State v. Carrera

2022 UT App 100THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ROLAND DAVID CARRERA,
Appellant.
Opinion
No. 20181053-CA
Filed August 18, 2022
Fifth District Court, Beaver Department
The Honorable Keith C. Barnes
No. 171500074
Aaron P. Dodd, Attorney for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
JILL M. POHLMAN and JUSTICE DIANA HAGEN concurred as to
Parts I and III. JUSTICE HAGEN authored a separate Opinion as to
Part II in which JUDGE POHLMAN concurred. 1
HARRIS, Judge:
¶1 A jury found Roland David Carrera guilty of several
serious crimes, including aggravated kidnapping and various
sexual offenses. At trial, Carrera’s former fiancée (Betty 2) testified
1. Justice Diana Hagen began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
2. A pseudonym.
State v. Carrera
that Carrera had held her at knifepoint, cut her neck, punctured
her shoulder, made her strip naked, and forced her to engage in
sexual acts. Carrera now appeals his convictions, challenging the
sufficiency of the evidence on some of his convictions and
asserting that his trial attorney rendered ineffective assistance that
he believes affected all of his convictions. For the reasons
discussed herein, we find merit in many of Carrera’s arguments.
We vacate one of Carrera’s convictions for forcible sodomy and
remand with instructions for acquittal on that count. And we
vacate Carrera’s other convictions, including the conviction for
aggravated kidnapping, on the basis of ineffective assistance of
counsel, and remand this case for a new trial or other proceedings
consistent with this opinion.
BACKGROUND 3
¶2 In 2017, Carrera and Betty lived together in Milford, Utah
with their baby boy and Betty’s fifteen-year-old son from a
previous relationship. Their relationship had been good at first
but worsened over time, with Carrera often accusing Betty of
cheating on him. After their child was born, the relationship
deteriorated even further and became tense. One summer
evening, when the baby was about four months old, Carrera and
Betty, along with the baby, made the approximately two-hour
drive to a town just across the Arizona border to pick up a car
from Betty’s mother.
¶3 When they arrived in Arizona, Carrera loaded the car onto
a trailer. Betty’s mother then offered to watch the baby while the
3. “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.
Rosen, 2021 UT App 32, n.1, 484 P.3d 1225 (quotation simplified).
In particular, the facts set forth in the first few paragraphs of this
section reflect Betty’s account of the events in question.
20181053-CA 2 2022 UT App 100State v. Carrera
couple visited the casinos in nearby Mesquite, Nevada. While at
the casinos, Carrera became “[r]eally drunk.” On their way back
to her mother’s house, Betty told Carrera that she wanted him to
move out. After picking up the baby, Carrera and Betty then
drove back toward Milford and “were fighting the whole time”
about Carrera moving out. As they approached Milford,
Carrera—who was driving—did not proceed directly home but,
instead, expressed a desire to visit the residence of one of Betty’s
coworkers (Coworker), with whom he believed Betty was having
an affair. By this point, it was approximately 2:00 a.m. When Betty
refused to show Carrera where Coworker lived, Carrera pulled a
knife from his pocket, held it to Betty’s neck, and demanded to
know where Coworker lived. Betty then directed Carrera to
Coworker’s house, where Carrera—still with the knife to her
neck—told Betty that he was going to take her to the door, kill her,
and let Coworker watch as she bled to death.
¶4 Carrera did not follow through on this threat, but he did
make a shallow cut on Betty’s neck with the knife. With Betty now
bleeding from her neck, Carrera put the car into gear and drove
away from Coworker’s house, telling Betty that he was going to
go visit two of her friends—both of whom lived nearby—and that
he was going to kill them and their children in retribution for their
alleged involvement in the supposed affair between Betty and
Coworker. But Carrera did not follow through with this threat
either, and instead drove into a nearby canyon.
¶5 On their way up the canyon, Carrera instructed Betty to
take off her clothes and told her that he was going to drop her off
and force her to walk back home naked. He then forced Betty out
of the truck and she began walking, but Carrera made her return
to the truck once he saw that they were close to a campground.
Soon thereafter, Carrera undid his pants and attempted “to insert
his penis into [Betty’s] anus.” Betty asked him to “please stop,”
which he eventually did, but Carrera then inserted his fingers into
Betty’s anus “two or three times.” A few minutes later, Carrera
20181053-CA 3 2022 UT App 100State v. Carrera
punctured Betty’s shoulder with the knife and again inserted his
fingers into her anus as well as her vagina.
¶6 Carrera then drove back down the canyon, and Betty asked
him to take her home, assuring him that she would never tell
anyone about what had happened that night. Carrera told her that
if she did tell anyone, he would kill her and her family. The couple
eventually returned to their house, and Betty took the baby inside
to put him to sleep. She then got dressed and went into the
kitchen, where Carrera had poured shots of tequila. Betty told
Carrera that she did not want to drink, but Carrera insisted. When
Betty drank the shot, she started to vomit, which caused the
wound on her neck—which had stopped bleeding—to reopen
and start to bleed again. Betty and Carrera then proceeded to the
bedroom, where Carrera took Betty’s clothes off, performed oral
sex on her, and had vaginal intercourse with her. Betty testified
that she was “scared” and “just did whatever [Carrera] told [her]
to do.” After Carrera had fallen asleep, Betty took the knife from
his shorts, woke up her fifteen-year-old son, and told him to hide
the knife under his mattress. Betty then explained to her son some
of what had happened, and at that point, they—along with the
baby—left the home and went to Betty’s father’s house. Soon after
they arrived, Betty’s father called the police. Betty was then taken
to the hospital for examination of her injuries.
¶7 After investigation, the State charged Carrera with various
crimes, including one count of aggravated kidnapping, five
counts of object rape, three counts of forcible sodomy, one count
of rape, one count of aggravated sexual assault, one count of
aggravated assault, one count of commission of domestic violence
in the presence of a child, and three counts of threat of violence. 4
4. Carrera was also charged with one count of damage to, or
interruption of, a communication device, but that count was
dismissed by the trial court after the preliminary hearing.
20181053-CA 4 2022 UT App 100State v. Carrera
¶8 Very early on in the case, long before trial, Carrera filed a
motion to change venue, asserting that because Betty’s family is
well-known within Beaver County, and because of the
“inaccurate rumors that have permeated the Beaver County
communities stemming from” the allegations against him,
Carrera would not receive a fair trial in Beaver County. The trial
court denied this motion.
¶9 Also prior to trial, the State filed a motion seeking to
introduce evidence, pursuant to rule 404(b) of the Utah Rules of
Evidence, that Carrera had committed various bad acts in the
past, including on one occasion brandishing a knife and on
another occasion stabbing someone in the stomach. After oral
argument, the court denied the State’s motion, concluding, among
other things, that any probative value these incidents might have
was substantially outweighed by the risk of unfair prejudice.
¶10 The case proceeded to a three-day jury trial. During jury
selection, the court asked the members of the jury pool if they
knew any of the potential witnesses in the case. In response, a
potential juror (Juror) stated that one of the law enforcement
officers (Deputy) who had investigated the case was married to
her cousin. The court then asked Juror if she would give more
weight to Deputy’s testimony because she was familiar with him.
Juror responded affirmatively, and indicated that she would give
his testimony more weight “because I trust him.” Carrera’s
attorney (Trial Counsel) did not challenge Juror for cause or use a
peremptory strike to remove her from the jury venire, and Juror
ultimately sat as a juror during the trial. After the jury was
selected, Trial Counsel passed on the jury for cause.
¶11 During his opening statement, the prosecutor referred to
Betty as “the victim,” stating that the blood on the knife “belonged
to the victim, [Betty].” Trial Counsel likewise referred to Betty as
a “victim” during his opening, stating that the prosecutor was
only relaying one side of the story, i.e., “what his victim said.”
20181053-CA 5 2022 UT App 100State v. Carrera
¶12 In support of its case-in-chief, the State called various
witnesses, including Betty, who testified about the events as
described above. Before cross-examining Betty, Trial Counsel
informed the court—outside the presence of the jury—that he was
going to use a video recording of Betty’s police interview as part
of his questioning, but that he would be using only certain parts,
because there were other parts of the interview that “go into” the
rule 404(b) evidence that the court had already ruled was
inadmissible. During cross-examination, however, Trial
Counsel—apparently by mistake—played for the jury a portion of
the video recording in which Betty discussed Carrera’s prior
violent incidents. In particular, the jury heard Betty say, “He’s—
he’s done this before, like I know you know—I know there was
times, because like I said, he—there was, you know, charges of
stabbing somebody else.”
¶13 The State then called the doctor (Doctor) who examined
Betty’s injuries at the hospital. When Betty arrived at the hospital,
the wound on her neck “was not actively bleeding” and
“appear[ed] to be superficial.” By the time Doctor saw her, he
observed “some blood dripping down” from the wound, and had
some concern, due to the location of the wound, that Betty might
have sustained damage to the underlying structures in the neck,
including the jugular vein and the carotid artery. Upon closer
inspection, however, Doctor discovered that the cut—described
as being one to one-and-a-half centimeters in length and two to
three millimeters in depth—“was not at a depth where it would
injure those structures.” Doctor testified generally about “cut[s]
such as this one,” stating that such cuts will “quite possibl[y]”
stop bleeding on their own, but that “it’s also very possible that if
left untreated, [such a cut] could continue to bleed to the point
where it could threaten someone’s life” and that “[u]nder the right
circumstances” such a cut could conceivably “threaten someone’s
life.” With regard to Betty’s specific cut, however, Doctor testified
that it did not require stitches and was ultimately treated just with
antibiotic ointment and a bandage. And on cross-examination,
20181053-CA 6 2022 UT App 100State v. Carrera
Doctor acknowledged that “this particular slice to the neck was
not . . . life threatening.” Doctor also described the puncture
wound to Betty’s shoulder as “superficial.”
¶14 Also on cross-examination, Trial Counsel asked a set of
questions apparently designed to elicit testimony from Doctor
that he was not making a medical diagnosis that Betty had been
sexually assaulted, but instead was merely taking Betty at her
word that an assault had occurred. Doctor acknowledged that he
based his medical examination on what Betty reported. In
connection with this line of questioning, Doctor testified that
Betty’s consistency in relaying her experience to Doctor “caused
[him] to believe her story.” Then, during redirect examination, the
State engaged in the following exchange with Doctor:
Q: Was there anything in your exam that led
you to believe that [Betty] was not telling the
truth?
A: No.
Q: Okay. In fact, there was evidence that
suggested to you that she was in fact telling
the truth, correct?
A: Yes, there was.
