State v. Kennedy , 789 Utah Adv. Rep. 35 ( 2015 )

2015 UT App 152THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
BENITA KENNEDY,
Defendant and Appellant.
Opinion
No. 20130229-CA
Filed June 18, 2015
Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 121900345
Scott S. Bell, Nicole G. Farrell, and Alan S. Mouritsen,
Attorneys for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
PEARCE, Judge:
¶1 Defendant Benita Kennedy appeals her obstruction-of-
justice conviction. She contends that the jury instructions were
vague, that the court erred in rejecting her proposed mistake-of-
fact instruction, and that she was deprived of her constitutional
right to effective assistance of counsel when her trial counsel
failed to object to the sufficiency of the evidence against her. We
affirm.
BACKGROUND
¶2 We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
State v. Kennedy
understand the issues raised on appeal. State v. Black, 2015 UT
App 30, ¶ 2, 344 P.3d 644.
¶3 Eddie Garza hatched a plan to raise funds to throw his
girlfriend’s son a birthday party by robbing Hiram Torez, a drug
dealer. Garza called Torez, asking to purchase drugs. They
agreed to meet in a parking lot. To help pull off the robbery,
Garza brought his girlfriend’s stepfather (Christian
Lizarzaburu), her brother (Larry Davis), and a friend (Anthony
Corona).
¶4 Kennedy was with Torez at the home of Natalie Jo Irish
when Torez received Garza’s call. Before leaving for the meeting,
Torez loaded his handgun. Kennedy drove Torez to the meeting
point—a church parking lot—in Irish’s SUV.
¶5 Garza’s group arrived first, driving a sedan Garza’s
cousin’s roommate had rented. Garza parked the sedan.
Lizarzaburu and Davis exited the car and hid behind a nearby
building. Garza remained in the driver’s seat. Corona took the
front passenger seat. When Kennedy arrived, she parked the
SUV next to the sedan but facing the opposite direction, so that
the drivers’ doors faced each other about five feet apart.
¶6 Torez got out of the SUV and into the rear seat of the
sedan. Garza, Torez, and Corona began to argue. Lizarzaburu
and Davis ran to the sedan, opened both rear doors, and saw
Garza and Torez fighting. Garza told Corona to shoot Torez.
Corona shot Torez six times; one bullet grazed Garza’s finger.
¶7 Garza, Corona, Lizarzaburu, and Davis then ran from the
sedan. As Garza exited the sedan, Torez pleaded for help. Garza
responded, ‚Sorry, homey.‛ Corona ran to a nearby building.
¶8 Meanwhile, Kennedy remained in the driver’s seat of the
SUV, playing a game on her cell phone. Out of the corner of her
eye, and through the tinted windows of the SUV, she saw flashes
and realized that the situation had soured. She saw three
20130229-CA 2 2015 UT App 152State v. Kennedy
people—Garza, Lizarzaburu, and Davis—approaching the SUV.
According to Lizarzaburu, Kennedy recognized the three, rolled
down her window, called them by name, and told them to get
in.1 However, according to Irish, Kennedy later said she had not
recognized them until after they had entered the SUV.
¶9 Irish also testified that Kennedy told her that, while
driving away, Kennedy had exclaimed something to the effect of
‚Oh my God‛ and ‚[W]hat have you guys done?‛ Her
passengers instructed her to pick up Corona. According to
Lizarzaburu, Kennedy told Corona to ‚get in, get in, get in the
car.‛ After Corona got in, Kennedy asked the group if they had
killed Torez. Corona replied that he had ‚dumped on *Torez]
with the .22.‛
¶10 Kennedy dropped Corona, Lizarzaburu, and Davis off
before taking Garza to Irish’s house. Irish cleaned Garza’s
injured finger with hydrogen peroxide and drove him home.
According to Garza’s cousin, Kennedy suggested to Garza that
he tell the cousin to report the rented sedan as stolen.
Meanwhile, people near the scene of the shooting had heard the
gunshots and called the police. When officers arrived, they
discovered Torez’s body inside the sedan.
