State v. Ames ( 2024 )

2024 UT App 30THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DAVID WAYNE AMES,
Appellant.
Amended Opinion ∗
No. 20220143-CA
Filed March 7, 2024
Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 211800119
Peter Daines, Attorney for Appellant
Sean D. Reyes and Emily Sopp,
Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.
TENNEY, Judge:
¶1 A jury convicted David Ames on three counts of possessing
a dangerous weapon as a restricted person and one count of
possessing drug paraphernalia. Ames now challenges his
convictions on two grounds. First, he argues that he received
ineffective assistance when his counsel failed to object to certain
omissions in the jury instructions regarding the dangerous
weapon counts. And second, he argues that he received
ineffective assistance when his counsel failed to seek a directed
∗ This Amended Opinion replaces the Opinion that was originally
issued on February 23, 2024. In this Amended Opinion, we have
changed footnote 3, but the rest of the Opinion remains
unchanged.
State v. Ames
verdict on the drug paraphernalia count. For the reasons set forth
below, we reverse one of Ames’s dangerous weapon convictions,
but we affirm his remaining convictions.
BACKGROUND 1
The Incident
¶2 In April 2021, Ames lived in the basement unit of a duplex
with his mother (Mother) and nephew (Nephew). Additional
family members, including some children, lived in the duplex’s
upstairs unit. Ames was a Category I restricted person, which
meant that he was prohibited from possessing a “dangerous
weapon” under Utah Code section 76-10-503(2).
¶3 Ames suffers from schizophrenia. He had previously been
prescribed medication for his condition, but he had stopped
taking it “at least a couple of years” before April 2021. In Mother’s
experience, Ames’s symptoms came in cycles. He would do
“really well for a while” and then “kind of fall[] off.” In the bad
phases, Ames didn’t “think accurately” and would become
paranoid. In the days leading up to April 7, 2021, Mother
observed Ames’s symptoms worsening.
¶4 A few days before April 7, Ames brought an axe into his
bedroom. Typically, the axe was stored outside, where he and the
other “boys” in the house would sometimes use it to cut wood.
Ames told Mother that somebody had stolen a different axe of his
and that he needed this axe “for protection.” When Mother tried
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified),
cert. denied, 531 P.3d 730 (Utah 2023).
20220143-CA 2 2024 UT App 30State v. Ames
to substantiate Ames’s claim, however, she found the other axe in
its regular place.
¶5 On the morning of April 7, Mother looked out the window
of the basement unit and saw Ames holding a chain with an
attached padlock. Ames was “throwing [the] chain around and
throwing it against the house and flipping it around over his
head.”
¶6 Mother stepped outside and asked Ames what he was
doing. Ames entered the house and said that “[e]verybody was
messing with him.” Ames added, “I’m about to crack somebody’s
head open[,] and they’re going to be just as dead as the two bodies
under my bed.” With his worsening schizophrenia symptoms in
mind, Mother was worried that Ames might be referring to “one
of . . . the kids at the house or me or somebody” with this
comment. Ames then said, “Come with me. Come here and look
and see and let me show you.” Mother understood this to be an
invitation to go to his room, but she was “concerned that he might
do harm” to her, so she declined. Instead, she decided to call
Ames’s probation officer.
¶7 Mother began walking down the hall to retrieve her purse
so that she could go to her car and make the call outside of Ames’s
hearing. Ames followed her. At some point, Ames picked up a
“little hook” that he sometimes used to deep fry turkeys and
began “swinging it around.” Mother was now “concerned about
being safe.” As the two reached the end of the hallway and
entered the kitchen, Ames turned and threw the hook down the
hall into a closet.
¶8 Mother got into her car, drove “down the road a little
ways,” and then stopped and called Ames’s probation officer. The
probation officer advised her to call 911. After doing so, Mother
returned to the house. Rather than returning to the basement,
Mother went to the upstairs unit to warn the children who lived
20220143-CA 3 2024 UT App 30State v. Ames
there that Ames “wasn’t thinking clear” and that law enforcement
was “going to come talk to him.”
