State v. Whytock

2020 UT App 107THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DONNALD LEE WHYTOCK,
Appellant.
Opinion
No. 20180440-CA
Filed July 16, 2020
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 151907287
Andrew G. Deiss, John Robinson Jr., and Corey D.
Riley, Attorneys for Appellant
Sean D. Reyes and Nathan Jack, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 A jury convicted Donnald Lee Whytock of raping his
girlfriend’s daughter and tampering with a witness. Whytock
appeals both convictions, claiming that the trial court erred in
denying his motion for a mistrial, and that his trial counsel
rendered constitutionally ineffective assistance. We reject
Whytock’s arguments and affirm his convictions.
State v. Whytock
BACKGROUND 1
¶2 In 2014, Whytock lived in an apartment with his girlfriend
(Mother) and her three daughters. On one evening in August,
Mother’s oldest daughter—fourteen-year-old S.B.—went out
with a friend, but returned a few minutes past her strict 10:00
p.m. curfew. Upon her return, both Mother and Whytock began
“yelling” at her for missing curfew, and S.B. retreated to her
bedroom. Mother followed her into the bedroom, and the two of
them got into a dispute about S.B.’s activities that evening.
Eventually, S.B. began to cry, and Mother then hit S.B. across the
face, told her to stop crying, and walked out of the bedroom.
¶3 A little while later, Mother returned to S.B.’s room and
told her to get up and go to the store with Whytock. S.B. told
Mother she did not want to accompany Whytock on this errand,
but Mother “yelled at [S.B.] some more” and told her “that [she]
needed to go.” In a report to police made a few days later, S.B.
stated that she complied with Mother’s request, and went to the
store with Whytock. At trial, however, S.B. testified that she
refused Mother’s request, and that Whytock went to the store
alone, while she stayed in her bedroom.
¶4 Later that evening, S.B. was in her bed trying to sleep. She
testified that, after Whytock returned from the store, he entered
her bedroom, got into her bed, and covered her mouth with his
hand. He told her to “be quiet” and to take off her shorts and
underwear, then he “spread [her] legs apart” and “put his penis
inside [her] vagina.” When S.B. began to cry, he told her to “stop
crying” and that she “deserved it.” Afterward, Whytock told S.B.
1. “We recite the facts in the light most favorable to the verdict,
presenting conflicting evidence only as necessary to understand
the issues on appeal.” State v. Salgado, 2018 UT App 139, n.1, 427
P.3d 1228.
20180440-CA 2 2020 UT App 107State v. Whytock
that if she “were to tell anybody, he’d come back and do it to
[her] two little sisters.”
¶5 A few days later, S.B. was at her father’s (Father) house
when Mother called her and threatened to take her phone away.
S.B. testified that this frightened her, because she knew from
past experience that “[w]henever [Mother] took [their] phones
that’s when she started hitting” S.B. and her sisters because they
“couldn’t call [their] dad to come get [them].” S.B. then called
Mother’s parole officer, who suggested she contact the police.
Later that day, S.B. went to the police station and signed a
written statement describing certain acts of child abuse
perpetrated on her by Mother; the statement included a detailed
description of some of the events that occurred on the night of
the rape, including that Mother “hit [S.B.] across the face” and
that Mother made S.B. go to the store with Whytock, whom she
described as a “known drug dealer and user.” But S.B. did not
mention that Whytock had raped her.
¶6 After that, S.B. lived for a few months with Father, and
then for a few months with her older sister. While she was living
with her older sister, S.B. twice interacted with police on
unrelated matters, but she did not inform them about the rape
on either occasion. Meanwhile, S.B.’s younger sisters continued
to live with Mother and Whytock. S.B. testified that she did not
tell anyone about the rape for several months because her “two
little sisters were still living with [Mother and Whytock] and
[she] was too afraid to tell what happened, because [she] didn’t
know what was going to happen to them if [she] told.”
¶7 In the spring of 2015, after living with her older sister for
a few months, S.B. moved in with her stepfather (Stepfather).
Soon thereafter, S.B. shared the details of the rape with
Stepfather’s mother. This was the first time S.B. had told anyone
about the rape. A few weeks later, after S.B. was hospitalized for
stomach pains, S.B. also told a social worker at the hospital, as
20180440-CA 3 2020 UT App 107State v. Whytock
well as a number of doctors, about the rape. After that, S.B.
reported the rape to police.
¶8 In or about April 2015, after S.B. told others about the
rape, Whytock appeared at Stepfather’s house and knocked on
the door. Stepfather asked Whytock what he wanted, and
Whytock responded that “he was the person involved . . . with
[S.B.],” and that “he wanted [Stepfather] to have [S.B.] recant her
statement.”
