State v. Grunwald

2018 UT App 46
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M EAGAN GRUNWALD,
Appellant.
Opinion
No. 20160079-CA
Filed March 22, 2018
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 141400517
Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. O RME and K ATE A. TOOMEY concurred.
HAGEN, Judge:
¶1 	This appeal arises from a crime spree that left one police
officer dead and another gravely injured. The deadly rampage
ended when Jose Angel Garcia Juaregi (Garcia) was shot and
killed by police. His teenaged girlfriend, Meagan Grunwald, was
charged and convicted as an accomplice 	to the aggravated
murder of Sergeant Cory Wride1 (Count One); the attempted
1. “This court typically does not include the names of crime
victims, witnesses, or other innocent parties in its decisions. We
make an exception in this case due to the considerable notoriety
this criminal episode has attracted. The . . . identity [of the
(continued…)

State v. Grunwald
20160079-CA 	2 	2018 UT App 46
aggravated 	murder 	of 	Deputy 	Greg 	Sherwood 	and 	felony
discharge of a firearm resulting in serious bodily injury (Counts
Two and Three); felony discharge of a firearm for shooting at
Trooper Jeff Blankenagel (Count Five); felony discharge of a
firearm and criminal mischief for shooting and damaging a
semi-trailer 	truck 	(Counts 	Six 	and 	Seven); 	and 	aggravated
robbery for carjacking a vehicle from another motorist (Count
Eleven).2
¶2 	At 	trial, 	the 	jury 	was 	incorrectly 	instructed 	on 	the
elements of accomplice liability. After carefully reviewing the
evidence presented at trial, we hold that the error was harmless
with respect to Counts One and Eleven and therefore affirm
those convictions. With respect to Counts Two, Three, Five, Six,
and Seven, however, there is a reasonable probability that the
result would have been different if the jury had been correctly
instructed 	on 	the 	law. 	As 	a 	result, 	we 	must 	vacate 	those
convictions and remand for a new trial on those counts.
(…continued)
officers involved in this case] is well known, and obscuring
[their] identit[ies] in this decision would serve no purpose.” State
v. Chavez-Reyes, 2015 UT App 202, ¶ 2 n.2, 357 P.3d 1012.
2. On appeal, Grunwald does not challenge her convictions for
fleeing an accident scene (Count Nine), failure to respond to an
officer’s 	signal 	to 	stop 	(Count 	Ten), 	and 	possession 	of 	a
controlled substance (Count Twelve), in which she was charged
as a principal. She was additionally charged as an accomplice to
attempted aggravated murder for the shots fired at Trooper
Blankenagel (Count Four), but she was acquitted of that charge.

State v. Grunwald
20160079-CA 	3 	2018 UT App 46
BACKGROUND
¶3 	In June 2013, when Grunwald was sixteen years old, she
was introduced to Garcia by a mutual friend. Garcia had been
previously 	convicted 	of 	manslaughter 	and 	was 	on 	parole.
Although Garcia was almost ten years older than Grunwald,
they became romantically involved. By September, Garcia had
moved into the Grunwald family home in Draper, Utah. Garcia’s
presence 	in 	the 	home 	and 	his 	intimate 	relationship 	with
Grunwald resulted in friction between Grunwald’s parents.
¶4 	In January 2014, Grunwald’s parents decided to separate,
and Grunwald planned to move with her mother to St. George,
Utah. Garcia told his parole officer that he wanted to transfer his
supervision to St. George so that he could stay with Grunwald.
His parole officer directed Garcia to stay with his brother in
Provo, Utah and to report in on January 27. When Garcia failed
to report, the parole officer applied for an arrest warrant.
¶5 	On January 30, Grunwald and her mother were packing
their belongings when Garcia asked Grunwald to “go on a ride”
with him so they could talk. Grunwald agreed, and she and
Garcia drove away in her truck, with Grunwald behind the
wheel.
¶6 	At some point during the drive, Garcia told Grunwald
that there was a warrant out for his arrest. The circumstances
surrounding 	this announcement 	were 	disputed 	at 	trial, 	but
Grunwald became sufficiently upset to pull off to the side of
Highway 73 and turn on her hazard lights.
¶7 	Sergeant Cory Wride, with the Utah County Sheriff’s
Office, noticed the truck on the side of the road and notified
dispatch 	that 	he 	was 	conducting 	a 	“motorist 	assist.” 	He
approached the driver’s window and asked Grunwald if she was
okay. Although she was crying and her face was red, Grunwald
told him she was fine. He asked for her identification and car

State v. Grunwald
20160079-CA 	4 	2018 UT App 46
registration and then went back to his vehicle to confirm her
information with a police dispatcher. When Sergeant Wride
returned to the truck, he gave the documents back to Grunwald
and asked her again if she was sure she was okay. When she
assured him that she was, he turned his attention to Garcia.
Garcia provided a false name and birthdate, and Sergeant Wride
again returned to his vehicle to verify the information.
¶8 	According to Grunwald, Garcia told her to put her foot on
the brake while he shifted the truck into drive.3 With a gun in
hand, Garcia announced to Grunwald that he was “going to
buck [the officer] in the fucking head.” Grunwald held her foot
on the brake with the car in drive for more than three-and-a-half
minutes. 	During 	this 	time, 	a 	passing 	motorist 	noticed 	that
Grunwald was checking her driver’s side mirror. When there
was a significant lull in traffic, Garcia slid open the truck’s back
window and fired seven shots at Sergeant Wride as he sat in is
patrol 	vehicle. 	Immediately 	after 	Garcia 	fired 	the 	shots,
Grunwald accelerated back onto the road and drove away.
¶9 	Two 	bullets 	struck 	Sergeant 	Wride, 	one 	piercing 	his
forehead and the other puncturing his neck. When Sergeant
Wride did not answer his radio or calls to his mobile phone,
another officer drove to his last known location. The officer
found Sergeant Wride dead. He notified the dispatch center, and
other officers began searching for Grunwald’s truck.
¶10 	About an hour and a half after the shooting, police first
spotted the truck travelling southbound on I-15 between the two
Santaquin exits. When police gave chase, Grunwald pulled into
3. While Grunwald testified that Garcia shifted the truck into
drive, the State’s theory at trial was that Grunwald herself
shifted the truck into drive in preparation for the subsequent
shooting. 	Our 	analysis 	does 	not 	turn 	on 	whether 	the 	jury
believed that Garcia or Grunwald operated the gearshift.

