State v. Salt

2015 UT App 72
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
JEFFREY CHARLES SALT,
Defendant and Appellant.

Opinion
No. 20130071-CA
Filed March 26, 2015

Third District Court, Salt Lake Department
The Honorable William W. Barrett
The Honorable Elizabeth A. Hruby-Mills1
No. 081904756

Herschel Bullen, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

ROTH, Judge:

¶1 Jeffrey Charles Salt appeals from his conviction for
aggravated assault, a third degree felony. We affirm.

1. Judge William W. Barrett presided over the trial and denied
the defendant’s motion to arrest judgment as well as his
alternative motion to reduce his conviction. Judge Elizabeth A.
Hruby-Mills denied the motion for a new trial.
 State v. Salt

BACKGROUND

¶2 Shortly after Salt began dating his girlfriend (J.G.), she
bought a home in Salt Lake City.2 Salt suggested that she hire
him to complete some renovations, and she agreed. J.G. moved
in with Salt in April 2006 when her house became unlivable
during the remodeling. Over the next couple of years, the
renovations became the source of frequent conflict between the
two. J.G. moved out of Salt’s residence in February 2008 and
hired another contractor to finish the work on her home. At that
point, Salt ended their relationship. But between February and
April 2008, the two continued to see each other and came to a
sort of reconciliation. At the end of April, however, J.G. told Salt
‚this isn’t going to work out‛ and attempted to end their
relationship permanently.

¶3 Salt continued to contact J.G., eventually convincing her
to meet him at his home in early June to talk things through and
help him move past their breakup. When J.G. arrived at the
scheduled meeting, Salt told her he wanted to ‚set some ground
rules.‛ He asked J.G. to agree not to leave even if ‚the
questioning got tough.‛ For nearly an hour, Salt asked her
questions about their relationship and her decision to end it.
When J.G. eventually told Salt she wanted to leave, he
responded with misogynistic verbal abuse and then grabbed J.G.
and twisted her head. The two ended up on the ground, and Salt
grabbed a piece of pottery from a shelf and hit J.G. on the head
with it multiple times. J.G. grabbed a phone from the floor and
attempted to call 911, but she misdialed, and Salt knocked the
phone away before she could reach anyone.

2. ‚On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict
and recite the facts accordingly.‛ State v. Winfield, 2006 UT 4, ¶ 2,
128 P.3d 1171 (citation and internal quotation marks omitted).

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 State v. Salt

¶4 Salt then grabbed what J.G. thought was a metal pipe and
hit her above her eye, drawing blood, before pinning her to the
ground. When the two eventually stopped struggling, Salt
allowed J.G. to get up. At that point, she saw blood all over the
floor and could feel that her head was covered with blood as
well. J.G. attempted to leave, but Salt blocked the exit. J.G. said,
‚[N]o, no, no, just let me out,‛ and then either she pushed her
way past him or he stepped aside. Feeling faint, J.G. lay down on
the cement walkway in front of Salt’s residence where a
passerby stopped to give her aid and called 911. At the hospital,
J.G. received sixty-five staples in her scalp to close lacerations
that totaled roughly eleven inches in length. She continued to
suffer back pain for years and, at the time of trial, still had a
‚lump on the side of *her+ head‛ that felt as if there was ‚a little
piece of the clay in [it].‛ Salt was charged with aggravated
kidnapping, aggravated assault, and damage to a
communication device.

¶5 The case was tried to a jury. Salt claimed he acted in self-
defense. He admitted using derogatory names to describe J.G.
but testified that in response to the name-calling she landed the
first blow, hitting him in the left eye. He testified he then put her
in a headlock to keep her from further attacking him, and they
fell to the ground wrestling. According to Salt, J.G. tried ‚to
gouge [his] face‛ and then bit his finger and would not let go. In
response, he repeatedly struck her head against a bookshelf until
she released his finger. He testified that he never hit her with
pottery or a metal pipe and that any action he took against J.G.
was to protect himself from her attempts to gouge his face, her
blows with a phone receiver, and her biting. He said that he was
‚in fear for *his+ safety and *his+ life‛ after J.G. hit him in the face
and bit him. Salt also testified that a few months before the
incident, J.G. had come to his house to collect some of her
belongings. Then, as she was leaving, she ‚drove her car in
reverse and hit *his+ car.‛ He then testified, ‚And I was in the
path of that vehicle and I had to move out of the way to avoid
being assaulted by the vehicle.‛

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 State v. Salt

¶6 The defense called a physician friend of Salt’s who
practiced emergency medicine as an expert witness. Based on his
review of J.G.’s medical records, the physician testified that the
nature of her injuries did not support a claim that she had
suffered direct blows from a metal pipe or a ceramic object.
Rather, in his opinion, J.G.’s injuries were most likely caused by
a ‚glancing blow[]‛ rather than a ‚direct blow‛ from an object he
did not attempt to describe. The defense also cross-examined
law enforcement officers who had responded to the scene. They
observed blood all over the apartment, but they neither found a
metal pipe nor recovered any pieces of pottery.

