State v. Wright , 442 P.3d 1185 ( 2019 )


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    2019 UT App 66
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    BLAKE REES WRIGHT,
    Appellant.
    Opinion
    No. 20150153-CA
    Filed April 25, 2019
    Fourth District Court, Nephi Department
    The Honorable James R. Taylor
    No. 111600138
    Nathan E. Burdsal, Robert C. Avery, and
    Hutch U. Fale, Attorneys for Appellant
    Sean D. Reyes and John J. Nielsen, Attorneys
    for Appellee
    JUDGE GREGORY K. ORME authored this Opinion, in which
    JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.
    ORME, Judge:
    ¶1     Defendant Blake Rees Wright challenges his guilty plea to
    aggravated kidnapping, a first-degree felony; attempted murder
    and aggravated elder abuse, both second-degree felonies; and
    obstruction of justice, witness retaliation, possession of
    ammunition in a correctional facility, unlawful discharge of a
    firearm, and possession of a firearm by a restricted person, all
    third-degree felonies. Defendant argues, among other things,
    that his trial counsel provided ineffective assistance. Apart from
    his aggravated kidnapping conviction, which we vacate and in
    connection with which we remand for further proceedings, we
    affirm his convictions and deny his request to withdraw his
    guilty pleas.
    State v. Wright
    BACKGROUND
    The Assault
    ¶2     Defendant, who lived with his mother (Mother),
    instigated an argument with her about whether she had been
    interfering with his prescription medications and telling other
    people that he, a convicted felon, had access to a gun. Defendant
    recorded the altercation with a video camera, apparently for the
    purpose of making a video record of her “lies.”
    ¶3     A few minutes into the argument, Mother stood up,
    intending to leave, but Defendant pushed her back into her
    chair. Mother and Defendant continued to argue, and Defendant
    told Mother that he “could fuckin’ put a bullet in [her] fuckin’
    head and not even think twice about it.” Mother admitted that
    she had told someone that he had a gun. She then shoved
    Defendant, knocking the video camera out of his hands.
    Although Defendant and Mother are no longer visible on the
    recording, a subsequent assault can be heard in the background.
    ¶4      Mother testified that Defendant hit her “hard” with “both
    hands” for what “felt like forever.” He also put her in a headlock
    and squeezed her until it “felt like something was breaking.”
    After releasing Mother, Defendant took a piece of glass from a
    coffee table that had been broken during the attack and
    brandished it over Mother, making her think it was “all over.” In
    the video recording, Defendant is heard saying, “You, fuckin’,
    you oughta get your fuckin’ hands off you old bitch or I’ll
    fuckin’ kill you, to death. I’ll choke you to death.” As Mother
    pleads with Defendant to stop, he tells her he is going to “beat
    [her] to death,” “kill [her],” and that the beating was “just a taste
    [of] what [she was] going to get.” Defendant then stops the
    recording.
    ¶5    For a few hours, Defendant left Mother alone and the two
    were not together. But once again Defendant became upset with
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    Mother for interfering with his prescription medications.
    Defendant then got a gun, pointed it at her head and ordered her
    to call 911. He told her he was “not kidding around” and he
    “could shoot [her] leg,” and then he shot two bullets into the
    floor. Subsequently, Defendant grabbed Mother by the legs and
    pulled her out of the chair. She fell to the floor and “could hear”
    her ribs cracking. Mother eventually got back on the chair and
    stayed there “because it was so painful that [she] couldn’t do
    anything else.”
    ¶6     Unable to tolerate the pain anymore, Mother asked
    Defendant to open the garage door so that she could go to the
    hospital. She asked him three times to open the garage door
    before he complied with her request. Before Mother left,
    Defendant asked her what she was going to say at the hospital,
    and she told him that she would tell the hospital staff she fell off
    the cement steps.
    ¶7      Defendant followed Mother to the hospital. Approaching
    her in the emergency room area, he lifted up his coat “to show
    [her] that he had [a] gun.” When the emergency room doctor
    (First Doctor) examined Mother, she told him that she had fallen
    off the front porch steps. First Doctor recommended that Mother
    stay the night, but Mother was worried that Defendant would
    hurt other people, so she returned home.
    ¶8     The next day, when her daughter picked her up, Mother
    told her that Defendant had attacked and “pistol whipped” her.
    After a few days at her daughter’s home, Mother was still in a lot
    of pain and returned to the hospital. A doctor (Second Doctor)
    examined her and determined that she had a subdural
    hematoma and edema—bleeding between the brain and the
    skull and swelling of the brain. Another doctor confirmed the
    diagnosis with an MRI that showed a subdural hematoma and
    “[shear] injury” to Mother’s brain. Mother also had a bruised
    spleen and four broken ribs.
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    ¶9      Officers arrested Defendant. Defendant, smiling at an
    officer said, “You guys didn’t even find the gun, did you?” But
    officers found a fully loaded .22 caliber gun hidden at the house,
    and Defendant unsuccessfully tried to dispose of .22 caliber
    ammunition at the jail. Defendant’s sister later found the video
    recording and turned it over to the police. Defendant was
    charged as noted above, see supra ¶ 1, and the case proceeded to
    trial.