State v. Grunwald
20160079-CA 	5 	2018 UT App 46
an 	emergency 	turnaround 	and 	made 	a 	U-turn 	to 	head
northbound on I-15.
¶11 	Another 	officer, 	Utah 	County 	Sheriff’s 	Deputy 	Greg
Sherwood, spotted Grunwald’s truck as she exited the interstate
at the Santaquin Main Street exit and began to follow. When
Deputy 	Sherwood 	activated 	his 	siren 	and 	overhead 	lights,
Grunwald suddenly reduced her speed, which closed the gap
between the two vehicles. In that instant, Garcia fired at Deputy
Sherwood through the truck’s back window. One bullet struck
Deputy 	Sherwood 	in 	the 	head, 	causing 	serious 	injury.
Fortunately, Deputy Sherwood survived the shooting.
¶12 	Immediately 	after 	Garcia 	fired 	at 	Deputy 	Sherwood,
Grunwald made another abrupt U-turn and headed back to the
I-15 on-ramp. Utah Highway Patrol Trooper Jeff Blankenagel
spotted Grunwald’s truck once it was back on the interstate. As
Trooper Blankenagel followed the truck, Garcia fired two shots
in 	his 	direction 	from 	the 	truck’s 	back 	window. 	Trooper
Blankenagel 	reduced 	his 	speed 	to 	create 	a 	safe 	following
distance between his vehicle and Grunwald’s truck. Ahead on
I-15, other officers had deployed a spike strip to stop the truck.
Grunwald maneuvered around it, but the spike strip disabled
Trooper Blankenagel’s vehicle. As Grunwald continued driving,
she crashed into another vehicle, resulting in damage to the front
end of the truck that impaired her ability to steer and brake.
¶13 	Undeterred, Grunwald continued driving and passed a
semi-trailer truck traveling southbound on I-15. As they went by,
the truck driver saw Garcia lean out of the truck’s passenger
window and fire shots at his semi-trailer. The truck driver pulled
over to examine his vehicle and found that the gun shots had
damaged parts of the truck.
¶14 	Shortly after passing the semi-trailer truck, Grunwald
took the Nephi Main Street exit off of I-15, and she and Garcia
abandoned the disabled truck. Garcia ran down the middle of

State v. Grunwald
20160079-CA 	6 	2018 UT App 46
the road away from the truck, and Grunwald followed. Officers
yelled at them to “stop” and “[g]et down.” Ignoring these
commands, 	Garcia 	fired 	at 	an 	officer 	while 	Grunwald 	ran
directly toward a moving car waving her arms. The driver saw
Grunwald flagging her down and stopped her vehicle. While
Grunwald opened the passenger side door and climbed in,
Garcia opened the driver’s door, waved his gun at the driver,
and ordered her to get out. The driver asked if she could get her
daughter out of the back seat, to which Garcia replied, “[Y]ou
better hurry.” As soon as the driver retrieved her daughter,
Garcia drove away with Grunwald in the passenger seat.
¶15 	Garcia returned to I-15, but police successfully deployed
tire spikes, slowing the vehicle and eventually causing a tire to
become dislodged. When the disabled vehicle came to a stop,
Garcia 	abandoned 	it, 	running 	toward 	another 	vehicle 	with
Grunwald following him. Officers yelled at them to stop and get
down. As Garcia neared the other vehicle, gunfire erupted.
Grunwald stopped and dropped to her knees.
¶16 	Garcia 	continued 	to 	flee 	and 	aimed 	his 	gun 	at 	an
approaching officer. The officer yelled, “Show me your hands.”
When 	Garcia 	failed 	to 	do 	so, 	the 	officer 	fired 	two 	shots.
Grunwald saw one bullet strike Garcia in the head, and she
began to scream. The officer who fired heard her yell, “You shot
him in the fucking head.” A bystander saw Grunwald pacing
frantically, acting distraught and hysterical. She appeared angry
at the police and screamed, “You fucking ass holes, you didn’t
have to shoot him. You fucking shot him. Oh, my God, you
fucking shot him.”
¶17 	Garcia, on the ground but still conscious, continued to
struggle as officers wrestled away his gun and placed him in
handcuffs. 	Once 	he 	was 	subdued, 	officers 	attempted 	to
administer first aid. Garcia asked them for water then said,
“Why don’t you let me kiss my girlfriend with my last dying
breath?” Garcia died later that day.

State v. Grunwald
20160079-CA 	7 	2018 UT App 46
¶18 	After Grunwald was arrested and placed in a patrol
vehicle, she claimed that Garcia had threatened to shoot her and
her family if she refused to go with him and that she “tried to get
him to stop.”
¶19 	The 	State 	charged 	Grunwald 	with 	twelve 	counts
associated with these events. On Counts One through Seven and
Count Eleven, the State charged Grunwald as an accomplice. She
pled not guilty to all charges and the case proceeded to trial.
Between April 28 and May 9, 2015, the district court held a nine-
day trial, during which Grunwald raised the affirmative defense
of compulsion. At the end of trial, the jury convicted Grunwald
of eleven of the twelve counts, acquitting her of Count Four,
attempted aggravated murder for Garcia’s shooting at Trooper
Blankenagel.
¶20 	On July 8, 2015, the court sentenced Grunwald to various
prison terms of zero-to-five years to twenty-five years to life. The
court imposed a sentence of twenty-five years to life on Count
One (aggravated murder) to run consecutively with a sentence
of five years to life on Count Eleven (aggravated robbery). The
court ordered the sentences on the remaining counts to run
concurrently with all other counts.
¶21 	Grunwald appealed. Pursuant to Utah Code section 78A-
3-102(4), the Utah Supreme Court transferred the appeal to this
court. Utah Code Ann. § 78A-3-102(4) (LexisNexis 2017).
ISSUE AND STANDARD OF REVIEW
¶22 	Grunwald 	contends 	that 	she 	received 	ineffective
assistance of counsel because her attorney failed to object to
erroneous jury instructions on accomplice liability. “When a
claim of ineffective assistance of counsel is raised for the first
time on appeal, there is no lower court ruling to review and we
must 	decide 	whether 	[the] 	defendant 	was 	deprived 	of 	the

State v. Grunwald
20160079-CA 	8 	2018 UT App 46
effective assistance of counsel as a matter of law.” Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (alteration in original).
ANALYSIS
¶23 	An accused is guaranteed assistance of counsel for his or
her defense under the Sixth Amendment to the United States
Constitution and article 1, section 12 of the Utah Constitution.
“[T]he right to counsel is the right to the effective assistance of
counsel.” 	Strickland 	v. 	Washington, 	466 	U.S. 	668, 	686 	(1984)
(citation and internal quotation marks omitted). To establish a
constitutional 	claim 	of 	ineffective 	assistance 	of 	counsel, 	a
defendant must demonstrate both “that counsel’s performance
was deficient” and “that the deficient performance prejudiced
the defense.” Id. at 687; see also State v. Litherland, 2000 UT 76,
¶ 19, 	12 	P.3d 	92 	(following 	Strickland’s 	two-prong 	test 	for
ineffective assistance of counsel). To satisfy the first element, a
defendant must show that “counsel’s representation fell below
an objective standard of reasonableness,” which “overcome[s]
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Strickland, 466
U.S. at 688–89 (citation and internal quotation marks omitted).
The second element requires that the defendant establish that “a
reasonable probability exists that, but for counsel’s error, the
result would have been different.” State v. Millard, 2010 UT App
355, ¶ 18, 246 P.3d 151 (citation and internal quotation marks
omitted).
¶24 	In this case, counsel’s performance was deficient because
counsel failed to object to serious errors in the jury instructions
relating to accomplice liability. As to prejudice, we conclude that
there is a reasonable probability that the result would have been
different on some counts but not others.