¶15 The State also called a law enforcement officer (Officer)
who testified about her involvement in the case. During his cross-
examination of Officer, Trial Counsel again referred—six times—
to Betty as “the victim,” and Officer, in response, referred to Betty
as “the victim” three times.
¶16 Also during its case-in-chief, and in an apparent effort to
speed up the trial, the State offered to present Deputy’s testimony
via proffer instead of having him testify in person. Trial Counsel
20181053-CA 7 2022 UT App 100State v. Carrera
stipulated to this procedure, and the State made the following
proffer:
So we have agreed that [Deputy] is not going to be
testifying to help condense things and wrap things
to an end more quickly. So the stipulated proffer is
this, that if called to testify he would state on the
date of [Carrera’s arrest], he showed up that
morning in response to a call, that he first went to
the home of [Betty’s] father, and then he went to the
home of [Betty]. There he met [Officer] who then
went with him into the home . . . and apprehended
[Carrera].
On top of that, he would testify that he transported
[Carrera] to the corrections facility, that he
attempted to interview [Carrera]. [Carrera]
declined. Then he went to the hospital, interviewed
[Betty], and then went back and executed a warrant
on the vehicles and finished up also with the
warrant of taking a blood draw from [Carrera]. I
believe that’s the proffer.
Trial Counsel then indicated that he accepted the proffer.
¶17 The next day, the State offered the following additional
testimony of Deputy by proffer:
So your Honor, ladies and gentlemen, in my haste
to speed things up and save a little time, as I was
making the proffer yesterday I did omit one crucial
fact, and I have a stipulation from the parties that in
addition to [Deputy’s] other testimony, he would
have also testified that upon apprehending
[Carrera] at [Betty’s] home, that during the course of
questioning [Carrera] about what happened,
[Carrera] stated that he could not remember
20181053-CA 8 2022 UT App 100State v. Carrera
anything from the night before after Mesquite. That
would be [Deputy’s] testimony.
Trial Counsel also stipulated to this additional proffer.
¶18 For his part, Carrera testified in his own defense and gave
a much different account of the evening’s events than Betty had.
Carrera stated that he and Betty had a positive relationship up
until their baby was born, but offered his view that “women
change when they have babies,” and that Betty became more
irritable after the birth of their son. He testified that on the night
of the events in question, Betty had more to drink than he did, and
that on the ride back to her mother’s house from the casinos, the
two were arguing about Carrera’s gambling and moving out of
Betty’s home. He acknowledged that, on the drive back to
Milford, he asked Betty about her involvement with Coworker,
but he testified that it was Betty’s idea to drive to Coworker’s
house because Betty wanted to have Coworker tell Carrera that
nothing untoward was going on.
¶19 Carrera also testified that, upon arriving at Coworker’s
house, he refused to allow Betty to approach Coworker’s door.
Carrera acknowledged driving up a canyon but testified that,
while in the canyon, Betty got upset with him and got out of the
truck and “started walking.” He stated that, after Betty returned
to the truck, she took off her clothes and stated, “I want to have
sex while you’re driving.” Carrera testified that he declined
Betty’s invitation, and that she again became upset with him. He
stated that, after they returned home, it was Betty’s idea to drink
shots of tequila. But according to Carrera, after Betty took her first
shot, “she started gagging and blood was suddenly all over the
counter.” He stated that Betty appeared unconcerned about the
blood coming from her neck and refused to go to the hospital, and
stated that he does not know how Betty got the cut and that he
“never” held a knife to her neck. Carrera testified that Betty then
20181053-CA 9 2022 UT App 100State v. Carrera
made her way to the bedroom, where she initiated consensual
sexual activity with him.
¶20 During closing argument, while discussing Carrera’s
version of events, the prosecutor stated that if Betty had actually
cut herself on the neck “[s]he would have had to have tricked a
medical doctor.” The prosecutor also referred to Betty as “the
victim” approximately eight times during his closing argument.
Even Trial Counsel referred to Betty as a “victim” once during his
closing argument.
¶21 The jury ultimately found Carrera guilty as charged on all
sixteen counts and additionally found that, “during the course of
the commission of the aggravated kidnapping,” Carrera had
caused “serious bodily injury” to Betty. Carrera was then
sentenced to various prison terms, including life in prison without
the possibility of parole on the aggravated kidnapping count.
ISSUES AND STANDARDS OF REVIEW
¶22 Carrera now appeals and presents three issues that require
our consideration. 5 First, Carrera asserts that the trial court
committed plain error when it submitted two of the three forcible
sodomy counts to the jury. Second, Carrera argues that the court
again committed plain error by submitting to the jury the serious
bodily injury enhancement regarding the aggravated kidnapping
charge. “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
5. Carrera also raises other issues not listed in this paragraph,
including a request for a remand pursuant to rule 23B of the Utah
Rules of Appellate Procedure. We need not reach the merits of
those other issues in light of our resolution of the three listed
issues. We do, however, briefly discuss one additional issue—the
propriety of holding this trial in Beaver County—later in this
opinion. See infra note 13.
20181053-CA 10 2022 UT App 100State v. Carrera
the [trial] court; and (iii) the error is harmful.” State v. Hedgcock,
2019 UT App 93, ¶ 11, 443 P.3d 1288 (quotation simplified).
¶23 Third, Carrera asserts that Trial Counsel, in various ways,
rendered constitutionally ineffective assistance. “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 (quotation simplified).
ANALYSIS
I. Forcible Sodomy
¶24 The State charged Carrera with three counts of forcible
sodomy. The parties agree that the first count concerned Betty’s
allegation that Carrera performed unwanted oral sex on her and
that the second count concerned Betty’s allegation that Carrera
attempted to insert his penis into Betty’s anus without her
consent. With regard to the third count, the parties are both at a
loss to explain what that count was for, and the State
acknowledges that no evidence supporting any such third count
of forcible sodomy was presented at trial.
¶25 We need not concern ourselves with the first count,
because Carrera’s challenge, as concerns the forcible sodomy
charges, is limited to the second and third counts: that is, he agrees
that there was enough evidence presented at trial to support a
conviction on the first count.
¶26 And we need not spend much time discussing the third
count either. With regard to that mysterious count, the State does
not contest Carrera’s challenge on appeal. That is, the State
acknowledges that it presented no evidence supporting a third
count of forcible sodomy at trial, and it agrees with Carrera that—
20181053-CA 11 2022 UT App 100State v. Carrera
in light of the absence of evidence—the trial court plainly erred
by submitting that count to the jury for its consideration. 6 On this
basis, the State stipulates “that one of Carrera’s convictions for
forcible sodomy should be vacated.”
¶27 Thus, the only disagreement between the parties regarding
the forcible sodomy counts concerns the second one—the one
regarding Betty’s allegation that Carrera attempted to insert his
penis into her anus. Carrera contends that insufficient evidence
supports his conviction on that count, and asserts that the trial
court plainly erred by submitting this count to the jury.
Specifically, Carrera asserts that the State presented insufficient
evidence at trial that his penis actually touched Betty’s anus.
¶28 Under Utah law, a person commits forcible sodomy when
that person engages in “any sexual act with a person who is 14
years of age or older involving the genitals of one person and
mouth or anus of another person, regardless of the sex of either
participant,” and does so without the other individual’s consent.
See Utah Code Ann. § 76-5-403(1), (2) (LexisNexis 2017). 7 Thus, to
6. The State’s concession on this point necessarily includes an
acknowledgment that, even in the absence of any objection by the
defendant, it is possible for trial judges to commit reversible error
by allowing charges supported by insufficient evidence to be
submitted to the jury. Thus, even the State agrees that trial judges,
in criminal cases, have at least some affirmative gatekeeping role
to play in assessing whether the evidence is sufficient to support
the charges levied by the State. The scope of this role is further
discussed in other sections of this opinion.
7. This statute has been subject to some recent amendments that
are immaterial to this case. In this opinion, we cite to the 2017
version of the relevant statutes, which is the version that was in
effect at the time of the events giving rise to this case. See State v.
(continued…)
20181053-CA 12 2022 UT App 100State v. Carrera
secure a conviction for forcible sodomy, the State must present
evidence that, among other things, the genitals of one individual
touched the mouth or anus of another individual. But
importantly, “any touching, however slight, is sufficient to
constitute the relevant element of the offense.” See id. § 76-5-
407(2)(b)(iii).
¶29 In assessing a sufficiency of the evidence challenge, even
outside the plain error context, we will reverse only where “the
evidence is sufficiently inconclusive or inherently improbable
such that reasonable minds must have entertained a reasonable
doubt that the defendant committed the crime for which he or she
was convicted.” State v. Jok, 2021 UT 35, ¶ 17, 493 P.3d 665(quotation simplified). And where, as here, a defendant is
claiming plain error in relation to his sufficiency of the evidence
challenge, the defendant must also show that “the insufficiency
was so obvious and fundamental that the [trial] court erred in
submitting the case to the jury.” State v. Blais, 2020 UT App 4, ¶ 10,
458 P.3d 1143 (quotation simplified). Applying this standard, we
conclude that the trial court did not plainly err by submitting the
second forcible sodomy count to the jury.
¶30 At trial, Betty testified that, at one point in the evening,
Carrera undid his pants and attempted “to insert his penis into
[her] anus.” When the prosecutor began to ask a question that
started with “[c]ould you feel . . . ,” Betty quickly replied that
Carrera “didn’t fully . . . I kind of stopped him.” The prosecutor
then asked, “[c]ould you feel his penis as he was trying to force it
inside of you?”, to which Betty responded affirmatively.
¶31 We acknowledge Carrera’s point that Betty did not
expressly state that Carrera’s penis touched her anus. But she did
Stewart, 2011 UT App 185, ¶ 1 n.1, 257 P.3d 1055 (stating that “we
cite to the version of the statute in effect at the time the crimes
were committed”).
20181053-CA 13 2022 UT App 100State v. Carrera
state that her anus was the particular body part into which
Carrera tried to insert his penis, and she testified that she could
feel his penis as Carrera was trying to force it inside of her, even
if Carrera “didn’t fully” insert it. While this testimony could
perhaps have been clearer, we cannot say that the insufficiency of
the State’s evidence that Carrera touched Betty’s anus with his
penis was “obvious and fundamental” enough to obligate the trial
court to intervene, sua sponte, and take the issue from the jury.
See Blais, 2020 UT App 4, ¶ 10 (quotation simplified). Accordingly,
the trial court did not commit plain error in submitting the second
forcible sodomy count to the jury.
¶32 We therefore reject Carrera’s argument regarding the
second forcible sodomy count, but we vacate Carrera’s conviction
on the third count of forcible sodomy and remand with
instructions for entry of acquittal on that count.
