State v. Ellis

2020 UT App 119

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CHRISTOPHER JOHN ELLIS,
Appellant.

Opinion
No. 20180899-CA
Filed August 13, 2020

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 131902294

Alexandra S. McCallum and John West,
Attorneys for Appellant
Sean D. Reyes and Nathan H. Jack,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.

ORME, Judge:

¶1 Christopher John Ellis appeals his conviction for
aggravated robbery, arguing that the district court erred in
(1) not striking a prospective juror for cause and (2) giving a
faulty jury instruction. We affirm.
 State v. Ellis

BACKGROUND 1

¶2 In early 2013, Ellis entered a store in Salt Lake City,
pointed a gun at the clerk, and ordered him to empty the cash
register. The clerk obeyed and handed Ellis nearly $400 in cash,
including a single $100 bill.

¶3 Ellis then fled the store and jumped into a nearby car. A
family observed his escape, recorded his license plate number,
and provided it to the police. Police officers tracked that license
plate to Ellis—the car was registered in his wife’s name—and
were able to locate and arrest him later that evening. The police
found $359.50 in his front pocket, including a $100 bill, and two
handguns in his car, one of which he used in the robbery.2

¶4 The State charged Ellis in relevant part with aggravated
robbery and provided notice that it would seek an enhancement
under Utah Code section 76-3-203.8 on account of Ellis’s use of a
dangerous weapon during the commission of the robbery.
During jury selection at his second trial, 3 the district court asked
the prospective jurors whether they, their family, or close friends

1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. Given the issues raised by Ellis, we need not recite all the facts
of the robbery and Ellis’s eventual arrest because they are not
necessary to our analysis. A full account of the episode can be
found in State v. Ellis, 2018 UT 2, 417 P.3d 86.

3. Following his first trial, Ellis was convicted on all charges and
appealed. Our Supreme Court affirmed Ellis’s conviction for
possession of a firearm by a restricted person but reversed and
ordered a retrial on his aggravated robbery conviction. See id.
¶ 50.

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 State v. Ellis

had ever been victims of a crime. A prospective juror (Juror 30)
indicated that she had been a crime victim. She was brought into
the court’s chambers to discuss the matter further, away from
the other prospective jurors. She informed the court that she had
been held at gunpoint one night while working at a video store
some twelve years earlier. When Ellis’s trial counsel asked
whether she feared for her life during this incident, she
responded that she “felt more shocked than anything” and “was
more angry than anything . . . but . . . other than that [she felt]
okay about it” and did not think it would affect her ability to
judge the facts of the case. The prosecutor also asked her, “If the
allegations in this case are similar to the incident that happened
to you, do you feel like you could judge the case on the evidence
that’s presented here and put aside anything that has happened
to you in the past?” Juror 30 responded that she could.

¶5 Ellis moved to strike Juror 30 for cause, arguing that
although she had “all the right answers,” he was “just not sure
that [a robbery was] an experience that you can be the same
after.” The prosecutor objected, stating that Juror 30 was just
“shocked and angry” and that she had told the court that “[i]t
wouldn’t have any effect on her ability to be fair in this case.”
The district court agreed with the prosecutor and denied Ellis’s
motion. Ellis then used the first of his six peremptory challenges
to remove Juror 30. 4

¶6 At trial, the district court provided three instructions
relevant to this appeal. Instruction 34 informed the jury that

Count I charges the defendant with Aggravated
Robbery. He has also been charged with using a
dangerous weapon in the commission or
furtherance of the Aggravated Robbery. As you
deliberate, you must determine whether the

4. The court granted Ellis’s several other motions to strike jurors
for cause.

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 State v. Ellis

defendant is guilty or not guilty of Aggravated
Robbery. Furthermore, if you determine that the
defendant is guilty of Aggravated Robbery, you
must determine whether or not the State has
proved beyond a reasonable doubt that the
defendant used a dangerous weapon in the
commission or furtherance of the Aggravated
Robbery. The law does not require you to make
these determinations in any particular order.
However, you cannot find the defendant not guilty
of Aggravated Robbery and yet find the State has
proven beyond a reasonable doubt that the
defendant used a dangerous weapon in the
commission or furtherance of the Aggravated
Robbery. In other words, you can only find in the
Special Verdict in count I that the State has proven
beyond a reasonable doubt that the defendant used
a dangerous weapon in the commission or
furtherance of the Aggravated Robbery if you also
find the defendant guilty of that Aggravated
Robbery.

