State v. Seumanu , 443 P.3d 1277 ( 2019 )

2019 UT App 90THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
VILIAMU SEUMANU,
Appellant.
Opinion
No. 20150593-CA
Filed May 23, 2019
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 141900236
Brett J. DelPorto, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
MORTENSEN, Judge:
¶1 In retaliation for a drug deal gone sideways, Chris Leech
orchestrated the kidnapping of two individuals (Middleman and
Victim). Leech and several other individuals—including
defendant Viliamu Seumanu—held, bound, and transported
Middleman and Victim to a remote location in Weber Canyon.
There, Leech shot Victim and then told Middleman to shoot
Victim or else Leech would kill Middleman. Middleman
complied. Seumanu, under the orders of Leech, later destroyed
all physical evidence of the murder. Seumanu was charged with
murder, aggravated kidnapping of Victim and Middleman, and
obstruction of justice. A jury convicted Seumanu on all charges.
State v. Seumanu
He appeals one of the aggravated kidnapping convictions for
which he was sentenced to life without parole. We affirm.
BACKGROUND
The Murder
¶2 Middleman was supposed to deliver four ounces of
methamphetamine to a distributor (Soules) waiting at a local
residence (Residence). Middleman could not reach his supplier
and, therefore, could only procure two ounces. During the
additional two-day wait to get more methamphetamine,
Middleman confided his problem to Victim, who offered to get
the remaining two ounces for a little more money. After
Middleman was yet again unable to reach his supplier, he
accepted Victim’s offer to get the additional two ounces without
notifying Soules of the deal or the price increase.
¶3 Middleman waited at a friend’s house while Victim went
to get the drugs. Victim took longer than expected and stopped
answering his phone when Middleman called. This caused
Middleman to begin ignoring Soules’s repeated requests for an
update on where the drugs were.
¶4 After waiting several hours, Middleman had Soules pick
him up. Together, they went to the Residence, where Middleman
told Soules about Victim and how Victim was now in charge of
procuring the additional two ounces of methamphetamine.
Soules complained that she had customers waiting and urged
Middleman to get the problem taken care of before Leech
arrived. Soon thereafter, Leech arrived at the Residence.
¶5 Upon arrival, Leech pulled out a gun and asked
Middleman what was going on. Middleman tried to assure
Leech that he was dealing with it, to which Leech replied that he
had better get it done “or it was [Middleman’s] ass.” After this
exchange, Leech left a man with a gun in the garage with
20150593-CA 2 2019 UT App 90State v. Seumanu
Middleman and refused to let Middleman leave. Around this
time, Seumanu and several others arrived at the Residence.
¶6 In an effort to find and punish Victim, four men—Leech,
Seumanu, Middleman, and one other (Myore)—left the
Residence and went to an apartment where Victim was
supposed to meet Soules. When Victim arrived at the apartment,
Leech pulled a gun out and ordered Victim and Middleman to
lie face down, side-by-side, on the floor. Leech then frisked them
both, removed their shoes, and emptied their pockets. Victim
tried to explain that he had the additional two ounces of drugs,
but Leech told him to shut up. Leech then ordered Myore to
blindfold both men and tie their hands behind their backs, which
he did. While there were other people present in the room,
including Seumanu, no one tried to stop Leech.
¶7 In the early morning hours, Myore transferred
Middleman and Victim to the backseat of Myore’s truck.
Seumanu sat in the backseat next to Middleman and Victim.
Myore then drove Leech, Seumanu, Victim, and Middleman to
an abandoned road in Weber Canyon, stopping once for gas.
During their travels, Victim pleaded for his life and asked them
not to follow through with their plan. He promised not to say
anything to anyone, but Leech said it was already “too late.”
¶8 Leech asked Myore for his firearm, and Myore complied.
On Leech’s order, Seumanu opened the door of the truck and
escorted Middleman and Victim approximately 100 yards down
a hill. There, after their faces were uncovered, Middleman
looked to Victim, who said, “I guess this is it,” and, “I’m sorry,
bro.” Leech then shot Victim in the back.
¶9 Next, Leech unbound Middleman’s hands. He then
handed his gun to Middleman and said, “There’s your home
boy, you finish it or I’m going to kill you.” Middleman
attempted to fire a single shot at Victim, but the gun jammed.
Middleman quickly gave the gun back to Leech, who ordered
Seumanu to point a different gun at Middleman’s head.
