2025 UT App 172
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ELIJAH MCDONALD,
Appellant.
Amended Opinion *
No. 20230669-CA
Filed November 20, 2025
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 201902938
Peter Daines, Attorney for Appellant
Derek E. Brown and Michael Gadd,
Attorneys for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.
LUTHY, Judge:
¶1 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
* This Amended Opinion replaces the Opinion in Case No.
20230669-CA issued on August 21, 2025. After that opinion
issued, the appellee filed a petition for rehearing, and we called
for a response. We grant the petition in part and issue this revised
opinion to reflect our determination on rehearing that our holding
regarding the meaning of “likely” should be limited to the
aggravated assault statute.
State v. McDonald
(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.
BACKGROUND 2
The Altercation
¶2 McDonald was seventeen years old, weighed between 125
and 130 pounds, and stood five feet, three inches tall. He also had
a sixteen-year-old brother, Isaac. 3 Isaac was “a runaway” who was
“couch hopping [between] friends’ houses” and dating Olivia.
McDonald and his mother had not seen Isaac for nearly two years.
¶3 Olivia lived with her mother; her mother’s boyfriend, Stan;
her older sister; her older sister’s three children; and her younger
brother. Stan apparently weighed at least 200 pounds and was
about five feet, seven inches tall.
¶4 One evening, Olivia and her family were preparing to
leave their house to go to a restaurant. Isaac was with them. As
the family gathered in front of their house, McDonald, his mother,
1. McDonald was represented by two attorneys at trial. We refer
to them collectively as “Counsel” for convenience.
2. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Wall,
2025 UT App 25, n.2,
566 P.3d 726 (cleaned up).
3. Other than McDonald, the names used in this opinion are
pseudonyms.
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State v. McDonald
and two other women pulled up in McDonald’s car and parked
on the street in front of the house.
¶5 McDonald’s mother got out, approached the porch where
Olivia’s mother and Isaac were standing, and thanked Olivia’s
mother for “giving [Isaac] food and just kind of helping out with
his living situation.” McDonald, on the other hand, immediately
confronted Isaac, “kind of pushing him” and yelling, among other
things, “How can you do this to our family?” Stan “decided this
[wasn’t] a good thing” and “went and got between [Isaac] and
[McDonald] to deescalate the situation,” saying, “Look, this is not
going to happen,” and stepping off the porch with McDonald.
¶6 At that point, McDonald’s mother “kind of lunged forward
[onto the porch] and slapped [Isaac].” Olivia’s mother “hollered
at” McDonald’s mother to “not hit [Isaac] again.” McDonald’s
mother responded by “sock[ing]” Olivia’s mother “in the nose.”
This “diverted [Stan’s] attention,” and he turned to look toward
the porch. As Stan turned back toward McDonald with his
“mouth . . . kind of open,” McDonald “punched [him] in the jaw.”
Stan “had no idea [the punch] was coming.” He immediately felt
a “pop” and “[s]harp pain” and “knew something was very
wrong.” He “felt [his] jaw kind of hanging there, kind of loose.”
Eventually, blood began “oozing from his mouth.”
¶7 Still wanting to deescalate the situation, Stan “got
[McDonald] in a headlock and proceeded to walk him towards . . .
his car.” After they reached “the corner of the property,”
McDonald appeared to calm down, so Stan “let him go.” But
McDonald came at him again. Stan put McDonald in “another
headlock” until he “calmed down” and “wasn’t struggling or
fighting anymore.” By this time, at least some of the women had
made their way—“fighting”—“across the street in[to] the
neighbor’s yard.” Stan therefore “went across the street to try to
break up the girls.” As Stan was trying “to get the girls off of each
other,” McDonald “[came] at [him] one more time,” prompting
Stan to “get [McDonald] again” and pin him against one of the
family’s vehicles.
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State v. McDonald
¶8 “At that point the girls [were] still going kind of crazy
across the street,” and Stan realized that his efforts to “control the
situation” were not working. So he let McDonald go, went into
the house, and retrieved a pistol. When he came back outside,
Stan “fired one warning shot into the ground” and told
McDonald, McDonald’s mother, and the women who had come
with them to leave, which they did.
