State v. Johnson

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

2017 UT 76

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Appellee,
v.
MICHAEL WADDELL JOHNSON,
Appellant.

No. 20140794
Filed November 14, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Judith S. H. Atherton
No. 071900184

Attorneys:
Sean Reyes, Att’y Gen., Karen Klucznik, Asst. Solic. Gen.,
Salt Lake City, for appellee
Ronald Fujino, Salt Lake City for appellant

JUSTICE DURHAM authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE KELLY joined.
ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.
Having recused himself, JUSTICE PEARCE does not participate herein;
DISTRICT COURT JUDGE KEITH KELLY sat.

JUSTICE DURHAM, opinion of the Court:

*After this opinion issued, both the State and Mr. Johnson
petitioned for rehearing. Mr. Johnson asked this court to remove
footnote 18 and a sentence from paragraph 59. The State asked us to
clarify that a claim of ineffective assistance of counsel can be brought
in a post-trial motion. We granted both requests for modification.
 STATE v. JOHNSON
Opinion of the Court

INTRODUCTION
¶1 Michael Johnson was found guilty of murder for strangling
a woman in her apartment. Mr. Johnson appealed his conviction. On
appeal, the court of appeals identified an issue that was not argued
by the parties and ordered supplemental briefing, ultimately
reversing Mr. Johnson’s conviction. We have granted certiorari
review to answer a single question: whether the court of appeals
correctly concluded that exceptional circumstances merit review of
an issue not preserved in the trial court and not argued on appeal.
We hold that the exceptional circumstances exception to the
preservation rule does not apply here, and we reverse the court of
appeals and remand this case so that it may consider the appellant’s
other unaddressed claims of error.
BACKGROUND
¶2 Michael Johnson was charged and tried for murder. At trial,
Mr. Johnson requested an instruction for the lesser offense of
homicide by assault. The trial court agreed and stated on the record
that it would use the homicide by assault instruction submitted by
Mr. Johnson.
¶3 The jury returned a guilty verdict on the murder charge, and
Mr. Johnson appealed his conviction to the court of appeals. He
argued that his conviction should be reversed because the verdict
form returned by the jury did not include an option to find him
guilty of the lesser offense of homicide by assault 1 and that the jury
instruction on causation was erroneous. State v. Johnson, 2014 UT
App 161, ¶ 11 & n.5, 330 P.3d 743.

1 The signed, one-page verdict form found in the record makes no
mention of the lesser offense of homicide by assault. The court of
appeals granted the State’s motion for a remand to the trial court to
supplement the record regarding the verdict forms provided to the
jury. State v. Johnson, 2014 UT App 161, ¶ 10, 330 P.3d 743. On
remand, the trial court issued a minute entry stating that it was
unable to find a homicide by assault verdict form in its files. Id.
Although the verdict form no longer existed, “it [was] the court’s
recollection that the court created the lesser-included offense verdict
form and sent the verdict form with the jury instructions with the
jury when it was released to deliberate.” Id. The trial court further
stated that the jury may have left the separate homicide by assault
verdict form in the jury room where it was later discarded by court
staff. Id.

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¶4 The court of appeals asked for supplemental briefing on an
issue that Mr. Johnson had not raised on appeal: whether the
homicide by assault jury instruction was erroneous. Id. ¶¶ 12–13.
After supplemental briefing, the court of appeals reversed
Mr. Johnson’s conviction based upon its conclusion that the homicide
by assault instruction was erroneous, id. ¶ 29, with each judge on the
three-member panel writing separately. The court acknowledged
that Mr. Johnson never preserved an objection to the instruction and
that Mr. Johnson likely invited the error by submitting the
instruction to the court. Id. ¶ 14. The court of appeals decided,
however, that the exceptional circumstances exception to the
preservation rule permitted the court to examine the unpreserved
and likely invited error. Id. ¶¶ 14–19. A majority of the panel reached
this conclusion by determining that our decision in State v. Robison,
2006 UT 65, 147 P.3d 448, expanded the doctrine of exceptional
circumstances. Johnson, 2014 UT App 161, ¶¶ 16–19, 30–31.
¶5 This court granted a petition for certiorari review of the
court of appeals’ opinion. We agreed to answer “[w]hether the
majority of the panel of the court of appeals erred in its application
of the exceptional circumstances doctrine to a case in which it
acknowledged the error may have been invited and in which
Respondent did not argue ineffective assistance of counsel.”
STANDARD OF REVIEW
¶6 We review the court of appeals’ application of the
preservation rule for correctness. State v. McNeil, 2016 UT 3, ¶ 14, 365
P.3d 699. “This standard of review allows us to apply the [appellate]
doctrines at issue here as if we were the first appellate court to
consider them.” Id.
ANALYSIS
I. THE DIFFERENCE BETWEEN FAILURE TO PRESERVE AN
ISSUE IN THE TRIAL COURT AND WAIVING AN ISSUE
ON APPEAL
¶7 The court of appeals erred when it determined that State v.
Robison, 2006 UT 65, 147 P.3d 448, extended the application of the
exceptional circumstances exception to preservation. Given the
ambiguity in our precedent, we undertake clarification of when an
appellate court may reach an issue that was not preserved in the trial
court, and when it may reach an issue sua sponte that was waived by
the parties on appeal. We first discuss the historical background
against which our rules of preservation and waiver developed, and
then we address preservation and waiver and their respective
exceptions. Finally, we apply these standards to the case before us.
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 STATE v. JOHNSON
Opinion of the Court

A. Writ of Error and Appeal in Equity
¶8 Our appellate system has developed along the adversarial
model, which is founded on the premise that parties are in the best
position to select and argue the issues most advantageous to
themselves, while allowing an impartial tribunal to determine the
merits of those arguments. See Patterson v. Patterson, 2011 UT 68,
¶ 16, 266 P.3d 828 (“Under our adversary system, the responsibility
for detecting error is on the party asserting it, not on the court.”);
State v. Larrabee, 2013 UT 70, ¶ 15, 321 P.3d 1136. This system
preserves judicial economy and fairness between the parties.
Patterson, 2011 UT 68, ¶¶ 15–16.
¶9 Notwithstanding the dominance of this model, our system
of appeals has roots in two separate and distinct methods of review
available under the old English court system: the writ of error and
the appeal in equity. The writ of error was used to review an order
or judgment of an English court of law; an appeal in equity was used
to review a ruling in a court of equity. Barry A. Miller, Sua Sponte
Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be
Heard, 39 SAN DIEGO L. REV. 1253, 1263 (2002). Writs of error were
strictly limited to reviewing orders and judgments made by the court
of law on issues raised in that court. Id. Conversely, “[a]ppellate
courts in equity were free to consider any issue de novo” and
“developed flexible procedures to address the needs of individual
cases.” Id.
¶10 While American courts have developed an appellate system
with strict rules governing what issues an appellate court will
address, thus more closely resembling the writ-of-error model, both
the writ of error and the appeal in equity were consolidated into one
set of appellate courts. See id. at 1264 (noting that the writ of error
and appeal in equity were combined in U.S. appellate courts, with
“[o]ne set of appellate courts administer[ing] both”); Goldberg v. Jay
Timmons & Assocs., 896 P.2d 1241, 1242 (Utah Ct. App. 1995)
(“Historically, parties could bring actions in a court of law or a court
of equity. For procedural purposes, the distinction between law and
equity has been abolished and only ‘one form of action . . . known as
civil action,’ remains.” (alteration in original) (citations omitted)); cf.
Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 20, 194
P.3d 931 (establishing standard of review for cases in equity as
opposed to cases at law). This has created a system that, at times,
appears to contain inherent conflicts and has given rise to a certain
tension, if not murkiness, regarding preservation, waiver, and when
a court may raise an issue sua sponte.

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¶11 Our court’s history in this regard is not unique. Appellate
judges across the country have wrestled with the correct balance
between law and equity and the scope of review on appeal. See
Miller, supra ¶ 9 at 1271 (noting that despite a party’s duty to raise
issues, appellate judges raise issues sua sponte because they “also see
their role as doing justice in the tradition of equity”). For instance, in
one case the late Justice Antonin Scalia wrote, “[t]he rule that points
not argued will not be considered is more than just a prudential rule
of convenience; its observance, at least in the vast majority of cases,
distinguishes our adversary system of justice from the inquisitorial
one.” United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,
concurring). Yet elsewhere he stated that “the refusal to consider
arguments not raised is a sound prudential practice, rather than a
statutory or constitutional mandate, and there are times when
prudence dictates the contrary.” Davis v. United States, 512 U.S. 452,
464 (1994) (Scalia, J., concurring).
¶12 Despite this historical tension between the two systems,
and our general reliance on strict rules governing preservation and
waiver, we have maintained that our waiver and preservation
requirements are “self-imposed and [are] therefore [doctrines] of
prudence rather than jurisdiction.” Patterson, 2011 UT 68, ¶ 13.
“Consequently, we exercise wide discretion when deciding whether
to entertain or reject” issues that are unpreserved at trial or waived
on appeal. Id.; see also Salt Lake City v. Carrera, 2015 UT 73, ¶ 17, 358
P.3d 1067 (“[W]e . . . retain discretion over whether to consider
issues not raised by the parties.”); Utah Dep’t of Transp. v. Admiral
Beverage Corp., 2011 UT 62, ¶ 8, 275 P.3d 208 (raising the validity of
precedent sua sponte). We retain this discretion to “balance the need
for procedural regularity with the demands of fairness.” State v.
Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (citation omitted).
Regardless of whether the practice of appellate courts
in raising issues sua sponte that have not been raised
in the trial court is analyzed under the law versus
equity model or the adversarial versus inquisitorial
system model, there is widespread agreement that
appellate courts have the authority to engage in this
practice.
Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of Connecticut, 84
A.3d 840, 859 (Conn. 2014).
¶13 In an effort to serve the policy considerations of judicial
economy and fairness to the parties, to preserve the adversarial
model, and to provide clear guidelines to litigants, we have limited
our discretion by creating exceptions to the general preservation
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Opinion of the Court

