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March 26, 2026 Get Citation Alerts Download PDF Add Note

Johnson v. State

Utah Supreme Court

• Citations: 2026 UT 6

• Docket Number: Case No. 20230715

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (34.6K)

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Combined Opinion

This opinion is subject to revision before final
publication in the Pacific Reporter
2026 UT 6

IN THE

SUPREME COURT OF THE STATE OF UTAH

MICHAEL WADDELL JOHNSON,
Appellant,
v.
STATE OF UTAH,
Appellee.

No. 20230715
Heard October 15, 2025
Filed March 26, 2026

On Direct Appeal

Third District Court, Salt Lake County
The Honorable Linda M. Jones
No. 190906447

Attorneys:
Dain Smoland, Ian Quiel, Benjamin Miller, Debra M. Nelson, Salt
Lake City, for appellant
Derek E. Brown, Att’y Gen., Daniel L. Day, Asst. Solic. Gen., Salt
Lake City, for appellee

JUSTICE HAGEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,
ASSOCIATE CHIEF JUSTICE POHLMAN, and JUDGE HANSEN joined.
Due to his retirement, JUSTICE PEARCE did not participate herein;
DISTRICT COURT JUDGE MATTHEW J. HANSEN sat.

---


As of January 31, 2026, “The Supreme Court consists of seven
justices.” UTAH CODE § 78A-3-101(1). Pursuant to Utah Supreme
Court Standing Order No. 18, this court sat and rendered judgment
in this matter as a division of five justices.
JOHNSON v. STATE
Opinion of the Court

JUSTICE NIELSEN became a member of the Court after oral
argument in this matter and accordingly did not participate.

JUSTICE HAGEN, opinion of the Court:
INTRODUCTION
¶1 A jury found petitioner Michael Johnson guilty of murder.
At his trial, Johnson requested a lesser-included-offense instruction
for homicide by assault. But the instruction, which Johnson’s trial
counsel proposed and approved, misstated the mens rea element
for that offense. On direct appeal to the court of appeals, Johnson
did not claim that his counsel rendered ineffective assistance by
proposing the erroneous jury instruction nor did he claim that the
trial court committed plain error by giving the instruction. Yet, the
court of appeals reached the issue on its own initiative, applying
the exceptional circumstances exception to preservation. It then
held that the instructional error was prejudicial and reversed
Johnson’s conviction. On certiorari review, we reversed, holding
that the court of appeals erred by applying the exceptional
circumstances exception. We made no express statement regarding
the effect our reversal had on the court of appeals’ ruling that the
error in the instruction was prejudicial, but we made clear that the
court of appeals should not have reached the issue.
¶2 Johnson then petitioned for postconviction relief, arguing
that his trial and appellate counsel were constitutionally ineffective
for failing to challenge the erroneous jury instruction. Applying the
Strickland standard, the district court determined that Johnson’s
counsel rendered deficient performance. But the court concluded
that Johnson failed to show that he was prejudiced by the error and
dismissed his petition.
¶3 In this appeal, Johnson argues that because our decision
reversing the court of appeals in Johnson’s direct criminal appeal
did not address the issue of prejudice, the portion of the court of
appeals’ opinion analyzing prejudice retains precedential value
and the district court was bound to follow it. Johnson also argues
that, even if the court of appeals’ earlier prejudice ruling was not
binding, the district court’s decision that Johnson failed to show
prejudice was incorrect on the merits.
¶4 We hold that our decision reversing the court of appeals’
decision in Johnson’s criminal case necessarily vacated the court of
appeals’ ruling on prejudice. Accordingly, the district court had no

