2016 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MAX EDWARD DOZAH,

Appellant.

Opinion

No. 20130771-CA

Filed January 22, 2016

Third District Court, Salt Lake Department

The Honorable Robin W. Reese

No. 111900666

Lori J. Seppi, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGE JOHN A. PEARCE concurred.1JUDGE J. FREDERIC 

VOROS JR. concurred, except as to Part II, in which he concurred 

in the result, with opinion.

CHRISTIANSEN, Judge:

¶1 Defendant Max Edward Dozah appeals from his 

convictions for aggravated kidnapping and aggravated assault, 

arguing that the district court erred by denying his requested 

compulsion instruction and in responding to a question from the 

 

1. Justice John A. Pearce began his work on this case as a 

member of the Utah Court of Appeals. He became a member of 

the Utah Supreme Court thereafter and completed his work on 

the case sitting by special assignment as authorized by law. See

generally Utah R. Jud. Admin. 3-108(3).
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jury during deliberation without consulting counsel. We reverse 

the district court’s ruling denying Defendant’s motion for a new 

trial, vacate his convictions, and remand the case for further 

proceedings consistent with this opinion.

BACKGROUND

¶2 On appeal from a jury verdict, we view the evidence and 

all reasonable inferences in the light most favorable to that 

verdict and recite the facts accordingly. State v. Clark, 2014 UT 

App 56, ¶ 2, 322 P.3d 761. We include conflicting evidence as 

relevant and necessary to understand the issues on appeal. See 

State v. Losee, 2012 UT App 213, ¶ 2 n.2, 283 P.3d 1055.

¶3 The central witness, Kelly, was both a user and seller of 

methamphetamine. As of January 2011, he owed $400 to his 

supplier. To clear the debt, Kelly agreed to go with the supplier’s 

boyfriend, Chris, and another man to conduct a drug transaction 

at another person’s house. When the three arrived at the house, 

they met a fourth man, David. David knocked Kelly 

unconscious. When he awoke, Kelly found himself tied to a 

chair. The trio of assailants assaulted Kelly and threatened him 

by telling him he ‚was done‛ and ‚wasn’t going to make it 

through the night.‛ At some point, Chris and the unnamed man 

left. While they were gone, ‚all sorts of people‛ ‚paraded‛ 

through the house, including David’s sister, who sprayed bleach 

in Kelly’s eyes.

¶4 Defendant then arrived with Chris. Kelly testified that 

Defendant ‚said it looks like you pissed the wrong people off.‛ 

Defendant also repeated that Kelly ‚was done‛ and ‚wasn’t 

going to make it through the night.‛ Defendant did not 

physically assault Kelly and was not present when others 

assaulted Kelly.

¶5 Defendant conveyed a message from the drug supplier 

that Kelly would ‚have to die or be gone.‛ Chris and Defendant 

discussed putting Kelly on a bus and asked him where he would 
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like to go. Kelly responded that he wanted to go to Elko, 

Nevada. The men then untied Kelly and escorted him to the 

backseat of the supplier’s car. Defendant drove the car, with 

Chris in the front passenger seat.

¶6 Kelly testified that, during the drive, Defendant told him 

that he was ‚going to die for messing with [the supplier].‛ 

Defendant said he had a lead pipe and was going to ‚bust‛ 

Kelly’s kneecaps and leave him ‚for dead.‛ After driving up 

Parley’s Canyon and turning off onto a side road, they 

encountered a road closure due to snow. Defendant yelled at 

Chris that they had chosen the wrong road; Chris replied, ‚This 

is fine . . . just do it.‛ Defendant took Kelly out of the car and 

yelled that he was going to kill Kelly. Chris held a piece of pipe 

out of the car window but Defendant never took it. Defendant 

got back in the car and drove off.2 Left in a remote location in 

below-freezing weather, wearing only a t-shirt, pants, and shoes, 

Kelly managed to walk down to an open road where he was 

eventually rescued. The responding officer noted that Kelly’s 

face was injured and swollen and that Kelly looked like he had 

been beaten up. The officer also noted that the temperature was 

twenty degrees Fahrenheit.

