plain error in Utah

2025Notably, in reciting the plain error standard, Holgate quotes a case wherein we qualified that the burden to establish prejudice rests on the appellant “[i]n general.” State v. Dunn, 850 P.2d 1201 , 1208–09 (Utah 1993), abrogated on other grounds by State v. Silva, 2019 UT 36 , 456 P.3d 718 ; see Holgate, 2000 UT 74, ¶ 13 .

2022See, e.g., State v. Verde, 770 P.2d 116, 117 , 122–23 (Utah 1989) (applying the plain error doctrine to the admission of prejudicial evidence in a case involving the sale of a child); State v. Dunn, 850 P.2d 1201 , 1208–09 (Utah 1993), (applying the plain error doctrine to jury instructions in a manslaughter and kidnapping case), abrogated on other grounds by State v. Silva, 2019 UT 36 , 456 P.3d 718 ; State v. Ross, 2007 UT 89, ¶¶ 33, 40, 53 , 174 P.3d 628 , (assessing whether plain error existed when a court failed to merge an aggravated murder charge with an attempted aggravated murder char

2025Notably, in reciting the plain error standard, Holgate quotes a case wherein we qualified that the burden to establish prejudice rests on the appellant “[i]n general.” State v. Dunn, 850 P.2d 1201 , 1208–09 (Utah 1993), abrogated on other grounds by State v. Silva, 2019 UT 36 , 456 P.3d 718 ; see Holgate, 2000 UT 74, ¶ 13 .

2025Given the affirmative obligation placed on district courts under rule 22(a), see State v. Wanosik, 2003 UT 46, ¶ 23 , 79 P.3d 937 , these errors are invariably raised under the plain error exception to preservation. ¶83 Under our test for plain error, a defendant must ordinarily show that “(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” State v. Holgate, 2000 UT 74, ¶ 13 , 10 P.3d 346 (cleaned up).

2017See State v. Irwin, 924 P.2d 5, 11 (Utah Ct. App. 1996) (“It may well be that the facts of the instant case would give rise to an ineffective assistance of counsel claim, but no such claim has been raised in this appeal.”). ¶60 Because the plain error and the ineffective assistance of counsel exceptions to the preservation rule do not apply in this case, we finally consider the exceptional circumstances exception.

2017See State v. Irwin, 924 P.2d 5, 11 (Utah Ct. App. 1996) (“It may well be that the facts of the instant case would give rise to an ineffective assistance of counsel claim, but no such claim has been raised in this appeal.”). ¶60 Because the plain error and the ineffective assistance of counsel exceptions to the preservation rule do not apply in this case, we finally consider the exceptional circumstances exception.

2021See Archuleta v. Galetka, 2011 UT 73, ¶ 40 , 267 P.3d 232 (“To establish prejudice [for an ineffective assistance of counsel claim], a defendant must present sufficient evidence to support a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (quotation simplified)); State v. Dean, 2004 UT 63, ¶ 22 , 95 P.3d 276 (“Under the plain error doctrine, a defendant must not only demonstrate that the error was obvious, but also that it was harmful or of such a magnitude that there is a reasonable likelihood of a more favorable o

2021See Archuleta v. Galetka, 2011 UT 73, ¶ 40 , 267 P.3d 232 (“To establish prejudice [for an ineffective assistance of counsel claim], a defendant must present sufficient evidence to support a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (quotation simplified)); State v. Dean, 2004 UT 63, ¶ 22 , 95 P.3d 276 (“Under the plain error doctrine, a defendant must not only demonstrate that the error was obvious, but also that it was harmful or of such a magnitude that there is a reasonable likelihood of a more favorable o

2026Although claims of ineffective assistance of counsel require “the court to look at the substantive issue the [party] argues his counsel should have raised,” that issue “is only viewed through the lens of counsel’s performance.” State v. Johnson, 2017 UT 76, ¶ 22 , 416 P.3d 443 . ¶32 In In re K.S., a parent presented the ICPC issue to the court of appeals through the plain error exception to preservation. 2022 UT App 68, ¶ 23 .

