2021 UT 45
IN THE
SUPREME COURT OF THE STATE OF UTAH
THE STATE OF UTAH,
Respondent,
v.
MATTHEW GORDON EYRE,
Petitioner.
No. 20190977
Heard April 14, 2021
Filed August 12, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Royal I. Hansen
No. 161909443
Attorneys:
Andrea J. Garland, Salt Lake City, for petitioner
Sean D. Reyes, Att‘y Gen., Lindsey Wheeler, Asst. Solic. Gen., for
respondent
JUSTICE HIMONAS authored the opinion of the Court in which CHIEF
JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 ―No problem of criminal law is of more fundamental
importance or has proved more baffling through the centuries than
the determination of the precise mental element or mens rea
necessary for crime.‖ Francis Bowes Sayre, Mens Rea, 45 HARV. L.
REV. 974, 974 (1932) (footnote omitted). Today, we address whether a
jury instruction detailing the mens rea1 required to convict under an
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1For those who don‘t speak Latin, mens rea means ―guilty mind.‖
Mens rea, BLACK‘S LAW DICTIONARY (11th ed. 2019). And for those
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STATE v. EYRE
Opinion of the Court
accomplice-liability theory was erroneous and, if so, whether a
convicted defendant‘s trial counsel provided ineffective assistance of
counsel in failing to object to it.
¶2 Accurately conveying the required mental element of a
crime in jury instructions is right up there in ―fundamental
importance‖ alongside accurately determining the mental element.
This importance is on display today as we conclude the defendant,
Matthew Eyre, has been convicted and incarcerated based on an
erroneous mens rea jury instruction—an instruction to which trial
counsel should have objected. And this failure to object prejudiced
Eyre as competing factual scenarios created the possibility that he
was convicted without meeting the requisite mens rea. Accordingly,
we reverse the court of appeals on the jury instruction issue, vacate
Eyre‘s conviction, and remand for a new trial.
BACKGROUND
¶3 On the morning of August 28, 2016, Daniel Simon and
Natanni Xoumphonphackdy were parked in Simon‘s Dodge
Challenger near 300 South 600 West. Nearby, Matthew Gordon Eyre,
Jesse Ray Rakes, and Michael Sean Polk were sitting in a PT Cruiser.
When Rakes noticed the Challenger, he allegedly told Eyre and Polk
that he wanted to steal it and said he was going to ask for a jump
start.
¶4 Rakes approached the Challenger and asked Simon for help
jump-starting the Cruiser. Simon agreed to help and moved his
vehicle so that it was ―nose to nose‖ in a ―V‖ shape to the Cruiser.
¶5 Simon then got out of his Challenger, lifted up the hood,
and stood near his passenger window between the two vehicles.
Rakes also propped up the hood of his car and joined Simon
between the vehicles, and the two engaged in small talk. By this
point, Eyre and Polk had also exited the Cruiser and began to look
for jumper cables in the back of the Cruiser. Feeling like it was taking
too long, Simon asked Rakes if they had cables. Rakes then lifted his
shirt, flashing a pistol in his waistband, and said something to the
effect of: ―You know what this is. We are taking everything.‖
Notably, it is unclear if Rakes used the singular first-person pronoun
―I‖ or the plural ―we.‖ Rakes also threatened to ―pistol whip‖
Xoumphonphackdy if she did not exit the Challenger.
who don‘t speak legalese, mens rea means the mental element of a
crime.
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Opinion of the Court
¶6 At this point, Xoumphonphackdy discretely handed Simon
a pistol through the car window. As Simon attempted to back away
from Rakes, Rakes pursued, ―drawing his gun in [Simon‘s]
direction.‖ Simon then fatally shot Rakes. Eyre fled the scene. A
collision occurred between the Challenger and Cruiser, which
resulted in the Cruiser flipping over.
¶7 Eyre was arrested shortly after the incident and
subsequently interviewed. No gun was found on him. In his
interview, Eyre gave three accounts of the incident. Initially, Eyre
denied being present, said he ―did not shoot anybody,‖ and said he
did not ―see anybody get shot.‖ He said he only ―heard the sirens‖
and ―heard a shot.‖ But then Eyre admitted to being in the car with
Rakes and Polk when Rakes had asked Simon for a jump start. He
also admitted to getting out of the car to look for cables upon Rakes‘s
command. After finding no cables, Eyre said he walked around the
car where he saw Rakes give chase to Simon before Simon shot
Rakes.
