Pleasant Grove City v. Terry , 2020 UT 69 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 69
IN THE
SUPREME COURT OF THE STATE OF UTAH
PLEASANT GROVE CITY,
Appellee,
v.
KEITH TERRY,
Appellant.
No. 20160092
Heard October 11, 2018
Filed October 29, 2020
On Certification from the Utah Court of Appeals
Fourth District, Provo
The Honorable Thomas Low
Case No. 141101126
Attorneys:
Christine M. Petersen, Summer D. Shelton, Michael J. Scott, Pleasant
Grove, for appellee
Richard A. Roberts, Sean M. Petersen, Jacob S. Gunter, Provo,
for appellant
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined.
JUSTICE PETERSEN authored a dissenting opinion in which
ASSOCIATE CHIEF JUSTICE LEE joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Our deference to the jury‘s decision-making does not extend
to verdicts that are legally impossible. This case presents such a
situation. Keith Terry‘s conviction on the offense of domestic violence
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in the presence of a child—a legal impossibility given his acquittal on
the offense predicating it, domestic violence assault—is anathema to
the laws of an enlightened, civilized society. We accordingly use our
constitutionally granted supervisory authority to invalidate legally
impossible verdicts, such as the one the jury reached here, and vacate
Terry‘s conviction.
BACKGROUND
¶2 Terry was picking up his children from school one afternoon
in his Jeep. After his son got in the passenger seat, and while he
waited for his daughter, Terry‘s ex-wife confronted him and argued
that it was not his turn to pick up the children. The two quarreled,
and at some point, Terry‘s ex-wife approached the passenger side of
the Jeep. She claimed it was to hug her son through the Jeep‘s open
window and calm him down because the child had been upset by the
couple‘s fighting. Then, according to her, Terry punched her in the
mouth. Terry, on the other hand, claimed that his ex-wife opened the
passenger-side door, and all he did was put his arms around his son
to keep him in the Jeep. Terry denied ever striking his ex-wife and
said that it was she who started hitting him on his hands and arms.
¶3 Following this altercation, Terry‘s ex-wife began to shout
repeatedly, ―He hit me!‖ and backed away from the vehicle. At that
point, Terry saw an unknown man running toward him, so he started
driving. The man, whom Terry later discovered to be his ex-wife‘s
boyfriend, chased Terry‘s Jeep and eventually jumped into it through
the open passenger-side window. Terry drove several blocks
erratically in an attempt to shake the man off the vehicle.
Unsuccessful, Terry called the police and drove the vehicle to a
nearby police station, all while the man was hanging halfway out the
passenger-side window.
¶4 Relevant here, Pleasant Grove City charged Terry with one
count of domestic violence assault and one count of commission of
domestic violence in the presence of a child. After trial, the jury
initially deadlocked, but reached a verdict after the judge had them
further deliberate. The jury convicted Terry on the offense of
commission of domestic violence in the presence of a child, but
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acquitted him of the offense that predicated the conviction, domestic
violence assault.1
¶5 The trial judge was baffled by this outcome. He explained to
the parties that although he had never had to deal with such a
situation, he believed that ―if [the jury] had reasonable doubt as to
[domestic violence assault, the predicate offense], then there [had] to
be reasonable doubt as to [domestic violence in the presence of a
child, the compound offense].‖ After further research (during a short
recess), however, the trial judge was ―surprised‖ to find that there
was no case supporting his intuition and accordingly did not
intervene in the verdict. Following the trial court‘s conclusion and
before sentencing, Terry filed a motion to arrest judgment and to
strike the inconsistent jury verdict, which had acquitted him on the
predicate offense of domestic violence assault, but convicted him of
the compound offense of domestic violence in the presence of a child.
The trial court denied the motion and sentenced Terry.
¶6 Terry timely appealed the judgment and the trial court‘s
order denying his motion. The court of appeals certified the case to
this court, explaining that it ―presents an important first impression
question in the context of predicate and compound offenses.‖ We
exercise jurisdiction under Utah Code section 78A-3-102(3)(b).
STANDARD OF REVIEW
¶7 This is the first time we have ever addressed the appropriate
standard of review for a legally impossible verdict. We hold that this
is a question of law, which we review for correctness. State v. Newton,
2020 UT 24, ¶ 16, 466 P.3d 135.
¶8 This court has never set out the standard of review for
legally impossible verdicts. We have, however, articulated a standard
of review for ―inconsistent verdicts.‖ State v. Stewart, 729 P.2d 610,
613 (Utah 1986) (per curiam) (holding that appellate courts review
inconsistent verdicts only for ―insufficient evidence to support the
guilty verdict‖). But ―the term ‗inconsistent verdicts‘ is often used in
an imprecise manner and may include a wide variety of related, but
nonetheless distinct, problems.‖ State v. Halstead, 791 N.W.2d 805, 807
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1 The City also charged Terry with one count of reckless
endangerment and one count of reckless driving. The jury convicted
Terry of these charges, and Terry has not appealed these convictions.
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(Iowa 2010); see also State v. Stewart (Md. Stewart), 211 A.3d 371, 375
n.1 (Md. 2019) (McDonald, J., concurring) (identifying several
―categories of inconsistent verdicts‖). Indeed, the term ―inconsistent
verdicts‖ encompasses at least two different types of verdicts:
factually inconsistent verdicts and legally impossible verdicts
(sometimes known as legally inconsistent verdicts). Stewart dealt
with factually inconsistent verdicts and does not control the question
of the standard of review here because here we have a legally
impossible verdict.2 And legally impossible verdicts should be
treated differently than factually inconsistent verdicts for two
reasons.
¶9 First, with factually inconsistent verdicts, because the
question is centered on the evaluation of evidence, it may make sense
not to overturn a jury‘s verdict ―unless reasonable minds could not
rationally have arrived at a verdict of guilty beyond a reasonable
doubt based on the law and on the evidence presented.‖ State v.
Gibson, 2016 UT App 15, ¶ 16, 366 P.3d 876 (citation omitted). Stewart
presents a classic example. There, multiple defendants were tried
together for a stabbing death; some were acquitted, and some,
including Stewart, were convicted. 729 P.2d at 611. As we explain in
more detail below, see infra ¶¶ 39–40, we held that there was an
evidentiary basis to conclude ―that the jury believed those portions of
the evidence . . . unfavorable to [Stewart] and the evidence favorable
to [the] other defendants.‖ Id. at 614. Indeed, ―testimony showed that
Stewart carried the only knife capable of causing the fatal stab
wound.‖ Id. at 612. But with legally impossible verdicts in which a
defendant is acquitted on the predicate offense but convicted on the
compound offense, this calculation is self-solving: reasonable minds
cannot rationally arrive at a guilty verdict for a compound offense
when the acquittal on the predicate offense negates a necessary
element of such conviction. And unlike with factually inconsistent
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2 The dissent agrees that ―our decision in Stewart does not
control‖ but argues that it merely ―present[s] us with different
considerations‖ than the present case. Infra ¶ 65. Below we explain in
some length why the difference between factually inconsistent
verdicts like in Stewart and legally impossible verdicts like in Terry‘s
case are more than just ―different considerations.‖ See infra ¶¶ 36–37,
42–46. For those reasons, and the reasons we elaborate on below here,
infra ¶¶ 9–11, there are no relevant similarities in our standard of
review of these verdicts.
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verdicts, a ―reviewing court, distanced from a jury, is equipped to
evaluate independently the legal elements of charged crimes and
make a determination as to whether the verdicts are compatible with
these elements.‖ McNeal v. State, 44 A.3d 982, 993 (Md. 2012).
¶10 Second, one of the reasons we review factually inconsistent
verdicts only for sufficiency of evidence is that the defendant
―receives ‗the benefit of . . . acquittal on the counts on which [the
defendant] was acquitted‘ and ‗accept[s] the burden of conviction on
the count[] on which the jury convicted.‘‖ United States v. Petit Frere,
334 F. App‘x 231, 238 (11th Cir. 2009) (third and fourth alterations in
original) (quoting United States v. Powell, 469 U.S. 57, 69 (1984)). This
premise makes no sense when it comes to legally impossible verdicts
in which a defendant is acquitted on the predicate offense but
convicted on the compound offense. It would require an appellate
court to pretend that the same jury, looking at the same evidence,
acquitted the defendant of the predicate offense standing alone, but
simultaneously found the defendant guilty of the predicate offense as
part of the compound offense—essentially asking an appellate court
to conclude that ―the same . . . element or elements of each crime
were found both to exist and not to exist.‖ Price v. State, 949 A.2d 619,
636 (Md. 2008) (Harrell, J., concurring); see also McNeal, 44 A.3d at 984
(adopting Justice Harrell‘s concurrence in Price). We do not engage in
such theatrics.
¶11 For these reasons, we do not apply Stewart‘s
sufficiency-of-the-evidence standard to legally impossible verdicts in
which a defendant is acquitted on the predicate offense but convicted
on the compound offense. Unlike with factually inconsistent verdicts,
these legally impossible verdicts involve a question of law—―the
consequence of a jury verdict that convicts the defendant of a
compound [offense] yet acquits the defendant on the only predicate
[offense] in the case as instructed by the court.‖ Halstead, 791 N.W.2d
at 807 (footnote omitted); see also Brown v. State, 959 So. 2d 218, 220
(Fla. 2007) (―An inconsistent verdicts claim presents a pure question
of law‖); Givens v. State, 144 A.3d 717, 725 (Md. 2016) (―An appellate
court reviews without deference a trial court‘s ruling on a motion to
strike a guilty verdict that is allegedly inconsistent with a not-guilty
verdict,‖ because it presents ―a question of law.‖ (citation omitted)).
