20 1 7 UT App 2



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee , v. T IMOTHY N OBLE W ALKER , Appell ant

. Opinion N o. 20150317

- CA Filed January 6, 2017

Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 141904012
Lori J. Seppi and Michael R. Sikora , Attorney s

for Appellant Sean D. Reyes and Marian Decker , Attorney s

for Appellee

J UDGE J ILL M. P OHLMAN authored th is Opinion , in which J UDGES J. F REDERIC V OROS J R

. and K ATE A. T OOMEY concurred

.

POHLMAN , Judge :

¶1 Timothy Noble Walker asserts that he was denied his federal constitutional right to a jury trial with respect to a key element of the State’s case. We ag ree and therefore vacate his conviction and remand for a new trial

.State v. Walker

20150317

- CA 2 2017 UT App 2 BACKGROUND 1

¶2 Walker and his wife ( Wife ) had been married less than a month when Wife ’s employer transferred her job from South Carolina to Utah. T he couple then moved to Utah , bringing Wife’s teenage son (Son) with them

. T hey stayed in hotels for a few days while Wife began work at her new location.

¶3 One evening the three were together in the ir hotel room. Walker and Wi fe had been drinking and , sometime during the evening , Wife picked up Walker’s glass and poured hi s drink down the sink. Upset, Walker struck Wife in the face. She fell against the refrigerator, then stood up and walked around the hotel room , searching for something. She found the keys to the couple’s van in Walker’s clothing , and she put them in her pocket.

¶4 Walker approached Wife from behind and put his right wrist against her neck . He lifted her up with his right hand while reaching into her pocket with his left hand, attempting to get the keys. During the struggle that followed, Wife kicked at Walker and pu lled at his arm , trying to loosen his hold on her neck . But Walker used his left hand to reinforce his grip, and he lifted Wife completely off the floor

. Wife was unable to wrench free.

¶5 Son was sitting on a bed a few feet away

. He saw Wife struggling to fr ee herself and heard her making ‚choking sounds.‛ He told Walker to stop, but Walker persisted . Walker kept his wrist pressed against Wife’s neck until she suddenly exhale d

. Her eyes rolled back in her head , her arms fell to her

1 . ‚ On appeal, we review the record facts in a l ight most favorable to the jury’ s verdict an d recite the facts accordingly .‛ Mackin v. State , 2016 UT 47, ¶ 2 n.1 (citation and internal quotation marks omitted).State v. Walker

20150317

- CA 3 2017 UT App 2 side s , and her body went limp. She had been subject to Walker’s grip for approximately ten to fifteen seconds.

¶6 Walker abruptly let go and pushed Wife away. She fell face

- first against the wall and did n o t move. Walker began gathering his things. When Son asked him what he had done, Walker replied that he ‚didn’t do anything‛ and that Wife was ‚faking it‛ because she was a ‚drama queen.‛ Walker then walked out of the room. He drove away, ultimately returning to South Carolina.

¶7 Son attempted to wake n Wife and shif t her into a sitting position . He also called the police

. After about a minute, Wife began to regain her faculties. She heard Son crying and calling her name. Not long after ward , s he heard a knock on the door when a police officer arrived.

¶8 The officer foun d Son and Wife in the hotel room

. Wife was conscious but ‚didn’t appear *to be+ in the right state of mind , ‛ and the officer ‚couldn’t understand what she was saying at first.‛ After listening to Son’s description of the evening’s events, the officer called for medical assistance to evaluate Wife. He also photographed Wife’s injuries, which consisted of ‚visible injury‛ to her right eye and ‚red marks around her neck,‛ which ‚appeared to be swollen.‛ The officer also called Walker

. A fter the officer i dentified himself, Walker said , ‚I’m driving out of the state, don’t worry about me , ‛ and hung up.

