State v. Kennedy

2015 UT App 152

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

BENITA KENNEDY,

Defendant and Appellant.

Opinion

No. 20130229-CA

Filed June 18, 2015

Third District Court, Salt Lake Department

The Honorable Judith S.H. Atherton

No. 121900345

Scott S. Bell, Nicole G. Farrell, and Alan S. Mouritsen,

Attorneys for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.

PEARCE, Judge:

¶1 Defendant Benita Kennedy appeals her obstruction-of-

justice conviction. She contends that the jury instructions were

vague, that the court erred in rejecting her proposed mistake-of-

fact instruction, and that she was deprived of her constitutional

right to effective assistance of counsel when her trial counsel

failed to object to the sufficiency of the evidence against her. We

affirm.

BACKGROUND

¶2 We recite the facts in the light most favorable to the jury’s

verdict, and we present conflicting evidence as necessary to

State v. Kennedy

understand the issues raised on appeal. State v. Black, 2015 UT

App 30, ¶ 2, 344 P.3d 644.

¶3 Eddie Garza hatched a plan to raise funds to throw his

girlfriend’s son a birthday party by robbing Hiram Torez, a drug

dealer. Garza called Torez, asking to purchase drugs. They

agreed to meet in a parking lot. To help pull off the robbery,

Garza brought his girlfriend’s stepfather (Christian

Lizarzaburu), her brother (Larry Davis), and a friend (Anthony

Corona).

¶4 Kennedy was with Torez at the home of Natalie Jo Irish

when Torez received Garza’s call. Before leaving for the meeting,

Torez loaded his handgun. Kennedy drove Torez to the meeting

point—a church parking lot—in Irish’s SUV.

¶5 Garza’s group arrived first, driving a sedan Garza’s

cousin’s roommate had rented. Garza parked the sedan.

Lizarzaburu and Davis exited the car and hid behind a nearby

building. Garza remained in the driver’s seat. Corona took the

front passenger seat. When Kennedy arrived, she parked the

SUV next to the sedan but facing the opposite direction, so that

the drivers’ doors faced each other about five feet apart.

¶6 Torez got out of the SUV and into the rear seat of the

sedan. Garza, Torez, and Corona began to argue. Lizarzaburu

and Davis ran to the sedan, opened both rear doors, and saw

Garza and Torez fighting. Garza told Corona to shoot Torez.

Corona shot Torez six times; one bullet grazed Garza’s finger.

¶7 Garza, Corona, Lizarzaburu, and Davis then ran from the

sedan. As Garza exited the sedan, Torez pleaded for help. Garza

responded, ‚Sorry, homey.‛ Corona ran to a nearby building.

¶8 Meanwhile, Kennedy remained in the driver’s seat of the

SUV, playing a game on her cell phone. Out of the corner of her

eye, and through the tinted windows of the SUV, she saw flashes

and realized that the situation had soured. She saw three

20130229-CA 2 2015 UT App 152

State v. Kennedy

people—Garza, Lizarzaburu, and Davis—approaching the SUV.

According to Lizarzaburu, Kennedy recognized the three, rolled

down her window, called them by name, and told them to get

in.1 However, according to Irish, Kennedy later said she had not

recognized them until after they had entered the SUV.

¶9 Irish also testified that Kennedy told her that, while

driving away, Kennedy had exclaimed something to the effect of

‚Oh my God‛ and ‚[W]hat have you guys done?‛ Her

passengers instructed her to pick up Corona. According to

Lizarzaburu, Kennedy told Corona to ‚get in, get in, get in the

car.‛ After Corona got in, Kennedy asked the group if they had

killed Torez. Corona replied that he had ‚dumped on *Torez]

with the .22.‛

¶10 Kennedy dropped Corona, Lizarzaburu, and Davis off

before taking Garza to Irish’s house. Irish cleaned Garza’s

injured finger with hydrogen peroxide and drove him home.

According to Garza’s cousin, Kennedy suggested to Garza that

he tell the cousin to report the rented sedan as stolen.

Meanwhile, people near the scene of the shooting had heard the

gunshots and called the police. When officers arrived, they

discovered Torez’s body inside the sedan.