¶7 The jury convicted Salt of aggravated assault involving
domestic violence but acquitted him of two other charges
involving domestic violence—aggravated kidnapping and
damage to a communication device. Salt moved to arrest
judgment and filed an alternative motion to have his conviction
reduced to a class A misdemeanor. The trial court denied his
motions. After sentencing, Salt moved for a new trial. The court
also denied that motion. Salt appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 First, Salt argues that the aggravated assault jury
instruction was incomplete. ‚*W+e review jury instructions in
their entirety to determine whether the instructions, taken as a
whole, fairly instruct the jury on the applicable law.‛ State v.
Malaga, 2006 UT App 103, ¶ 18, 132 P.3d 703 (alteration in
original) (citation and internal quotation marks omitted).
‚Whether a jury instruction correctly states the law presents a
question of law which we review for correctness.‛ State v.
Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444.

¶9 Second, Salt argues that the trial court erred when it
denied his motion to reduce his sentence to a class A
misdemeanor. We review a trial court’s denial of a motion to

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reduce the degree of a conviction for abuse of discretion. State v.
Boyd, 2001 UT 30, ¶ 31, 25 P.3d 985.

¶10 Third, Salt argues that the trial court should have granted
his motion for a new trial because the jury’s not-guilty verdict on
the charge of aggravated kidnapping conflicted with its guilty
verdict on aggravated assault. ‚[W]e review the decision to grant
or deny a motion for a new trial only for an abuse of discretion.‛
State v. Loose, 2000 UT 11, ¶ 8, 994 P.2d 1237. ‚When considering
a defendant’s argument that the verdicts are inconsistent, we . . .
will not overturn a jury’s verdict of criminal conviction unless
reasonable minds could not rationally have arrived at the verdict
of guilty beyond a reasonable doubt based on the law and on the
evidence presented.‛ State v. LoPrinzi, 2014 UT App 256, ¶ 30,
338 P.3d 253 (citation and internal quotation marks omitted),
petition for cert. filed, Dec. 24, 2014 (No. 20141168).

¶11 Fourth, Salt contends that the definition of ‚cohabitant‛
as used in the Cohabitant Abuse Act is unconstitutionally
overbroad and vague. Constitutional challenges are matters of
law reviewed for correctness. State v. Pullman, 2013 UT App 168,
¶ 6, 306 P.3d 827.

¶12 Finally, Salt argues that his counsel was constitutionally
ineffective for failing to request an additional element in the jury
instruction related to self-defense. We consider claims of
ineffective assistance of counsel raised for the first time on
appeal as questions of law. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d
162.

ANALYSIS

I. The Aggravated Assault Jury Instruction

¶13 At trial, the jury was instructed that to find Salt guilty of
aggravated assault, it must find beyond a reasonable doubt that
he used a dangerous weapon or ‚other means or force likely to

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produce death or serious bodily injury‛ in the course of acting
‚with unlawful force or violence, that causes bodily injury to
another or creates a substantial risk of bodily injury to another.‛
Salt contends that this instruction was erroneous because it
failed to ‚require the jury to find that he acted with intent, or
knowledge, or recklessness with respect to the result of his
conduct.‛ Instead, Salt argues, the instruction required the jury
to find only that he used means likely to produce death or
serious bodily injury. In other words, Salt argues that the
instruction was missing a ‚vital‛ mens rea element, i.e., that he
must have specifically intended to cause death or serious bodily
injury, not simply that he used means likely to do so.

¶14 In support of his argument, Salt relies on State v.
O’Bannon, 2012 UT App 71, 274 P.3d 992. We held in O’Bannon
that the State was required to prove that the defendant acted
with intent to cause the victim serious physical injury before a
jury could convict him of second degree felony child abuse. Id.
¶ 31. We determined that it was not enough ‚to prove only that
[the defendant] intended to be, or knew that he was, engaged in
certain conduct without the requisite intent or knowledge that a
serious physical injury would likely result.‛ Id. Salt argues that
we should come to the same conclusion in this case because the
aggravated assault instruction did not require jurors to
determine that he intended to cause serious bodily injury, but to
determine only that his actions were ‚likely to produce death or
serious bodily injury‛ without ever taking his specific intent into
account as he claims O’Bannon requires. We conclude that
O’Bannon does not apply here because our holding in that case
was based on a different crime requiring a different mens rea.

