State v. Salt

2015 UT App 72
_________________________________________________________
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Plaintiff and Appellee,
v.
JEFFREY C HARLES S ALT,
Defendant and Appellant.
Opinion
No. 20130071-CA
Filed March 26, 2015
Third District Court, Salt Lake Department
The Honorable William W. Barrett
The Honorable Elizabeth A. Hruby-Mills1
No. 081904756
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE S TEPHEN L. R OTH authored this Opinion, in which J UDGES
J. F REDERIC VOROS JR . and M ICHELE M. C HRISTIANSEN concurred.
ROTH, Judge:
¶1 	Jeffrey 	Charles 	Salt 	appeals 	from 	his 	conviction 	for
aggravated assault, a third degree felony. We affirm.
1. Judge William W. Barrett presided over the trial and denied the
defendant’s motion to arrest judgment as well as his alternative
motion to reduce his conviction. Judge Elizabeth A. Hruby-Mills
denied the motion for a new trial.

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20130071-CA 	2 	2015 UT App 72
BACKGROUND
¶2 	Shortly after Salt began dating his girlfriend (J.G.), she
bought a home in Salt Lake City.2 Salt suggested that she hire him
to complete some renovations, and she agreed. J.G. moved in with
Salt in April 2006 when her house became unlivable during the
remodeling. Over the next couple of years, the renovations
became the source of frequent conflict between the two. J.G.
moved out of Salt’s residence in February 2008 and hired another
contractor to finish the work on her home. At that point, Salt
ended their relationship. But between February and April 2008,
the two continued to see each other and came to a sort of
reconciliation. At the end of April, however, J.G. told Salt “this
isn’t going to work out” and attempted to end their relationship
permanently.
¶3 	Salt continued to contact J.G., eventually convincing her to
meet him at his home in early June to talk things through and help
him move past their breakup. When J.G. arrived at the scheduled
meeting, Salt told her he wanted to “set some ground rules.” He
asked J.G. to agree not to leave even if “the questioning got
tough.” For nearly an hour, Salt asked her questions about their
relationship and her decision to end it. When J.G. eventually told
Salt she wanted to leave, he responded with misogynistic verbal
abuse and then grabbed J.G. and twisted her head. The two ended
up on the ground, and Salt grabbed a piece of pottery from a shelf
and hit J.G. on the head with it multiple times. J.G. grabbed a
phone from the floor and attempted to call 911, but she misdialed,
and Salt knocked the phone away before she could reach anyone.
¶4 	Salt then grabbed what J.G. thought was a metal pipe and
hit her above her eye, drawing blood, before pinning her to the
ground. 	When 	the 	two 	eventually 	stopped 	struggling, 	Salt
2. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict and
recite the facts accordingly.” State v. Winfield, 2006 UT 4, ¶ 2, 128
P.3d 1171 (citation and internal quotation marks omitted).

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allowed J.G. to get up. At that point, she saw blood all over the
floor and could feel that her head was covered with blood as well.
J.G. attempted to leave, but Salt blocked the exit. J.G. said, “[N]o,
no, no, just let me out,” and then either she pushed her way past
him or he stepped aside. Feeling faint, J.G. lay down on the
cement walkway in front of Salt’s residence where a passerby
stopped to give her aid and called 911. At the hospital, J.G.
received sixty-five staples in her scalp to close lacerations that
totaled roughly eleven inches in length. She continued to suffer
back pain for years and, at the time of trial, still had a “lump on
the side of [her] head” that felt as if there was “a little piece of the
clay in [it].” Salt was charged with aggravated kidnapping,
aggravated assault, and damage to a communication device.
¶5 	The case was tried to a jury. Salt claimed he acted in self-
defense. He admitted using derogatory names to describe J.G. but
testified that in response to the name-calling she landed the first
blow, hitting him in the left eye. He testified he then put her in a
headlock to keep her from further attacking him, and they fell to
the ground wrestling. According to Salt, J.G. tried “to gouge [his]
face” and then bit his finger and would not let go. In response, he
repeatedly struck her head against a bookshelf until she released
his finger. He testified that he never hit her with pottery or a metal
pipe and that any action he took against J.G. was to protect
himself from her attempts to gouge his face, her blows with a
phone receiver, and her biting. He said that he was “in fear for
[his] safety and [his] life” after J.G. hit him in the face and bit him.
Salt also testified that a few months before the incident, J.G. had
come to his house to collect some of her belongings. Then, as she
was leaving, she “drove her car in reverse and hit [his] car.” He
then testified, “And I was in the path of that vehicle and I had to
move out of the way to avoid being assaulted by the vehicle.”
¶6 	The 	defense 	called 	a 	physician 	friend 	of 	Salt’s 	who
practiced emergency medicine as an expert witness. Based on his
review of J.G.’s medical records, the physician testified that the
nature of her injuries did not support a claim that she had suffered
direct blows from a metal pipe or a ceramic object. Rather, in his

