source: Caselaw Access Project

author: MORTENSEN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Anthony CORONA, Appellant.
    No. 20140321-CA
    Court of Appeals of Utah.
    Filed August 16, 2018
    Debra M. Nelson, Attorney for Appellant
    Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Early one morning, Anthony Corona fired five rounds from a .22 caliber handgun during a staged drug deal in a church parking lot. Four rounds struck Victim in his chest and arm, one of which killed him. Corona and his accomplices, who planned to rob Victim all along, fled, leaving Corona's cell phone at the murder scene. A jury convicted Corona of aggravated murder, aggravated robbery, possession of a firearm by a restricted person, and five counts of felony discharge of a firearm, all despite testimony from Witness that she pulled the trigger, not Corona. Corona challenges his convictions on four grounds: (1) that the trial court erroneously allowed the prosecution to present evidence of a prior shooting; (2) that trial counsel was ineffective for not moving to suppress evidence discovered from Corona's cell phone; (3) that Utah's aggravated murder statute is unconstitutionally disproportionate as applied; and (4) that his trial counsel was ineffective for failing to argue that Corona's convictions for discharge of a firearm should merge with his aggravated murder conviction. We affirm.

BACKGROUND

¶2 A group consisting of Corona's codefendants decided to rob Victim, a drug dealer. The group arranged to meet Victim early one morning in a church parking lot under the guise of a drug deal. Concerned that Victim would be armed and having no firearm of their own, the group enlisted Corona, who had a gun. Corona agreed to assist in the robbery and accompanied the group, all in a single car, to the church parking lot. Corona and another codefendant remained in the car while the other codefendants hid behind a nearby shed. There they waited for Victim to arrive.

¶3 Witness drove Victim to the church parking lot. Victim exited his SUV and moved into the backseat of the car, where Corona and another codefendant waited. The group converged on Victim and a struggle ensued. Corona exited the car, drew his gun, and pointed it at Victim. As the struggle continued, Corona fired several shots at Victim. One shot proved fatal.

¶4 Corona fled on foot. As he fled, Witness told the other codefendants to get in the SUV. Witness drove out of the parking lot with the codefendants, picking up Corona on the way.

¶5 The police soon arrived and secured the scene. The police found Victim slumped over in the back seat of the still-running car, which the police traced to one of the codefendants. They also found Corona's cell phone on the front passenger seat of the car and Victim's cell phone on the floor in the backseat. The police requested a warrant, stating in the supporting affidavit, "By looking in this phone your affiant and assisting investigators hope to identify the victim, suspect or suspects." A warrant was issued that authorized police to "make a search of the above-named or described premises for the ... described property or evidence and if [the police found] the same or any part thereof, to ... retain such property in [police] custody, subject to the order of this court." The police seized and searched the cell phones, which revealed the identities of the phones' owners as well as calls between the two phones in the minutes leading up to the murder.

¶6 The police also recovered fingerprints belonging to some of the codefendants, but none belonging to Corona. Five bullet casings and four bullets were also recovered. A ballistics analysis revealed that the five casings were fired from the same firearm and that the bullets were fired from the same firearm. But because the gun was not recovered, ballistics analysis could not determine whether the shell casings and bullets were fired from the same gun.

¶7 Based on the evidence collected at the scene, the police arrested Corona and the codefendants. All of the codefendants denied involvement at first, but they later admitted involvement and identified Corona as the shooter. The codefendants agreed to testify against Corona in exchange for guilty pleas to reduced charges. The codefendants' identification of the shooter was corroborated by Corona's girlfriend (Girlfriend). Girlfriend initially provided an alibi for Corona, saying that she and Corona were both home at the time of the murder. But, in a follow-up interview seven months later, she told police that Corona had left on the morning of the murder with one of the codefendants and told Girlfriend that he was going to help rob someone and he was taking his gun. Girlfriend further told police that when Corona returned he admitted to shooting Victim and that Corona was upset about having left his cell phone at the murder scene. While she attempted later to distance herself from these statements and go back to her original story that Corona had stayed home, Corona's and Girlfriend's cell phone records showed multiple calls and texts to each other near the time of the murder.

¶8 Girlfriend's second interview also provided investigators with a lead that eventually connected Corona to the murder. Girlfriend made statements to police, which she later recanted, that Corona fired a gun during a different altercation in an AutoZone parking lot. Ballistics analysis showed that the bullet casings recovered at this prior shooting were fired from the same gun as the one used against Victim. Shortly before trial in April 2013, the State filed notice of its intent to introduce rule 404(b) evidence of the AutoZone shooting. The notice included a police report of that shooting. On Corona's motion, the court continued the trial so that the admissibility of this evidence could be fully briefed and analyzed under rule 404(b) of the Utah Rules of Evidence. The court eventually excluded the evidence of the prior shooting, reasoning that the evidence relied "almost entirely" on Girlfriend's inconsistent statements. But the court allowed reconsideration of its decision should "the State develop additional evidence regarding the identity of the shooter ... or the door is opened by [Corona]."

¶9 Four days before trial in January 2014, the State moved for reconsideration, claiming that it had developed additional evidence related to some car molding found at the scene of the AutoZone shooting matching a piece of molding missing from Corona's grandfather's car. The court gave the parties the option to continue the trial and address the rule 404(b) and suppression issues or to have the motions struck as untimely and proceed to trial. Corona agreed to proceed to trial and the court left its prior decision in place, subject to the defense opening the door.

¶10 During the defense's case at trial, Corona called Witness to testify. Witness had made statements to police after the murder that she was waiting in her car when Victim was shot. But at trial, Witness testified that she, not Corona, shot and killed Victim. On cross-examination and over defense counsel's objection, the State questioned Witness about where she had obtained the gun. Witness explained that she received the gun from a friend, not Corona, but refused to identify the friend.

¶11 After Witness testified, the State argued that Witness had opened the door for admission of the evidence of the AutoZone shooting to be used to rebut her testimony. The court allowed the State to present the evidence of the AutoZone shooting, including evidence of the vehicle molding. Corona objected to the admissibility of the evidence and, although he had declined the earlier offer of a continuance before trial, now moved for a continuance, which the court denied.

¶12 The jury convicted Corona on all counts. Corona appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Corona brings four challenges on appeal. First, he contends that the trial court erred in admitting evidence of the prior shooting. A trial court's admission of other-acts evidence is reviewed for abuse of discretion. State v. Thornton , 2017 UT 9, ¶ 56, 391 P.3d 1016.

¶14 Second, Corona contends that his counsel "was ineffective in not pursuing suppression of unconstitutionally seized cellphone evidence." "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. Reid , 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up).

¶15 Third, Corona contends that Utah's aggravated murder statute was disproportionately applied. "The constitutionality of a statute is a question of law reviewed for correctness." State v. Reece , 2015 UT 45, ¶ 18, 349 P.3d 712.

¶16 Fourth, Corona contends that his convictions for discharge of a firearm merge with his conviction for aggravated murder and that his defense counsel was ineffective for not asserting such. Again, we decide a claim of ineffective assistance of counsel raised for the first time on appeal as a matter of law. Reid , 2018 UT App 146, ¶ 17, 427 P.3d 1261.

ANALYSIS

I. Evidence of the Prior Shooting

¶17 Corona contends that the trial court erroneously admitted evidence of the AutoZone shooting in which he had been implicated.

Corona argues four reasons why the evidence was improperly admitted: (1) the evidence "could not properly be used to impeach [Witness]" under rule 608 of the Utah Rules of Evidence ; (2) the evidence "was not proper rebuttal evidence"; (3) the evidence violated rule 404(b) of the Utah Rules of Evidence in that it "was irrelevant, improper character evidence, and more prejudicial than probative"; and (4) "the State's motion to admit the 404(b) evidence was not timely and the denial of a continuance to prepare to meet this evidence [was] prejudicial." We examine these arguments in turn.

A. Evidence of the AutoZone Shooting Was Properly Used to Impeach Witness

¶18 Corona argues that it was improper to use evidence of the AutoZone shooting to impeach Witness's statements that she was the shooter. Citing rule 608 of the Utah Rules of Evidence, he asserts that "the admission of the [prior shooting] was improper because specific bad acts evidence alleged against the defendant cannot be used to attack another witness's credibility for truthfulness." We disagree and conclude that rule 608 does not apply in this instance.

¶19 Rule 608 of the Utah Rules of Evidence governs what evidence may be introduced to attack or support a witness's character for truthfulness or untruthfulness. The AutoZone shooting evidence is not an instance of conduct that attacks or supports Witness's character for truthfulness or untruthfulness; rather, it is substantive evidence that rebuts Witness's testimony that she shot Victim. "[O]nce the defendant offers evidence or makes an assertion as to any fact, the State may cross-examine or introduce on rebuttal any testimony or evidence which would tend to contradict, explain or cast doubt upon the credibility of [that evidence]." See State v. Thompson , 2014 UT App 14, ¶ 30, 318 P.3d 1221 (cleaned up). Accordingly, once defense counsel presented testimony that Witness, not Corona, had the gun, the State could properly use extrinsic evidence to prove that this assertion was arguably, and in the State's view demonstrably, false. The evidence did not address Witness's character for truthfulness or any other character trait. Instead, the evidence presented here provided a basis for the fact finder to conclude that Corona possessed and used the same gun weeks before Victim's murder, contradicting Witness's testimony.

