State v. Holsomback

2022 UT App 72THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KENNETH RAY HOLSOMBACK,
Appellant.
Opinion
No. 20191089-CA
Filed June 9, 2022
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 181910152
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
MORTENSEN, Judge:
¶1 Kenneth Ray Holsomback had just been transferred to a
gang unit at the Utah State Prison and had been placed in a cell
with one other prisoner (the cellmate). A few hours later, a fight
broke out between Holsomback and the cellmate. Holsomback
inflicted three deep puncture wounds to the cellmate’s back. A
search of the cell turned up a homemade knife-like weapon in the
toilet. A jury found Holsomback guilty of aggravated assault by a
prisoner, possession of a prohibited item, and obstruction of
justice. One of the convictions was also enhanced owing to
Holsomback’s status as a violent habitual offender and use of a
dangerous weapon. Holsomback now complains that the State
State v. Holsomback
presented insufficient evidence to support his convictions, along
with other claims that one jury instruction and several verdict
forms were defective. We affirm.
BACKGROUND
The Incident
¶2 One day in August 2018, sometime before 2:00 p.m.,
Holsomback was transferred to a unit at the Utah State Prison set
aside for housing gang members and inmates identified as a
security threat because of their behavior. On his arrival,
Holsomback was X-rayed and then placed in a cell with the
cellmate.
¶3 The cells in the unit were five feet wide and twelve feet
long and housed two inmates; each cell had a desk, toilet, and
sink, along with a bunk bed and shelf for each inmate. While the
location of the unit control room did not allow prison officers to
see fully into the cells, each cell was equipped with an intercom
system that allowed inmates to communicate with the control
room officer by pressing a button.
¶4 At around 7:25 p.m.—when Holsomback had been in the
cell for at least five hours—the officer in the control room was
alerted to a problem in the cell when either Holsomback or the
cellmate pushed the intercom button. The officer could hear “a lot
of scuffling and what sounded like . . . wrestling and like a fight,”
“grunting,” and someone saying, “Get the fuck off me.” Believing
“there was likely a fight going on in the cell,” the control room
officer radioed other officers to check on the cell’s occupants.
Around five officers responded to the call.
¶5 Officers looked into the cell and saw blood throughout—
on the desk, floor, walls, toilet, and bottom bunk. When officers
20191089-CA 2 2022 UT App 72State v. Holsomback
entered, they found Holsomback and the cellmate standing on
opposite sides of the cell—the cellmate near the desk and
Holsomback near the door and closer to the toilet. One officer
testified that she did not see any “aggression” between the two of
them and that they did not seem to be “wound up.” The officer
saw that the cellmate “had a big cut or gash in his back and he had
a lot of blood on him”—“all over his back” and “some on the
front.” Holsomback had blood on his hands and face, but it
appeared not to be his because he had “no cuts or anything.” The
officers escorted the cellmate to a separate holding cell for a
medical evaluation.
¶6 The prison EMT noted that he “focused” his attention on
the cellmate once he saw the “severity of his injuries.” He saw
“several puncture wounds” on “various parts” of the cellmate’s
body. The EMT ended up treating three stab wounds on the
cellmate’s back. He explained that the “narrow, long, and
smooth” nature of the injuries led him to conclude they were
puncture wounds. He described these injuries as “full-thickness”
wounds, meaning the puncture passed “through all of the skin
layers”—“through the epidermis, through the dermal tissue,” and
“down to the fatty tissue.”
¶7 A prison investigator arrived about thirty minutes after the
incident and interviewed the cellmate. The cellmate did not
implicate Holsomback, but the investigator did not think he was
being honest. The investigator also met with Holsomback. The
investigator noted that he did not see any wounds on Holsomback
and that he did not appear to be “bleeding from anywhere.”
¶8 The investigator then searched the cell. Knowing that “the
toilet is a place where most people try to get rid of a weapon if it’s
involved,” the investigator looked there and saw a “white object”
that appeared to be “cloth material in the bottom of the toilet.”
The investigator asked one of the officers to retrieve the object,
which turned out to be a homemade weapon (the shank). The
20191089-CA 3 2022 UT App 72State v. Holsomback
white cloth had a pink tint, which the investigator thought looked
“like diluted blood.” The shank was made of metal and was about
five inches long and an inch wide with a sharpened edge and a
cloth wrapping at the bottom. The shank was not tested for DNA
or fingerprints.
