State v. Guerro

               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                           Appellee,
                               v.
                         OMAR GUERRO,
                           Appellant.

                            Opinion
                        No. 20190534-CA
                     Filed December 9, 2021

           Seventh District Court, Moab Department
              The Honorable Don M. Torgerson
                        No. 181700206

        Emily Adams, Freyja Johnson, Cherise M. Bacalski,
          and Benjamin Miller, Attorneys for Appellant
          Sean D. Reyes and Jeffrey D. Mann, Attorneys
                          for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
                        concurred.

MORTENSEN, Judge:

¶1     Omar Guerro contends that he was falsely accused and
wrongly convicted of murder and kidnapping—even though
multiple witnesses identified him as perpetrating these crimes.
He claims that the trial court erred in admitting certain text
messages into evidence and that his counsel rendered ineffective
assistance in several ways. We reject Guerro’s claims of error and
ineffective assistance, and we affirm his convictions.
                          State v. Guerro


                        BACKGROUND 1

                            The Murder

¶2     Guerro had recently moved to Moab, Utah, and had
become acquainted with six individuals: Rojo, Jaime, Jorge,
BreeAnna, Kevin, and Melina. One day, Guerro and Jaime
purchased beer and brought it to Rojo’s residence at a trailer
park. As the others began to arrive, the group began drinking
the beer and smoking methamphetamine. Melina went to a
bedroom in the back of the trailer, while the others remained in
the front living area near the kitchen.

¶3    After Jorge arrived, the mood became “tense.” Guerro
accused Kevin and Rojo of stealing drugs, and he then produced
a handgun and demanded everyone turn over their cell phones.
When Guerro questioned Kevin and Rojo about the drugs and
the whereabouts of Guerro’s family, Rojo claimed that he did not
“know anything.”

¶4     Guerro responded by calling Rojo a “dog,” demanding,
“Tell me the truth, and I’ll give you another chance. I’ll respect
your life,” and, “[T]ell me what you know about my family.”
Rojo continued to say he did not know anything and looked to
the others “like [he was] asking for help.” Guerro then shot Rojo
in the chest, puncturing his lung and breaking a rib. BreeAnna,
Rojo’s girlfriend, went to Rojo’s aid, reiterated that he did not
know anything, and pleaded for his life. Guerro responded by
hitting Rojo on the head with the gun and then shooting him in
the head from about a foot away, killing him instantly. Then


1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 

, 

 (cleaned up).




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                          State v. Guerro


Guerro asked, “Where’s Kevin? He’s next.” Kevin ran toward
the back of the trailer, while Jaime stopped Guerro from
pursuing him by telling Guerro that he needed to leave.

                       The Flight and Arrest

¶5     Guerro told the group that they “should do what he
would tell [them] to do if [they] didn’t want to happen to [them]
what had happened to Rojo.” Jorge, Jaime, and BreeAnna
followed Guerro’s “orders” to leave the trailer with him and flee
the trailer park in Jorge’s vehicle.

¶6     Another resident of the trailer park (Neighbor) was
outside when he heard the gunshots and commotion. He
recognized the voices of BreeAnna, Jorge, and Jaime as they
were leaving the trailer, but he did not recognize the voice of a
fourth person. Neighbor went into the trailer—after Guerro and
company had left—and saw Rojo’s body. Neighbor then heard a
car pulling up, and he ran out of the trailer and hid in his
backyard.

¶7     After only a few minutes, Guerro and the others had
returned to retrieve drugs and cell phones they left in the trailer.
Guerro ordered Jaime to collect these items from the trailer.
Jaime put all the cell phones and drugs in a backpack, except for
his own phone, which he placed in his pocket. After Jaime
returned from the trailer, the group left again with Jorge driving,
Guerro in the front passenger seat, and BreeAnna and Jaime in
the back. A short time later, Jaime “made a sign to [Jorge] with
[his] eyes . . . telling him to slow down,” and he jumped out of
the car. The remaining trio attempted to return to the trailer to
retrieve personal items and get Kevin and Melina, but as they
approached, Guerro saw the police were there and ordered Jorge
to stop. Guerro pointed the gun at Jorge and BreeAnna,
threatening the pair to stay with him, but BreeAnna managed to
escape by running toward a nearby crowd.




