* Judge Thomas sat on this case and voted before his retirement 

on January 1, 2020.

This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 9

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Respondent,

v.

MEAGAN GRUNWALD,

Petitioner.

No. 20180459

Heard March 18, 2019

Filed February 21, 2020

On Certiorari to the Utah Court of Appeals

Fourth District, Provo

The Honorable Darold McDade

No. 141400517

Attorneys:

Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Sol. Gen., 

Salt Lake City, Timothy L. Taylor, AnnMarie T. Howard, Provo, 

for respondent 

Douglas J. Thompson, Provo, for petitioner

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which

JUSTICE HIMONAS, JUSTICE PEARCE, and JUDGE THOMAS* joined.

ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

Having recused herself, JUSTICE PETERSEN does not participate herein; 

DISTRICT COURT JUDGE DOUGLAS THOMAS sat.
STATE v. GRUNWALD

Opinion of the Court

2

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Meagan Grunwald was convicted as an accomplice to the 

crime of aggravated murder. But the jury instruction that provided 

the basis for her conviction contained three errors: (1) it 

impermissibly permitted conviction based on a finding of 

recklessness, a less culpable mental state than is required by statute, 

(2) it impermissibly permitted conviction based on intentional aid 

that was not directly connected to the murder, and (3) it 

impermissibly permitted conviction based on a finding that 

Ms. Grunwald knew that the principal actor’s conduct was reasonably 

certain to result in aggravated murder, rather than on the finding 

that she knowingly committed the actus reus to help the principal 

actor in committing the murder. We must determine whether any of 

these errors, or a combination of them, caused a reasonable 

probability of an unfair conviction. In other words, we must 

determine whether, in the absence of these errors, there is a 

reasonable probability the jury would have arrived at a different 

result.

¶2 The court of appeals considered this question and 

determined there was no such probability. Accordingly, that court 

affirmed Ms. Grunwald’s conviction. Now Ms. Grunwald asks us to 

reverse the decision of the court of appeals because, in her view, the 

court failed to properly consider all of the evidence presented to the 

jury and misconstrued some of the legal requirements of accomplice 

liability. Because it is reasonably probable that the jury would not 

have convicted Ms. Grunwald of aggravated murder absent the jury 

instruction errors, we reverse her conviction and remand for a new 

trial with correct jury instructions.

Background

¶3 Jose Angel Garcia Juaregi (Mr. Garcia) shot and killed a 

police officer through the back window of his girlfriend’s pickup 

truck. Some of the facts surrounding this murder are undisputed, 

while others are hotly contested and underlie the key issue on 

appeal.

¶4 It is undisputed that at the time of the murder Mr. Garcia 

and his girlfriend, Meagan Grunwald, were parked on the side of a 

road with their hazard lights flashing, and that Sergeant Cory Wride, 

the victim-police officer, had pulled up behind them to perform a 

“motorist assist.” During the motorist assist, Sergeant Wride first 

approached the driver-side door to speak to Ms. Grunwald, who was 
Cite as: 2020 UT 9

Opinion of the Court 

3

driving, and asked her if she was okay. Although she was crying and 

her face was red, she told Sergeant Wride that she was fine. Sergeant 

Wride then returned to his car to verify Ms. Grunwald’s and 

Mr. Garcia’s identities through a search of a police database. But 

Mr. Garcia had provided a false name and birthdate because a 

warrant had been issued for his arrest, so Sergeant Wride’s search 

did not yield any results.

¶5 Video footage from Sergeant Wride’s dashboard camera 

reveals what happened next. About ten minutes into the motorist 

assist, Sergeant Wride exited his car and approached the 

passenger-side window to speak to Mr. Garcia. At the window, 

Sergeant Wride asked Mr. Garcia if he had provided a false name, 

and Mr. Garcia admitted that he had. Mr. Garcia then provided 

another false name, and Sergeant Wride returned to his car to run 

the second false name through the police database.

¶6 Although the heavy tint on the truck’s back window 

prevented the dashboard camera from recording what was taking 

place inside the truck, footage does show that about a minute after 

Sergeant Wride returned to his vehicle, the truck’s brake lights 

flashed on and the lower-rear lights flickered, indicating a gear shift. 

One minute and a half later, the rear-passenger side window popped 

open about an inch. Just over one minute after that, the truck lurched 

forward slightly. And roughly one minute later, the truck’s center, 

rear window slid open and Mr. Garcia fired seven shots at Sergeant 

Wride in quick succession. After the fifth shot, Ms. Grunwald began 

pulling onto the road. Mr. Garcia fired the final two shots as she 

drove away. The entire event—from the time Sergeant Wride spotted 

Ms. Grunwald’s truck parked on the side of the road to the moment 

the truck drove away after the shooting—took roughly eighteen 

minutes, the last four of which involved Ms. Grunwald holding her 

foot on the brake and driving away after the shots had been fired.

¶7 After an extended police chase, Mr. Garcia was shot and 

killed, and Ms. Grunwald was arrested. Ms. Grunwald was charged 

as an accomplice in Sergeant Wride’s murder, as well as in a number 

of other crimes that are not at issue in this appeal. A trial followed.

¶8 At trial, the jury was shown the dash-cam footage multiple 

times. Both parties agree the dash-cam footage accurately depicts the 

crime in this case. But as to the details of what was taking place 

inside the truck immediately before Mr. Garcia began shooting, the 

jury heard two very different stories.

¶9 Ms. Grunwald raised “compulsion” as an affirmative 

defense at trial. Under the doctrine of compulsion, people are not 
STATE v. GRUNWALD

Opinion of the Court

4

guilty of a crime if they were coerced, through threat or force, to 

commit the crime. In support of her compulsion defense, 

Ms. Grunwald’s attorney painted Mr. Garcia as “the ultimate 

predator and exploiter” and a “master manipulator” and 

Ms. Grunwald as a scared, impressionable young girl who became 

increasingly intimidated by Mr. Garcia’s growing anger and 

agitation. According to Ms. Grunwald, while Sergeant Wride was 

searching Mr. Garcia’s false name, Mr. Garcia put a gun to her head 

and threatened her and her family. He then demanded that she put 

her foot on the brake, and, after she complied with this demand, he 

shifted the truck into drive. Finally, Ms. Grunwald testified that she 

began driving only after Mr. Garcia yelled “go, go, go” at her. So, 

based on this version of the story, Ms. Grunwald argues that 

anything she may have done to assist Mr. Garcia in murdering 

Sergeant Wride was coerced.

¶10 But even though Ms. Grunwald argued she was coerced into 

acting, she never admitted she intended for Mr. Garcia to kill 

Sergeant Wride, nor that she knew he would do so. Instead, she 

testified she did not know Mr. Garcia intended to kill Sergeant 

Wride, and that, even after Mr. Garcia had shot his gun, she assumed 

he had merely attempted to disable the police car. Ms. Grunwald did 

admit, however, that she twice heard Mr. Garcia say that he was 

going to “buck [Sergeant Wride] in the fucking head.” But she 

testified that she did not know what this statement meant and that 

Mr. Garcia refused to clarify his meaning when she asked him to do 

so.1 So even though Ms. Grunwald admits she held her foot on the 

brake for approximately four and a half minutes before Mr. Garcia 

began shooting, and that at some point during that time Mr. Garcia 

stated he was going to “buck” Sergeant Wride in the head, she 

claims she did not intend for Mr. Garcia to kill him or know that he 

would do so.

_____________________________________________________________

1 At trial, Ms. Grunwald’s testimony regarding the timing of this 

statement was inconsistent. On direct-examination, she narrated the 

events taking place inside the truck while the dash-cam video 

played. During this testimony she indicated that she had placed her 

foot on the brake pedal approximately three minutes and forty 

seconds before Mr. Garcia allegedly made the statement at issue (and 

four and a half minutes before he began firing). But on 

cross-examination, she indicated that Mr. Garcia had made the 

statement before she placed her foot on the brake.
Cite as: 2020 UT 9

Opinion of the Court 

5

¶11 The State, on the other hand, described Ms. Grunwald as a 

desperate lover who would not allow anything “to get in her way or 

come between her and her man.” According to the State, upon 

learning that Mr. Garcia had a “Board of Pardons warrant out,” 

Ms. Grunwald felt “her world crumbling down” because she could 

no longer be with Mr. Garcia if he were arrested. For this reason, the 

State argued, she viewed Sergeant Wride as “a threat to her[self] and 

her future.” The State argued that, because of this fear, 

Ms. Grunwald and Mr. Garcia formed a plan, and that consistent 

with that plan, Ms. Grunwald intentionally aided in Sergeant 

Wride’s murder. According to the State, she did this by placing her 

foot on the brake, shifting into gear, waiting with her foot on the 

brake in preparation for their escape, and acting as a lookout so that 

Mr. Garcia could open fire when no other cars were driving by.

¶12 After both sides presented their versions of the story at trial, 

the jury returned a guilty verdict. Ms. Grunwald appealed to the 

court of appeals. On appeal, she argued that her trial counsel was 

ineffective for failing to object to three errors in the jury instruction 

regarding accomplice liability. The court of appeals agreed that the 

jury instructions erroneously (1) included “recklessness” as a mental 

state upon which criminal liability could be found;2 (2) allowed the 

jury to convict Ms. Grunwald based on intentional aid that was not 

directly connected to the murder;3 and (3) allowed the jury to convict 

Ms. Grunwald based on knowledge that Mr. Garcia’s actions were 

reasonably certain to result in the aggravated murder, rather than on 

knowledge that her own actions were reasonably certain to do so.4

The court of appeals also concluded that the performance of 

Ms. Grunwald’s trial counsel was deficient because he did not object 

to these errors in the jury instructions.

¶13 But the court of appeals determined that those errors were 

not prejudicial, because the evidence demonstrated that 

Ms. Grunwald intentionally aided Mr. Garcia to commit those crimes 

and, because the jury rejected her “compulsion” theory, there was 

not a reasonable probability of a more favorable outcome absent the 

errors.

_____________________________________________________________

2 State v. Grunwald, 2018 UT App 46, ¶ 33, 424 P.3d 990.

3 Id. ¶ 39.

4 Id. ¶ 41.
STATE v. GRUNWALD

Opinion of the Court

6

¶14 Ms. Grunwald requested certiorari review of this 

determination, which we granted. We have jurisdiction pursuant to 

Utah Code section 78A-3-102(3)(a).

Standard of Review

¶15 We granted certiorari to review whether the court of appeals 

erred in concluding that Ms. Grunwald’s trial counsel’s deficient 

performance did not result in prejudice. On certiorari, “we review 

the court of appeals’ decision for correctness.”5

Analysis

¶16 Ms. Grunwald argues her aggravated murder conviction 

should be overturned because her trial counsel was ineffective for 

failing to object to multiple errors in the relevant jury instruction. 

The jury instruction required the jury to find Ms. Grunwald guilty as 

an accomplice to aggravated murder if it found that (1) she 

“‘[i]ntentionally,’ ‘knowingly,’ or ‘recklessly’ solicited, requested, 

commanded, encouraged, or ‘intentionally’ aided” Mr. Garcia who

committed aggravated murder and (2) she “[i]ntended that 

[Mr. Garcia] commit the crime of Aggravated Murder, or [w]as 

aware that [Mr. Garcia’s] conduct was reasonably certain to result in 

[Mr. Garcia] committing the crime of Aggravated Murder, or 

[r]ecognized that her conduct could result in [Mr. Garcia] 

committing the crime of Aggravated Murder but chose to act 

anyway.” The court of appeals identified three distinct errors in this 

jury instruction. First, the court explained that the instruction 

erroneously “permits a conviction based on a reckless mental state.”6

Second, it explained that the instruction erroneously permits 

conviction based on intentional aid that was not directly connected 

to the murder.7 And third, it explained that the instruction 

erroneously permits conviction based on knowledge that 

Mr. Garcia’s actions were reasonably certain to cause the aggravated 

murder, rather than on knowledge that Ms. Grunwald’s own actions 

were reasonably certain to do so.8

_____________________________________________________________

5 State v. Martinez-Castellanos, 2018 UT 46, ¶ 32, 428 P.3d 1038 

(citation omitted).

6 State v. Grunwald, 2018 UT App 46, ¶ 33, 424 P.3d 990.

7 Id. ¶ 37.

8 Id. ¶ 40.
Cite as: 2020 UT 9

Opinion of the Court 

7

¶17 The court of appeals also concluded that the performance of 

Ms. Grunwald’s trial counsel had been deficient because he failed to 

object to these errors.9 But the court nevertheless affirmed her 

aggravated murder conviction because it concluded that the jury 

instruction errors did not prejudice Ms. Grunwald.10 Ms. Grunwald 

asks us to review this decision.

¶18 Ms. Grunwald argues that the court of appeals erred in 

concluding the jury instruction errors did not result in prejudice 

because it failed to consider the totality of the evidence, and it 

misstated, or misconstrued, much of the evidence it did consider. We 

agree. 

¶19 Under the standard the United States Supreme Court 

established in Strickland v. Washington, a court may disturb a criminal 

conviction based on an allegation of ineffective assistance of counsel 

only where the criminal defendant shows (1) “that counsel’s 

performance was deficient,” and (2) that “the deficient performance 

prejudiced the [criminal defendant’s] defense.”11 The first prong of 

this analysis requires the defendant to show “that counsel made 

errors so serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment.”12 And the 

second prong requires the defendant to show that “counsel’s errors 

were so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.”13 The court of appeals applied this 

two-pronged analysis to the facts of this case.

¶20 Although, under the first prong, the court determined that 

Ms. Grunwald’s trial counsel’s failure to object to the erroneous jury 

instructions constituted deficient performance,14 it concluded, under 

_____________________________________________________________

9 Id. ¶ 42.

10 Id. ¶ 49.

11 466 U.S. 668, 687 (1984).

12 Id.

13 Id.

14 The court of appeals determined that the performance of 

Ms. Grunwald’s trial counsel was “deficient because [he] failed to 

object to serious errors in the jury instructions relating to accomplice 

liability.” Grunwald, 2018 UT App 46, ¶ 24. This determination was 

not appealed.
STATE v. GRUNWALD

Opinion of the Court

8

the second prong, that these errors did not prejudice 

Ms. Grunwald.15 But after reviewing the evidence on record, we 

conclude otherwise.

¶21 Under Strickland’s prejudice prong, we must determine 

whether “counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.”16 So this case 

requires us to determine whether Ms. Grunwald’s trial counsel’s 

failure to object to the erroneous jury instructions deprived her of a 

fair trial the result of which is reliable. In the past we have suggested 

that we may presume prejudice where there were errors in a jury 

instruction related to an essential element of a crime.17 But in our 

recent State v. Garcia decision, we clarified that, where an error in a 

jury instruction is alleged, we must conduct the full analysis 

required under Strickland’s prejudice prong.18

¶22 When applying Strickland’s prejudice analysis in the context 

of erroneous jury instructions, we must determine whether there is a 

reasonable probability the jury would not have convicted the 

defendant if the jury instructions had been correct. A reasonable 

probability “is a probability sufficient to undermine [our] confidence 

in the outcome.”19 To determine whether there is a reasonable 

probability of a different outcome, we must ask ourselves two 

questions: (1) did the error in the jury instructions create the 

possibility that the jury convicted the defendant based on factual 

findings that would not have led to conviction had the instructions 

been correct? and, (2) if so, is there a reasonable probability that the 

jury based its verdict on those factual findings? We followed this 

two-part analysis in Garcia.

20

_____________________________________________________________

15 Id. ¶ 49.

16 Strickland, 466 U.S. at 687.

17 See State v. Laine, 618 P.2d 33, 35 (Utah 1980) (“In our view, the 

failure to include the intent element in the basic ‘elements’ 

instruction is reversible error.”).

18 2017 UT 53, ¶ 41, 424 P.3d 171 (criticizing the court of appeals 

for failing to “fully conduct[] the prejudice inquiry Strickland

requires” in a case involving erroneous jury instructions).

19 Id. ¶ 42 (citation omitted).

20 Id. ¶ 41. Associate Chief Justice Lee argues that this two-step 

analysis reformulates the Strickland prejudice prong. See infra ¶¶ 85, 

(Continued)
Cite as: 2020 UT 9

Opinion of the Court 

9

¶23 In Garcia, we considered whether an error in an instruction 

relating to the defendant’s affirmative defense had resulted in 

prejudice. In so doing, we suggested that courts should begin by 

analyzing “how [the erroneous] instruction might have impacted 

[the defendant’s] trial” and by “predict[ing] juror behavior in 

response to the erroneous instruction.”21 In other words, this step 

requires courts to compile a list of the theoretical factual scenarios in 

which the incorrect instruction permitted the jury to impermissibly 

convict the defendant.

¶24 For example, in Garcia, the jury instruction at issue failed to 

clearly convey the significance of a finding of imperfect self-defense. 