¶9 After investigating the matter, police arrested Whytock,
and the State charged him with one count of rape, a first-degree
felony, and one count of tampering with a witness, a third-
degree felony. The original charging document indicated that the
tampering occurred in August 2014, and was presumably
referring to the threat S.B. reported that Whytock had made—
that if she told anyone about the rape he would harm her sisters.
The State later amended the information, however, to widen the
date range on the witness tampering charge to “between August
1, 2014 and April 30, 2015.” This change was apparently
intended to bring Whytock’s doorstep conversation with
Stepfather into play as another possible instance of witness
tampering. But the State did not attempt to amend the
information to add a second witness tampering charge.
¶10 After a preliminary hearing and some pretrial motions,
the case proceeded to jury trial, where the State presented
testimony from S.B., Father, Stepfather, Mother, and an
investigating officer, all of whom testified as to the events
outlined above. Mother—the State’s final witness—had a history
of addiction, and both she and Whytock had a criminal record.
Prior to trial, the court ruled, in response to a motion made by
Whytock, that no evidence of Whytock’s criminal history would
be introduced in front of the jury, at least not in the State’s case-
in-chief. Immediately before Mother’s testimony, and outside the
jury’s presence, the prosecutor noted that Mother was a “loose
20180440-CA 4 2020 UT App 107State v. Whytock
cannon” and requested a recess specifically to “give [Mother] the
rules from the judge of not mentioning certain things” about
Whytock. Immediately following the recess, Mother took the
stand and, in response to certain background questions from the
State, described her history of addiction and noted that she was
currently wearing an ankle monitor. Just a minute or two later,
in response to a question about whether she and Whytock
resided together, Mother answered in the affirmative and then
volunteered that she and Whytock had “started out at [her]
dad’s house” and she “got [Whytock] out on ankle monitor to
[her] dad’s house from the Salt Lake County Jail.” Defense
counsel immediately asked to approach the bench, and informed
the court that he would like to “make a motion,” and the court
asked counsel to wait until the next break to do so. Counsel later
asked the court to declare a mistrial, but the court denied the
motion, expressing doubt that the jury had “even understood”
the import of the passing comment, and concluding that the
situation did not “rise[] to the level” that would implicate a
mistrial. The court offered to give a “remedial instruction,” but
defense counsel declined the invitation.
¶11 When it was his turn to present evidence, Whytock called
as witnesses his wife, an ex-girlfriend, a defense-team
investigator, and three law enforcement officers. The theme of
Whytock’s defense was that no rape or post-rape threat
occurred, and that S.B. was not credible when she testified
otherwise. To bolster this defense, Whytock made two main
points. First, Whytock thoroughly cross-examined S.B. and the
State’s other witnesses, pointing out a number of inconsistencies
in the accounts S.B. had given at various times, including
whether she went to the store with Whytock on the night of the
rape and that she did not tell police about the rape in three
different encounters with them. Second, Whytock raised a
physical limitation defense, presenting evidence from his wife
and ex-girlfriend that, because he was not completely functional
sexually, he could not have committed the rape in the manner
20180440-CA 5 2020 UT App 107State v. Whytock
S.B. described. The State called Mother as a rebuttal witness, and
she testified that, in her experience, Whytock had suffered from
no such dysfunction.
¶12 During closing argument, the State made only brief
mention of the witness tampering charge, and referenced only
the threat made to S.B. as the facts supporting that charge. In his
closing argument, defense counsel stated that he was not sure
whether the witness tampering charge was aimed at the threat
made to S.B. or the doorstep conversation with Stepfather, but he
addressed both possibilities during argument, even though he
acknowledged that it “seem[ed] like” the State’s argument was
that “the tampering was with [S.B.]” rather than with Stepfather.
With regard to the threat, counsel argued that “[i]f the rape
didn’t happen, the tampering didn’t happen.” And with regard
to the doorstep conversation, counsel argued that Whytock was
just asking for S.B. to be “truthful” and to take back any
testimony, including the rape allegation, that was “false.” The
State made no mention of the witness tampering charge during
its rebuttal argument. No party requested a jury instruction that
would have clarified the set of facts—the August threat or the
April conversation—at which the tampering charge was aimed.
¶13 After deliberation, the jury convicted Whytock on both
counts.
ISSUES AND STANDARDS OF REVIEW
¶14 Whytock now appeals his convictions, and asks us to
consider two issues. First, Whytock challenges the trial court’s
denial of his motion for a mistrial, a decision we review for
abuse of discretion. State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948.
Second, Whytock argues that his counsel rendered
constitutionally ineffective assistance in a number of respects.
