State v. Garcia ( 2016 )


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    2016 UT App 59
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    YESHA ANTHONY GARCIA,
    Appellant.
    Opinion
    No. 20140203-CA
    Filed March 31, 2016
    Third District Court, Salt Lake Department
    The Honorable Robin W. Reese
    No. 101904923
    John B. Plimpton and Teresa L. Welch, Attorneys
    for Appellant
    Sean D. Reyes and Karen A. Klucznik, Attorneys
    for Appellee
    JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
    which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.
    CHRISTIANSEN, Judge:
    ¶1     Yesha Anthony Garcia appeals from his convictions for
    attempted murder and possession of a firearm by a restricted
    person. We reverse in part, affirm in part, and remand the case
    for further proceedings consistent with this opinion.
    BACKGROUND
    ¶2     Garcia was charged with two counts of attempted
    murder, two counts of felony discharge of a firearm, one count
    of possession or use of a firearm by a restricted person, and one
    count of possession of drug paraphernalia, all stemming from an
    State v. Garcia
    incident in which Garcia shot at his cousin and his cousin’s
    girlfriend’s daughter as they drove by Garcia’s house.
    ¶3      Garcia, a drug dealer, believed that his cousin (Cousin)
    and Cousin’s girlfriend’s daughter (K.C.) had stolen cocaine
    from him. Garcia went looking for Cousin and ran into Cousin’s
    girlfriend (Girlfriend) and K.C. at an apartment Garcia was
    renting out. Garcia assaulted Girlfriend and K.C. ‚in a rage.‛
    ¶4     Garcia believed that Cousin would ‚seek revenge‛ for the
    assault. The day after the assault on Girlfriend and K.C., Garcia
    waited for Cousin to retaliate. Cousin and K.C. drove by Garcia’s
    house, turned around, and then drove by again. During the
    second pass, Garcia came out of his house and fired four shots at
    Cousin’s vehicle. Neither Cousin nor K.C. were struck by the
    bullets, but one of the bullets hit the vehicle, chipping the paint.
    K.C. testified at trial that they had driven past Garcia’s house to
    obtain Garcia’s address for the purpose of reporting the previous
    day’s assault to the police. In contrast, Garcia testified that he
    believed Cousin was driving by his house to seek revenge and
    that the second time Cousin drove by, Garcia was justified in
    protecting himself and his property from an attack.
    ¶5      At trial, Garcia asserted the affirmative defense of self-
    defense to the charges of attempted murder. The evidence
    presented to support this assertion included the following: (1)
    Garcia believed Cousin would seek revenge for Garcia’s attack
    on Girlfriend and K.C., (2) Cousin had a history of violence and
    Garcia understood Cousin’s history and character, and (3) there
    were long-running feuds between Garcia and Cousin. In
    addition, Detective O’Camb, who interviewed Garcia after his
    arrest, testified at trial that Garcia admitted during the interview
    that he was so worried about revenge from Cousin that he took
    precautionary measures by sending his live-in girlfriend away
    and by not allowing her nieces and nephews over to his house
    on the night that Garcia thought Cousin would attack. Garcia
    believed that Cousin would seek revenge either by throwing a
    Molotov cocktail at his house (which Garcia stated in the police
    20140203-CA                     2                 
    2016 UT App 59
    State v. Garcia
    interview) or by ‚coming for him‛ with a gun (to which he
    testified at trial).
    ¶6     At the end of the State’s case, Garcia’s trial counsel (Trial
    Counsel) moved for a directed verdict. With regard to the charge
    of restricted person in possession of a firearm, Trial Counsel
    argued that the evidence presented at trial was insufficient to
    support a finding that Garcia was an unlawful drug user. Trial
    Counsel argued that no evidence had been presented
    demonstrating that Garcia was ‚currently using‛ drugs as Trial
    Counsel argued was required to be proved under the statute.
    The trial court granted Garcia’s motion on the charge of
    possession of drug paraphernalia, but declined to direct a
    verdict on the remaining charges.
    ¶7     Before the jury instructions were read to the jury, Trial
    Counsel requested a jury instruction on the lesser-included
    offense of attempted manslaughter based on recklessness. The
    State opposed Trial Counsel’s argument but conceded that
    ‚there is some evidence upon which *the State] believe[d] that
    the Defense could argue‛ for a defense of imperfect self-defense
    and that the State ‚*thought+ that *an+ instruction *on imperfect
    self-defense+ should come in.‛ Trial Counsel was then instructed
    to prepare an instruction on the lesser-included offense of
    attempted manslaughter based upon imperfect self-defense. The
    instruction stated, ‚Before you can find the Defendant guilty of
    the lesser-included offense of ATTEMPTED MANSLAUGHTER,
    . . . you must find beyond a reasonable doubt [that the]
    affirmative defense of imperfect-self defense does not apply.‛
    The jury found Garcia guilty of one count of attempted murder,
    both counts of discharge of a firearm, and the count of
    possessing a firearm as a restricted person.1 Garcia appeals.
