State v. Robertson

This opinion is subject to revision before final
publication in the Pacific Reporter

2017 UT 27

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Respondent,
v.
D. CHRIS ROBERTSON,
Petitioner.

No. 20140268
Filed May 15, 2017

On Certiorari to the Utah Court of Appeals

Third District, West Jordan
The Honorable Terry L. Christiansen
No. 111401510

Attorneys:
Elizabeth Hunt, Salt Lake City, for petitioner
Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Solic. Gen.,
Salt Lake City, for respondent

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM,
and JUSTICE HIMONAS joined.
Having recused himself, JUSTICE PEARCE did not participate herein.

CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 Defendant D. Chris Robertson was prosecuted and
convicted by the federal government for possession of child
pornography. The State of Utah subsequently charged him with
twenty counts of sexual exploitation of a minor based on the same
conduct. Mr. Robertson argues that Utah Code section 76-1-404
prohibits this subsequent state prosecution. That statute provides
that ―[i]f a defendant‘s conduct establishes the commission of one or
more offenses within the concurrent jurisdiction of this state and of
 STATE v. ROBERTSON
Opinion of the Court
another jurisdiction, federal or state, the prosecution in the other
jurisdiction is a bar to a subsequent prosecution in this state if . . . the
former prosecution resulted in an acquittal, conviction, or
termination of prosecution . . .; and [] the subsequent prosecution is
for the same offense or offenses.‖
¶ 2 Under our previous interpretation of section 404, this statute
would present no barrier to the current prosecution. In State v.
Franklin,1 we concluded that section 404 incorporated the ―dual
sovereignty‖ doctrine, a principle of double jeopardy law that
permits subsequent prosecutions by different sovereigns, even for
the ―same offense.‖ The court of appeals affirmed Mr. Robertson‘s
convictions in accordance with this precedent.
¶ 3 Today, we reassess that earlier interpretation and ultimately
conclude that it was wrongly decided. Taking into account stare
decisis considerations, we overrule Franklin as to that issue and hold
that the legislature‘s use of the phrase ―same offense‖ in section 404
is an express rejection of the dual sovereignty doctrine. Properly
interpreted, section 404 requires courts to employ only the
Blockburger-Sosa test for determining whether two offenses are the
―same offense.‖ Under this test, two offenses are not the same if each
requires proof of an element that the other does not.
¶ 4 After articulating the correct interpretation of the statute, we
apply it to this case. Because the charged offenses in his federal and
state prosecutions are the ―same offense‖ under the Blockburger-Sosa
test, and because the record shows that the state prosecution is based
on the same conduct that was at issue in the initial federal
prosecution, we conclude that section 404, properly interpreted,
prohibits the State from prosecuting Mr. Robertson. We therefore
reverse the decision of the court of appeals.
Background
¶ 5 In March 2009, one of Mr. Robertson‘s employees alerted
authorities that Mr. Robertson was viewing child pornography on
his workplace computer. The Utah Internet Crimes Against Children
Task Force (ICAC) began an investigation. Detective Mark Buhman,
a Salt Lake City Police Department (SLPD) Officer assigned to the
Utah ICAC, was made lead investigator on the case. The Utah ICAC
is a ―multi-jurisdictional task force that investigates and prosecutes

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1 735 P.2d 34 (Utah 1987).

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Opinion of the Court

individuals who use the Internet to exploit children.‖2 The task force
has thirty-two local, state, and federal police agency affiliates,
including the FBI and the Department of Homeland Security.3
Although the Utah ICAC includes federal affiliates, the initial
investigation of Mr. Robertson‘s case did not involve any federal
agents.4
¶ 6 Detective Buhman eventually secured a warrant to search
Mr. Robertson‘s business and seize his computers. During the
search, officers seized a black, custom-built computer; a Dell
computer; and several computer storage media. Examination of the
computers revealed more than 24,000 still images of child
pornography and approximately 380 child pornography videos. Mr.
Robertson agreed to speak to Detective Buhman during the search
and admitted to viewing and downloading child pornography. But
he denied re-sending or producing any pornography. Detective
Buhman was eventually reassigned and Special Agent Benjamin Lee
of the Utah Attorney General‘s Office took over the case.
¶ 7 Agent Lee concluded the investigation and decided to have
the case screened for federal prosecution. Before moving forward
with federal screening, Agent Lee sought approval from the
Assistant Utah Attorney General who oversaw ICAC cases. Seeking
such approval was standard protocol, and the Assistant Utah
Attorney General had no objection. The State sought federal
prosecution in order to obtain a more severe sentence.5
¶ 8 During federal screening, Agent Lee presented an attorney
from the United States Attorney‘s Office with ten or eleven short
digital videos depicting child pornography. Agent Lee testified that
these videos ―would have been from the Dell computer.‖ The United
States Attorney‘s Office concluded that there was probable cause to
support federal prosecution.
_____________________________________________________________
2 Internet Crimes Against Children (ICAC) Task Force,
http://attorneygeneral.utah.gov/justice/internet-crimes-against-
children-icac-task-force (last updated Apr. 21, 2017).
3 Id.
4 State v. Robertson, 2014 UT App 51, ¶ 2 n.1, 321 P.3d 1156.
5 Mr. Robertson cites to Exhibit 1 from the August 15, 2012 bench
trial that the ―Assistant Utah Attorney General told [Mr.]
Robertson‘s ex-wife that the reason federal prosecution was pursued
was to obtain a more severe sentence.‖

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Opinion of the Court
¶ 9 Mr. Robertson was indicted by a federal grand jury in
September 2009 on one count of possession of child pornography in
violation of 18 U.S.C. section 2252A(a)(5)(B) (2008).6 The indictment
charged Mr. Robertson with ―knowingly possess[ing] computer
disks and other materials containing images of child pornography.‖
The indictment also contained a forfeiture notice, requiring
Mr. Robertson to ―forfeit to the United States . . . any and all
property . . . used or intended to be used in any manner or part to
commit and to facilitate the commission of a violation‖ of the federal
child pornography criminal statute. The notice specifically identified
the following property to be forfeited: the black custom tower, silver
Dell tower, silver Maxtor external hard drive, Quantam Fireball,
TDK CD-R Fresenius 11-5-08, and the CD-R 10/05 Latitude D505.
Mr. Robertson ultimately pled guilty as charged and was sentenced
to time served in jail (two days), five years of federally supervised
release, and $75,000 in restitution to be paid to two victims.
¶ 10 Upon learning of the federal sentence, an Assistant Utah
Attorney General contacted Agent Lee to ―discuss the possibility of
filing state charges.‖ After reviewing the evidence, the Assistant
Utah Attorney General decided to proceed with state prosecution of
Mr. Robertson. The State charged him with twenty counts of sexual
exploitation of a minor in violation of Utah Code section 76-5a-3.7

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6 18 U.S.C. § 2252A(a)(5)(B) (2008) (making it a crime to
―knowingly possess[], or knowingly access[] with intent to view, any
book, magazine, periodical, film, videotape, computer disk, or any
other material that contains an image of child pornography that has
been mailed, or shipped or transported using any means or facility
of interstate or foreign commerce or in or affecting interstate or
foreign commerce by any means, including by computer, or that was
produced using materials that have been mailed, or shipped or
transported in or affecting interstate or foreign commerce by any
means, including by computer‖).
7 Mr. Robertson was charged under the 2004 version of the
statute. It has since been amended and renumbered as section 76-5b-
201. The 2004 version of the statute stated that ―[a] person is guilty of
sexual exploitation of a minor . . . when the person knowingly
produces, distributes, possesses, or possesses with intent to
distribute, child pornography . . . .‖ UTAH CODE § 76-5a-3(1)(a)
(2004). It also made sexual exploitation of a minor a second-degree
felony. Id. § 76-5a-3(2). And made it a separate offense ―for each
(Continued)
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Opinion of the Court

These charges were based on eleven images or videos of child
pornography found on each of his two computers.8 The probable
cause statement initiating the State‘s case indicated that the State was
prosecuting Mr. Robertson ―for the same criminal acts‖ as the federal
prosecution, which the State claimed was permitted ―because
prosecution under the laws of separate sovereigns does not subject a
defendant to double jeopardy.‖
¶ 11 Mr. Robertson moved to dismiss the State charges, claiming
that the State‘s prosecution violated his constitutional right to due
process under the double jeopardy clause of the state and federal
constitutions, violated Utah Code section 76-1-404‘s rule against
double jeopardy, and was barred by the doctrines of res judicata and
collateral estoppel. He also claimed that the State‘s prosecution was
vindictive. The trial court denied Mr. Robertson‘s motion to dismiss,
finding that the state prosecution following federal prosecution was
permissible under current law and that the State‘s prosecution was
not vindictive. As part of its order denying Mr. Robertson‘s motion,
the court specifically found that Mr. Robertson‘s Utah prosecution
was ―[b]ased on the same body of evidence‖ as his federal
prosecution. Mr. Robertson filed a petition for interlocutory appeal,
which was denied.
¶ 12 After a bench trial where Mr. Robertson did not contest his
guilt, he was convicted and sentenced to twenty concurrent terms of
one to fifteen years in prison. At the sentencing hearing, the trial
court described the case as ―basically the same case that was had in
federal court, it‘s based on the same facts.‖ The court decided not to
treat the prior federal conviction as an aggravating factor, reasoning
that the federal conviction is ―exactly the same case, same
investigation, the same facts. . . . [and that] it would be unduly
prejudicial . . . to consider it a prior criminal conviction when it‘s
based on the same facts and circumstances.‖
¶ 13 Mr. Robertson appealed to the court of appeals, arguing
―that the dual sovereignty doctrine should not apply under the
circumstances of this case and that his state court convictions are

minor depicted‖ and ―each time the same minor is depicted in
different child pornography.‖ Id. § 76-5a-3(3).
8 The record indicates that these charges ―were based on the
admission of 11 child pornography images found in the ‗pictures‘
folder on the custom computer and 11 child pornography videos
found in the ‗My Videos‘ folder of the Dell computer.‖