¶9 Mother stayed in the upstairs unit until police officers
arrived, but Nephew went downstairs to “grab a shirt.” When he
approached the door, Ames yelled, “Get the fuck out of the
house.” Nephew entered anyway, replying, “This is my house,
too. I’m just coming downstairs to grab a shirt.” Nephew heard
Ames say “something about breaking [his] windshield,” and he
then heard a sound like “a chain” “jingling” “off of like wood.”
After retrieving a shirt from his bedroom, Nephew looked back to
see what Ames was doing. He saw that officers had arrived and
had stopped Ames at the front door of the unit.
¶10 Officers took statements from Mother and searched the
residence. During that search, officers found the axe in a closet
next to Ames’s room where Ames stored his clothes, the chain and
padlock outside the front door where Ames had thrown it when
the police first arrived, and the turkey hook hanging from the
ceiling fan in Ames’s bedroom.
¶11 While officers were conducting their search, Mother also
gave them a lightbulb that she had taken from the trash can in
Ames’s bedroom a few days earlier. This lightbulb was deformed
in several unusual ways. First, it had “the part that screws into the
light socket broken off” so that there was “a hole going all the way
through.” Second, there was a hole on top of the lightbulb with
“somewhat melted” duct tape placed over it. And third, inside the
lightbulb, there were “burn marks and some type of residue.”
Mother later explained that the other residents of the house
“pretty much stayed out of” Ames’s bedroom. She also explained
that in the days leading up to April 7, she had become concerned
that Ames was using methamphetamine due to his recent
behavioral changes and increasing anger. On the day of his arrest,
Ames tested positive for methamphetamine.
20220143-CA 4 2024 UT App 30State v. Ames
Charges, Trial, and Jury Instructions
¶12 The State charged Ames with a host of mostly possession-
related offenses, but many of the counts were dismissed at a
preliminary hearing. The case later went to trial on six counts:
three counts of possessing a dangerous weapon as a restricted
person, one count of possessing drug paraphernalia, one count of
public intoxication (which was based on the positive
methamphetamine test), and one count of disorderly conduct. The
three dangerous weapon counts were based on the axe, the chain
and padlock, and the turkey hook, respectively, while the drug
paraphernalia count was based on the altered lightbulb that
Mother found in Ames’s trash can.
¶13 At trial, Mother and Nephew testified to the events
described above. One of the responding officers (Officer) testified
to the circumstances surrounding the seizure of various items and
about Ames’s positive drug test.
¶14 In the jury instructions, the jury was informed that for the
possession of a dangerous weapon counts, the term “dangerous
weapon” meant “an object that in the manner of its use or
intended use is capable of causing death or serious bodily injury.”
See Utah Code § 76-10-501(6)(a)(ii). But no instruction informed
the jury what the term “serious bodily injury” meant.
¶15 Ames was convicted on all counts. He now appeals.
ISSUES AND STANDARD OF REVIEW
¶16 Ames argues that his counsel was ineffective for (1) not
requesting a jury instruction defining the term “serious bodily
injury” as it related to the dangerous weapon counts and (2) not
moving for a directed verdict on the drug paraphernalia count.
“An ineffective assistance of counsel claim raised for the first time
20220143-CA 5 2024 UT App 30State v. Ames
on appeal presents a question of law.” State v. Suhail, 2023 UT App
15, ¶ 72, 525 P.3d 550 (quotation simplified), cert. denied, 531 P.3d
730 (Utah 2023).