II. Serious Bodily Injury 8
¶33 The jury, as part of its verdict, not only convicted Carrera
of aggravated kidnapping, but it also found—in connection with
that charge—that Carrera caused Betty to sustain a “serious
bodily injury.” Although Carrera does not challenge the
sufficiency of the evidence supporting the jury’s determination
that he committed aggravated kidnapping, he does challenge the
sufficiency of the evidence supporting the jury’s finding that, in
the course of that kidnapping, he inflicted a “serious bodily
injury” upon Betty. But because he did not make a motion for
directed verdict on that issue, he asks us to review the issue for
plain error, asserting that the trial court plainly erred by allowing
that issue to be submitted to the jury. The jury’s finding of
“serious bodily injury” was important, because it was the thing
8. This section functions as a dissenting opinion, with Judge
Harris writing only for himself. The opinion of the court as to this
issue is set forth in Justice Hagen’s separate opinion.
20181053-CA 14 2022 UT App 100State v. Carrera
that raised the ceiling on Carrera’s sentence to life in prison
without the possibility of parole.
¶34 Under Utah law, a person commits “kidnapping” if the
person “intentionally or knowingly, without authority of law, and
against the will of the victim . . . detains or restrains the victim for
any substantial period of time.” Utah Code Ann. § 76-5-301(1)(a)
(LexisNexis 2017). A kidnapping becomes an aggravated
kidnapping if, as relevant here, the perpetrator “uses, or threatens
to use a dangerous weapon” during the kidnapping. Id. § 76-5-
302(1)(a). A knife can be a “dangerous weapon” for purposes of
this statute. See, e.g., State v. Berriel, 2011 UT App 317, ¶ 12, 262
P.3d 1212, aff’d, 2013 UT 19, 299 P.3d 1133; State v. Kerr, 2010 UT
App 50, ¶ 5, 228 P.3d 1255.
¶35 A person convicted of aggravated kidnapping is subject to
various possible sentences, depending on certain variables. See
Utah Code Ann. § 76-5-302(3), (4). The base sentence is fifteen
years to life, which is raised to “life without parole” if, during the
course of the kidnapping, the defendant causes “serious bodily
injury to another.” Id. § 76-5-302(3)(a), (b). Thus, without a finding
of “serious bodily injury,” the maximum sentence that could have
been imposed upon Carrera for aggravated kidnapping would
have been fifteen years to life. Id. § 76-5-302(3)(a), (4). But with a
finding of “serious bodily injury,” the trial court had the
discretion to—and did here—sentence Carrera to a term of life in
prison without the possibility of parole. Id. § 76-5-302(3)(b).
¶36 “Serious bodily injury” is a term that is defined by statute.
Our legislature has decreed that, in this context, “serious bodily
injury” is “bodily injury that creates or causes serious permanent
disfigurement, protracted loss or impairment of the function of
any bodily member or organ, or creates a substantial risk of
death.” Id. § 76-1-601(11). In this case, the State makes no claim
that Carrera injured Betty in a way that caused “serious
permanent disfigurement” or “protracted loss or impairment of
20181053-CA 15 2022 UT App 100State v. Carrera
the function of any bodily member or organ.” Instead, the State
directs our attention to the third listed item in the statutory
definition, and asserts that Carrera inflicted a “bodily injury” on
Betty—the cut on her neck—that created a “substantial risk of
death.” 9 But in my view, the State’s assertion is not borne out by
the evidence presented at trial.
¶37 The cut on Betty’s neck simply did not create a substantial
risk of death to Betty. The cut was only one to one-and-a-half
centimeters in length and two to three millimeters in depth, and
it had stopped bleeding—twice—before Betty received any
professional medical attention. At the hospital, the cut was
ultimately treated only with antibiotic ointment and a bandage.
Although Doctor testified generally that a cut like this one, if left
9. In this context, in order for the sentencing enhancement to
apply, it is the “injury” inflicted during the kidnapping—and not
necessarily the defendant’s actions during the kidnapping—that
must create “a substantial risk of death.” See Utah Code Ann.
§§ 76-1-601(11), 76-5-302(3)(b) (LexisNexis 2017). In this way, the
statutory scheme regarding kidnapping differs from the statutory
scheme regarding murder; in the murder context, a defendant
who “knowingly engages in conduct which creates a grave risk of
death to another and thereby causes the death of another” is
subject to prosecution for murder, see id. § 76-5-203(2)(c), and a
defendant who, in the course of committing a murder, creates “a
great risk of death to a person other than the victim” is subject to
conviction for aggravated murder, see id. § 76-5-202(1)(c); see also
State v. Sosa-Hurtado, 2019 UT 65, ¶¶ 25–46, 455 P.3d 63. Because
the statutory requirements for the sentencing enhancement in the
kidnapping context require an examination of whether the injury
Carrera inflicted created a substantial risk of death, I do not focus
on whether any of Carrera’s other actions that night—for instance,
driving while intoxicated, or holding a knife to Betty’s neck—
created a great, grave, or substantial risk of death to Betty or
anyone else.
20181053-CA 16 2022 UT App 100State v. Carrera
untreated, “could continue to bleed to the point where it could
threaten someone’s life,” he clarified that “this particular slice to
the neck was not . . . life threatening.” The State presented no other
evidence tending to indicate that this particular injury created any
risk of death to Betty, let alone a substantial one.
¶38 Even if one were to assume, for the purposes of this
discussion, that Betty’s cut put her at some remote or infinitesimal
risk of bleeding to death, the statutory command must be
interpreted as a whole, and that command includes the word
“substantial.” See id. § 76-1-601(11). The legislature has not
defined the word “substantial” for use in this context, and in such
situations courts interpret statutory language “according to the
plain meaning of [its] text.” See Olsen v. Eagle Mountain City, 2011
UT 10, ¶ 9, 248 P.3d 465 (quotation simplified). “Dictionaries,
other sections of the Utah Code, judicial opinions, and treatises
may be useful tools in this endeavor.” Muddy Boys, Inc. v.
Department of Com., 2019 UT App 33, ¶ 16, 440 P.3d 741 (quotation
simplified). Dictionaries indicate that the word “substantial”
connotes something “large in size, value, or importance.” See
Substantial, Cambridge Dictionary, https://dictionary.cambridge.
org/us/dictionary/english/substantial [https://perma.cc/D5T6-AC
M5]; see also Substantial, Merriam-Webster Dictionary, https://ww
w.merriam-webster.com/dictionary/substantial [https://perma.cc
/BYS9-9NKF] (stating that “substantial” means “considerable in
quantity”).
¶39 These dictionary definitions comport with the
understanding of the phrase espoused by our supreme court in
State v. Standiford, 769 P.2d 254 (Utah 1988). In that case, the court
explored the differences between a “grave risk of death”—the
phrase used in the “depraved indifference” murder statute—and
a “substantial and unjustifiable risk of death”—the phrase used in
the statutory definition of recklessness, and which applied to
manslaughter charges. Id. at 263–64. The court noted that,
linguistically, “there is no meaningful difference between” the
20181053-CA 17 2022 UT App 100State v. Carrera
two phrases, but concluded that legally, there had to be a
difference, because one led to a more serious conviction than the
other. Id. The court thus held that a “‘grave risk of death’ means a
highly likely probability that death will result,” while a “substantial
and unjustifiable risk of death” means something less than that.
Id. at 264. But given the close linguistic relationship between the
two phrases, I read Standiford as instructing us that a “substantial
risk of death” means something close to—but not quite the same
thing as—a “highly likely probability that death will result.” See id.
Indeed, other courts considering the meaning of the phrase
“substantial risk” in similar contexts have construed it to mean
“risks so great that they are almost certain to materialize if
nothing is done.” See Brown v. Budz, 398 F.3d 904, 911 (7th Cir.
2005) (quotation simplified).
¶40 The neck wound Betty sustained did not create this sort of
risk of death, even if one assumes that it created at least some non-
zero risk of death. The small cut Betty sustained contrasts sharply
with the sort of injuries that, in other cases, have been considered
to generate at least a jury question about whether they created a
substantial risk of death. See, e.g., State v. Bloomfield, 2003 UT App
3, ¶¶ 17–18, 63 P.3d 110 (concluding that sufficient evidence
existed to support a finding of “serious bodily injury” where the
victim was “severely beaten” to unconsciousness and had his
head “kicked and stomped,” which resulted in a head contusion,
among other injuries); State v. Poteet, 692 P.2d 760, 764 (Utah 1984)
(upholding a finding of “serious bodily injury” where the victim
was “beaten so badly that he did not regain consciousness for 15
to 18 hours after the assault” and the treating physician at trial
testified that he “very well could have died” (quotation
simplified)); State v. King, 604 P.2d 923, 925–26 (Utah 1979)
(holding that sufficient evidence existed to support a finding of
“serious bodily injury” where the victim “was choked into
unconsciousness and stabbed with a pair of scissors” in the chest,
resulting in a punctured lung). While the term “substantial risk of
death” may not lend itself to a precise definition, I am quite
20181053-CA 18 2022 UT App 100State v. Carrera
comfortable concluding that Betty’s injury, as described at trial,
did not create any such risk. 10
¶41 I recognize that, due to Trial Counsel’s failure to make a
motion for directed verdict on this point, this court is reviewing
the trial court’s actions for plain error. And I also recognize that
expecting trial judges to be ready to step in and take matters from
a jury, in the absence of a motion or objection from any party, runs
counter to our adversarial-based system and perhaps even to
judges’ usual expectations. See State v. Holgate, 2000 UT 74, ¶ 14,
10 P.3d 346 (“As a general rule, to ensure that the trial court
addresses the sufficiency of the evidence, a defendant must
request that the court do so.”). But plain error review exists in
criminal cases for good reason: in such cases, an individual’s
personal liberty is at stake. Indeed, “plain error review first
developed in criminal cases involving the life and liberty of the
citizen, such as capital cases and cases of grave and serious
charged offenses and convictions of long terms of imprisonment,”
and was eventually extended to “all” criminal cases “due to the
significant liberty interests at stake in such cases.” See Kelly v.
10. The State resists this conclusion, in part, by relying on State v.
Anh Tuan Pham, and its declaration that “it is within the province
of the jury to consider the means and manner by which the
victim’s injuries were inflicted along with the attendant
circumstances in determining whether a defendant caused
serious bodily injury.” 2016 UT App 105, ¶ 22, 372 P.3d 734(quotation simplified). But just five paragraphs later, we also held
in Anh Tuan Pham that we will vacate a defendant’s conviction due
to insufficiency of the evidence “if we determine that the evidence
is so inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt as to whether the
defendant committed the crime of which he or she was
convicted.” Id. ¶ 27. And here, in my view, no reasonable jury
could have concluded, on the evidence presented at this trial, that
Betty’s cut created a substantial risk that she could bleed to death.
