State v. Florez , 2020 UT App 76 ( 2020 )

2020 UT App 76THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LORENZO M. FLOREZ,
Appellant.
Opinion
No. 20180827-CA
Filed May 14, 2020
Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 171800830
Emily Adams, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 An elderly woman (Victim) discovered Lorenzo M. Florez
at her back door, apparently trying to break into her house.
Police soon arrived, and a jury later convicted Florez of four
crimes, including attempted burglary (a third-degree felony) and
criminal trespass (a misdemeanor). Florez appeals those two
convictions, asserting that insufficient evidence supported his
conviction for attempted burglary, and that the trial court erred
by denying his request for a lesser-included-offense instruction.
In addition to the issues he raises on direct appeal, Florez has
also filed a motion, under rule 23B of the Utah Rules of
Appellate Procedure, asking us to remand the case for additional
proceedings as necessary to supplement the record to support a
claim that Florez’s trial counsel was ineffective for failing to
State v. Florez
investigate potential key witnesses. We reject Florez’s arguments
regarding sufficiency of the evidence and regarding the lesser-
included-offense instruction. But we find merit in Florez’s rule
23B motion, and we therefore remand this matter for further
proceedings concerning that motion.
BACKGROUND
¶2 On a Christmas Eve morning, Victim—a ninety-two-year-
old widow who lived alone—was taking a phone call on the
upper level of her house in Vernal, Utah. Victim’s backyard was
surrounded by a fence that was at least four feet high and—
having always felt safe in her neighborhood—she kept the gate
closed, but never locked. After completing her phone call, she
made her way down the stairs and, upon reaching the main
level, she heard an unexpected noise, which was coming from
the back door of her house. She turned to investigate, and saw a
man at the back door who was actively trying to pick the lock on
the outer door, using a “piece of wire.” Later, at trial, Victim
identified Florez as the man she saw at her back door.
¶3 Victim’s back door had both a regular door and a storm
door, which was a “pretty heavy door with bars going all the
way through it, plus the glass and a screen.” Victim opened the
regular door, but not the storm door, and confronted Florez,
telling him through the glass to “leave, go away.” Florez looked
at Victim briefly, and—without saying a word—persisted in his
efforts to pick the lock.
¶4 Victim then called her neighbor (Neighbor) and explained
the situation, and soon Neighbor and her son (Son) arrived at
Victim’s house. Neighbor also saw someone “with a wire” who
was “trying to jimmy the lock and get into [Victim’s] house.”
Neighbor went to the door and shouted “Hey[!]” at Florez, who
did not respond, but “just kept trying to jimmy the lock.”
Neighbor then called the police.
20180827-CA 2 2020 UT App 76State v. Florez
¶5 As the police were en route, Victim and her neighbors
remained in the house, with Son guarding the door and
watching Florez. At some point before the police arrived,
Florez—unprompted—stepped away from the storm door,
backed down the patio steps, and put his hands on his head.
¶6 About two minutes later, a police officer (Officer) arrived
and approached Florez, who was still standing on the back patio,
“fiddling around with something that was in his hands.” Officer
identified himself and, twice, asked Florez to show his hands,
but Florez “didn’t respond at all” and just “looked basically
right through” Officer. Later, Officer testified that Florez’s
behavior was consistent with that of an intoxicated person,
though Officer did not conduct any field sobriety tests or other
impairment investigation. Officer then placed Florez in
handcuffs, and removed an object from Florez’s hand, which
turned out to be a sprinkler head that Florez apparently had
broken off of the irrigation system in Victim’s backyard. Florez
did not have any other items on his person, but police later
found a wire—taken from the sprinkler head Florez had been
holding—on a nearby table, and also observed damage to the
lock on the storm door.
¶7 After placing Florez in handcuffs, Officer ordered Florez
to separate his feet to facilitate a search for weapons, but Florez
once again did not comply, so Officer “helped [Florez] separate
his feet.” Officer asked Florez what his name was, to which
Florez responded that he was a “federal agent.” Officer then
placed Florez in the back seat of his patrol car, where Florez
eventually shared his correct legal name, date of birth, and social
security number; when Officer checked that information in his
police database, he discovered two outstanding warrants for
Florez’s arrest. However, when Officer asked Florez to state his
current residence address, Florez gave Victim’s home address.
When the Officer pressed Florez a second time, Florez again
claimed that he resided at Victim’s address. After Officer again
20180827-CA 3 2020 UT App 76State v. Florez
expressed skepticism, Florez stated, “Well, I don’t know where
my address is, then.” Officer then arrested Florez. During the
booking process that followed, Florez again maintained that he
was a federal agent.
¶8 After investigating the matter, the State charged Florez
with four crimes: (1) criminal mischief, a class B misdemeanor,
for breaking Victim’s sprinkler; (2) attempted burglary, a third-
degree felony, for attempting to break into Victim’s house; (3)
criminal trespass, a class A misdemeanor, for trespassing on
Victim’s property; and (4) impersonating a peace officer, a class
B misdemeanor, for claiming to be a federal agent. After a
preliminary hearing, the court bound Florez over for trial on all
four charges, although prior to trial it amended the bindover on
the criminal trespass charge down to a class B misdemeanor.