“When a claim of ineffective assistance of counsel is raised for
the first time on appeal, there is no lower court ruling to review
20180440-CA 6 2020 UT App 107State v. Whytock
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified). 2
ANALYSIS
I
¶15 We first discuss Whytock’s challenge to the trial court’s
denial of his motion for a mistrial. Whytock notes that Mother’s
reference to having “got[ten] him out” of jail “on ankle monitor”
was contrary to the trial court’s pretrial order forbidding the
State from introducing evidence of Whytock’s criminal history,
and argues that this statement prejudiced him. While we agree
with Whytock that the statement should not have come into
evidence, we conclude that the trial court did not abuse its
discretion, under the circumstances presented here, in denying
his motion for a mistrial.
¶16 A mistrial is strong medicine. “In view of the practical
necessity of avoiding mistrials and getting litigation finished, [a]
trial court should not grant a mistrial except where the
circumstances are such as to reasonably indicate that a fair trial
cannot be had and that a mistrial is necessary to avoid injustice.”
2. Whytock also invokes the cumulative error doctrine but,
because we discern no prejudicial error, that doctrine is
inapplicable. See State v. Killpack, 2008 UT 49, ¶ 62, 191 P.3d 17(“[B]ecause we have found no error in this case, the
requirements of the cumulative error doctrine are not met.”); see
also State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038(stating that, “under the [cumulative error] doctrine, we will
reverse a jury verdict or sentence only if the cumulative effect of
the several errors undermines our confidence that a fair trial was
had” (quotation simplified)).
20180440-CA 7 2020 UT App 107State v. Whytock
State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d 1133 (quotation
simplified); accord State v. Duran, 2011 UT App 254, ¶ 33, 262
P.3d 468.
¶17 And once a court denies a motion for a mistrial, we
extend a high level of deference to that decision, because trial
courts are “in an advantaged position to determine the impact of
courtroom events on the total proceedings.” State v. Allen, 2005
UT 11, ¶ 39, 108 P.3d 730; see also State v. Wach, 2001 UT 35, ¶ 45,
24 P.3d 948 (“A trial court’s denial of a motion for a mistrial will
not be reversed absent an abuse of discretion.”). Indeed, when
reviewing a court’s decision to deny a motion for a mistrial, “the
prerogative of [an appellate] court is much more limited” than
the discretion enjoyed by the trial court in evaluating the motion
in the first instance. Butterfield, 2001 UT 59, ¶ 46 (quotation
simplified). “Unless the record clearly shows that the trial court’s
decision [to deny a mistrial motion] is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot
be said to have had a fair trial, we will not find that the court’s
decision was an abuse of discretion.” Id. (quotation simplified);
accord State v. Silva, 2019 UT 36, ¶ 36, 456 P.3d 718.
¶18 Our supreme court, after reviewing Utah appellate
decisions, has noted that “a mistrial is not required where an
improper statement is not intentionally elicited, is made in
passing, and is relatively innocuous in light of all the testimony
presented.” Allen, 2005 UT 11, ¶ 40; see also Butterfield, 2001 UT
59, ¶ 47 (finding no abuse of discretion in the denial of a mistrial
where the improper testimony was not intentionally elicited and
was “vague” and “fleeting”); State v. Decorso, 1999 UT 57, ¶ 39,
993 P.2d 837 (finding no abuse of discretion in the denial of a
mistrial motion where the improper testimony was “vague” and
where “the proceedings move[d] along without undue
interruption” following the testimony), abrogated on other grounds
by State v. Thornton, 2017 UT 9, 391 P.3d 1061. Two cases in
particular are especially relevant here.
20180440-CA 8 2020 UT App 107State v. Whytock
¶19 In Wach, a defendant was accused of assaulting and
kidnapping his mother, and the trial court made a pretrial ruling
that no evidence of the defendant’s previous bad acts would be
admitted. 2001 UT 35, ¶ 19. During the mother’s testimony, she
volunteered information that implied that the defendant may
have previously assaulted her. Id. The defendant moved for a
mistrial, but the court denied the motion. Id. Our supreme court
affirmed, stating that the mother’s statement “was not elicited by
the prosecutor, and was an isolated, off-hand remark, buried in
roughly 244 pages of testimony,” and concluding that this
“isolated remark . . . did not render [the defendant’s] trial so
unfair that the trial court was plainly wrong in denying” the
motion for a mistrial. Id. ¶ 46 (quotation simplified).