rule. Patterson, 2011 UT 68, ¶ 13 (“We have exercised this discretion
to recognize some limited exceptions to our general preservation
rule.”). However, there has arisen some confusion concerning our
preservation exceptions, as is evident from the three opinions in the
court of appeals in this case. Also, we have rarely touched on when it
is appropriate for an appellate court to reach an issue sua sponte that
has been waived on appeal. We therefore use this opportunity to
clarify our preservation and waiver doctrines and to outline when a
court may reach an issue sua sponte. We begin by discussing the
terminology of preservation and waiver.
B. Definitions of Preservation and Waiver on Appeal
¶14 Under our adversarial system, the parties have the duty to
identify legal issues and bring arguments before an impartial
tribunal to adjudicate their respective rights and obligations. This
duty of the parties exists in both the trial court and in the appellate
court. If the parties fail to raise an issue 2 in either the trial or

2 In Patterson, this court rejected the “distinction between ’issues’
and ‘arguments’ when determining whether to apply our
preservation rule.” 2011 UT 68, ¶ 14. But Patterson merely stated that
the appellant’s argument was “semantics,” and required courts to
look at the underlying policies to determine whether new arguments
are actually entirely new issues. Id. ¶ 15. Patterson confirms that we
view issues narrowly, but also made it clear that new arguments,
when brought under a properly preserved issue or theory, do not
require an exception to preservation. Such arguments include citing
new authority or cases supporting an issue that was properly
preserved. Id. ¶ 18 (“[W]e routinely consider new authority relevant
to issues that have properly been preserved . . . .” (emphasis added));
see also Bagley v. Bagley, 2016 UT 48, ¶ 26, 387 P.3d 1000 (holding that
the “absurd result argument does not raise a wholly new issue”
because it is an essential argument for correctly interpreting a statute
that was properly raised).
For instance, in Patterson, we cited In re Estate of Sims, 918 P.2d
132, 134 n.2 (Utah Ct. App. 1996) to support our refusal to make a
distinction between arguments and issues. Patterson, 2011 UT 68,
¶ 14 n.5. However, as the Patterson court notes, in Sims, the court of
appeals “rejecte[d] [the] appellant’s attempt to avoid the
preservation rule by characterizing estoppel as a new argument
rather than a new issue.” Id. Estoppel is an entirely distinct legal
theory, and is thus a new claim or issue. So, if the appellant in Sims
had preserved the issue of estoppel below, and had simply cited
different precedent or clarified their argument for estoppel on
(continued . . .)
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appellate court, they risk losing the opportunity to have the court
address that issue.
¶15 When a party fails to raise and argue an issue in the trial
court, it has failed to preserve the issue, and an appellate court will
not typically reach that issue absent a valid exception to
preservation. Patterson, 2011 UT 68, ¶ 12 (stating that appellate
courts “generally will not consider an issue unless it has been
preserved for appeal”). “An issue is preserved for appeal when it has
been ‘presented to the district court in such a way that the court has
an opportunity to rule on [it].’” 3 Id. (alteration in original) (citation
omitted). “To provide the court with this opportunity, ‘the issue
must be specifically raised [by the party asserting error], in a timely
manner, and must be supported by evidence and relevant legal
authority.’” State ex rel. D.B., 2012 UT 65, ¶ 17, 289 P.3d 459
(alteration in original); see also O'Dea v. Olea, 2009 UT 46, ¶ 18, 217

(continued . . .)
appeal, they would not have required an exception to preservation.
Indeed, every case cited in Patterson to support the assertion that this
court has “refuse[d] to consider new . . . arguments . . . on appeal,”
dealt with entirely new legal theories. Patterson, 2011 UT 68, ¶ 17,
citing
Carrier v. Salt Lake Cty., 2004 UT 98, ¶¶ 42–43, 104 P.3d
1208 (refusing to consider appellant’s argument that it
was entitled to attorney fees under the private attorney
general doctrine because the issue was not argued
below); 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶¶ 50–52, 99 P.3d 801 (declining to address appellant's
challenge to the district court’s findings of fact because
the district court had not been sufficiently “alerted” to
the error claimed on appeal); Shayne v. Stanley & Sons,
Inc., 605 P.2d 775, 776 (Utah 1980) (rejecting appellant’s
negligence claim because it was not argued below);
[James v.] Preston, 746 P.2d [799,] 801 [(Utah Ct. App.
1987)] (refusing to address appellant’s equitable
mortgage theory because appellant did not raise it
sufficiently before the district court).
3 We have also recognized that an issue is considered preserved
in some circumstances when “[t]he district court[] deci[des] to take
up the question” on its own. Fort Pierce Indus. Park Phases II, III & IV
Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (first
alteration in original) (citation omitted).

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Opinion of the Court

P.3d 704. (To preserve an issue: “(1) the issue must be raised in a
timely fashion; (2) the issue must be specifically raised; and (3) a
party must introduce supporting evidence or relevant legal
authority.” (citation omitted)).
¶16 When a party fails to raise and argue an issue on appeal, or
raises it for the first time in a reply brief, that issue is waived and
will typically not be addressed by the appellate court. 4 Allen v. Friel,
2008 UT 56, ¶¶ 7–8, 194 P.3d 903 (appellants failing to raise an issue,
or raising an issue for the first time in their reply brief, have waived
the issue on appeal); Robison, 2006 UT 65, ¶ 22 (agreeing with the
Illinois Supreme Court that “[the court of appeals] should not
normally search the record for unargued and unbriefed reasons to
reverse a [district] court judgment” (alterations in original) (citation
omitted)).
¶17 Preservation and waiver are not mutually exclusive. There
are at least four possible interactions between these two
requirements. First, a party may have preserved an issue in the trial
court and properly raised it on appeal. In this instance, the appellate
court will typically address the issue. Second, a party may have
preserved an issue, but failed to properly raise it on appeal, thus

4 This is not to be confused with when an issue is waived in the
trial court. This overlap of terminology can cause confusion. Waiver,
in the context of raising an issue before a court, is generally the
relinquishment or abandonment of an issue before a trial or appellate
court. Waiver may be express, such as through a stipulation of the
parties, see Redev. Agency of Salt Lake City v. Tanner, 740 P.2d 1296,
1299–1300 (Utah 1987) (party could not challenge a stipulated issue
without showing the stipulation was invalid), or implied, such as by
failing to raise an issue or argument at the required time, see Larrabee,
2013 UT 70, ¶ 16 (objection that was raised “two months after the
trial” was not timely enough to preserve the issue for appeal).
Waiver may thus occur in trial courts and in appellate courts. If
an issue has been waived in the trial court, that issue is not
preserved for appeal. Salt Lake City Corp. v. Jordan River Restoration
Network, 2012 UT 84, ¶ 108, 299 P.3d 990 (“Our preservation rule
does not permit a party to waive an issue before the district court
and later raise the issue on appeal.”). When a party fails to raise and
argue an issue on appeal, the issue has been waived before the
appellate court. In both instances, the issue has been waived, but for
clarity in this opinion we use “preservation” terminology to refer to
a waiver of an issue in the trial court, and we use “waiver” to refer to
an issue that has not properly been raised and argued on appeal.

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waiving it. Third, a party may have failed to preserve an issue in the
trial court, but seeks to raise it on appeal. In this instance, the party
must argue an exception to preservation. Finally, a party may have
failed to preserve an issue in the trial court, and failed to raise and
argue the issue on appeal. 5 In any of the second through fourth
examples, this court will not typically reach the issue absent some
recognized exception.
II. EXCEPTIONS TO PRESERVATION
¶18 As mentioned above, parties are required to raise and argue
an issue in the trial court “in such a way that the court has an
opportunity to rule on [it].” Patterson v. Patterson, 2011 UT 68, ¶ 12,
266 P.3d 828 (alteration in original) (citation omitted). A failure to
preserve an issue in the trial court generally precludes a party from
arguing that issue in an appellate court, absent a valid exception. See
id.
¶19 This court has recognized three distinct exceptions to
preservation: plain error, ineffective assistance of counsel, and
exceptional circumstances. When an issue is not preserved in the
trial court, but a party seeks to raise it on appeal, the party must
establish the applicability of one of these exceptions to persuade an
appellate court to reach that issue.
A. Plain Error
¶20 “To demonstrate plain error, a defendant must establish that
‘(i) [a]n error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful . . . .’” State v. Holgate, 2000
UT 74, ¶ 13, 10 P.3d 346 (alteration in original) (citation omitted). “If
any one of these requirements is not met, plain error is not
established.” State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation
omitted).
¶21 For an error to be obvious to the trial court, the party
arguing for the exception to preservation must “show that the law
governing the error was clear,” id. ¶ 16, or “plainly settled,” id. ¶ 18,
“at the time the alleged error was made,” id. ¶ 16. For it to be

5 These are the basic interactions between these requirements.
There are other instances in which preservation and waiver interact,
such as when an appellant fails to preserve an issue below but the
appellee waives their argument on appeal that the appellant failed to
preserve the issue. We do not address the effect of such an
interaction in this opinion; we merely note that other interactions
between waiver and preservation may exist.