ANALYSIS
¶17 Ames argues that he received ineffective assistance on two
grounds. To prevail on an ineffective assistance claim, Ames must
show (1) “that counsel’s performance was deficient” and (2) “that
the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Ames must establish both
prongs. See State v. Suhail, 2023 UT App 15, ¶ 122, 525 P.3d 550,
cert. denied, 525 P.3d 730 (Utah 2023). If either is lacking, “the claim
fails” and this court “need not address the other.” State v. Nelson,
2015 UT 62, ¶ 12, 355 P.3d 1031.
¶18 To establish deficient performance, Ames must “overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Strickland, 466
U.S. at 689 (quotation simplified). The focus of this inquiry is
reasonableness, and we “judge the reasonableness of counsel’s
challenged conduct, viewed as of the time of counsel’s conduct.”
State v. Carter, 2023 UT 18, ¶ 45, 535 P.3d 819 (quotation
simplified).
¶19 To establish prejudice, Ames “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Bonds, 2023 UT 1, ¶ 53, 524
P.3d 581 (quotation simplified). When evaluating a prejudice
claim in the ineffective assistance context, “we assess
counterfactual[] scenarios—that is, what would have happened
but for the ineffective assistance”—and “we may do so with the
20220143-CA 6 2024 UT App 30State v. Ames
evidence available to us, even when not part of the original
record.” Ross v. State, 2019 UT 48, ¶ 76, 448 P.3d 1203.
I. Possession of a Dangerous Weapon
¶20 Ames was charged with three counts of possessing a
dangerous weapon—one count each for the axe, the chain and
padlock, and the turkey hook. Under Utah Code section 76-10-
503(2), a “Category I restricted person” who “intentionally or
knowingly purchases, transfers, possesses, uses, or has under the
person’s custody or control . . . a dangerous weapon other than a
firearm is guilty of a third degree felony.” For purposes of this
offense, a “dangerous weapon” is either a “firearm” or “an object
that in the manner of its use or intended use is capable of causing
death or serious bodily injury.” Id. § 76-10-501(6)(a). And “serious
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.” Id. § 76-1-101.5(17).
¶21 The jury was instructed about the elements of the offense
and the definition of “dangerous weapon.” But the jury was not
given an instruction with the definition of “serious bodily injury.”
Ames now claims his attorneys provided ineffective assistance by
not requesting that instruction.
A. Deficient Performance
¶22 “The general rule for jury instructions is that an accurate
instruction upon the basic elements of an offense is essential.”
State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141 (quotation simplified).
“Ordinarily, non-technical words of ordinary meaning should not
be elaborated upon in the instructions.” State v. Ekstrom, 2013 UT
App 271, ¶ 15, 316 P.3d 435 (quotation simplified). “Legal term[s]
of art,” however, generally “ought to be explicitly explained to a
jury.” Bird, 2015 UT 7, ¶ 19 (quotation simplified). In particular, a
20220143-CA 7 2024 UT App 30State v. Ames
definition is required where a term “has a technical legal meaning
so different from its ordinary meaning that the jury, without
further explanation, would misunderstand its import in relation
to the factual circumstances.” Ekstrom, 2013 UT App 271, ¶ 15
(quotation simplified). Failure to object to the absence of a
relevant technical definition constitutes deficient performance
where “correcting the error was sufficiently important under the
circumstances that failure to do so was objectively
unreasonable—i.e., a battle that competent counsel would have
fought.” State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871.
¶23 In the context of Utah’s criminal code, the term “serious
bodily injury” is a legal term of art. As we explained in Ekstrom,
the Utah Code employs a three-tiered system for certain offenses,
and that system turns on particular gradations amongst the kinds
of injuries (or potential injuries) at issue. 2013 UT App 271, ¶ 16.
“Serious bodily injury” sits at the highest tier, followed by
“substantial bodily injury,” followed by “bodily injury.” See id.;
see also Utah Code § 76-1-101.5(4), (17)–(18). But the hierarchical
relationship between these tiers might not be obvious to lay jurors
from the names alone. We can readily imagine uninstructed jurors
disagreeing, for example, about whether “serious bodily injury”
is more severe than “substantial bodily injury.” Indeed, Merriam-
Webster’s Thesaurus indicates that the terms “substantial” and
“serious” are synonyms. 2
¶24 Moreover, the legal definitions of these two terms and the
differences between them are not obvious or intuitive. Under the
statute, “serious 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.” Utah Code § 76-1-101.5(17).
