State v. Rivera

               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                           Appellee,
                               v.
                          RAUL RIVERA,
                           Appellant.

                            Opinion
                       No. 20200169-CA
                       Filed April 7, 2022

           Fifth District Court, St. George Department
                  The Honorable John J. Walton
                           No. 191500794

            Nicolas D. Turner, Attorney for Appellant
           Sean D. Reyes and Marian Decker, Attorneys
                          for Appellee

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

TENNEY, Judge:

¶1     During a heated confrontation that stemmed from a
longstanding family feud, Raul Rivera threatened both his
brother-in-law and brother with violence and then “came at”
them with a screwdriver. Rivera was later convicted of two counts
of aggravated assault based on his actions.

¶2     Rivera now appeals his convictions, claiming that his trial
counsel was ineffective for (1) not moving to dismiss one of the
two charges on multiplicity grounds, (2) withdrawing a proposed
self-defense jury instruction, and (3) not having the screwdriver
tested for fingerprints. We disagree with Rivera on each front and
affirm his convictions.
                          State v. Rivera


                        BACKGROUND1

                         The Confrontation

¶3    Over the course of several years, Raul Rivera had “bad
blood” with David,2 who was his brother-in-law. Rivera told
various family members that he “wanted to do something” to
David, and Rivera also made “threats” to David personally.

¶4    On Rivera’s birthday in April 2019, Rivera called his niece
(who was David’s daughter) and told her that he intended “to go
and put a bullet in” David.

¶5      Five days later, Rivera went to the home of Benjamin,3 his
brother. When Rivera arrived, he “was just mad.” Rivera accused
Benjamin of being “on David’s side.” He also told Benjamin that
he “was no longer [Rivera’s] brother,” that Benjamin “was a piece
of shit,” and that Rivera “had a gun in his car” with “a bullet for
[Benjamin] and . . . a bullet for David.” In response, Benjamin told
Rivera to “[j]ust leave.”

¶6     While this was happening, David and his son happened to
arrive at Benjamin’s house to pick up Benjamin for work.

1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly. We include conflicting evidence
as relevant and necessary to understand the issues on appeal.”
State v. Dozah, 

, 

 (quotation
simplified).

2. A pseudonym.

3. Also a pseudonym. To enhance readability, this opinion will
use this and the other pseudonym noted above throughout, and
it will do so without using brackets to note any alterations when
quoting from the record.


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                          State v. Rivera


Benjamin got into David’s truck as Rivera “was saying a bunch of
stuff” to Benjamin. Apparently unaware that David was in the
backseat, Rivera told David’s son to “[t]ell David that I got
something for him.” Rivera then started walking to his own SUV,
which was parked several yards away.

¶7     David instructed his son to drive over to Rivera’s SUV and
park behind it so that he and Benjamin could “[g]o see what
[Rivera] want[ed].” David’s son did, after which David and
Benjamin got out and began walking toward Rivera’s SUV.

¶8       Rivera was now sitting in his vehicle, and when he saw
David and Benjamin approaching, he said, “Yeah, I got something
for you,” and “Yeah[,] [p]ull your gun out.” Rivera then “open[ed]
the door, and he grab[bed] something from the side of the door”
as he exited his SUV. David and Benjamin were “standing
together” at that point, with Benjamin standing just to David’s
left. It looked to David like Rivera was “coming after” them. He
later testified: “whether [Rivera] was going to get Benjamin first
or was going to get me, I don’t know.”

¶9     David saw that Rivera had a “chrome” “object” in his
hands, and based on Rivera’s past comments and threats, David
“assume[d] it was the gun.” So David quickly took out his own
gun from his back pocket and shot Rivera.

¶10 Benjamin called 911. At the request of the 911 dispatcher,
David put his gun inside the house. When police arrived soon
after, “David stepped forward and said, ‘It was me,’” clearly
indicating that he was the shooter. For his part, Rivera was
transported to the hospital and treated for the gunshot wound.