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                         State v. Guerro


¶8     Guerro then called Jaime for a ride, threatening Jaime’s
family if he failed to help. Jaime’s father showed up and took
them to Jaime’s uncle’s house. From there, Guerro, Jaime, and
Jorge went on the run for several days through southern Utah
and Arizona. Arizona law enforcement eventually found their
car and attempted to stop it, but Guerro sped away with Jaime
and Jorge. The car ran out of gas and crashed after a brief chase.
Jorge and Jaime were apprehended and explained that Guerro
had kidnapped them. Guerro was apprehended about a quartermile from the car. He had a spent shell casing in his pants pocket
at the time of his arrest. Police also found a gun, which Guerro
had tossed out of the car before the crash, and a bag containing
drugs and money.

¶9     The firearm that the police found, a .40 caliber handgun,
had a round chambered and several other unspent rounds in the
magazine. The brass and aluminum casings of those rounds
matched the ammunition—two bullets and two casings—that
was collected at the scene of Rojo’s murder. The casing found in
Guerro’s pocket was also .40 caliber. Guerro’s fingerprint was
recovered from the gun’s magazine.

¶10 Guerro was charged with murder, three counts of
aggravated kidnapping, and one count of possession of a firearm
by a restricted person.

                            The Trial

¶11 At trial, BreeAnna, Jorge, and Jaime, among others,
testified for the State, recounting the events as described above.
See supra ¶¶ 2–8. Kevin’s preliminary hearing testimony was
admitted by stipulation at the trial because he was unavailable to
testify due to being incarcerated out of state. We highlight other
testimony and evidence relevant to the issues on appeal as
follows.




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                         State v. Guerro


1.    Text Messages

¶12 The State called Neighbor to testify. During cross-examination, Guerro’s attorney (Counsel) asked Neighbor about
texts that he had received from his sister. These text messages
had been sent by Kevin to the sister shortly after the murder. The
sister, in turn, sent screenshots of those text messages to
Neighbor. Counsel asked Neighbor, “[A]t that time immediately
after the offense in question, Kevin identified Jaime as the
shooter?” Neighbor answered, “Yeah. . . . I wasn’t sure if he was
the shooter, but yes . . . .” On redirect, the prosecutor asked
Neighbor about the text messages, and Neighbor said that he
“didn’t read over them, [but he] just got them and . . . sent them
to the detective.” Neighbor again said that “Kevin was actually
saying that [Jaime] was the shooter.”

¶13 The prosecutor then sought to admit screenshots of the
text messages that the sister received from Kevin and that she
subsequently sent to Neighbor. The text messages were written
in Spanish and translated by a court certified interpreter.
Counsel promptly objected on the grounds that the text
messages could not be authenticated and that Kevin was
unavailable to testify about the messages. The prosecutor
responded that the State had not intended to introduce the text
messages, but it did so because the “defense is the one that
brought this issue of these texts up.” Because Counsel “raised an
issue” that “Kevin identified Jaime as the shooter” in the text
messages, the prosecutor argued that “[t]his is the response that
we have, [screenshots] that were made that night in question.”
He added, “I don’t think [Counsel] can bring it up and then say
they’re not authentic. We have to be able to respond to that.”

¶14 The court ruled “that as far as authentication goes, the
evidence is that [Neighbor had] identified that those are in fact
the messages that he received.” The court later clarified that the
text messages were admissible under rule 806 of the Utah Rules
of Evidence. See Utah R. Evid. 806 (“When a hearsay statement



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                          State v. Guerro


. . . has been admitted in evidence, the declarant’s credibility
may be attacked, and then supported, by any evidence that
would be admissible for those purposes if the declarant had
testified as a witness.”).

¶15 The prosecutor then reviewed with Neighbor the text
messages in question. The prosecutor asked Neighbor about the
following exchange between his sister and Kevin:

      Sister: “Who killed him, Kevin? Who was it? Was it
          BreeAnna?”

      Kevin: “It was a guy that was with Jaime.”

The prosecutor then asked Neighbor, “Is that correct?” And
Neighbor testified, “Yes.” Another text message exchanged
between Kevin and the sister similarly indicated that the
individual who killed Rojo was “[t]he one that was with [Jaime]”
and that Kevin did not “know his [i.e., the shooter’s] name.”
Nowhere in the text messages reviewed with Neighbor was
there any indication that Kevin stated Jaime was the shooter.

