Can deficient jury instructions on self-defense burden of proof support an ineffective assistance claim? State v. Levering Explained

In State v. Levering, the Utah Court of Appeals addressed whether trial counsel’s failure to object to allegedly deficient jury instructions constituted ineffective assistance of counsel. The case provides important guidance on how courts analyze prejudice in the context of imperfect jury instructions.

Background and Facts

Levering was convicted of domestic violence assault, domestic violence in the presence of a child, and criminal trespass after forcibly re-entering his ex-girlfriend’s residence. The victim had repeatedly asked Levering to leave her home over nearly a year, but he refused, often threatening to report her drug use to DCFS if she turned him in. On the day of the incident, after being physically expelled from the residence and having the door locked behind him, Levering broke back in and assaulted the victim while her daughter watched.

Key Legal Issues

Levering raised two primary arguments: first, that trial counsel was ineffective for failing to object to jury instructions that did not explicitly state the State’s burden of proof to disprove self-defense, and second, that counsel was ineffective for not requesting an instruction on the statutory open-to-the-public defense to criminal trespass. He also challenged the trial court’s exclusion of evidence from a protective order hearing.

Court’s Analysis and Holding

The Court of Appeals affirmed, focusing on the prejudice prong of the ineffective assistance analysis. Regarding the self-defense instruction, the court acknowledged the instructions “could have been more explicit” but found no reasonable probability of a different outcome given the evidence. Levering had forced his way back into the residence through a locked door after being expelled, with no immediate threat present, admitting he returned to “defend his innocence.” On the trespass defense, the court found counsel was not deficient because a private residence cannot be “open to the public” under Utah law.

Practice Implications

This decision reinforces that even potentially deficient jury instructions will not support an ineffective assistance claim without demonstrating actual prejudice. Courts will examine the totality of the evidence to determine whether better instructions would have changed the outcome. The opinion also clarifies that Utah’s open-to-the-public defense to criminal trespass does not apply to private residences, regardless of a defendant’s prior relationship with the property.