State v. Grunwald
20160079-CA 	9 	2018 UT App 46
I. Deficient Performance
¶25 	To assess deficient performance in this case, we must
evaluate whether the instructions provided to the jury correctly
stated the law. Because the jury instructions at issue concerned
accomplice liability, we begin with a review of Utah law on that
subject.
¶26 	Under section 76-2-202 of the Utah Code, “[e]very person,
acting with the mental state required for the commission of an
offense who directly commits the offense, who solicits, requests,
commands, encourages, or intentionally aids another person to
engage 	in 	conduct 	which 	constitutes 	an 	offense 	shall 	be
criminally liable as a party for such conduct.” Utah Code Ann.
§ 76-2-202 (LexisNexis 2017). Under this statute, “accomplice
liability adheres only when the accused acts with the mens rea to
commit the principal offense.” State v. Calliham, 2002 UT 86, ¶ 64,
55 P.3d 573. To prove the requisite mens rea,4 “the State must
show that an individual acted with both the intent that the
underlying offense be committed and the intent to aid the
principal actor in the offense.” State v. Briggs, 2008 UT 75, ¶ 13,
197 P.3d 628.
¶27 	“[T]he first step in applying accomplice liability is to
determine whether the individual charged as an accomplice had
the intent that an underlying offense be committed.” Id. ¶ 14. In
this context, “intent” means “[t]he state of mind accompanying
an act,” and it is not to be confused with the mental state
“intentionally.” State v. Jeffs, 2010 UT 49, ¶ 43, 243 P.3d 1250
(alteration in original) (citations and internal quotation marks
omitted). Regardless of the mental state required, the accomplice
4. “Mens rea” means “[t]he state of mind that the prosecution, to
secure a conviction, must prove that a defendant had when
committing a crime.” Mens Rea, Black’s Law Dictionary (10th ed.
2014).

State v. Grunwald
20160079-CA 	10 	2018 UT App 46
must possess that mental state with respect to the commission of
the principal crime. See id. ¶ 44. Second, under the “intentionally
aids” 	portion 	of 	accomplice 	liability, 	the 	“accomplice 	must
intentionally 	aid 	in 	the 	commission 	of 	a 	crime 	to 	be 	held
criminally liable.” Briggs, 2008 UT 75, ¶¶ 13, 15. In other words,
the 	accomplice 	must 	intentionally 	provide 	aid 	directed 	to
accomplishing the crime. See Jeffs, 2010 UT 49, ¶ 44.
¶28 	The Utah Supreme Court’s decision in Jeffs, illustrates
these principles. Jeffs was charged as an accomplice to rape for
his role in performing a coerced marriage between the principal
and 	an 	underage 	girl. 	See 	id. 	¶¶ 4–13. 	At 	trial, 	Jeffs
unsuccessfully requested a jury instruction requiring the State to
prove that he “intended that the result of his conduct would be
that 	[the 	principal] 	rape 	[the 	victim].” 	Id. 	¶ 40. 	The 	Utah
Supreme Court held that he was entitled to this instruction for
two reasons.
¶29 	First, 	the 	provided 	instructions 	failed 	to 	connect 	the
required mental state to the commission of the principal crime.
Because 	the 	principal 	offense 	of 	rape 	could 	be 	committed
“intentionally, knowingly or recklessly,” the State had to prove
that 	Jeffs 	acted 	“intentionally, 	knowingly, 	or 	recklessly” 	to
convict him as an accomplice. Id. ¶ 44 “But,” the court asked
rhetorically, “intentionally, knowingly, or recklessly in regard to
what?” Id. The instruction provided to the jury “only indicated
that the reckless, knowing, or intentional mental state attached
to 	the 	actions 	of 	‘solicited, 	requested, 	commanded, 	or
encouraged,’ not to the underlying criminal conduct of rape.” Id.
¶ 42. This was error. The Jeffs court explained that in order for an
accomplice 	to 	act 	“with 	the 	mental 	state 	required 	for 	the
commission 	of 	[the] 	offense,” 	the 	accomplice 	“must 	act
intentionally, knowingly, or recklessly as to the results of his
conduct. And in order for criminal liability to attach, the results
of his conduct must be a criminal offense.” Id. ¶ 44 (alteration in
original) (citation and internal quotation marks omitted). An
accomplice to rape would act intentionally if he “desires to cause

State v. Grunwald
20160079-CA 	11 	2018 UT App 46
rape,” knowingly if he “knows that his conduct will most likely
cause rape,” and recklessly if he “recognizes that his conduct
could result in rape but chooses to proceed anyway.” Id. ¶ 45.
¶30 	Second, the jury instructions in Jeffs failed to clarify the
“intentionally aided” portion of the accomplice liability statute.
Where “the defendant is charged with aiding another in the
commission 	of 	the 	offense, 	the 	accomplice 	liability 	statute
requires that the defendant’s aiding be ‘intentional,’” meaning
that 	the 	accomplice 	must 	intend 	to 	aid 	the 	principal 	in
committing the offense. Id. ¶¶ 50–51 (quoting Utah Code Ann.
§ 76-2-202 (2008)). “Without Jeffs’ proposed instruction as to
intent, the jury could have convicted Jeffs if it found that Jeffs
‘intentionally’ 	did 	some 	act, 	and 	such 	intentional 	act
unintentionally 	‘aided’” 	the 	principal 	in 	raping 	the 	victim.
Id. ¶ 52. As a result, the jury could have convicted Jeffs as an
accomplice 	“simply 	because 	he 	intentionally 	performed 	the
marriage ceremony and the existence of the marriage aided [the
principal] in raping [the victim].” Id. In short, the instructions
failed to require the State to prove that Jeffs “acted with both the
intent that the underlying offense be committed and the intent to
aid the principal actor in the offense.” Id. ¶ 51 (citation and
internal quotation marks omitted).
¶31 	With these principles in mind, we turn to the accomplice
liability instructions in this case. Instructions 33, 38, 40, 44, 45, 46,
and 50 each contain identical language, replacing only the name
and elements of the principal crime. In relevant part, these
instructions required the jury to find:
1. That the defendant, Meagan Dakota Grunwald,
2. “Intentionally,” 	“knowingly,” 	or 	“recklessly”
solicited, requested, commanded, encouraged, or
“intentionally” aided [Garcia] who:
[elements of principal crime]
3. And 	that 	the 	defendant, 	Meagan 	Dakota
Grunwald,