2.    The DNA Testing

¶16 The State also called a fingerprint examiner (Examiner)
who had inspected the fingerprints on the gun. She testified that
Guerro’s fingerprint was found on the gun’s magazine and that
it was the only usable print on the gun; in other words, it was
the only one that “contained enough detail” to make an
identification.

¶17 On cross-examination, Counsel asked Examiner about
DNA swabs she had taken from the gun, bullet casings, and a
cell phone. She explained that part of her job was to collect
possible sources of DNA from items, but the samples were sent
to a different laboratory for analysis. Examiner further noted that
while she was aware that a DNA report was completed, she did



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                         State v. Guerro


not “have any actual training on the analysis of the reports” or
on making “conclusions or giv[ing] much detail regarding the
nature of [DNA] reports.” When Counsel began to ask about the
DNA report, the State objected, asserting that the DNA report
should not be admitted because there was nobody present to
testify about it. Nevertheless, Counsel stated that he intended to
“make [Examiner] familiar with [the DNA report] and see if she
can answer some questions based on what [he] show[ed] her,
since [the State did not] have anybody [there] for the DNA
report.” Counsel then asserted that Examiner could read the
report aloud without opining on it. The court responded that
having her simply read it aloud “doesn’t meet the standard of
being anything that will assist the jury in making a decision”
because “she can’t give any information that they wouldn’t be
able to gather themselves.” Counsel then stated that he would
“just put it in evidence.” The State promptly objected, saying
that there was “nobody to verify” or “authenticate” the report.
The court sustained the objection, and neither the report nor
testimony about its contents was introduced. The DNA report is
not in the record.

3.    Guerro’s Testimony

¶18 In contrast to the testimony of Jaime, BreeAnna, Kevin,
and Jorge regarding the events surrounding Rojo’s murder,
Guerro had a different take, denying the charges of murder and
kidnapping and portraying Jaime as the culprit. He asserted that
Jaime and Rojo were arguing about money and dealing drugs,
that it was Jaime who shot Rojo (with a gun Jaime owned), and
that it was Jaime who searched for Kevin.

¶19 Guerro asserted that he did not force anyone into the
vehicle to flee after Rojo’s murder. He testified that Jaime was
the one who orchestrated the flight. He also explained that he
could have picked up the bullet casing from inside the car after
Jaime had fired the gun while they were driving.




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                         State v. Guerro


¶20 Guerro accounted for his fingerprints on the gun by
explaining that he had handled the gun previously: “I myself
cleaned that gun. I assembled it and I even oiled the springs. I
kind of removed everything, I put it back together completely.”
Guerro also asserted that Jaime gave the gun to him to hold a
few times during the flight through southern Utah and Arizona.

¶21 Guerro claimed that he learned he was a suspect in Rojo’s
murder and confronted Jaime about it when they got to Arizona.
Guerro testified that Jorge threw a bag out of the car and that
Jaime tossed the gun. Guerro said he ran when the car crashed
because he knew he was a suspect.

¶22 On cross-examination, the prosecutor asked Guerro about
the truthfulness of the testimony offered by the group that was
present the evening of the murder:

      Prosecutor: “You’ve heard testimony that all of the
         witnesses said you were concerned and asking
         questions about what happened to your
         family.”

      Guerro: “I did hear that.”

      Prosecutor: “You heard that from BreeAnna?”

      Guerro: “Almost all of them said that.”

      Prosecutor: “Okay. You want this jury to believe
         that they all lied about that?”

      Guerro: “Why wouldn’t they? They’re part of the
        same circle.”

                     The Verdict and Appeal

¶23 The jury convicted Guerro of murder, aggravated
kidnapping of Jorge, and possession of a firearm by a restricted


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                          State v. Guerro


person. It found him not guilty of the aggravated kidnapping of
BreeAnna and Jaime. Guerro appeals.


            ISSUES AND STANDARDS OF REVIEW

¶24 Guerro claims that the trial court abused its discretion
when it allowed the State to admit the text messages into
evidence without proper authentication. “We review the legal
questions to make the determination of admissibility [of
evidence] for correctness. We review the questions of fact for
clear error. Finally, we review the trial court’s ruling on
admissibility for abuse of discretion.” Arnold v. Grigsby, 

, 

 (cleaned up).