    1. The jury acquitted Garcia of the charge of attempted murder
    relating to K.C.
    20140203-CA                     3                 
    2016 UT App 59
    State v. Garcia
    ISSUES AND STANDARDS OF REVIEW
    ¶8      Garcia contends that Trial Counsel was ineffective for
    failing to object to a jury instruction ‚that told the jury to convict
    [Garcia] of lesser-included attempted manslaughter only if
    imperfect self-defense does not apply beyond a reasonable
    doubt.‛ ‚An ineffective assistance of counsel claim raised for the
    first time on appeal presents a question of law, which we review
    for correctness.‛ State v. Fowers, 
    2011 UT App 383
    , ¶ 15, 
    265 P.3d 832
     (citation and internal quotation marks omitted).
    ¶9     Garcia also contends that the evidence presented at trial
    was insufficient to sustain his conviction of possession of a
    firearm by a restricted person. ‚When a defendant challenges a
    jury verdict for insufficiency of the evidence, we review the
    evidence and all inferences which may be reasonably drawn
    from it in the light most favorable to the verdict.‛ State v. Noor,
    
    2012 UT App 187
    , ¶ 4, 
    283 P.3d 543
     (citation and internal
    quotation marks omitted). ‚We will reverse the jury’s verdict
    only when the evidence, so viewed, is sufficiently inconclusive
    or inherently improbable that reasonable minds must have
    entertained a reasonable doubt that the defendant committed the
    crime of which he was convicted.‛ 
    Id.
     (citation and internal
    quotation marks omitted). To the extent that this claim is
    unpreserved, Garcia argues that this court should nevertheless
    review it because it is a result of ineffective assistance by his trial
    counsel.
    ANALYSIS
    I. Jury Instruction on Attempted Manslaughter
    ¶10 Garcia contends that Trial Counsel was ineffective for
    submitting and then not objecting to an incorrect jury
    20140203-CA                       4                 
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    State v. Garcia
    instruction.2 We first consider whether             the   attempted-
    manslaughter instruction was erroneous.
    A.     Instruction 26 Misstated the Law.
    ¶11 Garcia contends that Trial Counsel was ineffective for
    failing to object to the instruction on attempted manslaughter
    (Instruction 26). Garcia argues that Instruction 26 was erroneous
    because it ‚incorrectly instructed the jury that it needed to find
    beyond a reasonable doubt that imperfect self-defense did ‘not
    apply’ in order to convict *Garcia+ of attempted manslaughter.‛
    Thus, he argues, ‚the jury was effectively instructed that the
    elements of attempted murder and attempted manslaughter are
    the same.‛
    ¶12 To secure a conviction for attempted murder, the State
    must prove beyond a reasonable doubt that a defendant
    attempted to cause the victim’s death. See, e.g., State v. Garcia,
    
    2001 UT App 19
    , ¶ 11, 
    18 P.3d 1123
    . A defendant is entitled to
    acquittal if there is any basis in the evidence sufficient to create a
    reasonable doubt that he or she committed the offense. See 
    id. ¶ 12
    . If there is any basis in the evidence for the jury to
    reasonably conclude that a defendant acted in self-defense, that
    defendant is entitled to have the jury instructed as to self-
    defense. 
    Id. ¶ 8
    . ‚The defendant’s burden of proof [to receive a
    self-defense instruction] is quite limited‛; he or she ‚need not
    even prove the defense by a mere preponderance.‛ 
    Id.
    (emphasis, brackets, ellipsis, citation, and internal quotation
    marks omitted).
    ¶13 Self-defense may be perfect or imperfect. Perfect self-
    defense bars conviction when a defendant’s use of force was
    2. We note that the submission of an incorrect jury instruction
    likely amounts to waiver of the right to appeal the correctness of
    the jury instruction. However, we understand Garcia’s argument
    to incorporate a contention that any such invited error by
    counsel constitutes ineffective assistance at trial.
    20140203-CA                      5                 
    2016 UT App 59
    State v. Garcia
    legally justified. See Utah Code Ann. § 76-2-402 (LexisNexis
    2012). Imperfect self-defense reduces a murder charge to
    manslaughter, or an attempted murder charge to attempted
    manslaughter, when a defendant acts ‚under a reasonable belief
    that the circumstances provided a legal justification or excuse for
    the conduct although the conduct was not legally justifiable or
    excusable under the existing circumstances.‛ See id. § 76-5-203(4).