20181053-CA 19 2022 UT App 100State v. Carrera
Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42, 507 P.3d
357 (quotation simplified). Those policies are certainly implicated
here, where the “serious bodily injury” finding is the factor that
raised the ceiling on Carrera’s possible sentence from fifteen years
to life up to life in prison without the possibility of parole. Trial
judges in criminal cases have a perhaps-rarely-invoked but
nevertheless important role to play—even in the absence of a
motion or an objection—in assessing the sufficiency of the charges
and enhancements that are submitted to the jury. See Utah R.
Crim. P. 17(o) (“At the conclusion of the evidence by the
prosecution, or at the conclusion of all the evidence, the court may
issue an order dismissing any information or indictment, or any
count thereof, upon the ground that the evidence is not legally
sufficient to establish the offense charged therein or any lesser
included offense.”). Indeed, our supreme court has instructed
that, “even when a defendant fails to move the court for relief
based on the sufficiency of the evidence,” the court “‘shall’”
nevertheless “grant relief when the evidence is insufficient, . . . but
only when the evidentiary defect is ‘apparent’ to the trial court.”
Holgate, 2000 UT 74, ¶ 15 (quoting Utah Code section 77-17-3,
which provides that a trial court “shall forthwith order” a
defendant “discharged” if “it appears to the court that there is not
sufficient evidence to put a defendant to his defense”).
¶42 On this record, the evidence was insufficient to support the
jury’s finding that Betty sustained a “serious bodily injury.” And
in my view, “the insufficiency was so obvious and fundamental
that the [trial] court erred in submitting the [issue] to the jury.”
See State v. Blais, 2020 UT App 4, ¶ 10, 458 P.3d 1143 (quotation
simplified); see also Holgate, 2000 UT 74, ¶ 17 (stating that “the trial
court plainly errs if it submits the case to the jury and thus fails to
discharge a defendant when the insufficiency of the evidence is
apparent to the court”). It should have been apparent to the court
that this particular cut did not create anything close to a
“substantial risk of death.” Not only did the sole medical
professional to testify about the injury state that it was a
20181053-CA 20 2022 UT App 100State v. Carrera
“superficial” cut that was “not life threatening” and needed
treatment only with the equivalent of Neosporin and a Band-Aid,
the trial court also had the chance to observe photographs of the
injury that were taken on the day of the incident and that were
admitted into evidence. I include one of those photographs here—
taken upon Betty’s arrival at the hospital—to illustrate that the
non-life-threatening nature of this cut should have been apparent:
¶43 The majority concludes that it wasn’t necessarily
“apparent” to the trial court that this cut was not a “serious bodily
injury” that created a “substantial risk of death.” It points to
evidence that the cut bled a lot and soaked through a pair of shorts
that Betty used to apply pressure to her neck. And it points to
Doctor’s testimony that, if such cuts go completely untreated, it is
conceivable that they could lead to enough blood loss to cause
death. But there is no evidence that Carrera ever tried to prevent
Betty from applying pressure to the cut, or that Betty was ever in
a position where she was mentally or physically unable to attend
to it. And when such cuts are attended to, they do not lead to any
20181053-CA 21 2022 UT App 100State v. Carrera
risk of death, let alone a “substantial” one, because they are
simply and easily dealt with, without the necessity of any
professional medical treatment. Indeed, the only “treatment”
such wounds require is quite simple: apply pressure until you can
find a Band-Aid. Any person who has lived on this planet for
longer than a few months has sustained cuts like this. And it is
well within the ken of human experience to know that cuts like
this do not create a substantial risk of death, under any
meaningful definition of the word “substantial.”
¶44 The majority also worries that finding plain error here
would “eliminat[e] the distinction between preserved and
unpreserved sufficiency claims arising from jury trials.” See infra
¶ 104. The majority—citing Holgate, 2000 UT 74, ¶ 17—is
apparently under the impression that the only situation in which
an evidentiary insufficiency can be “apparent” to a trial court is a
situation in which there is literally no evidence to support a
conviction. But this is not what our supreme court said in Holgate.
There, the court observed that “it is difficult” for an appellate
court “to dictate when an evidentiary defect was apparent to the
trial court,” but stated that “there is a certain point at which an
evidentiary insufficiency is so obvious and fundamental that it
would be plain error for the trial court not to discharge the
defendant.” Id. By way of example, the court offered a “case in
which the State presents no evidence to support an essential
element of a criminal charge.” Id. But that was just an example;
there is no indication, in Holgate or anywhere else, that the plain
error exception is limited to cases in which there is literally no
evidence to support the conviction.
¶45 And I consider the majority’s concerns about eliminating
the distinction between the two parts of the plain error test to
be somewhat overwrought. As the majority itself acknowledges,
“in the twenty-two years since Holgate was decided,” Utah
appellate courts “have yet to identify . . . a circumstance” in which
“the insufficiency of the evidence would be ‘apparent’” to a trial
20181053-CA 22 2022 UT App 100State v. Carrera
court. See infra ¶ 96. Given this, it seems to me that the greater
concern—based on twenty-two years of appellants striking out—
is that we might be interpreting our test too strictly. In my view,
that is what the majority is doing here. After all, if the
insufficiency of the evidence in this case is not considered
“apparent” to the trial court, I am hard-pressed to imagine a
situation (other than the complete absence of evidence) in which
it ever would be. But that can’t be right, given that our supreme
court has never narrowed the test simply to “no evidence” cases,
and given the statutory mandate commanding trial courts to
“discharge[]” defendants whenever “it appears to the court that
there is not sufficient evidence.” See Utah Code Ann. § 77-17-3(LexisNexis 2017).
¶46 The injury to Betty’s neck was a minor cut that, by way of
treatment, needed only pressure, antibiotic ointment, and a
bandage. It had stopped bleeding twice even before Betty
sought medical attention. The only medical professional to
testify about the injury stated that it “was not . . . life threatening.”
And yet the jury’s decision to construe this cut as a “serious
bodily injury” was the only thing that made Carrera eligible for
a sentence of life in prison without the possibility of parole.
Under these circumstances, the elements of plain error are met: it
should have been obvious to the court that this injury fell short of
creating a substantial risk of death, and the court’s error
prejudiced Carrera by leading to a significant increase in his
sentence.
¶47 For the reasons discussed below relating to the
ineffectiveness of Trial Counsel, we vacate Carrera’s entire
conviction for aggravated kidnapping. But if Carrera is re-tried on
that charge, in my view the “serious bodily injury” sentencing
enhancement should not be submitted to the jury, because the
State did not produce sufficient evidence to establish beyond a
reasonable doubt that Carrera caused any such injury to Betty.
20181053-CA 23 2022 UT App 100State v. Carrera
III. Ineffective Assistance of Counsel
¶48 Finally, Carrera asserts that Trial Counsel rendered
constitutionally ineffective assistance. To succeed on this claim,
Carrera must make a two-part showing: (1) that Trial Counsel’s
performance was deficient in that it “fell below an objective
standard of reasonableness,” and (2) that this deficient
performance “prejudiced the defense” such that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871.
¶49 Carrera asserts that Trial Counsel was ineffective in
various particulars, four of which require our attention here:
(1) Trial Counsel’s failure to object to the presence of an actually
biased juror on the jury; (2) Trial Counsel’s presentation, to the
jury, of the portion of Betty’s police interview in which she
mentioned Carrera’s previous bad acts; (3) Trial Counsel’s
participation in eliciting, and failure to object to, Doctor’s
testimony vouching for the veracity of Betty’s account of the
relevant events; and (4) Trial Counsel’s participation in, and
failure to object to, referring to Betty as “the victim.” We first
address whether Trial Counsel performed deficiently in these four
particulars, and conclude that he did. We then discuss whether
Carrera was prejudiced by Trial Counsel’s deficient performance.
A. Deficient Performance
¶50 The first part of the test requires Carrera to show that Trial
Counsel’s performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified). In
evaluating the reasonableness of counsel’s actions, courts will
often look to whether the actions counsel took were motivated by
trial strategy. See id. ¶ 35 (“To be sure, the performance inquiry
will often include an analysis of whether there could have been a
20181053-CA 24 2022 UT App 100State v. Carrera
sound strategic reason for counsel’s actions.”). And while “the
ultimate question is not whether there was a possible strategic
reason for counsel’s conduct, but instead whether that conduct
was objectively reasonable,” see id., “[i]f it appears counsel’s
actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance,” Ray, 2020 UT 12, ¶ 34.
1
¶51 Carrera first contends that Trial Counsel performed
deficiently by allowing an actually biased juror to sit on the jury.
Although we acknowledge that decisions about whether, and
when, to deploy for cause and peremptory challenges to potential
jurors are often made for strategic reasons, we agree with Carrera
that, in this situation, Trial Counsel performed deficiently by not
challenging Juror’s participation.
¶52 While proving ineffective assistance of counsel is never
particularly easy, in the jury selection context a defendant’s task
is even more daunting than usual. In particular, the law requires
courts “to make two distinct presumptions when trial counsel
does not object to, or remove, a particular juror.” State v.
Litherland, 2000 UT 76, ¶ 20, 12 P.3d 92. First, counsel’s actions
with regard to any particular juror are “presumed to be the
product of a conscious choice or preference.” Id. “Second, because
the process of jury selection is a highly subjective, judgmental,
and intuitive process, trial counsel’s presumably conscious and
strategic choice to refrain from removing a particular juror is
further presumed to constitute effective representation.” Id. Our
supreme court has noted that these presumptions are necessary
“because jury selection is more art than science,” and because
“[t]here are a multitude of inherently subjective factors typically
constituting the sum and substance of an attorney’s judgments
about prospective jurors.” Id. ¶ 21. As a result, “because Strickland
requires the presumption that trial counsel’s strategic decisions
20181053-CA 25 2022 UT App 100State v. Carrera
are reasonable, and because trial counsel is justified in relying on
little more than subjective preference for retaining a particular
juror, it follows that the decision not to remove a particular juror
need only be plausibly justifiable.” Id. ¶ 25 (quotation simplified).
Thus, an “appellate court will presume that counsel’s lack of
objection to, or failure to remove, a particular juror was the result
of a plausibly justifiable conscious choice or preference.” Id.