¶25 Guerro also raises various ineffective-assistance-ofcounsel claims, which we will consider in three parts. First, he
asserts that Counsel was ineffective for not objecting to
screenshots of the text messages on the ground that they lacked
an accurate translation. Second, Guerro claims that Counsel was
ineffective when he did not object to the prosecutor asking
Guerro, “You want this jury to believe that they all lied about
that?” Third, Guerro argues that Counsel was ineffective when
he did not call a witness who could testify about the multiple
DNA profiles on the gun. “When a claim of ineffective assistance
of counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Reid, 

, 

 (cleaned up).


                            ANALYSIS

               I. Authentication of Text Messages

¶26 Neighbor testified that his sister sent him text messages—
which she received from Kevin—in which Kevin identified Jaime


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                          State v. Guerro


as the individual who shot and killed Rojo. At the end of his
cross-examination of Neighbor, Counsel specifically asked
Neighbor about the text messages he had received from his
sister:

      Counsel: “While you were being interviewed [by
        the police], you were receiving text messages
        from your sister, . . . right?”

      Neighbor: “Yeah.”

      Counsel: “And she in turn was in contact with
        Kevin at that time, correct?”

      Neighbor: “Yes.”

      Counsel: “And at that time immediately after the
        offense in question, Kevin identified Jaime as
        the shooter?”

      Neighbor: “Yeah. Well, he didn’t—I wasn’t sure if
         he was the shooter, but yes, we—my—the
         messages my sender—my sister sent to one of
         the detectives, and they read over it.”

      Counsel: “Well, you didn’t—you didn’t see what
        happened inside the trailer?”

      Neighbor: “No, I did not see what happened in
         there.”

      Counsel: “But Kevin did?”

      Neighbor: “Kevin—I believe so.”

¶27 On redirect, the prosecutor continued questioning
Neighbor about the text messages by showing him the
screenshots he had received from his sister, at which point


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                          State v. Guerro


Counsel—who had brought up the text messages in the first
place—objected to their admission for lack of authentication. The
trial court ruled that the text messages had been authenticated
by Neighbor because he had identified them as those he had
received. In addition, the court determined the messages were
admissible under rule 806 of the Utah Rules of Evidence.

¶28 Guerro now complains that the trial court erred in
allowing the screenshots of the text messages to be admitted.
While the trial court ruled that the text messages were
admissible because Neighbor had authenticated them and under
rule 806, we determine that the principle of curative
admissibility applies to the admission of the text messages and
note that we may affirm a decision reached by the trial court “on
any legal ground or theory apparent on the record.” See State v.
McLeod, 

, 

 (cleaned up); accord
Berrett v. State, 

, 

.

¶29 The principle of “curative admissibility” provides that a
party who “interjects into a case” inadmissible evidence “cannot
complain on appeal that his adversary subsequently offered and
was permitted to introduce the same kind of evidence.” Barson ex
rel. Barson v. E.R. Squibb & Sons, Inc., 

 (Utah
1984) (cleaned up); see also State v. Dalton, 

,

 (“While certain evidence may be excludable when
elicited or offered by the prosecution to prove its case-in-chief,
the same evidence may not be excludable when the
responsibility for its introduction may be traced to the
defendant.” (cleaned up)); State v. Mahi, 

,

 (“A party cannot introduce potentially
inflammatory evidence and then later complain when the
opposing party attempts to rebut it.”); State v. Ramos, 

 (Utah Ct. App. 1994) (holding that when a defendant
“elicited testimony regarding [a mug shot’s] existence when
cross-examining [a detective],” he could not “on appeal attack
the admission of the photograph because he himself opened the
door to its introduction on cross-examination”).



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                          State v. Guerro


¶30 Morevoer, “once the defendant offers evidence or makes
an assertion as to any fact, the State may cross-examine or
introduce on rebuttal any testimony or evidence which would
tend to contradict, explain or cast doubt upon the credibility of
[the defendant’s] testimony.” State v. Thompson, 

, 

 (cleaned up). Thus, a defendant is not
allowed “to introduce a document to establish a fact critical to
the case without allowing the prosecution to challenge the
underlying premise that the document is accurate.” Id. ¶ 31; see
also United States v. Fleming, 

 (10th Cir. 1994)
(“A defendant may not make false statements on direct
examination and rely on the government’s inability to challenge
his credibility as to the truth of those statements.”).

