2015 UT App 72

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JEFFREY CHARLES SALT,

Defendant and Appellant.

Opinion

No. 20130071-CA

Filed March 26, 2015

Third District Court, Salt Lake Department

The Honorable William W. Barrett

The Honorable Elizabeth A. Hruby-Mills1

No. 081904756

Herschel Bullen, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

ROTH, Judge:

¶1 Jeffrey Charles Salt appeals from his conviction for 

aggravated assault, a third degree felony. We affirm.

 

1. Judge William W. Barrett presided over the trial and denied 

the defendant’s motion to arrest judgment as well as his 

alternative motion to reduce his conviction. Judge Elizabeth A. 

Hruby-Mills denied the motion for a new trial.
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20130071-CA 2 2015 UT App 72

BACKGROUND

¶2 Shortly after Salt began dating his girlfriend (J.G.), she 

bought a home in Salt Lake City.2 Salt suggested that she hire 

him to complete some renovations, and she agreed. J.G. moved 

in with Salt in April 2006 when her house became unlivable 

during the remodeling. Over the next couple of years, the 

renovations became the source of frequent conflict between the 

two. J.G. moved out of Salt’s residence in February 2008 and 

hired another contractor to finish the work on her home. At that 

point, Salt ended their relationship. But between February and 

April 2008, the two continued to see each other and came to a 

sort of reconciliation. At the end of April, however, J.G. told Salt 

‚this isn’t going to work out‛ and attempted to end their

relationship permanently.

¶3 Salt continued to contact J.G., eventually convincing her 

to meet him at his home in early June to talk things through and 

help him move past their breakup. When J.G. arrived at the 

scheduled meeting, Salt told her he wanted to ‚set some ground 

rules.‛ He asked J.G. to agree not to leave even if ‚the 

questioning got tough.‛ For nearly an hour, Salt asked her 

questions about their relationship and her decision to end it. 

When J.G. eventually told Salt she wanted to leave, he 

responded with misogynistic verbal abuse and then grabbed J.G. 

and twisted her head. The two ended up on the ground, and Salt 

grabbed a piece of pottery from a shelf and hit J.G. on the head 

with it multiple times. J.G. grabbed a phone from the floor and 

attempted to call 911, but she misdialed, and Salt knocked the 

phone away before she could reach anyone.

 

2. ‚On appeal from a jury verdict, we view the evidence and all 

reasonable inferences in a light most favorable to that verdict 

and recite the facts accordingly.‛ State v. Winfield, 2006 UT 4, ¶ 2, 

128 P.3d 1171 (citation and internal quotation marks omitted). 
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20130071-CA 3 2015 UT App 72

¶4 Salt then grabbed what J.G. thought was a metal pipe and 

hit her above her eye, drawing blood, before pinning her to the 

ground. When the two eventually stopped struggling, Salt 

allowed J.G. to get up. At that point, she saw blood all over the 

floor and could feel that her head was covered with blood as 

well. J.G. attempted to leave, but Salt blocked the exit. J.G. said, 

‚[N]o, no, no, just let me out,‛ and then either she pushed her 

way past him or he stepped aside. Feeling faint, J.G. lay down on 

the cement walkway in front of Salt’s residence where a 

passerby stopped to give her aid and called 911. At the hospital,

J.G. received sixty-five staples in her scalp to close lacerations 

that totaled roughly eleven inches in length. She continued to 

suffer back pain for years and, at the time of trial, still had a 

‚lump on the side of *her+ head‛ that felt as if there was ‚a little

piece of the clay in [it].‛ Salt was charged with aggravated

kidnapping, aggravated assault, and damage to a

communication device.

¶5 The case was tried to a jury. Salt claimed he acted in selfdefense. He admitted using derogatory names to describe J.G.

but testified that in response to the name-calling she landed the 

first blow, hitting him in the left eye. He testified he then put her 

in a headlock to keep her from further attacking him, and they 

fell to the ground wrestling. According to Salt, J.G. tried ‚to 

gouge [his] face‛ and then bit his finger and would not let go. In 

response, he repeatedly struck her head against a bookshelf until 

she released his finger. He testified that he never hit her with 

pottery or a metal pipe and that any action he took against J.G. 

was to protect himself from her attempts to gouge his face, her 

blows with a phone receiver, and her biting. He said that he was 

‚in fear for *his+ safety and *his+ life‛ after J.G. hit him in the face 

and bit him. Salt also testified that a few months before the 

incident, J.G. had come to his house to collect some of her 

belongings. Then, as she was leaving, she ‚drove her car in 

reverse and hit *his+ car.‛ He then testified, ‚And I was in the 

path of that vehicle and I had to move out of the way to avoid 

being assaulted by the vehicle.‛
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20130071-CA 4 2015 UT App 72

¶6 The defense called a physician friend of Salt’s who 

practiced emergency medicine as an expert witness. Based on his 

review of J.G.’s medical records, the physician testified that the 

nature of her injuries did not support a claim that she had 

suffered direct blows from a metal pipe or a ceramic object. 