¶11 Kennedy was eventually charged with one count of

obstruction of justice. The charge was enhanced to a first-degree

felony because the State alleged Kennedy had acted in concert

with two or more people. At trial, Kennedy primarily argued

that she could not have formed the intent to obstruct justice,

because she did not know a crime had been committed. The

State argued that, given Kennedy’s proximity to the shooting,

she must have known that a crime had occurred.

1. Kennedy told the investigating police officers that she had

known some of her new passengers for years.

20130229-CA 3 2015 UT App 152

State v. Kennedy

¶12 At the close of the evidentiary phase, Kennedy asked the

court to give the jury a mistake-of-fact instruction. The gist of the

proffered instruction was that ‚*a+n act committed under an

ignorance or mistake of fact, which disproves the culpable

mental state, is a defense to any prosecution for the crime.‛ The

court declined to give the instruction.

¶13 The court provided two jury instructions relevant to this

appeal. The first (Instruction 15) was a general instruction

concerning mental states:

[T]he prosecution must prove that at the time the

defendant acted, he/she did so with a particular

mental state. For each offense, the law defines what

kind of mental state the defendant had to have, if

any.

For the crime(s) charged in this case, the defendant

must have acted ‚intentionally‛ or ‚knowingly‛ or

recklessly. The prosecution must prove beyond a

reasonable doubt that the defendant acted

intentionally or knowingly or recklessly before the

defendant can be found guilty of the crime

charged.

¶14 Instruction 15 then defined each of the three mental states.

For example, ‚*a+ person engages in conduct intentionally or

with intent or willfully with respect to the nature of his conduct

or to a result of his conduct, when it is his conscious objective or

desire to engage in the conduct or cause the result.‛

¶15 The second instruction at issue is Instruction 19. Unlike

Instruction 15, Instruction 19 referred to the specific defendant

and crime charged:

Before you can convict the defendant, Benita

Kennedy, of the offense of Obstruction Of Justice

as charged in the Information, you must find from

20130229-CA 4 2015 UT App 152

State v. Kennedy

all of the evidence and beyond a reasonable doubt

all of the following elements of that offense:

1. That on or about the 10th day of December,

2011, in Salt Lake County, State of Utah, the

defendant, Benita Kennedy;

2. With the intent to hinder, delay, or prevent

the investigation, apprehension, prosecution,

conviction, or punishment of any person regarding

a criminal offense;

3. Did one or more of the following:

(a) altered, destroyed, concealed, or

removed any item or other thing; or

(b) harbored or concealed a person; or

(c) provided a person with transportation,

disguise, or other means of avoiding

discovery or apprehension; or

(d) warned any person of impending

discovery or apprehension; or

(e) provided false information regarding a

suspect, a witness, the conduct constituting

an offense, or any other material aspect of

the investigation; and

4. She knew or should have known the criminal

offense was either criminal homicide, aggravated

robbery, or discharge of a firearm causing serious

bodily injury.

¶16 The jury convicted Kennedy of obstruction of justice.

Kennedy appeals.2

2. The parties filed four letters with the court after briefing was

complete. See generally Utah R. App. P. 24(j) (governing letters of

(continued<)

20130229-CA 5 2015 UT App 152

State v. Kennedy

ISSUES AND STANDARDS OF REVIEW

¶17 Kennedy first contends that the jury instructions failed to

require that the jury find that she specifically intended to

obstruct justice. We review a challenge to jury instructions for

correctness. State v. Featherhat, 2011 UT App 154, ¶ 8, 257 P.3d

445.

¶18 Kennedy also contends that the trial court erred by failing

to give the jury her proposed mistake-of-fact instruction. The

issue of whether to instruct the jury on a theory that is supported

by the evidence presents a legal question. State v. Berriel, 2013 UT

19, ¶ 10, 299 P.3d 1133. We review the trial court’s resolution of

that question for correctness. But whether the evidence

introduced at trial supports a particular theory is ‚primarily a

factual question,‛ and we review the trial court’s resolution of it

for an abuse of discretion. Id. ¶¶ 9, 11.