¶20 And in Allen, our supreme court held that a court had not
abused its discretion in denying a motion for a mistrial when
one of the State’s witnesses made an unsolicited reference to the
defendant being asked to “come in for a lie detector test.” 2005
UT 11, ¶ 36. In analyzing the situation, the court listed six
reasons that supported its decision to affirm: (1) the prosecutor
did not intentionally elicit the statement; (2) the reference was
“vague” and did not indicate that the defendant had passed or
failed any lie detector test, only that he had been asked to take
one; (3) the “reference was brief”; (4) after the statement, “the
proceedings continued without undue interruption”; (5) the
prosecutor brought “no further attention” to the statement; and
(6) the trial court offered to give a curative instruction, which
offer the defendant declined. See id. ¶ 43.
¶21 These cases compel a similar result here. In this case, the
statement was not voluntarily elicited; indeed, the prosecutor
asked for a recess, immediately prior to Mother’s testimony, in
order to remind her of the court’s ruling and to instruct her not
to say anything about Whytock’s criminal history. And the
question the prosecutor posed was a simple one about whether
Mother had been living with Whytock; it was not a question
20180440-CA 9 2020 UT App 107State v. Whytock
designed to elicit information about Whytock’s criminal history.
Indeed, during the argument on the mistrial motion before the
trial court, defense counsel stated that he could not “fault[]” the
prosecutor, and acknowledged that Mother “just volunteered”
the information without being prompted. Moreover, Mother’s
statement was an isolated, off-hand remark and, after a brief
sidebar conference, the trial proceedings continued thereafter
without interruption. The State did not mention Mother’s
remark again during the trial, whether in examining other
witnesses or in closing argument. And the trial court offered to
give a curative instruction, but Whytock declined the offer.
¶22 Whytock asserts that these cases are not controlling here,
because he contends that, in context, Mother’s statement was less
vague than the statements at issue in the other cases. Whytock
emphasizes that, shortly before making her statement about
Whytock, Mother had discussed ankle monitors and explained
to the jury why she was wearing one that day. Whytock asserts
that, under these circumstances, the jury must have understood
that Mother’s reference to getting Whytock “out on ankle
monitor” from the jail meant that Whytock had been convicted
of crimes serious enough to warrant a sentence that included
electronic monitoring.
¶23 We take Whytock’s point, and agree that there is a
possibility that, given the context, at least some of the jurors may
have understood the reference. But this is not necessarily
grounds for a mistrial, especially given that Mother’s passing
reference to the existence of criminal activity by Whytock was
cumulative of evidence that Whytock himself elicited from other
sources. Early in the case, during cross-examination of S.B.,
Whytock’s counsel admitted into evidence, and published to the
jury, S.B.’s written statement to police in which she referred to
Whytock as a “known drug dealer and user.” Then, immediately
following Mother’s testimony, and before the trial court’s ruling
on the motion for a mistrial, Whytock called his wife as a
20180440-CA 10 2020 UT App 107State v. Whytock
witness, and—for no apparent strategic reason—asked her
whether Whytock had been “in jail” during “some of the time”
she and Whytock had been living together in a particular
location, and she answered in the affirmative.
¶24 When we examine the circumstances surrounding
Mother’s isolated and inadvertent statement, we cannot
conclude that the trial court abused its discretion in denying
Whytock’s motion for a mistrial. As noted, the brief statement
was made in passing, and was not elicited by the State.
Following the statement, the proceedings continued with only a
brief pause, and the State made no further mention of Whytock’s
criminal history generally or of Mother’s statement in particular.
And in addition, the jury learned from other sources that
Whytock was a “known drug dealer” who had spent some time
in jail, evidence that rendered Mother’s inadvertent statement
“relatively innocuous in light of all the testimony presented.” See
Allen, 2005 UT 11, ¶ 40. For all of these reasons, Whytock has not
convinced us that “the incident so likely influenced the jury”
that Whytock “cannot be said to have had a fair trial.” See
Butterfield, 2001 UT 59, ¶ 46 (quotation simplified). Accordingly,
the trial court was not “plainly wrong” in denying Whytock’s
motion for a mistrial, id. (quotation simplified), and we therefore
affirm the court’s ruling.
II
¶25 Next, Whytock asserts that his trial attorneys rendered
constitutionally ineffective assistance in two specific respects,
both of which concern the witness tampering charge. First,
Whytock contends that his attorneys should have taken various
steps aimed at definitively ascertaining the actions for which he
was being charged with witness tampering. Whytock claims
that, by failing to take those steps, his attorneys left in place a
situation in which the jury heard “two separate, distinct theories
of liability regarding witness tampering, even though the State
20180440-CA 11 2020 UT App 107State v. Whytock
only charged one count”—a situation in which a jury could have
returned a non-unanimous guilty verdict in violation of the Utah
Constitution. Second, Whytock claims that his attorneys
rendered ineffective assistance by failing to object to a jury
instruction regarding witness tampering that lacked specific
discussion of the mens rea required to convict on such a charge.