¶20 In Thompson , a sixteen-year-old girl alleged that Thompson had forcibly engaged in sexual acts with her on a specific date between 9:00 and 9:30 a.m. Id. ¶¶ 2-3. Both Thompson and a friend testified that on that date, Thompson was driving a long-haul truck and that they were together on the road by 6:30 a.m. Id. ¶¶ 4-5. Additionally, Thompson put driving logs into evidence to support the testimony. Id. ¶¶ 8-9. The State then offered extrinsic evidence, in the form of testimony of a transportation specialist, to challenge the accuracy of the driving logs. Id. ¶ 11. The transportation specialist presented a computer generated report purporting to prove that the log entries, specifically the distance travelled in the time reported, was "not physically possible." Id. On appeal, Thompson claimed ineffective assistance of counsel, arguing that counsel should have objected to the transportation specialist evidence under rules 404, 405, and 608. Id. ¶ 22. This court rejected the claim, holding, among other things, that rule 608 did not apply. Id. ¶¶ 29-31. This court stated,

[r]ule 608 of the Utah Rules of Evidence expressly incorporates [the limitation on character evidence], stating that extrinsic evidence of specific conduct is not admissible to attack or support a witness's character for truthfulness . See Utah R. Evid. 608(b). But this limitation does not apply to evidence used to directly rebut a witness's testimony or other evidence.

Thompson , 2014 UT App 14, ¶ 29, 318 P.3d 1221.

¶21 We reach a similar conclusion here. Because the evidence of the AutoZone shooting directly rebuts Witness's testimony and does not go to Witness's general character for truthfulness, it is not the type of evidence contemplated under rule 608. See State v. Green , 578 P.2d 512, 514 (Utah 1978) (explaining that witness testimony is subject to "cross-examination on any matter which would tend to contradict, explain or cast doubt upon the credibility of [that] testimony,"

and that "testimony or evidence which is purposed to those same objectives may be introduced in rebuttal"); State v. Reed , 820 P.2d 479, 482 (Utah Ct. App. 1991) (same). We therefore reject Corona's argument.

B. Evidence of the AutoZone Shooting Was Proper Rebuttal Evidence

¶22 Corona argues that "when impeaching a witness with 404(b) evidence, it is axiomatic that the prior bad acts alleged are against the testifying witness, not another person." We do not share this view. As explained above, such an axiom may be true when uncharged conduct is used to support or attack that witness's character for truthfulness , but not when the prior bad act is used to contradict the witness's testimony . Corona points to no authority adopting the argument he asserts.

¶23 Instead, "once the defendant offers evidence or makes an assertion as to any fact, the State may cross-examine or introduce on rebuttal any testimony or evidence which would tend to contradict, explain or cast doubt upon the credibility of his testimony." State v. Thompson , 2014 UT App 14, ¶ 30, 318 P.3d 1221 (cleaned up). Corona presented evidence, through Witness, that Witness obtained the gun from a friend and used it to shoot Victim. The evidence of the AutoZone shooting contradicts and casts doubt upon the credibility of that testimony. We therefore conclude that the evidence of the AutoZone shooting was proper rebuttal evidence.

¶24 Corona also argues that the evidence was improperly admitted because the State, not Corona, opened the door for admission of the evidence on the cross-examination of Witness. Corona relies on State v. Saunders , 1999 UT 59, 992 P.2d 951, to support his argument. In Saunders , the Utah Supreme Court held that defense counsel did not open the door to certain evidence where the State had "already introduced a great deal" of related evidence and that defense counsel was "entitled, indeed required as a practical matter, to rebut or explain that evidence by [the defendant's] testimony." Id. ¶ 22. The facts here are inapposite. The first time any evidence was introduced that Witness had the gun and shot Victim was during Witness's testimony. The testimony was not used to explain evidence that was previously introduced; rather, it was entirely new. And the State was entitled to respond to the evidence adduced by the defense. Thus, we reject Corona's argument that the State, not Corona, opened the door for rebuttal evidence.

C. Evidence of the Prior Shooting Was Introduced for a Proper Noncharacter Purpose

¶25 Corona further argues against the admittance of the evidence of the prior shooting, claiming that "[t]he only purpose the evidence served was an improper and irrelevant one-to suggest that Corona was a dangerous person and was likely the shooter because he had been involved in another shooting." We disagree.

¶26 Rule 404(b) of the Utah Rules of Evidence allows evidence of prior bad acts to be admitted so long as it is offered for a noncharacter purpose "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Utah R. Evid. 404(b)(2). Our supreme court has articulated a three-part test for the admittance of rule 404(b) evidence: "the prior bad-act evidence (1) must be offered for a genuine, noncharacter purpose, (2) must be relevant to that noncharacter purpose, and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice." State v. Reece , 2015 UT 45, ¶ 57, 349 P.3d 712 (cleaned up). Our supreme court added that "matters of conditional relevance must also meet the preponderance of the evidence standard under rule 104(b)." Id. (cleaned up).

¶27 The trial court's analysis of the evidence sufficiently met these standards. First, the trial court concluded that evidence was admitted for a noncharacter purpose-identity. Second, the court concluded that the evidence was relevant to the identity of the shooter in this case. Third, the trial court concluded that the evidence should not be excluded under rule 403, which provides that a court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice." Utah R. Evid. 403.

¶28 Indeed, the evidence goes to the identity of the shooter by showing who had possession of the murder weapon. The evidence contradicted Witness's testimony that she, not Corona, possessed the gun in the weeks prior to the altercation with Victim. And, while conducting its rule 403 analysis, the trial court concluded that, in addition to the inconsistent testimony of Girlfriend that led to the investigation which matched the bullet casings from both shootings, the car molding evidence "added to the strength of the evidence." The trial court was also careful to limit the evidence of the prior shooting to facts relevant to the shooter's identity, expressly excluding "the injuries of the alleged victim." Under these facts, we cannot agree with Corona's challenge. See State v. Clark , 2014 UT App 56, ¶¶ 21, 26, 322 P.3d 761 (affirming the trial court's decision to allow evidence of a prior shooting to show identity where the same gun was used in both shootings).

D. Disclosure of Rule 404(b) Evidence Was Not an Abuse of Discretion

¶29 Next, Corona asserts that the trial court abused its discretion when it denied his motion for a continuance mid-trial after the State sought to introduce the car molding evidence. The trial court found that the notice of the molding evidence was sufficient under rule 404(b) and the timing of the disclosure was justified by the State's late discovery and receipt of the report. The trial court ruled the notice reasonable because "it [was] not so prejudicial to the defendant that they couldn't have done what they needed to do before the trial" and "the State provided that information ... as soon as the investigator was able to obtain [it]." Given the long-in-advance notice the State had provided as to the specific bad act at issue and the general nature of the evidence anticipated in the particular circumstances of this case, we cannot conclude that the trial court abused its discretion.

¶30 Rule 404(b) requires "reasonable notice of the general nature" of the bad-acts evidence the State intends to introduce, and the rule expressly provides that such notice may even be appropriate "during trial if the court excuses lack of pretrial notice on good cause shown." Utah R. Evid. 404(b)(2).

¶31 We see no abuse of discretion for three reasons. First, the State provided notice of the general nature of the evidence, including Girlfriend's testimony and the ballistics testing, well in advance of the trial. This made Corona generally aware of the evidence and allowed him to prepare to challenge it. We further see no flaw as to the requirement to disclose the nature of the evidence the State intended to offer. Certainly, the notice provided in April 2013, which included a police report, gave notice of the specific bad act at issue and identified most of the evidence connected with the circumstances. Accordingly, Corona was on notice that the issue was likely to come up at trial.

¶32 Second, while the State did not identify the evidence matching the car molding until six days before trial, the State moved quickly to acquire the evidence once it became apparent how Witness would testify. After acquiring the evidence, the State produced it to Corona within one day. Moreover, the trial court's earlier ruling that excluded the bad-acts evidence was always conditioned on whether "the door is opened at trial for either impeachment or rebuttal purposes." The trial court later determined that the door had indeed been opened. The trial court's ruling to allow short notice of the molding evidence days before trial is warranted under the particular circumstances of this case because (1) the State gave notice within one day of receiving the report of the molding match and (2) Corona had previously been put on notice that the door could be opened for such evidence.

¶33 In this regard, it is of little import that the trial court first excluded the evidence and then reversed its pretrial determination. The trial court had already noted that its pretrial ruling was subject to what occurred at trial. When the court made its ruling, it was viewing the question of admissibility in light of what had actually taken place at trial, as opposed to any pretrial determination. In other words, the trial court viewed the evidentiary question in light of Witness testifying that she had possessed the murder weapon during the relevant time period.