¶53 But this presumption is rebuttable, and a defendant may
accomplish this task by demonstrating, among other things, “that
a prospective juror expressed bias so strong or unequivocal that
no plausible countervailing subjective preference could justify
failure to remove that juror.” Id. Under the rather unique
circumstances presented here, we conclude that Carrera has
rebutted the presumption, and has made the necessary showing
that Trial Counsel performed deficiently by not challenging
Juror’s presence on the jury.
¶54 During jury selection, Juror made it known that Deputy—
one of the primary law enforcement investigators in the case, and
who was scheduled to testify at trial—was married to her cousin.
The court then asked Juror if she would give more weight to
Deputy’s testimony because she was familiar with him. Juror
responded affirmatively, and indicated that she would give his
testimony more weight “because I trust him.” 11 With this
11. Earlier in the jury selection process, Juror had indicated that
she knew Betty, and to further explore that relationship, Juror was
taken into chambers for follow-up questioning. There, Juror
stated that she was friends with Betty’s sister and thus knew Betty
from school, and in addition had played on the same softball team
with Betty, but stated that Betty was more “like an acquaintance”
than a friend. Juror also stated that she had heard “a rumor” about
“what may have happened between” Betty and Carrera. In
chambers, Juror was asked whether she “could be fair” despite
(continued…)
20181053-CA 26 2022 UT App 100State v. Carrera
statement, Juror clearly expressed a bias in favor of Deputy, one
of the State’s scheduled witnesses.
¶55 The first question we must confront is whether this sort of
bias—in favor of a witness as opposed to a party—is the sort of
bias that counts as a “strong or unequivocal” bias for purposes of
our inquiry. See id. We conclude that it is.
¶56 Our supreme court has determined that the sort of bias that
raises concern in this context is not limited to “bias in favor of or
against the prosecution, or in favor of or against the defendant,”
but includes any “bias that would interfere in any manner with a
juror’s deciding evidentiary issues fairly and objectively and
applying objectively the rules of law given to the jury by the trial
judge.” State v. Saunders, 1999 UT 59, ¶ 44, 992 P.2d 951. And in
Hughes v. United States—a case cited favorably as “well-reasoned
authority” by our supreme court, see State v. King, 2008 UT 54,
¶ 18, 190 P.3d 1283—the court concluded that “actual bias” was
present on facts similar to those presented here. See Hughes, 258
F.3d 453, 459–61 (6th Cir. 2001). In Hughes, a prospective juror
stated that she had “a nephew on the police force” in a nearby
town, that she was “quite close” to “a couple of detectives,” and
that as a result she did not think she could be fair in evaluating
testimony from police officers. Id. at 456. The court found this to
be the sort of bias that qualified as “actual bias” for purposes of
evaluating counsel’s effectiveness in failing to strike the juror. Id.her “acquaintance” with Betty and the rumors she had heard, and
she said she “would hope that [she] wouldn’t be biased” and told
the court that she “would listen to both sides and . . . would make
good judgments.” Juror was then taken back into the courtroom
and, a few minutes later, was asked about her relationship with
Deputy. But perhaps because of the clarity of her statement that
she would give more weight to Deputy’s testimony, she was not
asked, by way of follow-up, whether she could be fair and
impartial, notwithstanding her relationship with Deputy.
20181053-CA 27 2022 UT App 100State v. Carrera
at 459–61. The court considered it to be “a clear inference that a
person whose nephew is a member of a local police force, and who
is ‘quite close’ to a few detectives, would be biased against a
defendant who was said to have stolen a government firearm
from a federal marshal at gunpoint.” Id. at 460.
¶57 We acknowledge that, in this case, the crime was not
committed against a law enforcement officer, as was the case in
Hughes. But in Hughes, the juror did not actually know any of the
government’s witnesses personally; her bias was in favor of law
enforcement officers generally. Id. at 456. In this case, by contrast,
Juror was personally acquainted with and related to Deputy, a
law enforcement witness who was scheduled to testify at trial.
And Juror’s unequivocal answers to the court’s questions—
particularly her statement that she “trust[ed]” Deputy and would
give more weight to his testimony than she would to someone
else’s—demonstrated an acknowledged inability to assess
Deputy’s testimony in an impartial, evenhanded way. On these
facts, we have no trouble concluding that Juror’s bias is the sort of
“strong and unequivocal” bias that is of concern in this context.
¶58 And we cannot imagine any plausible countervailing
subjective preference that, in these circumstances, would operate
to justify Trial Counsel’s failure to challenge Juror. See Litherland,
2000 UT 76, ¶ 25. There is no indication, from any of Juror’s
answers to the court’s questions, that Juror possessed any other
characteristics or experiences that might have made Trial Counsel
think that, despite her clearly stated bias toward Deputy, she
would somehow nevertheless have been likely to be a pro-defense
juror, or that she would have been impartial despite her statement
that she could not be. 12 Not even the State attempts to offer a
12. Indeed, the only other things the record reveals about Juror are
that she is a stay-at-home mom who coaches girls’ basketball, and
that she was acquainted with Betty due to playing on the same
(continued…)
20181053-CA 28 2022 UT App 100State v. Carrera
plausible countervailing reason why Trial Counsel might have
decided to leave Juror on the jury despite her clearly stated bias.
¶59 We recognize that, under our supreme court’s recent
articulation of the ineffective assistance of counsel standards, our
inquiry does not end simply because we cannot come up with a
plausible strategic reason for an attorney’s actions. See State v. Ray,
2020 UT 12, ¶¶ 34–36, 469 P.3d 871. We must also consider
whether, even in the absence of any strategic or tactical objective,
a reasonable attorney might have forgone an objection to Juror’s
participation. And on this record, we conclude that a reasonable
attorney would not have forgone an objection to Juror. Deputy
was scheduled to testify about his interactions with Carrera on the
morning Carrera was arrested, and was anticipated to offer
testimony about things Carrera said—and did not say—in the
wake of his arrest. A reasonable attorney should have known that
Deputy’s account would differ, in at least some material respects,
from the account Carrera planned to offer. In our view, it was
objectively unreasonable not to resist the seating of Juror.
¶60 For these reasons, we conclude that Trial Counsel
performed deficiently by failing to challenge Juror’s participation
in Carrera’s trial. 13
softball team and from being friends with Betty’s sister. These
facts appear to cut in the State’s favor, and do not appear to give
rise to a plausible countervailing strategic theory for keeping
Juror on the jury despite her stated bias in favor of Deputy.
13. Juror was not the only potential juror who was related to, or
closely acquainted with, one or more participants at the trial, or
who had heard “rumor[s]” circulating in the community about
the case. After all, Beaver County is a relatively small community,
containing some 7,000 residents. See QuickFacts, Beaver County,
(continued…)
20181053-CA 29 2022 UT App 100State v. Carrera
2
¶61 Carrera next asserts that Trial Counsel performed
deficiently by allowing the jury to view a video recording of Betty
describing some of the very rule 404(b) evidence that the trial
court had already decided was inadmissible. We agree.
¶62 Our rules of evidence state that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). Such
evidence can be admitted for another purpose, however, “such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Id.R. 404(b)(2). Before trial, the State sought to introduce evidence of
certain previous acts Carrera had committed, including evidence
that Carrera had, in one incident, brandished a knife at someone
and, in another, been charged with stabbing an individual in the
Utah, https://www.census.gov/quickfacts/fact/table/beavercount
yutah,US/INC110217 [https://perma.cc/P4K6-EWXD]. It is
therefore not surprising that some members of the jury pool were
acquainted with some of the trial participants. For these and other
reasons, Carrera filed a motion, early in the case, asking for a
change of venue, pointing out that Betty’s family is well-known
in the small community and asserting that he was unlikely to
receive a fair trial in Beaver County. Carrera appeals the trial
court’s denial of this motion, but he waived the issue by passing
on the jury panel for cause. See State v. MacNeill, 2016 UT App 177,
¶¶ 23–25, 380 P.3d 60 (stating that a party who “passed the jury
panel for cause” thereby “forfeited any claim of juror bias and
with it his challenge to the court’s earlier denial of his change-of-
venue motion”). Carrera will, of course, be free to renew the
motion, on remand, with regard to any new trial that is eventually
scheduled, and the court should consider any such motion based
on the circumstances as they exist when the motion is brought.
20181053-CA 30 2022 UT App 100State v. Carrera
stomach. The trial court denied the State’s motion, concluding
that any probative value this evidence might have was
substantially outweighed by a risk of unfair prejudice.
¶63 Notwithstanding this ruling, during the cross-examination
of Betty, Trial Counsel (apparently by mistake) played a portion
of Betty’s police interview that contained the following statement:
“He’s—he’s done this before, like . . . I know there was times,
because like I said, he—there was, you know, charges of stabbing
somebody else.”
¶64 We conclude that Trial Counsel performed deficiently by
allowing the jury to hear this evidence. There is no conceivable
strategic reason for allowing this evidence to be presented to the
jury; indeed, the whole incident appears to have been a mistake.
And we conclude that a reasonable attorney would not have
allowed the jury to hear this evidence, especially after successfully
resisting the State’s efforts to introduce it. Stated another way,
Trial Counsel’s actions in allowing the jury to hear this evidence
“fell below an objective standard of reasonableness.” See State v.
Ray, 2020 UT 12, ¶ 36, 469 P.3d 871.
¶65 The State resists this conclusion by pointing out that Trial
Counsel’s actions were apparently an honest unintended mistake,
and asserting that “[a]ny reasonable attorney could make the
same mistake under these circumstances.” We acknowledge that
no attorney—indeed, no person—is perfect, and that well-
intentioned mistakes occur in even the smoothest trials conducted
by top-flight lawyers. But Trial Counsel’s failure to take steps—
especially after successfully moving, prior to trial, to exclude the
evidence—to ensure that the parts of Betty’s police interview in
which she discusses Carrera’s prior bad acts never reached the
jury was not objectively reasonable. Those steps could have
included, among others, editing the video beforehand so that the
version of the recording to be used at trial did not even contain
the inadmissible portions, or taking steps to better familiarize
20181053-CA 31 2022 UT App 100State v. Carrera
himself with the audiovisual technology used in the courtroom. 14
In short, it was objectively unreasonable for Trial Counsel to have
allowed this to happen, and we cannot characterize this particular
“mistake” as one in keeping with an objective standard of trial
competence. To be sure, even competent attorneys make
mistakes, but when an otherwise-competent attorney makes a
mistake of this magnitude, that attorney has not, in the moment,
acted reasonably.
¶66 Accordingly, we agree with Carrera that Trial Counsel
performed deficiently when he presented to the jury Betty’s
statement that Carrera had previously been charged with
stabbing someone else.
3
¶67 Next, Carrera asserts that Trial Counsel performed
deficiently by helping to elicit, and then not objecting when the
State further elicited, statements from Doctor improperly
vouching for the veracity of Betty’s statements. We agree.