State v. Salt
20130071-CA 	4 	2015 UT App 72
opinion, J.G.’s injuries were most likely caused by a “glancing
blow[]” rather than a “direct blow” from an object he did not
attempt 	to 	describe. 	The 	defense 	also 	cross-examined 	law
enforcement officers who had responded to the scene. They
observed blood all over the apartment, but they neither found a
metal pipe nor recovered any pieces of pottery.
¶7 	The jury convicted Salt of aggravated assault involving
domestic 	violence 	but 	acquitted 	him 	of 	two 	other 	charges
involving 	domestic 	violence—aggravated 	kidnapping 	and
damage 	to 	a 	communication 	device. 	Salt 	moved 	to 	arrest
judgment and filed an alternative motion to have his conviction
reduced to a class A misdemeanor. The trial court denied his
motions. After sentencing, Salt moved for a new trial. The court
also denied that motion. Salt appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 	First, 	Salt 	argues 	that 	the 	aggravated 	assault 	jury
instruction was incomplete. “[W]e review jury instructions in
their entirety to determine whether the instructions, taken as a
whole, fairly instruct the jury on the applicable law.” State v.
Malaga, 2006 UT App 103, ¶ 18, 132 P.3d 703 (alteration in
original) 	(citation 	and 	internal 	quotation 	marks 	omitted).
“Whether a jury instruction correctly states the law presents a
question of law which we review for correctness.” State v. S.H.,
2002 UT 118, ¶ 11, 62 P.3d 444.
¶9 	Second, Salt argues that the trial court erred when it denied
his motion to reduce his sentence to a class A misdemeanor. We
review a trial court’s denial of a motion to reduce the degree of a
conviction for abuse of discretion. State v. Boyd, 2001 UT 30, ¶ 31,
25 P.3d 985.
¶10 	Third, Salt argues that the trial court should have granted
his motion for a new trial because the jury’s not-guilty verdict on
the charge of aggravated kidnapping conflicted with its guilty

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20130071-CA 	5 	2015 UT App 72
verdict on aggravated assault. “[W]e review the decision to grant
or deny a motion for a new trial only for an abuse of discretion.”
State v. Loose, 2000 UT 11, ¶ 8, 994 P.2d 1237. “When considering
a defendant’s argument that the verdicts are inconsistent, we . . .
will not overturn a jury’s verdict of criminal conviction unless
reasonable minds could not rationally have arrived at the verdict
of guilty beyond a reasonable doubt based on the law and on the
evidence presented.” State v. LoPrinzi, 2014 UT App 256, ¶ 30, 338
P.3d 253 (citation and internal quotation marks omitted), petition
for cert. filed, Dec. 24, 2014 (No. 20141168).
¶11 	Fourth, Salt contends that the definition of “cohabitant” as
used in the Cohabitant Abuse Act is unconstitutionally overbroad
and vague. Constitutional challenges are matters of law reviewed
for correctness. State v. Pullman, 2013 UT App 168, ¶ 6, 306 P.3d
827.
¶12 	Finally, Salt argues that his counsel was constitutionally
ineffective for failing to request an additional element in the jury
instruction 	related 	to 	self-defense. 	We 	consider 	claims 	of
ineffective assistance of counsel raised for the first time on appeal
as questions of law. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
ANALYSIS
I. The Aggravated Assault Jury Instruction
¶13 	At trial, the jury was instructed that to find Salt guilty of
aggravated assault, it must find beyond a reasonable doubt that
he used a dangerous weapon or “other means or force likely to
produce death or serious bodily injury” in the course of acting
“with unlawful force or violence, that causes bodily injury to
another or creates a substantial risk of bodily injury to another.”
Salt contends that this instruction was erroneous because it failed
to 	“require 	the 	jury 	to 	find 	that 	he 	acted 	with 	intent, 	or
knowledge, or recklessness with respect to the result of his
conduct.” Instead, Salt argues, the instruction required the jury to

State v. Salt
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find only that he used means likely to produce death or serious
bodily injury. In other words, Salt argues that the instruction was
missing a “vital” mens rea element, i.e., that he must have
specifically intended to cause death or serious bodily injury, not
simply that he used means likely to do so.
¶14 	In support of his argument, Salt relies on State v. O’Bannon,
2012 UT App 71, 274 P.3d 992. We held in O’Bannon that the State
was required to prove that the defendant acted with intent to
cause the victim serious physical injury before a jury could convict
him of second degree felony child abuse. Id. ¶ 31. We determined
that it was not enough “to prove only that [the defendant]
intended to be, or knew that he was, engaged in certain conduct
without the requisite intent or knowledge that a serious physical
injury would likely result.” Id. Salt argues that we should come to
the same conclusion in this case because the aggravated assault
instruction did not require jurors to determine that he intended to
cause serious bodily injury, but to determine only that his actions
were “likely to produce death or serious bodily injury” without
ever taking his specific intent into account as he claims O’Bannon
requires. We conclude that O’Bannon does not apply here because
our holding in that case was based on a different crime requiring
a different mens rea.
¶15 	O’Bannon involved a charge of second degree felony child
abuse, not third degree felony aggravated assault. Id. ¶¶ 1, 24.
Under the child abuse statute, a person is guilty of second degree
felony child abuse if that person inflicts “serious physical injury”
and does so “intentionally or knowingly.” Utah Code Ann.
§ 76-5-109(2) (LexisNexis 2012). But the O’Bannon jury had been
given an “eggshell victim” instruction, stating that “[w]hen injury
ensues from deliberate wrongdoing, even if it is not an intended
consequence, the injurer is responsible at law without the law
concerning itself with the precise amount of harm inflicted.”
O’Bannon, 2012 UT App 71, ¶ 12 (emphasis added) (internal
quotation marks omitted). We determined that this instruction
“inaccurately stated the law with regard to the mental state
required for the jury to find [the defendant] guilty of second