    ¶14 Here, Garcia argued to the jury that he had acted in self-
    defense. The jury was therefore given an instruction on self-
    defense (Instruction 20). Instruction 20 correctly informed the
    jury as to the application of both perfect and imperfect self-
    defense. The jury was also given an instruction that further
    explained imperfect self-defense (Instruction 24). These two
    instructions correctly explained the law—that unless the jury
    found beyond a reasonable doubt that Garcia had not acted in
    circumstances amounting to imperfect self-defense, the jury
    could at most convict him of attempted manslaughter. However,
    the instruction submitted by Trial Counsel at the concession of
    the State, Instruction 26, incorrectly stated that the jury should
    convict Garcia of attempted manslaughter—thus giving Garcia
    the benefit of an imperfect self-defense finding—if the jury
    concluded that imperfect self-defense did not apply. In its
    entirety, Instruction 26 stated:
    Before you can find the Defendant guilty of
    the lesser-included offense of ATTEMPTED
    MANSLAUGHTER, under Count I of the
    Information, you must find beyond a reasonable
    doubt each of the following elements:
    1. That on or about June 30, 2010;
    2. In Salt Lake County, State of Utah;
    3. The Defendant, Yesha Anthony Garcia;
    4. Attempted to cause the death of
    [Cousin]; and
    5. The affirmative defense of imperfect-self
    defense does not apply.
    20140203-CA                     6                
    2016 UT App 59
    State v. Garcia
    As a result, the jury instructions regarding imperfect self-defense
    and attempted manslaughter were in direct conflict. Instructions
    20 and 24 both correctly stated that even if the jury found that
    the State had proved all the elements of attempted murder, it
    could convict Garcia only of attempted manslaughter ‚if the
    State has not disproved the affirmative defense of imperfect self-
    defense,‛ whereas Instruction 26 incorrectly stated that in order
    to convict Garcia of attempted manslaughter, the jury had to
    find that the State had disproved the affirmative defense of
    imperfect self-defense. (Emphasis added.)
    ¶15 The fact that Instructions 20 and 24 correctly state the law
    on imperfect self-defense does not remedy or cure Instruction
    26’s error. See State v. Green, 
    6 P.2d 177
    , 183 (Utah 1931)
    (‚‘*W+here instructions are in irreconcilable conflict, or so
    conflicting as to confuse or mislead the jury, the rule requiring
    instructions to be read together has no application.’‛ (citation
    omitted)); State v. Campos, 
    2013 UT App 213
    , ¶ 64, 
    309 P.3d 1160
    (‚*W+e cannot say that the jury was fairly instructed on the
    applicable law‛ where there existed a ‚direct conflict between
    [an] imperfect self-defense instruction and the verdict form.‛);
    see also State v. Lawson, 
    688 P.2d 479
    , 481 (Utah 1984) (noting that
    the jury instructions should be considered together ‚in light of
    the total evidence before the jury‛ to determine whether ‚the
    jury was properly instructed‛). In this case, the only practical
    difference between conviction for attempted murder and for
    attempted manslaughter was whether the affirmative defense of
    imperfect self-defense applied.3 Due to the error in Instruction
    26, the jury was erroneously provided with two slightly different
    yet substantively identical instructions outlining the elements of
    3. If it did apply, the State had failed to meet its burden of
    disproving imperfect self-defense beyond a reasonable doubt
    and Garcia should have been convicted of attempted
    manslaughter. If it did not apply, the State had satisfied that
    burden, and Garcia would have been properly convicted of
    attempted murder.
    20140203-CA                     7                 
    2016 UT App 59
    State v. Garcia
    attempted murder and was given no instruction accurately
    outlining the elements of attempted manslaughter. See State v.
    Johnson, 
    2014 UT App 161
    , ¶ 23, 
    330 P.3d 743
     (stating that the
    instructions listing the elements for murder and the lesser-
    included offense of homicide by assault were identical, and
    therefore the jury was erroneously provided with ‚substantively
    identical instructions outlining the elements of criminal
    homicide and no instruction accurately outlining the elements of
    homicide by assault‛), cert. granted, 
    343 P.3d 708
     (Utah Jan. 9,
    2015).