¶68 “Rule 608(a) of the Utah Rules of Evidence prohibits any
testimony as to a witness’s truthfulness on a particular occasion.”
State v. Boyer, 2020 UT App 23, ¶ 44, 460 P.3d 569 (quotation
simplified). And “[w]hile experts may use their expertise to help
the factfinder understand issues at trial, experts cannot testify that
14. Carrera does not specifically assert that Trial Counsel was
ineffective for electing not to seek a curative instruction after the
evidence was mistakenly admitted. Such decisions have strategic
implications, and we have often held that an attorney does not
perform deficiently by failing to seek such an instruction. See, e.g.,
State v. Popp, 2019 UT App 173, ¶ 50, 453 P.3d 657. Accordingly,
we focus on Trial Counsel’s lack of preparation and his failure to
ensure that the inadmissible portions of the video would not be
presented to the jury, and not on potential steps Trial Counsel
might have taken to correct the mistake after the fact.
20181053-CA 32 2022 UT App 100State v. Carrera
a particular witness has or has not told the truth.” Id. (quotation
simplified). In particular, we have classified as inadmissible any
claims by experts that they know how to discern lies from truth,
or that they have made an evidence-based determination that a
witness was telling the truth. See State v. Burnett, 2018 UT App 80,
¶¶ 32–36, 427 P.3d 288 (deeming “improper” certain testimony in
which an expert witness was portrayed “as an expert in being able
to discern truthful sexual abuse allegations from false ones”); see
also State v. Valdez, 2021 UT App 13, ¶ 55, 482 P.3d 861 (classifying
as “improper and inadmissible” certain testimony from a police
officer stating “that he believed [the complaining witness] was
telling the truth” and that he claimed to be “a sort of human lie
detector” able to employ “techniques . . . to ferret out lies”).
¶69 In this case, Trial Counsel began his cross-examination of
Doctor with a line of questioning apparently designed to get
Doctor to acknowledge that he was not making a medical
diagnosis that Betty had been sexually assaulted, but instead was
merely taking Betty at her word that an assault had occurred. In
response, Doctor acknowledged that he based his medical
examination on what Betty reported. So far so good. But a few
minutes later, Doctor commented on how consistent Betty’s story
had been across several medical appointments, and Trial Counsel
asked Doctor if this consistency “caused [him] to believe her
story.” Doctor responded in the affirmative, stating that he did
believe Betty’s story.
¶70 Then, on redirect examination, the State picked up the ball
and ran with it, asking Doctor whether there was “anything in
[his] exam that led [him] to believe that [Betty] was not telling the
truth,” to which Doctor replied, “No.” The State then asked
Doctor to confirm that there was “evidence that suggested to
[him] that she was in fact telling the truth,” and Doctor replied,
“Yes, there was.” Trial Counsel did not lodge any objection to the
State’s questioning in this regard.
20181053-CA 33 2022 UT App 100State v. Carrera
¶71 This vouching testimony is inadmissible. See Burnett, 2018
UT App 80, ¶¶ 32–36; Valdez, 2021 UT App 13, ¶ 55. An objection
to this testimony would very likely have been sustained. And
while we discern a strategic reason for Trial Counsel to try to get
Doctor to acknowledge that he took Betty at her word, that
strategy was successfully completed when Doctor provided that
acknowledgment. Trial Counsel’s decision to later ask whether
Betty’s consistency “caused [Doctor] to believe” Betty was not in
furtherance of this strategy, and gave Doctor an opportunity to
offer an opinion regarding Betty’s credibility. And the testimony
the State elicited on redirect—that the reason Doctor believed
Betty was because there was “evidence” supporting the
conclusion that she was telling the truth—was the sort of “human
lie detector” testimony that is subject to objection. See Valdez, 2021
UT App 13, ¶ 55. We perceive no strategic reason for Trial Counsel
to have forgone an objection to that testimony.
¶72 We conclude that it was objectively unreasonable for Trial
Counsel to have continued the line of questioning after eliciting
the acknowledgement from Doctor that he had taken Betty at her
word, and it was objectively unreasonable for Trial Counsel to
have asked Doctor whether he believed Betty’s story. It was also
objectively unreasonable for Trial Counsel to have forgone an
objection to the State’s questioning on redirect, given the
testimony’s clear inadmissibility and given its potential
importance. All of this evidence was quite helpful to the State, and
gave the jury one more reason to credit Betty’s version of events
over Carrera’s. For these reasons, we agree with Carrera that Trial
Counsel performed deficiently by helping to facilitate, and not
objecting to, the vouching testimony offered by Doctor.
4
¶73 Finally, Carrera argues that Trial Counsel performed
deficiently by not lodging an objection to the prosecutor’s
repeated references to Betty as “the victim” and for occasionally
20181053-CA 34 2022 UT App 100State v. Carrera
referring to Betty as “the victim” himself. We agree with Carrera
that, at a minimum, Trial Counsel’s own references to Betty as
“the victim” constituted deficient performance.
¶74 Our supreme court has “recognize[d] the gravity of
referring to witnesses as victims during a trial.” State v. Vallejo,
2019 UT 38, ¶ 102, 449 P.3d 39. But our supreme court has not
often spoken in this area, and the State asserts that Utah’s case law
in this area is “in a state of flux,” has “only begun to address” the
“complexities” presented, and contains instances of “ill-
considered dicta.” While we acknowledge that some specific
questions remain unanswered and that the case law will certainly
develop further as time passes, we can distill from our case law—
such as it is—several clear principles.
¶75 First, if it is undisputed that the complaining witness was
a victim of a crime, then judicial “concern with the use of the term
‘victim’ during trial is generally low,” and “use of the term
‘victim’ usually will be appropriate, even during trial before the
jury has reached a verdict.” See State v. Godinez Juarez, 2021 UT
App 53, ¶ 35, 489 P.3d 231; see also id. (offering an illustrative
hypothetical “in which a complaining witness was undoubtedly
assaulted, as evidenced by obvious physical injuries, and the
defendant defends the case not on the ground that no assault
occurred but, instead, on the ground that he or she was not the
assailant”). But the situation is different in cases where the
defendant defends the case “on grounds that no crime was
committed and, concomitantly, that there is no victim in the case
at all.” Id. In such cases, “reference to the complaining witness as
a ‘victim’ can be problematic” because “it has not yet been
conclusively established, prior to the verdict, that there is in fact a
victim,” and because “use of that term might imply that a crime
has been committed.” Id.; see also State v. Devey, 2006 UT App 219,
¶ 17 n.5, 138 P.3d 90 (“[W]e conclude that the term [victim] should
be avoided generally in cases where the ultimate issue before the
jury is whether any crime actually occurred.”).
20181053-CA 35 2022 UT App 100State v. Carrera
¶76 Second, even in cases in which there is a dispute about
whether a crime occurred, “the identity of the speaker matters.”
See Godinez Juarez, 2021 UT App 53, ¶ 36. For example, our
supreme court has identified “improper statements made by the
court” as “serious,” because they “could give a jury an impression
of partiality.” See Vallejo, 2019 UT 38, ¶ 99 & n.18; see also Godinez
Juarez, 2021 UT App 53, ¶ 36 (stating that “statements by a trial
court are perhaps most concerning, given that juries tend to view
statements by the court as neutral and authoritative”). References
by prosecutors and law enforcement witnesses are, depending on
the context, perhaps less concerning than statements by trial
courts, because—as the State sensibly points out—jurors
understand that prosecutors and law enforcement witnesses have
a point of view oriented toward seeking a conviction, and because
law enforcement officers often use the word “victim” as a mere
synonym for “complaining witness.” See, e.g., State v. Rodriguez,
946 A.2d 294, 306 (Conn. App. Ct. 2008) (stating that, when a
prosecutor uses the word “victim,” “the jury [is] likely to
understand that the state’s identification of the complainant as the
victim reflected the state’s contention that, based on the state’s
evidence, the complainant was the victim of the alleged crimes”
(quotation simplified)). But references by prosecutors to the
complaining witness as “the victim” are still a matter of some
concern, and we urge the State’s attorneys and witnesses to avoid
making such references when there is a dispute over whether a
crime was committed. See Devey, 2006 UT App 219, ¶ 17 (stating
that the “court, the State, and all witnesses should be prohibited
from referring to the complaining witness as ‘the victim’”).
¶77 We are unaware of any Utah cases discussing references to
“the victim” made by a defendant’s own attorney. But such
references are very concerning, at least in a case where there is a
dispute about whether a crime occurred. The defendant’s attorney
is the one individual in the courtroom tasked with advocating for
the defendant’s position at trial. We have previously stated that,
“where a defendant claims that the charged crime did not actually
20181053-CA 36 2022 UT App 100State v. Carrera
occur, and the allegations against that defendant are based almost
exclusively on the complaining witness’s testimony . . . [,] the trial
court, the State, and all witnesses should be prohibited from
referring to the complaining witness as ‘the victim.’” Id. In Devey,
we did not include “defense attorneys” in that list, but we add
them to the list now, and note that, in a case where the defendant
disputes that any crime was committed, references by defense
counsel to the complaining witness as “the victim” cause us
heightened concern. After all, if the defendant’s own attorney
thinks the complaining witness is a “victim,” jurors might wonder
why they shouldn’t reach a similar conclusion.
¶78 And third, we have noted that “statements referring to the
particular complaining witness in the case as a ‘victim’ often are
more concerning than general statements referring to victims of
crime across a particular population.” See Godinez Juarez, 2021 UT
App 53, ¶ 36; see also id. ¶ 38 (concluding that general statements
regarding a “victim interview room” were of little concern).
¶79 In this case, the statements using the term “victim” were
numerous, came from several sources (the prosecutor, law
enforcement witnesses, and even Trial Counsel), and unsubtly
referred to Betty as “the victim.” 15 The prosecutor referred to Betty
as “the victim” nine times, one of the State’s witnesses (Officer)
referred to Betty as “the victim” three times, and Trial Counsel
15. In addition to these statements, Carrera also complains about
references the trial court made while reading the charging
document to the jury. But the only references the court made to
“the victim” were references embedded in statutory language. See
Utah Code Ann. §§ 76-5-301, 302 (LexisNexis 2017) (using the
term “victim” in the statutory definition of kidnapping). We are
untroubled by a court’s use of the term “victim” if that use comes
while reading the language of the operative statute. We do not
consider any such statements in reaching our conclusions in this
part of our opinion.