¶34 Third, the court found that the disclosure several days before trial was not so late that Corona could not address it. While Corona has challenged this finding, he has not demonstrated any concrete reason why he did not have time to prepare or adequately respond.

¶35 Under these circumstances, the trial court's determination was not so unreasonable as to constitute an abuse of discretion. Therefore, Corona's challenge fails.

II. Cell Phone Evidence

¶36 Corona contends that his counsel "was ineffective in not pursuing suppression of unconstitutionally seized cellphone evidence." We reject this claim because law enforcement sought and obtained a warrant before searching the phone's contents, and Corona does not challenge the validity of the warrant on appeal.

¶37 To prevail on a claim of ineffective assistance of counsel, a party must show that "counsel's representation fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious ...." Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

¶38 Corona has failed on appeal to prove that his Fourth Amendment claim is meritorious because he has mischaracterized the nature of the search. Corona's entire argument is premised on the search of the cell phone being a warrantless search. However, a warrant was obtained. The warrant application unambiguously sought authority to search the contents of the cell phone. And while we acknowledge that there may be issues with the language employed in the warrant itself, Corona, in his principal brief, presents no argument that the warrant was constitutionally infirm. We will not conduct that analysis on his behalf. See State v. Beckering , 2015 UT App 53, ¶ 35, 346 P.3d 672. Without this argument, Corona has not established that a motion to suppress would have been successful. Thus, Corona fails to meet his burden of persuasion in proving his Fourth Amendment claim. State v. MacNeill , 2017 UT App 48, ¶ 84, 397 P.3d 626. Accordingly, we discern no ineffective assistance as to trial counsel on this point.

III. Application of Utah's Aggravated Murder Statute

¶39 Corona next challenges the constitutionality of Utah's aggravated murder statute, arguing that one of the aggravating circumstances, felony discharge of a firearm, is disproportionate and violates the state and federal constitutions. However, because Corona's enhanced conviction is independently supported under another aggravating circumstance, i.e., aggravated robbery, his challenge fails.

¶40 Utah's aggravated murder statute enhances criminal homicide to aggravated murder if, among other things, "the homicide was committed incident to ... aggravated robbery," or if the actor was previously convicted of "felony discharge of a firearm." Utah Code Ann. §§ 76-5-202(1)(d), -202(1)(j)(xvii) (LexisNexis 2017). Corona was convicted of aggravated murder based on a previous felony conviction for discharge of a firearm. The jury also found Corona guilty of aggravated robbery. Both factors independently support Corona's aggravated murder conviction, and Corona does not challenge the constitutionality of the statute under the enhancement for aggravated robbery.

¶41 Because Corona's aggravated murder conviction is supported by his conviction for aggravated robbery, any decision we make regarding the constitutionality of the felony discharge of a firearm enhancement would not affect Corona's constitutional rights. Therefore, the challenge fails.

IV. Merger

¶42 Finally, Corona contends that his counsel was ineffective for failing to argue that the five shots he fired at Victim-which were the basis of his five separate convictions for felony discharge of a firearm-should merge with his aggravated murder conviction. However, Corona fails to carry his burden of persuasion that his counsel was ineffective.

¶43 To prevail on an ineffective assistance of counsel claim, a party must "demonstrate that (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different." State v. Lee , 2006 UT 5, ¶ 37, 128 P.3d 1179 (cleaned up), overruled on other grounds by State v. Wilder , 2018 UT 17, 420 P.3d 1064. And, as with his ineffective assistance claim regarding the alleged Fourth Amendment violation, see supra Part II., Corona must show that his merger claim is meritorious in order to succeed on his claim of ineffective assistance of counsel. See Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

¶44 In Utah, merger is defined under Utah Code section 76-1-402. The merger statute "contains two merger tests." State v. Wilder , 2018 UT 17, ¶ 22 n.6, 420 P.3d 1064. The first, under subsection (1) of the statute, addresses whether the same criminal act forms the basis for multiple criminal charges. See id. ¶ 35. The second test, found under subsection (3) of the statute, "addresses included offenses-predominantly lesser-included offenses." Id . ¶ 22 n.6.

¶45 Under subsection (1),

[a] defendant may be prosecuted in a single criminal action for all separate offenses arising out of a single criminal episode; however, when the same act of a defendant under a single criminal episode shall establish offenses which may be punished in different ways under different provisions of this code, the act shall be punishable under only one such provision.

Utah Code Ann. § 76-1-402(1) (LexisNexis 2017). Applying this subsection requires analyzing what constitutes a single offense. See State v. Rasabout , 2015 UT 72, ¶ 7, 356 P.3d 1258. However, Corona makes no argument and provides no reasoned analysis concerning the applicability of subsection (1). Instead, Corona attempts to characterize his felony discharge of a firearm convictions under subsection (3) of the merger statute (and cases analyzing that subsection) as lesser-included offenses to his aggravated murder conviction. Following that line of analysis, Corona does not address the question of whether one or all of the shots fired-as well as the resulting murder-constitute a single offense, but instead only "compare[s] the statutory elements of each offense" and attempts to determine whether a greater-lesser relationship exists. Accordingly, under subsection (1), Corona has failed to demonstrate that his claim is meritorious and has therefore failed to show that his counsel was ineffective.

¶46 Corona's claim under subsection (3) likewise fails. Subsection (3) states, "A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense." Utah Code Ann. § 76-1-402(3). Ultimately, "the inquiry of whether one crime is a lesser included offense of a greater crime under section 76-1-402 [ ] turns on the statutorily defined elements of the two crimes. That is ... the court looks to the statutory elements of the crime to determine whether it is an included offense." State v. Finlayson , 2000 UT 10, ¶ 16, 994 P.2d 1243 (cleaned up), overruled on other grounds by Wilder , 2018 UT 17, ¶ 38, 420 P.3d 1064 (renouncing common-law merger while holding that the statutory standard for merger controls).

¶47 We first look to the elements of the crimes proven at trial to identify whether the crimes "are such that the greater cannot be committed without necessarily having committed the lesser." See State v. Ross , 951 P.2d 236, 241 (Utah Ct. App. 1997) (cleaned up). Under Corona's proposed analytical framework, aggravated murder is the greater crime and felony discharge of a firearm is the lesser crime. The elements of aggravated murder are (1) a person "intentionally or knowingly" (2) "causes the death of another," (3) under a circumstance identified in the statute. Utah Code Ann. § 76-5-202(1) (LexisNexis 2017). For example, as was the case here, the homicide was committed incident to aggravated robbery. Id. § 76-5-202(1)(d). The elements of felony discharge of a firearm, as far as we must explore them, are (1) a person "discharges a firearm in the direction of any person" while (2) "knowing or having reason to believe that any person may be endangered by the discharge of the firearm." Id. § 76-10-508.1(1)(a).

¶48 Looking to the statutory elements of the crimes, felony discharge of a firearm is not an included offense to aggravated murder. While discharging a firearm in the direction of a person could cause the death of another, a person can be guilty of murder without necessarily being guilty of felony discharge of a firearm. Historically, many instruments other than firearms have been used to cause the death of another. Thus, the crimes do not stand in a greater-lesser relationship and the crimes do not merge under subsection (3). See State v. Chukes , 2003 UT App 155, ¶ 10, 71 P.3d 624 ("If the two offenses are such that the greater cannot be committed without necessarily having committed the lesser, then the lesser offense merges into the greater crime and the State cannot convict and punish the defendant for both offenses."(cleaned up) ). As a result, Corona fails to show that his merger claim was meritorious, and he thus fails to demonstrate that his counsel was ineffective for not moving to merge his convictions.

CONCLUSION

¶49 In sum, Corona's arguments are unpersuasive. First, the trial court did not abuse its discretion in allowing the State to enter evidence of the prior shooting. Second, Corona's counsel was not ineffective for failing to challenge the admittance of cell phone evidence. Third, Corona's challenge to the constitutionality of Utah's aggravated murder statute fails because his conviction is independently supported by his aggravated robbery conviction. Finally, Corona has not demonstrated that his counsel was ineffective for failing to move to merge his felony discharge convictions with his aggravated murder conviction because he has not shown that his merger claim was meritorious.

¶50 Affirmed.

      At the time Witness testified, she was serving a prison sentence for obstructing justice, a first degree felony, and two prison sentences of one to five years. During her initial interview with police, Witness resisted giving any names and explained that she felt bad for everyone involved. Witness stated that she knew them all and that they were "like kids to her."

      The cases that Corona does cite do not stand for the proposition he asserts. Instead, they deal specifically with an impeachment exception that allows prosecutors to use illegally obtained evidence to impeach the credibility of defense witnesses. See James v. Illinois , 493 U.S. 307, 313-15, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990) ; Agnello v. United States , 269 U.S. 20, 34-35, 46 S.Ct. 4, 70 L.Ed. 145 (1925).

