This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 22

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

LANCE BESS,

Appellant.

No. 20170746

Filed June 3, 2019

On Certification from the Court of Appeals

First District, Box Elder 

The Honorable Brandon J. Maynard

No. 151100329

Attorneys:

Sean D. Reyes, Att’y Gen., John T. Neilsen, Asst. Solic. Gen., 

Salt Lake City, for appellee

Paul G. Cassell, Salt Lake City, Lindsay Jarvis, South Jordan,

for appellant

JUSTICE PETERSEN authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, 

JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Lance Bess, a detective with the Unified Police Department,

was bird hunting with several family members when another hunter 

accidentally fired three shots in their direction. When the firing 

stopped, Bess angrily confronted the hunter’s group with his service 

weapon drawn and held at his side. As a result of this incident, the 

State charged Bess with one count of threatening with or using a 
STATE v. BESS

Opinion of the Court

2

dangerous weapon in a fight or quarrel (threatening with a 

dangerous weapon).

1 He was convicted after a trial and timely 

appeals.

¶2 The relevant criminal statute makes an exception for 

persons acting in self-defense and peace officers in performance of 

their duties (performance of duties). The court of appeals certified 

this case to us to determine whether these exceptions are elements of 

the offense or affirmative defenses.

¶3 Bess argues that the district court’s treatment of these 

exceptions as affirmative defenses caused a structural error in the 

trial. He also argues that the court wrongly excluded a declaration 

from a juror in support of his motion for a new trial and that the 

court gave the jury an unconstitutionally coercive deadlock 

instruction.2

¶4 We affirm.

BACKGROUND3

¶5 Bess and his family were hunting at public shooting 

grounds when an inexperienced hunter shot in their direction.

Despite the family’s attempts to alert the shooter to their presence, 

the shooter fired twice more. After the shooting stopped, Bess—still 

holding his shotgun—drew his service weapon and approached the

hunting party. He shouted profanities at the group and demanded to 

know who had shot at his family. Admitting fault, an adult man in 

the hunting party acknowledged that a young, inexperienced hunter

in their group had accidently fired shots in the family’s direction. 

____________________________________________________________

1 See UTAH CODE § 76-10-506(2) (outlining the elements of 

threatening with or using dangerous weapon in fight or quarrel).

2 A deadlock instruction, also known as an Allen charge, is “[a] 

supplemental jury instruction given by the court to encourage a 

deadlocked jury, after prolonged deliberations, to reach a verdict.” 

Allen Charge, BLACK’S LAW DICTIONARY (10th ed. 2014); see also Allen 

v. United States, 164 U.S. 492 (1896).

3 “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. Pinder, 2005 UT 15, ¶ 2, 114 

P.3d 551 (citation omitted) (internal quotation marks omitted).
Cite as: 2019 UT 22

Opinion of the Court

3

And the young hunter was in tears, upset at his mistake. The man 

requested that Bess put his service weapon away. When Bess 

refused, the man suggested that they call the police. In response, 

Bess said, “[G]o right ahead, I am a fucking cop.” The man then 

asked to see Bess’s badge, but Bess denied having it with him. After 

the man expressed doubts as to Bess’s credentials, Bess quickly 

flashed his badge at them. Bothered by the encounter, the man from 

the hunting party notified the police.

¶6 The State ultimately charged Bess with one count of 

threatening with a dangerous weapon, and the case proceeded to 

trial.

¶7 At the beginning of trial, over Bess’s objection, the district 

court provided the jury with the following instruction:

Lance Bess is charged with committing [the offense of] 

threatening with or using a dangerous weapon in a 

fight or quarrel. You cannot convict him of this offense 

unless, based on the evidence, you find beyond a 

reasonable doubt each of the following elements:

No. 1: That the defendant, Lance Bess;

No. 2: In the presence of two or more persons;

No. 3: Intentionally, knowingly or recklessly;

No. 4: Drew or exhibited a dangerous weapon;

No. 5: In an angry and threatening manner.

¶8 Bess argued that the jury instruction omitted what he 

termed “negative elements” of the charged crime, specifically that 

(1) he did not act in self-defense and (2) he was not a peace officer in 

performance of his duties. In overruling Bess’s objection, the district 

court concluded that these provisions of Utah Code section 76-10-506 

were affirmative defenses, not elements. Accordingly, the district 

court explained that some evidence supporting the defenses must be 

presented by either party before it would instruct the jury on them.

