State v. Ochoa , 341 P.3d 942 ( 2014 )

2014 UT App 296_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JUAN OCHOA,
Defendant and Appellant.
Memorandum Decision
No. 20130042-CA
Filed December 18, 2014
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 111904845
Ronald Fujino, Attorney for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
DAVIS, Judge:
¶1 Juan Ochoa appeals his convictions of attempted aggravated
murder, a first degree felony, see Utah Code Ann. § 76-5-202
(LexisNexis Supp. 2014), and possession of items prohibited in a
correctional facility, a second degree felony, see id. § 76-8-311.3(4)(c)
(2012). Ochoa’s convictions arose from an incident in which Ochoa
attacked his cellmate with a shank while incarcerated at the Utah
State Prison. Ochoa challenges his convictions on the ground that
he received ineffective assistance of counsel at trial because his trial
counsel failed to object to several aspects of the jury instructions.
We affirm.
State v. Ochoa
¶2 To establish ineffective assistance of counsel, “a defendant
must show (1) that counsel’s performance was so deficient as to fall
below an objective standard of reasonableness and (2) that but for
counsel’s deficient performance there is a reasonable probability
that the outcome of the trial would have been different.” Myers v.
State, 2004 UT 31, ¶ 20, 94 P.3d 211 (citation and internal quotation
marks omitted). Because we conclude that Ochoa has failed to
establish that any error in the jury instructions was prejudicial, we
reject his ineffective assistance claim. See generally Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (“In the event it is ‘easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice,’ we will do so without analyzing whether
counsel’s performance was professionally unreasonable.” (quoting
Strickland v. Washington, 466 U.S. 668, 697 (1984))).
¶3 Ochoa first argues that the instructions impermissibly
directed the jury to find that he was an inmate in a correctional
facility, an element of each of the crimes with which he was
charged. Ochoa maintains that regardless of how apparent an
element may seem, the jury must be permitted to make a factual
determination on every element of a crime and counsel performs
ineffectively by not objecting when an instruction removes an
element from the jury’s consideration. Accordingly, Ochoa objects
to the jury instructions stating that “the Utah State Prison is a
correctional facility for purposes of these instructions” and that
“Ochoa was a prisoner in the Utah State Prison, a correctional
facility, at the time of the offenses charged by the State.” Although
Ochoa does not argue that there was any basis for the jury to have
determined that he was not a prisoner in a correctional facility, he
asserts that the court committed structural error by removing an
element of the charged offenses from the jury’s consideration. See
generally State v. Duran, 2011 UT App 254, ¶ 21, 262 P.3d 468(explaining that structural errors are errors that “are so intrinsically
harmful as to require automatic reversal” (citation and internal
quotation marks omitted)).
¶4 In support of his position, Ochoa relies on Alleyne v. United
States, 133 S. Ct. 2151 (2013), which held that an aggravating factor
20130042-CA 2 2014 UT App 296State v. Ochoa
that increases the penalty for an offense constitutes an element that
must be found beyond a reasonable doubt by a jury. Id. at 2161–62.
However, Alleyne does not suggest that a failure to submit such an
element to the jury is structural error, and indeed, the Supreme
Court has consistently held the opposite. See, e.g., Washington v.
Recuenco, 548 U.S. 212, 222 (2006) (“[F]ailure to submit an element
to the jury[] is not structural error.”); Neder v. United States, 527 U.S.
1, 8–10 (1999); accord Duran, 2011 UT App 254, ¶¶ 20–26; see also
United States v. Cotton, 535 U.S. 625, 632 (2002). Thus, even if we
were to assume that counsel performed deficiently by not objecting
to the instruction that Ochoa was a prisoner in a correctional
facility,1 Ochoa must still demonstrate that counsel’s failure was
prejudicial.
¶5 A reviewing court attempting to determine whether the
omission of an element from a jury instruction is harmless error
“asks whether the record contains evidence that could rationally
lead to a contrary finding with respect to the omitted element. If
the answer to that question is ‘no,’ holding the error harmless does
not reflec[t] a denigration of the constitutional rights involved.”
Neder, 527 U.S. at 19 (alteration in original) (citation and internal
quotation marks omitted). At trial, the State introduced evidence
indicating that Ochoa was an inmate in the “serious threat group”
section of the Utah State Prison. Ochoa did not contest this
evidence at trial, introduce any contradictory evidence, or
otherwise make any attempt to argue that he was not a prisoner in
a correctional facility.2 He has therefore failed to demonstrate that
1. Although we dispose of this issue on prejudice grounds, we also
observe that the decision to stipulate to an element of an offense
does not necessarily constitute deficient performance. See, e.g., State
v. Marble, 2007 UT App 82, ¶ 21, 157 P.3d 371 (holding that it was
reasonable trial strategy for counsel to stipulate to the fact that the
defendant held a position of special trust over his daughter, the
victim, for purposes of an aggravated sexual abuse charge).
