2018 UT App 62

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MICHAEL ROY PARKINSON,

Appellant.

Opinion

No. 20160237-CA

Filed April 12, 2018

Third District Court, Salt Lake Department

The Honorable Keith A. Kelly

No. 151902837

David M. Corbett, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES

DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Defendant Michael Roy Parkinson appeals his convictions 

for assault against a police officer and failing to respond to an 

officer’s command to stop. Defendant argues that his trial 

counsel provided ineffective assistance by proposing erroneous

jury instructions. Because Defendant has not demonstrated that 

any such errors were prejudicial, we affirm his convictions.

¶2 Two Murray City detectives, driving in unmarked police 

vehicles, initiated a traffic stop after Defendant followed the car 

in front of him too closely and failed to use his turn signal for at 
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20160237-CA 2 2018 UT App 62

least two seconds before changing lanes.1 Responding to the 

emergency lights and siren of the first detective’s vehicle, 

Defendant pulled over. The first detective approached the 

driver’s side of Defendant’s vehicle while the second detective

positioned himself at the passenger side. Both detectives were 

dressed in plain clothes, but the second detective had a badge 

visibly hanging from his neck on a lanyard. The first detective

explained why they pulled Defendant over and asked Defendant 

for his license, registration, and proof of insurance, which 

Defendant immediately provided.

¶3 While the first detective returned to his vehicle to check 

Defendant’s license, a sergeant arrived at the scene, also in plain 

clothes and wearing his badge on a lanyard around his neck. The 

sergeant had called Defendant’s parole officer, leaving a 

message that officers intended to search Defendant’s vehicle.

When he informed Defendant of his intent to search the vehicle 

pursuant to Defendant’s parole agreement, Defendant disagreed 

with the officers on whether they had the authority to do so, 

insisting that only his parole officer could conduct the search. 

The sergeant then attempted to coax Defendant out of the 

vehicle, to no avail. During the coaxing, Defendant asked the 

sergeant, “[W]ho are you, like what’s your name?” Defendant 

testified at trial that the sergeant told him his name and that he 

worked for Murray City Police.

 

1. “On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly.”

State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal 

quotation marks omitted). Defendant’s version of what 

happened during the traffic stop differs in several respects from 

the facts as viewed in the light most consistent with the jury’s 

verdict, but “[w]e present conflicting evidence only as necessary 

to understand issues raised on appeal.” Id.
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¶4 During the sergeant’s attempts to get Defendant to exit 

his vehicle, Defendant repeatedly revved the engine and reached 

for the gearshift knob. In a final attempt to get Defendant to exit 

the vehicle, the sergeant placed his hands on Defendant’s left 

hand and shoulder. The first detective returned to Defendant’s 

vehicle and reached over to try and turn off the ignition, but 

Defendant put the car into drive and “accelerated at a high rate 

of speed,” causing the first detective to grab hold of the steering 

wheel, forcing the car toward the curb. The driver’s side door 

shut on the sergeant and the first detective, causing them to be

dragged along the road. The officers yelled for Defendant to 

stop, but Defendant continued driving until he went up and 

over the curb. Dislodged from the car due to the impact with the 

curb, the first detective’s ankle hit the curb and his chest hit the 

rear door of the vehicle, and both the sergeant and the first 

detective fell under the vehicle.

¶5 Defendant drove away from the scene. He left his car in a 

nearby parking lot and departed on foot. He did not call 911 to 

report that he had been accosted by persons of questionable 

legitimacy. Instead, he made his way to a friend’s house and 

stayed there for a few days. He was arrested at his home four 

days after the incident and charged with two counts of assault 

on a peace officer, a second degree felony, see Utah Code Ann. 

§ 76-5-102.4(4) (LexisNexis 2017), and one count of failure to 

respond to an officer’s signal to stop, a third degree felony, see id.

§ 41-6a-210(1)(b)(i) (2014).

¶6 At trial, Defendant’s counsel proposed jury instructions 

on the elements of both crimes. The proposed assault instruction 

failed to include the statutory element that Defendant acted 

“with knowledge that the person is a peace officer.” Id. § 76-5-

102.4(2)(a) (2017). Likewise, Defendant’s proposed failure-torespond-to-officer’s-signal instruction did not include the mens 

rea requirements that Defendant “knowingly received a visual 

or audible sign from a police officer” and that Defendant 
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20160237-CA 4 2018 UT App 62

“intended to flee or elude a peace officer.” State v. Bird, 2015 UT 

7, ¶¶ 26‒27, 345 P.3d 1141 (internal quotation marks omitted)

(explaining that these are the mens rea requirements for a 

violation of Utah Code section 41-6a-210). The State did not 

point out that either of these instructions was incomplete, and 

the district court apparently did not notice their deficiency. 

A jury convicted Defendant on all counts. Defendant appeals.