20150593-CA 3 2019 UT App 90State v. Seumanu
Seumanu did so, and once the original gun was unjammed,
Leech gave it back to Middleman. With a gun pressed against
the back of Middleman’s head, Middleman shot Victim.
¶10 Victim was left alone where he was shot, and the four
other men—Leech, Seumanu, Myore, and Middleman—left in
the truck. On the way back to the Residence, Leech directed
everyone to pretend they were still trying to find Victim. Leech
further ordered Myore to clean, vacuum, and shampoo the
truck, and he told Seumanu to burn everything belonging to
Victim and Middleman. Myore and Seumanu complied.
The Investigation
¶11 Several months later, detectives from the West Valley City
Police Department discovered Victim’s body. Police interviewed
many of the people present the night of the murder, including
Seumanu. During Seumanu’s interview, he claimed that he did
not know what the officers were talking about and stated that “it
had been a while since he’d seen” Middleman; and he last saw
Victim three or four months earlier smoking outside an
apartment complex in Taylorsville. When pressed further,
Seumanu changed his story, admitting that he had been at the
Residence with Soules, Myore, Leech, Middleman, and Victim.
¶12 Seumanu then admitted that he waited for Victim at the
Residence along with Soules, Myore, Middleman, and Leech; he
got into Myore’s truck and went into the mountains; the group
stopped for gas on the way to Weber Canyon; they drove about
an hour; and they parked near a gate and everyone else got out
while he remained at the truck. Seumanu eventually told police
that Leech and Myore walked Middleman and Victim down a
hill while he followed, that he watched Leech shoot Victim, saw
Leech and Middleman walk toward Victim’s body, and saw
Middleman shoot Victim. Finally, Seumanu stated that when
they returned from Weber Canyon, Myore and Leech took care
of destroying evidence while he went home.
20150593-CA 4 2019 UT App 90State v. Seumanu
The Proceedings
¶13 Over a year before trial, the State filed charges against
Seumanu as an accomplice to one count of murder, two counts
of aggravated kidnapping, and one count of obstruction of
justice (Information). 1 Count 3 in the Information is titled
“AGGRAVATED KIDNAPPING” and makes specific reference
to the aggravated kidnapping statute: Utah Code section 76-5-
302. The Information also contains the State’s probable cause
statement describing Seumanu’s role in the kidnapping and that
during the course of Middleman’s kidnapping, Victim was shot
and killed.
¶14 On the morning of trial, Seumanu received the State’s
proposed verdict form (Verdict Form), proposed special verdict
form (Special Verdict Form), and proposed jury instruction 40
(Instruction 40). The Verdict Form listed the charges—including
count 3 for aggravated kidnapping—and required the jury to
indicate whether Seumanu was guilty or not guilty on each
charge. The Special Verdict Form required the jury to indicate
whether it found “beyond a reasonable doubt” that “[d]uring the
course of the commission of the Aggravated Kidnapping of
[Middleman,] [Seumanu], as a party, caused serious bodily
injury to [Victim]”—which, if found, could result in a sentence of
life without parole. Instruction 40 defined the “as a party”
language used in the Special Verdict Form. Specifically,
Instruction 40 stated that “a person can commit a criminal
offense even though that person did not personally do all of the
acts that make up the offense” if “(1) the defendant had the
mental state required to commit the offense, and (2) the
defendant solicited, requested, commanded, encouraged, or
intentionally aided another to commit the offense, and (3) the
1. The State filed a first amended Information on March 18, 2015,
and a second amended Information on March 24, 2015. Neither
amendment contains significant changes to the aggravated
kidnapping charge or facts relevant to that charge.
20150593-CA 5 2019 UT App 90State v. Seumanu
offense was committed.” When Seumanu’s counsel received the
Verdict Form, the Special Verdict Form, and Instruction 40, he
did not object, request a continuance, or indicate that he was
unprepared to proceed with trial.
¶15 At trial, Seumanu claimed that his presence at the
murder was coerced by Leech and that his actions did not
contribute to the murder. His wife (Wife) also testified that she
attempted to persuade Leech not to do anything, but he was
“gone in his mind” and would not listen. She claimed that she
attempted to prevent Leech from taking Seumanu with him, but
in response, Leech pointed his gun at her and insisted that
Seumanu would be leaving with him. And only then did
Seumanu agree to go. Finally, she testified that Seumanu
returned the next morning and called her to pick him up at the
Residence.
