2020 UT App 119

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CHRISTOPHER JOHN ELLIS,

Appellant.

Opinion

No. 20180899-CA

Filed August 13, 2020

Third District Court, Salt Lake Department

The Honorable Amber M. Mettler

No. 131902294

Alexandra S. McCallum and John West, 

Attorneys for Appellant

Sean D. Reyes and Nathan H. Jack, 

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY 

concurred.

ORME, Judge:

¶1 Christopher John Ellis appeals his conviction for 

aggravated robbery, arguing that the district court erred in 

(1) not striking a prospective juror for cause and (2) giving a 

faulty jury instruction. We affirm. 
State v. Ellis

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BACKGROUND1

¶2 In early 2013, Ellis entered a store in Salt Lake City, 

pointed a gun at the clerk, and ordered him to empty the cash 

register. The clerk obeyed and handed Ellis nearly $400 in cash, 

including a single $100 bill.

¶3 Ellis then fled the store and jumped into a nearby car. A 

family observed his escape, recorded his license plate number,

and provided it to the police. Police officers tracked that license 

plate to Ellis—the car was registered in his wife’s name—and 

were able to locate and arrest him later that evening. The police 

found $359.50 in his front pocket, including a $100 bill, and two 

handguns in his car, one of which he used in the robbery.2

¶4 The State charged Ellis in relevant part with aggravated 

robbery and provided notice that it would seek an enhancement

under Utah Code section 76-3-203.8 on account of Ellis’s use of a 

dangerous weapon during the commission of the robbery. 

During jury selection at his second trial,3 the district court asked 

the prospective jurors whether they, their family, or close friends 

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. Given the issues raised by Ellis, we need not recite all the facts 

of the robbery and Ellis’s eventual arrest because they are not 

necessary to our analysis. A full account of the episode can be 

found in State v. Ellis, 2018 UT 2, 417 P.3d 86.

3. Following his first trial, Ellis was convicted on all charges and 

appealed. Our Supreme Court affirmed Ellis’s conviction for 

possession of a firearm by a restricted person but reversed and 

ordered a retrial on his aggravated robbery conviction. See id.

¶ 50.
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had ever been victims of a crime. A prospective juror (Juror 30) 

indicated that she had been a crime victim. She was brought into 

the court’s chambers to discuss the matter further, away from 

the other prospective jurors. She informed the court that she had 

been held at gunpoint one night while working at a video store 

some twelve years earlier. When Ellis’s trial counsel asked 

whether she feared for her life during this incident, she 

responded that she “felt more shocked than anything” and “was 

more angry than anything . . . but . . . other than that [she felt] 

okay about it” and did not think it would affect her ability to 

judge the facts of the case. The prosecutor also asked her, “If the

allegations in this case are similar to the incident that happened 

to you, do you feel like you could judge the case on the evidence 

that’s presented here and put aside anything that has happened 

to you in the past?” Juror 30 responded that she could.

¶5 Ellis moved to strike Juror 30 for cause, arguing that 

although she had “all the right answers,” he was “just not sure 

that [a robbery was] an experience that you can be the same 

after.” The prosecutor objected, stating that Juror 30 was just 

“shocked and angry” and that she had told the court that “[i]t 

wouldn’t have any effect on her ability to be fair in this case.” 

The district court agreed with the prosecutor and denied Ellis’s 

motion. Ellis then used the first of his six peremptory challenges 

to remove Juror 30.4

¶6 At trial, the district court provided three instructions

relevant to this appeal. Instruction 34 informed the jury that 

Count I charges the defendant with Aggravated 

Robbery. He has also been charged with using a 

dangerous weapon in the commission or 

furtherance of the Aggravated Robbery. As you 

deliberate, you must determine whether the 

 

4. The court granted Ellis’s several other motions to strike jurors 

for cause. 
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defendant is guilty or not guilty of Aggravated 

Robbery. Furthermore, if you determine that the

defendant is guilty of Aggravated Robbery, you 

must determine whether or not the State has 

proved beyond a reasonable doubt that the 

defendant used a dangerous weapon in the 

commission or furtherance of the Aggravated 

Robbery. The law does not require you to make 

these determinations in any particular order. 

However, you cannot find the defendant not guilty 

of Aggravated Robbery and yet find the State has 

proven beyond a reasonable doubt that the 

defendant used a dangerous weapon in the

commission or furtherance of the Aggravated 

Robbery. In other words, you can only find in the 

Special Verdict in count I that the State has proven 

beyond a reasonable doubt that the defendant used

a dangerous weapon in the commission or 

furtherance of the Aggravated Robbery if you also 

find the defendant guilty of that Aggravated 

Robbery.