¶7 At trial, Defendant argued that he had not been the 

instigator of the crimes against Kelly. He testified that the 

supplier had asked him to go to the house because she ‚was 

scared that something was going to happen.‛ When he arrived, 

he saw that Kelly had been beaten up and was tied to a chair. 

Defendant admitted that he ‚should have turned around and 

walked away‛ but did not. He testified, ‚I didn’t know what was 

going to happen. I didn’t know if they were going to pull a gun 

on me. I didn’t know if I was the next one in the chair, I didn’t 

know what to do.‛ Defendant further testified that he then 

‚inserted‛ himself into the discussions regarding what to do 

 

2. Kelly thought Defendant might have been scared off by the 

sound of snowmobiles.
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with Kelly because he ‚didn’t want *Kelly+ to get beat up any 

more‛ and ‚didn’t want to get beat up‛ himself. Defendant 

stated that when he first suggested untying Kelly, Chris 

threatened Defendant with being ‚the next one in the chair.‛

¶8 According to Defendant, Kelly stated that if they bought 

him a bus ticket to Elko, they would never see him again. 

Defendant volunteered to drive Kelly to the bus station and to 

buy Kelly’s ticket. Chris eventually agreed to this plan, provided 

he could go along. However, when they started driving, Kelly 

asked Defendant and Chris to take him to a friend’s house 

instead.3 Defendant testified that Kelly directed them to the 

closed road and got out of the car on his own. Defendant stated 

that he was not worried about Kelly, because Kelly ‚was close 

enough to the freeway that he could get home.‛

¶9 Before trial, Defendant asked that the jury be instructed as 

to the affirmative defense of compulsion. However, after the 

defense rested, the district court declined to so instruct the jury

because the court did not see a basis for the instruction in the 

evidence:

I frankly don’t see any evidence, not 

even . . . twisting it in any imaginable way as 

you’ve suggested the jury could that would 

suggest that [Defendant] was compelled to do 

anything. The State’s witnesses have said he was a 

willing participant, at least [Kelly] has and 

*Defendant+ said I didn’t do anything, I was 

nothing more than a bystander, in fact more than a 

bystander, I was a good Samaritan, I was trying to 

rescue [Kelly] . . . . I can’t even see in any way that 

the jury could say that [Defendant] was a part of 

this. Yes. He was participating in all of this. Yes. 

 

3. Defendant did not testify as to Chris’s reaction to this change 

of plans.
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And when he was told not to untie [Kelly] that 

somehow could be . . . read as that he was being 

coerced into participating in the aggravated 

kidnaping, the aggravated robbery and aggravated 

assault. I just frankly don’t see it. It’s just too much 

of a leap. So I won’t give that instruction.

As a result of the district court’s ruling on his compulsion 

instruction request, Defendant did not detail a compulsion 

defense in his closing argument.

¶10 After the jury began deliberating, it sent a note to the 

court. The note asked for the definition of aggravated assault 

and asked whether leaving Kelly on the closed road constituted 

aggravated assault. The district court did not alert counsel to the 

jury’s question and instead sent a written response back to the 

jury. The court’s response told the jury to look to the jury 

instructions for a definition of aggravated assault. The response 

also explained, ‚The other question, must be decided without 

my help. It is for the jury to decide.‛ Upon learning of the jury’s 

question and the district court’s response after the jury returned 

a verdict, Defendant’s counsel objected and filed a motion for a 

new trial. After oral argument on that motion, the district court 

denied Defendant’s motion for a new trial.

¶11 The jury convicted Defendant of aggravated kidnapping 

and aggravated assault. Defendant timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶12 Defendant first contends that the district court erred by 

refusing to instruct the jury on compulsion. We review a district 

court’s refusal to give a requested jury instruction for 

correctness. State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d 1116.

¶13 Defendant next contends that the district court erred by 

giving an incorrect supplemental instruction. Whether a given 

jury instruction correctly states the law is reviewable under a 
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20130771-CA 6 2016 UT App 13

correction of error standard, with no particular deference given 

to the district court’s ruling. State v. Archuleta, 850 P.2d 1232, 

1244 (Utah 1993); State v. Lee, 2014 UT App 4, ¶ 7, 318 P.3d 1164.