¶8 After learning Rakes had died, Eyre alleged that it was
Rakes‘s idea to steal Simon‘s car. He said that when Rakes initially
saw the Challenger, Rakes told Eyre and Polk that he was going to
take it. Eyre claimed that he told Rakes to leave them alone, that it
was a ―dumb ass idea,‖ that he did not want to drive a stolen
vehicle, and said, ―I won‘t do it.‖ Eyre said his refusal angered
Rakes, who quickly dismissed Eyre‘s protest, stated he was going to
ask for a jump start, and got out of the Cruiser. At this point, Eyre
claimed that Rakes was ―running the show‖ and that he and Polk got
out to look for cables in the back of the Cruiser. Eyre claimed that,
immediately prior to the shooting, he walked up to Rakes and Simon
and indistinctly heard Rakes say ―something‖ to Simon. He then saw
Rakes give chase to Simon before Simon shot Rakes. When later
asked about the ―plan,‖ Eyre stated that they had no plan.
¶9 In addition to Eyre‘s claims that he did not want to commit
the robbery, there is conflicting testimony as to Eyre‘s actions during
the robbery. Some testimony indicates that Eyre had approached
Rakes and Simon between the cars and had also brandished a gun.
But both Eyre and, notably, Xoumphonphackdy testified that Eyre
did not engage in conversation with Simon or Rakes and did not
possess or flash a gun. Xoumphonphackdy also testified that Eyre
did not ―do anything to further [the] crime.‖ In addition to telling
the police he was not armed during the robbery, Eyre claimed that
he was unaware whether Rakes was armed.
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Opinion of the Court
¶10 Eyre was charged as an accomplice to aggravated robbery, a
first degree felony, under a theory of accomplice liability. The State
argued that Eyre acted as an accomplice by allegedly pretending to
look for jumper cables and by allegedly threatening Simon with a
gun.
¶11 A jury trial was held in October 2017. At trial, the jury was
given three instructions on accomplice liability. Defense counsel
stipulated to the inclusion of these instructions.
¶12 The jury found Eyre guilty, and he was sentenced to an
indeterminate prison term of 10 years to life. He timely appealed on
multiple grounds. Relevant to our determination today, Eyre argued
that jury Instruction No. 40 was erroneous and trial counsel was
deficient in failing to object to it. The court of appeals affirmed the
conviction, concluding ―that the instructions as a whole adequately
instructed the jury on accomplice liability for aggravated robbery‖
and that trial counsel‘s performance was thus not deficient. State v.
Eyre, 2019 UT App 162, ¶ 21, 452 P.3d 1197. Eyre petitioned for a writ
of certiorari, which this court granted. We have jurisdiction pursuant
to Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶13 ―On a writ of certiorari, we review the decision of the court
of appeals, not that of the district court, and apply the same standard
of review used by the court of appeals. We review the court of
appeals‘ decision for correctness.‖ Prinsburg State Bank v. Abundo,
2012 UT 94, ¶ 10, 296 P.3d 709 (citation omitted). Further, ―[c]laims
of erroneous jury instructions present questions of law that we
review for correctness.‖ State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.
¶14 When we review a jury verdict, we typically ―examine the
evidence and all reasonable inferences in a light most favorable to
the verdict.‖ State v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565. This
standard of review, however, is not helpful for us today, as we are
not aware of which version of events the jurors accepted in reaching
a guilty verdict, and all conflicting versions of the event could have
led a reasonable juror to convict under an instruction that
erroneously allows for a lesser mens rea. As such, we examine the
evidence of all factual scenarios presented to the jury upon which the
jury could have convicted under the erroneous instruction.
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Opinion of the Court
ANALYSIS
¶15 Though Eyre argues for reversal based on three distinct
legal theories, we conclude that we need only address one in order to
dispose of this case: whether the court of appeals erred in concluding
that trial counsel was not deficient in failing to object to jury
Instruction No. 40.2 In short, we agree with Eyre‘s argument. We
begin our analysis with an explanation of the mens rea requirements
under a theory of accomplice liability. We then turn our analysis to
Eyre‘s ineffective assistance of counsel claim, finding that no
reasonable attorney would have agreed to the instruction and that
trial counsel‘s deficient performance prejudiced Eyre.
