State v. Williams

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                       HOWELL WILLIAMS,
                          Appellant.

                            Opinion
                       No. 20220495-CA
                      Filed August 7, 2025

            Fourth District Court, Nephi Department
              The Honorable Anthony L. Howell
              The Honorable Ray M. Harding Sr.
                         No. 991600013

              Benjamin Miller and Debra M. Nelson,
                    Attorneys for Appellant
               Derek E. Brown and Marian Decker,
                     Attorneys for Appellee

     JUDGE AMY J. OLIVER authored this Opinion, in which
 JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
                         concurred.

OLIVER, Judge:

¶1     In 2000, a jury convicted Howell Williams of murder for
killing his wife, whose body was found in rural Juab County in
1991. Over twenty years later, Williams successfully moved to
reinstate his right to appeal. Williams now appeals his conviction,
arguing that: (1) the trial court 1 committed plain error and his


1. Judge Harding presided over the trial. Judge Howell granted
Williams’s motion to reinstate his appeal. For simplicity, this
opinion uses the “the trial court” when referring to Judge Harding
and “the district court” when referring to Judge Howell.
                          State v. Williams


counsel provided constitutionally ineffective assistance at several
points during jury selection, (2) the trial court improperly allowed
the State to amend the information midtrial, and (3) he is being
denied his constitutional right to a meaningful appeal because the
transcript from one day of trial is missing and cannot be recreated.
We reject Williams’s arguments and affirm his conviction.


                         BACKGROUND

             Discovery of the Body and the Investigation

¶2     In March 1991, a hunter (Hunter) and his son discovered a
deceased female partially concealed in sagebrush in Juab County.
They went to a nearby residence and contacted the Juab County
Sheriff’s Office. Several officers, including the Juab County Sheriff
(Sheriff), arrived at the scene. Officers photographed the body
and noticed several gunshot wounds to the head along with
scratches and bruises on the chest area. The upper left shoulder
had a tattoo with the word “Hal’s” above a red heart and the word
“throb” underneath. Sheriff estimated the woman’s body had
been in the sagebrush for approximately one month.

¶3     A medical examiner determined the cause of death was
eight gunshot wounds to the head. The woman’s fingerprints
were lifted in May 1992 by a detective from the Millard County
Sheriff’s Office (Millard Detective), who had specialized training
and experience in obtaining fingerprints from bodies exposed to
the elements. But officers were not able to identify the woman.

¶4     In February 1999, a detective from the Florida Department
of Investigations (Florida Detective) contacted Sheriff. Florida
Detective was investigating a missing person who had similarities
to the body found in Juab County. The missing person was
Barbara Williams (Barbara), Williams’s wife. Florida Detective
sent Barbara’s fingerprints to Juab County for comparison, and
Millard Detective determined they were a match.




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                          State v. Williams


¶5      Florida Detective discovered that Williams was in a Florida
prison and went to interview him. Williams waived his Miranda
rights and spoke with Florida Detective. Williams stated he had
not seen Barbara since 1989 “when he left her in Arizona.”
Williams also stated that when he married Barbara in 1987, she
had four children from a previous marriage and that in 1988 he
was accused of molesting one of Barbara’s children but the
allegation was false and Barbara “put the child up to that.” He
also told Florida Detective that he fought with Barbara “all the
time,” that on one occasion she shot him in the right leg with a .22
pistol, and that she owned numerous firearms and he owned
none. He also stated he once shot “her in the right eye with a pellet
pistol when she jumped on him while he was in bed.” Williams
denied killing Barbara and said she had no tattoos.

¶6     At the end of the interview, Florida Detective
asked Williams if he would speak with investigators from Juab
County, and Williams agreed. Sheriff and a deputy from Juab
County (Deputy) conducted the interview, which was recorded.
Williams continued to deny killing Barbara, but after Sheriff and
Deputy informed Williams that they thought he was lying to them
and had a warrant to arrest him, Williams confessed to killing
Barbara. Williams stated that “things just built up and [he] killed
her, [he] shot her,” at their apartment in Midvale, Utah. He stated
that she was “nagging him and nagging him,” and “he just
couldn’t take it” anymore, so he went to the bathroom with a gun
and when Barbara “reached up and grabbed [his] hand” from the
bathtub and said “just shoot me you son of a bitch,” he shot her
“a bunch” of times in the head. Two days later, Williams removed
Barbara’s body from the bathtub and left it a few hours’ drive
away.