The Evidence at Trial
¶9 McDonald was charged as an adult with aggravated
assault for punching Stan and breaking his jaw, and the case
proceeded to a jury trial. At trial, Stan, Olivia’s mother, and
Olivia’s sister all testified for the State, recounting the altercation
as described above. Stan also described the injury to his jaw and
its impact on his life. He explained that the punch broke his jaw,
which required surgery to insert screws and wire his jaw shut
while it healed. His jaw remained wired shut for three months. At
the time of trial, more than three years later, Stan still had nerve
pain in his jaw.
¶10 McDonald did not testify at trial, but the State played a
video of testimony he had given during a pretrial hearing. In the
video, McDonald asserted that after arriving at the house, he was
“trying to talk to [Isaac]” when Stan “[got] in [his] face” and said,
“[D]on’t talk to my son. Get off my property. You can’t talk to my
son.” McDonald stated that he responded by “walk[ing] away,”
back to the street, and standing next to his car. Meanwhile,
McDonald explained, Stan appeared drunk and was
“[a]ggravated,” “super red,” and “[m]ad for no reason.”
McDonald stated that Stan followed McDonald back to his car,
pressed “his stomach against” McDonald, and repeatedly said,
“[W]hat are you going to do, boy?” McDonald testified that,
because of Stan’s behavior, he “just got scared” and “swung.”
After playing the video of McDonald’s prior testimony, the State
rested.
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State v. McDonald
¶11 The defense called Olivia’s sister and Stan to testify about
a video Olivia’s sister had taken of part of the altercation. Then
the defense rested.
The Jury Instructions
¶12 Prior to closing arguments, the court instructed the jury—
both orally and in writing—on the elements of aggravated assault,
as follows:
INSTRUCTION NO. 27
Aggravated Assault
[McDonald] is charged in Count I with committing
Aggravated Assault on or about January 11, 2020.
You cannot convict him of this offense unless, based
on the evidence, you find beyond a reasonable doubt
each of the following elements:
1. On or about January 11, 2020
2. In Salt Lake County
3. [McDonald]
4. Intentionally, knowingly, or recklessly:
5. Committed an act with unlawful force or
violence that
a. Caused bodily injury to [Stan]; or
b. Created a substantial risk of bodily injury to
[Stan]; and
6. Intentionally, knowingly, or recklessly:
a. Used other means of force likely to produce
death or serious bodily injury; and
7. [McDonald’s] actions resulted in serious bodily
injury to [Stan].
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State v. McDonald
The court further instructed the jury that “‘[s]erious bodily injury’
means 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.” And it instructed the jury that “‘[p]rotracted’ is defined as
continuing for a long time, or longer than is normal or necessary.”
The Closing Arguments
¶13 The prosecutor began her closing argument by recounting
the altercation as it had been described by the live witnesses
during the State’s case in chief. She then addressed each element
of aggravated assault in turn. When she reached the element
requiring a finding that McDonald used force likely to produce
death or serious bodily injury, she stated simply, “[W]e know that
[he did] because he punched [Stan] so hard in the face that he
caused that bodily injury. The force he used with that punch broke
[Stan’s] jaw in two places.”
¶14 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:
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State v. McDonald
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.
¶15 Regarding this element, Counsel concluded:
I’ve talked about statistics[,] but . . . if you went to
buy life insurance[,] the actuaries would skyrocket
if you were likely to kill somebody or cause serious
injury by one punch. . . . You might not be able to
buy life insurance if you are likely to die from one
punch. . . . This is what we’re talking about. We’re
talking about a kid. . . . A kid who’s smaller hits an
adult once. And the State is telling you that
somehow they have proven because of the result
that one punch is likely to cause death or serious
bodily injury. It’s just not even possible. . . . [T]here’s
a reason we have jurors . . . . We want people that
live in the real world and bring their own
experiences to say . . . no, that’s ludicrous. One body,
4. The record contains a proposed jury instruction stating, “Unless
these instructions give a definition, you should give all words
their usual and ordinary meaning.” But that instruction was
omitted from the set ultimately given to the jury.
20230669-CA 7 2025 UT App
State v. McDonald
one person[,] especially a smaller[,] younger person
punching another person[,] is not likely to cause
death or serious bodily injury. . . . It’s an impossible
burden they’ve created for themselves when they
charged him. Because it’s not possible. One punch is
just not likely to cause that[,] and there’s nothing
they can do to prove it . . . .