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Opinion of the Court
therefore barred under the double jeopardy clauses of both the
United States and Utah constitutions, as well as by state double
jeopardy statutes and principles of res judicata.‖9 The court of
appeals affirmed, holding that the Bartkus exception to the federal
dual sovereignty doctrine did not apply,10 the Utah Constitution did
not prevent the subsequent prosecution,11 and res judicata did not
apply because ―the State and the federal government are not
considered to be in privity for purposes of res judicata.‖ 12 In a
footnote, the court noted that Mr. Robertson also sought relief
pursuant to Utah Code section 76-1-404.13 The court recognized that
we have interpreted this section to ―provide protections that are
consistent with traditional double jeopardy principles‖ and
concluded that the statute did not provide ―any greater protection
than the constitutional provisions we have addressed herein.‖14 Mr.
Robertson petitioned for certiorari, which we granted. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).
Standard of Review
¶ 14 We granted certiorari to address whether the court of
appeals erred in holding that Utah Code section 76-1-404 did not bar
the State‘s subsequent prosecution of Mr. Robertson.15 ―On
certiorari, we review the court of appeals‘ decision for correctness,‖
which ―turns on whether that court accurately reviewed the trial

_____________________________________________________________
9 Robertson, 2014 UT App 51, ¶ 7.
10 See id. ¶¶ 9–15.
11 See id. ¶¶ 18–21.
12 Id. ¶ 24.
13 See id. ¶ 21 n.5.
14 Id. (citing State v. Franklin, 735 P.2d 34, 37 (Utah 1987)).
15 We also granted certiorari to review whether the court of
appeals erred in holding that both the Utah and federal constitutions
did not bar the State‘s subsequent prosecution. But because we
conclude that the proper interpretation and application of section
404 resolves this case, we do not reach the constitutional questions.
See Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 24, 332 P.3d 900
(―Where possible, we decide cases ‗on the preferred grounds of
statutory construction,‘ thereby avoiding analysis of underlying
constitutional issues ‗unless required to do so.‘‖ (citation omitted)).

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court‘s decision under the appropriate standard of review.‖16 ―The
proper interpretation and application of a statute is a question of law
[reviewed] for correctness.‖17
Analysis
¶ 15 The double jeopardy clauses of both the Utah and federal
constitutions limit the government‘s ability to prosecute or punish
an individual multiple times for the same conduct.18 In general,
―[t]he prohibition against double jeopardy protects defendant[s]
against three things: prosecution for the same offense after acquittal,
prosecution for the same offense after conviction, and the infliction
of multiple punishments for the same offense.‖19 These protections
turn on whether the subsequent prosecution or punishment is for the
―same offense.‖ There are two analyses that guide our inquiry into
whether two offenses are the ―same‖ under either constitution.
¶ 16 First, we employ the test announced by the United States
Supreme Court in Blockburger v. United States20: two offenses are
considered not the ―same‖ when each ―requires proof of a fact which
the other does not.‖21 We adopted this same test for use in double
jeopardy cases arising under the Utah Constitution in State v. Sosa.22
There we stated that if ―the elements of [a defendant‘s] separate
prosecutions differ, and either offense could have been established
without establishing the other, the double jeopardy doctrine does
not apply.‖23 Under this test, a lesser included offense is considered

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16 State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d 1242.
17 Gutierrez v. Medley, 972 P.2d 913, 914–15 (Utah 1998).
18 See U.S. CONST. amend. V (―[N]or shall any person be subject
for the same offence to be twice put in jeopardy of life or limb . . . .‖);
UTAH CONST. art. I, § 12 (―[N]or shall any person be twice put in
jeopardy for the same offense.‖).
19 State v. Franklin, 735 P.2d 34, 35 (Utah 1987).
20 284 U.S. 299 (1932).
21 Id. at 304.
22 598 P.2d 342 (Utah 1979).
23 Id. at 346.

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Opinion of the Court
the ―same offense‖ as the greater offense.24 We refer to this test,
which ―emphasizes the elements of the two crimes,‖25 as the
Blockburger-Sosa test.
¶ 17 Second, we look to whether the successive prosecution is
undertaken by the same sovereign. ―[W]hen the same act
transgresses the laws of two sovereigns, ‗it cannot be truly averred
that the offender has been twice punished for the same offense; but
only that by one act he has committed two offenses, for each of
which he is justly punishable.‘‖26 Thus, even if two crimes would
constitute the ―same offense‖ under the Blockburger-Sosa test, they
are considered separate offenses if prosecuted by two separate
sovereigns, such as with successive prosecutions for the same
conduct under state and federal law. This is known as the ―dual
sovereignty doctrine.‖27
¶ 18 These two analyses—Blockburger-Sosa and dual
sovereignty—together determine whether a defendant has been
prosecuted or punished for the ―same offense‖ under both federal
and Utah constitutional law. Some states have departed from this
approach by enacting statutes that limit the dual sovereignty
doctrine.28 In these states, ―a prior federal prosecution is a complete
bar to a subsequent prosecution by the state.‖29 The question before
us today is whether our legislature in enacting Utah Code section 76-
1-404 intended to similarly limit the dual sovereignty doctrine.
¶ 19 Our discussion of this issue proceeds in three parts. First, we
discuss our prior interpretation of section 404, found in State v.
Franklin, and conclude that we squarely held that section 404
incorporated without limitation the dual sovereignty doctrine.
Second, we discuss whether that interpretation should be overruled
today. We hold that it should. We then interpret section 404‘s use of

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24 See State v. Dyer, 671 P.2d 142, 147 (Utah 1983) (―A lesser
included offense is treated the same as its corresponding greater
offense under the double jeopardy clause.‖).
25 Sosa, 598 P.2d at 346 (citation omitted).
26 Franklin, 735 P.2d at 36 (quoting Heath v. Alabama, 474 U.S. 82,
88 (1985)).
27 See id.
28 See id. at 37.
29 Id. at 38.

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―same offense‖ as incorporating only the Blockburger-Sosa test,
though we note that the relevant units of prosecution help to inform
courts as to the conduct at issue in the prosecutions. Finally, we
determine that our decision to overrule Franklin will apply
retroactively to cases pending on direct and collateral review and
that, under the proper interpretation of section 404, the State was
barred from prosecuting Mr. Robertson. Accordingly, we reverse the
court of appeals‘ decision.
I. In State v. Franklin, We Held that Section 76-1-404 Incorporated the
Dual Sovereignty Doctrine
¶ 20 The heart of this case is the proper interpretation of Utah
Code section 76-1-404. The statute reads as follows:
If a defendant‘s conduct establishes the commission of
one or more offenses within the concurrent jurisdiction
of this state and of another jurisdiction, federal or state,
the prosecution in the other jurisdiction is a bar to a
subsequent prosecution in this state if:
(1) the former prosecution resulted in an acquittal,
conviction, or termination of prosecution, as those
terms are defined in Section 76-1-403; and
(2) the subsequent prosecution is for the same offense
or offenses.
We have addressed this statute only once, in State v. Franklin.30
Because the parties dispute the precedential effect of our discussion
of section 404 in Franklin, we will review our decision in that case in
some detail.
¶ 21 The defendant in Franklin was ―an avowed racist‖ who
―shot and killed two black men who were jogging in Liberty Park
with two white women.‖31 He was convicted in federal court ―of
violating the civil rights of his victims,‖ a federal offense, and
received two life sentences.32 ―After the federal prosecution,
defendant was charged and tried by the State of Utah for two counts
of first degree murder,‖ with the State seeking the death penalty.33
_____________________________________________________________
30 735 P.2d 34 (Utah 1987).
31 Id. at 35.
32 Id.
33 Id.