Rather, in his opinion, J.G.’s injuries were most likely caused by 

a ‚glancing blow[]‛ rather than a ‚direct blow‛ from an object he 

did not attempt to describe. The defense also cross-examined 

law enforcement officers who had responded to the scene. They 

observed blood all over the apartment, but they neither found a 

metal pipe nor recovered any pieces of pottery.

¶7 The jury convicted Salt of aggravated assault involving 

domestic violence but acquitted him of two other charges 

involving domestic violence—aggravated kidnapping and 

damage to a communication device. Salt moved to arrest 

judgment and filed an alternative motion to have his conviction 

reduced to a class A misdemeanor. The trial court denied his 

motions. After sentencing, Salt moved for a new trial. The court 

also denied that motion. Salt appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 First, Salt argues that the aggravated assault jury 

instruction was incomplete. ‚*W+e review jury instructions in 

their entirety to determine whether the instructions, taken as a 

whole, fairly instruct the jury on the applicable law.‛ State v. 

Malaga, 2006 UT App 103, ¶ 18, 132 P.3d 703 (alteration in 

original) (citation and internal quotation marks omitted). 

‚Whether a jury instruction correctly states the law presents a 

question of law which we review for correctness.‛ State v. 

Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444.

¶9 Second, Salt argues that the trial court erred when it 

denied his motion to reduce his sentence to a class A 

misdemeanor. We review a trial court’s denial of a motion to 
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20130071-CA 5 2015 UT App 72

reduce the degree of a conviction for abuse of discretion. State v. 

Boyd, 2001 UT 30, ¶ 31, 25 P.3d 985.

¶10 Third, Salt argues that the trial court should have granted 

his motion for a new trial because the jury’s not-guilty verdict on 

the charge of aggravated kidnapping conflicted with its guilty 

verdict on aggravated assault. ‚[W]e review the decision to grant 

or deny a motion for a new trial only for an abuse of discretion.‛ 

State v. Loose, 2000 UT 11, ¶ 8, 994 P.2d 1237. ‚When considering

a defendant’s argument that the verdicts are inconsistent, we . . .

will not overturn a jury’s verdict of criminal conviction unless 

reasonable minds could not rationally have arrived at the verdict 

of guilty beyond a reasonable doubt based on the law and on the 

evidence presented.‛ State v. LoPrinzi, 2014 UT App 256, ¶ 30, 

338 P.3d 253 (citation and internal quotation marks omitted), 

petition for cert. filed, Dec. 24, 2014 (No. 20141168).

¶11 Fourth, Salt contends that the definition of ‚cohabitant‛ 

as used in the Cohabitant Abuse Act is unconstitutionally 

overbroad and vague. Constitutional challenges are matters of 

law reviewed for correctness. State v. Pullman, 2013 UT App 168, 

¶ 6, 306 P.3d 827.

¶12 Finally, Salt argues that his counsel was constitutionally 

ineffective for failing to request an additional element in the jury 

instruction related to self-defense. We consider claims of 

ineffective assistance of counsel raised for the first time on 

appeal as questions of law. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 

162.

ANALYSIS

I. The Aggravated Assault Jury Instruction

¶13 At trial, the jury was instructed that to find Salt guilty of 

aggravated assault, it must find beyond a reasonable doubt that 

he used a dangerous weapon or ‚other means or force likely to 
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20130071-CA 6 2015 UT App 72

produce death or serious bodily injury‛ in the course of acting 

‚with unlawful force or violence, that causes bodily injury to 

another or creates a substantial risk of bodily injury to another.‛ 

Salt contends that this instruction was erroneous because it 

failed to ‚require the jury to find that he acted with intent, or 

knowledge, or recklessness with respect to the result of his 

conduct.‛ Instead, Salt argues, the instruction required the jury 

to find only that he used means likely to produce death or 

serious bodily injury. In other words, Salt argues that the 

instruction was missing a ‚vital‛ mens rea element, i.e., that he 

must have specifically intended to cause death or serious bodily 

injury, not simply that he used means likely to do so.

¶14 In support of his argument, Salt relies on State v. 

O’Bannon, 2012 UT App 71, 274 P.3d 992. We held in O’Bannon

that the State was required to prove that the defendant acted 

with intent to cause the victim serious physical injury before a 

jury could convict him of second degree felony child abuse. Id.

¶ 31. We determined that it was not enough ‚to prove only that 

[the defendant] intended to be, or knew that he was, engaged in 

certain conduct without the requisite intent or knowledge that a 

serious physical injury would likely result.‛ Id. Salt argues that 

we should come to the same conclusion in this case because the 

aggravated assault instruction did not require jurors to 

determine that he intended to cause serious bodily injury, but to 

determine only that his actions were ‚likely to produce death or 

serious bodily injury‛ without ever taking his specific intent into 

account as he claims O’Bannon requires. We conclude that 

O’Bannon does not apply here because our holding in that case 

was based on a different crime requiring a different mens rea.

¶15 O’Bannon involved a charge of second degree felony child 

abuse, not third degree felony aggravated assault. Id. ¶¶ 1, 24. 