¶9 A paramedic evaluate d Wife and asked if she wanted to go to the hospital, but Wife declined. However, Wife saw a doctor several days later and told him that she felt soreness and tenderness about her head, face, and neck

. She underwent testing and was told to ‚take it easy‛ and allow her body time to heal, but she was not prescribed any particular medical
treatment

.State v. Walker

20150317

- CA 4 2017 UT App 2 ¶10 Walker was charged with aggravated a ssault, a second degree felony

. See Utah Code Ann. § 76

- 5

- 103(2)(b) (LexisNexis 2012)

. 2 He elected to have the charge tried by a jury. Wife, Son, and the officer each testified for the State regarding the evening’s
events. During cross

- examination, Wife was asked about the medical documentation of her injuries . She testified that she had suffered a concussion and headaches, but she could not identify any reference to those injuries in the record s from her doctor visit. Wife also testified that she was unaware of a ny long

- term physical or medical complications resulting from the incident.

¶11 In defense, Walker elicited brief testimony from the paramedic, who stated that he had not characterized Wife ’s injuries as threatening life or limb. Walker also called Robert Roth feder as an expert witness on the subject of strangulation injuries. Rothfeder ’s testimony distinguished structural injuries to the neck from suffocation injuries to the brain

. According to Rothfeder, causing structural damage to a person’s trachea require s ‚a significant amount of force‛ and would result in a ‚serious situation‛ from which the body would not ‚automatically rebound.‛ R egard ing suffocation, Rothfeder testified that lack of oxygen could cau se brain injury or death after a ‚ number of minutes. Most people would say two to three minutes in an otherwise reasonably healthy person. . . . [But] [ t ] he brain can survive those kinds of insul t s for a period, for that period of time

. ‛

¶12 Rothfeder also testified that putting pressure o n a certain place on ei ther side of the neck

— on the carotid sinus

— would lead to a drop in blood pressure that could result in a person fainting . Rothfeder explained that medical professionals may massage the carotid sinus for therapeutic purposes

— for

2 . We reference the statutory provisions in effect in early 2014, when the events at issue occurred.State v. Walker

20150317

- CA 5 2017 UT App 2 example , to treat a person e xperiencing a rapid heart rate

. But a ‚complication of doing that ‛ is a person may ‚faint or pass out

. . . if [his or her] blood pressure drop s too quickly.‛ According to Rothfeder, p ressure on the carotid sinus for as little as ten to fifteen seconds cou ld cause a person to lose consciousness

. But if the pressure were removed, the person’s pulse would increase and he or she would quickly regain consciousness.

¶13 Following Rothfeder’s testimony , t he court instructed the jury , giving it four options. The jury could find Walker not guilty

or find him guilty of one of the following offenses : aggravated assault, a second degree felony; aggravated assault, a third degree felony; or assault, a class B misdemeanor. If Walker had committed more than one offen se , the jury was instructed to find him guilty of the most serious crime.

¶14 The instructions for the offenses largely tracked the relevant statutory language. For the most serious charge

— aggravated assault, a second degree felony

— t he jury was required to fin d that Walker had intentionally, knowingly, or recklessly committed assault; used means or force likely to produce d eath or serious bodily injury; and caused serious bodily injury. See Utah Code Ann. § § 76

- 2

- 102 , 76

- 5

- 103(1), (2)(b) (LexisNexis 2012)

. The instructions for a ggravated assault, a third degree felony, imposed the same requirements except that Walker need not have caused serious bodily injury

. See i d. § 76

- 5

- 103(1), (2)(a). The requirements for the misdemeanor a ssault charge , per the applicable statutory language , dropped any reference to ‚serious bodily injury

. ‛ See id. § 76

- 5

- 102

. The jury was instructed that Walker was guilty of misdemeanor assault if he had intentionally, knowingly, or recklessly committed an act with unlawful force or violen ce and caused bodily injury or created a substantial risk of bodily injury. See i d. § § 76

- 2

- 102 , 76

- 5

- 102.State v. Walker

20150317

- CA 6 2017 UT App 2 ¶15 ‚Serious bodily injury‛ was defined in accordan ce with its statutory meaning 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.‛ S ee id. § 76

- 1

- 601(11)

. ‚ B odily injury‛ was also defined according to the relevant statutory language as

‚ physical pain, il lness[,] or an impairment of physical condition.‛ See id. § 76

- 1

- 601(3)

.
¶16 O ver Walker’s objection, the jury received an additional instruction (Instruction 18) that did not mirror any stat utory language but was based o n two Utah Supreme Court cases that add ressed whether strangulation or attempted strangulation constituted serious bodily injury or force sufficient to cause such injury

. S ee State v. Speer , 750 P.2d 186 , 191 & n.4 (Utah 1988) ; State v. Fisher , 680 P.2d 35, 37 (Utah 1984)

. Instruction 18 stated, ‚ You are instruct ed that s trangulation to the point of unconsciousness constitutes serious bodily injury.‛ Walker objected that this instruction violated his right to have the jury ‚make *a+ determination of proof beyond a reasonable doubt on each and every element of the offense .‛ H is objection was overruled.

