The Utah Court of Appeals reversed a criminal conviction

Elijah McDonald was convicted of aggravated assault for breaking a man’s jaw with a single punch to his face. McDonald asks us to reverse his conviction, asserting that his trial counsel (Counsel)1 rendered ineffective assistance by confusing the jury during closing arguments and by failing to take adequate steps to correct that confusion when the jury submitted a question to the court during its deliberations. We are persuaded that Counsel rendered ineffective assistance, and we therefore vacate McDonald’s conviction.

Defense counsel’s closing argument

In Counsel’s closing argument, he began by asserting— based on McDonald’s recorded testimony and the video Olivia’s sister had taken—that the punch did not occur when Stan was distracted by McDonald’s mother hitting Olivia’s mother on the porch but, rather, when Stan got in McDonald’s face near McDonald’s car. Counsel then also addressed the elements of aggravated assault.

Regarding the element requiring the use of force likely to produce death or serious bodily injury, Counsel argued: Causing something doesn’t make what you did likely. Those are two totally separate elements. . . . So this argument that we know the force [was] likely to cause death or serious bodily injury because he caused serious bodily injury, that makes it just one element. . . . [But] [t]hose are two separate elements . . . .

Counsel then continued:

What does likely mean? There’s an instruction which means you have to give it its regular and ordinary meaning[4] . . . . I would argue that the regular and ordinary meaning of likely, gives you— the, the best case for the State would be that that means something is like 50.1 percent going to happen based on this action. I would argue it’s way, way higher than that . . . .

Counsel then asserted that when flipping a coin, “the fact that you flipped it and you got heads[] doesn’t make flipping a coin likely . . . to result in getting heads.” Similarly, Counsel contended, the fact that a person may have won the lottery once with a particular set of numbers does not mean that the same numbers are “likely to win the lottery” again.

The defendant was 5 foot three inches tall and weighed 125-130 pounds; the alleged victim was 5 foot seven inches tall and weighed “at least” 200 pounds

In light of Stan’s and McDonald’s relative sizes, the conflicting evidence regarding the circumstances of the punch, and the importance the jury plainly placed on the “weight” it was to “put on the word likely,” we conclude there is a reasonable probability that if Counsel had not indicated to the jury that it could interpret likely to mean a 50.1% probability, the verdict would have been more favorable to McDonald. Thus, McDonald was prejudiced by Counsel’s deficient performance.