State v. Grunwald
20160079-CA 	12 	2018 UT App 46
a. Intended 	that 	[Garcia] 	commit 	the
[principal crime], or
b. Was aware that [Garcia’s] conduct was
reasonably 	certain 	to 	result 	in 	[Garcia]
committing the [principal crime], or
c. Recognized that her conduct could result
in [Garcia] committing the [principal crime]
but chose to act anyway;
4. And that the defense of Compulsion does not
apply.
This instruction appears to be based on the Utah Model Jury
Instruction on accomplice liability, which reverses the order in
which the elements appear in the statute. The first statutory
element—“acting with the mental state required for the principal
offense”—is addressed in paragraph 3 of the instruction. The
second element—“solicits, requests, commands, encourages, or
intentionally aids another person to engage” in the principal
offense—is addressed in paragraph 2.
¶32 	Grunwald has identified three distinct errors in this jury
instruction, which we address in the following order. First, by
including paragraph 3(c), the instruction incorrectly permitted
the jury to convict if it found that Grunwald acted recklessly,
when each of the underlying offenses—unlike the offenses in
Jeffs—require either an intentional or knowing mental state.
Second, instead of tracking the statutory language that requires
an 	accomplice 	to 	solicit, 	request, 	command, 	encourage, 	or
intentionally 	aid 	another 	to 	commit 	a 	crime, 	paragraph 	2
mistakenly replaced “to” with “who,” effectively eliminating the
requirement that the accomplice’s conduct be directed to the
accomplishment of the crime. Third, in defining the “knowing”
mental 	state 	in 	paragraph 	3(b), 	the 	instruction 	focuses 	on
Garcia’s 	conduct 	rather 	than 	Grunwald’s. 	We 	agree 	with
Grunwald that the instruction misstated the law on accomplice
liability in all three respects.

State v. Grunwald
20160079-CA 	13 	2018 UT App 46
A. 	The Accomplice Must Have the Mental State Required for
the Commission of the Principal Offense.
¶33 	The 	most 	obvious 	error 	in 	the 	accomplice 	liability
instruction is that it permits a conviction based on a reckless
mental state. Accomplice liability requires that the defendant act
“with the mental state required for the commission of [the
principal] 	offense.” 	Utah 	Code Ann. 	§ 76-2-202 	(LexisNexis
2017). It is unnecessary for the accomplice to act “with the same
intent, or mental state, as the principal.” State v. Jeffs, 2010 UT 49,
¶ 49, 243 P.3d 1250. But an accomplice cannot be convicted based
on 	a 	lesser 	mental 	state 	than 	that required 	to 	commit 	the
underlying offense. See State v. Calliham, 2002 UT 86, ¶ 64, 55
P.3d 573 (noting that “accomplice liability adheres only when the
accused acts with the mens rea to commit the principal offense”).
¶34 	This statutory element was addressed in paragraph 3 of
the accomplice liability instruction. Paragraph 3 allowed the
State to prove one of three alternative mental states.5 Paragraph
5. The inclusion of recklessness in paragraph 3 is not to be
confused with the use of the term “recklessly” in paragraph 2.
Paragraph 3 deals with the element that the accomplice must
have the mental state required to commit the principal offense.
On the other hand, paragraph 2 deals with the separate element
that the accomplice must solicit, request, command, encourage,
or intentionally aid the principal. As Grunwald acknowledges,
“Because the statute does not designate what mental state is
required for these acts [of soliciting, requesting, commanding, or
encouraging] and because it is not a strict liability statute, any of
the three recognized mental states apply.” See Utah Code § 76-2-
101 	(LexisNexis 	2017). 	As 	a 	result, 	paragraph 	2 	correctly
required 	the 	jury 	to 	find 	that 	Grunwald 	“‘[i]ntentionally,’
‘knowingly,’ or ‘recklessly’ solicited, requested, commanded,
encouraged, or ‘intentionally’ aided” Garcia. The error was the
inclusion of paragraph 3(c), which allowed the jury to convict
(continued…)

State v. Grunwald
20160079-CA 	14 	2018 UT App 46
3(a) and 3(b), respectively, instructed the jury that a finding of an
intentional or knowing mental state would support a guilty
verdict. Paragraph 3(c) allowed the jury to convict if Grunwald
acted recklessly, that is, if Grunwald recognized that her conduct
could result in Garcia committing the underlying crime but
chose to act anyway.
¶35 	In this case, none of the underlying crimes charged could
be 	committed 	recklessly. 	See 	Utah 	Code 	Ann. 	§ 	76-5-202
(aggravated murder requires intentionally or knowingly causing
death); id. § 76-10-508.1(1) (felony discharge of a firearm requires
knowingly endangering a person or intent to intimidate or
harass); id. § 76-6-106(2)(c) (criminal mischief requires intentional
property 	damage); 	id. 	§§ 	76-6-301–302 	(aggravated 	robbery
requires 	intentional 	taking 	by 	means 	of 	force 	or 	fear 	or
intentionally or knowingly using force or fear during theft). As a
result, the State properly concedes that “including the reckless
mental state was erroneous because, as [Grunwald] correctly
argues, all of the accomplice liability crimes required the jury to
find either an intentional or knowing mental state.”
¶36 	It was error to instruct the jury in paragraph 3(c) that it
could convict Grunwald as an accomplice if she “[r]ecognized
that 	her 	conduct 	could 	result 	in 	[Garcia] 	committing 	the
[principal crime] but chose to act anyway.” Instead, Grunwald
could not be held liable as an accomplice unless she either
intended 	or 	knew 	that 	her 	conduct—i.e., 	intentionally,
knowingly, 	or 	recklessly 	soliciting, 	requesting, 	commanding
encouraging or intentionally aiding Garcia—would result in the
commission of the principal crime. By allowing the jury to
convict if it found Grunwald acted recklessly as to the results of
(…continued)
Grunwald if she “[r]ecognized that her conduct could result in
[Garcia] 	committing 	the 	[principal 	crime] 	but 	chose 	to 	act
anyway.”

State v. Grunwald
20160079-CA 	15 	2018 UT App 46
her conduct, the instructions impermissibly reduced the State’s
burden with respect to the mental state element.
B. 	The 	Accomplice’s 	Conduct 	Must 	Be 	Directed 	at
Committing the Principal Offense.
¶37 	The 	second 	error 	Grunwald 	identified 	relates 	to 	the
requirement that an 	accomplice’s conduct must be 	directed
toward accomplishing the principal offense. Paragraph 2 of the
accomplice 	liability 	instructions 	allowed 	the 	jury 	to 	find
Grunwald guilty if she “intentionally, knowingly, or recklessly
solicited, requested, commanded or intentionally aided [Garcia]
who” committed the principal crime. The State concedes that the
instruction 	misstates the 	statutory 	language, 	which 	imposes
accomplice liability on one “who solicits, requests, commands,
encourages, or intentionally aids another person to engage in
conduct which constitutes an offense.” Utah Code Ann. § 76-2-
202 (LexisNexis 2017) (emphasis added). However, the State
argues that the substitution of the word “who” for the word “to”
does not render the jury instructions erroneous when read as a
whole.
¶38 	While 	the 	substitution 	of 	a 	single 	word 	might 	seem
insignificant and might be so in other contexts, substituting
“who” for “to” fundamentally changed what the State was
required to prove to convict Grunwald as an accomplice. As
explained in Jeffs, an accomplice must act with the requisite
mental state “as to the results of his conduct” and “the results of
his conduct must be a criminal offense.” State v. Jeffs, 2010 UT 49,
¶ 44, 243 P.3d 1250. In other words, an accomplice’s conduct
must be directed at accomplishing the principal crime. Here, to
convict Grunwald as an accomplice, she had to either intend for
her conduct to result in Garcia’s commission of the underlying
crimes or know that her conduct was reasonably certain to cause
that 	result. 	See 	Utah 	Code 	Ann. 	§ 	76-2-103(1)–(2) 	(defining
“intentionally” and “knowingly” mens rea).