¶7    After the recording was turned off, Williams stated that
there was a written confession in the walls of the Midvale
apartment and drew a map of where it was hidden. Investigators
found the note using Williams’s map. The note stated:




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                         State v. Williams


      To whom it may concern: My name is Hal Monroe
      Williams junior. I am on the run from the law in
      Florida. I’ve been free for two and half years under
      an alias name. I have stolen and cheated all of my
      life. I don’t do that now. I have one confession [to]
      make, I have killed my wife [Barbara]. I shot her in
      the head nine times while in the bathtub in Midvale,
      Utah. I left her body about 175 miles south . . . . I am
      sorry I killed her, but I did not love her. And she was
      blackmailing me into staying with her. I could no
      longer fake there, and I snapped. I will never regret
      my decision ever. This is who I am, I am sorry.

¶8    In March 1999, the State of Utah charged Williams with
aggravated murder, a capital felony, in the Fourth District Court,
Nephi Department. The State later amended the charge to
murder, a non capital felony.

                       Preliminary Hearing

¶9     At the preliminary hearing, the State called Hunter and
several law enforcement officers involved in the investigation.
After the State rested, Williams’s attorney (Counsel) moved the
trial court to bind over Williams on a manslaughter charge
because Williams was “under the influence of extreme emotional
disturbance.” The trial court denied the motion. Williams then
elected to testify.

¶10 Williams testified about his physical and volatile
relationship with Barbara, and described her as a tall, strong,
athletic woman with military training. He discussed the incident
when he shot Barbara with the pellet gun. He also testified about
Barbara shooting him with a .22 rifle. He also stated that Barbara
told him she had manipulated her children into making the
molestation allegations against him.

¶11 Williams also testified about the day of the shooting. He
said that after he got home from work, Barbara accused him of



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                          State v. Williams


being unfaithful and told him to leave, but that he would never
“get rid of [her].” Williams testified he got a gun from the
bedroom, walked into the bathroom where Barbara was in the
bathtub, and threatened to shoot her. Barbara grabbed Williams’s
hand and the gun and said, “I don’t think you even got the balls
to pull the trigger,” and called him “a son-of-a-bitch or a bastard
or something.” Williams said the gun then went off, but he did
not make “a conscious decision to pull the trigger” and it took him
an hour to realize that Barbara had been shot. He also testified that
if Barbara had not grabbed the gun he probably would not have
pulled the trigger.

¶12 On cross-examination, Williams admitted that he felt
trapped in his relationship and that he had tried leaving Barbara
before. Williams also admitted that he pushed Barbara a few days
earlier, which led to the bruises on her chest.

¶13 On redirect, Williams testified that he did not go into the
bathroom with the plan of killing Barbara and Barbara was
physically capable of deflecting the gun and disabling him if she
wanted to, but instead she was the one who moved the gun to her
head. Williams also testified that he was very stressed during this
time and felt “extremely emotionally disturbed” both during his
argument with Barbara and after he shot her. Counsel renewed
his motion to have the court bind over Williams on manslaughter
rather than murder, which the court denied.

             Jury Selection and the Court’s Instructions

¶14 During jury selection, the trial court asked the potential
jurors if any of them were familiar with the prosecutor or any of
the State’s witnesses, including Sheriff. Several of the potential
jurors stated that they knew Sheriff. Juror 6 stated, “I know
[Sheriff]. He got my boys out of a few little scrapes when they
were younger.” When asked if her association with Sheriff
“would make it difficult for [her] to act fairly and impartially,”
Juror 6 responded, “No, he’s a friend.” The trial court did not ask
any additional follow-up questions, and Counsel did not ask to



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                          State v. Williams


remove Juror 6 for cause or use a preemptory strike on Juror 6,
who was ultimately seated on the jury. Counsel did make a for
cause objection to a different potential juror, who was not seated
on the jury.

¶15 The trial court informed the potential jurors that this was a
murder case and asked if any of them felt they could not be fair
and impartial due to the nature of the case. One potential juror
raised her hand, and in response to her comments that are not
clear in the record, the trial court stated:

      This is not a capital murder case, this is not one in
      which the Defendant upon a finding of guilty could
      be sentenced to death. This is a case in which the
      penalty, which you are not to be concerned with,
      would be that of five years to life in the Utah State
      prison. It is a first degree felony.

Counsel did not object.