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Opinion of the Court

obligation to follow or defer to that decision. Additionally, we
agree with the district court that Johnson failed to establish the
prejudice element for ineffective assistance of counsel. Therefore,
we affirm.
BACKGROUND
¶5 The State charged Johnson with one count of murder. The
State advanced two theories of intent to support the murder
count—intentional murder and depraved indifference murder,
both first-degree felonies. Johnson’s trial counsel also requested an
instruction on a lesser included offense, homicide by assault, which
the district court gave the jury at the end of the trial. The jury
ultimately convicted Johnson on the more serious offense of
intentional murder.1 State v. Johnson (Johnson I), 2014 UT App 161,
¶ 9, 330 P.3d 743, rev’d, 2017 UT 76, 416 P.3d 443.
¶6 The present case centers on an erroneous instruction given
to the jury. A key issue at Johnson’s trial was the victim’s cause of
death. Id. ¶¶ 5–8. There was conflicting evidence on whether the
victim’s “physical injuries were caused by a fall, an altercation, or
strangulation and whether she died primarily as a result of the
mixture of alcohol and cocaine in her system or from
strangulation.” Id. ¶ 5. Neither the State’s nor Johnson’s expert
could give a definitive answer as to the cause of death. Id. ¶¶ 6–8.
Based on this evidence, Johnson requested a lesser-included-
offense instruction for homicide by assault. But the instruction
submitted to the jury incorrectly stated that homicide by assault
requires a finding that the defendant caused the death intentionally
or knowingly. Id. ¶¶ 9, 21–22. The instruction read:
Before [the jury] can convict [Johnson] of the crime of
Homicide by Assault, [the jury] must find from all of
the evidence, beyond a reasonable doubt each and
every one of the following elements of that offense:
(1) That . . . [Johnson] . . . under circumstances
not amounting to aggravated murder, murder,
or manslaughter, caused the death of [the
victim];

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1 Our decision today does not turn on the facts of Johnson’s

crime, which have been detailed in prior opinions. See Johnson I,
2014 UT App 161, 330 P.3d 743; State v. Johnson (Johnson II), 2017 UT
76, 416 P.3d 443.

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JOHNSON v. STATE
Opinion of the Court

(2) And that he did so intentionally or
knowingly while attempting, with unlawful
force or violence, to do bodily injury to [the
victim].
¶7 If the word “while” had been placed before “intentionally
and knowingly,” the instruction would have correctly stated that
homicide by assault requires only a finding that a defendant
“intentionally or knowingly attempted, with unlawful force or
violence, to do bodily injury to another.” Id. ¶ 22 (cleaned up). But
by “separating the ‘intentionally and knowingly’ elements from the
act of assault,” the instruction incorrectly told the jury that for
“Johnson to be convicted of the lesser included offense, it must find
that Johnson ‘intentionally and knowingly’ ‘caused the death of’”
the victim. Id. (cleaned up).
¶8 Johnson’s trial counsel did not merely fail to object to the
erroneous lesser-included-offense instruction; he proposed the
botched wording. See id. ¶ 14. The district court, for its part, did not
notice the error and instructed the jury as Johnson’s counsel
requested. Id. ¶ 9.
¶9 After he was convicted of the greater offense of intentional
murder, Johnson appealed but did not challenge the lesser-
included-offense instruction. See id. ¶¶ 11–12. Nor did he argue that
his trial counsel was constitutionally ineffective for requesting the
erroneous instruction. See id. The court of appeals, however,
noticed the error sua sponte and asked the parties for supplemental
briefing on the issue. Id. ¶¶ 12–13. Despite the preservation,
waiver, and invited error issues, a majority of the court of appeals’
panel determined that it could address the erroneous jury
instruction through the exceptional circumstances exception.
Id. ¶¶ 14–19; see also id. ¶ 33 (Roth, J., concurring).
¶10 The court then proceeded to analyze the prejudicial effect
of the error. See id. ¶¶ 24–27 (majority opinion). The court reasoned
that the misstatement of the mens rea made the crime of homicide
by assault indistinguishable from the greater offense of murder,
thereby depriving Johnson of the benefit of a lesser-included-
offense instruction. Id. ¶ 27. The court concluded that the error was
prejudicial and reversed Johnson’s conviction. Id. ¶¶ 24–27.
¶11 This court then granted certiorari to review “whether the
majority of the panel of the court of appeals erred in its application
of the exceptional circumstances doctrine to a case in which it
acknowledged the error may have been invited and in which