State v. Grunwald
20160079-CA 	16 	2018 UT App 46
¶39 	To adequately convey this requirement to the jury, the
instruction 	should 	have 	required 	the 	State 	to 	prove 	that
Grunwald 	solicited, 	requested, 	commanded, 	encouraged, 	or
aided Garcia to commit the crime. By substituting the word
“who,” the instruction permitted the jury to find Grunwald
guilty if she solicited, requested, commanded, encouraged, or
aided Garcia in any way, so long as Garcia committed the
principal crimes. The instructions thus failed to convey the
statutory 	requirement 	that 	an 	accomplice 	must 	have 	the
requisite mens rea to commit the principal offense.6
C. 	The Accomplice’s Mental State Must Relate to the Results
of the Accomplice’s Conduct.
¶40 	The third error identified by Grunwald relates to the
requirement that an accomplice act with the requisite mental
state as to the results of her own conduct. Paragraph 3(b) of the
jury instruction, which addresses the “knowing” mental state,
allowed the jury to convict her as an accomplice if she “[w]as
aware that the principal actor’s . . . conduct was reasonably
6. The State argues that the accomplice liability instructions
remedied any ambiguity created by the “who”/“to” error in
paragraph 2 because paragraph 3 required the jury to find that
Grunwald 	either 	intended 	that 	Garcia 	commit 	the 	charged
crimes, knew that he would do so, or was reckless as to whether
he would do so. The State contends that, when read as a whole,
the instruction required the jury not only to find that Grunwald
aided Garcia but to find that she intended, through her aid, to
assist him in committing the crimes. However, as explained in
this opinion, paragraph 3(b) incorrectly focused on the results of
Garcia’s actions, rather than the results of Grunwald’s actions,
and paragraph 3(c) erroneously allowed the jury to convict
based on recklessness. Given these additional errors, we cannot
say that the jury instructions, when read as a whole, adequately
stated the law.

State v. Grunwald
20160079-CA 	17 	2018 UT App 46
certain to result in the principal actor . . . committing the
[underlying crime].” Grunwald contends that “the instructions
defined 	the 	knowing 	mental 	state 	with 	regard 	to 	Garcia’s
conduct, not her own.” We agree.
¶41 	A 	person 	acts 	“knowingly” 	if 	“he 	is 	aware 	that 	his
conduct is reasonably certain to cause the result.” Utah Code
Ann. § 76-2-103(2) (LexisNexis 2017). Thus, an accomplice acts
knowingly if “the accomplice knows that his conduct will most
likely cause” the principal crime. State v. Jeffs, 2010 UT 49, ¶ 45,
243 P.3d 1250. The accomplice liability instructions misstated the
law by permitting a conviction if Grunwald knew that Garcia’s
conduct—rather than her own—was reasonably certain to result
in the commission of the principal crimes. The jury should have
been instructed to find Grunwald not guilty unless the State
proved that she acted intentionally or knowingly as to the results
of her own conduct in accomplishing the principal crime.
¶42 	Through this combination of errors, the jury instructions
improperly 	allowed 	the 	jury 	to 	convict 	Grunwald 	as 	an
accomplice under three impermissible scenarios: (1) if she acted
recklessly 	as 	to 	the 	results 	of 	her 	conduct, 	rather 	than
intentionally or knowingly; (2) if she directed her actions to
some purpose other than the commission of the principal crime;
or (3) if she acted knowing that Garcia’s actions, rather than her
own, were reasonably certain to result in the commission of the
principal crime. These errors had the effect of reducing the
State’s 	burden 	of 	proof 	at 	trial. 	While 	we 	recognize 	that
Grunwald’s primary defense was compulsion, no reasonable
trial strategy would justify trial counsel’s failure to object to
instructions misstating the elements of accomplice liability in a
way that reduced the State’s burden of proof. See State v. Barela,
2015 UT 22, ¶ 27, 349 P.3d 676 (holding that “no reasonable
lawyer would have found an advantage in understating the
mens rea requirement” regardless of whether the error related to
the defense theory). As a result, trial counsel was deficient for

State v. Grunwald
20160079-CA 	18 	2018 UT App 46
failing to object to the instructions on Counts One through Seven
and Count Eleven.
II. Prejudice
¶43 	Deficient performance does not require reversal unless
the defendant establishes that “a reasonable probability exists
that, 	but 	for 	counsel’s 	error, 	the 	result 	would 	have 	been
different.” State v. Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151
(citation 	and 	internal 	quotation 	marks 	omitted). 	Grunwald
contends that “if the jury had been properly instructed on the
law of accomplice liability and the mental states required to
prove [that she] acted as an accomplice, . . . there is a reasonable
probability the jury would have had a reasonable doubt.” The
State asserts that the errors in this case were not prejudicial
because (1) “none of the errors [Grunwald] identifies affected her
primary defense—compulsion,” and (2) “the objective evidence
overwhelmingly demonstrated that [Grunwald] and [Garcia]
worked in concert and that she was his loyal teammate.”
¶44 	To 	be 	clear, 	the 	burden 	is 	on 	the 	defendant 	to
affirmatively prove prejudice. See State v. Garcia, 2017 UT 53,
¶ 36. “It is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding.”
Strickland v. Washington, 466 U.S. 668, 693 (1984). Instead, “[t]he
defendant must show that there is a reasonable probability that,
but 	for 	counsel’s 	unprofessional 	errors, 	the 	result 	of 	the
proceeding would have been different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Id. This is “a relatively high hurdle to overcome.”
Garcia, 2017 UT 53, ¶ 44.
¶45 	To determine whether a defendant has met this burden, a
reviewing court “needs to focus on the evidence before the jury
and whether the jury could reasonably have found” the facts in
the defendant’s favor “such that a failure to instruct the jury
properly undermines confidence in the verdict.” Id. ¶ 42. Here,

State v. Grunwald
20160079-CA 	19 	2018 UT App 46
because there were three errors in the jury instructions, we must
assess whether there is a reasonable probability that the jury
convicted due to any one of those errors and otherwise “would
have had a reasonable doubt respecting guilt.” Strickland, 466
U.S. at 695.
¶46 	In assessing each conviction, we assume that the jury
found beyond a reasonable doubt both that Garcia committed
the 	principal 	crimes 	and 	that 	Grunwald 	“intentionally,
knowingly, 	or 	recklessly 	solicited, 	requested, 	commanded,
encouraged, or intentionally aided” Garcia. Grunwald does not
challenge these aspects of the accomplice jury instructions or the
sufficiency of the evidence to support these findings. We refer to
the act of soliciting, requesting, commanding, encouraging, or
intentionally 	aiding 	Garcia 	as 	Grunwald’s 	“conduct,” 	or 	as
“intentionally aiding” because that variant is most applicable to
the facts of this case. With those assumptions in mind, we ask
the 	following 	questions 	to 	determine 	whether 	Grunwald
suffered prejudice based on any one of the three errors in the
jury instructions:
• 	Is there a reasonable probability that the jury found
Grunwald acted recklessly, rather than knowingly
or intentionally, as to whether her conduct would
result in the commission of the principal crime?
• 	Is there a reasonable probability that the jury found
that 	Grunwald’s 	conduct 	was 	not 	directed 	to
Garcia’s commission of the crime?
• 	Is there a reasonable probability that the jury found
that Grunwald knew that Garcia’s conduct, but not
necessarily her own, 	was reasonably 	certain 	to
result in the crime?
¶47 	We first address those convictions where there is no
reasonable 	probability 	that 	the 	erroneous 	jury 	instructions

