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

                                  2017 UT 46


                                     IN THE
        SUPREME COURT OF THE STATE OF UTAH

                               STATE OF UTAH,
                                 Respondent,
                                     v.
                        DENNIS WAYNE LAMBDIN,
                               Petitioner.

                              No. 20150752
                          Filed August 11, 2017

              On Certiorari to the Utah Court of Appeals

                       Third District, Salt Lake
                   The Honorable Vernice S. Trease
                           No. 091906736

                                  Attorneys:
    Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,
                    Salt Lake City, for respondent
    McCaye Christianson, Alexandra S. McCallum, Salt Lake City,
                          for petitioner

     JUSTICE DURHAM authored the opinion of the Court, in which
       ASSOCIATE CHIEF JUSTICE LEE and JUDGE CONNORS joined.
    CHIEF JUSTICE DURRANT authored a dissenting opinion in which
                      JUSTICE HIMONAS joined.
 Having recused himself, JUSTICE PEARCE does not participate herein;
            DISTRICT COURT JUDGE DAVID CONNORS sat.

   JUSTICE DURHAM, opinion of the Court:
                            INTRODUCTION
    ¶1 Dennis Lambdin was married for approximately nine years
before brutally killing his wife. While he admitted to the killing, he
sought to reduce the conviction from murder to manslaughter by
establishing special mitigation through extreme emotional distress. At
trial the jury convicted him of murder, rejecting his arguments for
                           STATE v. LAMBDIN
                          Opinion of the Court
special mitigation. Mr. Lambdin appealed his conviction of murder to
the court of appeals, arguing that the district court’s jury instructions
concerning extreme emotional distress were in error. The court of
appeals affirmed the conviction. We granted certiorari to review the
court of appeals’ decision, and affirm.
                             BACKGROUND
    ¶2 Mr. Lambdin married the victim in 2000. Throughout the
marriage, the victim had a drinking and gambling problem, which
caused distress to Mr. Lambdin. In June 2009, she asked Mr. Lambdin
for a divorce. Later, Mr. Lambdin found romantic messages on the
victim’s cell phone from another man, and around the same time, the
victim informed Mr. Lambdin that she was pregnant with another
man’s child. Mr. Lambdin told a co-worker of his wife’s infidelity and
his distress, and the co-worker requested that the police conduct a
welfare check at Mr. Lambdin’s home because she was concerned for
his safety. The police visited Mr. Lambdin and found that he had a
very calm demeanor despite having just discussed the pregnancy with
the victim. He told police that the affair “doesn’t really matter. It’s
over. I’m past it now. It is time to move on.”
    ¶3 The couple continued to discuss divorce off and on for roughly
two months, with Mr. Lambdin trying to convince the victim to stay in
the marriage. On the evening of August 16, 2009, Mr. Lambdin and the
victim again argued over whether they should divorce. After the
argument, Mr. Lambdin made the victim coffee, and she then left their
home to work a night shift at her job.
    ¶4 Mr. Lambdin stayed up most of the night. Around midnight,
Mr. Lambdin wrote two letters. The first letter, written in the past
tense, explained that he had killed the victim and committed suicide.
This letter also gave explanations for why he planned to do it,
including the statement that, “she deserves what she got and I won’t be
around to suffer anymore.” The second letter, apparently written to a
neighbor, said “I couldn’t take this shit any longer. I had to do this and
I’m glad I did. It serves her right for all she has done to me.”
   ¶5 Mr. Lambdin printed a copy of these two letters and left them
on his computer desk. About seven hours after the letters were written,
the victim came home from work. Mr. Lambdin met her in the kitchen
and began discussing divorce again. He said, “do we really have to go
through all of this stuff” and “lose everything that we got.” The victim
responded by telling him “you’re crazy,” and that he needed to move




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out. At this point, Mr. Lambdin told police that he “just lost it.”1 He
explained to the police that, “[a]ll I wanted was some resolve with her,
to get back what I’ve given her for the last 9½ years. The love and the
affection. And she just talked to me like I was a stranger. A piece of
shit. Insults me.”
    ¶6 Mr. Lambdin punched the victim “about four or five times,”
and then threw her to the floor. Then he grabbed the biggest kitchen
knife he could find and began stabbing her. After he stabbed her the
first time, the victim screamed, “okay!” But Mr. Lambdin responded
“it’s too late,” and you “get what you deserve.” He continued to stab
the victim at least fifteen times in the back and neck while she was
screaming. After repeatedly stabbing the victim, he noticed that she
was still moving. Mr. Lambdin told police that he “didn’t want to stab
her anymore” and that he “didn’t want her to suffer.” So, Mr. Lambdin
grabbed a “big decorated ball” and “smashed her in the back of the
head with it three times,” until she stopped moving. The victim died in
the attack.
   ¶7 According to Mr. Lambdin’s statement to the police, he went
out onto his deck and smoked a cigarette after killing the victim. He
then went to Home Depot to buy some rope with which to hang
himself. He came home and tied the rope to an attic beam and began
drinking heavily “to get the balls to” commit suicide. While drinking,
he messaged a friend telling her what he had done. The friend called
the police, who arrived at the scene shortly thereafter.
    ¶8 During the attack, Mr. Lambdin had cut his hand on the
kitchen knife, and EMTs transported him to a hospital for treatment.
On the way to the hospital, Mr. Lambdin informed the EMTs that “he
had stabbed his wife” and “that when she continued to move he
grabbed a glass globe and bashed her head.” He told the EMTs
multiple times that “the bitch got what she deserved.” Mr. Lambdin
continued to make similar comments to hospital staff. He made the
comment that “he couldn’t take it anymore,” and that he had killed his
wife. When asked how he had cut his hand, he “just laughed about it
and said, ‘I killed that woman. I stabbed her. She got what she
deserved.’”
   ¶9 The police officer who responded to the incident testified that,
immediately after he arrived on the scene, during the ambulance ride,
and at the hospital, Mr. Lambdin displayed a wide spectrum of


   1Mr. Lambdin’s statements are taken from a police interview
conducted shortly after he killed the victim.