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Opinion of the Court

harmful, the error must be shown to have been “of such a magnitude
that there is a reasonable likelihood of a more favorable outcome for
the defendant.” Id. ¶ 22 (citations omitted). This test is “equivalent to
the prejudice test applied in assessing claims of ineffective assistance
of counsel.” Id. In determining if the harm was prejudicial, we
determine whether there is a “reasonable probability” that, “‘but for’
the alleged error,” the outcome in the case would have been
different. Id.
B. Ineffective Assistance of Counsel
¶22 Ineffective assistance of counsel is sometimes characterized
as an exception to preservation. See State v. Griffin, 2016 UT 33, ¶ 22,
384 P.3d 186 (“[I]neffective assistance of counsel claims [are] a
recognized exception to our preservation requirements.”); see also
State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867. But this exception differs
from the other preservation exceptions. Under plain error or
exceptional circumstances, the court may reach the substantive claim
that was not preserved in the trial court. Ineffective assistance of
counsel, however, is a stand-alone constitutional claim attacking the
performance of a criminal defendant’s counsel. See U.S. CONST.
amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.”); see also
Strickland v. Washington, 466 U.S. 668, 686 (1984) (stating that the
Sixth Amendment “right to counsel is the right to the effective
assistance of counsel” (citation omitted)) superseded on other grounds
by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104–132, 110 Stat. 1214. While such a claim necessarily requires the
court to look at the substantive issue the defendant argues his
counsel should have raised, and whether the substantive issue had
any merit, the substantive issue is only viewed through the lens of
counsel’s performance. Archuleta v. Galetka, 2011 UT 73, ¶ 32, 267
P.3d 232 (ineffective assistance of counsel is an entirely new claim
that does not “revive[] the underlying substantive claim”); State v.
Hansen, 2002 UT 114, ¶ 21 n.2, 61 P.3d 1062 (“[P]art[ies] may . . .
assert ineffective assistance of counsel in failing to preserve [an]
issue.”).
¶23 Ineffective assistance of counsel is thought of as an
exception to preservation because a claim for ineffective assistance
does not mature until after counsel makes an error. Thus, while it is
not a typical exception to preservation, it allows criminal defendants
to attack their counsel’s failure to effectively raise an issue below that
would have resulted in a different outcome. See State v. Roth, 2001
UT 103, ¶¶ 5, 11, 37 P.3d 1099. Such a claim can be brought in a post-
trial motion or on direct appeal. See State v. Templin, 805 P.2d 182, 185

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(Utah 1990) (stating that “the same principles [that] apply in
addressing ineffective assistance claims in motions for new trials
apply on direct appeal and in habeas corpus actions” (citation
omitted)). This exception applies only in criminal cases, because
criminal defendants are the only parties constitutionally guaranteed
the right to effective assistance of counsel.
C. Exceptional Circumstances
¶24 Utah appellate courts have characterized the exceptional
circumstances exception as “ill-defined,” see Holgate, 2000 UT 74,
¶ 12 (citation omitted), and as an “[im]precise doctrine” that cannot
“be analyzed in terms of fixed elements,” State v. Irwin, 924 P.2d 5, 8
(Utah Ct. App. 1996). This is perhaps the source of the confusion
generated by State v. Robison, 2006 UT 65, 147 P.3d 448, in the court
of appeals. We undertake clarification of Robison’s scope and our
view of the concept of exceptional circumstances.
1. Robison Did Not Contemplate an Extension of Exceptional
Circumstances
¶25 The court of appeals erred when it determined that Robison
extended the scope of the exceptional circumstances doctrine. Two
members of the court of appeals panel, writing separately, concluded
that Robison applied and extended the exceptional circumstances
exception in the context of the preservation rule. They understood
Robison as an exceptional circumstances case because of its reliance
on State v. Breckenridge, 688 P.2d 440 (Utah 1983), which they
believed was also an exceptional circumstances case. See State v.
Johnson, 2014 UT App 161, ¶ 16, 330 P.3d 743; id. ¶ 31 (Roth, J.,
concurring); but see State v. Brown, 853 P.2d 851, 854 (Utah 1992)
(“Breckenridge was a case of plain error . . . .”). The third member of
the panel dissented, opining that Robison does not apply when the
defendant invited the error in the trial court. Johnson, 2014 UT App
161, ¶ 47 n.14 (Bench, S.J., dissenting) (“Robison . . . does not obviate
the application of the invited error doctrine . . . .”).
¶26 In Robison, we distinguished between the case where an
appellate court may reach an issue that was not preserved in the trial
court and the case where a court may raise an issue sua sponte that
was waived by the parties on appeal. We reviewed a court of
appeals’ decision in which it ruled on an issue that was not
preserved in the trial court, and was waived by the parties on
appeal. Robison, 2006 UT 65, ¶¶ 9–10. The court of appeals reached
the issue sua sponte without seeking supplemental briefing or
argument from the parties. Id. ¶¶ 15–16. We stated that “the
preservation rule and its exceptions do not contemplate arguments

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that are never presented by the parties,” and are thereby waived on
appeal. Id. ¶ 17. We went on to state that, “[b]ecause an exception to
the preservation rule is insufficient to justify the court of appeals’
decision, we next explore whether any other appellate principle
would justify reversing the district court by invoking new law based
on a theory that has not been raised by the parties.” Id. ¶ 18.
¶27 Thus, when a party realizes an important issue was not
preserved in the trial court, but wishes an appellate court to address
that issue, the party must argue that an exception to preservation
applies. However, when the appellate court itself identifies and
reaches an issue sua sponte that was waived on appeal, something
different is at play. While both the willingness of an appellate court
to address an issue not preserved at trial and the willingness to
address an issue not argued on appeal are an exercise of the same
discretion, see Patterson, 2011 UT 68, ¶ 13, the two sets of
circumstances are separate matters governed by different standards
for the exercise of that discretion.
¶28 Our opinion was intended to explain when it is appropriate
for appellate courts to address an issue sua sponte that was waived on
appeal and what steps must be taken to ensure fairness to the
parties, such as requesting supplemental briefing. Robison, 2006 UT
65, ¶¶ 9–10, 24. We acknowledge some sympathy with the court of
appeals in its over-reading of Robison. Our precedent governing
preservation and waiver has been evolving over time, as we have
wrestled with the balance between procedural regularity and
fairness, and as we have attempted to create the proper terminology
for exceptions to preservation and waiver. This evolution has given
rise historically to some confusion between when a court may sua
sponte reach an issue waived by the parties on appeal, and when a
court may reach an issue that was not preserved in the trial court. 6

6 The evolution in our case law is highlighted by Breckenridge (a
thirty-four-year-old case). In Breckenridge, the court justified its sua
sponte identification of an issue that was waived on appeal by using
an exception to preservation. 688 P.2d at 443. We stated that “[t]he
general rule that constitutional issues not raised at trial cannot be
raised on appeal is excepted to when a person’s liberty is at stake.”
Id. However, we have since abandoned that exception to
preservation. See State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994)
(abandoning rule that a constitutional claim along with a liberty
interest alone are sufficient to reach an unpreserved issue). The court
of appeals subsequently viewed Breckenridge as an exceptional
circumstances case. State v. Archambeau, 820 P.2d 920, 924 (Utah Ct.
(continued . . .)
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Robison itself is not as helpful as we intended. For this reason, we
clarify the exceptional circumstances doctrine.
2. Clarification of Exceptional Circumstances
¶29 The exceptional circumstances doctrine is applied
“sparingly, reserving it for the most unusual circumstances where
our failure to consider an issue that was not properly preserved for
appeal would have resulted in manifest injustice.” Adoption of K.A.S.,
2016 UT 55, ¶ 19, 390 P.3d 278 (citation omitted). We apply this
exception to reach an unpreserved issue where a “rare procedural
anomal[y]” has either prevented an appellant from preserving an
issue or excuses a failure to do so. Id. ¶¶ 19–20 (citation omitted).
The showing of a rare procedural anomaly is not determinative, but
rather opens the door to a deeper inquiry. Once a party shows that a
rare procedural anomaly has occurred, additional factors must be
considered to determine whether an appellate court should reach an
unpreserved issue. We review our case law to illustrate what
constitutes a rare procedural anomaly and then we examine factors
that may be considered after that initial showing is made.
¶30 Historically, we have on occasion taken exception to
preservation rules when a “palpable error” was observed on the
record. State v. Cobo, 60 P.2d 952, 958 (Utah 1936) (“[W]hen palpable
error on the face of the record involved violations of fundamental
rights . . . . ‘we feel ourselves at liberty to correct it.’” (citation
omitted)). Until recently, courts in this state have used the terms
“exceptional circumstances” and “plain error” interchangeably when
discussing the palpable error exception set forth in Cobo. See State v.
Scott, 447 P.2d 908, 910 (Utah 1968) (“[T]here may be exceptional
circumstances when errors not excepted to are so clearly erroneous
and prejudicial to the fundamental rights of a defendant that an
appellate court will of its own accord take notice thereof.”).

