State v. Devan

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                   EVIN CHRISTOPHER DEVAN,
                          Appellant.

                             Opinion
                         No. 20221127-CA
                     Filed December 27, 2024

            Fourth District Court, Provo Department
                 The Honorable Thomas Low
                         No. 201403341

           Emily Adams and Rachel Phillips Ainscough,
                    Attorneys for Appellant
                 Sean D. Reyes and Daniel L. Day,
                      Attorneys for Appellee

    JUDGE RYAN D. TENNEY authored this Opinion, in which
     JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1     A jury convicted Evin Devan of aggravated assault based
on an incident in which Devan repeatedly punched and kicked an
acquaintance outside of a bar. On appeal, Devan raises several
claims relating to the jury instructions. For the reasons set forth
below, we affirm his conviction.
                          State v. Devan


                        BACKGROUND 1

                          The Altercation

¶2      In the fall of 2020, Devan lived with his girlfriend
(Girlfriend) at her parents’ house. Girlfriend’s parents hosted
Thanksgiving dinner that year, and several of their family
members and friends attended, including Steve, who knew both
Devan and Girlfriend’s parents.

¶3     Devan had recently started a business selling CBD
gummies, and he had tried to sell CBD gummies to Steve on prior
occasions. At one point that night, Steve gave Devan $50 in
exchange for some gummies. Steve thought that he was
purchasing “THC edibles” that would get him “high” and leave
him feeling “stoned.” But Steve apparently “misunderstood”
what he was purchasing, and Devan gave him CBD gummies,
which do not contain THC and do not produce a high. 2

¶4    A few days later, Steve discovered that the gummies he
had purchased contained CBD as opposed to THC. Steve texted
Devan, “Hey [Evin], this is Steve. You sold me some cbd bullshit
man. I’m gonna come over later [and] give you these gummies

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

, 

 (quotation simplified),
cert. denied, 

 (Utah 2023).

2. As explained by the CDC, tetrahydrocannabinol (THC) is a
“mind-altering substance” that can produce “psychoactive
effects,” while cannabidiol (CBD) is a “compound found in
cannabis” that “is not impairing, meaning it does not cause a
‘high.’” About CBD, U.S. Centers for Disease Control and
Prevention, https://www.cdc.gov/cannabis/about/about-cbd.html
[https://perma.cc/MQU7-LA4S].


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                           State v. Devan


back and you are gonna give me my money.” Within a few
minutes of receiving the text, Devan called Steve, and when Steve
told Devan that he was currently at a local bar (the Bar), Devan
said that he would come meet him there.

¶5    Devan arrived at the Bar and found Steve sitting inside
with his girlfriend, his father, and several friends. Devan said, “I
want to talk to you outside for a little bit.” Steve agreed, and the
two went outside.

¶6      When they got outside, Steve was smoking with one hand,
and his other hand was in his pocket with his wallet. Devan began
yelling at Steve, saying something “along the lines of, ‘don’t ever
tell a man what to do, don’t ever talk to me like that.’” Devan “just
kept going and going” while Steve “wait[ed] for him to cool
down.” Steve eventually looked Devan in the eyes and said,
“Well, if you’re going to really get mad over $50, I’d say you were
hardly a man.”

¶7     An employee of the Bar happened to be outside smoking
at the time and observed the interaction. The employee heard
Devan say to Steve, “Someone needs to teach you some respect.”
At that point, Devan began punching Steve. Devan punched Steve
“over and over,” and after Steve had fallen to the ground, Devan
“kicked [him] in the jaw.” Devan eventually stopped his attack, at
which point he got into his car and left. The Bar’s surveillance
camera captured the attack on video.

¶8     Steve was immediately in “a lot of pain,” and as the
adrenaline rush began subsiding, Steve noticed that his jaw was
now “detached from [his] face.” Steve went to the hospital, where
he waited “for about 16 hours holding [his] jaw together” until he
underwent surgery. After the surgery, Steve’s jaw “was wired
shut for about two months.” Steve couldn’t “eat anything solid”
for “three to four months,” and he lost “10 to 15 pounds” during
that period. Steve was left with “permanent nerve damage” to his
chin.


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                           State v. Devan


               The Charge and the State’s Case at Trial

¶9      The State charged Devan with one count of aggravated
assault. In relevant part, the statute required the State to prove
that Devan (1) committed an act “with unlawful force or violence”
that (2) “cause[d] bodily injury” or “create[d] a substantial risk of
bodily injury to” Steve and that Devan (3) used “force likely to
produce death or serious bodily injury.” Utah Code § 76-5-
103(2)(a)(iii), (b)(iii). 3

¶10 The case went to trial. There, the State presented testimony
from Steve, the Bar employee who witnessed the attack, and two
police officers who had assisted in the investigation. The court
also admitted the video of the assault as an exhibit, and the video
was played for the jury

                    The Directed Verdict Motion

¶11 After the State rested its case, Devan’s attorney (Counsel)
made a motion for a directed verdict. Counsel argued “that the
State has not shown sufficient evidence that the jury can find
beyond a reasonable doubt that Mr. Devan used force likely to
cause or did cause serious bodily injury” and asked the court to
amend the charge to a misdemeanor offense assault. The district
court denied the motion.