¶31 Here Guerro not only raised the issue of the text
messages, but he also mischaracterized that evidence in the
process. So the State was entitled to use the very evidence
Guerro introduced in its rebuttal and to clarify precisely what
Kevin had communicated to Neighbor’s sister. Neighbor’s
testimony about the content of the text messages—elicited first
by Counsel—left the jury with the false impression that Kevin’s
texts explicitly “identified Jaime as the shooter.” Having
introduced this “potentially inflammatory evidence,” Guerro
cannot now complain about the State’s “attempts to rebut it.” See
Mahi, 

; cf. State v. Reed, 

(Utah Ct. App. 1991) (“It would be a mockery of our justice
system to allow a defendant to take the stand and testify as to his
own good character while impugning the character of an
opposing witness, and then claim that his testimony is not
subject to cross-examination because such inquiry would be too
prejudicial.”). In his cross-examination of Neighbor, Counsel
essentially elicited a misleading—if not outright false—
testimonial statement regarding the content of the text messages,
thus “open[ing] the door” to allow the prosecution to present
that same evidence to dispel the false impression. See Mahi, 

 (cleaned up).




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                           State v. Guerro


¶32 Thus we conclude that the trial court did not abuse its
discretion in admitting evidence of the text messages after
Guerro introduced that evidence during his cross-examination of
Neighbor.

                 II. Ineffective Assistance Claims

¶33 “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, 

, 

(cleaned up). “Because failure to establish either prong of the test
is fatal to an ineffective assistance of counsel claim, we are free to
address [Guerro’s] claims under either prong.” See Honie v. State,

, 

.

¶34 To show that Counsel performed deficiently, Guerro must
overcome the presumption that Counsel’s challenged actions
and decisions fell “within the wide range of reasonable
professional assistance.” See Strickland v. Washington, 

 (1984). “The court gives trial counsel wide latitude in
making tactical decisions and will not question such decisions
unless there is no reasonable basis supporting them.” State v.
Clark, 

, 

 (cleaned up). And “even
where a court cannot conceive of a sound strategic reason for
counsel’s challenged conduct, it does not automatically follow
that counsel was deficient. . . . The ultimate question is always
whether, considering all the circumstances, counsel’s acts or
omissions were objectively unreasonable.” State v. Scott, 

, 

 (cleaned up); see also State v. Ray, 

, 

 (“A reviewing court must always base its
deficiency determination on the ultimate question of whether
counsel’s act or omission fell below an objective standard of
reasonableness.”).




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                           State v. Guerro


¶35 “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, 

(cleaned up).

A.     Translation of Text Messages

¶36 Guerro contends that Counsel should have objected to the
translation of the text messages. 2 Specifically, he argues that “the


2. Guerro also argues that Counsel was ineffective for not
objecting to the admission of the text messages on hearsay
grounds. But the State did not offer the text messages into
evidence “to prove the truth of the matter asserted in the
statement”—that Jaime was the shooter and Guerro was not or
that Guerro was the shooter and Jaime was not—but merely to
show that no text message identified Jaime as the shooter and
that Neighbor was mistaken in testifying that the text messages
said Jaime was the shooter. See Utah R. Evid. 801(c)(2); see also
State v. Hutchison, 

 (Utah 1982) (“When an outof-court statement is offered only to prove that the statement
was made, without regard to its truth or falsity, it is not
proscribed by the hearsay rule.”). Because the text messages
were therefore not hearsay, any objection on hearsay grounds
would have been futile and cannot be a basis for ineffective
assistance. See State v. Makaya, 

, 

 (explaining that “the failure of counsel to make motions or
objections which would be futile if raised does not constitute
ineffective assistance” (cleaned up)). Moreover, the same
curative-admissability     reasoning    we    applied    to    the
authentication issue, see supra ¶¶ 29–31, leads to the same place,
and we decline to consider Guerro’s hearsay ineffectiveness
claim any further.




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                          State v. Guerro


translation should have never been admitted” “without the
witness who conducted the translation testifying.”