The elements of Aggravated Robbery are set forth
in Instruction No 42.

¶7 Instruction 42 stated that to find Ellis guilty of aggravated
robbery, the jury had to find beyond a reasonable doubt that
Ellis (1) “[i]ntentionally or knowingly used force or fear of
immediate force against another in the course of committing a
theft or wrongful appropriation” and (2) while committing this
act, “used or threatened to use a dangerous weapon.”
Instruction 46 further provided that if the jury “determine[d]
beyond a reasonable doubt that . . . Ellis committed Aggravated
Robbery, [it] must complete the special verdict form.” Ellis did
not object to the jury instructions.

20180899-CA 4 2020 UT App 119
 State v. Ellis

¶8 The district court then provided the jury with a verdict
form and a special verdict form. The verdict form asked whether
the jury unanimously found Ellis guilty of aggravated robbery.
The special verdict form asked whether the jury unanimously
found beyond a reasonable doubt that Ellis used a dangerous
weapon “[i]n the commission or furtherance of the Aggravated
Robbery.” The jury answered “yes” on each form, thereby
convicting Ellis of aggravated robbery, with an enhancement for
using a dangerous weapon.

¶9 Ellis appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Ellis raises two issues. First, he claims that the district
court erred when it refused to strike Juror 30 for cause. “[A] trial
court’s determination of whether to excuse a prospective juror
for cause should not be reversed absent an abuse of discretion.”
State v. Wach, 2001 UT 35, ¶ 25, 24 P.3d 948.

¶11 Second, Ellis argues that the court erred in giving
Instruction 34. Claims of error in jury instructions are ordinarily
reviewed for correctness. See State v. Weaver, 2005 UT 49, ¶ 6, 122
P.3d 566. But because Ellis did not object to the jury instructions
at trial, he has not preserved this issue, and we review it for
plain error. 5 See id.

5. Ellis also argues that the cumulative effect of the errors
warrants reversal. Under the doctrine of cumulative error “we
will reverse a jury verdict or sentence only if the cumulative
effect of the several errors undermines our confidence that a fair
trial was had.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428
P.3d 1038 (quotation simplified). Because we see no error—
actual or assumed—that harmed Ellis, much less more than one,
(continued…)

20180899-CA 5 2020 UT App 119
 State v. Ellis

ANALYSIS

I. Jury Selection

¶12 Ellis asserts that the district court abused its discretion in
denying his motion to remove Juror 30 for cause. “So long as the
jury that sits is impartial, the fact that the defendant had to use a
peremptory challenge to achieve that result does not mean the
Constitution was violated.” State v. Menzies, 889 P.2d 393, 398
(Utah 1994) (quotation simplified), superseded on other grounds by
constitutional amendment as stated in State v. Goins, 2017 UT 61, 423
P.3d 1236. Rather, “[t]o prevail on a claim of error based on the
failure to remove a juror for cause, a defendant must
demonstrate prejudice, viz., show that a member of the jury was
partial or incompetent.” Id. Even assuming that the district court
erred in denying Ellis’s motion, Ellis has not demonstrated that
he suffered prejudice from this alleged error.

¶13 On the contrary, Ellis concedes that the empaneled jurors
were not biased or incompetent, but he nonetheless asserts that
he was still prejudiced by this error “because he was forced to
use a peremptory strike to cure it.” This would ordinarily be the
end of the inquiry, given that Menzies categorically rejected this
rationale, 6 but Ellis asserts that the standard requiring him to

(…continued)
there are no errors to cumulate and the doctrine is inapplicable.
See id. ¶ 35.

6. In 1975, our Supreme Court held that a party “should not be
compelled to waste [a peremptory challenge] in order to
accomplish that which the trial judge should have done.”
Crawford v. Manning, 542 P.2d 1091, 1093 (Utah 1975), overruled
by State v. Menzies, 889 P.2d 393 (Utah 1994). In essence, under
Crawford prejudice was presumed when a defendant was forced
to use a peremptory challenge to remove a juror who should
have been removed for cause. This regime, to which Ellis would
(continued…)

20180899-CA 6 2020 UT App 119
 State v. Ellis

show that an actually biased or incompetent juror sat violates his
rights under the Uniform Operation of Laws provision of the
Utah Constitution, see Utah Const. art. 1, § 24, and “requests that
[we] allow him to show prejudice in an alternative fashion.”

