State v. Mayorga

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                      HUMBERTO MAYORGA,
                          Appellant.

                             Opinion
                         No. 20230464-CA
                     Filed December 12, 2024

           Third District Court, Salt Lake Department
                The Honorable Heather Brereton
                          No. 211905581

            Nathalie S. Skibine, Attorney for Appellant
                 Sean D. Reyes and Marian Decker,
                      Attorneys for Appellee

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

HARRIS, Judge:

¶1     A jury convicted Humberto Mayorga of three crimes:
unlawful possession of a firearm, aggravated assault with said
firearm, and criminal mischief. The events in question involved
interactions between Mayorga and his then girlfriend, Elise. 1
Mayorga appeals his convictions, asserting primarily that Elise’s
testimony was inherently improbable and therefore could not
have constituted sufficient evidence to convict him. Mayorga also
brings plain error and ineffective assistance claims concerning the
lack of a jury instruction regarding specific jury unanimity on the




1. A pseudonym.
                         State v. Mayorga


aggravated assault charge. We reject all of Mayorga’s arguments
and therefore affirm his convictions.


                        BACKGROUND 2

¶2    In the summer of 2020, Mayorga met Elise, and they soon
began dating. On occasion, the couple would use drugs
together—Mayorga would use heroin and methamphetamine,
and he would sometimes obtain cannabis and alcohol for Elise.

¶3      After a few months, their relationship hit a rough patch
and, on December 15, 2020, Elise rented a room at a local hotel so
the pair could spend some time together. On the way to the hotel,
they stopped and obtained some drugs for Mayorga. At one point
after arriving at the hotel, Elise saw Mayorga texting someone on
his phone, and she asked who it was. Mayorga responded that it
was none of her business and threatened to leave the hotel. Elise
took a conciliatory tack; she apologized for questioning Mayorga
and placed her head on Mayorga’s chest, and he responded by
putting “his arm around . . . [her] neck” and placing her in a
chokehold, applying enough pressure that she could not breathe.
Mayorga then dragged her across the room—a distance of about
seven or eight feet—and dropped her at the foot of the bed. Elise
began to cry and, feeling unwell, decided to take a shower.
Afterward, she heard her phone ringing. Mayorga answered the
phone and began talking to the caller, a man Elise knew. Mayorga
threatened the caller, stating that he wanted to “meet up.” While
still on the phone, Mayorga told Elise to come with him, and they

2. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Kufrin,

, 

 (quotation simplified). In this
case, we recite the facts from Elise’s perspective, even though (as
discussed below) the jury did not convict Mayorga on all charges.


 20230464-CA                    2               

                         State v. Mayorga


got in the car. He then began to drive, asking the caller where he
was and inviting him to meet them somewhere. Ultimately,
though, Mayorga was unable to arrange a meeting, and after a
while, Elise prevailed upon him to return to the hotel.

¶4      Back at the hotel, Mayorga asked Elise why she was talking
to other men and “making him look bad.” At some point after
their return, Mayorga took out a handgun—a black one that Elise
had previously bought for him at his instruction and using his
money—and he pointed it at Elise and told her that he was going
to shoot her. Elise testified that Mayorga loaded the gun and, at
various points throughout the remainder of the evening, pointed
the gun at her. Mayorga apparently did this in multiple locations
in the hotel room: while Elise was on the bed, when Elise went to
get her phone from where Mayorga had placed it next to the TV,
and when Elise attempted to leave the hotel room. On that last
occasion, Mayorga refused to let her leave and hit her in the chest
with the nose of the gun while blocking the door, an event that
Elise claimed resulted in a rounded bruise. She tried taking
pictures of this bruise, but she testified that she deleted them
because the bruise did not show up well in the photos.

¶5      Elise also testified that, at one point during the same
evening, Mayorga grabbed a steak knife from the hotel room’s
kitchenette and placed it against her neck, telling her “that knives
are a lot quieter than guns.” Although Elise could feel the pressure
of the knife against her neck, she was not cut or injured. When she
tried to hide the knife under a pillow later in the evening,
Mayorga again threatened her with the gun, loading it, pushing
the slide back, and putting it in her face. Elise estimated that,
throughout the course of the evening, Mayorga pointed the gun
at her more than five times and placed the knife to her neck “[a]
couple” times.