                         The Defense’s Case

¶12 In the defense’s opening statement, Counsel asserted to the
jury that Devan was not guilty of aggravated assault because he
was acting in self-defense. Counsel then advanced this theory at
trial in a number of ways.



3. The aggravated assault statute has been amended since Devan’s
trial, but because there were no substantive changes to the
elements in question, we cite the current version for convenience.


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                           State v. Devan


¶13 First, Girlfriend testified that at the Thanksgiving dinner
she and Devan were in the garage at one point and began
speaking with Steve. She said that Steve asked Devan “how he
was doing,” to which Devan responded, “I’m dealing with some
stuff, but it’s all good.” Girlfriend said that Steve then responded,
“Well, do you want me to stab someone for you?” Girlfriend said
that she was surprised by Steve’s “jarring and aggressive
response.” Girlfriend said that Devan then asked Steve “if he’d
ever stabbed anyone” before, that Steve responded affirmatively,
and that Devan put his hand on Steve’s shoulder and said, “That’s
not cool.” In his own testimony, Devan corroborated Girlfriend’s
account, and he further said that he thought this interaction “was
extremely alarming.”

¶14 Second, while cross-examining Steve, Counsel elicited
testimony that on the night of the altercation, the friends that
Steve was with at the Bar were from a group that rides
motorcycles together, wears leather jackets and patches, and
refers to itself as the “UMF,” which stood for, in Counsel’s
sanitized form, the “Ugly Mother Effers.” During trial, Counsel
characterized UMF as “a motorcycle gang, which has a notorious
reputation of being violen[t].” Counsel also elicited testimony
suggesting that the UMF members who were with Steve that night
would have been identifiable based on their jackets. 4

¶15 Third, Devan did not dispute that he had punched and
kicked Steve. (Nor could he realistically do so, given that, as
noted, the incident was captured on video.) But in his testimony,
Devan offered a self-defense-oriented account of what occurred
in the moments that led up to the violence, as well as what caused
him to start punching Steve. Devan testified that when he and


4. In his testimony, Steve denied that UMF is a violent gang,
instead claiming that it’s a “club” or “men’s social organization”
whose members “ride motorcycles together” and host an annual
“fundraiser for the Primary Children’s Hospital.”


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                          State v. Devan


Steve walked outside the Bar, Devan told him, “Hey Bro, I’m not
here to disrespect you. I’m not here to yell at you. I’m not here to
–none of that. I’m here to give you your money back, and we can
leave this at peace.” According to Devan, Steve responded, “Yeah,
you are.” Devan said that he then asked Steve, “What does that
mean? Does that mean you’re going to take it from me?”, to which
Steve responded, “Yes.”

¶16 Devan also said that he noticed that Steve was wearing
what looked to him to be “a stab-proof vest.” 5 Devan said that he
noticed that Steve had one hand in his pocket, and, according to
Devan, he saw “a definitive outline of something in that pocket.”
Devan claimed that Steve “spit” and “blew smoke” in his face. 6
Devan then claimed that, in the moments before he hit Steve,
Steve began “inching closer” to him. From all this, Devan said that
he believed that Steve was “about to assault” him, so, acting on
instinct, he said that he punched Steve in order to “[d]efend
[him]self,” and he said that he kept punching him out of
“adrenaline” and fear that Steve would attack him with a weapon
if he stopped. Devan also said that he was worried about “a bunch
of UMF guys pouring out the door.”

                   The Relevant Jury Instructions

¶17 Before trial, Counsel submitted proposed jury instructions,
several of which centered on self-defense. One of the requested
instructions (the Actual-Danger Instruction) read as follows:

       You are instructed that actual danger is not
       necessary to establish self-defense. If one is

5. In his testimony, Steve denied that he was wearing such a vest.

6. As noted, Steve was smoking when he exited the Bar, and the
resultant attack was caught on video. In his closing argument, the
prosecutor suggested that in the particular moment in question,
Steve was simply “exhaling with the vapor.”


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                           State v. Devan


       confronted by the appearance of peril which arouses
       in his mind, as a reasonable person, an honest
       conviction that he is about to suffer death or serious
       bodily injury, or is about to be the victim of a
       forcible felony, and if a reasonable person in a like
       situation, seeing and knowing the same facts, would
       be justified in believing himself in danger, his right
       to self-defense is the same whether such danger is
       real or merely apparent.

       Even if in light of after acquired information, or
       from the distance and perspective of the jury box, it
       should appear that there was no actual danger or
       there was only slight actual danger, that fact would
       not affect the right of self-defense if the appearances
       establishing that right existed.

