                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                  2020 UT 9


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                Respondent,
                                       v.
                          MEAGAN GRUNWALD,
                              Petitioner.

                             No. 20180459
                         Heard March 18, 2019
                        Filed February 21, 2020

             On Certiorari to the Utah Court of Appeals

                      Fourth District, Provo
                  The Honorable Darold McDade
                         No. 141400517

                                 Attorneys:
 Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Sol. Gen.,
  Salt Lake City, Timothy L. Taylor, AnnMarie T. Howard, Provo,
                          for respondent
             Douglas J. Thompson, Provo, for petitioner


CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
  JUSTICE HIMONAS, JUSTICE PEARCE, and JUDGE THOMAS* joined.
       ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.
Having recused herself, JUSTICE PETERSEN does not participate herein;
           DISTRICT COURT JUDGE DOUGLAS THOMAS sat.




   * Judge Thomas sat on this case and voted before his retirement
on January 1, 2020.
                         STATE v. GRUNWALD
                        Opinion of the Court

   CHIEF JUSTICE DURRANT, opinion of the Court:
                            Introduction
    ¶1 Meagan Grunwald was convicted as an accomplice to the
crime of aggravated murder. But the jury instruction that provided
the basis for her conviction contained three errors: (1) it
impermissibly permitted conviction based on a finding of
recklessness, a less culpable mental state than is required by statute,
(2) it impermissibly permitted conviction based on intentional aid
that was not directly connected to the murder, and (3) it
impermissibly permitted conviction based on a finding that
Ms. Grunwald knew that the principal actor’s conduct was reasonably
certain to result in aggravated murder, rather than on the finding
that she knowingly committed the actus reus to help the principal
actor in committing the murder. We must determine whether any of
these errors, or a combination of them, caused a reasonable
probability of an unfair conviction. In other words, we must
determine whether, in the absence of these errors, there is a
reasonable probability the jury would have arrived at a different
result.
    ¶2 The court of appeals considered this question and
determined there was no such probability. Accordingly, that court
affirmed Ms. Grunwald’s conviction. Now Ms. Grunwald asks us to
reverse the decision of the court of appeals because, in her view, the
court failed to properly consider all of the evidence presented to the
jury and misconstrued some of the legal requirements of accomplice
liability. Because it is reasonably probable that the jury would not
have convicted Ms. Grunwald of aggravated murder absent the jury
instruction errors, we reverse her conviction and remand for a new
trial with correct jury instructions.
                             Background
   ¶3 Jose Angel Garcia Juaregi (Mr. Garcia) shot and killed a
police officer through the back window of his girlfriend’s pickup
truck. Some of the facts surrounding this murder are undisputed,
while others are hotly contested and underlie the key issue on
appeal.
   ¶4 It is undisputed that at the time of the murder Mr. Garcia
and his girlfriend, Meagan Grunwald, were parked on the side of a
road with their hazard lights flashing, and that Sergeant Cory Wride,
the victim-police officer, had pulled up behind them to perform a
“motorist assist.” During the motorist assist, Sergeant Wride first
approached the driver-side door to speak to Ms. Grunwald, who was

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                         Opinion of the Court

driving, and asked her if she was okay. Although she was crying and
her face was red, she told Sergeant Wride that she was fine. Sergeant
Wride then returned to his car to verify Ms. Grunwald’s and
Mr. Garcia’s identities through a search of a police database. But
Mr. Garcia had provided a false name and birthdate because a
warrant had been issued for his arrest, so Sergeant Wride’s search
did not yield any results.
    ¶5 Video footage from Sergeant Wride’s dashboard camera
reveals what happened next. About ten minutes into the motorist
assist, Sergeant Wride exited his car and approached the
passenger-side window to speak to Mr. Garcia. At the window,
Sergeant Wride asked Mr. Garcia if he had provided a false name,
and Mr. Garcia admitted that he had. Mr. Garcia then provided
another false name, and Sergeant Wride returned to his car to run
the second false name through the police database.
    ¶6 Although the heavy tint on the truck’s back window
prevented the dashboard camera from recording what was taking
place inside the truck, footage does show that about a minute after
Sergeant Wride returned to his vehicle, the truck’s brake lights
flashed on and the lower-rear lights flickered, indicating a gear shift.
One minute and a half later, the rear-passenger side window popped
open about an inch. Just over one minute after that, the truck lurched
forward slightly. And roughly one minute later, the truck’s center,
rear window slid open and Mr. Garcia fired seven shots at Sergeant
Wride in quick succession. After the fifth shot, Ms. Grunwald began
pulling onto the road. Mr. Garcia fired the final two shots as she
drove away. The entire event—from the time Sergeant Wride spotted
Ms. Grunwald’s truck parked on the side of the road to the moment
the truck drove away after the shooting—took roughly eighteen
minutes, the last four of which involved Ms. Grunwald holding her
foot on the brake and driving away after the shots had been fired.
    ¶7 After an extended police chase, Mr. Garcia was shot and
killed, and Ms. Grunwald was arrested. Ms. Grunwald was charged
as an accomplice in Sergeant Wride’s murder, as well as in a number
of other crimes that are not at issue in this appeal. A trial followed.
    ¶8 At trial, the jury was shown the dash-cam footage multiple
times. Both parties agree the dash-cam footage accurately depicts the
crime in this case. But as to the details of what was taking place
inside the truck immediately before Mr. Garcia began shooting, the
jury heard two very different stories.
   ¶9 Ms. Grunwald raised “compulsion” as an affirmative
defense at trial. Under the doctrine of compulsion, people are not
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                        STATE v. GRUNWALD
                        Opinion of the Court

guilty of a crime if they were coerced, through threat or force, to
commit the crime. In support of her compulsion defense,
Ms. Grunwald’s attorney painted Mr. Garcia as “the ultimate
predator and exploiter” and a “master manipulator” and
Ms. Grunwald as a scared, impressionable young girl who became
increasingly intimidated by Mr. Garcia’s growing anger and
agitation. According to Ms. Grunwald, while Sergeant Wride was
searching Mr. Garcia’s false name, Mr. Garcia put a gun to her head
and threatened her and her family. He then demanded that she put
her foot on the brake, and, after she complied with this demand, he
shifted the truck into drive. Finally, Ms. Grunwald testified that she
began driving only after Mr. Garcia yelled “go, go, go” at her. So,
based on this version of the story, Ms. Grunwald argues that
anything she may have done to assist Mr. Garcia in murdering
Sergeant Wride was coerced.
    ¶10 But even though Ms. Grunwald argued she was coerced into
acting, she never admitted she intended for Mr. Garcia to kill
Sergeant Wride, nor that she knew he would do so. Instead, she
testified she did not know Mr. Garcia intended to kill Sergeant
Wride, and that, even after Mr. Garcia had shot his gun, she assumed
he had merely attempted to disable the police car. Ms. Grunwald did
admit, however, that she twice heard Mr. Garcia say that he was
going to “buck [Sergeant Wride] in the fucking head.” But she
testified that she did not know what this statement meant and that
Mr. Garcia refused to clarify his meaning when she asked him to do
so.1 So even though Ms. Grunwald admits she held her foot on the
brake for approximately four and a half minutes before Mr. Garcia
began shooting, and that at some point during that time Mr. Garcia
stated he was going to “buck” Sergeant Wride in the head, she
claims she did not intend for Mr. Garcia to kill him or know that he
would do so.

_____________________________________________________________
   1 At trial, Ms. Grunwald’s testimony regarding the timing of this
statement was inconsistent. On direct-examination, she narrated the
events taking place inside the truck while the dash-cam video
played. During this testimony she indicated that she had placed her
foot on the brake pedal approximately three minutes and forty
seconds before Mr. Garcia allegedly made the statement at issue (and
four and a half minutes before he began firing). But on
cross-examination, she indicated that Mr. Garcia had made the
statement before she placed her foot on the brake.


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                          Opinion of the Court

    ¶11 The State, on the other hand, described Ms. Grunwald as a
desperate lover who would not allow anything “to get in her way or
come between her and her man.” According to the State, upon
learning that Mr. Garcia had a “Board of Pardons warrant out,”
Ms. Grunwald felt “her world crumbling down” because she could
no longer be with Mr. Garcia if he were arrested. For this reason, the
State argued, she viewed Sergeant Wride as “a threat to her[self] and
her future.” The State argued that, because of this fear,
Ms. Grunwald and Mr. Garcia formed a plan, and that consistent
with that plan, Ms. Grunwald intentionally aided in Sergeant
Wride’s murder. According to the State, she did this by placing her
foot on the brake, shifting into gear, waiting with her foot on the
brake in preparation for their escape, and acting as a lookout so that
Mr. Garcia could open fire when no other cars were driving by.
    ¶12 After both sides presented their versions of the story at trial,
the jury returned a guilty verdict. Ms. Grunwald appealed to the
court of appeals. On appeal, she argued that her trial counsel was
ineffective for failing to object to three errors in the jury instruction
regarding accomplice liability. The court of appeals agreed that the
jury instructions erroneously (1) included “recklessness” as a mental
state upon which criminal liability could be found;2 (2) allowed the
jury to convict Ms. Grunwald based on intentional aid that was not
directly connected to the murder;3 and (3) allowed the jury to convict
Ms. Grunwald based on knowledge that Mr. Garcia’s actions were
reasonably certain to result in the aggravated murder, rather than on
knowledge that her own actions were reasonably certain to do so.4
The court of appeals also concluded that the performance of
Ms. Grunwald’s trial counsel was deficient because he did not object
to these errors in the jury instructions.
   ¶13 But the court of appeals determined that those errors were
not prejudicial, because the evidence demonstrated that
Ms. Grunwald intentionally aided Mr. Garcia to commit those crimes
and, because the jury rejected her “compulsion” theory, there was
not a reasonable probability of a more favorable outcome absent the
errors.


_____________________________________________________________
   2   State v. Grunwald, 2018 UT App 46, ¶ 33, 424 P.3d 990.
   3   Id. ¶ 39.
   4   Id. ¶ 41.


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                           STATE v. GRUNWALD
                          Opinion of the Court

   ¶14 Ms. Grunwald requested certiorari review of this
determination, which we granted. We have jurisdiction pursuant to
Utah Code section 78A-3-102(3)(a).
                          Standard of Review
   ¶15 We granted certiorari to review whether the court of appeals
erred in concluding that Ms. Grunwald’s trial counsel’s deficient
performance did not result in prejudice. On certiorari, “we review
the court of appeals’ decision for correctness.”5
                                Analysis
    ¶16 Ms. Grunwald argues her aggravated murder conviction
should be overturned because her trial counsel was ineffective for
failing to object to multiple errors in the relevant jury instruction.
The jury instruction required the jury to find Ms. Grunwald guilty as
an accomplice to aggravated murder if it found that (1) she
“‘[i]ntentionally,’ ‘knowingly,’ or ‘recklessly’ solicited, requested,
commanded, encouraged, or ‘intentionally’ aided” Mr. Garcia who
committed aggravated murder and (2) she “[i]ntended that
[Mr. Garcia] commit the crime of Aggravated Murder, or [w]as
aware that [Mr. Garcia’s] conduct was reasonably certain to result in
[Mr. Garcia] committing the crime of Aggravated Murder, or
[r]ecognized that her conduct could result in [Mr. Garcia]
committing the crime of Aggravated Murder but chose to act
anyway.” The court of appeals identified three distinct errors in this
jury instruction. First, the court explained that the instruction
erroneously “permits a conviction based on a reckless mental state.”6
Second, it explained that the instruction erroneously permits
conviction based on intentional aid that was not directly connected
to the murder.7 And third, it explained that the instruction
erroneously permits conviction based on knowledge that
Mr. Garcia’s actions were reasonably certain to cause the aggravated
murder, rather than on knowledge that Ms. Grunwald’s own actions
were reasonably certain to do so.8


_____________________________________________________________
   5  State v. Martinez-Castellanos, 2018 UT 46, ¶ 32, 428 P.3d 1038
(citation omitted).
   6   State v. Grunwald, 2018 UT App 46, ¶ 33, 424 P.3d 990.
   7   Id. ¶ 37.
   8   Id. ¶ 40.


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                           Opinion of the Court

    ¶17 The court of appeals also concluded that the performance of
Ms. Grunwald’s trial counsel had been deficient because he failed to
object to these errors.9 But the court nevertheless affirmed her
aggravated murder conviction because it concluded that the jury
instruction errors did not prejudice Ms. Grunwald.10 Ms. Grunwald
asks us to review this decision.
   ¶18 Ms. Grunwald argues that the court of appeals erred in
concluding the jury instruction errors did not result in prejudice
because it failed to consider the totality of the evidence, and it
misstated, or misconstrued, much of the evidence it did consider. We
agree.
    ¶19 Under the standard the United States Supreme Court
established in Strickland v. Washington, a court may disturb a criminal
conviction based on an allegation of ineffective assistance of counsel
only where the criminal defendant shows (1) “that counsel’s
performance was deficient,” and (2) that “the deficient performance
prejudiced the [criminal defendant’s] defense.”11 The first prong of
this analysis requires the defendant to show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”12 And the
second prong requires the defendant to show that “counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.”13 The court of appeals applied this
two-pronged analysis to the facts of this case.
    ¶20 Although, under the first prong, the court determined that
Ms. Grunwald’s trial counsel’s failure to object to the erroneous jury
instructions constituted deficient performance,14 it concluded, under

_____________________________________________________________
   9   Id. ¶ 42.
   10   Id. ¶ 49.
   11   466 U.S. 668, 687 (1984).
   12   Id.
   13   Id.
   14   The court of appeals determined that the performance of
Ms. Grunwald’s trial counsel was “deficient because [he] failed to
object to serious errors in the jury instructions relating to accomplice
liability.” Grunwald, 2018 UT App 46, ¶ 24. This determination was
not appealed.


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                            Opinion of the Court

the second prong, that these errors did not prejudice
Ms. Grunwald.15 But after reviewing the evidence on record, we
conclude otherwise.
    ¶21 Under Strickland’s prejudice prong, we must determine
whether “counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”16 So this case
requires us to determine whether Ms. Grunwald’s trial counsel’s
failure to object to the erroneous jury instructions deprived her of a
fair trial the result of which is reliable. In the past we have suggested
that we may presume prejudice where there were errors in a jury
instruction related to an essential element of a crime.17 But in our
recent State v. Garcia decision, we clarified that, where an error in a
jury instruction is alleged, we must conduct the full analysis
required under Strickland’s prejudice prong.18
    ¶22 When applying Strickland’s prejudice analysis in the context
of erroneous jury instructions, we must determine whether there is a
reasonable probability the jury would not have convicted the
defendant if the jury instructions had been correct. A reasonable
probability “is a probability sufficient to undermine [our] confidence
in the outcome.”19 To determine whether there is a reasonable
probability of a different outcome, we must ask ourselves two
questions: (1) did the error in the jury instructions create the
possibility that the jury convicted the defendant based on factual
findings that would not have led to conviction had the instructions
been correct? and, (2) if so, is there a reasonable probability that the
jury based its verdict on those factual findings? We followed this
two-part analysis in Garcia.20

_____________________________________________________________
   15   Id. ¶ 49.
   16   Strickland, 466 U.S. at 687.
   17 See State v. Laine, 618 P.2d 33, 35 (Utah 1980) (“In our view, the
failure to include the intent element in the basic ‘elements’
instruction is reversible error.”).
   182017 UT 53, ¶ 41, 424 P.3d 171 (criticizing the court of appeals
for failing to “fully conduct[] the prejudice inquiry Strickland
requires” in a case involving erroneous jury instructions).
   19   Id. ¶ 42 (citation omitted).
   20Id. ¶ 41. Associate Chief Justice Lee argues that this two-step
analysis reformulates the Strickland prejudice prong. See infra ¶¶ 85,
                                                         (Continued)
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                            Opinion of the Court

    ¶23 In Garcia, we considered whether an error in an instruction
relating to the defendant’s affirmative defense had resulted in
prejudice. In so doing, we suggested that courts should begin by
analyzing “how [the erroneous] instruction might have impacted
[the defendant’s] trial” and by “predict[ing] juror behavior in
response to the erroneous instruction.”21 In other words, this step
requires courts to compile a list of the theoretical factual scenarios in
which the incorrect instruction permitted the jury to impermissibly
convict the defendant.
    ¶24 For example, in Garcia, the jury instruction at issue failed to
clearly convey the significance of a finding of imperfect self-defense.
In that case, a correct jury instruction “would have informed the jury
that if [the defendant] acted in imperfect self-defense,” the defendant
could be convicted only of attempted manslaughter, not attempted
murder.22 Because the jury instructions failed to inform the jury of
the consequence of an imperfect self-defense finding, they created
the possibility that the jury convicted the defendant of attempted
murder even if the jury concluded that the defense of imperfect
self-defense applied. So, in Garcia, there was a theoretical factual
scenario—a scenario upon which the jury found that the defendant


102–04 (Lee, A.C.J., dissenting). In his view, our analysis “asks only
whether there is a reasonable probability that the jury in fact based
its decision on an error in the jury instructions,” not whether “the
jury would have come down the other way in the absence of such an
error.” See infra ¶ 104 (Lee, A.C.J., dissenting) (emphasis in original).
But Justice Lee overlooks a key part of our two-step analysis. Part
one of our analysis requires us to determine whether the jury could
have based a conviction on a factual scenario that would not have led
to conviction had the instructions been correct. Part two then requires us
to determine whether there is a reasonable probability that the jury
based its guilty verdict on those factual findings. By identifying
whether there is a reasonable probability the jury based its decision
on factual findings that would not have supported a guilty verdict
had the jury instructions been correct, these steps require us to
determine whether there is “a reasonable probability that the jury
would have reached a different verdict under a correct instruction.”
See infra ¶ 104 (Lee, A.C.J., dissenting). So our analysis requires what
Justice Lee argues it must under Strickland’s prejudice prong.
   21   2017 UT 53, ¶ 41.
   22   Id. ¶ 23 n.5.