Under the child abuse statute, a person is guilty of second 

degree felony child abuse if that person inflicts ‚serious physical 

injury‛ and does so ‚intentionally or knowingly.‛ Utah Code 

Ann. § 76-5-109(2) (LexisNexis 2012). But the O’Bannon jury had 

been given an ‚eggshell victim‛ instruction, stating that ‚*w+hen 
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20130071-CA 7 2015 UT App 72

injury ensues from deliberate wrongdoing, even if it is not an 

intended consequence, the injurer is responsible at law without the 

law concerning itself with the precise amount of harm inflicted.‛ 

O’Bannon, 2012 UT App 71, ¶ 12 (emphasis added) (internal 

quotation marks omitted). We determined that this instruction 

‚inaccurately stated the law with regard to the mental state 

required for the jury to find [the defendant] guilty of second 

degree felony child abuse.‛ Id. ¶ 17. We reached this decision 

because even though the defendant had seriously injured the 

child victim, the instruction contradicted the statutory 

requirement that the defendant must also have intended serious 

physical injury or have known that it would result from his 

conduct. Id. ¶¶ 17, 31.

¶16 In contrast, the crime of third degree felony aggravated 

assault does not require that a person act with the intent to cause 

a specific level of harm. Compare Utah Code Ann. § 76-5-103(1)(b) 

(LexisNexis 2008) (defining third degree felony aggravated 

assault), and id. § 76-5-102 (2012)3(defining assault), with id.

§ 76-5-109(2) (defining second degree felony child abuse). 

Instead, the version of the statute that Salt was charged under 

defines third degree felony aggravated assault as an act causing 

or creating a substantial risk of bodily injury, committed ‚with 

unlawful force or violence,‛ id. § 76-5-102, while using a 

dangerous weapon or ‚other means or force likely to produce 

death or serious bodily injury,‛ id. § 76-5-103(1)(b), (3) (2008). 

The specific intent to cause ‚serious bodily injury‛ was an 

element of second degree felony aggravated assault, not the 

third degree felony with which Salt was charged. See id. § 76-5-

103. And our precedent recognizes that specific intent to inflict 

serious bodily injury—or knowledge that such injury is likely to 

occur—is not required for a third degree felony aggravated 

 

3. Where amendments made to the relevant statutes since the 

time of the incident are not substantive, we cite to the current 

version of the Utah Code for the convenience for the reader. 
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20130071-CA 8 2015 UT App 72

assault conviction under the version of the statute that is 

applicable here. See id. (current version at id. § 76-5-103(1), (2)(a) 

(2012)). For example, in State v. Mangum, 2013 UT App 292, 318 

P.3d 250 (per curiam), we noted that because the defendant ‚was 

charged and convicted under subsection (1)(b)‛ of the 2008 

version of the statute, and not with a second degree felony under 

subsection (1)(a), ‚there was no requirement to show specific 

intent in order to support *the defendant’s+ conviction.‛ Id. ¶¶ 6–

7; see also State v. Potter, 627 P.2d 75, 78 (Utah 1981) (holding that 

an instruction stating that ‚specific intent‛ is not required to 

‚violate the law but merely an intent to engage in acts or 

conduct that constitute the elements of a crime‛ was appropriate 

for an aggravated assault charge (internal quotation marks 

omitted)); State v. McElhaney, 579 P.2d 328, 328 & n.2 (Utah 1978) 

(holding that when aggravated assault is committed by use of a 

deadly weapon ‚or such means or force likely to produce death 

or serious bodily injury,‛ ‚no culpable mental state is specified‛

(internal quotation marks omitted)); State v. Howell, 554 P.2d 

1326, 1328 (Utah 1976) (agreeing with the parties that third

degree felony aggravated assault requires only general intent).

¶17 We therefore conclude that the trial court did not err 

when it determined that the third degree felony aggravated 

assault instruction correctly stated the law and for that reason 

refused to arrest judgment or grant a new trial.

II. Motion to Reduce Degree of Conviction

¶18 Prior to sentencing, Salt moved to have his conviction 

reduced from third degree felony aggravated assault to class A 

misdemeanor assault under section 76-3-402 of the Utah Code (a 

section 402 reduction), because a felony conviction ‚would be 

unduly harsh‛ and because ‚[h]e ha[d] no significant prior 

criminal record.‛ Salt also argued that he would be unable to 

continue in his position with a nonprofit organization if 

convicted of a felony. The trial court denied the motion. Salt 

argues that the court abused its discretion in failing to grant him 
State v. Salt

20130071-CA 9 2015 UT App 72

a section 402 reduction. He also contends that the trial court’s 

decision violated the Shondel doctrine and failed to comply with 

the rule of lenity.

¶19 Salt argues on appeal that a reduction of his sentence is 

required under the Shondel doctrine. The Shondel doctrine 

establishes that ‚where two statutes define exactly the same 

penal offense, a defendant can be sentenced only under the 

statute requiring the lesser penalty.‛ State v. Bluff, 2002 UT 66, 

¶ 33, 52 P.3d 1210 (citing State v. Shondel, 453 P.2d 146, 147–48

(Utah 1969)). Salt argues that ‚[t]here is no meaningful 

distinction‛ between the acts required to commit the two crimes 

because in either case the actual result could be the same—

substantial bodily injury, the kind of injury that Salt inflicted 

here.