¶19 Finally, Kennedy contends that the evidence against her

was insufficient to sustain a conviction. We will reverse a guilty

(<continued)

supplemental authority). The State filed the second of these

letters ‚to alert the Court to an oversight in its brief.‛ The

oversight consisted of an argument for affirmance based on

Instruction 18. Kennedy then filed the third letter, correctly

noting that ‚Rule 24(j) does not identify ‘oversight’ as a basis for

filing a Rule 24(j) letter‛ and asking the court to consider a new

argument from her ‚in the interest of fairness.‛ The State

responded in a fourth letter, urging us to ignore Kennedy’s new

argument because it was raised for the first time in a rule 24(j)

letter. Parties are not permitted to use letters of supplemental

authority as an opportunity to raise new arguments. See Beynon

v. St. George–Dixie Lodge No. 1743, Benevolent & Protective Order of

Elks, 854 P.2d 513, 519 (Utah 1993). Accordingly, we do not

consider the merits of the new arguments raised in the second,

third, and fourth ‚letters of supplemental authority.‛

20130229-CA 6 2015 UT App 152

State v. Kennedy

verdict for insufficient evidence only when the evidence is so

inconclusive or inherently improbable that reasonable minds

must have entertained a reasonable doubt that the defendant

committed the crimes of which he or she was convicted. State v.

Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645.

ANALYSIS

I. Vague Jury Instructions

¶20 Kennedy contends that the jury instructions misled the

jury into believing that they could convict her of obstruction of

justice if they found that she acted knowingly or recklessly,

rather than with the requisite mental state of acting intentionally.

She argues that she preserved this claim for appeal by proposing

a mistake-of-fact instruction. See Wohnoutka v. Kelley, 2014 UT

App 154, ¶ 3, 330 P.3d 762 (explaining our requirement that

issues be preserved for appeal).

¶21 An issue is preserved for appeal when it has been

presented to the trial court in such a way that the trial court had

the opportunity to rule on it. Id. ¶ 4. The appellant must present

the legal basis for her claim to the trial court, not merely the

underlying facts or a tangentially related claim. See id.

¶22 Kennedy’s proposed instruction would have informed the

jury that a defendant’s mistake of fact could disprove the

required mental state. The proposed instruction thus did not

inform the trial court of Kennedy’s apparent belief that

Instruction 15 would mislead the jury into believing that a

mental state of knowledge or recklessness was sufficient to

convict Kennedy. As a result, the proposed instruction did not

raise the legal basis of Kennedy’s contention on appeal in such a

way that the trial court would have had an opportunity to rule

on it. See id. Her challenge to Instruction 15 is therefore

unpreserved.

20130229-CA 7 2015 UT App 152

State v. Kennedy

¶23 Kennedy also argues that two exceptions to our

preservation rule apply. Specifically, she asserts that the trial

court plainly erred by giving Instruction 15 and that her trial

counsel’s failure to object to it amounted to ineffective assistance

of counsel. ‚The plain error standard of review requires an

appellant to show the existence of a harmful error that should

have been obvious to the district court.‛ State v. Waterfield, 2014

UT App 67, ¶ 18, 322 P.3d 1194. ‚To succeed on a claim of

ineffective assistance of counsel, a defendant must show that

trial counsel’s performance was deficient and that the defendant

was prejudiced thereby.‛ State v. Hards, 2015 UT App 42, ¶ 18,

345 P.3d 769. In this matter, neither the plain-error nor

ineffective-assistance-of-counsel exceptions to the preservation

rule are available to Kennedy if the jury was instructed properly.

Accordingly, we consider whether the giving of Instruction 15

constitutes error.

¶24 To analyze Instruction 15, we must view it within the

context of the jury instructions as a whole. State v. Maestas, 2012

UT 46, ¶ 148, 299 P.3d 892. If the jury instructions taken as a

whole fairly instruct the jury on the law applicable to the case,

the fact that one of the instructions, standing alone, ‚is not as

accurate as it might have been‛ does not amount to reversible

error. State v. Lucero, 866 P.2d 1, 3 (Utah Ct. App. 1993). Thus, we

will affirm when the combined instructions fairly instruct the

jury on the applicable law. See Maestas, 2012 UT 46, ¶ 148.