The Proceedings
¶9 The State charged Holsomback with aggravated assault by
a prisoner, see Utah Code Ann. § 76-5-103.5 (LexisNexis 2017);
possession of a prohibited item in a correctional facility, see id.§ 76-8-311.3(2); and obstruction of justice, see id. § 76-8-306(1). The
State also charged Holsomback with two enhancements. It first
alleged that Holsomback was a habitual violent offender because
“on at least two previous occasions [Holsomback had] been
convicted of a violent felony,” see id. § 76-3-203.5(1)(b), which
would enhance a second degree felony conviction to a first degree
felony, see id. § 76-3-203.5(2)(b). Lastly, the State alleged that
Holsomback used a dangerous weapon in the commission of the
aggravated assault, which would increase the minimum prison
term by one year. See id. § 76-3-203.8(2)(a).
¶10 At trial, the State presented testimony from the prison
officers, the investigator, and the EMT. The State also introduced
into evidence (1) the shank; (2) video showing the common area
outside the cell before, during, and after the incident; and
(3) photographs of the cellmate’s injuries, Holsomback’s lack of
injury, and the blood on Holsomback.
¶11 At the close of the State’s case, Holsomback’s attorney
(Counsel) moved for a directed verdict, arguing that there was
“no indication” that Holsomback attacked the cellmate. Rather,
Counsel argued that the cellmate “could have injured himself” or
“[i]t could have been self defense.” The court denied the motion,
“find[ing] that a jury acting reasonably and considering the
20191089-CA 4 2022 UT App 72State v. Holsomback
evidence in the light most favorable to the State could find each of
the elements of each of the charges beyond a reasonable doubt.”
¶12 Holsomback did not testify or call any witnesses to testify.
However, in closing, Counsel, noting that Holsomback and the
cellmate were “calm” and “compliant” when officers entered the
cell, asked,
What happened in that cell? Was this a fight? If this
was a fight then where is the antagonism? Where is
the anger for each other? What is going on here?
Well, [the cellmate] did not accuse Mr. Holsomback
of anything. And so we’re left with well, something
happened. But that doesn’t mean that a crime
occurred.
She continued,
Did [the cellmate] self-harm and Mr. Holsomback
try and stop him? Did [the cellmate] initiate a fight
and Mr. Holsomback try to defend himself? What’s
going on in here? We don’t know.
....
[The cellmate] could have self-harmed. Mr.
Holsomback could have defended himself. Those
are reasonable inferences that can be made in this
case just as equally as Mr. Holsomback could have
attacked [the cellmate].
¶13 Jury Instruction No. 30 set forth the aggravated assault by
a prisoner charge as follows:
Kenneth Ray Holsomback is charged in Count 1 of
the Information with committing Aggravated
Assault by a Prisoner on or about August 10, 2018.
20191089-CA 5 2022 UT App 72State v. Holsomback
You cannot convict him of this offense unless, based
on the evidence, you find beyond a reasonable
doubt each of the following elements:
1. Kenneth Ray Holsomback;
2. Intentionally, knowingly, or recklessly;
3. Committed an act with unlawful force or
violence that
a. Caused bodily injury to [the cellmate]; or
b. Created a substantial risk of bodily injury
to [the cellmate]; and
4. Used a dangerous weapon; and
5. At the time of the act, Kenneth Ray Holsomback
was confined in a jail or other penal institution.
After you carefully consider all the evidence in this
case, if you are convinced that each and every
element has been proven beyond a reasonable
doubt, then you must find the defendant GUILTY.
On the other hand, if you are not convinced that
each and every element has been proven beyond a
reasonable doubt, then you must find the defendant
NOT GUILTY.
¶14 Also relevant here is the wording of the general verdict
form:
We, the jurors in the above case find beyond a
reasonable doubt the verdict against the defendant
KENNETH RAY HOLSOMBACK, as follows:
Count I: Aggravated Assault by a Prisoner
____ Guilty ____ Not Guilty
20191089-CA 6 2022 UT App 72State v. Holsomback
Count II: Possession of Items Prohibited in
Correctional Facilities
____ Guilty ____ Not Guilty
Count III: Obstruction of Justice
____ Guilty ____ Not Guilty
The jury returned a guilty verdict on each charge.
¶15 The trial was bifurcated to allow the jury to consider
enhancements as to whether Holsomback was a habitual violent
offender with regard to Count I and Count II and whether he used
a dangerous weapon with regard to Count I. For the habitual
violent offender enhancement, the State introduced certified
copies of minute entries of two of Holsomback’s prior felony
convictions. For the dangerous weapon enhancement, the State
told the jury that it must find Holsomback guilty if it believed that
he “used a dangerous weapon, namely an item or object capable
of causing serious bodily injury or death while committing the
aggravated assault by a prisoner.”
