State v. Seach

2021 UT App 22THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
NICHOLAS PATRICK SEACH,
Appellant.
Opinion
No. 20190457-CA
Filed March 4, 2021
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 181400824
Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 Nicholas Patrick Seach appeals three of his four
convictions for aggravated assault, which stem from his
interactions with a family of four at a public park. On appeal,
Seach raises a claim of ineffective assistance of counsel, asserting
that his trial attorney performed deficiently by not lodging an
objection to certain aspects of the jury instructions, and that this
prejudiced him with respect to three of the charges. We find
Seach’s arguments unpersuasive, and therefore affirm his
convictions.
State v. Seach
BACKGROUND 1
¶2 One day, a family (consisting of Father, Mother, a teenage
Son, and a teenage Daughter) drove their pickup truck to a
public park to recreate. Mother and Daughter went on a run, and
Son and Father stayed near the truck while Father tinkered with
and rode his bicycle. Some time later, Father saw a man—who
turned out to be Seach—walking “back and forth” on the
sidewalk. When Father approached, Seach began cursing at
Father. Father did not respond to Seach’s exclamations, and
decided it might be best to leave the park to avoid further
interactions with Seach. Father then went to find Mother and
Daughter, and Son remained inside the truck. While Father was
gone, Son watched from inside as Seach spit on the truck’s door
handles. When Father returned to the truck with Mother and
Daughter, he noticed the spit on the door handles, and at that
point, Mother called the police. Seach was still close by and,
while Mother was on the phone, Seach approached the family
and told them that they “needed to go away” and “leave.”
Mother responded by telling Seach that she was phoning the
police and that the family did not “want to have any problems
with [him] or with anybody.”
¶3 As Mother was conversing with Seach, Son became angry
because he perceived that Seach “was yelling at [his] mom,” so
he “got out of the truck . . . and[] started cussing” at Seach.
Mother testified that, at that point, Seach threatened to kill the
family, and looked like “he wanted to hit” Son. After a while,
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (quotation simplified).
20190457-CA 2 2021 UT App 22State v. Seach
Seach walked over to his car. “By then [the family] could hear
the police” sirens and thought Seach would leave.
¶4 Instead, Seach returned to the area near the family’s truck,
walking with “one hand in front of him and one hand behind”
his back. Father testified that Seach “had a gun” in his front
hand and “had a knife” in his back hand. The family,
meanwhile, had no weapons with them; indeed, Father testified
that he “never use[s] weapons” and does not “like them.” As
Seach approached the family, he continued to state “that he was
going to kill” them. Mother testified that Seach “had his gun in
his hand,” and that he “went like this towards all of us,” making
a gesture in which she “pointed her hand back and forth across
her body.” Mother then “rushed [Son and Daughter] into the
back of the truck” from the passenger side, while Father
attempted to get into the driver’s seat. Seach then walked over to
the driver’s side of the truck, held the gun to “the back part of
[Father’s] head,” and “stopped [Father] from closing the door.”
¶5 By this point, Mother and Daughter were “crying and
screaming,” Son “panicked,” and all three of them became
“hysterical.” Eventually, Father was able to close the truck door,
at which point Seach started shooting at the truck. Seach’s gun—
although it appeared to be a real handgun—turned out to be a
pellet gun, and Seach’s shots hit but therefore did not penetrate
the truck’s windows. After firing the gun multiple times, Seach
“took off” in his car.
¶6 At least two officers were dispatched to the park in
response to Mother’s initial 911 call, and they were given
Mother’s description of Seach’s vehicle. The primary responding
officer (Officer) saw a car matching the description, and
“initiated a traffic stop on that vehicle.” Seach was in the car.