(continued . . .)
App. 1991) (“Breckenridge is a case in which the ‘exceptional
circumstances’ exception would have allowed appellate review.”).
However, this court later stated that “Breckenridge was a case of plain
error,” even though Breckenridge did not strictly follow traditional
plain error analysis. Brown, 853 P.2d at 853–54. This history
highlights the evolution of preservation and waiver as this court
made an early attempt in Breckenridge to explain what is happening
when an appellate court raises an issue sua sponte that has been
waived on appeal.

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 STATE v. JOHNSON
Opinion of the Court

¶31 It wasn’t until State v. Gibbons in 1987 that we expressly
recognized a distinction between plain error and exceptional
circumstances. 740 P.2d 1309, 1311 (Utah 1987) (“[T]his Court will
not entertain an issue first raised on appeal in the absence of
exceptional circumstances or plain error.”). Since Gibbons, the
showing of a rare procedural anomaly has been requisite to invoking
exceptional circumstances.
¶32 In Gibbons, we remanded the issue of whether the defendant
had willfully and voluntarily entered a guilty plea, despite the
defendant’s failure to preserve the issue below. Id. at 1310. At the
time of the Gibbons appeal, the defendant had not preserved his
argument because he had failed to file a motion to withdraw his
guilty plea with the district court. Id. at 1311. However, a Utah
statute governing the withdrawal of pleas provided “no time limit
for filing a motion to withdraw the plea.” Id. The statute created a
procedural anomaly because, while the defendant had failed to
preserve the issue, he still had the option to preserve the issue at any
time during the appeal. This opened the door to the possibility of
two separate appeals, on the same issue, had the defendant filed a
motion to withdraw with the trial court while the current appeal was
still pending. Id. Rather than dismissing the appeal outright for
failure to preserve, this court retained the case for the sole purpose of
remanding to allow the defendant to file a motion to withdraw his
guilty plea in the district court. Id.
¶33 In State v. Haston, we recognized a rare procedural anomaly
when controlling precedent is issued that abolishes the offense for
which the defendant was convicted while the defendant’s appeal is
pending. 846 P.2d 1276 (Utah 1993). Thus, a rare procedural anomaly
exists “where a change in law or the settled interpretation of law
color[s] the failure to have raised an issue at trial.” Irwin, 924 P.2d at
10 (citing Haston, 846 P.2d 1276).
¶34 In State v. Lopez, the defendant was pulled over for turning
without using a signal. 873 P.2d 1127, 1129–30 (Utah 1994). A check
of the defendant’s identification showed that he had three warrants
for his arrest and no driver’s license. Id. at 1130. During an inventory
search of the defendant’s vehicle, several bags of cocaine were found
and the defendant was charged with unlawful possession with intent
to distribute. Id. The defendant argued, under well-established Utah
court of appeals’ precedent, that the officer conducted a pretextual
stop that violated the Fourth Amendment of the U.S. Constitution.
Id. The district court held that the officer conducted a pretextual stop
and suppressed the evidence. Id. On appeal, the State argued that
this court should abandon the pretext doctrine under the Fourth

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Opinion of the Court

Amendment. Based on the State’s argument, the defendant cross-
appealed arguing that this court should adopt the pretext doctrine
under the Utah Constitution. The state challenged the cross-appeal,
arguing that the defendant did not raise the interpretation of the
Utah Constitution in the district court. This court held that a rare
procedural anomaly justified the defendant’s failure to raise the
issue below because, “[a]t the time of the suppression hearing, the
pretext doctrine was the controlling rule of Fourth Amendment law
as interpreted by the court of appeals,” and the defendant “had no
reason to” raise the state constitutional claim at that time. Id. at 1134
n.2. Therefore, the state constitutional argument “did not appear
applicable” until the State challenged the well-settled precedent that
the defendant had relied on. Id.
¶35 In State ex rel. D.B., we recognized a rare procedural
anomaly “when the alleged error first arises in the lower court’s final
order or judgment and thus, leaves no opportunity for the party to
object . . . .” 2012 UT 65, ¶ 34, 289 P.3d 459 (citation omitted); see also
Salt Lake City v. Ohms, 881 P.2d 844, 846–47 (Utah 1994) (challenging
the unpreserved issue of whether a court commissioner had the
authority to issue a judicial order). In D.B., the State argued that the
juvenile had committed theft and criminal trespass under principal
liability and did not “pursue an accomplice liability theory for
criminal trespass during trial or closing arguments.” 2012 UT 65,
¶ 35. However, while D.B. had notice of the possibility of accomplice
liability for the theft claim, he did not receive notice of the possibility
of accomplice liability for the trespass claim until “several weeks”
after the trial when the judge issued his decision. Id.
¶36 Recently, in Adoption of K.A.S., we held that a rare
procedural anomaly existed “[w]hen a party [was] appointed
counsel who refuse[d] to make an argument for the right to counsel
when that right [was] challenged.” 2016 UT 55, ¶ 21. In K.A.S., the
district court initially granted a motion to appoint counsel to an
indigent party. Id. ¶ 20. The county attorney later filed a “motion to
intervene, arguing that the statute did not provide a right to
counsel.” Id. The court-appointed counsel failed to oppose the
motion and it was granted by the district court. Id. We held that the
appointed counsel’s failure to oppose the motion to intervene
constituted a rare procedural anomaly that opened the door to
exceptional circumstances. 7 Id. ¶ 21.

7 The K.A.S. court noted that
(continued . . .)
15
 STATE v. JOHNSON
Opinion of the Court

¶37 Once a party has shown that a rare procedural anomaly has
occurred, the court must then consider the effects of the anomaly,
and whether those effects warrant an exception to our preservation
requirement. Additional factors to be considered include: whether
“our failure to consider an issue that was not properly preserved for
appeal would . . . result[] in manifest injustice,” State v. Munguia,
2011 UT 5, ¶ 11, 253 P.3d 1082 (alterations in original) (citation
omitted), a significant constitutional right or liberty interest is at
stake, Adoption of K.A.S., 2016 UT 55, ¶ 25 (constitutional right to
raise one’s child), State v. Archambeau, 820 P.2d 920, 925 (Utah Ct.
App. 1991) (A “’liberty interest’ is . . . merely one factor . . .
considered when determining whether ‘exceptional circumstances’
exist.”), and judicial economy, Gibbons, 740 P.2d at 1311 (review of an
unpreserved issue eliminated undue delay, wasting time, or needless
litigation, such as the possibility of two separate appeals).
¶38 As the foregoing discussion suggests, the category of
exceptional circumstances as a “carve out,” or exception, to the
preservation rule has been anchored in the idea of rare procedural
anomalies, but its precise contours require case-by-case assessment.
What should be clear, however, is that it is not a catch-all category
that may be used to do the work of other exceptions, like plain error,
nor should it be viewed as a free-floating justification for ignoring
the legitimate concerns embodied in the preservation and waiver
rules.

(continued . . .)
Our holding today should not be construed to mean
that the exceptional circumstances exception applies
any time a lawyer fails to make an argument. Rather,
our holding is intricately tied to the deprivation of
counsel under the unique facts of this proceeding.
Here, a lawyer was appointed, but abdicated all
responsibility by failing to make any argument
regarding L.E.S.’s right to representation,
constructively denying L.E.S. counsel and leaving
him without the technical ability to present to the
district court his own, separate argument for counsel.
Moreover, L.E.S. is without a meaningful malpractice
action as that does not provide a vehicle for regaining
his parental rights in K.A.S.
Adoption of K.A.S., 2016 UT 55, ¶ 21 n.3.

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Opinion of the Court

¶39 We acknowledge that our precedent has evolved in this
area; it is possible that it will continue to evolve as we confront
future challenges concerning the scope of appellate review when
preservation and waiver are at issue. At present, however, the
exceptions discussed above—plain error, ineffective assistance of
counsel, and exceptional circumstances—provide the standards for
exercising review on appeal. We turn now to the question of when
an appellate court may reach sua sponte an issue waived on appeal,
as occurred in this case.
III. SUA SPONTE TREATMENT OF AN ISSUE
WAIVED ON APPEAL
¶40 Utah’s appellate courts have on occasion raised and treated
issues sua sponte that were not raised in the briefs and were therefore
waived. Any time a judge raises an otherwise overlooked or
unargued issue, the judge arguably undertakes an advocacy role to
some extent, as it is the parties’ duties to raise and argue the issues. 8
This is perhaps one of the major reasons our appellate system places
significant emphasis on procedural regularity.
¶41 However, at times, we have sacrificed procedural regularity
and a strict adherence to the adversarial model when
“considerations of fairness and justice outweigh the considerations
underlying the general policy of deference to the adversarial
process.” Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., 84 A.3d 840, 867 (Conn. 2014). Of course it is also
true that there are times when raising an issue sua sponte that was
waived on appeal places too much emphasis on equity at the
expense of procedural regularity and unfairly prejudices one party
or the other.
¶42 State v. Robison attempted to locate a balance between these
considerations. 2006 UT 65, ¶ 23, 147 P.3d 448. Robison held that the
court of appeals may raise a waived issue sua sponte when it
identifies “an astonishingly erroneous but undetected ruling,” that
would “subject the losing party . . . to ‘great and manifest injustice,’”

8 This problem exists regardless of any measures taken to limit
the effects of such an action, such as ordering supplemental briefing.
If the judge raises an entirely new issue, it is obviously acting more
as an advocate than if it simply orders supplemental briefing on an
issue that was raised, but was inadequately briefed. However, in
either instance, the judge is asking the parties to address a matter
that it would not typically reach and that could ultimately alter the
outcome of the case.