We review questions of law for correctness. See Newton, 2020 UT 24,
¶ 16.
ANALYSIS
¶12 Terry argues that his acquittal of the domestic-violence-
assault offense precludes his conviction of the offense of domestic
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violence in the presence of a child. We agree. His acquittal on one
count makes his conviction on the other legally impossible. Both
outcomes turn on the same offense—domestic violence assault—and
the jury‘s different answers are irreconcilable as a matter of law. In
Part I, we confront the issue of legally impossible verdicts and
determine that they cannot stand. Then, in Part II, using our
constitutionally granted supervisory authority, we formulate a rule
requiring vacatur of legally impossible verdicts like Terry‘s.
I. THE PROBLEM OF LEGALLY IMPOSSIBLE VERDICTS
¶13 Legally impossible verdicts are verdicts that are inconsistent
―as a matter of law because it is impossible‖ to reconcile the different
determinations that the jury would have had make to render them.
State v. Halstead, 791 N.W.2d 805, 807 (Iowa 2010). We begin with
explaining why the jury verdict here is legally impossible. Then we
show that legally impossible verdicts like Terry‘s cannot stand as a
matter of law because they are ―not merely inconsistent with justice,
but [are] repugnant to it.‖ People v. Tucker, 431 N.E.2d 617, 619 (N.Y.
1981). Next, we tackle the contrary position—which holds that legally
impossible verdicts are valid—and explain why we are not swayed
by it. Finally, we explain why our case law about factually
inconsistent verdicts does not control legally impossible verdicts.
A. Terry’s Verdict Is Legally Impossible
¶14 The City charged Terry with the offense of domestic violence
assault, UTAH CODE § 76-5-102(1)(c) (2003),3 and the offense of
commission of domestic violence in the presence of a child, UTAH
CODE § 76-5-109.1(2)(c). These two offenses are related because the
latter offense is predicated on the commission of the former. Defining
the latter offense, Utah Code section 76-5-109.1(1)(b) states that
―‘[d]omestic violence‘ has the same meaning as in Section 77-36-1.‖
Utah Code section 77-36-1(4), in turn, defines ―[d]omestic violence‖
to ―include commission‖ of ―assault, as described in Section 76-5-
102,‖ ―when committed by one cohabitant against another.‖ Thus,
the offense of commission of domestic violence in the presence of a
child is a compound offense that is predicated on the commission of
domestic violence assault. A ―compound offense‖ is an ―offense
composed of one or more separate offenses. For example, robbery is a
compound offense composed of larceny and assault.‖ Compound
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3 The statute was amended in 2015, after Terry‘s charging, and
section (1)(c) became (1)(b).
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Offense, BLACK‘S LAW DICTIONARY (11th ed. 2019). And a ―predicate
offense,‖ also known as a ―lesser included offense,‖ is a ―crime that is
composed of some, but not all, of the elements of a more serious
crime and that is necessarily committed in carrying out the greater
crime.‖ Lesser Included Offense, BLACK‘S LAW DICTIONARY (11th ed.
2019); Id., Predicate Offense. 4
¶15 ―[I]t is impossible to convict a defendant of the compound
[offense] without also convicting the defendant of the predicate
offense.‖ Halstead, 791 N.W.2d at 807 (footnote omitted); see also Md.
Stewart, 211 A.3d 371, 384 (Md. 2019) (Opinion by Watts, J.
(commanding majority for its analysis)) (―[A] guilty verdict and a
not-guilty verdict are legally inconsistent where the crime of which
the jury finds the defendant not guilty is a lesser-included offense of
the crime of which the jury finds the defendant guilty.‖). Yet the jury
in Terry‘s case did the impossible. It convicted Terry of the
compound offense (domestic violence in the presence of a child),
while acquitting him of the predicate offense (domestic violence
assault).
¶16 Legally impossible verdicts are verdicts that include an
inconsistency ―as a matter of law because it is impossible‖ to
reconcile different determinations that the jury made in them.
Halstead, 791 N.W.2d at 807. And here, it is impossible to reconcile a
conviction with an acquittal on ―essential elements . . . identical and
necessary‖ to sustain the conviction. State v. Arroyo, 844 A.2d 163, 171
(R.I. 2004) (citation omitted); see also Shavers v. State, 86 So. 3d 1218,
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4 This case involves an exception to the general rule that a
―defendant may be convicted of an offense included in the offense
charged but may not be convicted of both the offense charged and
the included offense.‖ UTAH CODE § 76-1-402(3). This rule does not
apply ―where the Legislature has designated a statute as an
enhancing statute,‖ State v. Bond, 2015 UT 88, ¶ 70, 361 P.3d 104,
which ―single[s] out particular characteristics of criminal conduct as
warranting harsher punishment,‖ State v. Smith, 2005 UT 57, ¶ 10, 122
P.3d 615. Such designation requires an ―explicit indication of
legislative intent.‖ Id. ¶ 11. Utah Code section 76-5-109.1(4) includes
such indication: ―A charge under this section is separate and distinct
from, and is in addition to, a charge of domestic violence where the
victim is the cohabitant. Either or both charges may be filed by the
prosecutor.‖ Thus, charges (and convictions) on both predicate and
compound offenses are permissible in this case.
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1221 (Fla. Dist. Ct. App. 2012) (―[L]egally [impossible] verdicts . . .
arise when a not-guilty finding on one count negates an element on
another count that is necessary for conviction.‖); Price v. State, 949
A.2d 619, 634 (Md. 2008) (Harrell, J., concurring in the judgment) (―A
legal inconsistency . . . occurs when ‗an acquittal on one charge is
conclusive as to an element . . . [of] a charge on which a conviction
has occurred.‘‖ (citation omitted)) (adopted in McNeal v. State, 44
A.3d 982, 984 (Md. 2012)).
¶17 At oral argument, the City conceded the relationship
between the offenses in this case and acknowledged the illogic
embedded in Terry‘s verdict. Yet it still maintains that Terry‘s verdict
is not legally impossible, for two reasons. First, in the City‘s view,
there can be no legal impossibility when there is sufficient evidence,
as Terry concedes is the case here. Second, according to the City and
the dissent, because we evaluate every count separately, the
contradicting results the jury reached are not legally impossible. See
infra ¶¶ 57, 66, 69, 74. Both arguments do not persuade us.
¶18 First, the argument that there was sufficient evidence to
support a guilty verdict on the compound offense is of no moment to
our holding that the verdict is legally impossible. Given that both the
compound offense and the predicate offense were based on the same
evidence and the same event, the jury also had sufficient evidence to
support a guilty verdict on the predicate offense. Yet they did not do
so. And that acquittal was fatal to the jury‘s ability to convict on the
compound offense, because ―an acquittal of [a predicate offense]
effectively holds the defendant innocent of a [compound] offense
involving that same [predicate offense],‖ Naumowicz v. State, 562 So.
2d 710, 713 (Fla. Dist. Ct. App. 1990), and ―negates a necessary
element for conviction on‖ the compound offense, State v. Kelley, 109
So. 3d 316, 317 (Fla. Dist. Ct. App. 2013) (citation omitted).
¶19 Second, the argument that verdicts like Terry‘s are not
legally impossible because we review claims that the State has not
met its burden of proof on a particular count of conviction, on each
count independently, see infra ¶¶ 57, 66, 69, 74; see also State v. Stewart,
729 P.2d 610, 613 (Utah 1986) (per curiam), is likewise unavailing. We
do not deny that this our general rule, but it is not an inexorable
mandate. If it yields absurd results—or in this case, legally
impossible results—we should not blindly follow it.5 See, e.g., A.K. &
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5 The dissent seems to be focused on this argument as the ultimate
reason for us to affirm a legally impossible judgment, see infra ¶¶ 57,
(continued . . .)
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R. Whipple Plumb. & Heat. v. Guy, 2004 UT 47, ¶ 11, 94 P.3d 270
(describing with approval how our Court of Appeals refused to
strictly apply our ―net judgment rule‖ because it led to ―absurd
results‖); State v. Springer, 121 P. 976, 979 (Utah 1911) (refusing to
submit a plea of former acquittal ―to the jury to be passed on by it as
a question of fact‖ although past case law suggested ―courts have no
alternative,‖ because it would ―lead to an absurd result.‖). If the State
chose to intertwine the offenses, it cannot then disentangle them at-
will when it‘s convenient. Here, the City repeatedly discussed the
predicate and compound offenses together and explicitly relied on
the same evidence for the two offenses. Similarly, the jury
instructions also linked the two offenses—explaining that the basis
for the compound-offense charge was that Terry allegedly
―committed an act of domestic violence in the presence of a child‖ by
committing the predicate offense (assault) ―while the nine year old
child was less than three feet away.‖ The City cannot have its cake
and eat it too. Its prosecutorial choices show that the jury was
presented with the compound offense predicated on the occurrence of
the predicate offense. We cannot and should not review them
separately in such circumstances. See, e.g., Streeter v. State, 416 So. 2d
1203, 1206 n.3 (Fla. Dist. Ct. App. 1982) (noting an ―exception to the
proposition that separate counts must be viewed independently‖
when ―what the jury fails to find in one count vitiates a guilty verdict
on a separate count to the benefit of the defendant‖). The dissent calls
our approach ―novel,‖ infra ¶ 57, but this approach is practiced in
every jurisdiction that refuses to accept legally impossible verdicts,
see supra ¶¶ 15–16.
¶20 Thus, the verdict here—convicting Terry of a compound
offense while acquitting him of the predicate offense—is legally
impossible.