¶16 After the jury was sworn in, the trial court told the jury that
they would hear

      opening statements from the attorneys, first the
      state, and then the Defendant. And then we’ll have
      a presentation of evidence by the state. At the
      conclusion of their evidence, then the Defendant
      will set forth their evidence in the case. If the state
      has any rebuttal evidence they would like to submit,
      . . . they can do so at the conclusion of the defense
      case. . . . We’ll then have the closing arguments, first
      from the state, then from the Defendant and finally
      a rebuttal from the state.

                             Jury Trial

¶17 The State gave its opening statement, but Counsel reserved
the defense’s opening statement until the end of the State’s case.


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                         State v. Williams


The State called Hunter, Sheriff, Deputy, Florida Detective, and
Millard Detective as witnesses, all of whom testified consistent
with the facts described above. During the cross-examination of
Deputy, he affirmed that Williams stated he was “in a very
distressed state of mind” and “was messed up for two or three
days” after he shot Barbara.

¶18 No transcript exists of the second day of the trial because it
was destroyed in accordance with the court’s record retention
policy. Based on the minutes, the following occurred: before the
jury was brought into the courtroom, the trial court held a
conference in chambers because the State had filed a second
amended information clarifying that the murder occurred in Salt
Lake County but that “venue is proper because of the body being
found in Juab County.” Counsel objected, but the trial court
approved the second amended information.

¶19 The State then called the medical examiner to testify. The
State recalled Sheriff, but Counsel objected. The trial court ruled
that the testimony was premature at that point but would be
allowed if Williams did not testify. The State rested. Counsel
moved to dismiss the charges, which the trial court denied.
Counsel made his opening statement. Williams then testified. The
defense rested without calling any other witnesses.

¶20 The trial court read the jury instructions to the jurors,
which included the following:

      In arriving at a verdict in this case, you shall not
      discuss nor consider the subject of penalty or
      punishment, as that is a matter which lies with the
      court . . . . The penalty and punishment for the crime
      charged must not in any way affect your decision as
      to the guilt or innocence of the defendant.

The jury was also instructed that Williams was “presumed to be
innocent” unless the jury was satisfied beyond a reasonable doubt
of his guilt and that it was the State’s burden to prove “beyond a



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                         State v. Williams


reasonable doubt the essential elements” of murder. The trial
court also instructed the jury on the lesser-included offense of
manslaughter. The parties then gave their closing arguments.

¶21 On June 5, 2000, the jury found Williams guilty of murder.
Williams was sentenced to five years to life, to run concurrently
to any other sentence.

                        Post-trial Litigation

¶22 Counsel timely filed a notice of appeal, but the appeal was
dismissed because Counsel did not file a docketing statement. In
2002, Williams wrote a letter to Counsel (and sent a copy to the
trial court) asking why his appeal was dismissed for failure to file
a docketing statement.

¶23 By 2014, Williams had completed his Florida sentence and
was incarcerated in the Utah State Prison. After his return to Utah,
Williams filed two pro se sentencing challenges under rule 22 of
the Utah Rules of Criminal Procedure, one in 2014 and another in
2021, that were both denied. Then, in October 2021, Williams
moved pro se to reinstate his right to appeal. Williams was
appointed counsel, and the district court reinstated his right to
appeal in May 2022.


            ISSUES AND STANDARDS OF REVIEW

¶24 Williams raises several issues on appeal. First, Williams
contends the trial court plainly erred, and Counsel was
ineffective, at several points during jury selection. “Claims for
plain error and ineffective assistance of counsel present questions
of law, which we evaluate for correctness.” State v. Samora, 

, 

.

¶25 Next, Williams asserts the trial court improperly allowed
the State to amend the information midtrial. “A trial court’s
decision to permit amendment of an information is reviewed for



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                          State v. Williams


abuse of discretion.” State v. Dalton, 

, 

 (cleaned up).

¶26 Finally, Williams argues he is being denied his
constitutional right to a meaningful appeal because the State is
unable to provide him with a complete record of the second day
of trial. Because there is no ruling to review, we decide this issue
in the first instance and no standard of review applies. See Vote
Solar v. Public Service Comm’n, 

, 

(holding that “no standard of review applies” when an appellate
court is deciding an issue in the first instance with no previous
ruling to review).