¶9 The case proceeded to a jury trial. During its case-in-chief,
the State called four witnesses—Victim, Neighbor, Son, and
Officer—who gave testimony outlining the events described
above. Florez’s counsel cross-examined all of the State’s
witnesses, but Florez called no witnesses of his own and chose
not to testify on his own behalf. During cross-examination of
Officer, Florez’s counsel inquired whether Florez was “a
suspect” in other “events” that took place the same day as the
attempted break-in at Victim’s house, and Officer answered in
the affirmative. Florez’s counsel then asked Officer to recount
the nature of those other events, as described in his police report,
but the State lodged a hearsay objection, which the court
sustained, and Florez’s counsel was therefore unable to further
question Officer about those events.
¶10 At the close of the State’s evidence, Florez’s counsel
moved for a directed verdict on the attempted burglary charge.
The motion in its entirety consisted of a single statement: “I
guess my position right now would be to make a directed
verdict [motion] based on the burglary, attempted burglary, ask
20180827-CA 4 2020 UT App 76State v. Florez
the Court for a directed verdict. There’s absolutely no evidence
that could rise beyond a reasonable doubt on that count.” The
court denied the motion, discussing for a moment the question
of how a factfinder might ascertain a burglar’s criminal intent,
and concluding that “there is evidence here” from which “a jury
could infer” that Florez’s “intent . . . to try to get into the
residence was to take something or to do something other than
commit a misdemeanor offense.”
¶11 In addition to the directed verdict motion, Florez also
asked the court for a lesser-included-offense instruction
regarding the attempted burglary charge. Specifically, Florez
wanted the court to instruct the jury that, on that charge, it could
instead find him guilty of class A misdemeanor criminal
trespass, which Florez argued was a lesser-included offense to
attempted burglary. After some discussion, the trial court
appeared poised to grant Florez’s request and give the lesser-
included-offense instruction. But the State then made an
additional argument, pointing out that—given Florez’s chief
defense that, at the time, he was intoxicated and genuinely
believed Victim’s house was his, and therefore could not have
had the requisite intent to enter the property illegally—there was
no factual basis in the record for the jury to convict Florez of
criminal trespass but acquit him of attempted burglary, because
Florez’s defense, if believed, would absolve him of both crimes.
In response, Florez’s counsel did not take issue with the State’s
assumption that Florez’s chief defense was lack of mens rea for
either crime, and did not offer the court any scenario under
which Florez might be convicted of class A criminal trespass but
acquitted of attempted burglary. The court then determined that
it would not give the instruction Florez requested.
¶12 During closing argument, Florez’s counsel asked the jury
to find Florez not guilty, arguing that Florez did not have the
requisite mental state to have committed the charged crimes.
Much of counsel’s argument centered around the assertion that
20180827-CA 5 2020 UT App 76State v. Florez
Florez could not have had the mens rea to have committed any
crime, but at one point counsel argued to the jury—even though
he had not made any such argument to the court, during the jury
instruction conference—that “other circumstantial evidence
suggests that [Florez’s] actions would have been to annoy, not to
assault, [to] assert he was a federal agent, not to steal, not
commit a felony or any other action that would constitute a
burglary.” Following closing argument, the case went to the
jury, which found Florez guilty as charged on all four counts.
¶13 Following the trial, Florez obtained different counsel, and
in preparation for this appeal, the new attorney’s office
investigated the other “events,” in which Florez was considered
a “suspect,” that occurred on the same morning as the attempted
break-in of Victim’s house. Working from Officer’s police report,
an investigator located a witness to these previous events
(Witness). Witness lives in the same neighborhood as Victim. In
a sworn declaration submitted to this court in connection with
Florez’s rule 23B motion, Witness avers that, on the same
morning Florez was present in Victim’s backyard, a man who
appeared to be “on drugs” knocked on Witness’s front door.
After Witness opened the door, the man pushed past him, asking
Witness several times if Witness was “the feds.” After spending
a short time inside, the man left Witness’s house of his own
accord, and Witness then saw the man barge into another nearby
house and stay inside for under a minute, and heard the man
loudly ask the occupants of the other house if they were “the
feds.” Witness then observed the man leave the nearby house
voluntarily and then run off “down the street.” The occupants of
the other house emerged, and reported to Witness, consistent
with his own observations, that “a crazy guy had entered their
home, asked them if they were the feds, and left.” Police soon
arrived, and interviewed Witness. Witness claims in his affidavit
that he was prepared to testify to these facts in the event he was
called as a witness at trial.
20180827-CA 6 2020 UT App 76State v. Florez
ISSUES AND STANDARDS OF REVIEW
¶14 Florez now appeals his convictions for attempted
burglary and criminal trespass, 1 and asks us to consider two
issues in connection with the direct appeal. 2 First, Florez appeals
1. Florez does not appeal his class B misdemeanor convictions
for criminal mischief and impersonating a peace officer.
2. Florez raises two additional issues concerning his criminal
trespass conviction. First, he contends that his trial counsel
rendered ineffective assistance by not asking the trial court to
merge his conviction for criminal trespass into his conviction for
attempted burglary. Second, he asks us, pursuant to rule 22(e) of
the Utah Rules of Criminal Procedure, to correct his sentence on
the criminal trespass count, pointing out that he was convicted
of a class A misdemeanor despite the fact that the trial court only
bound over the charge as a class B misdemeanor. The State
concedes this second point. Florez argues that, if we reverse his
attempted burglary conviction, we should take the second path,
and reduce his criminal trespass conviction to a class B
misdemeanor, but if we affirm that conviction, we should take
the first path, and merge his criminal trespass conviction into his
attempted burglary conviction. Because we reject Florez’s first
two arguments on direct appeal, but grant Florez’s rule 23B
motion, our ultimate decision about whether to affirm or reverse
the attempted burglary conviction remains outstanding, and we
therefore elect to defer any decision on his remaining two
arguments until after remand. See, e.g., State v. Griffin, 2015 UT
18, ¶¶ 11, 57, 441 P.3d 1166 (staying a ruling on appellant’s
direct appeal “pending the outcome of the trial court
proceeding” on rule 23B remand). By contrast, we reach the
other two issues raised in Florez’s direct appeal—regarding the
denial of the directed verdict motion and the lesser-included-
offense instruction—because if Florez had been correct about the
(continued…)
20180827-CA 7 2020 UT App 76State v. Florez
the denial of his directed verdict motion, arguing that there was
insufficient evidence for the jury to conclude that he had the
requisite intent to commit burglary. Where the denial of a
directed verdict motion is at issue, we uphold the trial court’s
decision if we “conclude that some evidence exists from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” State v. Salgado, 2018
UT App 139, ¶ 30, 427 P.3d 1228 (quotation simplified).