2026Although claims of ineffective assistance of counsel require “the court to look at the substantive issue the [party] argues his counsel should have raised,” that issue “is only viewed through the lens of counsel’s performance.” State v. Johnson, 2017 UT 76, ¶ 22 , 416 P.3d 443 . ¶32 In In re K.S., a parent presented the ICPC issue to the court of appeals through the plain error exception to preservation. 2022 UT App 68, ¶ 23 .

2017See State v. Brooks, 2012 UT App 34, ¶ 14 , 271 P.3d 831 ("[R]eview under the plain error doctrine is not available when counsel invites the error by affirmatively representing to the district court that there is no objection to the proceedings.”); see also State v. Buttock, 791 P.2d 155, 158 (Utah 1989) (stating that, "if a party through counsel ... has led the trial court into error, we will then decline to save that party from the error”). 6 .

2013See State v. Bullock, 791 P.2d 155, 158-59 (Utah 1989) (limiting application of the plain error rule and noting that "if a party through counsel has ... led the trial court into error, we will then decline to save that party from the error"); see also State v. Brooks, 2012 UT App 34, ¶ 14 , 271 P.3d 831 ("[Rleview under the plain error doctrine is not available when counsel invites the error by affirmatively representing to the district court that there is no objection to the proceedings.").

2006“As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances.” State v. Brown, 856 P.2d 358, 359 (Utah Ct.App.1993).

2006"As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional cireumstances." State v. Brown, 856 P.2d 358, 359 (Utah Ct.App.1998).

2022See, e.g., State v. Verde, 770 P.2d 116, 117 , 122–23 (Utah 1989) (applying the plain error doctrine to the admission of prejudicial evidence in a case involving the sale of a child); State v. Dunn, 850 P.2d 1201 , 1208–09 (Utah 1993), (applying the plain error doctrine to jury instructions in a manslaughter and kidnapping case), abrogated on other grounds by State v. Silva, 2019 UT 36 , 456 P.3d 718 ; State v. Ross, 2007 UT 89, ¶¶ 33, 40, 53 , 174 P.3d 628 , (assessing whether plain error existed when a court failed to merge an aggravated murder charge with an attempted aggravated murder char

2016“Plain error claims and ineffective assistance of counsel claims share a ‘common standard’ of prejudice.” State v. Redcap, 2014 UT App 10, ¶ 50 , 318 P.3d 1202 (quoting State v. Litherland, 2000 UT 76 , ¶ 31 n.14, 12 P.3d 92 ; State v. Verde, 770 P.2d 116 , 124 n.15 (Utah 1989)). ¶62 To succeed on a claim of ineffective assistance of counsel, a defendant must show both “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); accord State v. Nelson, 2015 UT 62, ¶

2013Evid. 103(a)(1)(B). "[T]he issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51 , 99 P.3d 801 . "[Wle will not consider an issue brought for the first time on appeal unless the trial court committed plain error or exceptional cireumstances exist." State v. Pinder, 2005 UT 15, ¶ 45 , 114 P.3d 551 (citation and internal quotation marks omitted).

2013Evid. 103(a)(1)(B). "[T]he issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51 , 99 P.3d 801 . "[Wle will not consider an issue brought for the first time on appeal unless the trial court committed plain error or exceptional cireumstances exist." State v. Pinder, 2005 UT 15, ¶ 45 , 114 P.3d 551 (citation and internal quotation marks omitted).

2018See State v. Winfield , 2006 UT 4 , ¶¶ 19, 28, 128 P.3d 1171 (concluding that pro se status "d[oes] not obviate" a party's duty of preservation). ¶38 J.M.B. seeks to avoid this conclusion on appeal by invoking the doctrine of plain error.

2018See State v. Winfield , 2006 UT 4 , ¶¶ 19, 28, 128 P.3d 1171 (concluding that pro se status "d[oes] not obviate" a party's duty of preservation). ¶38 J.M.B. seeks to avoid this conclusion on appeal by invoking the doctrine of plain error.