¶9 After the defense rested, the district court determined that 

sufficient evidence had been presented to instruct the jury on both

affirmative defenses. Thus, before closing arguments, the court gave 

its final instructions on the law. In addition to listing the five 

elements included in the preliminary jury instruction, the 

replacement instruction provided that the jury could not convict 

Bess unless it also found beyond a reasonable doubt that he “did not 

draw or exhibit the weapon in self-defense” and that he “was not a 
STATE v. BESS

Opinion of the Court

4

peace officer . . . acting in the performance of his duties.” The final 

jury instruction was the same instruction that Bess had requested at

the beginning of trial.

¶10 During its closing argument, the State noted that it had to 

prove “essentially seven elements” beyond a reasonable doubt, 

including disproving the affirmative defenses. The defense also 

focused their closing arguments on the affirmative defenses.

¶11 After deliberating for approximately three hours, the jurors

sent a note to the judge indicating they were deadlocked. Bess

moved for a mistrial, but the district court denied the motion and 

instead read the jury the deadlock instruction from the Model Utah 

Jury Instructions. The jury deliberated for three more hours and 

ultimately convicted Bess. When polled, each juror affirmed that his 

or her verdict was guilty.

¶12 Bess then moved for a new trial, arguing that the district

court had erroneously omitted two “negative elements” from the 

preliminary jury instruction. The motion included a declaration from 

Bess’s trial counsel summarizing several conversations she had had 

with jurors regarding the difference between the preliminary and 

final elements instructions. According to Bess’s trial counsel, several 

jurors stated that they were surprised by the change in the jury 

instructions and said that they could have been listening for 

evidence supporting those provisions if they had known to do so 

from the beginning of trial.

¶13 The parties stipulated to a briefing schedule for the motion 

for a new trial. Bess agreed to submit his reply to the State’s response 

to the motion by 5:00 p.m. on August 11, 2017. However, on the due 

date, Bess did not file his reply memorandum until shortly after 

7:00 p.m. Along with the motion, he attached a juror declaration

impeaching the verdict and an accompanying motion to supplement 

the new trial motion.

¶14 The State moved to strike the juror statements impeaching 

the verdict, arguing that they violated rule 606 of the Utah Rules of 

Evidence. At oral argument on these motions, the district court, on 

its own, excluded both parties’ late filings, noting that they had both 

been “very adamant about deadlines.” The court thus decided to 

strike any untimely materials, including Bess’s reply and 

supplemental materials.

¶15 The district court then denied the motion for a new trial on 

the merits, reasoning that “[a] plain reading of the statute 
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Opinion of the Court

5

demonstrates self-defense and performance-of-duties were included 

as exemptions, which are defined and construed as affirmative 

defenses.” The court explained that the State was therefore not 

required to negate the defenses unless and until sufficient evidence 

was presented to put them at issue. The court observed that Bess had 

not been prejudiced in any event, because the jury was notified that 

the instructions were subject to amendment and the final 

instructions included all of the language Bess had requested. As to 

the deadlock instruction, the district court noted that it had “simply 

followed the standard approach.”

¶16 Bess timely appealed. The court of appeals certified the

case to us to consider whether Utah Code section 76-10-506(4), which 

provides that “[t]his section does not apply to a [peace officer] in 

performance of the person’s duties,” constitutes an element of or an 

affirmative defense to the charge of threatening with a dangerous 

weapon. We have jurisdiction pursuant to Utah Code section 

78A-3-102(3)(b).

STANDARD OF REVIEW

¶17 We review a district court’s denial of a motion for a new 

trial for an abuse of discretion. See State v. Martin, 2002 UT 34, ¶ 45, 

44 P.3d 805. But “[w]e review the legal standards applied by the 

[district] court in denying such a motion for correctness” and “the 

[district] court’s factual findings for clear error.” State v. Maestas, 

2012 UT 46, ¶ 103, 299 P.3d 892 (citation omitted) (internal quotation 

marks omitted).

ANALYSIS

¶18 Bess raises a number of issues that fall into three categories. 

First, he contends that the district court erred in concluding that 

self-defense and performance of duties are affirmative defenses 

rather than elements of the offense. As a result of the 

mischaracterization, Bess argues that the preliminary jury instruction 

misstated the State’s burden of proof, causing a structural trial error. 

Second, Bess contends that the district court abused its discretion in 

excluding as untimely the juror’s declaration impeaching the verdict. 