 20230464-CA                     3              

                         State v. Mayorga


¶6    The hotel room incident eventually ended after Mayorga
smoked some heroin, calmed down, and fell asleep. The next
morning, Elise dropped Mayorga off at his house.

¶7     About a month later, on January 13, 2021, Elise gave
Mayorga a ride to work. During the drive, the two of them had an
animated discussion in which Elise accused Mayorga of
“narcissism” and “gaslighting.” In response to Elise’s comments,
Mayorga punched her car radio, breaking the screen.

¶8     In another incident that occurred three days later, on
January 16, Elise was again riding in a car with Mayorga and—as
she described it—she went to playfully hit Mayorga on the
shoulder but instead “accidentally” hit him in the face. In
response, Mayorga “backhanded” Elise in the mouth, causing a
bruise and bleeding underneath her lip.

¶9     The final incident relevant to this appeal occurred on
February 3, 2021. After work, Elise went to visit Mayorga—at his
invitation—at his new apartment. Elise was excited to see
Mayorga as she thought things were getting better between them,
and when she arrived, she let herself into the apartment, as she
claimed Mayorga had instructed her to do. After kissing Mayorga
and preparing to lie beside him in bed, another woman entered
the room, surprising Elise. The woman’s sudden appearance
upset Elise, and she testified that she threw a bottle in Mayorga’s
direction, scratching his elbow, and kicked the woman’s coat.

¶10 Mayorga escorted Elise outside, and after exiting the
apartment, Elise called the police because she “wanted them to
know all the things that he had done to [her].” She told the
operator that Mayorga had hit her, but then she hung up the
phone. The operator called Elise back, and she met with officers
later that night. She explained that she had caught Mayorga
cheating on her and discussed the events of February 3, but
during this interview she did not mention the earlier hotel room
incident. According to Elise, the responding officer was rude,


 20230464-CA                    4               

                          State v. Mayorga


would not listen, and talked over her. After meeting with Elise,
officers came to believe that Elise was the aggressor during the
February 3 incident, and she was later charged with two counts of
aggravated assault related to the events of that evening.

¶11 The next day, after learning that she had been charged,
Elise went to the police station—accompanied by her
grandfather—to report Mayorga’s previous actions. She felt that
her “assault charges weren’t fair,” and she “wanted people to
know what [Mayorga] had done to [her].” Elise met with another
officer (Officer) and filled out a written statement, describing the
December 15 incident at the hotel room. In that statement, Elise
did not mention anything about Mayorga choking her. Officer
then created an initial report, marking the case for follow-up.
After this meeting, Elise returned home, met with her criminal
defense attorney, and prepared a second written statement. This
second statement did include an account of Mayorga placing her
in a chokehold in the hotel room.

¶12 Six days later, Elise returned to the police station with her
attorney and provided her second statement to a detective
(Detective). During an ensuing meeting with Detective, Elise told
him that Mayorga strangled her after they had returned from
looking for the man who had called Elise (rather than before, as
she eventually testified at trial). At one point during this meeting,
Elise became flustered and confused regarding the order of
events, and she asked Detective to refer to her second statement.

¶13 After completing its investigation, the State charged
Mayorga with nine crimes: (1) aggravated kidnapping, a firstdegree felony (later amended to a third-degree felony);
(2) aggravated assault, a second-degree felony; (3) possession of a
firearm by a restricted person, a second-degree felony;
(4) possession of a dangerous weapon by a restricted person, a
third-degree felony; (5) and (6) two counts of aggravated assault
(domestic violence), third-degree felonies; (7) and (8) two counts



 20230464-CA                     5               

                         State v. Mayorga


of criminal mischief, class A misdemeanors; and (9) assault
(domestic violence), a class A misdemeanor. 3 The first six counts
related to the December 15 incident at the hotel room. The seventh
count—for criminal mischief—related to the January 13 incident
with the car radio. And the last two counts related to the January
16 incident in the car.

¶14 On February 20, 2021—after charges were brought against
Elise but before charges were brought against Mayorga—Elise
spoke with Mayorga on a recorded line. During that conversation,
Elise said she would “try to make things easy for” Mayorga.
Referring to potential charges against Mayorga, Elise said,
“Whatever happens, I’ll do anything in my power to make it less
harsh.” Elise also asked Mayorga “to make things easy on [her] as
well.” Her idea was to have the charges dropped against Mayorga
in exchange for him dropping the assault charges against her.
Later, Elise expressed surprise that this conversation might
expose her to liability for witness tampering, and the State, prior
to Mayorga’s trial, granted Elise immunity from any such charges
in exchange for her testimony against Mayorga. 4

¶15 The State’s case against Mayorga proceeded to a jury trial,
and the State called Elise, Officer, and Detective as witnesses, who
each testified as to the events described above. The State also
called a forensic nurse, who offered testimony about the anatomy
of strangulation and the dynamics of domestic abuse.