B. Legally Impossible Verdicts Like Terry’s
Are Anathema to Our Justice System
¶21 Having established that Terry‘s jury rendered a legally
impossible verdict, we now explain why the verdict cannot stand.
Two reasons lead us to this conclusion. First, a legally impossible
verdict in which a defendant is acquitted on the predicate offense but
66, 69, 74, but other than repeat our commitment to this rule, it does
little to address the concerns we raise against a blind reliance in this
case.
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convicted on the compound offense doesn‘t just undermine our
confidence in the trial‘s outcome, it eviscerates it. Second, upholding
such legally impossible verdicts casts a cold shadow on the criminal
justice system, and this shadow is far more worrisome than the
inability to retry the defendant due to constitutional constrains. We
then reject the argument that invalidating legally impossible verdicts
of this kind somehow disrupts the jury verdict‘s finality or invades
the jury process.
¶22 Legally impossible verdicts—in which a defendant is
acquitted on the predicate offense but convicted on the compound
offense—cannot stand for two reasons. First, they undermine ―our
confidence in the outcome of the trial,‖ Halstead, 791 N.W.2d at 815,
because for a defendant to ―be convicted for a crime on which the
jury has actually found that the defendant did not commit an
essential element, whether it be one element or all[,] . . . is not merely
inconsistent with justice, but is repugnant to it,‖ Tucker, 431 N.E.2d at
619. The legally impossible verdict means that the jury necessarily
overstepped its ―historic role‖ as ―fact-finder,‖ McNeal, 44 A.3d at
986, and has ―taken the law into its own hands,‖ Md. Stewart, 211
A.3d at 376 (Opinion by McDonald, J.), by presumably ―engag[ing] in
some . . . process that is inconsistent with the notion of guilt beyond a
reasonable doubt,‖ Halstead, 791 N.W.2d at 815. The requirement that
guilt must be proven beyond a reasonable doubt is part and parcel of
constitutional due process. State v. Maestas, 2012 UT 46, ¶ 167, 299
P.3d 892 (―In the criminal justice system, a defendant is presumed
innocent and the prosecution must prove guilt beyond a reasonable
doubt.‖); State v. Swenson, 838 P.2d 1136, 1138 (Utah 1992) (―Both the
United States Constitution and the Utah Constitution require that the
burden of proving all elements of a crime is on the prosecution.‖
(citing In re Winship, 397 U.S. 358, 364 (1970)). Such a constitutional
insult cannot stand.
¶23 Second, we are deeply concerned about the perceptions of a
criminal justice system that upholds such legally impossible verdicts.
When liberty is at stake, we do not think a shrug of the
judicial shoulders is a sufficient response to an
irrational conclusion. We are not playing legal
horseshoes where close enough is sufficient. It is
difficult to understand why we have a detailed trial
procedure, where the forum is elaborate and carefully
regulated, and then simply give up when the jury
confounds us.
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Halstead, 791 N.W.2d at 815. ―[T]he possibility of a wrongful
conviction in such cases outweighs the rationale for allowing verdicts
to stand.‖ State v. Powell, 674 So. 2d 731, 733 (Fla. 1996). Terry‘s case
may only present misdemeanors, but affirming such a legally
impossible verdict extends beyond it, and applies equally to grave
offenses, such as felony murder. See, e.g., Mahaun v. State, 377 So. 2d
1158, 1161 (Fla. 1979). If we affirm the ability of a jury to render such
a legally impossible verdict, we sanction the lengthy (perhaps
lifelong) incarceration of a defendant for a murder although the jury
acquitted him from the underlying felony that allowed the felony
murder charge. We cannot stand by legally impossible verdicts and
call our system a justice system.6
¶24 We acknowledge the implications of our decision on the
future prosecution of defendants who receive legally impossible
verdicts in which the defendant is acquitted on the predicate offense
but convicted on the compound offense. ―The double jeopardy
provisions in both the United States and Utah Constitutions generally
prohibit the State from making repeated attempts to convict an
individual for the same offense after jeopardy has attached, which in
jury trials occurs after a jury has been selected and sworn.‖ State v.
Harris, 2004 UT 103, ¶ 22, 104 P.3d 1250 (footnotes omitted). And so,
with legally impossible verdicts like the one here, the double
jeopardy provisions may effectively preclude a retrial of the acquittal
on the predicate offense. The same might be true for retrying the
compound offense, the argument being that a defendant with a
legally impossible verdict cannot be retried on the compound offense
if ―there was insufficient evidence to support [that] conviction[].‖
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6 The dissent says that ―neither the United States Constitution,
[nor] the Utah Constitution, . . . have been read to require‖ the
invalidation of legally impossible verdicts. See infra ¶ 59. As for the
U.S. Constitution, it is true that the U.S. Supreme Court remarked in
United States v. Powell, 469 U.S. 57, 65 (1984) that ―nothing in the
Constitution would require such a protection,‖ but no such statement
was conclusively made as to the Utah Constitution. We also stress
that the decision of the U.S. Supreme Court to adjudicate the issue
―under [its] supervisory powers over the federal criminal process,‖
id., allows for independent treatment by state courts, also in
accordance to their constitutions, where appropriate. Therefore, as
for the Utah Constitution, the fact that no such reading has been
offered in the past should not signal that it is not possible.
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Bravo-Fernandez v. United States, 137 S. Ct. 352, 364 (2016). Under this
assumption, it seems that the prosecution would be estopped from a
retrial on the compound offense.7
¶25 But the inability to retry a defendant is far preferable to
defendants being convicted of and punished for crimes that—
according to the jury‘s acquittal on the predicate offense—they never
could have committed. After all, Blackstone‘s ratio—the basis for our
presumption of innocence and the core principle of our criminal
justice system—tells us that ―[i]t is better that ten guilty persons
escape than one innocent suffer.‖ 4 WILLIAM BLACKSTONE,
COMMENTARIES *352; see also State v. Reyes, 2005 UT 33, ¶ 11, 116 P.3d
305 (―Blackstone set an enduring benchmark for the measure of
certainty required to convict in a civilized society . . . .‖). If we
succumb to the opposite rationale, we would be ―presum[ing]
unlawful acquittal‖ ―rather than guard[ing] against unlawful
conviction.‖8 Albert W. Alschuler, The Supreme Court and the Jury:
Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U.
CHI. L. REV. 153, 213 (1989).
¶26 For these reasons, we hold that legally impossible verdicts—
in which a defendant is acquitted on the predicate offense but
convicted on the compound offense—cannot stand. In doing so, we
do not ignore our usual deep reluctance to disturb the finality of a
jury verdict, as the dissent suggests, or inquire into the jury‘s intent.
See infra ¶ 71. These principles are simply not at play here. We
confront other legal errors made at trial, and legally impossible
verdicts should not fare differently. And legally impossible verdicts
do not require inquiry into the jury‘s intent.
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7 We note that the City has not indicated that it intends to
prosecute Terry again, and the parties have not briefed this issue.
Recognizing that it is a question of first impression, we leave the
ultimate disposition of this question for an appropriate future case.
8 The dissent claims ―that is not so.‖ Infra ¶ 69. In its view, our
approach leads courts to ―discard[]‖ jury verdicts that determined
―guilt beyond a reasonable doubt.‖ Infra ¶ 69. This claim crystalizes
our different approaches to this question. To us, no such verdict has
been discarded, because there is no logical way for a jury to acquit a
person on a predicate offense and then finding them guilty on the
compound offense beyond a reasonable doubt.
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¶27 We routinely overturn trial courts‘ decisions for legal errors.
We should do the same when a jury makes a legal error. In fact, we
must, because adjudicating matters of law is our duty as an appellate
court. We review questions of law for correctness, and even under
one of our more deferential standards of review—abuse of
discretion—we have long held that a ―legal error is an abuse of
discretion that undercuts the deference we would otherwise afford‖ a
trial court. Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT
47, ¶ 78, 469 P.3d 1003. In fact, other courts have refused to accept
legally inconsistent verdicts rendered by a judge. See United States v.
Maybury, 274 F.2d 899, 903 (2d Cir. 1960); State v. Williams, 916 A.2d
294, 305 (Md. 2007); Akers v. Commonwealth, 525 S.E.2d 13, 17 (Va. Ct.
App. 2000). We see no reason why a legal error made by one fact
finder—a jury—should be treated differently than one made by
another—a judge. Any reluctance we might have to disturb the jury‘s
verdict is a byproduct of judicial restraint—not an inexorable
mandate. For example, we overturn a jury verdict—even a verdict
that isn‘t impossible on its face—when the evidence, viewed in the
light most favorable to the jury, ―is sufficiently inconclusive or
inherently improbable [so] that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime of which he or she was convicted.‖ State v. Nielsen, 2014 UT 10,
¶ 30, 326 P.3d 645. (citation omitted). Importantly, our restraint is
connected to the jury‘s ―historical role‖ as ―the sole fact-finder in
criminal jury trials.‖ McNeal, 44 A.3d at 986. But the jury does not act
as a fact-finder when it misapplies the law—taking it ―into its own
hands,‖ Md. Stewart, 211 A.3d at 376 (Opinion by McDonald, J.), and
ignoring its ―duty . . . to decide a criminal case according to
established rules of law,‖ Price, 949 A.2d at 627 (citation omitted)—as
it does when it reaches a legally impossible verdict.9
_____________________________________________________________
9 The dissent worries that we have created a ―mandate[e] that
such [legally impossible] jury verdicts be overturned‖ and suggests
that our decision ―weakens our longstanding and deep reluctance to
disturb the finality of a jury verdict,‖ infra ¶ 71, because ―verdicts can
be legally inconsistent in various ways and to different degrees.‖
Infra ¶ 72. It cites from Justice Butler‘s dissenting opinion in Dunn v.