Finally, he argues that the deadlock instruction was 

unconstitutionally coercive under the circumstances presented here.4

____________________________________________________________

4 Bess also contends that the cumulative effect of these errors 

mandates a new trial. “Under the cumulative error doctrine, we 

(cont’d.)
STATE v. BESS

Opinion of the Court

6

¶19 We conclude that under Utah Code section 76-10-506,

5

self-defense and performance of duties are affirmative defenses, not 

elements of the offense. We also determine that the juror’s 

declaration was inadmissible under rule 606(b) of the Utah Rules of 

Evidence, so we do not reach whether the court abused its discretion 

in excluding it due to untimeliness. Finally, we conclude that Bess 

failed to prove that the district court’s deadlock instruction was 

unconstitutionally coercive under the circumstances here.

¶20 We address each of the errors Bess alleges in turn.

I. PRELIMINARY JURY INSTRUCTION

¶21 Before the parties gave their opening statements, the 

district court read preliminary instructions to the jury to orient them 

to the trial process. As Bess acknowledges, such instructions do not 

have to address the elements of charged crimes. See UTAH R. CRIM. P.

19(a) (“After the jury is sworn and before opening statements, the 

court may instruct the jury concerning . . . the elements and burden 

of proof for the alleged crime . . . .” (emphasis added)). But here, the 

court included an instruction outlining the elements of threatening 

with a dangerous weapon. The instruction explained that the State 

had to prove beyond a reasonable doubt that: (1) The defendant, 

Lance Bess; (2) in the presence of two or more persons;

(3) intentionally, knowingly or recklessly; (4) drew or exhibited a 

dangerous weapon; (5) in an angry and threatening manner.

¶22 Bess argues this instruction was incorrect because it 

excluded two “negative elements” that the State was required to 

disprove beyond a reasonable doubt: that the defendant was not

 

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. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 

(alterations in original) (citation omitted) (internal quotation marks 

omitted). Because we conclude that the district court did not err, 

the cumulative error doctrine does not apply and we decline to 

grant Bess a new trial on this basis.

5 Utah Code sections 76-10-506 and -523 were recently amended. 

Although the amendments are non-substantive, for clarity, we cite 

to the 2014 version of the Utah Code, which was in effect at the 

time of the incident in question and was used to draft the jury 

instructions in this case.
Cite as: 2019 UT 22

Opinion of the Court

7

(1) acting in self-defense6 or (2) a peace officer in performance of his 

duties.7 Over Bess’s objection, the district court concluded these were 

affirmative defenses upon which the jury should not be instructed 

until enough evidence was introduced in support of them to put the

defense at issue.

¶23 Bess contends that the plain language and legislative 

purpose of the relevant statute, see UTAH CODE § 76-10-506, show 

that these are elements of the crime. Alternatively, he argues that if 

we determine the statute is ambiguous, the rule of lenity8 dictates 

that the statute should be construed in his favor.

¶24 We first address Bess’s plain language argument. Bess 

asserts that the text of the statute shows that self-defense and 

performance of duties are elements because they appear within the 

statute itself rather than in the sections of the code listing affirmative 

defenses, see id. §§ 76-2-301 to -307, or in their own section as do 

justification and self-defense, see id. §§ 76-2-401 to -402. He also notes 

that section 506 does not label them as affirmative defenses. None of 

this means that section 506 plainly designates the absence of 

self-defense and performance of duties as elements of threatening 

with a dangerous weapon.

____________________________________________________________

6 Utah Code section 76-10-506(2) references the self-defense 

statute as an exception to the outlined offense. And section 

76-10-506(3) outlines a particular variant of self-defense that is 

specific to this crime, stating, “This section does not apply to a 

person who, reasonably believing the action to be necessary in 

compliance with Section 76-2-402 [(the self-defense statute)], with 

purpose to prevent another’s use of unlawful force: (a) threatens 

the use of a dangerous weapon; or (b) draws or exhibits a 

dangerous weapon.”

7 See UTAH CODE § 76-10-506(4) (“This section does not apply to 

a person listed in Subsections 76-10-523(1)(a) through (e) in 

performance of the person’s duties.”). Relevant here, section 

76-10-523(1)(c) lists “a peace officer of this or any other 

jurisdiction.”