We discuss these arguments, in turn, after a brief discussion of
the legal standards governing ineffective assistance claims.
A
¶26 To establish that his trial counsel rendered
constitutionally ineffective assistance, Whytock must show both
(1) that counsel’s performance was deficient, in that it “fell below
an objective standard of reasonableness,” and (2) that counsel’s
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); see also
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24. A defendant must satisfy both parts of this test in order
to successfully establish ineffective assistance. Accordingly, it is
unnecessary “for [a court] to address both components of the
inquiry if we determine that a defendant has made an
insufficient showing on one.” Archuleta v. Galetka, 2011 UT 73,
¶ 41, 267 P.3d 232 (quotation simplified).
¶27 The first part of the test requires Whytock to show that
counsel’s performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified).
In evaluating counsel’s performance, courts often examine
whether counsel had a strategic reason for taking the challenged
action. See id. ¶ 35 (“[T]he performance inquiry will often include
an analysis of whether there could have been a sound strategic
reason for counsel’s actions.”). If counsel had a valid strategic
reason for taking the action, “it follows that counsel did not
20180440-CA 12 2020 UT App 107State v. Whytock
perform deficiently.” Id.; see also Ray, 2020 UT 12, ¶ 34 (“If it
appears counsel’s actions could have been intended to further a
reasonable strategy, a defendant has necessarily failed to show
unreasonable performance.”).
¶28 If Whytock establishes that trial counsel rendered
deficient performance, he must next show that he was
prejudiced by counsel’s performance. Prejudice exists when
there is a reasonable probability that the case would have had a
different outcome had trial counsel not performed deficiently.
See State v. Garcia, 2017 UT 53, ¶¶ 34–38, 424 P.3d 171. “[A]
reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceeding. Strickland, 466
U.S. at 694. And in assessing whether this standard is met, 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.” Garcia, 2017 UT 53, ¶ 28 (quotation
simplified). A defendant attempting to show that there was a
“reasonable probability of a different outcome” faces “a
relatively high hurdle to overcome.” Id. ¶ 44.
B
¶29 Whytock’s first claim of ineffective assistance raises the
specter of a non-unanimous verdict on the witness tampering
charge. Because the State presented evidence of two separate
instances of possible witness tampering, but charged him with
only one count of witness tampering, Whytock contends that the
jury’s verdict could have been non-unanimous: if some (but not
all) of the jurors considered him guilty because he threatened
S.B., while others (but not all) considered him guilty for his
statement to Stepfather, all of the jurors could have agreed that
he was guilty of witness tampering even though not all of them
were in agreement that he was guilty of any particular act of
witness tampering.
20180440-CA 13 2020 UT App 107State v. Whytock
¶30 Whytock’s underlying legal argument is sound. The Utah
Constitution provides that “[i]n criminal cases the verdict shall
be unanimous.” Utah Const. art. I, § 10. This requirement “is not
met if a jury unanimously finds only that a defendant is guilty of
a crime”; rather, “[j]ury unanimity means unanimity as to a
specific crime and as to each element of the crime.” State v.
Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951. Indeed, in Saunders our
supreme court spun a hypothetical, stating that a guilty verdict
would violate this constitutional principle “if some jurors found
a defendant guilty of a robbery committed on December 25,
1990, in Salt Lake City, but other jurors found him guilty of a
robbery committed January 15, 1991, in Denver, Colorado, even
though all jurors found him guilty of the elements of the crime of
robbery and all the jurors together agreed that he was guilty of
some robbery.” Id. In this hypothetical, the two different acts
would be “distinct counts or separate instances of the crime of
robbery, which would have to be charged as such.” State v.
Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314; see also State v. Alires,
2019 UT App 206, ¶¶ 18–25, 455 P.3d 636 (holding that a verdict
violated unanimity principles where a defendant was charged
with “six identically-worded counts” of sexual abuse, the counts
were not distinguished by act or alleged victim, the victims
described more than six acts that could have qualified as abuse,
and the jury convicted the defendant of only two counts; in such
a situation, “the jurors could have completely disagreed on
which acts occurred or which acts were illegal”).
¶31 This case presents the Saunders hypothetical come to life.
In this case, like the Saunders hypothetical, Whytock was charged
with only one count of a crime, but the State put on evidence of
two potential occasions on which he might have committed the
crime, and made no effort—whether in the information, in the
jury instructions, or in closing argument—to distinguish
between the two occasions or indicate to the jury which factual
occasion was the one being charged. In this case, as in Alires,
“the jurors could have completely disagreed on which acts
20180440-CA 14 2020 UT App 107State v. Whytock
occurred,” and yet could have nevertheless convicted Whytock
of witness tampering. See Alires, 2019 UT App 206, ¶ 23.