                            ANALYSIS

       I. Plain Error and Ineffective Assistance of Counsel

¶27 Williams raises several unpreserved claims on appeal that
he asks us to review for plain error and ineffective assistance of
counsel. “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.” State v. Broadwater,

, 

 (cleaned up), cert. denied, 

 (Utah 2025). And to “demonstrate ineffective assistance
of counsel,” Williams must show both “that his counsel’s
performance was objectively deficient” and “that the deficient
performance prejudiced the defense.” State v. Herrera, 

, 

 (cleaned up); see also Strickland v.
Washington, 

 (1984) (articulating the two-pronged
test for evaluating claims of ineffective assistance of counsel).

¶28 “Although plain error and ineffective assistance of counsel
are distinct concepts, they each require the defendant to
demonstrate that the alleged error or deficiency resulted in
prejudice.” State v. Haar, 

, 

(cleaned up). And “the prejudice analysis is the same under both
a plain error and ineffective assistance of counsel framework.” 

(cleaned up). Thus, to “succeed under either framework,


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                         State v. Williams


[Williams] must show that there is a reasonable probability that
but for the alleged errors, the result of the proceeding would have
been different.” Id. ¶ 54 (cleaned up). As explained below,
Williams fails to carry his burden.

A.     Juror 6

¶29 Williams asserts that Counsel was deficient for failing to
request removal of Juror 6 for cause after she admitted Sheriff was
a “friend” who “got [her] boys out of a few little scrapes.” In
determining whether Counsel’s performance was deficient we
“indulge a strong presumption that Counsel’s conduct falls
within the wide range of reasonable professional assistance.” State
v. Marquina, 

, 

 (cleaned up).
This presumption is only overcome “if there is a lack of any
conceivable tactical basis for Counsel’s actions.” 

 (cleaned up).
“Because jury selection is more art than science,” Counsel “is
given an especially wide berth with regard to jury selection and
retention.” 

 (cleaned up).

¶30 Due to the subjective nature of jury selection, “appellate
review becomes an inherently speculative exercise”; thus,
appellate courts must “presume that [C]ounsel’s lack of objection
to, or failure to remove, a particular juror was the result of a
plausibly justifiable conscious choice or preference.” State v.
Litherland, 

, ¶¶ 24–25, 

. To rebut this
presumption, Williams must show the following:

       (1) that defense [C]ounsel was so inattentive or
       indifferent during the jury selection process that the
       failure to remove a prospective juror was not the
       product of a conscious choice or preference; (2) that
       a prospective juror expressed bias so strong or
       unequivocal that no plausible countervailing
       subjective preference could justify failure to remove
       that juror; or (3) that there is some other specific
       evidence clearly demonstrating that [C]ounsel’s
       choice was not plausibly justifiable.



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                         State v. Williams


Id.¶ 25. We address each in turn.

¶31 First, from our review of the jury selection transcript, it is
clear that Counsel was not “so inattentive or indifferent” during
jury selection that his performance was deficient. 

 Counsel
participated in three bench conferences during jury selection and
made a for-cause challenge to a different potential juror. Thus,
Counsel actively participated in the jury selection process.

¶32 Second, while Juror 6 did refer to Sheriff as “a friend,”
nothing we can discern from the transcript demonstrates that this
comment was an expression of “bias so strong or unequivocal that
no plausible countervailing subjective preference could justify
failure to remove that juror.” 

 It is impossible for us to assess
Juror 6’s tone when she said, “No, he’s a friend,” and we cannot
observe her demeanor, personality, interactions with others in the
courtroom or any other subtle factors that may have swayed
Counsel to believe Juror 6 would be responsive to Williams’s case.
See id. ¶ 21. Therefore, Juror 6 calling Sheriff “a friend” after
affirming that she would be able to act “fairly and impartially” is
not an expression of “bias so strong or unequivocal” that “no
plausible” reason could justify failing to move to remove her for
cause. Id. ¶ 25.

¶33 Finally, Williams argues that Counsel’s history and general
reputation of being an inattentive attorney demonstrate that
Counsel performed deficiently here. We are not persuaded that
just because others may have believed that Counsel had been
inattentive in the past means that Counsel was inattentive here.
As discussed earlier, see supra ¶ 31, from our view of the
transcript, Counsel was attentive and engaged in the jury
selection process. Therefore, Williams has not rebutted the
presumption that Counsel’s decision not to remove Juror 6 was a
conscious choice or preference.

