State v. Kitzmiller, 493 P.3d 1159

Background

Newborn (Baby) died two weeks after birth; autopsy ruled homicide from blunt-force injuries including brain bleeding, a recently broken right arm, a fractured rib, bruises, abrasions, and other trauma.
Girlfriend (co-defendant) pleaded guilty to two child-abuse counts in exchange for testifying at Kitzmiller’s trial. She described repeated rough handling of Baby by Kitzmiller (tossing, shaking, not supporting head, swaddling face down, bite marks) and one specific incident of angrily shaking him.
Medical experts (medical examiner and child‑abuse pediatrician) linked the injuries to nonaccidental trauma and testified that some injuries required forceful shaking or impact.
The jury acquitted Kitzmiller of murder and one child-abuse count but convicted him on two child-abuse counts (Count II: broken arm; Count IV: multiple injuries).
On appeal Kitzmiller argued (1) trial counsel was ineffective and the court plainly erred by not giving a separate unanimity instruction, (2) the court erred by refusing an in‑custody‑informant instruction and counsel was ineffective for not pursuing an accomplice-instruction alternative, and (3) the evidence was insufficient to support the child-abuse convictions.

Issues

Issue	Plaintiff's Argument (Kitzmiller)	Defendant's Argument (State)	Held
Separate unanimity instruction	Counsel ineffective for not requesting, and court plainly erred by not sua sponte giving, a separate instruction specifying unanimity as to which acts supported each child‑abuse count.	Jury was given a general unanimity instruction; the Information and prosecutor’s closing plainly tied specific injuries to each count, so no juror confusion and no prejudice.	No prejudice shown; convictions affirmed.
In‑custody informant / accomplice instruction	Court erred by refusing Kitzmiller’s proposed in‑custody‑informant instruction for Girlfriend; counsel ineffective for not pressing for an accomplice‑testimony instruction under §77‑17‑7.	Girlfriend was a codefendant/witness with first‑hand knowledge, not the type of in‑custody informer; jury heard plea deal and was instructed on witness credibility; no prejudice even if alternate instruction would be permissible.	No reversible error and no ineffective assistance—no reasonable probability of a different outcome.
Sufficiency of the evidence	Evidence did not identify who caused the injuries; verdict rested on speculation.	Circumstantial and direct evidence (Girlfriend’s eyewitness testimony, expert causation linking described acts to injuries, physical evidence, Kitzmiller’s demeanor and statements) reasonably support convictions.	Evidence sufficient to sustain convictions on Counts II and IV.
Cumulative error	Combined instructional errors deprived Kitzmiller of a fair trial.	Individual alleged errors were not prejudicial; cumulative effect therefore fails.	Cumulative‑error claim fails.

Key Cases Cited

State v. Johnson, 416 P.3d 443 (preservation rule; exceptions for plain error and ineffective assistance)
State v. Holgate, 10 P.3d 346 (plain‑error test: obvious error and prejudice required)
State v. Beckering, 346 P.3d 672 (standard for ineffective assistance claims raised on appeal)
Miller v. Utah Dep't of Transp., 285 P.3d 1208 (abuse of discretion review for refusing jury instructions)
State v. Lambdin, 424 P.3d 117 (jury instructions reviewed as a whole)
Archuleta v. Galetka, 267 P.3d 232 (prejudice standard for ineffective assistance)
State v. Charles, 263 P.3d 469 (context for in‑custody‑informant instruction)
State v. Van Oostendorp, 397 P.3d 877 (omitted requested instruction reversible only if prejudicial)
State v. Dunn, 850 P.2d 1201 (accomplice‑testimony instruction considerations and prejudice analysis)
State v. Nielsen, 326 P.3d 645 (circumstantial evidence can sustain conviction)