“‘Substantial bodily injury’ means bodily injury, not amounting
2. Serious, Merriam-Webster Thesaurus, https://www.merriam-
webster.com/thesaurus/serious [https://perma.cc/ZA5Z-8RQ5].
20220143-CA 8 2024 UT App 30State v. Ames
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-
101.5(18). As we explained in Ekstrom, “these different categories
of injury are not subject to analysis using ordinary meaning.
Rather, the Utah Legislature has assigned each a technical legal
meaning that requires further explanation.” 2013 UT App 271,
¶ 16 (quotation simplified).
¶25 The question here is whether Ames’s counsel performed
deficiently by not requesting an instruction for the term “serious
bodily injury.” We agree with Ames that it was objectively
unreasonable for counsel to not request such an instruction. Not
only would Ames have been entitled to such an instruction, but
this instruction would have very likely helped his defense.
Without an instruction, jurors who were approaching the
question from common parlance alone could plausibly think that
the term “serious bodily injury” includes injuries that fall far short
of “serious permanent disfigurement, protracted loss or
impairment of the function of any bodily member or organ, or
creat[ing] a substantial risk of death.” Utah Code § 76-1-101.5(17).
By requesting and then receiving such an instruction, counsel
would have ensured that the State was held to its full burden of
proof for these three charged offenses. We accordingly conclude
that this definition was “sufficiently important” that it “was
objectively unreasonable” for counsel not to request an
instruction on it. Ray, 2020 UT 12, ¶ 44.
¶26 The State pushes back, however, arguing that competent
counsel could have reasonably concluded that the statutory
definition would “draw unwanted attention to the kinds of injury
that the metal items were capable of causing but did not in fact
cause here.” In the State’s view, counsel’s strategy may have been
to highlight the items’ use or intended use while minimizing any
focus on the dangerous nature of the objects themselves.
20220143-CA 9 2024 UT App 30State v. Ames
¶27 But even under the relevant statutory definitions, the focus
would have remained on the use or intended use of the objects.
Again, for an object that’s not a firearm, the term “dangerous
weapon” means “an object that in the manner of its use or intended
use is capable of causing death or serious bodily injury.” Utah
Code § 76-10-501(6)(a) (emphasis added). Jurors were given an
instruction setting out these elements, and they were also told to
“[t]hink about each instruction in the context of all the others.” As
a result, if jurors had been given an additional instruction with the
definition of “serious bodily injury,” this added instruction would
not have given jurors license to disregard or minimize the “use or
intended use” component of the elements instruction. Rather, this
added instruction would have properly channeled that inquiry.
And because the statutory definition for “serious bodily injury”
sits at the highest tier of the statutory scheme, this additional
instruction would have likely narrowed the range of injuries that
could have been associated with Ames’s “use or intended use,”
thereby heightening the State’s burden of proof.
¶28 In these circumstances, we conclude that any competent
attorney would have requested this additional instruction. As a
result, we agree with Ames that it was deficient performance for
his counsel not to have done so.
B. Prejudice
¶29 Ames must also show that he was prejudiced. To do this,
he 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, 466 U.S. at 694. And when
assessing such a claim, we may consider the counterfactual
scenario of “what would have happened but for the ineffective
assistance.” Ross, 2019 UT 48, ¶ 76. So viewed, we agree with the
State that Ames was not prejudiced by the deficient performance
relating to either the axe or the chain and padlock. But we agree
with Ames that he was prejudiced with respect to the turkey hook.