Officer and a second officer “performed a high-risk stop”
because the dispatcher had “relayed . . . that a firearm had been
brandished and that the caller had been threatened with that
20190457-CA 3 2021 UT App 22State v. Seach
firearm.” After initiating the stop, Officer placed Seach under
arrest without incident, and gave him a chance to explain what
had “happened at the park.” Seach, who is white, willingly
responded that he “felt threatened by” the family members, who
are Latino, and offered his perception that “there were Mexican
cartel members at the park.” Seach told Officer that he thought
the family had weapons, but upon further questioning he
admitted that he had “not actually see[n] any weapons.” Seach
also disclosed “that he did not have a gun on him but that there
was a toy gun in his car.” Officer then conducted a search of
Seach’s vehicle and recovered a realistic-looking, revolver-style
“air soft” or “pellet gun” that was “loaded.” Officer did not
recover a knife from the car.
¶7 Officers also met the family at the park, and took
statements from them about what had just occurred. Officer
examined the family’s truck and observed two “pockmarks in
the windshield” of the vehicle that were “consistent with” marks
that could have been made by a pellet gun. Officer “also
observed saliva on the door” of the truck.
¶8 The State charged Seach with four counts of third-degree-
felony aggravated assault, one for each member of the family.
Seach pleaded not guilty to all counts, and the case proceeded to
a two-day jury trial. The State called Father, Mother, Son, and
Officer as witnesses, each of whom testified about the events as
outlined above.
¶9 After the State rested its case, Seach testified in his own
defense, claiming that he felt “uncomfortable” after seeing
Father “riding [a] little pedal bike” around the parking lot and
“directly behind [Seach’s] car more than once.” Seach stated that
he “almost felt like [he] was being stalked in a way,” and that
Father’s actions made him feel like he was “getting creeped on.”
Seach testified that he became nervous and thought he “possibly
heard my name being called,” so he asked Father “if he knew
20190457-CA 4 2021 UT App 22State v. Seach
who I was” and told Father to “back off bitch and back off my
car.” Seach admitted to spitting on the family’s truck, claiming
that he did so because Father was “spotting me or whatever his
business was in the park.” After telling Father to back off, Seach
claimed that Mother then yelled at him and Son approached him
as if he were going to “windmill [Seach] with his fists,” and
verbally threatened to “kill [Seach] with a razor blade.” Seach
admitted to “agging it on” by “get[ting] into a fighting stance”
and stated that, at that time, he held a “cooking utensil” in his
hand. Seach testified that, eventually, he retreated to his car to
grab his pellet gun after he saw the family “making a move.” He
claimed to have thought that his “life was in danger” because
the family might have been going into the truck “to get a
weapon to come at” him. When asked why he thought this,
Seach stated that his fear “was based on the fact that there [was]
. . . an older Hispanic on a pedal bike,” which he found
“suspicious,” and was based on his “perception” that Father
might be “a construction worker” and thus carry tools in his
truck that could be used as weapons. Seach then admitted to
“popping off rounds onto the windshield” of the truck, and to
pointing the gun at Father, but denied pointing the gun at
anyone else and denied touching Father directly with the gun.
He claimed that he had acted at all times in self-defense,
intending merely to deploy a “scare tactic” against the family,
and that he had no “intention to hurt them.” On cross-
examination, Seach admitted that his “intention [was] to frighten
them” with his “realistic looking pistol.” On recross and redirect,
Seach further clarified that he “wanted them to think that [he]
could” kill them to discourage the family members from
retrieving any weapons that they might have in their truck.
¶10 After both sides rested, the court instructed the jury.
Because the sole issue presented on appeal has to do with certain
of the jury instructions, we set forth those instructions here in
some detail, and note that none of the relevant instructions drew
20190457-CA 5 2021 UT App 22State v. Seach
an objection from Seach at trial. Instruction 26 stated, in relevant
part, as follows:
A person cannot be found guilty of a criminal
offense unless that person’s conduct is prohibited
by law, AND at the time the conduct occurred, the
defendant demonstrated a particular mental state
specified by law.
....
As to the “mental state” requirement, the
prosecution must prove that at the time the
defendant acted (or failed to act), he did so with a
particular mental state. For each offense, the law
defines what kind of mental state the defendant
had to have, if any. For some crimes the defendant
must have acted “intentionally” or “knowingly.”