¶15 Second, Florez appeals the trial court’s refusal to grant a
lesser-included-offense instruction. “A trial court’s refusal to
grant a lesser included offense instruction is a question of law,
which we review for correctness.” State v. Reece, 2015 UT 45,
¶ 16, 349 P.3d 712 (quotation simplified).
¶16 In addition to the issues raised on direct appeal, Florez
has also filed a motion under rule 23B of the Utah Rules of
Appellate Procedure, asking us to remand the case to the trial
court in order to give him an opportunity to supplement the
record with evidence to support a claim that his trial counsel
provided ineffective assistance on the attempted burglary
charge. “A remand under rule 23B is available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” See State v. Popp, 2019 UT App 173,
¶ 20, 453 P.3d 657 (quotation simplified).
(…continued)
directed verdict issue, that would have resulted in dismissal of
the attempted burglary charge (an eventuality that would have
rendered the rule 23B motion moot), and because the analysis
regarding the lesser-included-offense instruction is relevant to
the rule 23B discussion that follows.
20180827-CA 8 2020 UT App 76State v. Florez
ANALYSIS
I
¶17 Florez first appeals the denial of his directed verdict
motion on the attempted burglary charge, arguing that the State
failed to prove beyond a reasonable doubt that Florez had the
requisite intent to commit burglary. Under Utah law, a person
cannot be convicted of burglary unless the State proves that a
person both (a) “enter[ed] or remain[ed] unlawfully in a
building,” and (b) did so with the “intent to commit” a felony,
theft, assault, lewdness, sexual battery, or voyeurism. See Utah
Code Ann. § 76-6-202(1) (LexisNexis 2017); see also State v.
Johnson, 771 P.2d 1071, 1072 (Utah 1989) (“A person is guilty of
burglary if he or she (1) enters or remains unlawfully in a
building (2) with intent to commit a felony, theft, or assault.”).
Florez acknowledges that sufficient evidence exists to support
the conclusion that he was attempting to enter Victim’s house,
but asserts that the State presented insufficient evidence that he
was attempting to enter the house with the specific intent to
accomplish any of the nefarious acts listed in the burglary
statute. 3 See Utah Code Ann. § 76-6-201(1).
3. The State asserts that Florez failed to preserve his challenge to
the trial court’s denial of his directed verdict motion. The State
correctly points out that Florez’s oral motion consisted of one
rather vaguely-worded statement that did not mention the lack-
of-specific-intent argument he now raises on appeal. Had the
trial court offered a simple one-word denial of the motion, we
might be inclined to agree with the State’s position on
preservation. But that is not what happened. In this instance, the
trial court appeared to somehow understand that Florez’s
motion was aimed at the intent issue, and specifically ruled that
the State had presented sufficient evidence from which “a jury
(continued…)
20180827-CA 9 2020 UT App 76State v. Florez
¶18 “When specific intent is an element of a crime,
prosecutors must prove that intent beyond a reasonable doubt.”
State v. Carrell, 2018 UT App 21, ¶ 57, 414 P.3d 1030. But the State
is not required to prove specific intent through direct evidence,
which is often hard to come by. See State v. Robertson, 2005 UT
App 419, ¶ 15, 122 P.3d 895 (stating that intent is a “state of
mind, which is rarely susceptible of direct proof”). Indeed, we
have made clear that intent “need not be proved by direct
evidence but may be inferred from the actions of the defendant
or from surrounding circumstances,” and “can be inferred from
conduct and attendant circumstances in the light of human
behavior and experience.” See Carrell, 2018 UT App 21, ¶ 57
(quotation simplified). “When the mental state is proven by
circumstantial evidence, we examine whether the State
presented any evidence that the defendant had the requisite
intent or knowledge,” as well as “whether the inferences that can
be drawn from that evidence have a basis in logic and reasonable
(…continued)
could infer that” Florez’s “intent . . . to try to get into the
residence was to take something or to do something other than
commit a misdemeanor offense.” As our supreme court has
stated, the main point of our preservation rules is to afford a trial
court the opportunity to rule on a disputed issue, and where a
trial court actually makes a ruling on an issue, it has had that
opportunity. See Helf v. Chevron U.S.A., Inc., 2015 UT 81, ¶ 42, 361
P.3d 63 (stating that, “[w]here a [trial] court itself raises and then
resolves an issue sua sponte, it obviously had an opportunity to
rule on the issue,” and these circumstances “satisf[y] the basic
purposes of the preservation rule”); see also Kell v. State, 2012 UT
25, ¶ 11, 285 P.3d 1133 (holding that an issue was preserved for
appeal when “the [trial] court not only had an opportunity to
rule on the issue . . . [but] it did rule on it”). Under the
circumstances presented here, we conclude that the lack-of-
intent issue was preserved for appellate review.