¶11 While investigating the scene, officers found no other gun
besides David’s. They did, however, find a black and chrome
screwdriver lying directly beneath the hinge of the driver-side
door of Rivera’s SUV.




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                          State v. Rivera


                             The Trial

¶12 The State charged Rivera with two counts of aggravated
assault—one count for assaulting David and one count for
assaulting Benjamin. The State did not file charges against David
for shooting Rivera.

¶13 Before trial, Rivera’s counsel (Counsel) included a self-defense instruction in the proposed jury instructions, with the
theory apparently being that Rivera was acting in self-defense
when he exited his SUV with the screwdriver. During trial,
however, Counsel informed the judge that Rivera wouldn’t be
testifying. When Counsel then asked the judge to “minus the self-defense” instruction, the court removed it.

¶14 Rather than pursuing a self-defense theory, Counsel
advanced a different theory at trial: namely, that Rivera “didn’t
come out [of his SUV] with a screwdriver” at all, that David had
shot him unprovoked, and that David and Benjamin had planted
the screwdriver under the SUV after the shooting to “back their
story up.”

¶15 To support this theory, Counsel cross-examined David,
Benjamin, and the testifying police officer about the position of
the screwdriver, whether someone had placed it there or moved
it after Rivera allegedly dropped it, and whether it had been tested
by police to see if fingerprints from anyone other than Rivera were
on it. Counsel also repeatedly asked these witnesses why the
screwdriver was found directly beneath the SUV’s driver-side
door instead of farther away from the vehicle. Through
questioning, Counsel suggested that if Rivera really did “come at”
David and Benjamin, Rivera’s “natural momentum” should have
caused the screwdriver to land farther away from the SUV after
he was shot.

¶16 In further support of this theory, Counsel called a private
investigator as a defense witness. In his testimony, the


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                          State v. Rivera


investigator opined that the screwdriver should have been “in a
different spot” if Rivera had been shot while approaching David
and Benjamin as they claimed.

¶17 Counsel also pressed the testifying police officer about the
screwdriver and the State’s failure to “fingerprint[] or analyze[]
[it] in any way, shape, or form.” Counsel pointed out that
“nothing” “prevent[ed] someone from getting the screwdriver
out of [the SUV] and dropping it somewhere” after the shooting,
and he likewise pointed out that “we wouldn’t know” whether
Benjamin’s or David’s fingerprints were on it because the State
hadn’t “fingerprinted it.”

¶18 During closing argument, Counsel combined these points
to argue that if Rivera was “coming out and lunging and gets shot
and drops where he’s shot at, that screwdriver” should not have
been found under the driver-side door. “It doesn’t make sense,”
Counsel urged. But “[w]hat does make sense,” he argued, “is that
here’s two individuals who say they’ve been threatened and
having to deal with [Rivera’s] B.S. for all this” time and who chose
to “deal with it” by “shoot[ing] him.”

¶19 As he had done through questioning, Counsel also
criticized the State for not testing the screwdriver to determine if
either David’s or Benjamin’s fingerprints were on it. This was
suspicious, Counsel argued, because David and Benjamin “could
have easily got that screwdriver out of [Rivera’s] car and put it
there to back their story up,” noting that “[t]hey had time to do
this before cops even got there.” Counsel claimed that the State
had put “little blinders on” and had erroneously focused its
investigation on Rivera when it should have been investigating
David and Benjamin instead.

¶20 After deliberations, the jury convicted Rivera of both
counts of aggravated assault. Rivera now appeals his convictions.




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                            State v. Rivera


             ISSUES AND STANDARD OF REVIEW

¶21 Rivera argues that Counsel was ineffective on several
grounds. When an ineffective assistance claim is raised for the
first time on appeal, it presents a question of law. See State v.
Drommond, 

, 

.4


                             ANALYSIS

¶22 “To succeed on his ineffective assistance of counsel claim,”
a defendant “must show that (1) trial counsel rendered deficient
performance which fell below an objective standard of reasonable
professional judgment, and (2) counsel’s deficient performance
prejudiced him.” State v. Selzer, 

, 

(quotation simplified). This requires the defendant to identify the
“acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment” and then “show[ ]
that counsel’s errors were so serious as to deprive the defendant
of a fair trial.” Strickland v. Washington, 

(1984). “Because failure to establish either prong of the test is fatal
to an ineffective assistance of counsel claim, we are free to address
. . . either prong” in our review. Honie v. State, 

,

.