    ¶16 In short, Instruction 26 misstated the law regarding the
    application of a defense about which the State had conceded
    Garcia was entitled to have the jury instructed.4 Logically,
    entitlement to an instruction is entitlement to a correct
    instruction. And dueling instructions—in conflict as to how the
    jury should consider the defense—cannot satisfy that
    entitlement. See Green, 6 P.2d at 183–84 (‚‘*T+he giving of
    inconsistent instructions is error and sufficient ground for a
    reversal of the judgment, because, after verdict, it cannot be told
    4. On appeal, the State argues that because ‚neither *Garcia+ nor
    the State presented any evidence at trial to support an imperfect
    self-defense claim,‛ Garcia was not entitled to an imperfect self-
    defense instruction. However, the quantum of evidence needed
    to trigger entitlement to a self-defense instruction is ‚quite
    limited.‛ State v. Garcia, 
    2001 UT App 19
    , ¶ 8, 
    18 P.3d 1123
    ; see
    also State v. Torres, 
    619 P.2d 694
    , 695 (Utah 1980) (noting that a
    defendant is entitled to an instruction ‚if there is any reasonable
    basis in the evidence to justify it‛). Although we are skeptical as
    to the viability of an imperfect-self-defense claim under these
    facts, the State conceded at trial that ‚there is some evidence
    upon which *the State+ believe*s+ that the defense could argue‛
    imperfect self-defense and that the State thought ‚that
    instruction should come in.‛ Not only did the State agree to an
    instruction on imperfect self-defense, it suggested that the jury
    be so instructed in the first place.
    20140203-CA                     8                
    2016 UT App 59
    State v. Garcia
    which instruction was followed by the jury, or what influence
    the erroneous instruction had on their deliberations.’‛ (citation
    omitted)). We conclude that the instructions failed to fairly
    instruct the jury on the applicable law because the instructions
    failed to distinguish between the elements of attempted murder
    and the elements of attempted manslaughter and because the
    instructions given to the jury contradicted one another.5
    B.    Trial Counsel Performed Ineffectively by Proposing
    Instruction 26.
    ¶17 Having concluded that the jury instructions failed to
    correctly and fairly state the law, we must next consider whether
    Trial Counsel performed deficiently by proposing an incorrect
    jury instruction.
    ¶18 To succeed on a claim of ineffective assistance of counsel,
    a defendant must show both ‚that counsel’s performance was
    deficient‛ and ‚that the deficient performance prejudiced the
    defense.‛ Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). To
    establish that counsel’s performance was deficient, a defendant
    ‚must show that counsel’s representation fell below an objective
    standard of reasonableness.‛ 
    Id. at 688
    . ‚To establish the
    prejudice prong of an ineffective assistance of counsel claim, the
    defendant must show that a reasonable probability exists that,
    5. We note that Instruction 26 also misstates the burden of proof.
    It states that, to convict Garcia of attempted manslaughter, the
    jury must first find that, among other things, ‚beyond a
    reasonable doubt . . . [t]he affirmative defense of imperfect-self
    defense does not apply.‛ As we have explained, the word ‚not‛
    is in error. But it is also true that once a defendant has raised
    imperfect self-defense, the defendant is entitled to the benefit of
    that defense unless the State has proved beyond a reasonable
    doubt that the defendant’s actions did not amount to imperfect
    self-defense. Thus, the jury need not find that the defense applies
    beyond a reasonable doubt.
    20140203-CA                     9                
    2016 UT App 59
    State v. Garcia
    but for counsel’s error, the result would have been different.‛
    State v. Lee, 
    2014 UT App 4
    , ¶ 13, 
    318 P.3d 1164
     (citation and
    internal quotation marks omitted); accord Strickland, 
    466 U.S. at 694
    .
    ¶19 To show that Trial Counsel’s assistance ‚fell below an
    objective standard of reasonableness,‛ Garcia must ‚overcome
    the presumption that, under the circumstances, the challenged
    action might be considered sound trial strategy.‛ Strickland, 
    466 U.S. at 687
    –89 (citation and internal quotation marks omitted).
    ¶20 Trial Counsel drafted and submitted Instruction 26. The
    State now argues that Garcia’s ‚theory at trial, however, was
    never imperfect self-defense‛ and ‚the evidence *does not]
    support such a defense.‛ The State asserts that, as a result, Trial
    Counsel could have reasonably decided that ‚any imperfect self-
    defense instructions were superfluous and not worthy of great
    attention.‛ However, at trial, the State conceded that the
    evidence presented at trial merited an instruction on imperfect
    self-defense and also stated that ‚that instruction should come
    in.‛ We can see no conceivable tactical basis for Trial Counsel to
    respond to that concession by proposing a legally erroneous
    instruction.6 See Lee, 
    2014 UT App 4
    , ¶ 27.
