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THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
GREGORY JOSEPH COVER,
Appellant.
Opinion
No. 20230018-CA
Filed March 6, 2025
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 201500240
Nicolas C. Wilde, Attorney for Appellant
Derek E. Brown and Marian Decker,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 Gregory Joseph Cover was convicted of child abuse for
burning the hand of one of his sons on a hot metal door and
causing bruises to the leg of his other son by shooting him with
an airsoft pistol. The burning conviction was later dismissed as
time-barred, but Cover appeals the airsoft conviction, arguing his
defense counsel was ineffective for approving jury instructions
that failed to address the defense of reasonable discipline in a
number of ways. We disagree with Cover and affirm his
conviction.
State v. Cover
BACKGROUND
¶2 Cover and his wife, Ellie, lived with their two sons, Jared
and Cade, in Kamas, Utah. 1 When police came to the home to
investigate a separate incident, they noticed a hole in the boys’
bedroom wall and asked Jared how it got there. Jared’s response
led to police questioning Ellie about Cover’s abuse.
Allegations of Abuse
¶3 Ellie informed the police that one evening in October 2018
she heard Cover yelling at the boys after they had gone to bed.
While Ellie did not witness Cover pushing Jared’s head into the
wall, she noticed a hole in the wall above Jared’s bed the next
morning and photographed it. Jared later recounted that Cover
had been swearing and yelling before pushing his head into the
wall, breaking through the drywall. Jared said Cover “just
grabbed the full side of [his] head” and “just put it in the wall.”
Jared experienced pain and dizziness, along with the
development of a large bump on the side of his head, which
persisted for four to five days.
¶4 Also in October 2018, Cover and Ellie got into an argument
while they were in their vehicle after the boys got out to open and
close a gate to their property. During this conversation, and while
the boys were out of the vehicle, Ellie told Cover that she wanted
to leave him. As Ellie recounted the incident, Cover then “reached
over and put his left hand on [Ellie’s] throat and strangled” her,
1. “On appeal,” we normally “review the record facts in a light
most favorable to the jury’s verdict and recite the facts
accordingly.” State v. Holgate, 2000 UT 74, ¶ 2,
10 P.3d 346 (cleaned
up). But here, because of the mixed verdict and for narrative
purposes, we recite the allegations of abuse—even those for
which Cover was ultimately acquitted—from the perspective of
Ellie and Jared. We employ pseudonyms for Cover’s wife and his
two sons.
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threatening, “If you ever try and take my kids away, I’ll f’ing kill
you.” Ellie recalled being scared and having bruises from the
incident.
¶5 Another incident occurred in December 2018 when Cover,
Ellie, and the boys returned home to find that an exterior metal
door to the basement had blown open and was resting against a
propane heater. On investigation, it was determined that Jared
hadn’t properly closed the door earlier in the day. Ellie said Cover
began “yelling” at Jared and “telling him he needed to pay
attention.” Jared testified that Cover was “angry” and “upset”
and that he “grabbed” him by the wrist and held his hand against
the door for ten or fifteen seconds. This action resulted in a burn
on Jared’s hand. Jared’s hand blistered and began peeling around
his knuckles, leaving his skin badly damaged; Ellie and Jared later
described the injury as a “pretty bad burn,” noting that the skin
was bright red before peeling off in the following days. Ellie, who
worked in a doctor’s office, was able to get a topical ointment to
treat the burn. But she did not seek medical treatment “out of fear
of people knowing what was going on in [their] house” and
“because of what [Cover] would do” to the boys or her. It took
about two months for the wound to heal.
¶6 In February 2020, Cade received an airsoft pistol for his
birthday. One day shortly thereafter, Cover was chasing the boys
through the living room and pointing the airsoft pistol at them. At
some point, the boys got scared, Cade began crying, and the boys
began to run away from Cover. Jared said that Cade ran into the
basement to find a place to hide but that Cover “cornered him in
and shot him” in his calves from about six or seven feet away.