¶16 In her rebuttal, the prosecutor responded, “If you sucker
punch someone in the face as hard as you can, is it possible that
their jaw will break? If you hit someone in the jaw. I would argue,
yes. I would argue it’s likely.”
The Jury’s Note to the Court and the Court’s Response
¶17 Partway through its deliberations, the jury sent a note to
the court. It read: “Can we get clarification on instruction No. 27
6a? How much weight do we put on the word likely?” Neither
Counsel nor the prosecutor proposed that the court include in its
response to the jury any clarification regarding the meaning of
“likely.” The court eventually responded to the jury’s question as
follows:
The State must prove beyond a reasonable doubt
each element of the crime charged including
whether the force used would likely cause death or
serious bodily injury. Instruction 27 tells you that
[McDonald] must have acted either intentionally,
knowingly, or recklessly as to whether the force he
used would likely cause death or serious bodily
injury. The evidence you consider relevant to the
issue and the weight given to the evidence is for you
to decide.
¶18 About twenty minutes after receiving the court’s response
to its question, the jury concluded its deliberations and found
McDonald guilty of aggravated assault. McDonald now appeals.
20230669-CA 8 2025 UT App
State v. McDonald
ISSUES AND STANDARD OF REVIEW
¶19 McDonald raises two claims of ineffective assistance of
counsel. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
State v. Wall, 2025 UT App 25, ¶ 23,
566 P.3d 726 (cleaned up).
ANALYSIS
¶20 McDonald contends that Counsel provided ineffective
assistance by (1) “confusingly explain[ing] the meaning of ‘likely’
in a way that undermined the defense, reduced the State’s burden,
and made an otherwise clear jury instruction ambiguous” and
(2) “failing to clarify [the jury instructions] when given the
chance.” To succeed on a claim of ineffective assistance of counsel,
McDonald must establish that Counsel’s “performance was
deficient” and that this “deficient performance prejudiced”
McDonald’s defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). We are persuaded that with regard to his first ineffective
assistance claim, McDonald has satisfied both of these elements.
We address each element of McDonald’s first ineffective
assistance claim in turn. 5
I. Deficient Performance
¶21 To constitute deficient performance, defense counsel’s
actions must have been objectively unreasonable. Id. at 687–88,
690. To establish deficient performance, a defendant must
overcome “a strong presumption that [defense] counsel’s conduct
[fell] within the wide range of reasonable professional assistance”
and “might be considered sound trial strategy.”
Id. at 689 (cleaned
5. Because we resolve McDonald’s first ineffective assistance
claim in his favor and vacate his conviction on that basis, we need
not address his second ineffective assistance claim.
20230669-CA 9 2025 UT App
State v. McDonald
up). Thus, we are “required not simply to give the attorneys the
benefit of the doubt, but to affirmatively entertain the range of
possible reasons . . . counsel may have had for proceeding as they
did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (cleaned up).
Additionally, we must “evaluate the conduct from counsel’s
perspective at the time,” rather than with the benefit of hindsight.
Strickland,
466 U.S. at 689. Moreover, even if we “cannot conceive
of a sound strategic reason for counsel’s challenged conduct, it
does not automatically follow that counsel was deficient.” State v.
Scott,
2020 UT 13, ¶ 36,
462 P.3d 350. Ultimately, “[t]he relevant
question is not whether counsel’s choices were strategic, but
whether they were reasonable.” Roe v. Flores-Ortega,
528 U.S. 470,
481 (2000).
¶22 To convict McDonald, the jury was required to find that
when he punched Stan, he used a means of force “likely to
produce death or serious bodily injury.” See Utah Code § 76-5-
103(2)(b)(iii). 6 During closing arguments, Counsel told the jury it
should give “likely” its “regular and ordinary meaning.” He then
said that “the best case for the State would be that that means
something is . . . 50.1 percent going to happen” but that he “would
argue it’s way, way higher than that.” McDonald contends that
Counsel’s argument “instructed the jury that the meaning of
‘likely’ accommodates a probability as low as 50.1% in
contravention of the word’s bona fide dictionary definition and
common meaning,” and that this amounted to deficient
performance. In the context of this case, we agree.
¶23 When a statutory term, like the word “likely” here, is not
defined in the code, courts give the term its ordinary meaning. See
State v. Bilek,
2018 UT App 208, ¶ 24,
437 P.3d 544 (“We . . . give
effect to each [statutory] term according to its ordinary and
6. Utah Code section 76-5-103 was amended after McDonald’s
conviction. Compare Utah Code § 76-5-103 (2020), with id. § 76-5-
103 (2024). Because the amendments did not substantively change
the elements of the crime as charged against McDonald, we cite
the current version for convenience.
