When can Utah appellate courts review unpreserved jury instruction errors? State v. Johnson Explained

The Utah Court of Appeals in State v. Johnson addressed when appellate courts can review unpreserved issues that were not raised by the parties on appeal, establishing important precedent for exceptional circumstances review.

Background and Facts

Johnson was convicted of murder following a jury trial where the central issue was causation—whether the victim died from strangulation or from a combination of alcohol and cocaine intoxication. The medical examiner testified that strangulation was the most likely cause of death, while Johnson’s expert believed drug and alcohol intoxication was the primary cause. The trial court granted Johnson’s request for a jury instruction on the lesser included offense of homicide by assault, but a verdict form for this lesser offense was missing from the record.

Key Legal Issues

The court of appeals requested supplemental briefing on whether the homicide by assault instruction misstated the mens rea element. The instruction required that Johnson “intentionally or knowingly” caused the victim’s death, but the statute actually requires that a defendant “intentionally or knowingly attempt, with unlawful force or violence, to do bodily injury to another.” This misstatement effectively made the lesser offense instruction identical to the murder instruction.

Court’s Analysis and Holding

Despite the issue being unpreserved and invited by defense counsel, the court applied the exceptional circumstances exception from State v. Robison. The court found this was an “astonishingly erroneous but undetected ruling” that would subject Johnson to “great and manifest injustice.” The flawed instruction essentially removed the jury’s ability to meaningfully consider the lesser included offense by requiring the same mens rea as murder. Given the close causation evidence, the court could not say that a properly instructed jury would not have reached a different verdict.

Practice Implications

This case demonstrates that Utah appellate courts retain limited authority to address unpreserved issues in extraordinary circumstances, particularly when fundamental errors would result in manifest injustice. However, practitioners should not rely on this safety valve—the court emphasized that such review is rare and typically requires supplemental briefing. The decision also highlights the critical importance of accurately drafting jury instructions for lesser included offenses to ensure they meaningfully differ from the greater offense in terms of required mental state.