¶16 The first special verdict form, which was substantively
identical to the other two special verdict forms except regarding
the description of the counts and the enhancements, was worded
as follows:
We, the jury, have found the defendant, KENNETH
RAY HOLSOMBACK, guilty of Aggravated Assault
by a Prisoner, as charged in Count I. We also
unanimously find the State:
Has
Has Not
20191089-CA 7 2022 UT App 72State v. Holsomback
proven beyond a reasonable doubt that at the time
he committed the offense of Aggravated Assault by
a Prisoner, was a Habitual Violent Offender.
¶17 The jury found that the State had proved the applicability
of the enhancements as applied to the two counts. At sentencing,
the State moved to strike the habitual violent offender
enhancement on Count II after it realized possession of a
prohibited item in a correctional facility was not subject to that
enhancement. Accordingly, the possession count was amended
from a first degree felony to a second degree felony at the State’s
request, and the court sentenced Holsomback on each of the three
counts, with the enhancements applying only to the aggravated
assault charge. Holsomback appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Holsomback first claims that the State presented
insufficient evidence to support his convictions on the three
charges. “In assessing a claim of insufficiency of the evidence, we
review the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict of the
jury.” State v. Covington, 2020 UT App 110, ¶ 27, 472 P.3d 966(cleaned up). “And we will not reverse a jury verdict if we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven beyond
a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177, 299 P.3d
892 (cleaned up).
¶19 Holsomback next argues that the district court plainly
erred in giving, and Counsel rendered ineffective assistance in
approving, Instruction No. 30, the general verdict form, and the
special verdict forms. 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
20191089-CA 8 2022 UT App 72State v. Holsomback
was deprived of the effective assistance of counsel as a matter of
law.” State v. Darnstaedt, 2021 UT App 19, ¶ 19, 483 P.3d 71(cleaned up). And “the plain error standard of review requires an
appellant to show the existence of a harmful error that should
have been obvious to the district court.” State v. Naves, 2020 UT
App 156, ¶ 9, 477 P.3d 28 (cleaned up).
ANALYSIS
I. Sufficiency of the Evidence
¶20 Holsomback argues that insufficient evidence supported
his convictions for aggravated assault by a prisoner, possession of
an item prohibited in a correctional facility, and obstruction of
justice.
¶21 When reviewing the sufficiency of the evidence, an
appellate court gives “substantial deference to the jury.” State v.
Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664; see also State v. Hamilton,
2003 UT 22, ¶ 38, 70 P.3d 111 (“In reviewing a jury verdict, we
accord high deference to the fact-finder at trial.”). Thus, in
sufficiency claims, this court reviews “the evidence and all
inferences which may reasonably be drawn from it in the light
most favorable to the verdict of the jury.” State v. Maestas, 2012 UT
46, ¶ 302, 299 P.3d 892 (cleaned up). “After all, the jury, not the
appellate court, is the exclusive judge of . . . the weight to be given
particular evidence.” State v. Granados, 2019 UT App 158, ¶ 28, 451
P.3d 289 (cleaned up). “And a jury is not obligated to believe the
evidence most favorable to the defendant, nor does the existence
of contradictory evidence or of conflicting inferences warrant
disturbing the jury’s verdict on appeal.” Id. (cleaned up). “Simply
put, that [a] jury weighed the evidence differently than [a
defendant] believes it should have is not enough to persuade us
that the evidence . . . was insufficient.” State v. Law, 2020 UT App
74, ¶ 26, 464 P.3d 1192.
20191089-CA 9 2022 UT App 72State v. Holsomback
¶22 “Thus, we will reverse a jury verdict only when the
evidence, viewed in the light most favorable to the jury’s verdict,
is sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” State v. Covington, 2020 UT App 110, ¶ 31, 472 P.3d 966(cleaned up). Put another way, “we will not reverse a jury verdict
if we conclude that some evidence exists from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” Maestas, 2012 UT 46, ¶ 177 (cleaned
up).
¶23 Moreover, “[d]irect evidence is not required” for a jury to
reach a conviction. See State v. Nielsen, 2014 UT 10, ¶ 47, 326 P.3d
645. Indeed, “[s]ustainable verdicts are entered every day on the
sole basis of circumstantial evidence.” Id. “The idea that
circumstantial evidence is necessarily less convincing and of less
value than direct evidence is a misstatement of the law. On the
contrary, circumstantial evidence may even be more convincing
than direct testimony.” State v. MacNeill, 2017 UT App 48, ¶ 57,
397 P.3d 626 (cleaned up). And it is “well-established” that “the
identification of a defendant as the person who perpetrated the
crime charged . . . can be inferred from circumstantial evidence.”