Despite Cade crying and pleading for Cover to stop, Jared said
Cover was “still having fun” and told Cade to stop crying. Ellie
later noticed welts on Cade’s leg. Ellie recalled Cade saying that
his “leg hurt[] so bad” and that Cover “shot [him] with the airsoft
gun.” The pellets left three bruises, each about one inch in
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diameter, that turned blue and purple. Ellie said that the welts
took about a week or two to heal.
¶7 The final incident relevant here occurred in April 2020,
when one of the family dogs bit one of the family’s baby goats. 2
Cover became enraged, swearing and yelling at the boys for about
ten minutes. He grabbed Jared by the collar and threw him over
the fence to retrieve the baby goat. When Jared returned with the
goat, Cover grabbed him by the collar, “balled up his fist,” pulled
back few inches, and hit Jared “in the forehead.” Jared said Cover
also struck Cade in the same way. Ellie recalled that Cover had
told the boys when this happened that they needed “to pay
attention” and not “let the dogs get by the baby goats.” She also
said the boys “were scared” but that “they would just suck it up”
to appease Cover’s anger. She explained that if they cried, he
would get angry, saying something like, “Do you want me to give
you a reason to cry?”
Criminal Prosecution
¶8 Cover was charged with the following crimes: (1) child
abuse for burning Jared’s hand, (2) child abuse for shooting Cade
with an airsoft pistol, (3) child abuse for hitting Jared’s head
during the baby goat incident, (4) child abuse for hitting Cade’s
head during the baby goat incident, (5) child abuse for pushing
Jared’s head into the wall, (6) threat of violence for threatening to
kill Ellie, and (7) assault for grabbing Ellie’s throat. The case
ultimately went to trial.
¶9 Ellie and Jared testified during the trial consistent with the
narrative as summarized above. During cross-examination about
the airsoft pistol incident, Ellie acknowledged initially telling the
police that Cover was “just messing around,” but she also said she
saw Cover chasing the boys and heard the airsoft pistol discharge.
2. While not his primary profession, Cover also raised goats as a
business.
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State v. Cover
She also emphasized that Cade “was scared and crying and
running away” from Cover during the incident. Ellie also testified
on cross-examination that she observed Cover striking the boys
on the forehead during the goat incident with enough force to
push their heads back, though the incident left no marks. She
further stated that she did not report the incident until June 2020.
Ellie also testified that while she did not witness the events that
led to the hole in the wall or the burn on Jared’s hand, her
knowledge of those events came from Jared’s recounting. But she
added that when she confronted Cover about the burn, he
defended his actions by claiming that he “didn’t know it would
be that bad” and that he “didn’t realize the door was that hot.”
Ellie further testified on cross-examination that she and Jared had,
at times, not a “been completely truthful, out of fear” of Cover.
For example, Ellie admitted that Jared once reported that he had
been kidnapped when in fact he had attempted to run away from
home to get away from Cover.
¶10 During cross-examination, Jared admitted that during the
preliminary hearing, he had testified that Cover hit him in the face
during the goat incident rather than on the forehead, but he
explained, “My forehead is part of my face, so yes.” He also
acknowledged telling an officer during a June 2020 interview that
he was six or seven years old when Cover burned his hand on the
metal door. However, at trial, Jared testified that he would have
actually been twelve or thirteen years old at the time. 3 Jared
further testified on cross-examination that in one of the interviews
during the police investigation, when asked by an officer if there
3. On redirect examination, the prosecutor asked Jared if he
remembered why he had stated he was seven years old when
Cover burned his hand. Jared responded that he was unsure,
explaining, “[W]e didn’t even live in Kamas when I was seven.
But I don’t know. I just got out of an abusive household, and I
could have forgotten some stuff. I don’t know. . . . I don’t know
why I said it.”
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was anything he wanted to share about the incident that
prompted the initial contact with the police, he had lied when he
first told the story about the incident because he “didn’t want to
get in trouble.” Jared also admitted to lying about being
kidnapped when he was ten or eleven and had tried to run away.