For other crimes, it is enough that the defendant
acted “recklessly,” with “criminal negligence,” or
with some other specified mental state.
Later I will instruct you on the specific conduct and
mental state that the prosecution must prove
before the defendant can be found guilty of the
crime(s) charged.
¶11 Instruction 28 informed the jury that “[e]very offense not
involving strict liability shall require a culpable mental state, and
when the definition of the offense does not specify a culpable
mental state and the offense does not involve strict liability,
intent, knowledge, or recklessness shall suffice to establish
criminal responsibility.” Instructions 29 through 34 provided
definitions of “intentionally,” “knowingly,” and “recklessly.”
¶12 The jury instructions also included four separate
“elements” instructions—Instructions 39 through 42—one for
20190457-CA 6 2021 UT App 22State v. Seach
each charged count of aggravated assault. These four
instructions were identical except for the name of the alleged
victim; we set out Instruction 39 here in its entirety:
Before you can convict the defendant of aggravated
assault as charged in count 1 of the information,
you must find from the evidence, beyond a
reasonable doubt, each of the following elements:
1. On or about February 17, 2018;
2. In Salt Lake County;
3. The defendant, NICHOLAS PATRICK
SEACH, did:
a. Attempt with unlawful force or violence
to do bodily injury to [Father]; or
b. Threaten, accompanied by a show of
immediate force or violence, to do bodily
injury to [Father]; or
c. Commit an act, with unlawful force or
violence, that caused bodily injury to
[Father] or created a substantial risk of
bodily injury to [Father];
4. And in so doing the defendant used a
dangerous weapon.
If, after careful consideration of all the evidence in
this case, you are convinced, beyond a reasonable
doubt, that the State has proven each one of the
foregoing elements, then you must find the
defendant GUILTY. However, if you are not
convinced beyond a reasonable doubt of any one
or more of the foregoing elements, then you must
find the defendant NOT GUILTY.
20190457-CA 7 2021 UT App 22State v. Seach
¶13 After hearing the evidence and deliberating, the jury
returned a verdict convicting Seach on all four counts.
ISSUE AND STANDARD OF REVIEW
¶14 Seach now appeals three of his four convictions: the ones
for which the jury determined that he assaulted Mother, Son,
and Daughter. 2 In so doing, Seach raises a single issue for our
consideration: whether his trial counsel was constitutionally
ineffective for failing to object to certain portions of the jury
instructions regarding the required mental state for aggravated
assault. “A claim of ineffective assistance of counsel raised for
the first time on appeal presents a question of law, which we
consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d
425 (quotation simplified).
ANALYSIS
¶15 A defendant seeking to demonstrate that his attorney
rendered ineffective assistance must make a two-part showing:
that (1) the attorney’s performance was deficient, and (2) this
“deficient performance prejudiced the defense” by giving rise to
“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, 694 (1984). The first
prong of this analysis involves an assessment of the objective
reasonableness of counsel’s actions, see State v. Scott, 2020 UT 13,
2. Seach does not appeal his conviction for aggravated assault
against Father, acknowledging in his brief that, even if counsel
had performed deficiently by failing to object to certain jury
instructions, any shortcomings in counsel’s performance did not
prejudice him with regard to the count involving Father.
20190457-CA 8 2021 UT App 22State v. Seach
¶ 35, 462 P.3d 350, and “requires the defendant to show ‘that
counsel made errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the Sixth
Amendment,’” State v. Grunwald, 2020 UT 40, ¶ 19, 478 P.3d 1(quoting Strickland, 466 U.S. at 687). “And the second prong
requires the defendant to show that ‘counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). With
regard to this second prong, the crucial question is whether “the
outcome of [the defendant’s] case would have been different
absent counsel’s error.” Scott, 2020 UT 13, ¶ 43.
