2017 UT App 2

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

TIMOTHY NOBLE WALKER,

Appellant.

Opinion

No. 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, Attorneys

for Appellant

Sean D. Reyes and Marian Decker, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and KATE A. TOOMEY 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 agree and therefore vacate his 

conviction and remand for a new trial.
State v. Walker

20150317-CA 2 2017 UT App 2

BACKGROUND1

¶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. The couple then moved to Utah, bringing 

Wife’s teenage son (Son) with them. They stayed in hotels for a 

few days while Wife began work at her new location.

¶3 One evening the three were together in their hotel room.

Walker and Wife had been drinking and, sometime during the 

evening, Wife picked up Walker’s glass and poured his 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 pulled 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 free 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 

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

 

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

favorable to the jury’s verdict and 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

sides, 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 not 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 waken Wife and shift 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 afterward, she heard a knock on the door

when a police officer arrived.

¶8 The officer found 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. After the officer identified himself, Walker 

said, ‚I’m driving out of the state, don’t worry about me,‛ and 

hung up.

¶9 A paramedic evaluated 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 assault, 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 records from her doctor 

visit. Wife also testified that she was unaware of any 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 

Rothfeder 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

requires ‚a significant amount of force‛ and would result in a 

‚serious situation‛ from which the body would not 

‚automatically rebound.‛ Regarding suffocation, Rothfeder 

testified that lack of oxygen could cause 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 insults for a period, for 

that period of time.‛

¶12 Rothfeder also testified that putting pressure on a certain 

place on either 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 experiencing a rapid heart rate. But a 

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

. . . if [his or her] blood pressure drops too quickly.‛ According 

to Rothfeder, pressure on the carotid sinus for as little as ten to 

fifteen seconds could 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, the 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 offense, 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—the jury was 

required to find that Walker had intentionally, knowingly, or 

recklessly committed assault; used means or force likely to 

produce death 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 aggravated assault, a 

third degree felony, imposed the same requirements except that 

Walker need not have caused serious bodily injury. See id. § 76-5-

103(1), (2)(a). The requirements for the misdemeanor assault

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 violence and caused bodily injury or 

created a substantial risk of bodily injury. See id. §§ 76-2-102, 76-

5-102.
State v. Walker

20150317-CA 6 2017 UT App 2

¶15 ‚Serious bodily injury‛ was defined in accordance 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.‛ See id. § 76-1-601(11). ‚Bodily injury‛

was also defined according to the relevant statutory language as 

‚physical pain, illness[,] or an impairment of physical 

condition.‛ See id. § 76-1-601(3).

¶16 Over Walker’s objection, the jury received an additional 

instruction (Instruction 18) that did not mirror any statutory 

language but was based on two Utah Supreme Court cases 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). Instruction 18 stated, ‚You 

are instructed that strangulation 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.‛ His objection was overruled.

¶17 In closing argument, the prosecutor asserted that the 

‚paramount issue‛ was whether Wife ‚suffer[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 and then turned to Instruction 18, stating: ‚*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.‛ The prosecutor then asked, ‚Do you see 

what I mean when I said this just 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, after deliberating 

for more than an hour, the jury sent the court a note asking,

‚What is the definition of ‘constitutes’? As in [Instruction] 18.‛ 

The court responded, ‚Use the common and ordinary meaning 

of the word. A dictionary definition is to ‘amount to’ or ‘add up 

to.’‛ The jury continued deliberating 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 appeals.

ISSUE AND STANDARD OF REVIEW

¶19 Walker asserts that his federal constitutional right to a 

jury trial, as secured by the Sixth and Fourteenth Amendments

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 

Amendments if it instructs a jury how to find on an element of 

the offense.‛ Here, 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 to 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 criminal proceedings. U.S. Const. amend. VI 

(‚In all criminal prosecutions, the accused shall enjoy the right to 

a speedy and public trial, by an impartial jury . . . .‛). The 

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 Sixth 
State v. Walker

20150317-CA 8 2017 UT App 2

Amendment’s guarantee.‛ Duncan v. Louisiana, 391 U.S. 145, 149 

(1968). Read together, these provisions require criminal 

convictions in state 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.; cf. United 

States v. Gaudin, 515 U.S. 506, 510 (1995) (discussing the Fifth and 

Sixth Amendments in the context of a federal criminal 

proceeding). A state must therefore persuade the jury ‚of the 

facts necessary to establish each of those elements.‛ Sullivan v. 

