(dissenting):
141 I respectfully dissent. The jury in this case concluded beyond a reasonable doubt that Johnson committed the first degree felony of murder by intentionally and *757knowingly causing the death of Decedent. The majority opinion reverses Johnson's con-viection because of a misstatement in the jury instructions that was invited by defense counsel below and was not raised as an issue by the parties on appeal. By reversing Johnson's conviction on this basis, my colleagues have, in my opinion, abandoned their adjudicative responsibilities and improperly become advocates for a party. I would address only the arguments that Johnson initially raised on appeal and, because I find those arguments to be unavailing, affirm Johnson's conviction.
T42 As originally briefed by the parties, this appeal involved just two issues. First, Johnson argued that the trial court improperly instructed the jury on the issue of causation. Johnson wanted an instruction on "intervening causes" for Decedent's death, and he argued on appeal that the trial court erred when it refused to give his requested instruction. I agree with the State that this issue was inadequately briefed. See Utah R.App. P. 24(a)(9) (enumerating requirements for argument sections of appellate briefs); see also State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (Implicitly, rule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority." (citation and internal quotation marks omitted)). Further, even if Johnson could establish error from the lack of instruction on intervening causes, he has failed to establish that he was prejudiced by the lack of such an instruction. Cf. State v. Stringham, 2001 UT App 13, ¶ 17, 17 P.3d 1153 ("Failure to give requested jury instructions constitutes reversible error only if their omission tends to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advises the jury on the law." (citation and internal quotation marks omitted)).
' 43 Second, Johnson contended that he is entitled to a new trial because the record on appeal does not include a verdict form on the lesser included offense of homicide by assault. "[Nlot every instance of a missing portion of the record necessitates reversal." State v. King, 2010 UT App 396, ¶ 56, 248 P.3d 984. Here, Johnson acknowledged that the trial court expressly stated, in a minute entry on remand, that the court remembered preparing and providing the jury with a verdict form on the lesser included offense. I would hold that the trial court's recollection that the jury received the verdict form defeats Johnson's claim that he was prejudiced by the lack of that form in the record. See id. 1154-57 (affirming the post-trial reconstruction of an entire set of missing jury instructions where trial court relied on its own memory and typical practices); see also State v. Davis, 2013 UT App 228, ¶¶ 89-95, 311 P.3d 538 (discussing record reconstruction procedures); State v. Fowers, 2011 UT App 383, ¶ 19, 265 P.3d 832 (relying, in part, on the trial court's memory of an off-the-record evidentiary ruling to evaluate an ineffective assistance of counsel claim).
44 Thus, on the issues originally raised by the parties, this appeal should result in a straightforward affirmance. However, over my objection, my colleagues decided to call for additional briefing on the ground that the court had "identified an issue that was not addressed by the parties' briefing"-a misstatement of the mens rea element in the lesser included offense instruction on homicide by assault (Instruction 24). The briefing order sought the parties' input on whether the language of Instruction 24 constitutes error and, if so, what the effect of that error should be. Almost as an afterthought, the briefing order invited the parties to discuss "as a threshold issue, the propriety of this court addressing an unpreserved and otherwise unbriefed issue in general and in light of the circumstances and the supreme court's decision in State v. Robison, 2006 UT 65, 147 P.3d 448."
145 In his supplemental brief, Johnson agrees with the briefing order's suggestion that Instruction 24 is erroneous and urges that the error warrants reversal of his conviction. Johnson argues that this result is appropriate under Robison because this is a criminal matter, failure to address the unargued issue would subject him to "great and manifest injustice," and the parties were allowed to present supplemental briefing on the issue. See 2006 UT 65, 1% 238-24 & n. 3, *758147 P.3d 448. However, Johnson's supplemental brief never specifically addresses the lack of preservation of the mens rea issue, nor does it raise a claim that his trial counsel provided him with ineffective assistance by submitting the erroneous instruction to the trial court.