8 “The rule of lenity requires that we interpret an ambiguous 

statute in favor of lenity toward the person charged with criminal 

wrongdoing.” State v. Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258.
STATE v. BESS

Opinion of the Court

8

¶25 “[O]ur primary goal in interpreting statutes is to give effect 

to the legislative intent, as evidenced by the plain language, in light 

of the purpose the statute was meant to achieve.” State v. Burns, 2000 

UT 56, ¶ 25, 4 P.3d 795. “[W]e read the plain language of the statute 

as a whole[] and interpret its provisions in harmony with other 

statutes in the same chapter and related chapters.” State v. Holm, 

2006 UT 31, ¶ 16, 137 P.3d 726 (citation omitted) (internal quotation 

marks omitted). We do not look to other interpretive tools unless we 

conclude that the statute is ambiguous. See id. We thus proceed by 

analyzing the plain language of Utah Code section 76-10-506 in 

context.

¶26 The statute defining the offense of threatening with a 

dangerous weapon appears in Chapter 10 of the Utah Criminal 

Code, which deals with “Offenses Against Public Health, Safety, 

Welfare, and Morals.” The statute is located in Part 5 of this chapter, 

which contains Utah’s criminal weapons laws. Also in Part 5 is a 

provision listing persons who are, for the most part, exempt from 

these weapons laws. See UTAH CODE § 76-10-523(1)(a)–(f) (2014). The 

list includes: United States marshals, federal officials who are 

required to carry a firearm, peace officers, law enforcement officials 

and judges as defined and qualified under Utah Code section 

53-5-711, and common carriers engaged in the regular and ordinary 

transport of firearms as merchandise. Id.

¶27 Although these persons are mostly exempt from Utah’s 

weapons laws, the exemption is not absolute.9 Three criminal 

weapons statutes, including the one at issue here, specify that these 

officials are exempt from the offenses they circumscribe only under 

certain circumstances—primarily that they are acting in self-defense 

or in performance of their duties. See id. §§ 76-10-506, -508, -508.1. In

practice, this means that United States marshals, peace officers, 

judges, or any of the other officials listed in section 523(1)(a)–(e) are 

prohibited from: threatening others with or using a dangerous 

weapon during a fight; discharging a firearm from a vehicle, near a 

highway, or in the direction of any person; and discharging a firearm 

in the direction of a building, habitable structure, or vehicle—unless 

____________________________________________________________

9 The individuals listed in Utah Code section 76-10-523(1) are 

not exempt from sections 506, 508, and 508.1 of this part or from 

section 53-5-7, the Concealed Firearm Act.
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Opinion of the Court

9

they are acting in self-defense or in performance of duties. See id.

§§ 76-10-506, -508, -508.1, -523.

¶28 Looking to the specific language of section 506 in this 

context, it states in relevant part:

(2) Except as otherwise provided in Section 76-2-402 

[the self-defense statute] and for those persons 

described in Section 76-10-503 [who are restricted from 

possessing dangerous weapons], a person who, in the 

presence of two or more persons, and not amounting to 

a violation of Section 76-5-103 [aggravated assault], 

draws or exhibits a dangerous weapon in an angry and 

threatening manner or unlawfully uses a dangerous 

weapon in a fight or quarrel is guilty of a class A 

misdemeanor.

(3) This section does not apply to a person who, 

reasonably believing the action to be necessary in 

compliance with Section 76-2-402 [the self-defense 

statute], with purpose to prevent another’s use of 

unlawful force:

(a) threatens the use of a dangerous weapon; or

(b) draws or exhibits a dangerous weapon.

(4) This section does not apply to a person listed in 

Subsections 76-10-523(1)(a) through (e) in performance 

of the person’s duties.

Id. § 76-10-506(2)–(4).

¶29 The plain language of the statute shows that self-defense 

and performance of duties are exemptions from the offense. The 

statute states that it “does not apply” to a person listed in section 

523(1)(a)–(e)—here, a peace officer—in performance of duties. With 

regard to self-defense, the statute states both that it “does not apply”

to individuals who reasonably believe they must act to prevent 

another’s use of unlawful force, see id. § 76-10-506(3), and that 

self-defense is an exception to the outlined offense, see id.

§ 76-10-506(2) (stating that the offense is a class A misdemeanor 

“[e]xcept as otherwise provided in 76-2-402”).