State v. Isom, 2015 UT App 160, ¶ 23 n.2, 354 P.3d 791. Accordingly,
“a witness need not physically point out a defendant so long as
the evidence is sufficient to permit the inference that the person
on trial was the person who committed the crime.” Id. (cleaned
up).
¶24 With these standards in mind, we conclude that there was
sufficient evidence for the jury to find Holsomback guilty of the
three charges. In other words, there was “some evidence . . . from
which a reasonable jury could find . . . beyond a reasonable doubt”
that Holsomback was the person who acquired the shank, stabbed
the cellmate with it, and then tried to conceal it in the toilet. See
Maestas, 2012 UT 46, ¶ 177 (cleaned up).
20191089-CA 10 2022 UT App 72State v. Holsomback
¶25 Concerning the aggravated assault charge, there is no
doubt that a fight occurred in the cell. The control room officer
heard over the intercom either Holsomback or the cellmate telling
the other to get off him. In addition, there was blood all over the
cell and its two occupants.
¶26 But evidence showed more than the mere occurrence of a
fight. The evidence also pointed to the perpetrator. Most telling is
that the cellmate was stabbed several times. These were not
surface wounds; rather, they were “full-thickness” puncture
wounds that penetrated through the epidermis, the dermis, and
into the fatty tissue of the cellmate’s skin. And Holsomback had
no injuries after the fight. He had blood on his face, chest, hands,
forearms, and around his fingernails. But that blood was not likely
from Holsomback because he was not bleeding from any wound;
instead, it was likely from the cellmate. Thus, from the evidence
presented, the jury could reasonably conclude that the two
occupants of the cell engaged in an altercation from which
Holsomback emerged unscathed and the cellmate received three
serious puncture wounds. From this evidence, it is perfectly
reasonable for the jury to have found beyond a reasonable doubt
that Holsomback was the perpetrator of the assault on the
cellmate.
¶27 Holsomback resists this conclusion by pointing out that the
cellmate did not identify him as the attacker and suggesting that
it was just as plausible that he may have been acting in self-
defense or trying to prevent the cellmate from self-harm.
Moreover, Holsomback argues that there was “no direct
evidence” that he injured the cellmate “and the circumstantial
evidence would only allow the jury to speculate that he did.”
¶28 But the jury was reasonably skeptical of these defenses.
After hearing the evidence, the jury apparently determined that it
was implausible that Holsomback acted in self-defense when he
had no injuries while the cellmate had three deep puncture
20191089-CA 11 2022 UT App 72State v. Holsomback
wounds in his back. As to Holsomback’s suggestion that the
cellmate stabbed himself, the jury likely found it difficult to see
how it would be possible for the cellmate to self-inflict such
serious wounds in his own back—especially using a crudely
fashioned shank. Indeed, it was much more likely that the
wounds were inflicted by another person physically situated to
deliver a stab of sufficient force to deeply puncture multiple
layers of skin and flesh in the back. And given that Holsomback
was the only other person in the cell, the jury’s determination that
he was the one to do so is certainly supported by “some
evidence.” See id. (cleaned up). The fact that Holsomback can
identify possible “alternative inference[s]” based on the evidence
“is not nearly enough to set [the] verdict aside.” See Ashcraft, 2015
UT 5, ¶ 25. And “[t]he inference to be drawn from the evidence
was the jury’s to make (within reason), and the inference it
apparently drew was reasonable—more so, in fact, than the
notion that” Holsomback was acting in self-defense or trying to
prevent the cellmate from harming himself. See id. “[T]hat the jury
weighed the evidence differently than [Holsomback] believes it
should have is not enough to persuade us that the evidence . . .
was insufficient.” See Law, 2020 UT App 74, ¶ 26.
¶29 With regard to the possession charge, Holsomback argues
that “the likelihood that he brought the weapon into the cell is
very low” because he entered the unit the same day and in so
doing faced substantial security measures. Rather, he argues that
the “only reasonable inference would be that [the cellmate]
already had the weapon in the cell when Holsomback arrived.”
To support a conviction, then, Holsomback argues that “the jury
would . . . need to infer that Holsomback obtained possession of
the weapon after entering the cell and before officers arrived.”