In that case, a correct jury instruction “would have informed the jury 

that if [the defendant] acted in imperfect self-defense,” the defendant 

could be convicted only of attempted manslaughter, not attempted 

murder.22 Because the jury instructions failed to inform the jury of 

the consequence of an imperfect self-defense finding, they created 

the possibility that the jury convicted the defendant of attempted 

murder even if the jury concluded that the defense of imperfect 

self-defense applied. So, in Garcia, there was a theoretical factual 

scenario—a scenario upon which the jury found that the defendant 

 

102–04 (Lee, A.C.J., dissenting). In his view, our analysis “asks only 

whether there is a reasonable probability that the jury in fact based 

its decision on an error in the jury instructions,” not whether “the 

jury would have come down the other way in the absence of such an 

error.” See infra ¶ 104 (Lee, A.C.J., dissenting) (emphasis in original). 

But Justice Lee overlooks a key part of our two-step analysis. Part 

one of our analysis requires us to determine whether the jury could 

have based a conviction on a factual scenario that would not have led 

to conviction had the instructions been correct. Part two then requires us 

to determine whether there is a reasonable probability that the jury 

based its guilty verdict on those factual findings. By identifying 

whether there is a reasonable probability the jury based its decision 

on factual findings that would not have supported a guilty verdict 

had the jury instructions been correct, these steps require us to 

determine whether there is “a reasonable probability that the jury 

would have reached a different verdict under a correct instruction.” 

See infra ¶ 104 (Lee, A.C.J., dissenting). So our analysis requires what 

Justice Lee argues it must under Strickland’s prejudice prong.

21 2017 UT 53, ¶ 41.

22 Id. ¶ 23 n.5.
STATE v. GRUNWALD

Opinion of the Court

10

acted in self-defense—in which the incorrect instructions may have 

permitted the jury to erroneously convict the defendant.

¶25 Thus the first step of our prejudice analysis, in the context of 

jury instruction errors, is to identify the theoretical factual scenarios 

in which the error in the jury instructions permitted the jury to 

wrongfully convict the defendant.23 In this case, the court of appeals 

concluded that three errors in “the jury instructions improperly 

allowed the jury to convict [Ms.] Grunwald as an accomplice under 

three impermissible scenarios: (1) if she acted recklessly as to the 

results of her conduct, rather than intentionally or knowingly; (2) if 

she directed her actions to some purpose other than the commission 

of the principal crime; or (3) if she acted knowing that [Mr.] Garcia’s 

actions, rather than her own, were reasonably certain to result in the 

commission of the principal crime.”24 We largely agree with this 

analysis.

¶26 The court of appeals correctly applied the first step of the 

Garcia analysis, but it erred in applying Garcia’s second step. In 

Garcia, we explained that, in addition to identifying theoretical 

factual scenarios in which the error in the jury instructions permitted 

the jury to wrongfully convict the defendant, a “proper analysis also 

needs to focus on the evidence before the jury and whether the jury 

could reasonably have [made factual findings] such that a failure to 

instruct the jury properly undermines confidence in the verdict.”25 In

other words, after we have identified the factual scenarios that 

theoretically could have formed the basis of a wrongful conviction, 

_____________________________________________________________

23 Justice Lee criticizes this step in his dissent. See infra ¶ 103 n.91

(Lee, A.C.J., dissenting) (explaining that we need not “compile a list 

of the theoretical factual scenarios in which the incorrect instruction 

permitted the jury to impermissibly convict the defendant”). But 

Justice Lee does not explain how an appellate court could conduct a 

thorough prejudice analysis regarding a jury instruction error 

without first identifying the potential ways in which that error could 

have impacted the jury. As a practical matter, an appellate court will 

be unable to determine whether there is a reasonable probability that 

a jury would have reached a different result absent a jury instruction 

error without first identifying the possible ways that error could 

have affected the jury.

24 Grunwald, 2018 UT App 46, ¶ 42.

25 2017 UT 53, ¶ 42.
Cite as: 2020 UT 9

Opinion of the Court 

11

we must determine whether there is a reasonable probability that, 

based on the totality of the evidence, the jury convicted the 

defendant based on one of those impermissible scenarios. If we 

conclude there is a reasonable probability the jury convicted the 

defendant based on one of the identified, impermissible factual 

scenarios, we may confidently hold that there is a reasonable 

probability the jury would not have reached a guilty verdict but for 

the errors in the jury instructions.

¶27 Although the court of appeals correctly identified three 

scenarios in which the jury instruction errors permitted the jury to 

wrongfully convict Ms. Grunwald of aggravated murder, it 

ultimately concluded there was not a reasonable probability that the 

jury convicted Ms. Grunwald based on any of them. We disagree. 

After considering the totality of the evidence, we conclude there is a 

reasonable probability the jury based its conviction on one of the 

impermissible scenarios rather than on a permissible one.

¶28 In so concluding, we note that the lack of any direct 

evidence contradicting Ms. Grunwald’s testimony is a significant 

factor in our decision. The events underlying the alleged crime in 

this case occurred inside Ms. Grunwald’s truck. And the only 

evidence directly informing us regarding those events comes from 

Ms. Grunwald’s testimony. Although we also have video evidence 

depicting the outside of the truck during the event, the heavy tint on 

the truck’s windows severely limits the information that video 

evidence provides. The video evidence indicates that Ms. Grunwald 

held her foot on the brake for a number of minutes, that, at one 

point, someone shifted the truck into drive, and it shows that the 

truck lurched forward slightly—suggesting that someone was 

moving around inside—shortly before the back window slid open 

and Mr. Garcia opened fire. This information is entirely consistent 

with Ms. Grunwald’s testimony on direct-examination, where she 

carefully narrated what was occurring inside the truck as the jury 

watched the video. After considering this evidence, together with the 

other circumstantial evidence, we conclude there is a reasonable 

probability that, absent the jury instruction errors, the jury would

have found Ms. Grunwald not guilty as an accomplice to the 

murder.

¶29 But this conclusion should not be misinterpreted as a 

finding that Ms. Grunwald is, in fact, not guilty. We are fully aware 

that the video evidence could also be interpreted consistent with the 

version of events hypothesized by the State. And we are mindful 

that a reasonable jury may find portions, or even all, of 
STATE v. GRUNWALD

Opinion of the Court

12

Ms. Grunwald’s testimony to lack credibility, particularly when 

considered in context of other, circumstantial evidence. But, contrary 

to what Associate Chief Justice Lee argues in his dissent, this other 

evidence does not eliminate the reasonable probability that a jury 

could find Ms. Grunwald not guilty.

¶30 In his dissent, Justice Lee disregards the only direct evidence 

we have of what occurred inside Ms. Grunwald’s truck. And his 

ultimate conclusion appears to rest on a number of assumptions he 

makes regarding what Ms. Grunwald was thinking at the time of the 

murder26 and the effect certain evidence, particularly 

Ms. Grunwald’s testimony, would have on a jury.27 But, as an 

appellate court, we are not well-positioned to make the type of 

unequivocal credibility determinations upon which Justice Lee’s 

conclusion rests.

28 Although a jury could possibly react to the 

_____________________________________________________________

26 See infra ¶ 79 (Lee, A.C.J., dissenting) (stating that 

Ms. Grunwald acted “to allow [Mr. Garcia] to shift the truck into 

drive and aim a gun through the rear window”); infra ¶ 84 (Lee, 

A.C.J., dissenting) (stating that Ms. Grunwald “was at least a

knowing collaborator in her boyfriend’s acts of murder”).

27 See infra ¶ 96 (Lee, A.C.J., dissenting) (assuming the jury would 

find a portion of Ms. Grunwald’s testimony “utterly lacking in 

credibility” and so would have been “likely to disregard all her other 

claims of misunderstanding”); infra ¶ 113 (Lee, A.C.J., dissenting) 

(assuming the jury “would have discounted anything else she said to 

try to exonerate herself”); infra ¶ 115 (Lee, A.C.J., dissenting) 

(assuming the jury would find that fifty seconds was more than 

enough time to fully process Mr. Garcia’s “buck in the head” 

statement and that Ms. Grunwald’s continued act of holding her foot 

on the brake meant that she intended to help, or knew it would help, 

Mr. Garcia commit murder).

28 See State ex rel. Z.D., 2006 UT 54, ¶ 24, 147 P.3d 401 (“Appellate 

courts are removed temporally and geographically from trial courts. 

They do not see juries impaneled or oaths administered to witnesses. 

They do not view first-hand witnesses’ ‘tells’ of posture, inflection, 

or mood that strengthen or erode credibility. It is the lot of appellate 

judges to take their sustenance from the printed page; to peer into 

the facts as deeply as the flat plane of paper will permit. By the time 

the trial transcript reaches the hands of the appellate judge, the 

universal adjective describing its condition is ‘cold.’”).
Cite as: 2020 UT 9

Opinion of the Court 

13

evidence in the way Justice Lee assumes it would, we conclude, after 

considering the totality of the evidence, that there is a reasonable 

probability it could react differently.

29 For this reason, the three 

errors in the jury instruction have undermined our confidence in the 

guilty verdict.30 We consider each jury instruction error, and its effect 

on the verdict, separately.31

I. There is a Reasonable Probability the Jury Found That 

Ms. Grunwald Was Reckless as to the Results of Her Conduct, While 

Also Finding That She Did Not Intend for Sergeant Wride to Be 

Killed or Know That His Death Was Reasonably Certain to Result

¶31 The first error in the jury instruction is that it permitted the 

jury to convict Ms. Grunwald based on a finding that she acted 

recklessly, rather than intentionally or knowingly. This constitutes a 

serious error.

¶32 In State v. Briggs, we held that “[t]o show that a defendant is 

guilty under accomplice liability, the State must show that an 

individual acted with both the [requisite mental state] that the 

underlying offense be committed and the [requisite mental state] to 

aid the principal actor in the offense.”32 Accordingly, “the first step 

_____________________________________________________________

29 In rejecting the assumptions Justice Lee has made in this case as 

overly speculative, we are not suggesting that appellate courts 

should not consider circumstantial evidence in making prejudice 

determinations. See infra ¶¶ 97–98 (Lee, A.C.J., dissenting). Nor are 

we suggesting that appellate courts can never make credibility 

assessments, or that they must accept the entirety of a defendant’s 

testimony. See infra ¶ 98 & n.89 (Lee, A.C.J., dissenting). Instead, we 

have merely concluded that, based on a totality of the direct and 

circumstantial evidence on the record in this case, Justice Lee’s 

conclusions regarding Ms. Grunwald’s credibility are too 

speculative. And, as a result, we conclude that his complete 

disregard of her direct testimony is unwarranted.

30 See Garcia, 2017 UT 53, ¶ 41.

31 Although, as an organizational matter, we consider each jury 

instruction error separately, our ultimate aim is to determine 

whether the jury instruction, as a whole, incorrectly instructed the 

jury and, in that way, prejudiced Ms. Grunwald.

32 2008 UT 75, ¶ 13, 197 P.3d 628. In Briggs, we actually held that 

the State must show that the defendant acted with both the intent

(Continued)
STATE v. GRUNWALD

Opinion of the Court

14

in applying accomplice liability is to determine whether the 

individual charged as an accomplice had the [requisite mental state] 

that an underlying offense be committed.”33

¶33 The requisite mental state for an aggravated murder 

conviction is “knowing” or “intentional.”34 A person acts 

intentionally with respect to the result of his or her conduct when it 

is his or her “conscious objective or desire to . . . cause the result.”35

And a person acts knowingly when he or she is aware that his or her 

conduct is “reasonably certain to cause the result.”36 So the jury 

should have been permitted to convict Ms. Grunwald only if it found 

that she aided Mr. Garcia desiring to cause Sergeant Wride’s death 

or she aided Mr. Garcia knowing that her conduct would most likely 

help him to cause Sergeant Wride’s death.

¶34 Although the jury instruction included an instruction 

regarding intentional and knowing mental states, it also permitted 

the jury to convict Ms. Grunwald based on a reckless mental state. It 

stated that the jury could convict if it found that Ms. Grunwald 

“recognized that her conduct could result in [Mr. Garcia] committing 

the crime of Aggravated Murder but chose to act anyway.” The 

inclusion of the reckless mental state instruction permitted the jury 

to convict Ms. Grunwald if it found that she was aware that her 

interactions with Mr. Garcia could possibly assist Mr. Garcia in 

murdering Sergeant Wride. So even if the jury had found that 

Ms. Grunwald did not intend for Mr. Garcia to kill Sergeant Wride, 

or know that her interactions with Mr. Garcia would most likely lead 

to Sergeant Wride’s death, the jury was nevertheless permitted to 

convict her. This was error.

 

that the underlying offense be committed and the intent to aid the 

principal actor in the offense. Id. But it is clear from subsequent 

sentences that we used the term “intent” as a synonym for “criminal 

intent” or “the mental state required.” Id.; see also State v. Jeffs, 2010 

UT 49, ¶ 43, 243 P.3d 1250 (explaining that when we used the term 

“intent” in Briggs, we did so as “a legal term of art that means ‘[t]he 

state of mind accompanying an act.’” (quoting Intent, BLACK’S LAW 

DICTIONARY 881 (9th ed. 2009) (alteration in original)).

33 Briggs, 2008 UT 75, ¶ 14.

34 UTAH CODE § 76-5-202(1).

35 Id. § 76-2-103.

36 Id.
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Opinion of the Court 

15

¶35 Although the court of appeals recognized that this error 

permitted the jury to wrongfully convict Ms. Grunwald based on a 

factual scenario in which Ms. Grunwald was merely reckless, it 

nevertheless concluded that the error did not prejudice 

Ms. Grunwald, because there was “no reasonable probability that 

the jury based its verdict on a finding that [Ms.] Grunwald was 

merely reckless as to the results of her conduct.”37 In support of this 

conclusion, the court explained that “[i]t was undisputed that 

[Mr.] Garcia was holding a gun and looking back at Sergeant 

Wride’s patrol car when [Mr.] Garcia stated that he was ‘going to 

buck [the officer] in the fucking head.’”38 It then explained that “no 

reasonable person could have misinterpreted [Mr.] Garcia’s objective 

under the circumstances.”39 This conclusion is flawed for two 

reasons.

¶36 First, the court erred in framing the question of 

Ms. Grunwald’s mental state in objective terms even though the 

mental state element necessarily requires the jury to determine 

Ms. Grunwald’s subjective mental state.40 The court concluded that 

“no reasonable person could have misinterpreted [Mr.] Garcia’s 

objective” when he said he was going to “buck” Sergeant Wride.41

By basing its conclusion on what a reasonable person would have 

understood by this statement, the court of appeals, in effect, asked 

whether a reasonable juror could have misunderstood Mr. Garcia’s 

intention under the circumstances. This was error. When 

determining the mental state of a criminal defendant, we cannot 

simply impute the mental state of a “reasonable person” to the 

defendant. Instead, we must determine the defendant’s actual 

mental state. So the court of appeals should have asked whether a 

reasonable jury could have concluded that Ms. Grunwald did not 

understand Mr. Garcia’s intention. And when the question is 

_____________________________________________________________

37 State v. Grunwald, 2018 UT App 46, ¶ 50, 424 P.3d 990.

38 Id. (fourth alteration in original).

39 Id.

40 Mens Rea, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining 

“mens rea” as the “state of mind that the prosecution, to secure a 

conviction, must prove that a defendant had when committing a 

crime”).

41 Grunwald, 2018 UT App 46, ¶ 50.
STATE v. GRUNWALD

Opinion of the Court

16

reframed in this way, and the totality of the evidence is considered, 

there is a reasonable probability the jury may have concluded that 

Ms. Grunwald did not understand Mr. Garcia’s intentions even 

though a reasonable person would have.

¶37 In this case, the only direct evidence regarding what 

Ms. Grunwald understood of Mr. Garcia’s intention comes from 

Ms. Grunwald’s testimony. She testified at two separate times that 

she did not understand what Mr. Garcia meant when he said “I’m 

going to buck him.” She also explained that, in response to this 

statement, she asked Mr. Garcia what he meant, but that Mr. Garcia 

ignored her question and began firing without warning soon after. 

And she testified that even after Mr. Garcia had shot his gun, she 

assumed he had merely attempted to disable the police car.42 So, by 

framing the question of whether Ms. Grunwald understood the 

meaning of the term “buck” in objective terms, the court of appeals 

necessarily disregarded Ms. Grunwald’s testimony to the contrary.

¶38 The court of appeals may have disregarded Ms. Grunwald’s 

testimony regarding her subjective understanding because it 

assumed the jury did not believe her when she said she did not 

know what the term “buck” meant. In other words, when the court 

stated that “no reasonable” person would have misunderstood the 

meaning of the term under the circumstances, it may have been 

suggesting that the jury would not have believed Ms. Grunwald’s 

_____________________________________________________________

42 We also note that a key difference between a knowing and a 

reckless mental state is that, unlike with a reckless mental state, a 

knowing mental state requires a defendant to be aware not just that 

the relevant conduct could result in the crime, but that it is reasonably 

certain to result in the crime. This difference increases the likelihood 

that the jury convicted Ms. Grunwald on the recklessness standard. 