State v. Salt
20130071-CA 	7 	2015 UT App 72
degree felony child abuse.” Id. ¶ 17. We reached this decision
because even though the defendant had seriously injured the
child 	victim, 	the 	instruction 	contradicted 	the 	statutory
requirement that the defendant must also have intended serious
physical injury or have known that it would result from his
conduct. Id. ¶¶ 17, 31.
¶16 	In contrast, the crime of third degree felony aggravated
assault does not require that a person act with the intent to cause
a specific level of harm. Compare Utah Code Ann. § 76-5-103(1)(b)
(LexisNexis 	2008) 	(defining 	third 	degree 	felony 	aggravated
assault), and id. § 76-5-102 (2012)3 (defining assault), with id.
§ 76-5-109(2) (defining second degree felony child abuse). Instead,
the version of the statute that Salt was charged under defines third
degree felony aggravated assault as an act causing or creating a
substantial risk of bodily injury, committed “with unlawful force
or violence,” id. § 76-5-102, while using a dangerous weapon or
“other means or force likely to produce death or serious bodily
injury,” id. § 76-5-103(1)(b), (3) (2008). The specific intent to cause
“serious bodily injury” was an element of second degree felony
aggravated assault, not the third degree felony with which Salt
was charged. See id. § 76-5-103. And our precedent recognizes that
specific intent to inflict serious bodily injury—or knowledge that
such injury is likely to occur—is not required for a third degree
felony aggravated assault conviction under the version of the
statute that is applicable here. See id. (current version at id. § 76-5-
103(1), (2)(a) (2012)). For example, in State v. Mangum, 2013 UT
App 292, 318 P.3d 250 (per curiam), we noted that because the
defendant “was charged and convicted under subsection (1)(b)”
of the 2008 version of the statute, and not with a second degree
felony under subsection (1)(a), “there was no requirement to show
specific intent in order to support [the defendant’s] conviction.”
Id. ¶¶ 6–7; see also State v. Potter, 627 P.2d 75, 78 (Utah 1981)
(holding that an instruction stating that “specific intent” is not
3. Where amendments made to the relevant statutes since the time
of the incident are not substantive, we cite to the current version
of the Utah Code for the convenience for the reader.

State v. Salt
20130071-CA 	8 	2015 UT App 72
required to “violate the law but merely an intent to engage in acts
or 	conduct 	that 	constitute 	the 	elements 	of 	a 	crime” 	was
appropriate for an aggravated assault charge (internal quotation
marks omitted)); State v. McElhaney, 579 P.2d 328, 328 & n.2 (Utah
1978) (holding that when aggravated assault is committed by use
of a deadly weapon “or such means or force likely to produce
death or serious bodily injury,” “no culpable mental state is
specified” (internal quotation marks omitted)); State v. Howell, 554
P.2d 1326, 1328 (Utah 1976) (agreeing with the parties that third
degree felony aggravated assault requires only general intent).
¶17 	We therefore conclude that the trial court did not err when
it determined that the third degree felony aggravated assault
instruction correctly stated the law and for that reason refused to
arrest judgment or grant a new trial.
II. Motion to Reduce Degree of Conviction
¶18 	Prior to sentencing, Salt moved to have his conviction
reduced from third degree felony aggravated assault to class A
misdemeanor assault under section 76-3-402 of the Utah Code (a
section 402 reduction), because a felony conviction “would be
unduly harsh” and because “[h]e ha[d] no significant prior
criminal record.” Salt also argued that he would be unable to
continue in his position with a nonprofit organization if convicted
of a felony. The trial court denied the motion. Salt argues that the
court abused its discretion in failing to grant him a section 402
reduction. He also contends that the trial court’s decision violated
the Shondel doctrine and failed to comply with the rule of lenity.
¶19 	Salt argues on appeal that a reduction of his sentence is
required 	under 	the 	Shondel 	doctrine. 	The Shondel doctrine
establishes that “where two statutes define exactly the same penal
offense, a defendant can be sentenced only under the statute
requiring the lesser penalty.” State v. Bluff, 2002 UT 66, ¶ 33, 52
P.3d 1210 (citing State v. Shondel, 453 P.2d 146, 147–48 (Utah
1969)). Salt argues that “[t]here is no meaningful distinction”