4. Rivera also briefly argues that the State “failed in its duty to
investigate” by not (1) submitting the screwdriver for
fingerprinting or (2) calling Rivera’s other brother to testify. But
these arguments are not preserved, and Rivera has not argued
that an exception to the preservation rule applies to excuse the
failure to raise them below. We accordingly decline to address
these arguments. See State v. Johnson, 

, 

 (explaining that “[t]his court has recognized three distinct
exceptions to preservation,” and when “an issue is not preserved
in the trial court, but a party seeks to raise it on appeal, the party
must establish the applicability of one of these exceptions”).


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                            State v. Rivera


¶23 Here, Rivera argues that Counsel was ineffective for (1) not
moving to dismiss one of the two aggravated assault counts on
multiplicity grounds, (2) withdrawing the self-defense jury
instruction, and (3) not submitting the screwdriver for
fingerprinting. We address each argument in turn.

                            I. Multiplicity

¶24 Rivera first argues that Counsel was ineffective for not
moving to dismiss one of the two aggravated assault charges on
multiplicity grounds. An ineffective assistance claim fails,
however, when the proposed motion would have been futile. See
State v. Makaya, 

, 

 (“[I]t is not
unreasonable for counsel to choose not to make a motion that
would not have been granted.”). This was so here.

¶25 One of the protections embodied in the Double Jeopardy
Clause of the United States Constitution is the “protect[ion]
against multiple punishments for the same offense.” State v. Prion,

, 

 (quotation simplified). “The rule
against multiplicity” is derived from this, and it “is violated if the
State punishes a defendant for more counts of an offense than are
allowed by the intended unit of prosecution for that offense.” State
v. Rasabout, 

, 

; see also State v. Calvert,

, 

 (recognizing that the rule
against multiplicity is violated “when a single offense is charged
in several counts” (quotation simplified)).

¶26 “[I]dentifying the allowable unit of prosecution for an
offense” presents “a question of statutory construction.” Rasabout,

. In this sense, our “evaluation of a multiplicity
claim requires analysis of the statutes under which a criminal
defendant is charged.” State v. Hattrich, 

,

. We “seek to give effect to the intent of the
Legislature” in such an analysis, and to “ascertain that intent, we
look first to the text of the statute within its context.” Rasabout,

.


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                           State v. Rivera


¶27 The offense in question here is aggravated assault. By
statute, a person commits aggravated assault if he uses “a
dangerous weapon” to (1) “attempt, with unlawful force or
violence, to do bodily injury to another”; (2) “threat[en],” with “a
show of immediate force or violence, to do bodily injury to
another”; or (3) commit an “act . . . with unlawful force or
violence, that causes bodily injury to another or creates a
substantial risk of bodily injury to another.” 

-
5-103(1)(a)(i)–(iii) (LexisNexis 2017); 

 § 76-5-103(1)(b)(i). A
“dangerous weapon” includes “any item capable of causing death
or serious bodily injury.” Id. § 76-1-601(7)(a).

¶28 Rivera claims that under a multiplicity analysis, there
could only be one count of aggravated assault in this case because
he was charged based on “one single movement” that involved
just “a single screwdriver.” But Rivera’s interpretation of the
allowable unit of prosecution for this offense is unduly restrictive.

¶29 For crimes “against the person,” “offenses committed
against multiple victims are not the same,” and “a single criminal
act or episode” can “constitute as many offenses as there are
victims.” State v. James, 

, 855–56 (Utah 1981). As noted,
the aggravated assault statute has three variants. Notably, all
three criminalize an unlawful act against “another.” 