I. ACCOMPLICE LIABILITY AND MENS REA
¶16 As anyone who has sat through the first day of an
introductory course on criminal law knows, mens rea (or mental
state) is typically a requisite of criminality. See, e.g., State v. Bird, 2015
UT 7, ¶ 14, 345 P.3d 1141 (―A mens rea element is an essential
element of [an] offense.‖ (alteration in original) (citation
omitted)(internal quotation marks omitted)); State v. Barela, 2015 UT
22, ¶ 26, 349 P.3d 676 (―[O]ur criminal code requires proof of mens
rea for each element of a non-strict liability crime.‖); UTAH CODE
§ 76-2-102 (―Every offense not involving strict liability shall require a
culpable mental state . . . .‖). But while most offenses require a
showing of only one culpable mental state, accomplice liability
requires at least two.
¶17 This branched mens rea requirement is codified in the Utah
accomplice liability statute. The statute provides: ―Every person,
acting with the mental state required for the commission of an
offense who directly commits the offense, who solicits, requests,
commands, encourages, or intentionally aids another person to
engage in conduct which constitutes an offense shall be criminally
liable as a party for such conduct.‖ UTAH CODE § 76-2-202. The first
mens rea element—―[e]very person, acting with the mental state
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2 Eyre argues in the alternative that the court of appeals erred in
holding both (1) that trial counsel invited error in allowing the jury
to access a video-recorded police interview of Eyre during
deliberations; and (2) that trial counsel was not deficient in failing to
ensure the police interview video-recording was excluded from jury
deliberations. Because we dispose of the case on Eyre‘s jury
instruction argument alone, we do not address these additional
arguments.
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STATE v. EYRE
Opinion of the Court
required for the commission of an offense‖—is a reference to the
underlying crime (including any additional mens rea requirements
associated with aggravating factors, if present). Id. The second—
―who . . . intentionally aids another person to engage in conduct
which constitutes an offense‖—must be understood as a reference to
the defendant‘s mental state solely in regard to ―aid[ing]‖ the
commission of the underlying offense. Id.
¶18 A hypothetical helps to clarify this dual mens rea
requirement. Imagine a defendant on trial for arson as an
accomplice—while a co-felon set fire to a structure, this defendant
drove the getaway car. The prosecution must show that the
defendant‘s mental state meets the mens rea requirements of both the
underlying crime and the accomplice liability statute. In our
hypothetical, then, the prosecution must show that the defendant
both intended that arson be committed (arson is a specific intent
crime under Utah Code section 76-6-102(1)) and intentionally aided
the co-felon in the commission of arson. Importantly, the two mens
rea requirements are not always identical. If the defendant in our
hypothetical were charged instead as an accomplice to reckless
burning, for example, the mens rea of the underlying offense need
only meet a recklessness standard, see id. § 76-6-104(1)(a), but the
prosecution must still show that the defendant intentionally aided in
the reckless burning offense.
¶19 Here, Eyre was charged with aggravated robbery under a
theory of accomplice liability. Robbery requires a showing that ―the
person unlawfully and intentionally takes or attempts to take
personal property in the possession of another . . . .‖ Id. § 76-6-
301(1)(a) (emphasis added).3 Aggravating factors include whether
the defendant ―uses or threatens to use a dangerous weapon[,]
causes serious bodily injury upon another[, or] takes or attempts to
take an operable motor vehicle‖ and require a mens rea of
recklessness at a minimum. Id. § 76-6-302(1); see id. § 76-2-102
(providing that ―when the definition of the offense does not specify a
culpable mental state and the offense does not involve strict liability,
intent, knowledge, or recklessness shall suffice to establish criminal
_____________________________________________________________
3 Robbery may also be committed with a knowing mens rea under
Utah Code section 76-6-301(1)(b). However, the prosecution
proceeded only under subsection 301(1)(a) (which requires an
intentional mens rea), and the jury was never presented with the
option to convict under the lesser mens rea.