¶15 O’Bannon involved a charge of second degree felony child
abuse, not third degree felony aggravated assault. Id. ¶¶ 1, 24.
Under the child abuse statute, a person is guilty of second
degree felony child abuse if that person inflicts ‚serious physical
injury‛ and does so ‚intentionally or knowingly.‛ Utah Code
Ann. § 76-5-109(2) (LexisNexis 2012). But the O’Bannon jury had
been given an ‚eggshell victim‛ instruction, stating that ‚*w+hen

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injury ensues from deliberate wrongdoing, even if it is not an
intended consequence, the injurer is responsible at law without the
law concerning itself with the precise amount of harm inflicted.‛
O’Bannon, 2012 UT App 71, ¶ 12 (emphasis added) (internal
quotation marks omitted). We determined that this instruction
‚inaccurately stated the law with regard to the mental state
required for the jury to find [the defendant] guilty of second
degree felony child abuse.‛ Id. ¶ 17. We reached this decision
because even though the defendant had seriously injured the
child victim, the instruction contradicted the statutory
requirement that the defendant must also have intended serious
physical injury or have known that it would result from his
conduct. Id. ¶¶ 17, 31.

¶16 In contrast, the crime of third degree felony aggravated
assault does not require that a person act with the intent to cause
a specific level of harm. Compare Utah Code Ann. § 76-5-103(1)(b)
(LexisNexis 2008) (defining third degree felony aggravated
assault), and id. § 76-5-102 (2012)3 (defining assault), with id.
§ 76-5-109(2) (defining second degree felony child abuse).
Instead, the version of the statute that Salt was charged under
defines third degree felony aggravated assault as an act causing
or creating a substantial risk of bodily injury, committed ‚with
unlawful force or violence,‛ id. § 76-5-102, while using a
dangerous weapon or ‚other means or force likely to produce
death or serious bodily injury,‛ id. § 76-5-103(1)(b), (3) (2008).
The specific intent to cause ‚serious bodily injury‛ was an
element of second degree felony aggravated assault, not the
third degree felony with which Salt was charged. See id. § 76-5-
103. And our precedent recognizes that specific intent to inflict
serious bodily injury—or knowledge that such injury is likely to
occur—is not required for a third degree felony aggravated

3. Where amendments made to the relevant statutes since the
time of the incident are not substantive, we cite to the current
version of the Utah Code for the convenience for the reader.

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 State v. Salt

assault conviction under the version of the statute that is
applicable here. See id. (current version at id. § 76-5-103(1), (2)(a)
(2012)). For example, in State v. Mangum, 2013 UT App 292, 318
P.3d 250 (per curiam), we noted that because the defendant ‚was
charged and convicted under subsection (1)(b)‛ of the 2008
version of the statute, and not with a second degree felony under
subsection (1)(a), ‚there was no requirement to show specific
intent in order to support *the defendant’s+ conviction.‛ Id. ¶¶ 6–
7; see also State v. Potter, 627 P.2d 75, 78 (Utah 1981) (holding that
an instruction stating that ‚specific intent‛ is not required to
‚violate the law but merely an intent to engage in acts or
conduct that constitute the elements of a crime‛ was appropriate
for an aggravated assault charge (internal quotation marks
omitted)); State v. McElhaney, 579 P.2d 328, 328 & n.2 (Utah 1978)
(holding that when aggravated assault is committed by use of a
deadly weapon ‚or such means or force likely to produce death
or serious bodily injury,‛ ‚no culpable mental state is specified‛
(internal quotation marks omitted)); State v. Howell, 554 P.2d
1326, 1328 (Utah 1976) (agreeing with the parties that third
degree felony aggravated assault requires only general intent).

¶17 We therefore conclude that the trial court did not err
when it determined that the third degree felony aggravated
assault instruction correctly stated the law and for that reason
refused to arrest judgment or grant a new trial.

II. Motion to Reduce Degree of Conviction

¶18 Prior to sentencing, Salt moved to have his conviction
reduced from third degree felony aggravated assault to class A
misdemeanor assault under section 76-3-402 of the Utah Code (a
section 402 reduction), because a felony conviction ‚would be
unduly harsh‛ and because ‚[h]e ha[d] no significant prior
criminal record.‛ Salt also argued that he would be unable to
continue in his position with a nonprofit organization if
convicted of a felony. The trial court denied the motion. Salt
argues that the court abused its discretion in failing to grant him

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a section 402 reduction. He also contends that the trial court’s
decision violated the Shondel doctrine and failed to comply with
the rule of lenity.

¶19 Salt argues on appeal that a reduction of his sentence is
required under the Shondel doctrine. The Shondel doctrine
establishes that ‚where two statutes define exactly the same
penal offense, a defendant can be sentenced only under the
statute requiring the lesser penalty.‛ State v. Bluff, 2002 UT 66,
¶ 33, 52 P.3d 1210 (citing State v. Shondel, 453 P.2d 146, 147–48
(Utah 1969)). Salt argues that ‚[t]here is no meaningful
distinction‛ between the acts required to commit the two crimes
because in either case the actual result could be the same—
substantial bodily injury, the kind of injury that Salt inflicted
here.