Based on the distance between the truck and Sergeant Wride’s 

vehicle, it may not have been reasonably certain that the murder 

would occur. A deadly outcome would have been more certain, for 

example, if Sergeant Wride had been approaching the vehicle when 

Mr. Garcia fired his weapon. Additionally, the jury might have 

accepted Ms. Grunwald’s testimony that she believed that the 

windshield on Sergeant Wride’s vehicle was bulletproof. If that was 

the case, it is more unlikely that the jury found that Ms. Grunwald 

was aware that the murder was reasonably certain to occur, 

rendering more probable the likelihood that it based its conviction 

on a finding of recklessness.
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Opinion of the Court 

17

testimony, because Ms. Grunwald’s alleged failure to understand the 

term’s meaning would be less than reasonable. But this reasoning 

ignores the possibility that the jury could have concluded that 

Ms. Grunwald’s level of comprehension fell below what a 

“reasonable person” would have understood under the 

circumstances.43 And when a totality of the evidence is considered, it 

is reasonably probable that the jury would have reached this 

conclusion.

¶39 There is a reasonable probability that the jury would have 

considered Ms. Grunwald’s ability to comprehend the meaning of 

Mr. Garcia’s “buck” comment to be below that of a “reasonable 

person.” At the time of the crime, Ms. Grunwald was only seventeen 

years old.44 There is also evidence that Ms. Grunwald suffers from a 

learning disability that may have lessened her ability to understand 

the significance of Mr. Garcia’s words.45 And her trial counsel 

_____________________________________________________________

43 Justice Lee concedes that it is “theoretically possible” that the 

jury could have found that Ms. Grunwald’s understanding fell 

below that of a reasonable person, infra ¶ 107 (Lee, A.C.J., 

dissenting), but he rejects that possibility in this case because, in his 

view, the alleged misunderstanding would be “ridiculous.” Infra

¶ 112 (Lee, A.C.J., dissenting). This is so, he explains, even if we take 

Ms. Grunwald’s age, learning disability, easily-intimidated nature, 

and the stress of the moment into account. Infra ¶ 112 (Lee, A.C.J., 

dissenting). But in so arguing, Justice Lee makes the same mistake as 

the court of appeals—he excludes the possibility that the jury could 

have found Ms. Grunwald capable of reaching an unreasonable (or 

even a “ridiculous”) conclusion.

44 Justice Lee suggests that we should not consider her age

because she was tried as an adult. Infra ¶ 109 (Lee, A.C.J., 

dissenting). But we do not see how the district court’s determination 

that Ms. Grunwald should be tried as an adult would prevent the 

jury from considering her age in assessing her credibility or her 

comprehension level.

45 At trial, Ms. Grunwald stated the following regarding her 

learning disability: “I had to take special classes, which are basically 

resource classes because I have a hard time reading and writing and 

I have a really hard time of like when I read stuff of comprehending 

it and knowing what it says.” And she stated that this disability 

required her to work harder than “regular students”: “if we had a 

book project I had to spend like almost three times the time that a 

(Continued)
STATE v. GRUNWALD

Opinion of the Court

18

argued that Ms. Grunwald is easily intimidated and was under a lot 

of stress at the time, which likely further limited her ability to 

understand the meaning of Mr. Garcia’s words.

¶40 Based on this evidence, a jury could reasonably conclude

that in these fraught and volatile circumstances a seventeen-year-old 

girl would be unable to quickly process and understand Mr. Garcia’s 

intentions when he used the term “buck.” And it is likely a jury 

would find that Ms. Grunwald mentally froze in this way when it 

considers this evidence together with Ms. Grunwald’s 

cross-examination testimony. On cross-examination, she defended 

her sworn statement that she did not know what “buck” meant by 

explaining that she did not understand the term’s meaning “at the 

time,” and that its meaning became clear to her only after the event 

had taken place. So, in light of this evidence, there is a reasonable 

probability that the jury could have found Ms. Grunwald’s ability to 

understand Mr. Garcia’s intentions at the time to be less than that of 

a reasonable person.46 Accordingly, the court of appeals erred in 

framing the mental state requirement in objective terms.47

 

normal student did to be able to understand it.” Justice Lee 

categorizes this disability as a “reading” disability and argues that it 

has “no bearing” on her ability to understand statements delivered 

orally. Infra ¶ 109 (Lee, A.C.J., dissenting). But Ms. Grunwald’s 

testimony clearly indicates that her struggles were not limited 

merely to reading. Instead, it shows that she struggles generally with 

language comprehension.

46 Quoting our decision in Garcia, Justice Lee argues that our use 

of the phrase “could have,” rather than “would have,” is significant 

because it creates “the look and feel of presuming, rather than 

finding, prejudice.” See infra ¶ 111 (Lee, A.C.J., dissenting) (quoting 

Garcia, 2017 UT 53, ¶ 38). But, when used to discuss reasonable 

probabilities, “could” and “would” are synonymous. In fact, in using 

the phrase “could have,” we are merely using the same language we 

used in Garcia. See Garcia, 2017 UT 53, ¶ 42 (“A proper analysis also 

needs to focus on the evidence before the jury and whether the jury 

could reasonably have found that [the defendant] acted . . . such that a 

failure to instruct the jury properly undermines confidence in the 

verdict.” (emphasis added)). So our use of the phrase is consistent 

with our case law. And because, in this context, the phrases “could 

have” and “would have” are synonymous, our use of the phrase in 

(Continued)
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Opinion of the Court 

19

¶41 Second, the court also erred in treating as undisputed the 

timeline of events occurring inside the truck immediately before the 

shooting. Although Ms. Grunwald testified on cross-examination 

that Mr. Garcia had expressed his intention to “buck” Sergeant 

Wride in the head before the truck had shifted into gear, on 

direct-examination, Ms. Grunwald stated he had made the comment 

long after the truck had been shifted into gear. This raises a critical 

factual dispute.

¶42 The dash-cam recording of the incident shows that the truck 

shifted into gear approximately thirteen minutes into the stop. The 

shooting occurred approximately four and a half minutes later. In 

the intervening time, Mr. Garcia popped open the truck’s side 

window, and, a little later, the truck lurched forward slightly. And 

less than one minute after the truck lurched forward, or 

approximately seventeen and a half minutes into the stop, 

Mr. Garcia began firing. Ms. Grunwald testified that she thought 

Mr. Garcia had popped open the truck’s side window to get a better 

look at Sergeant Wride’s vehicle, and that the truck’s movement was 

caused when Mr. Garcia climbed into the truck’s back seat. So 

Mr. Garcia’s activity inside the truck suggests that he spent the four 

and a half minutes between the time the truck shifted into gear and 

the time of the murder preparing to shoot at Sergeant Wride.

¶43 Whether Ms. Grunwald knew that Mr. Garcia intended to 

murder Sergeant Wride, or whether she was merely reckless in 

 

no way lessens the standard established in Strickland. See infra ¶ 104

(Lee, A.C.J., dissenting).

47 Justice Lee disagrees with our conclusion on this point. Infra

¶ 112 (Lee, A.C.J., dissenting). But the crux of his disagreement (on

this point and others) appears to be that he finds Ms. Grunwald to 

lack credibility as a witness. See infra ¶ 96 (Lee, A.C.J., dissenting) 

(assuming the jury would find Ms. Grunwald’s testimony to be 

“utterly lacking in credibility,” and so would “likely . . . disregard all 

her other claims of misunderstanding”); infra ¶ 112 (Lee, A.C.J., 

dissenting) (assuming that the jury “would be offended by 

[Ms.] Grunwald’s” testimony); infra ¶ 113 (Lee, A.C.J., dissenting) 

(assuming a “reasonable jury would discount anything and 

everything in [Ms.] Grunwald’s testimony that went in her favor”).

We do not believe we are in a position to make the kind of 

unequivocal credibility determinations upon which Justice Lee rests 

his determination.
STATE v. GRUNWALD

Opinion of the Court

20

disregarding the possibility that he might do so, likely depends on 

which version of events the jury believed. If the jury believed 

Mr. Garcia had expressed his intent to “buck” Sergeant Wride before 

the truck shifted into gear, then the jury would likely have viewed 

Ms. Grunwald’s actions during the intervening four and a half 

minutes differently than if it had believed Mr. Garcia made his 

comment immediately before he commenced shooting.48 Under the 

latter scenario, Ms. Grunwald would have had little time to process 

or otherwise react to the comment, and none of Ms. Grunwald’s 

actions, which allegedly aided Mr. Garcia, could have been done 

with knowledge of what Mr. Garcia intended to do.49 Thus, when the 

_____________________________________________________________

48 Justice Lee argues that the jury would not have accepted the 

carefully narrated timeline Ms. Grunwald depicted on 

direct-examination because he sees “every reason to think that a 

reasonable jury would discount anything and everything in [her] 

testimony that went in her favor.” Infra ¶ 113 (Lee, A.C.J., 

dissenting). The only justification for Justice Lee’s complete 

disregard of any testimonial evidence in Ms. Grunwald’s favor is 

that she “made the ridiculous assertion” that she did not understand 

the “buck” threat made by Mr. Garcia. Infra ¶ 113 (Lee, A.C.J., 

dissenting). But we are ill-positioned to make such an absolute 

determination regarding how the jury would have assessed 

Ms. Grunwald’s credibility. At trial, the jury heard two different 

stories, and on “this record, we have no way of knowing how the 

jury processed these two stories. Thus, we cannot properly conclude 

that the jury found [the defendant’s entire] account ‘[in]credible,’ as 

[Justice Lee] suggests.” State v. Barela, 2015 UT 22, ¶ 30, 349 P.3d 676. 

So even though it appears that the jury did not accept 

Ms. Grunwald’s story “lock, stock, and barrel,” the jury could have 

found that portions of her testimony were credible. Id.

49 Justice Lee takes issue with our characterization of the 

statement as coming “immediately before” the shooting. In so doing, 

he suggests that fifty seconds provided Ms. Grunwald sufficient time 

to process Mr. Garcia’s meaning, formulate an alternative plan of 

action, and execute that plan of action before Mr. Garcia began

firing. Infra ¶ 115 (Lee, A.C.J., dissenting). Indeed, he argues there is 

“no reason to think that the jury believed [Ms.] Grunwald didn’t 

have ‘time to process or otherwise react to the comment.’” Infra ¶ 115

(Lee, A.C.J., dissenting). Although it is possible that the jury would 

view the situation as Justice Lee suggests, we conclude that a jury 

(Continued)
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Opinion of the Court 

21

uncertainty in the timing of events is acknowledged, there is a 

reasonable probability that the jury convicted Ms. Grunwald based 

on a finding of a reckless mental state rather than on a finding of a 

knowing one.

¶44 In fact, as we discussed above, the only direct evidence of 

Ms. Grunwald’s mental state at the time suggests she did not 

understand that Mr. Garcia intended to kill Sergeant Wride. 

Ms. Grunwald testified that she did not know Mr. Garcia intended to 

kill Sergeant Wride, and that even after Mr. Garcia had shot his gun, 

she assumed he had merely attempted to disable the police car. And 

even though she admitted that she heard Mr. Garcia say he was 

going to “buck” Sergeant Wride in the head, she testified that she 

did not know what this statement meant at the time, and that 

Mr. Garcia refused to clarify his meaning when she asked him to do 

so. So once it is acknowledged that Mr. Garcia’s statement may have 

been made immediately before the shooting occurred, rather than 

four and a half minutes before, Ms. Grunwald’s repeated insistence 

at trial that she did not understand what Mr. Garcia meant by this 

comment at the time becomes more believable. Accordingly, the 

evidence on record suggests that there is a reasonable probability 

that the jury believed her when she said she did not know what 

Mr. Garcia was going to do, but that it nevertheless convicted 

Ms. Grunwald based on a finding that she was reckless in 

disregarding the possibility that Mr. Garcia would commit the 

murder.

¶45 This conclusion is strengthened by the comments of 

Ms. Grunwald’s trial counsel during closing arguments. There, 

Ms. Grunwald’s trial counsel failed to contest that Ms. Grunwald 

had a reckless mental state. Addressing the jury, trial counsel stated 

the following: “Remember intent. Remember knowing. She has to 

have had some view of what he was doing and where he was going 

for her to be implicated as a party. . . . I’m going to ask you to find 

her not guilty, based on compulsion, based on a lack of intent, based 

on a lack of knowledge, foresight, call it what you want. Read the 

 

could reasonably have found that Ms. Grunwald’s failure to take 

affirmative steps to prevent a murder during the fifty seconds 

following Mr. Garcia’s comment did not make her a knowing or 

intentional accomplice.
STATE v. GRUNWALD

Opinion of the Court

22

instructions carefully.”50 So trial counsel expressly argued that she 

did not have an intentional or knowing mental state, but failed to 

cast doubt on the possibility of her having had a reckless mental 

state. And because the record evidence related to Ms. Grunwald’s 

mental state makes it reasonably probable that Ms. Grunwald was, at 

most, only aware that her conduct could help Mr. Garcia commit the 

crime (rather than being aware that her conduct was reasonably 

certain to help Mr. Garcia commit the crime), we conclude there is a 

reasonable probability that the failure of Ms. Grunwald’s trial 

counsel to argue against a recklessness finding led the jury to convict 

Ms. Grunwald on that ground.

¶46 In sum, the court of appeals erred in failing to consider what 

Ms. Grunwald’s subjective understanding was at the time (rather 

than what a reasonable person would have understood); and in 

treating the relevant timeline of events as undisputed. Because it is 

possible that Mr. Garcia made his “buck” comment immediately 

before shooting (rather than four and a half minutes before), and 

trial counsel failed to argue against a recklessness finding during 

closing arguments, there is a reasonable probability that the jury 

would not have convicted Ms. Grunwald absent the inclusion of 

“recklessness” in the instruction. For these reasons, the court of 

appeals erred in rejecting the possibility that the jury convicted 

based on a finding of recklessness. So we hold that its inclusion 

undermines our confidence in the verdict and thus prejudiced 

Ms. Grunwald.

_____________________________________________________________

50 In his dissent, Justice Lee suggests trial counsel’s reference to 

“foresight” was an attempt to cast doubt on the possibility of a 

recklessness determination. Infra ¶ 116 (Lee, A.C.J., dissenting). But it 

seems unlikely the jury would have equated the trial counsel’s 

reference to a lack of “foresight” with an attack on the “recklessness” 

mental state requirement. So even if trial counsel intended his 

“foresight” comment to be a reference to the “recklessness” 

requirement, his failure to explicitly mention “recklessness” 

supports our conclusion that there is a reasonable probability the 

jury based Ms. Grunwald’s conviction on a finding of recklessness. 
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Opinion of the Court 

23

II. There is a Reasonable Probability the Jury Convicted 

Ms. Grunwald for Aiding Mr. Garcia in Some Way Unconnected to 

the Commission of the Murder at Issue

¶47 The instruction also erroneously permitted conviction based 

on intentional aid that was not directly connected to the murder. As 

we explained in State v. Briggs, to prove accomplice liability, the State 

must show that the defendant acted “with the intent to aid the 

principal actor in the offense.”51 And in State v. Jeffs, we rejected an 

interpretation of the accomplice liability statute that would have 

allowed accomplice liability to be found where a person had “act[ed] 

intentionally, knowingly, or recklessly in the abstract” because such 

an interpretation “would sweep in too much innocent behavior.”52

So under our interpretation of the accomplice liability statute in 

Briggs and Jeffs, and under the text of the accomplice liability statute, 

an accomplice’s aid to the principal actor of the crime must also be 

directed toward the commission of the crime.53

¶48 In this case, the jury instruction permitted the jury to convict 

Ms. Grunwald if she intentionally aided Mr. Garcia, who committed 

the crime. The instruction should have read that Ms. Grunwald was 

guilty if she intentionally aided Mr. Garcia to commit the crime. As 

the court of appeals pointed out, by “substituting the word ‘who’ 

_____________________________________________________________

51 2008 UT 75, ¶ 13, 197 P.3d 628 (emphasis added).

52 2010 UT 49, ¶ 46, 243 P.3d 1250.

53 We clarify that, under our accomplice liability statute, aid given 

to a principal actor after the underlying crime has been committed is 

insufficient to establish accomplice liability if the alleged accomplice 

did not have the requisite mental state at the time the crime was 

committed. See State v. Bowman, 70 P.2d 458, 461 (Utah 1937) (“If he 

was an accessory after the fact, he could not become a partaker of the 

guilt, as there would be no union of criminal intent and act.”

(citation omitted)). Our opinion in Jeffs is clear on this point. It states 

that even less-than-innocent behavior does not “appropriately 

categorize an individual as an accomplice if that individual had no 

intention that the underlying crime be committed.” Jeffs, 2010 UT 49,

¶ 48. And, as an example, we cited a previous holding that “a man 

who knew that a woman wanted to kill her father and who 

concealed the murder weapon after the crime was committed was 

not an accomplice.” Id. (citing State v. Schreuder, 726 P.2d 1215, 1220 

(Utah 1986)).
STATE v. GRUNWALD

Opinion of the Court

24

[for the word ‘to,’] the instruction permitted the jury to find 

[Ms.] Grunwald guilty if she . . . aided [Mr.] Garcia in any way, so 

long as [Mr.] Garcia committed [aggravated murder].”54 Thus this 

instruction permitted the jury to convict Ms. Grunwald based on 

conduct that was not directly connected to the murder. This was also 

error.

