State v. Dozah

2016 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MAX EDWARD DOZAH,

Appellant.

Opinion

No. 20130771-CA

Filed January 22, 2016

Third District Court, Salt Lake Department

The Honorable Robin W. Reese

No. 111900666

Lori J. Seppi, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in

which JUDGE JOHN A. PEARCE concurred.1 JUDGE J. FREDERIC

VOROS JR. concurred, except as to Part II, in which he concurred

in the result, with opinion.

CHRISTIANSEN, Judge:

¶1 Defendant Max Edward Dozah appeals from his

convictions for aggravated kidnapping and aggravated assault,

arguing that the district court erred by denying his requested

compulsion instruction and in responding to a question from the

1. Justice John A. Pearce began his work on this case as a

member of the Utah Court of Appeals. He became a member of

the Utah Supreme Court thereafter and completed his work on

the case sitting by special assignment as authorized by law. See

generally Utah R. Jud. Admin. 3-108(3).

State v. Dozah

jury during deliberation without consulting counsel. We reverse

the district court’s ruling denying Defendant’s motion for a new

trial, vacate his convictions, and remand the case for further

proceedings consistent with this opinion.

BACKGROUND

¶2 On appeal from a jury verdict, we view the evidence and

all reasonable inferences in the light most favorable to that

verdict and recite the facts accordingly. State v. Clark, 2014 UT

App 56, ¶ 2, 322 P.3d 761. We include conflicting evidence as

relevant and necessary to understand the issues on appeal. See

State v. Losee, 2012 UT App 213, ¶ 2 n.2, 283 P.3d 1055.

¶3 The central witness, Kelly, was both a user and seller of

methamphetamine. As of January 2011, he owed $400 to his

supplier. To clear the debt, Kelly agreed to go with the supplier’s

boyfriend, Chris, and another man to conduct a drug transaction

at another person’s house. When the three arrived at the house,

they met a fourth man, David. David knocked Kelly

unconscious. When he awoke, Kelly found himself tied to a

chair. The trio of assailants assaulted Kelly and threatened him

by telling him he ‚was done‛ and ‚wasn’t going to make it

through the night.‛ At some point, Chris and the unnamed man

left. While they were gone, ‚all sorts of people‛ ‚paraded‛

through the house, including David’s sister, who sprayed bleach

in Kelly’s eyes.

¶4 Defendant then arrived with Chris. Kelly testified that

Defendant ‚said it looks like you pissed the wrong people off.‛

Defendant also repeated that Kelly ‚was done‛ and ‚wasn’t

going to make it through the night.‛ Defendant did not

physically assault Kelly and was not present when others

assaulted Kelly.

¶5 Defendant conveyed a message from the drug supplier

that Kelly would ‚have to die or be gone.‛ Chris and Defendant

discussed putting Kelly on a bus and asked him where he would

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State v. Dozah

like to go. Kelly responded that he wanted to go to Elko,

Nevada. The men then untied Kelly and escorted him to the

backseat of the supplier’s car. Defendant drove the car, with

Chris in the front passenger seat.

¶6 Kelly testified that, during the drive, Defendant told him

that he was ‚going to die for messing with [the supplier].‛

Defendant said he had a lead pipe and was going to ‚bust‛

Kelly’s kneecaps and leave him ‚for dead.‛ After driving up

Parley’s Canyon and turning off onto a side road, they

encountered a road closure due to snow. Defendant yelled at

Chris that they had chosen the wrong road; Chris replied, ‚This

is fine . . . just do it.‛ Defendant took Kelly out of the car and

yelled that he was going to kill Kelly. Chris held a piece of pipe

out of the car window but Defendant never took it. Defendant

got back in the car and drove off.2 Left in a remote location in

below-freezing weather, wearing only a t-shirt, pants, and shoes,

Kelly managed to walk down to an open road where he was

eventually rescued. The responding officer noted that Kelly’s

face was injured and swollen and that Kelly looked like he had

been beaten up. The officer also noted that the temperature was

twenty degrees Fahrenheit.