¶20 But the Shondel doctrine applies only if the two crimes
‚have identical elements and prohibit exactly the same
conduct.‛ Id. The elements of the lesser offense Salt argues for—
a class A misdemeanor simple assault—are not the same as the
third degree felony aggravated assault of which he was
convicted. Compare Utah Code Ann. § 76-5-102 (defining simple
assault), with id. § 76-5-103(1)(b), (3) (2008) (defining third degree
felony aggravated assault). And the fact that an act committed
under either statute may actually result in the same injury
does not mean the crimes are wholly duplicative. While
the severity of injury required by the misdemeanor assault
statute and the injury actually inflicted in connection with a
third degree felony may sometimes be the same, the culpable
conduct required for each is different. Class A misdemeanor
assault requires only an act ‚committed with unlawful force
or violence,‛ see id. § 76-5-102 (2012), while third degree felony
aggravated assault requires the use of a dangerous weapon
or ‚other means or force likely to produce‛ more grave
consequences—‚serious bodily injury‛ or even death, id. § 76-5-
103(1)(b), (3) (2008) (emphasis added). Thus, each of these crimes
describes conduct that is significantly different in both conduct
and potential for harm, differences that are reflected in the

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elements each crime requires for conviction. Because the two
statutes fail to ‚address exactly the same conduct,‛ the Shondel
doctrine does not apply. See Bluff, 2002 UT 66, ¶ 33 (citation and
internal quotation marks omitted).

¶21 Salt also argues that the rule of lenity requires that his
conviction be reduced. He contends that the statutory scheme
surrounding the varying degrees of assault is ambiguous
because ‚there are no standards assisting a trial court in
distinguishing‛ between the types of bodily injury that
determine whether the assault will result in a misdemeanor or
felony conviction for the defendant. He argues that ‚the
determination is [thus] left to the arbitrary conclusions of the
prosecution‛ and renders the statutes unconstitutionally vague.

¶22 ‚*L+enity is an ancient rule of statutory construction that
penal statutes should be strictly construed against the
government . . . and in favor of the persons on whom such
penalties are sought to be imposed.‛ State v. Rasabout, 2013 UT
App 71, ¶ 31, 299 P.3d 625 (omission in original) (citation and
internal quotation marks omitted), cert. granted, 308 P.3d 536
(Utah 2013). In other words, lenity serves ‚as an aid for resolving
an ambiguity‛ in a statute. Albernaz v. United States, 450 U.S. 333,
342 (1981). We noted in State v. Rasabout, 2013 UT App 71, 299
P.3d 625, that ‚our Legislature appears to have rejected the rule
of lenity as a permissible canon of statutory construction.‛ Id.
¶ 31. But in Rasabout we determined that even if the rule of lenity
were applicable, there was no ambiguity in the pertinent statute.
Id. ¶ 32. We come to the same conclusion here.

¶23 Assault and aggravated assault, the statutory crimes that
Salt claims are ambiguous and unconstitutionally vague, employ
varying levels of bodily injury to differentiate degrees of
criminal assault. For example, class B misdemeanor assault
proscribes the infliction or creation of a substantial risk of
‚bodily injury‛—or an attempt or a threat to inflict it. See Utah
Code Ann. § 76-5-102(1), (2) (LexisNexis 2012). And ‚*b]odily
injury‛ is defined as ‚physical pain, illness, or any impairment

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 State v. Salt

of physical condition.‛ Id. § 76-1-601(3). But class A
misdemeanor assault requires that the assault result in
‚substantial bodily injury.‛ Id. § 76-5-102(3). ‚Substantial bodily
injury‛ is defined as ‚bodily injury, not amounting to serious
bodily injury, that creates or causes protracted physical pain,
temporary disfigurement, or temporary loss or impairment of
the function of any bodily member or organ.‛ Id. § 76-1-601(12).
And Utah law defines ‚[s]erious bodily injury‛ as ‚bodily injury
that creates or causes serious permanent disfigurement,
protracted loss or impairment of the function of any bodily
member or organ, or creates a substantial risk of death.‛ Id.
§ 76-1-601(11). Third degree felony aggravated assault requires
the assault to involve either a dangerous weapon or ‚other
means or force likely to produce death or serious bodily injury.‛
Id. § 76-5-103(1)(b), (3) (2008). And an aggravated assault
becomes a second degree felony only if it ‚causes serious bodily
injury.‛ Id. § 76-5-103(1)(a), (2).

¶24 Salt provides no analysis or explanation as to how the
statutory definitions of the pertinent degrees of bodily injury are
so indistinguishable from one another as to be ambiguous.
Ambiguity is defined as ‚*a+n uncertainty of meaning or
intention.‛ Black’s Law Dictionary 93 (9th ed. 2009). Here, there is
no uncertainty as to the meaning or definitions of the terms with
which Salt finds fault, as the legislature has specifically defined
each term. As a result, the ‚rule of lenity,‛ even if available as a
canon of statutory construction, is not applicable here.

