State v. Wall

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                             v.
                      MAUREN BETH WALL,
                         Appellant.

                             Opinion
                        No. 20220835-CA
                       Filed March 6, 2025

           Second District Court, Ogden Department
              The Honorable Reuben J. Renstrom
                        No. 211900117

          Emily Adams and Rachel Phillips Ainscough,
                   Attorneys for Appellant
               Derek E. Brown and Jeffrey D. Mann,
                     Attorneys for Appellee

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

HARRIS, Judge:

¶1     A jury convicted Mauren Beth Wall of aggravated
burglary, aggravated robbery, aggravated assault, possession of a
firearm by a restricted person, and obstruction of justice. She
appeals her convictions, asserting that her trial counsel rendered
constitutionally ineffective assistance and that the trial court
improperly instructed the jury regarding reasonable doubt. We
reject Wall’s arguments and affirm her convictions.
                           State v. Wall


                        BACKGROUND 1

¶2      One day, Wall and her friend Dana drove together to the
house where Wall’s friend Jessica lived. Wall told Dana that
Jessica “owed her money” and that Jessica was in possession of a
“car part” that belonged to Wall. Wall also believed that Jessica
was in possession of “some cellphones” that Wall had purchased
and that Wall believed belonged to her. The purpose of Wall’s
visit was to try to obtain these items from Jessica’s house. Earlier
that day, Wall had come to Dana’s place of residence with a
“little” “black gun” and had “brandished” that gun in front of
Dana’s friend, scaring the friend; Dana was concerned about how
Wall was acting that day and for that reason agreed to accompany
her to Jessica’s house, hoping that she could talk Wall out of
“doing something stupid.”

¶3     Jessica rented a basement room from a woman named
Connie, and Jessica lived in that room with her boyfriend, Martin.
Connie’s daughter also lived in the house, and she was sometimes
visited by her friend Zack. When Wall and Dana arrived at the
house on the day in question, they observed that Jessica was not
there; according to Dana, Wall nevertheless “went in the house”
while Dana waited in the car.

¶4     About fifteen or twenty minutes later, Jessica arrived,
accompanied by her friend Tracie. Jessica and Tracie had left
Jessica’s room locked and the light off when they left the house
earlier that day, but when they returned they observed that the
bedroom light was on and that the room’s outside window—


1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Popp, 

, 

 (cleaned up).


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                           State v. Wall


which was ordinarily covered with a sheet of plastic—was “open”
and that the sheet of plastic had been removed. Tracie testified
that “it looked like somebody had crawled through” the window
to get into the bedroom. Both Jessica and Tracie observed that
Martin’s “hoverboard”—which had been inside the bedroom
when they left—was now outside the window. Tracie went
outside, picked up the hoverboard, and passed it through the
window to Jessica, who remained in the bedroom; when Jessica
turned around, she saw Wall “standing at the doorway” of the
bedroom. Jessica asked Wall to leave the house, and Wall
responded by “grabb[ing] the hoverboard” and trying to take it
from Jessica. An “altercation” ensued in which words were
exchanged and the women “kind of wrestled over” the
hoverboard. At one point during the tussle, Jessica saw Wall
“[stand] back and put her hand on her waist,” an action that
concerned Jessica because she knew that Wall owned and often
carried a gun. On at least one previous occasion, Wall had shown
both Jessica and Tracie a “black, small handgun” that she had
obtained. During the altercation, though, Jessica did not actually
see a gun, but she understood Wall’s gesture to her waist to be an
indication that she had the gun on her person and was threatening
to use it; indeed, Jessica was concerned enough to tell Wall, in the
moment, “Don’t take out your gun.”

¶5    While Jessica apparently did not see Wall’s gun in that
moment, Tracie did. Tracie testified that Wall “pulled out a gun
and aimed it towards” Jessica while Jessica was turned around
and “facing away” from Wall, but with the barrel of the gun
pointed downward “toward the ground.”

¶6     Zack was also at the house that day, and he heard “some
commotion” coming from the basement. He went downstairs to
investigate, and he saw Jessica and Wall “facing each other” and
“arguing.” He heard Jessica say something like, “You need to put
that gun away,” but at that point he did not see a gun. He
informed Wall that she needed to leave the premises. Wall then



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                            State v. Wall


proceeded upstairs, carrying a box; Zack followed five or six feet
behind her to make sure she was leaving. At this point, Connie
observed Wall coming up the stairs, with Zack behind her; Zack
told Connie to “be careful” because “she’s got a gun.” Connie told
Wall that “guns were not permitted in [her] home” and that she
needed to leave; according to Connie, Wall responded by stating,
“I’ll take a gun anywhere I want to,” and by pulling a “small black
pistol” “out from underneath [the] box that she was carrying” and
wav[ing the gun] around.”