    The Trial
    ¶10 On the first day of trial, Defendant requested a
    continuance, seeking new counsel. The district court, unaware of
    any conflict between Defendant and his counsel (Trial Counsel),
    asked Trial Counsel about the conflict. Trial Counsel replied that
    it would be better for “additional counsel [to] come in the case,”
    based on the “complexity of the case” and given the number of
    counts and his “relationship with [Defendant].” Trial Counsel
    indicated that Defendant “want[ed him] to continue to work on
    the case” and appreciated counsel’s efforts, but Defendant
    wanted “an attorney of his own that he’s selected to join in and
    be lead counsel.” The State pointed out that Trial Counsel was a
    “very experienced attorney” who had “tried a number of very
    difficult cases” that were “much more complicated and much
    more serious than” Defendant’s case, and he had the necessary
    skill and experience to try the case on his own. The court denied
    the continuance request, stating that Defendant should have
    made the request “months ago” instead of on the first day of
    trial. It also denied Trial Counsel’s request for additional
    counsel.
    ¶11 Three days into the trial, and after having viewed
    the video recording made by Defendant, the jury heard
    detailed testimony from Mother about the assault. After
    Mother’s testimony, Trial Counsel requested additional time
    during the break. After returning from this break, the parties
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    announced that Defendant would plead guilty as charged, but
    the State would amend the aggravated kidnapping count by
    removing the serious bodily injury allegation which would
    reduce the maximum sentence from life without parole to 15
    years to life. See Utah Code Ann. § 76-5-302(3)(a)‒(b) (LexisNexis
    2017).
    ¶12 Defendant signed a plea statement, listing the rights
    that he was waiving, including his right to a trial at which
    the State would have “the burden of proving, beyond a
    reasonable doubt, what are called ‘elements’ of the offense (or
    offenses) charged.” The district court conducted a plea colloquy
    to ensure that Defendant understood his guilty plea. During the
    colloquy, Defendant acknowledged that he had read and
    understood the plea agreement and the rights he was waiving,
    had no questions about it and required no further explanation of
    it, and was “acting freely and voluntarily” in entering his guilty
    plea.
    The Plea Withdrawal Hearing
    ¶13 A few days later, Defendant wrote a letter to the district
    court seeking to withdraw his guilty plea. Although the pro se
    motion was filed before sentencing, the district court failed to
    address it and proceeded with sentencing. Defendant appealed
    and this court summarily reversed Defendant’s sentence and
    remanded the matter to the district court to address the motion.
    See id. § 77-13-6(2)(b).
    ¶14 On remand, Defendant was appointed new counsel and
    granted leave to amend his motion to withdraw his guilty plea.
    In his amended motion, Defendant argued that his plea was not
    made knowingly or voluntarily and that Trial Counsel provided
    ineffective assistance. In an evidentiary hearing on these issues,
    Defendant testified that he pled guilty because Trial Counsel
    was unprepared for trial and he felt forced to take the plea deal.
    But Trial Counsel contradicted this testimony, stating that he
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    had met with Defendant multiple times, interviewed the
    witnesses, visited the crime scene, and reviewed the evidence.
    Trial Counsel further testified that, after Mother testified at trial,
    Defendant did not want her to be cross-examined because “she’d
    been through enough” and Defendant had seen “the entire jury
    was in tears.” Defendant also told Trial Counsel that he was
    “going to be convicted,” a conclusion with which Trial Counsel
    apparently did not disagree. Trial Counsel then asked Defendant
    if he wanted to seek a plea deal, and Defendant told him that he
    did.
    ¶15 The district court determined that Trial Counsel’s
    testimony was more consistent with the record and that
    Defendant’s testimony was self-serving and “was contradicted
    by the record.” Based on that determination, the court found that
    Defendant was the one who sought a plea agreement, not Trial
    Counsel, and that he was not “coerced or compelled to accept a
    plea bargain.” It also concluded that the record established that
    Defendant entered his plea knowingly and voluntarily and that
    Trial Counsel’s performance “was not deficient” nor prejudicial
    to Defendant.
    ¶16 Defendant was then sentenced to several prison terms,
    some running consecutively and some running concurrently.
    Defendant appeals.
    ISSUES AND STANDARDS OF REVIEW
    ¶17 Defendant raises two arguments on appeal. He first
    argues that Trial Counsel provided ineffective assistance of
    counsel in several ways, rendering his plea unknowing and
    involuntary. With regard to those issues upon which the district
    court found facts at the plea withdrawal hearing conducted at
    our direction on remand following Defendant’s initial appeal,
    our decision is informed by the court’s findings of fact. See State
    v. King, 
    2017 UT App 43
    , ¶ 13, 
    392 P.3d 997
    . For those issues
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    upon which the district court did not find facts, we review the
    ineffectiveness issues for correctness, examining “whether the
    defendant was deprived of the effective assistance of counsel as
    a matter of law.” See Layton City v. Carr, 
    2014 UT App 227
    , ¶ 6,
    
    336 P.3d 587
    . 1
    ¶18 Defendant also contends that cumulative errors made by
    Trial Counsel allow the withdrawal of his guilty plea. “Under
    the cumulative error doctrine, we will reverse only if the
    cumulative effect of the several errors undermines our
    confidence that a fair [proceeding] was had.” State v. Kohl, 
    2000 UT 35
    , ¶ 25, 
    999 P.2d 7
     (quotation simplified).