¶25 The relevant portion of Instruction 15 states, ‚For the

crime(s) charged in this case, the defendant must have acted

‘intentionally’ or ‘knowingly’ or recklessly. The prosecution

must prove beyond a reasonable doubt that the defendant acted

intentionally or knowingly or recklessly before the defendant

can be found guilty of the crime charged.‛ We agree with

Kennedy that, when read in isolation, these sentences could be

read to instruct the jury that any of the three mental states could

be sufficient to sustain a conviction. However, the instructions as

a whole do not suffer from the same infirmity.

20130229-CA 8 2015 UT App 152

State v. Kennedy

¶26 Unlike Instruction 15, which provides definitions that

apply generally, Instruction 19 is specific to the crime of

obstruction of justice. It refers to the jury as ‚you,‛ lays out the

elements of the crime, and includes Kennedy’s name. It also

provides the imperative command, ‚[Y]ou must find from all of

the evidence and beyond a reasonable doubt all of

the . . . elements‛ of obstruction of justice before ‚you can

convict the defendant, Benita Kennedy.‛ Instruction 19 defines

the charge against Kennedy, providing in pertinent part that the

jury could only convict Kennedy if it found that she had acted

‚With the intent to hinder, delay, or prevent the investigation,

apprehension, prosecution, conviction, or punishment of any

person regarding a criminal offense.‛ (Emphasis added.)

¶27 Kennedy asserts that ‚Instruction 19’s unadorned use of

the term ‘intent’ did not correct Instruction 15’s error because it

did nothing to specify what kind of intent was required.‛ She

claims that ‚the jury could have reasonably believed—indeed

should have believed, in light of Instruction 15—that Instruction

19’s use of the term ‘intent’ included specific intent, knowledge,

and recklessness.‛ But Instruction 15 never uses the term

‚intent‛ as a category incorporating the three mental states.

Rather, Instruction 15 explains that three culpable mental states

exist in law—‚intentionally or knowingly or recklessly‛—and

then defines each separately.3

3. We note that the Utah Supreme Court has ‚encourage*d+

courts to take specific care to focus jury instruction language to

apply narrowly to each applicable offense or element, rather

than providing general statements which could be susceptible to

misreading.‛ State v. Hutchings, 2012 UT 50, ¶ 23 n.9, 285 P.3d

1183. This admonition does not absolve us of the responsibility

to review a challenge to a particular jury instruction in light of

the instructions as a whole. See State v. Maestas, 2012 UT 46,

¶ 148, 299 P.3d 892.

20130229-CA 9 2015 UT App 152

State v. Kennedy

¶28 ‚Instructions should be read in their entire context and

given meaning in accordance with the ordinary and usual

import of the language as it would be understood by lay jurors.‛

Biswell v. Duncan, 742 P.2d 80, 88 (Utah Ct. App. 1987). Reading

the instructions in context and ascribing the ordinary meaning to

their language, we cannot agree with Kennedy’s assertion that

the jury would have understood Instruction 19’s use of ‚with the

intent‛ to mean knowingly or recklessly.4 Kennedy asks us to

presume that the jury, seeking to understand the phrase ‚with

the intent to hinder,‛ would have skipped past Instruction 15’s

guidance that a person acts ‚with intent‛ ‚with respect to the

nature of his conduct or to the result of his conduct, when it is

his conscious objective or desire to engage in the conduct or

cause the result‛ and that the jury would have focused instead

on the definitions of reckless and knowing. Kennedy asks us to

further believe that the jury would have then taken the unlikely

step of interpreting Instruction 19’s phrase ‚with the intent to

hinder‛ to mean ‚recklessly hinder‛ or ‚knowingly hinder.‛ We

cannot presume that the jury deviated in this manner from the

‚ordinary and usual import of the language.‛ Biswell, 742 P.2d at

88.

¶29 Moreover, other instructions signaled to the jury that

Instruction 15 was not a list of mental states that could be

applied to any crime but definitions of the mental states other

instructions referenced. Instruction 18 explained that the defense

of compulsion was not available if the defendant had

‚intentionally, knowingly, or recklessly placed herself in a

4. Kennedy argues in her reply brief that ‚Instruction 15 wrongly

informed the jury that the mental states of knowledge and

recklessness applied to a specific intent crime‛ and that

‚Instruction 15 still wrongly told the jury to apply knowledge

and recklessness to a specific intent crime.‛ This argument

considers Instruction 15 in isolation. Because jury instructions

must be read as a whole, Instruction 15 cannot fairly be read in

the manner Kennedy urges.