3. The State’s information included ten charges, but one count—
aggravated assault related to an incident alleged to have occurred
on December 28, 2020—was later dismissed for lack of evidence.

4. While the State granted Elise immunity from potential witness
tampering charges, it proceeded with the pending charges against
her related to the February 3 incident, and Elise eventually pled
guilty in abeyance to a single misdemeanor charge.


 20230464-CA                     6              

                         State v. Mayorga


¶16 Mayorga elected not to testify, but he did call two other
witnesses: his sister and his nephew, who testified about scratches
they believed Elise had administered to Mayorga and about text
messages between Elise and Mayorga’s sister.

¶17 At the conclusion of evidence, Mayorga’s attorney
(Counsel) made a motion for a directed verdict. His argument, in
its entirety, was as follows:

       I hate making these. I’ll be very brief, Your Honor.
       We understand the motion for directed verdict
       standard. We understand that the witness testified
       what appears to be elements of each of the offenses.
       We just challenge whether . . . it was sufficient that
       a reasonable jury could find proof beyond a
       reasonable doubt, and we would submit.

After hearing from the State, the trial court denied the motion,
ruling that “the State [had] presented a prima facie case” on all
the charges and that there was “believable evidence on each count
as charged in the information.”

¶18 The court then instructed the jury, and it gave several
instructions generally indicating that the verdict needed to be
unanimous. One of these—Instruction 50—stated that “[b]ecause
this is a criminal case, every single juror must agree with the
verdict before the defendant can be found ‘guilty’ or ‘not guilty.’”
But Counsel did not ask for, and the court did not give, an
instruction specifically stating that the jury needed to reach
unanimous agreement as to which act goes with which charge.

¶19 The attorneys then made their closing arguments. During
its argument, the State gave the jury its perspective about which
count went with which factual events. The State indicated that the
first count—for aggravated kidnapping—was for when Mayorga
“detained [Elise] against her will” in the hotel room on December
15. It argued that the second count—for aggravated assault


 20230464-CA                     7              

                          State v. Mayorga


including loss of consciousness—was for when Mayorga
“impeded the breathing” of Elise in the hotel room on December
15. It asserted that “[c]harge number three” (Count 3) for
“possession of a dangerous weapon” was for possessing the gun
that Elise said Mayorga had brandished on December 15 at the
hotel. It specified that the other charge of “[p]ossession of a
dangerous weapon” was for possession of the “knife” that Elise
said Mayorga had taken from the hotel room’s kitchenette and
held to her throat. It indicated that the next charge of aggravated
assault (Count 5) was for when Mayorga “pointed” the gun at
Elise, “racked it,” and “hit her with it” in the hotel room. And the
following charge of aggravated assault (Count 6), the State said,
was for when he held the knife at Elise’s throat in the hotel room.
The State asserted that the criminal mischief count (Count 7) was
for when Mayorga broke Elise’s car radio on January 13. And the
final two charges were related to the incident on January 16.

¶20 After closing arguments, the jury retired to the jury room.
About fifteen minutes into its deliberations, the jury sent a written
question to the court, asking, “What happens if we can’t reach a
unanimous decision?” In response, the court stated, “Please refer
to Jury Instruction 50, [d]iscuss the evidence, and continue your
deliberations.” Later, the jury asked whether Elise was the alleged
victim of both Count 5 and Count 6. The court confirmed that Elise
was the alleged victim of all the counts in the information. The
jury also asked, “What is the difference between Count 5 and
Count 6? Is one for using a gun and one for using a knife?” The
court answered in the affirmative.

¶21 After several hours of deliberation, the jury returned a split
verdict. It found Mayorga guilty on Count 3 (possession of the
gun), Count 5 (assault with the gun in the hotel room), and Count
7 (criminal mischief with the car radio). But the jury acquitted
Mayorga on all other charges, including aggravated kidnapping,
aggravated assault with loss of consciousness, possession of the




 20230464-CA                     8               

                         State v. Mayorga


knife, aggravated assault with the knife, and both charges
stemming from the January 16 incident.