¶30 As we concluded in State v. Smith, 2005 UT 57, 122 P.3d 615, 

exemptions from criminal statutes generally function as affirmative 

defenses. Id. ¶ 19. In Smith, we stated that possession of a license or 

permit was an affirmative defense to carrying a concealed firearm. 
STATE v. BESS

Opinion of the Court

10

Id. We said: “Exemptions from laws, particularly when based on 

possession of a license or permit . . . are typically construed as 

affirmative defenses, partly because a defendant is in a better 

position to prove he has a permit than is the State to prove that he 

lacks such a permit.” Id.

¶31 Further, the defendant is better positioned to know if any 

of the many possible exemptions even apply in his case. To construe 

these provisions as elements would mean that the State would have 

to disprove every exception to section 506—whether relevant in a 

given case or not. Under Bess’s logic, in addition to the five elements 

the district court recited, the State would have to prove that Bess is

also not (1) a United States marshal, nor (2) a federal official required 

to carry a firearm, nor (3) a peace officer, nor (4) a law enforcement 

official as defined and qualified in Utah Code section 53-5-711, nor 

(5) a judge as defined and qualified in section 53-5-711, and that 

(6) he was not acting in self-defense. And the State would have to do 

this in every case in which it charged a violation of sections 506, 508, 

or 508.1. One of the basic functions of affirmative defenses is to 

narrow the issues to those that are relevant. See Thomas R. Lee, 

Pleading and Proof: The Economics of Legal Burdens, 1997 BYU L. REV. 1, 

6.

¶32 Utah Code section 76-1-501 is also instructive. It defines 

“element of the offense” as “the conduct, attendant circumstances, or 

results of conduct proscribed, prohibited, or forbidden in the definition 

of the offense” along with “the culpable mental state required.”

UTAH CODE § 76-1-501(2) (emphasis added). Here, self-defense and 

performance of duties are not part of the conduct that is “proscribed, 

prohibited, or forbidden.” Rather, in outlining the exceptions to 

section 506, the legislature provided guidance as to when it does and 

does not apply. Bess essentially argues that the State must prove as 

elements not only the conduct that is forbidden, to which the law 

applies, but also the conduct or circumstances that are not forbidden, 

to which the law does not apply. That is incorrect.

¶33 Because the plain language of the statute shows that 

self-defense and performance of duties are exceptions to section 506, 

we conclude the district court correctly determined that they were 

affirmative defenses against the charged offense. Self-defense and 

performance of duties function as affirmative defenses to the offense 

of threatening with a dangerous weapon.

¶34 Importantly, this does not shift the burden of proof from 

the State to the defendant. Rather, it means that sufficient evidence 
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Opinion of the Court

11

must be presented at trial to put the affirmative defense at issue. See

State v. Campos, 2013 UT App 213, ¶ 41, 309 P.3d 1160 (“[O]nce a 

defendant—or even the prosecution for that matter—has produced 

enough evidence to warrant the giving of an instruction on an 

affirmative defense, the defendant is entitled to acquittal . . . unless 

the prosecution carries its burden of disproving the defense beyond 

a reasonable doubt.” (emphasis omitted)). At that point, the State 

must disprove the defense beyond a reasonable doubt. See id.

Accordingly, the district court did not err in waiting to instruct the 

jury on these defenses until the final instructions, after Bess had 

placed the defenses at issue.

II. JUROR DECLARATION

¶35 Bess next argues that the district court erred in excluding

the juror declaration he submitted with his motion for a new trial. In 

particular, he argues that the court abused its discretion when it 

elected not to consider the declaration because it was untimely. 

Because we ultimately conclude that the district court would be 

barred from considering the declaration under rule 606(b) of the 

Utah Rules of Evidence, any error in excluding it due to untimeliness 

is harmless. We therefore decline to address whether the court 

abused its discretion in this regard and instead affirm on alternative 

grounds. See Bailey v. Bayles, 2002 UT 58, ¶ 20, 52 P.3d 1158 (“[A]n 

appellate court may affirm the judgment appealed from if it is 

sustainable on any legal ground or theory apparent on the record.”).

¶36 Rule 606(b) prohibits, with a couple of exceptions, the 

admission of a juror declaration pertaining to “any statement made 

or incident that occurred during the jury’s deliberations; the effect of 

anything on that juror’s or another juror’s vote; or any juror’s mental 

processes concerning the verdict or indictment.” It prohibits 

“virtually all inquiries into the jury deliberation process.” State v. 