¶16 At least two accomplice witnesses also testified that
(1) Seumanu had a gun at some point on the night of the murder;
(2) Leech handled two guns at the murder scene while Seumanu
stood close by; (3) Seumanu was present for the drive up Weber
Canyon; (4) Seumanu hiked to the murder scene with Leech,
Middleman, and Victim; (5) Seumanu returned to the Residence
with the others; and (6) Leech ordered Seumanu to burn
everything belonging to Middleman and Victim. The trial court
did not specifically provide a cautionary instruction on
accomplice testimony, but it did provide a general credibility
instruction educating jurors generally on witness credibility,
including explicit instructions to consider whether any witnesses
had a personal interest in the outcome of the trial or had some
other bias or motive to testify a certain way.
¶17 After the evidence phase of trial, the parties discussed the
jury instructions and verdict forms. This time, Seumanu objected
to the Special Verdict Form on the grounds that he had not
received notice in the Information that the State was seeking a
life without parole sentence. The court overruled the objection
and allowed the State’s Special Verdict Form to be submitted to
20150593-CA 6 2019 UT App 90State v. Seumanu
the jury. The court also allowed the Verdict Form and
Instruction 40 as proposed by the State to be submitted to the
jury.
¶18 The jury convicted Seumanu on all charges and further
found, beyond a reasonable doubt, that Seumanu had caused
serious bodily injury to Victim during the commission of the
aggravated kidnapping of Middleman. The judge ultimately
imposed the statutory indeterminate sentences for three of the
four felony convictions and life without parole for one of the
aggravated kidnapping convictions. Seumanu appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 Seumanu raises three issues on appeal. First, he asserts
that he is entitled to a new trial because his Sixth Amendment
right to be given fair notice of the charges against him
was violated when the State failed to provide adequate notice
that it would seek a factual finding of “serious bodily injury”
under the aggravated kidnapping statute. 2 “A claim of
2. Seumanu does not challenge his conviction of aggravated
kidnapping, which is punishable by a term of imprisonment of
fifteen years to life. Utah Code Ann. § 76-5-302(3)(a) (LexisNexis
2017). Rather, he argues that the State failed to provide adequate
notice that if “the trier of fact finds that during the course of the
commission of the aggravated kidnapping the defendant caused
serious bodily injury to another,” he could be sentenced to life
without parole. Id. § 76-5-302(3)(b). Thus, if we were persuaded
on this issue, Seumanu would, at best, be entitled to resentencing
for his aggravated kidnapping conviction. See State v. Helmick,
2000 UT 70, ¶ 12, 9 P.3d 164; see also State v. Bryant, 2012 UT App
264, ¶ 20, 290 P.3d 33 (holding that because “life without parole
was not an available sentencing option” the defendant was
entitled only to be “resentenced on his aggravated kidnapping
conviction”).
20150593-CA 7 2019 UT App 90State v. Seumanu
inadequate notice presents a question of law that we review
for correctness.” State v. Bragg, 2013 UT App 282, ¶ 17, 317 P.3d
452.
¶20 Second, Seumanu argues that his defense counsel
provided ineffective assistance by not objecting to the “as
a party” language in the Special Verdict Form and/or Instruction
40, which defined the term. When a defendant argues that
his counsel was ineffective for the first time on appeal, there
is no ruling for this court to review and the issue
presents a question of law. See State v. Ott, 2010 UT 1, ¶ 16, 247
P.3d 344.
¶21 Third, Seumanu argues that the trial court plainly erred
by not sua sponte providing a cautionary jury instruction on
accomplice testimony. Ordinarily, claims regarding alleged
errors in the jury instructions are reviewed for correctness. See
State v. Malaga, 2006 UT App 103, ¶ 7, 132 P.3d 703. But because
Seumanu failed to preserve the issue, we review for plain error.
Id. 3
3. Seumanu further contends that pursuant to rule 23B of the
Utah Rules of Appellate Procedure, a remand is necessary for the
trial court to make findings on whether a cautionary instruction
on accomplice testimony was required. “The purpose of Rule
23B is for appellate counsel to put on evidence he or she now
has, not to amass evidence that might help prove an
ineffectiveness of counsel claim. To this end, appellate counsel is
required to submit affidavit evidence setting forth
nonspeculative facts showing the alleged deficient performance
of trial counsel.” State v. Bragg, 2013 UT App 282, ¶ 24 n.6, 317
P.3d 452 (cleaned up). Seumanu has failed to file both a separate
motion and an affidavit and instead attempts to bring this
motion by simply adding his rule 23B argument to the body of
his appellate brief. This is insufficient. See id. For this reason, we
decline to address this issue further.