    ANALYSIS
    I. Ineffective Assistance of Counsel
    ¶19 Defendant contends that his plea was unknowing and
    involuntary because he either had to “plead guilty to crimes he
    did not commit but have the chance of parole” or “continue with
    trial and assuredly be convicted without the possibility of
    parole.” He essentially argues that Trial Counsel provided such
    deficient legal representation that Defendant had no choice but
    to plead guilty to the crimes for which he was charged, raising
    1. In relation to one of his ineffective assistance claims,
    Defendant also argues that the district court failed to apply the
    doctrine of merger to his aggravated kidnapping charge.
    Because we reverse and vacate Defendant’s aggravated
    kidnapping conviction, the issue is moot. There was a distinct
    possibility of merger under the common-law merger test set
    forth in State v. Finlayson, 
    2000 UT 10
    , 
    994 P.2d 1243
    , abrogated by
    State v. Wilder, 
    2018 UT 17
    , 
    420 P.3d 1064
    , but in any event,
    Defendant waived that argument by pleading guilty to the
    aggravated kidnapping charge.
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    six instances where Trial Counsel provided such deficient
    representation and one instance in which his plea withdrawal
    counsel did. 2
    ¶20 To prevail on a claim of ineffective assistance of counsel, a
    defendant must show “that counsel’s performance was
    deficient,” and “that the deficient performance prejudiced the
    defense.” Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). In the
    context of a guilty plea, “in order to satisfy the ‘prejudice’
    requirement, the defendant must show that there is a reasonable
    probability that, but for counsel’s errors, he would not have
    pleaded guilty and would have insisted on going to trial.” 3 Hill
    v. Lockhart, 
    474 U.S. 52
    , 59 (1985). And allegations of ineffective
    assistance “cannot be a speculative matter” and must be firmly
    rooted in the record. Nicholls v. State, 
    2009 UT 12
    , ¶ 36, 
    203 P.3d 976
     (quotation simplified).
    A.     Failure to Obtain Independent Medical Experts
    ¶21 Defendant contends that Trial Counsel failed to “follow
    up with independent medical analysis” or call independent
    2. Upon Defendant’s request, the district court appointed new
    counsel to represent Defendant in the plea withdrawal hearing.
    He is again represented by new attorneys on the current appeal.
    3. There is no requirement that he additionally show he would
    have received a more favorable outcome at trial. Compare Hill v.
    Lockhart, 
    474 U.S. 52
    , 59 (1985) (requiring, in the context of a
    guilty plea, that a defendant show he “would not have pleaded
    guilty and would have insisted on going to trial”), with Strickland
    v. Washington, 
    466 U.S. 668
    , 694 (1984) (requiring a defendant, in
    the context of a flawed trial or other proceeding, to demonstrate
    that “but for counsel’s unprofessional errors, the result of the
    proceeding would have been different”).
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    medical experts at trial to demonstrate that Second Doctor’s
    subdural hematoma diagnosis was incorrect. He asserts that
    Mother’s injuries can occur “spontaneously” as a result of her
    age and Trial Counsel should have followed up with a medical
    expert to confirm this theory. Defendant raised this claim at the
    plea withdrawal hearing, and the district court found that Trial
    Counsel’s decision not to call “an additional medical expert” was
    “a reasonable strategy choice.” The court determined that “a
    neurologist or an additional medical expert” “would not have
    made a significant difference to the outcome of the case” and
    “Defendant has not presented any actual evidence that these
    additional expert witnesses would have given ground shaking
    testimony to contradict or undermine the testimony the medical
    doctors gave in this case.”
    ¶22 Defendant does not point to evidence in the record
    demonstrating that the court’s factual findings were clearly
    erroneous. On appeal, a defendant “cannot ‘simply restate or
    review evidence that points to an alternate finding or a
    finding contrary to the trial court’s finding of fact.’” Salt Lake City
    v. Reyes-Gutierrez, 
    2017 UT App 161
    , ¶ 25, 
    405 P.3d 781
     (quoting
    Ostermiller v. Ostermiller, 
    2010 UT 43
    , ¶ 20, 
    233 P.3d 489
    ).
    “Rather, to show clear error, he must identify the supporting
    evidence and explain why the trial court’s factual finding
    is nonetheless against the clear weight of the evidence.” 
    Id.
     For
    that reason, we defer to the district court’s finding that Trial
    Counsel’s decision not to obtain an additional medical expert
    was a reasonable strategic choice because Trial Counsel “could
    make and argue the same points using the more credible
    doctor witnesses the State had already subpoenaed.” We
    conclude that Trial Counsel’s decision to forgo independent
    medical experts does not constitute deficient performance, and
    Defendant’s ineffective assistance of counsel claim therefore
    fails.
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    B.    Failure to View or Investigate Evidence
    ¶23     Defendant contends that Trial Counsel did not view or
    investigate critical evidence in his case. To begin with,
    Defendant argues that Trial Counsel did not view the video
    recording prior to the evidentiary hearing on his motion
    to suppress or otherwise before trial and that Trial Counsel’s
    motion in support lacked “legal authority or meaningful
    analysis.” Had it not been for these errors, Defendant argues,
    the motion would have been successful because his sister
    conducted the warrantless, nonconsensual search on behalf of
    the police. 4
    ¶24 At the plea withdrawal hearing, Trial Counsel stated that
    he viewed the video with Defendant multiple times before trial.