¶37 But Guerro fails to prove either deficient performance or
prejudice because he has made no effort to offer evidence—or
even an argument—that the translation was in any way
inaccurate. “It should go without saying that the absence of
evidence cannot overcome the strong presumption that counsel’s
conduct fell within the wide range of reasonable professional
assistance.” Burt v. Titlow, 

 (2013) (cleaned up).
Without some showing that the translation was incorrect—
perhaps by seeking remand under rule 23B of the Utah Rules of
Appellate Procedure—there is simply no way for us to
determine if Counsel performed deficiently or if this putative
deficiency prejudiced Guerro. In the absence of any evidence
that the translation contained errors, we must stand by the
“strong presumption” that Counsel rendered “reasonable
professional assistance.” See 

 (cleaned up). After all, if there
were no errors in the translation—and there is no evidence to
suggest there were—a reasonable attorney would have no
reason to object to the translation and would also know that the
objection would be futile. See State v. Torres, 

, 

 (“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.” (cleaned up)). Accordingly,
we conclude that Counsel did not render ineffective assistance in
not objecting to the translation’s authenticity.

B.    Prosecutor’s Question

¶38 Guerro’s next contention is that Counsel rendered
ineffective assistance when he did not object to the prosecutor’s
question of Guerro asking him to comment on the veracity of the
State’s witnesses. Guerro argues that the prosecutor’s question
was improper because it called on Guerro to comment on the
motivations and character of the other witnesses. Guerro asserts



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                         State v. Guerro


that it was “objectively unreasonable” for Counsel not to object
because asking the question “harmed” Guerro’s “credibility, and
credibility was crucial to [Guerro’s] case.”

¶39 Here, it is clear that Counsel’s decision not to object to the
prosecutor’s question was not objectively unreasonable but
constituted a sound tactical decision. Counsel had a compelling
tactical reason not to object: one of the main themes of Guerro’s
defense was that the State’s witnesses were indeed lying.

¶40 The prosecutor specifically asked Guerro whether he
wanted the jury to believe that all the State’s witnesses were
lying about whether they had heard Guerro express concern for
his family. Guerro responded, “Why wouldn’t they [lie]? They’re
part of the same circle.” Counsel reiterated this same theory in
his closing: “The idea that Rojo, low man on the totem pole in
the drug world in Moab, Utah, whipping boy of Jaime and
BreeAnna, could somehow be involved in the disappearance of
[Guerro’s] . . . wife and children. That idea is once again, in a
word, absurd.” Counsel would thus have no reason to object to a
question that supported the specific defense narrative he was
trying to build.

¶41 Moreover, Counsel had already attacked the overall
credibility of the witnesses to the events on the night of the
murder in his opening:

      What the evidence will show with respect to these
      witnesses [is] that they are all completely and
      totally unreliable. All of the witnesses, the lay
      witnesses, BreeAnna, Jorge, Jaime and Kevin are all
      serious drug users and/or dealers . . . . Everyone is
      going to say that [Guerro] shot Rojo. All of them,
      but listen for the inconsistencies in their testimony,
      and take into account their actual conduct, which
      in the context of this going on, . . . somebody is
      laying on the floor dead, and they’re all trying to



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                          State v. Guerro


      get out of there, ask if their conduct makes any
      sense whatsoever in that context, claiming that
      they’ve been kidnapped, for example.

¶42 And in his closing, Counsel continued to develop the
theory that the witnesses were lying. He told the jurors that the
trial was “a contest of what version of the events makes the most
sense in real life,” that “it’s going to be hard for you to believe
anything that they say,” that “[t]hey had plenty of time to
coordinate their stories,” and that “they [had] the motivation to
lie” and “point a finger” at Guerro, an “unknown guy” and
outsider to the group.

¶43 Thus, Guerro’s response—“Why wouldn’t they [lie]?”—
was entirely consistent with the defense’s theme that the State’s
witnesses had machinated to pin the blame on Guerro. Rather
than being an occasion to object, it is more likely that Counsel
welcomed the prosecutor’s question as beneficial to the defense
strategy he had developed throughout the trial.

¶44 In sum, because he has failed to show that Counsel’s
performance was deficient in not objecting to the prosecutor’s
question, Guerro’s ineffective assistance claim fails.

C.    DNA Testing

¶45 Guerro contends that Counsel was ineffective when he
did not call a witness to testify about the DNA report. But the
DNA report is not in the record, and the absence of evidence that
Counsel performed deficienty—here the DNA report and expert
testimony explaining it—prevents Guerro from successfully
proving Counsel was ineffective. Thus, this claim fails because
Guerro has failed to carry his burden of proof to show Counsel
performed deficiently.