17
 STATE v. JOHNSON
Opinion of the Court

id., so long as it seeks argument from the parties on the waived issue,
id. ¶ 24. This statement was limited to the question of when the court
of appeals may raise an issue waived on appeal—it did not address
when it is appropriate for the court of appeals to raise an issue that
was neither preserved at trial nor argued on appeal. In a footnote,
we stated that the “great and manifest injustice” standard applies to
the question of when the court of appeals may “raise unpresented
arguments.” Id. ¶ 23 n.3 (emphasis added).
¶43 While Robison established the test for when the court of
appeals may raise an issue sua sponte, another footnote noted, “[a]s a
court of last resort, [the supreme court] ha[s] the authority to decide
on whatever grounds we deem appropriate, regardless of
preservation or presentation.” Id. ¶ 25 n.5 (emphasis added). Robison
thus purported to limit the court of appeals’ ability to reach issues
waived on appeal, while reserving for this court broad discretion to
reach any issue, whether waived or unpreserved, as long as it is
exercised “cautiously and rarely.” Id. This distinction was dicta, and
we now conclude that any distinction between this court’s authority
and that of the court of appeals’ to address unpreserved issues, or
raise waived issues sua sponte, is unwarranted and should not be the
rule.
¶44 The disposition of this case requires us to examine first the
general question of when appellate courts may reach an issue sua
sponte that could result in reversing a lower court on grounds that
were not argued on appeal. 9 In order to reach an issue that was
waived by the parties on appeal, we conclude that the appellate
court should usually allow the parties to argue the issue, and that the
court should examine closely the appropriateness of acting despite
the existence of waiver.
¶45 Before addressing an issue that has been waived on appeal,
an appellate court should typically allow some form of argument
from the parties to “test a notion of [the court’s] own invention
before using it to justify a reversal.” Robison, 2006 UT 65, ¶¶ 23–24.
Ordinarily, the best way to test a notion of the court’s own invention
will be through supplemental briefing. Id. ¶ 24. This gives the parties
adequate time to research and draft thoughtful responses. Another
effective means is through a remand to the trial court, particularly

9 In Robison, we discussed when it is appropriate for an appellate
court to affirm a district court on other grounds. 2006 UT 65, ¶ 19.
Here, we only address when it is appropriate to reach an unbriefed
issue that could reverse a lower court.

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Opinion of the Court

when further factual determinations are necessary. Id. ¶ 25
(suggesting remand as a possible means for argument on the waived
issue); cf. Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828
(preservation should be more strictly applied when the “appellant
asserts unpreserved claims that require factual predicates”). Issues
may be raised by appellate courts during oral arguments as well,
though this method gives the parties less ability to prepare an
adequate response and is best shored up by subsequent
supplementary briefing, especially for a complex issue. Robison, 2006
UT 65, ¶ 24 n.4. There may be other means of allowing the parties to
argue an issue, and we do not foreclose such possibilities.
¶46 Some arguments, as opposed to issues, are so minor as to
not require any additional argument from the parties. See supra ¶ 14
n.2. For instance, the court may cite a case in its opinion that was not
cited by either party without further argument when that case is
merely explanatory or assists in the analysis of an issue that was
properly brought by the parties. Patterson, 2011 UT 68, ¶ 18.
¶47 As mentioned above, supra ¶ 17, there are four interactions
between preservation in the trial court and waiver on appeal. 1)
When an issue is preserved at trial and properly argued on appeal,
appellate courts should typically reach that issue absent some defect
in briefing, see Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196
(“[A]n appellant who fails to adequately brief an issue ‘will almost
certainly fail to carry its burden of persuasion on appeal.’” (citation
omitted)), the case is disposed of on other grounds, see Morra v.
Grand Cty., 2010 UT 21, ¶ 14, 230 P.3d 1022, or the court employs
some other reason for avoiding the issue. 2) When an issue has not
been preserved in the trial court, but the parties argue that issue on
appeal, the parties must argue an exception to preservation for the
issue to be reached on its merits. This leaves the last two interactions
where the appellate court reaches an issue sua sponte: 3) the issue is
preserved, but the parties failed to raise the issue on appeal, and 4)
the issue is not preserved nor is it argued on appeal.
¶48 There are limited circumstances when it is appropriate for
an appellate court to raise an issue sua sponte that was waived by
appellate counsel, regardless of whether it was preserved at trial. In
each of these exceptions, we start with the presumption that, “[i]n
general, if a [party] has not raised an issue on appeal, [an appellate
court] may not consider the issue sua sponte.” Allen v. Friel, 2008 UT
56, ¶ 7, 194 P.3d 903 (third alteration in original) (citation omitted).
We now address those circumstances.

19
 STATE v. JOHNSON
Opinion of the Court

1. Issues Were Preserved at Trial, or a Valid Exception to
Preservation Exists, but the Issues Were Waived by the Parties on
Appeal
¶49 An appellate court may raise a waived issue sua sponte
when, 1) the issue was preserved below or if a valid exception to
preservation exists, 10 see Blumberg Assocs., 84 A.3d at 867–68, 2) the
issue is “astonishingly erroneous but undetected,” Robison, 2006 UT
65, ¶ 23, 3) the losing party would be subject to “great and manifest
injustice,” 11 id., and 4) neither party is unfairly prejudiced by raising
the issue at that point in the litigation or neither party argues they
are unfairly prejudiced, 12 Blumberg Assocs., 84 A.3d at 868–69. A
party may be unfairly prejudiced, for example, when it would have
presented additional evidence in the trial court necessary to
determine the proper outcome of the issue on appeal, but had no
opportunity because the issue was not raised. See id. at 864 (unfair
prejudice exists when “a party demonstrates that it would have
presented additional evidence or that it otherwise would have
proceeded differently if the claim had been raised at trial”); see also
Salt Lake City v. Carrera, 2015 UT 73, ¶¶ 20–21, 358 P.3d 1067
(refusing to order supplemental briefing when “record before us is

10 It would be best in these cases to include in a supplemental
briefing order, or in another request for additional argument, a
statement that the parties must demonstrate that the issue was
preserved below (if not apparent from the record), or show that there
is a valid exception to preservation.
11 As we noted in Robison, a “great and manifest injustice” is
likely to occur only in a criminal proceeding where “the deprivation
of personal freedoms is at stake.” 2006 UT 65, ¶ 23 n.3. This should
not to be confused with the manifest injustice factor under the
exceptional circumstances doctrine. See supra ¶ 37.
12 In Connecticut, a party is required to argue unfair prejudice
when seeking an exception to preservation. Blumberg Assocs., 84 A.3d
at 864 (discussing the “unfair prejudice” standard in the context of
exceptions to preservation). Utah has not yet recognized such a
requirement when reaching an exception to preservation.
Connecticut also requires a lack of unfair prejudice when an
appellate court raises issues sua sponte. See id. at 868. We agree that
such a requirement assists in appropriately balancing fairness and
procedural regularity when a court raises a waived issue sua sponte.
A best practice in determining whether unfair prejudice exists would
be asking the parties to address that question specifically.

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Opinion of the Court

scant,” and “supplemental briefing is unlikely to yield much factual
clarity”); Patterson, 2011 UT 68, ¶ 15 (“[T]he preservation rule should
be more strictly applied when the asserted new issue or theory
‘depends on controverted factual questions whose relevance thereto
was not made to appear at trial’” (citation omitted)); Lesesne v. Doe,
712 F.3d 584, 588 (D.C. Cir. 2013) (willing to look at unpreserved
issue because it was a “straightforward legal question that does not
require further factual development”).
2. Issues Were Not Preserved at Trial and Were Not Raised on
Appeal
¶50 Appellate courts may reach an issue when the issue was not
preserved, there is no valid exception to preservation, and it was not
raised by the parties on appeal in the following instances. First, it is
always appropriate for an appellate court to raise possible issues
concerning subject matter jurisdiction or joinder of a necessary and
indispensable party, regardless of whether such issues were argued
on appeal or preserved in the trial court. See State v. Lane, 2009 UT 35,
¶ 1 n.1, 212 P.3d 529 (court ordered supplemental briefing on
jurisdiction after oral argument); Robison, 2006 UT 65, ¶ 22 (“[o]ther
than for jurisdictional reasons [the court of appeals] should not
normally search the record for unargued and unbriefed reasons to
reverse” (alterations in original) (citation omitted)); Kennecott Corp. v.
Utah State Tax Comm’n, 814 P.2d 1099, 1100 (Utah 1991) (“[A] lack of
jurisdiction can be raised at any time by either party or by the court.”
(citation omitted)); McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10, 16 (1963) (concluding that the court was not
“precluded from reexamining the jurisdiction of the District Court
. . . merely because no challenge was made by the parties”); Dahl v.
Dahl, 2015 UT 79, ¶ 11, --- P.3d --- (“[A]ppellate courts may raise the
issue [of joinder] sua sponte.” (second alteration in original) (quoting
Hiltsley v. Ryder, 738 P.2d 1024, 1025 (Utah 1987))).
¶51 Second, an appellate court may reach a waived and
unpreserved issue when it is 1) a purely legal issue, 2) that is almost
certain to arise and assist in the analysis in other cases, 3) is
necessary to correctly determine an issue that was properly raised,
and 4) neither party is unfairly prejudiced by raising the issue at that
point or neither party argues that they are unfairly prejudiced. 13 See,
e.g., Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 8,
275 P.3d 208; Lesesne, 712 F.3d at 588–89; United States v. Krynicki, 689