¶14 Ellis raises his Uniform Operation of Laws argument for
the first time on appeal. Even assuming any error on the part of
the district court was not invited, as the State argues, and further
assuming that the State is wrong in suggesting the issue was not
sufficiently preserved to allow Ellis to make this argument on
appeal, we are not persuaded that he is entitled to a new trial
under this theory.

¶15 We have considerable doubt that the Uniform Operation
of Laws clause even applies in this case, 7 but assuming that it

(…continued)
have us return, was the law in Utah for nearly two decades. It
admittedly has a certain logic to it. But the Court explicitly and
unqualifiedly overruled Crawford in State v. Menzies, 889 P.2d 393
(Utah 1994), holding that the loss of a peremptory challenge
alone was not sufficient to prejudice a party and did not violate
the constitution; in such cases, parties are required to
demonstrate prejudice, i.e., to “show that a member of the jury
was partial or incompetent.” Id. at 398.

7. Utah's Uniform Operation of Laws clause proscribes the
practice of classifying persons and treating them differently “to
the detriment of some of those classified” when compared to
similarly situated persons. State v. Outzen, 2017 UT 30, ¶ 16, 408
P.3d 334 (quotation simplified). Thus, a statute violates the
Uniform Operation of Laws clause when it “works
a discriminatory hardship on an identifiable group of persons
who were singled out for treatment different from that to which
other identifiable groups were made subject,” State v. Drej, 2010
UT 35, ¶ 36, 233 P.3d 476 (quotation simplified), and that
disparity is “unreasonable in relation to the purpose of the
(continued…)

20180899-CA 7 2020 UT App 119
 State v. Ellis

does and that Ellis was deprived of his right to the uniform
operation of law, Ellis still would be required to show prejudice
under our normal standards. Rule 30(a) of the Utah Rules of
Criminal Procedure dictates that “[a]ny error, defect, irregularity
or variance which does not affect the substantial rights of a party
shall be disregarded.” And “our Supreme Court has held that

(…continued)
statute,” State v. Mohi, 901 P.2d 991, 998 (Utah 1995). Ellis posits
that the Menzies prejudice standard creates two classes of
defendants once a for-cause challenge is erroneously rejected by
a trial court. One class is those who choose to mitigate the error
by using a peremptory strike on the challenged juror, and the
other class consists of those who use a peremptory strike on
someone else.
As the State points out, these “classes” are not creatures of
statute or rule, and thus are not “laws of a general nature”
requiring uniform operation. See Utah Const. art. I, § 24. In other
words, Ellis’s suggested classification is not one created by law
but, rather, by a defendant’s own choice. Ellis was free to use his
peremptory strike against any other prospective juror and
thereby move into the class of defendants choosing not to
mitigate the prejudice resulting from the trial court’s allegedly
erroneous decision not to excuse Juror 30 for cause. But he
instead—and sensibly—elected to strike Juror 30, the only
remaining prospective juror he had challenged for cause, leaving
him five more peremptory strikes. Because any alleged
classification between the mitigating and nonmitigating
defendants is triggered by a defendant's own actions and not by
a rule or law of general application, we tend to agree with the
State that the Menzies rule on prejudice is neutral, both facially
and in operation, and does not appear to create classes with
discriminatory effect. While we applaud Ellis's creativity in
endeavoring to get around the once-controversial Menzies
decision on this rationale, we are, indeed, skeptical that the
Uniform Operation of Laws clause has any applicability in this
context.

20180899-CA 8 2020 UT App 119
 State v. Ellis

this ordinarily requires a defendant to show that, absent the
[error], there is a reasonable likelihood of a more favorable result
for the defendant.” State v. Ahmed, 2019 UT App 65, ¶ 17, 441
P.3d 777 (quotation simplified). In cases of constitutional error,
“an otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable
doubt.” 8 State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892
(quotation simplified).