20220143-CA 10 2024 UT App 30State v. Ames
1. The Axe
¶30 The question is whether there’s a reasonable probability
that the jury would have concluded that the axe was not “capable
of causing death or serious bodily injury” under its “use or
intended use” if the jury had been given an instruction on the
meaning of “serious bodily injury.” Utah Code §§ 76-1-101.5(17),
76-10-501(6)(a)(ii). We see no such probability. 3
¶31 As is clear from a picture that was introduced as an exhibit
at trial, the object in question was indeed an axe. And the record
shows that it was sharp enough to cut things—Mother testified
that before Ames brought it into the house, this axe had been
outside where the “boys” would use it to cut wood for the family’s
wood burning stove. As for its use or intended use here, Mother
testified that Ames told her that he needed to bring the axe into
the home “for protection.” The most natural reading of this
statement is that Ames intended to use it as a weapon. And when
an axe is used as a weapon, it’s clear enough that it would be
capable of causing “bodily injury that creates or causes serious
3. In the subsection of Ames’s opening brief that addressed the
axe, the subheading began by pointing out that “Ames Did Not
Use the Axe at All on the Date at Issue,” and the first sentence of
that subsection then asserted that “Ames did not touch, hold,
reference, or otherwise use the axe on the day at issue.” In light of
these assertions, we originally understood Ames to be suggesting
that the axe wasn’t actually in his “custody or control” on the day
in question as required by statute. In footnote 3 of our original
opinion, we explained why the evidence showed otherwise. After
we issued the opinion, Ames’s counsel filed a letter under rule
35(b) of the Utah Rules of Appellate Procedure (which sets forth
the procedures for a petition for rehearing) informing us that he
did not intend to make such an argument. With the added clarity
provided by counsel’s letter, we withdraw that analysis as
unnecessary. This opinion is otherwise unchanged.
20220143-CA 11 2024 UT App 30State v. Ames
permanent disfigurement, protracted loss or impairment of the
function of any bodily member or organ, or creates a substantial
risk of death.” Id. § 76-1-101.5(17).
¶32 Ames nevertheless suggests that when he said he needed
the axe “for protection,” this might have just been a reference to a
potential “show of force.” And in Ames’s view, a mere “show of
force” would not satisfy the “serious bodily injury” element. But
this argument would have only worked if the jury had believed
that Ames had no intent to then swing the axe if the “show of
force” failed to ward off any potential threat. There’s little reason
to think that this was so, and even less reason to think that adding
a definition for “serious bodily injury” would have convinced the
jury of this. After all, the jury was instructed that it could only
convict Ames if it believed that the axe’s “use or intended use”
was capable of causing “serious bodily injury.” Although the jury
may not have understood just how much injury was required, the
given instructions did convey the requirement that some form of
physical or “bodily injury” was required. By convicting Ames of
this offense, the jury thus indicated that it did not view the
evidence in the manner that Ames now suggests.
¶33 And there was good reason for this conclusion. Ames
brought the axe into his bedroom during a period in which his
schizophrenia-related symptoms were worsening. Mother
testified that Ames was “kind of fall[ing] off” and wasn’t
“think[ing] accurately,” and she also said that he was “ornery”
and “wan[ted] to fight everything.” Of particular note, on the day
in question, Ames referred to the “two bodies under my bed,” a
comment that indicated that the use of force against people was
on his mind. 4
4. Ames’s counsel did not raise a mental illness related defense
below. Indeed, to the seeming contrary, counsel successfully
(continued…)
20220143-CA 12 2024 UT App 30State v. Ames
¶34 In light of all this, we don’t see a reasonable probability that
there would have been a different outcome on this count if the
jury had been given an added instruction about the definition of
serious bodily injury. Ames therefore has not shown prejudice
relating to the lack of such an instruction.