The elements of Aggravated Robbery are set forth 

in Instruction No 42.

¶7 Instruction 42 stated that to find Ellis guilty of aggravated 

robbery, the jury had to find beyond a reasonable doubt that 

Ellis (1) “[i]ntentionally or knowingly used force or fear of 

immediate force against another in the course of committing a 

theft or wrongful appropriation” and (2) while committing this 

act, “used or threatened to use a dangerous weapon.” 

Instruction 46 further provided that if the jury “determine[d] 

beyond a reasonable doubt that . . . Ellis committed Aggravated 

Robbery, [it] must complete the special verdict form.” Ellis did 

not object to the jury instructions.
State v. Ellis

20180899-CA 5 2020 UT App 119

¶8 The district court then provided the jury with a verdict 

form and a special verdict form. The verdict form asked whether 

the jury unanimously found Ellis guilty of aggravated robbery. 

The special verdict form asked whether the jury unanimously 

found beyond a reasonable doubt that Ellis used a dangerous 

weapon “[i]n the commission or furtherance of the Aggravated 

Robbery.” The jury answered “yes” on each form, thereby 

convicting Ellis of aggravated robbery, with an enhancement for 

using a dangerous weapon.

¶9 Ellis appeals. 

ISSUES AND STANDARDS OF REVIEW

¶10 Ellis raises two issues. First, he claims that the district 

court erred when it refused to strike Juror 30 for cause. “[A] trial 

court’s determination of whether to excuse a prospective juror 

for cause should not be reversed absent an abuse of discretion.” 

State v. Wach, 2001 UT 35, ¶ 25, 24 P.3d 948.

¶11 Second, Ellis argues that the court erred in giving 

Instruction 34. Claims of error in jury instructions are ordinarily 

reviewed for correctness. See State v. Weaver, 2005 UT 49, ¶ 6, 122 

P.3d 566. But because Ellis did not object to the jury instructions

at trial, he has not preserved this issue, and we review it for 

plain error.

5 See id.

 

5. Ellis also argues that the cumulative effect of the errors 

warrants reversal. Under the doctrine of cumulative error “we 

will reverse a jury verdict or sentence only if the cumulative 

effect of the several errors undermines our confidence that a fair 

trial was had.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 

P.3d 1038 (quotation simplified). Because we see no error—

actual or assumed—that harmed Ellis, much less more than one, 

(continued...)
State v. Ellis

20180899-CA 6 2020 UT App 119

ANALYSIS

I. Jury Selection

¶12 Ellis asserts that the district court abused its discretion in 

denying his motion to remove Juror 30 for cause. “So long as the 

jury that sits is impartial, the fact that the defendant had to use a 

peremptory challenge to achieve that result does not mean the

Constitution was violated.” State v. Menzies, 889 P.2d 393, 398 

(Utah 1994) (quotation simplified), superseded on other grounds by 

constitutional amendment as stated in State v. Goins, 2017 UT 61, 423 

P.3d 1236. Rather, “[t]o prevail on a claim of error based on the 

failure to remove a juror for cause, a defendant must 

demonstrate prejudice, viz., show that a member of the jury was 

partial or incompetent.” Id. Even assuming that the district court 

erred in denying Ellis’s motion, Ellis has not demonstrated that 

he suffered prejudice from this alleged error.

¶13 On the contrary, Ellis concedes that the empaneled jurors 

were not biased or incompetent, but he nonetheless asserts that 

he was still prejudiced by this error “because he was forced to 

use a peremptory strike to cure it.” This would ordinarily be the 

end of the inquiry, given that Menzies categorically rejected this 

rationale,6 but Ellis asserts that the standard requiring him to 

 

(...continued)

there are no errors to cumulate and the doctrine is inapplicable.

See id. ¶ 35.

6. In 1975, our Supreme Court held that a party “should not be 

compelled to waste [a peremptory challenge] in order to 

accomplish that which the trial judge should have done.” 

Crawford v. Manning, 542 P.2d 1091, 1093 (Utah 1975), overruled 

by State v. Menzies, 889 P.2d 393 (Utah 1994). In essence, under 

Crawford prejudice was presumed when a defendant was forced 

to use a peremptory challenge to remove a juror who should 

have been removed for cause. This regime, to which Ellis would 

(continued...)
State v. Ellis

20180899-CA 7 2020 UT App 119

show that an actually biased or incompetent juror sat violates his 

rights under the Uniform Operation of Laws provision of the 

Utah Constitution, see Utah Const. art. 1, § 24, and “requests that 

[we] allow him to show prejudice in an alternative fashion.”