State v. Grunwald
20160079-CA 	20 	2018 UT App 46
affected 	the 	outcome 	of 	the 	trial. 	We 	then 	turn 	to 	those
convictions where there is a reasonable probability that the jury
might well have acquitted Grunwald if it had been properly
instructed.
A. 	Grunwald Has Not Established Prejudice with Respect to
Counts One and Eleven.
¶48 	Based on our review of the evidence presented at trial, we
conclude there is no reasonable probability that the jury would
have acquitted Grunwald on Counts One and Eleven but for the
erroneous instructions on accomplice liability.
1. 	Aggravated Murder of Sergeant Wride (Count One)
¶49 	Count One charged Grunwald as an accomplice to the
crime of aggravated murder arising from the shooting death of
Sergeant Wride. To convict Grunwald of this charge, the State
had to prove that Grunwald either intended that her conduct
would result in Garcia committing the crime of aggravated
murder or that she was aware that her conduct was reasonably
certain to result in Garcia committing that crime. See Utah Code
Ann. § 76-2-202 (LexisNexis 2017) (accomplice liability); see also
id. § 76-5-202(1) (aggravated murder); id. § 76-2-103(1)–(2) (mens
rea definitions). Based on the evidence presented at trial, we
conclude that there is no reasonable probability that the jury
would have acquitted Grunwald of this count if it had been
correctly instructed on accomplice liability.
¶50 	First, there is no reasonable probability that the jury based
its verdict on a finding that Grunwald was merely reckless as to
the results of her conduct. It was undisputed that Garcia was
holding a gun and looking back at Sergeant Wride’s patrol car
when Garcia stated that he was “going to buck [the officer] in the
fucking head.” Although Grunwald claimed that she did not
know the meaning of the term “buck” and assumed police cars
had bulletproof windshields, no reasonable person could have

State v. Grunwald
20160079-CA 	21 	2018 UT App 46
misinterpreted Garcia’s objective under the circumstances. If
Garcia had not been holding the gun when he stated his intent to
do something to Sergeant Wride “in the head,” the situation
might have been more ambiguous, creating a real possibility that
the jury convicted Grunwald for recklessly disregarding the risk
that her conduct would result in the murder. But under the
circumstances, there is no reasonable probability that the jury
convicted on this basis.
¶51 	Second, there is no reasonable probability that the jury
convicted Grunwald because she aided Garcia in some way
other than to commit the crime of aggravated murder. The
undisputed evidence showed that, after Garcia announced his
intention, Grunwald applied the brake, enabling the truck to
shift into drive. It is unclear whether Grunwald or Garcia shifted
the truck into drive, see supra ¶ 8 n.3, but there is no dispute that
she did not immediately attempt to drive away or to shift back
into park. Instead, she held her foot on the brake for three-and-a-
half minutes while Garcia shifted in his seat to get into position
to fire. Grunwald was observed watching traffic behind the
truck from her side view mirror, which allowed her to see
around Sergeant Wride’s vehicle and to monitor the traffic
approaching from behind. Garcia waited to open fire until there
was a significant lull in traffic, leading to a reasonable inference
that Grunwald was helping Garcia time the shooting to avoid
witnesses and to ensure a safe and speedy getaway. In addition,
Grunwald did not accelerate until after several shots were fired,
strongly suggesting that she waited to flee until after the murder
had been accomplished. By remaining stationary, keeping a
lookout, and acting as the getaway driver, Grunwald enabled
Garcia to fire the shots that killed Sergeant Wride.
¶52 	Grunwald argues that “this evidence, the brake lights, the
gear shifting, watching the traffic and eventually driving away,”
was 	“not 	the 	only 	evidence 	the 	jury 	heard 	of 	[Grunwald]
soliciting, requesting, commanding, or aiding Garcia,” and thus
the jury could have relied on a different factual basis in reaching

State v. Grunwald
20160079-CA 	22 	2018 UT App 46
its verdict. For example, Grunwald argues that the jury might
have convicted her because she failed to tell Sergeant Wride that
there was a warrant for Garcia’s arrest, or that Garcia had just
provided false information or even because she had aided Garcia
in various ways in the past. We consider it highly improbable
that the jury convicted on such a theory. In closing argument, the
State asked the jury to find that Grunwald “intentionally aided
the principal actor” when she prepared for the shooting by
“shift[ing] 	her 	car 	into 	drive, 	and 	[putting] 	the 	brakes on,
holding on until they’re ready”; watched her mirror for a break
in traffic so that “others would not witness the murder” and so
that there would be no cars around to “preclude their getaway”;
and then drove away to safety, “protecting herself and her man
from apprehension.” Given that the State focused solely on these
actions in arguing that Grunwald was guilty on Count One, it is
highly improbable that the jury would have convicted Grunwald
based on other conduct.
¶53 	Third, there is no reasonable probability that the jury
convicted Grunwald on the theory that she knew Garcia was
going to shoot Sergeant Wride but did not know that her
conduct 	would 	result 	in 	Garcia 	committing 	that 	crime. 	As
detailed above, the State presented persuasive evidence that
Grunwald’s own actions were designed to help Garcia commit
the crime. Consequently, Grunwald’s defense at trial depended
on the jury believing her claim that Garcia pointed his gun at her
head, compelling her to assist him. In returning a guilty verdict,
the jury necessarily rejected the compulsion defense. Once it did
so, the only reasonable conclusion from the evidence was that
Grunwald intended or knew that her conduct in keeping the
truck in drive with her foot on the brake, watching for a lull in
traffic, and preparing to flee, would result in Garcia committing
the crime of aggravated murder.
¶54 	Even 	if 	the 	jury 	had 	been 	correctly 	instructed 	on
accomplice liability, there is no reasonable probability that it