¶49 Although the court of appeals recognized that this error in 

the jury instruction permitted the jury to convict Ms. Grunwald 

based on a finding that she helped Mr. Garcia in some way unrelated 

to the commission of the crime at issue, it ultimately concluded there 

was “no reasonable probability that the jury convicted 

[Ms.] Grunwald because she aided [Mr.] Garcia in some way other 

than to commit the crime of aggravated murder.”55 In support of this 

conclusion, the court of appeals explained that the “undisputed 

evidence showed that, after [Mr.] Garcia announced his intention, 

[Ms.] Grunwald applied the brake, enabling the truck to shift into 

drive” and that she “held her foot on the brake for three-and-a-half 

minutes while [Mr.] Garcia shifted in his seat to get into position to 

fire.”56 But, as we explained above, the timing of events in this case is 

far from undisputed. And the court’s reliance on a disputed timeline 

is even more problematic in regard to this issue.

¶50 Whether Mr. Garcia stated that he wanted to “buck” 

Sergeant Wride before or after Ms. Grunwald placed her foot on the 

brake is crucial to determining whether Ms. Grunwald intentionally 

aided Mr. Garcia to commit the murder. As the court of appeals 

noted, the State focused primarily on Ms. Grunwald’s act of putting 

her foot on the brake while Mr. Garcia prepared to fire. So if the jury 

believed that Mr. Garcia made his “buck” comment immediately 

before he began shooting, all of her conduct, which allegedly 

constituted intentional aid, would have occurred before 

Ms. Grunwald heard the comment. In other words, there would be 

_____________________________________________________________

54 State v. Grunwald, 2018 UT App 46, ¶ 39, 424 P.3d 990.

55 Id. ¶ 51.

56 Id. The dash-cam footage shows that Ms. Grunwald held her 

foot on the brake for roughly four and a half minutes. 

Approximately three minutes and forty seconds after Ms. Grunwald 

placed her foot on the brake, Mr. Garcia moved to the back seat of 

the truck. And approximately fifty seconds later, he opened the 

truck’s rear window and began firing.
Cite as: 2020 UT 9

Opinion of the Court 

25

no evidence that Ms. Grunwald’s conduct was done with the 

purpose of helping Mr. Garcia prepare to commit the crime.57 We 

therefore cannot be certain that the jury found that Ms. Grunwald’s 

act of putting her foot on the brake was intentionally done to aid 

Mr. Garcia in committing the murder.

¶51 Instead, the jury could have determined that Ms. Grunwald 

had placed her foot on the brake at Mr. Garcia’s insistence, or for 

some other reason, even though she did not know that by so doing 

she was assisting him in committing a murder. Under this factual 

scenario, Ms. Grunwald would be assisting someone who committed 

murder, but she would not be assisting someone to commit murder. 

So, because it is unclear from the record whether Ms. Grunwald put 

her foot on the brake before Mr. Garcia stated his intention to “buck” 

Sergeant Wride, there is a reasonable probability the jury would not 

have concluded that Ms. Grunwald’s act of putting her foot on the 

brake was done to intentionally aid Mr. Garcia to commit the 

murder.58

_____________________________________________________________

57 We note that the acts purportedly forming the basis of 

Ms. Grunwald’s accomplice liability for aggravated murder seem 

fairly innocuous when we do not assume she did them with the 

intent to aid in Sergeant Wride’s murder. In other words, there is 

nothing inherent in the acts of putting a foot on a brake and looking 

out of a car window during a police stop to suggest the acts were 

done with criminal intent. For this reason, those acts do not support 

a conviction unless they are considered in connection with 

Mr. Garcia’s “buck” comment. So, once it is acknowledged that those 

acts may have occurred before Mr. Garcia expressed his intent to 

“buck” Sergeant Wride, they carry little persuasive weight. Justice 

Lee disagrees with this point. And in so doing, he assumes 

Ms. Grunwald’s act of keeping her foot on the brake could only have 

had one purpose—to assist in murder. Infra ¶ 120 (Lee, A.C.J., 

dissenting) (assuming that the jury would have found that 

Ms. Grunwald kept her foot on the brake for the purpose of keeping 

“the truck steady as [Mr.] Garcia fired five shots out the back”). But, 

in the absence of any supporting direct evidence, we cannot join 

Justice Lee in making such an assumption.

58 Additionally, we note that it is potentially problematic to hold 

Ms. Grunwald criminally liable for aggravated murder for the 

continued act of holding her foot on the brake. Although 

Mr. Garcia’s “buck” comment could support the inference that 

(Continued)
STATE v. GRUNWALD

Opinion of the Court

26

¶52 It is also reasonably probable that the jury convicted 

Ms. Grunwald based on a finding that she intentionally aided 

Mr. Garcia for some other purpose. For example, the jury could have 

concluded that Ms. Grunwald intentionally held her foot on the 

brake and acted as a lookout and getaway driver in order to aid 

Mr. Garcia in disabling the police officer’s vehicle. The evidence on 

record supports this possibility. Ms. Grunwald testified that even 

after Mr. Garcia fired his gun, she did not believe he had killed 

Sergeant Wride. Instead, she testified that she thought he had tried 

to disable the police car. 

¶53 The jury also could have convicted Ms. Grunwald based on 

a finding that she aided Mr. Garcia to avoid arrest, rather than to 

commit murder. And the record evidence makes this reasonably 

probable. For example, it is clear from the record that Ms. Grunwald 

aided Mr. Garcia by not telling Sergeant Wride about Mr. Garcia’s 

gun, warrant, or true identity. And the State’s primary theory of the 

case was that Ms. Grunwald helped Mr. Garcia avoid arrest so they 

 

Ms. Grunwald held her foot on the brake with the intent or 

knowledge that by so doing she was aiding Mr. Garcia to commit 

murder, it is unclear what else Ms. Grunwald could have done once 

Mr. Garcia announced his intentions. She could have driven away or 

taken her foot off the brake, thereby allowing the truck to roll away. 

But either of these actions would have been inconsistent with 

Sergeant Wride’s instructions to wait. And they would not 

necessarily have prevented Mr. Garcia from shooting Sergeant 

Wride. She also could have put the truck in park. But, again, this 

would not have prevented Mr. Garcia from committing the murder. 

So even if the evidence clearly demonstrated that Ms. Grunwald 

continued holding her foot on the brake long after Mr. Garcia 

announced his intention to “buck” Sergeant Wride, her continued act 

of holding her foot on the brake does not inevitably lead to the 

conclusion that she was doing so to aid Mr. Garcia to commit 

murder. See Jeffs, 2010 UT 49, ¶ 47 (explaining that a person does not 

incur accomplice liability merely because he or she provides an 

opportunity for one who is disposed to commit a crime). Justice Lee 

suggests that the “whole point of having [Ms.] Grunwald put her 

foot on the brake was to give [Mr.] Garcia a quick getaway.” Infra

¶ 127 (Lee, A.C.J., dissenting). But this unsubstantiated suggestion 

fails to address our concern on this point and it assumes the very 

thing—Ms. Grunwald’s purpose in holding her foot on the brake—

that the jury instruction error prevents us from knowing in this case.
Cite as: 2020 UT 9

Opinion of the Court 

27

would not be separated. So, when this evidence is considered 

together with Ms. Grunwald’s unrebutted testimony that she did not 

know Mr. Garcia intended to murder Sergeant Wride, there is a 

reasonable probability the jury convicted her for aiding someone who

committed murder rather than by aiding someone to commit 

murder.59 And this creates a reasonable probability the jury would 

not have convicted her absent the jury instruction error.

¶54 Additionally, the jury could have convicted Ms. Grunwald 

based on the finding that she helped Mr. Garcia by doing the things 

he told her to do, even though she did not know that by doing them 

she was aiding Mr. Garcia to commit murder. In other words, the 

jury could have found that she intentionally aided Mr. Garcia in the 

abstract by complying with his demands even though she did not 

know the purpose behind the demands. Her trial testimony is 

entirely consistent with this theory, and, as we discuss below, the 

jury’s finding regarding compulsion does not necessarily undermine 

it.60

¶55 The court of appeals determined, however, that this last 

possibility was “highly improbable” because the State “focused 

solely” on actions close in time to the shooting during its closing 

argument.61 But we cannot merely assume that the jury accepted the 

State’s theory of the case. Instead, we must consider the totality of 

the evidence. And in considering this evidence, we must avoid 

making assumptions regarding a jury’s thinking that go beyond

what can be reasonably gleaned from the correct portions of a jury 

instruction.

62

_____________________________________________________________

59 Although the record clearly demonstrates that the State focused 

on Ms. Grunwald’s efforts to help Mr. Garcia avoid arrest, Justice 

Lee states that there is only a remote possibility the jury convicted 

her on this basis. Infra ¶ 123 (Lee, A.C.J., dissenting). As with his 

other points of disagreement, this point appears to hinge on his

assessment of Ms. Grunwald’s credibility as a witness. But, again, we 

do not share Justice Lee’s certainty that the jury would “discount 

anything and everything in [Ms.] Grunwald’s testimony that went in 

her favor.” Infra ¶ 113 (Lee, A.C.J., dissenting).

60 See infra ¶¶ 63–75.

61 Grunwald, 2018 UT App 46, ¶ 52.

62 See State v. Barela, 2015 UT 22, ¶ 30, 349 P.3d 676.
STATE v. GRUNWALD

Opinion of the Court

28

¶56 For example, in State v. Barela, we held that we could not 

“properly conclude that the jury found [a rape victim’s] account 

‘credible’” even though the jury had convicted the defendant of 

rape.63 This was so, we explained, because an error in the jury 

instruction regarding the mental state requirement limited what we 

could assume about the jury’s guilty verdict.64 So, even though both 

sides told drastically different stories, and it was clear based on the 

conviction that the jury did not accept the defendant’s story in full, 

we explained that the jury’s apparent rejection of part of the 

defendant’s story did not mean the “jury accepted [the victim’s] 

story lock, stock, and barrel.”65 Instead, we explained that “[t]he jury 

could easily have thought that the truth fell somewhere in between 

the two accounts.”66

¶57 Similarly, in this case we cannot assume that the jury 

accepted every aspect of the State’s version of events. In arguing that 

Ms. Grunwald aided Mr. Garcia to commit murder, the State focused 

on her acts of placing her foot on the brake, shifting into gear, 

waiting with her foot on the brake in preparation for their escape, 

and acting as a lookout so that Mr. Garcia could open fire when no 

other cars were driving by. It is possible, however, that the jury came 

to different conclusions from these facts than the conclusions 

suggested by the State.

67 The court of appeals rejected the possibility 

that the jury found that Ms. Grunwald directed her actions to some 

purpose other than the commission of the principal crime solely 

because it was inconsistent with the theory the State presented 

during closing arguments. This was error. And, for the reasons 

discussed above, we find that the record evidence makes it 

reasonably probable that the jury determined that Ms. Grunwald 

_____________________________________________________________

63 Id. In that case, we determined that the jury instruction 

regarding the mental requirement as to defendant’s understanding 

of the victim’s consent was erroneous.

64 Id.

65 Id.

66 Id.

67 It is likewise possible that the jury came to different conclusions 

than those suggested by Justice Lee. See infra ¶ 126 (assuming that 

Ms. Grunwald’s acts of looking out the window and putting her foot 

on the brake were done to assist in Sergeant Wride’s murder).
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Opinion of the Court 

29

intentionally aided Mr. Garcia, but not necessarily to help him 

commit murder. Accordingly, we conclude the court of appeals 

erred in concluding that this error did not result in prejudice.68

III. There is a Reasonable Probability That the Jury Convicted 

Ms. Grunwald Based on a Finding That She Knew Mr. Garcia Was 

Going to Shoot Sergeant Wride, Even Though She Did Not 

Knowingly Aid Mr. Garcia’s Commission of the Crime

¶58 Finally, the jury instruction also erroneously permitted 

conviction based on a finding that Ms. Grunwald knew Mr. Garcia’s

actions were reasonably certain to result in murder, rather than on a 

finding that her own actions were intended to help Mr. Garcia in 

committing murder. 

¶59 Under Utah’s accomplice liability statute, “[e]very person, 

acting with the mental state required for the commission of an 

offense . . . who solicits, requests, commands, encourages, or 

intentionally aids another person” to commit a crime “shall be 

_____________________________________________________________

68 Justice Lee characterizes our analysis on this point as a quarrel 

“over the sufficiency of the actus reus for which [Ms.] Grunwald was 

charged and convicted.” Infra ¶ 128 (Lee, A.C.J., dissenting). But,

because there was not a special verdict form, we do not know what 

actus reus the jury based its conviction upon. And the lack of a 

special verdict form compounds the problem caused by instructing 

the jury to determine whether Ms. Grunwald intentionally aided 

someone “who” committed murder instead of intentionally aiding 

someone “to” commit murder. Because of this error, the jury was 

permitted to convict Ms. Grunwald based on an act to assist 

Mr. Garcia for a non-criminal purpose. In other words, it may have 

allowed the jury to convict her for an act unrelated to the murder. 

Justice Lee acknowledges that the jury was incorrectly instructed on 

this point. But his analysis suggests that he assumes the jury would 

have premised its guilty verdict on only those acts that were done to

assist in murder. Infra ¶¶ 126–28 (Lee, A.C.J., dissenting). So his 

analysis assumes as true the very thing the jury instruction error 

prevents us from knowing. Because the verdict form and the jury 

instructions do not inform us of the act upon which the jury based its 

guilty verdict, our analysis is focused on determining what acts the 

jury was reasonably probable to have based its decision on in light of 

the jury instruction error.
STATE v. GRUNWALD

Opinion of the Court

30

criminally liable as a party for such conduct.”69 So, under this 

statute, a person is not criminally liable unless he or she takes some 

action with the mental state required for the commission of the 

underlying offense. For this reason, the first step in applying 

accomplice liability is to determine whether the individual charged 

as an accomplice acted with the intent that an underlying offense be 

committed.70

¶60 “Additionally, when prosecuting an accomplice for aiding in 

the commission of a crime, the State must show that the accomplice 

had the intent to aid.”71 So, in this case, to prove that Ms. Grunwald 

was liable as an accomplice in Sergeant Wride’s murder, the State 

needed to prove that she intentionally aided Mr. Garcia to commit 

the murder and that she so acted with the intent or knowledge that 

the murder would be committed.

¶61 In State v. Jeffs, we specifically discussed what it meant for 

an accomplice’s action to be done with the knowledge that the 

underlying offense be committed.72 We explained that “[a] person 

acts knowingly, or with knowledge, with respect to a result of his

conduct when he is aware that his conduct is reasonably certain to 

cause the result.”73 And this language was taken directly from 

_____________________________________________________________

69 UTAH CODE § 76-2-202 (emphasis added).

70 See State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628; see also State v. 

Jeffs, 2010 UT 49, ¶ 43, 243 P.3d 1250 (explaining that when we used 

the term “intent” in Briggs, we did so as “a legal term of art that 

means ‘[t]he state of mind accompanying an act.’” (quoting Intent, 

BLACK’S LAW DICTIONARY, 881 (9th ed. 2009) (alteration in original)).

71 Briggs, 2008 UT 75, ¶ 15 (emphasis added).

72 2010 UT 49, ¶ 45.

73 Id. (emphasis added) (citation omitted). We clarify that despite 

the use of the word “cause,” our Jeffs opinion should not be read to 

require that an accomplice’s conduct be a but-for cause of the 

underlying crime for liability to incur. Instead, the phrase “cause the 

result” used in our Jeffs opinion should be read to require only that 

the accomplice knowingly committed his or her own actus reus in 

order to help the underlying crime be committed. This reading of 

Jeffs is consistent with our case law. We have interpreted the 

accomplice liability statute (Utah Code section 76-2-202) to mean that 

an “accomplice must . . . have the intent that the underlying offense 

(Continued)
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Opinion of the Court 

31

Utah Code section 76-2-103(2), the provision defining a knowing 

mental state. So under statute and case law, to find a defendant 

guilty as a knowing accomplice, the jury must determine that the 

defendant was aware that the defendant’s conduct was reasonably 

certain to “solicit[], request[], command[], [or] encourage[]” or 

“intentionally aid[]” the principal actor “to engage in conduct which 

constitutes an offense.”74 The knowing-mental-state instruction in 

this case failed to accurately describe this requirement.