¶18 During a break midway through trial (and outside the
jury’s presence), the district court told the parties that it had
“spent quite a bit of time thinking about” the defense’s proposed
instructions and had decided not to give them. The court gave
reasons for not giving each one. With respect to the Actual-Danger Instruction, the court said that, in its view, the proposed
instruction was an “accurate statement of law.” But the court said
that it thought the “requirement of reasonable belief” was
“adequately addresse[d]” by the “MUJI” instructions regarding
self-defense that it intended to give, 7 and it further explained that
the “direct and circumstantial evidence instruction” that it
intended to give “also addresses this concern.” The court thus
explained that “between the self-defense instructions and the
direct and circumstantial evidence instruction,” it thought that the
“actual versus apparent danger concern” was “cover[ed].” The
court also said that it would allow Counsel to “argue essentially


7. The term “MUJI” refers to the Model Utah Jury Instructions. See
Meeks v. Peng, 

, 

.


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                          State v. Devan


these points as appropriate,” and it specifically said that “the
defense can argue that actual danger is not necessary to establish
a reasonable belief, only apparent danger.”

¶19 At the close of evidence, the court read the final
instructions to the jury. These included the following instruction
on self-defense, which was taken directly from MUJI:

      You must decide whether the defense of Defense of
      Self or Other applies in this case. Under that
      defense, the defendant is justified in using force
      against another person when and to the extent that
      the defendant reasonably believes that force is
      necessary to defend himself or a third party, against
      another person’s imminent use of unlawful force.

      The defendant is justified in using force intended or
      likely to cause death or serious bodily injury only if
      the defendant reasonably believes that:

      1. Force is necessary to prevent death or serious
      bodily injury to the defendant or a third person as a
      result of another person’s imminent use of unlawful
      force; or

      2. To prevent the commission of a forcible felony,
      such as Robbery, the definition of which can be
      found under jury instruction 20.

      The defendant is not justified in using force if the
      defendant:

      1. Initially provokes the use of force against another
      person with the intent to use force as an excuse to
      inflict bodily harm upon the assailant; or




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                          State v. Devan


       2. Was the aggressor, unless the defendant
       withdraws from the encounter and effectively
       communicates to the other person the defendant’s
       intent to do so and, notwithstanding, the other
       person continues or threatens to continue the use of
       unlawful force.

¶20 The court further instructed the jury that “reasonableness
shall be determined from the viewpoint of a reasonable person
under the then existing circumstances.” It then listed several
“factors” that the jury could consider in “determining imminence
or reasonableness,” including “the nature of the danger,” “the
immediacy of the danger,” “the probability that the unlawful
force would result in death or serious bodily injury,” “the other’s
prior violent acts or violent propensities,” “any patterns of abuse
or violence in the parties’ relationship,” and “any other relevant
factor.” The court also instructed jurors that the State had the
burden to “prove beyond a reasonable doubt that the defendant
was not justified in using force,” and it further instructed that a
defendant generally has no “duty to retreat” unless “the
defendant was the aggressor.”

¶21 In the “direct and circumstantial evidence” instruction, the
court instructed the jury, in part, that it could consider “evidence
that, if found to be true, proves a fact from which an inference of
the existence of another fact may be drawn and is a deduction of
fact that may logically and reasonably be drawn.” And the court
further instructed jurors to “make those just and reasonable
inferences from circumstances proven which the guarded
judgment” of a “reasonable person” would “ordinarily make
under like circumstances.”

               Closing Arguments and the Conviction

¶22 In the State’s closing argument, the prosecutor again
played the video of the assault, after which he argued to jurors
that it “prove[d] the assault, and it disprove[d] that [Devan] acted


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                            State v. Devan


in self-defense.” The prosecutor further argued that self-defense
did not apply because Devan was the aggressor and failed to
withdraw. And the prosecutor explained why, in the State’s view,
Steve’s injuries—his separated jaw and permanent nerve
damage—constituted serious bodily injury.

¶23 In the defense’s closing argument, Counsel argued that
Devan was justified in using force to prevent a robbery by Steve.
Counsel also suggested that Steve was the aggressor, not Devan.
In various ways, Counsel either explicitly or implicitly argued
that, for purposes of self-defense, the question turned on the
reasonableness of Devan’s belief that he was in danger at the time
of the altercation and not on whether Devan faced an actual
danger. These included:

   •   “If you know your assailant has a history of violence, that’s
       a relevant factor. It doesn’t have to be true, it’s what that
       person’s perception is, it’s what he portrays himself. And
       [Steve] portrayed himself as a tough motorcycle gang guy
       who had no problem stabbing people and would stab
       people for others, if so desired.”

   •   “In conjunction of everything that was going through his
       mind, [Devan] realized, I’m in danger here and I need to
       strike.”

   •   “And there is nothing in the laws that say you must be
       struck first before you can defend yourself. . . . If you have
       reason to believe that [the] attack is going to come, you
       may strike first, because that act is in self-defense. And
       that’s the law.”