¶20 But the Shondel doctrine applies only if the two crimes 

‚have identical elements and prohibit exactly the same 

conduct.‛ Id. The elements of the lesser offense Salt argues for—

a class A misdemeanor simple assault—are not the same as the 

third degree felony aggravated assault of which he was 

convicted. Compare Utah Code Ann. § 76-5-102 (defining simple 

assault), with id. § 76-5-103(1)(b), (3) (2008) (defining third degree 

felony aggravated assault). And the fact that an act committed 

under either statute may actually result in the same injury 

does not mean the crimes are wholly duplicative. While 

the severity of injury required by the misdemeanor assault 

statute and the injury actually inflicted in connection with a 

third degree felony may sometimes be the same, the culpable 

conduct required for each is different. Class A misdemeanor 

assault requires only an act ‚committed with unlawful force 

or violence,‛ see id. § 76-5-102 (2012), while third degree felony 

aggravated assault requires the use of a dangerous weapon 

or ‚other means or force likely to produce‛ more grave 

consequences—‚serious bodily injury‛ or even death, id. § 76-5-

103(1)(b), (3) (2008) (emphasis added). Thus, each of these crimes 

describes conduct that is significantly different in both conduct 

and potential for harm, differences that are reflected in the 
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20130071-CA 10 2015 UT App 72

elements each crime requires for conviction. Because the two 

statutes fail to ‚address exactly the same conduct,‛ the Shondel

doctrine does not apply. See Bluff, 2002 UT 66, ¶ 33 (citation and 

internal quotation marks omitted).

¶21 Salt also argues that the rule of lenity requires that his 

conviction be reduced. He contends that the statutory scheme 

surrounding the varying degrees of assault is ambiguous 

because ‚there are no standards assisting a trial court in 

distinguishing‛ between the types of bodily injury that 

determine whether the assault will result in a misdemeanor or 

felony conviction for the defendant. He argues that ‚the 

determination is [thus] left to the arbitrary conclusions of the 

prosecution‛ and renders the statutes unconstitutionally vague.

¶22 ‚*L+enity is an ancient rule of statutory construction that 

penal statutes should be strictly construed against the 

government . . . and in favor of the persons on whom such 

penalties are sought to be imposed.‛ State v. Rasabout, 2013 UT 

App 71, ¶ 31, 299 P.3d 625 (omission in original) (citation and 

internal quotation marks omitted), cert. granted, 308 P.3d 536 

(Utah 2013). In other words, lenity serves ‚as an aid for resolving 

an ambiguity‛ in a statute. Albernaz v. United States, 450 U.S. 333, 

342 (1981). We noted in State v. Rasabout, 2013 UT App 71, 299 

P.3d 625, that ‚our Legislature appears to have rejected the rule 

of lenity as a permissible canon of statutory construction.‛ Id.

¶ 31. But in Rasabout we determined that even if the rule of lenity 

were applicable, there was no ambiguity in the pertinent statute. 

Id. ¶ 32. We come to the same conclusion here.

¶23 Assault and aggravated assault, the statutory crimes that 

Salt claims are ambiguous and unconstitutionally vague, employ 

varying levels of bodily injury to differentiate degrees of 

criminal assault. For example, class B misdemeanor assault 

proscribes the infliction or creation of a substantial risk of 

‚bodily injury‛—or an attempt or a threat to inflict it. See Utah 

Code Ann. § 76-5-102(1), (2) (LexisNexis 2012). And ‚*b]odily 

injury‛ is defined as ‚physical pain, illness, or any impairment 
State v. Salt

20130071-CA 11 2015 UT App 72

of physical condition.‛ Id. § 76-1-601(3). But class A 

misdemeanor assault requires that the assault result in 

‚substantial bodily injury.‛ Id. § 76-5-102(3). ‚Substantial bodily 

injury‛ is defined as ‚bodily injury, not amounting to serious 

bodily injury, that creates or causes protracted physical pain, 

temporary disfigurement, or temporary loss or impairment of 

the function of any bodily member or organ.‛ Id. § 76-1-601(12).

And Utah law defines ‚[s]erious bodily injury‛ as ‚bodily injury 

that creates or causes serious permanent disfigurement, 

protracted loss or impairment of the function of any bodily 

member or organ, or creates a substantial risk of death.‛ Id.

§ 76-1-601(11). Third degree felony aggravated assault requires 

the assault to involve either a dangerous weapon or ‚other 

means or force likely to produce death or serious bodily injury.‛ 

Id. § 76-5-103(1)(b), (3) (2008). And an aggravated assault 

becomes a second degree felony only if it ‚causes serious bodily 

injury.‛ Id. § 76-5-103(1)(a), (2).

¶24 Salt provides no analysis or explanation as to how the 

statutory definitions of the pertinent degrees of bodily injury are 

so indistinguishable from one another as to be ambiguous. 

Ambiguity is defined as ‚*a+n uncertainty of meaning or 

intention.‛ Black’s Law Dictionary 93 (9th ed. 2009). Here, there is 

no uncertainty as to the meaning or definitions of the terms with 

which Salt finds fault, as the legislature has specifically defined 

each term. As a result, the ‚rule of lenity,‛ even if available as a 

canon of statutory construction, is not applicable here.