¶46 “A claim of ineffective assistance of counsel may be raised
on appeal if the trial record is adequate to permit decision of the



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                           State v. Guerro


issue. Consequently, a defendant cannot bring an ineffective
assistance of counsel claim on appeal without pointing to
specific instances in the record demonstrating both counsel’s
deficient performance and the prejudice it caused the
defendant.” State v. Griffin, 

, 

(cleaned up); cf. Burt v. Titlow, 

 (2013) (“It should
go without saying that the absence of evidence cannot overcome
the strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance.” (cleaned up)).
And on appeal, when a “defendant raises a claim that trial
counsel was ineffective,” the “defendant bears the burden of
assuring the record is adequate.” State v. Litherland, 

, 

.

¶47 “Where trial counsel’s alleged ineffectiveness caused or
exacerbated record deficiencies, defendants . . . have an
appropriate procedural tool for remedying those deficiencies.”

 And that procedural tool is a motion for remand to
supplement the record. See Utah R. App. P. 23B(a) (“A party to
an appeal in a criminal case may move the court to remand the
case to the trial court for entry of findings of fact, necessary for
the appellate court’s determination of a claim of ineffective
assistance of counsel. The motion will be available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.”). A rule 23B “motion must be filed
before or at the time of the filing of the appellant’s brief,” 

 and
the appellant “bears the primary obligation and burden of
moving for a temporary remand,” Litherland, 

. 3



3. Invoking rule 11(h) of the Utah Rules of Appellate Procedure,
Guerro seeks to supplement the record with the DNA report. See
Utah R. App. P. 11(h) (“If anything material to either party is . . .
omitted from the record by error [or] by accident, . . . the
appellate court . . . may direct that the omission or misstatement
                                                     (continued…)


20190534-CA                      18                

                          State v. Guerro


¶48 Because the DNA report is not a part of the record, and
because Guerro has not sought remand to the trial court under
rule 23B to provide for its consideration, we determine that he
has not carried his burden of proof to show that Counsel
rendered ineffective assistance with respect to not calling a
witness to testify about the report. See State v. Law, 

, 

 (“Because the [d]efendant attempts to
introduce evidence on appeal not contained within the record,
we cannot consider this issue on appeal.”).




(…continued)
be corrected and, if necessary, that a supplemental record be
certified and transmitted.”). But adding new material to the
record is not a rule 11(h) situation:
        A motion under Rule 11(h) is appropriate only
        when the record must be augmented because of an
        omission or exclusion, or a dispute as to the
        accuracy of reporting and not to introduce new
        material into the record. The rule provides a
        reliable method for the reconstruction of events
        when the record has failed in some limited respect.
Olson v. Park-Craig-Olson, Inc., 

 (Utah Ct. App.
1991) (cleaned up). There was no mistake or omission regarding
the admission of the DNA report at the trial court. Rather, the
trial court did not allow the report to be admitted because it
could not be authenticated. Put simply, it was never part of the
record below, and so could not be “omi[tted] or misstate[d]” in
the record on appeal. See Utah R. App. P. 11(h). As we point out
above, the appropriate procedural mechanism to add new
materials to the record in an effort to prove ineffective assistance
of counsel is a rule 23B motion. Guerro could have availed
himself of that procedure to request the DNA report become
part of the record on appeal, but he did not. Accordingly, we
deny Guerro’s rule 11(h) motion.




20190534-CA                     19               

                         State v. Guerro


                        CONCLUSION

¶49 Guerro’s challenge to the admission of the text messages
on authenticity grounds fails because he was the one who
introduced that evidence during his cross-examination of
Neighbor, and he cannot now complain about their inclusion.
His claim that Counsel was deficient in not challenging the
translation of the text messages does not succeed because he has
offered no evidence to show there were errors in the translation,
so he cannot demonstrate either deficient performance or
prejudice. Guerro’s assertion that Counsel rendered ineffective
assistance in not objecting to the prosecutor’s question fails
because the prosecutor’s question meshed with Guerro’s
defense, so there was an objective reason for Counsel to refrain
from objecting. And we conclude that the record Guerro
presents on appeal does not show Counsel rendered ineffective
assistance with regard to the DNA report.

¶50   Affirmed. 4




4. Guerro also asserts a claim of cumulative error. But “because
we conclude that there are no errors to accumulate here, the
cumulative error doctrine is inapplicable in this case.” State v.
Modes, 

, ¶ 12 n.5, 

 (cleaned up).




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