United States, 284 U.S. 390, 399–407 (1932) (Butler, J., dissenting) for
examples of varied types of inconsistent verdicts that Justice Butler
saw as repugnant and therefore invalid. See infra ¶ 73.
The dissent worries in vain. We are not Justice Butler, and his
view of repugnancy should not be confounded with ours. Our rule,
(continued . . .)
13
PLEASANT GROVE v. TERRY
Opinion of the Court
¶28 And in a case of a legally impossible verdict we have no
need to inquire into the jury‘s intent. Quite the opposite. Discerning
whether a verdict is legally impossible ―does not require the court to
engage in highly speculative inquiry into the nature of the jury
deliberations.‖ Halstead, 791 N.W.2d at 815. Instead, it ―focuses solely
on the legal impossibility of convicting a defendant of a compound
crime while at the same time acquitting the defendant of predicate
crimes.‖ Id. The court must simply determine whether the conviction
on the compound offense is possible in the face of an acquittal on a
predicate offense. If it is not, then the verdict is legally impossible
and should be overturned.
C. The Opposite Approach Is Unpersuasive
¶29 But we are not an island. Other courts have addressed
whether legally impossible verdicts—in which a defendant is
acquitted on the predicate offense but convicted on the compound
offense—are valid. We recognize that a majority of courts, led by the
United States Supreme Court,10 have gone the other way. See, e.g.,
as the dissent itself acknowledges, is ―a narrow one.‖ infra ¶ 72. It
addresses one concrete type of legally impossible verdicts, which we
repeatedly define with high specificity. See supra ¶¶ 9, 10, 11, 21, 22,
24, 26, infra ¶¶ 29, 32, 33, 35, 42, 48, 53, 54. We recognize that
inconsistent verdicts (and within them legally impossible verdicts)
come in many shapes and sizes. And we accordingly task our
advisory committee with studying the matter in depth. See infra ¶ 55.
Yet, as we explain below, ―against the backdrop of a live
controversy,‖ see infra ¶ 52, we cannot let legally impossible verdicts,
in which a defendant is acquitted on the predicate offense but
convicted on the compound offense, stand.
10 The U.S. Supreme Court implicitly decided Dunn v. United
States, 284 U.S. 390 (1932) and explicitly decided United States v.
Powell, 469 U.S. 57 (1984) merely on its ―supervisory powers over the
federal criminal process‖ and not on any constitutional basis. Powell,
469 U.S. at 65. Those decisions, therefore, have no direct application
in this court, and we treat them merely as persuasive authority. See
Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of
Inconsistent Verdicts, 111 HARV. L. REV. 771, 774 (1998) (―Because the
Court has seen no constitutional violation in inconsistent verdicts,
state courts have been free to develop their own responses to
inconsistent verdicts.‖ (citation omitted)).
(continued . . .)
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United States v. Powell, 469 U.S. 57 (1984); Dunn v. United States, 284
U.S. 390 (1932); People v. Jones, 797 N.E.2d 640, 645–48 (Ill. 2003);
Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010). But ―the
persuasiveness of authority is not determined by the pound, but by
the quality of the analysis.‖11 Halstead, 791 N.W.2d at 811. And we
find that the higher quality analysis in this arena resides with the
minority of state courts; we join them today in holding that legally
impossible verdicts in which a defendant is acquitted on the
predicate offense but convicted on the compound offense are invalid.
See, e.g., id.; Brown v. State, 959 So. 2d 218, 220–23 (Fla. 2007); McNeal,
44 A.3d at 984; Commonwealth v. Gonzalez, 892 N.E.2d 255, 262 n.8
(Mass. 2008).
¶30 In discussing the majority view, we begin and end with the
U.S. Supreme Court case law because state courts holding the
majority view, ―generally break no new ground but restate the rule
and reasoning‖ proffered in the Supreme Court‘s two relevant
decisions—Dunn and Powell. Halstead, 791 N.W.2d at 810–11; see also
The dissent notes that the U.S. Supreme Court‘s rule ―has now
stood for eighty-eight years.‖ Infra ¶ 61. But that does not change that
it has no direct application in this court.
11 We have departed from majority rules on other issues before
without much fuss. See, e.g., Nixon v. Clay, 2019 UT 32, ¶ 22, 449 P.3d
11 (rejecting the majority rule for an exception to tort liability for
injuries arising out of sports and adopting a different framework);
McArthur v. State Farm Mut. Auto. Ins. Co., 2012 UT 22, ¶¶ 11–12, 274
P.3d 981 (rejecting what seemed to be the majority approach
regarding exhaustion clauses in insurance contracts because it was
premised on common-law authority, and insurance law in Utah is
governed by statute); Murphy v. Crosland, 915 P.2d 491, 493–94 (Utah
1996) (rejecting a majority rule regarding the interpretation of a rule
of appellate procedure because it ―relie[d] on an outdated advisory
committee note‖); State v. Chapman, 655 P.2d 1119, 1122–23 (Utah
1982) (rejecting the majority rule regarding the steps the State must
undertake before it is allowed to present an out-of-state unavailable
witness, because of its ―inflexib[ility]‖); W. Land Equities, Inc. v. City of
Logan, 617 P.2d 388, 391 (Utah 1980) (rejecting the majority rule
regarding retroactive application of zoning laws because it ―fail[ed]
to strike a proper balance between public and private interests and
opens the area to so many variables as to result in unnecessary
litigation‖).
15
PLEASANT GROVE v. TERRY
Opinion of the Court
Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of
Inconsistent Verdicts, 111 HARV. L. REV. 771, 792 n.111 (1998) (noting
that most state courts ―rely on one or both of Dunn and Powell in
affirming inconsistent verdicts‖).12 In those two cases, the U.S.
Supreme Court held that legally impossible verdicts are valid. Powell,
469 U.S. at 62; Dunn, 284 U.S. at 393. The specific facts of Powell and
Dunn are immaterial to this discussion. It suffices to say that in both
cases the defendants, like Terry, were acquitted of the predicate
offense and convicted of the compound offense. Cumulatively, the
Court‘s Dunn and Powell opinions present three reasons for
upholding legally impossible verdicts.13 They are all unpersuasive.
¶31 First, the Court held that legally impossible verdicts are ―no
more than [the jury‘s] assumption of a power which they had no
right to exercise, but to which they were disposed through lenity.‖
Dunn, 284 U.S. at 393 (citation omitted). The Court recognized that it
was ―equally possible that the jury, convinced of guilt, properly
reached its conclusion on the compound offense, and then through
mistake, compromise, or lenity, arrived at an inconsistent conclusion
on the [predicate] offense.‖ Powell, 469 U.S. at 65; see also Dunn, 284
U.S. at 394 (holding that a legally impossible verdict ―may have been
the result of compromise, or of a mistake on the part of the jury‖). But
it held that all those possibilities merely emphasize that it is ―unclear
whose ox has been gored‖ when there has been a legally impossible
verdict. Powell, 469 U.S. at 65.14
¶32 This rationale paves a one-way street: The Court will always
construe a legally impossible verdict as an unworthy windfall for the
_____________________________________________________________
12 We reviewed the cases referred to in Professor Muller‘s article
that did not rely on Dunn or Powell, 111 HARV. L. REV. at 792 n.111,
and uncovered no arguments that we have not otherwise addressed
in this opinion.
13 The Dunn Court also relied in part on a res judicata analysis, 284
U.S. at 393, which is no longer good law. But the Court later
explained in Powell that ―the Dunn rule rests on a sound rationale
that is independent of its theories of res judicata, and [] it therefore
survives an attack based upon its presently erroneous reliance on
such theories.‖ 469 U.S. at 64.
14 We note that the dissent‘s position seems to rely primarily on
this justification, infra ¶¶ 59–61, but does not offer any rebuttal to our
rejection of it below, infra ¶ 32. See also supra ¶ 19 n.5.
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defendant, and never as an injustice. Thus, by this rationale, the
Court endorses a de facto ―irrebuttable presumption that the jury . . .
engage[s] in an act of lenity when it acquit[s] the defendant‖ of a
predicate offense but convicts the defendant of the compound one.
Halstead, 791 N.W.2d at 809. But ―it is equally possible that [such a
legally impossible] verdict is the product of animus toward the
defendant rather than lenity.‖15 Id. at 814. Certainly, ―[t]he
presumption of lenity seems particularly doubtful‖ in cases such as
this one in which ―the jury convicts a defendant of the more serious
[compound] offense but acquits the defendant on [the] predicate
[offense].‖ Id. If every legally impossible verdict were a result of
lenity, then perhaps the approach adopted in Dunn and Powell would
make sense. However, nothing in fact, law, or logic suggests that this
story is accurate. We therefore reject the ―lenity presumption‖ that
Dunn and Powell adopted.
¶33 Second, and relatedly, the Court held that legally impossible
verdicts ―cannot be upset by speculation or inquiry into‖ why the
jury rendered them, Dunn, 284 U.S. at 394, because, in its view, any
such inquiry would be ―imprudent‖ and ―unworkable,‖ Powell, 469
U.S. at 66. This reason carries no weight at all in our determination.
As we explain above, once a jury has reached a legally impossible
verdict, its reasons for doing so matter not. We do not peer into the
jury‘s black box. Instead, much like we view an error of law as an
automatic abuse of discretion, see, e.g., Rocky Ford, 2020 UT 47, ¶ 78,
so too we should view legally impossible verdicts—in which a
defendant is acquitted on the predicate offense but convicted on the
compound offense—as an automatically invalid legal error.