20130229-CA 10 2015 UT App 152

State v. Kennedy

situation where it was probable that she would be subjected to

duress.‛ Instruction 22 explained that criminal homicide murder

(one of the offenses underlying the obstruction charge) meant

inter alia ‚intentionally or knowingly causing the death of

another.‛ Likewise, Instruction 23 stated that felony discharge of

a firearm requires a finding that the shooter fired the gun while

‚knowing or having reason to believe that any person‛ might be

endangered thereby. And Instruction 24 explained that

aggravated robbery (another underlying offense) occurs when

an actor ‚intentionally or knowingly‛ uses force against another

while committing a theft.

¶30 We conclude that Kennedy has not demonstrated the

existence of an error, because the jury instructions when read

together could not have misled the jury into believing that the

lesser mental states of ‚knowingly‛ or ‚recklessly‛ were

sufficient to convict Kennedy. She has therefore failed to show

that the trial court plainly erred in instructing the jury or that

trial counsel’s failure to object to Instruction 15 constituted

ineffective assistance of counsel.

II. Mistake-of-Fact Instruction

¶31 Kennedy next contends that the trial court erred by

refusing to give the jury her proposed mistake-of-fact

instruction. She argues that she introduced substantial evidence

in support of her claim that she mistakenly believed that no

crime had been committed and that, absent the proposed

instruction, the jury would not have understood that this belief

negated the required mental state.

¶32 A defendant is entitled to have the jury instructed on the

defense’s theory of the case if there is any basis in the evidence

to support that theory. State v. Berriel, 2013 UT 19, ¶ 12, 299 P.3d

1133. But the defense is not entitled to further instruction

regarding the defense’s theory of the case when the other

instructions already fairly instruct the jury on the law applicable

to that theory. See State v. Lucero, 866 P.2d 1, 3 (Utah Ct. App.

20130229-CA 11 2015 UT App 152

State v. Kennedy

1993) (explaining that the fact that one instruction, considered

alone, is not ‚as accurate as it might have been‛ is not reversible

error so long as the instructions as a whole fairly instruct the jury

on the applicable law). Accordingly, in order to demonstrate

reversible error stemming from the trial court’s refusal to give a

proposed instruction, a defendant must show that the

instructions that were given failed to fairly instruct the jury on

the applicable law.

¶33 Kennedy first asserts that the trial court mistakenly

believed that Instructions 15 and 19 correctly instructed the jury

when it denied her proposed instruction. As we explain above,

there was no error in those instructions; accordingly, we do not

further address Kennedy’s first assertion. However, Kennedy

also asserts that her proposed instruction would have headed off

possible misreadings of Instruction 19.

¶34 Kennedy points to the language of the fourth element of

Instruction 19: ‚She knew or should have known the criminal

offense was either criminal homicide, aggravated robbery, or

discharge of a firearm causing serious bodily injury.‛5 She

argues that this language risked ‚allowing the jury to convict

Kennedy if she ‘should have known’—rather than actually

knew—that an underlying crime had been committed.‛ In other

words, the second element required the jury to find Kennedy

acted with intent to hinder the prosecution of a crime. The fourth

5. This portion of the instruction was apparently intended to

comport with State v. Bingham, 575 P.2d 197 (Utah 1978). Bingham

concerned an earlier version of the obstruction-of-justice statute

which provided that obstruction was a class B misdemeanor

unless the defendant knew or should have known that a capital

offense or a first-degree felony had been committed, in which

case obstruction was a second-degree felony. Id. at 198. Here, as

the State points out, the degree of the obstruction charge against

Kennedy required that she knew or should have known that one

of the listed first-degree felonies had been committed.

20130229-CA 12 2015 UT App 152

State v. Kennedy

element required the jury to find Kennedy knew or should have

known that the crime that had been committed was one the

instruction listed; Kennedy argues this created confusion that

her proposed mistake-of-fact instruction would have eliminated.