¶11 After the State rested, Cover moved for a directed verdict
on count 1 (the hand burning incident). Defense counsel (Counsel)
argued that Jared had provided conflicting testimony, stating the
incident occurred both when he was twelve and when he was
seven or eight. Counsel contended that if the incident occurred
when Jared was seven or eight, it would fall outside the statute of
limitations and should not be submitted to the jury. Counsel also
moved for a directed verdict on count 2 (the airsoft pistol
incident), arguing that the evidence indicated Cover was simply
“messing around” and lacked the necessary criminal intent. 4 The
district court denied the directed verdict motions, ruling that
there was sufficient evidence for a jury to potentially convict.
¶12 Cover then testified in his own defense, denying all the
allegations against him. He acknowledged that Jared burned his
hand on the hot metal door, but he denied holding his hand to it.
Cover also denied hitting the boys in the head or face, stating that
he only “flicked” them on the forehead and the back of the head
to get them to “pay attention.” He also denied pushing Jared’s
head into the bedroom wall, claiming instead that Jared tripped
and fell into the wall when Cover tried to get him to go to bed.
Furthermore, Cover denied ever grabbing Ellie by the neck or
threatening to kill her. He stated that Ellie actually started the
argument and “slapped [his] face with her knuckles.” He testified
4. Cover also moved for directed verdicts on counts 3, 4, and 5, for
which he ultimately received acquittals. He did not move for
directed verdicts on counts 6 and 7.
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that he responded, “[Y]ou come at me again, you’ll never see the
boys and you’re gone.”
¶13 Cover also testified regarding the airsoft pistol incident.
Cover explained that the shooting began as part of a family “Nerf
gun war,” with Cade and Cover teaming up against Ellie and
Jared. Cover got tired and decided to quit the game, but Cade
wanted to continue against Ellie and Jared. According to Cover,
Cade “got his feelings hurt” when things got “a little out of hand,”
prompting Cade to get his airsoft pistol and begin using it on
Jared and Ellie. While Cover thought it was “funny,” Ellie was
upset and insisted Cover take the airsoft pistol away from Cade.
When he attempted to do so, Cover claimed that Cade “put two
shots into [him], point-blank, in the chest,” leaving welts. Cover
said that Cade “knew he was going to get it.” Cover told Cade to
run, and Cade fled toward the basement stairs. Cover said he shot
Cade while Cade was at the top of the stairs, hitting his legs twice.
Ultimately, Cover acknowledged shooting Cade but asserted that
it was “done in fun” and as a form of “discipline” to teach Cade
“a lesson.” Cover acknowledged that although he knew receiving
a shot from an airsoft pistol was “painful,” he still shot Cade,
explaining, “It’s called discipline. . . . [H]e needed to be reinforced
of what he gave to us.”
¶14 As relevant here, for count 2 (the airsoft pistol incident) and
counts 3 and 4 (the baby goat incident), the district court proposed
the following jury instruction as to the elements of child abuse,
repeating that the jury could not convict unless they found
beyond a reasonable doubt that
1. [Cover];
2. intentionally, knowingly, recklessly, or with criminal
negligence;
3. inflicted physical injury upon a child; and
4. that the defense of reasonable discipline does not apply.
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(Emphasis added.) Counsel, apart from wondering whether the
mental-state language should mirror the special verdict form
(discussed below), approved the elements instruction.
¶15 Counsel also approved the special verdict form for the
child abuse charges. As to the mental state, the special verdict
form for each child abuse count read,
We also unanimously find the State has proven, beyond a
reasonable doubt, that defendant acted with the following
mental state (check only one):
____ intentionally or knowingly
____ recklessly
____ with criminal negligence
The special verdict form for count 1 additionally asked the jury to
indicate whether the crime occurred “before September 1, 2016”
or “on or after September 1, 2016.”
¶16 And Counsel approved this instruction on reasonable
discipline as proposed by the court:
You must decide whether the defense of
“reasonable discipline” applies to Counts, 2, 3 and 4
in this case.
Under that defense, a person is not guilty of
Child Abuse if his conduct constitutes reasonable
discipline or management of a child.
The State has the burden to prove, beyond a
reasonable doubt, that the defense of “reasonable
discipline” does not apply to Counts 2, 3, and 4.
¶17 The jury found Cover guilty of child abuse for burning
Jared’s hand, for shooting Cade with the airsoft pistol, and guilty
for the threat of violence against Ellie. He was acquitted on all
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other counts. The guilty verdict for burning Jared’s hand was later
dismissed because it was time-barred as the jury had found the
incident occurred prior to September 1, 2016.