¶14 Defendant also contends that the district court erred in 

denying his motion for a new trial, because the district court

violated his right to be present, right to due process, and right to 

the assistance of counsel when the court provided a 

supplemental instruction to the jury without consulting 

Defendant’s counsel. ‚We will not reverse a trial court’s denial of 

a motion for a new trial absent a clear abuse of discretion.‛ State 

v. Maestas, 2012 UT 46, ¶ 103, 299 P.3d 892. But we ‚review the 

legal standards applied by the trial court in denying such a 

motion for correctness and review the trial court’s factual 

findings for clear error.‛ Id. (citation and internal quotation 

marks omitted).

ANALYSIS

I. Compulsion Instruction

¶15 Defendant contends that he was entitled to have the jury 

instructed as to compulsion and that the district court therefore 

erred by refusing to give such an instruction to the jury.

¶16 Compulsion is an affirmative defense. Utah Code Ann. 

§§ 76-2-302, -308 (LexisNexis 2012). ‚When a criminal defendant 

requests a jury instruction regarding a particular affirmative 

defense, the court is obligated to give the instruction if evidence 

has been presented—either by the prosecution or by the 

defendant—that provides any reasonable basis upon which a 

jury could conclude that the affirmative defense applies to the 

defendant.‛ State v. Low, 2008 UT 58, ¶ 25, 192 P.3d 867. 

‚However, a court need not instruct the jury on the requested 

affirmative defense where the evidence is so slight as to be 

incapable of raising a reasonable doubt in the jury’s mind as to 

whether the defendant acted in accordance with that affirmative 

defense.‛ State v. Burke, 2011 UT App 168, ¶ 81, 256 P.3d 1102 
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20130771-CA 7 2016 UT App 13

(brackets, ellipsis, citation, and internal quotation marks 

omitted). And ‚when a defendant presents no evidence relating 

to an affirmative defense, a court may not instruct the jury on 

that affirmative defense.‛ Low, 2008 UT 58, ¶ 28. Consequently, 

in order to prove that he was entitled to a compulsion defense 

instruction, Defendant must demonstrate that some evidence 

was put before the jury to show that he was compelled to engage 

in the criminal acts with which he was charged.

¶17 Utah Code section 76-2-302 explains when the defense of 

compulsion is available:

(1) A person is not guilty of an offense when he 

engaged in the proscribed conduct because he was 

coerced to do so by the use or threatened imminent 

use of unlawful physical force upon him or a third 

person, which force or threatened force a person of 

reasonable firmness in his situation would not 

have resisted.

(2) The defense of compulsion provided by this 

section shall be unavailable to a person who 

intentionally, knowingly, or recklessly places 

himself in a situation in which it is probable that he 

will be subjected to duress.

Utah Code Ann. § 76-2-302(1), (2). To assert the affirmative 

defense of compulsion, ‚the defendant [must have been] faced 

with a specific, imminent threat of death or serious bodily 

injury‛ to himself or a third person and the defendant must have 

had ‚no reasonable legal alternative to violating the law.‛ State 

v. Ott, 763 P.2d 810, 812 (Utah Ct. App. 1988) (citing State v. 

Tuttle, 730 P.2d 630, 634–35 (Utah 1986)).

¶18 Defendant first argues that the specific imminent threat 

he faced was contained in Chris’s statement made to Defendant

that Defendant ‚could be the next one in the chair‛ if he untied 

Kelly. The State notes that Defendant’s testimony regarding 
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20130771-CA 8 2016 UT App 13

whether this statement scared him was ambivalent: ‚I don’t 

know if I was actually afraid. I was—for lack of a better word, 

weary[

4

] I guess.‛ Defendant then clarified that he considered 

Chris’s statement ‚credible.‛ The State also notes that the 

statement was intended to prevent Defendant from intervening

in the assault on Kelly, not to compel him to participate in the 

crime. We agree with the State. Chris’s statement to Defendant

threatened him with harm if he performed a specified action—

untying Kelly. Chris did not threaten to harm Defendant if he 

refused to perform criminal acts. Accordingly, it cannot be the 

basis of an affirmative defense for committing those acts.