¶35 We disagree. We are constrained to read jury instructions

as a whole and to give the language of the instructions their

ordinary and usual import. Biswell v. Duncan, 742 P.2d 80, 88

(Utah Ct. App. 1987). When given its ordinary and usual

meaning, the language of Instruction 19 required the jury to find

that Kennedy acted with the intent to hinder the wheels of justice

with regard to ‚any person regarding a criminal offense.‛ It then

adds, in a separately numbered paragraph, the additional

requirement that Kennedy knew or should have known that the

crime that person had committed was one of the three listed. To

reach Kennedy’s understanding of the instruction, the jury

would have had to interpret ‚knew or should have known the

criminal offense was *one of three listed+‛ to include ‚knew or

should have known an offense occurred.‛ We cannot presume

that the jury would have made this mistake, because the

ordinary and usual meaning of Instruction 19’s language simply

does not lend itself to such a misreading.

¶36 Kennedy’s proposed mistake-of-fact instruction amounts

to an alternative way of stating the defense’s theory that

Kennedy could not be convicted because she did not know a

crime had been committed. Instruction 19 already instructed the

jury that, to convict Kennedy of obstruction of justice, it had to

find that she acted ‚*w]ith the intent to hinder, delay, or prevent

the investigation, apprehension, prosecution, conviction, or

punishment of any person regarding a criminal offense.‛ The

jury could not have concluded that Kennedy acted with that

intent without finding that she actually knew the criminal

conduct had occurred. Accordingly, Kennedy was not entitled to

an essentially duplicative instruction. See supra ¶ 32. The trial

court’s refusal to give the proposed instruction was therefore

neither a legal error nor an abuse of discretion, because the other

instructions already fairly advised the jury about the significance

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State v. Kennedy

of Kennedy’s mistake-of-fact claim. See State v. Berriel, 2013 UT

19, ¶¶ 8–9, 299 P.3d 1133; State v. Lucero, 866 P.2d 1, 3. In short,

we conclude that while Kennedy was entitled to have the jury

instructed regarding the import of her mistake-of-fact defense,

Instruction 19 adequately did so. Consequently, the trial court

did not abuse its discretion by declining to further instruct the

jury on the same topic.6

III. Sufficiency of the Evidence

¶37 Kennedy next contends that the evidence the State

presented was insufficient to sustain her conviction for

obstruction of justice. Specifically, she argues that there was no

evidence that she knew beforehand that Torez would be robbed

or killed and that the only evidence of her state of mind after the

shooting was that she believed the shots were directed at her

and that Torez was firing them. On this basis, she asserts that

there was no evidence of her specific intent to obstruct the

course of justice. The State responds that, on appeal, Kennedy

‚argues the evidence from only her point of view‛ and ‚fails to

view it in the light most favorable to the jury’s verdict.‛

¶38 Kennedy’s trial counsel did not preserve this issue by

moving for a directed verdict at trial. Kennedy therefore raises it

as a matter of ineffective assistance of counsel. ‚To succeed on a

6. The State argues that Kennedy’s trial counsel invited any error

on this point by agreeing with the trial court that Instruction 19

was a correct statement of the law. See State v. Geukgeuzian, 2004

UT 16, ¶¶ 9–12, 86 P.3d 742 (explaining the invited-error

doctrine). While counsel did concede that Instruction 19 correctly

stated the law, he did not concede that Instruction 19 fully stated

the law applicable to Kennedy’s defense theory. Indeed, when

the court asked whether he was withdrawing the defense’s

proposed instruction, counsel did not withdraw it and

responded that he preferred that the court rule that Kennedy’s

proposed instruction would not be given to the jury.

20130229-CA 14 2015 UT App 152

State v. Kennedy

claim of ineffective assistance of counsel, a defendant must show

that trial counsel’s performance was deficient and that the

defendant was prejudiced thereby.‛ State v. Hards, 2015 UT App

42, ¶ 18, 345 P.3d 769.

¶39 When considering an insufficiency-of-the-evidence claim,

we review the evidence and all reasonable inferences in the light

most favorable to the jury’s verdict. State v. Nielsen, 2014 UT 10,

¶ 46, 326 P.3d 645. We may reverse Kennedy’s conviction only if

we determine that the evidence is so inconclusive or inherently

improbable that reasonable minds must have entertained a

reasonable doubt as to whether she committed the crime. Id.