¶17 In closing argument , the prosecutor asserted that the ‚paramount issue‛ was whether Wife ‚suff er[ed] serious bodily injury.‛ Commenting that ‚this is the part where I’m going to ask you to follow the law,‛ the prosecutor walked the jury through the statutory definitions of bodily injury and serious bodily injury a nd then turned to Instruction 18 , stating : ‚*T+he next instruction gives you a fu rther definition of what the law recognizes as serious bodily injury. It says, you are instructed that strangulation to the point of unconsciousness constitutes serious bodily injury.‛ The prosecutor then asked, ‚Do you see what I mean when I said this jus t comes down to your ability to follow the law?‛State v. Walker

20150317

- CA 7 2017 UT App 2 ¶18 The case was submitted to the jury and, a fter deliberating for more than an hour, the jury sent the court a note asking , ‚What is the definition of ‘constitutes’? As in [I nstruction ] 18. ‛ The court responded , ‚Use the common and ordinary meaning of the word. A dictionary definition is to ‘amount to’ or ‘add up to.’‛ T he jury continued deliberat ing for about another hour and a half before reaching its verdict. The jury acquitted Walker of the most serious offense but found him guilty of aggravated assault, a third degree felony

. Walker appeal s

.

ISSUE AND STANDARD O F REVIEW

¶19 Walker asserts that his federal constitutional right to a jury trial, as secured by the Sixth and Fourteenth Amendment s to the United States Constitution , was violated when the trial court instructed the jury that ‚strangulation to the point of unconsciousness constitutes serious bodily injury

. ‛ According to Walker, a trial court ‚violates the Sixth and Fourteenth Amendme nts if it instructs a jury how to f ind on an element of the offense. ‛ H ere , Walker claims that if the jury found that he choked Wife and she lost consciousness, even briefly, the jury was required to find that he used force likely t o produce serious bodily injury

. Walker’s challenge to the jury instruction presents a question of law, which we review for correctness. See State v. Jeffs , 2010 UT 49, ¶ 16, 243 P.3d 1250.

ANALYSIS

¶20 The Sixth Amendment protects a defendant’s right to trial by jury in federal crim inal proceeding s. U.S. Const. amend. VI (‚I n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury

. . . . ‛). T he Fourteenth Amendment guarantees that right to criminal defendants in state courts

— i.e., those who , ‚ were they to be tried in a federal court [,] would come within the SixthState v. Walker

20150317

- CA 8 2017 UT App 2 Amendment’s guarantee.‛ Duncan v. Louisiana , 391 U.S. 1 45, 149 (1968). Read together, these provisions require criminal convictions in sta te proceedings to rest upon a jury determination that the defendant is guilty of every element of the crime charged, beyond a reasonable doubt

. See id. ; c f. United States v. Gaudin , 515 U.S. 506, 510 (1995) (discussing the Fifth and Sixth Amendments in the context of a federal crimin al proceeding). A state must therefore persuade the jury ‚ of the facts necessary to e stablish each of those elements

. ‛ Sullivan v. Louisiana , 508 U.S. 275 , 278 (1993). 3

¶21 Neither the legisla ture nor the judiciary may usurp the jury’s role as fact

- finder. While l egislatures are largely ‚free to choose the elements that define their crimes , ‛ Jones v. U nited States , 526 U.S. 227, 241 (1999) , s tatutory directives that

‚ foreclose [] independent jury consideration of whether the facts proved establish [] certain e lements of the offense[] ‛ violate a defendant’s Fourteenth Amendment rights
, s ee , e.g. , Carella v. California , 491 U.S. 263, 266 (1989) (per curiam).