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Opinion of the Court
responsibility‖).4 In order to find a defendant similarly situated to
Eyre guilty of aggravated robbery as an accomplice, then, a jury
must find that the defendant both intended that aggravated robbery
be committed and that he intentionally aided the commission of the
aggravated robbery. However, a jury cannot properly make this
finding if it has not been given proper instructions to do so. This jury
instruction issue comes packaged in an ineffective assistance of
counsel claim, which we now address.
II. EYRE RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL
¶20 We now turn to discuss whether Eyre received ineffective
assistance of counsel when trial counsel failed to object to Instruction
No. 40. To prevail on an ineffectiveness claim, an appellant must
show that: (1) counsel performed deficiently and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). Here, we first conclude that Instruction No. 40
was erroneous as to the proper mens rea, and we conclude it was
unreasonable not to object to it given the centrality of mens rea to
Eyre‘s defense, thus constituting deficient performance. Then, in
rounding out Eyre‘s ineffective assistance of counsel claim, we
further conclude that the failure to object to the erroneous instruction
prejudiced Eyre. As such, we reverse the determination of the court
of appeals on this issue, vacate Eyre‘s conviction, and remand for a
new trial.
A. Jury Instruction No. 40 Was Erroneous, and Trial Counsel Performed
Deficiently in Failing to Object to It
¶21 To determine whether trial counsel performed deficiently in
failing to object to Instruction No. 40, we must decide if the
instruction was, in fact, erroneous. This latter inquiry hinges on our
application of State v. Jeffs, 2010 UT 49, 243 P.3d 1250, and its
progeny. We first lay down the legal foundation of Strickland‘s
deficiency prong and our jury instruction jurisprudence, then apply
them to the facts before us, ultimately finding that Instruction No. 40
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4 Because we conclude that the jury was improperly instructed
with respect to the mens rea requirement for accomplice liability for
robbery, we need not, and therefore do not, address the requisite
mens rea to convert the robbery to aggravated robbery. In other
words, as a matter of pure logic, you cannot get to aggravated
robbery if there is no underlying simple robbery.
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Opinion of the Court
was erroneous and that failing to object to it constituted deficient
performance.
1. Strickland‘s deficiency prong
¶22 The first prong of the Strickland test asks whether the
defendant has shown ―that his counsel rendered a deficient
performance in some demonstrable manner, which performance fell
below an objective standard of reasonable professional judgment.‖
Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232. (citation omitted);
see Strickland, 466 U.S. at 687. This prong sets a high bar for
defendants, given the ―strong presumption that trial counsel
rendered adequate assistance and exercised reasonable professional
judgment.‖ Archuleta, 2011 UT 73 ¶ 39 (citation omitted). And it was
with this presumption in mind, that we recently emphasized that
―[t]he Sixth Amendment ‗does not guarantee an errorless trial, and
prevailing professional norms do not require perfection at trial.‘‖
State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350 (citations omitted)
(internal quotation marks omitted). Rather, as we put it in State v.
Ray, 2020 UT 12, 469 P.3d 871, the ultimate question is always
―whether counsel‘s assistance was reasonable considering all the
circumstances.‖ Id. ¶ 31 (emphasis added) (citation omitted). What‘s
more, there is no such thing as per se deficient performance. Id. And
with respect to the specific issue at hand, Ray makes plain that the
failure to ―object[] to an error‖ in an instruction ―does not
automatically render counsel‘s performance deficient.‖ Id.; see also id.
¶ 36 (―Here, that means we must ask whether defining indecent
liberties was sufficiently important under the circumstances that
counsel‘s failure to argue for a clarifying jury instruction fell below
an objective standard of reasonableness.‖).
2. Jury Instruction No. 40 was erroneous
¶23 We have previously opined on erroneous jury instructions
in the context of accomplice liability. In Jeffs, we stressed the
importance of presenting the jury with instructions that clearly
establish the dual mens rea requirements under the accomplice
liability statute. 2010 UT 49, ¶¶ 39–52. In that case, the defendant, a
leader of the Fundamentalist Church of Jesus Christ of Latter-Day
Saints (FLDS), was charged and convicted of two counts of rape as
an accomplice—the defendant had proselytized the teachings of the
FLDS church (including plural marriage), performed a marriage
between a fourteen-year-old girl and an older cousin (Allen Steed),
and forced the girl to remain in the marriage despite her pleas. Id.