   •   “It doesn’t matter that the actual threat didn’t exist . . . . It
       was what was apparent. And that is why the laws of self-defense say what he reasonably believes.”




 20221127-CA                      10               

                           State v. Devan


¶24 After addressing the self-defense theory at some length,
Counsel shifted gears at the end of his argument, suggesting to
jurors that, “if for some reason the prosecution has convinced you
that [Devan] wasn’t acting in self-defense, then nevertheless he’s
not guilty as charged of aggravated assault because he did not use
force likely to cause death or serious bodily injury.” Counsel
seemingly acknowledged the severity of Steve’s injuries, but he
then said that it “doesn’t matter that that’s what resulted.”
Instead, Counsel asserted that the issue was “what normally you
would expect. Normally a fistfight, and nothing more, would not
be what we are here for.” For these reasons, Counsel asked jurors
to “find [Devan] not guilty.”

¶25 After deliberating, the jury found Devan guilty of
aggravated assault.


            ISSUES AND STANDARDS OF REVIEW

¶26 On appeal, Devan first argues that the district court erred
by not giving the proposed Actual-Danger Instruction. “We
review a district court’s refusal to give a jury instruction for abuse
of discretion.” State v. Karren, 

, 

(quotation simplified). “Abuse of discretion occurs only if it can
be said that no reasonable person would take the view adopted
by the district court.” 

 (quotation simplified).

¶27 Devan also argues that Counsel provided ineffective
assistance by not requesting three additional jury instructions—
namely, instructions on the lesser included offense of assault, the
definition of “aggressor,” and the defense of habitation. “A claim
of ineffective assistance of counsel raised for the first time on
appeal presents a question of law.” State v. Florreich, 

, 

 (quotation simplified), cert. denied, 

 (Utah 2024).




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                           State v. Devan


                            ANALYSIS

                   I. Actual-Danger Instruction

¶28 Devan first argues that the district court abused its
discretion when it declined to give the proposed Actual-Danger
Instruction. We see no abuse of discretion in the court’s decision.

¶29 “In general, a defendant is entitled to have his legal theory
of the case placed before the jury if it would not be superfluous to
do so because of an absence of any evidence to support the
theory.” State v. Karren, 

, 

(quotation simplified). But “a defendant is not entitled to present
his theory to the jury if there is no basis in the evidence to support
it.” 

 (quotation simplified). Since this issue is “primarily a
factual question,” we afford deference to the district court’s
determination. 

 (quotation simplified).

¶30 That said, a district court does not necessarily abuse its
discretion when it refuses to give every instruction requested by a
party, even if a requested instruction arguably has some basis in
the evidence. To the contrary, a “court does not err by refusing a
proposed instruction if the point is properly covered in other
instructions.” State v. Maestas, 

, 

(quotation simplified). “So long as they correctly state the law, the
precise wording and specificity of jury instructions” is “left to the
sound discretion of the trial court.” Meeks v. Peng, 

,

 (quotation simplified). “When reviewing jury
instructions, we look at the jury instructions in their entirety and
will affirm when the instructions taken as a whole fairly instruct
the jury on the law applicable to the case.” State v. Kitzmiller, 

, 

 (quotation simplified). And a
court’s “failure to give a requested jury instruction constitutes
reversible error only if its omission tends to mislead the jury to
the prejudice of the complaining party or insufficiently or
erroneously advises the jury on the law.” State v. Van Oostendorp,

, 

 (quotation simplified).


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                            State v. Devan


¶31 Here, Devan’s requested Actual-Danger Instruction said,
among other things, “that actual danger is not necessary to
establish self-defense” and that a person’s “right to self-defense is
the same whether such danger is real or merely apparent.” But the
district court declined to give this instruction, reasoning that these
issues were “adequately addresse[d]” by the “self-defense
instructions and the direct and circumstantial evidence
instruction” that it would later give to the jury.

¶32 In arguing that the district court should have given the
instruction, Devan points to our supreme court’s decision in State
v. Starks, 

 (Utah 1981). But while Starks noted that an
instruction like this one was given to the jury in that case, 

 at 91
n.2, the supreme court did not analyze the instruction at any
length, much less hold that district courts are always required to
give such an instruction on request. Regardless, even if it were
true that a court could choose to give such an instruction, we see
no abuse of discretion in the district court’s conclusion here that
both the governing law and even the concepts conveyed in this
proposed instruction were adequately conveyed by other
instructions that were given.

¶33 For purposes of self-defense, a person is justified in using
force, in relevant part, if he or she “reasonably believe[d] that
force or a threat of force [was] necessary to defend” himself or
herself “against the imminent use of unlawful force.” Utah Code
§ 76-2-402(2)(a). And a person is justified in using force “intended
or likely to cause death or serious bodily injury only if” the person
“reasonably believes that force is necessary to prevent death or
serious bodily injury to the individual or another individual as a
result of imminent use of unlawful force, or to prevent the
commission of a forcible felony.” Id. § 76-2-402(2)(b). 8 Thus, in a


8. Like the aggravated assault statute, the self-defense statute was
amended after Devan’s trial, but because the amendments do not
                                                      (continued…)


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                           State v. Devan


self-defense case, the “ultimate question before the trier of fact
remains the reasonableness of a defendant’s belief that force was
necessary to defend against another’s imminent use of unlawful
force.” State v. Walker, 

, 

.