    ¶21 Trial Counsel should not have submitted Instruction 26 as
    written, because it failed to set forth the actual elements the jury
    needed to find in order to convict Garcia of attempted
    manslaughter. See State v. Liti, 
    2015 UT App 186
    , ¶ 19, 
    355 P.3d 1078
    ; see also Lee, 
    2014 UT App 4
    , ¶ 27 (stating that a trial counsel
    6. The State’s position—that it was a reasonable tactical decision
    for Trial Counsel, after the State conceded that Garcia was
    entitled to an imperfect self-defense instruction, to change
    course, opt to forgo an imperfect-self-defense claim ‚in favor of
    an all-or-nothing self-defense claim,‛ and prepare an inaccurate
    instruction on the elements of attempted manslaughter—is
    simply untenable.
    20140203-CA                     10                 
    2016 UT App 59
    State v. Garcia
    ‚had a duty to object to such a fundamentally flawed instruction
    and to ensure that the jury was properly instructed on the
    correct burden of proof,‛ where an instruction incorrectly placed
    the burden of an affirmative defense on the defendant). We
    conclude that Trial Counsel performed deficiently in this regard.
    ¶22 We next consider whether the error caused prejudice, i.e.,
    whether ‚a reasonable probability exists that, but for counsel’s
    error, the result would have been different.‛ Lee, 
    2014 UT App 4
    ,
    ¶ 13 (citation and internal quotation marks omitted); accord
    Strickland, 
    466 U.S. at 694
    .
    ¶23 The Utah Supreme Court has recognized that ‚an accurate
    instruction upon the basic elements of an offense is essential.
    Failure to so instruct constitutes reversible error. Thus, the
    failure to give this [accurate] instruction can never be harmless
    error.‛ State v. Bluff, 
    2002 UT 66
    , ¶ 26, 
    52 P.3d 1210
     (citations and
    internal quotation marks omitted). Because Instruction 26
    ‚effectively mirrored the elements‛ of the attempted murder
    instruction, ‚the jury may have believed that the two
    instructions required it to make essentially the same factual
    determinations and that it did not matter which offense was
    selected.‛ See State v. Johnson, 
    2014 UT App 161
    , ¶ 27, 
    330 P.3d 743
     (internal quotation marks omitted), cert. granted, 
    343 P.3d 708
    (Utah Jan. 9, 2015). ‚*T+he choice is not a choice when, as
    instructed, there is no real difference between‛ attempted
    murder and attempted manslaughter. See 
    id. ¶24
     The error in Instruction 26 left the jury ‚with the option of
    either ‘convicting the defendant of *the charged offense], or
    acquitting him outright.’‛ See 
    id.
     (alteration in original) (quoting
    Keeble v. United States, 
    412 U.S. 205
    , 213 (1973)). Under the
    instructions given, the jury was precluded from finding Garcia
    guilty of attempted manslaughter. If the jury found that the State
    had failed to disprove Garcia’s imperfect self-defense claim, the
    instructions required it to convict him of both attempted murder
    and attempted manslaughter. Additionally, the instructions as a
    whole directed the jury to convict Garcia of attempted
    manslaughter both if the defense of imperfect self-defense
    20140203-CA                     11                 
    2016 UT App 59
    State v. Garcia
    applied and did not apply. Thus, the jury was caught in a
    Catch-22; in order to convict Garcia of the lesser offense, the jury
    had to find all the elements of the greater offense. But if the jury
    found all the elements of the greater offense, it was required to
    convict Garcia of the greater offense rather than the lesser
    offense. And ‚when it cannot be told which instruction was
    followed by the jury, or what influence the erroneous instruction
    had on their deliberations, the giving of inconsistent instructions
    is error and sufficient ground for a reversal of the judgment.‛
    State v. Campos, 
    2013 UT App 213
    , ¶ 65, 
    309 P.3d 1160
     (citation
    and internal quotation marks omitted). Trial Counsel’s failure to
    object or otherwise provide an accurate instruction on attempted
    manslaughter effectively removed from the jury’s consideration
    the option of convicting Garcia of the lesser-included offense.
    Moreover, because Instruction 26 was in direct conflict with
    Instructions 20 and 24, there can be no confidence that the jury
    understood what impact a determination of imperfect self-
    defense should have had on the verdict.
    ¶25 Odd though it may seem on this record, Trial Counsel, the
    State, and the trial court all agreed that Garcia was entitled to an
    instruction on imperfect self-defense. A defendant is entitled to
    an imperfect self-defense instruction if the evidence provides
    ‚*a+ reasonable basis for the jury to conclude‛ that the defense
    applies. See State v. Garcia, 
    2001 UT App 19
    , ¶ 8, 
    18 P.3d 1123
    . We
    will not now second-guess the assessment made by the parties
    and the trial court that the evidence here did so. And because
    there was a reasonable basis for the jury to conclude that
    imperfect self-defense applied, there is necessarily ‚a reasonable
    probability . . . that, but for counsel’s error, the result would
    have been different.‛ State v. Lee, 
    2014 UT App 4
    , ¶ 13, 
    318 P.3d 1164
     (citation and internal quotation marks omitted).