¶16 Here, Ellis argues that he should be allowed to establish
prejudice by showing that “but for the expended peremptory
strike it is reasonably likely that the juror challenged for cause
would have sat and . . . the challenged juror would have been
actually biased had she sat.” But this is not the applicable
prejudice standard. Ellis is required to show that there would be
a “reasonable likelihood of a more favorable result for [him]” at
trial had he not been forced to use his peremptory challenge on
Juror 30. See Ahmed, 2019 UT App 65, ¶ 17 (quotation simplified).
He cannot make that showing because, as he concedes, the jury
that actually sat was not biased or incompetent. Thus, the result
at trial would have remained unchanged even if he had had an
additional peremptory challenge to use on a juror other than
Juror 30. An unbiased jury would have sat either way. And even
under the higher “harmless beyond a reasonable doubt”
standard applied to cases involving constitutional error, see
Maestas, 2012 UT 46, ¶ 56, Ellis’s argument still fails for that same
reason. Assuming the district court violated the Uniform

8. There is a small class of cases in which we presume prejudice
where there was an egregious constitutional error. See Johnson v.
United States, 520 U.S. 461, 468–69 (1997) (identifying the “very
limited class of cases” when prejudice is presumed: “a total
deprivation of the right to counsel,” “lack of an impartial trial
judge,” “unlawful exclusion of grand jurors of defendant’s race,”
“the right to self-representation at trial,” “the right to a public
trial,” and an “erroneous reasonable-doubt instruction to jury”).

20180899-CA 9 2020 UT App 119
 State v. Ellis

Operation of Laws clause when it declined to remove Juror 30
for cause, the error was harmless beyond a reasonable doubt
because, again, there is no suggestion that a biased or
incompetent juror sat on the jury. And finally, we do not
presume prejudice here because it is not one of the “very
limited” cases that merit that treatment as itemized in Johnson v.
United States, 520 U.S. 461, 468–69 (1997).

II. Jury Instructions

¶17 Ellis asserts that Instruction 34 was erroneous. Because
Ellis did not preserve this issue below, he asks us to review it for
plain error. See State v. Ringstad, 2018 UT App 66, ¶ 32, 424 P.3d
1052. “To demonstrate plain error, [Ellis] must show that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is
a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Seumanu, 2019 UT App 90, ¶ 42, 443 P.3d
1277 (quotation simplified). Here, Ellis cannot show error on the
part of the district court, let alone obvious error.

¶18 When dealing with an allegedly flawed jury instruction,
we must look at the instructions as a whole and determine
whether they “fairly instruct the jury on the law applicable to the
case,” and “the fact that one of the instructions, standing alone,
is not as accurate as it might have been does not amount to
reversible error.” State v. Kennedy, 2015 UT App 152, ¶ 24, 354
P.3d 775 (quotation simplified). “Thus, we will affirm when the
combined instructions fairly instruct the jury on the applicable
law.” Id.

¶19 Ellis asserts that the district court “plainly erred by giving
a misleading instruction that incorrectly described a situation in
which the jury could not acquit [him] of aggravated robbery.”
Specifically, Ellis takes issue with the following language in
Instruction 34:

20180899-CA 10 2020 UT App 119
 State v. Ellis

The law does not require you to make these
determinations in any particular order. However,
you cannot find the defendant not guilty of
Aggravated Robbery and yet find the State has
proven beyond a reasonable doubt that the
defendant used a dangerous weapon in the
commission or furtherance of the Aggravated
Robbery.

¶20 Ellis claims that this language “allowed the jury to find, as
a threshold matter, that a dangerous weapon was used in
furtherance of the aggravated robbery—even if they had not yet
found [him] guilty of the underlying crime.” 9 We disagree.
When read as a whole, the jury instructions correctly informed
the jury how to approach the aggravated robbery charge and the
applicable enhancement.

¶21 An aggravated robbery is completed whenever a “person
intentionally or knowingly uses force or fear of immediate force
against another in the course of committing a theft or wrongful
appropriation,” Utah Code Ann. § 76-6-301(1)(b) (LexisNexis

9. The logic of the argument is questionable given that Ellis acted
alone and the only theory of aggravation was that a dangerous
weapon was used—not that injury was inflicted or a vehicle was
taken. See Utah Code Ann. § 76-6-302(1) (LexisNexis 2017) (“A
person commits aggravated robbery if in the course of
committing robbery, he . . . uses or threatens to use a dangerous
weapon . . . ; causes serious bodily injury upon another; or . . .
takes or attempts to take an operable motor vehicle.”). How
could the jury have found him guilty of using a dangerous
weapon “in the commission or furtherance of the Aggravated
Robbery” while simultaneously finding him innocent of the
aggravated robbery?

