Can defense counsel be ineffective for approving jury instructions that favor the defense? State v. Cover Explained

In State v. Cover, the Utah Court of Appeals addressed whether defense counsel was constitutionally ineffective for approving jury instructions that included the reasonable discipline defense among the elements of child abuse. The case provides important guidance on ineffective assistance claims and jury instruction strategy.

Background and Facts

Gregory Cover was convicted of child abuse for shooting his son with an airsoft pistol, leaving bruises on the child’s legs. At trial, Cover raised the affirmative defense of reasonable discipline. The district court’s jury instructions listed “that the defense of reasonable discipline does not apply” as the fourth element of child abuse. Defense counsel approved both this instruction and the special verdict form, which did not separately reference the reasonable discipline defense.

Key Legal Issues

Cover argued his counsel was ineffective in three ways: (1) approving the instruction that included reasonable discipline as an element rather than treating it as a separate affirmative defense, (2) approving a special verdict form that didn’t mention the State’s burden regarding the defense, and (3) approving a reasonable discipline instruction that lacked specific factors from Bountiful City v. Baize.

Court’s Analysis and Holding

The court applied the Strickland standard and found no ineffective assistance. While acknowledging that reasonable discipline is an affirmative defense rather than an element of child abuse, the court determined counsel’s approach was strategically sound. Including the defense language in the elements instruction actually helped Cover by repeatedly emphasizing the State’s burden to disprove the defense beyond a reasonable doubt. The court noted that counsel could reasonably conclude this approach provided “another reminder to the jury of the State’s burden.”

Practice Implications

This decision highlights the strategic considerations surrounding jury instruction objections. Defense counsel should consider whether technically incorrect instructions might actually benefit their client before objecting. The case also demonstrates that ineffective assistance claims require showing both deficient performance and prejudice—even if counsel’s approach was technically wrong, it may still constitute reasonable trial strategy if it emphasized favorable legal standards for the defense.