    It is not clear from the record whether Trial Counsel viewed the
    video prior to the evidentiary hearing on the motion to suppress.
    Nevertheless, the motion to suppress was futile. Trial Counsel
    filed a supporting memorandum after the evidentiary hearing,
    arguing that the video recording should be suppressed given
    that it was the fruit of an unconstitutional search by Defendant’s
    4. Defendant also argues that the video was altered, asserting
    that numerous recordings were deleted from the camera. But
    Defendant’s assertions are speculative and there is no evidence
    in the record that the key video was altered or establishing how
    deletion of the other recordings was prejudicial. At the plea
    withdrawal hearing, Trial Counsel testified that Defendant told
    him that the video had been altered, but that Defendant did not
    know how, only that he “felt that the police had altered” it.
    Defendant then told Trial Counsel that if he saw the entire video
    he would know how it had been altered. After the suppression
    hearing, where the entire video was played, Defendant no longer
    objected to the video and Trial Counsel assumed the issue was
    dropped.
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    State v. Wright
    sister. While the district court concluded that Defendant’s sister
    conducted the search, it determined there was no evidence that
    this private search was done at the request of the police. And so,
    even if Trial Counsel failed to watch the video recording prior to
    the evidentiary hearing and his motion lacked “legal authority
    or meaningful analysis,” it was not prejudicial to Defendant
    given the futility of the motion premised on his sister acting as a
    police agent.
    ¶25 Defendant next argues that Trial Counsel failed to
    investigate ballistic and forensic evidence, asserting that it is not
    possible for him to have shot the gun at the angle the State
    claims he did, his fingerprints were not found on the gun, and
    there is no evidence the gun was fired. He contends that Trial
    Counsel should have hired an independent expert to testify to
    these claimed inconsistencies. But these claims are speculative,
    without any basis in the record, and are insufficient to overcome
    the presumption that Trial Counsel provided effective assistance.
    See Strickland v. Washington, 
    466 U.S. 668
    , 690 (1984) (“[C]ounsel
    is strongly presumed to have rendered adequate assistance and
    made all significant decisions in the exercise of reasonable
    professional judgment.”).
    ¶26 Mother testified that Defendant shot the gun twice, which
    was corroborated by bullet holes found by officers in the floor.
    An officer also testified that upon Defendant’s arrest Defendant,
    with a smile on his face, stated, “You guys didn’t even find the
    gun, did you?” But officers found a .22 caliber handgun at the
    house, and Defendant later unsuccessfully tried to dispose of .22
    caliber ammunition, overlooked by the arresting officer during
    the search of Defendant once he got to jail. In light of this
    evidence, and given Trial Counsel’s testimony that he had
    viewed the evidence and the crime scene prior to trial, we
    presume Trial Counsel did not pursue ballistic and forensic
    experts having concluded, in his “reasonable professional
    judgment,” 
    id.,
     that such an exercise would be pointless. For
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    these reasons, Defendant’s ineffective assistance of counsel
    claim, premised on this ground, fails.
    C.    Failure to Advise Defendant on the Sufficiency of the
    Evidence
    ¶27 Defendant contends that he should be allowed to
    withdraw his guilty pleas to possession of ammunition in a
    correctional facility, attempted murder, and aggravated
    kidnapping because Trial Counsel “failed to provide competent
    legal advice” on the insufficiency of the evidence supporting
    these charges.
    ¶28 Determining that it was Defendant’s request that Trial
    Counsel seek a plea agreement after hearing Mother’s testimony
    and seeing the jurors in tears, the district court found that
    Defendant was “not coerced or compelled to accept a plea
    bargain.” And because there was compliance with rule 11 of the
    Utah Rules of Criminal Procedure, including a factual basis,
    “provided by both the opening statement and the subsequent
    witnesses and exhibits that were presented to the court over two
    and one half days of testimony,” the court concluded that
    Defendant “entered his pleas knowingly and voluntarily.” See
    Utah R. Crim. P. 11(e)(4)(B) (requiring that the court may not
    accept a plea until “there is a factual basis for the plea,”
    including “that the prosecution has sufficient evidence to
    establish a substantial risk of conviction”).
    ¶29 Defendant argues that his guilty plea was not “knowing
    and voluntary” because Trial Counsel failed to advise him that
    no sufficient factual basis supported the possession of
    ammunition in a correctional facility, attempted murder, and
    aggravated kidnapping charges. See Hill v. Lockhart, 
    474 U.S. 52
    ,
    56 (1985) (stating that because “a defendant is represented by
    counsel during the plea process and enters his plea upon the
    advice of counsel, the voluntariness of the plea depends on
    whether counsel’s advice was within the range of competence
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    demanded of attorneys in criminal cases”) (quotation
    simplified). We address each claim in turn and conclude that
    Defendant’s guilty plea to these charges was knowingly and
    voluntarily made, with the exception of his guilty plea to
    aggravated kidnapping where Trial Counsel erred in failing to
    raise any objection or to advise Defendant on the insufficient
    evidence supporting the element of “detention.”
    ¶30 On an ineffective assistance of counsel claim, a convicted
    “defendant must show that counsel’s representation fell below
    an objective standard of reasonableness.” Strickland v.