¶62 The instruction in this case stated that the jury could convict 

Ms. Grunwald if the jury found she intentionally aided Mr. Garcia 

and she “[w]as aware that [Mr. Garcia’s] conduct was reasonably 

certain to result in [Mr. Garcia] committing the crime of Aggravated 

Murder.” Thus, the instruction permitted the jury to convict 

Ms. Grunwald if it found that she intentionally aided Mr. Garcia and 

was aware that his conduct would result in murder, even if she did 

not realize that her decision to aid Mr. Garcia would facilitate 

Mr. Garcia’s commission of the crime. But, as our statement in Jeffs

indicates, the instruction should have required a finding that 

Ms. Grunwald committed her actus reus in order to assist Mr. Garcia 

in committing the crime of aggravated murder. So the “knowing” 

instruction incorrectly described this requirement.

75

 

be committed.” Briggs, 2008 UT 75, ¶ 14. So, to “show that a 

defendant is guilty under accomplice liability, the State must show 

that an individual acted with both the [required mental state] that 

the underlying offense be committed and the [required mental state] 

to aid the principal actor in the offense.” Id. ¶ 13. This means the 

State must show that the defendant knowingly or intentionally 

committed the actus reus to help the principal actor in committing the 

crime. We do not believe our use of the word “cause” in Jeffs was 

intended to alter this requirement.

74 UTAH CODE § 76-2-202.

75 We note, however, that had the jury instructions not contained 

the error discussed in Part II of this opinion (incorrectly allowing the 

jury to base a conviction on an action that assists someone “who” 

happened to commit murder instead of requiring the jury to base a 

conviction on an action done “to” assist someone in committing 

murder), the failure to reference Ms. Grunwald’s conduct in the 

knowing-mental-state portion of the instruction may have been 

harmless. This is so because the use of the word “to” rather than 

“who” would have required the jury to find the necessary 

(Continued)
STATE v. GRUNWALD

Opinion of the Court

32

¶63 As with the other errors, the court of appeals concluded 

there was not a “reasonable probability that the jury convicted 

[Ms.] Grunwald on the theory that she knew [Mr.] Garcia was going 

to shoot Sergeant Wride but did not know that her conduct would 

result in [Mr.] Garcia committing that crime.”76 According to the 

court, this was so because Ms. Grunwald’s “defense at trial 

depended on the jury believing her claim that [Mr.] Garcia pointed 

his gun at her head, compelling her to assist him,” and so the court 

assumed that by “returning a guilty verdict, the jury necessarily 

rejected” Ms. Grunwald’s entire defense.77 But this reasoning rests 

on a mischaracterization of Ms. Grunwald’s trial strategy. And after 

correctly characterizing her trial strategy, and considering a totality 

of the evidence, we conclude there is a reasonable probability the 

jury convicted Ms. Grunwald based on a finding that she knew that 

Mr. Garcia intended to kill Sergeant Wride even though she did not 

knowingly hold her foot on the brake to assist him in doing so.

¶64 The court of appeals erred in characterizing the trial strategy 

of Ms. Grunwald’s trial counsel. The State describes Ms. Grunwald’s 

 

connection between Ms. Grunwald’s actions and Mr. Garcia’s 

commission of the murder.

Additionally, we note that the court of appeals held that the jury 

instruction in this case contained three separate errors, and neither 

party has challenged this holding. And we organized our analysis 

accordingly. But, because the issues discussed in Parts II and this 

Part both concern a failure to connect Ms. Grunwald’s actions to the 

underlying crime, we could have chosen to analyze the jury 

instruction language discussed in both Parts as though it constituted 

a single error. Had we done that, we would have analyzed how the 

reference to Mr. Garcia’s conduct, rather than Ms. Grunwald’s 

conduct, in the knowing-mental-state portion of the instruction 

served to amplify the prejudice created by the erroneous substitution 

of “who” for “to” in the earlier portion of the jury instruction. So 

even were we to conclude, as does Justice Lee in his dissent, that the 

reference to Mr. Garcia’s conduct did not constitute an error on its 

own, that reference would still be relevant as part of our prejudice 

discussion of the single error in Part II. In other words, whether we 

characterize the jury instruction in this case as containing two errors, 

or three, does not affect our ultimate conclusion on this point.

76 State v. Grunwald, 2018 UT App 46, ¶ 53, 424 P.3d 990.

77 Id.
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Opinion of the Court 

33

trial counsel as having conceded, by presenting a compulsion 

defense, that Ms. Grunwald intentionally aided Mr. Garcia to 

commit murder. But trial counsel never made such a concession. 

Although trial counsel’s primary theory was that Ms. Grunwald took 

each of her actions because Mr. Garcia threatened her, he also argued 

that Ms. Grunwald neither intended for Mr. Garcia to kill 

Sergeant Wride nor knew that Mr. Garcia intended to do so.78

¶65 Speaking to the jury during closing arguments, trial counsel 

stated the following:

Remember intent. Read those . . . instructions carefully. 

Remember intent. Remember knowing. She has to have 

had some view of what he was doing and where he 

was going for her to be implicated as a party. . . . I’m 

going to ask you to find her not guilty, based on 

compulsion, based on a lack of intent, based on lack of 

knowledge, foresight, call it what you want. Read the 

instructions carefully.

As these statements to the jury indicate, although trial counsel 

advanced a compulsion theory, he did not concede that 

Ms. Grunwald intentionally aided Mr. Garcia to commit the murder. 

Instead, he argued that although Mr. Garcia compelled her to act, 

she did not intend, or know, that her compliance with Mr. Garcia’s 

demands would result in Sergeant Wride’s death. For this reason, 

the court of appeals erred in concluding that Ms. Grunwald’s 

defense at trial wholly depended on the jury accepting her 

compulsion defense.

¶66 The court of appeals also erred in concluding that the jury’s 

alleged rejection of the compulsion defense left only one reasonable 

conclusion regarding Ms. Grunwald’s mental state: “that 

[Ms.] Grunwald intended or knew that her conduct” would result in 

Mr. Garcia committing the crime of aggravated murder.79 This 

conclusion is erroneous because it is based on an unfounded 

assumption and it fails to take a key portion of the jury instructions 

into account.

_____________________________________________________________

78 He also argued that the State had failed to prove any planning 

or preparation.

79 Grunwald, 2018 UT App 46, ¶ 53.
STATE v. GRUNWALD

Opinion of the Court

34

¶67 The court of appeals’ conclusion is erroneous because it is 

based on an unfounded assumption. “In making the determination 

whether the specified errors resulted in the required prejudice, a 

court should presume, absent challenge to the judgment on grounds 

of evidentiary insufficiency, that the judge or jury acted according to 

law.”80 In the context of an erroneous jury instruction, this means we

should presume that the jury acted consistent with those parts of the 

instructions that were provided correctly, and “exclude the 

possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the 

like.”81 So in listing the possible scenarios in which the jury could 

have erroneously convicted the defendant, we must use the correct 

portions of the instructions as a parameter for what the jury could 

have possibly concluded.

¶68 For example, in this case “we [may] assume that the jury 

found beyond a reasonable doubt both that [Mr.] Garcia committed 

the principal crimes and that [Ms.] Grunwald ‘intentionally, 

knowingly, or recklessly solicited, requested, commanded, 

encouraged, or intentionally aided’ [Mr.] Garcia” in some way.82 As 

the court of appeals noted, Ms. Grunwald “does not challenge these 

aspects of the accomplice jury instructions or the sufficiency of the 

evidence to support these findings.”83

¶69 But even though we may assume the jury properly followed 

the correct portions of the jury instructions, we must also 

acknowledge that, absent a special verdict form, we “cannot 

determine with certainty whether [the defendant] was convicted on 

the basis of” one theory or another.84 So we cannot make logical 

jumps or exclude any possible theory (or, in other words, any 

possible conviction scenario) until we consider a totality of the 

evidence. The court of appeals erred in this respect.

¶70 As we have discussed, the court of appeals based its 

prejudice determination on the assumption that “[i]n returning a 

guilty verdict, the jury necessarily rejected [Ms. Grunwald’s] 

_____________________________________________________________

80 Strickland v. Washington, 466 U.S. 668, 694 (1984).

81 Id. at 695.

82 Grunwald, 2018 UT App 46, ¶ 46.

83 Id.

84 Jeffs, 2010 UT 49, ¶ 38.
Cite as: 2020 UT 9

Opinion of the Court 

35

compulsion defense.”85 And for this reason, the court concluded that 

“the only reasonable conclusion from the evidence was that 

[Ms.] Grunwald intended or knew that her conduct . . . would result 

in [Mr.] Garcia committing the crime of aggravated murder.”86 But 

this conclusion did not necessarily follow from the jury’s rejection of 

Ms. Grunwald’s compulsion defense.

¶71 The jury was instructed that, under the defense of 

compulsion, “a person is not guilty of a crime if she acted because 

she was coerced to do so by (1) someone’s use of unlawful force 

against her or someone else; or (2) someone’s threat to use imminent 

unlawful force against her or someone else.” So, based on the jury’s 

rejection of the compulsion defense, we could reasonably conclude 

that the jury found that Ms. Grunwald acted of her own free will in 

some way.

¶72 But that does not inevitably lead to the conclusion that the 

jury found that Ms. Grunwald acted freely and knew or intended 

that her actions would assist Mr. Garcia in murdering Sergeant 

Wride. This may be a reasonable conclusion, but it is not the only 

reasonable conclusion that could be drawn. As we explained above, 

although Ms. Grunwald’s trial counsel advanced a compulsion 

theory, he did not concede that Ms. Grunwald intentionally aided 

Mr. Garcia to commit the murder in question. Instead, he argued 

that although Mr. Garcia compelled her to act, she did not intend for 

Mr. Garcia to kill Sergeant Wride, nor did she know that by 

complying with Mr. Garcia’s demands Sergeant Wride would die. So 

the jury could have concluded that even though Ms. Grunwald was 

not compelled to place her foot on the brake, she did not do so to

help Mr. Garcia commit murder.

¶73 What is more, the court of appeals’ conclusion regarding the 

jury’s rejection of the compulsion defense ignores an important 

aspect of the compulsion instruction. In addition to the elements of 

compulsion listed above, the compulsion jury instruction also states 

that “[t]he defense of compulsion is not available if the defendant 

intentionally, knowingly, or recklessly placed herself in a situation 

where it was probable that she would be subjected to such duress.” 

So, based on this language, the jury could have concluded that 

Ms. Grunwald did not act freely, but that the defense of compulsion 

_____________________________________________________________

85 Grunwald, 2018 UT App 46, ¶ 53.

86 Id. (emphasis added).
STATE v. GRUNWALD

Opinion of the Court

36

did not apply because she had intentionally, knowingly, or 

recklessly placed herself in the situation in which her freedom was 

compromised. In other words, this aspect of the compulsion 

instruction introduces the possibility that the jury believed 

Ms. Grunwald when she testified that Mr. Garcia held a gun to her 

head, threatened her, and ordered her to put her foot on the brake, 

but that the jury nevertheless rejected her compulsion defense 

because she had intentionally, knowingly, or recklessly placed 

herself in the situation in which her freedom was compromised. And 

the record suggests that this conclusion is reasonably probable.

¶74 As Justice Lee notes in his dissent, Ms. Grunwald “clearly 

knew that her boyfriend was a violent person with a troubling 

criminal record” and “just weeks before [Sergeant] Wride’s murder, 

[Ms. Grunwald] witnessed [Mr.] Garcia get into a heated argument 

with (and possibly even pull a gun on) her father.”87 And the record 

indicates that Mr. Garcia was extremely agitated when he was 

urging Ms. Grunwald to go on the car ride in which Mr. Garcia 

murdered Sergeant Wride. Based on this evidence, the jury could 

have concluded that Ms. Grunwald had intentionally, knowingly, or 

recklessly placed herself in a compromising situation. So the jury’s 

rejection of Ms. Grunwald’s compulsion defense does not tell us 

anything regarding whether Ms. Grunwald was a willing participant 

in the murder.88

¶75 Accordingly, the court of appeals erred in assuming that the 

jury found that Ms. Grunwald intended or knew that her conduct 

would assist in Mr. Garcia committing the crime of aggravated 

murder. Because we cannot assume, from the guilty verdict, that the 

jury found that Ms. Grunwald intended or knew that her conduct 

contributed to the crime at issue, we must consider the record 

evidence to determine whether there is a reasonable probability the 

jury convicted Ms. Grunwald based on a finding that she knew that 

_____________________________________________________________

87 Infra ¶ 93 (Lee, A.C.J., dissenting).

88 Justice Lee likewise fails to account for this portion of the 

compulsion instruction. In his dissent, he states that, in his view, 

“the jury’s rejection of the compulsion defense weighs against 

[Ms.] Grunwald’s assertions of prejudice.” Infra ¶ 92 (Lee, A.C.J., 

dissenting). But, because we do not know the basis for the jury’s 

rejection of the compulsion defense, this rejection does not weigh 

one way or the other.
Cite as: 2020 UT 9

Lee, A.C.J., dissenting

37

Mr. Garcia was going to commit the crime, but did not knowingly 

act to help him commit the crime. We conclude there is.

¶76 The evidence on record supports a reasonable probability 

that the jury convicted Ms. Grunwald based on her knowledge of 

Mr. Garcia’s intentions, rather than on any awareness of her own 

role in the murder. For example, even though Ms. Grunwald 

testified that she heard Mr. Garcia say he was going to “buck” 

Sergeant Wride, she testified that this statement was made after she 

had already been holding her foot on the brake for a number of 

minutes and shortly before Mr. Garcia began shooting.

¶77 So the jury could have simultaneously accepted this 

testimony, which suggests she did not know that her own conduct 

would aid Mr. Garcia in committing murder, while also finding her 

guilty because the testimony suggests that immediately before the 

shooting, but after she aided Mr. Garcia, she may have become 

aware of Mr. Garcia’s intentions. Accordingly, we conclude there 

was a reasonable probability that the jury found that Ms. Grunwald 

did not commit any act with the purpose of helping Mr. Garcia 

commit murder, but that it nevertheless convicted her based on the 

finding that she knew Mr. Garcia was going to shoot Sergeant 

Wride.

Conclusion

¶78 Because the jury instruction discussing the elements for 

accomplice liability on aggravated murder contained three errors, 

and there is a reasonable probability that the jury would not have 

convicted Ms. Grunwald in the absence of those errors, our 

confidence in the guilty verdict is undermined. Accordingly, we 

reverse her aggravated murder conviction and remand for a new 

trial.

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶79 In January 2014, Sergeant Cory Wride noticed Meagan 

Grunwald’s truck stopped on the side of the highway and pulled 

over to investigate. This would be the last act of public service he 

would ever perform. As Wride sat in his vehicle, Grunwald placed 

her foot on the brake to allow her boyfriend, Jose Garcia, to shift the 

truck into drive and aim a gun through the rear window. Grunwald 

held the truck steady as Garcia made good on his promise to “buck 

[Wride] in the fucking head” by firing seven bullets into Wride’s 

patrol car. Wride died shortly thereafter. 
STATE v. GRUNWALD

Lee, A.C.J., dissenting

38

¶80 Grunwald and Garcia continued their rampage as the police 

gave chase. At one point, Grunwald slowed her truck down to allow 

Garcia to shoot and wound another officer. After their truck was 

disabled, Grunwald waved down a passing vehicle so Garcia could 

order a pregnant driver and her child out of the car. The chase ended 

in a fatal shootout after Grunwald and Garcia abandoned their 

stolen vehicle and ran toward another. As Garcia lay bleeding and 

dying, Grunwald began screaming at the police, “You fucking ass 

holes, you didn’t have to shoot him. You fucking shot him. Oh my 

God, you fucking shot him.”

¶81 Grunwald pleaded not guilty to all charges, asserting a 

compulsion defense and claiming that Garcia had kidnapped her 

and threatened to kill her and her family. The jury found her guilty 

as charged, convicting her for (among other things) acting as an 

accomplice to the aggravated murder of Sergeant Wride. 

¶82 Grunwald challenged her convictions on appeal, asserting in 

part that her trial counsel was ineffective for failing to object to 

errors in the jury instruction related to her murder charge. The

instruction allowed the jury to convict Grunwald as an accomplice to

aggravated murder if it found that she “[i]ntentionally, knowingly, 

or recklessly solicited, requested, commanded, encouraged, or

intentionally aided [Garcia] who” committed the elements of the 

principal crime and it also found that she “[i]ntended that [Garcia] 

commit the [principal crime], or . . . [w]as aware that [Garcia’s] 

conduct was reasonably certain to result in [Garcia] committing the 

[principal crime], or . . . [r]ecognized that her conduct could result in 

[Garcia] committing the [principal crime] but chose to act anyway

. . . .” State v. Grunwald, 2018 UT App 46, ¶ 31, 424 P.3d 990 (internal 

quotation marks omitted) (emphasis in original). Grunwald 

identified three alleged errors in this instruction. She claimed that it 

erroneously allowed a conviction if Grunwald (1) “recklessly” aided 

Garcia, (2) aided Garcia in some way unconnected to Wride’s 

murder, or (3) aided Garcia knowing that his actions (as opposed to 

her own) were reasonably certain to result in Wride’s murder. Id.

¶ 32.