Additionally, overturning legally impossible verdicts does not even
require an inquiry into the jury deliberations, let alone speculation.
See Halstead, 791 N.W.2d at 815 (―Making such legal determination
does not require the court to engage in highly speculative inquiry
into the nature of the jury deliberations.‖); McNeal, 44 A.3d at 992
(explaining that factually inconsistent verdicts require invasion to the
―province of the jury‖ but that legally impossible verdicts do not). To
the contrary—the analysis here ―focuses solely on the legal
_____________________________________________________________
15 The reader may wonder how an acquittal can mean animus.
Jurors may think that a defendant is not guilty on all counts, but
nevertheless find the defendant‘s behavior reprehensible for some
reason and decide to ―punish‖ them by convicting them of one of the
offenses.
17
PLEASANT GROVE v. TERRY
Opinion of the Court
impossibility of convicting a defendant of a compound crime while at
the same time acquitting the defendant of predicate crimes.‖ Halstead,
791 N.W.2d at 815. The court must simply determine whether the
conviction on the compound offense is possible in the face of an
acquittal on a predicate offense. If it is not, then the verdict is legally
impossible and should be overturned. Such an inquiry would not
require us to peer into the jurors‘ minds even one bit.
¶34 Finally, in Powell the Court also concluded that the
protection that a defendant receives provides sufficient ―safeguards‖
against ―jury irrationality or error‖ through ―the independent review
of the sufficiency of the evidence undertaken by the trial and
appellate courts.‖ 469 U.S. at 67. We disagree. Our main concern with
legally impossible verdicts is that they are contradictory. An acquittal
of the predicate offense clashes emphatically with the conviction of
the compound offense. But a review for sufficiency of the evidence
does not address that irrationality. It simply ignores it, instead asking
us to rely only on the conviction. As we explain above, the mere fact
that the evidence was sufficient for conviction on the compound
offense does not somehow make the legally impossible verdict
logical.
¶35 In conclusion, there is no good reason to let legally
impossible verdicts, in which a defendant is acquitted on the
predicate offense but convicted on the compound offense, stand. We,
therefore, reject the majority view and hold that such legally
impossible verdicts must be overturned.
D. Our Case Law on Factually Inconsistent Verdicts Does Not Control
¶36 Before turning to how we should go about invalidating
legally impossible verdicts, we need to address Utah precedent about
another member of the ―inconsistent verdicts‖ family: factually
inconsistent verdicts. That precedent does not concern this case
because jury verdicts can be erroneous in different ways. Legal
impossibility is just one of them, as we explain above. See supra ¶ 8.
Much like different strains of the same virus, these various
―inconsistent verdicts‖ present ―distinct[] problems,‖ Halstead, 791
N.W.2d at 807; see also McNeal, 44 A.3d at 993; Gonzalez, 892 N.E.2d at
262 n.8, that are more than just ―different considerations,‖ as the
dissent suggests. See infra ¶ 65. And so, we are not talking about two
strains of the common flu, but of the difference between the common
flu and COVID-19. These two types of ills merit different treatment.
¶37 Traditionally, courts refer to legally impossible verdicts
under the umbrella term of ―inconsistent verdicts.‖ See, e.g., Powell,
469 U.S. at 65. But the term ―inconsistent verdicts‖ ―include[s] a wide
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variety of related, but nonetheless distinct, problems‖ in jury
verdicts. Halstead, 791 N.W.2d at 807; see also Md. Stewart, 211 A.3d at
375 n.1 (Opinion by McDonald, J.) (listing various categorizations of
inconsistent verdicts as designated by different courts). Inconsistency
in verdicts may stem from errors in fact or in law. The difference
matters. See, e.g., id. at 383 (Opinion by Watts, J.) (―[F]actually
inconsistent verdicts are permissible, while legally inconsistent
verdicts are not.‖); Commonwealth v. Elliffe, 714 N.E.2d 835, 838 (Mass.
App. Ct. 1999) (―[A] defendant is not entitled to relief where a jury
returns factually inconsistent verdicts; problems arise only where
verdicts are legally inconsistent—i.e., where, removed from the
factual context of the particular case, the government could not
possibly have proved the elements of both crimes with respect to the
defendant.‖). In general, we scrutinize questions of law far more
closely than questions of fact. The most obvious example for this
distinction is our standards of review for questions of fact and
questions of law. We review the former for clear error, and the latter
for correctness—a much stricter review. See, e.g., Taylor v. Univ. of
Utah, 2020 UT 21, ¶ 13, 466 P.3d 124. The same distinction should
apply when we review errors in verdicts.
¶38 State v. Stewart, our only precedent about inconsistent
verdicts, dealt with a factual inconsistency—namely an acquittal of
some defendants, but not all, for the same crime. 729 P.2d 610 (Utah
1986) (per curiam). It held that the inconsistent factual verdicts could
stand. But, as we and the dissent agree,16 infra ¶ 65, its holding and its
reliance on Dunn and Powell do not control our decision today.17
_____________________________________________________________
16 Despite its agreement with us that Stewart does not control this
case, the dissent ―find[s] the reasoning of Stewart to offer persuasive
insight that we should not easily dismiss,‖ infra ¶ 65. We respectfully
disagree with this point. As we explain below, Stewart did nothing
more than quote and cite cursorily to Powell and Dunn in a context
wholly distinct from ours, see infra ¶¶ 39–40. We detailed in length
our rejection of Powell and Dunn above, supra ¶¶ 31–34, and Stewart‘s
adoption of these cases in another context has no significance or
insight here.
17 Neither party seems to think that Stewart is relevant to this case.
The parties have not briefed it at all (except for a footnote citation
reference Terry makes in his opening brief) and only addressed
Stewart at oral argument. The parties instead discussed case law from
our court of appeals that adopted Stewart or Powell. See, e.g., State v.
(continued . . .)
19
PLEASANT GROVE v. TERRY
Opinion of the Court
¶39 In Stewart, four inmates were charged with second-degree
homicide for the death of another inmate. Two inmates were
acquitted, and the other two—the appellants—were found guilty. 729
P.2d at 611. The appellants claimed that because the evidence about
all four charged inmates was the same, they should have been
acquitted too. Id. In a per curiam decision, this court rejected that
argument based on the different evidence that connected the
appellants to the murder, compared to the acquitted defendants. In
fact, this court rejected the argument that the verdicts were ―so
obviously inconsistent.‖ Id. This court‘s treatment of Dunn and Powell
was cursory. See id. at 611 n.1 (citing Powell for the proposition that
―[t]he inquiry then is whether the verdicts against [the appellants] are
supported by substantial evidence‖); id. at 612 (quoting Dunn‘s
language about the reasons for a jury‘s verdict to support the
proposition that ―[t]he acquittal of [other defendants] does not
necessarily require appellants‘ acquittal‖).
¶40 A procedural lapse on this court‘s part—issuing a decision
before one of the appellants filed his reply brief—led to a rehearing,
Gibson, 2016 UT App 15, 366 P.3d 876; State v. LoPrinzi, 2014 UT App
256, 338 P.3d 253; State v. Sjoberg, 2005 UT App 81U; State v. Hancock,
874 P.2d 132 (Utah Ct. App. 1994), superseded on other grounds by
statute, UTAH CODE § 77-32-304.5 (1997) (repealed), as recognized in
State v. Carreno, 2006 UT 59, ¶ 16, 144 P.3d 1152. A database research
yielded several more court of appeals cases of this progeny that the
parties have not discussed. See, e.g., State v. Atencio, 2005 UT App
417U (per curiam); State v. Olive, 2005 UT App 120U.
None of these court of appeals cases are relevant here. Like
Stewart, all but two of these cases address claims for factual
inconsistency and do not inform our understanding of legally
impossible verdicts in which a defendant is acquitted on the
predicate offense but convicted on the compound offense. Although
two court of appeals cases do discuss alleged legally impossible
verdicts (Hancock and Atencio), and cite Stewart in doing so, they both
ultimately held that the verdicts examined were not legally
impossible verdict. Hancock, 874 P.2d at 134; Atencio, 2005 UT App
417U, para. 5. Therefore, any reliance on Stewart in those cases is not
relevant to our discussion here. In this context we also find telling
that our court of appeals certified the case to us by the ―vote of four
judges of the court,‖ noting that it ―presents an important first
impression question.‖
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Opinion of the Court
which we also decided per curiam. We explained that the appellant
simply ―reiterate[d] the same arguments as in his original brief on
appeal, which arguments were disposed of in our prior decision‖ and
affirmed the conviction. Id. at 613. Then we quoted Powell for the
proposition that ―the independent review of the sufficiency of the
evidence undertaken by the trial and appellate courts‖ is sufficient
―protection against jury irrationality,‖ id. (quoting Powell, 469 U.S. at
67), and stated (acknowledging that Powell treated a different
problem) that ―[w]e believe that this same reasoning equally applies
in this case when the sufficiency of evidence against different
defendants is questioned.‖ Stewart, 729 P.2d at 613. We also cited to
Dunn (among other cases) for the proposition that ―it is generally
accepted that the inconsistency of verdicts is not, by itself, sufficient
ground to set the verdicts aside,‖ id., and again for the proposition
that a ―jury‘s acquittal of a defendant, whether tried separately or
jointly with others, may also result from some compromise, mistake,
or lenity on the jury‘s part.‖ Id. at 614.