13 Unfair prejudice in this instance is the same as that identified
supra paragraph 49.

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 STATE v. JOHNSON
Opinion of the Court

F.2d 289, 291–92 (1st Cir. 1982). Examples of this include whether to
overrule precedent on which the parties rely, see Admiral Beverage
Corp., 2011 UT 62, ¶ 8 (ordering supplemental briefing after oral
argument on whether to overrule precedent relied on by the parties),
interpreting the law that the parties rely on, Arnold v. Grigsby, 2009
UT 88, ¶¶ 5, 22–23, 225 P.3d 192 (ordering supplemental briefing on
the “purely legal” interpretation and application of two statutes),
determining that a law is inapplicable, Lesesne, 712 F.3d at 588,
determining if a statute relied upon is still effective, U.S. Nat’l Bank of
Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993), and
considering controlling authority that was not raised by either party,
Patterson, 2011 UT 68, ¶ 18 (“[W]e routinely consider new authority
relevant to issues that have properly been preserved . . . .”). 14
¶52 Finally, there are times when a statute or rule allows for the
treatment of an issue that is unpreserved and waived by the parties
on appeal. See UTAH R. CRIM. P. 22(e) (2015) 15 (“The court may
correct an illegal sentence . . . at any time.”); State v. Houston, 2015 UT
40, ¶ 20, 353 P.3d 55 (“Rule 22(e) operates as [a] limited exception to
the preservation doctrine.” (citation omitted)), as amended (Mar. 13,
2015), reh’g denied (June 30, 2015), cert. denied, 136 S. Ct. 2005 (2016);
State v. Pierce, 655 P.2d 676, 677 (Utah 1982) (allowing appellate
courts to entertain issues sua sponte “in rare cases” based on the old
version of rule 4 of the Utah Rules of Evidence).
¶53 The foregoing standards for exercising appellate review of
issues waived on appeal are intended to provide a baseline
assessment of where the proper balance between procedural
regularity and adjudicative fairness lies. It is unlikely that our
current assessment is exhaustive, and it may require adjustment as
cases arise in unforeseen circumstances leading to unforeseen
questions. We anticipate that appellate litigants and our colleagues

14 There is overlap between this exception and when a court may
raise an issue sua sponte that meets the Robison exception laid out
supra paragraph 49. While the court may raise an issue sua sponte
under the purely legal issue exception, the same issue might also be
able to be raised under the Robison exception. For this reason, when
an appellate court seeks supplemental briefing or other argument on
an issue identified by the court that was waived by the parties on
appeal, the court should ask the parties to discuss whether either of
these exceptions apply.
15This rule was amended in 2016 to more specifically detail the
circumstances under which a court may correct a sentence.

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Opinion of the Court

on the court of appeals will be alert to the application and necessary
refinements to the process we have outlined here.
IV. APPLICATION TO THIS CASE
¶54 Having determined when it is appropriate for an appellate
court to raise sua sponte an issue that was waived on appeal, we now
apply this analysis to this case. The issue raised by the court of
appeals was not raised by the appellant in his opening brief, nor was
it preserved in the trial court. As noted above, an appellate court
may only reach the waived and unpreserved issue sua sponte if the
issue deals with subject matter jurisdiction, there is a statute or rule
allowing the court to reach the issue, it meets the purely legal issue
exception to waiver and preservation laid out supra paragraph 51, or
it meets the Robison exception to waiver and preservation laid out
supra paragraph 49.
¶55 The issue raised by the court of appeals sua sponte was
whether a jury instruction misstated the mens rea of the lesser
included offense of homicide by assault. Under Utah Code section
76-5-209, a person commits homicide by assault when “a person
causes the death of another,” under circumstances “not amounting
to aggravated murder, murder, or manslaughter,” “while
intentionally or knowingly attempting, with unlawful force or violence,
to do bodily injury to another.” (Emphasis added). The instruction
stated that Mr. Johnson was guilty of homicide by assault if he killed
the victim, “under circumstances not amounting to aggravated
murder, murder, or manslaughter,” and that “he did so intentionally
or knowingly while attempting, with unlawful force or violence, to
do bodily injury to” the victim. (Emphasis added). As the court of
appeals stated, the instruction “places the ‘while’ after the mens rea
language, separating the ‘intentionally and knowingly’ elements
from the act of assault.” State v. Johnson, 2014 UT App 161, ¶ 22, 330
P.3d 743. The court of appeals reasoned that this shift in language
required the jury to find that Mr. Johnson knowingly or intentionally
killed the victim, instead of that the jury find that Mr. Johnson
knowingly or intentionally attempted to do bodily injury. Id.
¶56 This issue did not address subject matter jurisdiction or
joinder, nor did it involve one of the rare instances in which a statute
or rule permits sua sponte review of an unpreserved issue. And,
while the incorrect jury instruction poses a purely legal issue, this
issue is not likely to have bearing in the analysis in other cases as the
alleged instructional error was specific to the instructions submitted
in this case. As we noted above, an appellate court may address an
unpreserved and waived issue when it is, 1) a purely legal issue,
2) that is almost certain to arise and assist in the analysis in other
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Opinion of the Court

cases, 3) is necessary to correctly determining an issue that was
properly raised, and 4) neither party is unfairly prejudiced by raising
the issue at that point or neither party argues that they are unfairly
prejudiced. See supra ¶ 51. The jury instruction in this case merely
misstates the mens rea component of homicide by assault. This error
does not implicate serious questions of statutory interpretation.
¶57 This leaves only the question of whether the issue identified
by the court of appeals qualifies under the Robison exception. See
supra ¶ 49. We therefore examine whether 1) there is a valid
exception to preservation, 2) the jury instructions were astonishingly
erroneous but undetected, 3) Mr. Johnson would be subject to great
and manifest injustice if we did not reach the claim that the jury
instruction was incorrect, and 4) whether any party is unfairly
prejudiced by raising the issue for the first time by the court of
appeals. See supra ¶ 49. We first determine that plain error,
ineffective assistance of counsel, and exceptional circumstances do
not apply here. 16 Because of this, we do not reach the rest of the
Robison test.
¶58 The plain error exception is inapplicable here because
Mr. Johnson invited any error by submitting the homicide by assault

16 While we directly address the three exceptions to preservation,
unpreserved arguments that jury instructions are incorrect are
governed by Utah Rule of Criminal Procedure 19(e). This rule states:
“Unless a party objects to an instruction or the failure to give an
instruction, the instruction may not be assigned as error except to
avoid a manifest injustice.” UTAH R. CRIM. P. 19(e). Although we
have not definitively charted the outer bounds of what constitutes “a
manifest injustice” under this rule, we hold that this term
incorporates the exceptions to the preservation requirement. First,
“in most circumstances the term ‘manifest injustice’ is synonymous
with the ‘plain error’ standard.” State v. Alinas, 2007 UT 83, ¶ 10, 171
P.3d 1046 (citation omitted). Second, we may review an unpreserved
instructional error if counsel’s failure to object constitutes ineffective
assistance of counsel. See State v. Barela, 2015 UT 22, ¶¶ 25–27, 349
P.3d 676. Finally, exceptional circumstances allow us to reach an
unpreserved issue “where our failure to consider an issue that was
not properly preserved for appeal would have resulted in manifest
injustice.” Adoption of K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278 (citation
omitted). For this reason, the Robison exception—and its analysis of
exceptions to preservation—applies to unpreserved and waived
issues concerning errors in jury instructions.

