Rule of Criminal Procedure – Comment Period Closed December 30, 2023

Like the underlying opinion in Terry, this is a good rule to prevent legally impossible verdicts. A defendant cannot be convicted of a compound offense when the same defendant is acquitted of the predicate offense.

The proposed addition of subsection (h) to rule 21, of the Utah Rules of Criminal Procedure, essentially codifies the Utah Supreme Court’s decision in Pleasant Grove City v. Terry, 2020 UT 69, 478 P.3d 1026. In Terry, the supreme court held that “[l]egally impossible verdicts—in which a defendant is acquitted on the predicate offense but convicted on the compound offense—cannot stand,” because “it is impossible to reconcile a conviction with an acquittal on ‘essential elements … identical and necessary’ to sustain the conviction. 2020 UT 69, ¶¶16,22. Consistent with Terry, proposed rule 21(h) defines a “legally impossible verdict” as one where “a fact finder finds a defendant guilty of an offense that has as an essential element another offense for which the same fact finder found the same defendant not guilty in the same trial.” And proposed rule 21(h) states that “[i]n determining whether the acquitted offense constitutes an essential element of the offense of conviction, the court will consider the elements of the crimes, the admitted evidence, any jury instruction, and the verdicts.” The Criminal Appeals Division of the Utah Attorney’s Office opposes proposed rule 21(h) for three reasons.

First, the Division believes Terry was wrongly decided, with the result being either of two outcomes, neither of which is beneficial to the criminal justice system. One outcome—highly favorable to defendants—may be that when a jury convicts of the compound crime but not the predicate crime—whether “through mistake, compromise, or lenity,” United States v. Powell, 469 U.S. 57, 65 (1984)—a guilty defendant simply gets off on both crimes, regardless of the strength of the evidence, because either the cost or other difficulties in retrying the defendant are too great or because double jeopardy precludes retrying him on the two crimes at issue. See Terry, 2020 UT 69, ¶24 & n.7 (suggesting, without deciding, that “double jeopardy provisions may effectively preclude a retrial of the acquittal on the predicate offense”). This drastic result—obviously contrary to the interests of the State and the safety of its citizens—is particularly harsh given that Terry chose to follow a minority rule that has been rejected by both the United States Supreme Court and the majority of states.

The second outcome, much less favorable to defendants, is that a jury will now be instructed on Terry’s legally-impossible-verdicts rule—in other words, that juries will be specifically instructed that lenity is not a permissible option and that if they convict of a compound crime but not the predicate, the result will be that the defendant will face no conviction at all. This, in turn, will make it much more likely that the jury will convict a defendant of both the compound crime and the predicate crime (which won’t always merge) because Terry precludes juries from convicting him of only the compound crime “through mistake, compromise, or lenity.” See Powell, 469 U.S. at 65.

The Criminal Appeals Division believes that neither of these outcomes are necessary under the law and thus that Terry was wrongly decided. To be clear, Terry is technically correct that conviction on a compound crime and acquittal on its predicate crime is “legally impossible” if the jury steadfastly adheres to the jury instructions requiring the jury to convict the defendant of all crimes that the State has proved beyond a reasonable doubt. But this was the very circumstance that existed in Powell. And as the United States Supreme Court reaffirmed there, “inconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense—should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.” 469 U.S. at 65.

Thus, the Division intends to ask the Utah Supreme Court to overturn Terry as soon as a case arises allowing the Division to do so. Because Terry was a split decision in the Utah Supreme Court—with two justices in the minority, Terry, 2020 UT 69, ¶¶57-75 (Petersen, J., joined by Lee, A.C.J., dissenting)—the State may be successful in having Terry overturned. But such success will be meaningless if a rule codifying Terry essentially nullifies any supreme court decision overturning Terry. Further, the enactment of a rule may itself dissuade the Court from overturning Terry even when the State has made the case for doing so.

Second, the Terry majority left much unsettled in its decision. For example, because Pleasant Grove City did not challenge whether Terry’s post-trial motion to arrest judgment preserved his legally-impossible-verdicts claim, the supreme court did not address whether, when, and how a legally-impossible-verdicts claim must be preserved. Several courts have held that such a claim is waived unless the defendant raises it before the jury is dismissed—in time for the jury to be instructed on the effect of its inconsistent verdicts and for the jury to reconsider those verdicts. Alternatively, the supreme court may decide, in an exercise of its supervisory authority over court proceedings, that when legally-impossible verdicts are rendered, trial courts must sua sponte instruct the jury on the effect of its legally-impossible verdicts and allow the jury to reconsider those verdicts. If the supreme court adopts the preservation requirement or imposes a sua sponte duty on trial courts, any rule codifying Terry would need to include language that it applies only if, after being instructed on the effect of its legally-impossible verdicts, the jury persists in those verdicts.

Finally, at a minimum, proposed rule 21(h) should not be adopted without a corresponding amendment to criminal rule 19 requiring trial courts to instruct the jury on the Terry rule whenever a defendant’s charges include both a compound offense and one or more predicate offenses. Absent an amendment to rule 19, it is possible the jury will unknowingly give the defendant a windfall by convicting him of a compound offense but then—whether “through mistake, compromise, or lenity,” Powell, 469 U.S. at 65—acquitting him of the predicate offense(s). To avoid that result, the jury should be instructed of the likely effect of such legally-impossible verdicts.