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Opinion of the Court
―The jury in Utah district court convicted defendant, but was unable
to reach a unanimous verdict for death,‖ so the defendant was
sentenced ―to two consecutive life terms to be served at the end of
the federal sentences.‖34
¶ 22 On appeal, the defendant claimed that his subsequent ―trial
in state court after his conviction in federal court violated the
prohibitions against double jeopardy contained in the United States
Constitution and in the Utah Constitution and Code‖—section 76-1-
404.35 We first analyzed whether the two prosecutions were for the
―same offense‖ under the Blockburger-Sosa test, which looks to
whether the two offenses were ―defined by the same legal
elements.‖36 We concluded that ―[e]ach of the offenses of which
defendant ha[d] been convicted require[d] proof of facts that the
other does not.‖37 For the civil rights violation, the federal prosecutor
had to prove that the ―defendant, by threat or force, willfully
injured, intimidated, or interfered with another person because of
the other‘s race, color, or national origin and because he was
enjoying a benefit, service, privilege, program, or activity provided
or administrated by a state.‖38 But for the state offenses, the
prosecutor was required to prove that the defendant ―intentionally
or knowingly kill[ed] both victims at the same time or in a manner
that endangered the lives of persons other than himself or his
victims.‖39 ―Thus, the federal and state statutes under which
defendant was convicted require[d] proof of different elements and
d[id] not define the same offense‖—i.e., they were not the ―same
offense‖ under Blockburger-Sosa.40
¶ 23 Having reviewed whether the offenses were the same under
the Blockburger-Sosa analysis, we then proceeded to the second
analysis of whether the two offenses were the same: the dual
sovereignty doctrine, which looks to whether the offenses were
against the same sovereign. We concluded that ―[d]efendant‘s

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34 Id.
35 Id.
36 Id. at 35–36.
37 Id. at 36.
38 Id.
39 Id.
40 Id.

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convictions [were] also separate offenses because they were imposed
under the laws of different sovereigns‖—federal and state.41 We
disagreed with the defendant‘s argument that the Utah Constitution
should be interpreted as rejecting the dual sovereignty doctrine,
expressing concern that such a rejection would ―surrender[] state
sovereignty in exchange for a more theoretical than real gain in
individual rights.‖42 We also rejected his argument that Utah Code
section 76-1-404 provided greater protections than those afforded by
either the Utah or United States constitutions.43
¶ 24 The defendant in Franklin argued that we should ―abandon
the dual sovereignty doctrine‖ because section 76-1-404 ―compels
that result.‖44 In our discussion of section 404, we noted that the
protections offered by the statute turned on the meaning of ―same
offense.‖45 This was crucial to our analysis for, ―[w]hen the
legislature uses a word with a well-established legal meaning, we
assume that the legislature is aware of that meaning and has used
the word in its proper sense.‖46 We compared section 404 to the
preceding statutory section, discussing how that section, which deals
with offenses arising out of the same criminal episode, does not use
the specific term ―same offense,‖ a well-established term of art.47
Thus, we concluded that the statutes indicated ―the legislature‘s
awareness of double jeopardy terminology and its intent to use that
terminology precisely.‖48 Ultimately, we held that section 404 should
be viewed ―as a legislative codification of traditional double
jeopardy interpretation,‖ which included the dual sovereignty
doctrine.49
¶ 25 Mr. Robertson argues that this second holding, our
conclusion that section 404‘s use of ―same offense‖ evidenced the
_____________________________________________________________
41 Id.
42 Id. at 38.
43 Id. at 37.
44 Id. at 36.
45 Id. at 37.
46 Id.
47 See id. (discussing UTAH CODE § 76-1-403).
48 Id.
49 Id.

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Opinion of the Court
legislative intent to incorporate both a Blockburger-Sosa analysis as
well as the dual sovereignty doctrine, is dicta. ―For a decision to
become precedent and trigger stare decisis, ‗it must be (1) [a]
deliberate or solemn decision of a court or judge [2] made after
argument of a question of law fairly arising in a case, and [3]
necessary to its determination.‘‖50 Our interpretation of section 404
in Franklin was a deliberate decision that we made after taking
argument on that issue. The issue raised by Mr. Robertson is
whether that decision was necessary to our determination. As he
argues, because we had already concluded that the two offenses
were not the ―same offense‖ under Blockburger-Sosa, any discussion
of dual sovereignty was extraneous to our discussion and ultimately
not necessary for our decision. We reject this argument, as it
misconstrues both the meaning of ―necessary‖ and the relevant
double jeopardy principles.
¶ 26 When we say that a holding is binding only when it is
―necessary,‖ we do not mean that the holding must be the singular
basis for our ultimate decision. Courts ―often confront cases raising
multiple issues that could be dispositive, yet they find it appropriate
to resolve several, in order to avoid repetition of errors on remand or
provide guidance for future cases. Or, [courts] will occasionally find
it appropriate to offer alternative rationales for the results they
reach.‖51 Were we to require that a holding must be necessary in
some strict, logical sense before it becomes binding precedent, then
every time we articulated alternative bases for a decision we would
convert our opinion into dicta, for none of the alternative bases are
strictly necessary for the outcome. ―[L]awyers advising their clients
would have to guess whether a later [court] will recognize a ruling
that is directly on point as also having been necessary. We decline to
introduce such uncertainty into the law . . . .‖52
¶ 27 Instead, ―necessary‖ ―means only that the court undeniably
decided the issue, not that it was unavoidable for it do so.‖53 As the
Ninth Circuit stated:

_____________________________________________________________
50 Q-2 L.L.C. v. Hughes, 2016 UT 8, ¶ 11, 368 P.3d 86 (alterations in
original) (citation omitted).
51 United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001)
(footnote omitted).
52 Id. at 915.
53 Id.

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Of course, not every statement of law in every opinion
is binding . . . . Where it is clear that a statement is
made casually and without analysis, where the
statement is uttered in passing without due
consideration of the alternatives, or where it is merely a
prelude to another legal issue that commands the
[court‘s] full attention, it may be appropriate to re-visit
the issue in a later case. . . . Where, on the other hand, it
is clear that a majority of the [court] has focused on the
legal issue presented by the case before it and made a
deliberate decision to resolve the issue, that ruling
becomes the law . . . .54
Thus, when this court ―confronts an issue germane to the eventual
resolution of the case, and resolves it after reasoned consideration in
a published opinion, that ruling becomes the law of the [state],
regardless of whether doing so is necessary in some strict logical
sense.‖55
¶ 28 As discussed above, under traditional double jeopardy
jurisprudence, the Blockburger-Sosa analysis and the dual sovereignty
doctrine must both be satisfied for two offenses to be considered the
same. In other words, two offenses are the same when they require
proof of the same facts and are prosecuted by the same sovereign.
Conversely, two offenses are not the same where each requires proof
of a fact that the other does not or where they have been prosecuted
by two different sovereigns. Failing either analysis means the
offenses cannot be considered the ―same‖ and, therefore, prosecution
of both offenses is not barred by double jeopardy. In Franklin, we
determined that the offenses were not the same under either analysis
and that nothing in section 404 altered that result. As our discussion
of one analysis did not preclude the consideration of the other, both
analyses—Blockburger-Sosa and dual sovereignty—were germane to
our ultimate decision. Thus, our second holding in Franklin, which
specifically incorporated the dual sovereignty doctrine into our
interpretation of section 76-1-404, was not dicta but an alternative
holding that justified the result we reached. Accordingly, it is
binding precedent. We turn now to the issue of whether that
precedent should be overruled.

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54 Id. at 915–16.
55 Id. at 914.

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Opinion of the Court
II. We Hold that ―Same Offense‖ in Section 76-1-404 Incorporates the
Blockburger-Sosa Test but Rejects the Dual Sovereignty Doctrine,
Overruling in Part State v. Franklin
¶ 29 Having clarified the precedential value of State v. Franklin,56
we now discuss whether our decision therein that Utah Code section
76-1-404 incorporated the dual sovereignty doctrine should be
overruled. We do not overrule a prior interpretation of a statute
lightly, out of respect for the stare decisis principles of
―predictability and fairness.‖57 But even though overruling a prior
interpretation of a statute is an ―unusual step,‖58 ―[t]he doctrine of
stare decisis . . . ‗is neither mechanical nor rigid as it relates to courts
of last resort.‘‖59 As we discuss below, we believe that the portion of
Franklin interpreting the ―same offense‖ language of section 404 to
incorporate the dual sovereignty doctrine should be overruled. We
hold today that ―same offense,‖ as used in section 404, should be
interpreted as incorporating only the Blockburger-Sosa test and that
section 404 is an express rejection of the dual sovereignty doctrine.
A. We Are Persuaded that Franklin’s Interpretation of
Section 76-1-404 Should Be Overruled
¶ 30 We consider at least three factors when deciding whether to
overrule a prior interpretation of a statute: ―the plausibility of the
existing interpretation given the statute, the degree to which that
interpretation has worked itself into the state of the law, and the
strength of the arguments for changing that interpretation.‖60 We
discuss each factor below and conclude that they weigh in favor of
overruling State v. Franklin.
1. The plausibility of the existing interpretation
¶ 31 The first factor that we consider is ―the plausibility of the
existing interpretation given the statute.‖61 This factor is analogous
_____________________________________________________________
56 735 P.2d 34 (Utah 1987).
57 See State v. Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (citation
omitted).
58 Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1283 (Utah
1987).
59 Guard, 2015 UT 96, ¶ 33 (citation omitted).
60 A.C. Fin., Inc. v. Salt Lake Cty., 948 P.2d 771, 775 (Utah 1997)
(citation omitted).
61 Id. (citation omitted).