¶41 Applying our principles of stare decisis, we hold that Stewart
does not control this case. Stare decisis is ―a cornerstone of Anglo–
American jurisprudence that is crucial to the predictability of the law
and the fairness of adjudication.‖ State v. Thurman, 846 P.2d 1256,
1269 (Utah 1993). It requires us to ―extend a precedent to the
conclusion mandated by its rationale.‖ Richard L. Hasen, Anticipatory
Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme
Court Justices Move the Law, 61 EMORY L.J. 779, 780 (2012) (quoting
Barry Friedman, The Wages of Stealth Overruling (with Particular
Attention to Miranda v. Arizona), 99 GEO. L.J. 1, 12 (2010)). But the
―doctrine of stare decisis . . . is neither mechanical nor rigid as it
relates to courts of last resort.‖ State v. Guard, 2015 UT 96, ¶ 33, 371
P.3d 1 (citation omitted).
¶42 With these principles in mind, our respect for precedent
means we value and implement the text of our past opinions as far as
it can logically go. The question here is whether the rationale behind
the ―inconsistent verdicts‖ terminology in Stewart encompasses the
jury verdict here—namely, legally impossible verdicts in which a
defendant is acquitted of the predicate offense but convicted of the
compound offense—and therefore controls the question of their
validity. We hold that Stewart does not control and should be viewed
as binding us only as to the fate of factually inconsistent verdicts.
Stewart recognized that it borrowed from Powell—a case that dealt
with a different issue. 729 P.2d at 613 (―We believe that this same
reasoning equally applies in this case when the sufficiency of
evidence against different defendants is questioned.‖). Our Stewart
21
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Opinion of the Court
opinion, therefore, cannot be construed to mean that it decided an
issue that even it recognized was not at play in that case.
¶43 Our allegiance to the text also compels us to refuse to
creatively read that text. See, e.g., State v. Argueta, 2020 UT 41, ¶ 54
n.12, 469 P.3d 938 (explaining that we cannot subscribe to the
concurrence‘s view that our past opinion was a ―square holding‖ in
the case before us because the key words in this debate,
―‘supplemental,‘ ‗different,‘ or ‗reconcilable‘ do not appear in [the
past opinion] in any form‖); Ipsen v. Diamond Tree Experts, Inc., 2020
UT 30, ¶¶ 14–15, 466 P.3d 190 (rejecting the idea that negligence
could be read to include gross negligence given the material legal
differences between the two standards in the context of our case law).
¶44 The alleged connection between Stewart and this case
resembles our recent discussions in other opinions. See Argueta, 2020
UT 41, ¶¶ 50–54 (analyzing and refusing to apply as precedent State
v. Velarde, 675 P.2d 1194 (Utah 1984)); Ipsen, 2020 UT 30, ¶¶ 1–2, 12–13
(holding that a previous case, Fordham v. Oldroyd, 2007 UT 74, 171
P.3d 411, which held that ―a person does not owe a duty of care to a
professional rescuer for injury that was sustained by the very
negligence that occasioned the rescuer‘s presence,‖ did not apply to
injuries caused by gross negligence or intentional torts). As we were
in Argueta, here we are confronted with the breadth of the term
―inconsistent.‖ And we refuse to engage with this term
inconsistently. In Argueta, we held that we could not extend the term
beyond what it meant in Velarde. In Velarde, the term ―inconsistent‖
was used by this court to describe a defendant that presented two
contradictory versions to what happened in that case. Argueta, 2020
UT 41, ¶ 51; Velarde, 675 P.2d at 1195. In Argueta, we refused to apply
that language when the versions that the defendant told were
―reconcilable.‖ Argueta, 2020 UT 41, ¶ 53. Similarly, in Ipsen we
refused to extend an exception that we created in Fordham for when
one owes a duty in negligence cases beyond its original scope. That
was because the ―concerns‖ that required the exception in ordinary
negligence cases did ―not apply when it [came] to gross negligence
and intentional torts.‖ Ipsen, 2020 UT 30, ¶ 13. We accordingly
rejected the dissent‘s idea there that our use of the term ―negligence,‖
―sweep[s] more broadly—in a manner that covers . . . gross
negligence.‖ Id. ¶ 33 (Lee, A.C.J., dissenting). See also McNeal, 44 A.3d
at 992 (holding that a decision that discussed ―inconsistent
verdicts‖—Price, 949 A.2d at 622—did not apply to factually
inconsistent verdicts because its rationale extended only to legally
inconsistent verdicts).
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¶45 In Argueta and Ipsen, we examined whether our past
precedents could be logically applied to the circumstances before us,
given their rationale. Although it may seem that our refusal to apply
the past precedents turned on the facts of those past precedents, that
was not the case, and, under principles of stare decisis, we reject such
a fact-based basis for not applying past precedents. See, e.g., Neese v.
Utah Bd. of Pardons and Parole, 2017 UT 89, ¶ 58, 416 P.3d 663 (―In
short, respect for stare decisis requires us to ‗extend a precedent to
the conclusion mandated by its rationale.‘‖ (citation omitted)). We
continue applying this approach consistently here. Stewart, like
Velarde and Fordham used a general ―umbrella‖ term that could
linguistically encompass the situation before us. But whether we
apply past opinions turns on the rationale of those opinions—not
merely on their use of less-than-clear terms. And so, our use of the
general term ―inconsistent verdicts‖ in Stewart, and our unfortunate
use of case law about legally impossible verdicts in a case about a
factually inconsistent verdict should not be weaponized to thwart the
simple truth: Stewart said nothing about our treatment of legally
impossible verdicts.
¶46 To summarize, our case law about factually inconsistent
verdicts says nothing about legally impossible verdicts and is thus
beside the point.
II. THE REMEDY: USING OUR SUPERVISORY AUTHORITY TO
VACATE LEGALLY IMPOSSIBLE VERDICTS
¶47 Holding that legally impossible verdicts cannot stand, we
turn now to how we implement our holding. We do so through our
constitutionally granted supervisory authority. We first explain that
there is currently no procedure that allows a court to vacate a legally
impossible verdict. We next explain our prerogative to use our
supervisory authority and why it is prudent to do so in this case.
Finally, we set out a rule that requires the vacatur of legally
impossible verdicts like Terry‘s.
¶48 There is currently no procedural rule that specifically allows
a trial or an appellate court to vacate a verdict because it is legally
impossible. True, Utah Rule of Criminal Procedure 23 allows a trial
court to ―arrest judgment‖ for ―good cause.‖ This rule could
arguably be used to vacate legally impossible verdicts. But there‘s
one problem with that logic. The invalidity of legally impossible
verdicts in which a defendant is acquitted on the predicate offense
but convicted on the compound offense is based on them being
erroneous as a matter of law. In contrast, our cases on rule 23 motions
to arrest judgment have repeatedly held that a ―court may only
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Opinion of the Court
reverse a jury verdict when ‗the evidence is sufficiently inconclusive
or inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.‘‖ State v. Robbins, 2009 UT
23, ¶ 14, 210 P.3d 388 (quoting State v. Bluff, 2002 UT 66, ¶ 63, 52 P.3d
1210). This dissonance means that rule 23 is not an adequate route for
the invalidation of legally impossible verdicts in which a defendant is
acquitted on the predicate offense but convicted on the compound
offense.
¶49 Because of the lack of any existing procedural avenue, we
turn to our constitutionally sanctioned supervisory authority over
criminal and civil trials. See UTAH. CONST. art. VIII, § 4 (―The
Supreme Court shall adopt rules of procedure and evidence to be
used in the courts of the state and shall by rule manage the appellate
process.‖); State v. Thurman, 846 P.2d 1256, 1266 (Utah 1993) (―In
Utah, the supreme court has [an] . . . inherent supervisory authority
over all courts of this state.‖).
¶50 We can use our constitutionally granted supervisory
authority through our appellate procedure. We have done so many
times, with the purpose of ―get[ting] the law right.‖ McDonald v. Fid.
& Deposit Co. of Md., 2020 UT 11, ¶ 33, 462 P.3d 343. After all, ―[i]t is
our province and duty to say what the law is.‖ Id. (emphasis added);
see also, e.g., State v. Argueta, 2020 UT 41, ¶¶ 33–34, 469 P.3d 938
(clarifying our doctrine-of-chances analysis although we ―recently
charged our advisory committee on the Utah Rules of Evidence to
propose recommendations to address this issue‖ because it was
necessary in that case and because it is our role to ―clarify[] the
doctrine‘s application in our case law, as relevant issues come up‖);
State v. Guard, 2015 UT 96, ¶¶ 1, 4, 371 P.3d 1 (describing the change
that we announced regarding the reliability of eyewitness expert
testimony (moving from a ―de facto presumption against their
admission‖ to holding them ―reliable and helpful‖) in State v. Clopten,
2009 UT 84, ¶¶ 30, 49, 223 P.3d 1103, as a ―new rule[] of criminal
procedure announced in [a] judicial opinion[]‖); Manning v. State,
2005 UT 61, ¶¶ 29, 31, 122 P.3d 628 (formulating a rule—which later
became rule 4(f) of the Utah Rules of Appellate Procedure—that
allowed defendants to file motions to ―reinstate the time frame for
filing a direct appeal‖); State v. Brown, 853 P.2d 851, 856–57 (Utah
1992) (holding that ―as a matter of public policy and pursuant to our
inherent supervisory power over the courts, as well as our express
power to govern the practice of law, counsel with concurrent
prosecutorial obligations may not be appointed to defend indigent
persons,‖ and as a result ―revers[ing] [the] conviction and order[ing]
24
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Opinion of the Court
a new trial‖); State v. James, 767 P.2d 549, 557 (Utah 1989) (invoking
this court‘s ―inherent supervisory power over trial courts‖ to order
the bifurcation of hearings when evidence of prior convictions is
introduced at first-degree murder trials and to remand the case to
―proceed in accordance with‖ that holding); see also State v. Bennett,
2000 UT 34, ¶ 13, 999 P.2d 1 (Durham, A.C.J., concurring in the result)
(listing cases recognizing and applying our ―supervisory power‖ on
appeal to articulate new criminal procedural rules).