2. The Chain and Padlock
¶35 For similar reasons, we conclude that Ames was not
prejudiced with respect to the count relating to the chain and
padlock. A picture of the chain and padlock was introduced as an
exhibit below, and it is included in the record on appeal. The
picture confirms that the items were as described—a metal chain
attached to a metal padlock. On the day in question, Ames was
“throwing” the combo “against the house and flipping it around
over his head.” Shortly after Mother observed him doing this,
Ames said that “[e]verybody was messing with him,” after which
he said, “I’m about to crack somebody’s head open[,] and they’re
going to be just as dead as the two bodies under my bed.” Mother
was worried that the latter comment might be directed at one of
“the kids at the house or me or somebody” and that Ames “might
do harm” to someone. Indeed, Mother was worried enough that
she drove away before calling Ames’s probation officer so that
Ames wouldn’t hear the call.
¶36 Swinging a chain and padlock around with enough force
to “crack somebody’s head open” would plainly be an act that’s
capable of causing “serious permanent disfigurement, protracted
loss or impairment of the function of any bodily member or
organ” or creating “a substantial risk of death.” Utah Code § 76-
1-101.5(17). Given this, we see no probability (let alone a
reasonable one) that Ames would have received a more favorable
objected when Mother speculated that Ames “truly” “believe[d]”
his schizophrenic delusions. On appeal, Ames has not argued that
counsel was ineffective for not asserting such a defense.
20220143-CA 13 2024 UT App 30State v. Ames
outcome on this count if the jury had been given an additional
definitions instruction.
3. The Turkey Hook
¶37 The turkey hook, however, stands on different footing.
Unlike an axe or a chain and padlock, this was not the kind of
object that would readily produce serious bodily injury. At trial,
Mother described this turkey hook as “little.” As with the other
objects in question, a photo of this was admitted as an exhibit at
trial, and the photo shows that this hook is indeed “little.” It has
two curved metal prongs stemming out from a single metal spine,
and it appears to be a fairly harmless kitchen utensil.
¶38 It might not take much force to cause serious bodily injury
to another person with an axe or a chain and padlock. But from
the available record, this turkey hook would likely have caused
serious bodily injury to another only if it were used with an
unusual amount of force or in an unusual way. There’s no
evidence, however, that Ames ever used (or intended to use) this
turkey hook with such force or in such a manner. True, Mother
testified that Ames was “swinging it around and stuff” while
walking down the hall, and she likewise worried that “he might
hit me.” But Mother said nothing about whether Ames was using
any particular amount of force, much less that he was using lots
of force. And given that Mother was facing away from Ames for
most of the time that he was wielding the hook, she may not have
been in a position to observe those details anyway.
¶39 When evaluating a prejudice claim in the ineffective
assistance context, we make our counterfactual determination
using “the evidence available to us.” Ross, 2019 UT 48, ¶ 76. Based
on the evidence available to us here—the description of the turkey
hook and the photo of it that was presented at trial—we believe
that there’s a reasonable probability that the jury would have
acquitted Ames on the charge relating to the turkey hook if it had
20220143-CA 14 2024 UT App 30State v. Ames
been informed of just how much injury is required to qualify as a
“serious bodily injury.” We accordingly reverse Ames’s
conviction on this count.
II. Possession of Drug Paraphernalia
¶40 Ames next argues that his attorneys were ineffective for
failing to move for a directed verdict on the drug paraphernalia
charge. We disagree.
¶41 “If the State presents no competent evidence from which a
reasonable jury could find the elements of the relevant crime, then
trial counsel should move for a directed verdict and the failure to
do so would likely constitute deficient performance.” State v. Baer,
2019 UT App 15, ¶ 7, 438 P.3d 979 (quotation simplified). If, on the
other hand, the State presents “some evidence from which a
reasonable jury could find all the elements, trial counsel’s decision
not to raise a futile motion for a directed verdict would not be
deficient performance.” Id. (quotation simplified).