¶7     Wall then proceeded to leave the house, by way of the back
door, with Zack following behind. While they were in the
driveway of the house, with Wall about four or five feet ahead of
him, Zack observed that “the clip fell out of the gun,” and he
instinctively kicked the clip “out of the way.” At that point, the
gun fired, and Zack was shot in the midsection, “right next to [his]
belly button.” Zack later testified that he never attempted to “grab
a hold of the gun” and that he was never in possession of the gun.
Connie heard a gunshot and saw Zack coming back toward the
house, shouting that he’d been shot. Jessica called 911, and law
enforcement and first responders soon arrived; Zack survived the
shooting but was severely injured.

¶8       One responding officer noted that the plastic over Jessica’s
window “had been torn” and that “there was some hair on the
tape . . . that had been torn off.” The hair was black, the same color
as Wall’s hair. Wall had fled the scene in her car, and officers were
able to locate her and search her vehicle. Officers then interviewed
Wall, who stated that she had left the gun “near [a] dumpster” at
a nearby convenience store. Upon searching the area, officers
located two cellphones in the dumpster, a pipe used to smoke
methamphetamine next to the dumpster, and a gun. Of particular
note, the gun was found behind the dumpster, between the slats
of a shipping pallet, and sitting on top of a holster. Detectives also
interviewed Dana, who told them that Wall wanted to discard the




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                            State v. Wall


gun because she had a prior felony conviction and knew that she
could not lawfully possess it.

¶9     After completing their investigation, officers arrested Wall,
and the State later charged her with aggravated burglary,
aggravated robbery, aggravated assault, possession of a firearm
by a restricted person, and obstruction of justice.

¶10 Eventually, the case proceeded to a three-day jury trial. In
support of its case, the State called as witnesses Zack, Jessica,
Tracie, Connie, and Dana, as well as three law enforcement
officers, all of whom testified as to the events described above.
Dana also testified that, as she and Wall were driving away from
the house on the day in question, she asked Wall “if she shot
somebody,” to which Wall responded, “Yes, I did. He threatened
to take my gun away.”

¶11 One of the testifying officers was a detective (Detective),
who described, and played for the jury, certain recorded phone
calls Wall had made to her parents from the jail. Detective testified
that, during one call, Wall’s mother asked, “So you had your gun
with you and you shot him?,” after which there was a twelvesecond pause in the conversation before Wall finally said, “We got
in a tussle and somebody had a gun and the guy got shot.” Wall’s
mother then asked who had the gun, to which Wall responded, “I
don’t know, Mom.” Detective also testified that, during another
call, Wall’s father said, “Wish you wouldn’t have ever picked up
that weapon,” to which Wall responded, “I didn’t claim it.” Wall’s
trial counsel (Counsel) lodged no objections to Detective’s
testimony about the conversations between Wall and her parents.

¶12 After the State presented its case, Wall took the stand to
testify in her defense. She told the jury that she did not go into
Jessica’s house prior to Jessica arriving at the house. Wall stated
that, after she finally went into the house, Jessica “handed [her]
the phones and the box [of car parts].” Wall also claimed that she
“wasn’t even near a hoverboard” and never tried to take the


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                            State v. Wall


hoverboard. In contrast to Zack’s testimony, Wall stated that Zack
“kind of appeared behind” her and “started yelling at” her. Wall
testified that she wanted to leave the house, but that as she was
“walking up the stairs” to leave, Zack was “pushing [her] back
and pulling on [her] hoodie and calling [her] a dumb [expletive].”
Wall stated that Zack continued to threaten her once they got
outside onto the driveway and that she “felt attacked” because
they were “in between a van and the wall,” which was “just a
really tight space.” Wall testified that she “was trying to get to
[her] car” when Zack “pushed [her] one last time,” at which point
Wall “turned around to face him.” Wall claimed that she saw Zack
“pull something out,” which Wall recognized as a gun, and that
she “dropped everything” and “grabbed at it.” Wall testified that
she and Zack were “going back and forth with [the gun]” when
the gun went off, causing Zack to fall to the ground. Wall stated
that, after the gun went off, she “picked everything up” and “ran
to [her] car” to “get away.” Wall acknowledged that, after leaving
the house, she drove to a convenience store, where she “threw”
the phones in the dumpster because “they were broken,” and
where she “tossed” the gun behind a pallet near the dumpster
because she “just wanted it away from [her]” and because she
knew she was not lawfully allowed to possess it.