¶14 Ellis raises his Uniform Operation of Laws argument for 

the first time on appeal. Even assuming any error on the part of 

the district court was not invited, as the State argues, and further 

assuming that the State is wrong in suggesting the issue was not 

sufficiently preserved to allow Ellis to make this argument on 

appeal, we are not persuaded that he is entitled to a new trial 

under this theory. 

¶15 We have considerable doubt that the Uniform Operation 

of Laws clause even applies in this case,7 but assuming that it 

 

(...continued)

have us return, was the law in Utah for nearly two decades. It 

admittedly has a certain logic to it. But the Court explicitly and 

unqualifiedly overruled Crawford in State v. Menzies, 889 P.2d 393 

(Utah 1994), holding that the loss of a peremptory challenge 

alone was not sufficient to prejudice a party and did not violate 

the constitution; in such cases, parties are required to

demonstrate prejudice, i.e., to “show that a member of the jury 

was partial or incompetent.” Id. at 398.

7. Utah's Uniform Operation of Laws clause proscribes the 

practice of classifying persons and treating them differently “to 

the detriment of some of those classified” when compared to 

similarly situated persons. State v. Outzen, 2017 UT 30, ¶ 16, 408 

P.3d 334 (quotation simplified). Thus, a statute violates the 

Uniform Operation of Laws clause when it “works 

a discriminatory hardship on an identifiable group of persons 

who were singled out for treatment different from that to which 

other identifiable groups were made subject,” State v. Drej, 2010 

UT 35, ¶ 36, 233 P.3d 476 (quotation simplified), and that 

disparity is “unreasonable in relation to the purpose of the 

(continued...)
State v. Ellis

20180899-CA 8 2020 UT App 119

does and that Ellis was deprived of his right to the uniform 

operation of law, Ellis still would be required to show prejudice 

under our normal standards. Rule 30(a) of the Utah Rules of 

Criminal Procedure dictates that “[a]ny error, defect, irregularity 

or variance which does not affect the substantial rights of a party 

shall be disregarded.” And “our Supreme Court has held that 

 

(...continued)

statute,” State v. Mohi, 901 P.2d 991, 998 (Utah 1995). Ellis posits 

that the Menzies prejudice standard creates two classes of

defendants once a for-cause challenge is erroneously rejected by 

a trial court. One class is those who choose to mitigate the error 

by using a peremptory strike on the challenged juror, and the 

other class consists of those who use a peremptory strike on 

someone else.

 As the State points out, these “classes” are not creatures of 

statute or rule, and thus are not “laws of a general nature” 

requiring uniform operation. See Utah Const. art. I, § 24. In other 

words, Ellis’s suggested classification is not one created by law

but, rather, by a defendant’s own choice. Ellis was free to use his 

peremptory strike against any other prospective juror and 

thereby move into the class of defendants choosing not to 

mitigate the prejudice resulting from the trial court’s allegedly

erroneous decision not to excuse Juror 30 for cause. But he 

instead—and sensibly—elected to strike Juror 30, the only 

remaining prospective juror he had challenged for cause, leaving 

him five more peremptory strikes. Because any alleged 

classification between the mitigating and nonmitigating

defendants is triggered by a defendant's own actions and not by 

a rule or law of general application, we tend to agree with the 

State that the Menzies rule on prejudice is neutral, both facially 

and in operation, and does not appear to create classes with

discriminatory effect. While we applaud Ellis's creativity in 

endeavoring to get around the once-controversial Menzies 

decision on this rationale, we are, indeed, skeptical that the 

Uniform Operation of Laws clause has any applicability in this 

context.
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20180899-CA 9 2020 UT App 119

this ordinarily requires a defendant to show that, absent the 

[error], there is a reasonable likelihood of a more favorable result 

for the defendant.” State v. Ahmed, 2019 UT App 65, ¶ 17, 441 

P.3d 777 (quotation simplified). In cases of constitutional error,

“an otherwise valid conviction should not be set aside if the 

reviewing court may confidently say, on the whole record, that 

the constitutional error was harmless beyond a reasonable 

doubt.”8 State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892

(quotation simplified). 

¶16 Here, Ellis argues that he should be allowed to establish 

prejudice by showing that “but for the expended peremptory 

strike it is reasonably likely that the juror challenged for cause 

would have sat and . . . the challenged juror would have been

actually biased had she sat.” But this is not the applicable 

prejudice standard. Ellis is required to show that there would be 

a “reasonable likelihood of a more favorable result for [him]” at 

trial had he not been forced to use his peremptory challenge on 

Juror 30. See Ahmed, 2019 UT App 65, ¶ 17 (quotation simplified). 