¶34 In the alternative, Williams asserts that the trial court
should have sua sponte dismissed Juror 6 for cause. To prevail on
his plain error claim, Williams “must show an error occurred that



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                          State v. Williams


should have been obvious to the trial court and that prejudiced
the outcome of his trial.” Litherland, 

. Only in the
rarest circumstances—“where a juror expresses a bias or conflict
of interest that is so strong or unequivocal as to inevitably taint
the trial process”—is it appropriate for a trial court to interfere
with an attorney’s “conscious choices in the jury selection
process.” Id. ¶ 32. And as explained above, supra ¶ 32, Juror 6’s
responses did not rise to that level. Therefore, the trial court did
not plainly err by not sua sponte dismissing Juror 6.

B.     Informing the Jury of the Penalty for Murder

¶35 Williams argues it was plain error for the trial court to tell
the jury that Williams was charged with a first-degree felony and
faced a sentence of five years to life if convicted. We agree that the
trial court obviously erred in doing so. 2 See State v. Cesspooch, 

, ¶¶ 10–11, 

 (holding that it was obvious
error “to inform a jury of the classification for an offense” based
on longstanding caselaw dating from the 1990’s), cert. denied, 

 (Utah 2024). Accordingly, we address this issue on
prejudice. And we do so along with another unpreserved claim
asserted by Williams, discussed infra ¶ 36, to assess whether there
was cumulative prejudice. See infra ¶¶ 37–42.

C.     Informing the Jury that the Defense Would Set Forth
       Evidence

¶36 Williams also argues that the trial court plainly erred, and
Counsel was ineffective for not objecting, when the trial court told
the jury the defense “will set forth their evidence in the case”
because the defense does not have to put on any evidence and the
burden of proof in a criminal case “rest[s] entirely with the State.”
Because “plain error and ineffective assistance of counsel share a
common standard of prejudice, if we determine that [Williams] is
unable to make his showing on prejudice grounds, lack of


2. Because we agree that the trial court made an obvious error, we
assume that Counsel performed deficiently by not objecting.


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                          State v. Williams


prejudice will prove fatal to each of his claims.” State v. Haar, 

, 

 (cleaned up). We therefore elect to
address this claim on prejudice and do so on a cumulative basis
in the next subsection.

D.     Prejudice

¶37 We have identified two instances above where we have
either determined or assumed that the trial court made an obvious
error and Counsel’s performance was deficient. See supra ¶¶ 35–
36. We now consider whether these two instances cumulatively
prejudiced Williams. 3 See State v. Campos, 

,

.

¶38 To reverse under the cumulative error doctrine, this court
“must determine that (1) an error occurred, (2) the error, standing
alone, has a conceivable potential for harm, and (3) the cumulative
effect of all the potentially harmful errors undermines its
confidence in the outcome.” State v. Martinez-Castellanos, 

, 

. Having determined or presumed for
purposes of our analysis that both of the trial court’s statements


3. In his briefing, Williams also provides a list of Counsel’s alleged
“shortcomings” in addition to the claims of ineffective assistance
addressed above. But Williams does not attempt to meaningfully
analyze why Counsel was deficient in each instance or why the
deficient performance prejudiced the defense. Therefore, because
Williams has not adequately briefed why this additional conduct
demonstrates deficient performance under Strickland, we decline
to include it in our cumulative prejudice analysis. See State v.
Millard, 

, 

 (holding that an
ineffective assistance claim was inadequately briefed when
defendant made “no attempt to present a meaningful analysis of
the Strickland test”); State v. Schwenke, 2007 UT App 354U, para. 7
(holding defendant’s claims were inadequately briefed when
defendant “merely list[ed] defense counsel’s alleged failings and
conclude[d] that the various failings constitute[d] ineffective
assistance”).


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                          State v. Williams


to the jury were obvious errors, that Counsel’s failure to object
was an error, and that each error, standing alone, had a
“conceivable potential for harm” we therefore evaluate whether
the cumulative effect of these two errors undermines our
“confidence in the outcome.” 

 In assessing whether Williams
was prejudiced, we consider “a hypothetical—an alternative
universe in which the trial went off without the error[s].” State v.
Garcia-Flores, 

, 

. And in doing
so, we are not convinced that there was “a reasonable probability
that the verdict would have been more favorable” for Williams.
See State v. Apodaca, 

, 

 (cleaned up).

¶39 First, even if Counsel objected when the trial court
informed the potential jurors of the possible punishment or the
trial court realized its error, the trial court likely would have given
the potential jurors an instruction to not concern themselves with
the possible punishment and included a jury instruction stating
the same, which is exactly what happened here. In the same
sentence where the trial court mentioned the possible penalty, the
trial court stated that the potential jurors were “not to be
concerned with” the possible penalty. In addition, jury instruction
25 reiterated,

       In arriving at a verdict in this case, you shall not
       discuss nor consider the subject of penalty or
       punishment, as that is a matter which lies with the
       court . . . . The penalty and punishment for the crime
       charged must not in any way affect your decision as
       to the guilt or innocence of the defendant.