¶11 Kennedy was eventually charged with one count of
obstruction of justice. The charge was enhanced to a first-degree
felony because the State alleged Kennedy had acted in concert
with two or more people. At trial, Kennedy primarily argued
that she could not have formed the intent to obstruct justice,
because she did not know a crime had been committed. The
State argued that, given Kennedy’s proximity to the shooting,
she must have known that a crime had occurred.
1. Kennedy told the investigating police officers that she had
known some of her new passengers for years.
20130229-CA 3 2015 UT App 152State v. Kennedy
¶12 At the close of the evidentiary phase, Kennedy asked the
court to give the jury a mistake-of-fact instruction. The gist of the
proffered instruction was that ‚*a+n act committed under an
ignorance or mistake of fact, which disproves the culpable
mental state, is a defense to any prosecution for the crime.‛ The
court declined to give the instruction.
¶13 The court provided two jury instructions relevant to this
appeal. The first (Instruction 15) was a general instruction
concerning mental states:
[T]he prosecution must prove that at the time the
defendant acted, he/she did so with a particular
mental state. For each offense, the law defines what
kind of mental state the defendant had to have, if
any.
For the crime(s) charged in this case, the defendant
must have acted ‚intentionally‛ or ‚knowingly‛ or
recklessly. The prosecution must prove beyond a
reasonable doubt that the defendant acted
intentionally or knowingly or recklessly before the
defendant can be found guilty of the crime
charged.
¶14 Instruction 15 then defined each of the three mental states.
For example, ‚*a+ person engages in conduct intentionally or
with intent or willfully with respect to the nature of his conduct
or to a result of his conduct, when it is his conscious objective or
desire to engage in the conduct or cause the result.‛
¶15 The second instruction at issue is Instruction 19. Unlike
Instruction 15, Instruction 19 referred to the specific defendant
and crime charged:
Before you can convict the defendant, Benita
Kennedy, of the offense of Obstruction Of Justice
as charged in the Information, you must find from
20130229-CA 4 2015 UT App 152State v. Kennedy
all of the evidence and beyond a reasonable doubt
all of the following elements of that offense:
1. That on or about the 10th day of December,
2011, in Salt Lake County, State of Utah, the
defendant, Benita Kennedy;
2. With the intent to hinder, delay, or prevent
the investigation, apprehension, prosecution,
conviction, or punishment of any person regarding
a criminal offense;
3. Did one or more of the following:
(a) altered, destroyed, concealed, or
removed any item or other thing; or
(b) harbored or concealed a person; or
(c) provided a person with transportation,
disguise, or other means of avoiding
discovery or apprehension; or
(d) warned any person of impending
discovery or apprehension; or
(e) provided false information regarding a
suspect, a witness, the conduct constituting
an offense, or any other material aspect of
the investigation; and
4. She knew or should have known the criminal
offense was either criminal homicide, aggravated
robbery, or discharge of a firearm causing serious
bodily injury.
¶16 The jury convicted Kennedy of obstruction of justice.
Kennedy appeals.2
2. The parties filed four letters with the court after briefing was
complete. See generally Utah R. App. P. 24(j) (governing letters of
(continued<)
20130229-CA 5 2015 UT App 152State v. Kennedy
ISSUES AND STANDARDS OF REVIEW
¶17 Kennedy first contends that the jury instructions failed to
require that the jury find that she specifically intended to
obstruct justice. We review a challenge to jury instructions for
correctness. State v. Featherhat, 2011 UT App 154, ¶ 8, 257 P.3d
445.
¶18 Kennedy also contends that the trial court erred by failing
to give the jury her proposed mistake-of-fact instruction. The
issue of whether to instruct the jury on a theory that is supported
by the evidence presents a legal question. State v. Berriel, 2013 UT
19, ¶ 10, 299 P.3d 1133. We review the trial court’s resolution of
that question for correctness. But whether the evidence
introduced at trial supports a particular theory is ‚primarily a
factual question,‛ and we review the trial court’s resolution of it
for an abuse of discretion. Id. ¶¶ 9, 11.