¶34 The jury was correctly and adequately instructed on these
concepts. As noted above, the district court instructed the jury
that Devan was “justified in using force intended or likely to cause
death or serious bodily injury” if he “reasonably believe[d] that:
1. Force [was] necessary to prevent death or serious bodily injury
to the defendant . . . as a result of another person’s imminent use
of unlawful force; or 2. To prevent the commission of a forcible
felony . . . .” The court further instructed the jury that
“reasonableness shall be determined from the viewpoint of a
reasonable person under the then existing circumstances.” The
court also gave jurors several “factors” that they could consider in
“determining imminence or reasonableness,” including “the
other’s prior violent acts or violent propensities,” “any patterns of
abuse or violence in the parties’ relationship,” and “any other
relevant factor.” And finally, in the “direct and circumstantial
evidence” instruction, the court instructed jurors, in relevant part,
that they should “make those just and reasonable inferences from
circumstances proven which the guarded judgment of a
reasonable [person] would ordinarily make under like
circumstances.”

¶35 In its brief, the State asserted that, taken as a whole, these
instructions “included everything in Devan’s proposed
instruction other than the words ‘actual’ or ‘apparent’ danger,”
and Devan did not persuade us otherwise in his reply. But even
without the words “actual” or “apparent,” the jury was
adequately advised of the relevant legal question—namely, that
what mattered was the reasonableness of Devan’s belief that it was


alter the provisions in question, we cite to the current version for
convenience.


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                           State v. Devan


necessary for him to use force to prevent death or serious bodily
injury. And by further instructing jurors that, in assessing the
reasonableness of Devan’s belief, they could consider past events
and patterns, the court indicated that jurors could look outside the
things that were happening at the exact moment that Devan used
force, which seems to be the point of the proposed Actual-Danger
Instruction.

¶36 In short, we agree with the State that the absence of these
two words did not “mislead the jury” about the relevant legal
standard, nor was the jury “insufficiently or erroneously
advise[d] . . . on the law.” Van Oostendorp, 

(quotation simplified). Because “the instructions taken as a whole
fairly instruct[ed] the jury on the law” of self-defense, Kitzmiller,

 (quotation simplified), we see no abuse of
discretion by the district court. 9




9. Devan also briefly suggests that by not giving the Actual-Danger Instruction, the court prevented him from advancing his
“theory of the case.” But in assessing a similar claim, we’ve
previously considered whether the district court allowed the
party to make the relevant argument to the jury. See, e.g., Salt Lake
City v. Smoot, 

 (Utah Ct. App. 1996). As
indicated, the district court here did just that, expressly allowing
Counsel to “argue essentially these points as appropriate” and
more specifically to “argue that actual danger is not necessary to
establish a reasonable belief, only apparent danger.” Counsel took
advantage of this allowance, explicitly telling jurors, among
others, that it “doesn’t matter that the actual threat didn’t exist
. . . . It was what was apparent. And that is why the laws of self-defense say what he reasonably believes.” We therefore see no
basis for concluding that the court’s ruling on the proposed
instruction somehow prevented Devan from advancing his
theory of the case.


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                           State v. Devan


               II. Ineffective Assistance of Counsel

¶37 Devan next argues that he received ineffective assistance
when Counsel did not request three additional instructions—
namely, instructions on (A) the lesser included offense of assault,
(B) the definition of “aggressor,” and (C) the defense of habitation.

¶38 To prevail on any of these claims, Devan “must show
(1) that counsel’s performance was deficient and (2) that the
deficient performance prejudiced the defense.” State v. Ames, 

, 

 (quotation simplified), cert. denied,

 (Utah 2024). Devan “must establish both prongs,”
and “if either is lacking, the claim fails and this court need not
address the other.” State v. Forbush, 

, 

 (quotation simplified), cert. denied, 

 (Utah 2024). To
show deficient performance, Devan “must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. ¶ 25 (quotation
simplified). “The focus of this inquiry is reasonableness,” which
we judge “as of the time of counsel’s conduct.” Id. (quotation
simplified). For the reasons set forth below, we conclude that
Devan has not shown deficient performance with respect to the
failure to request any of the proposed instructions.

A.     Lesser Included Offense

¶39 Devan was charged with aggravated assault, a thirddegree felony. As noted, the State was required to prove that
(1) Devan committed an act “with unlawful force or violence” that
(2) “cause[d] bodily injury to” Steve or “create[d] a substantial
risk of bodily injury to” Steve, and that (3) Devan used “force
likely to produce death or serious bodily injury.” Utah Code § 76-
5-103(2)(a)(iii), (b)(iii). Devan now argues that he received
ineffective assistance because Counsel did not request a lesser-included offense instruction on misdemeanor assault. We
disagree.