He cannot make that showing because, as he concedes, the jury 

that actually sat was not biased or incompetent. Thus, the result 

at trial would have remained unchanged even if he had had an

additional peremptory challenge to use on a juror other than 

Juror 30. An unbiased jury would have sat either way. And even 

under the higher “harmless beyond a reasonable doubt” 

standard applied to cases involving constitutional error, see 

Maestas, 2012 UT 46, ¶ 56, Ellis’s argument still fails for that same 

reason. Assuming the district court violated the Uniform 

 

8. There is a small class of cases in which we presume prejudice 

where there was an egregious constitutional error. See Johnson v. 

United States, 520 U.S. 461, 468–69 (1997) (identifying the “very 

limited class of cases” when prejudice is presumed: “a total 

deprivation of the right to counsel,” “lack of an impartial trial 

judge,” “unlawful exclusion of grand jurors of defendant’s race,” 

“the right to self-representation at trial,” “the right to a public 

trial,” and an “erroneous reasonable-doubt instruction to jury”).
State v. Ellis

20180899-CA 10 2020 UT App 119

Operation of Laws clause when it declined to remove Juror 30 

for cause, the error was harmless beyond a reasonable doubt 

because, again, there is no suggestion that a biased or 

incompetent juror sat on the jury. And finally, we do not 

presume prejudice here because it is not one of the “very 

limited” cases that merit that treatment as itemized in Johnson v. 

United States, 520 U.S. 461, 468–69 (1997).

II. Jury Instructions

¶17 Ellis asserts that Instruction 34 was erroneous. Because 

Ellis did not preserve this issue below, he asks us to review it for 

plain error. See State v. Ringstad, 2018 UT App 66, ¶ 32, 424 P.3d 

1052. “To demonstrate plain error, [Ellis] must show that (i) an 

error exists; (ii) the error should have been obvious to the trial 

court; and (iii) the error is harmful, i.e., absent the error, there is 

a reasonable likelihood of a more favorable outcome for the 

appellant, or phrased differently, our confidence in the verdict is 

undermined.” State v. Seumanu, 2019 UT App 90, ¶ 42, 443 P.3d 

1277 (quotation simplified). Here, Ellis cannot show error on the 

part of the district court, let alone obvious error. 

¶18 When dealing with an allegedly flawed jury instruction,

we must look at the instructions as a whole and determine 

whether they “fairly instruct the jury on the law applicable to the 

case,” and “the fact that one of the instructions, standing alone, 

is not as accurate as it might have been does not amount to 

reversible error.” State v. Kennedy, 2015 UT App 152, ¶ 24, 354 

P.3d 775 (quotation simplified). “Thus, we will affirm when the 

combined instructions fairly instruct the jury on the applicable 

law.” Id.

¶19 Ellis asserts that the district court “plainly erred by giving 

a misleading instruction that incorrectly described a situation in 

which the jury could not acquit [him] of aggravated robbery.”

Specifically, Ellis takes issue with the following language in 

Instruction 34:
State v. Ellis

20180899-CA 11 2020 UT App 119

The law does not require you to make these 

determinations in any particular order. However, 

you cannot find the defendant not guilty of 

Aggravated Robbery and yet find the State has 

proven beyond a reasonable doubt that the 

defendant used a dangerous weapon in the

commission or furtherance of the Aggravated 

Robbery.

¶20 Ellis claims that this language “allowed the jury to find, as 

a threshold matter, that a dangerous weapon was used in 

furtherance of the aggravated robbery—even if they had not yet 

found [him] guilty of the underlying crime.”9 We disagree. 

When read as a whole, the jury instructions correctly informed

the jury how to approach the aggravated robbery charge and the 

applicable enhancement. 

¶21 An aggravated robbery is completed whenever a “person 

intentionally or knowingly uses force or fear of immediate force 

against another in the course of committing a theft or wrongful 

appropriation,” Utah Code Ann. § 76-6-301(1)(b) (LexisNexis 

 

9. The logic of the argument is questionable given that Ellis acted 

alone and the only theory of aggravation was that a dangerous 

weapon was used—not that injury was inflicted or a vehicle was 

taken. See Utah Code Ann. § 76-6-302(1) (LexisNexis 2017) (“A 

person commits aggravated robbery if in the course of 

committing robbery, he . . . uses or threatens to use a dangerous 

weapon . . . ; causes serious bodily injury upon another; or . . . 

takes or attempts to take an operable motor vehicle.”). How 

could the jury have found him guilty of using a dangerous 

weapon “in the commission or furtherance of the Aggravated 

Robbery” while simultaneously finding him innocent of the 

aggravated robbery?
State v. Ellis

20180899-CA 12 2020 UT App 119

2017),10 and “in the course of committing robbery, [the person]

uses or threatens to use a dangerous weapon . . . ; causes serious 

bodily injury upon another; or . . . takes or attempts to take an 

operable motor vehicle,” id. § 76-6-302(1)(a)–(c). The sentence for 

the crime shall be enhanced “[i]f the trier of fact finds beyond a 

reasonable doubt that a dangerous weapon was used in the 

commission or furtherance of [the aggravated robbery].” Id. 