20150593-CA 8 2019 UT App 90State v. Seumanu
ANALYSIS
I. Notice of Intent to Seek a Finding of “Serious Bodily Injury”
¶22 Seumanu contends that the State violated his Sixth
Amendment right to fair notice of the charges against him
because it failed to provide adequate notice that it intended to
seek a factual finding of “serious bodily injury” which, if found
beyond a reasonable doubt by the jury, would result in a
sentence of life without parole. After oral argument, we ordered
supplemental briefing for clarification on two key issues:
(A) whether a finding of “serious bodily injury” is an element of
the offense under Apprendi v. New Jersey, 530 U.S. 466 (2000) and
its progeny Alleyne v. United States, 570 U.S. 99 (2013), and if so,
whether the State was required to allege it in the Information;
and (B) whether the State was required to give Seumanu pre-
trial notice that it would seek a finding of “serious bodily
injury.” We discuss each in turn.
A. Element of the offense under Apprendi and Alleyne
¶23 The United States Supreme Court, in Apprendi, held that
“any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. at 490. This
holding was expanded to mandatory minimum sentences in
Alleyne, 570 U.S. 99.4
4. The Supreme Court in Apprendi and Alleyne reasoned that
requiring such facts to be considered elements of the offense
“enables the defendant to predict the legally applicable penalty
from the face of the indictment.” Alleyne, 570 U.S. 99, 114 (2013)
(citing Apprendi, 530 U.S. 466, 478–79 (2000)). Here, however,
Seumanu has conceded that the element of “serious bodily
injury” was not required on the face of the Information. See infra
¶ 26. Therefore, we limit our analysis to whether a finding of
(continued…)
20150593-CA 9 2019 UT App 90State v. Seumanu
¶24 Seumanu argues that “[a] finding of serious bodily
[injury] is an element of aggravated kidnapping because it
increases the penalty from 15-years-to-life to life without
parole.” Seumanu continues, “Because a finding that Seumanu
‘caused serious bodily injury to another’ is a factual finding . . .
that extended Mr. Seumanu’s prison stay from a minimum of 15
years—with the possibility of parole—to life without parole,
Apprendi and Alleyne require . . . it to be a factual finding that
must be determined by a jury.”
¶25 Even assuming that Seumanu is correct, and without
directly deciding the issue, he has conceded that the finding of
serious bodily injury was submitted to the jury and found
beyond a reasonable doubt as required by Apprendi and Alleyne.5
First, it is undisputed that the Special Verdict Form required the
jury to indicate whether it found “beyond a reasonable doubt”
that “[d]uring the course of the commission of the Aggravated
Kidnapping of [Middleman,] [Seumanu], as a party, caused
serious bodily injury to [Victim].” Second, Seumanu concedes
(…continued)
“serious bodily injury” should have been submitted to the jury
and proved beyond a reasonable doubt.
5. The State argues that “neither Apprendi nor Alleyne applies to
transform the [finding of serious bodily injury] into an element”
because it is merely a “sentencing factor” that establishes a
presumptive sentence for a particular type of aggravated
kidnapping. The State cites LeBeau v. State, 2014 UT 39, 337 P.3d
254, to support its argument that “[t]he sentencing scheme does
not enhance a sentence for a conviction but, based on two
identified sentencing factors, determines which sentence in the
range of possible sentences is the appropriate presumptive
sentence to be assigned to a particular conviction.” However,
because Seumanu has conceded that the element of serious
bodily injury was submitted to a jury and proved beyond a
reasonable doubt, we decline to address the State’s argument.
20150593-CA 10 2019 UT App 90State v. Seumanu
that he was “convicted of aggravated kidnapping” and that
“jurors also found . . . [that] he actually caused serious bodily
injury.” (Emphasis added.) Thus, Seumanu was not deprived of
his due process right to have elements of the crime charged
submitted to a jury and proved beyond a reasonable doubt.
¶26 To be clear, while Seumanu asserts on appeal that serious
bodily injury is an element under Apprendi and Alleyne, he does
not contend that it is an element that must be alleged in the
Information. The parties were ordered to provide supplemental
briefing on the issue of whether serious bodily injury is an
“element of the offense” under Apprendi and Alleyne, and if so,
whether it must be alleged in the Information. To the direct
question posed in our order for supplemental briefing—must an
element of serious bodily injury be alleged in the information—
Seumanu answered, “No.” We therefore consider the issue
conceded and decline to address it further. 6
B. Pre-Trial notice
¶27 Seumanu does contend, however, that the “State should
have—and did not—apprise [him] of its intent to seek a factual
finding of serious bodily injury under [Utah Code section 76-5-
302(3)(b)].” We disagree.