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                            Opinion of the Court

acted in self-defense—in which the incorrect instructions may have
permitted the jury to erroneously convict the defendant.
    ¶25 Thus the first step of our prejudice analysis, in the context of
jury instruction errors, is to identify the theoretical factual scenarios
in which the error in the jury instructions permitted the jury to
wrongfully convict the defendant.23 In this case, the court of appeals
concluded that three errors in “the jury instructions improperly
allowed the jury to convict [Ms.] Grunwald as an accomplice under
three impermissible scenarios: (1) if she acted recklessly as to the
results of her conduct, rather than intentionally or knowingly; (2) if
she directed her actions to some purpose other than the commission
of the principal crime; or (3) if she acted knowing that [Mr.] Garcia’s
actions, rather than her own, were reasonably certain to result in the
commission of the principal crime.”24 We largely agree with this
analysis.
    ¶26 The court of appeals correctly applied the first step of the
Garcia analysis, but it erred in applying Garcia’s second step. In
Garcia, we explained that, in addition to identifying theoretical
factual scenarios in which the error in the jury instructions permitted
the jury to wrongfully convict the defendant, a “proper analysis also
needs to focus on the evidence before the jury and whether the jury
could reasonably have [made factual findings] such that a failure to
instruct the jury properly undermines confidence in the verdict.”25 In
other words, after we have identified the factual scenarios that
theoretically could have formed the basis of a wrongful conviction,

_____________________________________________________________
   23 Justice Lee criticizes this step in his dissent. See infra ¶ 103 n.91
(Lee, A.C.J., dissenting) (explaining that we need not “compile a list
of the theoretical factual scenarios in which the incorrect instruction
permitted the jury to impermissibly convict the defendant”). But
Justice Lee does not explain how an appellate court could conduct a
thorough prejudice analysis regarding a jury instruction error
without first identifying the potential ways in which that error could
have impacted the jury. As a practical matter, an appellate court will
be unable to determine whether there is a reasonable probability that
a jury would have reached a different result absent a jury instruction
error without first identifying the possible ways that error could
have affected the jury.
   24   Grunwald, 2018 UT App 46, ¶ 42.
   25   2017 UT 53, ¶ 42.


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                        Opinion of the Court

we must determine whether there is a reasonable probability that,
based on the totality of the evidence, the jury convicted the
defendant based on one of those impermissible scenarios. If we
conclude there is a reasonable probability the jury convicted the
defendant based on one of the identified, impermissible factual
scenarios, we may confidently hold that there is a reasonable
probability the jury would not have reached a guilty verdict but for
the errors in the jury instructions.
    ¶27 Although the court of appeals correctly identified three
scenarios in which the jury instruction errors permitted the jury to
wrongfully convict Ms. Grunwald of aggravated murder, it
ultimately concluded there was not a reasonable probability that the
jury convicted Ms. Grunwald based on any of them. We disagree.
After considering the totality of the evidence, we conclude there is a
reasonable probability the jury based its conviction on one of the
impermissible scenarios rather than on a permissible one.
    ¶28 In so concluding, we note that the lack of any direct
evidence contradicting Ms. Grunwald’s testimony is a significant
factor in our decision. The events underlying the alleged crime in
this case occurred inside Ms. Grunwald’s truck. And the only
evidence directly informing us regarding those events comes from
Ms. Grunwald’s testimony. Although we also have video evidence
depicting the outside of the truck during the event, the heavy tint on
the truck’s windows severely limits the information that video
evidence provides. The video evidence indicates that Ms. Grunwald
held her foot on the brake for a number of minutes, that, at one
point, someone shifted the truck into drive, and it shows that the
truck lurched forward slightly—suggesting that someone was
moving around inside—shortly before the back window slid open
and Mr. Garcia opened fire. This information is entirely consistent
with Ms. Grunwald’s testimony on direct-examination, where she
carefully narrated what was occurring inside the truck as the jury
watched the video. After considering this evidence, together with the
other circumstantial evidence, we conclude there is a reasonable
probability that, absent the jury instruction errors, the jury would
have found Ms. Grunwald not guilty as an accomplice to the
murder.
   ¶29 But this conclusion should not be misinterpreted as a
finding that Ms. Grunwald is, in fact, not guilty. We are fully aware
that the video evidence could also be interpreted consistent with the
version of events hypothesized by the State. And we are mindful
that a reasonable jury may find portions, or even all, of

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                         STATE v. GRUNWALD
                         Opinion of the Court

Ms. Grunwald’s testimony to lack credibility, particularly when
considered in context of other, circumstantial evidence. But, contrary
to what Associate Chief Justice Lee argues in his dissent, this other
evidence does not eliminate the reasonable probability that a jury
could find Ms. Grunwald not guilty.
    ¶30 In his dissent, Justice Lee disregards the only direct evidence
we have of what occurred inside Ms. Grunwald’s truck. And his
ultimate conclusion appears to rest on a number of assumptions he
makes regarding what Ms. Grunwald was thinking at the time of the
murder26 and the effect certain evidence, particularly
Ms. Grunwald’s testimony, would have on a jury.27 But, as an
appellate court, we are not well-positioned to make the type of
unequivocal credibility determinations upon which Justice Lee’s
conclusion rests.28 Although a jury could possibly react to the

_____________________________________________________________
   26  See infra ¶ 79 (Lee, A.C.J., dissenting) (stating that
Ms. Grunwald acted “to allow [Mr. Garcia] to shift the truck into
drive and aim a gun through the rear window”); infra ¶ 84 (Lee,
A.C.J., dissenting) (stating that Ms. Grunwald “was at least a
knowing collaborator in her boyfriend’s acts of murder”).
   27See infra ¶ 96 (Lee, A.C.J., dissenting) (assuming the jury would
find a portion of Ms. Grunwald’s testimony “utterly lacking in
credibility” and so would have been “likely to disregard all her other
claims of misunderstanding”); infra ¶ 113 (Lee, A.C.J., dissenting)
(assuming the jury “would have discounted anything else she said to
try to exonerate herself”); infra ¶ 115 (Lee, A.C.J., dissenting)
(assuming the jury would find that fifty seconds was more than
enough time to fully process Mr. Garcia’s “buck in the head”
statement and that Ms. Grunwald’s continued act of holding her foot
on the brake meant that she intended to help, or knew it would help,
Mr. Garcia commit murder).
   28 See State ex rel. Z.D., 2006 UT 54, ¶ 24, 147 P.3d 401 (“Appellate
courts are removed temporally and geographically from trial courts.
They do not see juries impaneled or oaths administered to witnesses.
They do not view first-hand witnesses’ ‘tells’ of posture, inflection,
or mood that strengthen or erode credibility. It is the lot of appellate
judges to take their sustenance from the printed page; to peer into
the facts as deeply as the flat plane of paper will permit. By the time
the trial transcript reaches the hands of the appellate judge, the
universal adjective describing its condition is ‘cold.’”).


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evidence in the way Justice Lee assumes it would, we conclude, after
considering the totality of the evidence, that there is a reasonable
probability it could react differently.29 For this reason, the three
errors in the jury instruction have undermined our confidence in the
guilty verdict.30 We consider each jury instruction error, and its effect
on the verdict, separately.31
      I. There is a Reasonable Probability the Jury Found That
Ms. Grunwald Was Reckless as to the Results of Her Conduct, While
  Also Finding That She Did Not Intend for Sergeant Wride to Be
 Killed or Know That His Death Was Reasonably Certain to Result
    ¶31 The first error in the jury instruction is that it permitted the
jury to convict Ms. Grunwald based on a finding that she acted
recklessly, rather than intentionally or knowingly. This constitutes a
serious error.
   ¶32 In State v. Briggs, we held that “[t]o show that a defendant is
guilty under accomplice liability, the State must show that an
individual acted with both the [requisite mental state] that the
underlying offense be committed and the [requisite mental state] to
aid the principal actor in the offense.”32 Accordingly, “the first step

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   29 In rejecting the assumptions Justice Lee has made in this case as
overly speculative, we are not suggesting that appellate courts
should not consider circumstantial evidence in making prejudice
determinations. See infra ¶¶ 97–98 (Lee, A.C.J., dissenting). Nor are
we suggesting that appellate courts can never make credibility
assessments, or that they must accept the entirety of a defendant’s
testimony. See infra ¶ 98 & n.89 (Lee, A.C.J., dissenting). Instead, we
have merely concluded that, based on a totality of the direct and
circumstantial evidence on the record in this case, Justice Lee’s
conclusions regarding Ms. Grunwald’s credibility are too
speculative. And, as a result, we conclude that his complete
disregard of her direct testimony is unwarranted.
   30   See Garcia, 2017 UT 53, ¶ 41.
   31 Although, as an organizational matter, we consider each jury
instruction error separately, our ultimate aim is to determine
whether the jury instruction, as a whole, incorrectly instructed the
jury and, in that way, prejudiced Ms. Grunwald.
   322008 UT 75, ¶ 13, 197 P.3d 628. In Briggs, we actually held that
the State must show that the defendant acted with both the intent
                                                        (Continued)
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                           STATE v. GRUNWALD
                           Opinion of the Court

in applying accomplice liability is to determine whether the
individual charged as an accomplice had the [requisite mental state]
that an underlying offense be committed.”33
    ¶33 The requisite mental state for an aggravated murder
conviction is “knowing” or “intentional.”34 A person acts
intentionally with respect to the result of his or her conduct when it
is his or her “conscious objective or desire to . . . cause the result.”35
And a person acts knowingly when he or she is aware that his or her
conduct is “reasonably certain to cause the result.”36 So the jury
should have been permitted to convict Ms. Grunwald only if it found
that she aided Mr. Garcia desiring to cause Sergeant Wride’s death
or she aided Mr. Garcia knowing that her conduct would most likely
help him to cause Sergeant Wride’s death.
    ¶34 Although the jury instruction included an instruction
regarding intentional and knowing mental states, it also permitted
the jury to convict Ms. Grunwald based on a reckless mental state. It
stated that the jury could convict if it found that Ms. Grunwald
“recognized that her conduct could result in [Mr. Garcia] committing
the crime of Aggravated Murder but chose to act anyway.” The
inclusion of the reckless mental state instruction permitted the jury
to convict Ms. Grunwald if it found that she was aware that her
interactions with Mr. Garcia could possibly assist Mr. Garcia in
murdering Sergeant Wride. So even if the jury had found that
Ms. Grunwald did not intend for Mr. Garcia to kill Sergeant Wride,
or know that her interactions with Mr. Garcia would most likely lead
to Sergeant Wride’s death, the jury was nevertheless permitted to
convict her. This was error.

that the underlying offense be committed and the intent to aid the
principal actor in the offense. Id. But it is clear from subsequent
sentences that we used the term “intent” as a synonym for “criminal
intent” or “the mental state required.” Id.; see also State v. Jeffs, 2010
UT 49, ¶ 43, 243 P.3d 1250 (explaining that when we used the term
“intent” in Briggs, we did so as “a legal term of art that means ‘[t]he
state of mind accompanying an act.’” (quoting Intent, BLACK’S LAW
DICTIONARY 881 (9th ed. 2009) (alteration in original)).
   33   Briggs, 2008 UT 75, ¶ 14.
   34   UTAH CODE § 76-5-202(1).
   35   Id. § 76-2-103.
   36   Id.


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                            Opinion of the Court

    ¶35 Although the court of appeals recognized that this error
permitted the jury to wrongfully convict Ms. Grunwald based on a
factual scenario in which Ms. Grunwald was merely reckless, it
nevertheless concluded that the error did not prejudice
Ms. Grunwald, because there was “no reasonable probability that
the jury based its verdict on a finding that [Ms.] Grunwald was
merely reckless as to the results of her conduct.”37 In support of this
conclusion, the court explained that “[i]t was undisputed that
[Mr.] Garcia was holding a gun and looking back at Sergeant
Wride’s patrol car when [Mr.] Garcia stated that he was ‘going to
buck [the officer] in the fucking head.’”38 It then explained that “no
reasonable person could have misinterpreted [Mr.] Garcia’s objective
under the circumstances.”39 This conclusion is flawed for two
reasons.
    ¶36 First, the court erred in framing the question of
Ms. Grunwald’s mental state in objective terms even though the
mental state element necessarily requires the jury to determine
Ms. Grunwald’s subjective mental state.40 The court concluded that
“no reasonable person could have misinterpreted [Mr.] Garcia’s
objective” when he said he was going to “buck” Sergeant Wride.41
By basing its conclusion on what a reasonable person would have
understood by this statement, the court of appeals, in effect, asked
whether a reasonable juror could have misunderstood Mr. Garcia’s
intention under the circumstances. This was error. When
determining the mental state of a criminal defendant, we cannot
simply impute the mental state of a “reasonable person” to the
defendant. Instead, we must determine the defendant’s actual
mental state. So the court of appeals should have asked whether a
reasonable jury could have concluded that Ms. Grunwald did not
understand Mr. Garcia’s intention. And when the question is

_____________________________________________________________
   37   State v. Grunwald, 2018 UT App 46, ¶ 50, 424 P.3d 990.
   38   Id. (fourth alteration in original).
   39   Id.
   40Mens Rea, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
“mens rea” as the “state of mind that the prosecution, to secure a
conviction, must prove that a defendant had when committing a
crime”).
   41   Grunwald, 2018 UT App 46, ¶ 50.


                                       15
                         STATE v. GRUNWALD
                         Opinion of the Court

reframed in this way, and the totality of the evidence is considered,
there is a reasonable probability the jury may have concluded that
Ms. Grunwald did not understand Mr. Garcia’s intentions even
though a reasonable person would have.
    ¶37 In this case, the only direct evidence regarding what
Ms. Grunwald understood of Mr. Garcia’s intention comes from
Ms. Grunwald’s testimony. She testified at two separate times that
she did not understand what Mr. Garcia meant when he said “I’m
going to buck him.” She also explained that, in response to this
statement, she asked Mr. Garcia what he meant, but that Mr. Garcia
ignored her question and began firing without warning soon after.
And she testified that even after Mr. Garcia had shot his gun, she
assumed he had merely attempted to disable the police car. 42 So, by
framing the question of whether Ms. Grunwald understood the
meaning of the term “buck” in objective terms, the court of appeals
necessarily disregarded Ms. Grunwald’s testimony to the contrary.
    ¶38 The court of appeals may have disregarded Ms. Grunwald’s
testimony regarding her subjective understanding because it
assumed the jury did not believe her when she said she did not
know what the term “buck” meant. In other words, when the court
stated that “no reasonable” person would have misunderstood the
meaning of the term under the circumstances, it may have been
suggesting that the jury would not have believed Ms. Grunwald’s
_____________________________________________________________
   42 We also note that a key difference between a knowing and a
reckless mental state is that, unlike with a reckless mental state, a
knowing mental state requires a defendant to be aware not just that
the relevant conduct could result in the crime, but that it is reasonably
certain to result in the crime. This difference increases the likelihood
that the jury convicted Ms. Grunwald on the recklessness standard.
Based on the distance between the truck and Sergeant Wride’s
vehicle, it may not have been reasonably certain that the murder
would occur. A deadly outcome would have been more certain, for
example, if Sergeant Wride had been approaching the vehicle when
Mr. Garcia fired his weapon. Additionally, the jury might have
accepted Ms. Grunwald’s testimony that she believed that the
windshield on Sergeant Wride’s vehicle was bulletproof. If that was
the case, it is more unlikely that the jury found that Ms. Grunwald
was aware that the murder was reasonably certain to occur,
rendering more probable the likelihood that it based its conviction
on a finding of recklessness.