      In analyzing the evidence under rule 403, the trial court relied on factors outlined in State v. Shickles , 760 P.2d 291 (Utah 1988), including whether the evidence would arouse the jury to "overmastering hostility." Since this case was tried, our supreme court has explained that "courts are bound by the text of rule 403," State v. Cuttler , 2015 UT 95, ¶ 18, 367 P.3d 981 (cleaned up), and that "[i]t is always error ... for a court to center its analysis on the Shickles factors, to consider itself obligated to use a particular factor or factors, or to rely inflexibly upon each ... factor," State v. Ring , 2018 UT 19, ¶ 23, 424 P.3d 845. The court has also explained that "it is inappropriate for a court to consider the overmastering hostility factor [articulated in Shickles ] in a rule 403 analysis." Cuttler , 2015 UT 95, ¶ 20, 367 P.3d 981. However, because Corona has not argued for reversal on these bases, we have no occasion to review the trial court's analysis under those potential arguments.

      We note that the trial court did not make a separate and independent conclusion that Corona's involvement was relevant under rule 104(b) of the Utah Rules of Evidence. However, Corona never raised that issue below. Instead, Corona framed the issue "under the purview of 404(b) and 403 and the Shickles factors." Because any 104(b) issues were not raised to the trial court, we reject Corona's rule 104(b) arguments on appeal as unpreserved.

      A portion of Corona's merger argument focused on common-law merger, which was recently renounced by the Utah Supreme Court. See State v. Wilder , 2018 UT 17, ¶ 38, 420 P.3d 1064 ("We renounce the common-law merger test, which we first set forth in State v. Finlayson , 2000 UT 10, 994 P.2d 1243, and recapped in State v. Lee , 2006 UT 5, 128 P.3d 1179, and hold that the controlling test is the statutory standard set forth in Utah Code section 76-1-402(1)."). In line with that renunciation, we analyze only those challenges focused on the statutory standard for merger.

      The jury was instructed to accept as true that an aggravating factor was present for the purposes of convicting Corona of aggravated murder.


text:
    TRIPLE J PARKING INC., Appellant, v. SCSB LLC, Appellee.
    No. 20170048-CA
    Court of Appeals of Utah.
    Filed August 23, 2018
    Donald L. Dalton, Attorney for Appellant
    Matthew N. Evans and Matthew M. Cannon, Salt Lake City, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.
    Opinion
   MORTENSEN, Judge:

¶1 In this case, Triple J Parking Inc. paved the property and put up a parking lot-and now it wants to recoup the improvement costs. For nearly nine years, Triple J leased ground property from SCSB LLC, pursuant to a lease agreement, in order to run its park-and-ride business. During that time, Triple J made millions of dollars' worth of improvements to the property-but did not negotiate an agreement with SCSB regarding repayment or compensation for those improvements. In September 2016, the parties could not come to an agreement regarding renewal of the lease, and SCSB terminated the agreement, with the effective end date in October 2016. While the lease agreement with Triple J was still operative, SCSB negotiated a separate, future lease on the property with a new tenant, whose lease agreement would commence after Triple J's agreement had expired and after Triple J had vacated the premises. Upon questioning whether the negotiations with the new tenant violated the non-competition clause in its own lease, Triple J brought suit against SCSB, alleging that SCSB breached (1) the non-competition provision of the ground lease agreement and (2) the implied covenant of good faith and fair dealing. SCSB moved to dismiss the complaint, and the district court granted its motion. Triple J now appeals the district court's ruling. We affirm.

BACKGROUND

¶2 In November 2007, Triple J entered into a ground lease agreement (the Lease Agreement) with SCSB. The leased lot (the Property) was located near the airport and provided approximately six acres to Triple J for use as a parking lot, with an optional 2.87 acres also to be used as a parking facility.

¶3 The initial term of the Lease Agreement was three and a half years, but the Lease Agreement further specified that upon expiration, it would continue and renew on a month-to-month basis. Additionally, the Lease Agreement contained a non-competition provision. The Lease Agreement was silent, however, on the issue of any improvements made to the Property.

¶4 After the Lease Agreement became effective, Triple J spent millions of dollars improving the Property and subsequently began operating a parking facility. Pursuant to the Lease Agreement, after the original term had expired in April 2011, the Lease Agreement continued on a month-to-month basis until September 2016. At that time, SCSB proposed the elimination of the non-competition provision in the lease, sparking negotiations between the two parties. During these discussions, SCSB acknowledged that it was in dialogue with a third party with respect to the sale of the Property.

¶5 Triple J and SCSB could not reach a satisfactory resolution regarding the non-competition provision or a further renewal. Accordingly, in September 2016, SCSB served Triple J with a Notice of Termination of Ground Lease, and Triple J vacated the Property by the end of October 2016. Triple J asserts that in September 2016, SCSB sold, or agreed to sell, the Property to a competing parking business, but it was later discussed that the new agreement may have been a three-year lease with an option to purchase.

¶6 Upon discovering that SCSB had leased the Property to a competitor, Triple J filed suit, asserting two claims for relief-breach of the Lease Agreement and breach of the implied covenant of good faith and fair dealing-and seeking damages in the amount it had spent on improving the Property over many years. SCSB moved to dismiss the complaint, and the district court granted its motion. Triple J now appeals.

ISSUES AND STANDARD OF REVIEW

¶7 Triple J asserts that the district court incorrectly concluded that Triple J failed to allege facts demonstrating that SCSB breached the non-competition provision of the Lease Agreement by negotiating a future lease on the Property with a competing parking entity, to commence after Triple J's Lease Agreement had expired. Similarly, Triple J asserts that the district court erred in concluding that Triple J failed to allege facts upon which a claim for breach of the implied covenant of good faith and fair dealing could be maintained.

¶8 The grant of a motion to dismiss pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure presents a question of law that this court reviews for correctness. See Lilley v. JP Morgan Chase , 2013 UT App 285, ¶ 4, 317 P.3d 470 ; see also Utah R. Civ. P. 12(b)(6). When reviewing a dismissal under rule 12(b)(6), "we accept the plaintiff's description of facts alleged in the complaint to be true.... The district court's ruling should be affirmed only if it clearly appears that the plaintiff can prove no set of facts in support of [the] claim." America West Bank Members, L.C. v. State , 2014 UT 49, ¶ 7, 342 P.3d 224 (cleaned up).

¶9 The Lease Agreement was referenced several times in the Complaint and, therefore, the language of the Lease Agreement was properly considered by the district court on SCSB's motion to dismiss. See Oakwood Village LLC v. Albertsons, Inc. , 2004 UT 101, ¶ 13, 104 P.3d 1226 ("If a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss. The classic example is a contract where the complaint alleges a breach of contract." (cleaned up) ). Here, we need not look beyond the complaint and the language of the lease to determine whether a breach was sufficiently alleged.

ANALYSIS

¶10 SCSB maintains, and Triple J does not dispute, that absent an agreement otherwise, a tenant is not entitled to compensation for improvements made to a leasehold. Commercial Fixtures & Furnishings, Inc. v. Adams , 564 P.2d 773, 774 (Utah 1977) ("The right of plaintiff to recover for the goods incorporated into defendant's real property must be based upon an agreement, either express or implied, and the stipulated facts are clear that none existed."). Triple J acknowledges that the Lease Agreement is silent on the issue of compensation for improvements. Therefore, Triple J is not entitled to compensation by way of express agreement regarding those improvements. Instead, Triple J claims that it is entitled to those sums as damages because SCSB negotiated with a competitor to lease the Property for a future period beginning after the termination of the Lease Agreement, thereby allegedly breaching the non-competition provision and the implied covenant of good faith and fair dealing. For the reasons that follow, we reject these contentions.

I. Non-Competition Provision

¶11 Triple J first contends that the district court incorrectly concluded that Triple J failed to allege facts demonstrating that SCSB breached the Lease Agreement between the parties by agreeing to lease the Property to a competing parking entity after the Lease Agreement had expired. Simply stated, Triple J alleges that SCSB violated the non-competition provision by virtue of negotiating and entering into a lease with a future tenant while Triple J's Lease Agreement was still operative. This argument fails.

¶12 SCSB's actions are not prohibited under the plain language of the Lease Agreement. The Lease Agreement contains the following non-competition provision:

Non-competition. To secure the interests of Lessee hereunder, and as a material inducement to Lessee to enter into this Lease, Lessor, its manager, members and affiliates will not, directly or indirectly compete with Lessee, its successors or assigns within a two (2) mile radius from the Leased Land. For the purposes of this paragraph, the term "compete " means owning, managing, operating, controlling, or participating in the ownership, management, operation or control of, any business, whether in corporate, proprietorship, or partnership form or otherwise, where such business involves the operation of a parking facility and related amenities; and the term "affiliate " means any legal entity or individual who directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, Lessor or Lessee, as applicable.