¶83 The court of appeals agreed that the jury instructions were 

in error on all three counts and concluded that Grunwald’s counsel 

was deficient in failing to object to them. Id. ¶¶ 24, 32. But it upheld 

Grunwald’s conviction as an accomplice to aggravated murder 

because she failed to show prejudice. Id. ¶ 54. It held that Grunwald 

had not established that there was a reasonable probability that a 
Cite as: 2020 UT 9

Lee, A.C.J., dissenting

39

correct jury instruction would have led to a different outcome at 

trial. Id. ¶ 49.

¶84 The court of appeals got the prejudice analysis right. The 

majority is wrong to overturn its decision and reverse Grunwald’s 

conviction despite the overwhelming evidence against her. 

Grunwald was no idle, ignorant bystander. She was at least a

knowing collaborator in her boyfriend’s acts of murder—as 

evidenced by her knowledge of his criminal background, threats 

against her father, violent behavior on the way to the murder scene 

(firing shots out the car window), and stated intention to shoot 

Sergeant Wride in the head, as well as her own participation in the 

second shooting and carjacking that followed. 

¶85 I agree that the first two errors alleged by Grunwald should 

have generated an objection from trial counsel. But I respectfully 

dissent because I disagree with the majority’s prejudice analysis both 

on the law and under the facts in the record. The majority’s prejudice 

analysis is legally problematic because it turns on an assessment of 

what the jury likely did or could have done with an incorrect jury 

instruction. See supra ¶¶ 36, 40, 43–44, 52–54, 63, 75–77. But this is not 

the governing standard of prejudice. In a case (like this one) 

involving a claim for ineffective assistance of counsel, the standard 

for assessing prejudice turns on what a jury would reasonably likely 

have done with a correct jury instruction. See Strickland v. Washington, 

466 U.S. 668, 694 (1984). I dissent from the court’s attempt to revise 

and reformulate this standard. And I also dissent from the majority’s 

conclusion that Grunwald carried her burden of establishing 

prejudice under this standard. For reasons noted above and 

explained further below, I see no basis for a determination of a 

reasonable probability that a properly-instructed jury would have 

acquitted Grunwald of the charge against her.

¶86 The court of appeals concluded that the jury instruction in

this case contained a third error—the failure to require proof that 

Grunwald knew her own actions were “reasonably certain to result 

in” Wride’s murder. Grunwald, 2018 UT App 46, ¶ 46. This 

requirement is arguably rooted in dicta in our opinion in State v. Jeffs, 

2010 UT 49, ¶ 45, 243 P.3d 1250. But that dicta is incompatible with 

the terms and conditions set forth in Utah Code section 76-2-202 as 

interpreted in our opinion in State v. Briggs, 2008 UT 75, 197 P.3d 628. 

And the majority in this case rightly repudiates the dicta and clarifies 

the governing standard. See supra ¶ 61 n.73. I endorse that portion of 

the majority opinion but conclude that the repudiation of the dicta in 
STATE v. GRUNWALD

Lee, A.C.J., dissenting

40

Jeffs effectively collapses the third alleged error in the jury 

instruction into the second.

¶87 In the paragraphs below I consider each of the alleged errors 

noted above and explain the basis for my dissenting position. First I 

acknowledge that counsel was deficient in failing to object to an 

instruction allowing the jury to convict Grunwald if it found she 

only “recklessly” aided Garcia in the murder, but I conclude that 

there is no reasonable probability that a properly-instructed jury 

would have entered an acquittal. Next I concede that counsel was 

deficient in failing to object to an instruction allowing the jury to 

convict Grunwald if it found that she helped Garcia for some 

purpose other than to kill Wride, but again I determine that this 

error did not result in prejudice. And lastly I endorse the majority’s 

decision to repudiate dicta in Jeffs requiring that an accomplice know 

that her own actions themselves are reasonably certain to result in 

the principal crime. 

I

¶88 I agree with the majority that trial counsel was deficient in 

failing to object to a jury instruction allowing the jury to convict 

Grunwald if it found that she only “recklessly” aided in Garcia’s 

commission of aggravated murder. See supra ¶ 34. But I see no basis 

for the conclusion that the failure to object to this instruction was 

prejudicial.

A

¶89 The standard for judging Strickland prejudice is set forth in 

controlling precedent from the United States Supreme Court. Our 

own decisions have also elaborated on the standard. A showing that 

trial counsel was deficient is not alone sufficient to justify a reversal. 

The defendant must also establish prejudice under a counterfactual 

analysis, showing that there is a “reasonable probability” that “the 

result of the proceeding would have been different” absent counsel’s 

errors. Strickland v. Washington, 466 U.S. 668, 694 (1984); see also State 

v. Garcia, 2017 UT 53, ¶¶ 28, 42, 424 P.3d 171 (stating that, in the 

context of counsel’s failure to object to erroneous jury instructions,

the court must “ask if the defendant has met the burden of showing 

that the decision reached would reasonably likely have been 

different absent the errors” (quoting Strickland, 466 U.S. at 695–96)).

¶90 We have clarified that “[a] reasonable probability of a 

different outcome is in no way synonymous with . . . ‘any reasonable 

basis in the evidence.’” Garcia, 2017 UT 53, ¶ 44 (citation omitted). 

The “reasonable probability” standard is a “relatively high hurdle to 

overcome.” Id. It is not enough to merely “show that the errors had 
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Lee, A.C.J., dissenting

41

some conceivable effect on the outcome of the proceeding.” 

Strickland, 466 U.S. at 693. The probability of a different outcome 

must be “reasonable.” Id. at 694. And here I see nothing more than a 

conceivable possibility that a jury that had been properly instructed 

to find that Grunwald’s intentional aid was given intentionally or 

knowingly (and not merely recklessly) would have rendered a 

different verdict. 

¶91 In convicting Grunwald, the jury rejected her defense that 

she was compelled to act as Garcia’s accomplice. And with good 

reason. Not only did Grunwald hold the brake for several minutes as 

the pair waited for a gap in traffic, she did so even as Garcia 

announced his intention—twice—to “buck [Wride] in the fucking 

head.” And she prevented the truck from jerking forward until 

Garcia had fired five of his seven shots out the rear window.

¶92 The jury’s rejection of the compulsion defense may not 

necessarily mean that the jury rejected all of Grunwald’s arguments. 

See supra ¶¶ 56–57. But the jury verdict can inform our analysis of 

whether it is reasonably probable that a properly_instructed jury 

would have reached a different verdict. And the jury’s rejection of 

the compulsion defense weighs against Grunwald’s assertions of 

prejudice in light of the totality of the evidence in the record.

¶93 The record evidence that Grunwald knowingly assisted in 

her boyfriend’s murder of Sergeant Wride was extensive and 

compelling. First we should consider the knowledge that Grunwald 

brought with her on the day of the murder. She clearly knew that her 

boyfriend was a violent person with a troubling criminal record. She 

had told a friend that Garcia had been in prison for “almost kill[ing] 

a guy” with a screwdriver. She testified that she was aware that he 

had been convicted of manslaughter and that her cousin had told her 

about his “previous crime” and sent her an article with “some pretty 

serious facts in it.” And just weeks before Wride’s murder, she 

witnessed Garcia get into a heated argument with (and possibly 

even pull a gun on) her father.

¶94 Grunwald took this knowledge with her when she got into 

the truck with Garcia on the day of the murder. And she could not 

have reasonably thought that they were going out for a cruise; when 

Grunwald initially resisted Garcia, saying that she needed to pack, 

Garcia angrily threatened, “If you don’t go with me, stuff’s going to 

happen.” Garcia’s actions en route to the murder scene would not 

have dispelled Grunwald’s understanding of Garcia’s mindset. As 

they drove past a Maverik convenience store, Garcia fired two 
STATE v. GRUNWALD

Lee, A.C.J., dissenting

42

gunshots out the window. And when Wride pulled up behind them, 

Garcia vowed he was “not going back to prison.”

¶95 This is the background against which the jury would have 

considered Grunwald’s testimony about Garcia’s threats to “buck” 

Wride in the “head.” Garcia made those threats while readying and 

positioning his gun to fire out the back window of the truck. Under 

these circumstances, there could have been no doubt about Garcia’s 

intentions. Surely he wasn’t talking about the “head” of the officer’s 

car. He was speaking of shooting the officer dead in the head—a 

move that, again, could not have been a surprise to Grunwald given 

her knowledge of her boyfriend’s past and his actions earlier that 

day.

¶96 Granted, Grunwald testified that she didn’t understand that 

Garcia was talking about killing Sergeant Wride. But the jury was 

entitled to find that testimony utterly lacking in credibility. And in 

light of all of the evidence set forth here, I conclude that any 

reasonable jury would have done just that—and thus would also 

have been likely to disregard all her other claims of 

misunderstanding. This thoroughly devastates Grunwald’s 

assertions of prejudice. If any reasonable jury would have found that 

she was lying about not knowing what Garcia meant when he 

threatened to “buck him” in the “head,” and therefore found her to 

lack credibility as a witness, then there is no reasonable probability 

that a properly-instructed jury would have found that she acted only 

recklessly. 

¶97 The majority faults me for “disregard[ing] the only direct 

evidence we have of what occurred inside Ms. Grunwald’s truck”—

Grunwald’s testimony. Supra ¶ 30. But I am not disregarding that 

testimony. I am viewing it in light of all the evidence in the record—

what occurred outside and inside the truck. Some of the relevant 

evidence is direct and some is circumstantial. But nothing in our law 

requires us to credit direct evidence over circumstantial evidence. 

When the direct evidence (testimony) is utterly lacking in credibility, 

the law is to the contrary. The prejudice inquiry asks about 

reasonable probabilities, and that necessarily requires us to make a 

counterfactual determination as to how a properly-instructed jury 

would have assessed all the evidence. 

¶98 The majority breaks two points of new ground in 

concluding otherwise: (a) it suggests that “direct” testimony is 

somehow categorically more weighty in Strickland prejudice 

analysis, supra ¶¶ 30, 50 n.57; and (b) it rejects the propriety of 

credibility assessments and “assumptions” about what the jury 
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Lee, A.C.J., dissenting

43

would do with the considerations that I have highlighted, see supra

¶¶ 30, 40 n.47, 43 n.48, 53 n.59. But these premises are incompatible 

with controlling precedent from the U.S. Supreme Court. Strickland

prejudice is all about the counterfactual. See 466 U.S. at 694. And that 

counterfactual analysis is to be performed in light of the “totality” of 

the evidence in the record—not just some of it. See id. at 695 (“[A]

court hearing an ineffectiveness claim must consider the totality of 

the evidence before the judge or jury.”). The majority alters that 

construct in its decision today. Fidelity to binding precedent requires 

us to consider any and all evidence in the record in conducting the 

Strickland prejudice inquiry. Circumstantial evidence cannot be 

categorically discounted. Nor can we be required to forgo an 

assessment of the reasonable likelihood of a jury’s assessment of a 

witness’s credibility.89 And the majority’s contrary conclusion today 

will confuse and distort our law going forward.

¶99 The majority’s prejudice analysis is also undermined by 

Grunwald’s actions after Wride’s murder. In the hour and a half 

between the shooting and the police chase, Grunwald had a phone 

conversation with her mother. She appears to have been completely 

calm—her mother could remember nothing important about the call, 

while Grunwald testified that her mother simply asked whether she 

was okay and whether she had taken the garbage out.90 After the 

police chase began and Grunwald and Garcia abandoned 

Grunwald’s truck near the Nephi Main Street exit, Grunwald ran 

after Garcia, following “wherever he went.” As they ran toward the 

underpass, Garcia fired several shots at officers and vehicles near the 

_____________________________________________________________

89 The majority’s complaint about my determination of the jury’s 

likely assessment of Grunwald’s credibility is perplexing. Nothing in 

the Strickland line of cases requires us to take a defendant’s 

testimony as gospel truth in deciding whether a reasonable jury 

would have come to a different conclusion with a different jury 

instruction. The majority’s criticism is especially troubling given the 

fact that Grunwald’s testimony—the “direct evidence” it makes so 

much of—was inconsistent and contradictory. See infra ¶ 113. The 

majority repeatedly claims that its own prejudice analysis is based 

on the “totality of the evidence.” See supra ¶¶ 18, 27, 30, 36, 38, 55, 63, 

69. I see no way to reconcile those points with its attempt to remove 

from consideration the evidence that I have identified.

90 During this time, Garcia also called his uncle, saying, “I’m fine. 

I’m with my girlfriend’s family. They’re protecting me. I’m good.”
STATE v. GRUNWALD

Lee, A.C.J., dissenting

44

freeway exit. Not once did he need to point his gun at Grunwald to 

make her do his bidding. And not once did she express any degree 

of misunderstanding about his plan. It was Grunwald, moreover, not 

Garcia, who waved down and stopped the vehicle that the duo 

carjacked. And when Garcia fled from that vehicle and began 

running toward another, Grunwald again followed. When the 

officers finally shot and stopped Garcia, Grunwald directed her

anger at the police, purportedly shouting, “You fucking ass holes, 

you didn’t have to shoot him. You fucking shot him. Oh my God, 

you fucking shot him.” Grunwald later called the police “fucking 

hoes” as she sat in the police car.

¶100 By Grunwald’s own admission, she never expressed

gratitude for or relief at being “rescued” from Garcia. As the police 

collected her belongings, she refused to surrender a ring that Garcia 

had given her. And after her arrest, Grunwald sent a letter to her 

uncle with a hand-drawn picture of a female hand and a skeleton 

hand forming a heart, the word “LOVE” gracing a ring on one of the 

female’s fingers. 

¶101 For these reasons I find it nearly impossible to look at 

Grunwald’s actions and conclude that her involvement was anything 

but knowing or intentional. I would therefore hold that there is no 

reasonable likelihood that a properly-instructed jury would have 

reached a different verdict.

B

¶102 The majority’s prejudice analysis “ha[s] the look and feel 

of presuming, rather than finding, prejudice.” Garcia, 2017 UT 53, 

¶ 38. In my view the court has not identified any persuasive grounds 

for concluding that Grunwald carried her burden of establishing that 

a jury required to find knowledge or intent would have been 

reasonably likely to enter a more favorable verdict.

¶103 The majority’s contrary conclusion is due in no small part 

to its sometime reformulation of the prejudice analysis. As 

previously noted, the U.S. Supreme Court has said that the question 

in ineffective-assistance-of-counsel cases is whether there is a 

“reasonable probability” that “the result of the proceeding would 

have been different” absent counsel’s errors. Strickland, 466 U.S. at 694 

(emphasis added). This court has applied this test specifically to 

errors in jury instructions. See Garcia, 2017 UT 53, ¶¶ 28, 42 (stating 

that the court must “ask if the defendant has met the burden of 

showing that the decision reached would reasonably likely have 

been different absent the errors” (quoting Strickland, 466 U.S. at 695–

96)). In the face of this clear standard, the majority at times recasts 
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Lee, A.C.J., dissenting

45

the prejudice inquiry as a “two-part analysis” in which the court 

must first “identify the theoretical factual scenarios in which the 

error in the jury instructions permitted the jury to wrongfully 

convict the defendant,” and second “determine whether there is a 

reasonable probability that . . . the jury convicted the defendant based 

on one of those impermissible scenarios.”91 Supra ¶¶ 22–26 

(emphasis added).

_____________________________________________________________

91 The majority claims to find support for this “two-part analysis” 

in State v. Garcia, in which we said that the court of appeals had not 

presumed prejudice, but “analyzed how th[e] instruction might have 

impacted Garcia’s trial and predicted juror behavior in response to 

the erroneous instruction.” 2017 UT 53, ¶ 41, 424 P.3d 171. In Garcia 

we went on to say that the court of appeals had failed to “fully 

conduct[] the prejudice inquiry” because a finding of prejudice 

requires that the “failure to instruct the jury properly undermines 

confidence in the verdict,”—meaning that “the decision reached 

would reasonably likely have been different absent the errors.” Id.

¶¶ 41–42 (internal citation and quotation marks omitted). But none 

of this “requires courts to compile a list of the theoretical factual 

scenarios in which the incorrect instruction permitted the jury to 

impermissibly convict the defendant,” supra ¶ 23, or “determine 

whether there is a reasonable probability that . . . the jury convicted 

the defendant based on one of those impermissible scenarios,” supra

¶ 26. The majority is breaking new ground here. And it is doing so in 

a manner that contradicts binding precedent from the United States 

Supreme Court.

The majority also tries to rehabilitate its new inverted two-step 

formulation by suggesting that it effectively “require[s] us to 

determine whether there is ‘a reasonable probability that the jury 

would have reached a different verdict under a correct instruction.’” 

Supra ¶ 22 n.20. And the court does occasionally revert back to the 

actual Strickland test or include counterfactual language in its twostep approach. See supra ¶ 22 (“[W]e must ask ourselves two 

questions: (1) did the error in the jury instructions create the 

possibility that the jury convicted the defendant based on factual 

findings that would not have led to conviction had the instructions been 

correct? and, (2) if so, is there a reasonable probability that the jury 

based its verdict on those factual findings?” (first emphasis added)). 