¶32 But Whytock did not bring the jury unanimity problem to
the attention of the trial court at any point, either before or
during trial. Accordingly, any objection he might now have
about the issue is unpreserved, and we may review it only for
plain error or for ineffective assistance of counsel, or under
“exceptional circumstances.” See State v. Johnson, 2017 UT 76,
¶ 19, 416 P.3d 443 (“This court has recognized three distinct
exceptions to preservation: plain error, ineffective assistance of
counsel, and exceptional circumstances.”). On appeal, Whytock
asks us to examine the issue through the lens of ineffective
assistance of counsel, as we did in Alires. See Alires, 2019 UT App
206, ¶¶ 16–30 (determining that defense counsel rendered
ineffective assistance “when he did not request an instruction
regarding juror unanimity”).
¶33 When a defendant asks us to examine an issue through
the lens of ineffective assistance, that defendant will not prevail
simply by demonstrating that there was an impropriety in the
proceedings; he must show that his counsel rendered ineffective
assistance. Sometimes an attorney might reasonably decide, as a
matter of trial strategy, not to lodge a particular objection or
bring an issue to the court’s attention, even when the attorney
believes a legal error has been made. See State v. Ray, 2020 UT 12,
¶¶ 31–32 (stating that “not objecting to an error does not
automatically render counsel’s performance deficient,” and that
an attorney is permitted to “pick his battles”); State v. Larrabee,
2013 UT 70, ¶ 27, 321 P.3d 1136 (stating that it is “axiomatic” that
“there are times when counsel’s decision not to object can be
both strategic and proper”); see also Strickland, 466 U.S. at 689(noting the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
and stating that “there are countless ways to provide effective
assistance in any given case”).
20180440-CA 15 2020 UT App 107State v. Whytock
¶34 In this case, even though Whytock has demonstrated that
a jury unanimity problem existed, he cannot prevail on an
ineffective assistance claim unless he can also show that his trial
attorneys performed deficiently in failing to address that
problem. Because, as noted above, his counsel’s actions do not
constitute deficient performance if they were “intended to
further a reasonable strategy,” see Ray, 2020 UT 12, ¶ 34,
Whytock’s claim fails if his counsel’s actions had a reasonable
strategic basis. In an effort to demonstrate deficient performance,
Whytock identifies three actions that he believes his trial
attorneys should have taken to address the jury unanimity
problem. First, Whytock believes that his attorneys should have
filed a motion, at some point after the State amended the
information, seeking clarification about which act the State was
charging as witness tampering. Second, Whytock asserts that his
attorneys should have objected, pursuant to rule 404(b) of the
Utah Rules of Evidence, to the admission of Stepfather’s
testimony about the conversation he had on his doorstep with
Whytock. Third, Whytock contends that his attorneys should
have asked for a mistrial after Stepfather’s testimony was
admitted. 3 We next examine whether counsel’s failure to take
these three specific actions constituted deficient performance.
1
¶35 First, Whytock contends that his attorneys performed
deficiently by failing to file a motion seeking clarification of the
3. At oral argument before this court, Whytock’s appellate
counsel clarified that Whytock does not contend that his trial
counsel performed deficiently by failing to request a jury
instruction regarding the issue, such as an instruction telling the
jury that it could convict on the witness tampering charge only
for the alleged threat made at the time of the rape. Accordingly,
we do not address that argument.
20180440-CA 16 2020 UT App 107State v. Whytock
State’s amended information regarding the witness tampering
charge. But we can readily imagine a strategic reason why a trial
attorney in this situation might not want to bring a motion
seeking clarification of the amended information: the State
would likely have responded to such a motion by seeking leave
to file a second amended information charging Whytock with
two counts of witness tampering rather than one. This strategy
may have been particularly appealing in this case, where the
rape charge was the main event and the witness tampering
charge was the undercard. Given the close relationship between
the rape allegation and the allegation that Whytock committed
witness tampering by threatening S.B. following the rape,
counsel could well have concluded that a jury willing to acquit
Whytock on the rape charge would likely also acquit on the
witness tampering charge, while a jury willing to convict
Whytock of rape would probably also convict him of witness
tampering, including two counts of it if both were charged.
There was significant downside risk, given the dynamics of this
case, to seeking clarification of the State’s amended information,
and counsel could reasonably have decided, for strategic
reasons, to let the matter lie. Under such circumstances, we
cannot conclude that counsel’s performance in failing to seek
clarification of the amended information was deficient under the
Strickland standard.