¶30 But Holsomback’s contention contains one key flaw: once
the jury found that Holsomback assaulted the cellmate, it
necessarily had to find that he possessed a prohibited item. See
Utah Code Ann. § 76-8-311.3(2) (LexisNexis 2017) (listing a
20191089-CA 12 2022 UT App 72State v. Holsomback
“dangerous weapon” as a prohibited item in a correctional
facility). After all, Holsomback had to use something to cause the
puncture wounds, and the likely instrument—the shank—was
found in the cell. Moreover, it does not matter how Holsomback
obtained the shank because possession requires only “dominion
or control” of an item. See id. § 76-1-601(10) (“‘Possess’ means to
have physical possession of or to exercise dominion or control
over tangible property.”). Thus, it is clear that if the jury believed
Holsomback assaulted the cellmate by stabbing him in the back,
it was also reasonable for it to find beyond a reasonable doubt that
Holsomback had possession of the only contraband item found in
the cell capable of inflicting those injuries, regardless of how that
item came to be in the cell.
¶31 The same reasoning applies to the obstruction charge. The
statutory definition of obstruction requires only that an “actor,
with intent to hinder, delay, or prevent the investigation, . . .
conceals . . . any item or other thing.” Id. § 76-8-306(1)(c). The jury
concluded that Holsomback had stabbed the cellmate in the back.
It heard that the shank likely used in the assault was found in the
toilet, which Holsomback could easily access in the small cell.
There was, therefore, “some evidence” from which the jury could
find beyond a reasonable doubt that Holsomback obstructed
justice by attempting to hide the shank in the toilet. See Maestas,
2012 UT 46, ¶ 177 (cleaned up).
¶32 In sum, Holsomback has failed to show that evidence
supporting his convictions was insufficient. The State produced
ample evidence that Holsomback assaulted the cellmate with a
shank that he possessed and then attempted to conceal.
II. Jury Instruction No. 30
¶33 Instruction No. 30 stated that the jury could not convict
Holsomback unless it found beyond a reasonable doubt that
Holsomback “intentionally, knowingly, or recklessly . . .
20191089-CA 13 2022 UT App 72State v. Holsomback
committed an act with unlawful force or violence that caused
bodily injury” to the cellmate or “created a substantial risk of
bodily injury” to the cellmate. (Cleaned up.)
¶34 Holsomback claims that Counsel was ineffective for
approving Instruction No. 30 because the aggravated-assault-by-
a-prisoner statute uses the term “serious bodily injury,” and,
consequently, Instruction No. 30 should have also been
formulated to use the term “serious bodily injury.” Relatedly,
Holsomback argues that the district court plainly erred in not
giving an instruction that defined “bodily injury” and “serious
bodily injury.” See Utah Code Ann. § 76-5-103.5 (LexisNexis 2017)
(“Any prisoner who commits aggravated assault . . . is guilty of:
(1) a second degree felony if no serious bodily injury was
intentionally caused; or (2) a first degree felony if serious bodily
injury was intentionally caused.”); see also id. § 76-5-103(1)
(“Aggravated assault is an actor’s conduct . . . that is . . . 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 . . . that includes the use of . . . a dangerous
weapon.”); id. § 76-1-601(3), (11) (defining “[b]odily injury” as
“physical pain, illness, or any impairment of physical condition”
and “[s]erious bodily injury” as a “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”).
¶35 Regarding Holsomback’s argument that Counsel was
ineffective for approving Instruction No. 30 when the instruction
did not include the term “serious bodily injury,” this argument is
a non sequitur. The question of whether a prisoner caused serious
bodily injury is relevant when the State charges assault by a
prisoner as a first degree felony. But here, the State charged
assault by a prisoner resulting in mere “bodily injury,” which is a
second degree felony under the statute. See id. § 76-5-103.5(1)
(stating that aggravated assault by a prisoner is ”a second degree
20191089-CA 14 2022 UT App 72State v. Holsomback
felony if no serious bodily injury was intentionally caused”). The
conviction was enhanced to a first degree felony only when the
jury found that Holsomback was a habitual violent offender. The
inclusion of “serious bodily injury” would have been out of place
in Instruction No. 30 because the jury was not tasked with
determining whether Holsomback intentionally caused serious
bodily injury to the cellmate. The jury had to find that
Holsomback caused mere bodily injury to the cellmate, and thus
Instruction No. 30 accurately conveyed to the jury the charge
against Holsomback. See State v. Holm, 2020 UT App 96, ¶ 31, 467
P.3d 934 (“Although defendants are entitled to an accurate
instruction upon the basic elements of an offense, . . . district
courts need not give jury instructions regarding elements
unnecessary for the conviction of the charged crime.” (cleaned
up)); accord State v. Pederson, 2005 UT App 98, ¶ 4, 110 P.3d 164.