20180827-CA 10 2020 UT App 76State v. Florez
human experience sufficient to prove that the defendant
possessed the requisite intent.” State v. Maestas, 2012 UT 46,
¶ 179, 299 P.3d 892 (quotation simplified).
¶19 In burglary cases specifically, our supreme court has
stated that “burglarious intent is a mental state of the actor,” and
that “the trier of fact must resort to reasonable inferences based
upon an examination of the surrounding circumstances to
reasonably infer its existence.” See State v. Porter, 705 P.2d 1174,
1177 (Utah 1985) (quotation simplified). However, this inference
must be based on something more than merely a defendant’s
entry (or attempted entry) into a building. See Johnson, 771 P.2d
at 1073 (stating that “the act of entering alone does not give rise
to an inference that the actor entered with the requisite intent to
constitute burglary” (quotation simplified)).
¶20 “Intent with which an entry is made is rarely susceptible
of direct proof. It is usually inferred from circumstantial
evidence: the manner of entry, the time of day, the character and
contents of the building, the person’s actions after entry, the
totality of the surrounding circumstances, and the intruder’s
explanation.” Porter, 705 P.2d at 1177; see also Johnson, 771 P.2d at
1073 (concluding that a jury can reasonably infer the requisite
intent from a defendant’s unauthorized presence in the bedroom
of an apartment, the fact that a jewelry box had been “disturbed
and that the lid was open,” and the fact that the defendant
volunteered that he was “looking for a friend” but could not
provide police with an address where any such friend resided);
State v. Sisneros, 631 P.2d 856, 859 (Utah 1981) (“When one breaks
and enters a building in the nighttime, without consent, an
inference may be drawn that he did so to commit larceny.”);
Robertson, 2005 UT App 419, ¶ 16 (concluding that a jury can
infer the requisite intent from a defendant’s unauthorized
presence on the victim’s premises, evidence of forced entry, and
the defendant’s subsequent flight from the scene).
20180827-CA 11 2020 UT App 76State v. Florez
¶21 Florez argues that the circumstantial evidence, even
including the inferences that could be drawn therefrom, is
insufficient to support a conclusion that he was attempting to
enter Victim’s house to commit a felony, assault, theft, or sex
crime. Though Florez acknowledges that he broke Victim’s
sprinkler head and poked a wire into her backdoor lock, he notes
that he ultimately stepped away from the door of his own
volition, and asserted several times that the house was his.
Florez also points out that the incident occurred in broad
daylight, and that he did not say anything indicating that he
meant Victim any harm.
¶22 In response, the State notes that Florez was using a
burglary tool—a wire he had broken off of the sprinkler—to try
to break into the house, and that he persisted in trying to pick
the lock even after Victim and Neighbor each confronted him
and told him to leave. The State points out that, at least by this
point, Florez knew the house was not his, and that its occupant
was an elderly woman. The State acknowledges that Florez was
making his attempt in broad daylight rather than under cover of
darkness, but points out that Florez chose to use Victim’s back
door rather than her front door, a choice that may imply a desire
to remain unseen. In short, the State asserts that “a jury could
reasonably infer from [Florez’s] persistence in jimmying the
locked door, even after [Victim] confronted him, that he
intended to do more than merely annoy her,” and that his
“persistence was itself threatening and that he viewed [Victim]
as easy prey for more serious criminality.”
¶23 We take Florez’s point that the State’s evidence of intent is
perhaps weaker than the evidence the State is sometimes able to
present in other burglary cases. See, e.g., Johnson, 771 P.2d at
1073; State v. Baer, 2019 UT App 15, ¶¶ 9–11, 438 P.3d 979(affirming the denial of a directed verdict motion on a burglary
charge for an unlawful entry into a public swimming pool,
noting, among other things, that the event occurred after hours
20180827-CA 12 2020 UT App 76State v. Florez
and that the defendant made off with a lockbox full of cash);
State v. Harris, 2015 UT App 282, ¶ 10–12, 363 P.3d 555 (affirming
the denial of a directed verdict motion on a burglary charge,
noting that, when he was arrested, the defendant was found in
possession of burglary tools, a piece of glass from the window of
the burgled store, and several items consistent with the
inventory of the store). But our supreme court has affirmed a
burglary conviction in at least one case in which the evidence of
burglarious intent was not all that different from the evidence
present here. In Sisneros, the defendant entered a business at
night by breaking a window, and was later discovered in the
company president’s office “standing against a wall as if he were
hiding”; a drawer in a secretary’s desk was open. Sisneros, 631
P.2d at 857. Upon being discovered, the defendant “shouted
profanities” and that “a revolution was coming,” and threatened
that he would kill certain people. Id. Arresting officers found no
indication that any property was missing, but noticed that the
defendant “seemed to be under the influence of alcohol.” Id. at
857–58. After being charged with burglary, the defendant
argued—as Florez does here—that insufficient evidence existed
to show burglarious intent. Id. A jury convicted him of burglary,
and our supreme court affirmed, focusing on the surreptitious
nature of the entry, and stating that “[w]hen one breaks and
enters a building in the nighttime, without consent, an inference
may be drawn that he did so to commit larceny.” Id. The court
also emphasized that it was “no defense” to say that “nothing
was missing” from the premises, and concluded that, “[o]n the
facts of this case, the jury could reasonably infer that defendant
entered the building for the purpose of theft.” Id. at 859.