¶16 But in cases where a defendant claims that the attorney
rendered ineffective assistance by failing to object to jury
instructions, there is a threshold question whose answer will
inform the two-step Strickland analysis: in such cases “we must
first consider whether [the jury] instructions [at issue] were
legally correct.” State v. Liti, 2015 UT App 186, ¶ 12, 355 P.3d
1078. This is because “[f]ailure to object to jury instructions that
correctly state the law is not deficient performance,” State v.
Vigil, 2019 UT App 131, ¶ 11, 448 P.3d 738 (quotation simplified),
and cannot, by definition, lead to prejudice, see State v. Von
Niederhausern, 2018 UT App 149, ¶¶ 29–30, 427 P.3d 1277(holding that, “where [a] [d]efendant fails to identify, let alone
argue, what would have been the legally correct version of the
instruction,” the “[d]efendant also fails to show prejudice since
an objection to the jury instructions would have surely been
unsuccessful”). Accordingly, we first assess the correctness of
the jury instructions Seach challenges.
A
¶17 When examining jury instructions to assess their
correctness, we review them “in their entirety to determine
whether the instructions, taken as a whole, fairly instructed the
jury about the applicable law.” Liti, 2015 UT App 186, ¶ 12. The
20190457-CA 9 2021 UT App 22State v. Seach
logical place to begin our analysis is with the statute defining the
offense with which Seach was charged. See id. ¶ 13.
¶18 Aggravated assault is statutorily defined as:
(i) an attempt, with unlawful force or
violence, to do bodily injury to another;
(ii) a threat, accompanied by a show of
immediate force or violence, to do bodily
injury to another; or
(iii) an act, committed with unlawful force
or violence, that causes bodily injury to
another or creates a substantial risk of
bodily injury to another; and
(b) that includes the use of:
(i) a dangerous weapon . . . .
Utah Code Ann. § 76-5-103(1) (LexisNexis 2017). Although the
aggravated assault statute does not specify a particular mental
state, or mens rea, 3 that the State must prove to establish
criminal liability, see id., a separate statute provides that, where
the offense in question “does not involve strict liability,” and
does not otherwise specify the level of mens rea required, then
proving the defendant’s “intent, knowledge, or recklessness
shall suffice to establish criminal responsibility,” id. § 76-2-102.
Aggravated assault is not a strict liability offense. See id. § 76-5-
3. “Mens rea is ‘[t]he state of mind that the prosecution, to secure
a conviction, must prove that a defendant had when committing
a crime,’ and ‘is the second of two essential elements of every
crime at common law, the other being the actus reus.’” State v.
Gallegos, 2020 UT App 162, ¶ 32 n.4 (quoting Mens Rea, Black’s
Law Dictionary (11th ed. 2019)), petition for cert. filed, Feb. 10,
2021 (No. 20210092); see also infra note 5.
20190457-CA 10 2021 UT App 22State v. Seach
103(1). Therefore, because the aggravated assault statute does
not otherwise specify the required mens rea, the State was
required to prove that Seach acted intentionally, knowingly, or
recklessly. See id. §§ 76-2-102, -5-103(1).
¶19 Seach correctly observes that a legally accurate set of jury
instructions in a criminal case will include an instruction
regarding the level of mens rea that the State must prove in
order to secure a conviction. See State v. Bird, 2015 UT 7, ¶ 14, 345
P.3d 1141 (stating that, as a “general rule,” an “accurate
instruction upon the basic elements of an offense is essential,”
and that “mens rea . . . is an essential element of an offense”
(quotation simplified)). Seach asserts that the set of instructions
given in this case lacked clear direction regarding the applicable
mens rea. And after reviewing the instructions, we think Seach
makes a good point.
¶20 The elements instructions given in this case (Instructions
39–42) do not contain any guidance as to the applicable mens
rea. 4 The State acknowledges this, but correctly points out in
response that mens rea guidance need not necessarily be
provided in the elements instruction (although it often is), as
long as it is provided elsewhere in the entire set of instructions.