20230669-CA 10 2025 UT App
State v. McDonald
accepted meaning.” (cleaned up)). Juries are also, therefore, to
give such a term its ordinary meaning. See State v. Juarez, 2021 UT
App 53, ¶ 22 n.7,
489 P.3d 231 (“Jurors are bound to follow the law
as stated by the court.” (cleaned up)). Merriam-Webster defines
“likely” in this context to mean “having a high probability of
occurring or being true: very probable.” Likely, Merriam-Webster,
https://www.merriam-webster.com/dictionary/likely [https://
perma.cc/LJ6C-62DP]. Cambridge Dictionary instructs that “[i]f
something is likely, it will probably happen or is expected.” Likely,
Cambridge Dictionary, https://dictionary.cambridge.org/
dictionary/english/likely [https://perma.cc/T4VC-DJB9]. Black’s
Law Dictionary defines “likely” in this context as “[s]howing a
strong tendency; reasonably expected.” Likely, Black’s Law
Dictionary (12th ed. 2024). And in another context our supreme
court has said that “likely” means “probable.” See Colosimo v.
Gateway Cmty. Church,
2018 UT 26, ¶ 29,
424 P.3d 866 (holding in
the context of trespassing that “knowledge that children are likely
to trespass means that the possessor knows that it is probable that
children will trespass . . . in the foreseeable future” (emphasis
added)). In turn, “probable” is defined to mean “likely to be or
become true or real” or, more helpful here, “supported by
evidence strong enough to establish presumption but not proof.”
Probable, Merriam-Webster, https://www.merriam-webster.com/
dictionary/probable [https://perma.cc/EQU7-C4WV]; see also
Probable, Black’s Law Dictionary (12th ed. 2024) (defining
“probable” as “[l]ikely to exist, be true, or happen.”).
¶24 While these definitions do not assign an identifiable
percentage of probability to the meaning of “likely” and even
suggest that “likely” encompasses a range of probabilities, they
all convey that “likely” means a probability of occurrence that is
markedly more than 50.1%. And importantly, the State concedes
as much in its brief by characterizing a probability of 50.1% as an
“unsupportable” and “indefensible” definition of likely. Given
the definitions cited above and the parties’ agreement on this
point, we conclude that to say “likely”—as the term is used in this
20230669-CA 11 2025 UT App
State v. McDonald
statute—has a range of meaning that includes a probability as low
as 50.1% is a misstatement of the law. 7
¶25 Although Counsel did not embrace a 50.1% probability as
the meaning he thought the jury should apply, his argument
nevertheless conveyed that the ordinary meaning of “likely” in
this context encompasses a range of probabilities that, in the best
case for the State, includes a 50.1% probability and that it was up
to the jury to decide—based on the parties’ arguments—which
meaning within the identified range to employ. This argument
misstated the law, and it did so in a way that permitted a lowering
of the State’s burden.
¶26 The State contends that Counsel’s argument was based on
a reasonable strategy of “imput[ing] the unsupportable 50.1%
standard to the State” and, having thereby “established the State’s
straw-man position, . . . deftly attacking it, persuasively arguing
it was unreasonably low.” The State’s argument would be
persuasive if Counsel had clearly conveyed that any endorsement
of the 50.1% standard would be contrary to law and, thus,
impermissible for the jury to employ. But Counsel did not do that.
Rather than imputing the argument to the State and then making
clear that the imputed argument was legally indefensible, he
endorsed the idea that the legal meaning of “likely” encompasses
a “best case” for the State of a 50.1% probability but that Counsel
“would argue” for a different meaning. While there could be a
sound strategic reason for imputing a straw-person argument to
the State and then clarifying that the argument is legally
indefensible under the court’s instructions, we discern no sound
strategic purpose in materially misstating the law (even
inadvertently, as we believe happened here) to the detriment of
7. Because we recognize that the degree of probability represented
by “likely” may vary depending on the context in which it is used,
we limit our holding here to the meaning of “likely” as it is used
in the aggravated assault statute. We leave open the possibility
that “likely” may represent a different degree of probability in a
different statutory context.