¶¶ 3–13. Thereafter, the girl was repeatedly raped by her cousin. Id.
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Opinion of the Court
¶ 13. At trial, the jury was provided with an instruction regarding
Jeff‘s accomplice liability, which required the jury to find that
1. [T]he defendant, Warren Jeffs:
a. intentionally, knowingly, or recklessly solicited,
requested, commanded, or encouraged another—
[i]. to have sexual intercourse
ii. with [the victim] without consent; or
b. intentionally aided another—
[i]. to have sexual intercourse
ii. with [the victim] without consent; and
2. Allen Steed had sexual intercourse with [the victim]
without consent.
Id. ¶ 41. Notwithstanding the unsavory details of the crime, this court
found the instruction ―confusing with respect to the issue of intent,‖
even though the instruction ―did incorporate the phrase
‗intentionally aided.‘‖ Id. ¶ 51. The problem with the instruction was
that, ―even if Jeffs never intended for Steed to rape [the victim], the
jury instruction allowed for the possibility that he would be found
guilty simply because he intentionally performed the marriage
ceremony and the existence of the marriage aided Steed in raping
[the victim].‖ Id. ¶ 52. Such a finding would be in error. Id.; see also
State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141 (holding that ―failure to
instruct the jury as to the required mens rea, when it is an element of
the crime, is reversible error‖).
¶24 Jeffs is not a case about deficient performance, but it
nonetheless highlights this court‘s perspective on dual mens rea jury
instructions. Jeffs stands for the proposition that a jury instruction
regarding mens rea in the accomplice liability setting is erroneous if it
inspires confusion such that there is a possibility a jury would not
apply both mens rea requirements or would apply a lesser mens rea
than is required.
¶25 Since Jeffs, we have consistently applied its reasoning. Most
recently, in State v. Grunwald, we agreed with the court of appeals‘
determination that a jury instruction was erroneous because the
instruction ―permitted the jury to convict [the defendant as an
accomplice] based on a reckless mental state‖ when the underlying
offense—aggravated murder—required a ―knowing‖ or
―intentional‖ mental state. 2020 UT 40, ¶¶ 33–34, 478 P.3d 1. And we
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Opinion of the Court
agreed with the court of appeals that failing to object to the
erroneous instruction constituted deficient performance. Id. ¶ 20.5
¶26 Just as in Jeffs and Grunwald, the instructions provided to the
jury that ultimately convicted Eyre were erroneous. Instruction No.
40 provided: ―If you find beyond a reasonable doubt that: (1) the
defendant intentionally, (2) solicited, requested, commanded,
encouraged, or intentionally aided another to commit the offense,
AND (3) the offense was committed, then you can find the
defendant guilty of that offense.‖ And just as in Jeffs, we find
ourselves asking: ―intentionally . . . in regard to what?‖ 2010 UT 49,
¶ 44. This instruction has no explanation as to the mens rea
requirement of the underlying offense. And while aggravated
robbery requires an intentional mental state with regard to the actual
robbery,6 see UTAH CODE § 76-6-301(1)(a), the use of the word
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5 In State v. Barela, we contemplated the adequacy of a mens rea
jury instruction for rape. 2015 UT 22, ¶ 2, 349 P.3d 676. Like
accomplice liability, the elements of rape include a dual mens rea
requirement—a requirement as to the sexual intercourse and a
separate requirement as to the victim‘s nonconsent. Id. ¶ 26. The
instruction in Barela provided: ―1. The defendant . . ., 2. Intentionally
or knowingly; 3. Had sexual intercourse with [the victim]; 4. That
said act of intercourse was without the consent of [the victim].‖ Id.
¶ 13. Much like in Jeffs, this instruction left unclear whether
―intentionally or knowingly‖ also applied to the nonconsent element
and, in fact, ―implied that the mens rea requirement . . . applied only
to the act of sexual intercourse.‖ Id. ¶ 26. We determined, then, that
the instruction‘s ―implication was error.‖ Id.