¶28 “The right of an accused to know the nature of the offense
with which he is charged is a fundamental right guaranteed by
both our federal and state constitutions.” State v. Nelson-
Waggoner, 2004 UT 29, ¶ 17, 94 P.3d 186. These constitutional
6. The State notes that “the question of whether Apprendi-type
elements must be alleged in an Information has not been decided
in this jurisdiction.” While we need not address the issue on the
merits, we note that in practice it would be prudent for
prosecutors to provide as express a notice as possible in order to
be more clear to defendants and to avoid attacks on the
sufficiency of the notice.
20150593-CA 11 2019 UT App 90State v. Seumanu
protections “ensure that the accused is given sufficient
information so that he or she can know the particulars of the
alleged wrongful conduct and can adequately prepare his or her
defense.” State v. Klenz, 2018 UT App 201, ¶ 34, 437 P.3d 504(cleaned up). Thus, “ultimately, as long as a defendant is
sufficiently apprised of the State’s evidence upon which the
charge is based so that the defendant can prepare to meet that
case, the constitutional requirement is fulfilled.” Id. ¶ 35 (cleaned
up).
¶29 Here, Seumanu’s contention that only “after the close of
evidence, [was] defense counsel . . . told in court that he should
have prepared a defense to a different crime, i.e., that Seumanu
caused serious bodily injury,” is not supported by the record.
The record shows that Seumanu was given adequate notice of
his charges, first in the Information and second in the Special
Verdict Form—both of which were received before trial.
¶30 Seumanu was provided sufficient pre-trial notice of the
serious bodily injury element in the Information. Count 3 in the
Information identifies aggravated kidnapping by both name and
section of the Utah Code. And where the aggravated kidnapping
statute provides that “[a]ggravated kidnapping is . . . punishable
by a term of imprisonment of . . . life without parole, if the trier
of fact finds that during the course of the commission of the
aggravated kidnapping the defendant caused serious bodily
injury to another,” Utah Code Ann. § 76-5-302(3)(b) (LexisNexis
2017), 7 Seumanu was unmistakably provided with sufficient pre-
trial notice of his possible sentence if convicted, see State v. Preece,
971 P.2d 1, 6 (Utah Ct. App. 1998) (holding that “an information
was not defective where it specifically provided the offense’s
statutory name and the section proscribing the relevant conduct”
because a defendant is responsible for “familiarizing himself
7. Because the statutory provision in effect at the relevant time
does not differ in any material way from the provision now in
effect, we cite the current version of the Utah Code.
20150593-CA 12 2019 UT App 90State v. Seumanu
with the actual language of the statute under which he had been
charged”).
¶31 Further, Seumanu was provided with pre-trial notice vis-
à-vis the factual allegations in the Information. Specifically, the
serious bodily injury attributed to Seumanu was the murder of
Victim, which occurred during the commission of the joint
kidnapping. The probable cause statement appended to the
Information elaborated on this allegation by describing the
kidnapping, the fact that Victim was shot twice, and when and
where during the kidnapping Victim was shot. Thus, the State
provided Seumanu with ample written notice in the Information
that the State intended to prove that serious bodily injury was
inflicted during the commission of the kidnapping. See State v.
Martinez, 896 P.2d 38, 41 (Utah Ct. App. 1995) (“[T]he State need
only allege the circumstance necessary to invoke the
enhancement statute in order to provide adequate due
process.”); see also State v. Pham, 2016 UT App 105, ¶ 26, 372 P.3d
734 (“Because being shot can lead to death, it is not inherently
unreasonable for a jury to find that a particular shooting resulted
in serious bodily injury by creating a substantial risk of death.”).
¶32 Seumanu was also provided sufficient notice of the State’s
intent to seek a finding of serious bodily injury in the Special
Verdict Form, which he received prior to trial. 8 The Verdict Form
listed each charge—including count 3—and required the jury to
indicate whether Seumanu was guilty or not guilty of each. The
8. Seumanu, in his briefing, infers that defense counsel was not
made aware of the Special Verdict Form until after the close of
evidence. However, the record reflects that defense counsel
received the Special Verdict Form at 7:25 a.m. on March 30,
2015—more than six hours before court convened for jury
selection. Importantly, having received this notice in writing
before the commencement of trial, Seumanu cannot claim he
would have conducted trial differently had he known that the
State would be submitting the Special Verdict Form.