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                          Opinion of the Court
emotions, from laughing about the attack and seeming very excited to
becoming very angry. The officer testified that Mr. Lambdin seemed to
have an, “oh, my gosh . . . what did I just do,” attitude, but that he did
not cry.
    ¶10 The State charged Mr. Lambdin with murder. Mr. Lambdin
sought to reduce the level of his offense to manslaughter by proving
special mitigation by extreme emotional distress. The district court
proposed its own jury instructions; Mr. Lambdin objected to the
instructions concerning special mitigation, but the court overruled his
objections. The jury convicted Mr. Lambdin of murder, unanimously
finding that he had failed to establish special mitigation by extreme
emotional distress. Mr. Lambdin appealed, and the court of appeals
affirmed the district court’s jury instructions. We granted certiorari to
review the court of appeals.
                        STANDARD OF REVIEW
    ¶11 “On certiorari, we review the decision of the court of appeals
for correctness, without deference to its conclusions of law.” State v.
Smith, 2014 UT 33, ¶ 9, 344 P.3d 573 (citation omitted). Also, “we
review a court’s ruling on a proposed jury instruction for correctness.”
State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892.
                                ANALYSIS
    ¶12 Utah Code section 76-5-205.5 governs special mitigation in
criminal homicide cases. Special mitigation allows a defendant charged
with criminal homicide to reduce the level of the offense. UTAH CODE
§ 76-5-205.5(5). Extreme emotional distress is one category of special
mitigation. Id. § 76-5-205.5(1)(b). If a jury “finds the elements [of
murder] are proven beyond a reasonable doubt” by the State, and the
jury unanimously finds the elements of extreme emotional distress are
“established by a preponderance of the evidence” by the defendant, the
jury must reduce the verdict from murder to manslaughter. Id. § 76-5-
205.5(5)(a).
   ¶13 Extreme emotional distress is established by proving 1) the
defendant “cause[d] the death of another,” 2) “under the influence of
extreme emotional distress,” 3) “for which there is a reasonable
explanation or excuse.” Id. § 76-5-205.5(1). The statute provides further
guidance on the second and third elements. Under the second element,
extreme emotional distress does not include “a condition resulting
from mental illness as defined in Section 76-2-305” or “distress that is
substantially caused by the defendant’s own conduct.” Id. § 76-5-
205.5(3). Under the third element, the “reasonableness of an
explanation or excuse” for the extreme emotional distress “shall be
determined from the viewpoint of a reasonable person under the then

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                          Opinion of the Court
existing circumstances.” Id. § 76-5-205.5(4). There is no further statutory
definition or explanation of the term “extreme emotional distress.”
    ¶14 Mr. Lambdin argues that our definition of extreme emotional
distress in State v. Bishop, 753 P.2d 439 (Utah 1988), overruled on other
grounds by State v. Menzies, 889 P.2d 393 (Utah 1994), is dicta and that “it
was error to turn that dictum into affirmative statements of the law”
that were used to provide the language for the jury instructions in this
case. He next argues that this court’s precedent, and the court of
appeals in this case, was incorrect in holding that special mitigation by
extreme emotional distress requires a jury to look at “the
reasonableness of the [defendant’s] loss of [self-]control.” State v.
Lambdin, 2015 UT App 176, ¶ 12, 356 P.3d 165. Finally, he argues that
the jury instructions in this case were incorrect and prejudiced his
verdict. We address each of these arguments.
                I. BISHOP’S DEFINITION OF EXTREME
                EMOTIONAL DISTRESS IS ACCURATE
    ¶15 In State v. Bishop, this court defined “extreme emotional
disturbance” in connection with the statutory defense to the crime of
murder. 2 753 P.2d 439, 467–72 (Utah 1988), overruled on other grounds by
State v. Menzies, 889 P.2d 393 (Utah 1994). In that case, we stated that a
person suffers from extreme emotional distress:
       (1) when he has no mental illness as defined in section
       76–2–305 (insanity or diminished capacity); and
       (2) when he is exposed to extremely unusual and
       overwhelming stress; and


   2 Bishop analyzed an older version of the criminal code. Under that
version, extreme emotional disturbance was a defense that
downgraded murder to manslaughter. See UTAH CODE § 76-5-205(1)
(1985) (“Criminal homicide constitutes manslaughter if the actor . . .
[c]auses the death of another under the influence of extreme emotional
disturbance for which there is a reasonable explanation or excuse.”).
Over the years, the legislature has made various changes to the law,
but the core provisions have remained substantially the same. Infra
¶ 28 n.4. Mr. Lambdin does not argue that the change in language from
“disturbance” to “distress” should alter Bishop’s definition, and we see
no reason why it should. Thus, we use extreme emotional disturbance
and extreme emotional distress interchangeably. See State v. Shumway,
2002 UT 124, ¶¶ 8–13, 63 P.3d 94 (using “disturbance” and “distress”
interchangeably).



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                           Opinion of the Court
       (3) when the average reasonable person under that stress
       would have an extreme emotional reaction to it, as a
       result of which he would experience a loss of self-control
       and that person’s reason would be overborne by intense
       feelings, such as passion, anger, distress, grief, excessive
       agitation, or other similar emotions.
Id. at 471.
    ¶16 Mr. Lambdin argues that Utah Code section 76-5-205.5 “sets
forth all the elements jurors need to know to understand and apply the
law,” and therefore “there is no need for a court to define [extreme
emotional distress] beyond” what is listed in the statute. He argues that
we should abandon our definition of extreme emotional distress
because the term has an ordinary, non-technical meaning accessible to
jurors, and because our definition of that term in Bishop is “pure dicta.”
     ¶17 Mr. Lambdin cites State v. Couch for the proposition that “[i]t is
normally unnecessary and undesirable for a trial judge to volunteer
definitions of terms of common usage for the jury.” 635 P.2d 89, 94
(Utah 1981). Mr. Lambdin argues that extreme emotional distress has
an ordinary, dictionary meaning, and therefore we should not have
defined it in Bishop because our definition could be used at some future
point by a district court in its jury instructions. This proposition is
completely at odds with our implied constitutional authority to
interpret the law in order to address the merits of cases before us. See
UTAH CONST. art. VIII, § 1 (“The judicial power of the state shall be
vested in a Supreme Court . . . .”); id. art. VIII, § 3 (“The Supreme Court
shall have . . . power to issue all . . . orders necessary for . . . the
complete determination of any cause.”); State v. Walker, 2011 UT 53,
¶ 31, 267 P.3d 210 (Lee, J., concurring) (“[T]he role of modern judges is
to interpret the law . . . and then to apply it to the facts of the cases that
come before them. The process of interpretation, moreover, involves
. . . a determination of what the law is as handed down by the
legislature . . . .” (footnote omitted)).
    ¶18 When this court applies a statute to a given case, it is often
necessary to interpret the statute to determine the proper outcome. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is
emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule.”). When interpreting a
statute in order to apply it to the facts of a case, our primary goal is to
determine the intent of the legislature. See Walker, 2011 UT 53, ¶ 31
(Lee, J. concurring) (“The judge . . . is not a primary lawgiver but
instead an agent for the legislature . . . .”); Monarrez v. Utah Dep’t of
Transp., 2016 UT 10, ¶ 11, 368 P.3d 846 (“When interpreting a statute, it