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Opinion of the Court

to the first factor we consider when deciding whether to overrule
common law precedent: ―the persuasiveness of the authority and
reasoning on which the precedent was originally based.‖62 In either
case, we are looking to determine whether our prior decision
properly considered the relevant arguments and reached a
persuasive conclusion.63 In the statutory interpretation context, this
means we consider whether the prior interpretation is ―[]reasonable
given the statutory framework in existence at that time.‖64
¶ 32 Our interpretation of section 404 in Franklin is undermined
by the fact that we did not consider in any great depth any of the
language of the statute other than the phrase ―same offense.‖65
Although we noted that ―same offense‖ was a term of art with
particular meaning in the double jeopardy context and was
intentionally used as a term of art in the statute, we did not examine
whether the legislature intended to modify or limit the definition of
that term of art. A familiar canon of statutory construction is that the
context of a statute may eliminate potential interpretations of a
statutory phrase.66 And a possible interpretation of a statutory term
that ―undercut[s] the express language‖67 of the statute must be
rejected because ―we give effect to every word of a statute, avoiding
‗[a]ny interpretation which renders parts or words in a statute
inoperative or superfluous.‘‖68
¶ 33 The language of section 76-1-404 plainly bars a Utah
prosecution if the defendant has already been prosecuted for the
same offense in another jurisdiction.69 Thus, the language operates as
_____________________________________________________________
62 Guard, 2015 UT 96, ¶ 34 (citation omitted).
63 See id. ¶ 48.
64 A.C. Fin., 948 P.2d at 775.
65 See Franklin, 735 P.2d at 37.
66 See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 13, 248 P.3d 465
(―The fact that the statutory language may be susceptible of multiple
meanings does not render it ambiguous; ‗all but one of the meanings
is ordinarily eliminated by context.‘‖ (citation omitted)).
67 Id. ¶ 18.
68 Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600
(alteration in original) (citation omitted).
69See UTAH CODE § 76-1-404 (―If a defendant‘s conduct establishes
the commission of one or more offenses within the concurrent
(Continued)
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 STATE v. ROBERTSON
Opinion of the Court
a limitation on the dual sovereignty doctrine, which permits a
defendant to be prosecuted for the same offense in two or more
jurisdictions so long as the prosecutions are conducted by different
sovereigns.70 Indeed, far from incorporating the dual sovereignty
doctrine, the statute does just the opposite—it acts as an express,
legislative rejection of that doctrine. Interpreting the statute to
incorporate the dual sovereignty doctrine, i.e., that it permits a Utah
prosecution to follow prosecution for the same offense in another
jurisdiction, requires us to read a meaning into the text that is
directly contradicted by the text itself. We cannot think of an
instance where a prosecution in another jurisdiction would not also
necessarily involve prosecution by another sovereign.71 Our

jurisdiction of this state and of another jurisdiction, federal or state,
the prosecution in the other jurisdiction is a bar to a subsequent
prosecution in this state if‖ the statute‘s two requirements are met.).
70 See Franklin, 735 P.2d at 36.
71 The State argues that our incorporation of the dual sovereignty
doctrine is plausible because section 404‘s prohibition of multiple
prosecutions for the ―same offense‖ ―within the concurrent
jurisdiction of this state and of another jurisdiction‖ can be
interpreted as prohibiting multiple prosecutions across multiple
jurisdictions of a violation of a single jurisdiction‘s criminal statute.
In other words, the statute is limited to instances where the State
attempts to prosecute an individual in Utah court under the exact
same criminal statute—whether state or federal—that the individual
has already been prosecuted under in another jurisdiction. Thus, in
the State‘s view, the incorporation of the dual sovereignty did not
render the statute superfluous because it still provides some limited
protections to defendants. The flaw with this argument is that a
federal offense cannot be prosecuted in a state court, see 18 U.S.C.
§ 3231 (―The district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all offenses
against the laws of the United States.‖); a state offense generally
cannot be prosecuted in federal courts, see Beal v. Missouri Pac. R.R.
Corp., 312 U.S. 45, 49–50 (1941) (―The federal courts are without
jurisdiction to try alleged criminal violations of state statutes.‖), but
see 28 U.S.C. § 1442 (permitting the removal to federal court of a
―criminal prosecution that is commenced in a State court‖ of a
federal officer); and a violation of one state‘s criminal laws cannot be
prosecuted in another state, see U.S. CONST. art. IV, § 2. There is no
possibility that a defendant can be prosecuted under the same
criminal statute by different sovereigns in different jurisdictions. To
(Continued)
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Opinion of the Court

interpretation in Franklin renders the statute a superfluity. Because
our decision in Franklin did not grapple with this apparent
incongruity, its interpretation of section 404 is accordingly less
persuasive and plausible. We turn now to the second factor.
2. The degree to which the prior interpretation has worked itself into
the law
¶ 34 The second factor we consider in deciding whether to
overrule a prior interpretation of a statute is ―the degree to which
that interpretation has worked itself into the state of the law.‖ 72 This
requires weighing ―whether the interpretation in question has
become settled in the minds of the bench and bar‖ and ―the degree
to which the interpretation, however old, has been woven into the
fabric of the law.‖73 This factor corresponds with the second factor
considered in deciding whether to overrule common law precedent:
―how firmly the precedent has become established in the law since it
was handed down,‖ which looks to ―the age of the precedent, how
well it has worked in practice, its consistency with other legal
principles, and the extent to which people‘s reliance on the
precedent would create injustice or hardship if it were overturned.‖74
Ultimately, we are concerned with whether overruling our precedent
would upend broad swaths of the legal landscape.
¶ 35 Mr. Robertson argues that Franklin, while almost thirty years
old, has not been ―woven into the fabric of the law‖ because it has
never again been cited for its interpretation of section 76-1-404.
Although it is true that section 404 has only been addressed by Utah
courts twice—once in Franklin and again in this case—and the dual
sovereignty doctrine has only been addressed three times—Franklin,
this case, and State v. Byrns,75 a court of appeals case that did not
address section 404—this evidence is unpersuasive. In A.C. Financial,
Inc. v. Salt Lake County, the appellant ―point[ed] to the fact that Black
[the prior case interpreting a statute] ha[d] been infrequently cited

interpret section 404 in this way would only further confirm that our
prior interpretation of the statute in Franklin rendered it a
superfluity, providing hypothetical protections against currently
impossible scenarios.
72 A.C. Fin., 948 P.2d at 775 (citation omitted).
73 Hackford, 740 P.2d at 1285.
74 Guard, 2015 UT 96, ¶ 34 (citations omitted).
75 911 P.2d 981 (Utah Ct. App. 1995).

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 STATE v. ROBERTSON
Opinion of the Court
and argue[d] that the rule of Black ha[d] not become firmly rooted in
the state of the law and that abandoning it would have little
impact.‖76 We rejected this argument, stating that ―[i]t is impossible
to say whether the dearth of citations indicates that the Black
[interpretation] is little known or rather that it has been consistently
assumed to be valid to the extent that it has not been directly
challenged.‖77 The same holds true here: Franklin is clear, and the
lack of any subsequent discussion of its holding may simply be the
result of prosecutors and defendants accepting its interpretation of
section 404.
¶ 36 Although the lack of citations is generally inconclusive,
there are other ways of determining whether a particular
interpretation has worked its way into the law. For example, in A.C.
Financial, the prior interpretation had created a ―widely accepted
rule‖ that was repeatedly recognized in later cases.78 We also noted
that the general public had apparently accepted our interpretation,
as demonstrated by the fact that ―many mortgages and trust
deeds . . . contain[ed] multiple provisions‖ directly related to the rule
we had adopted.79 Such acts showed a general acceptance of the
prior interpretation and reliance on that interpretation by the public
in settling their affairs. There is no such evidence in this case.
¶ 37 There are no other cases reaffirming the interpretation we
adopted in Franklin. There are no other statutes or common law
doctrines that depend on or otherwise incorporate our interpretation
of section 404. And we are not persuaded that there is any great
reliance on Franklin‘s interpretation of section 404. There are no
contractual, property, or similar vested rights created by our
interpretation of section 404 that would be undermined by departing
from Franklin today. Indeed, the effects of a departure from our
interpretation in Franklin are both obvious and narrow: the State
would be prohibited from prosecuting a defendant who has already
been prosecuted in another jurisdiction for the same offense. 80 Thus,

_____________________________________________________________
76 948 P.2d at 775–76.
77 Id. at 776.
78 Id.
79 Id.
80 It is worth noting that, even though we overrule Franklin in part
today, the State still remains free to prosecute a defendant so long as
it is either the first jurisdiction to do so or the Utah offenses are not
(Continued)
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Opinion of the Court

―while [Franklin‘s] interpretation is settled, it is not so enmeshed in
the substance of the law that it could not easily be changed without
having many unanticipated ramifications and without conflicting
with real or presumed legislative intentions.‖81 This factor
accordingly weighs in favor of overruling Franklin. We turn now to
the third factor.
3. The strength of the arguments for changing the prior
interpretation
¶ 38 The third factor we look to when deciding whether to
overrule a prior interpretation of a statute is ―the strength of the
arguments for changing that interpretation.‖82 Under this factor we
inquire whether ―more good than harm will come by departing from
precedent.‖83 We do so by looking to policy arguments and
―practical factors‖ that inform our careful consideration of where the
departure from precedent will lead us.84
¶ 39 The State argues that our prior interpretation of section 76-1-
404 should be upheld because it best protects the interests of the
State of Utah and its citizens. The State claims that if we interpret
section 404 as rejecting the dual sovereignty doctrine, we would be
―relinquish[ing] unnecessarily the power of the State to try and
punish those who break its laws‖ based on prosecutions in other
jurisdictions that may not satisfy Utah‘s sovereign interests.85 It also
argues that because the federal government remains free to
prosecute an individual after a Utah prosecution, we would ―be
surrendering state sovereignty in exchange for a more theoretical
than real gain in individual rights.‖86
¶ 40 Although the State‘s arguments have some merit—indeed,
these were the very reasons why we originally incorporated the dual

the same as those for which the defendant has already been
prosecuted.
81 Hackford, 740 P.2d at 1285.
82 A.C. Fin., 948 P.2d at 775 (citation omitted).
83ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, ¶ 23,
245 P.3d 184 (citation omitted).
84 Hackford, 740 P.2d at 1286.
85 See Franklin, 735 P.2d at 38.
86 Id.