20180899-CA 11 2020 UT App 119
 State v. Ellis

2017), 10 and “in the course of committing robbery, [the person]
uses or threatens to use a dangerous weapon . . . ; causes serious
bodily injury upon another; or . . . takes or attempts to take an
operable motor vehicle,” id. § 76-6-302(1)(a)–(c). The sentence for
the crime shall be enhanced “[i]f the trier of fact finds beyond a
reasonable doubt that a dangerous weapon was used in the
commission or furtherance of [the aggravated robbery].” Id.
§ 76-3-203.8(2). In other words, the sentence for aggravated
robbery will be enhanced if the robbery is deemed aggravated
because a dangerous weapon is used rather than because serious
bodily injury was inflicted or because a vehicle was taken.

¶22 Instruction 34 provided a roadmap to help the jury
determine the special verdict, that is, to determine whether the
enhancement would apply if the jury found Ellis guilty of
aggravated robbery. And although the language Ellis takes issue
with in Instruction 34 could have been drafted more clearly to
explain aggravated robbery and the enhancement, when looking
at the entirety of Instruction 34 and the other jury instructions, it
was not erroneous. Ellis isolates and emphasizes two sentences
to advance his argument, but Instruction 34, after the
complained-of language, specifically informed the jury, with our
emphasis, that it could only find on the special verdict form that
“the defendant used a dangerous weapon in the commission or
furtherance of the Aggravated Robbery if you also find the
defendant guilty of that Aggravated Robbery.” See supra note 9.

¶23 Instruction 34’s language informed the jury that it could
consider the question of whether Ellis used a dangerous weapon
during the commission of a felony only if it found him guilty of
the aggravated robbery. Furthermore, Instruction 46 directed the
jury that if it “determine[d] beyond a reasonable doubt that
[Ellis] committed Aggravated Robbery, [it] must complete the

10. Because the statutory provisions in effect at the relevant time
do not differ in any material way from the current code, we cite
the current code for convenience.

20180899-CA 12 2020 UT App 119
 State v. Ellis

special verdict form.” This language again reinforced to the jury
that it could move onto the enhancement question only if it first
found Ellis guilty of aggravated robbery, although in the context
of this case, the two necessarily rose and fell together. These
instructions did not lead to “a situation in which the jury could
not acquit” Ellis of aggravated robbery, as Ellis claims, because
the instructions consistently directed the jury that it could not
determine the enhancement if it acquitted Ellis of the aggravated
robbery charge. Moreover, Instruction 42 provided that to find
Ellis guilty of aggravated robbery, the jury had to find beyond a
reasonable doubt that Ellis (1) “[i]ntentionally or knowingly
used force or fear of immediate force against another in the
course of committing a theft or wrongful appropriation” and
(2) while committing this act, “used or threatened to use a
dangerous weapon.” This unmistakably informed the jury that if
it did not find that Ellis used a dangerous weapon, it could not
find him guilty of aggravated robbery.11

¶24 When read in their entirety, the “instructions fairly
instruct[ed] the jury on the applicable law.” See State v. Kennedy,
2015 UT App 152, ¶ 24, 354 P.3d 775. See also State v. Hutchings,
2012 UT 50, ¶ 25, 285 P.3d 1183 (“Jurors do not sit in solitary
isolation booths parsing instructions for subtle shades of
meaning in the same way that lawyers might.”) (quotation
simplified). Therefore, there was no error in the jury instructions,

11. Significantly, no part of Ellis’s defense strategy was that he
could be guilty of only simple robbery because he had not used a
dangerous weapon in the crime’s commission. He testified that
not only was he nowhere near the store, but he “didn’t know
[the store] existed” and was instead driving his daughter to
basketball practice and calling on a friend in another part of
town at the time of the robbery. He offered no explanation for
how his car would have been observed leaving the scene of the
crime while he was driving it several miles distant from the store
while running innocent errands.

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 State v. Ellis

let alone an error so obvious that the district court should have
rectified it without Ellis calling the court’s attention to the error.

CONCLUSION

¶25 Ellis’s argument that he was prejudiced by the district
court’s denial of his motion to strike Juror 30 for cause is
unavailing because he cannot show that the jury that sat
included a biased or incompetent juror. And we reject Ellis’s
claim that Instruction 34 incorrectly informed the jury on the
applicable law because the instructions, when taken as a whole,
correctly stated the law.

¶26 Affirmed.

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