¶36 Given what we have just explained—that Instruction No.
30 was correct—Counsel’s approval of the instruction was not
objectively unreasonable. See State v. Vigil, 2019 UT App 131, ¶ 11,
448 P.3d 738 (“Failure to object to jury instructions that correctly
state the law is not deficient performance.” (cleaned up)); see also
State v. Lopez, 2019 UT App 11, ¶ 23, 438 P.3d 950 (“To establish
ineffective assistance of counsel, [a] defendant must show: (1) that
counsel’s performance was objectively deficient, and (2) a
reasonable probability exists that but for the deficient conduct
[the] defendant would have obtained a more favorable outcome
at trial. . . . A defendant’s inability to establish either element
defeats a claim for ineffective assistance of counsel.” (cleaned
up)). And the same reasoning applies to Holsomback’s claim that
the court plainly erred in not giving an instruction that defined
“serious bodily injury.” Because the jury was not tasked with
determining whether Holsomback intentionally caused serious
bodily injury to the cellmate, there can be no error—much less
plain error—in the omission of a definition for that term. See State
v. Tucker, 2004 UT App 217, ¶ 19, 96 P.3d 368 (rejecting a claim
20191089-CA 15 2022 UT App 72State v. Holsomback
that giving a jury instruction constituted plain error when the
defendant was unable to identify “any error in the challenged
instruction, much less the obvious error required under a plain
error analysis”).
¶37 Lastly, Holsomback’s complaint that the court plainly
erred in not defining “bodily injury” fails because any error in this
respect was invited when Counsel approved Instruction No. 30.
While it is true that Counsel originally had proposed jury
instructions that defined “bodily injury,” the State, Counsel, and
the court later worked together to compile instructions that did
not include the definition. When asked if Holsomback objected to
the instructions, Counsel responded, “No. Not really. I think
they’re mostly MUJIs.” Specifically, with respect to Instruction
No. 30, the court asked, “Is everybody okay with that the way it
is?” Counsel responded, “I’m fine with that.” And after resolving
a few concerns unrelated to the bodily injury definition, the court
asked the parties whether there was “[a]nything else” to discuss
regarding the instructions. Counsel did not renew the request for
a bodily injury definition, instead responding, “I think that’s it.”
Thus, Counsel affirmatively approved the instruction in
responding to the court’s questions. And this affirmative response
invited the alleged error contained in the instructions. See State v.
Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742 (“A jury instruction may
not be assigned as error . . . if counsel, either by statement or act,
affirmatively represented to the court that he or she had no
objection to the jury instruction.” (cleaned up)); see also Wilson v.
Sanders, 2019 UT App 126, ¶ 24 n.3, 447 P.3d 1240 (“An affirmative
representation that a party has no further objection to a jury
instruction falls within the ambit of the invited-error doctrine.”
(cleaned up)). As such, “because [Counsel] made an affirmative
representation encouraging the court to proceed without further
consideration of an issue, [Holsomback] invited” the “error in the
jury instructions” he now complains of, “and therefore the plain
error exception is inapplicable here and we need not consider
20191089-CA 16 2022 UT App 72State v. Holsomback
[Holsomback’s] objection to that action on appeal.” See State v.
Popp, 2019 UT App 173, ¶ 24, 453 P.3d 657 (cleaned up). 1
III. Verdict Forms
¶38 Holsomback’s final complaint is that Counsel rendered
ineffective assistance by not objecting to, and the district court
plainly erred in giving, the general and special verdict forms.
¶39 “To prevail on a claim of ineffective assistance of counsel,
the defendant must show that (1) his counsel’s performance was
deficient in that it fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the
defense.” State v. Wright, 2021 UT App 7, ¶ 52, 481 P.3d 479(cleaned up). “However, there is no reason for a court deciding an
ineffective assistance claim to address both components of the
inquiry if the defendant makes an insufficient showing on one.”
State v. Collier, 2020 UT App 165, ¶ 12, 479 P.3d 351 (cleaned up).
1. Holsomback also skeletally asserts ineffective assistance for
Counsel’s failure to request a definition of bodily injury: “The
failure to provide the necessary definitions for ‘bodily injury,’ and
‘serious bodily injury,’ was that of the court and counsel.”