¶19 Defendant also claims that he ‚inserted‛ himself into the 

conversation between Chris and David and ‚intervened‛ due to 

the death threats against Kelly. Defendant claims that he was 

compelled to act as he did because he feared that if he did not do 

so, Kelly would be killed or more seriously injured. The State 

responds that none of the threats made against Kelly were 

contingent on Defendant’s failure to participate. However, we 

read Defendant’s argument to apply to the totality of the 

situation; in other words, that Defendant believed physical harm 

was going to befall Kelly imminently unless Defendant did 

something to mitigate or prevent it. Nevertheless, we are 

unconvinced that a mitigation defense—i.e., that Defendant’s 

assault of Kelly was necessary to forestall the other assailants 

from killing or battering Kelly—constitutes a compulsion 

defense. Compulsion, by the terms of the statute, occurs only 

when the actor ‚was coerced‛ to perform the criminal act. See 

Utah Code Ann. § 76-2-302(1); see also State v. Maama, 2015 UT 

App 234, ¶ 15, 359 P.3d 1266 (holding that a robbery defendant 

was not entitled to a compulsion instruction in the absence of a 

claim that he or the victim was ‚the target of a specific threat 

forcing *the defendant+ to participate in the robbery‛). We are 

 

4. It seems likely that ‚weary‛ was a transcriber’s error. We 

suspect that Defendant’s testimony was that he was ‚wary‛ and 

treat it accordingly.
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20130771-CA 9 2016 UT App 13

unaware of any case holding that the legal doctrine of 

compulsion applies when the defendant acted not at the behest 

of a third party but instead affirmatively chose to harm a victim 

in order to prevent a third party from inflicting some greater 

harm.5

¶20 Defendant has not demonstrated error in the district 

court’s determination that he was not entitled to have the jury 

instructed as to compulsion, because his theories of the case did 

not involve compulsion as defined by statute. We therefore 

conclude that the district court did not err by refusing to instruct 

the jury as to compulsion.

II. The District Court’s Response to the Jury’s Questions

¶21 Defendant next contends that the district court’s response 

to a question from the jury ‚left the jury with an incorrect 

understanding of the law that may have misled the jury into 

convicting based on conduct that did not satisfy the elements of 

the charged offenses.‛ Defendant also contends that the district 

court ‚erred by providing a supplemental instruction without 

first informing the defense and without [Defendant] or defense 

counsel present.‛ He argues that the district court ‚answered the 

jury’s ‘substantive’ question . . . ex parte‛ and that doing so 

amounted to improper contact with the jury. Defendant further 

argues that the court’s response violated his due process right to 

be present as guaranteed by the Sixth Amendment to the United 

States Constitution. We address the challenge to the legal 

substance and the challenge to the procedure of the response

together.

¶22 ‚‘*A+ defendant is guaranteed the right to be present at 

any stage of the criminal proceeding that is critical to its outcome 

 

5. Defendant’s theory of the case appears to more closely 

resemble a defense-of-others or absence-of-criminal-intent 

argument than a defense of compulsion as defined by Utah Code 

section 76-2-302.
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20130771-CA 10 2016 UT App 13

if his presence would contribute to the fairness of the 

procedure.’‛ State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892 

(quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). ‚But ‘this 

privilege of presence is not guaranteed when presence would be 

useless, or the benefit but a shadow.’‛ Id. (quoting Stincer, 482 

U.S. at 745).

¶23 The court’s initial instructions told the jury that, to convict 

Defendant of aggravated assault, it had to find beyond a 

reasonable doubt:

1. That [Defendant], as a party to the offense;

a. Intentionally or knowingly, solicited, 

requested, commanded, or encouraged 

[Chris] to; OR intentionally aided [Chris] to:

i(a). Attempt, with unlawful force or 

violence, to do bodily injury to 

[Kelly]; or

i(b). Threaten to do bodily injury to 

[Kelly], accompanied by a show of 

immediate force or violence; and

ii. Use a dangerous weapon; and

2. The [Defendant],

a. Intended that [Chris] commit the crime of 

Aggravated Assault; or

b. Was aware that his conduct was 

reasonably certain to result in [Chris] 

committing the crime of Aggravated 

Assault.

(Emphases in original.)

¶24 During deliberation, the jury sent a note to the court, 

seeking clarification of two topics:
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20130771-CA 11 2016 UT App 13

Define => Aggravated Assault?

Question: If leaving Kelly in the canyon does that = 

‚Aggravated Assault‛?