20181053-CA 37 2022 UT App 100State v. Carrera
himself referred to Betty as “the victim” some eight times. Carrera
defended the case by claiming that the charged crimes did not
actually occur (rather than by claiming that someone else had
committed them). And the charges were based, in large part, on
Betty’s testimony. We have little trouble concluding that these
references were problematic and objectionable. See Devey, 2006 UT
App 219, ¶ 17.
¶80 The State asserts that, even if these references were
objectionable, a reasonable attorney could have decided to forgo
an objection. But even if we presume, for purposes of the
discussion, that an objectively reasonable attorney might have
chosen not to object when the term was used by the prosecutor
and one of the State’s witnesses, it was objectively unreasonable
for Trial Counsel himself to repeatedly refer to Betty as “the
victim” when it directly conflicted with Carrera’s defense that no
crime had occurred. We therefore conclude that Trial Counsel
performed deficiently by repeatedly making references to Betty as
“the victim.”
B. Prejudice
¶81 Because we have determined that Trial Counsel rendered
deficient performance in four respects, we must now turn to the
question of whether that performance prejudiced Carrera.
“Prejudice exists when there is a reasonable probability that the
case would have had a different outcome had trial counsel not
performed deficiently.” State v. Whytock, 2020 UT App 107, ¶ 28,
469 P.3d 1150. “[A] reasonable probability is a probability
sufficient to undermine confidence in the outcome” of the
proceeding. Strickland v. Washington, 466 U.S. 668, 694 (1984). In
assessing prejudice, we “consider the totality of the evidence
before the judge or jury and then ask if the defendant has met the
burden of showing that the decision reached would reasonably
likely have been different absent the errors.” State v. Garcia, 2017
UT 53, ¶ 28, 424 P.3d 171 (quotation simplified).
20181053-CA 38 2022 UT App 100State v. Carrera
¶82 In this case, Carrera contends that each instance of deficient
performance identified above independently prejudiced him.
Alternatively, he contends that the combined effects of each error
should undermine our confidence in the verdict. Ultimately, we
need only consider whether Carrera was prejudiced by Trial
Counsel’s failure to challenge Juror’s participation in the trial,
because that error resulted in presumptive prejudice and requires
reversal on its own.
¶83 Our supreme court has made clear that “a defendant
suffers prejudice when he is denied a fair trial because a biased
juror sat on the jury.” See State v. King, 2008 UT 54, ¶ 18, 190 P.3d
1283. And this principle holds true in ineffective assistance of
counsel cases: “When the ineffective assistance of counsel results
in the seating of a juror who is actually biased against the
defendant, . . . the prejudice required by Strickland will be
presumed,” and there is no need to go through the usual Strickland
prejudice analysis. Id. “The presence of a biased juror, like the
presence of a biased judge, is a structural defect in the constitution
of the trial mechanism that defies harmless error analysis.” Hughes
v. United States, 258 F.3d 453, 463 (6th Cir. 2001) (quotation
simplified). For these reasons, “[t]he seating of a biased juror who
should have been dismissed for cause requires reversal of the
conviction.” Id.; see also United States v. Martinez-Salazar, 528 U.S.
304, 316 (2000) (stating that “the seating of any juror who should
have been dismissed for cause” is a “circumstance [that] would
require reversal”); King, 2008 UT 54, ¶ 28 (“This principle of law
is grounded in the presumption that the presence of a biased juror
so undermines the fairness and impartiality of the verdict that the
Sixth Amendment right to a fair trial can be preserved only by
setting aside the conviction.”).
¶84 As already noted, Juror exhibited actual bias when she
stated that she was related to and “trust[ed]” Deputy, and that she
would give more weight to his testimony than to another
witness’s testimony due to her relationship with him. See supra
20181053-CA 39 2022 UT App 100State v. Carrera
Part III.A.1. But in cases where a juror’s bias is for or against a
specific witness (rather than for or against a party, or for or against
an issue), there remains one additional wrinkle to consider: the
juror’s bias usually becomes relevant to the case only if the
witness’s testimony is admitted into evidence. Certainly, if a
juror’s bias exists only toward a particular witness, and that
witness does not end up testifying or playing any role in the trial,
any bias toward that witness is unlikely to be relevant. But in this
case, Deputy’s testimony was admitted into evidence.
¶85 Nevertheless, the State asserts that, because Deputy’s
statements were admitted by stipulated proffer rather than live
testimony, his “credibility was never at issue” and the “potential
for bias therefore never ripened into ‘actual bias.’” We disagree.
Regardless of whether his testimony was admitted by proffer,
Deputy’s credibility remained at issue because his account
differed from Carrera’s on a material point, and the jury was
being asked to decide whose account to credit. Indeed, in the
stipulated testimony, Deputy stated that Carrera, at the time of his
arrest, had told him that he could not remember anything about
the night in question after Mesquite. Carrera denies making this
statement; in fact, when he took the stand in his own defense, he
gave a detailed account of what happened on the night in question
after Mesquite, an account that differed sharply from the one
offered by Betty. According to the prosecutor at trial, Deputy’s
testimony on this specific point—that Carrera told Deputy that he
did not remember anything, after Mesquite, about the night in
question—amounted to “a crucial fact,” presumably because
Deputy’s testimony in this regard gave the jury one more reason
to think that Carrera’s account of events, as recounted at trial, was
not true and had been made up after the fact. Thus, in the State’s
view, whether the jury believed Deputy was important to its case.
Generally speaking, when the State indicates that a particular item
of evidence is important in its efforts to obtain a conviction, we
take that representation at face value. Cf. State v. Ellis, 2018 UT 2,
¶ 43, 417 P.3d 86 (stating that one factor leading to the conclusion
20181053-CA 40 2022 UT App 100State v. Carrera
that the admission of evidence mattered was that “[t]he
prosecution emphasized [it] during closing argument”). We
therefore disagree with the State’s contention that Deputy’s
credibility was never at issue.
¶86 Thus, Juror exhibited an actual bias, and not merely a
potential bias, regarding a witness whose testimony was admitted
at trial and whose credibility was squarely at issue. Accordingly,
we conclude that the presumption of prejudice applies here. See
King, 2008 UT 54, ¶¶ 18, 34. For this reason, Carrera has
demonstrated the presence of Strickland prejudice on the strength
of this issue alone. See id. ¶ 18. And with prejudice thus
established, we need not proceed to consider the prejudicial
effect—cumulatively or otherwise—of the remaining three
instances of deficient performance. Carrera has therefore satisfied
both parts of the Strickland test, and has successfully
demonstrated that Trial Counsel rendered constitutionally
ineffective assistance that affected all of his convictions.
CONCLUSION
¶87 The trial court committed plain error by submitting one of
the three forcible sodomy charges to the jury. We therefore vacate
that conviction and remand with instructions for acquittal on that
count.
¶88 And in addition, because Trial Counsel rendered
constitutionally ineffective assistance, we vacate Carrera’s other
convictions, including the conviction for aggravated kidnapping,
and remand this case for a new trial or other proceedings
consistent with this opinion.
HAGEN, Justice, authored the Opinion of the Court as to Part II,
in which Pohlman, J., joined:
20181053-CA 41 2022 UT App 100State v. Carrera
¶89 We disagree with Part II of the lead opinion and hold that
the trial court did not plainly err by submitting the question of
“serious bodily injury” to the jury. The offense of aggravated
kidnapping is subject to a sentencing enhancement “if the trier of
fact finds that during the course of the commission of the
aggravated kidnapping the defendant caused serious bodily
injury to another.” Utah Code Ann. § 76-5-302(3)(b) (LexisNexis
2017). “Serious bodily injury” is defined as “bodily injury that
creates or causes serious permanent disfigurement, protracted
loss or impairment of the function of any bodily member or organ,
or creates a substantial risk of death.” Id. § 76-1-601(11). Here, the
State relies solely on the “substantial risk of death” variant.
Specifically, the State argues that a reasonable jury could find that
the cut to Betty’s neck created a substantial risk of death.
¶90 At trial, Carrera did not move for a directed verdict on the
question of serious bodily injury. Therefore, we must determine
whether the trial court committed reversible error when, without
objection, it submitted that question to the jury.
¶91 In general, our adversarial system relies on the parties to
identify errors. See State v. Bond, 2015 UT 88, ¶¶ 45–46, 361 P.3d
104 (noting that “in our adversarial system the responsibility to
detect errors lies with the parties and not the court”).
Consequently, if an alleged error is not brought to the attention of
the trial court, a party cannot complain of that error on appeal
unless the party can demonstrate an exception to the preservation
rule. State v. Griffin, 2016 UT 33, ¶ 20, 384 P.3d 186. For criminal
cases, one recognized exception is plain error. 16 See generally Kelly
16. The only exception to the preservation rule asserted on appeal
was plain error. Because Carrera has not made an ineffective
assistance of counsel claim on this issue, we offer no opinion on
whether the failure to move for directed verdict on the serious
bodily injury enhancement rose to the level of ineffective
(continued…)
20181053-CA 42 2022 UT App 100State v. Carrera
v. Timber Lakes Prop. Owners Ass'n, 2022 UT App 23, ¶¶ 35–39, 507
P.3d 357 (explaining the basis for plain error review in criminal
cases). “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for
the appellant, or phrased differently, our confidence in the verdict
is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346(quotation simplified).
¶92 “As a general rule, to ensure that the trial court addresses
the sufficiency of the evidence, a defendant must request that the
court do so.” Id. ¶ 14. However, in Holgate, the Utah Supreme
Court held that unpreserved sufficiency claims arising from a jury
trial can be reviewed for plain error. “[T]he trial court plainly errs
if it submits the case to the jury and thus fails to discharge a
defendant when the insufficiency of the evidence is apparent to
the court.” Id. ¶ 17. To demonstrate plain error in this context, a
defendant must show (1) “that the evidence was insufficient to
support a conviction of the crime charged,” and (2) “that the
insufficiency was so obvious and fundamental that the trial court
erred in submitting the case to the jury.” Id. Even assuming that
Carrera has made the first showing, he has not made the second.
¶93 As to the first showing, the lead opinion concludes that the
evidence in this case was insufficient to prove that the injury to
Betty’s neck created a risk of death, much less a substantial risk of
death. And whenever we conclude that the evidence was
insufficient to prove a particular element, it might appear that the
insufficiency should have been apparent to the trial court. But if
we equate any instance of insufficient evidence with obvious and
assistance of counsel. But the potential availability of an
alternative ground for reversal counsels against the need to make
the plain error analysis coextensive with the analysis of a
preserved sufficiency challenge.
