State v. Dozah

2016 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MAX EDWARD DOZAH,
Appellant.

Opinion
No. 20130771-CA
Filed January 22, 2016

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111900666

Lori J. Seppi, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE JOHN A. PEARCE concurred.1 JUDGE J. FREDERIC
VOROS JR. concurred, except as to Part II, in which he concurred
in the result, with opinion.

CHRISTIANSEN, Judge:

¶1 Defendant Max Edward Dozah appeals from his
convictions for aggravated kidnapping and aggravated assault,
arguing that the district court erred by denying his requested
compulsion instruction and in responding to a question from the

1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
 State v. Dozah

jury during deliberation without consulting counsel. We reverse
the district court’s ruling denying Defendant’s motion for a new
trial, vacate his convictions, and remand the case for further
proceedings consistent with this opinion.

BACKGROUND

¶2 On appeal from a jury verdict, we view the evidence and
all reasonable inferences in the light most favorable to that
verdict and recite the facts accordingly. State v. Clark, 2014 UT
App 56, ¶ 2, 322 P.3d 761. We include conflicting evidence as
relevant and necessary to understand the issues on appeal. See
State v. Losee, 2012 UT App 213, ¶ 2 n.2, 283 P.3d 1055.

¶3 The central witness, Kelly, was both a user and seller of
methamphetamine. As of January 2011, he owed $400 to his
supplier. To clear the debt, Kelly agreed to go with the supplier’s
boyfriend, Chris, and another man to conduct a drug transaction
at another person’s house. When the three arrived at the house,
they met a fourth man, David. David knocked Kelly
unconscious. When he awoke, Kelly found himself tied to a
chair. The trio of assailants assaulted Kelly and threatened him
by telling him he ‚was done‛ and ‚wasn’t going to make it
through the night.‛ At some point, Chris and the unnamed man
left. While they were gone, ‚all sorts of people‛ ‚paraded‛
through the house, including David’s sister, who sprayed bleach
in Kelly’s eyes.

¶4 Defendant then arrived with Chris. Kelly testified that
Defendant ‚said it looks like you pissed the wrong people off.‛
Defendant also repeated that Kelly ‚was done‛ and ‚wasn’t
going to make it through the night.‛ Defendant did not
physically assault Kelly and was not present when others
assaulted Kelly.

¶5 Defendant conveyed a message from the drug supplier
that Kelly would ‚have to die or be gone.‛ Chris and Defendant
discussed putting Kelly on a bus and asked him where he would

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like to go. Kelly responded that he wanted to go to Elko,
Nevada. The men then untied Kelly and escorted him to the
backseat of the supplier’s car. Defendant drove the car, with
Chris in the front passenger seat.

¶6 Kelly testified that, during the drive, Defendant told him
that he was ‚going to die for messing with [the supplier].‛
Defendant said he had a lead pipe and was going to ‚bust‛
Kelly’s kneecaps and leave him ‚for dead.‛ After driving up
Parley’s Canyon and turning off onto a side road, they
encountered a road closure due to snow. Defendant yelled at
Chris that they had chosen the wrong road; Chris replied, ‚This
is fine . . . just do it.‛ Defendant took Kelly out of the car and
yelled that he was going to kill Kelly. Chris held a piece of pipe
out of the car window but Defendant never took it. Defendant
got back in the car and drove off.2 Left in a remote location in
below-freezing weather, wearing only a t-shirt, pants, and shoes,
Kelly managed to walk down to an open road where he was
eventually rescued. The responding officer noted that Kelly’s
face was injured and swollen and that Kelly looked like he had
been beaten up. The officer also noted that the temperature was
twenty degrees Fahrenheit.