                                   16
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                         Opinion of the Court

testimony, because Ms. Grunwald’s alleged failure to understand the
term’s meaning would be less than reasonable. But this reasoning
ignores the possibility that the jury could have concluded that
Ms. Grunwald’s level of comprehension fell below what a
“reasonable person” would have understood under the
circumstances.43 And when a totality of the evidence is considered, it
is reasonably probable that the jury would have reached this
conclusion.
    ¶39 There is a reasonable probability that the jury would have
considered Ms. Grunwald’s ability to comprehend the meaning of
Mr. Garcia’s “buck” comment to be below that of a “reasonable
person.” At the time of the crime, Ms. Grunwald was only seventeen
years old.44 There is also evidence that Ms. Grunwald suffers from a
learning disability that may have lessened her ability to understand
the significance of Mr. Garcia’s words.45 And her trial counsel
_____________________________________________________________
   43 Justice Lee concedes that it is “theoretically possible” that the
jury could have found that Ms. Grunwald’s understanding fell
below that of a reasonable person, infra ¶ 107 (Lee, A.C.J.,
dissenting), but he rejects that possibility in this case because, in his
view, the alleged misunderstanding would be “ridiculous.” Infra
¶ 112 (Lee, A.C.J., dissenting). This is so, he explains, even if we take
Ms. Grunwald’s age, learning disability, easily-intimidated nature,
and the stress of the moment into account. Infra ¶ 112 (Lee, A.C.J.,
dissenting). But in so arguing, Justice Lee makes the same mistake as
the court of appeals—he excludes the possibility that the jury could
have found Ms. Grunwald capable of reaching an unreasonable (or
even a “ridiculous”) conclusion.
   44 Justice Lee suggests that we should not consider her age
because she was tried as an adult. Infra ¶ 109 (Lee, A.C.J.,
dissenting). But we do not see how the district court’s determination
that Ms. Grunwald should be tried as an adult would prevent the
jury from considering her age in assessing her credibility or her
comprehension level.
   45 At trial, Ms. Grunwald stated the following regarding her
learning disability: “I had to take special classes, which are basically
resource classes because I have a hard time reading and writing and
I have a really hard time of like when I read stuff of comprehending
it and knowing what it says.” And she stated that this disability
required her to work harder than “regular students”: “if we had a
book project I had to spend like almost three times the time that a
                                                           (Continued)
                                   17
                         STATE v. GRUNWALD
                         Opinion of the Court

argued that Ms. Grunwald is easily intimidated and was under a lot
of stress at the time, which likely further limited her ability to
understand the meaning of Mr. Garcia’s words.
    ¶40 Based on this evidence, a jury could reasonably conclude
that in these fraught and volatile circumstances a seventeen-year-old
girl would be unable to quickly process and understand Mr. Garcia’s
intentions when he used the term “buck.” And it is likely a jury
would find that Ms. Grunwald mentally froze in this way when it
considers     this   evidence     together   with     Ms. Grunwald’s
cross-examination testimony. On cross-examination, she defended
her sworn statement that she did not know what “buck” meant by
explaining that she did not understand the term’s meaning “at the
time,” and that its meaning became clear to her only after the event
had taken place. So, in light of this evidence, there is a reasonable
probability that the jury could have found Ms. Grunwald’s ability to
understand Mr. Garcia’s intentions at the time to be less than that of
a reasonable person.46 Accordingly, the court of appeals erred in
framing the mental state requirement in objective terms.47




normal student did to be able to understand it.” Justice Lee
categorizes this disability as a “reading” disability and argues that it
has “no bearing” on her ability to understand statements delivered
orally. Infra ¶ 109 (Lee, A.C.J., dissenting). But Ms. Grunwald’s
testimony clearly indicates that her struggles were not limited
merely to reading. Instead, it shows that she struggles generally with
language comprehension.
   46 Quoting our decision in Garcia, Justice Lee argues that our use
of the phrase “could have,” rather than “would have,” is significant
because it creates “the look and feel of presuming, rather than
finding, prejudice.” See infra ¶ 111 (Lee, A.C.J., dissenting) (quoting
Garcia, 2017 UT 53, ¶ 38). But, when used to discuss reasonable
probabilities, “could” and “would” are synonymous. In fact, in using
the phrase “could have,” we are merely using the same language we
used in Garcia. See Garcia, 2017 UT 53, ¶ 42 (“A proper analysis also
needs to focus on the evidence before the jury and whether the jury
could reasonably have found that [the defendant] acted . . . such that a
failure to instruct the jury properly undermines confidence in the
verdict.” (emphasis added)). So our use of the phrase is consistent
with our case law. And because, in this context, the phrases “could
have” and “would have” are synonymous, our use of the phrase in
                                                           (Continued)
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                         Opinion of the Court

    ¶41 Second, the court also erred in treating as undisputed the
timeline of events occurring inside the truck immediately before the
shooting. Although Ms. Grunwald testified on cross-examination
that Mr. Garcia had expressed his intention to “buck” Sergeant
Wride in the head before the truck had shifted into gear, on
direct-examination, Ms. Grunwald stated he had made the comment
long after the truck had been shifted into gear. This raises a critical
factual dispute.
    ¶42 The dash-cam recording of the incident shows that the truck
shifted into gear approximately thirteen minutes into the stop. The
shooting occurred approximately four and a half minutes later. In
the intervening time, Mr. Garcia popped open the truck’s side
window, and, a little later, the truck lurched forward slightly. And
less than one minute after the truck lurched forward, or
approximately seventeen and a half minutes into the stop,
Mr. Garcia began firing. Ms. Grunwald testified that she thought
Mr. Garcia had popped open the truck’s side window to get a better
look at Sergeant Wride’s vehicle, and that the truck’s movement was
caused when Mr. Garcia climbed into the truck’s back seat. So
Mr. Garcia’s activity inside the truck suggests that he spent the four
and a half minutes between the time the truck shifted into gear and
the time of the murder preparing to shoot at Sergeant Wride.
  ¶43 Whether Ms. Grunwald knew that Mr. Garcia intended to
murder Sergeant Wride, or whether she was merely reckless in


no way lessens the standard established in Strickland. See infra ¶ 104
(Lee, A.C.J., dissenting).
   47 Justice Lee disagrees with our conclusion on this point. Infra
¶ 112 (Lee, A.C.J., dissenting). But the crux of his disagreement (on
this point and others) appears to be that he finds Ms. Grunwald to
lack credibility as a witness. See infra ¶ 96 (Lee, A.C.J., dissenting)
(assuming the jury would find Ms. Grunwald’s testimony to be
“utterly lacking in credibility,” and so would “likely . . . disregard all
her other claims of misunderstanding”); infra ¶ 112 (Lee, A.C.J.,
dissenting) (assuming that the jury “would be offended by
[Ms.] Grunwald’s” testimony); infra ¶ 113 (Lee, A.C.J., dissenting)
(assuming a “reasonable jury would discount anything and
everything in [Ms.] Grunwald’s testimony that went in her favor”).
We do not believe we are in a position to make the kind of
unequivocal credibility determinations upon which Justice Lee rests
his determination.


                                   19
                         STATE v. GRUNWALD
                         Opinion of the Court

disregarding the possibility that he might do so, likely depends on
which version of events the jury believed. If the jury believed
Mr. Garcia had expressed his intent to “buck” Sergeant Wride before
the truck shifted into gear, then the jury would likely have viewed
Ms. Grunwald’s actions during the intervening four and a half
minutes differently than if it had believed Mr. Garcia made his
comment immediately before he commenced shooting.48 Under the
latter scenario, Ms. Grunwald would have had little time to process
or otherwise react to the comment, and none of Ms. Grunwald’s
actions, which allegedly aided Mr. Garcia, could have been done
with knowledge of what Mr. Garcia intended to do.49 Thus, when the

_____________________________________________________________
   48  Justice Lee argues that the jury would not have accepted the
carefully     narrated    timeline     Ms. Grunwald      depicted     on
direct-examination because he sees “every reason to think that a
reasonable jury would discount anything and everything in [her]
testimony that went in her favor.” Infra ¶ 113 (Lee, A.C.J.,
dissenting). The only justification for Justice Lee’s complete
disregard of any testimonial evidence in Ms. Grunwald’s favor is
that she “made the ridiculous assertion” that she did not understand
the “buck” threat made by Mr. Garcia. Infra ¶ 113 (Lee, A.C.J.,
dissenting). But we are ill-positioned to make such an absolute
determination regarding how the jury would have assessed
Ms. Grunwald’s credibility. At trial, the jury heard two different
stories, and on “this record, we have no way of knowing how the
jury processed these two stories. Thus, we cannot properly conclude
that the jury found [the defendant’s entire] account ‘[in]credible,’ as
[Justice Lee] suggests.” State v. Barela, 2015 UT 22, ¶ 30, 349 P.3d 676.
So even though it appears that the jury did not accept
Ms. Grunwald’s story “lock, stock, and barrel,” the jury could have
found that portions of her testimony were credible. Id.
   49  Justice Lee takes issue with our characterization of the
statement as coming “immediately before” the shooting. In so doing,
he suggests that fifty seconds provided Ms. Grunwald sufficient time
to process Mr. Garcia’s meaning, formulate an alternative plan of
action, and execute that plan of action before Mr. Garcia began
firing. Infra ¶ 115 (Lee, A.C.J., dissenting). Indeed, he argues there is
“no reason to think that the jury believed [Ms.] Grunwald didn’t
have ‘time to process or otherwise react to the comment.’” Infra ¶ 115
(Lee, A.C.J., dissenting). Although it is possible that the jury would
view the situation as Justice Lee suggests, we conclude that a jury
                                                            (Continued)
                                   20
                          Cite as: 2020 UT 9
                        Opinion of the Court

uncertainty in the timing of events is acknowledged, there is a
reasonable probability that the jury convicted Ms. Grunwald based
on a finding of a reckless mental state rather than on a finding of a
knowing one.
    ¶44 In fact, as we discussed above, the only direct evidence of
Ms. Grunwald’s mental state at the time suggests she did not
understand that Mr. Garcia intended to kill Sergeant Wride.
Ms. Grunwald testified that she did not know Mr. Garcia intended to
kill Sergeant Wride, and that even after Mr. Garcia had shot his gun,
she assumed he had merely attempted to disable the police car. And
even though she admitted that she heard Mr. Garcia say he was
going to “buck” Sergeant Wride in the head, she testified that she
did not know what this statement meant at the time, and that
Mr. Garcia refused to clarify his meaning when she asked him to do
so. So once it is acknowledged that Mr. Garcia’s statement may have
been made immediately before the shooting occurred, rather than
four and a half minutes before, Ms. Grunwald’s repeated insistence
at trial that she did not understand what Mr. Garcia meant by this
comment at the time becomes more believable. Accordingly, the
evidence on record suggests that there is a reasonable probability
that the jury believed her when she said she did not know what
Mr. Garcia was going to do, but that it nevertheless convicted
Ms. Grunwald based on a finding that she was reckless in
disregarding the possibility that Mr. Garcia would commit the
murder.
    ¶45 This conclusion is strengthened by the comments of
Ms. Grunwald’s trial counsel during closing arguments. There,
Ms. Grunwald’s trial counsel failed to contest that Ms. Grunwald
had a reckless mental state. Addressing the jury, trial counsel stated
the following: “Remember intent. Remember knowing. She has to
have had some view of what he was doing and where he was going
for her to be implicated as a party. . . . I’m going to ask you to find
her not guilty, based on compulsion, based on a lack of intent, based
on a lack of knowledge, foresight, call it what you want. Read the




could reasonably have found that Ms. Grunwald’s failure to take
affirmative steps to prevent a murder during the fifty seconds
following Mr. Garcia’s comment did not make her a knowing or
intentional accomplice.


                                  21
                         STATE v. GRUNWALD
                         Opinion of the Court

instructions carefully.”50 So trial counsel expressly argued that she
did not have an intentional or knowing mental state, but failed to
cast doubt on the possibility of her having had a reckless mental
state. And because the record evidence related to Ms. Grunwald’s
mental state makes it reasonably probable that Ms. Grunwald was, at
most, only aware that her conduct could help Mr. Garcia commit the
crime (rather than being aware that her conduct was reasonably
certain to help Mr. Garcia commit the crime), we conclude there is a
reasonable probability that the failure of Ms. Grunwald’s trial
counsel to argue against a recklessness finding led the jury to convict
Ms. Grunwald on that ground.
    ¶46 In sum, the court of appeals erred in failing to consider what
Ms. Grunwald’s subjective understanding was at the time (rather
than what a reasonable person would have understood); and in
treating the relevant timeline of events as undisputed. Because it is
possible that Mr. Garcia made his “buck” comment immediately
before shooting (rather than four and a half minutes before), and
trial counsel failed to argue against a recklessness finding during
closing arguments, there is a reasonable probability that the jury
would not have convicted Ms. Grunwald absent the inclusion of
“recklessness” in the instruction. For these reasons, the court of
appeals erred in rejecting the possibility that the jury convicted
based on a finding of recklessness. So we hold that its inclusion
undermines our confidence in the verdict and thus prejudiced
Ms. Grunwald.




_____________________________________________________________
   50 In his dissent, Justice Lee suggests trial counsel’s reference to
“foresight” was an attempt to cast doubt on the possibility of a
recklessness determination. Infra ¶ 116 (Lee, A.C.J., dissenting). But it
seems unlikely the jury would have equated the trial counsel’s
reference to a lack of “foresight” with an attack on the “recklessness”
mental state requirement. So even if trial counsel intended his
“foresight” comment to be a reference to the “recklessness”
requirement, his failure to explicitly mention “recklessness”
supports our conclusion that there is a reasonable probability the
jury based Ms. Grunwald’s conviction on a finding of recklessness.


                                   22
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                          Opinion of the Court

      II. There is a Reasonable Probability the Jury Convicted
 Ms. Grunwald for Aiding Mr. Garcia in Some Way Unconnected to
               the Commission of the Murder at Issue
    ¶47 The instruction also erroneously permitted conviction based
on intentional aid that was not directly connected to the murder. As
we explained in State v. Briggs, to prove accomplice liability, the State
must show that the defendant acted “with the intent to aid the
principal actor in the offense.”51 And in State v. Jeffs, we rejected an
interpretation of the accomplice liability statute that would have
allowed accomplice liability to be found where a person had “act[ed]
intentionally, knowingly, or recklessly in the abstract” because such
an interpretation “would sweep in too much innocent behavior.”52
So under our interpretation of the accomplice liability statute in
Briggs and Jeffs, and under the text of the accomplice liability statute,
an accomplice’s aid to the principal actor of the crime must also be
directed toward the commission of the crime.53
   ¶48 In this case, the jury instruction permitted the jury to convict
Ms. Grunwald if she intentionally aided Mr. Garcia, who committed
the crime. The instruction should have read that Ms. Grunwald was
guilty if she intentionally aided Mr. Garcia to commit the crime. As
the court of appeals pointed out, by “substituting the word ‘who’

_____________________________________________________________
   51   2008 UT 75, ¶ 13, 197 P.3d 628 (emphasis added).
   52   2010 UT 49, ¶ 46, 243 P.3d 1250.
   53  We clarify that, under our accomplice liability statute, aid given
to a principal actor after the underlying crime has been committed is
insufficient to establish accomplice liability if the alleged accomplice
did not have the requisite mental state at the time the crime was
committed. See State v. Bowman, 70 P.2d 458, 461 (Utah 1937) (“If he
was an accessory after the fact, he could not become a partaker of the
guilt, as there would be no union of criminal intent and act.”
(citation omitted)). Our opinion in Jeffs is clear on this point. It states
that even less-than-innocent behavior does not “appropriately
categorize an individual as an accomplice if that individual had no
intention that the underlying crime be committed.” Jeffs, 2010 UT 49,
¶ 48. And, as an example, we cited a previous holding that “a man
who knew that a woman wanted to kill her father and who
concealed the murder weapon after the crime was committed was
not an accomplice.” Id. (citing State v. Schreuder, 726 P.2d 1215, 1220
(Utah 1986)).