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                          Opinion of the Court
is axiomatic that this court’s primary goal ‘is to give effect to the
legislature’s intent in light of the purpose that the statute was meant to
achieve.’” (citations omitted)).
    ¶19 Because we are merely determining the legislature’s intent
when we interpret a statute, our interpretation does not create new
law, it says what the law is. Additionally, jury instructions are intended
to inform jurors of the applicable law. State v. Powell, 2007 UT 9, ¶ 11,
154 P.3d 788 (“[J]ury instructions are statements of the law . . . .”
(citation omitted)). Thus, there is no error when a district court
includes our interpretation of a statutory term in instructions for the
jury, because that interpretation is simply a statement of the law. UTAH
R. CRIM. P. 19(a) (“[T]he court may instruct the jury concerning . . . the
definition of terms.”).
    ¶20 In Bishop, this court was called upon to define extreme
emotional disturbance. The fact that there may be an ordinary meaning
of extreme emotional disturbance does not affect this court’s authority
to determine if the ordinary meaning is the meaning that the legislature
intended. We therefore reject Mr. Lambdin’s argument that it is
improper for this court to adopt any definition of extreme emotional
distress.
    ¶21 We likewise reject Mr. Lambdin’s request to abandon Bishop’s
definition of extreme emotional distress as “pure dicta.” Whether or
not it was dicta in Bishop, 3 the definition has been used many times by
this court since Bishop was issued. See, e.g., State v. White, 2011 UT 21,
¶¶ 26–27, 251 P.3d 820; State v. Spillers, 2007 UT 13, ¶ 14, 152 P.3d 315,
abrogated on other grounds by State v. Reece, 2015 UT 45, 349 P.3d 712;
State v. Shumway, 2002 UT 124, ¶ 9, 63 P.3d 94; State v. Standiford, 769
P.2d 254, 259–60 (Utah 1988). Mr. Lambdin does not argue that we
should overrule any of this precedent, which has clearly established the
Bishop interpretation as controlling.




   3  The reference to “dicta” in Bishop comes from a concurring
opinion. 753 P.2d at 491 (Durham, J., concurring). The reference was
not directed at the interpretation of extreme emotional disturbance.
Rather the concurrence argued that the court should not have reached
the problem of such an interpretation at all because the jury had found
all of the elements of the greater offense in that case, rendering the
lesser included (manslaughter) offense analysis moot. Neither the lead
opinion nor either of the other two concurring opinions agreed with
this argument.

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                            STATE v. LAMBDIN
                           Opinion of the Court
    ¶22 Furthermore, the Bishop definition closely tracks the plain
meaning of extreme emotional distress. When interpreting statutes, we
look to the ordinary meaning of the words, using the dictionary as our
starting point. State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517. After
determining our starting point, we then must look to the “context of
the language in question.” Olsen v. Eagle Mountain City, 2011 UT 10,
¶ 9, 248 P.3d 465.
    ¶23 Here, “extreme” is defined as “very serious or severe.”
MERRIAM-WEBSTER ONLINE, http://www.merriam-webster.com (last
visited Aug. 7, 2017). “Emotion” is defined as “a conscious mental
reaction (such as anger or fear) subjectively experienced as strong
feeling usually directed toward a specific object and typically
accompanied by . . . behavioral changes.” Id. “Distress” is defined as
“pain or suffering.” Id. Thus, the dictionary meaning of extreme
emotional distress is a reaction in which the subject experiences very
severe pain or suffering accompanied by strong feelings, such as anger,
that is usually directed toward a specific person and typically
accompanied by behavioral changes, such as a loss of self-control. This
closely tracks our definition in Bishop. Additionally, the broad language
in the ordinary meaning must be put into the context of the special
mitigation statute that allows a criminal defendant to be convicted of
the lesser crime of manslaughter. Given this context, the Bishop
definition is the best formulation of what constitutes extreme
emotional distress when one person kills another.
   ¶24 We hold that Mr. Lambdin has failed to meet his burden of
overruling the definition of extreme emotional distress in Bishop. We
now determine whether that definition requires the defendant to show
that his loss of self-control was reasonable.
  II. EXTREME EMOTIONAL DISTRESS REQUIRES A SHOWING
 THAT A REASONABLE PERSON WOULD LOSE SELF-CONTROL
    ¶25 Mr. Lambdin argues that even if we maintain Bishop’s
definition of extreme emotional distress, our opinion in White
impermissibly extended Bishop’s definition by requiring defendants to
prove that their loss of self-control was reasonable. In White, we stated
that “a person acts under the influence of extreme emotional distress
when ‘he is exposed to extremely unusual and overwhelming stress’
that would cause the average reasonable person under the same
circumstances to ‘experience a loss of self-control.’” State v. White, 2011 UT
21, ¶ 26, 251 P.3d 820 (emphasis added) (quoting State v. Bishop, 753
P.2d 439, 471 (Utah 1988), overruled on other grounds by State v. Menzies,
889 P.2d 393 (Utah 1994)). Mr. Lambdin argues that this framing of
Bishop’s definition “omits the critical step of an extreme reaction, ‘as a
result of which he would experience a loss of self-control.’”

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                          Opinion of the Court
     ¶26 White’s formulation is not an extension of Bishop at all. It
merely restates what was already required under Bishop. Bishop
requires defendants to prove that they were “exposed to extremely
unusual and overwhelming stress,” and that “the average reasonable
person under that stress would have an extreme emotional reaction to
it, as a result of which he would experience a loss of self-control and
that person’s reason would be overborne by intense feelings.” Bishop, 753
P.2d at 471 (all but first emphasis added). When we say, “he,” and,
“that person[],” we are discussing the average reasonable person
referred to earlier. Thus, under Bishop, the defendant must prove that
the average reasonable person “would experience a loss of self-
control,” because the average reasonable person’s “reason would be
overborne by intense feelings.”
    ¶27 Additionally, while we appreciate Mr. Lambdin’s detailed
argument, we cannot see a difference between establishing that a
reasonable person would have an extreme emotional reaction to stress
that causes a loss of self-control, and establishing that the same
reasonable person would lose self-control due to the overwhelming
stress and the extreme emotional reaction. If a reasonable person
would lose self-control because of the then-existing circumstances, it
necessarily follows that the defendant’s loss of self-control must be
reasonable.
   ¶28 This is confirmed by the purpose behind special mitigation by
extreme emotional distress. Since Utah’s special mitigation by extreme
emotional distress statute “was modeled after section 210.3 of the
Model Penal Code, the American Law Institute’s Commentaries . . .
provide insight into the meaning of section 76–5–205 in 1973.” 4 Bishop,


   4 In 1985, the legislature added that “emotional disturbance does not
include a condition resulting from mental illness,” and that “[t]he
reasonableness of an explanation or excuse . . . shall be determined
from the viewpoint of a reasonable person under the then existing
circumstances.” 1985 Utah Laws 436. In 1999, the legislature changed
“disturbance” to “distress,” moved the defense to another section of
the code, made extreme emotional distress an affirmative defense
rather than a defense to criminal homicide, and added the requirement
that the distress not be “substantially caused by the defendant’s own
conduct.” 1999 Utah Laws 318–19. In 2009, the legislature classified
extreme emotional distress as special mitigation rather than an
affirmative defense. 2009 Utah Laws 1030-32.
    Even though the legislature moved extreme emotional distress
around the criminal code, changed it from a defense to an affirmative
                                                          (Continued. . .)
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                          Opinion of the Court
753 P.2d at 469. The comments provide that, “[i]n the end, the question
[of extreme emotional distress] is whether the actor’s loss of self-
control can be understood in terms that arouse sympathy in the
ordinary citizen.” MODEL PENAL CODE § 210.3 cmt. (5)(a) at 63 (AM.
LAW INST., Official Draft and Revised Comments 1980). This implies
that reasonable jurors could picture themselves, or the hypothetical
reasonable person, losing self-control under the then-existing
circumstances and doing something they wouldn’t normally do when
they are thinking and acting rationally.
  ¶29 Even defense counsel at trial acknowledged this purpose.
During closing arguments, she stated,
       when people are highly emotional or agitated they can
       lose control and they can do things that they normally
       wouldn’t do, things that they wouldn’t do when they are
       in full possession of themselves. And, really, that’s what
       this case is about, isn’t it, . . . things can happen when
       people are overwhelmed by emotion or agitation.
Defense counsel essentially argues that, under the then-existing
circumstances, the average reasonable person’s self-control would be
overcome by feelings such as anger, distress, or excessive agitation and