The district court, without consulting Defendant’s counsel or the 

State, responded in writing that ‚*t+he elements for the crime of 

aggravated assault are given in the instructions. The other 

question, must be decided without my help. It is for the jury to 

decide.‛

¶25 The Utah Rules of Criminal Procedure specify how a 

district court is to react to notes from the jury. The court may 

‚direct that the jury be brought before the court where, in the 

presence of the defendant and both counsel, the court shall 

respond to the inquiry or advise the jury that no further 

instructions shall be given.‛ Utah R. Crim. P. 17(n). 

Alternatively, the court ‚may in its discretion respond to the 

inquiry in writing without having the jury brought before the 

court.‛ Id. Thus, the court is not required to consult counsel 

before responding to a jury’s note.

¶26 Nevertheless, the court’s discretion in responding to a 

jury’s question is not unlimited. The court should not, for 

example, issue new substantive instructions absent counsel’s 

input. See id. (providing that a court must inform and consult 

counsel before instructing the jury); see also State v. Thomas, 777 

P.2d 445, 448 (Utah 1989) (holding that a court’s response, given 

without consulting counsel, was not improper, because it ‚did 

not instruct as to the law but merely directed and encouraged 

the jurors to continue deliberations‛); State v. Kessler, 49 P. 293, 

295 (Utah 1897) (holding that it was not error for the court to 

give a substantive new instruction to the jury after deliberations 

began where the instruction was given in court, with the 

defendant and his counsel present). This is especially true when 

the mid-deliberation supplemental instruction contradicts, or 

could reasonably be construed to contradict, the initial 

instructions arrived at in consultation with counsel and given to 

the jury before deliberation. See United States v. Mondestin, 535 F. 
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20130771-CA 12 2016 UT App 13

App’x 819, 823–24 (11th Cir. 2013) (per curiam) (vacating 

convictions after noting ‚several problems that arise when a 

court fundamentally changes [a] jury instruction in response to a 

question raised during deliberations‛); State v. Porter, 705 P.2d 

1174, 1177 (Utah 1985) (holding that a supplemental instruction 

did not amount to reversible error when it merely clarified a 

point of law on which the jury had already been instructed).

¶27 Defendant claims that the district court’s written response 

constituted a supplemental instruction which erroneously stated 

the law. He argues that ‚‘leaving Kelly in the canyon’ could not, 

as a matter of law, constitute aggravated assault because it did 

not involve use of a dangerous weapon or an attempt with 

unlawful force or violence to do bodily injury or a threat to do 

bodily injury accompanied by a show of immediate force or 

violence.‛6 The State concedes that abandoning Kelly could not 

 

6. Defendant argues that ‚the scenario did not involve use of a 

dangerous weapon‛ because cold weather does not fall within 

the category of dangerous weapons. But he does not address the 

evidence of the pipe and pipe-related threats. For example, the 

jury heard testimony that Defendant and Chris had driven Kelly 

to a remote and freezing location, that Defendant had taken 

measures to prevent Kelly from escaping during the drive, that 

Defendant had threatened to ‚bust‛ Kelly’s kneecaps and leave 

him ‚for dead,‛ that Defendant took Kelly out of the car, and 

that Chris had held a two- or three-foot metal pipe out to 

Defendant after telling Defendant to ‚just do it.‛

Defendant also argues that the scenario presented to the 

jury did not involve an attempt or threat to commit bodily injury 

because ‚*t+here was no evidence that Chris or *Defendant+ 

attempted or threatened to do bodily injury by leaving Kelly in 

the canyon. Nor was there any evidence that 15 to 20 degree 

weather could do bodily injury.‛ But Defendant does not explain 

whether wintry weather’s effect on a jacketless person could be 

understood by the jury without expert testimony. We note that 

(continued<)
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20130771-CA 13 2016 UT App 13

legally amount to aggravated assault by itself. However, the 

State argues that the jury’s note asked not whether that act alone 

was enough but whether it could be sufficient in light of the 

alleged attendant circumstances and threats.