                                    23
                           STATE v. GRUNWALD
                          Opinion of the Court

[for the word ‘to,’] the instruction permitted the jury to find
[Ms.] Grunwald guilty if she . . . aided [Mr.] Garcia in any way, so
long as [Mr.] Garcia committed [aggravated murder].”54 Thus this
instruction permitted the jury to convict Ms. Grunwald based on
conduct that was not directly connected to the murder. This was also
error.
    ¶49 Although the court of appeals recognized that this error in
the jury instruction permitted the jury to convict Ms. Grunwald
based on a finding that she helped Mr. Garcia in some way unrelated
to the commission of the crime at issue, it ultimately concluded there
was “no reasonable probability that the jury convicted
[Ms.] Grunwald because she aided [Mr.] Garcia in some way other
than to commit the crime of aggravated murder.”55 In support of this
conclusion, the court of appeals explained that the “undisputed
evidence showed that, after [Mr.] Garcia announced his intention,
[Ms.] Grunwald applied the brake, enabling the truck to shift into
drive” and that she “held her foot on the brake for three-and-a-half
minutes while [Mr.] Garcia shifted in his seat to get into position to
fire.”56 But, as we explained above, the timing of events in this case is
far from undisputed. And the court’s reliance on a disputed timeline
is even more problematic in regard to this issue.
    ¶50 Whether Mr. Garcia stated that he wanted to “buck”
Sergeant Wride before or after Ms. Grunwald placed her foot on the
brake is crucial to determining whether Ms. Grunwald intentionally
aided Mr. Garcia to commit the murder. As the court of appeals
noted, the State focused primarily on Ms. Grunwald’s act of putting
her foot on the brake while Mr. Garcia prepared to fire. So if the jury
believed that Mr. Garcia made his “buck” comment immediately
before he began shooting, all of her conduct, which allegedly
constituted intentional aid, would have occurred before
Ms. Grunwald heard the comment. In other words, there would be

_____________________________________________________________
   54   State v. Grunwald, 2018 UT App 46, ¶ 39, 424 P.3d 990.
   55   Id. ¶ 51.
   56 Id. The dash-cam footage shows that Ms. Grunwald held her
foot on the brake for roughly four and a half minutes.
Approximately three minutes and forty seconds after Ms. Grunwald
placed her foot on the brake, Mr. Garcia moved to the back seat of
the truck. And approximately fifty seconds later, he opened the
truck’s rear window and began firing.


                                    24
                          Cite as: 2020 UT 9
                        Opinion of the Court

no evidence that Ms. Grunwald’s conduct was done with the
purpose of helping Mr. Garcia prepare to commit the crime.57 We
therefore cannot be certain that the jury found that Ms. Grunwald’s
act of putting her foot on the brake was intentionally done to aid
Mr. Garcia in committing the murder.
    ¶51 Instead, the jury could have determined that Ms. Grunwald
had placed her foot on the brake at Mr. Garcia’s insistence, or for
some other reason, even though she did not know that by so doing
she was assisting him in committing a murder. Under this factual
scenario, Ms. Grunwald would be assisting someone who committed
murder, but she would not be assisting someone to commit murder.
So, because it is unclear from the record whether Ms. Grunwald put
her foot on the brake before Mr. Garcia stated his intention to “buck”
Sergeant Wride, there is a reasonable probability the jury would not
have concluded that Ms. Grunwald’s act of putting her foot on the
brake was done to intentionally aid Mr. Garcia to commit the
murder.58

_____________________________________________________________
   57  We note that the acts purportedly forming the basis of
Ms. Grunwald’s accomplice liability for aggravated murder seem
fairly innocuous when we do not assume she did them with the
intent to aid in Sergeant Wride’s murder. In other words, there is
nothing inherent in the acts of putting a foot on a brake and looking
out of a car window during a police stop to suggest the acts were
done with criminal intent. For this reason, those acts do not support
a conviction unless they are considered in connection with
Mr. Garcia’s “buck” comment. So, once it is acknowledged that those
acts may have occurred before Mr. Garcia expressed his intent to
“buck” Sergeant Wride, they carry little persuasive weight. Justice
Lee disagrees with this point. And in so doing, he assumes
Ms. Grunwald’s act of keeping her foot on the brake could only have
had one purpose—to assist in murder. Infra ¶ 120 (Lee, A.C.J.,
dissenting) (assuming that the jury would have found that
Ms. Grunwald kept her foot on the brake for the purpose of keeping
“the truck steady as [Mr.] Garcia fired five shots out the back”). But,
in the absence of any supporting direct evidence, we cannot join
Justice Lee in making such an assumption.
   58Additionally, we note that it is potentially problematic to hold
Ms. Grunwald criminally liable for aggravated murder for the
continued act of holding her foot on the brake. Although
Mr. Garcia’s “buck” comment could support the inference that
                                                         (Continued)
                                  25
                        STATE v. GRUNWALD
                        Opinion of the Court

    ¶52 It is also reasonably probable that the jury convicted
Ms. Grunwald based on a finding that she intentionally aided
Mr. Garcia for some other purpose. For example, the jury could have
concluded that Ms. Grunwald intentionally held her foot on the
brake and acted as a lookout and getaway driver in order to aid
Mr. Garcia in disabling the police officer’s vehicle. The evidence on
record supports this possibility. Ms. Grunwald testified that even
after Mr. Garcia fired his gun, she did not believe he had killed
Sergeant Wride. Instead, she testified that she thought he had tried
to disable the police car.
    ¶53 The jury also could have convicted Ms. Grunwald based on
a finding that she aided Mr. Garcia to avoid arrest, rather than to
commit murder. And the record evidence makes this reasonably
probable. For example, it is clear from the record that Ms. Grunwald
aided Mr. Garcia by not telling Sergeant Wride about Mr. Garcia’s
gun, warrant, or true identity. And the State’s primary theory of the
case was that Ms. Grunwald helped Mr. Garcia avoid arrest so they

Ms. Grunwald held her foot on the brake with the intent or
knowledge that by so doing she was aiding Mr. Garcia to commit
murder, it is unclear what else Ms. Grunwald could have done once
Mr. Garcia announced his intentions. She could have driven away or
taken her foot off the brake, thereby allowing the truck to roll away.
But either of these actions would have been inconsistent with
Sergeant Wride’s instructions to wait. And they would not
necessarily have prevented Mr. Garcia from shooting Sergeant
Wride. She also could have put the truck in park. But, again, this
would not have prevented Mr. Garcia from committing the murder.
So even if the evidence clearly demonstrated that Ms. Grunwald
continued holding her foot on the brake long after Mr. Garcia
announced his intention to “buck” Sergeant Wride, her continued act
of holding her foot on the brake does not inevitably lead to the
conclusion that she was doing so to aid Mr. Garcia to commit
murder. See Jeffs, 2010 UT 49, ¶ 47 (explaining that a person does not
incur accomplice liability merely because he or she provides an
opportunity for one who is disposed to commit a crime). Justice Lee
suggests that the “whole point of having [Ms.] Grunwald put her
foot on the brake was to give [Mr.] Garcia a quick getaway.” Infra
¶ 127 (Lee, A.C.J., dissenting). But this unsubstantiated suggestion
fails to address our concern on this point and it assumes the very
thing—Ms. Grunwald’s purpose in holding her foot on the brake—
that the jury instruction error prevents us from knowing in this case.


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would not be separated. So, when this evidence is considered
together with Ms. Grunwald’s unrebutted testimony that she did not
know Mr. Garcia intended to murder Sergeant Wride, there is a
reasonable probability the jury convicted her for aiding someone who
committed murder rather than by aiding someone to commit
murder.59 And this creates a reasonable probability the jury would
not have convicted her absent the jury instruction error.
     ¶54 Additionally, the jury could have convicted Ms. Grunwald
based on the finding that she helped Mr. Garcia by doing the things
he told her to do, even though she did not know that by doing them
she was aiding Mr. Garcia to commit murder. In other words, the
jury could have found that she intentionally aided Mr. Garcia in the
abstract by complying with his demands even though she did not
know the purpose behind the demands. Her trial testimony is
entirely consistent with this theory, and, as we discuss below, the
jury’s finding regarding compulsion does not necessarily undermine
it.60
    ¶55 The court of appeals determined, however, that this last
possibility was “highly improbable” because the State “focused
solely” on actions close in time to the shooting during its closing
argument.61 But we cannot merely assume that the jury accepted the
State’s theory of the case. Instead, we must consider the totality of
the evidence. And in considering this evidence, we must avoid
making assumptions regarding a jury’s thinking that go beyond
what can be reasonably gleaned from the correct portions of a jury
instruction.62

_____________________________________________________________
   59 Although the record clearly demonstrates that the State focused
on Ms. Grunwald’s efforts to help Mr. Garcia avoid arrest, Justice
Lee states that there is only a remote possibility the jury convicted
her on this basis. Infra ¶ 123 (Lee, A.C.J., dissenting). As with his
other points of disagreement, this point appears to hinge on his
assessment of Ms. Grunwald’s credibility as a witness. But, again, we
do not share Justice Lee’s certainty that the jury would “discount
anything and everything in [Ms.] Grunwald’s testimony that went in
her favor.” Infra ¶ 113 (Lee, A.C.J., dissenting).
   60   See infra ¶¶ 63–75.
   61   Grunwald, 2018 UT App 46, ¶ 52.
   62   See State v. Barela, 2015 UT 22, ¶ 30, 349 P.3d 676.


                                      27
                         STATE v. GRUNWALD
                         Opinion of the Court

    ¶56 For example, in State v. Barela, we held that we could not
“properly conclude that the jury found [a rape victim’s] account
‘credible’” even though the jury had convicted the defendant of
rape.63 This was so, we explained, because an error in the jury
instruction regarding the mental state requirement limited what we
could assume about the jury’s guilty verdict.64 So, even though both
sides told drastically different stories, and it was clear based on the
conviction that the jury did not accept the defendant’s story in full,
we explained that the jury’s apparent rejection of part of the
defendant’s story did not mean the “jury accepted [the victim’s]
story lock, stock, and barrel.”65 Instead, we explained that “[t]he jury
could easily have thought that the truth fell somewhere in between
the two accounts.”66
   ¶57 Similarly, in this case we cannot assume that the jury
accepted every aspect of the State’s version of events. In arguing that
Ms. Grunwald aided Mr. Garcia to commit murder, the State focused
on her acts of placing her foot on the brake, shifting into gear,
waiting with her foot on the brake in preparation for their escape,
and acting as a lookout so that Mr. Garcia could open fire when no
other cars were driving by. It is possible, however, that the jury came
to different conclusions from these facts than the conclusions
suggested by the State.67 The court of appeals rejected the possibility
that the jury found that Ms. Grunwald directed her actions to some
purpose other than the commission of the principal crime solely
because it was inconsistent with the theory the State presented
during closing arguments. This was error. And, for the reasons
discussed above, we find that the record evidence makes it
reasonably probable that the jury determined that Ms. Grunwald

_____________________________________________________________
   63  Id. In that case, we determined that the jury instruction
regarding the mental requirement as to defendant’s understanding
of the victim’s consent was erroneous.
   64   Id.
   65   Id.
   66   Id.
   67It is likewise possible that the jury came to different conclusions
than those suggested by Justice Lee. See infra ¶ 126 (assuming that
Ms. Grunwald’s acts of looking out the window and putting her foot
on the brake were done to assist in Sergeant Wride’s murder).


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                        Opinion of the Court

intentionally aided Mr. Garcia, but not necessarily to help him
commit murder. Accordingly, we conclude the court of appeals
erred in concluding that this error did not result in prejudice.68
  III. There is a Reasonable Probability That the Jury Convicted
 Ms. Grunwald Based on a Finding That She Knew Mr. Garcia Was
    Going to Shoot Sergeant Wride, Even Though She Did Not
       Knowingly Aid Mr. Garcia’s Commission of the Crime
    ¶58 Finally, the jury instruction also erroneously permitted
conviction based on a finding that Ms. Grunwald knew Mr. Garcia’s
actions were reasonably certain to result in murder, rather than on a
finding that her own actions were intended to help Mr. Garcia in
committing murder.
    ¶59 Under Utah’s accomplice liability statute, “[e]very person,
acting with the mental state required for the commission of an
offense . . . who solicits, requests, commands, encourages, or
intentionally aids another person” to commit a crime “shall be


_____________________________________________________________
   68 Justice Lee characterizes our analysis on this point as a quarrel
“over the sufficiency of the actus reus for which [Ms.] Grunwald was
charged and convicted.” Infra ¶ 128 (Lee, A.C.J., dissenting). But,
because there was not a special verdict form, we do not know what
actus reus the jury based its conviction upon. And the lack of a
special verdict form compounds the problem caused by instructing
the jury to determine whether Ms. Grunwald intentionally aided
someone “who” committed murder instead of intentionally aiding
someone “to” commit murder. Because of this error, the jury was
permitted to convict Ms. Grunwald based on an act to assist
Mr. Garcia for a non-criminal purpose. In other words, it may have
allowed the jury to convict her for an act unrelated to the murder.
Justice Lee acknowledges that the jury was incorrectly instructed on
this point. But his analysis suggests that he assumes the jury would
have premised its guilty verdict on only those acts that were done to
assist in murder. Infra ¶¶ 126–28 (Lee, A.C.J., dissenting). So his
analysis assumes as true the very thing the jury instruction error
prevents us from knowing. Because the verdict form and the jury
instructions do not inform us of the act upon which the jury based its
guilty verdict, our analysis is focused on determining what acts the
jury was reasonably probable to have based its decision on in light of
the jury instruction error.


                                  29
                            STATE v. GRUNWALD
                            Opinion of the Court

criminally liable as a party for such conduct.”69 So, under this
statute, a person is not criminally liable unless he or she takes some
action with the mental state required for the commission of the
underlying offense. For this reason, the first step in applying
accomplice liability is to determine whether the individual charged
as an accomplice acted with the intent that an underlying offense be
committed.70
   ¶60 “Additionally, when prosecuting an accomplice for aiding in
the commission of a crime, the State must show that the accomplice
had the intent to aid.”71 So, in this case, to prove that Ms. Grunwald
was liable as an accomplice in Sergeant Wride’s murder, the State
needed to prove that she intentionally aided Mr. Garcia to commit
the murder and that she so acted with the intent or knowledge that
the murder would be committed.
    ¶61 In State v. Jeffs, we specifically discussed what it meant for
an accomplice’s action to be done with the knowledge that the
underlying offense be committed.72 We explained that “[a] person
acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to
cause the result.”73 And this language was taken directly from

_____________________________________________________________
   69   UTAH CODE § 76-2-202 (emphasis added).
   70  See State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628; see also State v.
Jeffs, 2010 UT 49, ¶ 43, 243 P.3d 1250 (explaining that when we used
the term “intent” in Briggs, we did so as “a legal term of art that
means ‘[t]he state of mind accompanying an act.’” (quoting Intent,
BLACK’S LAW DICTIONARY, 881 (9th ed. 2009) (alteration in original)).
   71   Briggs, 2008 UT 75, ¶ 15 (emphasis added).
   72   2010 UT 49, ¶ 45.
   73 Id. (emphasis added) (citation omitted). We clarify that despite
the use of the word “cause,” our Jeffs opinion should not be read to
require that an accomplice’s conduct be a but-for cause of the
underlying crime for liability to incur. Instead, the phrase “cause the
result” used in our Jeffs opinion should be read to require only that
the accomplice knowingly committed his or her own actus reus in
order to help the underlying crime be committed. This reading of
Jeffs is consistent with our case law. We have interpreted the
accomplice liability statute (Utah Code section 76-2-202) to mean that
an “accomplice must . . . have the intent that the underlying offense
                                                           (Continued)
                                     30
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                         Opinion of the Court