¶22 A few weeks after the verdict, but prior to sentencing,
Mayorga filed a motion to arrest judgment on the two felony
counts (Count 3 and Count 5). In that motion, Mayorga asserted
that “the evidence presented at trial . . . renders the jury’s . . .
verdicts” on those counts “so inconclusive or so inherently
improbable that reasonable minds must have entertained a
reasonable doubt” about Mayorga’s guilt. He pointed out that the
jury had acquitted him on the other counts, a fact he asserted
meant that “the jury had to [have found Elise’s] claims as
fabricated for the other counts.” And he asserted that the verdict
must have been “the result of a compromise.” At oral argument
on the motion, Counsel argued that “it appears that the verdict in
this case was the result of a compromise,” and he asserted that
“the jury clearly did not believe” Elise on “the most serious
counts.” The trial court denied the motion.

¶23 Later, the trial court sentenced Mayorga to prison on the
three convictions, with the sentences to run concurrently to each
other and consecutively to a prison sentence Mayorga was then
serving in a different matter.


            ISSUES AND STANDARDS OF REVIEW

¶24 Mayorga now appeals his convictions, and he presents two
issues for our consideration. First, he challenges the trial court’s
denial of his motions for directed verdict and to arrest judgment,
asserting that the evidence was insufficient to support the
convictions. As part of this challenge, Mayorga contends—for the
first time on appeal—that Elise’s trial testimony was “inherently
improbable” under State v. Robbins, 

, 

, and
therefore should not have been considered in the sufficiency-ofthe-evidence analysis. Had the Robbins part of the claim been
raised in the trial court, we would have reviewed the court’s


 20230464-CA                     9              

                          State v. Mayorga


ruling on that point deferentially. See State v. Skinner, 

, 

 (stating that we “review deferentially a trial
court’s decision to decline to disregard a witness’s testimony due
to inherent improbability, reversing the trial court’s decision only
if it was clearly erroneous” (quotation simplified)). But as we
explain below, Mayorga did not make a Robbins argument in the
trial court, and he does not ask us to assess that argument under
any of our exceptions to the preservation requirement. Thus, we
address on the merits only Mayorga’s general insufficiency
challenge, and on that score we review the trial court’s ruling for
correctness. See State v. Stricklan, 

, 

(“We review a [trial] court’s grant or denial of a motion for
directed verdict and to arrest judgment for correctness.”).

¶25 Second, Mayorga points to the absence of any specific jury
unanimity instruction as to Count 5, and he asserts that the trial
court plainly erred and that Counsel rendered ineffective
assistance in not providing or requesting such an instruction.
“Claims for plain error and ineffective assistance of counsel
present questions of law, which we evaluate for correctness.” State
v. Samora, 

, 

.


                            ANALYSIS

                   I. Sufficiency of the Evidence

¶26 Mayorga’s first argument is that the evidence the State
presented at trial was insufficient to support the three convictions.
And in connection with this argument, Mayorga contends—citing
Robbins—that Elise’s testimony was “so inherently improbable
that no reasonable juror could have believed it beyond a
reasonable doubt” and that this testimony therefore cannot be
considered in any sufficiency-of-the-evidence analysis.

¶27 “In situations like this one, our analysis has two parts.”
State v. Barnes, 

, 

, cert. denied,



 20230464-CA                     10              

                          State v. Mayorga

 (Utah 2024). First, we must analyze the evidence that
the movant claims is inherently improbable, and we must
“determine[] whether the challenged piece of evidence is of such
a poor quality that it should be disregarded.” See State v. Jok, 

, 

. Our determination of this question will
dictate the “dimensions of the universe of evidence” that may be
considered in the ensuing sufficiency-of-the-evidence analysis.
See Barnes, 

 (stating that, “[g]iven the
relationship between” the two parts of the argument, we should
examine the “inherent improbability claim first, then address
[the] sufficiency claim only after we know the dimensions of the
universe of evidence we are allowed to consider”).