¶19 Finally, Kennedy contends that the evidence against her
was insufficient to sustain a conviction. We will reverse a guilty
(854 P.2d 513, 519 (Utah 1993). Accordingly, we do not
consider the merits of the new arguments raised in the second,
third, and fourth ‚letters of supplemental authority.‛
20130229-CA 6 2015 UT App 152State v. Kennedy
verdict for insufficient evidence only when the evidence is so
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crimes of which he or she was convicted. State v.
Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645.
ANALYSIS
I. Vague Jury Instructions
¶20 Kennedy contends that the jury instructions misled the
jury into believing that they could convict her of obstruction of
justice if they found that she acted knowingly or recklessly,
rather than with the requisite mental state of acting intentionally.
She argues that she preserved this claim for appeal by proposing
a mistake-of-fact instruction. See Wohnoutka v. Kelley, 2014 UT
App 154, ¶ 3, 330 P.3d 762 (explaining our requirement that
issues be preserved for appeal).
¶21 An issue is preserved for appeal when it has been
presented to the trial court in such a way that the trial court had
the opportunity to rule on it. Id. ¶ 4. The appellant must present
the legal basis for her claim to the trial court, not merely the
underlying facts or a tangentially related claim. See id.
¶22 Kennedy’s proposed instruction would have informed the
jury that a defendant’s mistake of fact could disprove the
required mental state. The proposed instruction thus did not
inform the trial court of Kennedy’s apparent belief that
Instruction 15 would mislead the jury into believing that a
mental state of knowledge or recklessness was sufficient to
convict Kennedy. As a result, the proposed instruction did not
raise the legal basis of Kennedy’s contention on appeal in such a
way that the trial court would have had an opportunity to rule
on it. See id. Her challenge to Instruction 15 is therefore
unpreserved.
20130229-CA 7 2015 UT App 152State v. Kennedy
¶23 Kennedy also argues that two exceptions to our
preservation rule apply. Specifically, she asserts that the trial
court plainly erred by giving Instruction 15 and that her trial
counsel’s failure to object to it amounted to ineffective assistance
of counsel. ‚The plain error standard of review requires an
appellant to show the existence of a harmful error that should
have been obvious to the district court.‛ State v. Waterfield, 2014
UT App 67, ¶ 18, 322 P.3d 1194. ‚To succeed on a claim of
ineffective assistance of counsel, a defendant must show that
trial counsel’s performance was deficient and that the defendant
was prejudiced thereby.‛ State v. Hards, 2015 UT App 42, ¶ 18,
345 P.3d 769. In this matter, neither the plain-error nor
ineffective-assistance-of-counsel exceptions to the preservation
rule are available to Kennedy if the jury was instructed properly.
Accordingly, we consider whether the giving of Instruction 15
constitutes error.
¶24 To analyze Instruction 15, we must view it within the
context of the jury instructions as a whole. State v. Maestas, 2012
UT 46, ¶ 148, 299 P.3d 892. If the jury instructions taken as a
whole fairly instruct the jury on the law applicable to the case,
the fact that one of the instructions, standing alone, ‚is not as
accurate as it might have been‛ does not amount to reversible
error. State v. Lucero, 866 P.2d 1, 3 (Utah Ct. App. 1993). Thus, we
will affirm when the combined instructions fairly instruct the
jury on the applicable law. See Maestas, 2012 UT 46, ¶ 148.
¶25 The relevant portion of Instruction 15 states, ‚For the
crime(s) charged in this case, the defendant must have acted
‘intentionally’ or ‘knowingly’ or recklessly. The prosecution
must prove beyond a reasonable doubt that the defendant acted
intentionally or knowingly or recklessly before the defendant
can be found guilty of the crime charged.‛ We agree with
Kennedy that, when read in isolation, these sentences could be
read to instruct the jury that any of the three mental states could
be sufficient to sustain a conviction. However, the instructions as
a whole do not suffer from the same infirmity.