¶42 In relevant part, the State was required to prove that Ames
“possess[ed] with intent to use, drug paraphernalia to . . . inject,
ingest, inhale or otherwise introduce a controlled substance into
the human body.” Utah Code § 58-37a-5(1)(a). The jury could
consider “all” “logically relevant factors” when determining
“whether an object” is drug paraphernalia, including “statements
by an owner or by anyone in control of the object concerning its
use,” “the proximity of the object, in time and space, to a direct
violation of this chapter,” and “the existence of any residue of a
controlled substance on the object.” Id. § 58-37a-4(1), (3), (5).
¶43 Here, there was certainly “some evidence” from which a
reasonable jury could find that Ames possessed this lightbulb and
that it was drug paraphernalia. On the possession front, Mother
said that she found the lightbulb in Ames’s bedroom and that the
other residents of the house “pretty much stayed out of” that
20220143-CA 15 2024 UT App 30State v. Ames
bedroom. Cf. State v. Layman, 1999 UT 79, ¶ 13, 985 P.2d 911(explaining that a fact-finder may find “constructive possession”
of drug paraphernalia where “the accused had both the power
and the intent to exercise dominion and control over the . . .
paraphernalia” (quotation simplified)).
¶44 On the question of whether the lightbulb was drug
paraphernalia, there were several things suggesting that it was.
First, there was the curious condition of the bulb itself. This
lightbulb had “the part that screws into the light socket broken
off” so that there was “a hole going all the way through,” there
was a hole on top of the lightbulb with “somewhat melted” duct
tape placed over it, and there were “burn marks and some type of
residue inside.” Second, Mother testified that Ames’s erratic and
angry behavior in the days leading up to these events made her
“concerned that [he] was using” methamphetamine. And third,
Ames tested positive for methamphetamine on April 7. Taken
together, a jury could reasonably conclude that Ames had used
this altered lightbulb as a pipe with which to smoke
methamphetamine.
¶45 Ames nevertheless points out that Mother took this
lightbulb from his trash sometime before April 7. As a result,
Ames argues that even if he “was high on meth on April 7, it was
not by virtue of the lightbulb.” Ames points to no expert
testimony about the absorption rates for methamphetamine, but
his point is still taken. Even so, however, the fact that Ames
apparently got high that day through some other mechanism
doesn’t mean that he didn’t previously use this lightbulb as a
methamphetamine pipe too. Indeed, the statute states that a jury
should consider “all” “logically relevant factors” when
determining “whether an object is drug paraphernalia.” Utah
Code § 58-37a-4. So here, (1) Mother’s suspicions that Ames was
using methamphetamine, Ames’s erratic behavior, and Ames’s
positive test on April 7, all suggest that Ames had an ongoing
habit of using methamphetamine that extended up through April
20220143-CA 16 2024 UT App 30State v. Ames
7, as opposed to one that was confined to a single use on April 7;
and (2) the particular alterations to the pipe and the presence of
some “residue” inside it suggest that it had previously been used
as some sort of pipe. While this may not have been the most
conclusive of cases, there was at least “some evidence from which
a reasonable jury” could find that this was indeed a
methamphetamine pipe. Baer, 2019 UT App 15, ¶ 7 (quotation
simplified). As a result, we see no basis for concluding that
Ames’s counsel performed deficiently by failing to request a
directed verdict on this count.
CONCLUSION
¶46 On the possession of a dangerous weapon counts, Ames’s
counsel performed deficiently by failing to ask for a jury
instruction that would define “serious bodily injury.” Even so, we
conclude that Ames was not prejudiced with respect to the
convictions that were based on the axe and the chain and padlock.
We do conclude, however, that Ames was prejudiced with respect
to the conviction that was based on the turkey hook, so we reverse
the conviction on that count.
¶47 On the possession of drug paraphernalia count, we
conclude that there was some evidence to support the conviction.
We accordingly reject Ames’s claim that counsel was ineffective
for not moving for a directed verdict on that count.
20220143-CA 17 2024 UT App 30