¶25 For the same reason, Salt’s related claim that the statutes 

are unconstitutionally vague is unavailing. As long as a statute 

‚is sufficiently explicit to inform the ordinary reader what 

conduct is prohibited‛ we will not find it unconstitutionally 

vague. State v. MacGuire, 2004 UT 4, ¶ 14, 84 P.3d 1171 (citation 

and internal quotation marks omitted). Further, if the meaning 

of a statute is ‚readily ascertainable,‛ it ‚does not encourage or 

facilitate arbitrary and discriminatory enforcement.‛ Id. ¶ 32. 

Having already found that the ambiguity Salt urges does not 

exist, we conclude that the statutes at issue here are ‚sufficiently 
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20130071-CA 12 2015 UT App 72

explicit.‛ See id. ¶ 14 (citation and internal quotation marks 

omitted). As discussed, the statutes provide specific definitions 

for each of the degrees of bodily injury that accompany the 

various degrees of assault. We therefore conclude that the 

meaning of the statutes is ‚readily ascertainable.‛ See id. ¶ 32.

¶26 Finally, Salt’s contention that the trial court’s refusal to 

reduce his conviction to a class A misdemeanor was ‚unduly 

harsh‛ is unpersuasive. Under section 76-3-402 of the Utah Code, 

a court may reduce the degree of a conviction by one level if, 

having considered ‚the nature and circumstances of the offense‛ 

and ‚the history and character of the defendant,‛ the court

‚concludes [that] it would be unduly harsh to record the 

conviction as being for that degree of offense established by 

statute.‛ Utah Code Ann. § 76-3-402 (LexisNexis 2012). By its 

nature, such a decision is one of judgment and discretion. The 

court did not exceed its discretion when it determined that Salt’s 

clean criminal history and potential job problems did not 

warrant such a reduction given the circumstances of this case, 

including the injuries inflicted on J.G. In addition, the trial court 

expressly stated that it would consider a renewed motion under 

section 402 in the event Salt successfully completed his 

probation.

III. Conflicting Verdicts

¶27 Salt contends that he was entitled to a new trial because 

‚the verdict acquitting him of aggravated kidnapping 

necessarily conflicted with his conviction of aggravated assault 

and therefore he should have been acquitted of the aggravated 

assault as well.‛

¶28 We considered a similar argument in State v. LoPrinzi, 

2014 UT App 256, 338 P.3d 253, petition for cert. filed, Dec. 24, 2014

(No. 20141168), where the defendant was convicted of two 

counts of unlawful sexual activity with a minor and acquitted of 

a third count. Id. ¶ 29. There, the defendant argued that all three 

counts ‚involved the same witnesses, same parties, same 
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20130071-CA 13 2015 UT App 72

allegations, and same evidence.‛ Id. (internal quotation marks 

omitted). Accordingly, she argued that ‚the jury would have *to+ 

either convict on all Counts, or acquit on all Counts.‛ Id.

(alteration in original) (internal quotation marks omitted). We 

concluded, however, that ‚[w]e are under no duty‛ to reconcile 

seemingly inconsistent acquittals and convictions because the 

jury is free to determine ‚that the evidence only supported one 

conviction.‛ Id. ¶ 31 (citation and internal quotation marks 

omitted). Therefore, a ‚claim of inconsistency alone is not 

sufficient to overturn [the] conviction; rather, [t]here must be 

additional error beyond a showing of inconsistency because 

appellate courts have always resisted inquiring into the jury’s 

thought processes and deliberations.‛ Id. ¶ 30 (citation and 

internal quotation marks omitted).

¶29 Salt argues that such additional error exists here because 

the aggravating factor the prosecution alleged for the aggravated

kidnapping charge was essentially the assault for which he was 

convicted and thus the jury must have decided he did not 

commit the assault when it acquitted him of the aggravated 

kidnapping charge. As we noted in LoPrinzi, ‚so long as 

sufficient evidence supports each of the guilty verdicts, state 

courts generally have upheld the convictions.‛ Id. (citation and 

internal quotation marks omitted). In determining whether the 

evidence is sufficient, ‚we review the evidence in the light most 

favorable to the verdict and will not overturn a jury’s verdict of 

criminal conviction unless reasonable minds could not rationally 

have arrived at the verdict of guilty beyond a reasonable doubt 

based on the law and on the evidence presented.‛ Id. (citation 

and internal quotation marks omitted). Here, the version of the 

evidence most favorable to the jury’s verdict was that Salt 

assaulted J.G. and hit her with a metal pipe, a piece of pottery, or 

both, causing her significant head injuries and lingering residual 

pain in her back. Based on this evidence, the jury could 

reasonably have determined that Salt assaulted J.G. with a 

dangerous weapon or ‚other means or force likely to produce 

death or serious bodily injury.‛ See Utah Code Ann. 

§ 76-5-103(1)(b) (LexisNexis 2008).
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20130071-CA 14 2015 UT App 72

¶30 We therefore conclude that the evidence was sufficient to 

support the aggravated assault conviction and that the trial court 

did not err when it refused to grant a new trial on the basis of 

inconsistent verdicts.