    Washington, 
    466 U.S. 668
    , 688 (1984). However, we “indulge a
    strong presumption that counsel’s conduct falls within the wide
    range of reasonable professional assistance; that is, the defendant
    must overcome the presumption that, under the circumstances,
    the challenged action might be considered sound trial strategy.”
    
    Id. at 689
     (quotation simplified). This standard “is a most
    deferential one,” Harrington v. Richter, 
    562 U.S. 86
    , 105 (2011),
    because “[e]ven the best criminal defense attorneys would not
    defend a particular client in the same way,” Strickland, 
    466 U.S. at 689
    . Therefore, “the question is whether an attorney’s
    representation amounted to incompetence under prevailing
    professional norms, not whether it deviated from best practices
    or most common custom.” Harrington, 562 U.S at 105 (quotation
    simplified). But even supposing counsel erred, a defendant
    “must convince the court that a decision to reject the plea
    bargain would have been rational under the circumstances.”
    Padilla v. Kentucky, 
    559 U.S. 356
    , 372 (2010).
    1.    Possession of Ammunition in a Correctional Facility
    ¶31 Defendant contends that Trial Counsel failed to advise
    him that he had an entrapment defense to the charge of
    possession of ammunition in a correctional facility. To prove that
    charge, the State had to establish that Defendant knowingly
    possessed the ammunition he tried to get rid of at the jail. See
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    Utah Code Ann. § 76-8-311.3(4)(d) (LexisNexis 2017). See also id.
    § 76-2-103(2) (providing that a “person acts knowingly . . . when
    he is aware that his conduct is reasonably certain to cause the
    result”). When Defendant was arrested, the arresting officer
    searched Defendant for weapons before taking him to jail. At the
    jail, officers asked Defendant to empty his pockets. He started
    tossing items into a garbage can, and officers discovered he was
    trying to dispose of .22 caliber bullets.
    ¶32 The State concedes that it would have been “the preferred
    course of action and good police practice” to have found the
    ammunition when Defendant was searched incident to arrest,
    before he arrived at the jail. But the arresting officer testified that
    in searching Defendant for weapons, he did not discover the .22
    caliber bullets. More importantly, Defendant would have been
    aware he could not have ammunition in the jail because there
    was a sign at the entrance of the jail stating, “NO FIREARMS
    ALLOWED IN THE JAIL[.] This includes: Ammunition, Knives,
    or Chemical sprays.” A second sign stated, “No Contraband
    Allowed In Jail[.] Any unauthorized contraband brought into
    this jail may result in additional charges against you. [Y]ou
    should make known to the jailer all possessions you bring into
    the jail.” Defendant therefore should have notified officers that
    he needed to divest himself of the bullets prior to entering the
    jail, but he did not. Instead, he entered the jail and then tried to
    dispose of the .22 caliber bullets in a garbage can, presumably
    because he did not want officers to discover evidence linking
    him to the gun.
    ¶33 Defendant contends that officers put the ammunition in
    his pockets and he “attempted to dispose of the ammunition at
    the first opportunity.” “Entrapment occurs when a peace officer
    . . . induces the commission of an offense . . . by methods
    creating a substantial risk that the offense would be committed
    by one not otherwise ready to commit it. Conduct merely
    affording a person an opportunity to commit an offense does not
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    constitute entrapment.” 
    Id.
     § 76-2-303(1). There is no evidence in
    the record that the arresting officer or officers at the jail knew
    Defendant had ammunition with him prior to his entering the
    jail or that officers planted the ammunition on Defendant. There
    was sufficient evidence to support a conviction for possession of
    ammunition in a correctional facility, and we assume Trial
    Counsel concluded that trying an entrapment defense would not
    be successful. See Harrington v. Richter, 
    562 U.S. 86
    , 107 (2011)
    (“Counsel was entitled to formulate a strategy that was
    reasonable at the time and to balance limited resources in accord
    with effective trial tactics and strategies.”). Therefore,
    Defendant’s ineffective assistance of counsel claim on this
    ground also fails.
    2.    Attempted Murder
    ¶34 Defendant argues that he could not have committed
    attempted murder because there is insufficient evidence to show
    that he intended to cause Mother serious bodily injury or death.
    To prove attempted murder, the State bore the burden of
    establishing that Defendant “engage[d] in conduct constituting a
    substantial step toward commission of” murder and intended to
    commit the crime or “act[ed] with an awareness that his conduct
    [was] reasonably certain to cause that result.” Utah Code Ann.
    § 76-4-101(1) (LexisNexis 2017). See also id. § 76-5-203(2)(a)‒(b)
    (“Criminal homicide constitutes murder if . . . the actor
    intentionally or knowingly causes the death of another [or,]
    intending to cause serious bodily injury to another, the actor
    commits an act clearly dangerous to human life that causes the
    death of another”); State v. Casey, 
    2003 UT 55
    , ¶ 38, 
    82 P.3d 1106
    (stating that for attempted murder the State “must show that the
    defendant acted intentionally”).