¶7 At trial, Defendant argued that he had not been the

instigator of the crimes against Kelly. He testified that the

supplier had asked him to go to the house because she ‚was

scared that something was going to happen.‛ When he arrived,

he saw that Kelly had been beaten up and was tied to a chair.

Defendant admitted that he ‚should have turned around and

walked away‛ but did not. He testified, ‚I didn’t know what was

going to happen. I didn’t know if they were going to pull a gun

on me. I didn’t know if I was the next one in the chair, I didn’t

know what to do.‛ Defendant further testified that he then

‚inserted‛ himself into the discussions regarding what to do

2. Kelly thought Defendant might have been scared off by the

sound of snowmobiles.

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State v. Dozah

with Kelly because he ‚didn’t want *Kelly+ to get beat up any

more‛ and ‚didn’t want to get beat up‛ himself. Defendant

stated that when he first suggested untying Kelly, Chris

threatened Defendant with being ‚the next one in the chair.‛

¶8 According to Defendant, Kelly stated that if they bought

him a bus ticket to Elko, they would never see him again.

Defendant volunteered to drive Kelly to the bus station and to

buy Kelly’s ticket. Chris eventually agreed to this plan, provided

he could go along. However, when they started driving, Kelly

asked Defendant and Chris to take him to a friend’s house

instead.3 Defendant testified that Kelly directed them to the

closed road and got out of the car on his own. Defendant stated

that he was not worried about Kelly, because Kelly ‚was close

enough to the freeway that he could get home.‛

¶9 Before trial, Defendant asked that the jury be instructed as

to the affirmative defense of compulsion. However, after the

defense rested, the district court declined to so instruct the jury

because the court did not see a basis for the instruction in the

evidence:

I frankly don’t see any evidence, not

even . . . twisting it in any imaginable way as

you’ve suggested the jury could that would

suggest that [Defendant] was compelled to do

anything. The State’s witnesses have said he was a

willing participant, at least [Kelly] has and

*Defendant+ said I didn’t do anything, I was

nothing more than a bystander, in fact more than a

bystander, I was a good Samaritan, I was trying to

rescue [Kelly] . . . . I can’t even see in any way that

the jury could say that [Defendant] was a part of

this. Yes. He was participating in all of this. Yes.

3. Defendant did not testify as to Chris’s reaction to this change

of plans.

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State v. Dozah

And when he was told not to untie [Kelly] that

somehow could be . . . read as that he was being

coerced into participating in the aggravated

kidnaping, the aggravated robbery and aggravated

assault. I just frankly don’t see it. It’s just too much

of a leap. So I won’t give that instruction.

As a result of the district court’s ruling on his compulsion

instruction request, Defendant did not detail a compulsion

defense in his closing argument.

¶10 After the jury began deliberating, it sent a note to the

court. The note asked for the definition of aggravated assault

and asked whether leaving Kelly on the closed road constituted

aggravated assault. The district court did not alert counsel to the

jury’s question and instead sent a written response back to the

jury. The court’s response told the jury to look to the jury

instructions for a definition of aggravated assault. The response

also explained, ‚The other question, must be decided without

my help. It is for the jury to decide.‛ Upon learning of the jury’s

question and the district court’s response after the jury returned

a verdict, Defendant’s counsel objected and filed a motion for a

new trial. After oral argument on that motion, the district court

denied Defendant’s motion for a new trial.

¶11 The jury convicted Defendant of aggravated kidnapping

and aggravated assault. Defendant timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶12 Defendant first contends that the district court erred by

refusing to instruct the jury on compulsion. We review a district

court’s refusal to give a requested jury instruction for

correctness. State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d 1116.

¶13 Defendant next contends that the district court erred by

giving an incorrect supplemental instruction. Whether a given

jury instruction correctly states the law is reviewable under a

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State v. Dozah

correction of error standard, with no particular deference given

to the district court’s ruling. State v. Archuleta, 850 P.2d 1232,

1244 (Utah 1993); State v. Lee, 2014 UT App 4, ¶ 7, 318 P.3d 1164.