2. On appeal, Ochoa does argue that “the Utah State Prison” is not
“a correctional facility,” because there was no evidence that it was
(continued...)
20130042-CA 3 2014 UT App 296State v. Ochoa
there was any basis on which the jury could have found that these
elements were not established. Accordingly, his ineffective
assistance claim with respect to this instruction fails. Cf. Duran,
2011 UT App 254, ¶¶ 27–32 (holding that where an element not
2. (...continued)
a “juvenile detention facility.” The Utah Code defines “correctional
facility” as
(i) any facility operated by or contracting with the
Department of Corrections to house offenders in
either a secure or nonsecure setting;
(ii) any facility operated by a municipality or a
county to house or detain criminal offenders;
(iii) any juvenile detention facility; and
(iv) any building or grounds appurtenant to the
facility or lands granted to the state, municipality, or
county for use as a correctional facility.
Utah Code Ann. § 76-8-311.3(1)(c) (LexisNexis 2012). Ochoa asserts
that the statute’s use of the word “and” indicates a requirement
that a facility meet all four of the listed definitions in order to be
considered a correctional facility. This reading of the statute is
erroneous. The statute defines “correctional facility” to mean any
of the four listed types of facilities. The repetition of various forms
of the phrase “any facility” within each subsection indicates that
each subsection identifies a distinct type of facility. Had the
legislature intended to identify multiple characteristics that a single
facility must exhibit in order to be a correctional facility, it would
have put the phrase “any facility” before the listed elements (i.e.,
a correctional facility is any facility that (i) is operated by or
contracting with the Department of Corrections to house offenders
in either a secure or nonsecure setting; (ii) is operated by a
municipality or a county to house or detain criminal offenders; (iii)
contains juvenile detention facilities; and (iv) is appurtenant to the
facility or lands granted to the state, municipality, or county for use
as a correctional facility). Furthermore, the definition Ochoa
prescribes is unreasonable because each of the four items clearly
identifies distinct types of facilities with different purposes, and
few, if any, correctional facilities will ever fall within all four
categories.
20130042-CA 4 2014 UT App 296State v. Ochoa
tried to the jury involved only legal disputes and not factual
disputes, any error in taking the issue from the jury was harmless
beyond a reasonable doubt).
¶6 Ochoa next argues that the instructions on the charge for
possession of items prohibited in a correctional facility omitted the
mens rea element. The jury was instructed that in order to convict
Ochoa of this charge, it must find beyond a reasonable doubt
“[t]hat on or about April 19, 2011, in Salt Lake County, State of
Utah: 1. The defendant, a prisoner; 2. Possessed a dangerous
weapon; 3. While incarcerated at the Utah State Prison.” The jury
was not instructed on the mental state required for this offense.
Although the State concedes that Ochoa’s counsel performed
deficiently by failing to object to this instruction, it maintains that
the error was harmless.
¶7 Once again, the record does not contain “evidence that could
rationally lead to a contrary finding with respect to the omitted
element.” See Neder, 527 U.S. at 19. Because the statute does not
identify a mens rea for this crime, the default mens rea of “intent,
knowledge, or recklessness” applies. See Utah Code Ann. § 76-2-
102 (LexisNexis 2012) (“Every offense not involving strict liability
shall require a culpable mental state, and when the definition of the
offense does not specify a culpable mental state and the offense
does not involve strict liability, intent, knowledge, or recklessness
shall suffice to establish criminal responsibility.”). However, there
was no rational basis for the jury to have concluded that Ochoa
possessed the shank and attacked his cellmate with it but did not
do so intentionally, knowingly, or recklessly. Furthermore, the
evidence that Ochoa used a shank to repeatedly stab his cellmate
was strong—no one else was in the cell with Ochoa and the
cellmate when the attack occurred, the cellmate sustained multiple
stab wounds, and Ochoa sustained no injuries. Thus, we are not
convinced that “there is a reasonable probability that the outcome
of the trial would have been different” had counsel objected to this
jury instruction. See Myers v. State, 2004 UT 31, ¶ 20, 94 P.3d 211(citation and internal quotation marks omitted).