¶13 After the evidence was presented, the trial court instructed
the jury. With regard to “reasonable doubt,” the court told the jury
that “proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant’s guilt.” (Emphasis added.)
Earlier, Counsel had objected to this instruction, asserting that the
phrase “firmly convinced” was “more closely aligned to
preponderance of the evidence rather than ‘beyond a reasonable
doubt’” and that it was unconstitutionally vague. The State had
argued in response that the “firmly convinced” language was
derived from the Model Utah Jury Instructions and that this
particular instruction had been approved by the Utah Supreme
Court. The trial court overruled the objection. But while Counsel
objected to the “reasonable doubt” instruction, Counsel lodged no



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                            State v. Wall


objection to the aggravated burglary instruction or to the
instructions regarding jury unanimity. In particular, Counsel
made no request for an instruction regarding affirmative defenses
to theft or for an instruction regarding specific jury unanimity.

¶14 Thereafter, the attorneys presented closing arguments. As
relevant here, the State argued that, with regard to the obstruction
of justice charge, Wall had violated the relevant statute both by
“hid[ing]” the gun and by “disposing” of the cell phones because
“she didn’t want those [items] tied back to her.” And in its rebuttal
argument, the State also claimed, in reference to the jail phone
calls, that “[e]ven [Wall’s] parents know that she was in
possession of a gun in this case.”

¶15 After deliberation, the jury found Wall guilty as charged
on all five counts. Later, the trial court held a hearing to consider
the appropriate sentence. At that hearing, Zack addressed the
court and stated (among other things) that the shooting had
“significantly changed [his] life.” He told the court that he
“walk[s] with a limp,” that he “has pain constantly in [his] hip,”
and that he has “had to change careers” because he “can’t do any
hard labor anymore.” Finally, he stated that the shooting also
“change[d] [him] in a good way . . . because [he] got clean off
drugs.” At the end of the hearing, the court sentenced Wall to
prison, with the sentences on the various convictions to run
concurrently to each other. In making its decision, the court relied
heavily on “the catastrophic injury” that Zack sustained from the
shooting. And the court stated that it “just simply [did] not believe
[Wall’s] narrative” about the gun being Zack’s and that it was
“absolutely convinced” that Wall “went there with the gun” and
that she “brandished” the gun.

¶16 Later, in connection with this appeal, Wall filed a motion—
pursuant to rule 23B of the Utah Rules of Appellate Procedure—
asking us to remand this case to the trial court for additional
factfinding. In connection with that filing, Wall submitted



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                           State v. Wall


affidavits from Counsel and from Wall’s sister indicating that, “[a]
few days after” the sentencing hearing, Zack was admitted to jail,
was “not limping,” and was “so high that he had to be checked
into the medical section to come down off of drugs.”


            ISSUES AND STANDARDS OF REVIEW

¶17 Wall now appeals her convictions, and she presents two
issues for our review. First, Wall argues that Counsel rendered
constitutionally ineffective assistance in several respects. “When
a claim of ineffective assistance of counsel is raised for the first
time on appeal, there is no lower court ruling to review and we
must decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Popp, 

, 

 (cleaned up).

¶18 Second, Wall claims that the trial court erred in denying
her request to remove the “firmly convinced” language from the
reasonable doubt jury instruction. “A challenge to a jury
instruction as incorrectly stating the law presents a question of
law, which we review for correctness.” State v. Salgado, 

, 

 (cleaned up).


                            ANALYSIS

           I. Ineffective Assistance of Counsel Claims

¶19 We turn first to Wall’s claims that Counsel rendered
ineffective assistance. To succeed on such claims, a defendant
must make a two-part showing. First, “the defendant must show
that counsel’s performance was deficient,” which “requires
showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 

 (1984).
Second, “the defendant must show that the deficient performance



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                            State v. Wall


prejudiced the defense,” which “requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” 

 A defendant must prove both
elements to be successful. See 

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

,

 (cleaned up). In evaluating the reasonableness of
counsel’s actions, courts will often look to whether the actions
counsel took were motivated by trial strategy. See State v. Scott,

, 

 (“To be sure, the performance
inquiry will often include an analysis of whether there could have
been a sound strategic reason for counsel’s actions.”). And while
“the ultimate question is not whether there was a possible
strategic reason for counsel’s conduct, but instead whether that
conduct was objectively reasonable,” see 

 “[i]f it appears
counsel’s actions could have been intended to further a reasonable
strategy, a defendant has necessarily failed to show unreasonable
performance,” State v. Ray, 

, 

.

¶21 The second part of the test requires defendants to show
that they were prejudiced by counsel’s performance. “Prejudice
exists when there is a reasonable probability that the case would
have had a different outcome had trial counsel not performed
deficiently.” State v. Whytock, 

, 

. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome” of the proceeding.
Strickland, 

. In assessing prejudice, we “consider the
totality of the evidence before the judge or jury and then ask if the
defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent the
errors.” State v. Garcia, 

, 

 (cleaned up).