¶14 Defendant also contends that the district court erred in

denying his motion for a new trial, because the district court

violated his right to be present, right to due process, and right to

the assistance of counsel when the court provided a

supplemental instruction to the jury without consulting

Defendant’s counsel. ‚We will not reverse a trial court’s denial of

a motion for a new trial absent a clear abuse of discretion.‛ State

v. Maestas, 2012 UT 46, ¶ 103, 299 P.3d 892. But we ‚review the

legal standards applied by the trial court in denying such a

motion for correctness and review the trial court’s factual

findings for clear error.‛ Id. (citation and internal quotation

marks omitted).

ANALYSIS

I. Compulsion Instruction

¶15 Defendant contends that he was entitled to have the jury

instructed as to compulsion and that the district court therefore

erred by refusing to give such an instruction to the jury.

¶16 Compulsion is an affirmative defense. Utah Code Ann.

§§ 76-2-302, -308 (LexisNexis 2012). ‚When a criminal defendant

requests a jury instruction regarding a particular affirmative

defense, the court is obligated to give the instruction if evidence

has been presented—either by the prosecution or by the

defendant—that provides any reasonable basis upon which a

jury could conclude that the affirmative defense applies to the

defendant.‛ State v. Low, 2008 UT 58, ¶ 25, 192 P.3d 867.

‚However, a court need not instruct the jury on the requested

affirmative defense where the evidence is so slight as to be

incapable of raising a reasonable doubt in the jury’s mind as to

whether the defendant acted in accordance with that affirmative

defense.‛ State v. Burke, 2011 UT App 168, ¶ 81, 256 P.3d 1102

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State v. Dozah

(brackets, ellipsis, citation, and internal quotation marks

omitted). And ‚when a defendant presents no evidence relating

to an affirmative defense, a court may not instruct the jury on

that affirmative defense.‛ Low, 2008 UT 58, ¶ 28. Consequently,

in order to prove that he was entitled to a compulsion defense

instruction, Defendant must demonstrate that some evidence

was put before the jury to show that he was compelled to engage

in the criminal acts with which he was charged.

¶17 Utah Code section 76-2-302 explains when the defense of

compulsion is available:

(1) A person is not guilty of an offense when he

engaged in the proscribed conduct because he was

coerced to do so by the use or threatened imminent

use of unlawful physical force upon him or a third

person, which force or threatened force a person of

reasonable firmness in his situation would not

have resisted.

(2) The defense of compulsion provided by this

section shall be unavailable to a person who

intentionally, knowingly, or recklessly places

himself in a situation in which it is probable that he

will be subjected to duress.

Utah Code Ann. § 76-2-302(1), (2). To assert the affirmative

defense of compulsion, ‚the defendant [must have been] faced

with a specific, imminent threat of death or serious bodily

injury‛ to himself or a third person and the defendant must have

had ‚no reasonable legal alternative to violating the law.‛ State

v. Ott, 763 P.2d 810, 812 (Utah Ct. App. 1988) (citing State v.

Tuttle, 730 P.2d 630, 634–35 (Utah 1986)).

¶18 Defendant first argues that the specific imminent threat

he faced was contained in Chris’s statement made to Defendant

that Defendant ‚could be the next one in the chair‛ if he untied

Kelly. The State notes that Defendant’s testimony regarding

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State v. Dozah

whether this statement scared him was ambivalent: ‚I don’t

know if I was actually afraid. I was—for lack of a better word,

weary[4] I guess.‛ Defendant then clarified that he considered

Chris’s statement ‚credible.‛ The State also notes that the

statement was intended to prevent Defendant from intervening

in the assault on Kelly, not to compel him to participate in the

crime. We agree with the State. Chris’s statement to Defendant

threatened him with harm if he performed a specified action—

untying Kelly. Chris did not threaten to harm Defendant if he

refused to perform criminal acts. Accordingly, it cannot be the

basis of an affirmative defense for committing those acts.