20130229-CA 8 2015 UT App 152State v. Kennedy
¶26 Unlike Instruction 15, which provides definitions that
apply generally, Instruction 19 is specific to the crime of
obstruction of justice. It refers to the jury as ‚you,‛ lays out the
elements of the crime, and includes Kennedy’s name. It also
provides the imperative command, ‚[Y]ou must find from all of
the evidence and beyond a reasonable doubt all of
the . . . elements‛ of obstruction of justice before ‚you can
convict the defendant, Benita Kennedy.‛ Instruction 19 defines
the charge against Kennedy, providing in pertinent part that the
jury could only convict Kennedy if it found that she had acted
‚With the intent to hinder, delay, or prevent the investigation,
apprehension, prosecution, conviction, or punishment of any
person regarding a criminal offense.‛ (Emphasis added.)
¶27 Kennedy asserts that ‚Instruction 19’s unadorned use of
the term ‘intent’ did not correct Instruction 15’s error because it
did nothing to specify what kind of intent was required.‛ She
claims that ‚the jury could have reasonably believed—indeed
should have believed, in light of Instruction 15—that Instruction
19’s use of the term ‘intent’ included specific intent, knowledge,
and recklessness.‛ But Instruction 15 never uses the term
‚intent‛ as a category incorporating the three mental states.
Rather, Instruction 15 explains that three culpable mental states
exist in law—‚intentionally or knowingly or recklessly‛—and
then defines each separately.3
3. We note that the Utah Supreme Court has ‚encourage*d+
courts to take specific care to focus jury instruction language to
apply narrowly to each applicable offense or element, rather
than providing general statements which could be susceptible to
misreading.‛ State v. Hutchings, 2012 UT 50, ¶ 23 n.9, 285 P.3d
1183. This admonition does not absolve us of the responsibility
to review a challenge to a particular jury instruction in light of
the instructions as a whole. See State v. Maestas, 2012 UT 46,
¶ 148, 299 P.3d 892.
20130229-CA 9 2015 UT App 152State v. Kennedy
¶28 ‚Instructions should be read in their entire context and
given meaning in accordance with the ordinary and usual
import of the language as it would be understood by lay jurors.‛
Biswell v. Duncan, 742 P.2d 80, 88 (Utah Ct. App. 1987). Reading
the instructions in context and ascribing the ordinary meaning to
their language, we cannot agree with Kennedy’s assertion that
the jury would have understood Instruction 19’s use of ‚with the
intent‛ to mean knowingly or recklessly.4 Kennedy asks us to
presume that the jury, seeking to understand the phrase ‚with
the intent to hinder,‛ would have skipped past Instruction 15’s
guidance that a person acts ‚with intent‛ ‚with respect to the
nature of his conduct or to the result of his conduct, when it is
his conscious objective or desire to engage in the conduct or
cause the result‛ and that the jury would have focused instead
on the definitions of reckless and knowing. Kennedy asks us to
further believe that the jury would have then taken the unlikely
step of interpreting Instruction 19’s phrase ‚with the intent to
hinder‛ to mean ‚recklessly hinder‛ or ‚knowingly hinder.‛ We
cannot presume that the jury deviated in this manner from the
‚ordinary and usual import of the language.‛ Biswell, 742 P.2d at
88.
¶29 Moreover, other instructions signaled to the jury that
Instruction 15 was not a list of mental states that could be
applied to any crime but definitions of the mental states other
instructions referenced. Instruction 18 explained that the defense
of compulsion was not available if the defendant had
‚intentionally, knowingly, or recklessly placed herself in a
4. Kennedy argues in her reply brief that ‚Instruction 15 wrongly
informed the jury that the mental states of knowledge and
recklessness applied to a specific intent crime‛ and that
‚Instruction 15 still wrongly told the jury to apply knowledge
and recklessness to a specific intent crime.‛ This argument
considers Instruction 15 in isolation. Because jury instructions
must be read as a whole, Instruction 15 cannot fairly be read in
the manner Kennedy urges.
20130229-CA 10 2015 UT App 152State v. Kennedy
situation where it was probable that she would be subjected to
duress.‛ Instruction 22 explained that criminal homicide murder
(one of the offenses underlying the obstruction charge) meant
inter alia ‚intentionally or knowingly causing the death of
another.‛ Likewise, Instruction 23 stated that felony discharge of
a firearm requires a finding that the shooter fired the gun while
‚knowing or having reason to believe that any person‛ might be
endangered thereby. And Instruction 24 explained that
aggravated robbery (another underlying offense) occurs when
an actor ‚intentionally or knowingly‛ uses force against another
while committing a theft.