Utah Code section 76-2-103(2), the provision defining a knowing
mental state. So under statute and case law, to find a defendant
guilty as a knowing accomplice, the jury must determine that the
defendant was aware that the defendant’s conduct was reasonably
certain to “solicit[], request[], command[], [or] encourage[]” or
“intentionally aid[]” the principal actor “to engage in conduct which
constitutes an offense.”74 The knowing-mental-state instruction in
this case failed to accurately describe this requirement.
    ¶62 The instruction in this case stated that the jury could convict
Ms. Grunwald if the jury found she intentionally aided Mr. Garcia
and she “[w]as aware that [Mr. Garcia’s] conduct was reasonably
certain to result in [Mr. Garcia] committing the crime of Aggravated
Murder.” Thus, the instruction permitted the jury to convict
Ms. Grunwald if it found that she intentionally aided Mr. Garcia and
was aware that his conduct would result in murder, even if she did
not realize that her decision to aid Mr. Garcia would facilitate
Mr. Garcia’s commission of the crime. But, as our statement in Jeffs
indicates, the instruction should have required a finding that
Ms. Grunwald committed her actus reus in order to assist Mr. Garcia
in committing the crime of aggravated murder. So the “knowing”
instruction incorrectly described this requirement.75


be committed.” Briggs, 2008 UT 75, ¶ 14. So, to “show that a
defendant is guilty under accomplice liability, the State must show
that an individual acted with both the [required mental state] that
the underlying offense be committed and the [required mental state]
to aid the principal actor in the offense.” Id. ¶ 13. This means the
State must show that the defendant knowingly or intentionally
committed the actus reus to help the principal actor in committing the
crime. We do not believe our use of the word “cause” in Jeffs was
intended to alter this requirement.
   74   UTAH CODE § 76-2-202.
   75 We note, however, that had the jury instructions not contained
the error discussed in Part II of this opinion (incorrectly allowing the
jury to base a conviction on an action that assists someone “who”
happened to commit murder instead of requiring the jury to base a
conviction on an action done “to” assist someone in committing
murder), the failure to reference Ms. Grunwald’s conduct in the
knowing-mental-state portion of the instruction may have been
harmless. This is so because the use of the word “to” rather than
“who” would have required the jury to find the necessary
                                                            (Continued)
                                  31
                           STATE v. GRUNWALD
                          Opinion of the Court

    ¶63 As with the other errors, the court of appeals concluded
there was not a “reasonable probability that the jury convicted
[Ms.] Grunwald on the theory that she knew [Mr.] Garcia was going
to shoot Sergeant Wride but did not know that her conduct would
result in [Mr.] Garcia committing that crime.”76 According to the
court, this was so because Ms. Grunwald’s “defense at trial
depended on the jury believing her claim that [Mr.] Garcia pointed
his gun at her head, compelling her to assist him,” and so the court
assumed that by “returning a guilty verdict, the jury necessarily
rejected” Ms. Grunwald’s entire defense.77 But this reasoning rests
on a mischaracterization of Ms. Grunwald’s trial strategy. And after
correctly characterizing her trial strategy, and considering a totality
of the evidence, we conclude there is a reasonable probability the
jury convicted Ms. Grunwald based on a finding that she knew that
Mr. Garcia intended to kill Sergeant Wride even though she did not
knowingly hold her foot on the brake to assist him in doing so.
   ¶64 The court of appeals erred in characterizing the trial strategy
of Ms. Grunwald’s trial counsel. The State describes Ms. Grunwald’s


connection between Ms. Grunwald’s actions and Mr. Garcia’s
commission of the murder.
    Additionally, we note that the court of appeals held that the jury
instruction in this case contained three separate errors, and neither
party has challenged this holding. And we organized our analysis
accordingly. But, because the issues discussed in Parts II and this
Part both concern a failure to connect Ms. Grunwald’s actions to the
underlying crime, we could have chosen to analyze the jury
instruction language discussed in both Parts as though it constituted
a single error. Had we done that, we would have analyzed how the
reference to Mr. Garcia’s conduct, rather than Ms. Grunwald’s
conduct, in the knowing-mental-state portion of the instruction
served to amplify the prejudice created by the erroneous substitution
of “who” for “to” in the earlier portion of the jury instruction. So
even were we to conclude, as does Justice Lee in his dissent, that the
reference to Mr. Garcia’s conduct did not constitute an error on its
own, that reference would still be relevant as part of our prejudice
discussion of the single error in Part II. In other words, whether we
characterize the jury instruction in this case as containing two errors,
or three, does not affect our ultimate conclusion on this point.
   76   State v. Grunwald, 2018 UT App 46, ¶ 53, 424 P.3d 990.
   77   Id.


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                          Opinion of the Court

trial counsel as having conceded, by presenting a compulsion
defense, that Ms. Grunwald intentionally aided Mr. Garcia to
commit murder. But trial counsel never made such a concession.
Although trial counsel’s primary theory was that Ms. Grunwald took
each of her actions because Mr. Garcia threatened her, he also argued
that Ms. Grunwald neither intended for Mr. Garcia to kill
Sergeant Wride nor knew that Mr. Garcia intended to do so.78
    ¶65 Speaking to the jury during closing arguments, trial counsel
stated the following:
         Remember intent. Read those . . . instructions carefully.
         Remember intent. Remember knowing. She has to have
         had some view of what he was doing and where he
         was going for her to be implicated as a party. . . . I’m
         going to ask you to find her not guilty, based on
         compulsion, based on a lack of intent, based on lack of
         knowledge, foresight, call it what you want. Read the
         instructions carefully.
As these statements to the jury indicate, although trial counsel
advanced a compulsion theory, he did not concede that
Ms. Grunwald intentionally aided Mr. Garcia to commit the murder.
Instead, he argued that although Mr. Garcia compelled her to act,
she did not intend, or know, that her compliance with Mr. Garcia’s
demands would result in Sergeant Wride’s death. For this reason,
the court of appeals erred in concluding that Ms. Grunwald’s
defense at trial wholly depended on the jury accepting her
compulsion defense.
    ¶66 The court of appeals also erred in concluding that the jury’s
alleged rejection of the compulsion defense left only one reasonable
conclusion regarding Ms. Grunwald’s mental state: “that
[Ms.] Grunwald intended or knew that her conduct” would result in
Mr. Garcia committing the crime of aggravated murder.79 This
conclusion is erroneous because it is based on an unfounded
assumption and it fails to take a key portion of the jury instructions
into account.



_____________________________________________________________
   78He also argued that the State had failed to prove any planning
or preparation.
   79   Grunwald, 2018 UT App 46, ¶ 53.


                                    33
                             STATE v. GRUNWALD
                            Opinion of the Court

    ¶67 The court of appeals’ conclusion is erroneous because it is
based on an unfounded assumption. “In making the determination
whether the specified errors resulted in the required prejudice, a
court should presume, absent challenge to the judgment on grounds
of evidentiary insufficiency, that the judge or jury acted according to
law.”80 In the context of an erroneous jury instruction, this means we
should presume that the jury acted consistent with those parts of the
instructions that were provided correctly, and “exclude the
possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the
like.”81 So in listing the possible scenarios in which the jury could
have erroneously convicted the defendant, we must use the correct
portions of the instructions as a parameter for what the jury could
have possibly concluded.
   ¶68 For example, in this case “we [may] assume that the jury
found beyond a reasonable doubt both that [Mr.] Garcia committed
the principal crimes and that [Ms.] Grunwald ‘intentionally,
knowingly, or recklessly solicited, requested, commanded,
encouraged, or intentionally aided’ [Mr.] Garcia” in some way.82 As
the court of appeals noted, Ms. Grunwald “does not challenge these
aspects of the accomplice jury instructions or the sufficiency of the
evidence to support these findings.”83
   ¶69 But even though we may assume the jury properly followed
the correct portions of the jury instructions, we must also
acknowledge that, absent a special verdict form, we “cannot
determine with certainty whether [the defendant] was convicted on
the basis of” one theory or another.84 So we cannot make logical
jumps or exclude any possible theory (or, in other words, any
possible conviction scenario) until we consider a totality of the
evidence. The court of appeals erred in this respect.
   ¶70 As we have discussed, the court of appeals based its
prejudice determination on the assumption that “[i]n returning a
guilty verdict, the jury necessarily rejected [Ms. Grunwald’s]


_____________________________________________________________
   80   Strickland v. Washington, 466 U.S. 668, 694 (1984).
   81   Id. at 695.
   82   Grunwald, 2018 UT App 46, ¶ 46.
   83   Id.
   84   Jeffs, 2010 UT 49, ¶ 38.


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                          Opinion of the Court

compulsion defense.”85 And for this reason, the court concluded that
“the only reasonable conclusion from the evidence was that
[Ms.] Grunwald intended or knew that her conduct . . . would result
in [Mr.] Garcia committing the crime of aggravated murder.”86 But
this conclusion did not necessarily follow from the jury’s rejection of
Ms. Grunwald’s compulsion defense.
    ¶71 The jury was instructed that, under the defense of
compulsion, “a person is not guilty of a crime if she acted because
she was coerced to do so by (1) someone’s use of unlawful force
against her or someone else; or (2) someone’s threat to use imminent
unlawful force against her or someone else.” So, based on the jury’s
rejection of the compulsion defense, we could reasonably conclude
that the jury found that Ms. Grunwald acted of her own free will in
some way.
    ¶72 But that does not inevitably lead to the conclusion that the
jury found that Ms. Grunwald acted freely and knew or intended
that her actions would assist Mr. Garcia in murdering Sergeant
Wride. This may be a reasonable conclusion, but it is not the only
reasonable conclusion that could be drawn. As we explained above,
although Ms. Grunwald’s trial counsel advanced a compulsion
theory, he did not concede that Ms. Grunwald intentionally aided
Mr. Garcia to commit the murder in question. Instead, he argued
that although Mr. Garcia compelled her to act, she did not intend for
Mr. Garcia to kill Sergeant Wride, nor did she know that by
complying with Mr. Garcia’s demands Sergeant Wride would die. So
the jury could have concluded that even though Ms. Grunwald was
not compelled to place her foot on the brake, she did not do so to
help Mr. Garcia commit murder.
    ¶73 What is more, the court of appeals’ conclusion regarding the
jury’s rejection of the compulsion defense ignores an important
aspect of the compulsion instruction. In addition to the elements of
compulsion listed above, the compulsion jury instruction also states
that “[t]he defense of compulsion is not available if the defendant
intentionally, knowingly, or recklessly placed herself in a situation
where it was probable that she would be subjected to such duress.”
So, based on this language, the jury could have concluded that
Ms. Grunwald did not act freely, but that the defense of compulsion

_____________________________________________________________
   85   Grunwald, 2018 UT App 46, ¶ 53.
   86   Id. (emphasis added).


                                  35
                            STATE v. GRUNWALD
                            Opinion of the Court

did not apply because she had intentionally, knowingly, or
recklessly placed herself in the situation in which her freedom was
compromised. In other words, this aspect of the compulsion
instruction introduces the possibility that the jury believed
Ms. Grunwald when she testified that Mr. Garcia held a gun to her
head, threatened her, and ordered her to put her foot on the brake,
but that the jury nevertheless rejected her compulsion defense
because she had intentionally, knowingly, or recklessly placed
herself in the situation in which her freedom was compromised. And
the record suggests that this conclusion is reasonably probable.
    ¶74 As Justice Lee notes in his dissent, Ms. Grunwald “clearly
knew that her boyfriend was a violent person with a troubling
criminal record” and “just weeks before [Sergeant] Wride’s murder,
[Ms. Grunwald] witnessed [Mr.] Garcia get into a heated argument
with (and possibly even pull a gun on) her father.”87 And the record
indicates that Mr. Garcia was extremely agitated when he was
urging Ms. Grunwald to go on the car ride in which Mr. Garcia
murdered Sergeant Wride. Based on this evidence, the jury could
have concluded that Ms. Grunwald had intentionally, knowingly, or
recklessly placed herself in a compromising situation. So the jury’s
rejection of Ms. Grunwald’s compulsion defense does not tell us
anything regarding whether Ms. Grunwald was a willing participant
in the murder.88
   ¶75 Accordingly, the court of appeals erred in assuming that the
jury found that Ms. Grunwald intended or knew that her conduct
would assist in Mr. Garcia committing the crime of aggravated
murder. Because we cannot assume, from the guilty verdict, that the
jury found that Ms. Grunwald intended or knew that her conduct
contributed to the crime at issue, we must consider the record
evidence to determine whether there is a reasonable probability the
jury convicted Ms. Grunwald based on a finding that she knew that

_____________________________________________________________
   87   Infra ¶ 93 (Lee, A.C.J., dissenting).
   88  Justice Lee likewise fails to account for this portion of the
compulsion instruction. In his dissent, he states that, in his view,
“the jury’s rejection of the compulsion defense weighs against
[Ms.] Grunwald’s assertions of prejudice.” Infra ¶ 92 (Lee, A.C.J.,
dissenting). But, because we do not know the basis for the jury’s
rejection of the compulsion defense, this rejection does not weigh
one way or the other.


                                      36
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                        Lee, A.C.J., dissenting

Mr. Garcia was going to commit the crime, but did not knowingly
act to help him commit the crime. We conclude there is.
    ¶76 The evidence on record supports a reasonable probability
that the jury convicted Ms. Grunwald based on her knowledge of
Mr. Garcia’s intentions, rather than on any awareness of her own
role in the murder. For example, even though Ms. Grunwald
testified that she heard Mr. Garcia say he was going to “buck”
Sergeant Wride, she testified that this statement was made after she
had already been holding her foot on the brake for a number of
minutes and shortly before Mr. Garcia began shooting.
    ¶77 So the jury could have simultaneously accepted this
testimony, which suggests she did not know that her own conduct
would aid Mr. Garcia in committing murder, while also finding her
guilty because the testimony suggests that immediately before the
shooting, but after she aided Mr. Garcia, she may have become
aware of Mr. Garcia’s intentions. Accordingly, we conclude there
was a reasonable probability that the jury found that Ms. Grunwald
did not commit any act with the purpose of helping Mr. Garcia
commit murder, but that it nevertheless convicted her based on the
finding that she knew Mr. Garcia was going to shoot Sergeant
Wride.
                             Conclusion
    ¶78 Because the jury instruction discussing the elements for
accomplice liability on aggravated murder contained three errors,
and there is a reasonable probability that the jury would not have
convicted Ms. Grunwald in the absence of those errors, our
confidence in the guilty verdict is undermined. Accordingly, we
reverse her aggravated murder conviction and remand for a new
trial.


   ASSOCIATE CHIEF JUSTICE LEE, dissenting:
   ¶79 In January 2014, Sergeant Cory Wride noticed Meagan
Grunwald’s truck stopped on the side of the highway and pulled
over to investigate. This would be the last act of public service he
would ever perform. As Wride sat in his vehicle, Grunwald placed
her foot on the brake to allow her boyfriend, Jose Garcia, to shift the
truck into drive and aim a gun through the rear window. Grunwald
held the truck steady as Garcia made good on his promise to “buck
[Wride] in the fucking head” by firing seven bullets into Wride’s
patrol car. Wride died shortly thereafter.