State v. Salt
20130071-CA 	9 	2015 UT App 72
between the acts required to commit the two crimes because in
either case the actual result could be the same—substantial bodily
injury, the kind of injury that Salt inflicted here.
¶20 	But the Shondel doctrine applies only if the two crimes
“have 	identical 	elements 	and 	prohibit 	exactly 	the 	same
conduct.” Id. The elements of the lesser offense Salt argues for—a
class A misdemeanor simple assault—are not the same as the
third degree felony aggravated assault of which he was convicted.
Compare Utah Code Ann. § 76-5-102 (defining simple assault), with
id. 	§ 	76-5-103(1)(b), 	(3) 	(2008) 	(defining 	third 	degree 	felony
aggravated assault). And the fact that an act committed under
either statute may actually result in the same injury does not mean
the crimes are wholly duplicative. While the severity of injury
required 	by 	the 	misdemeanor 	assault 	statute 	and the injury
actually inflicted in connection with a third degree felony may
sometimes be the same, the culpable conduct required for each is
different. Class A misdemeanor assault requires only an act
“committed with unlawful force or violence,” see id. § 76-5-102
(2012), while third degree felony aggravated assault requires the
use of a dangerous weapon or “other means or force likely to
produce” 	more 	grave 	consequences—“serious 	bodily
injury” or even death, id. § 76-5-103(1)(b), (3) (2008) 	(emphasis
added). Thus, each of these crimes describes conduct that is
significantly different in both conduct and potential for harm,
differences that are reflected in the elements each crime requires
for conviction. Because the two statutes fail to “address exactly
the same conduct,” the Shondel doctrine does not apply. See
Bluff, 2002 UT 66, ¶ 33 (citation and internal quotation marks
omitted).
¶21 	Salt also argues that the rule of lenity requires that his
conviction be reduced. He contends that the statutory scheme
surrounding the varying degrees of assault is ambiguous because
“there are no standards assisting a trial court in distinguishing”
between the types of bodily injury that determine whether the
assault will result in a misdemeanor or felony conviction for the
defendant. He argues that “the determination is [thus] left to the

State v. Salt
20130071-CA 	10 	2015 UT App 72
arbitrary conclusions of the prosecution” and renders the statutes
unconstitutionally vague.
¶22 	“[L]enity is an ancient rule of statutory construction that
penal 	statutes 	should 	be 	strictly 	construed 	against 	the
government . . . and in favor of the persons on whom such
penalties are sought to be imposed.” State v. Rasabout, 2013 UT
App 71, ¶ 31, 299 P.3d 625 (omission in original) (citation and
internal quotation marks omitted), cert. granted, 308 P.3d 536
(Utah 2013). In other words, lenity serves “as an aid for resolving
an ambiguity” in a statute. Albernaz v. United States, 450 U.S. 333,
342 (1981). We noted in State v. Rasabout, 2013 UT App 71, 299 P.3d
625, that “our Legislature appears to have rejected the rule of
lenity as a permissible canon of statutory construction.” Id. ¶ 31.
But in Rasabout we determined that even if the rule of lenity were
applicable, there was no ambiguity in the pertinent statute. Id.
¶ 32. We come to the same conclusion here.
¶23 	Assault and aggravated assault, the statutory crimes that
Salt claims are ambiguous and unconstitutionally vague, employ
varying levels of bodily injury to differentiate degrees of criminal
assault. For example, class B misdemeanor assault proscribes the
infliction or creation of a substantial risk of “bodily injury”—or an
attempt or a threat to inflict it. See Utah Code Ann. § 76-5-102(1),
(2) 	(LexisNexis 	2012). 	And 	“[b]odily 	injury” 	is 	defined 	as
“physical pain, illness, or any impairment of physical condition.”
Id. § 76-1-601(3). But class A misdemeanor assault requires that
the assault result in “substantial bodily injury.” Id. § 76-5-102(3).
“Substantial bodily injury” is defined as “bodily injury, not
amounting 	to 	serious 	bodily 	injury, 	that 	creates 	or 	causes
protracted physical pain, temporary disfigurement, or temporary
loss or impairment of the function of any bodily member or
organ.” Id. § 76-1-601(12). And Utah law defines “[s]erious bodily
injury” as “bodily injury that creates or causes serious permanent
disfigurement, protracted loss or impairment of the function of
any bodily member or organ, or creates a substantial risk of
death.” Id. § 76-1-601(11). Third degree felony aggravated assault
requires the assault to involve either a dangerous weapon or