¶13 On appeal, SCSB contends that the purpose of this provision was to prevent SCSB from "leas[ing] any surrounding property to a competing parking concern during the term of the Lease Agreement." In contrast, Triple J maintains that a plain reading of the provision includes the Property itself. This difference of interpretation is immaterial. Even if Triple J is correct, the actual terms of the Lease Agreement do not provide a basis for claiming breach here. "Competing," as specified in the provision, requires SCSB to be involved in the "operation of a parking facility and related amenities." Here, Triple J has failed to assert that SCSB was involved in the operation of any parking facility or related amenities during the lease term. No "ownership, management, operation or control of" a competitor's business occurred during Triple J's lease period-not even for one minute-and therefore, no breach was sufficiently alleged. Accordingly, Triple J has failed to state a claim that SCSB breached the non-competition provision.

¶14 While Triple J alleges that the mere act of selling or leasing land to a tenant for a future term is the same as "ownership, management, operation or control of" a competing parking concern, we are not persuaded. The plain language of the Lease Agreement does not restrict SCSB from negotiating with any third party while the Lease Agreement was in effect. In fact, Triple J concedes, "Certainly, the parties did not use the word 'lease' in the definition of prohibited acts of competition." Simply put, Triple J has failed to allege facts that would trigger the application of the non-competition provision and, therefore, Triple J fails to state a claim as a matter of law.

II. Implied Covenant of Good Faith and Fair Dealing

¶15 Triple J also argues that the district court incorrectly concluded that Triple J failed to allege facts demonstrating that SCSB breached the implied covenant of good faith and fair dealing associated with the Lease Agreement when SCSB signed a new lease with a different tenant during the term of the Lease Agreement. Triple J seeks to recover the cost of the improvements made to the property-millions of dollars-based on this alleged breach.

¶16 Under the implied covenant of good faith and fair dealing, each party to a contract "impliedly promises that he will not intentionally or purposely do anything which will destroy or injure the other party's right to receive the fruits of the contract." St. Benedict's Dev. Co. v. St. Benedict's Hosp. , 811 P.2d 194, 199 (Utah 1991). However, the "reach of the implied covenant of good faith and fair dealing extends no further than the purposes and express terms of the contract." Smith v. Grand Canyon Expeditions Co. , 2003 UT 57, ¶ 22, 84 P.3d 1154.

¶17 To allow Triple J to recover under the facts alleged here would run afoul of established law. This court has previously rejected the notion that the implied covenant of good faith and fair dealing can be used to rewrite a contract, holding,

It is fundamental that every contract imposes a duty on the parties to exercise their contractual rights and perform their contractual obligations reasonably and in good faith. Nonetheless, a court may not make a better contract for the parties than they have made for themselves; furthermore, a court may not enforce asserted rights not supported by the contract itself. It cannot be adopted as a general precept of contract law that, whenever one party to a contract can show injury flowing from the exercise of a contract right by the other, a basis for relief will be somehow devised by the courts.

Ted R. Brown & Assocs., Inc. v. Carnes Corp. , 753 P.2d 964, 970-71 (Utah Ct. App. 1988) (cleaned up).

¶18 Here, Triple J received the benefits-the fruits-it was contractually entitled to, namely: the use of the Property and subsequent improvements, along with a non-competition agreement preventing SCSB from operating any rival business, for the entirety of the nearly nine-year Lease Agreement. Despite receiving the fruits of the contract, Triple J asks us to interpret the Lease Agreement to mean that it was entitled to receive compensation for the improvements even though the Lease Agreement was silent on this point. Silence in the lease on the issue of improvements has consequences as a matter of law. See supra ¶ 10. In this case, silence means that Triple J was not entitled to recover costs relating to improvements that it made to the Property.

¶19 Triple J could have insisted on addressing this issue in the Lease Agreement, but apparently did not. It is not the place of this court to "make a better contract" for Triple J than it made for itself. See Ted R. Brown & Assocs. , 753 P.2d at 970. Because effectively adding a term about the improvements remains outside the scope of the implied covenant of good faith and fair dealing, and because nothing in Triple J's complaint alleges that SCSB interfered in any way with Triple J receiving the complete fruits of its contract, the district court properly dismissed the claim under rule 12(b)(6).

CONCLUSION

¶20 The district court correctly held that Triple J failed to state a claim when it alleged that SCSB breached the Lease Agreement by negotiating a separate lease with a future tenant-effective after Triple J had vacated the property. Additionally, the district court correctly dismissed Triple J's claim for breach of the implied covenant of good faith and fair dealing.

¶21 Affirmed.

      Joni Mitchell, Bob Dylan, and the Counting Crows can all attest: "you don't know what you've got 'til it's gone." Joni Mitchell, Big Yellow Taxi , on Ladies of the Canyon (Reprise Records 1970); Bob Dylan, Big Yellow Taxi , on Dylan (Columbia Records 1973); Counting Crows, Big Yellow Taxi , on Hard Candy (Geffen Records 2002).

      We note that the request for damages in the amount of the Property's improvements has no tether whatsoever that we can perceive to Triple J's alleged injury for breach of contract. But this was not the basis of the district court's conclusion.

      See , e.g. , Neff v. American Dairy Queen Corp ., 58 F.3d 1063, 1066 (5th Cir. 1995) (stating that the plain and ordinary meaning of operate is "to control or direct the functioning of," or "to conduct the affairs of; manage" (cleaned up) ); see also Nathanson v. Spring Lake Park Panther Youth Football Ass'n , 129 F.Supp.3d 743, 749 (D. Minn. 2015) ("Operates has been accorded its plain and ordinary meaning of put or keep in operation, to control or direct the function of, or to conduct the affairs of; manage." (cleaned up) ).

      When interpreting a contract, we look "first to the plain language within the four corners of the document.... If we find the language unambiguous, we interpret the contract as a matter of law. We find ambiguity only where the language of the contract is reasonably capable of being understood in more than one sense." Peterson & Simpson v. IHC Health Services, Inc. , 2009 UT 54, ¶ 13, 217 P.3d 716 (cleaned up). Here, the language of the contract is unambiguous, and we interpret the non-competition provision as a matter of law.


author: Per Curiam Opinion

text:
    In the MATTER OF the ESTATE OF Joyce Lutz MORRIS
    Mark L. Morris and Diane Morris, Appellants, v. Carolyn Perkins, H. Conwey Morris, Paul Morris and Joyce Morris, Appellees.
    No. 20170330-CA
    Court of Appeals of Utah.
    Filed August 23, 2018
    Richard H. Reeve, Attorney for Appellants
    Jack C. Helgesen and Erik S. Helgesen, Layton, Attorneys for Appellees
    Before Judges David N. Mortensen, Jill M. Pohlman, and Ryan M. Harris.
   Per Curiam Opinion

Per Curiam:

¶1 Mark L. Morris, individually and as personal representative of the Estate of Joyce Lutz Morris, appeals the district court's order denying his request for attorney fees.

¶2 Morris initially argues that the district court erred by failing to order the estate to reimburse him for attorney fees incurred in defending the claims brought by his siblings. While Morris is correct that Utah Code section 75-3-719 allows a personal representative of an estate to recover from the estate all necessary expenses, including attorney fees, incurred in defending or prosecuting any matter in good faith, Morris never requested such fees from the estate. As a result, the district court never ruled on the issue. In his motion for attorney fees, Morris specifically requested attorney fees from his siblings (who initiated the action against him), claiming that the estate had insufficient funds to reimburse him for the attorney fees he incurred. "[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." Brookside Mobile Home Park, Ltd. v. Peebles , 2002 UT 48, ¶ 14, 48 P.3d 968. For a trial court to be afforded an opportunity to correct the error, "(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) the challenging party must introduce supporting evidence or relevant legal authority." Id. (quotation simplified). Issues that are not raised at trial are usually deemed waived. Id. Here, Morris never raised the question of whether he should be reimbursed for attorney fees from the estate because his motion specifically requested that his siblings be required to pay his attorney fees. Accordingly, Morris did not preserve the issue for appeal. Further, he has failed to argue that any exception to the preservation requirement, such as plain error, applies. We, therefore, do not address the issue.

¶3 Morris next argues that the district court erred in failing to order that his siblings be required to reimburse him for attorney fees incurred in defending himself against the claims asserted by the siblings. Morris concedes on appeal that Utah Code section 75-3-719 is limited in its plain language to reimbursement of attorney fees from the estate, not others. However, Morris requests that we look beyond the plain language of the statute to its supposed purpose, which Morris opines is to "protect personal representatives from the burden of paying, from their own pocket, for the prosecution of claims or the defense against claims on behalf of the decedent's estate." " '[W]here the statutory language is plain and unambiguous, we do not look beyond the language's plain meaning to divine legislative intent.' " State v. Tryba , 2000 UT App 230, ¶ 13, 8 P.3d 274 (quoting Horton v. Royal Order of the Sun , 821 P.2d 1167, 1168 (Utah 1991) ). "Only when we find ambiguity in the statute's plain language need we seek guidance from the legislative history and relevant policy considerations." Nelson v. Salt Lake County , 905 P.2d 872, 875 (Utah 1995) (quotation simplified). Because the language of Utah Code section 75-3-719, by Morris's own admission, is not ambiguous, there is no need for this court to look beyond the plain language of the statute to determine the legislature's intent. Further, Morris does not allege that a literal reading of the statute creates an "absurd, unreasonable, or inoperable result." State v. Jeffries , 2009 UT 57, ¶ 8, 217 P.3d 265 ("Where a statute's plain language creates an absurd, unreasonable, or inoperable result, we assume the legislature did not intend that result. To avoid an absurd result, we endeavor to discover the underlying legislative intent and interpret the statute accordingly."). Accordingly, the district court correctly concluded that Utah Code section 75-3-719 did not allow for the imposition of an attorney fees award against the siblings.