(1)(a)(i)–(iii). In State v. Mane, 

, 64–65
(Utah Ct. App. 1989), we interpreted the statute’s reference to
“another” as being a reference to “a singular victim.” From this,
we held that there can be multiple aggravated assault counts in a
case if there were multiple victims of the unlawful conduct. 

¶30 Here, in the run-up to the confrontation at issue, Rivera
said that he had “a bullet” for both David and Benjamin. As the
two men approached Rivera’s SUV at the beginning of the
confrontation itself, Rivera said: “I got something for you” and
“[p]ull your gun out.” Rivera then opened his door, “grab[bed]
something from the side of the door,” and began “coming after”



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                          State v. Rivera


them with a “chrome” “object.” Rivera’s advance was stopped
only because David shot him.

¶31 This established that David and Benjamin were both
victims on either of two fronts: first, Rivera “threat[ened]” to “do
bodily injury” to both of them, accompanied by a show of
immediate force; and second, by “coming after” them with a
dangerous weapon, Rivera “attempt[ed]” to “do bodily injury” to
both of them with unlawful force or violence. 

(1)(a)(i)–(ii).

¶32 Resisting this, Rivera argues that he was “incapable
of doing harm to both given the limitations of the ‘weapon’ he
was wielding”—i.e., the screwdriver. But the jury concluded
otherwise, and for good reason. When Rivera came after
David and Benjamin with the screwdriver, the two were
“standing together.” Given that Rivera had just threatened both
of them with “a bullet,” a reasonable jury could conclude that he
was now “coming after” both of them with the intent to harm
both of them. So if Rivera hadn’t been stopped, he could
indeed have harmed both of them with either a single extended
swipe of the screwdriver or with rapidly successive stabs. This
was enough to constitute either a threat to harm or an attempt to
harm David and Benjamin, thereby making both victims under
the statute.

¶33 In short, a multiplicity analysis turns on the allowable
unit of prosecution, and the unit of prosecution for aggravated
assault includes a separate count for each victim. Because there
were two victims here, “a motion to dismiss on the basis of
multiplicity would have been denied.” Calvert, 

. Counsel therefore “did not perform deficiently by failing to
pursue that line of argument.” 

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                          State v. Rivera


                 II. Self-Defense Jury Instruction

¶34 Rivera next argues that Counsel was ineffective for
withdrawing the proposed self-defense jury instruction. We
disagree.

¶35 Counsel “is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 

.
This is so because “[n]o particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate
decisions regarding how best to represent a criminal defendant.”

 at 688–89. A “set of rules” “would interfere with the
constitutionally protected independence of counsel and restrict
the wide latitude counsel must have in making tactical decisions.”

.

¶36 Despite this latitude, Rivera claims that “[i]t cannot be
classified as reasonable or conceivable trial strategy” in this case
for Counsel to have withdrawn the self-defense jury instruction.
We disagree.

¶37 A defense attorney’s informed strategic choice is “virtually
unchallengeable.” 

. If it even “appears counsel’s actions
could have been intended to further a reasonable strategy, a
defendant has necessarily failed to show unreasonable
performance.” State v. Ray, 

, 

(emphasis added); see also State v. Wright, 

,

 (“We will not conclude that trial counsel was
ineffective unless there is a lack of any conceivable tactical basis
for counsel’s actions.” (Quotation simplified.)).

¶38 When we evaluate choice-of-strategy claims like Rivera’s,
it “is not appropriate” for us, “in hindsight, to second guess the
strategy of defense counsel.” State v. Moore, 

,

. This is so because the “calculations of counsel in


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                           State v. Rivera


weighing the pros and cons of one strategy over another” are, “in
essence, a judgment about what is most likely to work to the
client’s benefit in a complex trial process that requires that many
choices be made.” State v. Montoya, 

, 

. As a result, a “decision by counsel that reasonably
weighs the risks and benefits of available strategic approaches
before choosing one as preferable to others cannot support a claim
that counsel was deficient in either strategy or performance, even
if the approach did not lead to the desired result.” State v. Franco,

, 

; see also Archuleta v. Galetka,

, 

 (concluding that counsel did not
perform deficiently by preferring “an innocence over a mitigation
strategy,” because the mitigation evidence created “significant
difficulties” for the innocence strategy). In such cases, so long as
counsel could have reasonably chosen the strategy in question,
and so long as the strategy is itself reasonable, the claim must fail.