6 Recall that the prong of the robbery statute that the State
proceeded under in its case against Eyre requires intentional
conduct, while the aggravating factors require an additional mens rea
requirement of recklessness. See supra ¶ 19. Whether Eyre meets this
recklessness standard for the aggravating factors is not at issue
today. In contemplating the accuracy of jury instructions as a
precursor to our Strickland analysis, we first address whether the
instructions sufficiently instructed the jury to determine whether
Eyre had the requisite intent that robbery be committed and whether
he had the requisite intent to aid Rakes in the commission of the
robbery. They did not. And given the import of mens rea to Eyre‘s
defense, we must then determine whether it was objectively
(continued . . .)
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Opinion of the Court
―intentionally‖ in part (1) of Instruction No. 40 is situated such that it
is coupled with ―solicited, requested, commanded, encouraged‖ in
part (2) and not with the underlying offense language of part (3),
thus permitting the jury to convict without determining whether
Eyre had the requisite mens rea for the underlying aggravated
robbery offense. See State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676
(finding that, ―by coupling the mens rea requirement directly with
[one element of the offense], and by articulating the [other element]
without any apparent counterpart requirement of mens rea,‖ the
instruction erroneously conveyed that the ―mens rea requirement . . .
applied only to the‖ first element). This instruction was therefore in
error.
¶27 The State argues that even if Instruction No. 40 were
erroneous (and it is), it was cured by Instructions Nos. 39 and 41.
Instruction No. 39 provided in relevant part:
Every person, acting with the mental state required
for the commission of the offense who directly
commits the offense, who solicits, requests,
commands, encourages, or intentionally aids another
person to engage in conduct which constitutes an
offense shall be criminally liable as a party for such
conduct.
And Instruction No. 41 provided in relevant part:
Prior knowledge that a crime is about to be
committed or is being committed does not make a
person an accomplice, and thereby does not subject
them to criminal prosecution unless that person has
the mental state required to commit the crime and he
solicits, requests, commands, encourages, or
intentionally aids in the perpetration of the crime.
Indeed, these two instructions more clearly define the dual mens rea
requirements under an accomplice liability theory because they
provide that the defendant must have ―the mental state required for
the commission of the offense‖ (or ―the mental state required to
commit the crime‖) and must ―intentionally aid[]‖ the commission of
the offense. But when read in conjunction with Instruction No. 40,
these instructions do not cure No. 40‘s error but rather instill more
reasonable, in light of the circumstances of Eyre‘s defense, not to
object to the erroneous instructions. See infra part II.A.3.
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confusion. Though correct, Instructions Nos. 39 and 41 contradict
Instruction No. 40, which itself does not require the defendant to
have had the requisite mental state for the underlying offense. See
Francis v. Franklin, 471 U.S. 307, 322 (1985) (―Language that merely
contradicts and does not explain a constitutionally infirm instruction
will not suffice to absolve the infirmity. A reviewing court has no
way of knowing which of the two [or more] irreconcilable
instructions the jurors applied in reaching their verdict.‖).
3. Trial counsel performed deficiently
¶28 Our return to plain language of Strickland in Scott, 2020 UT
13, ¶ 36, and Ray, 2020 UT 12, ¶ 31, does not support the categorical
approach to mens rea instructions that we once may have indicated.
See, e.g., Barela, 2015 UT 22, ¶ 27 (―[N]o reasonable lawyer would
have found an advantage in understating the mens rea requirement
. . . . There is only upside in a complete statement of the requirement
of mens rea . . . .‖). Instead, we adjudge counsel‘s conduct ―on the
facts of the particular case.‖ Ray, 2020 UT 12, ¶ 31 (citation omitted).
¶29 Armed now with our jurisprudence regarding mens rea
instructions for accomplice liability and the Strickland standard—as
explained in Scott and Ray—we assess counsel‘s failure to object to
jury Instruction No. 40 in the present case. We start with determining
whether the deficiency in the instruction ―was sufficiently important
under the circumstances that counsel‘s failure to argue for a
clarifying jury instruction fell below an objective standard of
reasonableness.‖ Id. ¶ 36. In this case, we conclude the deficiency in
jury Instruction No. 40 was important and that failure to object or
argue for a clarifying jury instruction did fall below an objective
standard of reasonableness. Additionally, we look at whether the
alleged error in instruction is germane or ―pertinent to‖ the defense
advanced at trial. See id. ¶ 38.