¶25 For the same reason, Salt’s related claim that the statutes
are unconstitutionally vague is unavailing. As long as a statute
‚is sufficiently explicit to inform the ordinary reader what
conduct is prohibited‛ we will not find it unconstitutionally
vague. State v. MacGuire, 2004 UT 4, ¶ 14, 84 P.3d 1171 (citation
and internal quotation marks omitted). Further, if the meaning
of a statute is ‚readily ascertainable,‛ it ‚does not encourage or
facilitate arbitrary and discriminatory enforcement.‛ Id. ¶ 32.
Having already found that the ambiguity Salt urges does not
exist, we conclude that the statutes at issue here are ‚sufficiently

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explicit.‛ See id. ¶ 14 (citation and internal quotation marks
omitted). As discussed, the statutes provide specific definitions
for each of the degrees of bodily injury that accompany the
various degrees of assault. We therefore conclude that the
meaning of the statutes is ‚readily ascertainable.‛ See id. ¶ 32.

¶26 Finally, Salt’s contention that the trial court’s refusal to
reduce his conviction to a class A misdemeanor was ‚unduly
harsh‛ is unpersuasive. Under section 76-3-402 of the Utah Code,
a court may reduce the degree of a conviction by one level if,
having considered ‚the nature and circumstances of the offense‛
and ‚the history and character of the defendant,‛ the court
‚concludes [that] it would be unduly harsh to record the
conviction as being for that degree of offense established by
statute.‛ Utah Code Ann. § 76-3-402 (LexisNexis 2012). By its
nature, such a decision is one of judgment and discretion. The
court did not exceed its discretion when it determined that Salt’s
clean criminal history and potential job problems did not
warrant such a reduction given the circumstances of this case,
including the injuries inflicted on J.G. In addition, the trial court
expressly stated that it would consider a renewed motion under
section 402 in the event Salt successfully completed his
probation.

III. Conflicting Verdicts

¶27 Salt contends that he was entitled to a new trial because
‚the verdict acquitting him of aggravated kidnapping
necessarily conflicted with his conviction of aggravated assault
and therefore he should have been acquitted of the aggravated
assault as well.‛

¶28 We considered a similar argument in State v. LoPrinzi,
2014 UT App 256, 338 P.3d 253, petition for cert. filed, Dec. 24, 2014
(No. 20141168), where the defendant was convicted of two
counts of unlawful sexual activity with a minor and acquitted of
a third count. Id. ¶ 29. There, the defendant argued that all three
counts ‚involved the same witnesses, same parties, same

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 State v. Salt

allegations, and same evidence.‛ Id. (internal quotation marks
omitted). Accordingly, she argued that ‚the jury would have *to+
either convict on all Counts, or acquit on all Counts.‛ Id.
(alteration in original) (internal quotation marks omitted). We
concluded, however, that ‚[w]e are under no duty‛ to reconcile
seemingly inconsistent acquittals and convictions because the
jury is free to determine ‚that the evidence only supported one
conviction.‛ Id. ¶ 31 (citation and internal quotation marks
omitted). Therefore, a ‚claim of inconsistency alone is not
sufficient to overturn [the] conviction; rather, [t]here must be
additional error beyond a showing of inconsistency because
appellate courts have always resisted inquiring into the jury’s
thought processes and deliberations.‛ Id. ¶ 30 (citation and
internal quotation marks omitted).

¶29 Salt argues that such additional error exists here because
the aggravating factor the prosecution alleged for the aggravated
kidnapping charge was essentially the assault for which he was
convicted and thus the jury must have decided he did not
commit the assault when it acquitted him of the aggravated
kidnapping charge. As we noted in LoPrinzi, ‚so long as
sufficient evidence supports each of the guilty verdicts, state
courts generally have upheld the convictions.‛ Id. (citation and
internal quotation marks omitted). In determining whether the
evidence is sufficient, ‚we review the evidence in the light most
favorable to the verdict and will not overturn a jury’s verdict of
criminal conviction unless reasonable minds could not rationally
have arrived at the verdict of guilty beyond a reasonable doubt
based on the law and on the evidence presented.‛ Id. (citation
and internal quotation marks omitted). Here, the version of the
evidence most favorable to the jury’s verdict was that Salt
assaulted J.G. and hit her with a metal pipe, a piece of pottery, or
both, causing her significant head injuries and lingering residual
pain in her back. Based on this evidence, the jury could
reasonably have determined that Salt assaulted J.G. with a
dangerous weapon or ‚other means or force likely to produce
death or serious bodily injury.‛ See Utah Code Ann.
§ 76-5-103(1)(b) (LexisNexis 2008).

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 State v. Salt

¶30 We therefore conclude that the evidence was sufficient to
support the aggravated assault conviction and that the trial court
did not err when it refused to grant a new trial on the basis of
inconsistent verdicts.