¶22 “Prejudice analysis is counterfactual. To decide whether a
trial affected by error is reasonably likely to have turned out



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                            State v. Wall


differently we have to consider a hypothetical—an alternative
universe in which the trial went off without the error.” State v.
Ellis, 

, 

; see also State v. Soto, 

, 

 (“Under a counterfactual analysis, we
consider whether, in the absence of improperly admitted
evidence, the likelihood of a different outcome is sufficiently high
to undermine our confidence in the verdict.” (cleaned up)).

¶23 In this case, Wall makes four separate ineffective assistance
arguments. First, she asserts that Counsel was ineffective for not
requesting that an instruction on an affirmative defense to theft
be added to the jury instructions regarding the aggravated
burglary charge. Second, Wall argues that Counsel was ineffective
for not requesting a specific unanimity instruction on the
obstruction of justice charge. Third, Wall contends that Counsel
rendered ineffective assistance by not objecting to Detective’s
testimony and to the State’s closing argument about the jail phone
calls between Wall and her parents. And fourth, Wall asserts that
Counsel was ineffective for not filing a motion, pursuant to rule
60(b) of the Utah Rules of Civil Procedure, after the sentencing
hearing; she asserts that Counsel later discovered that Zack had
made material misrepresentations at that hearing about being
clean from drugs and about having a limp. Wall acknowledges
that the current record does not support this fourth claim, but she
has filed a motion, pursuant to rule 23B of the Utah Rules of
Appellate Procedure, asking us to remand this case to the trial
court for additional factfinding. We address each of Wall’s four
arguments, in turn.

A.     Aggravated Burglary Instructions

¶24 Wall’s first claim is that Counsel was ineffective for “failing
[to] ensure that the jury was properly instructed on the
[aggravated] burglary charge.” Specifically, Wall asserts that the
jury should have been instructed on one of the affirmative
defenses to theft, namely, that a defendant is not guilty of theft if



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                            State v. Wall


the defendant “acted under an honest claim of right to the
property or service involved” or “in the honest belief that the
actor had the right to obtain or exercise control over the property
or service in the manner the actor obtained or exercised control.”
Utah Code § 76-6-402(3). On this first claim, Wall fails to meet her
burden of showing either deficient performance or prejudice.

¶25 Wall was not directly charged with theft. But she was
charged with aggravated burglary, a crime that requires the State
to prove that Wall had “enter[ed] or remain[ed] unlawfully in a
building . . . with intent to commit” one of several enumerated
crimes, including (as relevant here) theft or assault. See id. § 76-6-
202(2). And here, the State argued that Wall had entered or
remained in Jessica’s house for the purpose of committing both
theft and assault. With regard to theft specifically, the State
presented evidence that Wall had taken, or at least tried to take,
both the hoverboard and the cell phones.

¶26 The specific instruction Wall now asserts that Counsel
should have asked for—regarding the “honest claim of right”
defense to theft—thus would have applied to only one of at least
three potential avenues the State put forward as to how Wall
committed the relevant element of burglary. The instruction likely
would have applied to the State’s assertion that Wall committed
burglary by entering or remaining in Jessica’s house to take the
cell phones: Wall testified that she believed the phones were hers
and that she had a right to possess them. But it would have had
no application to the State’s assertion that Wall committed
burglary by entering or remaining in Jessica’s house to take the
hoverboard, because there is no evidence that Wall believed the
hoverboard belonged to her or that she had a right to take it. And
it likewise would have had no application to the State’s assertion
that Wall committed burglary by entering or remaining in
Jessica’s house for the purpose of committing an assault.




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                            State v. Wall


¶27 But with regard to the one pathway to which the requested
instruction might have been relevant, the instruction was
somewhat inconsistent with Wall’s own trial testimony regarding
the phones. As Wall recounted the events, she didn’t actually end
up needing to take the phones after all because Jessica simply
handed them over to Wall upon Wall’s request.

¶28 Under these circumstances, a reasonable attorney could
have decided to forgo asking for an instruction regarding the
“honest claim of right” defense to theft. First, Counsel could
reasonably have believed that relying on an “honest claim of right
defense” regarding the phones was too inconsistent with Wall’s
testimony. In this vein, our supreme court has determined that an
attorney’s decision not to pursue alternative defenses does not
necessarily indicate that counsel’s performance was deficient. See
State v. Barela, 

, ¶¶ 20–24, 

 (concluding that
it was not deficient performance for an attorney to elect not to
advance “an alternative theory” that would have required the
attorney “to openly entertain the possibility that his client was
lying”); see also State v. Campos, 

, 

 (stating that “any election between inconsistent defenses is a
legitimate exercise of trial strategy rather than ineffective
assistance of counsel,” and that, for instance, counsel “cannot be
deemed ineffective for failing to request a jury instruction on
diminished capacity when the defendant has denied all
involvement in the crime” (cleaned up)). And second, Counsel
might have reasonably believed that the instruction was not
worth asking for because it would not have been applicable to the
State’s other two theories as to how Wall had committed burglary.
Given these facts, Counsel could have reasonably chosen to forgo
any request for an instruction regarding the “honest claim of
right” defense to theft. See State v. King, 

,

 (stating that where “there was little, if anything, to be
gained” by making the request, counsel “could reasonably have
decided not to bother”).




