Opinion
{1 Angela Dawn Ekstrom appeals from her conviction for aggravated assault, a third degree felony, see Utah Code Ann. § 76-5-103 (LexisNexis 2008) (current version at id. (2012)). Ekstrom claims that there was insufficient evidence of "serious bodily injury," that trial counsel performed deficiently in approving jury instructions that failed to define "serious bodily injury," that a police officer improperly opined on the ultimate issue as an undisclosed expert, and that trial counsel performed ineffectively by failing to call an eyewitness identification expert. We conclude that there was sufficient evidence presented to support the jury's verdict but that the jury was not properly instructed on the definition of "serious bodily injury." As a result, we reverse Ekstrom's conviction and remand for a new trial, without considering the other issues she advances on appeal.
BACKGROUND
12 On June 26, 2010, an individual (Witness) was driving when he saw and heard Ekstrom and a man (Victim) shouting at each other "really close, like right at each other's face[ ]" near an intersection in Salt Lake City. Out of concern, Witness pulled his car to the side of the road to observe the incident. Ekstrom began hitting Victim with her hands, and Victim responded by embracing Ekstrom in an apparent effort to stop her from hitting him. After a few seconds, Vice-tim released Ekstrom and began walking toward a bicycle that had been left nearby. Witness saw Ekstrom grab "what looked to be an irrigation pipe, [a] sprinkler pipel{,] and beglin] to strike [Victim] with it." Witness called 911 and reported the incident. Witness saw Ekstrom land numerous blows to Victim's legs, hand, and torso and saw her attempt to strike Victim in the head. As Victim retreated on the bicycle, Ekstrom struck Victim on the back, breaking the pipe.
13 A few minutes later, police officers arrived and found Ekstrom a couple blocks from the intersection where the incident had occurred. Ekstrom told one of the officers that she had a "verbal dispute" with her boyfriend near the intersection, after which she had suffered a seizure and had just awoken at her current location. Police officers also spoke with Victim and took several photographs of the injuries to his head and face. The item used to strike Victim was never found.
1 4 On July 14, 2010, Ekstrom was charged with aggravated assault. At a jury trial on May 24, 2011, Witness and two of the responding officers testified but Victim and Ekstrom did not. During cross-examination Witness acknowledged, "When I saw [Ek-strom] grab a weapon and begin to strike [Victim] with a weapon, I didn't know that it was a pipe, I didn't know what it was. It looked to be an irrigation pipe...." Witness did not provide any other information as to whether the pipe was made of metal or plastic.
¶ 5 The prosecution introduced the photographs of Victim's head and face into evidence and then asked one of the responding officers (First Officer) whether the injuries he saw were consistent with Vietim having been hit on the head with a pipe. First Officer said yes. During cross-examination trial counsel asked First Officer, "[When you were told pipe ... are you picturing a metal pipe or a plastic pipe?" First Officer responded, "At that time, a metal pipe." On redirect, the prosecution asked First Officer to give his opinion of what had happened to Victim. Over trial counsel's objection, the trial court permitted First Officer to testify that Victim "was assaulted with a blunt object that was described as a pipe."
ISSUES AND STANDARDS OF REVIEW
T7 First, Ekstrom argues that the evidence was insufficient to establish either that Victim suffered "serious bodily injury" or that Ekstrom used a "dangerous weapon." "An appellate court may overturn a criminal conviction for insufficiency of evidence only 'when it is apparent that there is not sufficient competent evidence as to each element of the crime charged for the factfinder to find, beyond a reasonable doubt, that the defendant committed the crime'" State v. Gardner,
18 Second, Ekstrom argues that the jury instructions improperly omitted the definition of "serious bodily injury." Because this issue was not preserved, Ekstrom argues that her trial counsel rendered ineffective assistance in failing to ensure that such an instruction was included. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark,
19 Because we reverse Ekstrom's convietion and remand for a new trial based on her trial counsel's ineffective performance, we need not reach her other claims raised on appeal.
ANALYSIS
I. Sufficiency of the Evidence
[ 10 Ekstrom first challenges the sufficiency of the evidence to support the conviction of aggravated assault. In particular, Ek-strom claims that the evidence did not establish the required elements of "serious bodily injury" and the "use of a dangerous weapon," because Victim did not actually suffer serious bodily injury. Ekstrom's argument misconstrues the elements of aggravated assault.