(Continued. . .)
defense and then changed it again to special mitigation and narrowed
its scope, none of these changes have so altered extreme emotional
distress that the MPC comments are no longer informative about the
original purpose in adopting extreme emotional distress. If anything,
the legislature has made it more difficult to prove extreme emotional
distress, but has left the core provisions largely intact. Compare UTAH
CODE § 76-5-205(1) (1973) (“Criminal homicide constitutes
manslaughter if the actor . . . [c]auses the death of another under the
influence of extreme mental or emotional disturbance for which there
is a reasonable explanation or excuse.”), with id. § 76-5-205.5(1) (2016)
(“Special mitigation exists when the actor causes the death of another
. . . under the influence of extreme emotional distress for which there is
a reasonable explanation or excuse.”). Mr. Lambdin argues that the
legislature intended to “substantially enlarge[] the class of cases”
available in extreme emotional distress from the more narrow common
law heat of passion defense—a fact that we have acknowledged. White,
2011 UT 21, ¶ 29 (alteration in original) (citation omitted). However, he
has not provided any reason as to why these changes should alter our
consideration of the MPC comments in determining the legislative
intent behind the core provisions.

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                          Opinion of the Court
that once the reasonable person loses self-control, they could do
something they wouldn’t normally do— like kill their spouse.
    ¶30 Additionally, as defense counsel’s argument shows, the
extreme emotional reaction and the loss of self-control are so
intertwined that it is nearly impossible to separate the two. While we
have held that the external triggering event and the extreme emotional
reaction do not need to be contemporaneous, White, 2011 UT 21, ¶ 32,
the extreme emotional reaction and the loss of self-control must be
contemporaneous. Indeed, if the loss of self-control does not occur
while the defendant is experiencing the extreme emotional reaction,
then the loss of self-control is not caused by the extreme emotional
reaction and special mitigation is not appropriate. Requiring a lay jury
to untangle this will only lead to confusion.
    ¶31 Mr. Lambdin also argues that requiring a defendant to prove
his loss of self-control was reasonable impermissibly adds another
element to extreme emotional distress. He argues that courts are “not
to infer substantive terms into the text” of a statute, Berrett v. Purser &
Edwards, 876 P.2d 367, 370 (Utah 1994), and that “courts may not
denounce and punish as crimes acts and omissions not made
punishable by statute, for it is a legislative power to declare acts as
crimes,” State v. Gallion, 572 P.2d 683, 688 (Utah 1977). However, as
discussed above, this court has the authority to interpret the law and to
determine what the legislature meant when it used specific terms.
Supra ¶¶ 17–19. There is a difference between interpreting a statute and
adding terms to a statute. When we interpret a statute, we seek to
determine the legislature’s intent in using the words that it chose to
use. State v. Walker, 2011 UT 53, ¶ 31, 267 P.3d 210 (Lee, J., concurring)
(“The process of interpretation . . . involves . . . a determination of what
the law is as handed down by the legislature . . . .”); State v. Rasabout,
2015 UT 72, ¶ 10, 356 P.3d 1258 (“[W]hen construing a statute, we seek
to give effect to the intent of the Legislature.”). Thus, we are not adding
terms to the statute; we are merely interpreting what the legislature
intended, and saying what the law as enacted by the legislature is. The
plain meaning of extreme emotional distress leads us to conclude that
the legislature intended the defendant to establish a reasonable
explanation or excuse for the loss of self-control.
   ¶32 Requiring a reasonable explanation or excuse for the extreme
emotional distress creates an objective inquiry, rather than a subjective
one. 5 See UTAH CODE § 76-5-205.5(4) (“The reasonableness of an


   5 The Model Penal Code’s extreme emotional distress defense
replaced our common law heat of passion defense in 1973. In 1975, the
                                                     (Continued. . .)
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                          Opinion of the Court
explanation or excuse . . . shall be determined from the viewpoint of a
reasonable person under the then existing circumstances.”). The
defendant must have a reasonable explanation or excuse for the
extreme emotional distress, and the loss of self-control is included in
the definition of extreme emotional distress. Thus, the loss of self-
control must be measured from an objective, reasonable-person
standard. Supra ¶ 15. We have not added any substantive terms to the
statute; we have merely interpreted the statute according to its plain
meaning in the context and purpose of the statute.
   ¶33 We hold that the defendant must establish, by a
preponderance of the evidence, that his loss of self-control was
reasonable and that the average person’s reason would have been
overcome by extremely unusual and overwhelming stress and extreme
emotions.
    ¶34 The State asks us to go one step further and hold that the
killing itself must be reasonable. We decline the State’s invitation.
While the State raises significant policy considerations, such an
interpretation does not comport with the plain language of the statute.
The statute requires a reasonable explanation or excuse only for the
extreme emotional distress, not for any subsequent action taken by the
defendant. See UTAH CODE § 76-5-205.5. While a loss of self-control is
included in the definition of extreme emotional distress, it is too much
of a stretch to include “killing” in that definition.
    ¶35 Additionally, it is hard to imagine that the average reasonable
person would ever kill someone, except in limited circumstances such
as self-defense or war. Indeed, once the average reasonable person in
the then-existing circumstances loses self-control, the person no longer
acts reasonably. The reasonable person becomes the unreasonable or
irrational person because “that person’s reason [is] overborne by
intense feelings, such as passion, anger, distress, grief, excessive
agitation, or other similar emotions.” Bishop, 753 P.2d at 471. Once the


(Continued. . .)
legislature removed the requirement that the “reasonableness of [the]
explanation or excuse” must be “determined from the viewpoint of a
person in the actor’s situation under the circumstances as he believes
them to be,” removing any subjective standard. Compare 1973 Utah
Laws 608, with 1975 Utah Laws 148; see also Bishop, 753 P.2d at 470–71
(“[T]he legislature intended in 1975 to do away with the subjective
aspect of [extreme emotional distress]. . . . [The] defendant’s subjective
mental state should be irrelevant in determining whether the
explanation or excuse for the disturbance is reasonable.”).