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                            State v. Wall


¶29 Moreover, Wall’s claim also fails under a prejudice analysis
because we perceive no reasonable probability that, in a
hypothetical alternative trial in which the jury was instructed on
the “honest claim of right” defense to theft, Wall would have
obtained a better outcome on the aggravated burglary charge.
Significant here is the jury’s decision to convict Wall of
aggravated robbery, a charge specifically aimed at the hoverboard
incident and Wall’s brandishing of her gun, thus indicating that
the jury completely believed the core of the State’s evidence
regarding the other two pathways to aggravated burglary: that
Wall had unlawfully tried to take the hoverboard and used a
dangerous weapon in the course of that effort. A jury that was
persuaded by that part of the State’s case would almost certainly
have been persuaded by the State’s related arguments that Wall
had committed burglary by remaining in the house for the
purpose of taking the hoverboard or to commit an assault.

¶30 For all of these reasons, then, Counsel did not render
constitutionally ineffective assistance by not requesting, in
connection with the aggravated burglary charge, an additional
instruction regarding this affirmative defense to theft.2

B.     Unanimity Instruction on Obstruction of Justice

¶31 Second, Wall asserts that Counsel was ineffective because
he did not request a specific unanimity instruction on the
obstruction of justice charge. Here, Wall claims that since the State
charged her with only one count of obstruction of justice but
offered evidence of two ways in which she had committed that


2. In her rule 23B motion, Wall included—apparently “[o]ut of an
abundance of caution”—a declaration “making clear that
[Counsel] did not ask for . . . affirmative defense jury
instructions.” We have assumed, for purposes of our analysis, that
Counsel did indeed not make any such request, and therefore we
need not consider further this portion of Wall’s rule 23B motion.


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                            State v. Wall


crime, she was entitled to an instruction informing the jury that
they needed to reach unanimous agreement as to which act Wall
had committed that constituted obstruction of justice. On these
facts, Wall was likely entitled to such an instruction had one been
requested. We even assume, for purposes of our analysis but
without deciding, that Counsel performed deficiently by not
asking for such an instruction. But we nevertheless reject Wall’s
claim, because we conclude that even if such an instruction had
been given, there is no reasonable probability that the verdict on
the obstruction of justice charge would have been any different.

¶32 Wall admits that, after leaving Jessica’s house on the day in
question, she threw the phones in the dumpster and put the gun
under a shipping pallet behind the dumpster. Thus, there is no
dispute that Wall committed the acts in question. But Wall
contends that she committed these acts without the requisite
criminal intent: she claimed she threw the phones in the dumpster
because they were broken and that she put the gun behind the
dumpster because she was a felon and could not lawfully possess
the gun and because she “wanted [the gun] away from [her].” For
purposes of our analysis, we assume the veracity of Wall’s
assertions regarding her mental state. And we even assume,
arguendo, that jurors might have believed that Wall was not
guilty of obstructing justice for throwing the ostensibly broken
phones into the dumpster. But even with those assumptions well
in mind, Wall is still unquestionably guilty of obstruction of
justice by placing the gun under the pallet behind the dumpster.

¶33 Utah’s obstruction of justice statute states, in relevant part,
that “an actor commits obstruction of justice . . . if the actor, with
intent to hinder, delay, or prevent the investigation . . . of any
person regarding conduct that constitutes a criminal offense, . . .
conceals . . . an item or other thing.” Utah Code § 76-8-306(2)(c).
Thus, if Wall hid the gun behind the dumpster “with intent to
hinder [or] delay” the investigation of crimes committed during
the incident at Jessica’s house—potentially including crimes



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                             State v. Wall


resulting from the shooting or crimes committed by mere
possession of the gun—she committed obstruction of justice. See
State v. Paule, 

, 

 (“[W]hen an
obstruction of justice charge is predicated on the obstruction of an
investigation, . . . the mens rea for that crime requires that a
defendant have the specific intent to hinder an investigation into
what the defendant believes is the actus reus of a separate crime.”).

¶34 At the time Wall put the gun behind the dumpster, she
knew that the gun had just been used to shoot Zack in the
midsection and that Zack was injured. It is rather obvious, just
from these facts, that law enforcement would soon be involved in
the matter and would be investigating the circumstances of the
shooting. And any such investigation would naturally lead
officers to inquire about the weapon used in the shooting, the
identity of the shooter, and the weapon’s current location. Such
queries would also naturally lead officers to investigate whether
the shooter had lawfully possessed the weapon. Knowing all of
these facts, and knowing that she was driving away from the
scene of the shooting, Wall elected to hide the gun under a
shipping pallet behind a convenience store dumpster, placed
neatly atop its holster. And she did so, by her own admission,
because she knew she wasn’t permitted to have the gun and
because she “just wanted it away from [her].”