¶28 Second, we undertake our sufficiency analysis, considering
all evidence that has not been excluded from consideration on
grounds of inherent improbability. For instance, if we determine
that the challenged testimony is inherently improbable, we “then
determine if sufficient evidence remains under which a
reasonable jury could have convicted.” See Jok, 

;
see also Skinner, 

 (“[A] defendant who raises
[an inherent-improbability] claim . . . is asking the court, in
conducting its sufficiency-of-the-evidence review, to examine
only a particular subset of the admitted evidence, and to
disregard certain witness testimony before undertaking that
review.”). “On the other hand, if we determine that the challenged
evidence is not inherently improbable, our sufficiency-of-the-evidence analysis will include the challenged evidence.” Barnes,

. In that situation, we will consider “all
admitted evidence to determine if some evidence exists that could
support the verdict,” since “it is ordinarily not the court’s place to
disregard any particular items of admitted evidence.” Skinner,

 (quotation simplified).

¶29 A Robbins inherent-improbability claim is subject to a
separate preservation requirement. We have stated that a Robbins
claim “may be a component of an insufficiency challenge, but not



 20230464-CA                     11               

                           State v. Mayorga


every insufficiency challenge raises a Robbins issue.” State v. Doyle,

, 

. A Robbins challenge
necessarily “introduces a new legal theory” distinct from general
insufficiency: “that the insufficiency should be reviewed only after
[certain] testimony is ignored as ‘inherently improbable.’” Id.; see
also Stricklan, 

 (stating that “the Robbins issue . . .
concerns a distinct legal theory” from general insufficiency). To
preserve any issue for appellate review, “the issue must be
specifically raised such that the issue was sufficiently raised to a
level of consciousness before the trial court.” State v. Marquina,

, 

 (quotation simplified), aff’d,

, 

. Applying those principles in this
particular context, we have stated that a “defendant who wants a
trial court to disregard a witness’s testimony under Robbins
before, or in connection with, undertaking a sufficiency-of-the-evidence review must make that request known to the trial court
so that the court has an opportunity to rule on the issue.” Skinner,

.

¶30 In this case, Mayorga certainly preserved a general
insufficiency argument for appellate review; indeed, he made
both a motion for directed verdict at the close of the State’s casein-chief as well as a later motion to arrest judgment. In both of
those motions, Mayorga argued that the State’s evidence was
insufficient to convict him. But in neither of those motions did
Mayorga raise a Robbins claim with regard to Elise’s testimony: at
no point did he assert that her testimony should be disregarded
in an insufficiency analysis due to inherent improbability, and at
no point did he cite Robbins or any subsequent similar case law.

¶31 In an effort to resist the conclusion that his Robbins claim is
unpreserved, Mayorga points to two facts: that in his motion to
arrest judgment he used the phrase “inherently improbable,” and
that the trial court, in denying his initial motion for directed
verdict, stated that there was “believable evidence” to support the
State’s case. From these facts, he argues that “[t]he context of [his]



 20230464-CA                      12               

                          State v. Mayorga


case made clear that the issue in dispute was [Elise’s] credibility.”
We see the matter differently.

¶32 Mayorga’s motion to arrest judgment did use the phrase
“inherently improbable.” But in that motion, Mayorga did not
assert that Elise’s testimony was inherently improbable; instead,
he asserted that the “verdicts” were inherently improbable. As we
understand the argument, Mayorga asserted that the verdict must
have been “the result of a compromise” because the jury had to
have disbelieved Elise, at least in part, in order to acquit him on
the other charges. In his view, the guilty verdicts were therefore
“inherently improbable” because “the jury had to find [Elise’s]
claims as fabricated for” the acquittal counts “yet somehow
believable beyond a reasonable doubt as to” the conviction
counts. This is a much different argument from asking the court
to disregard Elise’s entire testimony as inherently improbable,
and in our view Mayorga did not do enough, in his post-trial
motion, to bring a Robbins request to the court’s consciousness.

¶33 Likewise, the court’s statement, made in the context of
denying Mayorga’s very brief directed verdict motion—that the
State had presented sufficient “believable evidence” to support
the charges—was not, in context, a Robbins ruling regarding
Elise’s testimony. Mayorga’s oral motion made no mention of
either Robbins or of Elise’s testimony specifically, and in context
the trial court’s statement was simply intended to convey that, in
its view, sufficient competent evidence had been presented to
support the charges. Mayorga’s motion simply did not do enough
to raise a Robbins issue to the court’s consciousness.