§ 76-3-203.8(2). In other words, the sentence for aggravated 

robbery will be enhanced if the robbery is deemed aggravated 

because a dangerous weapon is used rather than because serious 

bodily injury was inflicted or because a vehicle was taken.

¶22 Instruction 34 provided a roadmap to help the jury 

determine the special verdict, that is, to determine whether the 

enhancement would apply if the jury found Ellis guilty of 

aggravated robbery. And although the language Ellis takes issue 

with in Instruction 34 could have been drafted more clearly to 

explain aggravated robbery and the enhancement, when looking 

at the entirety of Instruction 34 and the other jury instructions, it 

was not erroneous. Ellis isolates and emphasizes two sentences 

to advance his argument, but Instruction 34, after the 

complained-of language, specifically informed the jury, with our 

emphasis, that it could only find on the special verdict form that 

“the defendant used a dangerous weapon in the commission or 

furtherance of the Aggravated Robbery if you also find the 

defendant guilty of that Aggravated Robbery.” See supra note 9.

¶23 Instruction 34’s language informed the jury that it could 

consider the question of whether Ellis used a dangerous weapon 

during the commission of a felony only if it found him guilty of 

the aggravated robbery. Furthermore, Instruction 46 directed the 

jury that if it “determine[d] beyond a reasonable doubt that 

[Ellis] committed Aggravated Robbery, [it] must complete the 

 

10. Because the statutory provisions in effect at the relevant time 

do not differ in any material way from the current code, we cite 

the current code for convenience. 
State v. Ellis

20180899-CA 13 2020 UT App 119

special verdict form.” This language again reinforced to the jury 

that it could move onto the enhancement question only if it first 

found Ellis guilty of aggravated robbery, although in the context

of this case, the two necessarily rose and fell together. These 

instructions did not lead to “a situation in which the jury could 

not acquit” Ellis of aggravated robbery, as Ellis claims, because 

the instructions consistently directed the jury that it could not 

determine the enhancement if it acquitted Ellis of the aggravated 

robbery charge. Moreover, Instruction 42 provided that to find 

Ellis guilty of aggravated robbery, the jury had to find beyond a 

reasonable doubt that Ellis (1) “[i]ntentionally or knowingly 

used force or fear of immediate force against another in the 

course of committing a theft or wrongful appropriation” and 

(2) while committing this act, “used or threatened to use a 

dangerous weapon.” This unmistakably informed the jury that if 

it did not find that Ellis used a dangerous weapon, it could not 

find him guilty of aggravated robbery.11

¶24 When read in their entirety, the “instructions fairly 

instruct[ed] the jury on the applicable law.” See State v. Kennedy, 

2015 UT App 152, ¶ 24, 354 P.3d 775. See also State v. Hutchings, 

2012 UT 50, ¶ 25, 285 P.3d 1183 (“Jurors do not sit in solitary 

isolation booths parsing instructions for subtle shades of 

meaning in the same way that lawyers might.”) (quotation 

simplified). Therefore, there was no error in the jury instructions, 

 

11. Significantly, no part of Ellis’s defense strategy was that he 

could be guilty of only simple robbery because he had not used a 

dangerous weapon in the crime’s commission. He testified that 

not only was he nowhere near the store, but he “didn’t know 

[the store] existed” and was instead driving his daughter to 

basketball practice and calling on a friend in another part of 

town at the time of the robbery. He offered no explanation for 

how his car would have been observed leaving the scene of the 

crime while he was driving it several miles distant from the store 

while running innocent errands.
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let alone an error so obvious that the district court should have 

rectified it without Ellis calling the court’s attention to the error.

CONCLUSION

¶25 Ellis’s argument that he was prejudiced by the district 

court’s denial of his motion to strike Juror 30 for cause is 

unavailing because he cannot show that the jury that sat 

included a biased or incompetent juror. And we reject Ellis’s 

claim that Instruction 34 incorrectly informed the jury on the 

applicable law because the instructions, when taken as a whole, 

correctly stated the law. 

¶26 Affirmed.