¶4 Affirmed.

      Diane Morris was included in the notice of appeal; however, all issues raised in this appeal concern only Mark L. Morris.

      Utah Code section 75-3-719 states: "If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate all necessary expenses and disbursements, including reasonable attorney fees incurred." Utah Code Ann. § 75-3-719 (LexisNexis Supp. 2017).

      In their brief, the siblings acknowledge that Morris is entitled to reimbursement of attorney fees from the estate and note that Morris, as personal representative of the estate, may pay the fees without the express order of the district court.


author: POHLMAN, Judge:

text:
    STATE of Utah, Appellee, v. Breanna Lynn HORVATH, Appellant.
    No. 20160789-CA
    Court of Appeals of Utah.
    Filed August 23, 2018
    Alexandra S. McCallum, Attorney for Appellant
    Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee.
    Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
    Opinion
   POHLMAN, Judge:

¶1 Breanna Lynn Horvath appeals her convictions of one count of obstruction of justice and one count of reckless driving. Regarding her obstruction of justice conviction, Horvath argues that the trial court erred by refusing her request for a lesser-included-offense instruction and that she received constitutionally ineffective assistance of counsel because her counsel failed to object to an allegedly erroneous instruction. As to her reckless driving conviction, she argues that the court incorrectly entered the conviction as a class A misdemeanor rather than a class B misdemeanor. We affirm Horvath's obstruction of justice conviction, but we vacate her reckless driving sentence and remand the case to the trial court to correct the penalty classification and to amend her sentence accordingly on that count.

BACKGROUND

The Car Chase

¶2 Horvath's convictions arise from a car chase involving Horvath, another driver (Other Driver), and a detective (Detective). In July 2014, West Valley City police officers were surveilling a house near 4000 West and 3500 South. The police had received information that a witness to a homicide frequented this particular house. The officers were in plain-clothes, and their vehicles were unmarked. One of the officers (Officer) was parked in a lot facing the house, while Detective was parked in a grocery store parking lot on 4000 West, facing the street.

¶3 Officer observed two people exit the house around the same time, and he alerted Detective. The first person to exit, Other Driver, entered a Pontiac. The second person, Horvath, entered a Subaru. Both cars drove away from the house "[w]ithin seconds" of each other, with Other Driver leading.

¶4 Meanwhile, Officer and Detective confirmed Other Driver's identity through a records check and discovered that he was on parole, that the car he was driving was registered to him but uninsured, and that his license was invalid. Officer and Detective determined Detective would initiate a traffic stop with Other Driver and Officer would assist him once the stop was made.

¶5 From his parked location, Detective watched Other Driver drive past him. Other Driver looked at Detective "quite heavily," making sustained eye contact with Detective while he drove by. Detective observed Horvath pass by him "immediately" afterward, at which point Detective "pulled out on to the street" behind the two cars. Once Detective did so, both cars "began to accelerate very, very rapidly" toward the intersection of 4000 West and 3500 South. Detective then saw both cars make right turns onto 3500 South "against the red light with ... no signal."

¶6 Detective continued to follow Other Driver and Horvath, observing them drive aggressively and apparently in tandem with one another. They merged into the center passing lane on 3500 South, using it "as a travel lane" to speed past the traffic waiting for the light at the Bangerter Highway intersection. Detective estimated that the cars were traveling at approximately sixty miles per hour. Both cars then ran the red light at Bangerter Highway, continuing east on 3500 South toward the I-215 interchange. Detective followed them, working his way closer through the traffic.

¶7 The center turn lane that both cars had been using as a travel lane became a bus lane after Bangerter Highway, and 3500 South eastbound opened up to three travel lanes. Detective observed both cars merge right, out of the center lane, and into slower traffic. At that point, both Other Driver and Horvath continued to drive "very aggressively," cutting off other vehicles, making abrupt lane changes without signaling, and accelerating around other vehicles. To keep up with the cars, Detective had to employ similarly aggressive driving tactics.

¶8 After several blocks, at approximately 3300 West, Detective caught up to Other Driver, ending up "directly behind" him within one car length. In doing so, Detective lost sight of Horvath. Detective activated his lights and siren, signaling Other Driver to pull over. Although Detective's vehicle was unmarked, Detective testified at trial that it was equipped with a combination of white, red, and blue flashing lights around all sides of the vehicle at various heights and locations, and that the lights were "very, very visible" from every direction. When activated, lights flashed in the headlights, the brake lights, the grill, the fog lights, and on bars around the front, sides, and back.

¶9 Other Driver did not stop. Instead, he "continued to accelerate" and drive aggressively, "cutting off cars, driving around cars quickly, [and] not using [his] signal." From Detective's perspective, Other Driver appeared to be "run[ning] from [him]." Detective tried to keep up with Other Driver by driving in the same aggressive manner over several blocks. During this time, Detective did not observe Horvath's location.

¶10 As Other Driver and Detective approached 2900 West, Other Driver merged into the innermost lane to pass a slowing vehicle in the center lane, and Detective followed. After passing the slowing vehicle, Other Driver merged back into the center lane. Detective tried to follow Other Driver into that lane, but as he began to merge, Detective saw "out of [his] peripheral vision" Horvath accelerating toward his vehicle into the center lane at the same time, "almost causing a collision." Indeed, Detective testified that he "had to jerk [his] wheel back into the [innermost] lane to avoid a collision." While she merged into the center lane, Horvath kept her car parallel with Detective's vehicle, and Detective testified that Horvath "maintained direct eye contact" with him for three to five seconds, that he did not observe "any panic" or "shock on her face" as if she had merged accidentally, and that she was looking at him with an aggressive expression on her face, as though she was "mad at [him]."

¶11 Thereafter, Horvath did not move out of Detective's way, but continued to stay in the center lane, blocking him from pursuing Other Driver. Although Detective was eventually able to work his way around other vehicles to continue the pursuit, Other Driver had gained too much ground. When Detective saw Other Driver merge onto I-215, he broke off pursuit.

The Trial

¶12 The State charged Horvath with reckless driving and with obstruction of justice with respect to Other Driver's criminal conduct of failing to respond to Detective's signal to stop. The case proceeded to a one-day jury trial. Detective was the State's primary witness, and he was the only witness who testified regarding the details of the pursuit and Horvath's obstruction. Neither Horvath nor Other Driver testified.

¶13 The State asserted at trial that Horvath had obstructed Detective's ability to apprehend Other Driver for failure to respond to Detective's signal. The seriousness of the offense being obstructed-failure to respond-made a conviction under this theory a felony.

¶14 During trial, defense counsel asked the court to instruct the jury on a lesser included offense of misdemeanor obstruction of justice predicated on reckless driving. Defense counsel argued that a jury could find that "the only thing in [Horvath's] realm of knowledge" at the time she nearly merged into Detective's vehicle was that Other Driver had been driving recklessly, not that he had failed to respond. Defense counsel asserted that the evidence supported a finding that Horvath intended only to impede Other Driver's apprehension for reckless driving, which would lower the severity of the obstruction crime from a felony to a misdemeanor. The court denied defense counsel's request.

¶15 The jury convicted Horvath of both charges. Horvath timely appeals.

ANALYSIS

¶16 Horvath raises three issues on appeal. First, she argues that the trial court erred when it declined to instruct the jury on a lesser included offense of misdemeanor obstruction of justice. In particular, she argues that misdemeanor obstruction of justice predicated on reckless driving is a lesser included offense of felony obstruction of justice predicated on failure to respond. She also contends that there is a rational basis in the evidence from which the jury could have acquitted her of the greater charge and convicted her of the lesser charge.

¶17 Second, she argues that she received constitutionally ineffective assistance of counsel when her defense counsel failed to object to the instruction for failure to respond. She claims that her counsel performed deficiently because the instruction obviously omitted the required mens rea for certain terms in the failure-to-respond instruction and that she was harmed thereby.

¶18 Third, she argues that the court erred in entering and sentencing her reckless driving conviction as a class A, rather than a class B, misdemeanor. We address each issue below, ultimately affirming her conviction for obstruction of justice predicated on failure to respond. However, we vacate her reckless driving sentence and remand the case for the limited purpose of correcting the classification of and sentence on her reckless driving conviction.