¶30 We conclude that Kennedy has not demonstrated the
existence of an error, because the jury instructions when read
together could not have misled the jury into believing that the
lesser mental states of ‚knowingly‛ or ‚recklessly‛ were
sufficient to convict Kennedy. She has therefore failed to show
that the trial court plainly erred in instructing the jury or that
trial counsel’s failure to object to Instruction 15 constituted
ineffective assistance of counsel.
II. Mistake-of-Fact Instruction
¶31 Kennedy next contends that the trial court erred by
refusing to give the jury her proposed mistake-of-fact
instruction. She argues that she introduced substantial evidence
in support of her claim that she mistakenly believed that no
crime had been committed and that, absent the proposed
instruction, the jury would not have understood that this belief
negated the required mental state.
¶32 A defendant is entitled to have the jury instructed on the
defense’s theory of the case if there is any basis in the evidence
to support that theory. State v. Berriel, 2013 UT 19, ¶ 12, 299 P.3d
1133. But the defense is not entitled to further instruction
regarding the defense’s theory of the case when the other
instructions already fairly instruct the jury on the law applicable
to that theory. See State v. Lucero, 866 P.2d 1, 3 (Utah Ct. App.
20130229-CA 11 2015 UT App 152State v. Kennedy
1993) (explaining that the fact that one instruction, considered
alone, is not ‚as accurate as it might have been‛ is not reversible
error so long as the instructions as a whole fairly instruct the jury
on the applicable law). Accordingly, in order to demonstrate
reversible error stemming from the trial court’s refusal to give a
proposed instruction, a defendant must show that the
instructions that were given failed to fairly instruct the jury on
the applicable law.
¶33 Kennedy first asserts that the trial court mistakenly
believed that Instructions 15 and 19 correctly instructed the jury
when it denied her proposed instruction. As we explain above,
there was no error in those instructions; accordingly, we do not
further address Kennedy’s first assertion. However, Kennedy
also asserts that her proposed instruction would have headed off
possible misreadings of Instruction 19.
¶34 Kennedy points to the language of the fourth element of
Instruction 19: ‚She knew or should have known the criminal
offense was either criminal homicide, aggravated robbery, or
discharge of a firearm causing serious bodily injury.‛5 She
argues that this language risked ‚allowing the jury to convict
Kennedy if she ‘should have known’—rather than actually
knew—that an underlying crime had been committed.‛ In other
words, the second element required the jury to find Kennedy
acted with intent to hinder the prosecution of a crime. The fourth
5. This portion of the instruction was apparently intended to
comport with State v. Bingham, 575 P.2d 197 (Utah 1978). Bingham
concerned an earlier version of the obstruction-of-justice statute
which provided that obstruction was a class B misdemeanor
unless the defendant knew or should have known that a capital
offense or a first-degree felony had been committed, in which
case obstruction was a second-degree felony. Id. at 198. Here, as
the State points out, the degree of the obstruction charge against
Kennedy required that she knew or should have known that one
of the listed first-degree felonies had been committed.
20130229-CA 12 2015 UT App 152State v. Kennedy
element required the jury to find Kennedy knew or should have
known that the crime that had been committed was one the
instruction listed; Kennedy argues this created confusion that
her proposed mistake-of-fact instruction would have eliminated.
¶35 We disagree. We are constrained to read jury instructions
as a whole and to give the language of the instructions their
ordinary and usual import. Biswell v. Duncan, 742 P.2d 80, 88
(Utah Ct. App. 1987). When given its ordinary and usual
meaning, the language of Instruction 19 required the jury to find
that Kennedy acted with the intent to hinder the wheels of justice
with regard to ‚any person regarding a criminal offense.‛ It then
adds, in a separately numbered paragraph, the additional
requirement that Kennedy knew or should have known that the
crime that person had committed was one of the three listed. To
reach Kennedy’s understanding of the instruction, the jury
would have had to interpret ‚knew or should have known the
criminal offense was *one of three listed+‛ to include ‚knew or
should have known an offense occurred.‛ We cannot presume
that the jury would have made this mistake, because the
ordinary and usual meaning of Instruction 19’s language simply
does not lend itself to such a misreading.