¶7 At trial, Defendant argued that he had not been the
instigator of the crimes against Kelly. He testified that the
supplier had asked him to go to the house because she ‚was
scared that something was going to happen.‛ When he arrived,
he saw that Kelly had been beaten up and was tied to a chair.
Defendant admitted that he ‚should have turned around and
walked away‛ but did not. He testified, ‚I didn’t know what was
going to happen. I didn’t know if they were going to pull a gun
on me. I didn’t know if I was the next one in the chair, I didn’t
know what to do.‛ Defendant further testified that he then
‚inserted‛ himself into the discussions regarding what to do

2. Kelly thought Defendant might have been scared off by the
sound of snowmobiles.

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with Kelly because he ‚didn’t want *Kelly+ to get beat up any
more‛ and ‚didn’t want to get beat up‛ himself. Defendant
stated that when he first suggested untying Kelly, Chris
threatened Defendant with being ‚the next one in the chair.‛

¶8 According to Defendant, Kelly stated that if they bought
him a bus ticket to Elko, they would never see him again.
Defendant volunteered to drive Kelly to the bus station and to
buy Kelly’s ticket. Chris eventually agreed to this plan, provided
he could go along. However, when they started driving, Kelly
asked Defendant and Chris to take him to a friend’s house
instead.3 Defendant testified that Kelly directed them to the
closed road and got out of the car on his own. Defendant stated
that he was not worried about Kelly, because Kelly ‚was close
enough to the freeway that he could get home.‛

¶9 Before trial, Defendant asked that the jury be instructed as
to the affirmative defense of compulsion. However, after the
defense rested, the district court declined to so instruct the jury
because the court did not see a basis for the instruction in the
evidence:

I frankly don’t see any evidence, not
even . . . twisting it in any imaginable way as
you’ve suggested the jury could that would
suggest that [Defendant] was compelled to do
anything. The State’s witnesses have said he was a
willing participant, at least [Kelly] has and
*Defendant+ said I didn’t do anything, I was
nothing more than a bystander, in fact more than a
bystander, I was a good Samaritan, I was trying to
rescue [Kelly] . . . . I can’t even see in any way that
the jury could say that [Defendant] was a part of
this. Yes. He was participating in all of this. Yes.

3. Defendant did not testify as to Chris’s reaction to this change
of plans.

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 State v. Dozah

And when he was told not to untie [Kelly] that
somehow could be . . . read as that he was being
coerced into participating in the aggravated
kidnaping, the aggravated robbery and aggravated
assault. I just frankly don’t see it. It’s just too much
of a leap. So I won’t give that instruction.

As a result of the district court’s ruling on his compulsion
instruction request, Defendant did not detail a compulsion
defense in his closing argument.

¶10 After the jury began deliberating, it sent a note to the
court. The note asked for the definition of aggravated assault
and asked whether leaving Kelly on the closed road constituted
aggravated assault. The district court did not alert counsel to the
jury’s question and instead sent a written response back to the
jury. The court’s response told the jury to look to the jury
instructions for a definition of aggravated assault. The response
also explained, ‚The other question, must be decided without
my help. It is for the jury to decide.‛ Upon learning of the jury’s
question and the district court’s response after the jury returned
a verdict, Defendant’s counsel objected and filed a motion for a
new trial. After oral argument on that motion, the district court
denied Defendant’s motion for a new trial.

¶11 The jury convicted Defendant of aggravated kidnapping
and aggravated assault. Defendant timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶12 Defendant first contends that the district court erred by
refusing to instruct the jury on compulsion. We review a district
court’s refusal to give a requested jury instruction for
correctness. State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d 1116.

¶13 Defendant next contends that the district court erred by
giving an incorrect supplemental instruction. Whether a given
jury instruction correctly states the law is reviewable under a

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correction of error standard, with no particular deference given
to the district court’s ruling. State v. Archuleta, 850 P.2d 1232,
1244 (Utah 1993); State v. Lee, 2014 UT App 4, ¶ 7, 318 P.3d 1164.

¶14 Defendant also contends that the district court erred in
denying his motion for a new trial, because the district court
violated his right to be present, right to due process, and right to
the assistance of counsel when the court provided a
supplemental instruction to the jury without consulting
Defendant’s counsel. ‚We will not reverse a trial court’s denial of
a motion for a new trial absent a clear abuse of discretion.‛ State
v. Maestas, 2012 UT 46, ¶ 103, 299 P.3d 892. But we ‚review the
legal standards applied by the trial court in denying such a
motion for correctness and review the trial court’s factual
findings for clear error.‛ Id. (citation and internal quotation
marks omitted).