The trial court’s two statements to the jury that they were not to
concern themselves with punishment were adequate in this case
to dispel any prejudice. See State v. Blubaugh, 

(Utah Ct. App. 1995) (holding that “an inadvertent mention of
punishment to the jury” was cured by giving a limiting
instruction after the comment and giving a jury instruction that
informs the jury that they were not to be concerned with potential
punishment). Indeed, even if Counsel had objected or the trial


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                          State v. Williams


court had realized its error, it is not clear what more Williams
believes the trial court should have done to prevent prejudice.

¶40 Next, even if the trial court had not made the statement that
the defense “will set forth their evidence in the case” or Counsel
had objected, there is no reasonable likelihood of a different
outcome. Indeed, it is difficult to see how this statement had any
substantive impact when Williams did, in fact, testify. And it is
likewise difficult to envision a scenario where Williams does not
testify. One of the clear defense strategies during trial was arguing
that, although Williams killed Barbara, he was guilty of
manslaughter instead of murder. Without Williams’s testimony to
explain his side of the story and what was going through his head
at the time of the killing, it seems highly unlikely that the jury
would have found Williams was “under the influence of extreme
emotional disturbance” such that the killing was manslaughter
rather than murder. Therefore, because Williams’s testimony was
essential to support the defense’s theory that Williams was guilty
of manslaughter rather than murder and, more importantly,
because Williams did in fact testify, the trial court’s statement that
the defense “will set forth their evidence” was not prejudicial. We
are thus not persuaded that the trial court telling the jury ahead
of time that the defense would put on evidence caused the jury
here to believe that the burden of proof had shifted to Williams.

¶41 And even if we consider these two errors cumulatively, the
jury would still hear strong evidence that Williams killed Barbara
and that the killing was murder, not manslaughter. The jury
would have heard testimony that during his interview with
Sheriff and Deputy, Williams admitted to shooting Barbara in the
head “a bunch” of times and said that he moved her body to rural
Juab County two days later. The jury also would have also been
informed of Williams’s written confession where he stated, “I
have killed my wife [Barbara]. I shot her in the head nine times
while in the bathtub in Midvale, Utah. I left her body about 175
miles south,” and that he would “never regret [his] decision.”
Additionally, Williams presented no compelling evidence of
extreme emotional distress to support the lesser included offense



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                         State v. Williams


of manslaughter. Rather, he confessed contemporaneously in
writing that he simply “snapped.”

¶42 Accordingly, we see no reasonable probability that
Williams would have been acquitted or convicted of
manslaughter rather than murder absent these errors and our
confidence in the outcome has not been undermined. See State v.
Campos, 

, 

.

               II. Amendment of the Information

¶43 Williams argues the trial court exceeded its discretion
when it allowed the State to amend the information midtrial,
because the amendment altered the offense and prejudiced his
substantial rights. We disagree.

¶44 An information can be amended after trial has commenced
but before the verdict “if no additional or different offense is
charged and the substantial rights of the defendant are not
prejudiced.” Utah R. Crim. P. 4(d). However, even if the
amendment creates “a new and additional offense,” we only
reverse if the defendant demonstrates that the amendment
prejudiced his substantial rights. State v. Dalton, 

, 

 (cleaned up).

¶45 Williams first asserts that the amendment altered the
charged offense because, even though jurisdiction is not an
element of the crime, the State “must establish the existence of
jurisdiction by a preponderance of the evidence.” The State
disagrees and argues that the amendment did not include an
“additional or different offense.” (Quoting Utah R. Crim. P. 4(d).)
Rather, the State asserts, the amendment “merely conformed the
information to evidence that Williams killed Barbara in Salt Lake
County rather than in Juab County.” We question whether
amending the information to change the location of the alleged
killing altered the offense Williams was charged with, but even if
changing the location did constitute charging Williams with an
“additional or different offense,” Williams has not shown that his



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                         State v. Williams


substantial rights were prejudiced. Utah R. Crim. P. 4(d); see also
Dalton, 

.