IV. Constitutionality of the Cohabitant Abuse Act

¶31 Salt contends that the term ‚cohabitant,‛ as used in the 

Cohabitant Abuse Act, is both unconstitutionally overbroad and 

unconstitutionally vague. As a result, he argues the domestic 

violence designations attached to his charges were inappropriate 

and that ‚the jury should not have been instructed with regard 

to finding such a status.‛ The Cohabitant Abuse Act provides 

that a second or subsequent conviction for certain domestic 

violence offenses is subject to enhanced penalties. Utah Code 

Ann. § 77-36-1.1(2) (LexisNexis 2012). ‚*D+omestic violence‛ is 

defined as ‚any criminal offense involving violence or physical 

harm . . . when committed by one cohabitant against another.‛ 

Id. § 77-36-1(4). Defendant argues that the term ‚cohabitant,‛ as 

used in this act—and specifically the act’s last alternative 

definition, ‚a person who . . . resides or has resided in the same 

residence as the other party‛—is unconstitutionally overbroad 

because it unduly inhibits ‚First Amendment freedom of 

association rights.‛ See id. §§ 77-36-1, 78B-7-102. In other words, 

he argues that the act criminalizes ‚entirely innocent behavior, 

the mere act of residing with another.‛ And he argues that the 

phrase ‚has resided‛ is unconstitutionally vague because it is 

unqualified and does not provide sufficient notice as to what 

behavior is being proscribed.

A. Unconstitutional Overbreadth

¶32 Salt refers us to Salt Lake City v. Lopez, 935 P.2d 1259 (Utah 

Ct. App. 1997), where we determined that ‚*s+tatutory language 

is overbroad if its language proscribes both harmful and 

innocuous behavior.‛ Id. at 1263 (citation and internal quotation 

marks omitted), superseded by statute on other grounds as recognized 

by Baird v. Baird, 2014 UT 8, 322 P.3d 728. In Lopez, we 
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20130071-CA 15 2015 UT App 72

determined that a ‚statute is not unconstitutionally overbroad 

unless it renders unlawful a substantial amount of 

constitutionally protected conduct.‛ Id. We noted, however, that 

‚*t+he overbreadth doctrine has not been recognized outside the 

limits of the First Amendment.‛ Id. Salt contends that the 

definition of ‚cohabitant‛ restricts a person’s right to freedom of 

association under the First Amendment by ‚criminalizing 

entirely innocent behavior, the mere act of residing with one 

another.‛

¶33 ‚In a facial challenge to the overbreadth and vagueness of 

a law, a court’s first task is to determine whether the enactment 

reaches a substantial amount of constitutionally protected 

conduct.‛ State v. Norris, 2007 UT 6, ¶ 13, 152 P.3d 293 (emphasis 

omitted) (citation and internal quotation marks omitted). If the 

statute does not reach a substantial amount of such conduct, the 

overbreadth claim fails. Id. As Salt notes, the United States 

Supreme Court has recognized that ‚choices to enter into and 

maintain certain intimate human relationships must be secured 

against undue intrusion by the State because of the role of such 

relationships in safeguarding the individual freedom that is 

central to our constitutional scheme.‛ Roberts v. United States 

Jaycees, 468 U.S. 609, 617–18 (1984). Further, the Supreme Court 

has recognized that ‚implicit in the right to engage in activities 

protected by the First Amendment is a corresponding right to 

associate with others in pursuit of a wide variety of political, 

social, economic, educational, religious and cultural ends.‛ Boy 

Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000) (citation and 

internal quotation marks omitted). However, to warrant First 

Amendment protection, those engaging in their right of free 

association must ‚engage in some form of expression, whether it 

be public or private.‛ Id. at 648.

¶34 The Cohabitant Abuse Act does not penalize a person for 

choosing to reside with another person, as Salt claims, nor does 

it inhibit any protected form of expression. Instead, the act only 

prohibits criminal conduct against a cohabitant that ‚involv*es+ 

violence or physical harm or threat of violence or physical 
State v. Salt

20130071-CA 16 2015 UT App 72

harm.‛ See Utah Code Ann. §§ 77-36-1(4), -1.1 (LexisNexis 2012). 

Violence and threats of violence against cohabitants are not the 

sort of ‚form of expression‛ that the First Amendment right of 

association is meant to protect from government intrusion; 

indeed, such conduct is universally criminalized. Rather, the 

Cohabitant Abuse Act is designed to promote the value of the 

relationships the act encompasses by discouraging physical 

violence in such relationships. Because the act does not constrain 

any speech or conduct protected by the First Amendment, the 

fact that its broad definition of ‚cohabitant‛ may theoretically 

bring within its reach such attenuated relationships as, for 

example, former roommates, may raise questions of policy 

without necessarily implicating constitutional overbreadth. This 

is especially true in a case such as this one, where Salt and J.G.

had lived together for a substantial time and the violence 

stemmed from their prior intimate relationship. We therefore 

conclude that Salt’s claim of overbreadth fails.