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Opinion of the Court

[Johnson] did not argue ineffective assistance of counsel.” Johnson
II, 2017 UT 76, ¶ 5, 416 P.3d 443 (cleaned up). We concluded that
the court of appeals erred in raising the issue of the erroneous jury
instruction on its own initiative. Id. ¶¶ 54–62. We reversed and
remanded the case to the court of appeals to consider the remaining
issues that Johnson I did not resolve. Id. ¶ 63. On remand, the court
of appeals upheld Johnson’s conviction in an order of summary
affirmance.
¶12 Having exhausted his direct appeal, Johnson petitioned
for postconviction relief, arguing that his trial and appellate
counsel were ineffective for failing to raise the issue of the
erroneous jury instruction. In its written ruling, the district court
concluded that Johnson’s trial and appellate counsel provided
deficient performance under the first prong of Strickland v.
Washington, 466 U.S. 668 (1984). But the court ruled that Johnson
failed to establish the second prong of prejudice. The court
reasoned that Johnson could not show prejudice because he had not
challenged the instruction’s statement of the first element. The first
part required the jury to find that the death was caused under
circumstances “not amounting to . . . murder.” The court
interpreted the instruction to require “the jury first [to] eliminate
murder as an option” before proceeding to the second part. Because
the jury found Johnson guilty of murder, the court reasoned that
“the jury did not eliminate murder” as the first part required and
therefore could not have reached the second part. Accordingly, the
court concluded that “Johnson cannot establish that a flawed mens
rea element resulted in prejudicial error.” Because Johnson failed
to establish both prongs of Strickland, the court dismissed the
petition.
¶13 Johnson appeals that decision. Our court initially
transferred the appeal to the Utah Court of Appeals, see UTAH R.
APP. P. 42(a), before vacating the transfer order and recalling the
appeal.
STANDARD OF REVIEW
¶14 “We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness without
deference to the lower court’s conclusions of law.” Gardner v. State,
2010 UT 46, ¶ 55, 234 P.3d 1115 (cleaned up).

5
JOHNSON v. STATE
Opinion of the Court

ANALYSIS
¶15 In his petition for postconviction relief, Johnson argues
that his trial and appellate counsel were ineffective for failing to
raise the issue of the erroneous jury instruction. “Ineffective
assistance of counsel is both an exception to the PCRA’s procedural
bar and an independent constitutional claim.” Newton v. State, 2025
UT 50, ¶ 34. For claims of ineffective assistance of counsel, we
follow the well-established standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). See State v. Scott, 2020 UT 13, ¶ 28,
462 P.3d 350. Under that standard, a party claiming ineffective
assistance must show: (1) “counsel’s performance was deficient in
that it ‘fell below an objective standard of reasonableness’” and
(2) “‘the deficient performance prejudiced the defense.’” Id.
(quoting Strickland, 466 U.S. at 687–88). The district court concluded
that Johnson had shown deficient performance, but that he had not
established prejudice.
¶16 Johnson challenges the latter conclusion for two reasons.
First, he argues that the district court was bound to follow the court
of appeals’ analysis in Johnson I. He contends that because this
court’s decision in Johnson II did not address the issue of prejudice,
the court of appeals’ prejudice analysis from Johnson I retains
precedential value and the district court was required to follow it.
Second, Johnson argues that, even if the court of appeals’ decision
in Johnson I was not binding, the district court’s decision that he
failed to show prejudice was incorrect on the merits.2 He claims that
he was deprived of the benefit of a lesser-included-offense
instruction because the second part of the instruction conflated the
mens rea for the lesser offense with the greater offense. And, he
contends, it was error for the district court to rely on the first part
of the instruction to conclude that he was not prejudiced by the
error in the second part.
¶17 On the first argument, we conclude that our decision in
Johnson II necessarily vacated the court of appeals’ ruling on
prejudice in Johnson I. Because that ruling had no continuing
precedential effect, the district court had no obligation to adopt or
defer to the court of appeals’ prejudice analysis. On the second

---

2 The State also raised an alternative basis for affirming the

district court on the ground that Johnson failed to prove deficient
performance of his appellate counsel. Because we affirm on
prejudice, we do not address this argument.