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 STATE v. ROBERTSON
Opinion of the Court
sovereignty doctrine into section 404—they do not outweigh our
duty to respect our constitutionally limited role as interpreters and
not creators of statutory law. Our constitution vests the legislative
power of the State in the legislature and legal voters.87 ―The
legislative power is . . . defined by the work product it
generates[:] . . . rules of general applicability.‖88 These statutes or
ordinances ―set[] the governing standard for all cases coming within
[their] terms.‖89 The judicial power, on the other hand, is limited to
―resolving specific disputes between parties as to the applicability of
the law to their actions.‖90 We respect the constitutional separation
of powers by interpreting and applying legislation according to what
appears to be the legislature‘s intent, neither ―infer[ring] substantive
terms into the text that are not already there‖ nor taking away from
the statutory text by ignoring it or rendering it superfluous. 91
¶ 41 As we discussed above, the plain language of Utah Code
section 76-1-404 indicates a legislative intent to preclude
prosecutions by the State following a prosecution of the same offense
in another jurisdiction. Thus, the intent of section 404 is to limit the
dual sovereignty doctrine in Utah. To interpret the language ―same
offense‖ as incorporating the dual sovereignty doctrine would
negate the intent of the statute, leaving it entirely superfluous.
Indeed, if the statute provides no greater protections than those
offered by the federal and Utah constitutions—protections which
have long been recognized in our law—it is a pure redundancy. We
assume the legislature intended something by enacting section 404,
and we assume that intent is expressed in the language of the statute.
We have ―no power to rewrite [a] statute to conform to an intention
not expressed.‖92 Despite the policy reasons we pointed to as
support for our original interpretation in Franklin, it is ultimately not
within our power to nullify a statute on policy grounds; indeed, to

_____________________________________________________________
87 See UTAH CONST. art. VI, § 1(1)–(2).
88 Carter v. Lehi City, 2012 UT 2, ¶ 36, 269 P.3d 141.
89 Id.
90 Id. ¶ 37.
91 Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT
112, ¶ 30, 38 P.3d 291 (citation omitted).
92 Id. (citation omitted).

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Opinion of the Court

do so ―would be an unwarranted assumption of legislative
authority.‖93
¶ 42 Further, there are policy reasons that favor an expansion of
double jeopardy principles. As the United States Supreme Court
stated:
The underlying idea, one that is deeply ingrained in at
least the Anglo-American system of jurisprudence, is
that the State with all its resources and power should
not be allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that
even though innocent he may be found guilty.94
Double jeopardy principles provide vital protections to individuals,
and the legislature‘s apparent intent to expand such protections
beyond the constitutional minimum should be respected. These
considerations—separation of powers and double jeopardy
principles—are compelling arguments in favor of abandoning our
prior interpretation of section 404.
¶ 43 Each of the three factors discussed above weighs in favor of
overruling our prior interpretation that section 76-1-404 incorporated
the dual sovereignty doctrine. Although we are generally reluctant
to overrule precedent, this case is a prime example of a circumstance
where revisiting a prior decision is both justified and appropriate.
Accordingly, we hereby overrule our holding in Franklin that section
76-1-404 is simply ―a legislative codification of traditional double
jeopardy interpretation,‖95 including the dual sovereignty doctrine.96
We turn now to the appropriate meaning of that section.

_____________________________________________________________
93State v. Davis, 184 P. 161, 165 (Utah 1919) (Thurman, J.,
concurring).
94 Green v. United States, 355 U.S. 184, 187–88 (1957).
95 Franklin, 735 P.2d at 37.
96 The court of appeals below briefly noted that section 404
―provide[s] protections that are consistent with traditional double
jeopardy principles‖ and concluded that it did not need to analyze
the statute as distinct from the constitutional claims it addressed.
State v. Robertson, 2014 UT App 51, ¶ 21 n.5, 321 P.3d 1156. Under our
(Continued)
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 STATE v. ROBERTSON
Opinion of the Court
B. Section 76-1-404’s Inclusion of “Same Offense” Incorporates
the Blockburger-Sosa Test
¶ 44 Utah Code section 76-1-404 states that ―[i]f a defendant‘s
conduct establishes the commission of one or more offenses within
the concurrent jurisdiction of this state and of another
jurisdiction, federal or state, the prosecution in the other jurisdiction
is a bar to a subsequent prosecution in this state if‖ two conditions
are satisfied. First, the prior prosecution must have ―resulted in an
acquittal, conviction, or termination of prosecution, as those terms
are defined in Section 76-1-403.‖ Second, the subsequent Utah
prosecution must be ―for the same offense or offenses.‖ The central
issue in this case is what the legislature meant by ―same offense or
offenses.‖
¶ 45 As we recognized in Franklin, ―[w]hen the legislature uses a
word with a well-established legal meaning, we assume that the
legislature is aware of that meaning and has used the word in its
proper sense.‖97 Our determination in Franklin that ―same offense‖
was a term of art that had particular meaning in the double jeopardy
context is still correct. The legislature‘s use of the term ―same
offense‖ as a specific condition of the protections offered by section
404 ―is indicative of the legislature‘s awareness of double jeopardy
terminology and its intent to use that terminology precisely.‖98
Indeed, the prior version of section 404, in effect until 1973, stated
that a prior ―criminal prosecution under the laws of a state,
government, or country, founded upon the act or omission in respect
to which he is on trial‖ in Utah was ―a sufficient defense.‖ 99 The
legislature amended the statute, changing the more general language
of ―act or omission in respect to which he is on trial‖ to that of ―same
offense or offenses,‖ deliberately invoking the double jeopardy term
of art. Thus, though we have overruled our narrow conclusion in
Franklin that the term ―same offense‖ incorporated the dual

prior interpretation of the statute, the court was entirely correct in its
approach. And as it had no power to review or alter our holding in
Franklin, it was bound to follow our instruction that section 404
merely codified the dual sovereignty constitutional analysis.
Although we depart from our prior interpretation today, we do not
fault the court in any way for its application of section 404.
97 735 P.2d at 37.
98 Id.
99 UTAH CODE § 76-1-25 (1972).

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Opinion of the Court

sovereignty doctrine, we reaffirm the more general point that ―same
offense,‖ as used in section 404, is a term of art.
¶ 46 ―Generally, absent express direction to the contrary, we
presume that a term of art used in a statute is to be given its usual
legal definition.‖100 Section 404 contains such direction. As has been
discussed, the term ―same offense‖ connotes two separate analyses:
the Blockburger-Sosa test and the dual sovereignty doctrine. It is
impossible to incorporate both of these approaches into the statute,
however, because incorporation of the dual sovereignty doctrine
renders the statute a nullity—both permitting and forbidding
subsequent Utah prosecutions for the ―same offense‖—and ignores
the unmistakable legislative intent to limit the dual sovereignty
doctrine. Thus, ―all but one of the meanings [has been] eliminated by
context‖101 and section 404‘s use of the term of art ―same offense‖
incorporates only the Blockburger-Sosa test. We accordingly hold that,
under section 404, a court must determine whether a prior foreign
prosecution and a subsequent Utah prosecution are for the same
offense using the Blockburger-Sosa test—whether the two statutory
offenses each require proof of a fact that the other does not.
¶ 47 The State urges us to modify the Blockburger-Sosa test by
looking not only to the elements of the two criminal offenses, but
also to the applicable ―unit of prosecution.‖ Under the State‘s
approach, ―the laws of different sovereigns cannot fairly be
considered the ‗same‘—even if elementally identical in the
Blockburger sense—if the unit of prosecution of one is different than
the other.‖ For the reasons discussed below, however, we disagree.
Although the relevant units of prosecution may inform the question
of what specific conduct the State is seeking to prosecute the
defendant for, and whether that conduct is the same as that for
which the defendant has already been prosecuted in another
jurisdiction, the fact that two criminal statutes identify two different
units of prosecution does not mean that the offenses are different
under Blockburger-Sosa for purposes of section 404.
¶ 48 ―The allowable unit of prosecution for an offense
determines whether a perpetrator‘s conduct constitutes one or more
violations of that offense.‖102 In essence, the unit of prosecution
_____________________________________________________________
100 Kelson v. Salt Lake Cty., 784 P.2d 1152, 1156 (Utah 1989).
101 Olsen, 2011 UT 10, ¶ 13 (citation omitted).
102 State v. Rasabout, 2015 UT 72, ¶ 8, 356 P.3d 1258.