¶28 It does not appear that the district court intended to 

respond substantively to the jury’s question. Rather, the court 

sought to refer the jury back to the instructions because the 

jury’s second question ‚must be decided without my help.‛ 

However, it is not the court’s intention that controls the 

propriety of a supplemental instruction, but its resulting effect 

upon the jury. See Mondestin, 535 F. App’x at 824 (explaining that 

a contradictory supplemental instruction is improper because, 

inter alia, ‚it has the potential to confuse the jurors, leaving them 

uncertain of which standard to apply‛); see also United States v. 

Robinson, 86 Fed. App’x 820, 823 (6th Cir. 2003) (considering 

whether a supplemental instruction caused the jury to be 

confused or misled).

¶29 It is a plausible reading of the note that the jury intended

to ask whether leaving Kelly in the canyon was sufficient on its 

own to constitute aggravated assault. If that was indeed the 

jury’s question, the court’s response that ‚*i+t is for the jury to 

decide‛ could reasonably have been interpreted by the jury as a 

supplemental instruction that contradicted the court’s initial 

instruction explaining the elements the jury needed to find 

before it could convict Defendant of aggravated assault. Such a 

contradiction could have confused the jurors. See Mondestin, 535 

F. App’x at 824. Moreover, reading the response in this manner 

would have resulted in a misstatement of the law.

¶30 When it appears from a jury’s question that the jury is 

headed toward basing its decision on an improper 

 

(<continued)

the jury was instructed that ‚‘*b+odily injury’ means physical 

pain, illness or an impairment of physical condition.‛
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understanding of the law, it is incumbent on the district court to 

correct the jury’s understanding of that law via a new and 

correct instruction, after consulting with counsel. See State v. 

Couch, 635 P.2d 89, 94 (Utah 1981) (‚Jurors cannot be considered 

properly instructed on a criminal statute if they are 

demonstrably confused about the meaning of the words used in 

it.‛); supra ¶ 26.

¶31 Because it is reasonably possible that the jury interpreted 

the court’s response as a new instruction, despite the court’s 

apparent intent to simply refer the jury back to the earlier 

instructions (which would normally be prudent), and because 

the new instruction had the potential to confuse the jury in a 

way that misstated the law, we conclude that the district court’s 

response amounted to prejudicial error. We therefore vacate 

Defendant’s aggravated assault conviction.

¶32 We next consider whether the effect of the error extended 

beyond Defendant’s conviction for aggravated assault to his 

conviction for aggravated kidnapping. Instruction 17 informed 

the jury that one way it could convict Defendant of aggravated 

kidnapping was if it found that, ‚[i]n the course of detaining or 

restraining *Kelly+,‛ Defendant had acted with the intent of 

facilitating an aggravated assault. Thus, if the jury did in fact 

convict Defendant of aggravated assault on an improper basis, 

the jury could have determined that the aggravated assault 

element of the aggravated kidnapping instruction was satisfied.

Such a determination would have been improper due to the 

infirmity of the aggravated assault conviction. We therefore 

conclude that the aggravated kidnapping conviction is also 

infirm.

¶33 The State urges us to ‚enter a conviction for simple 

kidnapping . . . because any error in the aggravated assault 

instruction affected only the element that elevated the 

kidnapping to an aggravated kidnapping.‛ Utah appellate courts 

may enter convictions for lesser included offenses after holding

that the evidence presented was insufficient to support 

conviction for the greater offense. See, e.g., State v. Dunn, 850 P.2d 
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1201, 1211 (Utah 1993); State v. Pullman, 2013 UT App 168, ¶¶ 17–

20, 306 P.3d 827; State v. Powasnik, 918 P.2d 146, 150 n.2 (Utah Ct. 

App. 1996). To do so, the appellate court must determine 

whether ‚(i) the trier of fact necessarily found facts sufficient to 

constitute the lesser offense, and (ii) the error did not affect these 

findings.‛ Dunn, 850 P.2d at 1209.

¶34 A jury may convict a defendant of kidnapping if it finds 

that the defendant detained or restrained the victim ‚for any 

substantial period of time‛ or ‚in circumstances exposing the 

victim to risk of bodily injury.‛ See Utah Code Ann. § 76-5-301(1) 

(LexisNexis 2012) (emphasis added). Here, however, the relevant 

portion of the aggravated kidnapping instruction given to the 

jury only required it to find that Defendant ‚*d+etained or 

restrained *Kelly+ against his will.‛ As a result of this instruction, 

the jury did not have to consider whether the detention or 

restraint existed for a substantial length of time when it 

convicted Defendant of aggravated kidnapping.

