State v. Cox, 286 P.3d 15

Cox appeals from convictions for forgery and theft by deception.
She alleges Jury Instruction 33 unconstitutionally shifted the burden of proof for an element to the defense.
The State prosecuted Cox for theft by deception based on presenting a check and attempting to cash it.
The trial court instructed on an honest belief defense that the defense must produce evidence, misdescribing burden of production.
The State presented evidence that Cox lacked an honest belief, sending the theft by deception case to the jury.
Cox was sentenced for theft by deception before a legislative reclassification that lowered the offense from class A to class B misdemeanor; remand for resentencing ordered.
The court affirmed the forgery conviction and remanded only for theft by deception resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Jury Instruction 88 shift burden of proof?	Cox contends instruction improperly placed burden on defense.	State argues harmless error or invited error issues; CJ instruction limited to theft by deception.	Harmless error; no reversal; instruction error not prejudicial.
Whether the error was plain error and preserved	Plain error due to burden shift requiring reversal.	No preservation; argument limited; error harmless.	Plain error affirmed as harmless; no reversal for theft by deception.
Was the honest belief defense properly treated as an affirmative defense for theft by deception	Honest belief is not an affirmative defense in theft by deception; State must prove lack of honest belief.	Instruction misdescribed burden but evidence shown; defense presented.	Honest belief defense is not an affirmative defense for theft by deception; error but cured by State's proof.
Should the theft by deception sentence be lowered due to 2010 reclassification	Cox entitled to lesser sentence under new statute effective before sentencing.	State concedes entitlement to lesser sentence; remand appropriate.	Remand for resentencing under the lower class B misdemeanor statute.

State v. Jimenez, 2012 UT 41 (Utah) (plain error standard for manifest injustice challenges)
State v. Lee, 2006 UT 5 (Utah) (harmfulness/plain error standard for trial errors)
State v. Drej, 2010 UT 35 (Utah) (state must negate affirmative defense beyond reasonable doubt)
State v. Garcia, 2001 UT App 19 (Utah App.) (burden to present some reasonable basis for defense before instruction)
In re M.C., 2003 UT App 429 (Utah App.) (state bears burden for certain constitutional errors in plain error context)