ANALYSIS

I. Compulsion Instruction

¶15 Defendant contends that he was entitled to have the jury
instructed as to compulsion and that the district court therefore
erred by refusing to give such an instruction to the jury.

¶16 Compulsion is an affirmative defense. Utah Code Ann.
§§ 76-2-302, -308 (LexisNexis 2012). ‚When a criminal defendant
requests a jury instruction regarding a particular affirmative
defense, the court is obligated to give the instruction if evidence
has been presented—either by the prosecution or by the
defendant—that provides any reasonable basis upon which a
jury could conclude that the affirmative defense applies to the
defendant.‛ State v. Low, 2008 UT 58, ¶ 25, 192 P.3d 867.
‚However, a court need not instruct the jury on the requested
affirmative defense where the evidence is so slight as to be
incapable of raising a reasonable doubt in the jury’s mind as to
whether the defendant acted in accordance with that affirmative
defense.‛ State v. Burke, 2011 UT App 168, ¶ 81, 256 P.3d 1102

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(brackets, ellipsis, citation, and internal quotation marks
omitted). And ‚when a defendant presents no evidence relating
to an affirmative defense, a court may not instruct the jury on
that affirmative defense.‛ Low, 2008 UT 58, ¶ 28. Consequently,
in order to prove that he was entitled to a compulsion defense
instruction, Defendant must demonstrate that some evidence
was put before the jury to show that he was compelled to engage
in the criminal acts with which he was charged.

¶17 Utah Code section 76-2-302 explains when the defense of
compulsion is available:

(1) A person is not guilty of an offense when he
engaged in the proscribed conduct because he was
coerced to do so by the use or threatened imminent
use of unlawful physical force upon him or a third
person, which force or threatened force a person of
reasonable firmness in his situation would not
have resisted.

(2) The defense of compulsion provided by this
section shall be unavailable to a person who
intentionally, knowingly, or recklessly places
himself in a situation in which it is probable that he
will be subjected to duress.

Utah Code Ann. § 76-2-302(1), (2). To assert the affirmative
defense of compulsion, ‚the defendant [must have been] faced
with a specific, imminent threat of death or serious bodily
injury‛ to himself or a third person and the defendant must have
had ‚no reasonable legal alternative to violating the law.‛ State
v. Ott, 763 P.2d 810, 812 (Utah Ct. App. 1988) (citing State v.
Tuttle, 730 P.2d 630, 634–35 (Utah 1986)).

¶18 Defendant first argues that the specific imminent threat
he faced was contained in Chris’s statement made to Defendant
that Defendant ‚could be the next one in the chair‛ if he untied
Kelly. The State notes that Defendant’s testimony regarding

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whether this statement scared him was ambivalent: ‚I don’t
know if I was actually afraid. I was—for lack of a better word,
weary[4] I guess.‛ Defendant then clarified that he considered
Chris’s statement ‚credible.‛ The State also notes that the
statement was intended to prevent Defendant from intervening
in the assault on Kelly, not to compel him to participate in the
crime. We agree with the State. Chris’s statement to Defendant
threatened him with harm if he performed a specified action—
untying Kelly. Chris did not threaten to harm Defendant if he
refused to perform criminal acts. Accordingly, it cannot be the
basis of an affirmative defense for committing those acts.

¶19 Defendant also claims that he ‚inserted‛ himself into the
conversation between Chris and David and ‚intervened‛ due to
the death threats against Kelly. Defendant claims that he was
compelled to act as he did because he feared that if he did not do
so, Kelly would be killed or more seriously injured. The State
responds that none of the threats made against Kelly were
contingent on Defendant’s failure to participate. However, we
read Defendant’s argument to apply to the totality of the
situation; in other words, that Defendant believed physical harm
was going to befall Kelly imminently unless Defendant did
something to mitigate or prevent it. Nevertheless, we are
unconvinced that a mitigation defense—i.e., that Defendant’s
assault of Kelly was necessary to forestall the other assailants
from killing or battering Kelly—constitutes a compulsion
defense. Compulsion, by the terms of the statute, occurs only
when the actor ‚was coerced‛ to perform the criminal act. See
Utah Code Ann. § 76-2-302(1); see also State v. Maama, 2015 UT
App 234, ¶ 15, 359 P.3d 1266 (holding that a robbery defendant
was not entitled to a compulsion instruction in the absence of a
claim that he or the victim was ‚the target of a specific threat
forcing *the defendant+ to participate in the robbery‛). We are

4. It seems likely that ‚weary‛ was a transcriber’s error. We
suspect that Defendant’s testimony was that he was ‚wary‛ and
treat it accordingly.

