State v. Cabututan , 2022 UT App 41 ( 2022 )

2022 UT App 41THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANDY PHILLIPS CABUTUTAN,
Appellant.
Opinion
No. 20200151-CA
Filed March 31, 2022
Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 181800504
Aaron P. Dodd and Kara H. North,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 Andy Phillips Cabututan’s fight with his boss (Boss)
started with words, a pistol, swinging fists, a kick to the groin,
and a brick; but the fight ended with Boss’s death after
Cabututan struck Boss’s head with a shovel. At Cabututan’s
murder trial, the jury rejected his assertion that he acted in
perfect self-defense and ultimately convicted him of the lesser
included offense of manslaughter. Cabututan appeals on various
grounds, but we affirm.
State v. Cabututan
BACKGROUND 1
¶2 At a time when Cabututan and Boss maintained a good
relationship, Cabututan moved his camper onto Boss’s property
as part of an agreement to perform mechanical work on Boss’s
taxis. However, as the months passed, their relationship soured.
Cabututan, in Boss’s view, had failed to live up to his end of the
bargain—namely, Cabututan sat in his camper instead of
working on the taxis.
¶3 One morning, while Cabututan sat in his camper, he
heard a sudden bang on his door. Boss had come to confront
Cabututan about Cabututan’s failure to do enough work. After
opening the camper door, Cabututan walked past Boss, opened
the door to his van and got in, and, leaving the van door open,
began rolling a cigarette. For a moment, Cabututan listened as
Boss “yell[ed] and scream[ed],” but he soon informed Boss that
he would be moving. In response, Boss challenged him, “Come
on out of there and we’ll handle this.”
¶4 So, as Cabututan told the police, he “stepped up to him,”
“[t]ook off [his] shirt[,] and came at him.” But almost
immediately, Boss produced a pistol. Cabututan, seeing a loaded
pistol pointed straight at him, “just went into complete blank out
self-defense mode,” “took a swing at [Boss], and blocked . . . the
pistol.” Boss lowered the pistol and Cabututan jumped to the
side before seeing Boss raise the pistol again. Cabututan reacted
quickly and “kicked [Boss] square in the nuts,” but to
Cabututan’s surprise, “it didn’t even [faze] him. He still had the
pistol in his hand.” When Boss raised the pistol again, Cabututan
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
20200151-CA 2 2022 UT App 41State v. Cabututan
“just started dancing” and “moving around”—all amidst “a
bunch of screaming” from both of them.
¶5 Eventually, Boss “reached down and picked up [a] brick,”
giving him “two weapons in his hand[s]” while Cabututan had
none. But then Cabututan saw a shovel lying on the ground.
Cabututan picked it up and swung it at Boss, but Boss “ducked
to the side.” Boss raised the pistol in one hand and had the brick
“up ready to throw.” Thinking that Boss would throw the brick,
Cabututan swung the shovel again. Boss side-stepped and
started to raise the pistol again, but Cabututan struck him with
the shovel on the side of the head and he “dropped,” falling
“face first.” Cabututan threw the shovel, “kind of freaked out
and walked [away] and came back.”
¶6 From her living-room window, Boss’s wife (Wife) saw
Cabututan “walking around, holding his head.” When she went
outside to find out what was going on, Cabututan told her that
Boss “came after [him]” and pointed toward where Boss’s body
lay on the ground, face down. She then called 911, and
Cabututan attempted to perform CPR. Despite these efforts, and
the efforts of police and medical professionals, Boss died. At the
scene, Cabututan provided police a statement detailing the
fight’s progression as described above, and later, the State
charged Cabututan with murder.
¶7 At trial, defense counsel opted to pursue a theory of self-
defense and conceded that Boss had died by Cabututan’s hand,
stating, “We all know [how Boss died]. He died—he got hit in
the head with a shovel.” Defense counsel, however, did object to
several photos depicting both the autopsy and the crime scene.
The autopsy photos showed a skull, with the scalp skinned back
to reveal the internal injuries that resulted from the hit with the
shovel. In defense counsel’s estimation, the prejudicial impact to
the jury far outweighed any probative impact that could result
from the photos’ admission; he asserted that the jury would just
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see “a morbid, blood[y], skinned back[] skull.” The trial court,
however, disagreed, stating that because “the State is going to be
proving up the cause of death and the degree of force that
caused the death . . . the probative value of these [photos]
outweigh[ed] the prejudicial value in that” the photos went
toward “the degree of force that was exerted that would have
caused the demise of the individual.” As for the crime scene
photos, the court determined that they depicted the external
injury and the spatial relationship between where the body, the
brick, and the pistol were found on the scene. Defense counsel
objected to these photos on grounds that they “sensationalized”
the on-scene treatment to elicit sympathy from the jury. But,
except for one photo excluded because it was “redundant,” the
court allowed the photos, in part, because they “show[ed] the
alleged injury,” as well as “a lot of other things that the State
deem[ed] relevant” but that the court did not expressly identify.