                                   12
                           Cite as: 2017 UT 46
                          Opinion of the Court
average reasonable person loses self-control, there could be a wide
range of actions that the now unreasonable person might take, but the
fact finder is not directed by the statute to evaluate the reasonableness
of the action ultimately taken.
    ¶36 That being said, there is no binary, on-off switch for self-
control. In general, a person does not have complete self-control until
he reaches a certain level of stress and emotion, and then loses it
entirely. Rather, the average person’s ability to exercise self-control is
measured along a scale. “The phrase ‘loss of self-control’ . . . . is
misleading,” because extreme emotional distress “interferes with, but
does not completely destroy, an actor’s capacity to control conduct.”
Mitchell N. Berman & Ian P. Farrell, Provocation Manslaughter As Partial
Justification and Partial Excuse, 52 WM. & MARY L. REV. 1027, 1048 (2011).
Extreme emotions make us “less able to respond in a legally and
morally appropriate fashion.” Joshua Dressler, Rethinking Heat of
Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY
421, 464 (1982). For instance, the average reasonable person’s self-
control may be impaired to the point where he might be expected to
scream an obscenity at another driver during rush hour, but the
average reasonable person’s self-control in that situation would not be
so degraded as to cause him to assault or kill the other driver absent
some “extremely unusual and overwhelming stress,” that is not
typically found in rush hour traffic. Bishop, 753 P.2d at 471.
   ¶37 The amount of self-control a person exercises is tied to a
variety of factors,6 but the legislature has allowed fact finders to



   6 Recent research into self-control indicates that
       an individual’s self-control is a finite resource that can be
       used up by other cognitive demands and, furthermore,
       that an individual can get better at self-control over time.
       This work has compared the seeming paradox of self-
       control to a muscle--that is, self-control grows weaker
       with use in the short term but stronger with use in the
       long term.
Rebecca Hollander-Blumoff, Crime, Punishment, and the Psychology of
Self-Control, 61 EMORY L.J. 501, 504 (2012). Additionally, “research has
suggested that it is not only self-control tasks, per se, that deplete self-
regulatory strength. Engaging in conscious choices, engaging in self-
control over one’s emotional responses, undergoing stressful
experiences, and being reminded of one’s mortality produced similar
diminution in research subjects’ performance at other self-control
                                                            (Continued. . .)
                                    13
                           STATE v. LAMBDIN
                          Opinion of the Court
consider only the amount and type of stress the defendant was faced
with and the “building emotional reaction” that the average reasonable
person would experience in light of that stress. White, 2011 UT 21, ¶ 32.
Thus, fact finders must determine at what point the average reasonable
person’s self-control and ability to think rationally would be so
overwhelmed by stress and emotions that special mitigation by
extreme emotional distress is established.
    ¶38 The reasonableness of the explanation or excuse for the
defendant’s loss of self-control must be read in the context of the
statute, Rasabout, 2015 UT 72, ¶ 10, which reduces the convicted offense
from aggravated murder to murder, or murder to manslaughter,7
UTAH CODE § 76-5-205.5(5)(b). The statute does not mitigate assault or
any other criminal activity. Additionally, the statute requires the
defendant to establish that a reasonable person would suffer from
extreme emotional distress. The fact that the defendant must establish
extreme emotional distress in the context of murder indicates a
legislative intent that it must be shown that the average reasonable
person would experience an overwhelming and substantial loss of self-
control.
    ¶39 The purpose behind special mitigation by extreme emotional
distress confirms this holding. As we stated in White, most “intentional
homicides . . . [are] the result of strong emotions and stresses.
Consequently, a distinction must be drawn so that this defense will
only be applicable to those homicides which appropriately qualify
under the underlying purpose of this mitigating defense.” 2011 UT 21,
¶ 22 (citation omitted). Special mitigation by extreme emotional
distress is an “‘indulgence of the frailty of human nature,’ recognizing
that the [stress and emotions] in some cases may be so great as to
warrant a penalty less than that prescribed for murder.” State v. Ross,
501 P.2d 632, 635 (Utah 1972) (citations omitted). But this legislative
indulgence goes only so far. It has not been extended to reduce murder
to manslaughter simply because the average reasonable person might
experience stress and anger in the circumstances, and consequently a
heightened impairment to his decision making process and self-control.
Rather, a reasonable person’s self-control and ability to make a rational
choice must be overwhelmingly and substantially undermined.


(Continued. . .)
tasks.” Id. at 539–540. In particular, “emotional distress is itself often a
drain” on a person’s self-control. Id. at 540 (citation omitted).
   7The statute also allows for mitigation of attempted aggravated
murder or attempted murder.

                                    14
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                          Opinion of the Court
Berman, supra ¶ 36, at 1048 (Extreme emotional distress “is a partial
excuse because the actor’s choice-making capacities are so substantially
undermined that it would be unfair to treat the actor as fully
blameworthy . . . .”).
   ¶40 The defendant must prove that the type and amount of stress
would cause the average reasonable person’s rationality to be
overwhelmingly and substantially “overborne by intense feelings, such
as passion, anger, distress, grief, excessive agitation, or other similar
emotions.” Bishop, 753 P.2d at 471. While the average reasonable
person may experience anger or other emotions in the face of large
amounts of stress, the stress and emotion must be extreme, indicating
that the connected impaired reasoning and loss of self-control must be
overwhelming and substantial.
    III. THE JURY INSTRUCTIONS WERE LEGALLY SUFFICIENT
    ¶41 When reviewing jury instructions, “we look at the jury
instructions ‘in their entirety and will affirm when the instructions
taken as a whole fairly instruct the jury on the law applicable to the
case.’” State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (citation
omitted). “Thus, a trial court does not err by refusing a proposed
instruction ‘if the point is properly covered in other instructions.’” Id.
(citation omitted).
   ¶42 Seven instructions relating to extreme emotional distress were
presented to the jury in this case. Mr. Lambdin challenges only three of
them: jury instructions 19, 20, and 21. Jury instruction 20 states,
           Although a building emotional reaction to a series of
       events may contribute to extreme emotional distress, an
       external triggering event is also required. However, the
       triggering event need not be contemporaneous with the
       Defendant’s loss of self-control.
(Emphasis added).
   ¶43 Mr. Lambdin argues that this instruction implies that the
defendant’s loss of self-control must be reasonable by conflating the
extreme emotional reaction and the loss of self-control. As the
defendant must establish that the loss of self-control was reasonable,
there is no deficiency with this instruction.
   ¶44 Jury instruction 19 states,
           Criminal homicide constitutes manslaughter if the
       defendant commits murder, but Special Mitigation is
       established. Special Mitigation generally involves a factor
       or set of factors that make a person less blameworthy for
       a criminal act. Special Mitigation exist[s] when a person