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Opinion of the Court

argument, we agree with the district court that Johnson failed to
establish prejudice because the unchallenged first part of the
instruction required the jury to rule out conviction on the greater
offense before convicting on the lesser. Accordingly, we affirm the
denial of Johnson’s petition.
I. PRECEDENTIAL EFFECT OF JOHNSON I
¶18 Johnson contends that because “Johnson I was reversed on
other grounds,” “the unquestioned portions of [that] opinion”
retain precedential value. Johnson points out that the court of
appeals applied a prejudice standard for manifest injustice that was
“indistinguishable from the prejudice standard in the [ineffective
assistance of counsel] context” and ruled that Johnson was indeed
prejudiced by the erroneous instruction. Because the court of
appeals, in essence, “already applied the same facts to the same
legal standard,” Johnson argues that the district court’s failure to
defer to or follow Johnson I’s conclusion that the jury instruction
was prejudicial “violate[d] important stare decisis principles.”
¶19 In support of this argument, Johnson points to examples in
our caselaw where we have cited cases as binding precedent where
the cases had been “reversed on other grounds” unrelated to the
cited proposition. And he points to examples from other
jurisdictions where a higher court reversed a lower court decision
on a particular point but left other portions of the lower court’s
decision intact.
¶20 While Johnson is correct that unaddressed rulings are
normally unaffected by a reversal on other grounds, a ruling that is
vacated retains no precedential effect. See O’Connor v. Donaldson,
422 U.S. 563, 577 n.12 (1975) (“Of necessity our decision vacating
the judgment of the Court of Appeals deprives that court’s opinion
of precedential effect . . . .”). A careful reading of Johnson II shows
that it had the effect of vacating the court of appeals’ decision on
prejudice in Johnson I.
¶21 As a general rule, a decision of a higher court reversing a
lower court decision “in part” leaves the lower court’s decision on
other issues “intact.” See Stein v. Home-Owners Ins., 843 N.W.2d 780,
783 (Mich. Ct. App. 2013). But that is not always the case.
Sometimes, the issue on which a decision is reversed precludes a
court from reaching the merits of subsequent issues. Such predicate
issues include jurisdiction, preservation and waiver, or issues of
justiciability. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998) (“Without jurisdiction the court cannot proceed at all

7
JOHNSON v. STATE
Opinion of the Court

in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” (cleaned up)); Poe
v. Ullman, 367 U.S. 497, 508–09 (1961) (declining to reach the merits
of a constitutional issue because it was not ripe for consideration
under the federal constitution); Utah Transit Auth. v. Local 382 of
Amalgamated Transit Union, 2012 UT 75, ¶ 40, 289 P.3d 582 (noting
that the matter had been mooted and thus the court could not
consider the appeal). When a decision is reversed on a predicate
ground, the lower court’s ruling on the merits is necessarily
vacated—even if the higher court does not expressly say so.
¶22 That is the case here. The court of appeals in Johnson I
determined that the lesser-included-offense instruction misstated
the mens rea of the offense of homicide by assault and that the error
prejudiced Johnson. 2014 UT App 161, ¶¶ 20–27, 330 P.3d 743, rev’d,
2017 UT 76, 416 P.3d 443. But because that issue had not been
preserved or raised by the parties on appeal, the court of appeals’
ability to reach that issue depended on whether the exceptional
circumstances exception to preservation applied. See id. ¶ 14. The
court of appeals concluded that it did and therefore proceeded with
its analysis and ultimately concluded that the error was prejudicial.
Id. ¶¶ 18–19, 27.
¶23 In Johnson II, we granted certiorari to answer “whether the
majority of the panel of the court of appeals erred in its application
of the exceptional circumstances doctrine to a case in which it
acknowledged the error may have been invited and in which
[Johnson] did not argue ineffective assistance of counsel.”3 2017 UT
76, ¶ 5, 416 P.3d 443 (cleaned up). We concluded that the court of
appeals did err in applying the exceptional circumstances
exception. Id. ¶ 63. We thus reversed on that issue and remanded

---

3 At oral argument Johnson indicated that when the State
petitioned this court for review of Johnson I it also asked us to
review “the underlying prejudice issue as well as the procedural
issue of whether it was appropriate to reach it sua sponte” under
the exceptional circumstances exception. And because we declined
to do so, Johnson suggests that “we can read something into [our]
original decision” to not address prejudice. We disagree. An order
from this court denying a petition for certiorari in part or in whole
is not an endorsement of the underlying decision.