2015Instead, they asserted that this court should have reviewed the unpreserved instructional errors under the plain error doctrine, which requires the appellant to show that "() [aln error exists; (#i) the error should have been obvious to the trial court; and (iii) the error is harmful, ie., 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." Casey, 2003 UT 55 , ¶ 41, 82 P.3d 1106 (internal quotation marks omitted); accord Powell, 2007 UT 9, ¶ 18 , 154 P.3d 788 .

2011State v. Austin, 2007 UT 55, ¶ 8 , 165 P.3d 1191 ; see also State v. Casey, 2008 UT 55, ¶ 40 , 82 P.3d 1106 ("[In most cireamstances the term manifest injustice is synonymous with the plain error standard ...." (internal quotation marks omitted)).

2020See also State v. Hamilton, 2003 UT 22, ¶ 54 , 70 P.3d 111 (holding that appellate review is unavailable “if counsel, 20160249-CA 15 2020 UT App 18 State v. Carrick either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction”). ¶35 In this case, before presenting the jury with the instructions, the trial court asked Trial Counsel if he had “any objections to the instructions,” to which Trial Counsel responded, “No, Your Honor.” Thus, because Trial Counsel made “an affirmative representation encouraging the court to proceed without

2020See also State v. Hamilton, 2003 UT 22, ¶ 54 , 70 P.3d 111 (holding that appellate review is unavailable “if counsel, 20160249-CA 15 2020 UT App 18 State v. Carrick either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction”). ¶35 In this case, before presenting the jury with the instructions, the trial court asked Trial Counsel if he had “any objections to the instructions,” to which Trial Counsel responded, “No, Your Honor.” Thus, because Trial Counsel made “an affirmative representation encouraging the court to proceed without

2017For this reason, the Robison exception—and its analysis of exceptions to preservation—applies to unpreserved and waived issues concerning errors in jury instructions. 24 Cite as: 2017 UT 70 Opinion of the Court erroneous. 17 Because submitting an erroneous jury instruction to the court is a quintessential example of invited error, see State v. Perdue, 813 P.2d 1201, 1205 (Utah Ct. App. 1991), we decline to conduct a plain error review. ¶59 The ineffective assistance of counsel exception also does not apply because Mr. Johnson never raised it in his supplemental brief to the court of appeals.

2017For this reason, the Robison exception—and its analysis of exceptions to preservation—applies to unpreserved and waived issues concerning errors in jury instructions. 24 Cite as: 2017 UT 70 Opinion of the Court erroneous. 17 Because submitting an erroneous jury instruction to the court is a quintessential example of invited error, see State v. Perdue, 813 P.2d 1201, 1205 (Utah Ct. App. 1991), we decline to conduct a plain error review. ¶59 The ineffective assistance of counsel exception also does not apply because Mr. Johnson never raised it in his supplemental brief to the court of appeals.

2022Our Supreme Court held that under rule 103, a court may take notice of a plain error if two requirements are met: “[F]irst . . . that the error be ‘plain,’ i.e., from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error,” and “second . . . that the error affect the substantial rights of the accused, i.e., that the error be harmful.” Id.

2022Our Supreme Court held that under rule 103, a court may take notice of a plain error if two requirements are met: “[F]irst . . . that the error be ‘plain,’ i.e., from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error,” and “second . . . that the error affect the substantial rights of the accused, i.e., that the error be harmful.” Id.

2022Accordingly, we need not consider any claim that the trial court committed plain error. 20200155-CA 5 2022 UT App 19 State v. Lisenbee result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668 , 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350 ; State v. Ray, 2020 UT 12, ¶ 24 , 469 P.3d 871 .

2017A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . ¶ 8 Plain error and ineffective assistance of counsel are analytically distinct concepts: the former alleges obvious error by the court, the latter deficient performance by counsel.