                                     15
                            STATE v. LAMBDIN
                           Opinion of the Court
       causes the death of another under the influence of
       extreme emotional distress for which there was a
       reasonable explanation or excuse. In this case, the
       defendant asserts that Special Mitigation exists because
       he caused the death of another under the influence of
       extreme emotional distress for which there was a
       reasonable explanation or excuse.
           A person acts under the influence of extreme
       emotional distress when he is exposed to extremely
       unusual and overwhelming stress that would cause the
       average reasonable person in similar circumstances to
       experience a loss of self-control and be overborne by
       intense feelings such as passion, anger, distress, grief,
       excessive agitation, or other like emotions. The standard is
       not whether the defendant subjectively thought his reaction was
       reasonable. Rather, it is an objective standard, determined from
       the viewpoint of a reasonable person faced with the then-
       existing circumstances.
(Emphasis added). Mr. Lambdin concedes that the first half of jury
instruction 19 is an accurate depiction of the law. He argues that the
emphasized portion of this instruction could confuse a jury into
thinking that the reaction that must be reasonable is the act of killing
itself, rather than the emotional reaction or the loss of self-control.
While the instruction does not explicitly state that the reaction referred
to is the emotional reaction and loss of self-control, only emotional
reactions and loss of self-control are referenced in the entire paragraph
in question. The dissent attempts to read not merely this instruction,
but rather one sentence of this instruction in isolation. The sentence
referencing the defendant’s “reaction” is clearly tied to the preceding
sentence, which discusses the defendant’s loss of self-control in the face
of “unusual and overwhelming stress.” Thus, the meaning of
“reaction” in the penultimate sentence seems quite clear.
    ¶45 Additionally, the “reaction” meant by instruction 19 was
clarified by instruction 21, which provides,
            In examining the reasonableness of the explanation or
       excuse offered by the defendant you should consider all
       the      then-existing     circumstances.      “Then-existing
       circumstances” include more than just the triggering
       event. The phrase refers to the broader context of past
       experiences and emotions that give meaning to the
       defendant’s reaction, that is to say, to the defendant’s loss of
       self control.”


                                     16
                           Cite as: 2017 UT 46
                          Opinion of the Court
(Emphasis added). As the emphasized portion of this instruction
clarifies, the reaction that the jury must conclude was reasonable, given
the then-existing circumstances, is the loss of self-control, not the
killing.
    ¶46 The dissent does not agree that instruction 21 clarifies the
reaction referenced in instruction 19. They reason that instruction 19 is
ambiguous as to what “reaction” it is referencing, saying that “it is
certainly possible, and perhaps even likely, that a juror would
understand reaction to mean not the loss of self-control, but the killing
itself.” Infra ¶ 59. While instruction 19 does not specifically mention
that the reaction is the loss of self-control, it also does not specifically
state that the reaction is the killing. Even if the dissent is correct and
instruction 19 is ambiguous, something more than a possibility that a
jury could be confused by an instruction is required to grant a new
trial. State v. Brooks, 638 P.2d 537, 542 (Utah 1981) (“[T]he fact that one
or more of the instructions, standing alone, are not as full or accurate as
they might have been is not reversible error.”). 8
    ¶47 An in depth reading of almost any set of jury instructions in a
complex case is likely to turn up some ambiguity in an individual
instruction. If pointing to an ambiguity in an individual instruction


   8 To be granted a new trial, other courts require more than just a
showing that an instruction is ambiguous and that it could have
possibly confused the jurors. See, e.g., Boyde v. California, 494 U.S. 370,
380 (1990) (holding that an “ambiguous” jury instruction is insufficient
only if “there is a reasonable likelihood that the jury has applied the
challenged instruction” incorrectly); State v. Sivo, 925 A.2d 901, 913 (R.I.
2007) (“[A]n erroneous charge warrants reversal only if it can be shown
that the jury ‘could have been misled’ to the resultant prejudice of the
complaining party.” (citations omitted)); State v. Mann, 394 P.3d 79, 83
(Idaho 2017) (“Reversible error occurs if an instruction misleads the
jury or prejudices a party.” (citation omitted)); State v. Daniel W. E., 142
A.3d 265, 275 (Conn. 2016) (stating that “we examine the [trial] court’s
entire charge to determine whether it is reasonably [probable] that the
jury could have been misled” (alterations in original) (citation
omitted)); State v. Lackman, 395 P.3d 477, 480 (Mont. 2017)
(“[R]eversible error occurs only if the instructions prejudicially affect a
defendant’s substantial rights.”); People v. Tyler, 47 N.Y.S.3d 187, 189
(N.Y. App. Div. 2017) (“Reversal is appropriate . . . when the charge,
‘read . . . as a whole . . .’ likely confused the jury regarding the correct
rules to be applied in arriving at a decision.” (second alteration in
original) (citation omitted)).


                                    17
                           STATE v. LAMBDIN
                          Opinion of the Court
were enough, almost no set of instructions would survive. Individual
instructions must be viewed along a spectrum. When an instruction
completely misstates a legal standard, there is little chance that other
instructions, read as a whole, will remedy the juror confusion that is
likely to ensue. That did not happen here. Instruction 19 simply left out
a specific reference to the “reaction” it was referencing. When an
instruction is simply ambiguous, other instructions may have a greater
impact on the jury’s understanding. Instruction 21 more than
adequately addresses any juror confusion that could have arisen under
instruction 19. 9 Unless the instructions, read as a whole, create a
reasonable likelihood that the jurors were misled or confused as to the
correct legal standard, a new trial is not appropriate.10 Nothing in
instruction 19, when read in conjunction with instruction 21, creates
such a reasonable likelihood.
    ¶48 Additionally, defense counsel’s closing argument clarified this
for the jury. Defense counsel stated that,
        [The instructions are] instructing you [the jury] to look
        toward the meaning and the reasons for the defendant’s
        loss of self-control, and to assess the reasonableness of
        that, the loss of self-control, and not the killing. [The


   9 The dissent argues that “there is nothing in either instruction that
would alert the jury that the reaction referred to in instruction 21 was
the same reaction referred to in instruction 19,” and therefore the
“jurors were left on their own to connect the reaction in instruction 21
with the reaction in instruction 19.” Infra ¶ 62. But instruction 19
discusses how a reasonable person would lose self-control under
similar, stressful circumstances. It then goes on to mention the
“reaction,” clearly referencing the loss of self-control in the face of the
overwhelming stress. Instruction 21 discusses the “reaction,” meaning
“the defendant’s loss of self control.” It is difficult to see how a
reasonable juror would not make this connection, given that there is
only one “reaction” discussed in this portion of the jury instructions,
and both are surrounded by discussions of the loss of self-control.
   10 The dissent argues that requiring a defendant to show a
reasonable likelihood that the jury was misled or confused “sets a
dangerously high standard.” Infra ¶ 65. On the contrary, our standard
appears to comport with those applied in other jurisdictions. See supra
¶ 46 n.8.




                                    18
                            Cite as: 2017 UT 46
                           Opinion of the Court
       instructions are] not asking you to find that a reasonable
       person would absolutely have committed this killing, but
       that a reasonable person would have experienced a loss
       of self-control. And some people would do different
       things when they lose self-control . . . . So what you are
       looking to is the defendant’s loss of self-control and the
       explanation for that and the reasonableness of that, and
       not trying to get to the point of saying, oh, yes, a killing is
       reasonable, because, of course, a killing is never
       reasonable.
The language of the instruction and of defense counsel’s arguments
make it abundantly clear that the loss of self-control is what must be
reasonable, not the murder.
    ¶49 We note that the distinction between a reasonable loss of self-
control and a reasonable murder is not easily made. In this case, the
district court rejected defendant’s proposed jury instruction that made
it clear that the killing need not be reasonable. While the jury
instructions adopted by the district court here were legally sufficient,
we note that defendant’s proposed instruction was also proper and the
best practice would be to provide explicit instructions to juries to
inform them of this nuanced distinction. We provide the following
language as an example:
           The defendant needs to prove only that an average
       reasonable person would have an extreme emotional
       reaction to the stress and that the same average
       reasonable person would experience an overwhelming
       and substantial loss of self-control in light of the stress
       and the emotional reaction. The defendant does not need
       to prove that the killing was reasonable because once a
       reasonable person has lost self-control, he is no longer
       acting reasonably.
    ¶50 While we provide this language as an example, we note that
jury instructions cannot be viewed in isolation. Rather, they must be
read together as a whole to determine if the jury has been adequately
instructed on special mitigation by extreme emotional distress. See
Maestas, 2012 UT 46, ¶ 148.
    ¶51 This instruction alone does not guarantee that the jury
instructions, taken as a whole, are accurate. It is provided only to assist
trial courts with crafting or adopting an instruction that adequately
informs the jury that the defendant must prove he has a reasonable
explanation or excuse for the emotional reaction and loss of self-
control, but not for the subsequent killing.