    ¶35 At trial, the State provided sufficient evidence that
    Defendant intended to kill Mother and took a “substantial step”
    toward doing so. Prior to and during the assault, Defendant
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    threatened that he would “beat [Mother] to death.” He added: “I
    could fuckin’ put a bullet in your fuckin’ head and not even
    think twice about it. You fuckin’ whore”; “You fuckin’, you
    oughta get your fuckin’ hands off you old bitch or I’ll fuckin’ kill
    you, to death. I’ll choke you to death”; “I’ll beat you to death”;
    and “Yeah, I kill you.” There is nothing to suggest he was only
    kidding. On the contrary, he specifically told Mother that he was
    not kidding. Mother testified that Defendant hit her with both
    hands for what “felt like forever,” put her in a headlock and
    choked her until it “felt like something was breaking,”
    threatened her with a glass shard, put a gun to her head, pulled
    her out of her chair hard enough that she heard her ribs break,
    and shot two bullets into the floor. Defendant’s threats
    established his intent to kill Mother, or so the jury might well
    have concluded, and he acted in a manner consistent with those
    threats, as Mother testified, demonstrating that Defendant
    “engag[ed] in conduct constituting a substantial step toward
    commission of the crime.” 5 Utah Code Ann. § 76-4-101(1)(a). See
    id. § 76-4-101(2) (providing that “conduct constitutes a
    substantial step if it strongly corroborates the actor’s mental
    state”).
    ¶36 With the video recording and Mother’s testimony, the
    State had sufficient evidence to establish the elements of
    attempted murder. And given the overwhelming evidence of
    Defendant’s guilt on the attempted murder charge, Defendant
    fails to demonstrate that it would have been reasonable for him
    to reject a plea deal and proceed to trial on that charge.
    5. Defendant argues there is no evidence that he attempted to kill
    Mother because the ballistic and forensic “evidence” is contrary
    to Mother’s testimony. But Defendant’s purported ballistic and
    forensic evidence is entirely speculative, and Mother’s testimony
    and the video recording were ample evidence to support the
    charge of attempted murder.
    20150153-CA                     16                
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    State v. Wright
    Defendant’s ineffective assistance of counsel claim on this
    ground also fails.
    3.    Aggravated Kidnapping
    ¶37 Defendant argues that he could not have committed
    aggravated kidnapping because there is insufficient evidence to
    show he detained Mother. To prove aggravated kidnapping, the
    State had to establish that “in the course of committing unlawful
    detention or kidnapping,” Defendant “possesse[d], use[d], or
    threaten[ed] to use a dangerous weapon,” or intended “to inflict
    bodily injury on or to terrorize [Mother]” or “to hinder or delay
    the discovery of or reporting of a felony.” Utah Code Ann.
    § 76-5-302(1) (LexisNexis 2017). As is relevant here, the Utah
    Code defines kidnapping and unlawful detention as detaining or
    restraining the victim “intentionally or knowingly, without
    authority of law, and against the will of the victim.” Id.
    § 76-5-301(1), -304(1). And although the kidnapping statute may
    require the State to prove the defendant “detain[ed] or
    restrain[ed] the victim for any substantial period of time,” id.
    § 76-5-301(1)(a) (emphasis added), the unlawful detention statute
    does not.
    ¶38 “[T]o demonstrate aggravated kidnapping of the
    unlawful detention variant, the State must show, in addition to
    one or more aggravating circumstances, only that the defendant
    unlawfully detained or restrained the victim and that he did so
    intentionally or knowingly.” State v. Wilder, 
    2016 UT App 210
    ,
    ¶ 20, 
    387 P.3d 512
    , aff’d on other grounds, 
    2018 UT 17
    , 
    420 P.3d 1064
    . As we determined in Wilder, “‘detains or restrains’ refers to
    restriction of the victim’s movement, but neither definition
    requires . . . complete confinement or imprisonment.” 
    Id. ¶ 21
    .
    See Detain, Webster’s Third New International Dictionary 616
    (1993) (“to hold or keep in or as if in custody” or “to restrain
    [especially] from proceeding”); Restrain, Webster’s Third New
    International Dictionary 1936 (1993) (“to hold (as a person) back
    20150153-CA                    17                
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    State v. Wright
    from some action, procedure, or course” or “to deprive of
    liberty”). For that reason, the State need only prove that
    “Defendant intentionally acted, however briefly, to impair the
    victim’s ability to move freely.” Wilder, 
    2016 UT App 210
    , ¶ 22.
    ¶39 Here, the State argues that there were two detentions:
    (1) Defendant pushed Mother back into the chair, and
    (2) Defendant would not let her leave the house to go to the
    hospital. We disagree with both contentions.
    ¶40 First, Defendant pushing Mother back into her chair is not
    sufficient to support a finding of detention. The push was
    incident to the ongoing assault. Defendant and Mother were
    arguing and when Mother stood up to walk away, Defendant
    pushed her back down into the chair. Defendant then shouted,
    “[W]hy did you fuckin’ accuse me of stealing my Dad’s stuff
    when I came home the other day?” The context of Defendant’s
    action indicates that the push was assaultive rather than
    restrictive. See Utah Code Ann. § 76-5-102(1)(a) (defining assault
    as “an attempt, with unlawful force or violence, to do bodily
    injury to another”). And we are not persuaded that Defendant
    intended to detain Mother. The video recording displays no
    other actions taken by Defendant to suggest that he intended to
    impair Mother’s ability to move. Cf. Wilder, 
    2016 UT App 210
    ,
    ¶¶ 6, 22 (holding a reasonable jury could have inferred a
    detention occurred where the defendant followed the victim into
    the hallway, grabbed her hair and tried to drag her away while
    she locked and braced her legs between the hallway walls); State
    v. Sanchez, 
    2015 UT App 27
    , ¶¶ 14‒15, 
    344 P.3d 191
     (holding a
    reasonable jury could have found a detention where the
    defendant clearly intended to detain the victim against her will
    by dragging her 58 feet down a hallway and closing the door);
    State v. Ellis, 
    2014 UT App 185
    , ¶ 10, 
    336 P.3d 26
     (holding a
    reasonable jury could base an aggravated kidnapping conviction
    on evidence that the defendant “followed [the victim] around
    20150153-CA                    18               
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    State v. Wright
    the house throughout the day,” even following her into the
    bathroom to prevent her from escaping) (quotation simplified).