¶35 Because the jury was not required to consider whether 

one of the elements of a simple kidnapping conviction had 

occurred, we cannot conclude that ‚the trier of fact necessarily 

found facts sufficient to constitute the lesser offense.‛ See Dunn, 

850 P.2d at 1209. We therefore cannot enter a conviction for 

simple kidnapping. See id.

¶36 Defendant asks that we enter a conviction for unlawful 

detention. ‚An actor commits unlawful detention if the actor 

intentionally or knowingly, without authority of law, and 

against the will of the victim, detains or restrains the victim 

under circumstances not constituting a violation of‛ the 

kidnapping, child kidnapping, or aggravated kidnapping 

statutes. Utah Code Ann. § 76-5-304(1).

¶37 As noted above, we have the ability to enter a conviction 

for a lesser included offense when we determine that an error 

occurred but did not affect the jury findings relating to the lesser 

included offense. Dunn, 850 P.2d at 1209. But this power is 

discretionary and appears only to have been exercised when the 
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20130771-CA 16 2016 UT App 13

evidence presented to the jury was insufficient to sustain a 

conviction for the greater offense.7 Here, the error we have 

identified did not concern the sufficiency of the evidence 

presented. Rather, the court’s response to a question from the 

jury could reasonably have been construed as a substantively 

new and legally incorrect instruction. If the jury had been 

correctly instructed as to the law, the evidence presented to the 

jury would have been legally sufficient to sustain Defendant’s 

convictions.8 Accordingly, we decline to enter a conviction for 

the lesser included offense of unlawful detention.

¶38 We reverse the district court’s denial of Defendant’s 

motion for a new trial, vacate Defendant’s convictions for 

aggravated assault and aggravated kidnapping, and remand for 

further proceedings consistent with this opinion.

CONCLUSION

¶39 We conclude that the district court correctly determined 

that Defendant had not presented evidence giving rise to a 

compulsion defense, and we affirm the district court’s refusal to 

give a compulsion instruction. However, because it is plausible 

that the jury understood the district court’s response to the jury’s 

questions about aggravated assault as a new instruction 

contradicting the initial instructions, and because such an

instruction would have misstated the law, we vacate 

Defendant’s aggravated assault conviction. And because the jury 

could have based Defendant’s aggravated kidnapping 

 

7. Where the evidence presented to the jury is legally insufficient 

to convict the defendant, double jeopardy concerns may bar the 

State from retrying the defendant for any lesser included 

charges.14

8. At oral argument, Defendant conceded that he was not 

arguing that the evidence presented to the jury was insufficient 

to sustain his convictions.
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conviction on the aggravated assault conviction, we vacate the 

aggravated kidnapping conviction as well. We remand to the 

district court for further proceedings.9

VOROS, Judge (concurring in part and concurring in the result 

in part):

¶40 I concur in the majority opinion except as to Part II, in 

which I concur only in the result. In my opinion, the trial court’s 

supplemental instruction violated the principles adopted by our 

supreme court in State v. Couch, 635 P.2d 89 (Utah 1981).

¶41 Directing a jury back to a correct elements instruction is 

almost always a prudent course. But here, the jury’s note 

suggested the possibility that at least one juror was 

contemplating voting to convict on a legal theory that all now 

agree would constitute an error of law. In such a circumstance, 

merely directing the jury back to the elements instruction is, in 

my view, insufficient and therefore erroneous. The potential 

harm of allowing a juror to convict on a demonstrably flawed 

legal theory so outweighs the burden on court and counsel of 

giving a brief supplemental instruction that I would require the 

instruction. That is, as I understand it, the principle informing 

the supreme court’s opinion in Couch.

¶42 For reasons explained in the majority opinion, I agree that 

the error here infected both convictions. 

 

9. Defendant also raises the cumulative error doctrine as an 

alternative ground for relief. See, e.g., State v. Davis, 2013 UT App 

228, ¶ 16, 311 P.3d 538 (explaining the application of the 

cumulative error doctrine). Given our resolution of Defendant’s 

challenges, we need not address this claim.