¶24 As in Sisneros, the jury could have reasonably inferred, on
the facts of this case, that Florez was attempting to enter Victim’s
home for a burglarious purpose. That is, in our view there is at
least “some evidence” upon which a jury could find burglarious
intent beyond a reasonable doubt. Salgado, 2018 UT App 139,
¶ 30. Even though Florez did not attempt his entry at night, he
20180827-CA 13 2020 UT App 76State v. Florez
did attempt it in a backyard, outside the view of people passing
on the street; there is therefore some evidence of
surreptitiousness. And while Florez was not found in possession
of more typical burglary tools, he was caught using a wire
implement to try to jimmy the lock on the storm door. And
perhaps most significantly, he also persisted in his efforts to gain
access to Victim’s house, even after learning that the occupant of
the house was an elderly woman, and even after Victim and
Neighbor both confronted him and Victim told him to leave. 4
¶25 We acknowledge that there is evidence from which a jury
might have drawn a different inference. Florez appeared to be
intoxicated, making implausible claims about federal agents and
owning Victim’s house, and did not actually succeed in gaining
entry. Other than the broken sprinkler head and minor damage
to the storm door’s lock, none of Victim’s property was taken or
damaged. Florez said nothing that would indicate that he
intended to harm Victim. And before Officer arrived, Florez had
already stepped away from the storm door, backed down the
patio steps, and put his hands on his head. But many of these
countervailing factors were also present in Sisneros: in that case,
4. Citing out-of-state case law, see Gebhart v. State, 531 N.E.2d 211(Ind. 1988), Florez attempts to draw a distinction between
completed burglary cases and attempted burglary cases,
asserting that “intent is harder to infer in attempted burglary
cases.” We take Florez’s point that, where entry into the building
has not been completed, evidence of burglarious intent may be
less compelling than otherwise because the defendant did not
actually carry out that intent. But the absence of a completed
entry does not necessarily render other evidence of intent
insufficient. Regardless of whether entry has been completed, we
are to examine the “totality of the surrounding circumstances,”
State v. Porter, 705 P.2d 1174, 1177 (Utah 1985), which we here
find sufficient to support an inference of burglarious intent.
20180827-CA 14 2020 UT App 76State v. Florez
the defendant appeared intoxicated and was making implausible
claims about “revolution”; the defendant was discovered just
standing in a room as if he were hiding; and other than the
broken window, no property was taken or damaged. Sisneros,
631 P.2d at 857–58.
¶26 On balance, after examining the totality of the
circumstances, we conclude that the State’s case, while not
overwhelming, was sufficient to satisfy the applicable standard
of review. Because there was “some evidence” upon which a
jury could have found burglarious intent beyond a reasonable
doubt, we conclude that the court committed no error in denying
Florez’s directed verdict motion.
II
¶27 Florez next asserts that the trial court erred by rejecting
his request for a lesser-included-offense instruction for criminal
trespass on the attempted burglary charge. This instruction, if
given, would have allowed the jury to select between attempted
burglary and criminal trespass (as a class A misdemeanor) on
the attempted burglary count. But under the circumstances, we
cannot fault the trial court for failing to give a lesser-included-
offense instruction, because Florez did not alert the court to the
issue he now complains about on appeal. Florez’s challenge is
therefore unpreserved.
¶28 Under Utah law, a defendant is “entitled to a lesser-
included-offense instruction when: (1) the two offenses are
related because some of their statutory elements overlap, and the
evidence at trial of the greater offense involves proof of some or
all of those overlapping elements; and (2) the evidence provides
a rational basis for a verdict acquitting the defendant of the
offense charged and convicting the defendant of the lesser-
included offense.” See State v. Kell, 2002 UT 106, ¶ 23, 61 P.3d
1019 (quotation simplified); see also State v. Baker, 671 P.2d 152,
20180827-CA 15 2020 UT App 76State v. Florez
158–59 (Utah 1983) (interpreting section 76-1-402 of the Utah
Code and distilling the two-part test cited in Kell).
¶29 With respect to the first part of the test, the trial court
acknowledged sufficient overlap between the elements of
burglary and criminal trespass, and the State concedes this point
on appeal. See, e.g., State v. Neeley, 748 P.2d 1091, 1095 (treating
criminal trespass as a lesser-included offense of burglary); Baker,
671 P.3d at 159–60 (same). We therefore proceed to the second
part of the test: whether a rational basis exists in the evidence for
acquitting Florez of attempted burglary but convicting him of
criminal trespass. See Kell, 2002 UT 106, ¶ 23.
¶30 Florez made a timely motion for a lesser-included-offense
instruction on the attempted burglary charge, and the trial court
heard argument on that motion during trial, outside the
presence of the jury, after each side had rested its case. During
that discussion, the trial court acknowledged that the elements
of the two crimes overlapped, and noted Florez’s defense that
“he was trying to get into [the] home because he believed it was
his residence,” and posited that this argument “raises a quantum
of proof that would allow a lesser-included charge for attempted
criminal trespass of a dwelling.” Accordingly, the court
appeared ready to grant Florez’s motion.