¶35 On these facts, and even indulging the described
assumptions, there is no reasonable probability that a factfinder
would find Wall not guilty of obstruction of justice for hiding the
gun. As noted above, prejudice analysis is “counterfactual” and
requires us to envision a hypothetical alternative trial in which the
jury received a specific unanimity instruction. See State v. Ellis,

, 

. For purposes of our analysis, we
assume that, in such a trial, it is at least possible that a factfinder
might conclude that Wall did not have the requisite mental state
to be guilty of obstruction of justice by throwing into a dumpster
broken phones that—according to her—had been freely given to



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                             State v. Wall


her. But we perceive no reasonable probability of an acquittal
regarding Wall’s actions in hiding the gun behind the dumpster.
Stated another way, a properly instructed jury, knowing that it
needs to reach unanimous agreement about which acts
constituted obstruction of justice, would unanimously agree, on
these facts, that Wall had committed that crime by carefully
hiding behind the dumpster—for the express purpose of getting
that gun away from her—the very gun that had just been used in
a shooting and that she knew she could not lawfully possess. In
other words, Wall’s own admissions—viewed in context under
these circumstances—constitute an acknowledgment of “specific
intent to hinder an investigation” into what she believed was “the
actus reus of a separate crime.” See Paule, 

.

¶36 We therefore reject Wall’s second ineffective assistance
claim on prejudice grounds.

C.     Jail Phone Calls

¶37 Next, Wall asserts that Counsel was ineffective for not
objecting to either Detective’s testimony or the State’s closing
argument about the jail phone calls between Wall and her parents.
In particular, Wall asserts that the statements made and questions
asked by Wall’s parents—who are not “party opponents”—
during those calls are hearsay, and that Counsel should have
lodged a hearsay objection to at least those parts of the testimony
and argument that concerned statements made and questions
asked by Wall’s parents. See Utah R. Evid. 801(c), (d)(2). But in our
view, Counsel did not perform deficiently by opting not to lodge
such objections.

¶38 Our evidentiary rules define “hearsay” as “a statement that
. . . the declarant does not make while testifying at the current trial
or hearing; and [that] a party offers in evidence to prove the truth
of the matter asserted in the statement.” 

 R. 801(c). But those
same rules exempt statements made by an “opposing party” from
the definition of hearsay. 

 R. 801(d)(2). Wall does not contend


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                            State v. Wall


that her own statements during the jail phone calls were
inadmissible or that Counsel should have objected to their
admission; in fact, she acknowledges that her own statements
“were admissible because they were statements of a party
opponent.” But Wall argues that the comments made by her
parents during the jail phone calls are hearsay and are not subject
to any exception to the hearsay rule. The State, by contrast, asserts
that the parents’ comments were—at least originally—not
admitted for the truth of the matters asserted but, instead, to show
their effect on Wall and to provide context for the answers and
responses Wall made to them.

¶39 We agree with the State that a reasonable attorney could
have believed—at least during the initial presentation of the
phone calls as part of Detective’s testimony—that the parents’
comments were not being offered for their truth and that they
would be admissible at least to the extent of providing context for
Wall’s responses to them. For instance, at one point Wall’s mother
asked her, “So you had your gun with you and you shot him?”
Immediately after discussing that statement with Detective, the
State asked about Wall’s reaction to that question, specifically
inquiring of Detective whether there had been “a significant
pause after” the mother’s question, and Detective answered in the
affirmative. The audio recording of the extent of that pause
(which was twelve seconds long) and Wall’s response thereafter
(“We got in a tussle and somebody had a gun and the guy got
shot.”) was then played for the jury. At this point in the trial,
Counsel could have reasonably assumed that the mother’s
question was being offered not for the truth of the matter
asserted—that Wall owned a gun—but, instead, for the purpose
of showing that Wall didn’t take the opportunity to deny, to her
own mother, that the gun used in the incident was hers.

¶40 The State also asked Detective about another question
Wall’s mother asked, namely, who had the gun during the
encounter. In response to this question, Wall stated, “I don’t



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                            State v. Wall


know, Mom.” And during another call, Wall’s father stated that
he wished Wall “wouldn’t have ever picked up that weapon,” to
which Wall responded, “I didn’t claim it.” Counsel could have
similarly and reasonably believed that the parents’ comments
were admissible not for the truth of the matters asserted (e.g., that
Wall’s father truly did wish that Wall hadn’t picked up the gun)
but, instead, to provide context for Wall’s responses.