¶8 In addition to testimony about the fight as described
above, the State elicited testimony from Wife about how she
experienced the incident, and when asked how the incident had
affected her, she responded, “It’s changed my whole life. I’ve
lost everything. I even lost my dog. He died. I mean, [I] lost my
financial [security] that I had before, where I’m having to work
just to survive now.” And later, the State elicited testimony from
the medical examiner who conducted the autopsy. The medical
examiner described the autopsy photos and testified that he
determined the “manner of death” was—as a medical and not a
legal matter—“homicide” due to “blunt head trauma.”
¶9 Following the State’s case, Cabututan moved for a
directed verdict. He asserted that the State had failed to carry its
burden of proving that his affirmative defense of “perfect self-
defense” did not apply. In response, the State argued that it had
“provided sufficient evidence that the jury could find that the
defendant [was] in fact guilty of murder and that in fact self-
defense [did] not apply.” The State asserted that the instructions
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would “state that if [Cabututan] . . . was engaged [in] combat by
agreement,” then perfect self-defense would not apply. And by
Cabututan’s “own words” combat by agreement was “exactly
what happened, and the jury could so find.” The court agreed
and denied the motion.
¶10 The jury instructions informed the jury that to find
Cabututan guilty of murder, it would have to agree on each of
the elements of murder and that perfect self-defense did not
apply. The jury was also instructed that if it found him guilty of
murder, it would have to determine whether imperfect self-
defense applied. The jury was informed that imperfect self-
defense was a “partial defense” to murder, that it applied “when
the defendant caused the death of another while incorrectly, but
reasonably, believing that his conduct was legally justified or
excused,” and that its effect would be “to reduce the level of the
offense.” Ultimately—whether due to a determination that only
imperfect self-defense applied or because it did not believe that
the State had proved the elements of murder—the jury found
Cabututan guilty of the lesser included offense of manslaughter.
ISSUES AND STANDARDS OF REVIEW
¶11 Cabututan now appeals and raises three primary issues
for our review. First, he contends that the State presented
insufficient evidence to overcome his claim of perfect self-
defense. “When reviewing a preserved sufficiency of the
evidence claim, we ask simply whether the jury’s verdict is
reasonable in light of all of the evidence taken cumulatively,
under a standard of review that yields deference to all
reasonable inferences supporting the jury’s verdict.” State v.
Darnstaedt, 2021 UT App 19, ¶ 18, 483 P.3d 71 (cleaned up).
Second, Cabututan contends that the trial court erred in
admitting the photos. We review such challenges to the
admission of evidence for an abuse of discretion. Met v. State,
2016 UT 51, ¶ 36, 388 P.3d 447. Third, Cabututan contends that
20200151-CA 5 2022 UT App 41State v. Cabututan
defense counsel rendered ineffective assistance by failing to
object to testimony about the effect of Boss’s death on Wife. 2
“When a claim of ineffective assistance of counsel is raised for
the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” State v.
Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).
ANALYSIS
I. Sufficiency of the Evidence
¶12 To prevail on his contention that the State presented
insufficient evidence to overcome his assertion of perfect self-
defense, Cabututan would need to show either that, given the
evidence presented at trial, a jury could not “find, beyond a
reasonable doubt, that the defendant committed the crime,” see
State v. Henfling, 2020 UT App 129, ¶ 28, 474 P.3d 994 (cleaned
up), or that perfect self-defense did not apply. But this is
something Cabututan cannot do because his own statements
provided the evidence necessary for the State to meet its burden
2. Cabututan also alleges that his counsel performed
ineffectively by failing to object to a medical examiner’s
testimony. This contention stems from his concession that Boss
died from a wound he inflicted with the shovel. According to
Cabututan, because he conceded the cause of Boss’s death, the
jury did not need to hear the medical examiner’s testimony, and
allowing the testimony without objection paved the path for the
State to admit the allegedly gruesome autopsy photos. However,
as we will describe, the court did not abuse its discretion in
admitting the autopsy photos. Thus, Cabututan’s ineffective
assistance of counsel claim related to the medical examiner’s
testimony, which is contingent on the inadmissibility of the
autopsy photos, falls short, and we do not discuss it further.
20200151-CA 6 2022 UT App 41State v. Cabututan
to show guilt and disprove perfect self-defense beyond a
reasonable doubt.