2017This court will not consider an issue to which no timely and specific objection has been made "unless the trial court committed plain error or exceptional circumstances exist." State v. Nelson-Waggoner , 2004 UT 29 , ¶ 16, 94 P.3d 186 .

2017This court will not consider an issue to which no timely and specific objection has been made "unless the trial court committed plain error or exceptional circumstances exist." State v. Nelson-Waggoner , 2004 UT 29 , ¶ 16, 94 P.3d 186 .

2019Because Popp’s counsel made “an affirmative representation encouraging the court to proceed without further consideration of an issue,” Popp invited any error in the jury instructions and verdict form, and therefore the plain error exception is inapplicable here and we “need not consider [Popp’s] objection to that action on appeal.” See Moa, 2012 UT 28, ¶ 27 ; see also Geukgeuzian, 2004 UT 16, ¶ 10 (stating that a defendant invites error “where his counsel confirm[s] on the record that the defense had no objection to the instructions given by the trial court”).

2012See State v. Moa, 2012 UT 28, ¶ 4 , 282 P.3d 985 ("We hold that we do not need to address whether the court of appeals correctly evaluated [the defendant's] claim under the plain error standard because, by stipulating that his plea was taken in compliance with rule 11, [the defendant] invited the district court's error."); State v. Winfield, 2006 UT 4, ¶ 14 , 128 P.3d 1171 ("[UJnder the doctrine of invited error, we have declined to engage in even plain error review when 'counsel, either by statement or act, affirmatively represented to the [trial] court that he or she had no objection to the

2025They are instead “subject to preservation requirements,” including “a harmlessness analysis.” Id. ¶66 But Johnson did not limit the ways in which harm might be shown under the plain error test.

2023Under the plain error standard of review, a defendant “must demonstrate that (i) an error exists; (ii) the error should have been obvious to the [district] 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.” State v. Bond, 2015 UT 88, ¶ 36 , 361 P.3d 104 (cleaned up). ¶23 Second, Johnson argues that the district court erred in giving jury instructions that allowed the jury to convict based on a mens rea of recklessness.

2016See State v. Clark, 2004 UT 25, ¶ 7 , 89 P.3d 162 (concluding that trial counsel’s failure to object to testimony was not ineffective assistance because it could have been part of a reasonable strategy); State v. Morgan, 813 P.2d 1207, 1211 (Utah Ct. App. 1991) (refusing to consider the merits of appellant’s plain error argument because “it was within counsel’s professional discretion to not object to testimony that would aid [trial] strategy”).

2016See State v. Clark, 2004 UT 25, ¶ 7 , 89 P.3d 162 (concluding that trial counsel’s failure to object to testimony was not ineffective assistance because it could have been part of a reasonable strategy); State v. Morgan, 813 P.2d 1207, 1211 (Utah Ct. App. 1991) (refusing to consider the merits of appellant’s plain error argument because “it was within counsel’s professional discretion to not object to testimony that would aid [trial] strategy”).

2022See, e.g., State v. Verde, 770 P.2d 116, 117 , 122–23 (Utah 1989) (applying the plain error doctrine to the admission of prejudicial evidence in a case involving the sale of a child); State v. Dunn, 850 P.2d 1201 , 1208–09 (Utah 1993), (applying the plain error doctrine to jury instructions in a manslaughter and kidnapping case), abrogated on other grounds by State v. Silva, 2019 UT 36 , 456 P.3d 718 ; State v. Ross, 2007 UT 89, ¶¶ 33, 40, 53 , 174 P.3d 628 , (assessing whether plain error existed when a court failed to merge an aggravated murder charge with an attempted aggravated murder char

2022See, e.g., State v. Verde, 770 P.2d 116, 117 , 122–23 (Utah 1989) (applying the plain error doctrine to the admission of prejudicial evidence in a case involving the sale of a child); State v. Dunn, 850 P.2d 1201 , 1208–09 (Utah 1993), (applying the plain error doctrine to jury instructions in a manslaughter and kidnapping case), abrogated on other grounds by State v. Silva, 2019 UT 36 , 456 P.3d 718 ; State v. Ross, 2007 UT 89, ¶¶ 33, 40, 53 , 174 P.3d 628 , (assessing whether plain error existed when a court failed to merge an aggravated murder charge with an attempted aggravated murder char

