State v. Nelson

                THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                            Appellee,
                               v.
                     JOSHUA CLAYTON NELSON,
                            Appellant.

                              Opinion
                         No. 20230259-CA
                         Filed May 16, 2024

             Fourth District Court, Heber Department
                The Honorable Jennifer A. Mabey
                          No. 211500195

               Benjamin Miller and Debra M. Nelson,
                     Attorneys for Appellant
                  Scott H. Sweat and S. Case Wade,
                        Attorneys for Appellee

      JUDGE AMY J. OLIVER authored this Opinion, in which
          JUDGES MICHELE M. CHRISTIANSEN FORSTER
             and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1     On July 24, 2021, Joshua Clayton Nelson and two of his
friends kayaked down the Provo River. None of them were
wearing life jackets, in violation of state law. After a series of
exchanges with a state park ranger (Ranger) about the missing life
jackets, Nelson and his friends stopped on the bank of the river.
They were arrested, taken to jail, and charged with failure to stop
at the command of a law enforcement officer, a class A
misdemeanor. A jury convicted Nelson of the charge, and he now
appeals, asserting that his counsel was ineffective for failing to file
a motion for a directed verdict where the evidence presented at
trial was insufficient to establish that he fled or attempted to elude
                          State v. Nelson


a law enforcement officer after receiving a command to stop with
the purpose of avoiding arrest. We agree, reverse his conviction,
and remand the matter for a new trial.


                        BACKGROUND 1

¶2      On July 24, 2021, Ranger was in uniform, patrolling the
Provo River to ensure all people on it were properly wearing life
jackets. Because it was a state holiday, there were many
recreational users on the river. Nelson and his two friends
(collectively, the kayakers) were kayaking down the river without
life jackets when Ranger first noticed them and ordered them “to
step out of the river so that [he] could speak with them.”
According to Ranger’s trial testimony, “All three of them looked
at me. We made eye contact.” Ranger saw Nelson start to “put his
water shoes or flip-flops or something on,” as if he were going to
get out of the water. Yet Nelson and his friends did not get out.
Ranger testified that when he “felt like they were ignoring [him]
and were failing to comply,” he pulled out his phone “to start
recording.” The video showed Ranger saying, “Paddle over and
get out. Okay. We’ll play that game.”2 The kayakers kept floating
down the river, and Ranger got into his truck to follow them.

¶3     By the time Ranger reached the kayakers, they had joined
a group of people floating on tubes. Ranger again recorded this
interaction with his phone. He stated, “Hey, you three right here.
Look at the camera. Get out of the water right now. Your last
chance before you go to jail.” One of the voices on the video said,

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Holgate, 

, 

 (cleaned up).

2. None of the videos that were played for the jury at trial were
included in the record on appeal. Our review of them is limited to
their transcription in the record.


 20230259-CA                    2                

                          State v. Nelson


“You’re talking to me?” At trial, Ranger admitted that during this
interaction, he did not explain why he wanted the kayakers to get
out of the river and claimed he did so during the earlier,
unrecorded interaction.

¶4     According to his testimony, Nelson did not realize Ranger
was a law enforcement officer until their second encounter.
Nelson explained that he and his friends were initially reluctant
to even acknowledge Ranger because “[h]e just wasn’t calm” and
it “seemed like an interaction [Nelson] wanted to avoid.” After
one of the people floating on tubes turned to Nelson and said, “I
think this guy is serious,” Nelson paddled up to his friends and
suggested they all get out. They looked for a place to stop and
then pulled their kayaks out.

¶5      Ranger, meanwhile, had gotten back in his truck, figuring
that the kayakers would use the “public exit point” in a nearby
park. Sitting in his truck with binoculars, Ranger spotted the
kayakers sitting behind bushes on the far side of the river. He
called for backup to keep an eye on the kayakers while he drove
to a crossing point and hiked “about a mile up the train tracks” to
where they were.

¶6      When he reached the kayakers, Ranger asked why they
had not listened to him and gotten out of the river earlier.
According to Ranger, the kayakers responded that they did not
see him and did not know that they had to get out of the water.
Ranger also testified the kayakers made comments “about why,
you know, it’s just a life jacket” and whether they could “just get
[their] ticket” and “things like that.” When Ranger asked if they
were hiding from him in the bushes, the kayakers denied doing
so, explaining that they had just “stopped to drink beer and to
pick up garbage.” Nelson testified they exited “on the opposite
side of the river” because “it was just easier” and “safer” for them
to get out on that “more gradual” section of shore.




 20230259-CA                     3                

                            State v. Nelson


¶7      Ranger arrested the kayakers and took them to jail. They
were charged with failure to stop at the command of a law
enforcement officer, a class A misdemeanor. At Nelson’s two-day
jury trial, the State called two witnesses, Ranger, and his coworker
who had assisted as backup. Ranger testified to the events as
recounted above and the State played the video recordings from
Ranger’s phone for the jury. Nelson also testified as described
above and asserted “it was crazy that [he and his friends] could
be doing nothing wrong, wearing no life jacket, and end up in jail
that night.”