2
¶36 Whytock next claims that his trial attorneys performed
deficiently by failing to lodge an objection, pursuant to rule
404(b) of the Utah Rules of Evidence, to the admission of
Stepfather’s testimony about the doorstep conversation he had
with Whytock in April 2015. Whytock asserts that the
conversation was evidence of a “crime, wrong, or other act”
separate from the crime charged, and therefore should have been
excluded under rule 404(b) or rule 403.
20180440-CA 17 2020 UT App 107State v. Whytock
¶37 As an initial matter, Whytock’s assertion appears to be
grounded in the assumption that the witness tampering count
was not aimed at the April doorstep conversation, and that
evidence of that conversation therefore constitutes evidence of a
“crime, wrong, or other act” separate from the crime charged.
But Whytock’s entire overarching jury unanimity argument is
premised on the theory that the witness tampering charge might
have been aimed at that conversation; in that instance, the
conversation would be evidence of a charged crime and
therefore not rule 404(b) evidence.
¶38 But even if we assume, for the purposes of evaluating this
specific argument, that the witness tampering charge was solely
aimed at the August 2014 threat S.B. testified about, the April
2015 conversation still provided at least indirect evidence of a
charged crime, because it implied a connection between
Whytock and the alleged rape. In the conversation, as recounted
by Stepfather, Whytock identifies himself as the person
“involved” with S.B., a statement that could be interpreted in
more than one way but that could be taken to mean that
Whytock was acknowledging some involvement in the rape.
While the statement could have been used for several purposes
at trial, one potential purpose was to tie Whytock more
substantively to the rape. And when used for that purpose, this
conversation is not evidence of “other crimes,” but instead
constitutes evidence of Whytock’s involvement in the charged
rape itself. As such, it is not rule 404(b) evidence. Under these
circumstances, had trial counsel made a motion seeking its
exclusion, that motion would likely have been denied, and
therefore trial counsel could reasonably have believed that any
such motion would have been futile. See State v. Ring, 2018 UT
19, ¶ 43, 424 P.3d 845 (concluding that trial counsel did not
render deficient performance where counsel “could have
reasonably believed that an objection was futile”); State v. Kelley,
2000 UT 41, ¶ 26, 1 P.3d 546 (stating that “failure to raise futile
objections does not constitute ineffective assistance of counsel”).
20180440-CA 18 2020 UT App 107State v. Whytock
¶39 On a related note, Whytock also asserts that trial counsel
should have sought the conversation’s exclusion pursuant to
rule 403, which authorizes courts to exclude relevant evidence
“if its probative value is substantially outweighed by a danger
of,” among other things, “unfair prejudice.” See Utah R. Evid.
403. But as noted, the probative value of Stepfather’s testimony
was relatively high, whereas the risk of unfair prejudice was
relatively low given the testimony’s connection to charged
conduct. See State v. Wilson, 2020 UT App 30, ¶ 30, 461 P.3d 1124(stating that “all probative evidence is prejudicial to the party
against whom it is introduced,” but “such prejudice is not
necessarily unfair” (quotation simplified)). Trial counsel could
have reasonably concluded that any motion to exclude
Stepfather’s testimony pursuant to rule 403 would have also
been futile.
¶40 Because Whytock’s trial attorneys could have reasonably
concluded that any efforts to exclude Stepfather’s testimony
about the April 2015 doorstep conversation would have been
futile, counsel did not perform deficiently by failing to make
such efforts. Kelley, 2000 UT 41, ¶ 26.
3
¶41 Finally, Whytock argues that trial counsel should have
moved for a mistrial on the jury unanimity issue once the State
put the doorstep conversation into evidence. But we think it
unlikely that the trial court would have granted any such motion
outright, and we think counsel could have made a reasonable
strategic decision not to make such a motion.
¶42 As noted above, a mistrial is a drastic remedy that trial
courts do not lightly grant, see State v. Butterfield, 2001 UT 59,
¶ 46, 27 P.3d 1133 (“A trial court should not grant a mistrial
except where the circumstances are such as to reasonably
indicate that a fair trial cannot be had and that a mistrial is
necessary to avoid injustice.” (quotation simplified)), and under
20180440-CA 19 2020 UT App 107State v. Whytock
the circumstances presented here, we do not think it likely that
the trial court would have granted such a motion outright. To be
sure, there is a potential jury unanimity problem in this case, and
the trial court would likely have taken steps to address the issue,
if it had been brought to its attention. But counsel could have
reasonably concluded that the steps the trial court would have
taken would likely not have included declaring a mistrial.