¶7 Citing State v. Garcia, 2016 UT App 59, 370 P.3d 970, rev’d,

2017 UT 53, Defendant’s primary argument is that “[f]ailing to 

provide an accurate instruction upon the basic elements of an 

offense requires reversal.” See id. ¶ 23. This is a claim that we 

cannot consider on its own terms because the error was not 

brought to the attention of the district court and was therefore 

not preserved for appeal. On the contrary, it was an error invited 

by Defendant’s trial counsel, who submitted the instruction, and 

we will ordinarily not review invited errors. See, e.g., State v. 

Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (precluding appellate 

review of an invited error to deter “parties from intentionally 

misleading the trial court so as to preserve a hidden ground for 

reversal on appeal”) (citation and internal quotation marks 

omitted).

¶8 But we can consider the matter as it is framed by 

Defendant’s appellate counsel, in the context of an ineffective 

assistance of counsel claim. See State v. Johnson, 2017 UT 76, ¶ 22.2

“While such a claim necessarily requires the court to look at the 

 

2. Defendant’s appellate counsel astutely perceived the problems 

with the deficient jury instructions and has briefed the 

appeal thoroughly and effectively. But Defendant is dissatisfied 

with appellate counsel’s performance and has filed several 

motions seeking the appointment of new counsel. We are at a 

loss to understand Defendant’s dissatisfaction, and we deny

Defendant’s latest motion for the appointment of new counsel.
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20160237-CA 5 2018 UT App 62

substantive issue the defendant argues his counsel should have 

raised, and whether the substantive issue had any merit, the 

substantive issue is only viewed through the lens of counsel’s 

performance.” Id. We therefore consider only the issue of 

whether Defendant’s trial counsel provided constitutionally 

ineffective assistance by proposing jury instructions that failed to 

include the culpable mental state required for an assault of a 

peace officer and failure to stop or respond to an officer’s 

command. “When a claim of ineffective assistance of counsel is 

raised for the first time on appeal, there is no lower court ruling 

to review and we must decide whether the defendant was 

deprived of the effective assistance of counsel as a matter of 

law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 

(brackets, citation, and internal quotation marks omitted).

¶9 To prevail on an ineffective assistance of counsel claim, 

Defendant “must show: (1) that counsel’s performance was 

objectively deficient, and (2) a reasonable probability exists that 

but for the deficient conduct defendant would have obtained a 

more favorable outcome.” State v. Clark, 2004 UT 25, ¶ 6, 

89 P.3d 162. But we “need not determine whether counsel’s 

performance was deficient before examining the prejudice 

suffered by the defendant as a result of the alleged deficiencies.” 

Strickland v. Washington, 466 U.S. 668, 697 (1984). On the 

contrary, we can consider prejudice first. And because 

Defendant cannot demonstrate prejudice, as we discuss below,

we need not reach the issue of whether trial counsel’s 

performance was objectively deficient, although we note that the 

State essentially concedes that it was.

¶10 Defendant argues that failure to provide an accurate 

instruction on the basic elements of a crime cannot be harmless 

error and invariably requires reversal. We recognize that there 

are a number of cases, outside the ineffective-assistance-ofcounsel context, presuming that such an error “can never be 

harmless” and constitutes clear error, requiring reversal. See 
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State v. Jones, 823 P.2d 1059, 1061 (Utah 1991). Accord American 

Fork v. Carr, 970 P.2d 717, 720 (Utah Ct. App. 1998); State v. 

Stringham, 957 P.2d 602, 608 (Utah Ct. App. 1998); State v. Souza, 

846 P.2d 1313, 1320 (Utah Ct. App. 1993).

¶11 Our decision in State v. Liti, 2015 UT App 186, 355 P.3d 

1078, was one of the first in Utah to suggest that this rule does 

not hold true in the ineffective assistance of counsel context. Id.

¶¶ 21‒23. In Liti, the defendant argued that his trial counsel 

provided ineffective assistance by failing to object to an 

erroneous jury instruction. Id. ¶ 10. We recognized that to “merit

reversal of his conviction, [the defendant] must . . . demonstrate 

that his defense was prejudiced by trial counsel’s deficient 

performance—that there is a reasonable probability of a more 

favorable result absent the error.” Id. ¶ 21. And any uncertainty

regarding the prejudice standard for erroneous jury instructions 

raised under a claim of ineffective assistance of counsel was 

conclusively put to rest by the Utah Supreme Court in State v. 

Garcia, 2017 UT 53, when it made clear that “it is the defendant’s 

burden to show that he was prejudiced by his counsel’s 

performance.” Id. ¶¶ 37‒38. As the Court explained, any

suggestion that “a defendant need not show she was prejudiced 

by an erroneous jury instruction resulting from her counsel’s 

ineffective assistance” is “inconsistent with federal precedent.”

Id. ¶ 40. Prejudice is therefore “not shown automatically” nor is 

it presumed in jury instruction errors attributable to counsel’s 

deficient performance. Id. ¶ 36 (citing Weaver v. Massachusetts, 

137 S. Ct. 1899, 1911 (2017)).

¶12 Instead, the burden is on the defendant to demonstrate 

that “there is a reasonable probability that, absent the errors, the 

factfinder would have had a reasonable doubt respecting guilt.” 

