Can jury instructions narrow charges without constructively amending them? State v. Johnson Explained

In State v. Johnson, the Utah Court of Appeals addressed whether jury instructions that omit one alternative ground for conviction constitute an impermissible constructive amendment of criminal charges.

Background and Facts

Johnson operated a scheme where he convinced borrowers to deposit millions into his attorney trust account to secure large business loans that never funded. After his law license was suspended in 2015, he continued accepting deposits without informing borrowers of his suspension. The State charged him with communications fraud under Utah Code § 76-10-1801, alleging he devised a scheme “to defraud another or to obtain from another money, property, or anything of value.” However, the jury instructions omitted the “to defraud another” language, requiring only that Johnson devised a scheme “to obtain from another” money or property.

Key Legal Issues

Johnson argued the jury instructions constructively amended the Information by removing the “to defraud another” alternative, thereby violating his constitutional rights to be informed of charges and receive a fair trial. He also challenged instructions allowing conviction based on recklessness rather than specific intent to defraud.

Court’s Analysis and Holding

The Court of Appeals rejected Johnson’s constructive amendment claim, explaining that removing one possible ground from a charge actually narrows rather than broadens it. The communications fraud statute provides two alternative bases for conviction connected by “or.” Instructing the jury on only one alternative does not charge a different offense than that found in the Information. The court emphasized that “[w]here a statute provides two possible grounds for a charge, it is not impermissible for the State to submit to the jury that the defendant was guilty by virtue of violating only one of these.”

Regarding the recklessness instruction, the court applied the invited error doctrine because defense counsel affirmatively stated he had no objection to the jury instructions after reviewing them.

Practice Implications

This decision clarifies that prosecutors may pursue conviction on one alternative theory even when charging documents include multiple alternatives. Defense counsel must preserve objections to jury instructions or risk waiver under invited error. Most critically, the court reinforced that appellants must provide adequate trial records for meaningful appellate review, as missing testimony is presumed to support the jury’s verdict.