    ¶41     Second, the State argues that Defendant would not let
    Mother “leave the house to go to the hospital until she promised
    to lie about what happened.” The State claims that after the
    assault, Mother “begged” Defendant to open the garage door,
    but he would not until he knew what she would say. Defendant
    only let her leave after knowing she would tell the hospital that
    she fell off the cement steps. But the record does not support
    these assertions, and nothing in Mother’s testimony suggests
    that Defendant intended to “detain” Mother by not opening the
    garage door.
    ¶42 Mother testified that, after the assault, she asked
    Defendant three times “to open the garage door” before “he
    opened it.” She could not recall why she did not have a garage
    door key herself, but she did not. When the State asked Mother,
    “Without him opening that garage was there a way for you to
    leave?” Mother replied, “I could have gone outside and there’s
    buttons that you could push, but half the time it doesn’t do it.”
    Before Mother left the house, Defendant wanted to know what
    she was going to tell hospital personnel, but she gave no
    indication in her testimony that Defendant was preventing her
    from leaving the house. Instead, to prevent Mother from telling
    the truth, Defendant threatened Mother with a gun and followed
    her to the emergency room, lifting his coat to show her the gun
    before she met with First Doctor. And she testified that she was
    concerned about reporting Defendant’s assault because of what
    he would do to his sisters if she told the truth. Because Mother
    never testified that Defendant prevented her from leaving the
    house, we conclude that Defendant did not “detain” her.
    ¶43 Because neither of these instances amount to a detention
    under the aggravated kidnapping statute, Trial Counsel was
    remiss in not moving to dismiss the charge after Mother’s
    20150153-CA                   19                
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    State v. Wright
    testimony or during plea negotiations. And although Mother’s
    testimony of the assault may have persuaded Defendant that he
    was “going to be convicted” and he sought a plea agreement,
    Trial Counsel failed to inform Defendant that an insufficient
    factual basis supported the aggravated kidnapping charge. Trial
    Counsel testified that, during plea negotiations, he did not
    discuss the factual basis for the aggravated kidnapping charge
    with Defendant because Defendant said he understood the
    factual basis for each element based on the State’s evidence
    given at trial. He further testified that his advice about the
    aggravated kidnapping evidence occurred prior to trial. Given
    that the factual basis for Defendant’s plea rested on the evidence
    presented at trial, a reasonable defense attorney would have
    objected to the aggravated kidnapping charge and informed his
    client that an insufficient factual basis supported the element of
    “detention.” See State v. Finlayson, 
    2000 UT 10
    , ¶ 24, 
    994 P.2d 1243
     (holding that the first part of the Strickland test had been
    met because the facts of the case failed to support an aggravated
    kidnapping conviction and defendant’s counsel failed to make
    an objection), abrogated on other grounds by State v. Wilder, 
    2018 UT 17
    , 
    420 P.3d 1064
    . Had Trial Counsel done so in this case, we
    are confident that Defendant “would not have pleaded guilty
    and would have insisted on going to trial.” Hill v. Lockhart, 
    474 U.S. 52
    , 59 (1985). See also Miller v. Champion, 
    262 F.3d 1066
    , 1072
    (10th Cir. 2001) (stating that “the strength of the prosecutor’s
    case” is the best evidence of whether a defendant would have in
    fact changed his plea). More likely, of course, had Trial Counsel
    considered the evidence more carefully and shared this analysis
    with the State, it is possible the plea arrangement would have
    gone forward with aggravated kidnapping off the table, given
    Defendant’s willingness to plead to the other seven felony
    charges against him.
    ¶44 We conclude that there is sufficient evidence for
    Defendant’s possession of ammunition in a correctional facility
    and attempted murder convictions, and consequently,
    20150153-CA                     20                
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    State v. Wright
    Defendant fails to demonstrate it would have been rational for
    him to withdraw his guilty plea to the charges resulting in
    these convictions. But, as to his aggravated kidnapping
    conviction, Trial Counsel erred in failing to object to the charge
    after Mother’s testimony or during plea negotiations and in
    failing to advise Defendant that an insufficient factual basis
    supported the “detention” element of the crime. Defendant’s
    plea to this charge was therefore unknowingly and involuntarily
    made, and accordingly we vacate his aggravated kidnapping
    conviction.
    D.    Other Ineffective Assistance Claims
    ¶45 Defendant contends that Trial Counsel failed to preserve
    evidence and object to hearsay testimony and that his plea
    withdrawal counsel provided ineffective assistance by failing to
    investigate and raise substantive issues. We conclude that these
    issues are inadequately briefed.