{ 11 Utah Code section 76-5-108 provides in part,
(1) A person commits aggravated assault if he commits assault as defined in Section 76-5-102(5 ] and he:
(a) intentionally causes serious bodily injury to another; or
(b) under cireumstances not amounting to a violation of Subsection (1)(a), uses a dangerous weapon as defined in Section 76-1-601 or other means or force likely to produce death or serious bodily injury. Utah Code Ann. § 76-5-108(1) (LexisNex-is 2008) (current version at id. (2012)). Here, the State argues that the facts supported a conviction for aggravated assault because the pipe used by Ekstrom to hit Victim is a dangerous weapon. The Utah Legislature has defined "dangerous weapon" to include "any item capable of causing death or serious bodily injury." Id. § 76-1-601(5) (LexisNexis 2012).
112 Thus, to prove aggravated assault, the State was not required to establish that Victim actually suffered "serious bodily injury." State v. Peterson,
113 At the close of the State's case, Ekstrom moved for a directed verdict based, in part, on the State's failure to produce evidence of the type of pipe involved. According to Ekstrom, only a metal pipe could constitute a dangerous weapon. However, we agree with the State and the trial court that irrespective of whether the pipe was metal or plastic, the jury could have found that the pipe was capable of causing serious bodily injury when used to strike Victim repeatedly. See, eg., Sanders v. State,
IL. Ineffective Assistance of Counsel
114 Ekstrom next argues that her trial counsel was ineffective for failing to object to the absence of a jury instruction defining "serious bodily injury," which she claims is an essential component of aggravated assault. The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington,
115 "The Due Process Clause of the Fourteenth Amendment 'protects the accused against conviction except upon proof beyond a reasonable doubt of every fact nee-essary to constitute the crime with which he is charged.?" Francis v. Franklin,
$16 As discussed above, Utah's aggravated assault statute provides that a person commits aggravated assault if she commits an assault while using a weapon capable of inflicting death or serious bodily injury. Utah Code Ann. § 76-5-108 (LexisNexis 2008) (current version at id. (2012)); see also id. § 76-1-601(5) (LexisNexis 2012) (defining "dangerous weapon" as any item capable of inflicting death or serious bodily injury). The Utah Legislature has also created three classifications of bodily injury. It has defined "bodily injury" as "physical pain, illness, or any impairment of physical condition," id. § 76-1-601(8); "substantial bodily injury" 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 "serious 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). These different categories of injury are not subject to analysis using ordinary meaning. See Day,
1 17 In this case, Jury Instruction 6 directed the jury on the necessary elements for a conviction of aggravated assault:
Before you can convict the defendant of the crime of AGGRAVATED ASSAULT, you must find from the evidence, beyond a reasonable doubt, all of the following elements:
1 That on or about the 26th day of June, 2010, in Salt Lake County, State of Utah, the defendant, Angela Dawn Ek-strom, assaulted [Victim]; and
2 That the said defendant intentionally or knowingly assaulted [Victim]; and
3 That the said defendant then and there used a dangerous weapon or such other means or force likely to produce death or serious bodily injury.
If you believe that the evidence establishes each and all of the essential elements of the offense beyond a reasonable doubt, it is your duty to convict the defendant. On the other hand, if the evidence has failed to so establish one or more of the elements, then you should find the defendant not guilty.
Next, Jury Instruction 7 defines "dangerous weapon" as "any item capable of causing death or serious bodily injury." That instruction further indicates that the jury may consider certain factors "[in determining whether an object is a dangerous weapon," including "the character of the instrument, object, or thing; ... the character of the wound produced, if any; ... the manner in which the instrument, object, or thing was used; ... [and] the other lawful purposes for which the instrument, object, or thing may be used."
118 As the State concedes, the jury instructions fail to provide the statutory definition of "serious bodily injury," the type of injury a dangerous weapon must be capable of inflicting.
119 "To show prejudice, a defendant must establish that 'there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt."" State v. Walker,
120 To convict Ekstrom of aggravated assault, the jury had to find that Ekstrom committed an assault-which requires actual, threatened, or attempted bodily injury-and, under the variant argued by the State, also find that Ekstrom used a weapon capable of inflicting death or serious bodily injury or used other means or force likely to produce death or serious bodily injury. See Utah Code Ann. § 76-5-102 (defining assault); id. § 76-5-108 (defining aggravated assault); id. § 76-1-601(5)(a) (defining dangerous weapon). - However, the jury instructions defined only "bodily injury," thereby "creat[ing] the potential for confusion." See State v. Hutchings,
121 The strength of the evidence is also relevant to the question of prejudice. "Because '[slome errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire eviden-tiary picture, and some will have had an isolated trivial effect," in determining the ef-feet of the error, we 'consider the totality of the evidence before the ... jury'" State v. Hales,
1 22 In the present case, our confidence in the jury's verdict is undermined because there is a reasonable probability that, had a proper instruction on "serious bodily injury" been given, the jury would have determined that the pipe Ekstrom used to attack Victim was not a dangerous weapon capable of causing death or "serious bodily injury" and the force Ekstrom used was not likely to produce such injury. The prosecutor did not proceed on a theory that Ekstrom had caused serious bodily injury to Victim, but instead on the theory that Ekstrom had used a dangerous weapon or force likely to produce serious
123 First, the pipe was never found or introduced into evidence. Second, Witness was uncertain about the object Ekstrom used to strike Victim, stating on direct examination that it looked like an irrigation or sprinkler pipe, but conceding on cross-examination that he did not know for sure what the item was. Third, there is no record evidence that the pipe was made of metal.