4. We note (as does Seach) that the suggested Model Utah
Jury Instruction setting forth the elements of aggravated
assault does include guidance regarding the applicable mens rea,
and provides that a defendant must have “intentionally,
knowingly, or recklessly” committed the crime. See
Model Utah Jury Instructions 2d, CR1320 (Adv. Committee
on the Model Utah Criminal Jury Instructions 2019),
https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho
wRule&id=41#1320 [https://perma.cc/ZVP8-NAY7]. The elements
instructions given in this case, by contrast, did not include those
four words.
20190457-CA 11 2021 UT App 22State v. Seach
See State v. Beckering, 2015 UT App 53, ¶ 23, 346 P.3d 672 (stating
that “we look at the jury instructions in their entirety and will
affirm when the instructions taken as a whole fairly instruct the
jury on the law applicable to the case” (quotation simplified)); see
also State v. Plexico, 2016 UT App 118, ¶ 31, 376 P.3d 1080(concluding that a set of jury instructions was not erroneous
“[e]ven though the elements instruction did not articulate the
culpable mental state,” because the proper mens rea guidance
could be found in a separate instruction). The State asserts that,
in this case, sufficient mens rea guidance was provided in
Instructions 26 and 28–34. We acknowledge the State’s
argument, and can even imagine that law-trained readers—and
perhaps even some lay readers—of the complete set of
instructions might be able to infer that the applicable mens rea in
this case is “intentionally, knowingly, or recklessly.” But in our
view, this set of instructions was not quite as clear as it should
have been about the applicable level of mens rea.
¶21 Instructions 26 and 28 contain some discussion of mens
rea, but they do not completely solve the problem, because those
instructions never expressly state that aggravated assault is not a
strict liability offense, or that “intentionally, knowingly, or
recklessly” is the required mens rea for aggravated assault.
Indeed, Instruction 26 tells the jury that it will “[l]ater” be
instructed “on the specific conduct and mental state that the
prosecution must prove before the defendant can be found
guilty,” but express instructions on that point never came. To be
sure, the jury was immediately thereafter given five instructions
(Nos. 29–34) that define “intentionally,” “knowingly,” and
“recklessly,” and the jury was never given any instructions
defining “strict liability” or “criminal negligence” (the other two
potentially applicable levels of mens rea); from these
instructions, and from the fact that the only levels of mens rea
actually defined in the instructions are intent, knowledge, and
recklessness, one might be able to infer that those levels are the
20190457-CA 12 2021 UT App 22State v. Seach
only ones applicable. But at most, this is an inference that might
be drawn by a keen-eyed reader. The instructions do not
expressly state as much, and never actually tell the jury that
assault is not a strict liability offense, nor do they ever actually
instruct the jury that, to find Seach guilty, it must find beyond a
reasonable doubt that he acted intentionally, knowingly, or
recklessly. And we consider this at least potentially problematic.
See Bird, 2015 UT 7, ¶ 16 (stating that an instruction is “[o]f
particular concern” when it “leaves the erroneous impression
that a crime is one of strict liability, when it in fact contains a
mens rea element”).
¶22 Accordingly, we agree with Seach that the set of
instructions given to the jury in this case was infirm, and not
completely accurate.
B
¶23 After finding infirmity in the jury instructions, we next
proceed to assess Seach’s claim of ineffective assistance of
counsel under the two-prong Strickland framework. See State v.
Liti, 2015 UT App 186, ¶¶ 12, 18, 355 P.3d 1078. In order to
prevail, Seach must make a showing sufficient to satisfy both
parts of the test. See State v. Delgado, 2020 UT App 121, ¶ 25, 473
P.3d 234. Therefore, “[i]t is unnecessary to address both
components of the inquiry if we determine that [Seach] has
made an insufficient showing on one.” See id. (quotation
simplified). In the discussion that follows, we largely confine our
analysis to the prejudice prong. We do so because Seach has not
carried his burden of demonstrating that, even if his attorney
had timely objected and the trial court had given the jury a set of
instructions expressly stating that Seach must have acted with
intent, knowledge, or recklessness, it would have made a
difference under the facts of this case. See State v. Roberts, 2019
UT App 9, ¶ 23, 438 P.3d 885 (“In practice, we often skip the
20190457-CA 13 2021 UT App 22State v. Seach
question of deficient performance when a defendant cannot
show prejudice.”).