State v. Salt
20130071-CA 	11 	2015 UT App 72
“other means or force likely to produce death or serious bodily
injury.” Id. § 76-5-103(1)(b), (3) (2008). And an aggravated assault
becomes a second degree felony only if it “causes serious bodily
injury.” Id. § 76-5-103(1)(a), (2).
¶24 	Salt provides no analysis or explanation as to how the
statutory definitions of the pertinent degrees of bodily injury are
so indistinguishable from one another as to be ambiguous.
Ambiguity 	is 	defined 	as 	“[a]n 	uncertainty 	of 	meaning 	or
intention.” Black’s Law Dictionary 93 (9th ed. 2009). Here, there is
no uncertainty as to the meaning or definitions of the terms with
which Salt finds fault, as the legislature has specifically defined
each term. As a result, the “rule of lenity,” even if available as a
canon of statutory construction, is not applicable here.
¶25 	For the same reason, Salt’s related claim that the statutes
are unconstitutionally vague is unavailing. As long as a statute “is
sufficiently explicit to inform the ordinary reader what conduct is
prohibited” we will not find it unconstitutionally vague. State v.
MacGuire, 2004 UT 4, ¶ 14, 84 P.3d 1171 (citation and internal
quotation marks omitted). Further, if the meaning of a statute is
“readily 	ascertainable,” 	it 	“does 	not 	encourage 	or 	facilitate
arbitrary 	and 	discriminatory 	enforcement.” 	Id. 	¶ 32. 	Having
already found that the ambiguity Salt urges does not exist, we
conclude that the statutes at issue here are “sufficiently explicit.”
See id. ¶ 14 (citation and internal quotation marks omitted). As
discussed, the statutes provide specific definitions for each of the
degrees of bodily injury that accompany the various degrees of
assault. We therefore conclude that the meaning of the statutes is
“readily ascertainable.” See id. ¶ 32.
¶26 	Finally, Salt’s contention that the trial court’s refusal to
reduce his conviction to a class A misdemeanor was “unduly
harsh” is unpersuasive. Under section 76-3-402 of the Utah Code,
a court may reduce the degree of a conviction by one level if,
having considered “the nature and circumstances of the offense”
and “the history and character of the defendant,” the court
“concludes 	[that] 	it 	would 	be 	unduly 	harsh 	to 	record 	the

State v. Salt
20130071-CA 	12 	2015 UT App 72
conviction as being for that degree of offense established by
statute.” Utah Code Ann. § 76-3-402 (LexisNexis 2012). By its
nature, such a decision is one of judgment and discretion. The
court did not exceed its discretion when it determined that Salt’s
clean criminal history and potential job problems did not warrant
such a reduction given the circumstances of this case, including
the injuries inflicted on J.G. In addition, the trial court expressly
stated that it would consider a renewed motion under section 402
in the event Salt successfully completed his probation.
III. Conflicting Verdicts
¶27 	Salt contends that he was entitled to a new trial because
“the verdict acquitting him of aggravated kidnapping necessarily
conflicted with his conviction of aggravated assault and therefore
he should have been acquitted of the aggravated assault as well.”
¶28 	We considered a similar argument in State v. LoPrinzi, 2014
UT App 256, 338 P.3d 253, petition for cert. filed, Dec. 24, 2014 (No.
20141168), where the defendant was convicted of two counts of
unlawful sexual activity with a minor and acquitted of a third
count. Id. ¶ 29. There, the defendant argued that all three counts
“involved the same witnesses, same parties, same allegations, and
same 	evidence.” 	Id. 	(internal 	quotation 	marks 	omitted).
Accordingly, she argued that “the jury would have [to] either
convict on all Counts, or acquit on all Counts.” Id. (alteration in
original) 	(internal 	quotation marks omitted). 	We 	concluded,
however, that “[w]e are under no duty” to reconcile seemingly
inconsistent acquittals and convictions because the jury is free to
determine “that the evidence only supported one conviction.” Id.
¶ 31 (citation and internal quotation marks omitted). Therefore, a
“claim of inconsistency alone is not sufficient to overturn [the]
conviction; rather, [t]here must be additional error beyond a
showing of inconsistency because appellate courts have always
resisted 	inquiring 	into 	the 	jury’s 	thought 	processes 	and
deliberations.” Id. ¶ 30 (citation and internal quotation marks
omitted).

State v. Salt
20130071-CA 	13 	2015 UT App 72
¶29 	Salt argues that such additional error exists here because
the aggravating factor the prosecution alleged for the aggravated
kidnapping charge was essentially the assault for which he was
convicted and thus the jury must have decided he did not commit
the assault when it acquitted him of the aggravated kidnapping
charge. As we noted in LoPrinzi, “so long as sufficient evidence
supports each of the guilty verdicts, state courts generally have
upheld the convictions.” Id. (citation and internal quotation marks
omitted). In determining whether the evidence is sufficient, “we
review the evidence in the light most favorable to the verdict and
will not overturn a jury’s verdict of criminal conviction unless
reasonable minds could not rationally have arrived at the verdict
of guilty beyond a reasonable doubt based on the law and on the
evidence presented.” Id. (citation and internal quotation marks
omitted). Here, the version of the evidence most favorable to the
jury’s verdict was that Salt assaulted J.G. and hit her with a metal
pipe, a piece of pottery, or both, causing her significant head
injuries and lingering residual pain in her back. Based on this
evidence, the jury could reasonably have determined that Salt
assaulted J.G. with a dangerous weapon or “other means or force
likely to produce death or serious bodily injury.” See Utah Code
Ann. § 76-5-103(1)(b) (LexisNexis 2008).
¶30 	We therefore conclude that the evidence was sufficient to
support the aggravated assault conviction and that the trial court
did not err when it refused to grant a new trial on the basis of
inconsistent verdicts.
IV. Constitutionality of the Cohabitant Abuse Act
¶31 	Salt contends that the term “cohabitant,” as used in the
Cohabitant Abuse Act, is both unconstitutionally overbroad and
unconstitutionally vague. As a result, he argues the domestic
violence designations attached to his charges were inappropriate
and that “the jury should not have been instructed with regard to
finding such a status.” The Cohabitant Abuse Act provides that a
second or subsequent conviction for certain domestic violence
offenses is subject to enhanced penalties. Utah Code Ann. § 77-36-