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 STATE v. ROBERTSON
Opinion of the Court
defines the minimum amount of conduct necessary to constitute a
single violation of a particular criminal statute. ―A unit of
prosecution can be either an act or a course of conduct,‖ depending
on the relevant statute.103 We recently explained how units of
prosecutions can differ, using the example of child pornography:
It is a crime to ―intentionally . . . view [ ] child
pornography.‖ If a perpetrator views multiple images
of multiple victims over a period of time, how many
times has he committed the offense? Perhaps there is
one violation for each viewing session, regardless of
the number of images or victims. Or maybe there is one
violation for each victim or one for each image. The
allowable unit of prosecution provided by the offense
resolves this question.104
The State argues that, so long as two criminal statutes have different
units of prosecution, they can never be considered the ―same
offense‖ under section 404.
¶ 49 The problem with this argument is that section 404 looks to
whether ―a defendant‘s conduct establishes the commission of one or
more offenses‖ that are ―the same offense.‖105 One statute may
employ a different unit of prosecution and thereby measure the
conduct necessary to constitute an offense differently than another
statute. But even though the statutes measure the relevant conduct
differently—such as by measuring the number of victims portrayed
in child pornography instead of the number of child pornography
images viewed—it may well be the same conduct that is at issue in
both prosecutions.
¶ 50 Section 404 requires us to determine whether the defendant
has been prosecuted for the same conduct constituting the same
offense in another jurisdiction. And while the relevant units of
prosecution help inform us as to what specific conduct the defendant
was already prosecuted for, they do not answer the question of
whether ―the subsequent prosecution is for the same offense or
offenses.‖106 That question is answered by using the Blockburger-Sosa
_____________________________________________________________
103 State v. Hall, 230 P.3d 1048, 1051 (Wash. 2010).
104Rasabout, 2015 UT 72, ¶ 8 (alterations in original) (citation
omitted).
105 UTAH CODE § 76-1-404 (emphasis added).
106 Id. § 76-1-404(2).

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Opinion of the Court

test. An analysis of the units of prosecution and the underlying
evidence goes only to the question of whether it is the same conduct
at issue in each prosecution. An example from the United States
Supreme Court helps to illuminate this principle.
¶ 51 In Brown v. Ohio, the Supreme Court had to determine
whether the prosecution of a lesser-included offense encompassed
the same conduct as was subsequently prosecuted.107 The defendant,
Mr. Brown, had stolen a car on November 29, 1973, and was caught
driving the car nine days later, on December 8, 1973.108 He was first
charged with and prosecuted for joyriding—taking or operating a
vehicle without the owner‘s consent—to which he pled guilty and
was sentenced to thirty days in jail and a $100 fine. 109 After serving
his sentence for joyriding, he was charged with auto theft—joyriding
with the intent to permanently deprive the owner of possession—to
which he pled guilty on the condition that the court consider his
claim of double jeopardy.110 The court overruled the double jeopardy
objection, and the Ohio Court of Appeals affirmed.111 Although the
appellate court recognized that the two offenses were the same
under Blockburger, it held that the subsequent prosecution was
permissible because the prosecutions were based on different acts
that occurred on different days—a theft occurring on November 29
and a joyride occurring on December 8.112 The Supreme Court
reversed.
¶ 52 The Court held that the court of appeals was correct in
concluding that the two offenses were the same under the traditional
Blockburger test.113 It disagreed, however, that the conduct
underlying the two charges was different.114 Because Ohio law
defined the relevant unit of prosecution such that ―the theft and
operation of a single car [was] a single offense,‖ the first conviction

_____________________________________________________________
107 432 U.S. 161 (1977).
108 Id. at 162.
109 Id.
110 Id. at 162–63.
111 Id. at 163.
112 Id. at 163–64.
113 Id. at 168–69.
114 Id. at 169.

25
 STATE v. ROBERTSON
Opinion of the Court
for joyriding necessarily included the same conduct at issue in the
second, for auto theft.115 The Court noted that the case would be
different ―if the Ohio Legislature had provided that joyriding is a
separate offense for each day in which a motor vehicle is operated
without the owner‘s consent,‖116 i.e., if the relevant unit of
prosecution narrowly defined the conduct necessary to establish an
offense so that the charge of joyriding did not encompass all of the
relevant criminal conduct. The same type of analysis applies under
section 76-1-404.
¶ 53 Accordingly, section 404 requires courts to analyze two
separate issues to determine whether the statute prohibits a
subsequent Utah prosecution: first, whether the offenses are the
same under Blockburger-Sosa. If not, then section 404‘s protections do
not apply. But if so, the court must also determine whether the
conduct for which the defendant is being prosecuted in Utah is the
same conduct that was at issue in the prior foreign prosecution. To
answer this question, the court must look at the relevant units of
prosecution, which define the chargeable conduct, and the evidence
supporting the prosecutions. If the other jurisdiction‘s unit of
prosecution defines the offense in such a way that the evidence
relied upon to prove the criminal conduct in that jurisdiction
encompasses the evidence necessary to prove the criminal conduct at
issue in the Utah prosecution, section 404 prohibits the subsequent
Utah prosecution.117
¶ 54 Ultimately, in cases implicating section 404, the question is
whether the conduct for which the defendant was prosecuted in the
other jurisdiction constitutes the ―same offense‖ both elementally
(Blockburger-Sosa) and factually (relevant units of prosecution
supported by evidence). When a defendant seeks dismissal under
section 404—as does Mr. Robertson—he or she must demonstrate
that the elements of the statute have been satisfied. To show that
_____________________________________________________________
115 Id.
116 Id. at 169 n.8.
117 We note that the section 404 analysis does not need to be done
in this particular order, i.e., first Blockburger-Sosa, then an analysis of
the conduct, as informed by the units of prosecution and evidence. If
a court can determine that different conduct is at issue in the two
prosecutions, then section 404 does not apply at all and there is no
need to also determine whether the offenses can be considered the
same under Blockburger-Sosa. The reverse is also true.

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Opinion of the Court

prosecutions are the ―same offense‖ factually—that is, based on the
same conduct—a defendant may rely on evidence from all aspects of
the record in the previous and subsequent prosecutions, including
any available information relating to the indictment, notices of
forfeiture, a plea colloquy, or sentencing. We turn now to whether
and how we should apply this test to the facts of this case.
III. Section 76-1-404 Prohibits the State‘s Subsequent
Prosecution of Mr. Robertson
¶ 55 Prior to deciding whether section 76-1-404 prohibits the
State‘s prosecution of Mr. Robertson, we must first address the
State‘s argument that our decision to overrule Franklin should be
applied prospectively only. We conclude that section 404 is a
substantive statute that creates an affirmative defense to avoid the
dual sovereignty exception to double jeopardy118 and that the new
interpretation of it announced in this case applies retroactively to
cases on direct and collateral review.119 We then apply our
interpretation of section 404 to the facts of this case. We hold that the
federal and state offenses are the same under Blockburger-Sosa and
that the record shows that federal prosecution encompassed all of
the conduct for which Mr. Robertson was subsequently prosecuted
by the State.
A. Section 76-1-404 Is a Substantive Statute that Creates an Affirmative
Defense to Avoid the Dual Sovereignty Exception to Double Jeopardy, and
We Apply It Retroactively to Cases on Direct and Collateral Review
¶ 56 Mr. Robertson asks us to retroactively apply section 404 ―as
written‖ in both ―this case and all non-final cases.‖ Though we have
established general rules governing the retroactive application of

_____________________________________________________________
118As concluded above, section 404 provides broader protections
than traditional double jeopardy principles as it limits the dual
sovereignty doctrine in Utah. Accordingly, section 404‘s right to
avoid double jeopardy is distinct from and more robust than the
constitutional rights protected under the federal and state
constitutions.
119 Though the interpretation we adopt today applies
retroactively to cases on direct and collateral review, this
retroactivity does not override the rules that govern how an issue is
preserved and presented on appeal or collateral review.