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

¶21 Neither the legislature nor the judiciary may usurp the

jury’s role as fact-finder. While legislatures are largely ‚free to 

choose the elements that define their crimes,‛ Jones v. United 

States, 526 U.S. 227, 241 (1999), statutory directives that 

‚foreclose[] independent jury consideration of whether the facts 

proved establish[] certain elements of the offense[]‛ violate a 

defendant’s Fourteenth Amendment rights, see, 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 The judiciary likewise must take care not to step into the 

jury’s fact-finding shoes. While ‚it is the role of the judge to 

‘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 There is an exception to these principles for ‚pure 

question[s] of law,‛ which are not within the province of the jury 

and thus ‚cannot implicate 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 Amendment

purposes merely because the evidence is overwhelming and 

might be characterized as supporting 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 

malice 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 errs by instructing a jury that, as a matter of 

law, 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 unconsciousness 

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 offenses, the 

appellate court’s role in reviewing criminal proceedings, and the 

trial court’s role in instructing the jury.

¶26 Whether a defendant caused 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-finder’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 creates a substantial risk of death.‛). When 

the State brings charges and prosecutes a defendant for that 

offense, ‚it 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 (citation and internal quotation 

marks omitted), or used means or force likely to produce such 

injury, cf. id.

¶27 In addition, Utah appellate 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 (addressing 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, 2013 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 

capable 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 likely 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 

Supreme Court addressed a question of evidentiary

sufficiency—namely, whether sufficient evidence supported the 

defendant’s conviction of second degree murder under a 

statutory provision requiring that the defendant ‚inten*ded] to 
State 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 hands on the victim’s 

neck, that he intentionally squeezed her throat, 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. (internal quotation marks omitted).

Based on this reasoning, the supreme court concluded that the 

evidence amply supported the conviction, ‚holding that 

strangulation 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 the 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, the 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 whether 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 risks 

‚violating the requirement that criminal convictions must ‘rest 
State v. Walker

20150317-CA 13 2017 UT App 2

upon a jury determination that the defendant is guilty of every 

element 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 offenses. Id. at 190–91. That 

determination turned on whether ‚there [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, the Utah Supreme Court 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 

‚uncontroverted 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 

strangulation 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 instructions. Id. at 

190–91. But as in Fisher, the supreme court neither held nor 

addressed whether juries in subsequent cases would be required
State v. Walker

20150317-CA 14 2017 UT App 2

to find that strangulation or attempted strangulation constituted

serious bodily injury or force likely to cause such injury. See id.

And 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 regard 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 

entitled 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 is 

‚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 

bodily 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 fails. The Utah 

Supreme Court did not write ‚strangulation to unconsciousness‛ 

into the Legislature’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 ‚relieved 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 

error 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 the State has not 

argued that the jury instruction, if improper, was harmless

beyond a reasonable doubt. Thus, the State has not carried its 

burden in that regard. See State v. Draper-Roberts, 2016 UT App 

151, ¶ 39, 378 P.3d 1261.

¶38 Moreover, the improper instruction may well have played 

a role in the jury’s decision-making process. As Walker asserts, a 

juror could ‚naturally understand [Instruction 18] to mean that, 

as a matter of law, (1) strangulation constitutes force likely to 

cause serious bodily injury, and (2) unconsciousness caused by 

strangulation constitutes serious bodily injury.‛ 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 have been meaningful 

as to Walker’s conviction of the third degree felony.

¶39 During the trial, the jury heard unrebutted expert 

testimony that individuals may promptly 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 

treatment 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 ‚suffer[ed] serious bodily injury‛ and that ‚this 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 bodily 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 The 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 rights. 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.