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Opinion of the Court

instruction to the court. See State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d
985 (“The doctrine of invited error . . . can preclude even plain error
review.”). On the record, the district court noted that Mr. Johnson’s
counsel submitted two different homicide by assault instructions
and stated: “I’m using the one that . . . quotes the statute, itself. . . .
And so that’s the one I am using that you submitted.” Thus,
Mr. Johnson submitted the instruction he now claims to be
erroneous. 17 Because submitting an erroneous jury instruction to the
court is a quintessential example of invited error, see State v. Perdue,
813 P.2d 1201, 1205 (Utah Ct. App. 1991), we decline to conduct a
plain error review.
¶59 The ineffective assistance of counsel exception also does not
apply because Mr. Johnson never raised it in his opening brief or in
his supplemental brief to the court of appeals. Johnson, 2014 UT App
161, ¶ 45 (Bench, S.J., dissenting). Given these circumstances we do
not address this claim. See State v. Irwin, 924 P.2d 5, 11 (Utah Ct. App.
1996) (“It may well be that the facts of the instant case would give
rise to an ineffective assistance of counsel claim, but no such claim
has been raised in this appeal.”).
¶60 Because the plain error and the ineffective assistance of
counsel exceptions to the preservation rule do not apply in this case,
we finally consider the exceptional circumstances exception. As
discussed above, we apply the exceptional circumstances doctrine to
reach an unpreserved issue where a rare procedural anomaly either
prevented an appellant from preserving an issue, or excused a
failure to do so, and further factors weigh in favor of review. Supra
¶¶ 29–39. We apply this exception “sparingly, reserving it for the
most unusual circumstances where our failure to consider an issue

17 The court of appeals noted that there was at least some room to
doubt that the district court used the instruction submitted by
defense counsel because the proposed instruction was not added to
the record. Johnson, 2014 UT App 161, ¶ 14 n.6. We cannot, therefore,
compare the instruction proposed by Mr. Johnson with the
instruction given to the jury. We conclude, however, that the district
court’s definitive statement that it would give the instruction
submitted by defense counsel is sufficient to determine that the court
did what it said it would do. Moreover, the party in the best position
to place the proposed instruction in the record was Mr. Johnson. If
we held that a record of the proposed instruction was necessary to
conclude that a party invited the erroneous instruction, defendants
would have a perverse incentive to keep proposed instructions out
of the record in order to avoid the invited error doctrine on appeal.

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 STATE v. JOHNSON
Opinion of the Court

that was not properly preserved for appeal would . . . result[] in
manifest injustice.” State v. Munguia, 2011 UT 5, ¶ 11, 253 P.3d 1082
(alterations in original) (citation omitted).
¶61 In this case, neither Mr. Johnson nor the court of appeals has
pointed to any procedural anomaly that hindered Mr. Johnson’s
ability to make a timely objection to the homicide by assault jury
instruction. At best, Mr. Johnson’s trial counsel inadvertently
proposed an erroneous instruction and failed to detect the error and
object to it. But the exceptional circumstances exception “requires
something much more exceptional than mere oversight by trial
counsel in failing to object.” State v. Irwin, 924 P.2d 5, 11 (Utah Ct.
App. 1996); see also State v. Pullman, 2013 UT App 168, ¶ 27, 306 P.3d
827 (rejecting the exceptional circumstances exception because the
“ordinary trial errors” raised by the defendant on appeal, such as
instructional error and the improper admission of evidence, were not
“exceptional, rare, or anomalous”). Indeed, if inadvertence or
oversight were sufficient to meet the exceptional circumstances
exception, the requirement to preserve an issue below would be
consumed by the exception.
¶62 Mr. Johnson has failed to establish any rare procedural
anomaly that meets the high burden of exceptional circumstances.
As noted, the plain error and ineffective assistance of counsel
exceptions are likewise unavailing. Because there is no valid
exception to preservation, we do not address the remaining elements
of the Robison exception to waiver. Our preservation and waiver
doctrines, and the demands for procedural regularity, precluded the
court of appeals from reviewing the jury instruction.
CONCLUSION
¶63 We hold that the court of appeals erred in overruling the
trial court sua sponte on an issue that was neither preserved in the
trial court nor argued on appeal. We reverse and remand for
consideration of the other arguments that Mr. Johnson briefed, but
that were not resolved by the court of appeals. See State v.
Geukgeuzian, 2004 UT 16, ¶ 13, 86 P.3d 742 (remanding a case to the
court of appeals for consideration of unresolved claims of error).

26
 STATE v. JOHNSON
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment

ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:
¶64 I agree with the majority’s determination that “the court of
appeals erred in overruling the trial court sua sponte on an issue that
was neither preserved in the trial court nor argued on appeal.” Supra
¶ 63. And I applaud the majority for limiting and repudiating
elements of the standard set forth in State v. Robison, 2006 UT 65, 147
P.3d 448, see supra ¶¶ 25–28, and for helpfully delineating the “writ
of error” roots of our adversary system of appellate procedure, see
supra ¶¶ 8–12. I write separately, however, because I think the court
goes too far in endorsing an “appeal in equity” alternative to our
adversary system on appeal. See supra ¶¶ 9–11. I find no basis, in
particular, for the majority’s endorsement of appellate discretion to
consider a claim of error that was neither preserved at trial nor
briefed on appeal. See supra ¶ 12. That discretion, as framed by the
court and as presented in this case, is far too sweeping.
¶65 The “issue” addressed by the court of appeals in this case
concerned the correctness of the “homicide by assault” instruction
given to the jury. That was a distinct “claim of error” that was
neither preserved in the district court nor raised by the appellant on
appeal. And I see no basis for an appellate court to introduce that
kind of “issue” sua sponte. I would so conclude, while providing a
more fulsome repudiation of the standard in Robison as applied to
issues (distinct claims of error) like the one presented here.
¶66 In the paragraphs below, I first articulate the basis on which
I would decide this case—in a simple statement that appellate courts
have no discretion to raise distinct claims of error that were neither
preserved below nor presented on appeal. Then I outline concerns I
have with the court’s contrary approach, highlighting the lack of any
support in the authority cited in the majority opinion for the
sweeping notion of appellate discretion to introduce claims of error
not raised at any point by the parties.
I
¶67 Our adversary system of justice relies on the parties to
identify the “claims” presented for judicial decision. At the trial
court level, we treat the plaintiff as the “master of the complaint.” 1

1 Lincoln Prop. Co. v. Roche, 546 U.S. 81, 91 (2005) (“‘[T]he plaintiff
is the master of the complaint and has the option of naming only
those parties the plaintiff chooses to sue . . . .’”) (quoting 16 J. MOORE
(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment

That means that the plaintiff has the prerogative of identifying the
claims or causes of action she seeks to sustain in court. And we
honor the plaintiff’s prerogative. Our courts are empowered to
adjudicate only the claims or causes of action alleged by the plaintiff.
In our adversary system our courts do not direct plaintiffs to
advance claims they have not pled.
¶68 We would never tell a plaintiff who pleaded only a
negligence claim that we think she should have framed her case in
strict liability terms—and direct the parties to litigate that claim. See
Combe v. Warren’s Family Drive-Inns, Inc., 680 P.2d 733, 736 (Utah
1984) (“A court may not grant judgment for relief” that is not
“within the theory on which the case was tried,” regardless of
whether the evidence implies such relief). If a district court strays
from “the issues [as] framed by the pleadings,” “[a]ny findings . . .
are a nullity.” Id.
¶69 Indeed our law of claim preclusion dictates the opposite. It
gives a party who defends against one claim arising out of a
particular set of facts the right not to face an alternative claim that
could have been but was not asserted earlier. See Gilmor v. Family
Link, LLC, 2012 UT 38, ¶¶ 10, 13–14, 284 P.3d 622 (stating the
elements of the law of claim preclusion). And we root that right in
principles of finality and repose. Allen v. Moyer, 2011 UT 44, ¶ 7, 259
P.3d 1049 (“[C]laim preclusion . . . promote[s] finality and protect[s]
litigants by ensuring that parties will have to litigate a controversy
only once.”), overruled on other grounds by Madison v. JP Morgan Chase
Bank, N.A., 2012 UT 51, ¶ 5 n.2, 296 P.3d 671.
¶70 Our appellate process is similar. On appeal it is the
appellant who is the “master”—the party who identifies “claims” to
be disposed of by the court. In appellate parlance we speak of
“claims of error”—decisions made by a lower court requiring
reversal of the court’s judgment. See State v. Kell, 2002 UT 106, ¶ 10,
61 P.3d 1019 (referring to “claims of error” alleged by the appellant
on appeal). Our appellate rules require the appellant to identify

(continued . . .)
ET AL., MOORE’S FEDERAL PRACTICE § 107.14(2)(c) (3d ed. 2005); City of
Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 164 (1997) (“[A] plaintiff, as
master of the complaint, can ‘choose to have the cause heard in state
court’” by relying solely on state law) (citation omitted).