¶46 Williams argues the amendment prejudiced his substantial
rights because Counsel prepared to defend against a crime that
occurred in Juab County, not a crime that occurred in Salt Lake
County. He asserts that Counsel’s only “decipherable defense
strategy on day one” of the trial was establishing that the crime
did not happen in Juab County as charged, so forcing him to
change his strategy midtrial prejudiced his substantial rights. We
are not persuaded.

¶47 During the preliminary hearing, which was held nine
months before trial, Detective testified that Williams said he shot
Barbara in their Midvale apartment and then a few days later
drove Barbara’s body to the desert. After the State presented its
witnesses in the preliminary hearing, the trial court discussed
with Counsel and the State how it seemed that the killing occurred
in Salt Lake County and then Barbara’s body was brought to Juab
County after she was killed. Then Williams himself testified
during the preliminary hearing that he shot Barbara while she was
in the bathroom in their apartment, which was located in Midvale.
Therefore, nine months before trial, both Williams and Counsel
had notice that all involved parties understood the killing
occurred in Salt Lake County. See Dalton, 

(holding the defendant had sufficient notice and his substantive
rights were not prejudiced when the dates on the information
were amended midtrial because the amended dates in the
information aligned with the dates the victim testified to in the
preliminary hearing).

¶48 Additionally, the transcript for the first day of trial
demonstrates that Counsel had more than one strategy. During
his cross-examination of Deputy, Counsel asked if Williams
appeared “to be genuinely sorry about the death of his wife,” and
Counsel elicited testimony from Deputy that Williams told him
he was in a “very distressed state of mind” when the killing
occurred and that his relationship with Barbara was “abusive.”



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                         State v. Williams


And during the cross-examination of Florida Detective, Counsel
asked questions about whether he substantiated Williams’s
statements that Barbara owned several guns and that she had
once shot Williams. These questions show that Counsel did not
rely solely on the “gotcha” defense that the murder occurred in a
different county.

¶49 Counsel’s strategy of demonstrating to the jury that
Williams did not have the requisite mental state for murder such
that the jury should convict him of manslaughter was not
impacted by the State amending the information midtrial. And,
critically, because Counsel deferred his opening statement until
the close of the State’s case, Counsel was able to present his
opening and the entirety of his case in chief knowing that the
information had been amended. Thus, Counsel was able to frame
his arguments and strategy accordingly. Therefore, we conclude
that Williams’s substantial rights were not prejudiced by the State
amending the information midtrial. 4

                     III. The Trial Transcript

¶50 Williams asserts that he is “being denied his constitutional
right to meaningful appellate review” because a complete record


4. Williams alternatively asserts that Counsel was ineffective
because he did not request a continuance or new preliminary
hearing. But considering that during the preliminary hearing the
State elicited testimony, and the trial court discussed, that the
killing likely occurred in Salt Lake County, not Juab County, it is
unclear what new evidence would be obtained in a new
preliminary hearing. Further, it was reasonable for Counsel to
believe a continuance would not be helpful when he had already
begun eliciting testimony from the State’s witnesses to support his
argument that Williams—who confessed multiple times to
shooting Barbara in the head—was guilty of manslaughter rather
than murder. Therefore, Counsel’s performance was not deficient
in failing to request a new preliminary hearing or a continuance,
and Williams’s ineffective assistance claim fails.


 20220495-CA                    18               

                          State v. Williams


of the second day of his trial is unavailable. And because the
record is not complete, Williams contends we must presume error
and reverse his conviction. We disagree.

¶51 The Utah Constitution recognizes a “right to appeal in all
[criminal] cases.” Utah Const. art. I, § 12; see also State v.
Verikokides, 

 (Utah 1996). And our supreme
court has explained that the “almost complete absence of a trial
transcript makes appellate review impossible.” Verikokides, 

. But Utah courts have not presumed prejudice in all
cases where a trial record was missing. See 

 (denying a
new trial where the record for the second day of the jury trial was
unavailable); State v. Morello, 

 (Utah 1996) (“[W]e
do not presume error simply because the record is unavailable.”);
State v. Russell, 

 (Utah 1996) (holding the
defendant was only entitled to new trial when “the missing record
might reveal some error”). Rather, Utah courts have presumed
prejudice only in certain factual situations. See State v. McClellan,

, 

 (“On the specific facts of the
defendant’s case, . . . we will presume prejudice.”).