§24 Had the record strongly established that Ekstrom used a metal pipe to strike Victim, we would agree with the State that trial counsel's failure to object to jury instructions that did not define "serious bodily injury" was harmless. Cf. State v. Lambert,
125 However, the evidence here does not strongly support a finding that the pipe was metal, As trial counsel stated at closing argument, the fact that the object broke suggests that it "wasn't a metal pipe" because a "[mletal pipe is not going to break when you hit somebody in the back with it or over the head with it." Although we have little doubt that a properly instructed jury would find that a typical metal pipe is capable of inflicting serious bodily injury as that term has been defined by our legislature, there is a reasonable probability that the jury would reach a different outcome with respect to a pipe made of a substance weak enough to break when used to hit Victim. In some instances, plastic or PVC pipe may constitute a dangerous weapon capable of causing death or serious bodily injury. Seq, e.g., Sanders v. State,
126 Considering the record as a whole, our confidence in the verdict has been undermined by the error in the jury instructions,
CONCLUSION
27 The evidence was sufficient to support Ekstrom's conviction. However, trial counsel's failure to challenge the absence of a jury instruction on the statutory definition of "serious bodily injury" undermines our confidence in the verdict because there is a reasonable probability that if the jury had been properly instructed, it would have concluded that the pipe was not a dangerous weapon capable of causing death or serious bodily injury, and that Ekstrom did not use force likely to cause death or serious bodily injury. Accordingly, we reverse Ekstrom's conviction and remand for a new trial.
Notes
. "When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly." State v. Kruger,
. Ekstrom also argued in her brief that the trial court's failure to recognize and correct the defective instructions constituted plain error. However, Ekstrom conceded at oral argument that trial counsel invited any error when he approved the jury instructions, and thus Ekstrom is not entitled to relief under the doctrine of plain error. See State v. Geukgeuzian,
. Ekstrom does not dispute that she assaulted Victim. - An assault is:
(a) an attempt, with unlawful force or violence, to do bodily injury to another;
(b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or
(c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.
Utah Code Ann. 2012). § 76-5-102(1) (LexisNexis
. The primary authority Ekstrom relies on for her argument is In re Besendorfer,
. See, eg., State v. Smith,
. Although these factors are not included in the definition of "dangerous weapon" found in section 76-1-601, which provides definitions generally applicable to the criminal code, they are included in the definition of "dangerous weapon" in section 76-10-501(6), which provides definitions applicable to the part of the criminal code regulating weapons. Compare Utah Code Ann. § 76-1-601(5)(a) (LexisNexis 2012), with id. § 76-10-501(6) (Supp.2013). - Section 76-10-501(6) defines "dangerous weapon" as "an item that in the manner of its use or intended use is capable of causing death or serious bodily injury," and then lists the factors, set forth in Jury Instruction 7, that should be considered when determining whether an "item, object, or thing not commonly known as a dangerous weapon is a dangerous weapon." Id. § 76-10-501(6). This court has previously characterized the section 76-10-501(6) factors as being "complementary to our interpretation of the term ['dangerous weapon'] under section 76-1-601(5)(a)," the "dangerous weapon" definition applicable to aggravated assault. See State v. C.D.L.,
. Although neither party raises the issue on appeal, the jury instructions also fail to provide a definition for "assault" as defined in Utah Code section 76-5-102, which is an underlying prerequisite for aggravated assault. See Utah Code Ann. § 76-5-103 (LexisNexis 2008) (current version at id. (2012)) ("A person commits aggravated assault if he commits assault as defined in Section 76-5-102....").
. The only indication that the object used by Ekstrom was a metal pipe came from First Officer, who did not witness the attack or ever see the pipe. Thus, any indication that Victim was hit by a metal pipe was, at best, speculative.