¶13 Under Utah self-defense law, “[a]n individual is justified
in using force intended or likely to cause death or serious bodily
injury only if the individual reasonably believes that force is
necessary to prevent death or serious bodily injury to the
individual . . . as a result of imminent use of unlawful force.”
Utah Code Ann. § 76-2-402(2)(b) (LexisNexis Supp. 2021). But,
[a]n individual is not justified in using force . . . if
the individual . . . was the aggressor or was
engaged in a combat by agreement, unless the
individual withdraws from the encounter and
effectively communicates to the other individual
the intent to withdraw from the encounter and,
notwithstanding, the other individual continues or
threatens to continue the use of unlawful force.
Id. § 76-2-402(3)(a)(iii). This brand of self-defense is known as
“perfect self-defense.” See State v. Bonds, 2019 UT App 156, ¶ 44,
450 P.3d 120, cert. granted on other grounds, 466 P.3d 1072 (Utah
2020). However, even in the absence of legally justified perfect
self-defense,
[i]t is an affirmative defense to a charge of murder
or attempted murder that the defendant caused the
death of another or attempted to cause the death of
another 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.
Utah Code Ann. § 76-5-203(4)(a) (LexisNexis 2017). This brand of
self-defense is known as “imperfect self-defense.” Bonds, 2019
UT App 156, ¶ 44.
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¶14 “Where applicable, [imperfect self-defense] results only in
reduction of a conviction from murder to manslaughter, whereas
perfect self-defense is a complete defense to any crime that,
where applicable, results in acquittal . . . .” Id. (cleaned up). And,
as with any affirmative defense, an assertion of self-defense, be it
perfect or imperfect, places the burden on the prosecution to
“disprove” that defense “once a defendant has produced some
evidence of” it. Id. ¶ 45 (cleaned up); see also State v. Garcia, 2001
UT App 19, ¶¶ 1, 16, 18 P.3d 1123 (identifying self-defense as an
affirmative defense); State v. Drej, 2010 UT 35, ¶ 15, 233 P.3d 476(“The Utah rule requires that the prosecution disprove the
existence of affirmative defenses beyond a reasonable doubt
once the defendant has produced some evidence of the defense.”
(cleaned up)).
¶15 Cabututan contends that the State failed to present
sufficient evidence to overcome his assertion of perfect self-
defense and that, accordingly, the trial court erred in denying his
motion for a directed verdict and allowing the case to proceed to
the jury. However, the entire evidentiary picture before the jury
refutes that contention.
¶16 At trial, the State pointed out that the jury had heard in
Cabututan’s “own words” that he had “engaged [in] combat by
agreement.” Specifically, the jury heard from Cabututan that
when Boss challenged him, he “stepped up to” the challenge,
“[t]ook off [his] shirt[,] and came at” Boss. There was no
evidence that, at any point, Cabututan attempted to withdraw
from the encounter. Based on these facts, the jury could
reasonably find that Cabututan participated in the fight by
mutual agreement and at no point did he “withdraw[] from the
encounter and effectively communicate[]” that “intent to
withdraw.” See Utah Code Ann. § 76-2-402(3)(a)(iii). Far from
requiring the court to direct the verdict in Cabututan’s favor, the
evidence presented to the jury provided ample space for the jury
to reject Cabututan’s assertion that he acted in perfect self-
20200151-CA 8 2022 UT App 41State v. Cabututan
defense and enter a conviction. Accordingly, we reject his claim
that the evidence was insufficient to support a jury verdict of
manslaughter.
II. Admission of the Photos
¶17 To prevail on his contention that the trial court abused its
discretion in admitting the photos over his objection, Cabututan
must demonstrate that the court applied “the wrong legal
standard or” rendered a decision “beyond the limits of
reasonability.” See Met v. State, 2016 UT 51, ¶ 96, 388 P.3d 447(cleaned up). Here, that means that Cabututan must demonstrate
that the court abused its discretion in determining that the
photos passed muster under rule 403 of the Utah Rules of
Evidence, see id. ¶ 83—i.e., that the photos’ “potential for unfair
prejudice” did not “substantially outweigh[]” their “probative
value,” id. ¶ 89; see also Utah R. Evid. 403 (“The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice . . . .”).
¶18 Below, the court determined that the autopsy photos’
probative value was not outweighed by unfair prejudice.
Probative value existed, it ruled, because the State would “be
proving up the cause of death and the degree of force that
caused the death.” And it concluded that any potential prejudice
would be ameliorated because the court required that the State
clarify for the jury that the autopsy photos were “not
representative of the condition of the individual prior to”
“opening the skull up” during autopsy. Similarly, the court
determined that the crime scene photos warranted admission
because, rather than sensationalize the crime scene, they
“show[ed] the alleged injury” and the spatial relationship of the
body, the brick, and the pistol.