¶31 But the State made additional argument, and pointed out
that Florez’s defense—that he believed Victim’s house was
actually his own—would not provide the necessary “rational
basis” in the evidence for the requested instruction, because that
defense, if believed, would absolve Florez of both crimes, and
would not provide an evidentiary pathway for Florez to be
acquitted of attempted burglary but convicted of criminal
trespass. In response, Florez’s counsel acknowledged that the “I
thought it was my house” defense was Florez’s chief defense,
and he mentioned no other; specifically, counsel did not point to
any evidence supporting the notion that Florez knew the house
20180827-CA 16 2020 UT App 76State v. Florez
was not his but that he intended to enter it for a non-felonious
purpose (such as to annoy the occupants). Earlier that day, in
cross-examination of Officer, Florez’s counsel had attempted to
introduce evidence of other “events” that occurred on the same
morning as the attempted break-in of Victim’s house, but had
been unable to procure admission of that evidence. In short,
during the discussion on the jury instruction motion, Florez did
not argue that he might have had criminal intent sufficient to
support a conviction for criminal trespass, but insufficient to
support a conviction for attempted burglary; indeed, even when
essentially invited to do so, Florez did not articulate for the court
any argument along these lines. Given Florez’s failure to point to
any evidence, or even articulate a defense, that might fit the facts
necessary to support a lesser-included-offense instruction, the
trial court “chang[ed its] ruling” and denied Florez’s request for
such an instruction.
¶32 On appeal, Florez points out that, during the closing
argument that followed the jury instruction conference, his trial
counsel did assert that “circumstantial evidence suggests that
[Florez’s] actions would have been to annoy, not to assault,
assert he was a federal agent, not to steal, not commit a felony or
any other action that would constitute a burglary.” But Florez
did not make this argument during the jury instruction
conference, when the trial court was considering the question of
whether to give the requested lesser-included-offense
instruction; by the time Florez’s counsel made this argument
during closing, the jury had already been instructed. And
Florez’s counsel did not renew his request for a lesser-included-
offense instruction after making his closing argument.
¶33 As we previously explained, the primary purpose of our
preservation requirements is to “put the [trial] court on notice of
an issue and provide it with an opportunity to rule on it.”
Donjuan v. McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839 (quotation
simplified). When a party asks a trial court to take an action
20180827-CA 17 2020 UT App 76State v. Florez
based on a particular legal theory, that party has preserved for
appeal only the theory raised; that party will not be allowed, on
appeal, to assign error to the trial court’s ruling based on a
different legal theory. See State v. Low, 2008 UT 58, ¶ 17, 192 P.3d
867 (stating that, “if a party makes an objection at trial based on
one ground, this objection does not preserve for appeal any
alternative grounds for objection”); see also State v. Sanchez, 2018
UT 31, ¶¶ 31–32, 422 P.3d 866 (at trial, the defendant attempted
to win admission of certain statements, and articulated “four
separate theories of admissibility” in support of his efforts, but
did not assert any constitution-based theory; on appeal, the
constitutional theory was deemed unpreserved); In re D.V., 2011
UT App 241, ¶ 9, 265 P.3d 803 (at trial, a party objected to the
admission of certain evidence on hearsay grounds; on appeal,
the party asserted a different theory—inapplicability of the
governing rule—and that theory was held unpreserved).
¶34 In this case, the trial court stated its perception of what
Florez’s chief defense theory was—that he thought the house
was his—and proceeded to analyze the “rational basis” part of
the lesser-included-offense instruction test with that defense in
mind. At no point during the jury instruction conference did
Florez tell the court that he intended to articulate a different
defense theory, or that the court was misperceiving the way in
which he was defending the case. Based on that information, the
court then made its ruling and instructed the jury. And after he
articulated something of a different theory during closing
argument, Florez did not renew his request for the instruction.
¶35 Under such circumstances, we cannot fault the trial court
for making the ruling it made, and we consider unpreserved the
issue Florez now seeks to raise on appeal. And because Florez
does not ask us to analyze this issue for plain error or for
ineffective assistance, we do not consider it further. See State v.
Hodges, 2002 UT 117, ¶ 5, 63 P.3d 66 (“Because defendant has not
asserted either of the exceptions to the general rule—plain error
20180827-CA 18 2020 UT App 76State v. Florez
or exceptional circumstances—we decline to address [his
claims].”); State v. Soules, 2012 UT App 238, ¶ 8, 286 P.3d 25(stating that, where the defendant “does not assert plain error or
exceptional circumstances[,] . . .we do not address the merits” of
the claim).
III
¶36 Finally, Florez asks us to consider his motion, filed
pursuant to rule 23B of the Utah Rules of Appellate Procedure,
in which he seeks an order remanding this case to the trial court
for supplementation of the record regarding a separate possible
claim of ineffective assistance of counsel, this one potentially
affecting his conviction for attempted burglary. Specifically,
Florez intends to argue that his trial counsel was ineffective for
failing to call witnesses to provide first-hand accounts of the
“events” that occurred on the same Christmas Eve morning, in
which an individual—suspected to be Florez—entered into at
least two other houses in Victim’s neighborhood, asked if the
occupants were “the feds,” and then voluntarily left the
premises. Florez maintains that introduction of evidence
regarding these other events would have improved his case in
several ways, including (a) providing support for the notion that
his intent in attempting to enter Victim’s house was not
felonious or burglarious, but rather was simply to inquire about
“the feds”; and (b) providing a rational basis upon which a jury
could have acquitted him of attempted burglary and instead
convicted him on that count of the lesser-included offense of
class A criminal trespass of a dwelling.