¶30 Instruction No. 40 was erroneous, and the confusion
engendered by the contradiction between Instruction Nos. 39, 40, and
41 further supports this conclusion. Having concluded that both
Instruction No. 40 and the instructions as a whole were erroneous for
understating or inaccurately portraying the mens rea requirements for
aggravated robbery as an accomplice, we conclude that trial
counsel‘s failure to object to Instruction No. 40 constituted deficient
performance. We see neither a reasonable strategy nor one offered
that could explain trial counsel‘s failure to object, given that Eyre‘s
defense hinged on a lack of intentionality as to the robbery. In the
circumstances of this particular case, where mens rea is at issue and
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the erroneous instruction allowed the jury to convict on a lesser
showing, any reasonable lawyer would have objected to the
inaccurate and incomplete statement.7
B. Trial Counsel’s Deficient Performance Prejudiced Eyre
¶31 Though Eyre has cleared the first hurdle in his ineffective
assistance of counsel claim, the Strickland test requires him to clear
one more. To prevail on an ineffective assistance of counsel claim, an
appellant must also ―present sufficient evidence to support ‗a
reasonable probability that, but for counsel‘s unprofessional errors,
the result of the proceeding would have been different.‘‖, 2011 UT
73, ¶ 40, 267 P.3d 232 (quoting Strickland, 466 U.S. at 694 (additional
citations omitted)). We refer to this requirement as the prejudice
prong. See, e.g., Grunwald, 2020 UT 40, ¶ 21.
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7 We take this opportunity to recommend that trial courts apply
our Model Utah Jury Instruction on Party Liability, which accurately
and clearly portrays the dual mens rea requirement. It provides:
A person can commit a crime as a ―party to the
offense.‖ In other words, a person can commit a
criminal offense even though he or she did not
personally do all of the acts that make up the offense.
Before a person may be found guilty as a ―party to the
offense,‖ you must find beyond a reasonable doubt
that:
1. The person had the mental state required to commit
the charged offense;
AND
2. The person:
a. directly committed the offense; or
b. intentionally, knowingly, or recklessly solicited,
requested, commanded or encouraged another
person to commit the charged offense; or
c. intentionally aided another person to commit
the charged offense;
AND
3. The charged offense was committed either by that
person or another person.
MUJI 2d CR403B (amended 2018) (citing UTAH CODE ANN. § 76-2-
202). This instruction must be used in concert with model jury
instruction CR403A, which defines the elements of the underlying
offense.
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Opinion of the Court
¶32 Our recent jurisprudence provides ample guidance in
determining prejudice in this particular context. ―When applying
Strickland‘s prejudice analysis in the context of erroneous jury
instructions, we must determine whether there is a reasonable
probability the jury would not have convicted the defendant if the
jury instructions had been correct.‖ Id. ¶ 22. We have further
clarified that
[a] reasonable probability ―is a probability sufficient
to undermine [our] confidence in the outcome.‖ To
determine whether there is a reasonable probability of
a different outcome, we must ask ourselves two
questions: (1) did the error in the jury instructions
create the possibility that the jury convicted the
defendant based on factual findings that would not
have led to conviction had the instructions been
correct? And, (2) if so, is there a reasonable probability
that at least one juror based its verdict on those
factual findings?
Id. (second alteration in original) (citation omitted). Importantly,
we‘ve noted that the term ―‗factual findings‘ does not refer to the
jury‘s ultimate determinations‖ but rather ―to the potential factual
scenarios the jurors could have accepted while listening to the
parties‘ respective version of the relevant events of the case.‖ Id. ¶ 22
n.21. After identifying the factual scenarios under the first Grunwald
factor, ―we must determine whether there is a reasonable probability
that, based on the totality of the evidence, a juror convicted the
defendant based on . . . . an accepted version of events that would
not have led to a conviction with a correct jury instruction.‖ Id. ¶ 26.
¶33 This guidance is particularly helpful when, as here, the
parties have provided very differing versions of the event regarding
an alleged accomplice‘s mental state. In Grunwald, for example, the
defendant claimed she was coerced at gunpoint to aid in a co-felon‘s
offense, id. ¶ 9, while the State argued the defendant participated
willingly and intentionally. Id. ¶ 11. A juror might accept one version
over the other, or ―conclude[] that the truth fell somewhere in
between.‖ Id. ¶ 22 n.21. And
[i]f a juror determined, based on the version of events
he or she accepted as true, that [the defendant] acted
recklessly (but not knowingly or intentionally), then
the jury would not have convicted [her] had the jury
been given a correct jury instruction—an instruction
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Cite as: 2021 UT 45
Opinion of the Court
that did not permit a conviction based on
recklessness.