¶19 Defendant also claims that he ‚inserted‛ himself into the

conversation between Chris and David and ‚intervened‛ due to

the death threats against Kelly. Defendant claims that he was

compelled to act as he did because he feared that if he did not do

so, Kelly would be killed or more seriously injured. The State

responds that none of the threats made against Kelly were

contingent on Defendant’s failure to participate. However, we

read Defendant’s argument to apply to the totality of the

situation; in other words, that Defendant believed physical harm

was going to befall Kelly imminently unless Defendant did

something to mitigate or prevent it. Nevertheless, we are

unconvinced that a mitigation defense—i.e., that Defendant’s

assault of Kelly was necessary to forestall the other assailants

from killing or battering Kelly—constitutes a compulsion

defense. Compulsion, by the terms of the statute, occurs only

when the actor ‚was coerced‛ to perform the criminal act. See

Utah Code Ann. § 76-2-302(1); see also State v. Maama, 2015 UT

App 234, ¶ 15, 359 P.3d 1266 (holding that a robbery defendant

was not entitled to a compulsion instruction in the absence of a

claim that he or the victim was ‚the target of a specific threat

forcing *the defendant+ to participate in the robbery‛). We are

4. It seems likely that ‚weary‛ was a transcriber’s error. We

suspect that Defendant’s testimony was that he was ‚wary‛ and

treat it accordingly.

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State v. Dozah

unaware of any case holding that the legal doctrine of

compulsion applies when the defendant acted not at the behest

of a third party but instead affirmatively chose to harm a victim

in order to prevent a third party from inflicting some greater

harm.5

¶20 Defendant has not demonstrated error in the district

court’s determination that he was not entitled to have the jury

instructed as to compulsion, because his theories of the case did

not involve compulsion as defined by statute. We therefore

conclude that the district court did not err by refusing to instruct

the jury as to compulsion.

II. The District Court’s Response to the Jury’s Questions

¶21 Defendant next contends that the district court’s response

to a question from the jury ‚left the jury with an incorrect

understanding of the law that may have misled the jury into

convicting based on conduct that did not satisfy the elements of

the charged offenses.‛ Defendant also contends that the district

court ‚erred by providing a supplemental instruction without

first informing the defense and without [Defendant] or defense

counsel present.‛ He argues that the district court ‚answered the

jury’s ‘substantive’ question . . . ex parte‛ and that doing so

amounted to improper contact with the jury. Defendant further

argues that the court’s response violated his due process right to

be present as guaranteed by the Sixth Amendment to the United

States Constitution. We address the challenge to the legal

substance and the challenge to the procedure of the response

together.

¶22 ‚‘*A+ defendant is guaranteed the right to be present at

any stage of the criminal proceeding that is critical to its outcome

5. Defendant’s theory of the case appears to more closely

resemble a defense-of-others or absence-of-criminal-intent

argument than a defense of compulsion as defined by Utah Code

section 76-2-302.

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State v. Dozah

if his presence would contribute to the fairness of the

procedure.’‛ State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892

(quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). ‚But ‘this

privilege of presence is not guaranteed when presence would be

useless, or the benefit but a shadow.’‛ Id. (quoting Stincer, 482

U.S. at 745).

¶23 The court’s initial instructions told the jury that, to convict

Defendant of aggravated assault, it had to find beyond a

reasonable doubt:

1. That [Defendant], as a party to the offense;

a. Intentionally or knowingly, solicited,

requested, commanded, or encouraged

[Chris] to; OR intentionally aided [Chris] to:

i(a). Attempt, with unlawful force or

violence, to do bodily injury to

[Kelly]; or

i(b). Threaten to do bodily injury to

[Kelly], accompanied by a show of

immediate force or violence; and

ii. Use a dangerous weapon; and

2. The [Defendant],

a. Intended that [Chris] commit the crime of

Aggravated Assault; or

b. Was aware that his conduct was

reasonably certain to result in [Chris]

committing the crime of Aggravated

Assault.

(Emphases in original.)

¶24 During deliberation, the jury sent a note to the court,

seeking clarification of two topics:

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State v. Dozah

Define => Aggravated Assault?

Question: If leaving Kelly in the canyon does that =

‚Aggravated Assault‛?