B. Unconstitutional Vagueness

¶35 Salt also claims that the definition of ‚cohabitant‛ is 

unconstitutionally vague. He argues that ‚*n+o evidence exists 

that he was put on notice or was otherwise aware that he had 

somehow permanently attained the status of ‘cohabitant’ simply 

because he once resided with‛ J.G. A statute is 

unconstitutionally vague if it ‚fails to provide people of ordinary 

intelligence a reasonable opportunity to understand what 

conduct it prohibits‛ or if it ‚authorizes or even encourages 

arbitrary and discriminatory enforcement.‛ State v. Ansari, 2004 

UT App 326, ¶ 42, 100 P.3d 231 (citation and internal quotation 

marks omitted). The burden of showing that a statute is 

unconstitutionally vague is a heavy one because ‚a defendant 

has the burden of proving that the statute is impermissibly 

vague in all of its applications.‛ Id. ¶ 44 (emphasis added) 

(citation and internal quotation marks omitted). ‚Thus, a 

defendant who engages in some conduct that is clearly 

proscribed cannot complain of the vagueness of the law as 
State v. Salt

20130071-CA 17 2015 UT App 72

applied to the conduct of others.‛ Id. (citation and internal 

quotation marks omitted).

¶36 Our ‚primary objective‛ when interpreting statutory 

language ‚is to give effect to the legislature’s intent‛ as 

expressed in the text of the statute. State v. Maestas, 2012 UT 46, 

¶ 195, 299 P.3d 892 (citation and internal quotation marks 

omitted). In doing so, we will consider the plain language and 

also the purpose of the statute. Anderson v. Bell, 2010 UT 47, ¶ 9, 

234 P.3d 1147. Our decision in Keene v. Bonser, 2005 UT App 37, 

107 P.3d 693, is instructive here. In Keene, we considered the 

‚resides or has resided‛ definition of ‚cohabitant‛ in the context 

of a statute that sets forth the procedure for domestic violence 

victims to obtain a protective order. Id. ¶¶ 2, 8. In that case, we 

determined that the plain meaning of ‚reside‛ was ‚[t]o dwell 

permanently or for a length of time; to have a settled abode for a 

time.‛ Id. ¶ 11 (alteration in original) (citation and internal 

quotation marks omitted). We also defined ‚residence‛ 

according to its plain meaning—‚a temporary or permanent 

dwelling place, abode, or habitation to which one intends to 

return as distinguished from a place of temporary sojourn or 

transient visit.‛ Id. (citation and internal quotation marks 

omitted). And we further noted that one of the purposes other 

states have recognized for implementing statutes such as the 

Cohabitant Abuse Act is ‚‘to protect others[, beyond spouses,] 

from abuse occurring between persons in a variety of significant 

relationships.’‛ Id. ¶ 15 (alteration in original) (quoting State v. 

Kellogg, 542 N.W.2d 514, 517 (Iowa 1996)). Such a purpose is 

supported by the plain language of our own statute, which 

increases the penalty for criminal offenses ‚involving violence or 

physical harm . . . when committed by one cohabitant against 

another.‛ See Utah Code Ann. §§ 77-36-1(4), -1.1(2).

¶37 Salt’s conduct in the context of his relationship with J.G. 

falls well within the scope of the statute’s definition and 

purpose. See Ansari, 2004 UT App 326, ¶ 44. Here, Salt and J.G. 

lived together in an intimate relationship in Salt’s permanent 

home for nearly two years. And it was only about two months 
State v. Salt

20130071-CA 18 2015 UT App 72

after J.G. moved out that Salt violently assaulted her during a 

discussion directly related to their prior romantic relationship. 

Salt’s behavior is exactly the type contemplated by statutes like 

the act which are aimed at protecting those in ‚a variety of 

significant relationships‛ from the increased vulnerability to 

abuse that those relationships may create, even after they end. 

See Keene, 2005 UT App 37, ¶ 15 (citation and internal quotation 

marks omitted). Because we conclude that the kind of 

relationship Salt had with J.G. fell well within the central focus 

of the act’s definition of ‚cohabitant,‛ and because that 

definition ‚provide*s+ people of ordinary intelligence‛ fair 

notice, Salt’s unconstitutional vagueness claim fails. See Ansari, 

2004 UT App 326, ¶ 42 (citation and internal quotation marks 

omitted).

V. Ineffective Assistance of Counsel

¶38 Salt’s final claim is that his trial counsel was ineffective 

for failing to request that the court include an additional factor 

for the jury’s consideration in one of the self-defense jury 

instructions. Under Utah law, ‚*a+ person is justified in 

threatening or using force against another when and to the 

extent that the person reasonably believes that force . . . is 

necessary to defend the person . . . against another person’s 

imminent use of unlawful force.‛ Utah Code Ann. 

§ 76-2-402(1)(a) (LexisNexis 2012). The self-defense statute also 

states that in determining the ‚imminence or reasonableness‛ of 

an attack or response, 

the trier of fact may consider, but is not limited to, 

any of the following factors: (a) the nature of the 

danger; (b) the immediacy of the danger; (c) the 

probability that the unlawful force would result in 

death or serious bodily injury; (d) the other’s prior 

violent acts or violent propensities; [and] (e) any 

patterns of abuse or violence in the parties’ 

relationship.
State v. Salt

20130071-CA 19 2015 UT App 72

Id. § 76-2-402(5) (emphasis added). Salt argues that Jury 

Instruction No. 20, which purported to address these factors, 

failed to include the fourth factor listed in the statute—‚the 

other’s prior violent acts or violent propensities.‛4 See id. He 

argues that his counsel was ineffective for failing to ensure that 

this factor was included because it was implicated by evidence 

presented at trial that J.G. had previously attempted to hit him 

with her car.