¶8     After the close of evidence, the trial court instructed the
jury that to find Nelson guilty, it must unanimously decide that
the State has proved beyond a reasonable doubt that Nelson “did
recklessly, knowingly, or intentionally . . . flee from or otherwise
attempt to elude a police officer . . . after the officer issued a verbal
or visual command to stop . . . for the purpose of avoiding arrest.”

¶9      In closing, the State argued that Ranger was identifiable as
an officer, gave Nelson repeated commands to stop and get out of
the river, and that Nelson did not stop. The State also maintained
“the reason [Nelson] didn’t want to stop is because he didn’t want
to get a citation for not wearing a life jacket.” Finally, the State
argued Nelson did not go to jail because of not wearing a life
jacket, but “because he didn’t want to face consequences” and “he
eluded a peace officer for roughly a mile down the river, [and]
made [Ranger] come after him multiple times.”

¶10 During closing argument, Nelson’s attorney (Trial
Counsel) stated that Nelson “had no intention to elude an officer.”
Trial Counsel pointed out that it took some time for Nelson to
even realize that Ranger was a law enforcement officer and that
Ranger was addressing him and his friends. Once Nelson had “an
opportunity to process the experience,” he and his friends
“decided to comply,” got out of the river, and waited for Ranger.
Although Nelson did not stop immediately, Trial Counsel



 20230259-CA                       4                 

                           State v. Nelson


emphasized the fact Nelson “did end up stopping” and waited for
Ranger, at no point acting with the needed intent to elude the
officer.


              ISSUE AND STANDARD OF REVIEW

¶11 Nelson asserts there was insufficient evidence to support
the jury’s verdict. Nelson admits he did not preserve this issue for
appeal by raising it below. “[W]hen a party realizes an important
issue was not preserved in the trial court, but wishes an appellate
court to address that issue, the party must argue that an exception
to preservation applies.” State v. Johnson, 

, 

. Nelson invokes the ineffective assistance of counsel
exception to preservation. 3 Id. ¶ 19. “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. Popp, 

, 

(cleaned up).


                            ANALYSIS

¶12 Nelson contends the State did not present evidence that
proved beyond a reasonable doubt that he fled or attempted to
elude a law enforcement officer after receiving a command to stop
with the purpose of avoiding arrest. Nelson points to the fact that
he did stop and wait for the Ranger as evidence he did not flee or
attempt to elude an officer. And he also argues that, even if his
failure to stop immediately could be viewed as an intent to flee or
elude, the evidence failed to show he was acting to evade arrest.


3. Nelson also invokes the plain error exception to preservation.
But because we agree with Nelson that Trial Counsel rendered
ineffective assistance, we need not address whether there was also
plain error.


 20230259-CA                      5                

                           State v. Nelson


Nelson acknowledges this argument was not preserved but
contends that review is appropriate under the ineffective
assistance of counsel exception to the preservation requirement.

¶13 Nelson contends that Trial Counsel was ineffective in
failing to move for a directed verdict at the close of the State’s case
because the State put forth insufficient evidence that he “acted
with the required purpose to flee or to avoid arrest.” An
ineffective assistance of counsel claim stems from “the Sixth
Amendment right to counsel” that exists “to protect the
fundamental right to a fair trial,” and we review it under the
standard set forth by the United States Supreme Court in
Strickland v. Washington, 

 (1984). 

. To meet the
standard, a criminal defendant must first “show that counsel’s
performance was deficient,” and second “show that the deficient
performance prejudiced the defense.” 

. “Unless a
defendant makes both showings,” the claim fails. 

 To
demonstrate deficient performance, “the defendant must show
that counsel’s representation fell below an objective standard of
reasonableness.” 

. In our analysis, we “must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” 

. “To
establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
State v. Bonds, 

, ¶ 53, 

 (cleaned up).

¶14 Nelson was charged with failure to stop at the command
of a law enforcement officer. See Utah Code § 76-8-305.5(2) (2021).
The elements of that offense required the State to prove Nelson (1)
fled from or otherwise attempted to elude a peace officer (2) after
the officer “issued a verbal or visual command to stop,” (3) “for
the purpose of avoiding arrest.” Id. All three elements must be met
to support a conviction. We agree with Nelson that the State failed
to show that he acted with the intent to avoid arrest.