Id. Put simply, if: (1) competing facts regarding a defendant‘s mens
rea exist; (2) there‘s a reasonable probability the juror based their
conviction on a party‘s version of events that would not have
otherwise resulted in a conviction under proper instructions; and
(3) a jury instruction fails to instruct the jury on the requisite mens rea
to convict, then the defendant has been prejudiced by the instruction
and trial counsel‘s failure to object to it.
¶34 We have exactly that situation before us today. Eyre and the
State recounted conflicting versions of the deadly robbery. Eyre, in
one of his versions, claimed he disagreed with Rakes‘ plan to steal
the Dodge Challenger, had even tried to talk Rakes out of it, was not
engaged in conversation with Rakes and Simon when Rakes flashed
his pistol at Simon and Xoumphonphackdy, was not himself armed,
and was not aware whether Rakes was armed. This factual scenario
creates the reasonable possibility that Eyre did not intend for the
robbery to be committed and thus was not searching for jumper
cables in the back of the PT Cruiser with the intent to effectuate the
robbery, but rather was doing so to buy time or to appease or mollify
Rakes, who had insisted on committing the robbery despite Eyre‘s
alleged pushback.8
¶35 This version of events establishes, at most, Eyre‘s
recklessness as to the commission of the aggravated robbery, thus
falling below the required intentional mens rea of that offense. And
while the State argues Eyre flashed a gun alongside Rakes, Eyre‘s
account is supported by Xoumphonphackdy, a victim of the robbery,
who stated that Eyre remained at the back of the PT Cruiser and
―didn‘t do anything to further th[e] crime.‖ And so, given that Eyre‘s
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8 We do not mean to imply that a defendant is always off the
accomplice liability hook when they allege to have known of a plan
to commit a criminal offense but did not adhere to it. Here, in Eyre‘s
telling, he expressed that he did not want to go through with it, thus
leaving open the possibility that Eyre did not have the requisite
intent. But if the underlying crime requires a lower mens rea, such as
reckless burning, see supra ¶ 18, an accomplice defendant claiming to
know of the plan but to have digressed from it out of a desire that
the crime not be committed will nonetheless be liable as an
accomplice because they have met the requisite recklessness mens
rea.
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STATE v. EYRE
Opinion of the Court
account creates a reasonable possibility that he did not intend for the
aggravated robbery to occur, which is further supported by
Xoumphonphackdy‘s account, we conclude there was a reasonable
probability that at least one juror voted to convict based on this
factual scenario, which ―would have been insufficient to sustain a
conviction had the instruction been given correctly.‖ Id. ¶ 27. As
such, we find there is a ―reasonable probability the jury would not
have convicted the defendant if the jury instructions had been
correct.‖ Id. ¶ 22. Trial counsel‘s deficient performance in failing to
object to the instruction thus prejudiced Eyre.
CONCLUSION
¶36 Jury Instruction No. 40 was erroneous—it failed to
accurately and clearly instruct the jurors on the dual mens rea
requirement under an accomplice liability theory. Moreover, related
instructions did not cure No. 40‘s error but rather served to inject
more confusion into the instructions. As such, we conclude that the
court of appeals erred in holding that the instructions were
sufficient.
¶37 And having concluded the instructions were erroneous, we
also conclude that Eyre‘s right to effective assistance of counsel was
violated. This case is characterized by multiple accounts and
conflicting facts regarding Eyre‘s mental state during the armed
robbery. While we do not opine on the veracity of either party‘s
version of events, we recognize there is a reasonable probability that
the erroneous instruction impermissibly allowed at least one juror to
vote to convict Eyre despite believing that Eyre did not intend for the
robbery to occur. Trial counsel should have recognized this
possibility and should have objected, but did not. And this failure to
cure the erroneous instruction prejudiced Eyre. Because both prongs
of the Strickland test are satisfied, we reverse the court of appeals on
the jury instruction issue, vacate Eyre‘s conviction, and remand for a
new trial.
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