¶24 “When applying Strickland’s prejudice analysis in the
context of erroneous jury instructions, we must determine
whether there is a reasonable probability the jury would not
have convicted the defendant if the jury instructions had been
correct.” State v. Grunwald, 2020 UT 40, ¶ 22, 478 P.3d 1. “A
reasonable probability is a probability sufficient to undermine
our confidence in the outcome.” Id. (quotation simplified). This
determination hinges on the following questions: “(1) did the
error in the jury instructions create the possibility that the jury
convicted the defendant based on factual findings that would
not have led to conviction had the instructions been correct? and,
(2) if so, is there a reasonable probability that at least one juror
based its verdict on those factual findings?” Id.
¶25 We turn, then, to the question of whether the issues
with the jury instructions, on the facts of this case, created a
“reasonable probability” that at least one juror voted to
convict Seach “based on factual findings that would not have
led to conviction had the instructions been correct.” See id.As noted above, to convict Seach of all four counts, the State
had to prove beyond a reasonable doubt that Seach committed
aggravated assault against each family member, and that he
did so intentionally, knowingly, or recklessly. See Utah Code
Ann. §§ 76-2-102, -5-103(1). While it might be possible, in
some cases, for a defendant to be wrongfully convicted of
aggravated assault because of the precise lack-of-mens-rea-
instruction problem found in this set of jury instructions, we do
not think such a result was reasonably probable on the facts of
this case.
¶26 Here, Seach never claimed that his actions were
not purposeful, or that his actions were accidental or merely
negligent; instead, his entire defense to the charges was
20190457-CA 14 2021 UT App 22State v. Seach
built around a claim that he acted purposefully, out of self-
defense, with the stated intention to frighten members of
the family, even going so far as to say that he “wanted them
to think that [he] could” kill them. He readily acknowledged
retrieving a gun from his car, and admitted not only that
he intentionally pointed the gun at members of the family,
but also that he intentionally fired the gun in the direction of
the family’s truck. Neither party presented evidence to the
jury that the shooting was an accident, or that Seach’s actions
were merely the result of negligence. And no argument
was made, from either side, that the jury should convict Seach
on strict liability grounds. This case is therefore unlike the
facts of State v. Liti because, although counsel in that
case centered the defense around a claim of self-defense,
the defendant’s “own testimony was that the shooting was an
accident.” See 2015 UT App 186, ¶ 20, 355 P.3d 1078. In
a situation like that, where evidence was presented
indicating that the defendant’s actions could have
been accidental, omitting from the jury instructions the
requirement that the defendant must act with intent, knowledge,
or recklessness might have mattered. See id. ¶ 23. But
here, where no such evidence or argument was presented,
even by Seach, there exists no possibility—let alone a reasonable
probability—that the jury mistakenly convicted Seach under
an erroneous understanding that aggravated assault can
occur through negligent behavior or under a strict liability
theory.
¶27 Seach resists this conclusion by attempting to parse
out his actions with respect to each family member, and
by asserting that he “did not act with the necessary intent
with respect to Mother and Daughter” at all, and that
any threatening actions he took toward Son “occurred
before Seach retreated to his car and retrieved the pellet gun.”
But even this argument contains no contention that any of
20190457-CA 15 2021 UT App 22State v. Seach
Seach’s actions, at any point, were merely accidental or
negligent.