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State v. McDonald
the defendant and then relying on attorney argument to persuade
the jury not to apply the misstated law. We further conclude that
not only did Counsel’s misstatement of the law lack a sound
strategic purpose, but it was also objectively unreasonable. Thus,
Counsel’s argument constituted deficient performance.
II. Prejudice
¶27 We now turn to the prejudice prong of the test for
ineffective assistance of counsel. To satisfy this prong, “[t]he
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 694 (1984). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. That
standard is met here.
¶28 The evidence that McDonald used unlawful force or
violence and that Stan sustained a serious bodily injury as a result
was substantial. Hence, the case essentially came down to
whether McDonald’s punch amounted to a means of force likely
to cause serious bodily injury. And on that front, we have
previously observed that “[n]ot all punches are created equal.”
State v. Martinez,
2015 UT App 193, ¶ 32,
357 P.3d 27. This is
because “the force behind each blow differs.”
Id. Thus, a jury
considering an aggravated assault charge must infer from
something in addition to the fact that a punch was thrown “how
much force a defendant actually used and whether that force was
likely to cause serious bodily injury under the particular facts of
the case.”
Id. And while “the extent and type of injuries the victim
suffered are among the types of evidence probative of that
question,” the fact “[t]hat a victim has suffered a serious bodily
injury does not by itself establish that the defendant used force
likely to cause that injury.”
Id.
¶29 Here, the evidence on this issue included testimony from
three witnesses that McDonald punched an unguarded, slackjawed Stan near the porch and broke his jaw. It also included,
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State v. McDonald
however, the undisputed evidence that McDonald was a
relatively short, lightweight seventeen-year-old, while Stan was a
robust adult several inches taller. Additionally, McDonald’s
recorded testimony was that Stan was not a distracted victim but,
instead, that he was the initial aggressor, appeared drunk, and
was getting in McDonald’s face near McDonald’s car when
McDonald punched him.
¶30 Serious bodily injury—i.e., injury that results in “serious
permanent disfigurement, protracted loss or impairment of the
function of any bodily member or organ, or . . . a substantial risk
of death,” Utah Code § 76-1-101.5(17) 8—is less than a certain result
of a punch to a robust adult’s jaw by a lightweight seventeen-yearold. At the same time, a jury could readily determine the
probability of such an injury to be more than 50% if the punch is
unanticipated and thrown against a slack jaw. But the question
the jury should have been answering was whether in this case
serious bodily injury was, at a minimum, “probable” or
“reasonably expected” to occur. See Colosimo v. Gateway Cmty.
Church, 2018 UT 26, ¶ 29,
424 P.3d 866; Likely, Black’s Law
Dictionary (12th ed. 2024). And the question we must answer is
whether there is a reasonable probability that the verdict would
have been different if Counsel had not created the possibility of
the jury deciding the case based on an understanding of “likely”
meaning a probability as low as 50.1%.
¶31 Our resolution of that question rests largely on the jury’s
note and the backdrop against which it was written. Counsel
asked the jury rhetorically, “What does likely mean?” He then
answered that one possible meaning was a 50.1% probability of
something occurring. He also “argued” that likely should be
interpreted to mean something “way, way higher than that,” but
he provided no concrete counterbalancing definition. And the
8. The statute defining “serious bodily injury” has been
renumbered since the time of McDonald’s charged conduct, but
the definition remains the same. Compare Utah Code § 76-1-
601(15) (2020), with id. § 76-1-101.5(17) (2025).
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State v. McDonald
prosecutor added no clarity when she appeared to assert, as
follows, that something is likely if it is “possible”: “If you sucker
punch someone in the face as hard as you can, is it possible that
their jaw will break? . . . . I would argue, yes. I would argue it’s
likely.” Given the foregoing guidance the jury received, we find it
difficult to read its question about what “weight” to “put on the
word likely” as anything other than an inquiry about the degree
of probability the word is meant to reflect.
¶32 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.
CONCLUSION
¶33 Counsel performed deficiently by misstating the law in a
way that allowed the jury to believe it could convict McDonald
based on a finding of a 50.1% chance that the force he used would
cause serious bodily injury. McDonald was prejudiced by this
deficient performance, particularly in light of the jury’s question
making plain that it was struggling with the “weight” to “put on
the word likely.” We therefore vacate McDonald’s conviction and
remand this matter for additional proceedings consistent with this
opinion.
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