¶40 Kennedy argues that there ‚was no evidence to dispute

that [she] was nothing more than an indifferent bystander up

until the gunshots were fired‛; that ‚*e+ven after the shots were

fired, the only evidence as to Kennedy’s state of mind suggests

Kennedy thought the shots were directed at her and that Torez

was firing them‛; and that ‚*e+ven after Corona told Kennedy he

had shot Torez, Kennedy could still have believed that Torez

was shot in self-defense.‛ She highlights evidence that she had

seen Torez loading his gun and that she had believed Torez was

the one shooting.

¶41 In response, the State highlights several pieces of evidence

it introduced at trial, arguing that the evidence supports a jury

finding that during the drive away from the scene Kennedy

knew a crime had been committed. For example, the State

presented evidence that the parking lot was well-lit, that

Kennedy’s seat in the SUV afforded her a view down into the

sedan, that the two vehicles were about five feet apart, and that

the police officers who arrived at the scene within minutes of the

shooting could ‚clearly‛ see from approximately ten feet away

that Torez had suffered gunshot wounds. The State also

presented evidence that Kennedy admitted to seeing a struggle

inside the sedan and that after the shooting Kennedy exclaimed

words to the effect of ‚Oh my God‛ and ‚*W+hat have you guys

done?‛ And the State elicited testimony from Irish that Kennedy

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State v. Kennedy

told Irish that she had asked if Torez had been killed and that

Corona had replied that he had ‚dumped on *him+ with the .22.‛

¶42 When the evidence presented is conflicting or disputed,

the trier of fact assesses both the credibility of witnesses and the

weight to be given to particular evidence. State v. Black, 2015 UT

App 30, ¶ 19, 344 P.3d 644. It is also the role of the trier of fact to

then conclude which of the competing theories of the case it

believes. See State v. Cardona-Gueton, 2012 UT App 336, ¶ 11, 291

P.3d 847. This is true even when the trier of fact is confronted

with alternative hypotheses based on the same evidence. See id.

¶43 At trial, the State argued that the evidence showed

beyond a reasonable doubt that Kennedy had committed all the

elements necessary to be convicted of obstruction of justice.

Kennedy argued that she drove away from the scene to avoid

being ‚killed or shot.‛ She claimed that she did not have the

intent to ‚hinder, delay or prevent the investigation‛ and that

her only intent was ‚to stay alive.‛ The jury evidently

determined that the evidence supported the State’s hypothesis of

intent rather than Kennedy’s.

¶44 Kennedy’s contention on appeal is essentially that the jury

could not have properly convicted her, because the evidence

presented did not exclude a reasonable alternative hypothesis of

her intent. ‚*F+raming a claim as a reasonable-alternative-

hypothesis claim presupposes that the alternative hypothesis is

reasonable.‛ Cardona-Gueton, 2012 UT App 336, ¶ 12. ‚But a

finding that a defendant is guilty beyond a reasonable doubt is

necessarily a finding that any alternative hypothesis of

innocence presented at trial was not reasonable under the jury’s

view of the evidence.‛ Id.

¶45 When the jury has reached a verdict based on one of the

competing theories advanced by the parties, we will reverse that

verdict only if the evidence is so insubstantial or inconclusive

that the reasonable inferences drawn from it cannot preclude the

alternative hypothesis presented by the defense. Id. ¶ 11. Here,

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State v. Kennedy

however, the evidence was not so insubstantial or inconclusive

that the jury’s inferences were unreasonable. The evidence was

sufficient to support the jury’s inferences that Kennedy knew a

crime had been committed, that she knew or should have known

her passengers had committed one of the specified crimes, and

that she intended to hinder, prevent, or delay their arrest by

driving them away from the scene. See State v. Nielsen, 2014 UT

10, ¶ 46, 326 P.3d 645; Cardona-Gueton, 2012 UT App 336, ¶ 12; see

also State v. James, 819 P.2d 781, 789 (Utah 1991) (‚It is well

established that [mental state] can be proven by circumstantial

evidence.‛).

¶46 Kennedy also draws parallels between her case and State

v. Bingham, 575 P.2d 197 (Utah 1978). In Bingham, the Utah

Supreme Court held that the evidence supporting an inference of

intent on the part of an accused getaway driver (Bingham) was

insufficient to sustain his conviction for first-degree-felony

obstruction of justice. Id. at 199. To sustain a conviction, the State

needed to prove that a first-degree felony had been committed

and that Bingham knew of that fact when he drove the

perpetrators away. Id. at 198. Bingham and his friends had

stopped their car and approached a parked truck on foot. Id.