¶36 Kennedy’s proposed mistake-of-fact instruction amounts
to an alternative way of stating the defense’s theory that
Kennedy could not be convicted because she did not know a
crime had been committed. Instruction 19 already instructed the
jury that, to convict Kennedy of obstruction of justice, it had to
find that she acted ‚*w]ith the intent to hinder, delay, or prevent
the investigation, apprehension, prosecution, conviction, or
punishment of any person regarding a criminal offense.‛ The
jury could not have concluded that Kennedy acted with that
intent without finding that she actually knew the criminal
conduct had occurred. Accordingly, Kennedy was not entitled to
an essentially duplicative instruction. See supra ¶ 32. The trial
court’s refusal to give the proposed instruction was therefore
neither a legal error nor an abuse of discretion, because the other
instructions already fairly advised the jury about the significance
20130229-CA 13 2015 UT App 152State v. Kennedy
of Kennedy’s mistake-of-fact claim. See State v. Berriel, 2013 UT
19, ¶¶ 8–9, 299 P.3d 1133; State v. Lucero, 866 P.2d 1, 3. In short,
we conclude that while Kennedy was entitled to have the jury
instructed regarding the import of her mistake-of-fact defense,
Instruction 19 adequately did so. Consequently, the trial court
did not abuse its discretion by declining to further instruct the
jury on the same topic.6
III. Sufficiency of the Evidence
¶37 Kennedy next contends that the evidence the State
presented was insufficient to sustain her conviction for
obstruction of justice. Specifically, she argues that there was no
evidence that she knew beforehand that Torez would be robbed
or killed and that the only evidence of her state of mind after the
shooting was that she believed the shots were directed at her
and that Torez was firing them. On this basis, she asserts that
there was no evidence of her specific intent to obstruct the
course of justice. The State responds that, on appeal, Kennedy
‚argues the evidence from only her point of view‛ and ‚fails to
view it in the light most favorable to the jury’s verdict.‛
¶38 Kennedy’s trial counsel did not preserve this issue by
moving for a directed verdict at trial. Kennedy therefore raises it
as a matter of ineffective assistance of counsel. ‚To succeed on a
6. The State argues that Kennedy’s trial counsel invited any error
on this point by agreeing with the trial court that Instruction 19
was a correct statement of the law. See State v. Geukgeuzian, 2004
UT 16, ¶¶ 9–12, 86 P.3d 742 (explaining the invited-error
doctrine). While counsel did concede that Instruction 19 correctly
stated the law, he did not concede that Instruction 19 fully stated
the law applicable to Kennedy’s defense theory. Indeed, when
the court asked whether he was withdrawing the defense’s
proposed instruction, counsel did not withdraw it and
responded that he preferred that the court rule that Kennedy’s
proposed instruction would not be given to the jury.
20130229-CA 14 2015 UT App 152State v. Kennedy
claim of ineffective assistance of counsel, a defendant must show
that trial counsel’s performance was deficient and that the
defendant was prejudiced thereby.‛ State v. Hards, 2015 UT App
42, ¶ 18, 345 P.3d 769.
¶39 When considering an insufficiency-of-the-evidence claim,
we review the evidence and all reasonable inferences in the light
most favorable to the jury’s verdict. State v. Nielsen, 2014 UT 10,
¶ 46, 326 P.3d 645. We may reverse Kennedy’s conviction only if
we determine that the evidence is so inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt as to whether she committed the crime. Id.
¶40 Kennedy argues that there ‚was no evidence to dispute
that [she] was nothing more than an indifferent bystander up
until the gunshots were fired‛; that ‚*e+ven after the shots were
fired, the only evidence as to Kennedy’s state of mind suggests
Kennedy thought the shots were directed at her and that Torez
was firing them‛; and that ‚*e+ven after Corona told Kennedy he
had shot Torez, Kennedy could still have believed that Torez
was shot in self-defense.‛ She highlights evidence that she had
seen Torez loading his gun and that she had believed Torez was
the one shooting.
