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

The Utah Supreme Court’s decision in State v. Johnson provides crucial guidance for appellate practitioners on when courts may address issues that were neither preserved at trial nor argued on appeal. The case clarifies the boundaries of appellate discretion and reinforces the importance of Utah’s adversarial system.

Background and Facts

Michael Johnson was convicted of murder for strangling a woman. At trial, Johnson requested and received a jury instruction for the lesser offense of homicide by assault. The jury returned a guilty verdict on the murder charge. On appeal, Johnson challenged the verdict form and a causation instruction, but did not raise any issue with the homicide by assault instruction that he had requested.

Key Legal Issues

The court of appeals ordered supplemental briefing on an issue Johnson never raised: whether the homicide by assault instruction was erroneous. The instruction allegedly misstated the mens rea element by separating the “intentionally and knowingly” requirement from the assault attempt. The court of appeals applied the exceptional circumstances exception to reach this unpreserved issue and reversed Johnson’s conviction.

Court’s Analysis and Holding

The Utah Supreme Court reversed, holding that no valid exception to preservation applied. The court found that plain error was inapplicable because Johnson invited the error by submitting the instruction. Ineffective assistance of counsel was not raised in Johnson’s briefs. Most importantly, exceptional circumstances requires a “rare procedural anomaly” that prevented preservation—mere oversight by trial counsel is insufficient.

The court distinguished between when courts may address unpreserved issues versus when they may raise issues sua sponte that were waived on appeal. It clarified that State v. Robison did not expand the exceptional circumstances doctrine as the court of appeals believed.

Practice Implications

This decision significantly limits when appellate courts may address unpreserved issues. Practitioners must establish specific grounds for exceptions to preservation rather than relying on general fairness arguments. The court emphasized that Utah’s adversarial system requires parties to identify and argue their own issues. When requesting jury instructions, counsel must be particularly careful to avoid invited error, as this can preclude even plain error review.