(Emphasis added.) “To the extent that [Holsomback] has even
raised this as an issue for our review, it is inadequately briefed
and we decline to reach it.” See State v. Boyer, 2020 UT App 23, ¶ 40
n.7, 460 P.3d 569; see also State v. Green, 2005 UT 9, ¶ 11, 108 P.3d
710 (explaining that a brief that provides “no meaningful legal
analysis” apart from “one or two sentences” broadly stating an
argument and entitlement to relief is inadequate (cleaned up));
Utah R. App. P. 24(a)(8) (stating that appellate briefs “must
explain, with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on
appeal”).
20191089-CA 17 2022 UT App 72State v. Holsomback
¶40 To show that Counsel performed deficiently, Holsomback
must overcome the presumption that Counsel’s challenged
actions and decisions fell “within the wide range of reasonable
professional assistance.” See Strickland v. Washington, 466 U.S. 668,
689 (1984). “[T]he ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350. And “counsel’s performance is prejudicial if the
defendant can demonstrate that there is a reasonable probability
that the outcome of his or her case would have been different
absent counsel’s error. Accordingly, the defendant must do more
than simply show that the errors had some conceivable effect on
the outcome of the proceeding.” Wright, 2021 UT App 7, ¶ 54
(cleaned up).
A. General Verdict Form
¶41 Holsomback argues that the general verdict form, supra
¶ 14, was defective because the prefatory language applied to the
guilty and not guilty options for each count. In other words, the
general verdict form could be read as asking whether the jury
found Holsomback guilty beyond a reasonable doubt or not guilty
beyond a reasonable doubt with respect to each count.
Holsomback asserts,
[T]he fact is there were only two alternatives, both
of which required the same degree of proof. Given
the facts, there is virtually no likelihood that Mr.
Holsomback was going to be found not guilty by
proof beyond a reasonable doubt. The jury was
required to turn to the only alternative remaining, a
guilty verdict. That is not how it is supposed to
work.
¶42 Holsomback makes a valid point, and the State admits that
the general verdict form featured “unartfully drafted
20191089-CA 18 2022 UT App 72State v. Holsomback
introductory language.” Indeed, a jury is never charged with
finding a defendant “not guilty” beyond a reasonable doubt. We
note that the general verdict form here does not accurately reflect
the burden of proof, and trial courts, prosecutors, and the defense
bar should not use such prefatory language in verdict forms.
¶43 But while acknowledging that the general verdict form
contained inaccurate language, we are not persuaded that
Holsomback was prejudiced by the inaccuracy. We reach this
conclusion because the jury instructions repeatedly made clear
that the State had the burden of proving guilt beyond a reasonable
doubt on each of the three counts and that Holsomback had no
burden to prove his innocence:
• Instruction No. 3: “The prosecution has the burden
of proving the defendant guilty beyond a
reasonable doubt.”
• Instruction No. 4: “Remember, the fact that the
defendant is charged with a crime is not evidence of
guilt. The law presumes that the defendant is not
guilty of the crimes charged. This presumption
persists unless the prosecution’s evidence convinces
you beyond a reasonable doubt that the defendant
is guilty.”
• Instruction No. 30: “You cannot convict
[Holsomback] of this offense unless, based on the
evidence, you find beyond a reasonable doubt each
of the [elements for aggravated assault by a
prisoner].”
....
“After you carefully consider all the evidence in this
case, if you are convinced that each and every
element has been proven beyond a reasonable
20191089-CA 19 2022 UT App 72State v. Holsomback
doubt, then you must find the defendant GUILTY.
On the other hand, if you are not convinced that
each and every element has been proven beyond a
reasonable doubt, then you must find the defendant
NOT GUILTY.”
• Instruction No. 32 repeated the language of
Instruction No. 30, with the exception of changing it
to apply to possession of a prohibited item in a
correctional facility.
• Instruction No. 40 repeated the language of
Instruction No. 30, with the exception of changing it
to apply to obstruction of justice.
• Instruction No. 43: “Because this is a criminal case,
every single juror must agree with the verdict before
the defendant can be found ‘guilty’ or ‘not guilty.’ . . .
[T]he verdict must reflect your individual, careful, and
conscientious judgment as to whether the evidence
presented by the prosecutor proved each charge
beyond a reasonable doubt.”
¶44 Moreover, the foreperson was instructed to fill out the
general verdict form—where the inaccurate language occurs—
only “[o]nce the jury [had] reached the verdict.” Given this
sequence, any risk of prejudice was substantially reduced because
the jury had reached its determination of guilt using the correct
burden-of-proof language contained in the jury instructions just
cited, isolated from the influence of the general verdict form.
¶45 Under these circumstances, there is no “reasonable
probability that the outcome” of Holsomback’s case would have
been different absent the error Counsel allowed to occur in not
objecting to the inaccurate language of the general verdict form.