¶41 In response, the State highlights several pieces of evidence
it introduced at trial, arguing that the evidence supports a jury
finding that during the drive away from the scene Kennedy
knew a crime had been committed. For example, the State
presented evidence that the parking lot was well-lit, that
Kennedy’s seat in the SUV afforded her a view down into the
sedan, that the two vehicles were about five feet apart, and that
the police officers who arrived at the scene within minutes of the
shooting could ‚clearly‛ see from approximately ten feet away
that Torez had suffered gunshot wounds. The State also
presented evidence that Kennedy admitted to seeing a struggle
inside the sedan and that after the shooting Kennedy exclaimed
words to the effect of ‚Oh my God‛ and ‚*W+hat have you guys
done?‛ And the State elicited testimony from Irish that Kennedy
20130229-CA 15 2015 UT App 152State v. Kennedy
told Irish that she had asked if Torez had been killed and that
Corona had replied that he had ‚dumped on *him+ with the .22.‛
¶42 When the evidence presented is conflicting or disputed,
the trier of fact assesses both the credibility of witnesses and the
weight to be given to particular evidence. State v. Black, 2015 UT
App 30, ¶ 19, 344 P.3d 644. It is also the role of the trier of fact to
then conclude which of the competing theories of the case it
believes. See State v. Cardona-Gueton, 2012 UT App 336, ¶ 11, 291
P.3d 847. This is true even when the trier of fact is confronted
with alternative hypotheses based on the same evidence. See id.
¶43 At trial, the State argued that the evidence showed
beyond a reasonable doubt that Kennedy had committed all the
elements necessary to be convicted of obstruction of justice.
Kennedy argued that she drove away from the scene to avoid
being ‚killed or shot.‛ She claimed that she did not have the
intent to ‚hinder, delay or prevent the investigation‛ and that
her only intent was ‚to stay alive.‛ The jury evidently
determined that the evidence supported the State’s hypothesis of
intent rather than Kennedy’s.
¶44 Kennedy’s contention on appeal is essentially that the jury
could not have properly convicted her, because the evidence
presented did not exclude a reasonable alternative hypothesis of
her intent. ‚*F+raming a claim as a reasonable-alternative-
hypothesis claim presupposes that the alternative hypothesis is
reasonable.‛ Cardona-Gueton, 2012 UT App 336, ¶ 12. ‚But a
finding that a defendant is guilty beyond a reasonable doubt is
necessarily a finding that any alternative hypothesis of
innocence presented at trial was not reasonable under the jury’s
view of the evidence.‛ Id.
¶45 When the jury has reached a verdict based on one of the
competing theories advanced by the parties, we will reverse that
verdict only if the evidence is so insubstantial or inconclusive
that the reasonable inferences drawn from it cannot preclude the
alternative hypothesis presented by the defense. Id. ¶ 11. Here,
20130229-CA 16 2015 UT App 152State v. Kennedy
however, the evidence was not so insubstantial or inconclusive
that the jury’s inferences were unreasonable. The evidence was
sufficient to support the jury’s inferences that Kennedy knew a
crime had been committed, that she knew or should have known
her passengers had committed one of the specified crimes, and
that she intended to hinder, prevent, or delay their arrest by
driving them away from the scene. See State v. Nielsen, 2014 UT
10, ¶ 46, 326 P.3d 645; Cardona-Gueton, 2012 UT App 336, ¶ 12; see
also State v. James, 819 P.2d 781, 789 (Utah 1991) (‚It is well
established that [mental state] can be proven by circumstantial
evidence.‛).