    ¶46     Because “we are not a depository in which the appealing
    party may dump the burden of argument and research,” we
    “will not address arguments that are not adequately briefed.”
    Johnson v. Johnson, 
    2014 UT 21
    , ¶ 20, 
    330 P.3d 704
     (quotation
    simplified). “A party must cite the legal authority on which its
    argument is based and then provide reasoned analysis of how
    that authority should apply in the particular case, including
    citations to the record where appropriate.” Bank of Am. v.
    Adamson, 
    2017 UT 2
    , ¶ 13, 
    391 P.3d 196
     (emphasis added). And
    “an appellant who fails to adequately brief an issue will almost
    certainly fail to carry its burden of persuasion on appeal.” Boyle
    v. Clyde Snow & Sessions PC, 
    2018 UT App 69
    , ¶ 11, 
    424 P.3d 1098
    (quotation simplified). This burden “can be met only if the facts
    used in the argument section of the brief are sufficient to provide
    context for the events that occurred in the district court, are
    correctly shown to be in the record, and are analyzed in relation
    to pertinent legal authority.” 
    Id. ¶ 12
    .
    20150153-CA                    21                
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    State v. Wright
    ¶47 Defendant makes a number of assertions with no citation
    to the record, 6 and he fails to engage in the analysis necessary to
    evaluate whether Trial Counsel’s performance in these instances
    was deficient and prejudicial. First, he argues that Trial Counsel
    failed to preserve crime scene evidence, claiming that the State
    has an obligation to preserve exculpatory evidence and that Trial
    Counsel should have required the State to preserve this evidence
    for the defense. But Defendant fails to cite any legal authority
    supporting this argument and does not discuss why the absence
    of this evidence at trial was prejudicial to his defense.
    ¶48 Second, Defendant argues that Trial Counsel failed to
    object to obvious hearsay testimony from First and Second
    Doctors. Defendant argues that these witnesses did not diagnose
    Mother because they relied instead on the “radiologists
    specifically trained to read and interpret data.” Defendant fails
    to develop any meaningful legal analysis of his arguments or of
    rules 801(c) and 803 of the Utah Rules of Evidence and
    controlling authority on this issue. And furthermore, he asserts
    that “[a]t worst, the evidence shows that [Defendant] slapped his
    mother and pulled her out of a chair,” arguing that the evidence
    is sufficient to support a simple assault charge but not attempted
    6. We note that Defendant’s entire argument section lacks
    citation to the record, and he asserts a number of facts without
    any citation to the record. Rule 24 of the Utah Rules of Appellate
    Procedure requires that the argument section of a brief contain
    “reasoned analysis supported by citations to legal authority and
    the record,” Utah R. App. P. 24(a)(8), because it is “not our
    obligation . . . to comb the record for evidence,” In re W.A., 
    2002 UT 127
    , ¶ 45, 
    63 P.3d 607
     (quotation simplified). Although
    Defendant’s statement of facts contains sufficient citation to the
    record, such citation does not relieve Defendant of his burden to
    demonstrate that the record also supports his assertions in the
    argument section.
    20150153-CA                     22                
    2019 UT App 66
    State v. Wright
    murder or aggravated assault. But Defendant was not convicted
    of aggravated assault, and as we discussed above, the video
    recording and Mother’s testimony constituted sufficient
    evidence to support the attempted murder conviction. See supra
    ¶¶ 34‒36.
    ¶49 Finally, Defendant argues that his plea withdrawal
    counsel “failed to adequately question [Trial Counsel’s]
    credibility” and “failed to establish that [Trial Counsel] was
    highly motivated to get a guilty plea.” But the focus of
    Defendant’s argument is on Trial Counsel’s errors, not those of
    his plea withdrawal counsel, and in framing the argument this
    way, he fails to engage in a meaningful analysis of these
    ineffective assistance claims. Because Defendant fails to
    adequately brief these claims, he fails in his burden of
    persuasion, and we decline to address them further.
    II. Cumulative Error
    ¶50 Defendant contends that the cumulative prejudicial effect
    of his ineffective assistance of counsel claims undermines
    confidence in his guilty plea, and we should therefore reverse his
    convictions. However, “[i]f [we] determine[] that either a party’s
    claim did not amount to an error, or that the claim was an error
    but has no potential to cause harm on its own, the claim cannot
    weigh in favor of reversal under the cumulative effects test.”
    State v. Martinez-Castellanos, 
    2018 UT 46
    , ¶ 42, 
    428 P.3d 1038
    .
    ¶51 Defendant did not demonstrate prejudice on six of his
    ineffective assistance of counsel claims, and although we
    concluded that Trial Counsel’s failure to object to the aggravated
    kidnapping charge given the State’s insufficient evidence
    supporting the element of “detention” prejudiced his defense,
    this does not undermine his guilty plea to the other charges.
    Accordingly, there was no cumulative error in this case.
    20150153-CA                    23               
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    State v. Wright
    CONCLUSION
    ¶52 We affirm Defendant’s convictions and conclude that his
    guilty pleas were knowingly and voluntarily made, with the
    exception of the plea culminating in his aggravated kidnapping
    conviction. We vacate that conviction and remand for trial or
    such other proceedings as may now be in order.
    20150153-CA                  24              
    2019 UT App 66