                                  37
                         STATE v. GRUNWALD
                        Lee, A.C.J., dissenting

    ¶80 Grunwald and Garcia continued their rampage as the police
gave chase. At one point, Grunwald slowed her truck down to allow
Garcia to shoot and wound another officer. After their truck was
disabled, Grunwald waved down a passing vehicle so Garcia could
order a pregnant driver and her child out of the car. The chase ended
in a fatal shootout after Grunwald and Garcia abandoned their
stolen vehicle and ran toward another. As Garcia lay bleeding and
dying, Grunwald began screaming at the police, “You fucking ass
holes, you didn’t have to shoot him. You fucking shot him. Oh my
God, you fucking shot him.”
   ¶81 Grunwald pleaded not guilty to all charges, asserting a
compulsion defense and claiming that Garcia had kidnapped her
and threatened to kill her and her family. The jury found her guilty
as charged, convicting her for (among other things) acting as an
accomplice to the aggravated murder of Sergeant Wride.
      ¶82 Grunwald challenged her convictions on appeal, asserting in
part that her trial counsel was ineffective for failing to object to
errors in the jury instruction related to her murder charge. The
instruction allowed the jury to convict Grunwald as an accomplice to
aggravated murder if it found that she “[i]ntentionally, knowingly,
or recklessly solicited, requested, commanded, encouraged, or
intentionally aided [Garcia] who” committed the elements of the
principal crime and it also found that she “[i]ntended that [Garcia]
commit the [principal crime], or . . . [w]as aware that [Garcia’s]
conduct was reasonably certain to result in [Garcia] committing the
[principal crime], or . . . [r]ecognized that her conduct could result in
[Garcia] committing the [principal crime] but chose to act anyway
. . . .” State v. Grunwald, 2018 UT App 46, ¶ 31, 424 P.3d 990 (internal
quotation marks omitted) (emphasis in original). Grunwald
identified three alleged errors in this instruction. She claimed that it
erroneously allowed a conviction if Grunwald (1) “recklessly” aided
Garcia, (2) aided Garcia in some way unconnected to Wride’s
murder, or (3) aided Garcia knowing that his actions (as opposed to
her own) were reasonably certain to result in Wride’s murder. Id.
¶ 32.
    ¶83 The court of appeals agreed that the jury instructions were
in error on all three counts and concluded that Grunwald’s counsel
was deficient in failing to object to them. Id. ¶¶ 24, 32. But it upheld
Grunwald’s conviction as an accomplice to aggravated murder
because she failed to show prejudice. Id. ¶ 54. It held that Grunwald
had not established that there was a reasonable probability that a



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                         Lee, A.C.J., dissenting

correct jury instruction would have led to a different outcome at
trial. Id. ¶ 49.
     ¶84 The court of appeals got the prejudice analysis right. The
majority is wrong to overturn its decision and reverse Grunwald’s
conviction despite the overwhelming evidence against her.
Grunwald was no idle, ignorant bystander. She was at least a
knowing collaborator in her boyfriend’s acts of murder—as
evidenced by her knowledge of his criminal background, threats
against her father, violent behavior on the way to the murder scene
(firing shots out the car window), and stated intention to shoot
Sergeant Wride in the head, as well as her own participation in the
second shooting and carjacking that followed.
    ¶85 I agree that the first two errors alleged by Grunwald should
have generated an objection from trial counsel. But I respectfully
dissent because I disagree with the majority’s prejudice analysis both
on the law and under the facts in the record. The majority’s prejudice
analysis is legally problematic because it turns on an assessment of
what the jury likely did or could have done with an incorrect jury
instruction. See supra ¶¶ 36, 40, 43–44, 52–54, 63, 75–77. But this is not
the governing standard of prejudice. In a case (like this one)
involving a claim for ineffective assistance of counsel, the standard
for assessing prejudice turns on what a jury would reasonably likely
have done with a correct jury instruction. See Strickland v. Washington,
466 U.S. 668, 694 (1984). I dissent from the court’s attempt to revise
and reformulate this standard. And I also dissent from the majority’s
conclusion that Grunwald carried her burden of establishing
prejudice under this standard. For reasons noted above and
explained further below, I see no basis for a determination of a
reasonable probability that a properly-instructed jury would have
acquitted Grunwald of the charge against her.
    ¶86 The court of appeals concluded that the jury instruction in
this case contained a third error—the failure to require proof that
Grunwald knew her own actions were “reasonably certain to result
in” Wride’s murder. Grunwald, 2018 UT App 46, ¶ 46. This
requirement is arguably rooted in dicta in our opinion in State v. Jeffs,
2010 UT 49, ¶ 45, 243 P.3d 1250. But that dicta is incompatible with
the terms and conditions set forth in Utah Code section 76-2-202 as
interpreted in our opinion in State v. Briggs, 2008 UT 75, 197 P.3d 628.
And the majority in this case rightly repudiates the dicta and clarifies
the governing standard. See supra ¶ 61 n.73. I endorse that portion of
the majority opinion but conclude that the repudiation of the dicta in



                                   39
                          STATE v. GRUNWALD
                         Lee, A.C.J., dissenting

Jeffs effectively collapses the third alleged error in the jury
instruction into the second.
    ¶87 In the paragraphs below I consider each of the alleged errors
noted above and explain the basis for my dissenting position. First I
acknowledge that counsel was deficient in failing to object to an
instruction allowing the jury to convict Grunwald if it found she
only “recklessly” aided Garcia in the murder, but I conclude that
there is no reasonable probability that a properly-instructed jury
would have entered an acquittal. Next I concede that counsel was
deficient in failing to object to an instruction allowing the jury to
convict Grunwald if it found that she helped Garcia for some
purpose other than to kill Wride, but again I determine that this
error did not result in prejudice. And lastly I endorse the majority’s
decision to repudiate dicta in Jeffs requiring that an accomplice know
that her own actions themselves are reasonably certain to result in
the principal crime.
                                   I
    ¶88 I agree with the majority that trial counsel was deficient in
failing to object to a jury instruction allowing the jury to convict
Grunwald if it found that she only “recklessly” aided in Garcia’s
commission of aggravated murder. See supra ¶ 34. But I see no basis
for the conclusion that the failure to object to this instruction was
prejudicial.
                                    A
    ¶89 The standard for judging Strickland prejudice is set forth in
controlling precedent from the United States Supreme Court. Our
own decisions have also elaborated on the standard. A showing that
trial counsel was deficient is not alone sufficient to justify a reversal.
The defendant must also establish prejudice under a counterfactual
analysis, showing that there is a “reasonable probability” that “the
result of the proceeding would have been different” absent counsel’s
errors. Strickland v. Washington, 466 U.S. 668, 694 (1984); see also State
v. Garcia, 2017 UT 53, ¶¶ 28, 42, 424 P.3d 171 (stating that, in the
context of counsel’s failure to object to erroneous jury instructions,
the court must “ask if the defendant has met the burden of showing
that the decision reached would reasonably likely have been
different absent the errors” (quoting Strickland, 466 U.S. at 695–96)).
    ¶90 We have clarified that “[a] reasonable probability of a
different outcome is in no way synonymous with . . . ‘any reasonable
basis in the evidence.’” Garcia, 2017 UT 53, ¶ 44 (citation omitted).
The “reasonable probability” standard is a “relatively high hurdle to
overcome.” Id. It is not enough to merely “show that the errors had
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some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. The probability of a different outcome
must be “reasonable.” Id. at 694. And here I see nothing more than a
conceivable possibility that a jury that had been properly instructed
to find that Grunwald’s intentional aid was given intentionally or
knowingly (and not merely recklessly) would have rendered a
different verdict.
   ¶91 In convicting Grunwald, the jury rejected her defense that
she was compelled to act as Garcia’s accomplice. And with good
reason. Not only did Grunwald hold the brake for several minutes as
the pair waited for a gap in traffic, she did so even as Garcia
announced his intention—twice—to “buck [Wride] in the fucking
head.” And she prevented the truck from jerking forward until
Garcia had fired five of his seven shots out the rear window.
   ¶92 The jury’s rejection of the compulsion defense may not
necessarily mean that the jury rejected all of Grunwald’s arguments.
See supra ¶¶ 56–57. But the jury verdict can inform our analysis of
whether it is reasonably probable that a properly_instructed jury
would have reached a different verdict. And the jury’s rejection of
the compulsion defense weighs against Grunwald’s assertions of
prejudice in light of the totality of the evidence in the record.
    ¶93 The record evidence that Grunwald knowingly assisted in
her boyfriend’s murder of Sergeant Wride was extensive and
compelling. First we should consider the knowledge that Grunwald
brought with her on the day of the murder. She clearly knew that her
boyfriend was a violent person with a troubling criminal record. She
had told a friend that Garcia had been in prison for “almost kill[ing]
a guy” with a screwdriver. She testified that she was aware that he
had been convicted of manslaughter and that her cousin had told her
about his “previous crime” and sent her an article with “some pretty
serious facts in it.” And just weeks before Wride’s murder, she
witnessed Garcia get into a heated argument with (and possibly
even pull a gun on) her father.
   ¶94 Grunwald took this knowledge with her when she got into
the truck with Garcia on the day of the murder. And she could not
have reasonably thought that they were going out for a cruise; when
Grunwald initially resisted Garcia, saying that she needed to pack,
Garcia angrily threatened, “If you don’t go with me, stuff’s going to
happen.” Garcia’s actions en route to the murder scene would not
have dispelled Grunwald’s understanding of Garcia’s mindset. As
they drove past a Maverik convenience store, Garcia fired two


                                 41
                         STATE v. GRUNWALD
                        Lee, A.C.J., dissenting

gunshots out the window. And when Wride pulled up behind them,
Garcia vowed he was “not going back to prison.”
    ¶95 This is the background against which the jury would have
considered Grunwald’s testimony about Garcia’s threats to “buck”
Wride in the “head.” Garcia made those threats while readying and
positioning his gun to fire out the back window of the truck. Under
these circumstances, there could have been no doubt about Garcia’s
intentions. Surely he wasn’t talking about the “head” of the officer’s
car. He was speaking of shooting the officer dead in the head—a
move that, again, could not have been a surprise to Grunwald given
her knowledge of her boyfriend’s past and his actions earlier that
day.
    ¶96 Granted, Grunwald testified that she didn’t understand that
Garcia was talking about killing Sergeant Wride. But the jury was
entitled to find that testimony utterly lacking in credibility. And in
light of all of the evidence set forth here, I conclude that any
reasonable jury would have done just that—and thus would also
have been likely to disregard all her other claims of
misunderstanding. This thoroughly devastates Grunwald’s
assertions of prejudice. If any reasonable jury would have found that
she was lying about not knowing what Garcia meant when he
threatened to “buck him” in the “head,” and therefore found her to
lack credibility as a witness, then there is no reasonable probability
that a properly-instructed jury would have found that she acted only
recklessly.
    ¶97 The majority faults me for “disregard[ing] the only direct
evidence we have of what occurred inside Ms. Grunwald’s truck”—
Grunwald’s testimony. Supra ¶ 30. But I am not disregarding that
testimony. I am viewing it in light of all the evidence in the record—
what occurred outside and inside the truck. Some of the relevant
evidence is direct and some is circumstantial. But nothing in our law
requires us to credit direct evidence over circumstantial evidence.
When the direct evidence (testimony) is utterly lacking in credibility,
the law is to the contrary. The prejudice inquiry asks about
reasonable probabilities, and that necessarily requires us to make a
counterfactual determination as to how a properly-instructed jury
would have assessed all the evidence.
   ¶98 The majority breaks two points of new ground in
concluding otherwise: (a) it suggests that “direct” testimony is
somehow categorically more weighty in Strickland prejudice
analysis, supra ¶¶ 30, 50 n.57; and (b) it rejects the propriety of
credibility assessments and “assumptions” about what the jury

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would do with the considerations that I have highlighted, see supra
¶¶ 30, 40 n.47, 43 n.48, 53 n.59. But these premises are incompatible
with controlling precedent from the U.S. Supreme Court. Strickland
prejudice is all about the counterfactual. See 466 U.S. at 694. And that
counterfactual analysis is to be performed in light of the “totality” of
the evidence in the record—not just some of it. See id. at 695 (“[A]
court hearing an ineffectiveness claim must consider the totality of
the evidence before the judge or jury.”). The majority alters that
construct in its decision today. Fidelity to binding precedent requires
us to consider any and all evidence in the record in conducting the
Strickland prejudice inquiry. Circumstantial evidence cannot be
categorically discounted. Nor can we be required to forgo an
assessment of the reasonable likelihood of a jury’s assessment of a
witness’s credibility.89 And the majority’s contrary conclusion today
will confuse and distort our law going forward.
    ¶99 The majority’s prejudice analysis is also undermined by
Grunwald’s actions after Wride’s murder. In the hour and a half
between the shooting and the police chase, Grunwald had a phone
conversation with her mother. She appears to have been completely
calm—her mother could remember nothing important about the call,
while Grunwald testified that her mother simply asked whether she
was okay and whether she had taken the garbage out.90 After the
police chase began and Grunwald and Garcia abandoned
Grunwald’s truck near the Nephi Main Street exit, Grunwald ran
after Garcia, following “wherever he went.” As they ran toward the
underpass, Garcia fired several shots at officers and vehicles near the
_____________________________________________________________
   89  The majority’s complaint about my determination of the jury’s
likely assessment of Grunwald’s credibility is perplexing. Nothing in
the Strickland line of cases requires us to take a defendant’s
testimony as gospel truth in deciding whether a reasonable jury
would have come to a different conclusion with a different jury
instruction. The majority’s criticism is especially troubling given the
fact that Grunwald’s testimony—the “direct evidence” it makes so
much of—was inconsistent and contradictory. See infra ¶ 113. The
majority repeatedly claims that its own prejudice analysis is based
on the “totality of the evidence.” See supra ¶¶ 18, 27, 30, 36, 38, 55, 63,
69. I see no way to reconcile those points with its attempt to remove
from consideration the evidence that I have identified.
   90During this time, Garcia also called his uncle, saying, “I’m fine.
I’m with my girlfriend’s family. They’re protecting me. I’m good.”


                                    43
                         STATE v. GRUNWALD
                        Lee, A.C.J., dissenting

freeway exit. Not once did he need to point his gun at Grunwald to
make her do his bidding. And not once did she express any degree
of misunderstanding about his plan. It was Grunwald, moreover, not
Garcia, who waved down and stopped the vehicle that the duo
carjacked. And when Garcia fled from that vehicle and began
running toward another, Grunwald again followed. When the
officers finally shot and stopped Garcia, Grunwald directed her
anger at the police, purportedly shouting, “You fucking ass holes,
you didn’t have to shoot him. You fucking shot him. Oh my God,
you fucking shot him.” Grunwald later called the police “fucking
hoes” as she sat in the police car.
    ¶100 By Grunwald’s own admission, she never expressed
gratitude for or relief at being “rescued” from Garcia. As the police
collected her belongings, she refused to surrender a ring that Garcia
had given her. And after her arrest, Grunwald sent a letter to her
uncle with a hand-drawn picture of a female hand and a skeleton
hand forming a heart, the word “LOVE” gracing a ring on one of the
female’s fingers.
   ¶101 For these reasons I find it nearly impossible to look at
Grunwald’s actions and conclude that her involvement was anything
but knowing or intentional. I would therefore hold that there is no
reasonable likelihood that a properly-instructed jury would have
reached a different verdict.
                                   B
    ¶102 The majority’s prejudice analysis “ha[s] the look and feel
of presuming, rather than finding, prejudice.” Garcia, 2017 UT 53,
¶ 38. In my view the court has not identified any persuasive grounds
for concluding that Grunwald carried her burden of establishing that
a jury required to find knowledge or intent would have been
reasonably likely to enter a more favorable verdict.
    ¶103 The majority’s contrary conclusion is due in no small part
to its sometime reformulation of the prejudice analysis. As
previously noted, the U.S. Supreme Court has said that the question
in ineffective-assistance-of-counsel cases is whether there is a
“reasonable probability” that “the result of the proceeding would
have been different” absent counsel’s errors. Strickland, 466 U.S. at 694
(emphasis added). This court has applied this test specifically to
errors in jury instructions. See Garcia, 2017 UT 53, ¶¶ 28, 42 (stating
that the court must “ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have
been different absent the errors” (quoting Strickland, 466 U.S. at 695–
96)). In the face of this clear standard, the majority at times recasts

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                        Lee, A.C.J., dissenting

the prejudice inquiry as a “two-part analysis” in which the court
must first “identify the theoretical factual scenarios in which the
error in the jury instructions permitted the jury to wrongfully
convict the defendant,” and second “determine whether there is a
reasonable probability that . . . the jury convicted the defendant based
on one of those impermissible scenarios.”91 Supra ¶¶ 22–26
(emphasis added).