State v. Grunwald
20160079-CA 	23 	2018 UT App 46
would have acquitted on Count One. Accordingly, we affirm
Grunwald’s aggravated murder conviction.
2. 	The Carjacking (Count Eleven)
¶55 	Similarly, there is no reasonable probability that but for
the 	erroneous 	instructions 	the 	jury 	would 	have 	reached 	a
different result on Count Eleven, which charged Grunwald as an
accomplice to aggravated robbery based on the carjacking. To
convict Grunwald of this crime, the State had to prove that
Grunwald either intended that her conduct would result in
Garcia committing the crime of aggravated robbery or that she
was aware that her conduct was reasonably certain to result in
Garcia committing that crime. See Utah Code Ann. § 76-2-202
(LexisNexis 2017) (accomplice liability); id. § 76-6-301 (robbery);
id. § 76-6-302 (aggravated robbery); id. §§ 76-2-103(1)–(2) (mens
rea definitions).
¶56 	The evidence at trial showed that Grunwald and Garcia
abandoned her disabled truck after exiting I-15 at the Nephi
Main Street exit. The videotape introduced at trial shows Garcia
running 	away 	from 	the 	truck 	and 	Grunwald 	following.
Grunwald testified that as soon as they left the truck, Garcia told
her “to find a fucking car.” Grunwald ran toward a passing
motorist’s 	vehicle, 	waving 	the 	motorist 	down. 	On 	cross-
examination, Grunwald acknowledged that she stopped the
driver, enabling Garcia to “point his gun at her and get her out.”
As soon as the vehicle came to a stop, Grunwald opened the
passenger side door and climbed in as Garcia ordered the driver
out of the driver’s seat at gunpoint.
¶57 	In 	her 	testimony, 	Grunwald 	claimed 	that 	Garcia
threatened her, at one point turning the gun on her and telling
her “to fucking hurry.” She testified that she “was scared for
dear 	life” 	and 	had 	“no 	choice” 	but 	to 	participate 	in 	the
carjacking. 	But 	once 	the 	jury 	had 	rejected 	her 	compulsion
defense, the evidence left no room for any other conclusion

State v. Grunwald
20160079-CA 	24 	2018 UT App 46
except that Grunwald intentionally aided Garcia to commit the
carjacking.
¶58 	Based on this evidence, there is no reasonable probability
that 	the 	jury 	convicted 	Grunwald 	because 	she 	was 	merely
reckless as to whether her conduct could result in a carjacking.
Nor is there any question that she intentionally aided Garcia in
committing the carjacking itself, as opposed to intentionally
aiding him in some other manner. Finally, because Grunwald’s
mens rea with respect to the carjacking cannot be characterized
as 	anything 	less 	than 	intentional, 	there 	is 	no 	reasonable
probability that the jury convicted her based on the erroneous
“knowingly” instruction. The evidence permitted no conclusion
other than that Grunwald intended her own conduct in waving
down a passing motorist to result in the carjacking. Accordingly,
we affirm Grunwald’s aggravated robbery conviction.
B. 	Grunwald Has Established Prejudice on the Remaining
Counts.
¶59 	On the remaining counts, we conclude that there is a
reasonable probability that Grunwald may have received a more
favorable outcome but for the erroneous jury instructions. We
begin with those counts arising from the shots fired at Trooper
Blankenagel and at the semi-trailer truck, where the evidence
suggesting that Grunwald intended or knew that her conduct
would result in the principal crimes was weakest. We then turn
to the convictions relating to the shooting of Deputy Sherwood.
Although the State presented stronger evidence relating to those
counts, 	our 	confidence 	in 	those 	convictions 	is 	ultimately
undermined by the erroneous jury instructions.
1. 	Shooting at Trooper Blankenagel (Count Five)
¶60 	Count Five charged Grunwald as an accomplice to felony
unlawful discharge of a firearm based on the shots Garcia fired
at Trooper Blankenagel. The evidence presented at trial showed

State v. Grunwald
20160079-CA 	25 	2018 UT App 46
that Trooper Blankenagel spotted Grunwald’s truck on I-15 and
gave chase. Grunwald saw Trooper Blankenagel following the
truck with the patrol vehicle’s overhead lights on, but she
continued driving up to 110 miles per hour. After a few miles,
Garcia fired at Trooper Blankenagel from the back window of
the truck. The bullet did not strike the vehicle, but the pursuit
ended when Trooper Blankenagel hit a spike strip that had been
deployed to stop Grunwald.
¶61 	At trial, the State argued that Grunwald intentionally
aided Garcia “by driving and enabling him to shoot.” The State
argued that, by the time Garcia fired at Trooper Blankenagel,
Grunwald was “more than aware of what [Garcia] could and
would do,” suggesting that she knew Garcia would fire at any
officer who attempted to apprehend them but chose to continue
driving 	anyway. 	On 	appeal, 	the 	State 	does not 	specifically
address whether Grunwald suffered prejudice with respect to
this count, other than to argue generally that the evidence
overwhelmingly refuted Grunwald’s compulsion defense and
established that she was Garcia’s willing partner throughout the
crime spree.
¶62 	In finding Grunwald guilty, the jury clearly rejected her
attempt to distance herself from Garcia and found that she was a
willing participant. But a willing participant as to what? As Jeffs
makes clear, an accomplice must act with the requisite mental
state “as to the results of [her] conduct” and “the results of [her]
conduct must be a criminal offense.” State v. Jeffs, 2010 UT 49,
¶ 44, 243 P.3d 1250.
¶63 	Based on the evidence presented at trial, it is certainly
possible the jury found that Grunwald intended or reasonably
knew that her conduct—that is, continuing to drive, leaving
Garcia free to aim and fire his gun—would result in Garcia
shooting at Trooper Blankenagel. Garcia had demonstrated that
he would open fire on law enforcement and the jury could have
reasonably inferred that Grunwald intended or knew that her

State v. Grunwald
20160079-CA 	26 	2018 UT App 46
conduct was reasonably certain to result in Garcia shooting at
other pursuing officers. However, it is at least equally likely that
the jury convicted because Grunwald intentionally aided Garcia
by continuing to drive, even though she did not have the mental
state required for the commission of the underlying crime—
unlawful discharge of a firearm. Unlike the evidence supporting
Count One, there was no evidence that Garcia announced his
intention to discharge the firearm at Trooper Blankenagel or that
Grunwald 	undertook 	some 	action 	specifically 	designed 	to
accomplish that crime, such as holding her foot on the brake,
watching for traffic, 	and fleeing as soon as the crime was
accomplished.
¶64 	There is a reasonable probability that the jury convicted
on Count Five based on one or more of the three errors in the
jury instructions. First, the jury may have improperly convicted
Grunwald 	based 	on 	a 	reckless 	mental 	state, 	finding 	that
Grunwald recognized that her conduct could result in Garcia
discharging the firearm but chose to continue driving anyway.
Second, there is a reasonable probability that the jury convicted
even though it found that Grunwald’s conduct in continuing to
drive was directed to helping Garcia evade law enforcement, a
different 	and 	uncharged 	crime, 	not 	to 	the 	commission 	of
unlawfully 	discharging 	his 	firearm. 	And, 	third, 	there 	is 	a
reasonable probability that the jury may have convicted without
finding that Grunwald knew that her own conduct in driving the
truck was reasonably certain to result in the crime. Because of
the likelihood of a more favorable outcome if the jury had been
correctly instructed, we must vacate Grunwald’s conviction on
Count Five.
2. 	The Shooting at the Semi-Trailer Truck (Counts Six and
Seven)
¶65 	Counts 	Six 	and 	Seven 	charged 	Grunwald 	as 	an
accomplice to the crimes of felony discharge of a firearm and
criminal 	mischief, 	respectively, 	based 	on 	the 	shooting 	that