The district court, without consulting Defendant’s counsel or the

State, responded in writing that ‚*t+he elements for the crime of

aggravated assault are given in the instructions. The other

question, must be decided without my help. It is for the jury to

decide.‛

¶25 The Utah Rules of Criminal Procedure specify how a

district court is to react to notes from the jury. The court may

‚direct that the jury be brought before the court where, in the

presence of the defendant and both counsel, the court shall

respond to the inquiry or advise the jury that no further

instructions shall be given.‛ Utah R. Crim. P. 17(n).

Alternatively, the court ‚may in its discretion respond to the

inquiry in writing without having the jury brought before the

court.‛ Id. Thus, the court is not required to consult counsel

before responding to a jury’s note.

¶26 Nevertheless, the court’s discretion in responding to a

jury’s question is not unlimited. The court should not, for

example, issue new substantive instructions absent counsel’s

input. See id. (providing that a court must inform and consult

counsel before instructing the jury); see also State v. Thomas, 777

P.2d 445, 448 (Utah 1989) (holding that a court’s response, given

without consulting counsel, was not improper, because it ‚did

not instruct as to the law but merely directed and encouraged

the jurors to continue deliberations‛); State v. Kessler, 49 P. 293,

295 (Utah 1897) (holding that it was not error for the court to

give a substantive new instruction to the jury after deliberations

began where the instruction was given in court, with the

defendant and his counsel present). This is especially true when

the mid-deliberation supplemental instruction contradicts, or

could reasonably be construed to contradict, the initial

instructions arrived at in consultation with counsel and given to

the jury before deliberation. See United States v. Mondestin, 535 F.

20130771-CA 11 2016 UT App 13

State v. Dozah

App’x 819, 823–24 (11th Cir. 2013) (per curiam) (vacating

convictions after noting ‚several problems that arise when a

court fundamentally changes [a] jury instruction in response to a

question raised during deliberations‛); State v. Porter, 705 P.2d

1174, 1177 (Utah 1985) (holding that a supplemental instruction

did not amount to reversible error when it merely clarified a

point of law on which the jury had already been instructed).

¶27 Defendant claims that the district court’s written response

constituted a supplemental instruction which erroneously stated

the law. He argues that ‚‘leaving Kelly in the canyon’ could not,

as a matter of law, constitute aggravated assault because it did

not involve use of a dangerous weapon or an attempt with

unlawful force or violence to do bodily injury or a threat to do

bodily injury accompanied by a show of immediate force or

violence.‛6 The State concedes that abandoning Kelly could not

6. Defendant argues that ‚the scenario did not involve use of a

dangerous weapon‛ because cold weather does not fall within

the category of dangerous weapons. But he does not address the

evidence of the pipe and pipe-related threats. For example, the

jury heard testimony that Defendant and Chris had driven Kelly

to a remote and freezing location, that Defendant had taken

measures to prevent Kelly from escaping during the drive, that

Defendant had threatened to ‚bust‛ Kelly’s kneecaps and leave

him ‚for dead,‛ that Defendant took Kelly out of the car, and

that Chris had held a two- or three-foot metal pipe out to

Defendant after telling Defendant to ‚just do it.‛

Defendant also argues that the scenario presented to the

jury did not involve an attempt or threat to commit bodily injury

because ‚*t+here was no evidence that Chris or *Defendant+

attempted or threatened to do bodily injury by leaving Kelly in

the canyon. Nor was there any evidence that 15 to 20 degree

weather could do bodily injury.‛ But Defendant does not explain

whether wintry weather’s effect on a jacketless person could be

understood by the jury without expert testimony. We note that

(continued<)

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State v. Dozah

legally amount to aggravated assault by itself. However, the

State argues that the jury’s note asked not whether that act alone

was enough but whether it could be sufficient in light of the

alleged attendant circumstances and threats.