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 State v. Dozah

unaware of any case holding that the legal doctrine of
compulsion applies when the defendant acted not at the behest
of a third party but instead affirmatively chose to harm a victim
in order to prevent a third party from inflicting some greater
harm.5

¶20 Defendant has not demonstrated error in the district
court’s determination that he was not entitled to have the jury
instructed as to compulsion, because his theories of the case did
not involve compulsion as defined by statute. We therefore
conclude that the district court did not err by refusing to instruct
the jury as to compulsion.

II. The District Court’s Response to the Jury’s Questions

¶21 Defendant next contends that the district court’s response
to a question from the jury ‚left the jury with an incorrect
understanding of the law that may have misled the jury into
convicting based on conduct that did not satisfy the elements of
the charged offenses.‛ Defendant also contends that the district
court ‚erred by providing a supplemental instruction without
first informing the defense and without [Defendant] or defense
counsel present.‛ He argues that the district court ‚answered the
jury’s ‘substantive’ question . . . ex parte‛ and that doing so
amounted to improper contact with the jury. Defendant further
argues that the court’s response violated his due process right to
be present as guaranteed by the Sixth Amendment to the United
States Constitution. We address the challenge to the legal
substance and the challenge to the procedure of the response
together.

¶22 ‚‘*A+ defendant is guaranteed the right to be present at
any stage of the criminal proceeding that is critical to its outcome

5. Defendant’s theory of the case appears to more closely
resemble a defense-of-others or absence-of-criminal-intent
argument than a defense of compulsion as defined by Utah Code
section 76-2-302.

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 State v. Dozah

if his presence would contribute to the fairness of the
procedure.’‛ State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892
(quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). ‚But ‘this
privilege of presence is not guaranteed when presence would be
useless, or the benefit but a shadow.’‛ Id. (quoting Stincer, 482
U.S. at 745).

¶23 The court’s initial instructions told the jury that, to convict
Defendant of aggravated assault, it had to find beyond a
reasonable doubt:

1. That [Defendant], as a party to the offense;
a. Intentionally or knowingly, solicited,
requested, commanded, or encouraged
[Chris] to; OR intentionally aided [Chris] to:
i(a). Attempt, with unlawful force or
violence, to do bodily injury to
[Kelly]; or
i(b). Threaten to do bodily injury to
[Kelly], accompanied by a show of
immediate force or violence; and
ii. Use a dangerous weapon; and

2. The [Defendant],
a. Intended that [Chris] commit the crime of
Aggravated Assault; or
b. Was aware that his conduct was
reasonably certain to result in [Chris]
committing the crime of Aggravated
Assault.

(Emphases in original.)

¶24 During deliberation, the jury sent a note to the court,
seeking clarification of two topics:

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 State v. Dozah

Define => Aggravated Assault?
Question: If leaving Kelly in the canyon does that =
‚Aggravated Assault‛?

The district court, without consulting Defendant’s counsel or the
State, responded in writing that ‚*t+he elements for the crime of
aggravated assault are given in the instructions. The other
question, must be decided without my help. It is for the jury to
decide.‛

¶25 The Utah Rules of Criminal Procedure specify how a
district court is to react to notes from the jury. The court may
‚direct that the jury be brought before the court where, in the
presence of the defendant and both counsel, the court shall
respond to the inquiry or advise the jury that no further
instructions shall be given.‛ Utah R. Crim. P. 17(n).
Alternatively, the court ‚may in its discretion respond to the
inquiry in writing without having the jury brought before the
court.‛ Id. Thus, the court is not required to consult counsel
before responding to a jury’s note.