20150593-CA 13 2019 UT App 90State v. Seumanu
Special Verdict Form further required the jury to indicate
whether it found “beyond a reasonable doubt” that “[d]uring the
course of the commission of the Aggravated Kidnapping of
[Middleman,] [Seumanu], as a party, caused serious bodily
injury to [Victim].” The Verdict Form and Special Verdict Form,
taken together, provide clear notice that the State intended to
seek a conviction of aggravated kidnapping under count 3 and a
finding of serious bodily injury.
¶33 In sum, we hold that the serious bodily injury component
was properly submitted to the jury and proved beyond a
reasonable doubt. We further hold that Seumanu was given
adequate pre-trial notice of the State’s intention to pursue a
factual finding of serious bodily injury. 9
II. Ineffective Assistance
¶34 Next, Seumanu argues that his trial counsel was
ineffective for not objecting to (1) the “as a party” language in
the Special Verdict Form and/or (2) Instruction 40, which defined
the phrase “as a party” in terms of accomplice liability. His
position is grounded on the premise that the aggravated
kidnapping statute requires that he personally cause serious
bodily injury to another during the kidnapping to be subject to a
sentence of life without parole. In other words, Seumanu argues
that accomplice liability cannot attach to aggravated kidnapping
because that statute is phrased in terms of direct liability, not
9. Seumanu also argued that his defense counsel was ineffective
for failing to object to the Special Verdict Form on the ground
that notice was inadequate. However, we conclude that
Seumanu’s counsel was not ineffective because pre-trial notice
was adequate, and therefore any objection on that ground would
have been futile. See State v. Christensen, 2014 UT App 166, ¶ 10,
331 P.3d 1128 (“The failure to raise futile objections does not
constitute ineffective assistance of counsel.” (cleaned up)).
20150593-CA 14 2019 UT App 90State v. Seumanu
indirect liability. And therefore, his counsel’s failure to object
constitutes ineffective assistance. We disagree.
¶35 First, we reject Seumanu’s argument that accomplice
liability cannot attach to criminal statutes that are phrased in
terms of direct, rather than indirect, liability. See, e.g., Utah Code
Ann. § 76-5-302(3)(b) (LexisNexis 2017) (providing that
aggravated kidnapping is punishable by a term of life without
parole “if the trier of fact finds that during the course of the
commission of the aggravated kidnapping the defendant caused
serious bodily injury to another” (emphasis added)); id. § 76-5-
202(1) (“Criminal homicide constitutes aggravated murder if the
actor . . . causes the death of another.” (emphasis added)). Indeed,
as a general matter, accomplice liability can, and does, attach to
criminal liability arising from statutes that are phrased only in
terms of direct liability. See State v. Clark, 2014 UT App 56, ¶ 55,
322 P.3d 761 (affirming convictions of an accomplice to “one
count of aggravated murder, two counts of attempted
aggravated murder, three counts of aggravated kidnapping, one
count of aggravated burglary, one count of aggravated robbery,
and one count of aggravated cruelty to animals”). 10
¶36 Second, because accomplice liability can attach to
aggravated kidnapping, the Special Verdict Form and
Instruction 40 accurately instructed the jury on the law. The
10. A nearly identical challenge to the application of accomplice
liability was rejected by our supreme court in State v. Briggs, 2008
UT 75, 197 P.3d 628. The court in Briggs held that the State was
not required to prove constructive possession before the
defendant could be convicted as an accomplice to the crime of
possession. Id. ¶ 20 (“If we were to hold that it is necessary for
an accomplice to be in actual possession of the contraband before
accomplice liability could be established, the State could charge
someone as an accomplice only when he or she had acted as a
principal. Accomplice liability would cease to have any
independent function.”).
20150593-CA 15 2019 UT App 90State v. Seumanu
general rule is that an accurate instruction upon the basic
elements of an offense is required. State v. Beckering, 2015 UT
App 53, ¶ 23, 346 P.3d 672. “To determine if jury instructions
correctly state the law, we look at [them] in their entirety and
will affirm when the instructions taken as a whole fairly instruct
the jury on the law applicable to the case.” Id. (cleaned up).