¶41 Had Counsel made the objection Wall now asserts he
should have made, the comments made by Wall’s parents
wouldn’t have been stricken from the record; indeed, the best
outcome Counsel could have hoped for would have been a
limiting instruction informing the jury that it could not consider
the parents’ comments for their truth but that it could readily
consider those comments as context for the responses Wall made
to them. Counsel could have reasonably determined not to seek
such an instruction, on the basis that it would have drawn
additional attention to Wall’s responses. See State v. King, 

, 

 (“[W]e have often held that decisions
regarding whether to move to strike and seek a curative
instruction are highly strategic ones that courts are loathe to
second-guess.”); see also State v. Garrido, 

,

 (“Choosing to forgo a limiting instruction can be a
reasonable decision to avoid drawing attention to unfavorable
testimony.”). We therefore conclude that Counsel did not perform
deficiently when he opted not to object to Detective’s testimony
about the comments Wall’s parents made during the phone calls.

¶42 Our analysis is slightly different regarding Counsel’s
decision not to object to the State’s closing argument about those
comments. While Counsel could reasonably have believed,
during Detective’s testimony, that the State was not offering the
parents’ comments for their truth, any such belief became
unreasonable as soon as the prosecutor argued, during closing
and in reference to the parents’ comments during the jail phone
calls, that “[e]ven [Wall’s] parents know that she was in



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                           State v. Wall


possession of a gun in this case.” At that point, it became apparent
that the State was using Wall’s mother’s question—“So you took
your gun with you and shot him?” (Emphasis added.)—as
evidence that the gun was indeed Wall’s.

¶43 But even here, Counsel was faced with the same difficult
choice. Lodging an objection would not have resulted in the
parents’ comments being stricken from the record; it would
simply have resulted in the court providing a limiting instruction
telling the jury that it could not consider the parents’ comments
for their truth but only to provide context for Wall’s admissible
responses. And Counsel could have made the same decision at
this point too; he could reasonably have determined not to seek
such an instruction because he didn’t want to draw additional
attention to Wall’s responses. 3 See King, 

;
see also Garrido, 

.

¶44 For these reasons, Wall has not carried her burden of
demonstrating that Counsel rendered ineffective assistance by


3. In addition, Wall has also failed to demonstrate prejudice on
this claim. Many of the parents’ comments were unremarkable
and carried little possibility of prejudice. And even Wall’s
mother’s question using the phrase “your gun” and implying that
Wall’s mother knew full well that Wall owned a gun was not, in
the totality of the circumstances, prejudicial here. Several
people—including Wall’s friend Dana—testified that they saw
Wall with a gun that day and at Jessica’s house. At the sentencing
hearing, the trial court offered its view that the evidence
indicating that the gun was Wall’s was quite overwhelming and
that the court was “absolutely convinced” that Wall “went there
with the gun” and that she “brandished” the gun. Under the
circumstances, we see no reasonable probability of a different
outcome in a hypothetical alternative trial in which Wall had
requested, and been given, a limiting instruction regarding the
parents’ comments.


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                           State v. Wall


opting not to object to testimony and argument about the
comments Wall’s parents made during the jail phone calls.

D.     Rule 23B Motion

¶45 Finally, Wall argues that Counsel was ineffective because
he did not file a motion for relief from judgment, pursuant to rule
60(b) of the Utah Rules of Civil Procedure, following the
sentencing hearing. Wall acknowledges that this claim is not
supported by documents currently in the record submitted to us.
Instead, she has filed a motion, pursuant to rule 23B of the Utah
Rules of Appellate Procedure, asking us to remand the case to the
trial court for additional factual findings regarding this claim.
Specifically, Wall alleges that Zack was untruthful at the
sentencing hearing when he told the court that he was not on
drugs and that he walked with a limp because of the shooting.
Wall contends that, had the court known the true facts at the time
of the sentencing hearing, it wouldn’t have sentenced her to
prison and, instead, would have afforded her the privilege of
probation. We are unpersuaded by Wall’s arguments because any
such motion would have been futile.

¶46 Rule 23B “provides a mechanism for criminal defendants
to supplement the record with facts that are necessary for a
finding of ineffective assistance of counsel but which do not
appear in the record.” State v. Griffin, 

, 

. A “motion seeking rule 23B remand must meet several
requirements: (1) it must be supported by affidavits alleging facts
outside the existing record, (2) the alleged facts must be nonspeculative, and (3) the alleged facts, if true, must establish both
elements of a traditional ineffective-assistance claim, i.e.,
counsel’s deficient performance and resulting prejudice.” State v.
Tirado, 

, 

; see also Utah R. App.
P. 23B(b).

¶47 In support of her motion, Wall submitted declarations from
her sister and Counsel stating that Wall was told by jail guards


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                            State v. Wall


that, just a few days after the sentencing hearing, Zack was
booked into the jail and “was not limping and . . . was high on
drugs.” Wall’s sister stated that she had communicated with one
of the guards, who confirmed these facts.