20130042-CA 5 2014 UT App 296State v. Ochoa
¶8 Finally, Ochoa argues that the mens rea element of the
charge for attempted aggravated murder was not adequately
defined. The jury was instructed on attempt as follows:
A person is guilty of an attempt to commit a crime if,
acting with the kind of culpability otherwise required
for the commission of the offense, he engages in
conduct constituting a substantial step toward
commission of the offense. Conduct does not
constitute a substantial step unless it is strongly
corroborative of the actor’s intent to commit the
offense.
This instruction mirrors the language of a superseded version of
the attempt statute. See Utah Code Ann. § 76-4-101(1)–(2)
(LexisNexis 2003). The current version replaces “acting with the
kind of culpability otherwise required for the commission of the
offense” with “(i) intends to commit the crime; or (ii) when causing
a particular result is an element of the crime, he acts with an
awareness that his conduct is reasonably certain to cause that
result.” Act of May 3, 2004, ch. 154, § 1, 2004 Utah Laws 625; see also
Utah Code Ann. § 76-4-101 (2012).
¶9 While the attempt instruction given to the jury does not
reflect the mens rea identified in the current version of the Utah
Code, the attempted aggravated murder instruction informed the
jury that in order to convict Ochoa of attempted aggravated
murder it must find that he “[i]ntentionally attempted to cause the
death of” his cellmate “while confined as a prisoner in a
correctional institution.” (Emphasis added.) Ochoa asserts that the
use of the word “intentionally” in this instruction was insufficient
to cure the deficiency in the attempt instruction. In order to
accurately instruct the jury, Ochoa asserts, the words
“intentionally” and “attempted” should have been reversed so that
the instruction read “attempted to intentionally cause the death.”
He argues that the instructions, as worded, permitted the jury to
convict Ochoa for intentionally stabbing the cellmate, even if he did
not have the intent to kill.
20130042-CA 6 2014 UT App 296State v. Ochoa
¶10 We are not convinced that the jury was misled by the
instructions under the circumstances of this case.3 Our supreme
court has recognized that even where there is ambiguity in the
meaning of a jury instruction, “commonsense understanding of the
instructions in the light of all that has taken place at the trial [is]
likely to prevail over technical hairsplitting” when the jury
deliberates. State v. Hutchings, 2012 UT 50, ¶ 25, 285 P.3d 1183. In
this case, the jury was explicitly informed in both opening and
closing arguments by both the prosecutor and defense counsel that
it needed to find that Ochoa had the “intent to kill” his cellmate in
order to convict him of attempted aggravated murder. Cf. id.(concluding that an ambiguous jury instruction was not prejudicial
because “[t]he elements required to convict [the defendant] of
aggravated assault were correctly argued to the jury with the
correct mental states throughout the trial proceedings”).
Furthermore, defense counsel explicitly urged the jury to acquit
Ochoa on the theory that Ochoa intended only to injure his
cellmate, not to kill him. It was never suggested to the jury at trial
3. Nor are we persuaded that the language Ochoa claims the jury
instruction should have used—“attempted to intentionally cause
the death”—would have clarified the mens rea element of the
attempted murder jury instruction. This is because it would have
required the jury to find that the defendant had attempted not only
a result (“cause the death”) but a mens rea (“intentionally”). By its
nature, a criminal mens rea must describe the state of mind that
accompanies a proscribed act. In this case, the proscribed act is not
causing death; causing death was only a desired result. Rather, the
proscribed act was the assault with the shank, and the “attempt”
mens rea required that act to have been done with a specific
purpose, i.e., to cause the victim’s death. Thus, it might have been
clearer to instruct the jury that Ochoa had to have acted with the
intent to cause the victim’s death, but Ochoa’s proposed instruction
seems to miss the point by requiring that Ochoa have attempted
not only an unrealized result but also a mens rea that did not
actually occur. The instruction given—“[i]ntentionally attempted
to cause the death”—although not precise, more effectively
conveys the mens rea requirement of the charged crime.
20130042-CA 7 2014 UT App 296State v. Ochoa
that it could convict Ochoa of the attempted murder charge based
on a finding that Ochoa merely intended to injure his cellmate.
Moreover, the cellmate’s testimony that Ochoa said, “‘I gotta go,
die, kill you,’” while attacking the cellmate was strong evidence of
Ochoa’s intent, as was evidence indicating that the cellmate
suffered life-threatening injuries. Thus, we are not convinced that
any error in the jury instructions relating to the attempted
aggravated murder charge affected the outcome of the case.
¶11 Because we conclude that any errors committed by counsel
did not prejudice Ochoa, we reject his ineffective assistance of
counsel claims. Accordingly, we affirm Ochoa’s convictions.
20130042-CA 8 2014 UT App 296