State v. Johnson, 2017 UT 70

Michael Johnson was tried and convicted of murder; he had proposed a jury instruction for the lesser-included offense of homicide by assault and the trial court said it would use the instruction submitted by defense counsel.
The jury returned a guilty verdict on murder; the signed verdict form in the record did not show a separate homicide-by-assault verdict form, and the trial court later said it could not locate such a form but recalled sending the lesser-offense form with the jury.
On appeal Johnson argued the verdict form omitted the lesser-offense option and challenged a causation instruction; he did not challenge the substance of the homicide-by-assault instruction in his opening brief.
The Utah Court of Appeals sua sponte asked for supplemental briefing on whether the homicide-by-assault instruction misstated the mens rea, then reversed Johnson’s conviction on that ground, treating the issue under an "exceptional circumstances" theory.
The Utah Supreme Court granted certiorari to decide whether the court of appeals properly reviewed an issue that was neither preserved at trial nor argued on appeal, and to clarify preservation/waiver exceptions.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Johnson)	Held
Whether the court of appeals properly invoked the exceptional-circumstances exception to reach an issue that was not preserved at trial and not raised on appeal	Court of Appeals correctly identified an important instructional error and could invoke exceptional circumstances to review despite lack of preservation	Review was improper because the issue was invited or unpreserved and Johnson did not invoke ineffective-assistance; any review must respect preservation/waiver rules	Utah Supreme Court: Court of Appeals erred; exceptional-circumstances exception did not apply here; reverse and remand for consideration of other preserved claims
Whether the homicide-by-assault jury instruction misstated the mens rea (required element)	The instruction improperly required intent/knowledge to kill rather than to attempt bodily injury	Johnson had submitted the instruction at trial (invited the error) and did not preserve the objection on appeal; he also did not timely pursue ineffective-assistance claim	Utah Supreme Court: Did not reach the merits due to preservation/invited-error rules; instructional challenge not reviewable on these facts

State v. Robison, 147 P.3d 448 (Utah 2006) (discusses when appellate court may raise waived issues sua sponte and the need for party briefing)
Patterson v. Patterson, 266 P.3d 828 (Utah 2011) (preservation rule is prudential; courts exercise discretion to consider unpreserved issues only in limited circumstances)
State v. Holgate, 10 P.3d 346 (Utah 2000) (plain-error standard and balancing procedural regularity with fairness)
Adoption of K.A.S., 390 P.3d 278 (Utah 2016) (exceptional circumstances may apply where a rare procedural anomaly, such as appointed counsel abdicating advocacy, prevents preservation)
State v. Breckenridge, 688 P.2d 440 (Utah 1983) (historical discussion of appellate intervention for palpable errors; later characterized as plain error)
State v. Geukgeuzian, 86 P.3d 742 (Utah 2004) (remand to court of appeals to consider unresolved appellate claims)