    ¶26 We hold that Instruction 26 was erroneous, that Trial
    Counsel performed deficiently by introducing the instruction,
    and that Trial Counsel’s deficient performance prejudiced
    20140203-CA                     12                
    2016 UT App 59
    State v. Garcia
    Garcia. Accordingly, we vacate Garcia’s conviction for attempted
    murder.7
    II. Sufficiency of the Evidence
    ¶27 Garcia argues that there was insufficient evidence to
    support his conviction for possession of a firearm by a restricted
    person because his statement that he took ‚a lot of cocaine like
    sometimes‛ was insufficient to support an inference that he was
    an unlawful user of a controlled substance, and thus that he
    could not properly be convicted of possession of a firearm by a
    restricted person.
    A.    Garcia’s Statement was Corroborated.
    ¶28 Garcia first argues that the statement was an
    uncorroborated out-of-court confession, and that ‚*n+o
    defendant can be convicted solely on the basis of an
    uncorroborated out-of-court confession.‛ See State v. Mauchley,
    
    2003 UT 10
    , ¶ 50, 
    67 P.3d 477
    . However, this issue is
    unpreserved. See Wohnoutka v. Kelley, 
    2014 UT App 154
    , ¶¶ 3–4,
    
    330 P.3d 762
     (explaining that issues not brought to the trial
    court’s attention are generally considered waived). While Garcia
    filed a motion for a directed verdict at the close of the State’s
    case, he argued only that he could not be convicted of this charge
    7. Garcia also contends that Trial Counsel performed deficiently
    by failing to request a jury instruction on arson and aggravated
    arson. Garcia argues that arson and aggravated arson are
    forcible felonies and that he was entitled to use deadly force to
    defend against arson or aggravated arson. See Utah Code Ann.
    § 76-2-402(1)(a), (4)(a) (LexisNexis 2012). Because this contention
    seeks vacatur of Garcia’s attempted-murder conviction and we
    have vacated that conviction on other grounds, we need not
    address it. Similarly, we need not address Garcia’s cumulative-
    error claim, which also sought vacatur of the attempted-murder
    conviction.
    20140203-CA                    13                   
    2016 UT App 59
    State v. Garcia
    because he was not actually under the influence of cocaine at the
    relevant time, and thus was not ‚an unlawful user‛ of a
    controlled substance.
    ¶29 Garcia also raises this argument under the ineffective
    assistance of counsel exception to the preservation rule. To
    demonstrate ineffective assistance of counsel, Garcia must show
    that Trial Counsel’s performance was deficient and that this
    deficient performance prejudiced his defense. Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984). Garcia asserts that Trial
    Counsel’s performance was deficient because ‚there was no
    ‘conceivable tactical basis for *Trial Counsel’s+ failure to move
    for a directed verdict’‛ on this argument. Because both deficient
    performance and prejudice are requisite elements of a claim of
    ineffective assistance of counsel, failure to prove either element
    necessarily defeats the claim. 
    Id. at 697
    ; State v. Hards, 
    2015 UT App 42
    , ¶ 18, 
    345 P.3d 769
    .
    ¶30 Under Mauchley, ‚a defendant may not be convicted
    unless there exists independent evidence of the crime, a
    corroborated confession, or a combination of both.‛8 Mauchley,
    
    2003 UT 10
    , ¶ 61. ‚*C+orroboration of the confession itself is
    sufficient to sustain a conviction.‛ 
    Id. ¶ 76
    . ‚*O+ne available
    mode of corroboration is for the independent evidence to bolster
    8. State v. Mauchley, 
    2003 UT 10
    , 
    67 P.3d 477
    , dealt with whether
    a confession could be admitted into evidence, not whether a
    confession is sufficient evidence for conviction. Garcia filed a
    motion challenging the admissibility of his confession based on
    an alleged lack of Miranda warnings, which the court denied.
    Thus, a directed-verdict motion based on that aspect of Mauchley
    would likely have been futile, because the confession had
    already been admitted. See State v. Kelley, 
    2000 UT 41
    , ¶ 26, 
    1 P.3d 546
     (concluding that trial counsel was not ineffective for
    failing to raise futile objections or arguments). But a motion to
    dismiss based on a Mauchley challenge to the trustworthiness of
    the confession may not have been futile.