State v. Salt
20130071-CA 	14 	2015 UT App 72
1.1(2) (LexisNexis 2012). “[D]omestic violence” is defined as “any
criminal offense involving violence or physical harm . . . when
committed by one cohabitant against another.” Id. § 77-36-1(4).
Defendant argues that the term “cohabitant,” as used in this act—
and specifically the act’s last alternative definition, “a person
who . . . resides or has resided in the same residence as the other
party”—is 	unconstitutionally 	overbroad 	because 	it 	unduly
inhibits “First Amendment freedom of association rights.” See id.
§§ 77-36-1, 78B-7-102. In other words, he argues that the act
criminalizes “entirely innocent behavior, the mere act of residing
with another.” And he argues that the phrase “has resided” is
unconstitutionally vague because it is unqualified and does not
provide sufficient notice as to what behavior is being proscribed.
A. 	Unconstitutional Overbreadth
¶32 	Salt refers us to Salt Lake City v. Lopez, 935 P.2d 1259 (Utah
Ct. App. 1997), where we determined that “[s]tatutory language
is 	overbroad 	if 	its 	language 	proscribes 	both 	harmful 	and
innocuous behavior.” Id. at 1263 (citation and internal quotation
marks omitted), superseded by statute on other grounds as recognized
by Baird v. Baird, 2014 UT 8, 322 P.3d 728. In Lopez, we determined
that a “statute is not unconstitutionally overbroad unless it
renders 	unlawful 	a 	substantial 	amount 	of 	constitutionally
protected 	conduct.” 	Id. 	We 	noted, 	however, 	that 	“[t]he
overbreadth doctrine has not been recognized outside the limits
of the First Amendment.” Id. Salt contends that the definition of
“cohabitant” restricts a person’s right to freedom of association
under the First Amendment by “criminalizing entirely innocent
behavior, the mere act of residing with one another.”
¶33 	“In a facial challenge to the overbreadth and vagueness of
a law, a court’s first task is to determine whether the enactment
reaches 	a 	substantial 	amount 	of 	constitutionally 	protected
conduct.” State v. Norris, 2007 UT 6, ¶ 13, 152 P.3d 293 (emphasis
omitted) (citation and internal quotation marks omitted). If the
statute does not reach a substantial amount of such conduct, the
overbreadth claim fails. Id. As Salt notes, the United States

State v. Salt
20130071-CA 	15 	2015 UT App 72
Supreme Court has recognized that “choices to enter into and
maintain certain intimate human relationships must be secured
against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is
central to our constitutional scheme.” Roberts v. United States
Jaycees, 468 U.S. 609, 617–18 (1984). Further, the Supreme Court
has recognized that “implicit in the right to engage in activities
protected by the First Amendment is a corresponding right to
associate with others in pursuit of a wide variety of political,
social, economic, educational, religious and cultural ends.” Boy
Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000) (citation and internal
quotation marks omitted). However, to warrant First Amendment
protection, those engaging in their right of free association must
“engage in some form of expression, whether it be public or
private.” Id. at 648.
¶34 	The Cohabitant Abuse Act does not penalize a person for
choosing to reside with another person, as Salt claims, nor does it
inhibit any protected form of expression. Instead, the act only
prohibits criminal conduct against a cohabitant that “involv[es]
violence or physical harm or threat of violence or physical harm.”
See Utah Code Ann. §§ 77-36-1(4), -1.1 (LexisNexis 2012). Violence
and threats of violence against cohabitants are not the sort of
“form 	of 	expression” 	that 	the 	First 	Amendment 	right 	of
association 	is 	meant 	to 	protect 	from 	government 	intrusion;
indeed, such conduct is universally criminalized. Rather, the
Cohabitant Abuse Act is designed to promote the value of the
relationships 	the 	act 	encompasses 	by 	discouraging 	physical
violence in such relationships. Because the act does not constrain
any speech or conduct protected by the First Amendment, the fact
that its broad definition of “cohabitant” may theoretically bring
within its reach such attenuated relationships as, for example,
former 	roommates, 	may 	raise 	questions 	of 	policy 	without
necessarily 	implicating 	constitutional 	overbreadth. 	This 	is
especially true in a case such as this one, where Salt and J.G. had
lived together for a substantial time and the violence stemmed
from their prior intimate relationship. We therefore conclude that
Salt’s claim of overbreadth fails.