¶37 A movant must make a four-part showing in order to
obtain a remand order under rule 23B. First, the rule 23B motion
“must be supported by affidavits setting forth facts that are not
contained in the existing record.” State v. Norton, 2015 UT App
263, ¶ 6, 361 P.3d 719 (quotation simplified). Second, the
affidavits must contain “allegations of fact that are not
20180827-CA 19 2020 UT App 76State v. Florez
speculative.” Id. (quotation simplified). Third, the allegations
contained in the affidavits “must show deficient performance by
counsel.” Id. (quotation simplified). And finally, the affidavits
“must also allege facts that show the claimed prejudice suffered
by the appellant as a result of the claimed deficient
performance.” Id. (quotation simplified). Importantly, the third
and fourth elements require the defendant to “present the court
with the evidence he intends to present on remand and explain
how that evidence supports both prongs of the ineffective
assistance of counsel test.” State v. Gallegos, 2018 UT App 192,
¶ 23, 437 P.3d 388 (quotation simplified), aff’d, 2020 UT 19. “[I]f
the defendant could not meet the test for ineffective assistance of
counsel, even if his new factual allegations were true, there is no
reason to remand the case, and we should deny the motion.”
State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166. Florez has
satisfied these elements here.
¶38 By supporting his motion with affidavits containing
nonspeculative allegations of fact that are not currently in the
record, Florez has met the first two elements of the test. Florez’s
motion is supported by two sworn statements, one from an
attorney-investigator and one from Witness, who told the
investigator he would be willing to testify if necessary. In his
affidavit, the investigator explains that he set out to learn more
about the events described in Officer’s police report, and that he
“decided to interview residents of the area” in Victim’s
neighborhood where these events were supposed to have taken
place, and that he “knocked on houses” in an effort to obtain
information. At one of the houses, Witness answered the door,
and eventually gave the investigator a sworn declaration
attesting that, on the same morning as the events of this case, a
man who appeared to be “on drugs” knocked on Witness’s front
door. The man “start[ed] yelling, asking [Witness] if [he] was
‘the feds,’” and then “left the house” after a few minutes.
Witness then observed the man go to a nearby house, where he
“did not knock or ring their doorbell; he just barged in” and
20180827-CA 20 2020 UT App 76State v. Florez
started “yelling at the neighbor if they were the feds.” After less
than a minute in the neighbor’s house, the man “ran out,” then
“loiter[ed] in the middle of [the] street for about 30 to 45
seconds,” then “took off and ran down the street.” Witness then
spoke with the occupants of the other house, who reported to
him, consistent with his own observations, that “a crazy guy
[had] entered their home, asked [the neighbors] if they were the
feds, and left.” Officer soon arrived, but the man was gone by
then, and Witness told Officer what had happened. Officer
recorded Witness’s version of events in his police report.
¶39 The facts set forth in these statements are not speculative,
and none of them are in the record. Florez’s trial counsel
attempted to ask Officer about the events in question, but the
court sustained the State’s hearsay objection, and therefore the
jury did not hear much about these events. Neither Witness nor
any other percipient observer testified about these events, and
Officer was prevented from telling the jury anything more than
the fact that there were some other “events” that took place that
morning and that Florez was considered a suspect in them. We
think Florez is correct when he asserts that this evidence could
have been helpful to his cause. If the jury had learned that an
individual—suspected to be Florez—had been barging into other
houses in the neighborhood that same morning only to ask if the
occupants were “the feds” before leaving of his own accord after
just a minute or two, the jury may well have been more inclined
to credit Florez’s argument, specifically made during closing
argument, that Florez had no burglarious intent but, instead,
was entering the houses for a more benign purpose (such as
annoyance, or crazily asking about “the feds”). Had the jury
credited that argument, it could have been more inclined to
acquit Florez of attempted burglary. And had this evidence been
admitted at trial, Florez’s counsel would have been much better
positioned to argue for a lesser-included-offense instruction on
the attempted burglary count.
20180827-CA 21 2020 UT App 76State v. Florez
¶40 We must next consider whether these facts could support
a claim that Florez’s trial counsel rendered ineffective assistance.
See Norton, 2015 UT App 263, ¶ 6. In order to assess whether this
evidence, if added to the record, could support a claim for
ineffective assistance, we apply the two-part test articulated in
Strickland v. Washington, 466 U.S. 668 (1984): Florez must be able
to demonstrate (1) that his counsel’s performance was deficient,
in that it “fell below an objective standard of reasonableness,”
and (2) that this “deficient performance prejudiced the defense”
by giving rise to “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 669, 687–88; see also State v. Ray, 2020 UT
12, ¶ 24; State v. Scott, 2020 UT 13, ¶ 28.
¶41 To determine whether counsel’s performance was
deficient under the first part of the test, we apply “the deficiency
standard announced in Strickland” and ask whether counsel’s
actions “fell below an objective standard of reasonableness.”
Scott, 2020 UT 13, ¶ 31 (quotation simplified); see also Archuleta v.
Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232 (“To prevail, a defendant
must show . . . that his counsel rendered a deficient performance
in some demonstrable manner,” and that counsel’s
“performance fell below an objective standard of reasonable
professional judgment.” (quotation simplified)). One factor
courts examine, in evaluating whether an attorney performed
deficiently, is whether the attorney had a strategic reason for
taking the action in question. See Scott, 2020 UT 13, ¶ 35 (stating
that “the performance inquiry will often include an analysis of
whether there could have been a sound strategic reason for
counsel’s actions”). If the court determines that the attorney had
a valid strategic reason for his actions, then “it follows that
counsel did not perform deficiently.” Id.; see also State v. Ray,
2020 UT 12, ¶ 34 (“If it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.”).
20180827-CA 22 2020 UT App 76State v. Florez
¶42 But our supreme court has recently clarified that, despite
some language to the contrary in prior cases, the “converse is not
true.” State v. Ray, 2020 UT 12, ¶ 34. A court’s determination that
an attorney did not have a valid strategic reason for his actions
does not automatically lead to the conclusion that the attorney
performed deficiently. Id.; see also Scott, 2020 UT 13, ¶ 36 (“[E]ven
where a court cannot conceive of a sound strategic reason for
counsel’s challenged conduct, it does not automatically follow
that counsel was deficient”). In that situation, the court still must
“ask whether, in light of all the circumstances, the attorney
performed in an objectively reasonable manner.” Ray, 2020 UT
12, ¶ 34; see also Scott, 2020 UT 13, ¶ 36 (“[E]ven if a court
concludes that counsel made an error, the ultimate question is
always whether, considering all the circumstances, counsel’s acts
or omissions were objectively unreasonable.”).