¶34 Thus, we conclude that Mayorga’s Robbins argument is
being made for the first time here on appeal and is therefore
unpreserved for appellate review. And in his briefing on this
issue, Mayorga does not ask us to apply any of our established
exceptions to our preservation rule, such as plain error or
ineffective assistance of counsel. Accordingly, we do not reach the



 20230464-CA                     13              

                           State v. Mayorga


merits of Mayorga’s Robbins claim. See State v. Johnson, 

, 

 (“A failure to preserve an issue in the trial court
generally precludes a party from arguing that issue in an
appellate court, absent a valid exception.”).

¶35 As to Mayorga’s general insufficiency challenge—which is
preserved for appellate review—we conclude that the State
presented sufficient evidence to support convictions on Counts 3,
5, and 7. 5 Because Mayorga’s Robbins claim was unpreserved and
we do not reach its merits, Elise’s testimony is considered proper
evidence for purposes of our sufficiency analysis. That is, the
“universe of evidence” to be considered in our analysis includes
Elise’s testimony as well as all other evidence presented at trial.
See Barnes, 

.

¶36 And with that universe of evidence in mind, there is clearly
enough evidence to support Mayorga’s convictions. We will
uphold a trial court’s denial of sufficiency challenges “if, when
viewed in the light most favorable to the State, some evidence
exists from which a reasonable jury could find that the elements


5. The State argues that Mayorga affirmatively waived any
challenge to the sufficiency of the evidence regarding Count 7, the
conviction for criminal mischief having to do with the car radio.
In the State’s view, Mayorga waived this argument when he chose
not to include it in his motion to arrest judgment and when he
acknowledged, during oral argument on that motion, that he
hadn’t included it because “there was some potential evidentiary
support” for that conviction. There is certainly strength to the
State’s argument, but because we agree that there was indeed
sufficient evidence to support conviction on that count, we choose
to simply dispose of this claim on its merits rather than resorting
to principles of waiver. Cf. State v. Kitches, 

,

 (“[I]f the merits of a claim can easily be resolved in
favor of the party asserting that the claim was not preserved, we readily
may opt to do so without addressing preservation.”).


 20230464-CA                       14               

                         State v. Mayorga


of the crime had been proven beyond a reasonable doubt.” State
v. Gonzalez, 

, 

 (quotation simplified).
In this case, there exists at least some evidence, when viewed in a
light favorable to the State, to support all three convictions.

¶37 With regard to the firearm possession charge, Elise testified
that Mayorga had a handgun while they were in the hotel. This
testimony alone is sufficient to provide a basis for conviction on
Count 3. See Utah Code § 76-10-503(2)(a) (2021). With regard to
the charge for aggravated assault with the gun, Elise testified that
Mayorga pointed the gun at her multiple times and threatened to
shoot her with it. This testimony constitutes sufficient evidence to
support a conviction on Count 5. See id. § 76-5-103(1). And with
regard to the criminal mischief charge, Elise testified—supported
by a photograph—that Mayorga intentionally punched her car
radio and broke the screen. This evidence is sufficient to support
a conviction on Count 7. See id. § 76-6-106(2)(b)(i)(B).

¶38 Accordingly, we reject Mayorga’s appellate challenges
regarding the sufficiency of the evidence, and we affirm the trial
court’s denial of Mayorga’s directed verdict motion and his post-trial motion to arrest judgment.

          II. Unanimity Instruction Regarding Count 5

¶39 Mayorga’s second argument is that there should have been
a separate jury instruction regarding specific unanimity on Count
5, the charge for aggravated assault involving the gun. During her
testimony, Elise described at least five instances in which she said
Mayorga pointed the gun at her during the course of the evening
in the hotel room. Supra ¶¶ 4–5. Yet Mayorga was charged with
only one count (rather than five) of aggravated assault with the
gun, and Mayorga asserts that jurors should have been instructed
that they needed to reach unanimous agreement as to which
specific act constituted the crime for which they convicted him.
But Mayorga did not request any such instruction at trial, and he
therefore recognizes that he did not preserve any complaint about


 20230464-CA                    15              

                          State v. Mayorga


its absence for our review here on appeal. Instead, he asks us to
review this issue for plain error and ineffective assistance of
counsel. But both plain error and ineffective assistance are
doctrines that require a showing of prejudice, and on this record,
we conclude that Mayorga has not demonstrated the requisite
prejudice. On that basis, we reject Mayorga’s arguments.