¶51 It is true that, at times, referring the drafting of rules to our
advisory committees is the prudent path to take in rulemaking. See
Cougar Canyon Loan, LLC v. Cypress Fund, LLC, 2020 UT 28, ¶ 15, 466
P.3d 171. But it is not a mandatory path. Compare State v. Perea, 2013
UT 68, ¶¶ 137–38, 322 P.3d 624 (Lee, J., concurring) (advocating
against this court‘s rulemaking during an appellate case), with
Manning, 2005 UT 61, ¶ 31 (unanimously doing exactly what Justice
Lee argued in Perea that we should not). And our abundant case law
proves clearly that exercising our supervisory authority in the
appellate process is well within our wheelhouse. See supra ¶ 50; see
also In re K.T.B., 2020 UT 51, ¶ 115 n.200 (Petersen, J., concurring in
the result); id. ¶ 123 n.201 (Lee, A.C.J., dissenting) (recognizing that
―[t]his court may well have the authority to prescribe a procedural
default rule that could govern in a case like this one‖ without any
need to refer the matter to our advisory rule committee).
¶52 But exercising our supervisory authority on appeal is
―especially appropriate‖ when we ―require certain procedures‖ to
protect ―fundamental values‖ which would be ―threatened by other
modes of proceeding.‖ State v. Bishop, 753 P.2d 439, 499 (Utah 1988)
(Zimmerman, J., concurring in the result), overruled in part on other
grounds by State v. Menzies, 889 P.2d 393, 398 (Utah 1994); see also
James, 767 P.2d at 557 (quoting Justice Zimmerman‘s concurrence in
Bishop). Here, the use of our supervisory authority is needed to
prevent a legally impossible verdict—an outcome ―truly repugnant‖
to the fundamental values of our judicial system. People v. Bullis, 30
A.D.2d 470, 472 (N.Y. App. Div. 1968). This case neatly fits the Bishop
articulation. What is more, we are having this conversation against
the backdrop of a live controversy, in a criminal matter in which a
defendant‘s interests are directly implicated. And ―new rules of
criminal procedure announced in judicial decisions apply
retroactively to all cases pending on direct review,‖ Guard, 2015 UT
96, ¶ 61, including the case in which the court announces them. See,
e.g., Clopten, 2009 UT 84, ¶¶ 30, 49 (reversing a ―de facto presumption
against the admission of eyewitness expert testimony‖ because such
testimony is ―reliable and helpful‖ and ―vacat[ing] [the defendant‘s]
25
PLEASANT GROVE v. TERRY
Opinion of the Court
conviction and remand[ing] for a new trial in accordance with our
decision‖); Manning, 2005 UT 61, ¶ 32 (implementing a procedural
rule that this court announced in that case). In this posture, a
reference to our advisory committee in this case is akin to ―a shrug of
the judicial shoulders,‖ State v. Halstead, 791 N.W.2d 805, 815 (Iowa
2010), and would be unconscionable.
¶53 We accordingly hold today that upon an allegation of a
legally impossible verdict by a jury, in which a defendant is acquitted
on the predicate offense but convicted on the compound offense, the
reviewing court (whether it be the trial court or on appeal) should
look into the elements of the crime, the jury verdicts, and the case‘s
instructions. See id.; People v. Tucker, 431 N.E.2d 617, 619–21 (N.Y.
1981). And if the court finds that the conviction of the compound
offense is impossible in the face of an acquittal of a predicate offense,
then the verdict is legally impossible and should be overturned,
because ―without the underlying [offense] the [compound] charge
[cannot] stand.‖ Eaton v. State, 438 So. 2d 822, 823 (Fla. 1983); see also,
e.g., Cochran v. State, 220 S.E.2d 477, 478 (Ga. Ct. App. 1975) (holding
that because ―the elements of the offenses of aggravated assault and
criminal damage to property are different, a finding of not guilty as
to one and guilty as to the other is neither inconsistent nor
repugnant‖); Halstead, 791 N.W.2d at 816 (reversing a conviction of a
compound offense because the ―jury simply could not convict [the
defendant] of the compound crime of assault while participating in a
felony without finding him also guilty of the predicate felony offense
of theft in the first degree‖ (footnote omitted)); People v. Delee, 108
A.D.3d 1145, 1148 (N.Y. App. Div. 2013) (―[B]ased on our review of
the elements of the offenses as charged to the jury, we conclude that
the verdict is inconsistent, i.e., ‗legally impossible.‘‖).
¶54 Our decision today is a policy pronouncement of a narrow
scope. It is limited to legally impossible verdicts in which a defendant
is acquitted on the predicate offense but convicted on the compound
offense. We also strongly believe that our ruling will assist in
eliminating further mischief of this type. Our newly established rule
will likely incentivize judges and prosecutors to use more precise
jury instructions and to employ special verdict forms to help avoid
the possibility of such legally impossible verdicts.
¶55 We also, however, task our advisory committee to establish a
rule that reflects our decision today. We have done this before. See
Manning, 2005 UT 61, ¶ 31 (After our decision in Manning, which
established a new rule that allows defendants to move to reinstate
their right to appeal, our advisory committee formulated a rule—rule
4(f) of the Utah Rules of Appellate Procedure—reflecting our
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PETERSEN, J. dissenting
¶56 appellate-driven rulemaking. See UTAH R. APP. P. 4(f)
advisory committee‘s note (―Paragraph [4](f) was adopted to
implement the holding and procedure outlined in Manning v.
State.‖)); see also UTAH R. CIV. P. 7 advisory committee‘s note
(explaining that a ―major objective of the 2015 amendments [was] to
continue the policy of clear expectations of the parties established in‖
a line of this court‘s cases). In this vein, we recognize that our
reasoning today may extend to some other types of inconsistent
verdicts—not covered by this case or Stewart. If it truly is the case
that persuasive arguments can be made against other forms of
inconsistent verdicts, we should not be opposed to hearing them. Our
advisory committee should therefore consider other forms of
inconsistencies in its deliberations. In any case, our self-imposed
procedure—unlike a constitutional or statutory limit—should not
prevent us from delivering justice today.
CONCLUSION
¶57 A jury simply could not both convict Terry of the compound
offense of domestic violence in the presence of a child and acquit him
of the predicate offense of domestic violence assault. Such a verdict
cannot stand as a matter of law. We use our constitutionally granted
supervisory authority to establish a rule by which such verdicts must
be overturned, and we refer the issue of inconsistent verdicts to our
advisory committee for consideration in accordance with this
opinion. Given this resolution, we reverse and vacate Terry‘s
conviction of the compound offense.
JUSTICE PETERSEN, dissenting:
¶58 The majority holds that Utah courts must overturn a
conviction if the jury‘s verdict is ―legally impossible,‖ meaning that
the jury acquitted the defendant of a predicate offense but convicted
on a related compound offense. As an appellate court, we must
ensure that a trial court‘s jury instructions and rulings were not
infected with legal error when a defendant raises such a challenge.
Likewise, when the issue is raised, we must ensure that a conviction
was supported by sufficient evidence. We make these assessments on
each challenged count independently. But the majority‘s holding
requires Utah courts to conduct a novel kind of review—assessing
the validity of one count based on the jury‘s verdict on another count.
Deriving meaning from an internal contradiction in a jury verdict is
guesswork. To open the door to this practice is to replace the jury‘s
collective judgment with a speculative judicial presumption and
diminish the finality of jury verdicts. We should resist this temptation
27
PLEASANT GROVE v. TERRY
PETERSEN, J. dissenting
and continue to review challenged counts independently based upon
the trial record.
¶59 I agree that the verdict here is confounding. We have no idea
why the jury found beyond a reasonable doubt that Terry committed
domestic violence in front of his child but acquitted him of domestic
violence based on the same facts. What we do know is that Terry
does not challenge the relevant jury instructions or complain of any
other legal error at trial. And we know that Terry does not dispute
that Pleasant Grove put on sufficient evidence in support of the
conviction. Accordingly, viewed independently, Terry‘s conviction is
undisputedly valid. But Terry argues, and the majority agrees, that
his conviction for committing domestic violence in front of a child
should be overturned because it is in legal conflict with the jury‘s
acquittal on a separate count of domestic violence.
¶60 Importantly, neither the United States Constitution, the Utah
Constitution, nor the Utah Code have been read to require that an
inconsistent but otherwise valid conviction be overturned. See, e.g.,
United States v. Powell, 469 U.S. 57, 65 (1984) (―Inconsistent verdicts
therefore present a situation where ‗error,‘ in the sense that the jury
has not followed the court's instructions, most certainly has occurred,
but it is unclear whose ox has been gored. Given this uncertainty, and
the fact that the Government is precluded from challenging the
acquittal, it is hardly satisfactory to allow the defendant to receive a
new trial on the conviction as a matter of course. . . . [N]othing in the
Constitution would require such a protection, and we therefore
address the problem only under our supervisory powers over the
federal criminal process.‖). The majority acknowledges this but
determines that we should prohibit a ―legally impossible‖ verdict
pursuant to our power to supervise the courts.