ISSUE AND STANDARD OF REVIEW
¶18 Cover now appeals his conviction related to the airsoft
incident, claiming that Counsel “provided ineffective assistance
when he failed to object to the plainly erroneous jury instructions
and special verdict form.” “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. Perkins, 2024 UT App 101, ¶ 11,
554 P.3d 363 (cleaned
up). 5
ANALYSIS
¶19 To establish an ineffective assistance of counsel claim, a
defendant must meet the two-prong test established in Strickland
v. Washington, 466 U.S. 668 (1984): “First, the defendant must show
that counsel’s performance was deficient. . . . Second, the
defendant must show that the deficient performance prejudiced
the defense.”
Id. at 687. “Because both prongs of the Strickland test
must be met to establish ineffective assistance of counsel, we need
not always address both prongs.” State v. Fleming,
2019 UT App
181, ¶ 9,
454 P.3d 862 (cleaned up). The deficient performance
prong requires a defendant to “show that counsel’s representation
5. In his opening brief Cover made claims of plain error by the
district court. He acknowledged in his reply brief the correctness
of the State’s assertion that those claims failed under the invited
error doctrine, and we therefore consider those claims of error to
be abandoned. And as is evident from the issues raised, Cover’s
appeal does not challenge his conviction for threatening Ellie.
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fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 688. “A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance,” meaning that a defendant must
overcome the presumption that counsel’s action “might be
considered sound trial strategy.”
Id. at 689 (cleaned up). And the
prejudice prong requires a defendant to 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. Gonzalez,
2021 UT App 135, ¶ 8,
501 P.3d 1205 (cleaned up).
“That is, the defendant’s showing must undermine our
confidence in the outcome.”
Id. (cleaned up).
¶20 Cover asserts Counsel was ineffective in three different
respects. First, he claims that Counsel should not have approved
the jury instruction that included the defense of reasonable
discipline as an element of child abuse. Next, he claims that
Counsel fell short in approving the special verdict form for the
airsoft pistol incident because that form did not mention the
State’s burden to disprove the reasonable discipline defense.
Lastly, Cover faults Counsel for approving the reasonable
discipline defense instruction itself, arguing that the instruction
was defective in not explaining the circumstances that the jury
should assess in determining whether the discipline was
reasonable. We address each argument in turn.
A. Inclusion of Reasonable Discipline Defense as an Element
¶21 Cover contends that Counsel was ineffective for approving
the jury instruction that listed among the elements of child abuse
“that the defense of reasonable discipline does not apply.” In
other words, Cover complains that Counsel should have objected
to the applicability of the reasonable discipline defense being
incorrectly grouped with the elements of child abuse in the
instruction. See supra ¶ 14.
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State v. Cover
¶22 As a threshold matter, there is no question that the
affirmative defense of reasonable discipline is not an element of
the crime of child abuse. “The reasonable discipline provisions in
sections 76-5-109(8) and 76-2-401(1)(c) are affirmative defenses,
not elements of the offense, and thus need only be addressed and
negated by the prosecution if the defendant has presented
evidence of such affirmative defense.” Bountiful City v. Baize, 2021
UT 9, ¶ 37,
487 P.3d 71 (cleaned up). This means that reasonable
discipline doesn’t need to be addressed unless a defendant brings
it up as a defense.
¶23 But that doesn’t mean Counsel was deficient in allowing it
to be included in the jury instruction in the manner it was here.
After all, it is the State’s burden to disprove an affirmative defense,
just as it bears the burden of demonstrating all elements of a crime
charged, beyond a reasonable doubt. See State v. Dominguez,
2019
UT App 116, ¶ 17,
447 P.3d 1224 (“It is fundamental that the State
carries the burden of proving beyond a reasonable doubt each
element of an offense, including the absence of an affirmative
defense once the defense is put into issue.” (cleaned up)). Thus, if
anything, its inclusion aided Cover and hindered the prosecution.
Indeed, Counsel may have welcomed the addition of the
reasonable discipline language as a means to providing another
reminder to the jury of the State’s burden in the case.