¶22 For example, a jury instruction that ‚*t+ he law presumes that possession of property recently stolen, when no satisfactory explanation of such possession is made, shall be deemed prima facie evidence that the person in possession stole the property ,‛ although tracking statutory language, creates an impermissible mandatory presumption

. State v. Crowley , 2014 UT App 33, ¶¶ 3, 8

– 13, 16, 320 P.3d 677 (internal quotation marks omitted) (holding the instruction unconstitutional because it lacked

‚ language clarifying that the jury [was] allowed to make a

3 . Moreover, following Apprendi v. New Jersey , 530 U.S. 466 (2000), and Blakely v. Washington , 542 U.S. 296 (2004), ‚ every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. ‛ Blakely , 542 U.S. at 313 (emphasis omitted).State v. Walker

20150317

- CA 9 2017 UT App 2 permissive inference, and because the instruction contain [ed] the confusing words ‘ prima facie ’ with no supporting explanation ‛ )

. ‚Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth

- finding task assigned solely to juries in criminal cases.‛ See Carella , 491 U.S . at 265 ( concluding that jury instructions incorporating statutory presumptions violated the Fourteenth Amendment) ; see also, e.g. , Sandstrom v. Montana , 442 U.S. 510 , 518 & n.6 , 524 (1979) (same).

¶23 T he judiciary likewise must take care not to step into th e jury’s fact

- finding shoes. While ‚ it is the role of the judge t o ‘instruct the jury on the law , ’‛ State v. Palmer , 2009 UT 55, ¶ 14 , 220 P.3d 1198 (quoting Gaudin , 515 U.S. at 513 ), it is the jury’s constitutional prerogative to determine the facts and ‚to apply the law to those facts and draw the ultimate conclusion of guilt or innocence,‛ Gaudin , 515 U.S. at 514

. A judge , therefore, may not direct a verdict for the State, in whole or in part, no matter how damning the evidence. See Sullivan , 508 U .S. at 277

.
¶24 T here is an exception to these principles for ‚pure question[s] of law, ‛ which are not within the province of the jury and thus ‚ cannot impl icate the right to a jury trial. ‛ Palmer , 2009 UT 55, ¶ ¶ 14

– 18 (concluding that the timing of a defendant ’s conviction

— either at the time of sentencing or at the time he pleaded guilty

— was a pure question of law for the judge to decide)

. But a fact question , or a mixed question of law and fact , does not morph into a pure legal question for Sixth Amen dment purposes merely because the evidence is overwhelming and might be characterized as support ing only one reasonable conclusion as a matter of law. Cf. Rose v. Clark , 478 U.S. 570 , 579

– 82 & n.10 (1986) ( suggesting that instructing a jury to presume mali ce or intent is error even if that ‚inference is overpowering‛ and it would ‚defy common sense‛ to conclude otherwise ), abrogated on other grounds by Brecht v. Abrahamson , 507 U.S. 619 (1993). Thus, a court err s by instructing a jury that, as a matter of l aw, a bicycle path is a public park constituting a drug

- free zone ,State v. Walker

20150317

- CA 10 2017 UT App 2 State v. Davis , 2007 UT App 13, ¶ 12, 155 P.3d 909 , or by determining that a defendant is a ‚Category I restricted person‛ barred from possessing a firearm, State v. Liti , 2015 UT App 186, ¶¶ 25

– 26, 355 P.3d 1078.

¶25 In this case , the trial court instructed the jury that ‚strangulation to the point of unconsciousness constitutes serious bodily injury , ‛ relying on two Utah Supreme Court opinions that addressed whether strangulation or attempted strangulation constituted serious bodily injury or force sufficient to cause such injury. See State v. Speer , 750 P.2d 186, 191 & n.4 (Utah 1988) ; State v. Fisher , 680 P.2d 35, 37 (Utah 1984)

. But as set forth below, whether strangulation to unconsciousnes s constitutes serious bodily injury is not a pure legal question

. The matter is within the province of the jury and, in urging us to conclude otherwise, the State fails to properly distinguish the Legislature’s role in defining elements of criminal offense s , the appellate court’s role in reviewing criminal proceedings , and the trial court’s role in instructing the jury.