¶40 To succeed on a claim of ineffective assistance of counsel,
Mayorga “must demonstrate both (1) ‘that counsel’s performance
was deficient’ and (2) ‘that the deficient performance prejudiced
the defense’ so as to ‘deprive the defendant of a fair trial.’” State
v. Kufrin, 

, 

 (quoting Strickland
v. Washington, 

 (1984)). Mayorga must make a
successful showing on both elements; indeed, if “either is lacking,
the claim fails and the court need not address the other.” State v.
Nelson, 

, 

. And to succeed on a claim
of plain error, Mayorga “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. Popp, 

, 

 (quotation simplified). “The prejudice analysis is the
same for claims of plain error and ineffective assistance of
counsel.” State v. Norton, 

, ¶ 101, 

. Because
we conclude that—even if error or deficient performance is
presumed to be present—Mayorga was not prejudiced, we limit
our discussion to the prejudice element common to both tests.

¶41 To demonstrate prejudice in this context, Mayorga must
convince us that “there is a reasonable probability that, but for the
error, the outcome would have been different.” State v. McNeil,

, 

 (quotation simplified). 6 If Mayorga


6. Recently, our supreme court indicated that the failure to give a
specific unanimity instruction, when one is required, is a
“constitutional error” that—when the issue is raised in the trial
court and preserved for appellate review—carries “a presumption
                                                    (continued…)


 20230464-CA                     16               

                          State v. Mayorga


cannot make that showing, then both of his claims—for plain
error and for ineffective assistance—fail. See id. ¶ 25 (“Because
both claims require a showing of prejudice, if we conclude that
the errors . . . were not prejudicial,” then the “claims of ineffective
assistance of counsel and plain error fail.”).

¶42 For purposes of our analysis, we assume that a jury
instruction regarding specific unanimity for Count 5 should have
been given. After all, “[p]rejudice analysis is counterfactual,” and
so we must envision, for purposes of our analysis, “an alternative
universe in which the trial went off without the error,” and then
assess whether the hypothetical trial is “reasonably likely to have
turned out differently” from the actual trial. See State v. Ellis, 

, 

; see also State v. Mottaghian, 

, 

 (stating that we must assess whether “there



of prejudice that may be rebutted if the State proves that the error
was harmless beyond a reasonable doubt.” State v. Chadwick, 

, 

. The situation is different,
however, when the issue is not raised in the trial court and
therefore not preserved for appellate review, and we are therefore
asked to analyze prejudice through the lens of plain error or
ineffective assistance: in those situations, the defendant still bears
the burden of demonstrating prejudice, even when the
unpreserved claim involves an issue of constitutional dimension.
See State v. Baugh, 

, 

 (analyzing a claim
of ineffective assistance for failing to request a specific jury
unanimity instruction, and stating that “the defendant must
show” prejudice by demonstrating that “counsel’s errors actually
had an adverse effect on the defense, and that there is a reasonable
probability that, but for those errors, the result of the proceeding
would have been different” (quotation simplified)); see also State
v. Leech, 

, ¶ 43 n.7, 

 (stating that the
State bears the burden of persuasion regarding prejudice only in
cases involving preserved claims “of constitutional dimension”).


 20230464-CA                      17               

                          State v. Mayorga


existed a reasonable probability of a different outcome had the
jury been provided a specific unanimity instruction”).

¶43 Elise testified that Mayorga threatened her with the gun at
least five times during the course of the evening at the hotel room.
But the State only charged Mayorga with one count of aggravated
assault (Count 5) related to those acts. Mayorga asserts that, under
these circumstances, some of the jurors might have believed
Elise’s testimony with regard to one of the five or so assaults,
while others might have believed her testimony with regard to a
different assaultive act. And he posits that it is therefore possible
that jurors didn’t ever achieve unanimity as to which act formed
the basis for the conviction. See State v. Hummel, 

,

 (stating that “jury unanimity means unanimity as to
a specific crime,” and that “a verdict would not be valid if some
jurors found a defendant guilty of robbery committed on
December 25, 1990, in Salt Lake City, but other jurors found him
guilty of a robbery committed January 15, 1991, in Denver,
Colorado, even though all jurors found him guilty of the elements
of the crime of robbery” (quotation simplified)).