¶24 Counsel could have reasonably determined that the
additional inclusion of the State’s burden to disprove the
reasonable discipline defense within the child abuse elements
instruction was advantageous. This approach underscored the
full scope of the State’s burden of proving beyond a reasonable
doubt both the elements of child abuse and the inapplicability of
the reasonable discipline defense. Conversely, if the child abuse
instruction omitted the State’s burden to disprove the defense,
Counsel might have worried that the jury could prematurely
conclude that the State had satisfied its burden for the charged
crime without recognizing that disproving the reasonable
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discipline affirmative defense beyond a reasonable doubt was
also required.
¶25 Cover argues that including the reasonable discipline
defense in the elements was prejudicial “because it very likely
confused the jury.” More specifically, he asserts that by “lumping
the reasonable discipline defense together with the elements of
the offense, the jury was not required to consider the two inquiries
separately.” This argument is unpersuasive. The mere fact that the
reasonable discipline defense was repeated in the child abuse
elements instruction in no way supports the conclusion that it
caused the jury confusion for two reasons. First, the jury acquitted
Cover on counts 3 and 4 (the charges related to the baby goat
incident), and those instructions also featured the reasonable
discipline defense as an element. If the jury convicted Cover on
counts 1 and 2 only because it was confused by the inclusion of
the reasonable discipline defense as an element in the
corresponding instructions, then it would have been very unlikely
to acquit him on the charges related to the baby goat incident.
¶26 Second, under a counterfactual analysis in which Counsel
had objected to the inclusion of the reasonable discipline defense
as an element, there is no likelihood of a better outcome for Cover.
See State v. Ellis, 2018 UT 2, ¶ 42,
417 P.3d 86 (“Prejudice analysis
is counterfactual. To decide whether a trial affected by error is
reasonably likely to have turned out differently we have to
consider a hypothetical—an alternative universe in which the trial
went off without the error.”). We are simply not persuaded that it
made a difference whether the jury was instructed about the
reasonable discipline defense in the elements section or in some
other place in the instructions. What was essential is that the jury
was properly instructed. Moreover, the jury was in fact also
instructed on the State’s burden to disprove the reasonable
discipline defense in a separate instruction—the reasonable
discipline instruction itself. To demonstrate prejudice, Cover
“must show that there is a reasonable probability that but for the
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alleged errors, the result of the proceeding would have been
different.” State v. Haar, 2021 UT App 109, ¶ 54,
500 P.3d 102
(cleaned up). He simply cannot do that here. Therefore, Cover
fails to demonstrate a reasonable likelihood that the outcome
would have been different had Counsel objected to the child
abuse instruction and requested only a separate explanation of the
State’s burden to disprove the defense of reasonable discipline.
B. Special Verdict Form
¶27 Next, Cover argues that Counsel was ineffective in
approving the special verdict form for count 2 (the airsoft pistol
incident) because that form did not repeat the State’s burden to
disprove the reasonable discipline defense. Cover insists that
Counsel “should have adamantly demanded that the jury be
required, in its decision tree, to consider whether the State had
met its burden of disproving, beyond a reasonable doubt, the
reasonable discipline defense” by ensuring that the special verdict
form for the airsoft shooting incident referenced the affirmative
defense of reasonable discipline. We are unpersuaded. Counsel’s
performance was not deficient, and Cover was not prejudiced in
the event it was.
¶28 The jury was amply instructed on the State’s burden to
disprove Cover’s reasonable discipline defense beyond a
reasonable doubt, both in the elements instruction and the
reasonable discipline instruction. There is no disagreement that
the jury received accurate instructions regarding the elements of
child abuse (even though the reasonable discipline defense was
incorrectly grouped with the elements) and the State’s burden to
disprove the defense. Cover’s sole complaint is that the jury was
not reminded of the State’s burden on the special verdict form for
a third time. Because the State’s burden was clearly outlined in
the instructions provided, Counsel could reasonably determine
that this was sufficient. Moreover, Counsel could reasonably
conclude that objecting to the omission of this repetition in the
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special verdict form would be unnecessary and unlikely to
succeed. And as is well-established, “a futile objection necessarily
fails both the deficiency and prejudice prongs of the Strickland
analysis because it is not unreasonable for counsel to choose not
to make an objection that would not have been granted, and
forgoing such an objection does not prejudice the outcome.” State
v. Soto, 2022 UT App 107, ¶ 31,
518 P.3d 157 (cleaned up). Cover
thus fails to prove deficient performance and prejudice.