But a two-step test is not a one-step test, and an inquiry into whether 

the jury actually based its verdict on an error in the instruction is not 

(Continued)
STATE v. GRUNWALD

Lee, A.C.J., dissenting

46

¶104 This is a substantial reformulation.92 The proper inquiry is 

a counterfactual one—one in which we ask whether the defendant 

has established a reasonable probability that the jury would have 

reached a different verdict under a correct instruction. This has been 

accurately described as “a relatively high hurdle to overcome.” 

Garcia, 2017 UT 53, ¶ 44. The majority’s inquiry, by contrast, asks 

only whether there is a reasonable probability that the jury in fact

based its decision on an error in the jury instruction. Supra ¶ 27. This 

effectively switches the default answer. A jury may come to a verdict 

with an erroneous instruction in mind. But that does not necessarily 

tell us whether there is a reasonable probability that the jury would 

have come down the other way in the absence of such an error. And 

the majority opinion has thus substantially altered the governing 

standard for Strickland prejudice.

¶105 The majority’s new inquiry asks whether a jury reasonably 

could have based its decision on the errors in the jury instruction. This 

is evidenced by the majority’s repeated use of possibilistic rather 

than probabilistic language.93 This is problematic, as both the U.S. 

 

the same thing as an inquiry into whether there is a reasonable 

probability that the jury would have rendered a different verdict in 

the absence of any error. If it were, there would be no need to 

reformulate the controlling test. The best that can be said of the 

majority’s approach is that the reformulated two-step test sometimes 

comes close to the one-step test required by U.S. Supreme Court 

precedent. In my view that is insufficient.

92 See supra ¶ 26 (“If we conclude there is a reasonable probability 

the jury convicted the defendant based on one of the identified, 

impermissible factual scenarios, we may confidently hold that there 

is a reasonable probability the jury would not have reached a guilty 

verdict but for the errors in the jury instructions.”).

93 See supra ¶ 36 (“[T]here is a reasonable probability the jury may

have concluded that Ms. Grunwald did not understand Mr. Garcia’s 

intentions . . . .” (emphasis added)); supra ¶ 40 (“[T]here is a 

reasonable probability that the jury could have found Ms. Grunwald’s 

ability to understand Mr. Garcia’s intentions at the time to be less 

than that of a reasonable person.” (emphasis added)); supra ¶ 43 n.49

(“[W]e conclude that a jury could reasonably have found that Ms.

Grunwald’s failure to take affirmative steps to prevent a murder 

during the fifty seconds following Mr. Garcia’s comment did not 

make her a knowing or intentional accomplice.” (emphasis added)).
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Supreme Court and this court have said that it is “not enough for the 

defendant to show that the errors had some conceivable effect on the 

outcome of the proceeding.” Garcia, 2017 UT 53, ¶ 42 (quoting 

Strickland, 466 U.S. at 693).

¶106 Using its new paradigm, the majority first faults the court 

of appeals for ignoring Grunwald’s subjective mental state and 

resting its finding of no prejudice on the fact that “no reasonable 

person could have misinterpreted [Mr.] Garcia’s objective” when he 

made his “buck” comment. Supra ¶ 35 (alteration in original). The 

court of appeals, the majority posits, should have considered the 

possibility that the jury could have believed that Grunwald’s 

understanding of the situation fell below that of a reasonable person. 

Supra ¶ 38.

¶107 Fair enough. It is theoretically possible that the jury found 

that Grunwald “did not understand Mr. Garcia’s intentions even 

though a reasonable person would have.” Supra ¶ 36. But again, the 

majority’s premise misstates the standard. The question is not what 

the jury in fact found. It is whether there is a reasonable probability 

that the jury would have reached a different verdict if it had been 

instructed correctly.94

¶108 The majority eventually makes the required leap, claiming 

that the inclusion of the element of recklessness in the jury 

instruction gives rise to a reasonable probability of a different 

outcome (at least in conjunction with other errors that I address 

below). Supra ¶ 46. But the court’s standard seems to shift between 

the two formulations. And the totality of the evidence (including 

Grunwald’s actions after the shooting) demonstrates that 

Grunwald’s actions were knowing and intentional. See supra ¶¶ 93–

96, 99–100. The majority’s grounds for concluding otherwise—and 

_____________________________________________________________

94 Garcia, 2017 UT 53, ¶ 42, (“A proper [Strickland] analysis also 

needs to focus on the evidence before the jury and whether the jury 

could reasonably have [made factual findings] such that a failure to 

instruct the jury properly undermines confidence in the verdict.” 

(emphasis added)); see also Strickland v. Washington, 466 U.S. 668,

693–694 (1984) (“It is not enough for the defendant to show that the 

errors had some conceivable effect on the outcome of the proceeding 

. . . . The defendant must show that there is a reasonable probability 

that . . . the result of the proceeding would have been different.” 

(emphasis added)).
STATE v. GRUNWALD

Lee, A.C.J., dissenting

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for painting Grunwald as a less-than-reasonable person—are 

unpersuasive.

¶109 The majority begins its case for Grunwald’s reduced 

comprehension skills by highlighting the fact that she was only 

seventeen at the time of the crime. It also claims that Grunwald 

suffers from a “learning disability” which “may have lessened her 

ability to understand the significance of Mr. Garcia’s words.” Supra

¶ 39. But Grunwald was tried and convicted as an adult, and that 

decision is not challenged on this appeal. As for the alleged 

disability, it is only vaguely specified in the majority opinion. And 

Grunwald herself never made anything of this disability in her 

briefing on this appeal. Understandably so. A closer look at the 

record reveals that Grunwald’s learning disability is a reading 

disability. And surely her reading disability had no bearing on her 

ability to understand Garcia’s statements, which were delivered 

orally—face-to-face—not in writing. 

¶110 For this reason there is no basis for the court’s assertion 

that Grunwald’s reading disability in any way “lessened her ability 

to understand the significance of Mr. Garcia’s words.” Supra ¶ 39.

The majority falls short in its attempt to connect the dots on this 

point.95 And a further exploration of the record would seem to 

undermine the majority’s move and confirm appellate counsel’s 

decision to not advance this argument. Grunwald may have had a 

reading disability, but she was also an honor roll student, completed 

a Certified Nursing Assistant program, and was offered a 

scholarship for an Emergency Medical Technician program. 

¶111 Despite this, the majority concludes that Grunwald’s age 

and learning disability, along with the fact that she “is easily 

intimidated, and was under a lot of stress at the time,” create “a 

reasonable probability that the jury could have found Ms. Grunwald’s 

ability to understand Mr. Garcia’s intentions at the time to be less 

than that of a reasonable person.” Supra ¶¶ 39–40 (emphasis added).

_____________________________________________________________

95 The majority cites evidence showing that Grunwald struggles 

with “reading and writing,” has trouble “comprehending” things 

she reads, and had to spend “almost three times the time that a 

normal student did to be able to understand” book projects. See supra

¶ 39 n.45. But none of this demonstrates that Grunwald has an 

auditory processing problem or that her struggles with “language 

comprehension” extend to understanding spoken English.
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Again, the court’s use of “could have” here is significant. See Garcia, 

2017 UT 53, ¶ 38 (noting that even when a court never “explicitly 

state[s]” that it is “presum[ing] prejudice,” it might still be 

employing an analysis that has “the look and feel of presuming, 

rather than finding, prejudice”). It is not enough to say that there is a 

reasonable probability that this evidence could have caused the jury to 

believe Grunwald was only reckless. The question is whether there is 

a reasonable probability that the proper instruction would have 

resulted in a different verdict. Strickland, 466 U.S. at 694 (“The 

defendant must show that there is a reasonable probability that . . . 

the result of the proceeding would have been different.” (emphasis 

added)).

96

¶112 Even if we place stock in the fact that Grunwald was 

seventeen, had a reading disability, was easily intimidated, and was 

under a lot of stress during the crime, we should recall the nature of 

Grunwald’s claim. Grunwald didn’t just claim she didn’t know what 

Garcia meant by “buck him” in the head—she claimed she thought it 

meant that Garcia was only going to disable Wride’s car. Are we 

supposed to believe she thought Garcia was going to buck Wride’s 

car in the “head”? That is ridiculous. It would have made no sense 

for Grunwald to believe that Wride’s car was the “him.” And it is 

_____________________________________________________________

96 Citing one line of State v. Garcia out of context, the majority 

claims that “when used to discuss reasonable probabilities, ‘could’ 

and ‘would’ are synonymous.” Supra ¶ 40, n.46. Of course they can

be. But Garcia never suggested it was enough that there is a 

“reasonable probability that the jury could have” ruled a certain way, 

as the majority does here and elsewhere. See surpa ¶ 105 n.93. There 

is only one line in Garcia that uses the “could reasonably have” 

formulation. See 2017 UT 53, ¶ 42. And that line is followed 

immediately by the qualifier that “could reasonably have” means 

“such that a failure to instruct the jury properly undermines 

confidence in the verdict.” Id. (emphasis added). Elsewhere, the 

Garcia opinion equated that lack of confidence in the verdict with a 

reasonable probability that “the result of the proceeding would have 

been different” Id. (emphasis added) (quoting Strickland, 466 U.S. at

694)). So Garcia does not change the standard of Strickland

prejudice—nor could it, given that we are bound to follow Strickland. 

It is today’s opinion that shifts the standard, in confusingly and 

systematically substituting “could have” for “would have” when 

discussing reasonable probability.
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Lee, A.C.J., dissenting

50

more than a little awkward to say you are going to disable another’s 

car “in the head.” There is simply no reasonable probability that the 

jury deemed Grunwald incapable of understanding Garcia’s 

statement.97 The only reasonable probability I see is that a jury 

(whatever its instructions) would be offended by Grunwald’s 

insistence that she thought a threat by a violent person with a 

homicide record—who was readying a gun to fire toward a police 

officer and had just stated that he wasn’t going back to prison—was 

simply a threat to disable a police vehicle. Because no reasonable jury 

would have found that Grunwald’s comprehension was below that 

of an average person, I cannot accept the majority’s conclusion that it 

is reasonably probable that removing the “recklessness” component

from the jury instruction would have changed the jury’s verdict. 

¶113 The majority also claims that a “critical factual dispute” 

regarding the timeline of the murder helps create a reasonable 

probability that the jury would not have convicted Grunwald absent 

the erroneous jury instruction. Supra ¶¶ 41, 46. Initially, Grunwald 

testified that Garcia said he was going to “buck” Wride in the head 

after she placed her foot on the brake. Yet on cross-examination, 

Grunwald said that Garcia made this comment before she placed her 

foot on the brake.98 The majority claims that if the jury accepted 

Grunwald’s initial story, it is more likely that it believed that 

Grunwald acted without the knowledge or intent to kill Wride (and 

_____________________________________________________________

97 As I noted above, it is “theoretically possible” that the jury 

could have found Grunwald’s understanding to be subpar. Supra 

¶ 107. So in concluding that no reasonable jury would have done so, 

I am not “reject[ing]” that theoretical “possibility,” as the majority 

suggests. Supra ¶ 38 n.43. I am engaging in standard prejudice 

analysis—determining what the jury likely would have done with a 

different jury instruction. 

98 “Q. [W]as it before or after the car was shifted into gear that he 

said he was going to buck him? A. It was before. Q. It was before? A. 

Yes. Q. So by the time the car has shifted into gear, you know what 

he’s going to do? A. I didn’t know at the time. Q. I thought you just 

said he told you he was going to buck him. A. I didn’t know what 

bucking means until after. Q. Well, didn’t you testify that the specific 

words were he was going to buck him in the fucking head? A. Yes. 

Q. You didn’t know what that meant? A. No. Q. He had just shown 

you the gun and everything and threatened you, purportedly? A. 

Yes.” 
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Lee, A.C.J., dissenting

51

presumably that the jury would not have convicted absent the 

erroneous jury instruction). Supra ¶ 43. I see two crucial problems 

with this argument. One is that it assumes that it is likely that a 

reasonable jury would have believed the timing Grunwald gave on 

direct examination. I see no basis for that conclusion. If anything, I 

see every reason to think that a reasonable jury would discount 

anything and everything in Grunwald’s testimony that went in her 

favor. Once Grunwald made the ridiculous assertion that she 

thought a threat by Garcia to “buck him” in the “head” meant disable 

Wride’s vehicle, a reasonable jury would have discounted anything 

else she said to try to exonerate herself. There is no reasonable 

likelihood that the jury credited Grunwald’s first statement of the 

timing of events over the less favorable statement she made on 

cross-examination, let alone that an instruction eliminating 

“recklessness” would have caused the jury to alter its verdict.

¶114 I also see a problem with the majority’s analysis even 

assuming that a reasonable jury would have accepted the timing of 

events more favorable to Grunwald. Assume that Garcia made his 

comment after Grunwald put her foot on the brake. Once he did 

make his intentions clear, wouldn’t she have still been playing 

lookout, holding the truck steady, and waiting to act as a getaway 

driver? The disagreement in timing does not change the fact that 

Grunwald continued to help Garcia knowing that Garcia intended to 

“buck” Wride in the head.

¶115 The only way the majority’s argument makes any sense is 

if one also assumes that Garcia made his comment “immediately 

before he commenced shooting.” Supra ¶ 43. But no one argued that 

this was the case. Under the State’s evidence, there were four and a 

half minutes between the time Grunwald’s truck shifted into gear 

and the moment Garcia opened fire. Supra ¶ 10 n.1. Even under the 

version of events more favorable to Grunwald, Garcia made his 

“buck” comment three minutes and forty seconds after she placed 

her foot on the brake—fifty seconds before he opened fire. Supra ¶ 10 

n.1. There is no reason to think that the jury believed Grunwald 

didn’t have “time to process or otherwise react to the comment.”99

Supra ¶ 43.

_____________________________________________________________

99 The majority responds to this pushback by suggesting that I am 

saying that Grunwald could and should have taken “affirmative 

steps to prevent a murder during the fifty seconds following Mr. 

Garcia’s comment” in order to escape accomplice liability. Supra ¶ 43 

(Continued)
STATE v. GRUNWALD

Lee, A.C.J., dissenting

52

¶116 The majority claims that the jury instruction’s inclusion of 

recklessness is especially likely to have prejudiced Grunwald given 

that her trial counsel “expressly argued that she did not have an 

intentional or knowing mental state, but failed to cast doubt on the 

possibility of her having had a reckless mental state.” Supra ¶ 45. But 

this is incorrect. Grunwald’s counsel did cast doubt on the conclusion 

that Grunwald acted recklessly. In closing argument, Grunwald’s 

attorney argued: “I’m going to ask you to find her not guilty, based 

on compulsion, based on a lack of intent, based on lack of 

knowledge, foresight, call it what you want . . . . Hindsight is such a 

wonderful prism to look through. It’s 20/20 vision.” (Emphasis added.) It 

seems clear that Grunwald’s counsel was attacking each of the 

possible mens rea standards—disputing that Grunwald (1) acted 

intentionally, (2) acted with the requisite knowledge; or (3) acted 

while appreciating the possibility that Garcia could shoot Wride.

¶117 Grunwald also defended against “recklessness” when she 

claimed that she believed police cars have bulletproof glass and that 

Garcia was specifically aiming to disable the patrol car. In support of 

this argument, she testified that she did not understand what “buck” 

meant, that Garcia refused to clarify the term, and that even after 

Garcia fired, she still believed he had only disabled Wride’s vehicle. 

It is difficult to see how Grunwald’s counsel “failed to cast doubt on 

the possibility” that Grunwald was “at most, only aware that her 

conduct could result in Mr. Garcia committing the crime . . . .” Supra

¶ 45. Grunwald definitely tried to cast doubt on the argument that 

she was aware Garcia could kill Wride. It just wasn’t plausible (let 

alone reasonable) doubt. And no reasonable jury would have 

accepted Grunwald’s position on that score—whatever the jury 

instruction.

¶118 The majority explains how the jury could have come to a 

different conclusion had “recklessness” been removed from the 

instruction. But it doesn’t demonstrate that it is reasonably probable 

that the jury would have. Given the overwhelming evidence that 

 

n.49. This is a straw man. As I explain below, my point is that fifty 

seconds were more than enough time for Grunwald to choose to not 

aid Garcia—not that it was enough time for her to thwart Garcia. See 

infra ¶¶ 127–29. Failing to prevent a crime doesn’t make you an 

accomplice any more than failing to actually help cause a crime 

saves you from being an accomplice. See supra ¶ 61 n.73 (explaining

that an accomplice’s actions need not be a but-for cause of the crime).
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Lee, A.C.J., dissenting

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Grunwald acted intentionally and the scant evidence that she 

misunderstood Garcia, there is no reasonable probability that the 

jury would have acquitted Grunwald had it been given a correct jury

instruction. I would therefore hold that counsel’s failure to object to 

this first error did not prejudice Grunwald. 