¶44 The State counters by arguing that, on this record, “there
was no rational basis in the evidence for the jury to conclude that
only some of the assaults occurred and that others did not,”
because on these specific facts, “[t]he jury was either going to
conclude that all of the assaults occurred or that none of them
did.” The State points out that the jury convicted Mayorga on
Count 3 (possession of the gun), indicating that the jury believed
Elise’s testimony that Mayorga had the gun in the hotel room
during the incident. Reasoning from this fact, the State asserts that
“there is no reasonable likelihood that the same jury that
unanimously agreed [that Mayorga] possessed a gun and
committed some act of aggravated assault with it at the hotel
would not have agreed on a specific threatening act, based on the
evidence, had it been instructed to do so.” We find the State’s
reasoning persuasive.



 20230464-CA                     18              

                          State v. Mayorga


¶45 Important to our analysis is the reality that all five (or so)
of the assaults Elise described occurred on the same evening, in
the same hotel room, with the same gun, involving the same two
people, and as part of the same continuous course of conduct.
Indeed, most of the acts Elise described are relatively generic
actions that were discussed together and for which she offered
little differentiation upon which a factfinder could perhaps
conclude that some, but not all, of them happened. For instance,
she testified generally that Mayorga “kept putting [the gun] in
[her] face and loading a bullet into the chamber, and he’d do that
multiple times.” Upon further questioning, she indicated that
these acts occurred in different locations in the room, and that
sometimes Mayorga would say something (for instance, “I’m
going to shoot you”) while he pointed the gun at her. But in the
main, Elise’s testimony about the individual assaultive acts was
undifferentiated; even Mayorga characterizes it as largely
“general.” We therefore agree with the State that—aside from
possibly the one act discussed below—there was simply not any
“reasonable basis for the jury to differentiate between” the
assaultive acts that Elise described. Under circumstances like
these, we discern no reasonable likelihood that the jury—which
unanimously found that Mayorga possessed the gun—would
have parsed these acts and believed that some of them but not all
of them occurred: the jury was very likely either going to conclude
that all of them occurred or that none of them did, and therefore
a jury instruction about specific unanimity would not have been
reasonably likely to result in a different outcome. Cf. State v.
Garcia, 

, 

 (concluding that no
prejudice occurred from the absence of a specific unanimity
instruction where the jury in connection with another count found
that the defendant had committed rape, and stating that “we are
incredulous that the jury that believed” the victim’s account of the
rape “would not have also believed her assertion that” the
defendant committed aggravated sexual abuse by committing a
similar act as part of the same course of conduct), cert. denied, 

 (Utah 2024).



 20230464-CA                     19              

                          State v. Mayorga


¶46 We acknowledge that Elise’s description of one of the
assaultive acts did come with some additional detail: at one point,
she tried to leave the hotel room, and Mayorga “got in front of
[her] and hit [her] with the nose of the gun in the chest.” Elise
testified that this event resulted in a rounded bruise appearing on
her chest; she said she took photos of the bruise, but she deleted
them because the bruise did not show up well in the photos. But
even assuming, for purposes of the discussion, that some jurors
could have concluded—based, perhaps, on the unlikelihood of
bruising from that sort of contact or on the absence of any
photos—that this act did not occur, we still see no reasonable
likelihood of a different overall outcome had the jury received a
specific unanimity instruction. For the reasons stated in the
preceding paragraph, the other four (or so) acts described by Elise
were generic and largely undifferentiated, and the same jury that
concluded that Mayorga possessed the gun and committed
assault with it during the evening would likely have unanimously
concluded that at least one, if not all, of the other acts occurred.

¶47 Accordingly, given the particular facts of this case, we
discern no reasonable probability of a different result on Count 5
in a counterfactual trial in which the jury received a specific
unanimity instruction. We therefore conclude that Mayorga has
not demonstrated that he was prejudiced by the absence of such
an instruction, and on that basis we reject his claims of plain error
and ineffective assistance of counsel.


                          CONCLUSION

¶48 Mayorga failed to preserve for appellate review any claim
that Elise’s testimony was inherently improbable and, on that
basis, should be disregarded in connection with a sufficiency-ofthe-evidence analysis. And with Elise’s testimony included in the
universe of evidence considered in that analysis, sufficient
evidence exists to support Mayorga’s three convictions. Finally,
Mayorga has failed to demonstrate that he was prejudiced by the


 20230464-CA                     20              

                         State v. Mayorga


absence of a specific unanimity instruction regarding Count 5,
and for that reason he has not met the requirements for plain error
or ineffective assistance of counsel. We therefore affirm
Mayorga’s three convictions.




 20230464-CA                    21