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                            State v. Devan


¶40 An offense is a lesser included offense if “[i]t is established
by proof of the same or less than all the facts required to establish
the commission of the offense charged.” 

 § 76-1-402(3)(a). A
defendant is entitled to a lesser-included offense instruction if the
defendant shows “(1) that the charged offense and the lesser
included offense have overlapping statutory elements and (2) that
the evidence provides a rational basis for a verdict acquitting the
defendant of the offense charged and convicting him of the
included offense.” State v. Powell, 

, 

(quotation simplified); see also Utah Code § 76-1-402(3), (4).

¶41 In relevant part, a person commits class B misdemeanor
assault by (1) committing an act with “unlawful force or
violence,” that (2) “cause[d] bodily injury to” or “create[d] a
substantial risk of bodily injury to” another. Utah Code § 76-5-
102(2)(b). The offense becomes a class A misdemeanor if the act
“cause[d] substantial bodily injury.” Id. § 76-5-102(3)(b)(i). We’ve
previously held “that class A misdemeanor assault constitutes a
lesser included offense of aggravated assault.” State v. Sanislo,

, 

. Devan therefore would
have been entitled to this instruction on request.

¶42 But that does not end the inquiry. “[E]ven when there is a
basis” for a lesser-included offense instruction, “counsel can
reasonably decide not to request one.” State v. Hull, 

, 

. The decision of whether to request a lesser-included offense instruction “is within counsel’s strategic
discretion.” Id. ¶ 17. And “counsel may have perfectly valid
tactical reasons to forgo the instruction and to instead present an
all or nothing defense that entails avoiding” a lesser-included
offense instruction “in the hopes the jury will find the defendant
totally innocent of any wrongdoing.” Id. ¶ 16 (emphasis in
original, quotation otherwise simplified). Any number of cases
have recognized this as a valid strategic decision. See, e.g., State v.
Barnes, 

, 

 (holding that defense
counsel did not perform deficiently for not requesting a lesser-



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                          State v. Devan


included offense instruction and instead pursuing an acquittal);
Hull, 

 (holding that “it was objectively
reasonable for trial counsel to forgo” a lesser-included offense
instruction and to “instead present an ‘all or nothing’ defense”);
State v. Feldmiller, 

, ¶¶ 3–4, 

 (per
curiam) (holding that counsel did not perform deficiently for not
requesting a lesser-included offense instruction and instead
pursuing an all or nothing defense).

¶43 As a result, “when an appellant challenges trial counsel’s
failure to request a lesser included offense instruction as
constitutionally ineffective, the appellant runs headlong into the
strong presumption that, under the circumstances, the failure to
request the lesser included offense instruction might be
considered sound trial strategy.” State v. Powell, 

, 

 (quotation simplified). Devan has not overcome
this strong presumption here.

¶44 The record in this case shows that Counsel gave the jury
two paths by which it could acquit Devan of the charged offense
entirely. First, as discussed, Counsel argued that Devan acted in
self-defense. Self-defense is a complete defense to any kind of
assault. See Utah Code § 76-2-402(2); State v. Grant, 

, 

 (“Perfect self-defense is a complete defense
to any crime and is available to one who reasonably believed that
force was necessary to defend against unlawful force.” (quotation
simplified)). Second, Counsel also argued that Devan should be
acquitted of aggravated assault because he did not use force likely
to cause serious bodily injury. Counsel argued this point to the
court in his motion for a directed verdict. And although that
motion was denied, Counsel made the argument to the jury in
closing argument. There, Counsel argued that Devan “did not use
force likely to cause death or serious bodily injury.” This was so,
according to Counsel, because a person would not “normally . . .
expect” such injuries to result from “a fistfight.” From this,
Counsel asked jurors to “find [Devan] not guilty.”



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                           State v. Devan


¶45 Indeed, the directed verdict motion shows that Counsel
was aware of the possibility of asking for an instruction on
misdemeanor assault. As part of that motion, Counsel specifically
asked the court to “amend” the charge “to a misdemeanor offense
assault.” Because Counsel then chose not to request that such an
instruction be given to the jury, it appears that this decision was
deliberate.

¶46 And there would have been a sound basis for that choice.
Counsel could have reasonably believed that if the jury was given
a lesser-included offense instruction on misdemeanor assault, the
jury might accept that as something of a compromise option. By
not requesting such an instruction, Counsel thus essentially
presented jurors with an all or nothing defense (and, as indicated,
one that gave jurors in this case two different paths by which they
could completely acquit Devan of the charged offense). Consistent
with the above cases, this was a reasonable strategic choice, and it
was one that was within Counsel’s discretion to make. We
therefore reject this claim for lack of deficient performance.

B.     Definition of Aggressor

¶47 Devan next argues that he received ineffective assistance
because Counsel did not request an instruction “clarifying the
meaning of ‘aggressor’” as it was used in the self-defense
instruction. We disagree.