2017See Thomas v. Mattena, 2017 UT App 81, ¶¶ 13-14 , 397 P.3d 856 ; see also State v. Roman, 2015 UT App 183, ¶ 9 , 356 P.3d 185 (“Thus, an error is not obvious if there is no settled appellate law to guide the trial court.” (citation and internal quotation marks omitted)); State v. Davis, 2013 UT App 228, ¶ 32 , 311 P.3d 538 (explaining that “[t]o establish that the error should have been obvious to the trial comí;, [the appellant] must show that the law governing the error was clear at the time the alleged error was made” (second alteration in original) (citation and internal quotation marks om

2017See Thomas v. Mattena, 2017 UT App 81, ¶¶ 13-14 , 397 P.3d 856 ; see also State v. Roman, 2015 UT App 183, ¶ 9 , 356 P.3d 185 (“Thus, an error is not obvious if there is no settled appellate law to guide the trial court.” (citation and internal quotation marks omitted)); State v. Davis, 2013 UT App 228, ¶ 32 , 311 P.3d 538 (explaining that “[t]o establish that the error should have been obvious to the trial comí;, [the appellant] must show that the law governing the error was clear at the time the alleged error was made” (second alteration in original) (citation and internal quotation marks om

2017Thus, we consider the legal standard applied by the district court under a plain error standard of review. 2 Id.

2017Powell , 2007 UT 9 , ¶ 21, 154 P.3d 788 ("The third element of the plain error analysis requires that the party seeking review show that the error was harmful.").

2025See, e.g., State v. Carrick, 2020 UT App 18 , ¶¶ 33–35, 38–39, 458 P.3d 1167 (declining plain error analysis because counsel invited any error, but still analyzing the merits of an ineffective assistance of counsel argument); State v. Popp, 2019 UT App 173 , ¶¶ 24–25, 453 P.3d 657 (finding the plain error exception “inapplicable” to the improper jury instruction claim, but still evaluating the issue under an ineffective assistance of counsel argument).

2025See, e.g., State v. Carrick, 2020 UT App 18 , ¶¶ 33–35, 38–39, 458 P.3d 1167 (declining plain error analysis because counsel invited any error, but still analyzing the merits of an ineffective assistance of counsel argument); State v. Popp, 2019 UT App 173 , ¶¶ 24–25, 453 P.3d 657 (finding the plain error exception “inapplicable” to the improper jury instruction claim, but still evaluating the issue under an ineffective assistance of counsel argument).

2025The focus of a plain error analysis, however, is “not whether the prosecutor made missteps but whether the trial judge committed reversible error.” State v. Hummel, 2017 UT 19, ¶ 113 , 393 P.3d 314 (emphasis added). ¶56 Although our focus is ultimately on whether the district court plainly erred, we begin by acknowledging that the prosecutor’s argument in this case was improper.

2025The focus of a plain error analysis, however, is “not whether the prosecutor made missteps but whether the trial judge committed reversible error.” State v. Hummel, 2017 UT 19, ¶ 113 , 393 P.3d 314 (emphasis added). ¶56 Although our focus is ultimately on whether the district court plainly erred, we begin by acknowledging that the prosecutor’s argument in this case was improper.

2002"Under ordinary circumstances, appellate courts will not consider an issue ... raised for the first time on appeal unless the trial court committed plain error." State v. Helmick, 2000 UT 70,¶ 8 , 9 P.3d 164 . .

2002"Under ordinary circumstances, appellate courts will not consider an issue ... raised for the first time on appeal unless the trial court committed plain error." State v. Helmick, 2000 UT 70,¶ 8 , 9 P.3d 164 . .