    20140203-CA                    14               
    2016 UT App 59
    State v. Garcia
    the confession itself . . . .‛ Smith v. United States, 
    348 U.S. 147
    , 156
    (1954). The State may establish a confession’s trustworthiness
    ‚with other evidence typically used to bolster the credibility and
    reliability of an out-of-court statement.‛ Mauchley, 
    2003 UT 10
    ,
    ¶ 51. ‚Factors used in other areas of the law to bolster the
    credibility and reliability of an out-of-court statement include the
    following: evidence as to the spontaneity of the statement; the
    absence of deception, trick, threats, or promises to obtain the
    statement; the defendant’s positive physical and mental
    condition, including age, education, and experience; and the
    presence of an attorney when the statement is given.‛ 
    Id. ¶ 52
    .
    ¶31 Here, Garcia’s statement that he ‚[did] a lot of cocaine like
    sometimes‛ was spontaneous. When Garcia made this statement
    regarding his drug use during the interview, Garcia and
    Detective O’Camb were discussing what Garcia was doing in his
    house the night before the shooting. Garcia told Detective
    O’Camb that he carried his gun on his person throughout his
    house that night because he was worried Cousin would come by
    his house, but also that he would do the same thing ‚when *he
    is+ off cocaine.‛ Detective O’Camb responded, ‚Yeah. You’re not
    normally like that,‛ but Garcia diverted the conversation back to
    his drug use. Garcia stated, ‚Yeah, when I’m off cocaine, too, I
    get real paranoid, I always think the cops gonna run in my shit.
    So, uh, yeah, ‘cause I do a lot of cocaine like sometimes.‛ And
    when Detective O’Camb later questioned Garcia about his drug
    use as a drug dealer, stating to Garcia that ‚it’s odd that you use,
    because a lot of people that really got skills don’t use at all,‛
    Garcia responded, ‚Yeah, nah, it’s just, my heart and soul is into
    this shit, man.‛ These facts and circumstances surrounding
    Garcia’s drug use also corroborate the confession. Garcia
    admitted that he was a drug dealer, that he dealt cocaine, and
    that he believed Cousin had stolen cocaine from him. He also
    stated that he becomes paranoid when he is not using cocaine.
    Garcia has not challenged this corroborating evidence. Garcia
    also has not stated that he was deceived or threatened in any
    way into making these statements, other than an argument in his
    reply brief in which he argues generally that the circumstances
    20140203-CA                       15                 
    2016 UT App 59
    State v. Garcia
    in videos are not always what they appear to be (citing terrorists’
    propaganda videos of hostages).
    ¶32 Additionally, if a confession is trustworthy with respect to
    one charge, it is strong evidence that the confession is
    trustworthy with respect to other charges. United States v.
    Singleterry, 
    29 F.3d 733
    , 737–38 (1st Cir. 1994). Garcia suggests
    that the Singleterry rule only applies to ‚closely connected‛
    charges, but he offers no case support that limits Singleterry in
    such a way.9
    ¶33 Here, Garcia’s confession was trustworthy as to the other
    charges. For instance, Garcia also confessed to shooting at
    Cousin. Garcia stated that Cousin pulled up to his house and
    was ‚just like looking, like mad-dogging and shit.‛ Garcia stated
    that he then grabbed his gun and shot until he had emptied the
    clip of his gun.10 Thus, Trial Counsel could reasonably have
    determined that moving for a directed verdict on the unlawful
    possession charge would have been futile because the cocaine-
    use portion of Garcia’s confession was corroborated by the
    consistency of the remainder of the confession regarding his
    unlawful discharge of a weapon and Garcia’s testimony at trial
    that he had a gun and was protecting himself from Cousin.
    Failing to make a futile motion is not deficient performance.
    Thus, Garcia has failed to demonstrate that Trial Counsel
    performed deficiently in this regard.
    9. We note the reasonably close connection between the charges
    of unlawfully possessing a firearm and unlawfully discharging a
    weapon.
    10. Garcia stated that he emptied the clip of the gun, but he also
    stated in the interview that the gun was a revolver. This
    discrepancy does not call the general trustworthiness of his
    confession into doubt.