¶26 Whether a defendant cau sed serious bodily injury or used means or force likely to produce such injury, for purposes of an aggravated assault offense, is a question for the jury to decide based on the facts presented in the case before it

. The Utah Code sets forth the elements of aggravated assault and provides a legal definition of the term ‚serious bodily injury‛ to guide the fact

- find er’s inquiry

. Utah Code Ann. § § 76

- 5

- 103, 76

- 1

- 601(11) (LexisNexis 2012) (‚‘ Serious bodily injury ’ means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or c reates a substantial risk of death. ‛). When the State brings charges and prosecutes a defendant for that offense , ‚ i t is within the province of the jury to consider the means and manner by which the victim’s injuries were inflicted along with the attendant circumstances in determining whether a defendant caused serious bodily injury,‛ see State v. Bloomfield ,State v. Walker

20150317

- CA 11 2017 UT App 2 2003 UT App 3, ¶ 18, 63 P.3d 110 (ci tation an d internal quotation marks omitted), or used means or force likely to produce such injury , c f. id.

¶27 In add ition, Utah appell ate courts have routinely noted in similar contexts that this type of fact

- intensive question must be put to the jury. See, e.g. , Mackin v. State , 2016 UT 47, ¶ 28 (‚Whether in the course of committing a robbery a defendant uses an item in a way that is capable of causing death or serious bodily injury is a question of fact for the jury.‛); State v. Pham , 2016 UT App 105, ¶ ¶ 20

– 22, 372 P.3d 734 (ad dressing whether a jury could reasonably conclude that a shooting resulted in serious bodily injury by creating a substantial risk of death, relying on Bloomfield , 2003 UT App 3, ¶ 18 ) , cert. granted , 384 P.3d 567 (Utah Sept. 12, 2016) ; State v. Ekstrom , 2 013 UT App 271, ¶¶ 18

– 26 , 316 P.3d 435 ( reversing the defendant’s conviction because the statutory definition of ‚serious bodily injury‛ was not given to the jury tasked with deciding whether the defendant committed aggravated assault by using an item capa ble of causing serious bodily injury or by using other means or force likely to produce death or serious bodily injury ).

¶28 The State nevertheless asserts that the Utah Supreme Court has limited the jury’s role with regard to one type of serious bodily injury and the use of force li kely to produce it

. According to the State, ‚the Utah Supreme Court has long held that strangulation to unconsciousness constitutes serious bodily injury as a matter of law , ‛ and the State therefore asserts that a jury instruction incorporating that proposition must be upheld. We do not believe the cases cited by the State require that result

.
¶29 In State v. Fisher , 680 P.2d 35 (Utah 1984), the Utah S upreme C ourt addressed a question of evidentiary sufficiency

— namely, whether s ufficie nt evidence support ed the defendant’s conviction of second degree murder under a statutory provision requiring that the defendant ‚inten*d ed ] toState v. Walker

20150317

- CA 12 2017 UT App 2 cause serious bodily injury.‛ Id. at 37. Because the defendant ‚testified that he intentionally placed his hand s on the victim’s neck, that he intentionally squeezed her t hroat, and that he intended to get her to go unconscious,‛ the defendant ‚intentionally committed an act that is dangerous to human life (strangulation), intending to cause serious bodily injury ( protracted loss or impairment of both the heart and the brain, i.e., unconsciousness).‛ Id. (inter nal quotation marks omitted). Based on this reasoning, t he supreme court concluded that the evidence amply supported the conviction , ‚ holding that strangulati on constitutes ‘serious bodily injury

. ’‛ Id. at 37

– 38.

¶30 Notwithstanding the categorical sweep of Fisher ’s language, the opinion held that strangulation with intent to cause unconsciousness was , at least under the circumstances of that case, ‚virtually conclusive‛ of ‚ intent to inflict serious bodily injury. ‛ Id. But t he Fisher court did not hold

— or even address

— whether juries in subsequent cases should be instructed that if a defendant strangles another with intent to cause unconsciousness, t he jury must find that the defendant intended to cause serious bodily injury. See id. at 36

– 38. In light of the categorical phrasing in Fisher , the trial court’s decision to instruct the jury as it did was understandable. Nevertheless, it was incorrect.