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 STATE v. ROBERTSON
Opinion of the Court
statutes,120 we conclude that these rules do not control our inquiry.
For in asking us to apply section 404 ―as written,‖ Mr. Robertson
asks for retroactive application of our new interpretation of the
statute announced in this case. In State v. Franklin,121 we interpreted
the statute in a manner that misunderstood the legislature‘s intent.
Now, in this decision, we correct that misunderstanding by
overruling Franklin and interpreting section 404 according to its plain
language, which indicates a legislative intent to preclude
prosecutions by the State following a prosecution for the same
offense in another jurisdiction. Thus, to determine whether we can
retroactively apply our interpretation of section 404, we cannot rely
on statutory retroactivity law, but must look to our retroactivity
jurisprudence dealing with new rules of criminal law announced in
judicial decisions.
¶ 57 As discussed below, we have not yet adopted a specific rule
governing the retroactive application of new interpretations of
substantive criminal statutes. After consulting the approaches taken
by federal courts and our sister jurisdictions, we conclude that a new
interpretation of a substantive criminal statute will apply
retroactively to cases on direct and collateral review. We therefore
apply our interpretation of section 404 to Mr. Robertson. We discuss
each issue in turn.
¶ 58 Our recent retroactivity jurisprudence clarifies that whether
a new rule of criminal law can be retroactively applied turns on
whether it is procedural or substantive. In prior cases, we have
almost exclusively addressed the retroactive application of ―new
rules of criminal procedure announced in judicial decisions.‖122 As to
such rules, we have held that they ―apply retroactively to all cases
pending on direct review.‖123 We have also permitted such rules to
apply retroactively to final cases on collateral review under certain
circumstances.124 As for new rules of substantive criminal law
announced in judicial decisions—such as an interpretation of a

_____________________________________________________________
120 See Beaver Cty. v. State Tax Comm’n, 2010 UT 50, ¶ 10, 254 P.3d
158.
121 735 P.2d 34 (Utah 1987).
122 State v. Guard, 2015 UT 96, ¶¶ 36–37, 371 P.3d 1.
123 Id. ¶ 61.
124See, e.g., Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 912
(Utah 1993); Winward v. State, 2015 UT 61, ¶ 11, 335 P.3d 1022.

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Opinion of the Court

substantive criminal statute—we have not adopted a specific rule
governing retroactive application.125
¶ 59 Because Mr. Robertson asks us to retroactively apply the
interpretation of section 404 announced in this decision—an
interpretation that recognizes the legislature‘s intent to reject the
dual sovereignty doctrine and provide broader protections to
criminal defendants than we recognized in Franklin126—we must
adopt a rule governing the retroactive application of new
interpretations of substantive criminal statutes. For as we read
section 404, it is not merely a procedural statute that defines the
―mode or form of procedure for enforcing substantive rights,‖127 but
a substantive statute that defines ―what acts constitute crimes and
what the elements of those crimes are‖ as well as the availability and
definitions of affirmative defenses.128 In particular, it creates an
affirmative defense that a criminal defendant—like Mr. Robertson—
can invoke as a complete bar to prosecution by the State when he or
she has previously been prosecuted for the same offense by a foreign
sovereign.
¶ 60 And in articulating a rule of retroactivity governing new
rules of substantive criminal law, we are guided by federal
precedents and the approaches taken by our sister jurisdictions.
Significant in this regard is Bousley v. United States.129 In that case, the
United States Supreme Court considered whether to retroactively
apply its Bailey v. United States130 interpretation of the ―use‖ prong of
18 U.S.C. section 924(c)(1). That prong imposes enhanced penalties

_____________________________________________________________
125 We note that in Andrews v. Morris, 677 P.2d 81 (Utah 1983), and
State v. Lovell, 2005 UT 31, 114 P.3d 575, we retroactively applied our
interpretations of certain criminal statutes to defendants. These cases
predate Guard, and in them, we failed to consider whether the
statutes at issue were procedural or substantive for purposes of our
retroactivity analysis. We therefore view these cases as part of our
previous approach to retroactivity jurisprudence and do not rely on
them to resolve the issue now before us.
126 735 P.2d 34.
127 State v. Drej, 2010 UT 35, ¶ 27, 233 P.3d 476 (citation omitted).
128 Id. ¶ 18.
129 523 U.S. 614 (1998).
130 516 U.S. 137 (1995).

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 STATE v. ROBERTSON
Opinion of the Court
for the ―use‖ of a firearm in relation to certain crimes.131 In Bailey, the
Court interpreted the statute to punish only ―active employment of
the firearm,‖ not ―mere possession.‖132
¶ 61 In deciding whether to retroactively apply this
interpretation of the statute to a defendant who was before the Court
on collateral review, the Bousley Court reasoned that ―decisions of
[the Supreme Court] holding that a substantive federal criminal statute
does not reach certain conduct‖ are new substantive rules.133 The
Court then held that decisions interpreting substantive criminal
statutes should be applied retroactively because they demonstrate ―a
significant risk that a defendant stands convicted of ‗an act that the
law does not make criminal.‘‖134 For ―it is only Congress,‖ the Court
noted, ―and not the courts, which can make conduct criminal.‖135
Ultimately, it declined to retroactively apply Bailey‘s interpretation to
the defendant on collateral review because of a procedural defect in
his claim,136 but this case illustrates that the Supreme Court
retroactively applies new substantive rules to all cases, including
those on collateral review.
¶ 62 State courts have generally adopted two different responses
to Bousley. A majority of our sister jurisdictions follow Bousley in
granting a new substantive rule—including a new interpretation of a
substantive criminal statute—full retroactivity, applying it on direct
and collateral review.137 At least one of these states presumptively
_____________________________________________________________
131 See 18 U.S.C. § 924(c)(1) (1994).
132 Bailey, 516 U.S. at 144.
133 Bousley, 523 U.S. at 620 (emphasis added).
134 Id. (citation omitted); see also Schriro v. Summerlin, 542 U.S. 348,
353 (2004) (―A rule is substantive rather than procedural if it alters
the range of conduct or the class of persons that the law punishes.‖
(citing Bousley, 523 U.S. at 620–21)).
135 Bousley, 523 U.S. at 620–21.
136 Id. at 621 (noting that ―a voluntary and intelligent plea of
guilty made by an accused person . . . may not be collaterally
attacked‖ and that ―[defendant] contested his sentence on appeal,
but did not challenge the validity of his plea,‖ thus ―procedurally
default[ing] the claim he now presses on us‖).
137See, e.g., State v. Towery, 64 P.3d 828, 831 (Ariz. 2003) (en banc)
(concluding that ―[p]etitioners whose cases have become final may
seek the benefit of new substantive rules‖); In re Moore, 34 Cal. Rptr.
(Continued)
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Opinion of the Court

requires retroactivity in all cases, including those that have become
final, but will not grant relief when continued incarceration does not
represent a gross miscarriage of justice. 138 A minority of states, in

3d 605, 609 (Cal. Ct. App. 2005) (noting that ―new substantive rules
generally apply retroactively‖); People v. Wenzinger, 155 P.3d 415, 419
(Colo. App. 2006) (noting that ―new substantive rules generally
apply retroactively to cases that are final, whereas new procedural
rules do not‖); Luke v. Battle, 565 S.E.2d 816, 819 (Ga. 2002) (noting
that ―a new rule of substantive criminal law must be applied
retroactively to cases on collateral review,‖ and that ―an appellate
decision holding that a criminal statute no longer reaches certain
conduct is a ruling of substantive law‖); People v. Edgeston, 920
N.E.2d 467, 471 (Ill. App. Ct. 2009) (―Illinois follows the federal rule
that a decision that narrows a substantive criminal statute must have
full retroactive effect in collateral attacks.‖ (citation omitted)); Jacobs
v. State, 835 N.E.2d 485, 489–91 (Ind. 2005) (adopting the federal rule
that a new substantive rule of criminal law applies retroactively to
cases on collateral review); State v. Whitehorn, 50 P.3d 121, 127–28
(Mont. 2002) (same); Commonwealth v. Spotz, 896 A.2d 1191, 1243 (Pa.
2006) (noting that ―we distinguish between new rulings involving
substantive criminal law, which are applied retroactively on
collateral review, and new procedural rulings of constitutional
dimension, which are generally subject only to prospective
application‖); State v. White, 944 A.2d 203, 208 (Vt. 2007) (noting that
―[g]enerally, new rules of criminal procedure are not applied
retroactively on collateral review because unlike new substantive
rules, they do not produce a class of wrongly convicted
individuals‖); Kelson v. Commonwealth, 604 S.E.2d 98, 101 (Va. Ct.
App. 2004) (noting that ―[a]s to convictions that are already final, . . .
[new] substantive rules generally apply retroactively‖(alterations in
Kelson) (quoting Schriro, 542 U.S. at 351)); State v. Lagundoye, 674
N.W.2d 526, 531 (Wis. 2004) (noting that ―a new rule of substantive
criminal law is presumptively applied retroactively to all cases,
whether on direct appeal or on collateral review‖).
138 Luurtsema v. Comm’r of Corr., 12 A.3d 817, 832 (Conn. 2011)
(―[W]e adopt a general presumption in favor of full retroactivity for
judicial decisions that narrow the scope of liability of a criminal
statute. That presumption, however, would not necessarily require
that relief be granted in cases where continued incarceration would
not represent a gross miscarriage of justice, such as where it is clear
(Continued)
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Opinion of the Court
contrast, employ a balancing test to determine whether to
retroactively afford defendants the benefit of a new substantive
rule.139
¶ 63 We are persuaded by Bousley and the majority of our sister
jurisdictions to adopt a rule of full retroactivity—applying to cases
on both direct and collateral review—for a new interpretation of a
substantive criminal statute. Like the United States Supreme Court,
we recognize that ―it is only [the legislature], and not the courts,
which can make conduct criminal.‖140 Accordingly, when our
interpretation of a substantive criminal statute deviates from the
intent of the legislature—as it did in Franklin—there is ―a significant
risk that a defendant stands convicted‖ despite the fact that the
legislature intended an affirmative defense to bar the prosecution.141
¶ 64 Thus, we hold that new interpretations of substantive
criminal statutes have automatic full retroactivity, subject of course