    20140203-CA                    16                
    2016 UT App 59
    State v. Garcia
    B.    The Statute is Not Unconstitutionally Vague.
    ¶34 Garcia next argues that the phrase ‚unlawful user‛ is
    unconstitutionally vague, and should be construed to mean ‚one
    who is actually using a controlled substance at the time he or she
    is in possession of the firearm.‛ This argument is unpreserved
    because Trial Counsel did not raise a constitutional argument at
    trial, and thus, Garcia claims that Trial Counsel was ineffective
    for not raising such an argument.11 See State v. Kennedy, 
    2015 UT App 152
    , ¶ 21, 
    354 P.3d 775
     (‚The appellant must present the
    legal basis for her claim to the trial court, not merely the
    underlying facts or a tangentially related claim.‛). In support of
    his argument that Trial Counsel erred by failing to raise this
    argument to the trial court, Garcia claims that ‚federal circuits
    ‘generally agree’ that a broad interpretation of ‘unlawful user’ in
    a federal statute materially identical to *the Utah statute+ ‘runs
    the risk of being unconstitutionally vague.’‛ In response, the
    State cites cases in which the term ‚unlawful user‛ applies so
    long as there is a temporal nexus between the drug use and the
    firearm possession.
    ¶35 Garcia has not demonstrated that he was prejudiced by
    Trial Counsel’s failure to argue that the statute’s use of the term
    ‚unlawful user‛ should be interpreted as ‚current user‛ to avoid
    constitutional risks, such as ‚rendering possession by an
    ‘unlawful user’ a status crime,‛ being void for vagueness, and
    preventing a class of people from their right to bear arms. Garcia
    points to no cases that limit ‚unlawful user‛ to people actually
    under the influence of a drug at the time they possess a firearm.
    And he neglects to cite to any cases in which such an argument
    was successfully made to a court. As noted by the State, ‚every
    court to consider [the] federal statute [regarding restricted
    persons and unlawful users] has affirmed its constitutionality.‛
    11. Trial Counsel moved for a directed verdict based on his belief
    that ‚unlawful user‛ meant ‚current user,‛ but he did not raise
    any constitutional basis for this argument.
    20140203-CA                    17                
    2016 UT App 59
    State v. Garcia
    (Citation and internal quotation marks omitted.) Thus, Garcia
    has failed to adequately support his claim that Trial Counsel’s
    failure to invoke these legal theories ‚would obligate the trial
    court to grant‛ the motion for a directed verdict.
    ¶36 Alternatively, Garcia appears to claim that Trial Counsel
    was ineffective for failing to argue that the term ‚unlawful user‛
    should ‚mean one who engages in the regular use of a controlled
    substance over a period of time proximate to or
    contemporaneous with the possession of the firearm.‛ Garcia has
    failed to cite any controlling precedent to support his claim that
    Trial Counsel was deficient in failing to advance this definition.
    ¶37 The United States Court of Appeals for the Fifth Circuit
    has noted that cases discussing ‚unlawful user‛ tend to focus on
    the regularity of drug use and temporal proximity between the
    drug use and the firearm possession. United States v. Patterson,
    
    431 F.3d 832
    , 838–39 (5th Cir. 2005). But even if we were to adopt
    the narrower definition advocated by Garcia, the trial court’s
    denial of Trial Counsel’s motion for a directed verdict mirrors
    that definition.
    ¶38 Garcia confessed, ‚I do a lot of cocaine like sometimes.‛
    (Emphases added.) When explaining his drug use, Garcia stated
    that his ‚heart and soul is into this shit, man.‛ He confirmed that
    he began using cocaine in 2006 and admitted that he was a
    dealer of cocaine. These statements suggest that he had not given
    up his cocaine use and that he had used cocaine recently and
    with some degree of regularity (given that his statements were
    about present or recent drug use, he did not say that he had
    stopped using, and he confirmed that he was a drug dealer who
    also used drugs). In denying the motion for a directed verdict,
    the trial court stated that ‚*Garcia’s+ admissions that he was a
    user in context as to why he had the gun nearby would be
    sufficient . . . to allow the jury, if they chose to believe that
    evidence, to find him guilty.‛ Therefore, the confession satisfies
    the requirements discussed by Patterson, limiting the term
    ‚unlawful user‛ to ensure its compliance with constitutional
    protections.
    20140203-CA                    18                
    2016 UT App 59
    State v. Garcia
    ¶39 We conclude that Garcia did not receive ineffective
    assistance of counsel with regard to his conviction for possessing
    a firearm as a restricted person.
    CONCLUSION
    ¶40 We vacate Garcia’s conviction for attempted murder and
    affirm his conviction for restricted person in possession of a
    firearm. We remand to the district court for further proceedings
    consistent with this opinion.
    20140203-CA                    19               
    2016 UT App 59
                                

Document Info

Docket Number: 20140203-CA

Judges: Christiansen, Orme, Toomey

Filed Date: 3/31/2016

Precedential Status: Precedential

Modified Date: 10/19/2024