¶52 In McClellan, the defendant alleged that the Utah County
Attorney’s Office should have been disqualified because his
former defense counsel accepted a position at the Utah County
Attorney’s Office before trial. Id. ¶ 19. The supreme court found
the trial court erred when it failed to make the disqualification. See
id. ¶ 26. And the supreme court also concluded that McClellan
was not required to demonstrate that he was prejudiced by the
error because the “egregious mismanagement of [the] case”—
including the destruction of much of the trial record and
exhibits—compelled a presumption of prejudice. Id. ¶¶ 27, 34.
This included delay by the trial court of “almost three years before
transferring his file to the appellate court and his defense counsel
never fil[ing] a brief on his behalf,” and then even after the court
attempted to remedy this by resentencing McClellan, he was not
informed of the order for resentencing despite being represented
by counsel. Id. ¶¶ 27–28.




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                         State v. Williams


¶53 Relying on McClellan, Williams argues we should presume
prejudice because part of the trial record is missing. We decline to
do so on the facts of this case. Here, Williams does not identify a
specific issue or error that he thinks exists in the missing record.
Instead, Williams argues that because he believes that Counsel
performed deficiently on the first day of trial, it is likely that
Counsel also performed deficiently on the second day of trial. But
a complete trial record is not required “so appellate counsel can
go fishing for error”; the record need only be “adequate to review
specific claims of error already raised.” Russell, 

.

¶54 Here, only two witnesses testified during the second day
of trial. The State called the medical examiner and then recalled
Sheriff, who did not provide further testimony. Williams testified
and was the sole witness for the defense. Because Williams
presumably knows what he testified to, Williams is, in effect, only
missing the transcript for a single witness, who testified for less
than forty-five minutes. Therefore, the record here is far less
incomplete than in Verikokides, where the supreme court denied a
new trial despite the record missing “the testimony of many of the
prosecution’s witnesses, including the victim’s testimony, and all
of the testimony of the defense witnesses.” 

.
Accordingly, a new trial is not necessary where Williams has
failed to identify a specific issue or error that requires the
complete record for appellate review.

¶55 Finally, Williams’s conduct here “indirectly resulted in the
impossibility of appellate review.” 

. Williams knew in
2002 that his appeal was dismissed for failure to file a docketing
statement, and he has not suggested any reason why he was
unable to file his motion to reinstate his appeal until nineteen
years later. See Morello, 

 (holding the defendant
bore the risk of loss of the transcript when he delayed filing his
motion for twelve years). And it is clear that Williams knew how
to file a pro se motion; after he completed his Florida sentence and
returned to Utah, he filed pro se motions in 2014 and 2021
challenging his sentence.




 20220495-CA                    20              

                          State v. Williams


¶56 Accordingly, even though Williams was not represented
by counsel, it is clear from the record that he knew in 2002 that his
appeal was dismissed without being considered on the merits and
that he knew how to file a pro se motion as early as 2014. This case
is therefore distinguishable from the facts in McClellan where the
defendant was “unaware he had been resentenced and was once
again able to exercise his right to appeal,” and was repeatedly
harmed by his attorneys’ mistakes. 

, 27–28.

¶57 Even though Williams’s actions did not directly cause
destruction of the transcript of the second day of the jury trial, his
nineteen-year delay in filing his motion to reinstate his appeal
“greatly increased the risk and . . . likelihood that [the] records
would be lost or destroyed,” because the risks of trial participants
becoming unavailable and documents being destroyed following
the normal course of recordkeeping increase with the passage of
time. Verikokides, 

. Therefore, Williams failed to
vigilantly preserve his appeal rights and his conduct “indirectly
resulted in the impossibility of appellate review.” 5 

 at 1257–58.
Thus, we decline to presume prejudice, and we deny Williams’s
request for a new trial.


                          CONCLUSION

¶58 Williams has not carried his burden of demonstrating that
the trial court plainly erred or Counsel provided constitutionally
ineffective assistance. Williams has also not demonstrated that the
midtrial amendment of the information prejudiced him. Finally,
Williams has not shown that he was denied his right to a


5. We note that if we presumed prejudice in all cases where any
part of the transcript or record was destroyed according to normal
recordkeeping procedures, we could potentially be incentivizing
defendants to sit on their hands and wait to move to reinstate their
right to an appeal until after the record is likely destroyed so they
would be granted a new trial. We therefore decline to expand the
presumption of prejudice here.


 20220495-CA                     21               

                       State v. Williams


meaningful appeal because the transcript of the second day of
trial is missing. We therefore affirm Williams’s convictions.




20220495-CA                   22