State v. Grunwald
20160079-CA 	27 	2018 UT App 46
damaged the semi-trailer truck. As in Count Five, the trial
evidence relating to this event was sparse. Shortly after evading
Trooper Blankenagel, as Grunwald continued to drive down I-
15, Garcia fired three shots out the passenger side window at the
semi-trailer truck.
¶66 	Like Count Five, the State’s theory of accomplice liability
on Counts Six and Seven is based on Grunwald intentionally
aiding Garcia by driving the truck. As a result, our analysis of
Count 	Five 	applies 	equally 	here. 	There 	is 	a 	reasonable
probability that the jury convicted Grunwald on Counts Six and
Seven because she intentionally aided Garcia by continuing to
drive, even though she did not intend or know that her conduct
would result in Garcia firing at the semi-trailer truck. Given the
lack of evidence showing that Grunwald acted with the requisite
mental 	state 	to 	commit 	the 	underlying 	crimes, 	there 	is 	a
reasonable probability that the jury would have had a reasonable
doubt 	regarding 	Grunwald’s 	guilt 	if 	it 	had 	been 	properly
instructed. Therefore, we must vacate the convictions on Counts
Six and Seven.
3. 	The Shooting of Deputy Sherwood (Counts Two and
Three)
¶67 	Counts 	Two 	and 	Three 	charged 	Grunwald 	as 	an
accomplice to the crimes of attempted aggravated murder and
felony unlawful discharge of a firearm causing serious bodily
injury, 	respectively. 	Both 	counts 	related 	to 	the 	shooting 	of
Deputy Sherwood.
¶68 	The evidence at trial showed that, as Deputy Sherwood
approached the truck on Main Street in Santaquin, Grunwald
initially accelerated and maneuvered past cars in an apparent
attempt to outrun him. But then Grunwald suddenly applied her
brakes, reducing the distance between her truck and Deputy
Sherwood. At that point, Garcia fired through the truck’s back
window, striking Deputy Sherwood in the head and causing

State v. Grunwald
20160079-CA 	28 	2018 UT App 46
serious bodily injury. Immediately after the shooting, Grunwald
accelerated and then quickly made a U-turn to head back onto
I-15.
¶69 	In contrast to Counts Five through Seven, which relied
solely on Grunwald’s continued driving, the State presented
evidence suggesting that she took additional action designed to
enable 	the 	commission 	of 	these 	crimes. 	Specifically, 	the
videotape from Deputy Sherwood’s dash camera shows that
Grunwald abruptly applied the brakes right before Garcia began
firing. In closing argument, the State focused on Grunwald’s
conduct, arguing that “she hits her brakes, slows down, closes
the gap between [her truck] and Deputy Sherwood” thereby
“helping [Garcia] accomplish the attempted aggravated murder”
and the felony discharge of a firearm resulting in serious bodily
injury.
¶70 	However, the evidence leaves significant doubt as to
whether Grunwald intended that conduct to result in Garcia
committing these crimes or knew it was reasonably certain to
have such a result. At trial, Grunwald testified that she slowed
down because of the traffic in front of her. This explanation was
supported by the video from Deputy Sherwood’s patrol car,
showing slower vehicles ahead in Grunwald’s lane. In addition,
Deputy Sherwood testified that Grunwald would have had to
slow down to avoid hitting the car in front of her.
¶71 	On the other hand, there was also evidence to suggest that
Grunwald did have the requisite intent to aid in the commission
of these crimes. Grunwald knew that Garcia had previously fired
at an officer, knew that they were being pursued by a police car,
and knew that Garcia still had the gun. Grunwald admitted at
trial that she could have used the left turn lane to swerve around
the cars in her path. Immediately after Garcia fired at Deputy
Sherwood, Grunwald sped up again. Based on this evidence, the
jury reasonably might have inferred that she chose to suddenly
brake at that moment, intending or knowing that her conduct

State v. Grunwald
20160079-CA 	29 	2018 UT App 46
would give Garcia the opportunity to shoot at the officer in
pursuit. 	Even 	without 	the 	braking, 	the 	jury 	could 	have
reasonably inferred that Grunwald continued to drive the truck
for the purpose of ensuring that Garcia’s hands would be free to
shoot at any pursuing officers. Had the jury been correctly
instructed, this evidence would be sufficient to support the
convictions on Counts Two and Three.
¶72 	However, we lack confidence that the jury would have
reached the same result but for the errors in the accomplice
liability instructions. 	Once the jury rejected the compulsion
defense, there was no question that Grunwald had intentionally
aided Garcia by driving the truck. But the instructions failed to
explain how that intentional aid must relate to the commission
of the underlying offenses.
¶73 	As in Counts Five through Seven, there is a reasonable
probability that the jury convicted Grunwald of Counts Two and
Three based on one or more of the errors in the jury instructions.
First, 	the 	jury 	may 	have 	improperly 	convicted 	Grunwald
because she intentionally aided Garcia by driving the truck even
though she was merely reckless as to whether her continued
driving would result in Garcia shooting at Deputy Sherwood.
Second, 	the 	instructions 	allowed 	the 	jury 	to 	convict 	if
Grunwald’s purpose in driving the truck was to aid Garcia in
avoiding apprehension or to achieve some objective other than
the commission of the charged crimes. Third, the jury may have
convicted Grunwald because she knew that Garcia’s conduct,
but not her own, was reasonably certain to result in Garcia firing
at Deputy Sherwood.
¶74 	In 	sum, 	given 	the 	evidence 	presented, 	there 	is 	a
reasonable probability that the jury convicted on these counts
without 	finding 	that 	Grunwald 	intentionally 	or 	knowingly
directed her conduct to aid Garcia in committing the principal
crimes. Accordingly, we vacate the convictions on these counts.

State v. Grunwald
20160079-CA 	30 	2018 UT App 46
CONCLUSION
¶75 	By failing to object to jury instructions that misstated the
law regarding accomplice liability, Grunwald’s trial counsel’s
performance fell below the level of representation guaranteed by
the federal and state constitutions. Having carefully reviewed
the evidence at trial, we conclude that there is no reasonable
probability that the deficient performance affected the verdict on
Counts 	One 	and 	Eleven, 	and 	therefore, 	we 	affirm 	those
convictions. However, there is a reasonable probability that
Grunwald may have secured an acquittal on the remaining
counts had the jury been correctly instructed on the law. As a
result, we vacate and remand for a new trial on Counts Two,
Three, Five, Six, and Seven.7
7. In so ruling, we recognize that Grunwald stands convicted of
aggravated murder and aggravated robbery, for which she is
serving consecutive sentences of twenty-five years to life and
five years to life, respectively. Our remand for a new trial on the
counts requiring reversal is the relief to which she is entitled for
her partial success on appeal. Whether she will be retried on
those counts is, of course, a judgment call for the State.