I. Lesser-Included-Offense Instruction

¶19 Horvath was charged with obstruction of justice predicated on Other Driver's failure to respond to Detective's signal to stop, see Utah Code Ann. § 41-6a-210(1) (LexisNexis 2014), which constitutes a third degree felony under the obstruction of justice statute, see id. § 76-8-306(3)(b)(i) (2017). Horvath argues that she should be granted a new trial because the trial court incorrectly refused her request to instruct the jury on the lesser included offense of obstruction of justice predicated on the underlying offense of Other Driver's reckless driving, see id. § 41-6a-528 (2014), which would have constituted a class A misdemeanor under the obstruction of justice statute, see id. § 76-8-306(3)(c) (2017).

¶20 Horvath frames this error as a statutory construction question; she asks us to construe the obstruction of justice statute as requiring a defendant to know that the criminal conduct on which the obstruction charge is predicated occurred. The obstruction of justice statute provides in relevant part,

(1) An actor commits obstruction of justice if the actor, with intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense:
...
(b) prevents by force, intimidation, or deception, any person from performing any act that might aid in the discovery, apprehension, prosecution, conviction, or punishment of any person[.]

Id. § 76-8-306(1)(b). Horvath argues that obstruction of justice is a specific intent crime requiring a defendant to "act with knowledge of the predicate conduct " charged-in this case, failure to respond to a police officer's signal. And if a defendant is charged with felony obstruction, as she was here, Horvath argues that "that conduct must be of a nature that[,] if prosecuted, it would constitute a felony crime." As applied to her case, Horvath claims that she had to know that Other Driver committed the felonious criminal conduct underlying her obstruction charge-failure to respond to Detective's signal.

¶21 Employing similar reasoning, Horvath further argues that she was entitled to the lesser-included-offense instruction for obstruction based on reckless driving, asserting that there was a rational basis in the evidence from which the jury could have determined that she did not know that Other Driver had failed to respond to Detective at the time she obstructed Detective's attempts to apprehend Other Driver, but that she did know that Other Driver had committed reckless driving. See generally State v. Powell , 2007 UT 9, ¶ 24, 154 P.3d 788 (setting out the "two-pronged test" for deciding when a defendant is entitled to a lesser-included-offense instruction, which requires a defendant to show "(1) that the charged offense and the lesser included offense have overlapping statutory elements and (2) that the evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense" (quotation simplified) ).

¶22 However, even if Horvath's interpretation of the obstruction of justice statute is correct and there is a rational basis in the evidence to support her requested instruction, to obtain reversal she must still persuade us that the trial court's refusal to give the lesser-included-offense instruction was harmful to her case. See Utah R. Crim. P. 30(a) ; State v. Miranda , 2017 UT App 203, ¶ 44, 407 P.3d 1033 (explaining that "for an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict" and that a defendant "bears the burden of showing that he was harmed by the trial court's error" (quotation simplified) ). In particular, Horvath must persuade us that, had her requested lesser-included-offense instruction been given, there is a "reasonable likelihood" that she would have enjoyed "a more favorable trial result." See State v. Whittle , 1999 UT 96, ¶ 17, 989 P.2d 52 ; see also State v. Reece , 2015 UT 45, ¶¶ 32-39, 349 P.3d 712 (explaining that failure to give a lesser-included-offense instruction is subject to harmless error analysis); State v. Fairchild , 2016 UT App 205, ¶ 17, 385 P.3d 696 (explaining that "a new trial is not merited" where the alleged errors "are sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings" (quotation simplified) ). We therefore assume, without deciding, that the court erred in refusing to give her requested instruction, and we proceed to consider whether Horvath has demonstrated that the alleged error was harmful.

¶23 Horvath contends that the alleged error was harmful because the evidence that she committed obstruction of justice predicated on failure to respond was "far from overwhelming." (Quotation simplified.) She argues that, because Detective lost sight of her for a few blocks around the time he activated his lights and siren, there was no direct evidence that she actually "witnessed [Other Driver] fleeing or otherwise knew that he committed Failure to Respond." In contrast, she claims that the evidence "more readily" supported that she knew Other Driver committed reckless driving at the time of her obstructive act. She suggests that it is therefore reasonably likely the jury "would have resolved" in her favor the doubt about whether she knew Other Driver had failed to respond to Detective.

¶24 We disagree. Although there was a lack of direct evidence about what Horvath might have observed during the time Detective lost sight of her, the circumstances surrounding Horvath's obstructive act overwhelmingly suggest that, at the time she obstructed Detective in his pursuit, she did so knowing that Other Driver had failed to respond to Detective's signal. See Reece , 2015 UT 45, ¶¶ 40-43, 349 P.3d 712 (concluding that a trial court's failure to give a requested lesser-included-offense instruction was harmless where the evidence overwhelmingly established the defendant's guilt for the charged, instructed offense); cf. State v. Harris , 2015 UT App 282, ¶ 9, 363 P.3d 555 (stating that "it is a well-settled rule that circumstantial evidence alone may be sufficient to establish the guilt of the accused" (quotation simplified) ); State v. Cristobal , 2014 UT App 55, ¶ 4, 322 P.3d 1170 (stating that "where there is an absence of direct evidence supporting each element of the crime charged, a jury's guilty verdict must be based upon reasonable inferences," and explaining that "a reasonable inference is a conclusion that can be drawn from the evidence and is based on logic and reasonable human experience," where "the facts can reasonably be interpreted to support a conclusion that one possibility is more probable than another" (quotation simplified) ).

¶25 To begin with, regardless of whether Detective temporarily lost sight of her, Horvath's obstructive act occurred in the larger context of a reckless driving spree in what appeared to be a concerted effort between Other Driver and Horvath to evade and flee from Detective. For example, Detective testified that Other Driver "stare[d]" at him, maintaining eye contact "the entire time [Other Driver] passed by" him, and that almost immediately upon Detective pulling out from his vantage point to follow them, both vehicles accelerated "very, very rapidly" away from him-Horvath following Other Driver. Detective testified that he observed both vehicles drive "very closely" and in tandem with each other, speeding, running red lights, passing vehicles by using the turning lane, and weaving aggressively around and cutting off vehicles without signaling when they could no longer use the turn lane for travel. While Detective testified that he thereafter lost sight of Horvath for several blocks, there was no suggestion in the evidence that Horvath did not stay nearby throughout Other Driver's flight. Indeed, the timing of Horvath's obstructive act strongly suggests the opposite-that, even if Detective could not see her, she continued to follow Other Driver.

¶26 In this regard, the more specific context in which Horvath's obstructive lane change occurred powerfully suggests that she knew Other Driver failed to respond to Detective's signal to stop when she blocked Detective from merging. For example, Detective testified that his vehicle, though unmarked, was equipped with a siren as well as a plethora of flashing lights-white, red, and blue-surrounding every side of the vehicle in various heights and locations. At the time Horvath merged to block Detective, his flashing lights and siren had been activated for approximately half a mile.

¶27 Detective also testified that he activated his lights and siren only when he maneuvered his vehicle directly behind Other Driver, one car length away; that, rather than slowing or stopping, Other Driver immediately responded by accelerating away from him and weaving aggressively around other vehicles in an apparent attempt to flee; and that, to keep up with Other Driver, Detective had to drive with similar aggression. Although Detective may not have been able to see Horvath during the time that he activated his signal and proceeded through the several blocks of vigorous pursuit, Horvath demonstrated a present ability to block Other Driver's apprehension. Indeed, the timing of Horvath's obstructive lane change was precise and almost prescient; she accelerated from behind and merged into the center lane at the exact moment Detective attempted to follow a fleeing Other Driver into the center lane, boxing him in behind slowing vehicles in the innermost lane. She also maintained her vehicle parallel to his after merging, blocking Detective from maneuvering into the center lane in pursuit of Other Driver. Through these actions, Horvath showed a keen awareness of Detective's pursuit of Other Driver, one sufficient to anticipate Detective's merge and then deftly block it.

¶28 In these circumstances, the presence of mind and action that Horvath displayed cannot be reasonably explained away by mistake or ignorance. Rather, the contextual evidence strongly suggests that, before her act of obstruction, Horvath kept up with Detective and Other Driver through the several blocks of aggressive driving and thereby knew Other Driver was attempting to flee from Detective, fully mindful of Detective's signal to stop. Indeed, it strains credulity to suggest that, despite being available to block Detective at the exact moment he attempted to merge and after a significant stretch of aggressive driving, Horvath was nevertheless unaware of Detective's signal and Other Driver's flight from it. In this regard, Detective's testimony about Horvath's demeanor upon obstructing his lane change fairly supports an inference that she intended to block any further pursuit of Other Driver. Detective testified that she "maintained direct eye contact" with him "for a good few seconds" and that, rather than having an expression of shock indicative of a mistake, she "look[ed] at [him] like she was very, very aggressive or mad or was mad at [him]."

¶29 In sum, the context and circumstances surrounding Horvath's obstructive act overwhelmingly suggest that her ability to merge in the moment she did arose from purposeful maneuvering on her part based on her awareness of Detective's signal to stop and Other Driver's failure to respond to it. See State v. Reece , 2015 UT 45, ¶¶ 40-43, 349 P.3d 712. Accordingly, we are not persuaded that it is reasonably likely that, had the jury been instructed on obstruction of justice predicated on reckless driving, the jury would have acquitted her of obstruction of justice predicated on failure to respond by necessarily finding that Horvath did not know Other Driver failed to respond to Detective's signal. See id. Horvath has therefore not shown that it was reasonably likely she would have enjoyed a more favorable trial outcome had the court instructed the jury on obstruction of justice predicated on reckless driving. Thus, she is not entitled to reversal based on any such error.