¶43 In evaluating prejudice under the second part of the test,
we assess whether there exists a reasonable probability that the
case would have had a different outcome had trial counsel not
performed deficiently. See Garcia, 2017 UT 53, ¶¶ 34–38. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceeding. Strickland, 466
U.S. at 694. In assessing whether a defendant has met this
standard, we “consider the totality of the evidence before the
judge or jury and then ask if the defendant has met the burden
of showing that the decision reached would reasonably likely
have been different absent the errors.” Garcia, 2017 UT 53, ¶ 28
(quotation simplified).
¶44 In applying this two-part test, we first examine whether
Florez’s counsel might be found to have rendered deficient
performance by not introducing admissible evidence of the other
events. In this case, at least on the record before us, we discern
no strategic reason for a reasonable attorney to have chosen not
to introduce testimony about the events in question. Certainly,
Florez’s counsel was not operating on the basis of any such
20180827-CA 23 2020 UT App 76State v. Florez
strategic motivation; indeed, during his cross-examination of
Officer, he actively tried to present evidence of the events in
question, but was thwarted by the State’s hearsay objection. And
nothing in the record, or in the materials submitted in
connection with the rule 23B motion, suggests that placing
Witness on the stand would have carried any downside risk—
Witness is a disinterested third party with no apparent
credibility problems or disqualifying biases.
¶45 The State asserts that counsel could have determined, for
several reasons, that Witness would not be helpful: in his
declaration, Witness does not specifically identify Florez as the
person who entered his house; and there are some differences
between the actions Florez took at Victim’s house and those the
unidentified man took at Witness’s house, including the door
through which entry was gained. But we find these arguments
unconvincing. Officer had already stated that Florez was a
suspect in the other events, and was working on the assumption
that Florez was involved. The record contains no information
tending to indicate that the man who entered Witness’s house
did not look like Florez. And even though there were some
differences between the invasion of Witness’s house and the
attempted break-in of Victim’s, the other events would have
given counsel the very thing he was lacking during the
arguments on the lesser-included-offense instruction: evidence
that Florez was trying to gain entry for a non-felonious but still
unlawful purpose.
¶46 Under these circumstances, we discern no plausible
strategic purpose, on this record, for counsel’s failure to present
Witness’s testimony. But as noted, this is not the end of the
inquiry. See Ray, 2020 UT 12, ¶ 36. We must also consider
whether the evidence Florez now wishes to present could
support a conclusion that his attorney acted in an objectively
unreasonable manner. And we conclude that it could.
20180827-CA 24 2020 UT App 76State v. Florez
¶47 We are persuaded that the evidence to which Florez
points could support a conclusion that his attorney acted
unreasonably, and therefore performed deficiently, by not
presenting Witness’s testimony. Based on his knowledge of the
police report, Counsel was aware of the existence of other
individuals whose houses had been entered on that same
morning, yet he did not call any of them to testify. Given the
importance of this evidence to any efforts to gain acquittal—or at
least a reduction from a felony to a misdemeanor—on the main
charge against Florez, we conclude that this evidence could lead
to the conclusion that Florez’s counsel acted in an objectively
unreasonable manner.
¶48 And with regard to prejudice, we conclude that Florez has
made the required showing. As discussed above, the State’s
evidence regarding Florez’s burglarious intent was not
overwhelming. Witness’s testimony—especially coupled with a
lesser-included-offense instruction, which Florez would have
been likely to get if Witness had testified—could have made a
real difference in the jury’s ultimate assessment of Florez’s
intent. This evidence could have made a jury more likely to
believe that Florez’s intent, in attempting to enter Victim’s
house, was merely to annoy her or inquire about “the feds,”
rather than to steal something or assault her. And that
determination, in turn, could have led to Florez being convicted
only of misdemeanors, rather than of a felony. We conclude that
Witness’s testimony could lead to a determination that there
exists a reasonable probability of a different outcome, had
Witness’s testimony been presented to the jury.
¶49 Accordingly, we conclude that Florez has met all of the
requirements of rule 23B, and we therefore grant his motion, and
remand this case to the trial court for further proceedings in
connection with Florez’s ineffective assistance claim.
20180827-CA 25 2020 UT App 76State v. Florez
CONCLUSION
¶50 We conclude that the trial court did not err in denying
Florez’s motion for directed verdict on the attempted burglary
count, and did not err in denying Florez’s request for a lesser-
included-offense instruction on that count. However, we grant
Florez’s rule 23B motion, and remand this case to the trial court
to supplement the record as appropriate to resolve his claim that
his trial attorney rendered ineffective assistance by failing to call
witnesses who could have provided first-hand accounts of the
other events that occurred on the same Christmas Eve morning.
20180827-CA 26 2020 UT App 76