¶29 This claim of ineffective assistance additionally fails for
lack of demonstrated prejudice under a counterfactual analysis.
Even if Counsel had objected to the special verdict form, and such
objection had been sustained and the form amended, there is no
reasonable probability that the outcome would have been
different. As previously noted, when the jury is correctly
instructed on the elements of the crime and the State’s burden to
disprove any affirmative defense beyond a reasonable doubt, it
does not matter whether this burden is reiterated in a specific
instruction, including the special verdict form. Here, the jury was
explicitly instructed on the State’s burden to disprove the
reasonable discipline defense in both the child abuse and the
reasonable discipline instructions. And we presume the jury
followed the instructions. State v. Nelson,
2011 UT App 107, ¶ 4,
253 P.3d 1094. Therefore, Cover fails to demonstrate a reasonable
probability of a different outcome had the State’s burden been
repeated a third time in the special verdict form.
C. Reasonable Discipline Instruction
¶30 Cover also faults Counsel for approving the reasonable
discipline defense instruction, see supra ¶ 16, arguing that the
“instruction did not provide any explanation as to the ‘relevant
circumstances’ that the Utah Supreme Court” requires to be
examined in assessing whether discipline was reasonable.
Quoting Bountiful City v. Baize,
2021 UT 9,
487 P.3d 71, Cover
asserts that the instruction should have directed the jury to (1)
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State v. Cover
“examine situations as a whole,” (2) “take into account the various
circumstances of the particular case,” (3) consider “the
relationship between the need and the amount and type of
punishment administered,” and (4) consider “the child’s age and
size.” Id. ¶¶ 58–60 (cleaned up). From his reading of Baize, Cover
insists that Counsel was ineffective in approving this
instruction—given its “obvious deficiencies in failing to educate
the jury as to the contours of the reasonable discipline defense.”
¶31 Cover reads too much into Baize. First, Baize involved a
bench trial, and so it obviously did not involve the “contours” of
a defense in context of jury instructions. Id. ¶ 2. Second, Baize
rejected the “contention that Utah courts must consider certain
factors in making a reasonable discipline determination.” Id. ¶ 58.
Indeed, in identifying the circumstances that Cover lists, the Utah
Supreme Court stated that it was providing “some useful
guidance” extracted from various cases that might guide
reasonable discipline determinations. Id. In no way did the court
purport to establish a rigid four-factor test that trial courts must
always incorporate into jury instructions as Cover suggests.
Given these circumstances, Counsel could have reasonably
concluded that the guidance given in Baize was adequately
covered in other instructions. For example, the instruction for
count 2 told the jury to “carefully consider all the evidence in this
case.” And the instruction on evidence told the jury that in
“reaching a verdict,” it was to “consider all the evidence.” Thus,
we see no deficient performance by Counsel given that the
“instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” See State v. Beckering,
2015 UT App 53, ¶ 27,
346 P.3d 672 (cleaned up).
¶32 We also fail to see how Cover was prejudiced by the
absence of a Baize-like addition to the reasonable discipline
instruction. Other than the circular assertion that “the jury did not
consider these considerations because they were never informed
as to what the considerations” were, Cover doesn’t specifically
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State v. Cover
articulate how he was harmed by this alleged error. In any case,
as we just pointed out, the jury was in fact explicitly told to
carefully consider all the evidence in the case. Cover has offered
no reason for us to conclude that the jury did anything other than
what it was instructed, and Counsel was free to highlight any
considerations on which he felt the jury should focus.
Accordingly, this claim of error also fails on prejudice grounds.
CONCLUSION
¶33 Cover has not borne his burden of demonstrating that
Counsel rendered constitutionally ineffective assistance in any of
the particulars he advances. Affirmed.
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