¶39 This is so here. Counsel’s theory of the case was that Rivera
“didn’t come out [of his SUV] with a screwdriver” at all. As
discussed, Counsel supported this theory by asking targeted
questions of State witnesses during cross-examination, as well as
by calling an expert witness of his own who opined that the State’s
theory didn’t line up with the physical evidence. Counsel then
actively advanced this theory during closing argument.

¶40 The self-defense theory that Rivera now proposes on
appeal would have run contrary to this. After all, the proposed
self-defense argument would have been that Rivera did come out
of his SUV with the screwdriver, but that he was justified in doing
so as an act of self-defense.

¶41 Counsel’s “wide latitude” to “mak[e] tactical decisions”
surely included the ability to protect the integrity of his preferred
theory of the case by not simultaneously advancing a
contradictory one. Strickland, 

. Indeed, in a past
case, we regarded a similar “election between inconsistent



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                            State v. Rivera


defenses” as a “legitimate exercise of trial strategy rather than
ineffective assistance of counsel.” State v. Pascual, 

(Utah Ct. App. 1991). The same is true here, and Counsel therefore
did not perform deficiently by withdrawing the self-defense jury
instruction.

                       III. Fingerprint Testing

¶42 Finally, Rivera claims that Counsel was ineffective for not
having the screwdriver tested for fingerprints. Rivera suggests
that such testing might have shown that there were fingerprints
from David or Benjamin; if there were, Rivera argues that this
would have supported his theory that David and Benjamin
planted the screwdriver.

¶43 But this claim is entirely speculative. “[P]roof of ineffective
assistance of counsel cannot be a speculative matter but must be a
demonstrable reality.” Fernandez v. Cook, 

 (Utah
1993). An absence of evidence matters to both Strickland elements.
On deficient performance, 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)
(quotation simplified). So too with prejudice. Speculation is not a
“substitute for proof of prejudice,” State v. Arguelles, 

 (Utah 1996), and “[p]roof of prejudice” “may not be based
purely upon a speculative matter.” State v. Strode, 

, 

.

¶44 Rivera never has submitted the screwdriver for
fingerprinting, so there is no evidence in the record that
establishes what fingerprints were (or were not) on it. As a result,
the record does not support his claim that testing would have
uncovered any helpful evidence for him. For this reason alone, he
has not shown either deficient performance or prejudice.




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                          State v. Rivera


¶45 This claim also fails because Counsel could have
reasonably decided to not test the screwdriver for his own
strategic reasons. As noted, Counsel used the lack of testing to
support the defense’s theory at trial. He did so in two particular
ways: first, the lack of testing allowed him to fault the State for
investigatory myopia; and second, it allowed Counsel to suggest
that testing might have shown that fingerprints from David or
Benjamin were on the screwdriver. But if Counsel had tested the
screwdriver, and if those tests had not uncovered fingerprints
from David or Benjamin, this would have impaired (if not
eliminated) his ability to make that second argument.

¶46 Rather than running that risk, Counsel could have
reasonably decided to not test the screwdriver at all, thereby
allowing him to advance the complete version of his preferred
argument. For this additional reason, Rivera’s argument fails.


                         CONCLUSION

¶47 Rivera has not shown that his Counsel performed
ineffectively by (1) not moving to dismiss one of the aggravated
assault counts on multiplicity grounds, (2) removing the self-defense jury instruction, or (3) not submitting the screwdriver for
fingerprinting. We accordingly affirm Rivera’s convictions.




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