See Scott, 2020 UT 13, ¶ 43. Given that the jury (1) had been told
that the law presumed Holsomback not guilty, (2) had been
20191089-CA 20 2022 UT App 72State v. Holsomback
instructed at least nine times that the State bore the burden of
proving Holsomback guilty beyond a reasonable doubt, and
(3) had been instructed not to complete the general verdict form
until after it had reached its verdict, the impact of the inaccurate
verbiage Holsomback complains of was “not so profound as to
undermine our confidence in the proceeding’s outcome.” Cf. State
v. Ayala, 2022 UT App 1, ¶ 24, 504 P.3d 755 (cleaned up).
¶46 And Holsomback’s claim of plain error also fails for lack of
prejudice. In other words, Holsomback cannot succeed on a claim
of plain error or ineffective assistance regarding the verbiage
employed in the general verdict form if he cannot establish
prejudice. See State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699 (“We
have held that the prejudice test is the same whether under the
claim of ineffective assistance or plain error.”); see also State v.
Henfling, 2020 UT App 129, ¶ 30 n.7, 474 P.3d 994 (“When a
defendant raises issues of plain error and ineffective assistance of
counsel, a common standard of prejudice applies because plain
error requires a showing that absent the error, there is a
substantial likelihood of a more favorable outcome for defendant,
and similarly, the ineffective assistance standard requires a
showing that but for ineffective assistance of counsel, the result
would likely have been different for [the] defendant.” (cleaned
up)).
¶47 In sum, we conclude that Holsomback’s ineffective
assistance claim and plain error claim with regard to the general
verdict form fail because he was not prejudiced by the inaccurate
language.
B. Special Verdict Forms
¶48 With regard to the three special verdict forms, supra ¶ 16,
Holsomback argues that they “all suffer from the same infirmity”
as did the general verdict form. We disagree.
20191089-CA 21 2022 UT App 72State v. Holsomback
¶49 Unlike the general verdict form, which asked the jury to
state whether Holsomback was guilty or not guilty beyond a
reasonable doubt, the special verdict forms accurately described
the jury’s duty: to unanimously find whether or not the State
proved beyond a reasonable doubt that the enhancing condition
existed. See United States v. Haymond, 139 S. Ct. 2369, 2376 (2019)
(plurality opinion) (“A jury must find beyond a reasonable doubt
every fact which the law makes essential to a punishment that a
judge might later seek to impose.” (cleaned up)); see also Pereida v.
Wilkinson, 141 S. Ct. 754, 765 (2021) (pointing out “the Sixth
Amendment rule in criminal cases that any fact that increases the
penalty for a crime must be proved to a jury” (cleaned up)). In
other words, the special verdict forms contained only one
possibility (i.e., the elements necessary to support the
enhancement) subject to proof beyond a reasonable doubt, while
the general verdict form had two possibilities (namely, guilty or
not guilty) to which proof beyond a reasonable doubt might
apply. It is this dualism—something altogether absent in the
special verdict forms—that created the problem in the general
verdict form.
¶50 Therefore, finding no error in the language of the special
verdict form, we conclude that Counsel did not perform
deficiently in approving the forms, and the court did not plainly
err in submitting them to the jury. See State v. Vigil, 2019 UT App
131, ¶ 11, 448 P.3d 738 (“Failure to object to jury instructions that
correctly state the law is not deficient performance.” (cleaned
up)); see also State v. Kelson, 2014 UT 50, ¶ 26, 345 P.3d 1136 (stating
that “there can be no error—much less plain error” in a jury
instruction that correctly expresses the law and to which the
parties stipulated).
20191089-CA 22 2022 UT App 72State v. Holsomback
CONCLUSION
¶51 We conclude that there was sufficient evidence to support
each of the three charged offenses leading to the convictions.
¶52 We also conclude that because the jury was not tasked with
determining whether Holsomback intentionally caused serious
bodily injury to the cellmate, Instruction No. 30 cannot support a
claim of ineffective assistance or plain error in its omission of a
definition for that term. And Holsomback’s plain error complaint
about Instruction No. 30 fails as invited error.
¶53 Although the language of the general verdict form
inaccurately suggested that the reasonable doubt standard
applied to a finding of not guilty, Holsomback’s ineffective
assistance claim fails for lack of prejudice. And Holsomback’s
plain error challenge in this regard fails for the same reason.
¶54 Finally, having found no defect in the special verdict forms,
Holsomback’s claims concerning them also fail.
¶55 Affirmed.
20191089-CA 23 2022 UT App 72