Strickland, 466 U.S. at 695 (emphasis added). But “[i]t is not 

enough to show that the errors had some conceivable effect on 

the outcome of the proceeding. Counsel’s errors must be so 

serious as to deprive the defendant of a fair trial, a trial whose 
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20160237-CA 7 2018 UT App 62

result is reliable.” Harrington v. Richter, 562 U.S. 86, 104 (2011) 

(citations and internal quotation marks omitted). The high 

standard for prejudice therefore requires that the possibility of a 

different outcome “be substantial, not just conceivable.” Id. at 

112. We therefore “must ‘consider the totality of the evidence 

before the judge or jury’ and then ‘ask if the defendant has met 

the burden of showing that the decision reached would 

reasonably likely have been different absent the errors.’” Garcia, 

2017 UT 53, ¶ 42 (quoting Strickland, 466 U.S. at 695‒96).

¶13 The State was required to prove at trial that Defendant 

had “knowledge” that the officers were police officers and that 

he “knowingly received” a signal to stop from a police officer. 

See State v. Bird, 2015 UT 7, ¶¶ 20, 26, 345 P.3d 1141 (outlining 

the mens rea elements applicable to section 41-6a-210). Relying

on his own testimony at trial, Defendant argues that he did not 

know the officers were police officers because they never 

identified themselves as such, their badges were not visible, they

were dressed in plain clothes, and the stop lasted longer than 

normal. But for two main reasons, the evidence as a whole

demonstrates the unlikelihood that the jury would have had a 

reasonable doubt as to whether Defendant knew the three men 

were police officers under all the circumstances.3 See Utah Code 

 

3. Defendant argues that there is evidence of a reasonable 

probability of a different outcome because the district court 

believed there was sufficient evidence to justify submitting a 

self-defense instruction to the jury. The court’s decision to give 

this instruction rested on Defendant’s testimony that “he had 

serious questions about whether [the men] were police officers.” 

But the Utah Supreme Court stated in State v. Garcia, 2017 UT 53, 

that the standard for entitlement to a jury instruction “is in no 

way synonymous” with Strickland’s reasonable probability 

requirements. Id. ¶ 44. The “requirement of a ‘reasonable 

probability’ of a different outcome is a relatively high hurdle to 

(continued...)
State v. Parkinson

20160237-CA 8 2018 UT App 62

Ann. § 76-2-103(2) (LexisNexis 2017) (providing that “[a] person 

engages in conduct . . . [k]nowingly, or with knowledge, with 

respect to his conduct or to circumstances surrounding his 

conduct when he is aware of the nature of his conduct or the 

existing circumstances”).

¶14 First, Defendant testified that he pulled over because he 

saw emergency lights activated in the vehicle behind him. And

when asked for his license, registration, and insurance, he 

produced his documentation without question because he 

believed he was being given a ticket for a traffic violation. 

Although Defendant challenges the testimony of the officers that 

they were wearing badges and had identified themselves upon 

approaching Defendant in his vehicle, Defendant testified that 

he specifically asked the sergeant who he was and that the 

sergeant replied that he was with Murray City Police. And the 

sergeant told Defendant that, following consultation with his 

parole officer, whom the sergeant named, Defendant’s vehicle 

would be searched pursuant to his parole agreement—

 

(...continued)

overcome” compared to the lower hurdle a defendant must clear 

to have an instruction submitted to the jury upon request, which 

is “any reasonable basis in the evidence.” Id. (citation and 

internal quotation marks omitted). See also State v. Torres, 619 

P.2d 694, 695 (Utah 1980) (stating that a defendant is “entitled to 

have the jury instructed on the law applicable to [his] theory of 

the case if there is any reasonable basis in the evidence to justify 

it”). Although the district court allowed the self-defense 

instruction, this is of limited relevance for us, given the lower 

standard applicable to giving jury instructions when requested. 

We instead look beyond Defendant’s testimony to the totality of 

the evidence to determine whether there was a substantial 

likelihood of a different outcome had a proper elements 

instruction been given.
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20160237-CA 9 2018 UT App 62

Defendant’s parole status and the name of his parole officer

being the type of information that would be available to law 

enforcement officers but not to random mischief makers.

¶15 Second, Defendant’s behavior after fleeing the scene 

indicates that he knew he had been stopped by police officers. 

Defendant did not return home for four days, and during this 

time, he made no effort to report the incident and complain that 

he had been stopped by vigilantes, pranksters, or imposters 

posing as police officers.

¶16 It is exceedingly unlikely that based on the evidence 

before it, a properly instructed jury would have reasonably 

doubted whether Defendant knew that the two detectives and 

their sergeant were police officers. Because there is not a 

substantial possibility that a different verdict would have 

resulted from jury instructions containing the necessary mental 

states for each count, we conclude that Defendant did not suffer 

any prejudice as a result of the challenged jury instructions. His 

ineffective assistance of counsel challenges are, therefore, 

unavailing.

¶17 Affirmed.