State v. Fedorowicz
In State v. Fedorowicz, 2002 UT 67, 52 P.3d 1194, the Court declined to apply the Shondel doctrine (State v. Shondel) to Mr. Fedorowicz's claim that the trial court erred in instructing the jury with respect to both felony murder, a first degree felony, and child abuse homicide, a third degree felony, instead of just the lesser charge.
The exercise required an exquisitely detailed dissection of the plain language of the two statutes to determine whether the crime of felony murder contained a single element that would sufficiently distinguish it from the crime of child abuse homicide.
Our efforts yielded a distinction that we found to be adequate to keep the two statutes from being "wholly duplicative." Id. P 58.
Felony murder predicated on child abuse required the victim to have sustained "serious physical injury," while child abuse homicide required the victim to have suffered only "physical injury." Id.
The legislative inclusion of "serious" was enough, in our view, to make the two crimes "completely dissimilar" and to secure the constitutionality of Mr. Fedorowicz's felony murder conviction. Id.