¶28 It does not appear that the district court intended to

respond substantively to the jury’s question. Rather, the court

sought to refer the jury back to the instructions because the

jury’s second question ‚must be decided without my help.‛

However, it is not the court’s intention that controls the

propriety of a supplemental instruction, but its resulting effect

upon the jury. See Mondestin, 535 F. App’x at 824 (explaining that

a contradictory supplemental instruction is improper because,

inter alia, ‚it has the potential to confuse the jurors, leaving them

uncertain of which standard to apply‛); see also United States v.

Robinson, 86 Fed. App’x 820, 823 (6th Cir. 2003) (considering

whether a supplemental instruction caused the jury to be

confused or misled).

¶29 It is a plausible reading of the note that the jury intended

to ask whether leaving Kelly in the canyon was sufficient on its

own to constitute aggravated assault. If that was indeed the

jury’s question, the court’s response that ‚*i+t is for the jury to

decide‛ could reasonably have been interpreted by the jury as a

supplemental instruction that contradicted the court’s initial

instruction explaining the elements the jury needed to find

before it could convict Defendant of aggravated assault. Such a

contradiction could have confused the jurors. See Mondestin, 535

F. App’x at 824. Moreover, reading the response in this manner

would have resulted in a misstatement of the law.

¶30 When it appears from a jury’s question that the jury is

headed toward basing its decision on an improper

(<continued)

the jury was instructed that ‚‘*b+odily injury’ means physical

pain, illness or an impairment of physical condition.‛

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State v. Dozah

understanding of the law, it is incumbent on the district court to

correct the jury’s understanding of that law via a new and

correct instruction, after consulting with counsel. See State v.

Couch, 635 P.2d 89, 94 (Utah 1981) (‚Jurors cannot be considered

properly instructed on a criminal statute if they are

demonstrably confused about the meaning of the words used in

it.‛); supra ¶ 26.

¶31 Because it is reasonably possible that the jury interpreted

the court’s response as a new instruction, despite the court’s

apparent intent to simply refer the jury back to the earlier

instructions (which would normally be prudent), and because

the new instruction had the potential to confuse the jury in a

way that misstated the law, we conclude that the district court’s

response amounted to prejudicial error. We therefore vacate

Defendant’s aggravated assault conviction.

¶32 We next consider whether the effect of the error extended

beyond Defendant’s conviction for aggravated assault to his

conviction for aggravated kidnapping. Instruction 17 informed

the jury that one way it could convict Defendant of aggravated

kidnapping was if it found that, ‚[i]n the course of detaining or

restraining *Kelly+,‛ Defendant had acted with the intent of

facilitating an aggravated assault. Thus, if the jury did in fact

convict Defendant of aggravated assault on an improper basis,

the jury could have determined that the aggravated assault

element of the aggravated kidnapping instruction was satisfied.

Such a determination would have been improper due to the

infirmity of the aggravated assault conviction. We therefore

conclude that the aggravated kidnapping conviction is also

infirm.

¶33 The State urges us to ‚enter a conviction for simple

kidnapping . . . because any error in the aggravated assault

instruction affected only the element that elevated the

kidnapping to an aggravated kidnapping.‛ Utah appellate courts

may enter convictions for lesser included offenses after holding

that the evidence presented was insufficient to support

conviction for the greater offense. See, e.g., State v. Dunn, 850 P.2d

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State v. Dozah

1201, 1211 (Utah 1993); State v. Pullman, 2013 UT App 168, ¶¶ 17–

20, 306 P.3d 827; State v. Powasnik, 918 P.2d 146, 150 n.2 (Utah Ct.

App. 1996). To do so, the appellate court must determine

whether ‚(i) the trier of fact necessarily found facts sufficient to

constitute the lesser offense, and (ii) the error did not affect these

findings.‛ Dunn, 850 P.2d at 1209.

¶34 A jury may convict a defendant of kidnapping if it finds

that the defendant detained or restrained the victim ‚for any

substantial period of time‛ or ‚in circumstances exposing the

victim to risk of bodily injury.‛ See Utah Code Ann. § 76-5-301(1)

(LexisNexis 2012) (emphasis added). Here, however, the relevant

portion of the aggravated kidnapping instruction given to the

jury only required it to find that Defendant ‚*d+etained or

restrained *Kelly+ against his will.‛ As a result of this instruction,

the jury did not have to consider whether the detention or

restraint existed for a substantial length of time when it

convicted Defendant of aggravated kidnapping.

