State v. Johnson, 2014 UT App 161 (July 3, 2014) 

In a divided opinion, the Utah Court of Appeals reversed a conviction for murder on an issue that was not preserved for appeal based on “exceptional circumstances.” On appeal, the court asked the parties for supplemental briefing to address for the first time whether a jury instruction “misstated the mens rea element of the lesser included offense” of homicide by assault, effectively removing this offense from the jury’s consideration. Id. ¶ 12. The court determined that while that issue could not be considered under the doctrine of ineffective assistance of counsel and was likely barred by invited error, it could nonetheless address the issue because the jury instruction presented an “astonishingly erroneous but undetected ruling” and it allowed the parties to provide supplemental briefing on the issue. Id. (citation and internal quotation marks omitted). On the merits, the court concluded that “[b]y defining homicide by assault as requiring the same mens rea as criminal homicide, [the instruction] essentially removed from the jury the ability to meaningfully consider the lesser included offense.” Id. ¶ 22. The court concluded the error was harmful “[g]iven how close the causation evidence is,” and that a conviction of the greater offense did not indicate the error pertaining to the lesser offense was harmless. Id. ¶ 27. Accordingly, the court reversed the conviction. A concurrence defended the majority’s consideration of the issue based on exceptional circumstances. In a dissent, Judge Bench, sitting as a senior judge, argued that any error in the instruction was invited and the other members of the panel “abandoned their adjudicative responsibilities and improperly bec[a]me advocates for a party.” Id. ¶ 41 (Bench, J., dissenting).