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Opinion of the Court

the case for consideration of other issues not addressed by the court
of appeals. Id.
¶24 We were less than precise about the effect of our decision
on the other portions of the Johnson I opinion. But our holding that
the court of appeals should have never reached the merits
necessarily vacated the prejudice analysis in Johnson I. The court of
appeals’ ability to reach that issue was predicated upon its
conclusion that the exceptional circumstances exception applied.
Because we held that the exceptional circumstances exception did
not apply, the court of appeals necessarily erred in addressing the
jury instruction error at all. Indeed, we expressly stated that “[o]ur
preservation and waiver doctrines, and the demands for
procedural regularity, precluded the court of appeals from
reviewing the jury instruction.” Id. ¶ 62.
¶25 Because the court was precluded from reviewing the jury
instruction, any decision on that issue was necessarily vacated by
Johnson II. And because that portion of Johnson I was vacated, it had
no binding effect on the district court. See O’Connor, 422 U.S. at 577
n.12. The district court was under no obligation to follow the court
of appeals’ analysis or adopt its reasoning, and it therefore properly
conducted its own independent analysis of prejudice.
II. DISTRICT COURT’S RULING ON JOHNSON’S PCRA PETITION
¶26 Johnson argues that even if “the district court owed no
deference” to Johnson I, it nevertheless erred on the merits when it
concluded that Johnson had not established the prejudice prong of
Strickland. But it concluded that Johnson failed to establish the
prejudice prong because the unchallenged first part of the lesser-
included-offense instruction required the jury to eliminate the
option of the greater offense of murder before it could convict for
the lesser included offense.
¶27 The prejudice prong requires the petitioner to establish
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
“A reasonable probability that the result would have been different
exists when petitioner’s proof is ‘sufficient to undermine
confidence in the outcome.’” Newton v. State, 2025 UT 50, ¶ 34
(quoting Strickland, 466 U.S. at 694). And the Supreme Court stated
in Strickland that “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . . that course
should be followed.” Strickland, 466 U.S. at 697.

9
JOHNSON v. STATE
Opinion of the Court

¶28 For purposes of this case, we assume without deciding that
the district court correctly concluded both that Johnson’s trial
counsel rendered deficient performance by proposing an erroneous
jury instruction and that Johnson’s appellate counsel rendered
deficient performance on appeal by failing to raise the issue under
the ineffective assistance of counsel exception to preservation. But
we agree with the district court that Johnson cannot establish “a
reasonable probability that the result would have been different”
absent the error.
¶29 Where a defendant claims ineffective assistance of counsel
“in the context of erroneous jury instructions,” he must show “a
reasonable probability the jury would not have convicted” if the
“instructions had been correct.” State v. Grunwald, 2020 UT 40, ¶ 22,
478 P.3d 1. The district court ruled that Johnson had not made that
showing because the first part of the lesser-included-offense
instruction required the jury to find that the offense was committed
under circumstances not amounting to murder. Because the jury
found that Johnson’s offense did amount to murder, the jury would
never have reached the second part of the instruction that
contained the misstated mens rea. Therefore, the district court
concluded that the error had no reasonable probability of affecting
the outcome. We agree. Appellate courts ordinarily presume that
juries, properly instructed, follow the instructions given to them.
State v. Chadwick, 2024 UT 34, ¶ 42, 554 P.3d 1098; see also State v.
Suhail, 2023 UT App 15, ¶ 142, 525 P.3d 550. Because Johnson has
not challenged the first part of the instruction, we presume that it
was proper and the jury followed it.
¶30 As written, the first part of the instruction required the jury
to find that Johnson, “under circumstances not amounting to
aggravated murder, murder, or manslaughter, caused the death of
[the victim].” Thus, under the unchallenged wording of the first
part of the instruction, the jury could not convict on the lesser
included offense unless it found that the circumstances did not
amount to the greater offense of murder.
¶31 When assessing prejudice, this court conducts a
counterfactual analysis. Ross v. State, 2019 UT 48, ¶ 76, 448 P.3d
1203. We consider a situation in which the error did not occur and
ask whether there is a reasonable probability that the result would
have been different in that scenario. Id. ¶¶ 76–77. Here, we can
assess prejudice by imagining the hypothetical situation where the
second part of the jury instruction correctly stated the mens rea,