¶46 Kennedy also draws parallels between her case and State
v. Bingham, 575 P.2d 197 (Utah 1978). In Bingham, the Utah
Supreme Court held that the evidence supporting an inference of
intent on the part of an accused getaway driver (Bingham) was
insufficient to sustain his conviction for first-degree-felony
obstruction of justice. Id. at 199. To sustain a conviction, the State
needed to prove that a first-degree felony had been committed
and that Bingham knew of that fact when he drove the
perpetrators away. Id. at 198. Bingham and his friends had
stopped their car and approached a parked truck on foot. Id.After Bingham saw that one of his friends was carrying a pistol,
he turned back towards the car because ‚he wanted no part of
it.‛ Id. As he was doing so, he heard two shots. Id. His two
friends then returned to the car ‚excited and desiring to get
away in a hurry.‛ Id. at 198–99. Before driving them away from
the scene, Bingham bent the car’s license plate so that it could
not be seen. Id. at 198. It later emerged that two men in the truck
had been shot, one fatally.7 Id. at 198.
7. At the time State v. Bingham was argued, neither of Bingham’s
friends had been tried. 575 P.2d 197, 198 (Utah 1978). Thus, it
was not clear whether a first-degree felony had been committed
(as required to sustain Bingham’s first-degree-felony
obstruction-of-justice conviction). One of those friends later
(continued<)
20130229-CA 17 2015 UT App 152State v. Kennedy
¶47 The supreme court noted that there was no ‚direct proof
that the defendant went near the cab of the pickup truck, or that
he saw [the shooting], or that [his friends] told him what had
happened when they hurriedly returned to his car.‛ Id. The court
also noted that there were ‚a number of possibilities as to what
happened and why the firing of shots made *Bingham’s friends+
excited and desiring to get away in a hurry.‛ Id. at 199.
Accordingly, the court concluded that the evidence was not
sufficient to support a finding, beyond a reasonable doubt, that
Bingham knew or should have known that a homicide had been
committed. Id. The Utah Supreme Court therefore reversed
Bingham’s conviction and entered a conviction for class B
misdemeanor obstruction of justice. Id.
¶48 Bingham differs from the case currently before us. In
contrast to Bingham, the State presented evidence that Kennedy
was within several feet of the sedan when Torez was killed
inside it, that the murder scene was visible from outside the
sedan, that Kennedy admitted seeing flashes out of the corner of
her eye during the shooting, and that Kennedy’s passengers
informed her that a shooting had taken place. We cannot
conclude that the evidence as a whole is so inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt as to whether Kennedy had the
intent to obstruct justice when she drove Garza, Corona,
Lizarzaburu, and Davis away from the scene the crime. See
Nielsen, 2014 UT 10, ¶ 46.
¶49 Moreover, in Bingham, the question before the Utah
Supreme Court was whether Bingham knew or should have
known the nature of his friends’ crimes, not whether Bingham
had intended to hinder, prevent, or delay their apprehension.
(607 P.2d 261, 262, 267
(Utah 1980).
20130229-CA 18 2015 UT App 152State v. Kennedy
Indeed, Bingham conceded that the evidence was sufficient to
sustain his conviction for misdemeanor obstruction of justice.
Bingham, 575 P.2d at 198. He argued only that the evidence was
insufficient to support his conviction for felony obstruction of
justice because he was unaware that his friends had committed a
first-degree felony. Id. Because Bingham began with a concession
that the evidence was sufficient to prove at least one form of
obstruction of justice, the case possesses little utility to address
Kennedy’s assertion that the evidence against her was
insufficient to support a conviction for any degree of obstruction
of justice.
¶50 For the foregoing reasons, a motion for directed verdict
based on insufficiency of the evidence would have been fruitless.
Failure to raise futile objections or motions does not constitute
ineffective assistance of counsel. See State v. Hanigan, 2014 UT
App 165, ¶ 4, 331 P.3d 1140; see also State v. Kelley, 2000 UT 41,
¶ 26, 1 P.3d 546. Kennedy has thus not established that the
ineffective-assistance-of-counsel exception to the preservation
rule applies.
CONCLUSION
¶51 Kennedy’s challenge to Instruction 15 was not preserved,
and neither the plain-error nor the ineffective-assistance-of-
counsel exceptions apply. The law underlying Kennedy’s
defense theory was adequately explained by Instruction 19;
consequently, the trial court had the discretion to refuse to give
the jury her proposed mistake-of-fact instruction. Kennedy’s
challenge to the sufficiency of the evidence is unpreserved.
¶52 Affirmed.
20130229-CA 19 2015 UT App 152