¶39 To establish ineffective assistance of counsel, a defendant 

must demonstrate (1) ‚that counsel’s performance was deficient‛ 

and (2) ‚that the deficient performance prejudiced the defense.‛ 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both 

prongs are required, ‚an appellate court may skip to the second 

prong . . . and determine that the ineffectiveness, if any, did not 

prejudice the trial’s outcome.‛ State v. Perry, 2009 UT App 51, 

¶ 11, 204 P.3d 880 (citation and internal quotation marks 

omitted). ‚To satisfy the prejudice prong, it is not enough to

show that the alleged errors had some conceivable effect on the 

outcome of the trial but, rather, defendant must show that a 

reasonable probability exists that, but for counsel’s error, the 

result would have been different.‛ State v. Millard, 2010 UT App

355, ¶ 18, 246 P.3d 151 (citation and internal quotation marks 

omitted). Salt first argues that‚*b+y failing to request a very 

crucial element of self-defense,‛ counsel prevented the jury from 

being given the ‚opportunity to consider in its deliberations the 

effect of the prior assault by *J.G.+.‛ He argues that ‚the result 

may very well have been different‛ had the jury been permitted 

to consider this evidence.

¶40 We conclude that Salt has not shown that counsel’s failure 

to object to the jury instruction prejudiced his case. Even if the 

 

4.The jury instruction also failed to list the fifth factor described 

in the statute, but Salt does not appeal the omission of that 

factor.
State v. Salt

20130071-CA 20 2015 UT App 72

‚prior violent acts or prior violent propensities‛ factor had been 

included, Salt has failed to show a reasonable probability exists 

that the outcome would have been different. Salt argues he was 

prejudiced because the missing factor deprived him of the 

opportunity to argue his theory of self-defense and the jury of 

the ability to consider it. Put another way, Salt contends counsel 

was prevented from arguing that Salt reacted to J.G. both 

reasonably and in self-defense in light of the parties’ history and 

that had counsel been able to do so, Salt would not have been 

convicted. We disagree.

¶41 First, Jury Instruction No. 20 clearly stated that the jury 

was ‚not limited‛ only to the factors listed in the instruction. The 

jury was therefore free to consider Salt’s testimony that his 

actions were a justified response to J.G. hitting him in the eye 

because J.G. had previously tried to hit him with a car. And just 

as the missing factor did not prevent the jury from considering 

any evidence presented to it related to self-defense, neither did it 

prevent counsel from arguing a theory of self-defense to the jury 

during closing arguments. Indeed, while counsel did not 

specifically mention the alleged prior incident of attempted 

vehicular assault, he did focus several of his closing remarks on 

the allegation that J.G. struck Salt first. And counsel also 

characterized J.G. as a person who initiates violence, refuting 

Salt’s claim that the missing factor precluded him from making 

an argument about J.G.’s alleged propensity. Counsel argued to 

the jury, ‚She started this by hitting him the eye, she was the 

aggressor,‛ and, ‚[H]e’s got the bruise on his eye to prove *it+.‛ 

Counsel also told the jury, ‚If someone comes up to you and 

punches you in the eye, . . . in Utah, you don’t have to run away, 

you can stand your ground and defend yourself and especially 

when you’re in your own home.‛ And counsel further told the 

jury that Salt was reasonable in his response because ‚he’s 

entitled to defend himself however he needs to make sure that

*the attack+ doesn’t get worse.‛

¶42 It is worth noting that Salt does not argue trial counsel 

was somehow deficient in his arguments because he did not call 
State v. Salt

20130071-CA 21 2015 UT App 72

the jury’s attention to the incident involving J.G.’s car during 

closing arguments. Salt only argues that he was prejudiced by 

the missing factor in the jury instruction because its absence 

prevented counsel from arguing it and the jury from considering 

it. So the question of whether counsel was ineffective for failing 

to include the incident in his jury arguments related to Salt’s 

theory of self-defense is not before us. Instead, we need only 

determine whether, as Salt contends, counsel was actually 

prohibited from making such an argument had he chosen to. We 

are not persuaded that the missing jury instruction prevented 

counsel from presenting for the jury’s consideration any 

legitimate arguments related to Salt’s theory of self-defense or 

that it influenced the trial’s outcome in the way that Salt claims. 

Accordingly, Salt’s ineffective assistance of counsel claim fails.

CONCLUSION

¶43 We conclude that the trial court did not err when it 

denied Salt’s motions to arrest judgment or grant a new trial on 

the grounds that the jury instruction on aggravated assault was 

erroneous and prejudicial. We further determine the trial court 

did not err when it refused to reduce his conviction. We also 

conclude that the trial court did not abuse its discretion when it 

refused to grant a new trial on conflicting verdicts. We also do 

not find the Cohabitant Abuse Act to be unconstitutional. 

Finally, we conclude that Salt did not receive ineffective 

assistance of counsel. Accordingly, the trial court’s denial of 

Salt’s motions for a new trial or to arrest judgment and his 

conviction are affirmed.