King, 2008 UT 54, ¶ 45, 190 P.3d 1283 (citation omitted) (internal 

quotation marks omitted). These restrictions help to insulate the jury 

and protect jurors from being harassed by defeated parties.

¶37 Bess argues that rule 606(b) should not limit the use of the 

declaration because “Utah Rule of Evidence 606(b) was recently 

declared unconstitutional as written.” In support, Bess refers to the 

United States Supreme Court’s recent decision in Pena-Rodriguez v. 

Colorado, 137 S. Ct. 855 (2017). But Bess misreads the holding of that

case. In Pena-Rodriguez, the Supreme Court determined that 

Colorado’s rule 606(b) equivalent was unconstitutionally applied 
STATE v. BESS

Opinion of the Court

12

when it precluded juror testimony regarding racial animus among 

the jurors. Specifically, the Supreme Court said,

[W]here a juror makes a clear statement that indicates 

he or she relied on racial stereotypes or animus to 

convict a criminal defendant, the Sixth Amendment 

requires that the no-impeachment rule give way in 

order to permit the trial court to consider the evidence 

of the juror’s statement and any resulting denial of the 

jury trial guarantee.

Id. at 869.

¶38 We read Pena-Rodriguez to strike down Colorado’s 

rule 606(b) only as applied to statements indicative of racial animus.

Beyond this narrow, as-applied holding, Pena-Rodriguez contains 

language supporting the policy behind rule 606(b). According to the 

Supreme Court, the no-impeachment rule “promotes full and 

vigorous discussion” and it “gives stability and finality to verdicts.” 

Id. at 865. We do not read Pena-Rodriguez to strike down Utah’s or 

any other state’s 606(b) equivalent as facially unconstitutional.

¶39 Under rule 606(b), the declaration is an impermissible 

encroachment into the jury’s deliberative process. The rule contains 

two narrow exceptions, one of which Bess claims is relevant here. 

Jurors are permitted to testify about whether “extraneous prejudicial 

information was improperly brought to the jury’s attention” or “an 

outside influence was improperly brought to bear on any juror.” 

UTAH R. EVID. 606(b)(2). Bess contends that the contested declaration

falls under the extraneous prejudicial information exception. But that 

is incorrect.

¶40 In particular, Bess argues that the declaration discloses that 

two items of extraneous prejudicial information were brought to the 

jury’s attention. According to the declaration, one juror, a “deputy,”

began educating the rest of the jurors about concealed weapons 

permits. The juror stated that he “wouldn’t have handled the 

situation like Bess handled it.” Another juror discussed his own 

criminal conviction and stated that, in being held accountable, he 

realized his mistake. The declaration quotes this juror as saying, “I 

had to be held accountable for my actions, he needs to be held 

accountable for his.” Bess argues that these statements were 

“extraneous” because the information was not presented at trial.

¶41 But this is not extraneous information within the meaning 

of rule 606(b). “[E]xtraneous prejudicial information ‘cover[s]
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Opinion of the Court

13

misconduct such as jurors reading news reports about the case, 

jurors communicating with third parties, bribes, and jury 

tampering.’” State v. Maestas, 2012 UT 46, ¶ 114, 299 P.3d 892 (second 

alteration in original) (citation omitted). It also “includes the jury’s 

consideration of evidence not admitted in court, and instances where 

a juror ‘conduct[ed] his own investigation and [brought] the results 

into the jury room.’” Id. (alterations in original) (citations omitted). It 

is not “evidence of discussions among jurors” or “instances where a 

juror . . . brings his personal experiences to bear on the matter at 

hand.” Id. (alteration in original) (citations omitted) (internal 

quotation marks omitted). The statements that Bess seeks to admit 

are best characterized as juror discussions about personal 

experiences and opinions. The declaration does not contain 

allegations of extraneous prejudicial information being brought to 

the jury’s attention.

¶42 We conclude that the juror declaration is impermissible 

under rule 606(b), and no exception applies to it. Accordingly, we 

affirm the district court’s decision not to consider it on this 

alternative ground.

III. DEADLOCK INSTRUCTION

¶43 Finally, Bess argues that the deadlock instruction provided 

to the jury was unconstitutionally coercive. While Bess recognizes

that courts must typically speculate as to the coercive effect of a 

deadlock instruction, he contends that we may avoid doing so here 

by looking to the juror declaration that he submitted with his motion 

for a new trial. We conclude that the declaration is inadmissible for 

this purpose and that Bess has otherwise failed to demonstrate that 

the deadlock instruction was coercive.