 20230259-CA                      6                 

                           State v. Nelson


¶15 In Utah, there are “essential mens rea elements of the
failure-to-respond charge.” State v. Bird, 

, 

. Specifically, the first and third elements of the charge
include a “required mental state” that the State must prove. See id.
¶ 13. In Salt Lake City v. Gallegos, 

, 

,
we explained that this charge requires “evidence supporting an
inference that [the defendant] thought he was at risk for arrest and
was therefore motivated to flee.” Id. ¶ 7. “While the statute does
not require proof that another crime actually occurred, the
element requiring the [State] to show that [the defendant] fled for
the purpose of avoiding arrest requires evidence in addition to the
flight itself.” Id. (cleaned up); see also State v. Young, 

, 

 (stating that Gallegos stands “for the
proposition that Utah Code section 76-8-305.5(2) requires the State
to present evidence, beyond a defendant’s flight itself, sufficient
to support an inference that the defendant thought he was at risk
for arrest and was therefore motivated to flee” (cleaned up)).

¶16 The defendant in Gallegos was arrested after police
responded to a call about a disturbance involving men wearing
red clothing in an alley of a high-crime area. 

.
When police saw the defendant in an adjacent alleyway wearing
a shirt with red stripes and yelled for him to stop, the defendant
“turned and ran away.” 

 ¶¶ 2–3. The defendant was convicted
of failure to stop at the command of law enforcement, but this
court reversed and vacated that conviction for “insufficient
evidence from which the jury could conclude beyond a reasonable
doubt that [the defendant] fled from the officer for the purpose of
avoiding arrest.” Id. ¶ 12 (cleaned up). Although there was
evidence of the defendant’s flight from the police, there was no
evidence his “motivation in fleeing from an officer was to avoid
arrest.” Id. ¶ 8.

¶17 So too here. The trial court properly instructed the jury that
to find Nelson guilty, it must unanimously decide that the State
had proved beyond a reasonable doubt that Nelson “did



 20230259-CA                      7                

                            State v. Nelson


recklessly, knowingly, or intentionally . . . flee from or otherwise
attempt to elude a police officer . . . after the officer issued a verbal
or visual command to stop . . . for the purpose of avoiding arrest.”
Thus, the jury was instructed that both mens rea elements—of
fleeing and of avoiding arrest—must be met. But there was no
evidence presented that Nelson acted with the intent to avoid
arrest. Instead, the evidence showed Nelson acted only to avoid a
citation. Ranger testified the kayakers made comments “about
why, you know, it’s just a life jacket” and whether they could “just
get [their] ticket.” And when Ranger testified that he did mention
jail to the kayakers during their second interaction, it was in the
context of a choice between getting out of the water or going to
jail. The kayakers did exit the river after realizing Ranger was an
officer, but they did not think—correctly—that not wearing a life
jacket could result in going to jail. 4 Finally, the State argued in its
closing that “the reason [Nelson] didn’t want to stop is because he
didn’t want to get a citation for not wearing a life jacket.”
(Emphasis added.)

¶18 Because of the lack of evidence the State presented at trial
on the element of intent to evade arrest, the “State failed to present
[any] evidence of an essential element of the crime charged.” State
v. Gonzales-Bejarano, 

, 

. We
therefore conclude that Trial Counsel’s “failure to move for a
directed verdict” fell below the range of reasonable professional
assistance, amounting to deficient performance. 

¶19 We next consider whether Trial Counsel’s failure to move
for a directed verdict was prejudicial. “Prejudice exists when there
is a reasonable probability that the case would have had a


4. Failure to wear a life jacket is an “infraction,” see Utah Code
§ 73-18-8(8), punishable only by a fine. See Utah Admin. Code
R650-215-6(5) (listing the personal flotation device requirements
on a river), https://adminrules.utah.gov/public/rule/R650-215-
5/Current%20Rules [https://perma.cc/JR8A-RFSJ].


 20230259-CA                       8                 

                           State v. Nelson


different outcome had trial counsel not performed deficiently.”
State v. Carrera, 

, ¶ 81, 

 (cleaned up),
cert. denied, 

 (Utah 2023). “Because the State failed to
present [any] evidence of an essential element of the crime
charged, defense counsel's failure to move for a directed verdict
on the relevant charges amounted to prejudicial deficient
performance.” Gonzales-Bejarano, 

. Thus,
Nelson “has met the burden of showing that the decision reached
would reasonably likely have been different absent the error[]” by
Trial Counsel. Carrera, 

 (cleaned up).

¶20 Because Trial Counsel performed deficiently in not filing a
motion for a directed verdict and Nelson was prejudiced as a
result, we conclude that Nelson received ineffective assistance of
counsel. Accordingly, he is entitled to reversal of his conviction
and a new trial.


                          CONCLUSION

¶21 Where the State failed to present evidence of an essential
element of the crime, Trial Counsel’s decision to not file a motion
for a directed verdict amounted to ineffective assistance of
counsel. We therefore reverse Nelson’s conviction and remand
the matter for a new trial.




 20230259-CA                     9