¶48 As noted, the jury was instructed that Devan was “not
justified in using force if” he (1) “[i]nitially provoke[d] the use of
force against another person with the intent to use force as an
excuse to inflict bodily harm upon the assailant; or (2) [w]as the
aggressor, unless” he withdrew “from the encounter and
effectively communicate[d]” his “intent to do so” to Steve.

¶49 On appeal, Devan contends that the “jury could have been
confused about the interplay between the provisions that define
when self-defense is justified and the provisions that prohibit


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                          State v. Devan


aggressors from using self-defense.” Because of this potential
confusion, and the possibility that “the jury could have
interpreted ‘aggressor’ narrowly to include only those who hit
first,” Devan thinks the term “aggressor” should have been
further defined. Devan then points to our supreme court’s
decision in State v. Gonzalez, 

, 

, as support
for a proposed additional instruction. There, the court explained
that it had previously “defined ‘aggressor’ as one who willingly
and knowingly initially provokes a combat or does acts of such a
nature as would ordinarily lead to combat.” Id. ¶ 28 (quotation
simplified). In Devan’s view, giving the jury this added definition
would have mitigated any potential confusion and supported his
claim that Steve was the aggressor even though Devan admittedly
threw the first (and indeed only) punch(es).

¶50 But on the basis of the instructions that were given,
Counsel was already able to argue that Steve was the aggressor.
Jurors were instructed to “give all words their usual and ordinary
meanings,” and the term “aggressor” is commonly understood to
mean “one that commits or practices aggression.” 10 Even without
any further definitional gloss from the court, Counsel argued that
Steve was the aggressor because he sent Devan an angry text
demanding his money back, and, once the two stepped outside
the Bar, Steve blew smoke in Devan’s face, said aggressive things,
and inched toward Devan with his hand in his pocket. While the
proposed Gonzalez language is more specific in that it focuses in
on combat, it’s not clear that the jury needed an instruction to
understand that this was the type of aggression at issue.

¶51 Perhaps more importantly, we agree with the State that a
reasonable attorney could have believed that the additional
language might actually hurt Devan’s case. After all, the proposed
language would instruct jurors that a person could be regarded as


10. Aggressor, Merriam-Webster, https://www.merriam-webster.c
om/dictionary/aggressor [https://perma.cc/K7D4-HSC4].


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                           State v. Devan


the aggressor if the person “willingly and knowingly initially
provokes a combat or does acts of such a nature as would
ordinarily lead to combat.” 

 (quotation simplified). As noted,
Devan went to meet Steve at the Bar because, according to Steve’s
testimony at trial, Steve was “angry” and wanted his $50 back. But
when Devan then approached Steve inside the Bar, which was a
public place with lots of people, Devan didn’t simply give Steve
his money back there. Instead, he told Steve that he “want[ed] to
talk . . . outside for a little bit.” Once outside, the two exchanged
words, after which Devan began punching Steve.

¶52 In these circumstances, Counsel could have reasonably
worried that jurors might think that, by asking Steve to step
outside the Bar with him, and given the clearly heightened state
of tension between the two, Devan committed an act that might
“ordinarily lead to combat.” 

 (quotation simplified). In this
sense, the proposed language could have given jurors additional
reason to think that it was Devan, not Steve, who was the
aggressor. And even if the risk wasn’t pronounced, Counsel could
have also reasonably believed that the added language didn’t add
much of value and simply wasn’t worth even the small risk. For
these reasons, we conclude that Counsel did not perform
deficiently by not requesting the proposed instruction.

C.     Defense of Habitation

¶53 Finally, Devan argues that he received ineffective
assistance because Counsel did not request an instruction on the
defense of habitation. We again disagree.

¶54 “When a criminal defendant requests a jury instruction
regarding a particular affirmative defense, the court is obligated
to give the instruction if evidence has been presented . . . that
provides any reasonable basis upon which a jury could conclude
that the affirmative defense applies to the defendant.” State v. Low,

, 

. “However, a court need not
instruct the jury on [a] requested affirmative defense where the


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                          State v. Devan


evidence is so slight as to be incapable of raising a reasonable
doubt in the jury’s mind as to whether the defendant acted in
accordance with that affirmative defense.” State v. Burke, 

, 

 (quotation simplified).

¶55 At the time of the events in question, the defense of
habitation statute stated that force was justified by one person
“against another when and to the extent that he reasonably
believes that the force is necessary to prevent or terminate the
other’s unlawful entry into or attack upon his habitation.” Utah
Code § 76-2-405(1) (2020). 11 And “the use of force which is
intended or likely to cause death or serious bodily injury” was
justified “only if” one of the two following circumstances applied:

      (a) the entry is made or attempted in a violent and
      tumultuous manner, surreptitiously, or by stealth,
      and he reasonably believes that the entry is
      attempted or made for the purpose of assaulting or
      offering personal violence to any person, dwelling,
      or being in the habitation and he reasonably
      believes that the force is necessary to prevent the
      assault or offer of personal violence; or

      (b) he reasonably believes that the entry is made or
      attempted for the purpose of committing a felony in
      the habitation and that the force is necessary to
      prevent the commission of the felony.