¶61 The United States Supreme Court has rejected such an
approach because it is based on speculation and departs from the
foundational principle that courts should review each count of
conviction independently. In Dunn v. United States, the defendant
was convicted of ―maintaining a common nuisance by keeping for
sale at a specified place intoxicating liquor,‖ but was acquitted of
possessing or selling such liquor. 284 U.S. 390, 391–92 (1932). In
affirming the conviction, the Court explained, ―Consistency in the
verdict is not necessary. Each count in an indictment is regarded as if
it was a separate indictment.‖ Id. at 393. And the Court reasoned,
―The most that can be said in such cases is that the verdict shows that
either in the acquittal or the conviction the jury did not speak their
real conclusions, but that does not show that they were not convinced
of the defendant's guilt.‖ Id. (citation omitted).
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PETERSEN, J. dissenting
¶62 The Court reaffirmed this holding in Powell, in which the
defendant was convicted of using the telephone to commit, cause,
and facilitate a conspiracy to possess with intent to distribute cocaine,
but was acquitted of conspiring to possess with intent to distribute
such cocaine. 469 U.S. at 59–60. In Powell, the Court rejected the
argument that the majority embraces today:
[T]he argument necessarily assumes that the acquittal
on the predicate offense was proper—the one the jury
―really meant.‖ This, of course, is not necessarily
correct; all we know is that the verdicts are inconsistent.
The Government could just as easily—and
erroneously—argue that since the jury convicted on the
compound offense the evidence on the predicate
offense must have been sufficient.
Id. at 68. The Court stated emphatically that ―[t]he rule established in
Dunn v. United States has stood without exception in this Court for 53
years. If it is to remain that way, and we think it should, the
judgment of the Court of Appeals must be [r]eversed.‖ Id. at 69. The
rule has now stood for eighty-eight years.
¶63 We have adopted the Supreme Court‘s reasoning in the
context of factually inconsistent verdicts. See State v. Stewart, 729 P.2d
610, 612-14 (Utah 1986) (per curiam). In Stewart, four co-defendants
were tried for the stabbing death of a fellow prison inmate based on
similar evidence, but two were convicted and two were acquitted. Id.
at 611. The two convicted defendants appealed, arguing that the
verdicts were so ―obviously inconsistent that they demonstrate an
insufficiency of the evidence.‖ Id.
¶64 We rejected that argument. Id. In doing so, we employed the
rationale of Dunn and Powell. We determined that the evidence in
support of the convictions was sufficient and observed that our
review of one count of conviction ―should be independent of the
jury‘s determination that evidence on another count was
insufficient.‖ Id. at 613 (quoting Powell, 469 U.S. at 67). Further, we
explained that once the prosecution has ―convince[d] the jury with its
proof, and . . . satisf[ied] the courts that given this proof the jury
could rationally have reached a verdict of guilt beyond a reasonable
doubt[,] [w]e do not believe that further safeguards against jury
irrationality are necessary,‖ id. (quoting Powell, 469 U.S. at 67).
¶65 And we rejected the premise that we should accept the jury‘s
acquittals over its guilty verdicts. We stated:
Appellant argues that because the evidence must have
been insufficient as to the acquitted defendants, it was
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PLEASANT GROVE v. TERRY
PETERSEN, J. dissenting
just as insufficient as to the convicted defendants.
Therefore, appellant concludes, the jury‘s verdict as to
all the defendants must really be interpreted as an
acquittal. However, the prosecution could just as
logically and erroneously reason that because the
evidence is ―in effect the same,‖ the guilty verdicts
indicate the jury‘s true intentions and the verdicts of
acquittal should be reversed.
Id. at 613 n.1 (quoting Powell, 469 U.S. at 68).
¶66 I agree with the majority that our decision in Stewart does
not control our decision today. A legally contradictory verdict may
present us with different considerations than a factually inconsistent
verdict, and it is fair to analyze whether the rationale of Stewart
should extend to the facts here. But I find the reasoning of Stewart to
offer persuasive insight that we should not easily dismiss.
¶67 Specifically, there is a sound basis for our practice of
reviewing each challenged count of conviction independently. It
properly confines us to the trial record. And it prevents us from
basing legal conclusions on speculative presumptions about the
jury‘s intentions. As the Tenth Circuit has explained, ―We cannot
properly draw from the acquittal on Count II any inference regarding
the basis of the jury's conviction on Count I.‖ United States v. Espinoza,
338 F.3d 1140, 1148 (10th Cir. 2003).
¶68 We simply do not know which side was harmed in the event
of an inconsistent verdict because we do not know why the jury
made the decisions it did. Such verdicts ―should not necessarily be
interpreted as a windfall to the Government at the defendant‘s
expense. It is equally possible that the jury, convinced of guilt,
properly reached its conclusion on the compound offense, and then
through mistake, compromise, or lenity, arrived at an inconsistent
conclusion on the lesser offense.‖ 18 Powell, 469 U.S. at 65.
_____________________________________________________________
18 The Powell Court discussed further the possibility that
inconsistent verdicts may generally favor criminal defendants,
observing ―Dunn's alternative rationale‖ that ―such inconsistencies
often are a product of jury lenity.‖ United States v. Powell, 469 U.S. 57,
65 (1984). The Court noted that ―Dunn has been explained by both
courts and commentators as a recognition of the jury's historic
function, in criminal trials, as a check against arbitrary or oppressive
exercises of power by the Executive Branch.‖ Id. (citations omitted).
(continued . . .)
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PETERSEN, J. dissenting
¶69 Although we can only guess why the jury here returned the
verdicts it did, the majority‘s solution is to effectively presume that
the jury ―really meant‖ the acquittal and to therefore overturn the
conviction. The majority concludes this is preferable because it
furthers the principle that ―[i]t is better that ten guilty persons escape
than one innocent suffer.‖ Supra ¶ 25 (quoting 4 WILLIAM
BLACKSTONE, COMMENTARIES *352). The majority argues that to let the
conviction stand is to presume ―unlawful acquittal,‖ supra ¶ 25, and
that the jury ―‗engage[s] in an act of lenity when it acquit[s] the
defendant‘ of a predicate offense but convicts the defendant of the
compound one.‖ Supra ¶ 32 (citation omitted).
¶70 But that is not so. Analyzing separate counts independently
makes no presumption in either direction. It simply allows the jury‘s
verdict to stand on each count as-is, as long as it is otherwise valid.
So here, Terry ―is given the benefit of [the] acquittal on the counts on
which [he] was acquitted,‖ and ―accept[s] the burden of conviction
on the counts on which the jury convicted.‖ Powell, 469 U.S. at 69. In
contrast, the majority‘s approach requires a portion of the jury‘s
verdict to be discarded—replaced by a reviewing court‘s
presumption that the jury‘s determination of guilt beyond a
reasonable doubt on one count is invalid because the jury spoke its
true intentions with respect to the count of acquittal.
¶71 And it is important to remember that here, as would be the
case with any conviction that is ―otherwise valid,‖ there is no legal or
evidentiary challenge to the conviction on its own. The ―repugnancy‖
that the majority speaks of is inconsistency itself. But we can only
speculate as to what the inconsistency actually means.
¶72 By mandating that such jury verdicts be overturned by
reviewing courts, the majority weakens our longstanding and deep
reluctance to disturb the finality of a jury verdict. ―[O]nce the jury
has heard the evidence and the case has been submitted, the litigants
must accept the jury‘s collective judgment. . . . [T]hrough this
deference the jury brings to the criminal process, in addition to the
Here, it is possible that the jury felt the City‘s decision to charge
Terry with both domestic violence and domestic violence in the
presence of a child was overkill, and therefore chose to convict him of
only one. This seems a more likely explanation than animus. See supra
¶ 32 n.15. But my primary point is that we simply do not know.
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PLEASANT GROVE v. TERRY
PETERSEN, J. dissenting
collective judgment of the community, an element of needed
finality.‖ Id. at 67 (citations omitted).
¶73 The rule the majority announces today is admittedly a
narrow one. But the majority also says, ―We routinely overturn trial
courts‘ decisions for legal errors. We should do the same when a jury
makes a legal error.‖ Supra ¶ 27. And it invites our advisory
committee to ―consider other forms of inconsistencies in its
deliberations.‖ Supra ¶ 55. This foreshadows a willingness to expand
the practice of appellate courts (or trial courts faced with a motion for
a new trial) comparing counts against one another and applying
groundless presumptions about what the jury must have meant. The
potential for this is high, as verdicts can be legally and factually
inconsistent in various ways and to different degrees.
¶74 For example, in his dissent in Dunn, Justice Butler criticized
the ―repugnancy‖ of all manner of inconsistent verdicts. 284 U.S. at
399–407 (Butler, J., dissenting). He argued that ―[i]n criminal cases no
form of verdict will be good which creates a repugnancy or absurdity
in the conviction.‖ Id. at 400. He explained that for an offense
requiring the participation of two or more, if one person were
convicted and the others acquitted, the verdict would be ―deemed
wholly repugnant and invalid.‖ Id. at 402 (citation omitted). In
another example he argued, ―On indictment of riot against three,‖ a
verdict finding less than three defendants guilty is void, ―for more
than two must riot.‖ Id.
¶75 But if we set out to correct inconsistencies by comparing
separate counts and making a presumption about ―Count II‖ based
on the jury‘s decision on ―Count I,‖ we replace the jury‘s collective
judgment with judicial speculation. The majority disagrees, asserting
that no speculation or inquiry into the jury‘s deliberations is required
because a reviewing court will be able to spot a legal impossibility on
the face of the verdict. Supra ¶ 33. But this does not resolve my
critique. While the reviewing court may not be piercing jury
deliberations to find the jury‘s true intent, it goes a step further and
presumes it knows the answer.
¶76 We should not draw from a jury‘s decision to acquit on one
count an inference regarding its decision to convict on a separate
count. Assessing Terry‘s conviction for domestic violence in the
presence of a child independently, there is no dispute that it is valid. I
would affirm.
32