¶31 ‚* T]here is a distinction between determining wheth e r the evidence [is] sufficient to support a plea or conviction . . . and instructing the jury as a matter of law that an element of the offense has been established

. . . .‛ State v. Moore , 699 N.W.2d 733, 737 ( Minn. 2005). While the State would have us interpret Fisher as addressing both questions, the supreme court’s discussion does not indicate that it was addressing the latter issue or that it intended its conclusion , based on the facts of that case, to be used as a jury instruction in future cases

. We see no reason to read Fisher so broadly , particularly when doing so risk s ‚violat ing the requirement that criminal convictions must ‘restState v. Walker

20150317

- CA 13 2017 UT App 2 upon a jury determination that the defendant is guilty of every elem ent of the crime with which he is charged, beyond a reasonable doubt.’‛ Id. (quoting United States v. Gaudin , 515 U.S. 506, 510 (1995)). The State’s reliance on Fisher is thus misplaced

.
¶32 The State’s reliance on State v. Speer , 750 P.2d 186 (Utah 1988), is similarly unavailing. In Speer , the defendant was convicted of aggravated assault and aggravated burglary

. Id. at 188. At issue on appeal was whether the jury should also have been instructed on lesser offense s

. Id. at 190

– 91. That determination turned on whether ‚ the re [was] a rational basis for a verdict acquitting the defendant of the offense [s] charged and convicting him of the included offense [s] .‛ Id. at 190 (citation and internal quotation marks omitted).

¶33 Citing evidence of strangulation or attempted strangulation, t he Utah S upreme C ourt concluded that the requisite rational basis was lacking. Id. at 191. Because the ‚defendant admitted choking *the victim+ about the throat until, by her testimony, she almost passed out,‛ there was ‚uncontro verted testimony establish[ing] that [the defendant] used force likely to cause death or serious bodily injury.‛ Id. (citation and internal quotation marks omitted). There was thus ‚no theory of the evidence that would have supported a verdict acquitting [ the defendant] of aggravated burglary or aggravated assault and convicting him of the lesser offenses.‛ Id. In support of this conclusion, the supreme court stated in a footnote, ‚See State v. Fisher , 680 P.2d 35, 37 (Utah 1984), where we held that strangu lation constitutes ‘serious bodily injury.’‛ Speer , 750 P.2d at 191 & n.4.

¶34 The Utah Supreme Court thus concluded, based on the circumstances before it, that the evidence did not trigger the trial court’s obligation to provide lesser offense instruction s

. I d. at 190

– 91

. But a s in Fisher , the supreme c ourt neither held nor addressed whether juries in subsequent cases would be requiredState v. Walker

20150317

- CA 14 2017 UT App 2 to find that strangulation or attempted strangulation constitute d serious bodily injury or force likely to cause such injury

. See id. A nd as set forth above, such a requirement would be improper

.
¶35 While the strength of the State’s evidence may be a crucial factor with re gard to lesser offense instructions , it does not provide grounds for removing an element of an offense from the jury’s consideration

. See Rose v. Clark , 478 U.S. 570 , 581

– 82 & n.10 (1986) (noting that ‚*s+ tates are not constitutionally required to instruct juries about lesser included offenses where such instructions are not warranted by the evidence,‛ but even when the evidence is ‚overpowering,‛ instructing the jury that an element of the offense may be presumed would still be error) , abrogated on other grounds by Brecht v. Abrahamson , 507 U.S. 619 (1993)

. An appellate court may hold that a defendant is not entitle d to a lesser included offense instruction because, under the circumstances of that case, there is no ‚question of fact as to whether [the injury] is mere bodily harm or great bodily harm‛

— it ‚constitutes great bodily harm.‛ State v. Brice , 80 P.3d 1113, 1117 (Kan

. 2003) (citation and internal quotation marks omitted). But an appellate court’s statement that an injury i s ‚great bodily harm‛ as a matter of law is not ‚precedent*+ for the trial judge’s instructing the jury that [such an injury] is great bodi ly harm.‛ Id. at 1123. ‚It *may seem+ a fine point, but *it is+ one that due process requires.‛ Id.