¶19 On appeal, Cabututan has not persuaded us that the
court’s ruling constituted an abuse of discretion. Rather, we
agree with the State that although Cabututan admitted to killing
20200151-CA 9 2022 UT App 41State v. Cabututan
Boss with the shovel, the photos could still assist the jury in
determining that Cabututan had the requisite intent to commit
the crime charged. Furthermore, the photos might also have
been useful in assessing Cabututan’s self-defense claim and how
it correlated with the degree of force he used when he hit Boss
with the shovel. Put simply, the photos and the injury they
showed could have helped the jury determine the way
Cabututan used the shovel and whether he wielded it for only
defensive parries or to inflict a substantial blow. Moreover, we
do not believe the jury would have ascribed the condition of
Boss’s body in the autopsy photos to the circumstances of the
fight. Indeed, to prevent this possibility, the court specifically
instructed the State to—and the State actually did—inform the
jury that the autopsy (and not Cabututan) was to blame for any
apparent gruesomeness. Further, as to the crime scene photos,
we agree with the court’s apparent view that seeing “the alleged
injury” and the spatial relationship of the body, the brick, and
the pistol could assist the jury in making its determination. And
finally, having reviewed the photos ourselves, we do not
perceive the photos as unfairly gruesome or disturbing.
Accordingly, we conclude that the court did not abuse its
discretion in admitting the photos.
III. Ineffective Assistance of Counsel
¶20 To prevail on his claim of ineffective assistance of counsel,
Cabututan must show not only that defense counsel performed
deficiently but also that any deficient performance “prejudiced
the defense.” See State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350(cleaned up). In other words, Cabututan would have to show “a
reasonable probability” that “absent counsel’s error,” “the
outcome of his . . . case would have been different.” Id. ¶ 43. And
because “a defendant must satisfy both parts of this test[,] . . . if
we determine that a defendant has made an insufficient showing
on one [component],” we need not address the other. State v.
Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150 (cleaned up).
20200151-CA 10 2022 UT App 41State v. Cabututan
¶21 Cabututan’s contention that defense counsel rendered
ineffective assistance fails for a lack of prejudice. Cabututan
contends that defense counsel rendered ineffective assistance by
failing to object when Wife testified, among other things, that
Boss’s death had “changed [her] whole life.” Specifically, he
argues that the testimony elicited undue sympathy from the
jury. But we disagree that Wife’s statements were reasonably
likely to have had any material impact on the outcome of this
case. Although Wife’s testimony delved into specific details the
jury might not have known otherwise, the overarching message
from Wife’s testimony—that her life had radically changed since
Boss’s death and that she now faced financial difficulty—was
something the jury would have discerned regardless, and we see
no reasonable probability that this particular testimony tipped
the scales away from acquittal and toward a conviction of
manslaughter for a death Cabututan admitted to causing.
¶22 More fundamentally, a lack of prejudice in this case also
results from the fact that even without the contested testimony,
the jury heard evidence from Cabututan that he willingly
participated in the fight—an admission that undermined his
perfect self-defense theory and, as discussed, created at least a
question for the jury. See supra Part I. And given the fact that
Cabututan conceded that he hit Boss with the shovel and that the
blow resulted in his death, Cabututan would have to show that
the failure to object to the contested testimony was the reason
that the jury granted him the second-best outcome for his case—
a conviction for manslaughter—as opposed to the best outcome
for his case—an acquittal resulting from a finding of perfect self-
defense. Under the circumstances presented here, even if defense
counsel had objected to the contested testimony and the court
had excluded it, such a change in the evidentiary landscape
would not have altered the robust evidence that when Boss
challenged Cabututan, Cabututan “stepped up to” the challenge,
“[t]ook off [his] shirt[,] and came at” Boss and that he never
backed down from the fight. Accordingly, it is not reasonably
20200151-CA 11 2022 UT App 41State v. Cabututan
likely that Wife’s testimony had any appreciable effect on the
jury applying the statutory framework providing that a person
who is engaged “in a combat by agreement” is, by law, not
eligible for the protection of perfect self-defense, unless he
communicates an intent to withdraw from the encounter and the
other individual continues to engage in the attack. See Utah Code
Ann. § 76-2-402(3)(a)(iii) (LexisNexis Supp. 2021). Thus,
Cabututan’s ineffective assistance claim fails for lack of
prejudice.
CONCLUSION
¶23 Because sufficient evidence existed for the State to
overcome its burden of showing that perfect self-defense did not
apply, because the court did not abuse its discretion in admitting
the photos, and because Cabututan cannot show ineffective
assistance, we affirm Cabututan’s conviction.
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