness may appear confident even when his or her identification is mistaken, a juror may be unwilling to alter his or her belief that the eyewitness is reliable when a cautionary instruction is received only at the close of trial, and such instructions “tend to touch only generally on the empirical evidence . . . that certain factors are known to influence perception and memory” without “explain[ing] how this occurs or to what extent.” Id. ¶¶ 15–16, 24. Expert testimony, on the other hand, “quantif[ies]” the problems that can arise in eyewitness identifications and “teaches jurors about certain factors . . . that have a strong but counterintuitive impact on the reliability of an eyewitness” while the evidence is still being presented, ensuring a better likelihood that “a jury . . . is . . . able to reach a just decision.” Id. ¶ 20. In addition, such testimony can focus more specifically on circumstances generally influencing the accuracy of identifications that are also present in the particular case.
At ¶ 21.
In Clopten, the Utah Supreme Court recognized the shortcomings of the Long instruction for the first time and held that expert testimony is preferable in the stranger identification-plus situation. State v. Clopten, 2009 UT 84, ¶¶ 32–34, 223 P.3d 1103. In the course of its analysis, the court recognized that testimony on the factors that generally affect the accuracy of eyewitness identification is “sufficiently reliable” to be admissible under rule 702 of the Utah Rules of Evidence, id. ¶¶ 35, 38, provided that the witness is “qualified as an expert by knowledge, skill, experience, training, or education,” Utah R. Evid. 702(a). . . . The [Utah Supreme] court therefore concluded that under either test, the reliability of eyewitness identification expert testimony is so widely acknowledged that it should be considered routinely admissible in cases where the evidence would be helpful to the jury. Clopten, 2009 UT 84, ¶¶ 35–38. . . And “[i]n cases where an eyewitness is identifying a stranger and in which various factors that can affect accuracy are present”—the stranger identification-plus situation—“eyewitness expert testimony is helpful to the jury and thus admissible.” Id. ¶ 38.
At ¶ 22.
The circumstances of Guard’s case fit the stranger identification-plus model. Guard was unknown to the child and the other witnesses prior to their identifying him as the child’s abductor, and there were additional factors that raised questions about the accuracy of the identification. For instance, the child’s opportunity to view her abductor was of very short duration while she was also attempting to escape by fighting him off. When the child later identified Guard as the abductor, he was the only suspect in the photograph lineup who had curly hair, a prominent attribute in her description of the abductor. The child testified that upon seeing Guard’s picture, she told the detective that “that was the person . . . ‘for sure.’” The presence of this factor is important because “juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy.” See id. ¶ 15. Yet the jury did not receive any information regarding this weak correlation, even in the Long instruction.
At ¶ 23.
The Court rejects the State’s argument
that this case is procedurally distinct from Clopten.
At ¶¶ 24-26.
Because Guard’s conviction is based solely on eyewitnesses who identified him as the abductor, the reliability of those identifications is “of paramount importance.” See State v. Clopten, 2009 UT 84, ¶ 48, 223 P.3d 1103. Yet several circumstances are present that potentially undercut the reliability of the child’s identification of Guard as her abductor, including the child’s limited opportunity to view the abductor, a stranger; her focus on defending herself from his attack; the possible implications of a cross-racial identification; the photograph lineup only containing one suspect—Guard—who had curly hair, a prominent attribute of the child’s abductor; and the child’s belief that her abductor would be in the lineup. The concern about reliability is underscored by the fact that the child was the only eyewitness to the kidnapping who could identify the perpetrator. The schoolmate witnessed the kidnapping and could describe the person who kidnapped the child but could not identify Guard. And the two neighbors, neither of whom had witnessed the kidnapping or knew Guard, claimed to have seen Guard in the neighborhood only after being shown his picture. Yet both neighbors’ opportunity to view the person they identified as Guard had limitations: one neighbor’s primary focus was on the arrival of her children from school and the other had only seen the person he thought was Guard at a significant distance. In the absence of independent corroborating evidence to support the conviction, we are persuaded that there is a reasonable likelihood that had the jury heard Dr. Dodd’s testimony, it may have assessed the reliability of the eyewitnesses’ identifications differently. . . . At the very least, in the absence of Dr. Dodd’s testimony, our “confidence in the verdict . . . is undermined.” See State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d . . . . Accordingly, we vacate Guard’s conviction and remand for a new trial.
At ¶ 27.
State v. Ekstrom, 2013 UT App 271, No.
20111111-CA (November 15, 2013)
ISSUES:
Aggravated Assault, Sufficiency of Evidence, Necessity of Jury Instruction on
the Definition of “Serious Bodily Injury”, Ineffective Assistance of Counsel
Judge McHugh,
Angela Dawn Ekstrom appeals from her conviction for aggravated assault, a third degree felony, see Utah Code Ann. § 76-5-103 (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 considering the other issues she advances on appeal.
At ¶ 1.
The Court describes the facts of this
case.
At ¶¶ 2- 6.
The Court sets for the issues on appeal
At ¶¶ 7-9.
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 aggravated assault.
At ¶ 10.
Utah Code section 76-5-103 provides in part,(1) A person commits aggravated assault if he commits assault as defined in Section 76-5-102[5] and he:(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.
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).
At ¶ 11.
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) . . . . Instead, Ekstrom could be found guilty of aggravated assault if she used an item capable of causing serious bodily injury during the altercation. . . . . Accordingly, we examine 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. . . .
At ¶ 12.
. . . 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. . . . 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.
At ¶ 13.
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. . . .
At ¶ 14.
. . . [A]n 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.” . . . urthermore, 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.
At ¶ 15.
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.9 At oral 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 prejudiced Ekstrom. See generally Strickland, 466 U.S. at 687–88; State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
At ¶ 18.
“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.
At ¶ 19.
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. . . . 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 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.
At ¶ 20.
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 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.
At ¶ 22.
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. . . .
At ¶ 24.
At ¶ 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 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.
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