_____________________________________________________________
   91 The majority claims to find support for this “two-part analysis”
in State v. Garcia, in which we said that the court of appeals had not
presumed prejudice, but “analyzed how th[e] instruction might have
impacted Garcia’s trial and predicted juror behavior in response to
the erroneous instruction.” 2017 UT 53, ¶ 41, 424 P.3d 171. In Garcia
we went on to say that the court of appeals had failed to “fully
conduct[] the prejudice inquiry” because a finding of prejudice
requires that the “failure to instruct the jury properly undermines
confidence in the verdict,”—meaning that “the decision reached
would reasonably likely have been different absent the errors.” Id.
¶¶ 41–42 (internal citation and quotation marks omitted). But none
of this “requires courts to compile a list of the theoretical factual
scenarios in which the incorrect instruction permitted the jury to
impermissibly convict the defendant,” supra ¶ 23, or “determine
whether there is a reasonable probability that . . . the jury convicted
the defendant based on one of those impermissible scenarios,” supra
¶ 26. The majority is breaking new ground here. And it is doing so in
a manner that contradicts binding precedent from the United States
Supreme Court.
    The majority also tries to rehabilitate its new inverted two-step
formulation by suggesting that it effectively “require[s] us to
determine whether there is ‘a reasonable probability that the jury
would have reached a different verdict under a correct instruction.’”
Supra ¶ 22 n.20. And the court does occasionally revert back to the
actual Strickland test or include counterfactual language in its two-
step approach. See supra ¶ 22 (“[W]e must ask ourselves two
questions: (1) did the error in the jury instructions create the
possibility that the jury convicted the defendant based on factual
findings that would not have led to conviction had the instructions been
correct? and, (2) if so, is there a reasonable probability that the jury
based its verdict on those factual findings?” (first emphasis added)).
But a two-step test is not a one-step test, and an inquiry into whether
the jury actually based its verdict on an error in the instruction is not
                                                            (Continued)
                                   45
                         STATE v. GRUNWALD
                        Lee, A.C.J., dissenting

    ¶104 This is a substantial reformulation.92 The proper inquiry is
a counterfactual one—one in which we ask whether the defendant
has established a reasonable probability that the jury would have
reached a different verdict under a correct instruction. This has been
accurately described as “a relatively high hurdle to overcome.”
Garcia, 2017 UT 53, ¶ 44. The majority’s inquiry, by contrast, asks
only whether there is a reasonable probability that the jury in fact
based its decision on an error in the jury instruction. Supra ¶ 27. This
effectively switches the default answer. A jury may come to a verdict
with an erroneous instruction in mind. But that does not necessarily
tell us whether there is a reasonable probability that the jury would
have come down the other way in the absence of such an error. And
the majority opinion has thus substantially altered the governing
standard for Strickland prejudice.
    ¶105 The majority’s new inquiry asks whether a jury reasonably
could have based its decision on the errors in the jury instruction. This
is evidenced by the majority’s repeated use of possibilistic rather
than probabilistic language.93 This is problematic, as both the U.S.


the same thing as an inquiry into whether there is a reasonable
probability that the jury would have rendered a different verdict in
the absence of any error. If it were, there would be no need to
reformulate the controlling test. The best that can be said of the
majority’s approach is that the reformulated two-step test sometimes
comes close to the one-step test required by U.S. Supreme Court
precedent. In my view that is insufficient.
   92 See supra ¶ 26 (“If we conclude there is a reasonable probability
the jury convicted the defendant based on one of the identified,
impermissible factual scenarios, we may confidently hold that there
is a reasonable probability the jury would not have reached a guilty
verdict but for the errors in the jury instructions.”).
   93 See supra ¶ 36 (“[T]here is a reasonable probability the jury may
have concluded that Ms. Grunwald did not understand Mr. Garcia’s
intentions . . . .” (emphasis added)); supra ¶ 40 (“[T]here is a
reasonable probability that the jury could have found Ms. Grunwald’s
ability to understand Mr. Garcia’s intentions at the time to be less
than that of a reasonable person.” (emphasis added)); supra ¶ 43 n.49
(“[W]e conclude that a jury could reasonably have found that Ms.
Grunwald’s failure to take affirmative steps to prevent a murder
during the fifty seconds following Mr. Garcia’s comment did not
make her a knowing or intentional accomplice.” (emphasis added)).


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Supreme Court and this court have said that it is “not enough for the
defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Garcia, 2017 UT 53, ¶ 42 (quoting
Strickland, 466 U.S. at 693).
    ¶106 Using its new paradigm, the majority first faults the court
of appeals for ignoring Grunwald’s subjective mental state and
resting its finding of no prejudice on the fact that “no reasonable
person could have misinterpreted [Mr.] Garcia’s objective” when he
made his “buck” comment. Supra ¶ 35 (alteration in original). The
court of appeals, the majority posits, should have considered the
possibility that the jury could have believed that Grunwald’s
understanding of the situation fell below that of a reasonable person.
Supra ¶ 38.
    ¶107 Fair enough. It is theoretically possible that the jury found
that Grunwald “did not understand Mr. Garcia’s intentions even
though a reasonable person would have.” Supra ¶ 36. But again, the
majority’s premise misstates the standard. The question is not what
the jury in fact found. It is whether there is a reasonable probability
that the jury would have reached a different verdict if it had been
instructed correctly.94
    ¶108 The majority eventually makes the required leap, claiming
that the inclusion of the element of recklessness in the jury
instruction gives rise to a reasonable probability of a different
outcome (at least in conjunction with other errors that I address
below). Supra ¶ 46. But the court’s standard seems to shift between
the two formulations. And the totality of the evidence (including
Grunwald’s actions after the shooting) demonstrates that
Grunwald’s actions were knowing and intentional. See supra ¶¶ 93–
96, 99–100. The majority’s grounds for concluding otherwise—and

_____________________________________________________________
   94    Garcia, 2017 UT 53, ¶ 42, (“A proper [Strickland] analysis also
needs to focus on the evidence before the jury and whether the jury
could reasonably have [made factual findings] such that a failure to
instruct the jury properly undermines confidence in the verdict.”
(emphasis added)); see also Strickland v. Washington, 466 U.S. 668,
693–694 (1984) (“It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding
. . . . The defendant must show that there is a reasonable probability
that . . . the result of the proceeding would have been different.”
(emphasis added)).


                                  47
                        STATE v. GRUNWALD
                       Lee, A.C.J., dissenting

for painting Grunwald as a less-than-reasonable person—are
unpersuasive.
    ¶109 The majority begins its case for Grunwald’s reduced
comprehension skills by highlighting the fact that she was only
seventeen at the time of the crime. It also claims that Grunwald
suffers from a “learning disability” which “may have lessened her
ability to understand the significance of Mr. Garcia’s words.” Supra
¶ 39. But Grunwald was tried and convicted as an adult, and that
decision is not challenged on this appeal. As for the alleged
disability, it is only vaguely specified in the majority opinion. And
Grunwald herself never made anything of this disability in her
briefing on this appeal. Understandably so. A closer look at the
record reveals that Grunwald’s learning disability is a reading
disability. And surely her reading disability had no bearing on her
ability to understand Garcia’s statements, which were delivered
orally—face-to-face—not in writing.
   ¶110 For this reason there is no basis for the court’s assertion
that Grunwald’s reading disability in any way “lessened her ability
to understand the significance of Mr. Garcia’s words.” Supra ¶ 39.
The majority falls short in its attempt to connect the dots on this
point.95 And a further exploration of the record would seem to
undermine the majority’s move and confirm appellate counsel’s
decision to not advance this argument. Grunwald may have had a
reading disability, but she was also an honor roll student, completed
a Certified Nursing Assistant program, and was offered a
scholarship for an Emergency Medical Technician program.
    ¶111 Despite this, the majority concludes that Grunwald’s age
and learning disability, along with the fact that she “is easily
intimidated, and was under a lot of stress at the time,” create “a
reasonable probability that the jury could have found Ms. Grunwald’s
ability to understand Mr. Garcia’s intentions at the time to be less
than that of a reasonable person.” Supra ¶¶ 39–40 (emphasis added).

_____________________________________________________________
   95The majority cites evidence showing that Grunwald struggles
with “reading and writing,” has trouble “comprehending” things
she reads, and had to spend “almost three times the time that a
normal student did to be able to understand” book projects. See supra
¶ 39 n.45. But none of this demonstrates that Grunwald has an
auditory processing problem or that her struggles with “language
comprehension” extend to understanding spoken English.


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Again, the court’s use of “could have” here is significant. See Garcia,
2017 UT 53, ¶ 38 (noting that even when a court never “explicitly
state[s]” that it is “presum[ing] prejudice,” it might still be
employing an analysis that has “the look and feel of presuming,
rather than finding, prejudice”). It is not enough to say that there is a
reasonable probability that this evidence could have caused the jury to
believe Grunwald was only reckless. The question is whether there is
a reasonable probability that the proper instruction would have
resulted in a different verdict. Strickland, 466 U.S. at 694 (“The
defendant must show that there is a reasonable probability that . . .
the result of the proceeding would have been different.” (emphasis
added)).96
    ¶112 Even if we place stock in the fact that Grunwald was
seventeen, had a reading disability, was easily intimidated, and was
under a lot of stress during the crime, we should recall the nature of
Grunwald’s claim. Grunwald didn’t just claim she didn’t know what
Garcia meant by “buck him” in the head—she claimed she thought it
meant that Garcia was only going to disable Wride’s car. Are we
supposed to believe she thought Garcia was going to buck Wride’s
car in the “head”? That is ridiculous. It would have made no sense
for Grunwald to believe that Wride’s car was the “him.” And it is

_____________________________________________________________
   96 Citing one line of State v. Garcia out of context, the majority
claims that “when used to discuss reasonable probabilities, ‘could’
and ‘would’ are synonymous.” Supra ¶ 40, n.46. Of course they can
be. But Garcia never suggested it was enough that there is a
“reasonable probability that the jury could have” ruled a certain way,
as the majority does here and elsewhere. See surpa ¶ 105 n.93. There
is only one line in Garcia that uses the “could reasonably have”
formulation. See 2017 UT 53, ¶ 42. And that line is followed
immediately by the qualifier that “could reasonably have” means
“such that a failure to instruct the jury properly undermines
confidence in the verdict.” Id. (emphasis added). Elsewhere, the
Garcia opinion equated that lack of confidence in the verdict with a
reasonable probability that “the result of the proceeding would have
been different” Id. (emphasis added) (quoting Strickland, 466 U.S. at
694)). So Garcia does not change the standard of Strickland
prejudice—nor could it, given that we are bound to follow Strickland.
It is today’s opinion that shifts the standard, in confusingly and
systematically substituting “could have” for “would have” when
discussing reasonable probability.


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                         STATE v. GRUNWALD
                        Lee, A.C.J., dissenting

more than a little awkward to say you are going to disable another’s
car “in the head.” There is simply no reasonable probability that the
jury deemed Grunwald incapable of understanding Garcia’s
statement.97 The only reasonable probability I see is that a jury
(whatever its instructions) would be offended by Grunwald’s
insistence that she thought a threat by a violent person with a
homicide record—who was readying a gun to fire toward a police
officer and had just stated that he wasn’t going back to prison—was
simply a threat to disable a police vehicle. Because no reasonable jury
would have found that Grunwald’s comprehension was below that
of an average person, I cannot accept the majority’s conclusion that it
is reasonably probable that removing the “recklessness” component
from the jury instruction would have changed the jury’s verdict.
    ¶113 The majority also claims that a “critical factual dispute”
regarding the timeline of the murder helps create a reasonable
probability that the jury would not have convicted Grunwald absent
the erroneous jury instruction. Supra ¶¶ 41, 46. Initially, Grunwald
testified that Garcia said he was going to “buck” Wride in the head
after she placed her foot on the brake. Yet on cross-examination,
Grunwald said that Garcia made this comment before she placed her
foot on the brake.98 The majority claims that if the jury accepted
Grunwald’s initial story, it is more likely that it believed that
Grunwald acted without the knowledge or intent to kill Wride (and
_____________________________________________________________
   97 As I noted above, it is “theoretically possible” that the jury
could have found Grunwald’s understanding to be subpar. Supra
¶ 107. So in concluding that no reasonable jury would have done so,
I am not “reject[ing]” that theoretical “possibility,” as the majority
suggests. Supra ¶ 38 n.43. I am engaging in standard prejudice
analysis—determining what the jury likely would have done with a
different jury instruction.
   98 “Q. [W]as it before or after the car was shifted into gear that he
said he was going to buck him? A. It was before. Q. It was before? A.
Yes. Q. So by the time the car has shifted into gear, you know what
he’s going to do? A. I didn’t know at the time. Q. I thought you just
said he told you he was going to buck him. A. I didn’t know what
bucking means until after. Q. Well, didn’t you testify that the specific
words were he was going to buck him in the fucking head? A. Yes.
Q. You didn’t know what that meant? A. No. Q. He had just shown
you the gun and everything and threatened you, purportedly? A.
Yes.”


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presumably that the jury would not have convicted absent the
erroneous jury instruction). Supra ¶ 43. I see two crucial problems
with this argument. One is that it assumes that it is likely that a
reasonable jury would have believed the timing Grunwald gave on
direct examination. I see no basis for that conclusion. If anything, I
see every reason to think that a reasonable jury would discount
anything and everything in Grunwald’s testimony that went in her
favor. Once Grunwald made the ridiculous assertion that she
thought a threat by Garcia to “buck him” in the “head” meant disable
Wride’s vehicle, a reasonable jury would have discounted anything
else she said to try to exonerate herself. There is no reasonable
likelihood that the jury credited Grunwald’s first statement of the
timing of events over the less favorable statement she made on
cross-examination, let alone that an instruction eliminating
“recklessness” would have caused the jury to alter its verdict.
   ¶114 I also see a problem with the majority’s analysis even
assuming that a reasonable jury would have accepted the timing of
events more favorable to Grunwald. Assume that Garcia made his
comment after Grunwald put her foot on the brake. Once he did
make his intentions clear, wouldn’t she have still been playing
lookout, holding the truck steady, and waiting to act as a getaway
driver? The disagreement in timing does not change the fact that
Grunwald continued to help Garcia knowing that Garcia intended to
“buck” Wride in the head.
    ¶115 The only way the majority’s argument makes any sense is
if one also assumes that Garcia made his comment “immediately
before he commenced shooting.” Supra ¶ 43. But no one argued that
this was the case. Under the State’s evidence, there were four and a
half minutes between the time Grunwald’s truck shifted into gear
and the moment Garcia opened fire. Supra ¶ 10 n.1. Even under the
version of events more favorable to Grunwald, Garcia made his
“buck” comment three minutes and forty seconds after she placed
her foot on the brake—fifty seconds before he opened fire. Supra ¶ 10
n.1. There is no reason to think that the jury believed Grunwald
didn’t have “time to process or otherwise react to the comment.”99
Supra ¶ 43.

_____________________________________________________________
   99The majority responds to this pushback by suggesting that I am
saying that Grunwald could and should have taken “affirmative
steps to prevent a murder during the fifty seconds following Mr.
Garcia’s comment” in order to escape accomplice liability. Supra ¶ 43
                                                        (Continued)
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                        Lee, A.C.J., dissenting

    ¶116 The majority claims that the jury instruction’s inclusion of
recklessness is especially likely to have prejudiced Grunwald given
that her trial counsel “expressly argued that she did not have an
intentional or knowing mental state, but failed to cast doubt on the
possibility of her having had a reckless mental state.” Supra ¶ 45. But
this is incorrect. Grunwald’s counsel did cast doubt on the conclusion
that Grunwald acted recklessly. In closing argument, Grunwald’s
attorney argued: “I’m going to ask you to find her not guilty, based
on compulsion, based on a lack of intent, based on lack of
knowledge, foresight, call it what you want . . . . Hindsight is such a
wonderful prism to look through. It’s 20/20 vision.” (Emphasis added.) It
seems clear that Grunwald’s counsel was attacking each of the
possible mens rea standards—disputing that Grunwald (1) acted
intentionally, (2) acted with the requisite knowledge; or (3) acted
while appreciating the possibility that Garcia could shoot Wride.
     ¶117 Grunwald also defended against “recklessness” when she
claimed that she believed police cars have bulletproof glass and that
Garcia was specifically aiming to disable the patrol car. In support of
this argument, she testified that she did not understand what “buck”
meant, that Garcia refused to clarify the term, and that even after
Garcia fired, she still believed he had only disabled Wride’s vehicle.
It is difficult to see how Grunwald’s counsel “failed to cast doubt on
the possibility” that Grunwald was “at most, only aware that her
conduct could result in Mr. Garcia committing the crime . . . .” Supra
¶ 45. Grunwald definitely tried to cast doubt on the argument that
she was aware Garcia could kill Wride. It just wasn’t plausible (let
alone reasonable) doubt. And no reasonable jury would have
accepted Grunwald’s position on that score—whatever the jury
instruction.
    ¶118 The majority explains how the jury could have come to a
different conclusion had “recklessness” been removed from the
instruction. But it doesn’t demonstrate that it is reasonably probable
that the jury would have. Given the overwhelming evidence that


n.49. This is a straw man. As I explain below, my point is that fifty
seconds were more than enough time for Grunwald to choose to not
aid Garcia—not that it was enough time for her to thwart Garcia. See
infra ¶¶ 127–29. Failing to prevent a crime doesn’t make you an
accomplice any more than failing to actually help cause a crime
saves you from being an accomplice. See supra ¶ 61 n.73 (explaining
that an accomplice’s actions need not be a but-for cause of the crime).