¶48 Wall argues that Counsel was ineffective for not asking the
court, based on this information, to reconsider the sentence. For
purposes of our analysis, we assume without deciding that a rule
60(b) motion is a proper procedural avenue in this context, that
Counsel could have filed such a motion, and that rule 60(b)(3)—
which concerns “misconduct of an opposing party” (emphasis
added)—applies here in any event. Cf. Utah v. Boyden, 

,
¶¶ 24–37, 

 (stating that “the State properly moved
under [rule] 60(b)” in a criminal case (cleaned up)). But even
indulging these assumptions, we nevertheless conclude that, even
if Counsel had filed such a motion, there is no reasonable
probability that it would have been granted or that Wall’s
sentence would have been altered.

¶49 Here, Wall had already stipulated that Zack suffered
serious bodily injury due to the shooting. Additionally, evidence
was presented at sentencing demonstrating that Zack required
extensive medical care and almost died as a result of the shooting.
And our review of the transcript of the sentencing hearing reveals
that the court chiefly relied upon “the nature of the crime,” as well
as the “aggravated nature of” Zack’s life-threatening internal
injuries, in concluding that Wall should be sentenced to prison.
The court did not once mention either Zack’s limp or Zack’s
statement that he was clean and off of drugs.

¶50 Thus, there is no need for a remand for additional factual
findings, because even if we assume, for purposes of our analysis,
that the trial court on remand would make factual findings
entirely in line with the affidavits Wall submitted in connection
with her motion, we would be unable to conclude that Counsel
rendered ineffective assistance by opting not to file a motion



 20220835-CA                     21               

                           State v. Wall


asking the trial court to reconsider its sentence. We simply
perceive no reasonable probability that the court would have
changed its mind had such a motion been filed. See State v. Orton,

, 

 (“Because the decision not to
pursue a futile motion is almost always a sound trial strategy,
counsel’s failure to make a motion that would be futile if raised
does not constitute deficient performance.” (cleaned up)). On that
basis, we deny Wall’s rule 23B motion.

                II. Reasonable Doubt Instruction

¶51 Wall also presents one preserved issue for our review. She
claims that the trial court erred in denying Counsel’s request to
remove the “firmly convinced” language from the jury instruction
regarding reasonable doubt. But here, where the instruction in
question came directly from the Model Utah Jury Instructions
(MUJI) and has been approved by our supreme court, the trial
court did not err by giving the challenged instruction.

¶52 Wall claimed at trial, and argues here, that the instruction’s
use of the words “firmly convinced” to describe the “beyond a
reasonable doubt” standard is inadequate. This portion of Wall’s
brief is thorough and presents some good arguments that might,
in an appropriate case, provide support for a trial judge’s decision
to give a reasonable doubt instruction that does not include the
“firmly convinced” language. But even if we assume that the trial
court here could have properly given the instruction Wall
requested, it does not follow from that assumption that the court
committed error in giving the instruction it gave.

¶53 The instruction in question here was taken directly from
MUJI, and it informed the jury, in relevant part, that “proof
beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant’s guilt.” The fact that the instruction
came from MUJI is not necessarily dispositive; although the
model instructions “provide guidance to attorneys and [trial]
courts about how to instruct a jury,” these instructions “are


 20220835-CA                    22                

                            State v. Wall


merely advisory and do not necessarily represent correct
statements of Utah law.” Meeks v. Peng, 

, 

 (cleaned up). It is incumbent on the litigants and the trial
court, in each case, to make sure that the instructions accurately
convey the law, regardless of whether they come from MUJI.

¶54 But here, the particular instruction at issue has previously
been approved by our supreme court. In State v. Reyes, 

, 

, the court “exercise[d its] supervisory authority
to promulgate for use in the courts of this state” a reasonable
doubt instruction “proposed by the Federal Judicial Center,”
which it set forth in full in its opinion. Id. ¶ 37. Indeed, the court
referred to this instruction as “a ‘safe harbor’ instruction” that, if
given, would insulate a trial court from claims of error. Id. ¶ 38.
The instruction the court gave in this case is substantively
identical—including the “firmly convinced” language—to the
“safe harbor” instruction approved in Reyes.

¶55 We are simply unwilling to ascribe error to a trial court’s
decision to give an instruction that our supreme court has
specifically approved as a “safe harbor.” On that basis, we reject
Wall’s claim that the court erred by giving the approved
instruction containing the “firmly convinced” language.


                          CONCLUSION

¶56 Wall has not carried her burden of demonstrating that
Counsel rendered ineffective assistance in any of the particulars
she asserts. And the trial court did not err in giving a reasonable
doubt instruction that has been approved by our supreme court.

¶57    Affirmed.




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