that the legislature did intend to criminalize the conduct at issue, if
perhaps not under the precise label charged.‖).
139 Clem v. State, 81 P.3d 521, 530–31 (Nev. 2003) (―[W]hen a
constitutional rule qualifies as ‗new,‘ it will apply retroactively in
only two instances: ‗(1) if the rule establishes that it is
unconstitutional to proscribe certain conduct as criminal or to
impose a type of punishment on certain defendants because of their
status or offense; or (2) if it establishes a procedure without which
the likelihood of an accurate conviction is seriously diminished.‘
Therefore, on collateral review . . ., if a rule is not new, it applies
retroactively; if it is new, but not a constitutional rule, it does not
apply retroactively; and if it is new and constitutional, then it applies
retroactively only if it falls within one of [the] delineated
exceptions.‖ (citation omitted)); Policano v. Herbert, 859 N.E.2d 484,
495–96 (N.Y. 2006) (―[W]e must weigh three factors to determine
whether a new precedent operates retroactively: the purpose to be
served by the new standard; the extent of the reliance by law
enforcement authorities on the old standard; and the effect on the
administration of justice of a retroactive application of the new
standard. The second and third factors are, however, only given
substantial weight ‗when the answer to the retroactivity question is
not to be found in the purpose of the new rule itself.‘‖ (citation
omitted)).
140 Bousley, 523 U.S. at 620–21.
141 Id. at 620.

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Opinion of the Court

to our law of preservation.142 Defendants seeking collateral review
must abide by the Post-Conviction Remedies Act143 in seeking to
have our new interpretation of a statute applied to them. We
therefore conclude that Mr. Robertson will receive the benefit of our
new interpretation of section 404 announced in this decision today—
as will other criminal defendants on direct or collateral review who
meet the requirements of our law of preservation and the PCRA. We
turn now to the application of section 404 to Mr. Robertson‘s case.
B. The Record Shows that the State Premised Its Prosecution of Mr.
Robertson on Conduct that Constitutes the “Same Offense” for Which He
Was Prosecuted Federally
¶ 65 As discussed, Utah Code section 76-1-404 prohibits the State
from prosecuting a defendant if the defendant has already been
prosecuted in another jurisdiction provided two conditions are
satisfied. First, ―the former prosecution [must] result[] in an
acquittal, conviction, or termination of prosecution.‖ 144 The parties
agree that Mr. Robertson‘s federal prosecution satisfies this
requirement. The second condition requires that ―the subsequent
prosecution [be] for the same offense or offenses,‖145 as we have
described above. It is on this condition that the parties disagree—
whether the Utah prosecution can be said to be for the ―same
offense‖ as the federal prosecution.
¶ 66 As we have explained, determining whether a prior foreign
prosecution qualifies as the ―same offense‖ under section 404
requires a two-part analysis: whether the offenses for which an
individual was prosecuted are the same under Blockburger-Sosa and,
if they are, whether the conduct establishing the offenses is also the
same. In this case, there is no dispute that the two relevant statutes
are the ―same offense‖ under a Blockburger-Sosa analysis. Mr.
_____________________________________________________________
142 We do not reach the question whether there may be some
exception to the general rule we adopt today. See, e.g., Luurtsema, 12
A.3d at 832 (adopting a ―general presumption in favor of full
retroactivity for judicial decisions that narrow the scope of liability of
a criminal statute,‖ but denying retroactive application of a new rule
of substantive criminal law where such a denial did not constitute a
―gross miscarriage of justice‖).
143 See UTAH CODE §§ 78B-9-101 to -405.
144 UTAH CODE § 76-1-404(1).
145 Id. § 76-1-404(2).

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 STATE v. ROBERTSON
Opinion of the Court
Robertson was charged in both federal and state court with
possession of child pornography. The federal child pornography
statute, 18 U.S.C. section 2252A(a)(5)(B) (2008), criminalizes the
―knowing[] possess[ion]‖ of ―any . . . material that contains an image
of child pornography that has been . . . transported using any means
or facility of interstate or foreign commerce.‖ The equivalent Utah
statute, section 76-5a-3 (2004),146 makes it a crime to
―knowingly . . . possess[] . . . child pornography.‖ The definition of
―child pornography‖ is the same under both statutes.147 And though
the federal offense requires proof of an element that the Utah statute
does not—interstate commerce—the Utah statute does not require
proof of an element that the federal statute does not. Thus, the Utah
crime is a lesser-included offense of the federal offense, rendering it
the ―same offense‖ under a Blockburger-Sosa analysis.
¶ 67 We must next determine whether the prosecutions were
based on the same conduct. If they are not, then the State is free to
prosecute based on any previously uncharged criminal conduct. This
analysis, as we described above, is informed by the relevant units of
prosecution. Under federal law, the unit of prosecution ―is each
‗material,‘ or medium, containing an image of child
pornography.‖148 The unit of prosecution under Utah law is ―each
minor depicted in the child pornography‖ and ―each time the same
minor is depicted in different child pornography.‖149 With these
units of prosecution in mind, we must determine whether the
evidence supporting the prosecuted criminal conduct in the federal
case encompasses the evidence supporting the prosecuted criminal
conduct in the Utah case.
¶ 68 The State argues that because Mr. Robertson was charged
with only one count of violating the federal statute, he was federally
prosecuted only for possessing one medium containing child
pornography—the federal unit of prosecution. The State claims that
the medium that served as the basis for the federal prosecution was
the Dell computer because the Utah agent provided the federal

_____________________________________________________________

146The statute has since been renumbered without substantive
change to 76-5b-201(1).
147 See 18 U.S.C. § 2256(8) (2008); UTAH CODE § 76-5a-2(1) (2004).
148 United States v. Woerner, 709 F.3d 527, 540 (5th Cir. 2013)
(citation omitted).
149 UTAH CODE § 76-5b-201(3).

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Opinion of the Court

attorney with videos solely from that computer during the federal
screening process. So because Mr. Robertson owned several media
containing child pornography—two computers and several other
storage devices—the State argues that it is free to prosecute him for
possessing the child pornography contained in the other media.
Although we agree that were the federal prosecution truly limited to
prosecuting Mr. Robertson‘s possession of child pornography on one
computer, section 404 would not prohibit the subsequent state
prosecution, we disagree that the federal prosecution was so limited.
¶ 69 The one-count federal indictment returned by the grand jury
charged Mr. Robertson with knowing possession of multiple
media—―computer disks and other materials containing images of
child pornography.‖ The forfeiture notice included with the
indictment stated that all of the media—not just the one computer—
were used ―to commit and to facilitate the commission of [the]
violation‖ of the federal child pornography statute. Thus, though the
federal indictment could have rested solely on Mr. Robertson‘s
possession of one medium containing child pornography, it appears
that the prosecution was based on his possession of multiple media,
with no distinction made between any of the various media. Indeed,
the trial court in the Utah case specifically determined that this was
the case, finding that the Utah prosecution—which charged Mr.
Robertson with multiple counts of possession of child pornography
based on images found on both computers—was ―[b]ased on the
same body of evidence‖ as the previous federal prosecution. Because
the federal prosecution was based on evidence of Mr. Robertson‘s
possession of all the media containing child pornography, it
encompassed the evidence of the conduct that was at issue in the
Utah prosecution. Therefore, the two prosecutions were for the same
conduct.
¶ 70 In sum, the federal and Utah criminal statutes constitute the
―same offense‖ under Blockburger-Sosa. The evidence of criminal
conduct supporting the federal prosecution encompassed the
evidence of criminal conduct used to support the subsequent Utah
prosecution. Thus, Mr. Robertson was prosecuted for the same
conduct, constituting the ―same offense,‖ twice. Accordingly, section
76-1-404 bars the State‘s subsequent prosecution of Mr. Robertson.
We therefore reverse the decision of the court of appeals.
Conclusion
¶ 71 Our conclusion in State v. Franklin that Utah Code section
76-1-404‘s use of ―same offense‖ incorporated the dual sovereignty
doctrine is overruled. The language of the statute unmistakably

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Opinion of the Court
operates as a legislative rejection of the dual sovereignty doctrine.
We accordingly clarify today that section 404‘s use of ―same offense‖
encompasses only the Blockburger-Sosa test. Thus, section 404
prohibits Utah prosecutions following prosecutions in other
jurisdictions so long as the offenses are the same under Blockburger-
Sosa and the conduct at issue in the previous prosecution
encompasses the same conduct at issue in the Utah prosecution, as
informed by the relevant units of prosecution and evidence. The
interpretation of section 404 that we announce today applies
retroactively and, applying this interpretation to Mr. Robertson‘s
case, we hold that section 404 prohibited the State from prosecuting
him after the federal prosecution. We therefore reverse the court of
appeals‘ decision.

36