¶35 Because the jury was not required to consider whether

one of the elements of a simple kidnapping conviction had

occurred, we cannot conclude that ‚the trier of fact necessarily

found facts sufficient to constitute the lesser offense.‛ See Dunn,

850 P.2d at 1209. We therefore cannot enter a conviction for

simple kidnapping. See id.

¶36 Defendant asks that we enter a conviction for unlawful

detention. ‚An actor commits unlawful detention if the actor

intentionally or knowingly, without authority of law, and

against the will of the victim, detains or restrains the victim

under circumstances not constituting a violation of‛ the

kidnapping, child kidnapping, or aggravated kidnapping

statutes. Utah Code Ann. § 76-5-304(1).

¶37 As noted above, we have the ability to enter a conviction

for a lesser included offense when we determine that an error

occurred but did not affect the jury findings relating to the lesser

included offense. Dunn, 850 P.2d at 1209. But this power is

discretionary and appears only to have been exercised when the

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State v. Dozah

evidence presented to the jury was insufficient to sustain a

conviction for the greater offense.7 Here, the error we have

identified did not concern the sufficiency of the evidence

presented. Rather, the court’s response to a question from the

jury could reasonably have been construed as a substantively

new and legally incorrect instruction. If the jury had been

correctly instructed as to the law, the evidence presented to the

jury would have been legally sufficient to sustain Defendant’s

convictions.8 Accordingly, we decline to enter a conviction for

the lesser included offense of unlawful detention.

¶38 We reverse the district court’s denial of Defendant’s

motion for a new trial, vacate Defendant’s convictions for

aggravated assault and aggravated kidnapping, and remand for

further proceedings consistent with this opinion.

CONCLUSION

¶39 We conclude that the district court correctly determined

that Defendant had not presented evidence giving rise to a

compulsion defense, and we affirm the district court’s refusal to

give a compulsion instruction. However, because it is plausible

that the jury understood the district court’s response to the jury’s

questions about aggravated assault as a new instruction

contradicting the initial instructions, and because such an

instruction would have misstated the law, we vacate

Defendant’s aggravated assault conviction. And because the jury

could have based Defendant’s aggravated kidnapping

7. Where the evidence presented to the jury is legally insufficient

to convict the defendant, double jeopardy concerns may bar the

State from retrying the defendant for any lesser included

charges.14

8. At oral argument, Defendant conceded that he was not

arguing that the evidence presented to the jury was insufficient

to sustain his convictions.

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State v. Dozah

conviction on the aggravated assault conviction, we vacate the

aggravated kidnapping conviction as well. We remand to the

district court for further proceedings.9

VOROS, Judge (concurring in part and concurring in the result

in part):

¶40 I concur in the majority opinion except as to Part II, in

which I concur only in the result. In my opinion, the trial court’s

supplemental instruction violated the principles adopted by our

supreme court in State v. Couch, 635 P.2d 89 (Utah 1981).

¶41 Directing a jury back to a correct elements instruction is

almost always a prudent course. But here, the jury’s note

suggested the possibility that at least one juror was

contemplating voting to convict on a legal theory that all now

agree would constitute an error of law. In such a circumstance,

merely directing the jury back to the elements instruction is, in

my view, insufficient and therefore erroneous. The potential

harm of allowing a juror to convict on a demonstrably flawed

legal theory so outweighs the burden on court and counsel of

giving a brief supplemental instruction that I would require the

instruction. That is, as I understand it, the principle informing

the supreme court’s opinion in Couch.

¶42 For reasons explained in the majority opinion, I agree that

the error here infected both convictions.

9. Defendant also raises the cumulative error doctrine as an

alternative ground for relief. See, e.g., State v. Davis, 2013 UT App

228, ¶ 16, 311 P.3d 538 (explaining the application of the

cumulative error doctrine). Given our resolution of Defendant’s

challenges, we need not address this claim.

20130771-CA 17 2016 UT App 13