II. Mens Rea for Failure to Respond

¶30 Horvath also argues that she received constitutionally ineffective assistance of counsel when her counsel failed to object to the failure-to-respond jury instruction. To prevail on a claim for ineffective assistance, Horvath must demonstrate both that her counsel's performance was objectively deficient and that her counsel's performance was prejudicial to her defense-that is, "a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial." See State v. Lantz , 2018 UT App 70, ¶ 7, 424 P.3d 1094 (quotation simplified); see also State v. Johnson , 2015 UT App 312, ¶ 15, 365 P.3d 730 (same). "[A] failure to prove either element defeats the claim." Johnson , 2015 UT App 312, ¶ 15, 365 P.3d 730 (quotation simplified). We need not decide whether Horvath's counsel's performance was deficient if she has not demonstrated she was prejudiced by her counsel's performance. See State v. Arguelles , 921 P.2d 439, 441 (Utah 1996) ; see also Strickland v. Washington , 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").

¶31 Horvath contends that the failure-to-respond instruction did not include the mens rea for two terms-"receives" and "attempts"-as required under our supreme court's decision in State v. Bird , 2015 UT 7, 345 P.3d 1141. In Bird , the Utah Supreme Court held that the trial court should have instructed the jury that, to find the defendant guilty of failure to respond, it must have found that the vehicle operator "knowingly received a visual or audible signal from a police officer" and intentionally attempted "to flee or elude a peace officer." See id. ¶¶ 18 -24, 26 (emphasis added) (quotation simplified). Horvath further claims that the mens rea omissions were prejudicial because they prevented the jury from deciding whether Horvath "acted with the intent to prevent [Other Driver's] apprehension for Failure to Respond." Horvath asserts that the omission made it possible for the jury to convict her even if it found she believed that Other Driver was "unaware of [Detective's] signal to stop" and/or "the purpose of [Other Driver's] actions was not to flee or elude." In this regard, she contends that there was a rational basis in the evidence from which the jury could conclude that Horvath believed Other Driver was not intending to flee or elude Detective and that she believed Other Driver was unaware of Detective's signal to stop. On this basis, she claims that, had the jury been adequately instructed on the mens rea required for a failure to respond charge, it is reasonably likely she would have enjoyed a more favorable result.

¶32 But even assuming Horvath is correct that the jury instructions were erroneous and that her counsel should have objected to them, Horvath has not demonstrated that she was prejudiced by her counsel's performance. To begin with, no evidence was presented at trial suggesting that Other Driver did not "knowingly" receive Detective's signal or "intentionally" attempt to flee or elude Detective. Rather, the evidence of the circumstances surrounding Detective's activation of his lights and signal and Other Driver's immediate response only affirm that Other Driver knew he had received a signal to stop and, by accelerating and maneuvering away, intentionally attempted to elude it. Detective turned on his lights and siren when he was directly behind Other Driver-a position from which it would have been nearly impossible for Other Driver to miss the signal-and the only testimony about Other Driver's actions afterward was that he accelerated away from Detective, aggressively weaving around cars for several blocks in an apparent attempt to flee as Detective tried to keep up with him. And although Detective's signal and siren remained on throughout the remainder of the pursuit, Other Driver never stopped in response to Detective's signal. Instead, he continued toward I-215 and was ultimately successful in his flight from Detective.

¶33 Further, as already discussed, supra ¶¶ 24-29, the circumstances surrounding Horvath's obstruction overwhelmingly suggest that she knew Other Driver intended to flee from Detective's signal to stop. Had she not, there would have been little purpose for her obstructive act-one which ultimately permitted Other Driver to escape Detective. As a result, even had the jury been correctly instructed under Bird , there is no reasonable likelihood that the result would have been more favorable to Horvath. Thus, her ineffective assistance of counsel claim fails.

III. Reckless Driving Conviction

¶34 Horvath challenges as erroneous and void the judgment entered and the sentence imposed regarding her reckless driving conviction. This is the kind of error we review for correctness, affording no deference to the trial court's decision. See State v. Fairchild , 2016 UT App 205, ¶ 16, 385 P.3d 696.

¶35 The jury returned a guilty verdict on Horvath's reckless driving charge, and the trial court entered the conviction as a class A misdemeanor. For that conviction, the court then sentenced her to a jail term of 365 days, with 305 days suspended, and it also imposed a fine of $2,500. See generally Utah Code Ann. § 76-3-204(1) - (2) (LexisNexis 2017) (providing that a person convicted of a misdemeanor "may be sentenced to imprisonment ... for a term not exceeding one year" for a class A misdemeanor, or "for a term not exceeding six months" for a class B misdemeanor); id. § 76-3-301(1)(c)-(d) (providing that a person "convicted of an offense may be sentenced to pay a fine, not exceeding ... $2,500 for a class A misdemeanor conviction" or "$1,000 for a class B misdemeanor conviction"). Horvath argues that her reckless driving conviction was incorrectly entered as a class A misdemeanor instead of a class B misdemeanor and that her sentence was therefore illegal. See Utah R. Crim. P. 22(e)(1) (providing that a court "may correct a sentence when the sentence imposed" was improper under several enumerated circumstances, including when the sentence "exceeds the statutorily authorized maximums"); State v. Candedo , 2010 UT 32, ¶ 9, 232 P.3d 1008 (explaining that an appellate court may "vacate the illegal sentence without first remanding the case to the trial court" (quotation simplified) ). The State concedes this issue on appeal.

¶36 Horvath's claim of error on this point and the State's concession are clearly supported by the plain language of the reckless driving statute. That section states that reckless driving is a class B, not a class A, misdemeanor. Utah Code Ann. § 41-6a-528(2) (LexisNexis 2014). The trial court therefore erred when it entered judgment and sentenced Horvath on this conviction as a class A misdemeanor rather than a class B misdemeanor. Thus, we vacate the judgment and sentence on this conviction, see Candedo , 2010 UT 32, ¶ 9, 232 P.3d 1008, and we instruct the trial court on remand to enter judgment on Horvath's reckless driving conviction as a class B misdemeanor and amend its sentence accordingly.

CONCLUSION

¶37 We affirm Horvath's obstruction of justice conviction. However, we remand for the limited purpose of correcting the offense classification of Horvath's reckless driving conviction and amending her sentence.

      The penalty classification of obstruction of justice largely depends on the classification of the predicate criminal conduct. See Utah Code Ann. § 76-8-306(3) (LexisNexis 2017). Here, obstruction of justice predicated on failure to respond is a third degree felony. See id. § 76-8-306(3)(b)(i) ; id. § 41-6a-210(1)(b)(i) (2014). Obstruction of justice predicated on reckless driving is a class A misdemeanor. See id. § 76-8-306(3)(c) (2017) ; id. § 41-6a-528(2) (2014).

      As relevant here, Utah Code section 41-6a-210, the failure to respond statute, provides,
      (1)(a) An operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not: (i) operate the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person; or (ii) attempt to flee or elude a peace officer by vehicle or other means.
      (b)(i) A person who violates Subsection (1)(a) is guilty of a felony of the third degree.
      Id. § 41-6a-210(1) (2014) (emphases added).

      Utah Code section 41-6a-528, reckless driving, provides,
      (1) A person is guilty of reckless driving who operates a vehicle: (a) in willful or wanton disregard for the safety of persons or property; or (b) while committing three or more moving traffic violations under Title 41, Chapter 6a, Traffic Code, in a series of acts occurring within a single continuous period of driving covering three miles or less in total distance.
      (2) A person who violates Subsection (1) is guilty of a class B misdemeanor.

      The State concedes that the elements between obstruction of justice predicated on failure to respond and obstruction of justice predicated on reckless driving overlap for purposes of a lesser-included-offense instruction. For purposes of our analysis, we accept this concession but do so without reaching the merits.

      Horvath also argues that reversal is appropriate under the cumulative error doctrine. Under that doctrine, we "consider all the identified errors, as well as any errors we assume may have occurred" to determine whether, "even if the errors committed during the course of [her] trial were harmless individually, they were cumulatively harmful." State v. Dunn , 850 P.2d 1201, 1229 (Utah 1993). Horvath contends that both of the alleged instructional errors "increased the likelihood" that the jurors convicted her "even if they had doubts about the State's evidence." We disagree. Given the circumstances surrounding Horvath's obstruction of justice charge, we conclude that the assumed errors do not undermine our confidence that Horvath received a fair trial. See id. ; see also State v. King , 2010 UT App 396, ¶¶ 35, 38, 248 P.3d 984 (noting that we are less likely to reverse under cumulative error when there is overwhelming evidence of a defendant's guilt).