IV. Constitutionality of the Cohabitant Abuse Act

¶31 Salt contends that the term ‚cohabitant,‛ as used in the
Cohabitant Abuse Act, is both unconstitutionally overbroad and
unconstitutionally vague. As a result, he argues the domestic
violence designations attached to his charges were inappropriate
and that ‚the jury should not have been instructed with regard
to finding such a status.‛ The Cohabitant Abuse Act provides
that a second or subsequent conviction for certain domestic
violence offenses is subject to enhanced penalties. Utah Code
Ann. § 77-36-1.1(2) (LexisNexis 2012). ‚*D+omestic violence‛ is
defined as ‚any criminal offense involving violence or physical
harm . . . when committed by one cohabitant against another.‛
Id. § 77-36-1(4). Defendant argues that the term ‚cohabitant,‛ as
used in this act—and specifically the act’s last alternative
definition, ‚a person who . . . resides or has resided in the same
residence as the other party‛—is unconstitutionally overbroad
because it unduly inhibits ‚First Amendment freedom of
association rights.‛ See id. §§ 77-36-1, 78B-7-102. In other words,
he argues that the act criminalizes ‚entirely innocent behavior,
the mere act of residing with another.‛ And he argues that the
phrase ‚has resided‛ is unconstitutionally vague because it is
unqualified and does not provide sufficient notice as to what
behavior is being proscribed.

A. Unconstitutional Overbreadth

¶32 Salt refers us to Salt Lake City v. Lopez, 935 P.2d 1259 (Utah
Ct. App. 1997), where we determined that ‚*s+tatutory language
is overbroad if its language proscribes both harmful and
innocuous behavior.‛ Id. at 1263 (citation and internal quotation
marks omitted), superseded by statute on other grounds as recognized
by Baird v. Baird, 2014 UT 8, 322 P.3d 728. In Lopez, we

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determined that a ‚statute is not unconstitutionally overbroad
unless it renders unlawful a substantial amount of
constitutionally protected conduct.‛ Id. We noted, however, that
‚*t+he overbreadth doctrine has not been recognized outside the
limits of the First Amendment.‛ Id. Salt contends that the
definition of ‚cohabitant‛ restricts a person’s right to freedom of
association under the First Amendment by ‚criminalizing
entirely innocent behavior, the mere act of residing with one
another.‛

¶33 ‚In a facial challenge to the overbreadth and vagueness of
a law, a court’s first task is to determine whether the enactment
reaches a substantial amount of constitutionally protected
conduct.‛ State v. Norris, 2007 UT 6, ¶ 13, 152 P.3d 293 (emphasis
omitted) (citation and internal quotation marks omitted). If the
statute does not reach a substantial amount of such conduct, the
overbreadth claim fails. Id. As Salt notes, the United States
Supreme Court has recognized that ‚choices to enter into and
maintain certain intimate human relationships must be secured
against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is
central to our constitutional scheme.‛ Roberts v. United States
Jaycees, 468 U.S. 609, 617–18 (1984). Further, the Supreme Court
has recognized that ‚implicit in the right to engage in activities
protected by the First Amendment is a corresponding right to
associate with others in pursuit of a wide variety of political,
social, economic, educational, religious and cultural ends.‛ Boy
Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000) (citation and
internal quotation marks omitted). However, to warrant First
Amendment protection, those engaging in their right of free
association must ‚engage in some form of expression, whether it
be public or private.‛ Id. at 648.

¶34 The Cohabitant Abuse Act does not penalize a person for
choosing to reside with another person, as Salt claims, nor does
it inhibit any protected form of expression. Instead, the act only
prohibits criminal conduct against a cohabitant that ‚involv*es+
violence or physical harm or threat of violence or physical

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 State v. Salt

harm.‛ See Utah Code Ann. §§ 77-36-1(4), -1.1 (LexisNexis 2012).
Violence and threats of violence against cohabitants are not the
sort of ‚form of expression‛ that the First Amendment right of
association is meant to protect from government intrusion;
indeed, such conduct is universally criminalized. Rather, the
Cohabitant Abuse Act is designed to promote the value of the
relationships the act encompasses by discouraging physical
violence in such relationships. Because the act does not constrain
any speech or conduct protected by the First Amendment, the
fact that its broad definition of ‚cohabitant‛ may theoretically
bring within its reach such attenuated relationships as, for
example, former roommates, may raise questions of policy
without necessarily implicating constitutional overbreadth. This
is especially true in a case such as this one, where Salt and J.G.
had lived together for a substantial time and the violence
stemmed from their prior intimate relationship. We therefore
conclude that Salt’s claim of overbreadth fails.