¶36 Thus , here again , the State’s argument fail s. T he Utah Supreme Court did not write ‚strangulation to unconsciousness‛ into the L egislature’s definition of ‚ serious bodily injury .‛ And the instruction to that effect violated Walker’s federal constitutional rights because it ‚foreclose*d+ independent jury consideration of whether the facts proved established [a] certain element*+ of the offense*+‛ and thus ‚ rel ieved the State of its burden of

. . . proving by evidence every essential element of [the] crime beyond a reasonable doubt .‛ See Carella v. California , 491 U.S. 263, 266 (1989) (per curiam).State v. Walker

20150317

- CA 15 2017 UT App 2 ¶37 ‚ If a defendant preserves a claim of federal constitutional

erro r at trial and establishes a constitutional violation on appeal, the burden shifts to the State to demonstrate that the error was harmless beyond a reasonable doubt. ‛ State v. Sanchez , 2016 UT App 189, ¶ 33, 380 P.3d 375 (citing cases, including Chapman v. California , 386 U.S. 18, 24 (1967) , and State v. Calliham , 2002 UT 86, ¶ 45, 55 P.3d 573 ) , petitions for cert. filed , Oct. 27 , 2016 (No. 20160891) and Oct. 31, 2016 (No. 20160911) ; see also Neder v. United States , 527 U.S. 1, 6, 8

– 15 (1999)

. Here t he State has n ot argued that the jury instruction , if improper, wa s harmless beyond a reasonable doubt

. Thus, t he State has not carried its burden in that regard

. See State v. Draper

- Roberts , 2016 UT App 151, ¶ 39, 37 8 P.3d 1261.

¶38 Moreover, the improper instru ction may well have played a role in the jury’s decision

- making process. As Walker asserts, a juror could ‚ naturally understand [ I nstruction 18 ] to mean that, as a matter of law, (1) strangulation constitutes force likely to cause serious bodily injury, an d (2) unconsciousness caused by strangulation constitutes serious bodily inju ry.‛ While the instruction did not lead the jury to convict Walker of the most serious offense, the second degree felony, the record demonstrates that the instruction still may ha ve been meaningful as to Walker’s convictio n of the third degree felony.

¶39 During the trial, the jury heard unrebutted expert testimony that individuals may prompt ly recover from temporary unconsciousness induced by brief pressure on the carotid sinus. The jury also heard undisputed testimony that Wife was choked for approximately ten to fifteen seconds, regained consciousness fairly quickly , declined to go to the hospital immediately thereafter, was not given specialized
t reatment during a subsequent doctor visit, and was unaware of any long

- term physical or medical complications resulting from the altercation

.State v. Walker

20150317

- CA 16 2017 UT App 2 ¶40 In closing argument, the prosecutor emphasized Instruction 18 , stating that the ‚paramount issue‛ was whether Wife ‚s uffer[ed] serious bodily injury ‛ and that ‚ t his is the part where I’m going to ask you to follow the law.‛ After discussing the statutory definitions of bodily injury and serious bodily injury, the prosecutor continued: ‚ [T] he next instruction gives you a further definition of what the law recognizes as serious bodily injury. It says, you are instructed that strangulation to the point of unconsciousness constitutes serious bodily injury. ‛ ‚ Do you see what I mean ,‛ the prosecutor asked, ‚when I said this just comes down to your ability to follow the law?‛

¶41 After the case was submitted, the jury’s sole question sought guidance on the meaning of ‚constitutes‛ as used in Instruction 18: ‚*S+trangulation to the point of unconsciousness constitutes serious bodil y injury.‛ (Emphasis added.) Given the jury’s question, the prosecution’s closing argument, and the evidence at trial, we conclude that the jury instruction was not harmless beyond a reasonable doubt with regard to whether Walker used means or force likely to produce death or serious bodily injury

. See State v. Crowley , 2014 UT App 33, ¶¶ 18

– 19, 320 P.3d 677.

CONCLUSION

¶42 T he jury instruction given in this case relieved the State of its burden of proving, beyond a reasonable doubt, the facts necessary to establish every element of the crime for which Walker was convicted. The instruction thus violated Walker’s Sixth and Fourteenth Amendment rig hts . Because the State has not demonstrated that the instruction was harmless beyond a reasonable doubt , we vacate Walker’s conviction for aggravated assault and remand for a new trial.