¶37 Instruction 40 correctly instructed the jury that Seumanu
could be found guilty on an accomplice liability theory. Utah’s
accomplice liability statute provides that a defendant is liable for
criminal conduct if, “acting with the mental state required for
the commission of an offense,” he “solicits, requests, commands,
encourages, or intentionally aids another person to engage in
conduct which constitutes an offense.” Utah Code Ann. § 76-2-
202 (LexisNexis 2017). Instruction 40 stated that “a person can
commit a criminal offense even though that person did not
personally do all the acts that make up the offense” if “(1) the
defendant had the mental state required to commit the offense,
and (2) the defendant solicited, requested, commanded,
encouraged, or intentionally aided another to commit the
offense, and (3) the offense was committed.” In our view,
Instruction 40 properly instructed the jury that Seumanu could
be found guilty, “as a party,” under the theory of accomplice
liability.
¶38 Similarly, the Special Verdict Form correctly instructed
the jury on aggravated kidnapping. The aggravated kidnapping
statute, in relevant part, provides that the crime is “a first degree
felony punishable by a term of imprisonment of . . . life without
parole, if the trier of fact finds that during the course of the
commission of the aggravated kidnapping the defendant caused
serious bodily injury to another.” Utah Code Ann. § 76-5-
302(3)(b). The Special Verdict Form stated that the jury was
required to indicate whether it found “beyond a reasonable
doubt” that “[d]uring the course of the commission of the
Aggravated Kidnapping of [Middleman,] [Seumanu], as a party,
caused serious bodily injury to [Victim].” Thus, aside from the
“as a party” phrase, the Special Verdict Form is a verbatim
20150593-CA 16 2019 UT App 90State v. Seumanu
recital of the serious bodily injury clause of the aggravated
kidnapping statute.
¶39 Taken as a whole, Instruction 40 and the Special Verdict
Form correctly instructed the jury on accomplice liability as
applied to aggravated kidnapping. In light of the fact that
accomplice liability can, and does, extend criminal liability
arising from statutes that are phrased in terms of direct liability,
see Clark, 2014 UT App 56, ¶ 55, and that Instruction 40
adequately describes the theory of accomplice liability, see Utah
Code Ann. § 76-2-202, the phrase “as a party” as used in the
Special Verdict Form and Instruction 40 was not erroneous.
¶40 Accordingly, we also reject Seumanu’s claim of ineffective
assistance. “To succeed on an ineffective assistance of counsel
claim, [Seumanu] must show both that counsel’s performance
was deficient and that the deficient performance prejudiced the
defense.” See Beckering, 2015 UT App 53, ¶ 21 (cleaned up). It is
well established, however, that the “failure of counsel to make
motions or objections which would be futile if raised does not
constitute ineffective assistance.” State v. Whittle, 1999 UT 96,
¶ 34, 989 P.2d 52 (cleaned up); see also State v. Ricks, 2013 UT App
238, ¶ 22, 314 P.3d 1033 (“The Sixth Amendment does not
require counsel to make futile objections.”). Thus, Seumanu’s
ineffective assistance claim must fail if objections to the Special
Verdict Form and Instruction 40 would have been futile if raised.
As shown above, there was no error in the Special Verdict Form
or Instruction 40, as to the “as a party” language, so objections to
either would have been futile.
III. Cautionary Instruction
¶41 Finally, Seumanu argues that the trial court plainly erred
by not sua sponte providing an accomplice instruction.
Specifically, Seumanu argues that the trial court erred by
ignoring its “obligat[ion] to properly apprise the jury of the
potentially unreliable nature of the accomplices’ testimony by
means of a special cautionary instruction.” (cleaned up). An
20150593-CA 17 2019 UT App 90State v. Seumanu
accomplice instruction is required only when (1) an accomplice
(2) gives uncorroborated testimony, and (3) the judge finds the
testimony “to be self contradictory, uncertain or improbable.”
State v. Dunn, 850 P.2d 1201, 1226 (Utah 1993) (quoting Utah
Code section 77-17-7(2)). Otherwise, “the giving of a cautionary
instruction is left to the trial court’s discretion.” State v. Neeley,
748 P.2d 1091, 1096 (Utah 1988).
¶42 This issue is not preserved, and we therefore review it for
plain error. See State v. Ringstad, 2018 UT App 66, ¶ 32, 424 P.3d
1052. To demonstrate plain error, Seumanu must show that
“(i) [a]n error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for
the appellant, or phrased differently, our confidence in the
verdict is undermined.” Dunn, 850 P.2d at 1208–09.