B. Unconstitutional Vagueness

¶35 Salt also claims that the definition of ‚cohabitant‛ is
unconstitutionally vague. He argues that ‚*n+o evidence exists
that he was put on notice or was otherwise aware that he had
somehow permanently attained the status of ‘cohabitant’ simply
because he once resided with‛ J.G. A statute is
unconstitutionally vague if it ‚fails to provide people of ordinary
intelligence a reasonable opportunity to understand what
conduct it prohibits‛ or if it ‚authorizes or even encourages
arbitrary and discriminatory enforcement.‛ State v. Ansari, 2004
UT App 326, ¶ 42, 100 P.3d 231 (citation and internal quotation
marks omitted). The burden of showing that a statute is
unconstitutionally vague is a heavy one because ‚a defendant
has the burden of proving that the statute is impermissibly
vague in all of its applications.‛ Id. ¶ 44 (emphasis added)
(citation and internal quotation marks omitted). ‚Thus, a
defendant who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as

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 State v. Salt

applied to the conduct of others.‛ Id. (citation and internal
quotation marks omitted).

¶36 Our ‚primary objective‛ when interpreting statutory
language ‚is to give effect to the legislature’s intent‛ as
expressed in the text of the statute. State v. Maestas, 2012 UT 46,
¶ 195, 299 P.3d 892 (citation and internal quotation marks
omitted). In doing so, we will consider the plain language and
also the purpose of the statute. Anderson v. Bell, 2010 UT 47, ¶ 9,
234 P.3d 1147. Our decision in Keene v. Bonser, 2005 UT App 37,
107 P.3d 693, is instructive here. In Keene, we considered the
‚resides or has resided‛ definition of ‚cohabitant‛ in the context
of a statute that sets forth the procedure for domestic violence
victims to obtain a protective order. Id. ¶¶ 2, 8. In that case, we
determined that the plain meaning of ‚reside‛ was ‚[t]o dwell
permanently or for a length of time; to have a settled abode for a
time.‛ Id. ¶ 11 (alteration in original) (citation and internal
quotation marks omitted). We also defined ‚residence‛
according to its plain meaning—‚a temporary or permanent
dwelling place, abode, or habitation to which one intends to
return as distinguished from a place of temporary sojourn or
transient visit.‛ Id. (citation and internal quotation marks
omitted). And we further noted that one of the purposes other
states have recognized for implementing statutes such as the
Cohabitant Abuse Act is ‚‘to protect others[, beyond spouses,]
from abuse occurring between persons in a variety of significant
relationships.’‛ Id. ¶ 15 (alteration in original) (quoting State v.
Kellogg, 542 N.W.2d 514, 517 (Iowa 1996)). Such a purpose is
supported by the plain language of our own statute, which
increases the penalty for criminal offenses ‚involving violence or
physical harm . . . when committed by one cohabitant against
another.‛ See Utah Code Ann. §§ 77-36-1(4), -1.1(2).

¶37 Salt’s conduct in the context of his relationship with J.G.
falls well within the scope of the statute’s definition and
purpose. See Ansari, 2004 UT App 326, ¶ 44. Here, Salt and J.G.
lived together in an intimate relationship in Salt’s permanent
home for nearly two years. And it was only about two months

20130071-CA 17 2015 UT App 72
 State v. Salt

after J.G. moved out that Salt violently assaulted her during a
discussion directly related to their prior romantic relationship.
Salt’s behavior is exactly the type contemplated by statutes like
the act which are aimed at protecting those in ‚a variety of
significant relationships‛ from the increased vulnerability to
abuse that those relationships may create, even after they end.
See Keene, 2005 UT App 37, ¶ 15 (citation and internal quotation
marks omitted). Because we conclude that the kind of
relationship Salt had with J.G. fell well within the central focus
of the act’s definition of ‚cohabitant,‛ and because that
definition ‚provide*s+ people of ordinary intelligence‛ fair
notice, Salt’s unconstitutional vagueness claim fails. See Ansari,
2004 UT App 326, ¶ 42 (citation and internal quotation marks
omitted).

V. Ineffective Assistance of Counsel

¶38 Salt’s final claim is that his trial counsel was ineffective
for failing to request that the court include an additional factor
for the jury’s consideration in one of the self-defense jury
instructions. Under Utah law, ‚*a+ person is justified in
threatening or using force against another when and to the
extent that the person reasonably believes that force . . . is
necessary to defend the person . . . against another person’s
imminent use of unlawful force.‛ Utah Code Ann.
§ 76-2-402(1)(a) (LexisNexis 2012). The self-defense statute also
states that in determining the ‚imminence or reasonableness‛ of
an attack or response,

the trier of fact may consider, but is not limited to,
any of the following factors: (a) the nature of the
danger; (b) the immediacy of the danger; (c) the
probability that the unlawful force would result in
death or serious bodily injury; (d) the other’s prior
violent acts or violent propensities; [and] (e) any
patterns of abuse or violence in the parties’
relationship.

20130071-CA 18 2015 UT App 72
 State v. Salt

Id. § 76-2-402(5) (emphasis added). Salt argues that Jury
Instruction No. 20, which purported to address these factors,
failed to include the fourth factor listed in the statute—‚the
other’s prior violent acts or violent propensities.‛4 See id. He
argues that his counsel was ineffective for failing to ensure that
this factor was included because it was implicated by evidence
presented at trial that J.G. had previously attempted to hit him
with her car.