II

¶119 I also agree with the majority and court of appeals’ 

conclusion that counsel was deficient in failing to object to the jury 

instruction to the extent it permitted a conviction if Grunwald 

“‘intentionally, knowingly, or recklessly solicited, requested, 

commanded or intentionally aided [Garcia] who’ committed the 

principal crime.” State v. Grunwald, 2018 UT App 46 ¶ 37, 424 P.3d 

990 (alteration in original). The use of the word who rather than the 

word to inappropriately authorized the jury to convict Grunwald by 

finding that she aided Garcia in any way—including in some way 

unconnected to the murder—so long as Garcia actually committed 

aggravated murder. Supra ¶ 48. This was error. A conviction based 

on aid unrelated to the underlying crime is at odds with the 

requirement in State v. Briggs that an accomplice act with “the intent 

to aid the principal actor in the offense.” 2008 UT 75, ¶ 13, 197 P.3d 

628. It goes without saying that an accomplice’s mental state must 

extend to the commission of the underlying crime. 

¶120 That said, I simply cannot believe that the jury would have 

acquitted Grunwald had the instruction more clearly eliminated the 

possibility of convicting her for aiding Garcia in the abstract. While 

theoretically possible, it is not reasonably probable that the jury 

convicted Grunwald for any reason except helping Garcia kill Wride, 

let alone that the jury would have acquitted Grunwald if the 

instruction had said to. The jury knew that Grunwald held the brake 

as—or maybe even after—Garcia announced he was going to “buck”

Wride in the head. It knew that Grunwald kept the truck steady as 

Garcia fired five shots out the back. And it knew that she sped away 

as Garcia fired his final two shots. The context also matters. 

Grunwald was on trial for assisting Garcia in aggravated murder, 

not for helping Garcia disable a police vehicle or evade arrest. 

¶121 Once again, the majority grasps at the alleged uncertainty 

regarding the timeline of Garcia’s “buck” comment and how that 

could have impacted Grunwald’s mental state. This, the majority 

says, means that we “cannot be certain that the jury found that Ms. 

Grunwald’s act of putting her foot on the brake was intentionally 

done to aid Mr. Garcia in committing the murder.” Supra ¶ 50. Of 

course we cannot be certain. But that doesn’t mean that there is a 
STATE v. GRUNWALD

Lee, A.C.J., dissenting

54

reasonable probability that the jury convicted Grunwald for helping 

Garcia do something besides murder Wride or that it would have 

acquitted her if properly instructed. Whether Grunwald put her foot 

on the brake before or after Garcia made his “buck” comment does 

not change the fact that she continued to hold the truck steady as 

Garcia made preparations to shoot Wride five times. And again I 

find it highly likely that a reasonable jury confronted with 

Grunwald’s ridiculous interpretation of the “buck” comment would 

discount any other point that she made in her favor—especially a 

point on which she contradicted herself at trial. See supra ¶ 113. So I 

don’t see any reasonable likelihood that a properly-instructed jury 

would have resolved the timing discrepancy in Grunwald’s favor. It 

may be that it is “unclear from the record [when] Ms. Grunwald put 

her foot on the brake.” Supra ¶ 51. But even if this uncertainty told us 

something about Grunwald’s mental state (it doesn’t, see supra

¶¶ 113–15), it does not follow that “there is a reasonable probability the 

jury would not have concluded that Ms. Grunwald’s act . . . was 

done to intentionally aid Mr. Garcia to commit the murder.” Supra

¶ 51 (emphases added). Again, the standard is not whether there is 

some uncertainty—it is whether there is enough uncertainty to create 

a reasonable probability of a different outcome.

¶122 The majority also claims that there is a reasonable 

probability the jury found Grunwald “intentionally held her foot on 

the brake” but only “as a lookout and getaway driver in order to aid 

Mr. Garcia in disabling the police officer’s vehicle.” Supra ¶ 52. But 

to get there, the jury would have had to believe one or more of the 

following: that Grunwald misunderstood Garcia’s buck-in-the-head 

comment (because she has a reading disability, is easily intimidated, 

and was under a lot of stress); that Garcia made the comment 

“immediately before” firing; or that Grunwald thought Garcia was 

shooting only to disable Wride’s vehicle. As previously discussed, 

these alternatives are extraordinarily unlikely—Garcia made his 

“buck” comment vocally, gun in hand, while parked in front of 

Wride’s vehicle—fifty seconds before firing. He said he was going to 

“buck him in the fucking head.” The argument that Grunwald didn’t 

have time to process the comment or believed that Garcia was only 

going to shoot Wride’s car under these circumstances is absurd. The 

jury instruction may have been erroneous, but I cannot agree that the 

jury believed that Grunwald only ever meant to help Garcia disable 

a police car, or that switching to for who gives rise to a reasonable 

probability that the jury would acquit her of being an accomplice to

aggravated murder. 
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Lee, A.C.J., dissenting

55

¶123 Similarly, the majority advances the theory that because 

Grunwald did not tell Wride about Garcia’s gun, warrant, or true 

identity, perhaps the jury found that she “aided Mr. Garcia to avoid 

arrest, rather than to commit murder.” Supra ¶ 53. But once again, 

the majority fails to explain how remote possibility rises to the level 

of reasonable probability. Just as there is no real chance that the jury 

believed that Grunwald only meant to disable Wride’s vehicle and 

there is no reasonable probability that it would have acquitted her 

with the proper instruction, there is no likelihood that the jury 

believed that Grunwald was only trying to help Garcia evade arrest 

or a reasonable probability that, had the jury instruction been 

proper, the jury would have acquitted Grunwald.

¶124 I take my colleagues’ point that “we cannot assume that 

the jury accepted every aspect of the State’s version of events” 

simply because Grunwald was convicted. Supra ¶ 57. But the 

majority’s efforts to get to reasonable probability are the flipside of 

the same coin—the court assumes that if the jury had had the correct 

instruction, it would have acquitted because it accepted every aspect 

of Grunwald’s version of events.100 The majority piles inference upon 

inference, attempting to cast doubt on the whole case by casting 

doubt on the (suspiciously many) individual pieces. This misses the 

forest for the trees. 

_____________________________________________________________

100 See supra ¶ 50 (“[I]f the jury believed that Mr. Garcia made his 

‘buck’ comment immediately before he began shooting, all of [Ms. 

Grunwald’s] conduct, which allegedly constituted intentional aid, 

would have occurred before Ms. Grunwald heard the comment.”); 

supra ¶ 51 (“[T]he jury could have determined that Ms. Grunwald 

had placed her foot on the brake at Mr. Garcia’s insistence, or for 

some other reason . . . .”); supra ¶ 52 (“[T]he jury could have 

concluded that Ms. Grunwald . . . acted as a lookout and getaway 

driver in order to aid Mr. Garcia in disabling the police officer’s 

vehicle. The evidence on record supports this possibility. Ms. 

Grunwald testified that even after Mr. Garcia fired his gun, she did 

not believe he had killed Sergeant Wride. Instead, she testified that 

she thought he had tried to disable the police car.”); supra ¶ 54 

(“[T]he jury could have found that she intentionally aided Mr. Garcia 

in the abstract by complying with his demands even though she did 

not know the purpose behind the demands. Her trial testimony is 

entirely consistent with this theory . . . .”).
STATE v. GRUNWALD

Lee, A.C.J., dissenting

56

¶125 The majority seeks to minimize the significance of 

Grunwald’s actions by isolating them from their relevant context. It 

does so, for example, by noting that the acts of “putting a foot on a 

brake and looking out of a car window” “seem fairly innocuous” 

when viewed in the abstract. Supra ¶ 50 n.57. Fair enough. But we 

don’t consider these acts in isolation. We view them in the context of 

the totality of the evidence in the record when assessing the question 

of prejudice. State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (relying on

Strickland v. Washington, 466 U.S. 668, 695–96). And once we look at 

the totality of the evidence, it can no longer be said that Grunwald’s 

acts “carry little persuasive weight.” Supra ¶ 50 n.57. 

¶126 The majority’s contrary conclusion is again rooted in its 

hang-up over the timing of Garcia’s threat to “buck” the officer in 

the head. But this is a red herring for all the reasons noted above. See 

supra ¶¶ 114–15. And the acts of placing her foot on the brake while 

putting the truck in drive and serving as a lookout are the crucial

elements of Grunwald’s actus reus of assisting Garcia in his 

murderous scheme. In context, it seems apparent that Garcia asked 

Grunwald to take these steps to ensure that he could kill Sergeant 

Wride without being seen by passing vehicles or caught by pursuing 

vehicles after the shooting. No reasonable jury would have 

concluded otherwise or thought that Grunwald’s acts of placing her 

foot on the brake and serving as a lookout were innocuous (or just 

reckless, or in furtherance of something other than murder).

¶127 The majority also finds it “potentially problematic to hold 

Ms. Grunwald criminally liable for aggravated murder for the 

continued act of holding her foot on the brake.” Supra ¶ 51 n.58. And 

it questions whether there is anything else she “could have done 

once Mr. Garcia announced his intentions.” Supra ¶ 51 n.58. The 

obvious answer to this question is that Grunwald could have 

decided not to commit the actus reus that sustained the charge and 

conviction of accomplice liability. She could have stopped playing 

lookout for Garcia and placed the truck’s transmission back into 

park. The majority dismisses Grunwald’s alternatives as options that 

“would not necessarily have prevented Mr. Garcia from shooting 

Sergeant Wride.” Supra ¶ 51 n.58. But the question is not whether 

Grunwald’s acts were a but-for cause of Garcia’s murder. See supra

¶ 61 n.73. It is whether Grunwald committed the acts of an 

accomplice—whether she intentionally aided Garcia in his principal 

crime. And I see no basis for a conclusion that Grunwald’s acts fell 

short of that standard. The whole point of having Grunwald put her 

foot on the brake was to give Garcia a quick getaway. And her 
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Lee, A.C.J., dissenting

57

lookout function was a crucial aspect of the murderous scheme. 

These acts surely aided Garcia’s murderous acts.

¶128 Ultimately, the majority is really quarreling over the 

sufficiency of the actus reus for which Grunwald was charged and 

convicted. But Grunwald has not challenged her conviction on that 

ground. And we are in no position to undermine the verdict on that 

basis.101

¶129 It undermines the very concept of accomplice liability to 

suggest that Grunwald would have been guiltless even if she had 

fully appreciated Garcia’s “buck” comments because Garcia could 

have killed Wride anyway. This is beside the point under our law, 

_____________________________________________________________

101 Grunwald’s acts are clearly sufficient to sustain her conviction. 

See American Fork City v. Rothe, 2000 UT App 277, ¶ 9, 12 P.3d 108 

(affirming the conviction of an accomplice who looked up and down 

the aisles as the principal stole merchandise and exited the store with 

the principal). And it is no answer to note that “we do not know 

what actus reus the jury based its conviction upon.” Supra ¶ 57 n.68. 

We do not need to know what specific “actus reus the jury based its 

conviction upon” to decide whether there is a reasonable probability 

that the jury would have acquitted Grunwald if properly instructed. 

A correct jury instruction, moreover, would not have yielded that 

information. Only a special verdict form would have told us the 

specific act the jury based its verdict on.

The majority complains that the error in the jury instruction 

“allowed the jury to convict [Grunwald] for an act unrelated to the 

murder,” or for acts aimed at “assist[ing] Mr. Garcia for a 

non-criminal purpose.” Supra ¶ 57 n.68. I concede the existence of 

this error (though it is worth nothing that the alternative possibilities 

the majority proffers—helping Garcia disable a police car or evade 

arrest—are hardly “non-criminal purposes”). But my analysis does 

not baldly “assume[] as true the very thing the jury instruction error 

prevents us from knowing.” Supra ¶ 57 n.68. Again, it is not the jury 

instruction that deprives us of this information. It is the lack of a 

special verdict form, which is not an error. And my analysis is just 

standard prejudice analysis—a counterfactual assessment of what is 

reasonably likely to have happened had the jury been properly

instructed. My conclusion is not a bare assumption. It is a careful 

analysis in light of all the evidence in the record—evidence that 

makes it exceedingly unlikely that a properly-instructed jury would 

have entered a verdict of acquittal.
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Lee, A.C.J., dissenting

58

which has never allowed an accomplice to avoid liability by showing 

that the principal would have committed the crime anyway (even 

absent her acts of aiding). See supra ¶ 61 n.73 (conceding there is no 

but-for cause element in the law of accomplice liability). The 

question is whether Grunwald intentionally aided Garcia with the 

intent that Wride be murdered, not whether Garcia needed, used, or 

wanted her help. And for all the reasons identified above, I see every 

reason to conclude that there is no reasonable probability that a 

properly-instructed jury would have reached a different verdict on 

this question.

III

¶130 The court of appeals identified a third basis for a 

determination of ineffective assistance of counsel. Citing State v. Jeffs, 

2010 UT 49, 243 P.3d 1250, the court of appeals said that the jury 

instruction should have required proof that Grunwald “intended or 

knew that her conduct . . . would result in the commission of the 

principal crime.” State v. Grunwald, 2018 UT App 46, ¶¶ 29–30, 36, 

424 P.3d 990 (emphasis added). There is clear dicta in our Jeffs

opinion to this effect. See 2010 UT 49, ¶ 45 (stating that an accomplice 

to a principal crime with a “knowing” mens rea requirement must 

“know[] that his conduct will most likely cause” the principal 

offense). And the instruction at issue did not include this element. 

¶131 The majority rightly repudiates this aspect of the Jeffs

opinion. It holds that Jeffs “should not be read to require that an 

accomplice’s conduct be a but-for cause of the underlying crime for 

liability to incur.” Supra ¶ 61 n.73. Because the governing statute 

does not include this element, the majority holds that Jeffs should be 

read “to require only that the accomplice knowingly committed his 

or her own actus reus in order to help the underlying crime be 

committed.” Supra ¶ 61 n.73. So despite contrary dicta in Jeffs, the 

majority holds that there is no requirement of proof that an 

accomplice knew that her acts themselves would cause or result in 

the principal crime. It is enough to “show that the defendant 

knowingly or intentionally committed the actus reus to help the 

principal actor in committing the crime.” Supra ¶ 61 n.73.

¶132 I endorse this reformulation of the dicta in our Jeffs

opinion. That dicta is incompatible with the governing statute and is 

properly revised by the court.

¶133 This reformulation, in my view, defeats Grunwald’s third 

allegation of ineffective assistance of counsel—the charge that trial 

counsel was deficient in not objecting to the jury instruction’s failure 

to require proof that Grunwald knew that her actions were 
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Lee, A.C.J., dissenting

59

reasonably certain to “result in” the principal crime. Grunwald, 2018 

UT App 46, ¶ 36. This was not an error under the majority’s 

reformulation of Jeffs. And for that reason it cannot be a basis for a 

claim of ineffective assistance of counsel.102 I would reverse the court 

of appeals’ conclusion to the contrary and affirm the conviction on 

that basis.

IV

¶134 The relevant portions of the jury instructions in this case 

allowed the jury to convict Grunwald as an accomplice to 

aggravated murder if it found that she “[i]ntentionally, knowingly, 

or recklessly solicited, requested, commanded, encouraged, or

intentionally aided [Garcia] who” committed the elements of the 

principal crime and it also found that she “[i]ntended that [Garcia] 

commit the [principal crime], or . . . [w]as aware that [Garcia’s] 

conduct was reasonably certain to result in [Garcia] committing the 

[principal crime], or . . . [r]ecognized that her conduct could result in 

[Garcia] committing the [principal crime] but chose to act anyway

. . . .” State v. Grunwald, 2018 UT App 46, ¶ 31, 424 P.3d 990 (internal 

quotation marks omitted) (emphasis in original). 

¶135 The only errors contained in this instruction are those 

discussed in Parts I and II—those which allowed the jury to convict 

Grunwald based on a finding that she aided Garcia recklessly or in 

some way unconnected to Wride’s murder. But those errors were not 

prejudicial. And the third alleged error was not an error at all 

because the instruction correctly applied our third-party liability 

statute.

¶136 When reviewing ineffective-assistance-of-counsel claims, 

we are not required to make all inferences in the defendant’s favor or 

equate theoretical possibility with reasonable probability. Because 

there is no reasonable probability that the jury would have come to a 

_____________________________________________________________

102 The majority only weakly suggests otherwise. It effectively 

concedes that the error discussed in Part II above (the jury 

instruction’s failure to require proof that Grunwald’s actions were 

“done ‘to’ assist someone in committing murder”) is the real 

problem. See supra ¶ 62 n.75. And it acknowledges that “the failure to 

reference Ms. Grunwald’s conduct in the knowing mental state 

portion of the instruction may have been harmless.” Supra ¶ 62 n.75.

But for reasons explained above, it is less than harmless. It is not an 

error in light of our reformulation of Jeffs.
STATE v. GRUNWALD

Lee, A.C.J., dissenting

60

different outcome had the jury instruction been correct, Grunwald’s 

counsel did not prejudice her by failing to object to errors in it. Her 

ineffective-assistance-of-counsel claim should fail, and her 

conviction should be upheld. I respectfully dissent.