¶26 Nevertheless, the court’s discretion in responding to a
jury’s question is not unlimited. The court should not, for
example, issue new substantive instructions absent counsel’s
input. See id. (providing that a court must inform and consult
counsel before instructing the jury); see also State v. Thomas, 777
P.2d 445, 448 (Utah 1989) (holding that a court’s response, given
without consulting counsel, was not improper, because it ‚did
not instruct as to the law but merely directed and encouraged
the jurors to continue deliberations‛); State v. Kessler, 49 P. 293,
295 (Utah 1897) (holding that it was not error for the court to
give a substantive new instruction to the jury after deliberations
began where the instruction was given in court, with the
defendant and his counsel present). This is especially true when
the mid-deliberation supplemental instruction contradicts, or
could reasonably be construed to contradict, the initial
instructions arrived at in consultation with counsel and given to
the jury before deliberation. See United States v. Mondestin, 535 F.

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 State v. Dozah

App’x 819, 823–24 (11th Cir. 2013) (per curiam) (vacating
convictions after noting ‚several problems that arise when a
court fundamentally changes [a] jury instruction in response to a
question raised during deliberations‛); State v. Porter, 705 P.2d
1174, 1177 (Utah 1985) (holding that a supplemental instruction
did not amount to reversible error when it merely clarified a
point of law on which the jury had already been instructed).

¶27 Defendant claims that the district court’s written response
constituted a supplemental instruction which erroneously stated
the law. He argues that ‚‘leaving Kelly in the canyon’ could not,
as a matter of law, constitute aggravated assault because it did
not involve use of a dangerous weapon or an attempt with
unlawful force or violence to do bodily injury or a threat to do
bodily injury accompanied by a show of immediate force or
violence.‛6 The State concedes that abandoning Kelly could not

6. Defendant argues that ‚the scenario did not involve use of a
dangerous weapon‛ because cold weather does not fall within
the category of dangerous weapons. But he does not address the
evidence of the pipe and pipe-related threats. For example, the
jury heard testimony that Defendant and Chris had driven Kelly
to a remote and freezing location, that Defendant had taken
measures to prevent Kelly from escaping during the drive, that
Defendant had threatened to ‚bust‛ Kelly’s kneecaps and leave
him ‚for dead,‛ that Defendant took Kelly out of the car, and
that Chris had held a two- or three-foot metal pipe out to
Defendant after telling Defendant to ‚just do it.‛
Defendant also argues that the scenario presented to the
jury did not involve an attempt or threat to commit bodily injury
because ‚*t+here was no evidence that Chris or *Defendant+
attempted or threatened to do bodily injury by leaving Kelly in
the canyon. Nor was there any evidence that 15 to 20 degree
weather could do bodily injury.‛ But Defendant does not explain
whether wintry weather’s effect on a jacketless person could be
understood by the jury without expert testimony. We note that
(continued<)

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 State v. Dozah

legally amount to aggravated assault by itself. However, the
State argues that the jury’s note asked not whether that act alone
was enough but whether it could be sufficient in light of the
alleged attendant circumstances and threats.

¶28 It does not appear that the district court intended to
respond substantively to the jury’s question. Rather, the court
sought to refer the jury back to the instructions because the
jury’s second question ‚must be decided without my help.‛
However, it is not the court’s intention that controls the
propriety of a supplemental instruction, but its resulting effect
upon the jury. See Mondestin, 535 F. App’x at 824 (explaining that
a contradictory supplemental instruction is improper because,
inter alia, ‚it has the potential to confuse the jurors, leaving them
uncertain of which standard to apply‛); see also United States v.
Robinson, 86 Fed. App’x 820, 823 (6th Cir. 2003) (considering
whether a supplemental instruction caused the jury to be
confused or misled).

¶29 It is a plausible reading of the note that the jury intended
to ask whether leaving Kelly in the canyon was sufficient on its
own to constitute aggravated assault. If that was indeed the
jury’s question, the court’s response that ‚*i+t is for the jury to
decide‛ could reasonably have been interpreted by the jury as a
supplemental instruction that contradicted the court’s initial
instruction explaining the elements the jury needed to find
before it could convict Defendant of aggravated assault. Such a
contradiction could have confused the jurors. See Mondestin, 535
F. App’x at 824. Moreover, reading the response in this manner
would have resulted in a misstatement of the law.

¶30 When it appears from a jury’s question that the jury is
headed toward basing its decision on an improper

(