State v. Salt
20130071-CA 	16 	2015 UT App 72
B. 	Unconstitutional Vagueness
¶35 	Salt also claims that the definition of “cohabitant” is
unconstitutionally vague. He argues that “[n]o evidence exists
that he was put on notice or was otherwise aware that he had
somehow permanently attained the status of ‘cohabitant’ simply
because he once resided with” J.G. A statute is unconstitutionally
vague if it “fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits”
or 	if 	it 	“authorizes 	or 	even 	encourages 	arbitrary 	and
discriminatory enforcement.” State v. Ansari, 2004 UT App 326,
¶ 42, 100 P.3d 231 (citation and internal quotation marks omitted).
The burden of showing that a statute is unconstitutionally vague
is a heavy one because “a defendant has the burden of proving
that the statute is impermissibly vague in all of its applications.”
Id. ¶ 44 (emphasis added) (citation and internal quotation marks
omitted). “Thus, a defendant who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of the law
as applied to the conduct of others.” Id. (citation and internal
quotation marks omitted).
¶36 	Our 	“primary 	objective” 	when 	interpreting 	statutory
language “is to give effect to the legislature’s intent” as expressed
in the text of the statute. State v. Maestas, 2012 UT 46, ¶ 195, 299
P.3d 892 (citation and internal quotation marks omitted). In doing
so, we will consider the plain language and also the purpose of
the statute. Anderson v. Bell, 2010 UT 47, ¶ 9, 234 P.3d 1147. Our
decision in Keene v. Bonser, 2005 UT App 37, 107 P.3d 693, is
instructive here. In Keene, we considered the “resides or has
resided” definition of “cohabitant” in the context of a statute that
sets forth the procedure for domestic violence victims to obtain a
protective order. Id. ¶¶ 2, 8. In that case, we determined that the
plain meaning of “reside” was “[t]o dwell permanently or for a
length of time; to have a settled abode for a time.” Id. ¶ 11
(alteration in original) (citation and internal quotation marks
omitted). We also defined “residence” according to its plain
meaning—“a temporary or permanent dwelling place, abode, or
habitation to which one intends to return as distinguished from a

State v. Salt
20130071-CA 	17 	2015 UT App 72
place of temporary sojourn or transient visit.” Id. (citation and
internal quotation marks omitted). And we further noted that one
of the purposes other states have recognized for implementing
statutes such as the Cohabitant Abuse Act is “‘to protect others[,
beyond spouses,] from abuse occurring between persons in a
variety 	of 	significant 	relationships.’” 	Id. 	¶ 15 	(alteration 	in
original) (quoting State v. Kellogg, 542 N.W.2d 514, 517 (Iowa
1996)). Such a purpose is supported by the plain language of our
own statute, which increases the penalty for criminal offenses
“involving violence or physical harm . . . when committed by one
cohabitant against another.” See Utah Code Ann. §§ 77-36-1(4), -
1.1(2).
¶37 	Salt’s conduct in the context of his relationship with J.G.
falls well within the scope of the statute’s definition and purpose.
See Ansari, 2004 UT App 326, ¶ 44. Here, Salt and J.G. lived
together in an intimate relationship in Salt’s permanent home for
nearly two years. And it was only about two months after J.G.
moved out that Salt violently assaulted her during a discussion
directly 	related 	to 	their 	prior 	romantic 	relationship. 	Salt’s
behavior is exactly the type contemplated by statutes like the act
which are aimed at protecting those in “a variety of significant
relationships” from the increased vulnerability to abuse that those
relationships may create, even after they end. See Keene, 2005 UT
App 37, ¶ 15 (citation and internal quotation marks omitted).
Because we conclude that the kind of relationship Salt had with
J.G. fell well within the central focus of the act’s definition of
“cohabitant,” and because that definition “provide[s] people of
ordinary 	intelligence” 	fair 	notice, 	Salt’s 	unconstitutional
vagueness claim fails. See Ansari, 2004 UT App 326, ¶ 42 (citation
and internal quotation marks omitted).
V. Ineffective Assistance of Counsel
¶38 	Salt’s final claim is that his trial counsel was ineffective for
failing to request that the court include an additional factor for the
jury’s consideration in one of the self-defense jury instructions.
Under Utah law, “[a] person is justified in threatening or using