¶44 Utah courts have repeatedly upheld the use of deadlock 

instructions as a permissible way “to guide the jury to a fair and 

impartial verdict,” so long as the instruction is not coercive. See State 

v. Ginter, 2013 UT App 92, ¶ 6, 300 P.3d 1278 (quoting State v. Lactod, 

761 P.2d 23, 29–30 (Utah Ct. App. 1988) (internal quotation marks 

omitted)). In determining the constitutionality of a particular 

deadlock instruction, we consider (1) whether the language of the 

instruction is per se coercive, and (2) whether it is coercive under the 

circumstances presented in the case. See Lactod, 761 P.2d at 30–31.

¶45 Here, the jurors deliberated for approximately three hours

before notifying the court that they were deadlocked five votes to 

one in favor of conviction. To encourage further deliberation, the 

court recommended that it provide the jury with a deadlock 
STATE v. BESS

Opinion of the Court

14

instruction patterned after Model Utah Jury Instruction CR218. Bess 

objected and moved for a mistrial, which the court denied. When the 

jurors returned, the court asked them “to keep working at this for a 

time period” and stated that it would provide one final instruction. 

The instruction read:

The verdict must represent the considered judgment of 

each juror. In order to return a verdict, it is necessary 

that each juror agree. Your verdict must be unanimous. 

It is your duty to consult with one another and to 

deliberate. Your goal should be to reach an agreement 

. . . if you can do so without surrendering your 

individual judgment. Each of you must decide the case 

for yourself, but do so only after impartially 

considering the evidence with your fellow jurors. Do 

not hesitate to reexamine your own views and change 

your position if you are convinced [it] is a mistake. But 

do not surrender your honest conviction as to the 

weight or effect of the evidence solely because of the 

opinion of your fellow jurors, or just to return a verdict. 

You are judges, judges of the facts. Your sole interest is 

to determine the truth from the evidence of the case.

¶46 The jury continued deliberating for three more hours before 

it issued a unanimous guilty verdict. When polled, each juror 

confirmed that he or she agreed with the guilty verdict.

¶47 Bess concedes that the language of this deadlock 

instruction is not per se coercive. Instead, he argues that the 

instruction was coercive in light of the circumstances presented here. 

Nevertheless, Bess does not engage in any meaningful analysis of the 

circumstances surrounding the district court’s issuance of the 

instruction. Rather, he asks us to rely on the juror declaration to 

conclude that the instruction had a coercive effect. We decline to do 

so.

¶48 As previously stated, under the Utah Rules of Evidence, 

juror declarations are admissible to dispute the validity of a verdict 

only where “extraneous prejudicial information was improperly 

brought to the jury’s attention” or where “an outside influence was 

improperly brought to bear on any juror.” UTAH R. EVID. 606(b). 

Neither exception is applicable to decide whether a deadlock 

instruction had a coercive effect. See United States v. Black, 843 F.2d 

1456, 1464 n.7 (D.C. 1988) (providing that a verdict cannot be 
Cite as: 2019 UT 22

Opinion of the Court

15

impeached by a juror’s affidavit stating that “the anti-deadlock 

instructions were coercive”).

¶49 In relying solely on the inadmissible juror declaration to 

support his contention that the deadlock instruction was 

unconstitutionally coercive, Bess has failed to meet his burden of 

persuasion on appeal. See State v. Nielsen, 2014 UT 10, ¶¶ 33–44, 326

P.3d 645 (stating that parties who fail to adequately brief their 

arguments will likely fail to meet their burden of persuasion on 

appeal). In particular, Bess has not provided reasoned analysis 

supported by citations to the record to establish which 

circumstances, if any, demonstrate that providing the deadlock 

instruction was unconstitutionally coercive here. See UTAH R. APP. P.

24(a)(8). We therefore decline to further address this issue.

CONCLUSION

¶50 We conclude that under Utah Code section 76-10-506, 

self-defense and acting as a peace officer in performance of duties 

are both affirmative defenses, not elements of the offense. We also 

conclude that the juror declaration submitted by Bess was 

inadmissible under rule 606(b) of the Utah Rules of Evidence. 

Finally, we determine that Bess failed to prove the district court’s

deadlock instruction was unconstitutionally coercive under the 

circumstances presented in this case.

¶51 Accordingly, we affirm.