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Grunwald acted intentionally and the scant evidence that she
misunderstood Garcia, there is no reasonable probability that the
jury would have acquitted Grunwald had it been given a correct jury
instruction. I would therefore hold that counsel’s failure to object to
this first error did not prejudice Grunwald.
                                   II
    ¶119 I also agree with the majority and court of appeals’
conclusion that counsel was deficient in failing to object to the jury
instruction to the extent it permitted a conviction if Grunwald
“‘intentionally, knowingly, or recklessly solicited, requested,
commanded or intentionally aided [Garcia] who’ committed the
principal crime.” State v. Grunwald, 2018 UT App 46 ¶ 37, 424 P.3d
990 (alteration in original). The use of the word who rather than the
word to inappropriately authorized the jury to convict Grunwald by
finding that she aided Garcia in any way—including in some way
unconnected to the murder—so long as Garcia actually committed
aggravated murder. Supra ¶ 48. This was error. A conviction based
on aid unrelated to the underlying crime is at odds with the
requirement in State v. Briggs that an accomplice act with “the intent
to aid the principal actor in the offense.” 2008 UT 75, ¶ 13, 197 P.3d
628. It goes without saying that an accomplice’s mental state must
extend to the commission of the underlying crime.
    ¶120 That said, I simply cannot believe that the jury would have
acquitted Grunwald had the instruction more clearly eliminated the
possibility of convicting her for aiding Garcia in the abstract. While
theoretically possible, it is not reasonably probable that the jury
convicted Grunwald for any reason except helping Garcia kill Wride,
let alone that the jury would have acquitted Grunwald if the
instruction had said to. The jury knew that Grunwald held the brake
as—or maybe even after—Garcia announced he was going to “buck”
Wride in the head. It knew that Grunwald kept the truck steady as
Garcia fired five shots out the back. And it knew that she sped away
as Garcia fired his final two shots. The context also matters.
Grunwald was on trial for assisting Garcia in aggravated murder,
not for helping Garcia disable a police vehicle or evade arrest.
   ¶121 Once again, the majority grasps at the alleged uncertainty
regarding the timeline of Garcia’s “buck” comment and how that
could have impacted Grunwald’s mental state. This, the majority
says, means that we “cannot be certain that the jury found that Ms.
Grunwald’s act of putting her foot on the brake was intentionally
done to aid Mr. Garcia in committing the murder.” Supra ¶ 50. Of
course we cannot be certain. But that doesn’t mean that there is a

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                         Lee, A.C.J., dissenting

reasonable probability that the jury convicted Grunwald for helping
Garcia do something besides murder Wride or that it would have
acquitted her if properly instructed. Whether Grunwald put her foot
on the brake before or after Garcia made his “buck” comment does
not change the fact that she continued to hold the truck steady as
Garcia made preparations to shoot Wride five times. And again I
find it highly likely that a reasonable jury confronted with
Grunwald’s ridiculous interpretation of the “buck” comment would
discount any other point that she made in her favor—especially a
point on which she contradicted herself at trial. See supra ¶ 113. So I
don’t see any reasonable likelihood that a properly-instructed jury
would have resolved the timing discrepancy in Grunwald’s favor. It
may be that it is “unclear from the record [when] Ms. Grunwald put
her foot on the brake.” Supra ¶ 51. But even if this uncertainty told us
something about Grunwald’s mental state (it doesn’t, see supra
¶¶ 113–15), it does not follow that “there is a reasonable probability the
jury would not have concluded that Ms. Grunwald’s act . . . was
done to intentionally aid Mr. Garcia to commit the murder.” Supra
¶ 51 (emphases added). Again, the standard is not whether there is
some uncertainty—it is whether there is enough uncertainty to create
a reasonable probability of a different outcome.
    ¶122 The majority also claims that there is a reasonable
probability the jury found Grunwald “intentionally held her foot on
the brake” but only “as a lookout and getaway driver in order to aid
Mr. Garcia in disabling the police officer’s vehicle.” Supra ¶ 52. But
to get there, the jury would have had to believe one or more of the
following: that Grunwald misunderstood Garcia’s buck-in-the-head
comment (because she has a reading disability, is easily intimidated,
and was under a lot of stress); that Garcia made the comment
“immediately before” firing; or that Grunwald thought Garcia was
shooting only to disable Wride’s vehicle. As previously discussed,
these alternatives are extraordinarily unlikely—Garcia made his
“buck” comment vocally, gun in hand, while parked in front of
Wride’s vehicle—fifty seconds before firing. He said he was going to
“buck him in the fucking head.” The argument that Grunwald didn’t
have time to process the comment or believed that Garcia was only
going to shoot Wride’s car under these circumstances is absurd. The
jury instruction may have been erroneous, but I cannot agree that the
jury believed that Grunwald only ever meant to help Garcia disable
a police car, or that switching to for who gives rise to a reasonable
probability that the jury would acquit her of being an accomplice to
aggravated murder.


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                        Lee, A.C.J., dissenting

    ¶123 Similarly, the majority advances the theory that because
Grunwald did not tell Wride about Garcia’s gun, warrant, or true
identity, perhaps the jury found that she “aided Mr. Garcia to avoid
arrest, rather than to commit murder.” Supra ¶ 53. But once again,
the majority fails to explain how remote possibility rises to the level
of reasonable probability. Just as there is no real chance that the jury
believed that Grunwald only meant to disable Wride’s vehicle and
there is no reasonable probability that it would have acquitted her
with the proper instruction, there is no likelihood that the jury
believed that Grunwald was only trying to help Garcia evade arrest
or a reasonable probability that, had the jury instruction been
proper, the jury would have acquitted Grunwald.
    ¶124 I take my colleagues’ point that “we cannot assume that
the jury accepted every aspect of the State’s version of events”
simply because Grunwald was convicted. Supra ¶ 57. But the
majority’s efforts to get to reasonable probability are the flipside of
the same coin—the court assumes that if the jury had had the correct
instruction, it would have acquitted because it accepted every aspect
of Grunwald’s version of events.100 The majority piles inference upon
inference, attempting to cast doubt on the whole case by casting
doubt on the (suspiciously many) individual pieces. This misses the
forest for the trees.


_____________________________________________________________
   100 See supra ¶ 50 (“[I]f the jury believed that Mr. Garcia made his
‘buck’ comment immediately before he began shooting, all of [Ms.
Grunwald’s] conduct, which allegedly constituted intentional aid,
would have occurred before Ms. Grunwald heard the comment.”);
supra ¶ 51 (“[T]he jury could have determined that Ms. Grunwald
had placed her foot on the brake at Mr. Garcia’s insistence, or for
some other reason . . . .”); supra ¶ 52 (“[T]he jury could have
concluded that Ms. Grunwald . . . acted as a lookout and getaway
driver in order to aid Mr. Garcia in disabling the police officer’s
vehicle. The evidence on record supports this possibility. Ms.
Grunwald testified that even after Mr. Garcia fired his gun, she did
not believe he had killed Sergeant Wride. Instead, she testified that
she thought he had tried to disable the police car.”); supra ¶ 54
(“[T]he jury could have found that she intentionally aided Mr. Garcia
in the abstract by complying with his demands even though she did
not know the purpose behind the demands. Her trial testimony is
entirely consistent with this theory . . . .”).


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                         STATE v. GRUNWALD
                        Lee, A.C.J., dissenting

    ¶125 The majority seeks to minimize the significance of
Grunwald’s actions by isolating them from their relevant context. It
does so, for example, by noting that the acts of “putting a foot on a
brake and looking out of a car window” “seem fairly innocuous”
when viewed in the abstract. Supra ¶ 50 n.57. Fair enough. But we
don’t consider these acts in isolation. We view them in the context of
the totality of the evidence in the record when assessing the question
of prejudice. State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (relying on
Strickland v. Washington, 466 U.S. 668, 695–96). And once we look at
the totality of the evidence, it can no longer be said that Grunwald’s
acts “carry little persuasive weight.” Supra ¶ 50 n.57.
   ¶126 The majority’s contrary conclusion is again rooted in its
hang-up over the timing of Garcia’s threat to “buck” the officer in
the head. But this is a red herring for all the reasons noted above. See
supra ¶¶ 114–15. And the acts of placing her foot on the brake while
putting the truck in drive and serving as a lookout are the crucial
elements of Grunwald’s actus reus of assisting Garcia in his
murderous scheme. In context, it seems apparent that Garcia asked
Grunwald to take these steps to ensure that he could kill Sergeant
Wride without being seen by passing vehicles or caught by pursuing
vehicles after the shooting. No reasonable jury would have
concluded otherwise or thought that Grunwald’s acts of placing her
foot on the brake and serving as a lookout were innocuous (or just
reckless, or in furtherance of something other than murder).
    ¶127 The majority also finds it “potentially problematic to hold
Ms. Grunwald criminally liable for aggravated murder for the
continued act of holding her foot on the brake.” Supra ¶ 51 n.58. And
it questions whether there is anything else she “could have done
once Mr. Garcia announced his intentions.” Supra ¶ 51 n.58. The
obvious answer to this question is that Grunwald could have
decided not to commit the actus reus that sustained the charge and
conviction of accomplice liability. She could have stopped playing
lookout for Garcia and placed the truck’s transmission back into
park. The majority dismisses Grunwald’s alternatives as options that
“would not necessarily have prevented Mr. Garcia from shooting
Sergeant Wride.” Supra ¶ 51 n.58. But the question is not whether
Grunwald’s acts were a but-for cause of Garcia’s murder. See supra
¶ 61 n.73. It is whether Grunwald committed the acts of an
accomplice—whether she intentionally aided Garcia in his principal
crime. And I see no basis for a conclusion that Grunwald’s acts fell
short of that standard. The whole point of having Grunwald put her
foot on the brake was to give Garcia a quick getaway. And her


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lookout function was a crucial aspect of the murderous scheme.
These acts surely aided Garcia’s murderous acts.
   ¶128 Ultimately, the majority is really quarreling over the
sufficiency of the actus reus for which Grunwald was charged and
convicted. But Grunwald has not challenged her conviction on that
ground. And we are in no position to undermine the verdict on that
basis.101
    ¶129 It undermines the very concept of accomplice liability to
suggest that Grunwald would have been guiltless even if she had
fully appreciated Garcia’s “buck” comments because Garcia could
have killed Wride anyway. This is beside the point under our law,
_____________________________________________________________
   101 Grunwald’s acts are clearly sufficient to sustain her conviction.
See American Fork City v. Rothe, 2000 UT App 277, ¶ 9, 12 P.3d 108
(affirming the conviction of an accomplice who looked up and down
the aisles as the principal stole merchandise and exited the store with
the principal). And it is no answer to note that “we do not know
what actus reus the jury based its conviction upon.” Supra ¶ 57 n.68.
We do not need to know what specific “actus reus the jury based its
conviction upon” to decide whether there is a reasonable probability
that the jury would have acquitted Grunwald if properly instructed.
A correct jury instruction, moreover, would not have yielded that
information. Only a special verdict form would have told us the
specific act the jury based its verdict on.
    The majority complains that the error in the jury instruction
“allowed the jury to convict [Grunwald] for an act unrelated to the
murder,” or for acts aimed at “assist[ing] Mr. Garcia for a
non-criminal purpose.” Supra ¶ 57 n.68. I concede the existence of
this error (though it is worth nothing that the alternative possibilities
the majority proffers—helping Garcia disable a police car or evade
arrest—are hardly “non-criminal purposes”). But my analysis does
not baldly “assume[] as true the very thing the jury instruction error
prevents us from knowing.” Supra ¶ 57 n.68. Again, it is not the jury
instruction that deprives us of this information. It is the lack of a
special verdict form, which is not an error. And my analysis is just
standard prejudice analysis—a counterfactual assessment of what is
reasonably likely to have happened had the jury been properly
instructed. My conclusion is not a bare assumption. It is a careful
analysis in light of all the evidence in the record—evidence that
makes it exceedingly unlikely that a properly-instructed jury would
have entered a verdict of acquittal.


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                         Lee, A.C.J., dissenting

which has never allowed an accomplice to avoid liability by showing
that the principal would have committed the crime anyway (even
absent her acts of aiding). See supra ¶ 61 n.73 (conceding there is no
but-for cause element in the law of accomplice liability). The
question is whether Grunwald intentionally aided Garcia with the
intent that Wride be murdered, not whether Garcia needed, used, or
wanted her help. And for all the reasons identified above, I see every
reason to conclude that there is no reasonable probability that a
properly-instructed jury would have reached a different verdict on
this question.
                                   III
    ¶130 The court of appeals identified a third basis for a
determination of ineffective assistance of counsel. Citing State v. Jeffs,
2010 UT 49, 243 P.3d 1250, the court of appeals said that the jury
instruction should have required proof that Grunwald “intended or
knew that her conduct . . . would result in the commission of the
principal crime.” State v. Grunwald, 2018 UT App 46, ¶¶ 29–30, 36,
424 P.3d 990 (emphasis added). There is clear dicta in our Jeffs
opinion to this effect. See 2010 UT 49, ¶ 45 (stating that an accomplice
to a principal crime with a “knowing” mens rea requirement must
“know[] that his conduct will most likely cause” the principal
offense). And the instruction at issue did not include this element.
    ¶131 The majority rightly repudiates this aspect of the Jeffs
opinion. It holds that Jeffs “should not be read to require that an
accomplice’s conduct be a but-for cause of the underlying crime for
liability to incur.” Supra ¶ 61 n.73. Because the governing statute
does not include this element, the majority holds that Jeffs should be
read “to require only that the accomplice knowingly committed his
or her own actus reus in order to help the underlying crime be
committed.” Supra ¶ 61 n.73. So despite contrary dicta in Jeffs, the
majority holds that there is no requirement of proof that an
accomplice knew that her acts themselves would cause or result in
the principal crime. It is enough to “show that the defendant
knowingly or intentionally committed the actus reus to help the
principal actor in committing the crime.” Supra ¶ 61 n.73.
   ¶132 I endorse this reformulation of the dicta in our Jeffs
opinion. That dicta is incompatible with the governing statute and is
properly revised by the court.
    ¶133 This reformulation, in my view, defeats Grunwald’s third
allegation of ineffective assistance of counsel—the charge that trial
counsel was deficient in not objecting to the jury instruction’s failure
to require proof that Grunwald knew that her actions were

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reasonably certain to “result in” the principal crime. Grunwald, 2018
UT App 46, ¶ 36. This was not an error under the majority’s
reformulation of Jeffs. And for that reason it cannot be a basis for a
claim of ineffective assistance of counsel.102 I would reverse the court
of appeals’ conclusion to the contrary and affirm the conviction on
that basis.
                                     IV
      ¶134 The relevant portions of the jury instructions in this case
allowed the jury to convict Grunwald as an accomplice to
aggravated murder if it found that she “[i]ntentionally, knowingly,
or recklessly solicited, requested, commanded, encouraged, or
intentionally aided [Garcia] who” committed the elements of the
principal crime and it also found that she “[i]ntended that [Garcia]
commit the [principal crime], or . . . [w]as aware that [Garcia’s]
conduct was reasonably certain to result in [Garcia] committing the
[principal crime], or . . . [r]ecognized that her conduct could result in
[Garcia] committing the [principal crime] but chose to act anyway
. . . .” State v. Grunwald, 2018 UT App 46, ¶ 31, 424 P.3d 990 (internal
quotation marks omitted) (emphasis in original).
    ¶135 The only errors contained in this instruction are those
discussed in Parts I and II—those which allowed the jury to convict
Grunwald based on a finding that she aided Garcia recklessly or in
some way unconnected to Wride’s murder. But those errors were not
prejudicial. And the third alleged error was not an error at all
because the instruction correctly applied our third-party liability
statute.
   ¶136 When reviewing ineffective-assistance-of-counsel claims,
we are not required to make all inferences in the defendant’s favor or
equate theoretical possibility with reasonable probability. Because
there is no reasonable probability that the jury would have come to a

_____________________________________________________________
   102 The majority only weakly suggests otherwise. It effectively
concedes that the error discussed in Part II above (the jury
instruction’s failure to require proof that Grunwald’s actions were
“done ‘to’ assist someone in committing murder”) is the real
problem. See supra ¶ 62 n.75. And it acknowledges that “the failure to
reference Ms. Grunwald’s conduct in the knowing mental state
portion of the instruction may have been harmless.” Supra ¶ 62 n.75.
But for reasons explained above, it is less than harmless. It is not an
error in light of our reformulation of Jeffs.


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                         STATE v. GRUNWALD
                        Lee, A.C.J., dissenting

different outcome had the jury instruction been correct, Grunwald’s
counsel did not prejudice her by failing to object to errors in it. Her
ineffective-assistance-of-counsel claim should fail, and her
conviction should be upheld. I respectfully dissent.




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