(46 The State, in its supplemental brief, argues that Instruction 24 does not fall within Robison's guidelines for when an appellate court can raise issues sua sponte. The State goes on, however, to point out that Instruction 24 was proposed by defense counsel. Therefore, the State argues, our consideration of the issue is barred by the doctrine of invited error. See, e.g., State v. Binkerd, 2013 UT App 216, ¶ 21, 310 P.3d 755.
47 I agree with the State that the apparent error in Instruction 24 was invited by defense counsel below and that we are therefore precluded from considering it. "Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid a manifest injustice.14 Utah R.Crim. P. 19(e). However, "if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction, we will not review the instruction under the manifest injustice exception." State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111. Here, defense counsel affirmatively proposed Instruction 24, and we are thus precluded from reviewing it as a manifest injustice." See id.; State v. Perdue, 813 P.2d 1201, 1204-06 (Utah Ct.App.1991) ("[Thhe act of submitting an instruction to a court of law ... constitutes a representation by the attorney that he or she has read the instruction, waives any objection thereto, and endorses it as legally sound.").
48 Notwithstanding this preservation problem, the majority opinion concludes that analysis of the wording of Instruction 24 is warranted to avoid a "great and manifest injustice" as discussed in Robison.15See 2006 UT 65, 125, 147 P.3d 448. I disagree. While I certainly believe that jury instructions, and particularly criminal elements instructions, should accurately state the law, I fail to see how our refusal to consider the issue in this case would result in great or manifest injustice to Johnson.
49 As noted above, Johnson's trial counsel invited the misworded instruction by submitting it to the trial court. Johnson could have challenged his trial counsel's actions by raising an ineffective assistance of counsel claim in his supplemental briefing, but he failed to do so. Had he done so, he would have borne the high burden of demonstrating both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
1 50 I am not at all sure that the error in the wording of Instruction 24 was prejudicial to Johnson. First and foremost, the flawed instruction still preserved the jury's ability to convict Johnson on the lesser offense if it harbored concerns about the State's case on the greater offense. However, by equating the mens reas for murder and homicide by assault, it also gave the jury the option of convicting Johnson on the lesser offense even if it concluded that Johnson knowingly and intentionally killed Decedent. At the same time, Instruction 24 may have increased the likelihood of a complete acquittal by overstating the mens rea required for conviction of the lesser offense.
*75951 In light of these considerations, I am not persuaded that Johnson would have been able to establish ineffective assistance of counsel even if such a claim were properly before us. However, Johnson could still attempt to establish an ineffective assistance of counsel claim on a petition for postconviction relief, The availability of this alternate avenue for relief furthers my conviction that no manifest injustice will result if we properly decline to address the homicide by assault instruction in this direct appeal.
152 For all of these reasons, I would refrain from considering the jury instruction issue relating to the lesser included offense of homicide by assault. This issue was not preserved below, was invited by Johnson's trial counsel, and was not raised by the parties in their initial appellate briefing. The two issues that Johnson did raise on appeal are without merit. I would therefore affirm Johnson's conviction.
. I acknowledge that the issue addressed in State v. Robison, 2006 UT 65, 147 P.3d 448, was also unpreserved in the trial court, see id. 19, and that the supreme court nevertheless stated it would have been appropriate for this court to consider the issue if the failure to do so would have caused the defendant to suffer a " 'great and manifest injustice,' " id. 125. However, the unpreserved issue in Robison was not invited by defense counsel, and Robison thus does not obviate the application of the invited error doctrine to allow our consideration of the unpreserved issue in this case.
. The majority opinion also seems to import the preservation concept of "exceptional circumstances" into the Robison analysis, even though that case did not discuss exceptional circumstances as a basis for reaching unargued issues. Whatever the majority's purpose for invoking "exceptional circumstances" may be, I see nothing extraordinary about this case so as to warrant the reversal of Johnson's murder conviction on the unpreserved and unargued jury instruction issue.