¶39 To establish ineffective assistance of counsel, a defendant
must demonstrate (1) ‚that counsel’s performance was deficient‛
and (2) ‚that the deficient performance prejudiced the defense.‛
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both
prongs are required, ‚an appellate court may skip to the second
prong . . . and determine that the ineffectiveness, if any, did not
prejudice the trial’s outcome.‛ State v. Perry, 2009 UT App 51,
¶ 11, 204 P.3d 880 (citation and internal quotation marks
omitted). ‚To satisfy the prejudice prong, it is not enough to
show that the alleged errors had some conceivable effect on the
outcome of the trial but, rather, defendant must show that a
reasonable probability exists that, but for counsel’s error, the
result would have been different.‛ State v. Millard, 2010 UT App
355, ¶ 18, 246 P.3d 151 (citation and internal quotation marks
omitted). Salt first argues that‚*b+y failing to request a very
crucial element of self-defense,‛ counsel prevented the jury from
being given the ‚opportunity to consider in its deliberations the
effect of the prior assault by *J.G.+.‛ He argues that ‚the result
may very well have been different‛ had the jury been permitted
to consider this evidence.

¶40 We conclude that Salt has not shown that counsel’s failure
to object to the jury instruction prejudiced his case. Even if the

4.The jury instruction also failed to list the fifth factor described
in the statute, but Salt does not appeal the omission of that
factor.

20130071-CA 19 2015 UT App 72
 State v. Salt

‚prior violent acts or prior violent propensities‛ factor had been
included, Salt has failed to show a reasonable probability exists
that the outcome would have been different. Salt argues he was
prejudiced because the missing factor deprived him of the
opportunity to argue his theory of self-defense and the jury of
the ability to consider it. Put another way, Salt contends counsel
was prevented from arguing that Salt reacted to J.G. both
reasonably and in self-defense in light of the parties’ history and
that had counsel been able to do so, Salt would not have been
convicted. We disagree.

¶41 First, Jury Instruction No. 20 clearly stated that the jury
was ‚not limited‛ only to the factors listed in the instruction. The
jury was therefore free to consider Salt’s testimony that his
actions were a justified response to J.G. hitting him in the eye
because J.G. had previously tried to hit him with a car. And just
as the missing factor did not prevent the jury from considering
any evidence presented to it related to self-defense, neither did it
prevent counsel from arguing a theory of self-defense to the jury
during closing arguments. Indeed, while counsel did not
specifically mention the alleged prior incident of attempted
vehicular assault, he did focus several of his closing remarks on
the allegation that J.G. struck Salt first. And counsel also
characterized J.G. as a person who initiates violence, refuting
Salt’s claim that the missing factor precluded him from making
an argument about J.G.’s alleged propensity. Counsel argued to
the jury, ‚She started this by hitting him the eye, she was the
aggressor,‛ and, ‚[H]e’s got the bruise on his eye to prove *it+.‛
Counsel also told the jury, ‚If someone comes up to you and
punches you in the eye, . . . in Utah, you don’t have to run away,
you can stand your ground and defend yourself and especially
when you’re in your own home.‛ And counsel further told the
jury that Salt was reasonable in his response because ‚he’s
entitled to defend himself however he needs to make sure that
*the attack+ doesn’t get worse.‛

¶42 It is worth noting that Salt does not argue trial counsel
was somehow deficient in his arguments because he did not call

20130071-CA 20 2015 UT App 72
 State v. Salt

the jury’s attention to the incident involving J.G.’s car during
closing arguments. Salt only argues that he was prejudiced by
the missing factor in the jury instruction because its absence
prevented counsel from arguing it and the jury from considering
it. So the question of whether counsel was ineffective for failing
to include the incident in his jury arguments related to Salt’s
theory of self-defense is not before us. Instead, we need only
determine whether, as Salt contends, counsel was actually
prohibited from making such an argument had he chosen to. We
are not persuaded that the missing jury instruction prevented
counsel from presenting for the jury’s consideration any
legitimate arguments related to Salt’s theory of self-defense or
that it influenced the trial’s outcome in the way that Salt claims.
Accordingly, Salt’s ineffective assistance of counsel claim fails.

CONCLUSION

¶43 We conclude that the trial court did not err when it
denied Salt’s motions to arrest judgment or grant a new trial on
the grounds that the jury instruction on aggravated assault was
erroneous and prejudicial. We further determine the trial court
did not err when it refused to reduce his conviction. We also
conclude that the trial court did not abuse its discretion when it
refused to grant a new trial on conflicting verdicts. We also do
not find the Cohabitant Abuse Act to be unconstitutional.
Finally, we conclude that Salt did not receive ineffective
assistance of counsel. Accordingly, the trial court’s denial of
Salt’s motions for a new trial or to arrest judgment and his
conviction are affirmed.

20130071-CA 21 2015 UT App 72