¶28 Indeed, Seach’s argument applies more to actus reus 5 than
it does to mens rea. The question Seach posits here is whether, as
a factual matter, he pointed the gun at one family member or at
all of them, not whether his action in waving the gun—at
whomever he waved it—was accidental or purposeful. The jury
convicted Seach of assaulting all four family members, and
Seach does not challenge the jury’s finding—through an
insufficiency-of-the-evidence argument or other means—that he
committed this conduct. After all, Mother testified that Seach
pointed the gun at all of them. So the relevant question, as
concerns this appeal, is not whether Seach committed acts that
could constitute assault against all four family members—the
jury found that he did, and that actus reus finding is here
unchallenged—but, rather, what Seach’s state of mind was when
he committed those acts. And there was no dispute about that,
because Seach told the jury what his state of mind was when he
took those actions: it was to intentionally frighten members of
the family. 6 Under these facts, Seach’s argument that he
5. Actus reus is “[t]he wrongful deed that comprises the physical
components of a crime and that generally must be coupled with
mens rea to establish criminal liability; a forbidden act.” Actus
Reus, Black’s Law Dictionary (11th ed. 2019); accord State v.
Tillman, 750 P.2d 546, 565 (Utah 1987) (noting that “actus reus” is
synonymous with the “conduct proscribed in the definition of
the offense”).
6. Seach’s testimony established that he was acting intentionally
toward Father and at least one other family member; he testified
that it was his “intention to frighten them.” (Emphasis added.)
One plausible reading of the record, espoused by the State, is
(continued…)
20190457-CA 16 2021 UT App 22State v. Seach
purposefully waved the gun and shot the gun at Father, but did
not wave it or point it at anybody else, misses the mark.
¶29 The circumstances presented here leave no possibility, let
alone a “reasonable probability,” see Grunwald, 2020 UT 40, ¶ 22,
that any juror voted to convict Seach based on a
misunderstanding that he could be convicted under a strict
liability theory or for acting negligently. Accordingly, Seach has
not carried his burden of demonstrating that he was prejudiced
by his trial counsel’s failure to object to the jury instructions.
Thus, we end our analysis here, without conclusively analyzing
the deficient performance element. 7
(…continued)
that Seach—by using the word “them”—was referring to the
entire family. Seach asserts that this reference was only to Father
and Son, but we have our doubts about the plausibility of
Seach’s interpretation. This interpretive debate is ultimately
academic, however, because Seach’s actions toward Mother and
Daughter were at least reckless. Purposefully waving, and then
firing, a gun in the general direction of four persons located
together, even if the threat is only intended to be directed to one
or two of those persons, constitutes at least reckless behavior as
concerns the others. See, e.g., State Farm Fire & Cas. Co. v. Torio,
673 N.Y.S.2d 696, 697 (N.Y. App. Div. 1998) (holding that a
person’s “criminal act of firing 18 shots in the direction of a
group of people, inflicting five wounds, cannot be considered an
accident,” even if the gun was pointed “down low” with no
“inten[t] to actually hit anyone with gunfire”).
7. With regard to deficient performance, the central question is
whether counsel’s actions “fell below an objective standard of
reasonableness.” State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350(quotation simplified). It seems to us that, given the state of the
(continued…)
20190457-CA 17 2021 UT App 22State v. Seach
CONCLUSION
¶30 The instructions given to the jury in this case were
incomplete with regard to mens rea. But because Seach admitted
at trial that his actions were purposeful, and made no argument
that they were accidental, there is no possibility that he was
improperly convicted by jurors operating under a mistaken
belief that he could be convicted of aggravated assault for mere
negligent behavior or under a strict liability theory.
Consequently, any failure on the part of Seach’s trial counsel to
object to the jury instructions did not prejudice Seach because
there is not a reasonable probability that it would have made a
difference to the outcome of the trial. For these reasons, Seach’s
ineffective assistance claim fails, and we affirm his convictions.
(…continued)
evidence presented to the jury in this case, a reasonable attorney
might have declined to spend time worrying about the jury
instructions’ lack of precision regarding mens rea. See State v.
Ray, 2020 UT 12, ¶ 32, 469 P.3d 871 (stating that defense
attorneys are entitled to “pick [their] battles” and that appellate
courts must “view a decision to not object in context and
determine whether correcting the error was sufficiently
important under the circumstances that failure to do so was
objectively unreasonable”). Thus, for the same reasons Seach’s
prejudice argument fails, his deficient performance argument
would have faced tough sledding.
20190457-CA 18 2021 UT App 22