                                     19
                           STATE v. LAMBDIN
                          Opinion of the Court
   ¶52 Jury instructions explaining the “reasonable explanation or
excuse” requirement should avoid ambiguity as to what the reasonable
explanation is addressing. If one instruction strongly implies the killing
must be reasonable, this additional jury instruction may not be
sufficient to remedy the misstatement. State v. Campos, 2013 UT App
213, ¶ 64, 309 P.3d 1160 (“[W]here instructions are in irreconcilable
conflict, or so conflicting as to confuse or mislead the jury, the rule
requiring instructions to be read together [as a whole] has no
application.” (citation omitted)).
   ¶53 Finally, because the jury instructions in this case are legally
sufficient and accurately describe the law, we do not address
Mr. Lambdin’s arguments for prejudice.
                              CONCLUSION
    ¶54 We hold that a criminal defendant who seeks to establish
special mitigation by extreme emotional distress must prove that his
loss of self-control is reasonable. Based on this, we hold that the jury
instructions in this case were an adequate depiction of the law. We
affirm the court of appeals.




                                   20
                             Cite as: 2017 UT 46
                     CHIEF JUSTICE DURRANT, dissenting
   CHIEF JUSTICE DURRANT, dissenting:
    ¶55 I respectfully dissent from the majority’s conclusion that the
jury instructions in this case were legally sufficient. Even when
examined “in their entirety,” they failed to accurately “instruct the jury
on the law applicable to the case.” 1 Specifically, jury instruction 19
introduced an ambiguity that was not remedied by later instructions or
by closing arguments.
    ¶56 A criminal defendant “is entitled to have the jury instructed
fully and clearly on the law” that supports his theory of the case. 2 And
while we have held that a misleading or erroneous jury instruction is
harmless if “we are not convinced that without this instruction the jury
would have reached a different result,” 3 that is not the case here. The
ambiguity in jury instruction 19 “create[d] a reasonable likelihood that
the jurors were misled or confused as to the correct legal standard,”4
even when the jury instructions are read as a whole. The defendant
confessed to killing the victim. The only issue for the jury to decide was
whether special mitigation applied. Jury instruction 19, explaining the
special mitigation of extreme emotional distress, went to the very heart
of the defendant’s theory of the case. Without a full and clear statement
of the law of special mitigation by extreme emotional distress, there is
an obvious risk that the jury reached its verdict based on a
misunderstanding of the law.
   ¶57 Jury instruction 19 stated as follows:
             Criminal homicide constitutes manslaughter if the
         defendant commits murder, but Special Mitigation is
         established. Special Mitigation generally involves a
         factor or set of factors that make a person less
         blameworthy for a criminal act. Special Mitigation
         exist[s] when a person causes the death of another under
         the influence of extreme emotional distress for which
         there was a reasonable explanation or excuse. In this
         case, the defendant asserts that Special Mitigation exists

   1   State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (citation omitted).
   2 State v. Castillo, 457 P.2d 618, 620 (Utah 1969) (emphasis added); see
also State v. Harding, 635 P.2d 33, 34 (Utah 1981) (extending Castillo’s
analysis of jury instructions on the theory of self-defense to other
defense theories).
   3   Green v. Louder, 2001 UT 62, ¶ 17, 29 P.3d 638.
   4   Supra ¶ 47.


                                      21
                            STATE v. LAMBDIN
                    CHIEF JUSTICE DURRANT, dissenting
         because he caused the death of another under the
         influence of extreme emotional distress for which there
         was a reasonable explanation or excuse.
             A person acts under the influence of extreme
         emotional distress when he is exposed to extremely
         unusual and overwhelming stress that would cause the
         average reasonable person in similar circumstances to
         experience a loss of self-control and be overborne by
         intense feelings such as passion, anger, distress, grief,
         excessive agitation, or other like emotions. The standard
         is not whether the defendant subjectively thought his
         reaction was reasonable. Rather, it is an objective
         standard, determined from the viewpoint of a reasonable
         person faced with the then-existing circumstances.
(Emphasis added.) The first paragraph of instruction 19 accurately
depicts the law. It tracks the special mitigation statute, which provides
that in order for special mitigation to apply, the actor must “cause[] the
death of another . . . under the influence of extreme emotional distress
for which there is a reasonable explanation or excuse.” 5
    ¶58 The second paragraph also begins with an accurate statement
of the law, employing the definition of extreme emotion distress this
court adopted in State v. Bishop. 6 But the final two sentences introduce a
significant ambiguity. After setting forth our Bishop definition (“[a]
person acts under the influence of extreme emotional distress when he
is exposed to extremely unusual and overwhelming stress that would
cause the average reasonable person in similar circumstances to
experience a loss of self-control and be overborne by intense feelings”),
the instruction goes on to state that “[t]he standard is not whether the
defendant subjectively thought his reaction was reasonable. Rather, it is an
objective standard, determined from the viewpoint of a reasonable


   5   UTAH CODE § 76-5-205.5(1).
   6 753 P.2d 439 (Utah 1988), overruled on other grounds by State v.
Menzies, 889 P.2d 393 (Utah 1994). “In Bishop, . . . [w]e stated that a
person acts under the influence of extreme emotional distress when ‘he
is exposed to extremely unusual and overwhelming stress’ that would
cause the average reasonable person under the same circumstances to
‘experience a loss of self-control,’ and ‘be overborne by intense feelings,
such as passion, anger, distress, grief, excessive agitation, or other
similar emotions.’” State v. White, 2011 UT 21, ¶ 26, 251 P.3d 820
(quoting Bishop, 753 P.2d at 471 ).