¶43 In our view, the trial court would have most likely
responded to such a motion not by declaring a mistrial but by
addressing the unanimity issue through additional jury
instructions about the scope and nature of the witness tampering
charge. But as noted, Whytock does not argue that his counsel
was ineffective for failing to seek additional instructions. Under
these circumstances, we do not think Whytock’s trial attorneys
performed deficiently by failing to seek a mistrial, a remedy they
could have reasonably concluded was unlikely to be awarded.
As noted, when seeking particular relief would be futile, an
attorney does not perform deficiently by failing to seek it. Kelley,
2000 UT 41, ¶ 26; see also State v. Torres, 2018 UT App 113, ¶ 16,
427 P.3d 550 (“Because the decision not to pursue a futile motion
is almost always a sound trial strategy, counsel’s failure to make
a motion that would be futile if raised does not constitute
deficient performance.” (quotation simplified)).
¶44 Thus, valid strategic reasons existed for Whytock’s
attorneys to decline to seek clarification of the amended
information, to fail to object to admission of the doorstep
conversation, and to decline to seek the specific remedy of
mistrial after that evidence came in at trial. Accordingly,
Whytock has not demonstrated that his trial counsel performed
deficiently by not attempting to remedy the jury unanimity
problem by the specific means Whytock identifies in his
appellate brief. He has therefore failed to satisfy the deficient
performance element of a claim for ineffective assistance of
counsel, and his first such claim fails on that basis.
20180440-CA 20 2020 UT App 107State v. Whytock
C
¶45 Whytock’s second ineffective assistance of counsel claim
concerns itself not with jury unanimity but with the text of the
jury instruction setting forth the elements of the crime of witness
tampering. Whytock correctly points out that the witness
tampering statute under which he was charged does not set
forth any specific level of mens rea necessary for conviction, see
Utah Code Ann. § 76-8-508 (LexisNexis 2019), and therefore the
“default” level of mens rea applies, requiring the State to prove
that Whytock acted with “intent, knowledge, or recklessness” in
order to secure a conviction, see id. § 76-2-102. However, the
witness tampering instruction provided to the jury in this case
made no mention of the level of mens rea necessary to support a
conviction, and Whytock therefore asserts that the instruction
“thus allowed the jury to convict [him] of tampering as if it were
a strict liability crime.”
¶46 But even if we credit Whytock’s argument that the jury
instruction was faulty, and even if we assume, without deciding,
that Whytock’s trial attorneys performed deficiently by failing to
bring the matter to the attention of the trial court, Whytock has
nevertheless failed to demonstrate ineffective assistance of
counsel, because he cannot show a reasonable probability of a
different outcome if the instruction had been worded differently.
¶47 As the State points out, “[b]oth parties’ theories [of the
case] presupposed specific intent.” For its part, the State asserted
that Whytock had intentionally threatened S.B. after the rape,
and asserted that Whytock had intentionally gone to Stepfather’s
house to urge him to “have [S.B.] recant her statement.” At no
point did the State propose to the jury that it could convict
Whytock of witness tampering under a theory of negligence or
strict liability. And Whytock defended the witness tampering
charge by asserting that he did not threaten S.B. at all, and that
his statement to Stepfather was simply meant to remind S.B. to
20180440-CA 21 2020 UT App 107State v. Whytock
be “truthful” and to disavow any previous “false” statements
she might have made; he never defended against the witness
tampering charge by asserting that he had in fact tampered with
a witness but had done so with a less culpable mental state.
¶48 When weighing whether prejudice exists, 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.” Garcia, 2017 UT 53, ¶ 28 (quotation simplified). Under
the circumstances presented here, where neither the State’s case
nor Whytock’s defense made an issue of Whytock’s level of
intent, and where neither side asked the jury to make a decision
based on a lesser mens rea, we do not discern a reasonable
probability that the jury’s verdict would have been any different
if the jury instruction had made note of the fact that a mens rea
of at least recklessness was required. See State v. Geukgeuzian,
2005 UT App 228U, para. 9 (determining that, even if counsel
“had requested a jury instruction that included a mens rea
element” on the witness tampering charge, “there is not a
reasonable possibility that the result would change” given that
the defendant’s defense “was not that he did not intend to
procure a false statement but that the statement was true”).
Accordingly, Whytock cannot show prejudice, a necessary
element of an ineffective assistance claim, see Strickland, 466 U.S.
at 694, and his second such claim fails on that basis.
CONCLUSION
¶49 The trial court did not abuse its discretion when it denied
Whytock’s motion for a mistrial related to Mother’s inadvertent
statement. And Whytock has failed to demonstrate that his trial
attorneys rendered constitutionally ineffective assistance.
Accordingly, we affirm Whytock’s convictions.
20180440-CA 22 2020 UT App 107