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 STATE v. JOHNSON
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment

specific decisions—orders or judgments—that are challenged on
appeal. See UTAH R. APP. P. 3(d) (requiring notice of appeal to
designate the “judgment or order, or part thereof, appealed from”).
And our case law has long held that “[a]n order not identified in the
notice of appeal falls beyond our appellate jurisdiction.” In re
Adoption of B.B., 2017 UT 59, ¶ 106, __ P.3d __; see also Jensen v.
Intermountain Power Agency, 1999 UT 10, ¶¶ 6–9, 977 P.2d 474 (notice
of appeal must identify orders for review; orders not identified are
beyond the jurisdiction of the court to review).
¶71 A parallel principle applies to the appellant’s briefing.
Under our briefing rules the appellant’s opening brief must identify
any and all judgments or orders that are challenged on appeal. See
UTAH R. APP. P. 24(c). The failure to raise such a challenge in the brief
amounts to forfeiture. See Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d
540 (claims of error “not presented in the opening brief are
considered waived”). That principle is deeply embedded in our case
law. We routinely decline to consider claims of error raised for the
first time in a reply brief or at oral argument. See, e.g., Kendall v.
Olsen, 2017 UT 38, ¶¶ 11–13, __ P.3d __; Mackin v. State, 2016 UT 47,
¶ 20 n.2, 387 P.3d 986.
¶72 These rules define the scope of the claims presented for the
court’s consideration on appeal. For good reasons: (a) the appellee
“is entitled to know specifically which judgment[s]” or orders are
“being appealed,” Jensen, 1999 UT 10, ¶¶ 6–9 (citation omitted);
(b) the appellee has a right of “repose” or reliance on the finality of
decisions not challenged on appeal; 2 (c) our judges are supposed to
be neutral arbiters, affording procedural fairness and evenhanded
judgment to the parties, not partisan advocacy; 3 and

2 Cf. In re Baby Girl T., 2012 UT 78, ¶ 42, 298 P.3d 1251 (Lee, J.,
dissenting) (noting that the failure to police preservation rules
results in “the inequity of [a party] having to defend on appeal on a
ground that it had no opportunity to address at trial”).
3 See Girard v. Appleby, 660 P.2d 245, 247 (Utah 1983) (“[T]he
interests of justice are not enhanced when the court exceeds its role
as arbiter by reaching out and deciding an issue that would
otherwise be dead . . . .”) modified by Meadowbrook, LLC v. Flower, 959
P.2d 115, 119 (Utah 1998); Limb v. Federated Milk Producers Ass’n, 461
P.2d 290, 295 (Utah 1969) (Henriod, J., dissenting) (observing that sua
sponte consideration of new issues would “cast[] the appellate court
in the role of advocate and counselor for one side in derogation of
(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment

(d) considerations of efficiency and judicial economy are
undermined by sua sponte injection of new claims by the court. 4
¶73 For the above reasons we would not have allowed
Mr. Johnson to raise a challenge to the “homicide by assault” jury
instruction if he had sought to raise it on appeal for the first time at
oral argument (as the court of appeals did). At that point, the time
for Mr. Johnson to assert a claim of error in connection with this jury
instruction was long past. Principles of finality and repose would
thus have dictated a decision not to reach this question on appeal.
¶74 It is no answer to say that it was the court of appeals (and not
Mr. Johnson) who introduced this claim of error. If an advocate for a
party is barred from asserting a claim, then the court is a fortiori
barred. Ours is an adversary system. Within it judges are sworn to
follow the law in an evenhanded, objective manner. We sidestep that
system when we take on a role of advocacy. See United States v. Pryce,
938 F.2d 1343, 1352 (D.C. Cir. 1991) (Silberman J., dissenting) (“[T]he
judiciary is on no side. That proposition is not a technicality; it is
fundamental. We judges must be strictly neutral with respect to all
cases that come before us . . . .”) (emphasis in original).
¶75 And in my view the decision to advance a claim for relief—
either a cause of action in the district court or a claim of error on
appeal—is the distinct prerogative of a party. We cross a line we
should not cross when we seize the role of identifying claims we
wish the parties had advanced. We cannot assert that role while
maintaining a role of neutral arbiter.
¶76 I would so hold. I would repudiate the standard set forth in
Robison to the extent it could be read (and was read by the court of
appeals) to endorse the power of an appellate court to introduce
claims of error not raised by an appellant.
¶77 In so doing I would leave room for the notion of an
appellate prerogative of seeking supplemental briefing on issues or

(continued . . .)
equal empathy for the other” in a manner that “at least suggests
some sort of preferential treatment”).
4 Cf. Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828
(explaining that the law of preservation avoids unnecessary remands
for factual inquiries, retrials, and subsequent appeals).

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 STATE v. JOHNSON
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment

arguments of relevance to the disposition of a claim that is properly before
the court. See supra ¶ 14 n.2 (indicating that “new arguments, when
brought under a properly preserved issue or theory, do not require
an exception to preservation”). That, as the majority indicates, is a
long-settled practice. In keeping with our role in the adversary
system, we must also acknowledge our duty to pronounce correct
principles of law. And to fulfill that duty we may occasionally
request additional argument or analysis on issues necessarily
implicated by the claims that are presented for our decision.
¶78 But that is a different matter than the one presented here.
No claim presented for decision requires us to assess the correctness
of the “homicide by assault” instruction. And for that reason I see no
basis for the majority’s decision to expound at length on the
standards governing our decision to request supplemental briefing
on issues necessarily implicated by the claims briefed for our
decision. I would save that for another day. I would simply hold that
the court of appeals erred in sua sponte raising a claim of error that
was neither preserved nor presented by the defendant on appeal.
II
¶79 The majority echoes many of the principles discussed above.
It reinforces the “dominance” of the adversary system and concludes
that our appellate system “more closely resembl[es] the writ-of-error
model” of review. Supra ¶¶ 9–10. And it repudiates some of the
premises of the Robison standard for sua sponte consideration of
“issues” not preserved or raised by the parties.
¶80 To that extent I agree with the majority. Yet the court also
presents an alternative “model” of appellate review—the “appeal in
equity” approach, which was embraced historically by certain courts
of equity. Supra ¶ 9. The majority says that “‘[a]ppellate courts in
equity were free to consider any issue de novo’ and ‘developed
flexible procedures to address the needs of individual cases.’” Supra
¶ 9 (quoting Barry A. Miller, Sua Sponte Appellate Rulings: When
Courts Deprive Litigants of an Opportunity to Be Heard, 39 SAN DIEGO L.
REV. 1253, 1263 (2002)). And it cites cases and commentary in
support of the proposition that our appellate system incorporates
components of both models. The upshot, in the majority’s view, is
that American appellate courts “wrestle[] with the correct balance
between law and equity and the scope of review on appeal” and
retain extensive discretion to raise new “issues” not preserved or
argued by the parties. See supra ¶ 11.

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ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment

¶81 I think the majority understates the degree to which our
American appellate system has embraced the adversarial (“writ of
error”) model. And it overstates the matter quite dramatically to
suggest that we retain the discretion of a court exercising power over
an “appeal in equity.” Our appellate system looks nothing like the
“appeal in equity” model described by the majority. We have never
left our appellate courts “free to consider any issue de novo”
regardless of whether it was preserved or raised by the parties.
Certainly we have not endorsed the majority’s implicit premise that
appellate courts retain the authority to identify claims of error not
raised by an appellant—to root around in the record in search of a
decision made by the trial court that offends our sense of fairness,
and thus our confidence in the “equity” of the proceeding below.
¶82 The majority presents purportedly contrary authority. But
much of the cited authority is taken out of context.5 Some of the cited
cases address only the court’s authority to embrace exceptions to the
law of preservation, see State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346,
or the court’s power to consider alternative evidentiary inferences
not expressly advanced by the parties, see Salt Lake City v. Carrera,
2015 UT 73, ¶ 17, 358 P.3d 1067. Other cited cases establish only the
modest authority to seek additional argument or analysis deemed

5 Much of the confusion in this field stems from imprecision in
terminology. Sometimes courts use the term “issue” to mean new
arguments or new analysis of relevance to the disposition of claims
properly presented. And that seems fine. But the majority speaks
extensively of the appellate discretion to address “issues” not
preserved or raised by the parties. As presented here, the new
“issue” is a brand new claim of error. It is true that “Utah courts
have conflated the words ‘issue,’ ‘claim,’ ‘argument,’ and ‘matter,’”
Patterson v, Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828, and that
differentiating between these categories proves elusive. But “issue,”
as the majority uses it, is also elusive. The majority uses the term
“issue” to refer to the sua sponte discretion to address new claims of
error while citing predominantly cases dealing with new arguments
or analysis of relevance to claims properly before the court. The
discretion to consider these types of error does not comport with
caselaw, especially in this state. And I think we should disclaim it
categorically.

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 STATE v. JOHNSON
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment

necessary to the disposition of claims properly raised by the parties. 6
We may well have that authority. But that is not the question
presented here. 7 Here we are confronted with the question of an
appellate court’s authority to identify a brand new claim of error—a
jury instruction never objected to, not raised on appeal by the
defendant, and not necessary to the disposition of claims properly
before the court.
¶83 I find very little precedent for that kind of sweeping power.
I do not doubt that American courts have occasionally taken upon
themselves that sort of discretion. But it strikes me as problematic for
them to do so—for all of the reasons noted above. See supra ¶¶ 67–
78. And I would not endorse that prerogative here.
¶84 I would hold that the decision of which claims of error to
advance on appeal is a matter for the appellant. And I would
expressly foreclose our appellate courts from identifying new claims
of error sua sponte.

6 See Patterson, 2011 UT 68, ¶¶ 10–21 (considering the
applicability of a controlling statute not preserved below); United
States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring)
(concluding that the Court should have invalidated an IRS
regulation that both parties relied upon but that represented an
unreasonable interpretation of the controlling statute); Davis v.
United States, 512 U.S 452, 464 (1994) (Scalia, J., concurring) (asserting
that the Court could base its decision on a controlling statute not
raised by the parties).
7 We can imagine a case in which the distinction between a new
claim and additional analysis on existing claims is a close call. See, e.g.,
Patterson, 2011 UT 68, ¶ 15 (suggesting that the line between a new
issue and additional analysis on an existing issue may not always be
clear). But this is not one of those cases. The correctness of the
homicide-by-assault jury instruction is unquestionably a distinct
claim from those presented by the parties.

34