                                    22
                             Cite as: 2017 UT 46
                      CHIEF JUSTICE DURRANT, dissenting
person faced with the then-existing circumstances.” (Emphasis added).
The jury is left to answer the question of what the relevant reaction
was. Because this instruction did not fully and clearly define what is
meant by reaction, the jury could conclude that the reaction was not the
loss of self-control, but the act of killing.
    ¶59 The majority reasons that although “the instruction does not
explicitly state that the reaction referred to is the emotional reaction
and loss of self-control,” the meaning of reaction “seems quite clear”
because “only emotional reactions and loss of self-control are
referenced in the entire paragraph in question.” 7 But the meaning of
reaction is anything but clear. In fact, the “usual and ordinary
meanings” of reaction—which the jury was instructed to employ 8—
include “a response to some treatment, situation, or stimulus” and a
“bodily response to or activity aroused by stimulus.” 9 So it is certainly
possible, and perhaps even likely, that a juror would understand
reaction to mean not the loss of self-control, but the killing itself.
    ¶60 This ambiguity is accentuated by its placement relative to the
definition of extreme emotional distress. The majority states that “[t]he
sentence referencing the defendant’s ‘reaction’ is clearly tied to the
preceding sentence,” 10 but there is no transition or other language that
clearly ties these sentences together. There is no reference in either
sentence that would indicate that reaction is the defendant’s loss of self-
control. The reference to his reaction follows the definition of extreme
emotional distress. The progression of the events listed in the
paragraph—from extreme emotional distress to the loss of self-control
to the reaction—suggests that the reaction referred to is the culmination
of that sequence of events, which was the murder. So a juror could
easily interpret his reaction to refer to the defendant’s reaction to the
extreme emotional distress—specifically, the act of killing his wife.
     ¶61 The majority argues that instruction 19 is not ambiguous, but it
still attempts to shore up the meaning of reaction by pointing to another


   7   Supra ¶ 44.
   8  Jury instruction 14 stated, “Unless these instructions give a
definition, you should give all words their usual and ordinary
meanings.” Jury instructions 29 and 30 defined terms relevant to the
case, but did not define reaction.
   9 Reaction, MERRIAM-WEBSTER ONLINE, https://www.merriam-
webster.com/dictionary/reaction (last visited July 20, 2017).
   10   Supra ¶ 44.


                                     23
                              STATE v. LAMBDIN
                      CHIEF JUSTICE DURRANT, dissenting
jury instruction, instruction 21, and to defense counsel’s closing
argument. Neither instruction 21 nor the closing arguments was
sufficient to cure instruction 19’s ambiguity.
    ¶62 Jury instruction 21 explained, “In examining the
reasonableness of the explanation or excuse offered by the defendant
you should consider all the then-existing circumstances. ‘Then-existing
circumstances’ include more than just the triggering event. The phrase
refers to the broader context of past experiences and emotions that give
meaning to the defendant’s reaction, that is to say, to the defendant’s
loss of self-control.” The majority concludes that “this instruction
clarifies” that “the reaction that the jury must conclude was reasonable .
. . is the loss of self-control, not the killing.” 11 But instruction 21 is
explicitly addressed to “the reasonableness of the explanation or excuse,”
not the reasonableness of the reaction. (Emphasis added). So the jurors
were left on their own to connect the reaction in instruction 21 with the
reaction in instruction 19. Moreover, there is nothing in either
instruction that would alert the jury that the reaction referred to in
instruction 21 was the same reaction referred to in instruction 19. As the
majority states, “[j]ury instructions explaining the ‘reasonable
explanation or excuse’ requirement should avoid ambiguity as to what
the reasonable explanation is addressing. If one instruction strongly
implies the killing must be reasonable, this additional jury instruction
may not be sufficient to remedy the misstatement.” 12 Instruction 21 falls
well short of clarifying the ambiguity in instruction 19.
    ¶63 Finally, the majority reasons that defense counsel’s closing
argument was sufficient to clarify instruction 19. It is true that defense
counsel correctly stated the law, but she did so without using the
ambiguous term reaction. And I find it troubling to conclude that
defense counsel’s closing argument could cure an ambiguous
instruction where jurors were specifically instructed to rely on the jury
instructions and not the closing arguments for statements of law. 13


   11   Supra ¶ 45.
   12   Supra ¶ 52.
   13  Instruction 3 read, “When the lawyers give their closing
arguments, keep in mind that they are advocating their views of the
case. What they say during their closing arguments is not evidence. If
the lawyers say anything about the evidence that conflicts with what
you remember, you are to rely on your memory of the evidence. If they
say anything about the law that conflicts with these instructions, you
are to rely on these instructions.”


                                     24
                             Cite as: 2017 UT 46
                      CHIEF JUSTICE DURRANT, dissenting
    ¶64 Moreover, even accepting the proposition that closing
arguments could clarify an ambiguous jury instruction as a general
matter, they did not do so in this case. Here, while the jury did hear a
correct description of the law by defense counsel, it also heard an
incorrect description by the prosecutor in his rebuttal. There, the
prosecutor conflated the loss of control with the killing. He first
referenced “a complete loss of control that results in stabbing [one’s]
spouse and beating them.” He then defined the loss of control in this
case as “the stabbing and the beating.” So the last statement of the law
the jury heard before it deliberated was a conflation of the loss of self-
control and the killing, which emphasized the ambiguous use of his
reaction in instruction 19. The majority provides no explanation for why
the jury would have relied upon defense counsel’s closing argument,
while disregarding the prosecutor’s rebuttal.
    ¶65 The majority states that “[e]ven if . . . instruction 19 is
ambiguous, something more than a possibility that a jury could be
confused by an instruction is required to grant a new trial.” 14 The
majority sets a dangerously high standard. While it is true that “almost
any set of jury instructions” will contain some ambiguity, an
ambiguous jury instruction that significantly distorts a legal standard is
on par with a jury instruction that “completely misstates a legal
standard.” 15 And that is what we have here. Instruction 19 did not
“simply [leave] out a specific reference to the ‘reaction’ it was
referencing,” as the majority states.16 It all but invited an incorrect
application of the law by the jury—that it must find the killing itself
reasonable and not simply the loss of self-control.
    ¶66 The majority correctly observes that “the distinction between a
reasonable loss of self-control and a reasonable murder is not easily
made.” 17 While this distinction is not easily made, it must be clearly
made because for a defendant to prove that a murder was reasonable is
an altogether different task than proving that a loss of control was
reasonable. The majority agrees with this, highlighting the important
difference between the loss of self-control and murder. After rejecting
the State’s argument that the killing itself must be reasonable, the
majority concludes that “it is hard to imagine that the average
reasonable person would ever kill someone . . . . Indeed, once the

   14   Supra ¶ 46.
   15   Supra ¶ 47.
   16   Supra ¶ 47.
   17   Supra ¶ 49.


                                     25
                              STATE v. LAMBDIN
                      CHIEF JUSTICE DURRANT, dissenting
average reasonable person in the then existing circumstances loses self-
control, the person no longer acts reasonably.” 18 To require proof that a
murder was reasonable would effectively eliminate the defense of
special mitigation by extreme emotional distress. Indeed, it seems
highly unlikely that any jury would ever conclude that a murder was
reasonable.
    ¶67 Yet, instruction 19’s ambiguous reference to his reaction created
a very real possibility that the jury believed its charge was to determine
whether the murder was reasonable. The defendant was entitled to a
clear instruction on special mitigation by extreme emotional distress—
in fact, he proposed one that was rejected by the court. This instruction
went to the heart of his theory of the case. Even though he committed a
horrific act, he is nevertheless entitled to a fair trial, which includes a
clear instruction on this key element of his defense. Because a clear
instruction was lacking here, I would reverse.




   18   Supra ¶ 35.


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