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Opinion of the Court

that is, that the defendant caused the death “while intentionally or
knowingly attempting, with unlawful force or violence, to do
bodily injury to another.” Johnson I, 2014 UT App 161, ¶ 22, 330 P.3d
743, rev’d, 2017 UT 76, 416 P.3d 443 (cleaned up). But assuming, as
we must, that the jury followed its instructions, it would still be
precluded from convicting Johnson on the lesser included offense.
Under the first part, it was required to find that the death was
caused under circumstances not amounting to murder. Because the
jury found beyond a reasonable doubt that Johnson committed
murder, there is no reasonable probability that it would have
nonetheless convicted him of the lesser offense if the second part
had been correctly stated.
¶32 While it is theoretically possible that the jury did not
follow the instruction perfectly, Strickland’s prejudice standard is
framed in terms of reasonable probability of a different outcome
but for the error, not a mere possibility.4 See State v. Bonds, 2023 UT
1, ¶ 53 n.12, 524 P.3d 581 (rejecting the court of appeals’ description
of the “reasonable probability” language from the Strickland
standard as similar to a “significant possibility” and clarifying that
“we adhere to the ‘reasonable probability’ standard and the
Supreme Court’s analysis and application of this phrase” (cleaned
up)). And because we presume juries follow their instructions, the
mere theoretical possibility of a jury failing to follow the
instructions as written does not rise to the reasonable probability
standard mandated by Strickland. See State v. Nelson, 2015 UT 62,
¶ 28, 355 P.3d 1031 (explaining that the “likelihood of a different
result must be substantial” (cleaned up)).

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4 We have previously applied a two-step process for
determining whether an error in a jury instruction was prejudicial.
See State v. Grunwald, 2020 UT 40, ¶ 22, 478 P.3d 1. The first step of
that process asks “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?” Id. But here, we assume the jury followed the first
part of the instruction. And because the jury ultimately did find
that Johnson’s conduct amounted to murder, we assume that it did
not have to confront the mens rea error in the second part.
Therefore, we do not have to ask whether the jury convicted
Johnson based on factual findings that would not have led to
conviction had the instructions been correct.

11
JOHNSON v. STATE
Opinion of the Court

¶33 Given the unchallenged wording of the first part of the
instruction and the jury’s guilty verdict on the greater offense, we
presume that the jury ruled out the possibility of convicting on the
lesser offense based on the first part of the instruction alone. This
means that the jury was never confronted with the error in the
second part. Consequently, even if the mens rea had been stated
correctly, there is no reasonable probability that the jury would
have reached a different result.5
¶34 Because Johnson cannot establish that he was prejudiced
by the error, the district court correctly ruled that he had not
established ineffective assistance of counsel and dismissed his
petition for postconviction relief.
CONCLUSION
¶35 We conclude that because our decision in Johnson II
necessarily vacated the court of appeals’ ruling on prejudice in
Johnson I, the district court did not err in analyzing prejudice
without deferring to Johnson I. And we agree with the district
court’s analysis that the unchallenged first part of the lesser-
included-offense instruction precludes a finding of prejudice.
Therefore, we affirm.

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5 The State has suggested that, under Strickland, a defendant can

never establish prejudice from an error in a lesser-included-offense
instruction where the jury convicts on a greater offense. But
because we rest our decision on the unchallenged first part of the
instruction, we have no need to decide whether a defendant can
ever establish prejudice from an instructional error involving a
lesser included offense where the jury convicts on the greater
offense. We hold only that because Johnson has not challenged the
first part of the instruction, which required the jury to first rule out
the possibility that the offense amounted to murder, he cannot
show a reasonable likelihood that the error in the second part
affected the jury’s verdict.

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