20181053-CA 43 2022 UT App 100State v. Carrera
fundamental error, we improperly collapse the two-part inquiry,
and we eliminate the distinction between reviewing a preserved
sufficiency issue and an unpreserved one. Our supreme court has
specifically held that the preservation requirement applies to
sufficiency claims arising from jury trials. See State v. Jok, 2021 UT
35, ¶¶ 22–23, 493 P.3d 665 (distinguishing bench trials from jury
trials). Therefore, there must be a distinction between sufficiency
challenges that merit reversal for plain error and those that merit
reversal only if the issue has been preserved.
¶94 If the issue in this case had been preserved, we might agree
with the lead opinion that the evidence was insufficient to prove
serious bodily injury. 17 But it was not preserved. And Carerra has
not carried his burden to show that it was plain error for the
district court to submit that question to the jury.
¶95 We begin with the presumption that “serious bodily
injury” is a jury question. In analogous contexts, we have
emphasized that “[w]hether a defendant caused serious bodily
injury . . . is a question for the jury to decide based on the facts
presented in the case before it.” State v. Walker, 2017 UT App 2,
¶ 26, 391 P.3d 380 (aggravated assault). Specifically, “[i]t is within
the province of the jury to consider the means and manner by
which the victim’s injuries were inflicted along with the attendant
circumstances in determining whether a defendant caused
17. It is not necessary to decide whether the evidence of serious
bodily injury was insufficient, because that alleged insufficiency
was not so obvious or fundamental that the trial court plainly
erred by submitting the question to the jury. See State v. Samples,
2012 UT App 52, ¶ 14, 272 P.3d 788 (“Because this case comes
before us on plain error review, . . . we need not decide whether
the evidence was” insufficient, but only “whether the alleged
insufficiency of the evidence was such that it was an ‘obvious and
fundamental’ error to submit the case to the jury.” (quotation
simplified)).
20181053-CA 44 2022 UT App 100State v. Carrera
serious bodily injury.” State v. Pham, 2016 UT App 105, ¶ 22, 372
P.3d 734 (quotation simplified) (unlawful discharge of a firearm);
see also State v. Bloomfield, 2003 UT App 3, ¶¶ 16–18, 63 P.3d 110(aggravated robbery); State v. King, 604 P.2d 923, 925–26 (Utah
1979) (aggravated sexual assault). In other words, as long as there
is some supporting evidence, the jury is entitled to decide whether
a particular injury meets the statutory element of “serious bodily
injury.” In fact, we have reversed a trial court for taking this issue
away from the jury. See Walker, 2017 UT App 2, ¶¶ 23, 25–26, 42
(reversing a conviction where the trial court instructed the jury
that strangulation constitutes “serious bodily injury” and
cautioning judges to “take care not to step into the jury’s fact-
finding shoes”). A trial court rightly should be hesitant to intrude
on the province of the jury, particularly in the absence of a defense
motion.
¶96 But as Holgate recognizes, “there is a certain point at which
an evidentiary insufficiency is so obvious and fundamental that it
would be plain error for the trial court not to discharge the
defendant.” 2000 UT 74, ¶ 17. “While it is difficult for the court on
appeal to dictate when an evidentiary defect was apparent to the
trial court,” the Holgate court cited as an example “the case in
which the State presents no evidence to support an essential
element of a criminal charge.” Id. Although there may well be
other circumstances in which the insufficiency of the evidence
would be “apparent” to the district court, in the twenty-two years
since Holgate was decided, we have yet to identify such a
circumstance.
¶97 In this case, the insufficiency of the evidence on serious
bodily injury was not “so obvious and fundamental” that it
should have been “apparent” to the district court. This is not a
case in which no evidence was presented on the degree of injury
that Betty suffered. Rather, the State presented evidence that
Betty’s injury bled profusely, but that she was able to stop the
bleeding by holding her shorts to her neck. The State also
20181053-CA 45 2022 UT App 100State v. Carrera
presented at least some evidence from which the jury could infer
that the blood loss could have been life threatening if Betty had
not been able to apply pressure.
¶98 Betty testified that when Carrera cut her neck, she “could
feel the blood” and “see it.” She testified, “I had blood all over me.
I felt sick, and I told him that I felt sick and weak.” Betty stopped
the bleeding by holding a pair of shorts to her neck, but when she
later vomited, the cut on her neck “burst” open and “started
squirting blood all over the sink.” She testified, “I had blood all
down me.” And by the time she woke up her son, “[h]e could see
the blood all over.”
¶99 Law enforcement witnesses confirmed that the shorts Betty
had used to apply pressure to her neck were “soaked” with blood.
Police also observed Betty’s “blood soaked shirt” and “blood on
her arms and hands.” The police found blood throughout the cab
of the truck and on the sink in the kitchen. They also recovered a
“wet bloody paper towel” in a kitchen wastebin and a bloody
towel on the master bedroom floor.
¶100 The State elicited testimony from Doctor about the nature
of the injury and the risk posed by blood loss:
Q: [I]f that cut, that dimension, size and the
depth that you described, if it were not
treated, if no pressure were applied to stop
the bleeding, if it were just allowed to
continue to bleed, would there any – would
there be any danger from that?
A: Yes. It’s quite possible that the bleeding
would stop on its own, but it’s also very
possible that if left untreated, it could
continue to bleed to the point where it could
threaten someone’s life.
20181053-CA 46 2022 UT App 100State v. Carrera
Q: So for example, if it were done at the
beginning hypothetically of the sexual
assault, and then it remained untreated and
open during the course of the sexual assault
without being treated, what type of danger
would the victim face there?
A: Certainly danger because of bleeding, like I
said, but also while being open, a wound
with that depth, there’s concern for infection
being introduced into that area through the
course of an assault.
Q: All right. So continued bleeding. What
would happen if the bleeding just continued
and continued?
A: That person could die.
Q: So really although the cut perhaps looks
superficial in appearance, under the right
circumstances, it could cause death.
A: Under the right circumstances.
Q: For example, a rape victim who never got a
chance to treat it?
A: Yes.
Q: Okay. For example, if something happened
to—if it started to heal, but something
happened hypothetically to reopen it, such as
vomiting, would that cause further danger?
A: Yes, it could.
20181053-CA 47 2022 UT App 100State v. Carrera
Q: Through the continued blood loss?
A: Yeah. So when the—when the blood loss
starts initially, there’s some clotting and
coagulation factors that come to that area to
heal and allow the bleeding to stop, and if
someone were to vomit, for example, it could
break that open, the small clot that’s forming,
and resume bleeding once again.
Q: All right. Thank you for that. So a cut like that
could potentially cause a lot of bleeding?
A: It could.
In summary, Doctor testified that it was “very possible” that, “if
left untreated,” the cut Carrera inflicted “could continue to bleed
to the point where it could threaten someone’s life” and that
person “could die.”
¶101 The lead opinion characterizes this testimony as referring
“generally” to “cut[s] like this one,” because Doctor later
“clarified that ‘this particular slice to the neck was not . . . life
threatening.’” Supra ¶ 37. But by testifying that the wound “could
threaten someone’s life,” Doctor was not simply opining about
cuts to the neck generally; instead, he was responding to the
prosecutor’s questions about the specific cut in this case—“that
cut, that dimension, size and the depth that you described, if it
were not treated.” In other words, Doctor was discussing what
could have occurred if Betty had been unable to apply pressure
and stop the bleeding.
¶102 The lead opinion also relies heavily on Betty’s ability to
stop the bleeding by applying pressure to the wound. But Betty’s
successful treatment of the injury does not compel the conclusion
that the injury itself did not present a substantial risk of death. The
fortuity of prompt treatment does not necessarily lessen the
20181053-CA 48 2022 UT App 100State v. Carrera
defendant’s culpability under the enhancement statute, which
focuses not on the ultimate outcome, but on the degree of injury
“the defendant caused.” Utah Code Ann. § 76-5-302(3)(b). Indeed,
our supreme court has held that it was proper for medical experts
“to testify about the risk created by the defendant at the time of
the attack, rather than at a subsequent time following timely
intervention by paramedics and virtually immediate medical
treatment.” State v. King, 604 P.2d 923, 926 (Utah 1979). In that
case, even though the treating physician testified that the injury
was “not severe enough to be life-threatening unless it was left
untreated and other medical problems developed,” the court held
that it was still “within the province of the jury to consider the
means and manner by which the victim’s injuries were inflicted
along with the attendant circumstances” in determining whether
the injury posed a substantial risk of death. Id. Although nothing
in our case law prevents the jury from considering the availability
of treatment as part of the “attendant circumstances,” the jury is
entitled to consider the nature of the injury at the time it was
inflicted. Thus, Betty’s subsequent actions to stop the bleeding
before the blood loss became life threatening was not a basis for
taking the question from the jury.
¶103 There is still a question of whether the injury Carrera
caused, if left untreated, presented not just a risk of death, but a
substantial risk of death. But for plain error, it is not enough for
the evidence to be insufficient; it must be so insufficient that it
should have been apparent to the trial court at the time. The lead
opinion asserts that “it is well within the ken of human experience
to know that cuts like this do not create a substantial risk of death,
under any meaningful definition of the word ‘substantial.’” Supra
¶ 43. Yet Doctor testified that it was “very possible that if left
untreated, [the cut] could continue to bleed to the point where it
could threaten someone’s life.” (Emphasis added.) The term
“substantial” is not statutorily defined, and nothing in our case
law would put the trial court on notice that a “very possible” risk
of death falls short of a “substantial risk of death.” Even if the
20181053-CA 49 2022 UT App 100State v. Carrera
evidence presented was insufficient to prove a substantial risk of
death, that insufficiency was not apparent at the time of trial.
¶104 Were we to conclude that the evidence in this case was so
obviously and fundamentally insufficient, we would be hard
pressed to identify a case in which there was insufficient evidence
that did not rise to the level of plain error. In effect, we would be
eliminating the distinction between preserved and unpreserved
sufficiency claims arising from jury trials, treating them instead
like appeals from bench trials. For these reasons, Carrera has not
established that the trial court committed plain error by
submitting the question of “serious bodily injury” to the jury.
Even assuming that the lead opinion is correct that the evidence
in this case was insufficient, that insufficiency was not “so
obvious and fundamental” that it rose to the level of plain error.
See Holgate, 2000 UT 74, ¶ 17.
¶105 Based on the ineffective assistance of counsel claims
addressed in Part III of the lead opinion, this court vacates all of
Carrera’s convictions and remands for a new trial. Carrera may be
retried for aggravated kidnapping—with the serious bodily
injury enhancement—and on all other counts except the third
sodomy count as explained in Part I of the lead opinion. On retrial,
Carrera will have the opportunity to raise any challenges to the
sufficiency of the State’s evidence, including the evidence of
serious bodily injury.
20181053-CA 50 2022 UT App 100