11. This statute was amended in 2024 to state that the defense
applies if a person “reasonably believes” that force was necessary
to prevent unlawful entry “into the actor’s vehicle or unlawful
entry or attack upon the actor’s habitation or place of business or
employment.” Utah Code § 76-2-405(1) (2024). There’s no
allegation in this case that the Bar qualified as Devan’s “place of
business or employment.” Regardless, in this instance, we think it
best to cite to the version of the statute applicable at the time.


 20221127-CA                    22              

                           State v. Devan

¶56 In his brief, Devan points to Steve’s annoyance at having
bought CBD gummies (as opposed to THC gummies). And Devan
also points to the text Steve sent a few days later, where Steve said
“You sold me some cbd bullshit man. I’m gonna come over later
[and] give you these gummies back and you are gonna give me
my money.” From these things, Devan argues that he could have
reasonably believed that he was justified in assaulting Steve at the
Bar in order to “’prevent’ Steve’s future burglary of his home.” In
this sense, Devan is asserting that, on request from Counsel, he
should have been allowed to make a preemptive defense of
habitation argument—i.e., that because he allegedly thought
Steve was going to attack him in his house in order to get his
money back, he could reasonably think that it was necessary for
him to go to the Bar to use force against Steve there instead. But
we don’t believe that Devan would have been entitled to such an
instruction. This is so for two reasons.

¶57 First, Devan hasn’t provided any authority that has
allowed a preemptive defense of habitation argument like this
one. To the seeming contrary, we note that prior Utah cases
interpreting this defense have commonly turned on situations
where the force in question was used at the place the person was
purportedly defending. See, e.g., State v. Gardiner, 

, 575–76 (Utah 1991) (holding that the defense of habitation did
not apply to the defendant’s use of force outside an airport
building, which his father owned); State v. McKenna, 

,
985–86 (Utah 1986) (holding that the defense of habitation did not
apply to the defendant’s use of force in his estranged wife’s
apartment, where he did not live); State v. Mitcheson, 

 (Utah 1977) (holding that the defense of habitation
applied to the defendant’s use of force in his sister’s home, which
he was occupying). And this makes sense. Both of the
circumstances identified in the statute required (and still require)
a showing that the use of force was “necessary” to stop or



 20221127-CA                     23              

                           State v. Devan


terminate the unlawful “entry.” See Utah Code 78-2-405. In this
sense, the statute grounds the defense in the habitation itself. So
in this case, even if Devan thought that Steve intended to come to
his house at some future point to burglarize him, Devan could
hardly claim that it was “necessary” for the defense of his home
for him to travel to the Bar and preemptively attack Steve there.

¶58 Second, even if there could be some hypothetical situation
in which this defense (under the terms of the statute then in effect)
could have preemptively applied outside Devan’s home, we’re
not convinced that there was a basis for applying it here on these
facts. Contrary to the position Devan advances on appeal, we see
nothing that was violent or suggestive of an impending burglary
in Steve’s text at all. True, Steve was clearly upset that Devan had
sold him CBD gummies, as opposed to THC gummies, and Steve
did say that he was going to come to Devan’s house and get his
money back. But in the same text (indeed, in the same sentence,
even), Steve said that he was going to “give [Devan] these
gummies back” in exchange for his money—i.e., that Steve
intended to return the unwanted goods, which is altogether
different than committing a burglary. Steve never said anything
about using violence as part of this return, and Devan has not
claimed that there was any past history of violence between the
two from which Devan could reasonably think that there was an
implied threat of violence. Moreover, if Steve actually intended to
go to Devan’s house to rob him, it would be a curious thing for
Steve to have sent Devan a text warning him in advance.

¶59 Again, “a court need not instruct the jury on the requested
affirmative defense where the evidence is so slight as to be
incapable of raising a reasonable doubt in the jury’s mind as to
whether the defendant acted in accordance with that affirmative
defense.” Burke, 

 (quotation simplified).
Simply put, Devan is arguing that he was entitled to a defense of
habitation instruction to prevent a burglary, even though he used
force at a place that was not his habitation and there are no facts



 20221127-CA                     24              

                          State v. Devan


suggesting that his victim intended to burglarize him. On the state
of the law and on this record, we therefore see no basis for
concluding that Devan was entitled to the proposed instruction.
As a result, we conclude that Counsel did not perform deficiently
by not requesting it.


                         CONCLUSION

¶60 The district court did not abuse its discretion by denying
the proposed Actual-Danger Instruction, and Counsel did not
provide ineffective assistance by failing to request additional jury
instructions on misdemeanor assault, the definition of aggressor,
or the defense of habitation. We accordingly affirm Devan’s
conviction.




 20221127-CA                    25