¶43 Here, Seumanu cannot show error—let alone obvious
error—because no accomplice instruction was required for two
reasons. First, any accomplice testimony of Seumanu’s
whereabouts on the night of the kidnapping and murder was
corroborated by non-accomplice testimony. Specifically,
Seumanu admitted, 11 and Wife testified at trial, that he was at
the Residence while Victim and Middleman were held at
gunpoint and tied-up; he left the Residence with Leech, Myore,
Victim, and Middleman; and Wife picked him up at the
Residence in the morning. Thus, accomplice testimony placing
Seumanu at the scene of the crime was sufficiently corroborated.
¶44 Second, Seumanu has not demonstrated that other
accomplice testimony relevant to Seumanu’s conduct and
participation in the kidnapping and murder, supra ¶ 16, was so
11. Seumanu made several admissions to police during an
interview. Those statements were admitted—without
objection—when police later testified at trial. See Utah R. Evid.
801(d)(2).
20150593-CA 18 2019 UT App 90State v. Seumanu
obviously self-contradictory, uncertain, or improbable that the
court’s decision not to give an accomplice instruction was
plainly in error. Seumanu’s sole argument on this point is that
each accomplice admitted generally to not being completely
honest with police during the investigation. This falls short of
showing that an accomplice instruction was obviously required.
Cf. State v. Marquina, 2018 UT App 219, ¶ 49, 437 P.3d 628(holding that uncorroborated accomplice testimony was
sufficient when “as to the core issue—[the defendant’s]
involvement in the [crime]—the stories were consistent” and
that “it was for the jury to weigh the evidence and to determine
the credibility of the witnesses” (cleaned up)). Indeed,
Seumanu’s general argument that accomplices were not honest
with police during their initial investigation does not
demonstrate that the accomplice testimony at trial was
inconsistent as to any specific fact, let alone a “core issue.” And
certainly, the nuance of the argument Seumanu now makes on
appeal would not have been obvious to the trial court.
¶45 Because the aforementioned material testimony was
either corroborated by Seumanu and his own witness, or
otherwise not so obviously inconsistent that a cautionary
accomplice instruction was required, see Utah Code Ann. § 77-
17-7(2) (LexisNexis 2017), we conclude that the court did not
commit plain error by not providing such an instruction.
¶46 Moreover, even if the trial court’s decision not to give an
accomplice instruction was obvious error, Seumanu cannot show
that the error was harmful. See Dunn, 850 P.2d at 1208–09. Our
supreme court has held that denying an accomplice instruction
was harmless when the court instructed the jury to evaluate the
witnesses’ credibility and those credibility concerns were
addressed at trial. Id. at 1226 (holding that any error was
harmless where the jury had evidence of the accomplice’s
motivation to lie but received a general credibility instruction);
Neeley, 748 P.2d at 1096 (holding that the court was within its
discretion to deny a cautionary instruction where an accomplice
20150593-CA 19 2019 UT App 90State v. Seumanu
witness was thoroughly cross-examined and testimony was
corroborated).
¶47 Here, the court instructed the jury on general witness
credibility, and its decision to not provide an accomplice
instruction therefore did not result in harm. Specifically, the trial
court instructed jurors generally on witness credibility, including
explicit instructions to consider whether any witnesses had a
personal interest in the outcome of the trial or had some other
bias or motive to testify a certain way. Under these
circumstances, an accomplice instruction “was simply not
necessary to prompt the jury to question [the] veracity” of the
accomplice witnesses, because the testimony, the arguments, and
the general instructions had already “alerted the jury to [their]
possible motives[s] for testifying with less than total candor.”
State v. Guzman, 2004 UT App 211, ¶ 37, 95 P.3d 302.
¶48 Seumanu cannot show that an accomplice instruction was
required, that the need to so instruct was obvious, or that the
trial court’s failure to provide such an accomplice instruction sua
sponte caused any harm. Therefore, under a plain error analysis,
Seumanu’s claim fails.
CONCLUSION
¶49 The State did not fail to provide adequate notice of its
intent to seek a finding of “serious bodily injury,” which could
result in a sentence of life without parole, and such a finding was
submitted to the jury and proved beyond a reasonable doubt.
Additionally, Seumanu’s trial counsel was not ineffective for
failing to object to the Special Verdict Form and/or Instruction 40
because those instructions correctly informed the jury of
accomplice liability theory potentially applicable to this appeal.
Finally, the trial court did not commit plain error by not
providing a cautionary accomplice instruction.
¶50 Affirmed.
20150593-CA 20 2019 UT App 90