State v. Salt
20130071-CA 	18 	2015 UT App 72
force against another when and to the extent that the person
reasonably believes that force . . . is necessary to defend the
person . . . against another person’s imminent use of unlawful
force.” Utah Code Ann. § 76-2-402(1)(a) (LexisNexis 2012). The
self-defense 	statute 	also 	states 	that 	in 	determining 	the
“imminence or reasonableness” of an attack or response,
the trier of fact may consider, but is not limited to,
any of the following factors: (a) the nature of the
danger; (b) the immediacy of the danger; (c) the
probability that the unlawful force would result in
death or serious bodily injury; (d) the other’s prior
violent 	acts 	or 	violent 	propensities; 	[and] 	(e) 	any
patterns 	of 	abuse 	or 	violence 	in 	the 	parties’
relationship.
Id. 	§ 76-2-402(5) 	(emphasis 	added). 	Salt 	argues 	that 	Jury
Instruction No. 20, which purported to address these factors,
failed to include the fourth factor listed in the statute—“the
other’s prior violent acts or violent propensities.”4 See id. He
argues that his counsel was ineffective for failing to ensure that
this factor was included because it was implicated by evidence
presented at trial that J.G. had previously attempted to hit him
with her car.
¶39 	To establish ineffective assistance of counsel, a defendant
must demonstrate (1) “that counsel’s performance was deficient”
and (2) “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both
prongs are required, “an appellate court may skip to the second
prong . . . and determine that the ineffectiveness, if any, did not
prejudice the trial’s outcome.” State v. Perry, 2009 UT App 51, ¶ 11,
204 P.3d 880 (citation and internal quotation marks omitted). “To
satisfy the prejudice prong, it is not enough to show that the
alleged errors had some conceivable effect on the outcome of the
4.The jury instruction also failed to list the fifth factor described in
the statute, but Salt does not appeal the omission of that factor.

State v. Salt
20130071-CA 	19 	2015 UT App 72
trial 	but, 	rather, 	defendant 	must 	show 	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). Salt first
argues that“[b]y failing to request a very crucial element of self-
defense,” 	counsel 	prevented 	the 	jury 	from 	being 	given 	the
“opportunity to consider in its deliberations the effect of the prior
assault by [J.G.].” He argues that “the result may very well have
been different” had the jury been permitted to consider this
evidence.
¶40 	We conclude that Salt has not shown that counsel’s failure
to object to the jury instruction prejudiced his case. Even if the
“prior violent acts or prior violent propensities” factor had been
included, Salt has failed to show a reasonable probability exists
that the outcome would have been different. Salt argues he was
prejudiced 	because 	the 	missing 	factor 	deprived 	him 	of 	the
opportunity to argue his theory of self-defense and the jury of the
ability to consider it. Put another way, Salt contends counsel was
prevented from arguing that Salt reacted to J.G. both reasonably
and in self-defense in light of the parties’ history and that had
counsel been able to do so, Salt would not have been convicted.
We disagree.
¶41 	First, Jury Instruction No. 20 clearly stated that the jury was
“not limited” only to the factors listed in the instruction. The jury
was therefore free to consider Salt’s testimony that his actions
were a justified response to J.G. hitting him in the eye because J.G.
had previously tried to hit him with a car. And just as the missing
factor did not prevent the jury from considering any evidence
presented to it related to self-defense, neither did it prevent
counsel from arguing a theory of self-defense to the jury during
closing arguments. Indeed, while counsel did not specifically
mention the alleged prior incident of attempted vehicular assault,
he did focus several of his closing remarks on the allegation that
J.G. struck Salt first. And counsel also characterized J.G. as a
person who initiates violence, refuting Salt’s claim that the
missing factor precluded him from making an argument about

State v. Salt
20130071-CA 	20 	2015 UT App 72
J.G.’s alleged propensity. Counsel argued to the jury, “She started
this by hitting him the eye, she was the aggressor,” and, “[H]e’s
got the bruise on his eye to prove [it].” Counsel also told the jury,
“If someone comes up to you and punches you in the eye, . . . in
Utah, you don’t have to run away, you can stand your ground and
defend yourself and especially when you’re in your own home.”
And counsel further told the jury that Salt was reasonable in his
response because “he’s entitled to defend himself however he
needs to make sure that [the attack] doesn’t get worse.”
¶42 	It is worth noting that Salt does not argue trial counsel was
somehow deficient in his arguments because he did not call the
jury’s attention to the incident involving J.G.’s car during closing
arguments. Salt only argues that he was prejudiced by the missing
factor in the jury instruction because its absence prevented
counsel from arguing it and the jury from considering it. So the
question of whether counsel was ineffective for failing to include
the incident in his jury arguments related to Salt’s theory of self-
defense is not before us. Instead, we 	need only determine
whether, as Salt contends, counsel was actually prohibited from
making 	such 	an 	argument 	had 	he 	chosen 	to. 	We 	are 	not
persuaded that the missing jury instruction prevented counsel
from 	presenting 	for 	the 	jury’s 	consideration 	any 	legitimate
arguments related to Salt’s theory of self-defense or that it
influenced 	the 	trial’s outcome 	in 	the 	way 	that 	Salt 	claims.
Accordingly, Salt’s ineffective assistance of counsel claim fails.
CONCLUSION
¶43 	We conclude that the trial court did not err when it denied
Salt’s motions to arrest judgment or grant a new trial on the
grounds that the jury instruction on aggravated assault was
erroneous and prejudicial. We further determine the trial court
did not err when it refused to reduce his conviction. We also
conclude that the trial court did not abuse its discretion when it
refused to grant a new trial on conflicting verdicts. We also do not
find the Cohabitant Abuse Act to be unconstitutional. Finally, we

State v. Salt
20130071-CA 	21 	2015 UT App 72
conclude that Salt did not receive ineffective assistance of counsel.
Accordingly, the trial court’s denial of Salt’s motions for a new
trial or to arrest judgment and his conviction are affirmed.