After Bingham saw that one of his friends was carrying a pistol,

he turned back towards the car because ‚he wanted no part of

it.‛ Id. As he was doing so, he heard two shots. Id. His two

friends then returned to the car ‚excited and desiring to get

away in a hurry.‛ Id. at 198–99. Before driving them away from

the scene, Bingham bent the car’s license plate so that it could

not be seen. Id. at 198. It later emerged that two men in the truck

had been shot, one fatally.7 Id. at 198.

7. At the time State v. Bingham was argued, neither of Bingham’s

friends had been tried. 575 P.2d 197, 198 (Utah 1978). Thus, it

was not clear whether a first-degree felony had been committed

(as required to sustain Bingham’s first-degree-felony

obstruction-of-justice conviction). One of those friends later

(continued<)

20130229-CA 17 2015 UT App 152

State v. Kennedy

¶47 The supreme court noted that there was no ‚direct proof

that the defendant went near the cab of the pickup truck, or that

he saw [the shooting], or that [his friends] told him what had

happened when they hurriedly returned to his car.‛ Id. The court

also noted that there were ‚a number of possibilities as to what

happened and why the firing of shots made *Bingham’s friends+

excited and desiring to get away in a hurry.‛ Id. at 199.

Accordingly, the court concluded that the evidence was not

sufficient to support a finding, beyond a reasonable doubt, that

Bingham knew or should have known that a homicide had been

committed. Id. The Utah Supreme Court therefore reversed

Bingham’s conviction and entered a conviction for class B

misdemeanor obstruction of justice. Id.

¶48 Bingham differs from the case currently before us. In

contrast to Bingham, the State presented evidence that Kennedy

was within several feet of the sedan when Torez was killed

inside it, that the murder scene was visible from outside the

sedan, that Kennedy admitted seeing flashes out of the corner of

her eye during the shooting, and that Kennedy’s passengers

informed her that a shooting had taken place. We cannot

conclude that the evidence as a whole is so inconclusive or

inherently improbable that reasonable minds must have

entertained a reasonable doubt as to whether Kennedy had the

intent to obstruct justice when she drove Garza, Corona,

Lizarzaburu, and Davis away from the scene the crime. See

Nielsen, 2014 UT 10, ¶ 46.

¶49 Moreover, in Bingham, the question before the Utah

Supreme Court was whether Bingham knew or should have

known the nature of his friends’ crimes, not whether Bingham

had intended to hinder, prevent, or delay their apprehension.

(<continued)

killed the other to prevent him from testifying about the events

described in Bingham. See State v. Brown, 607 P.2d 261, 262, 267

(Utah 1980).

20130229-CA 18 2015 UT App 152

State v. Kennedy

Indeed, Bingham conceded that the evidence was sufficient to

sustain his conviction for misdemeanor obstruction of justice.

Bingham, 575 P.2d at 198. He argued only that the evidence was

insufficient to support his conviction for felony obstruction of

justice because he was unaware that his friends had committed a

first-degree felony. Id. Because Bingham began with a concession

that the evidence was sufficient to prove at least one form of

obstruction of justice, the case possesses little utility to address

Kennedy’s assertion that the evidence against her was

insufficient to support a conviction for any degree of obstruction

of justice.

¶50 For the foregoing reasons, a motion for directed verdict

based on insufficiency of the evidence would have been fruitless.

Failure to raise futile objections or motions does not constitute

ineffective assistance of counsel. See State v. Hanigan, 2014 UT

App 165, ¶ 4, 331 P.3d 1140; see also State v. Kelley, 2000 UT 41,

¶ 26, 1 P.3d 546. Kennedy has thus not established that the

ineffective-assistance-of-counsel exception to the preservation

rule applies.

CONCLUSION

¶51 Kennedy’s challenge to Instruction 15 was not preserved,

and neither the plain-error nor the ineffective-assistance-of-

counsel exceptions apply. The law underlying Kennedy’s

defense theory was adequately explained by Instruction 19;

consequently, the trial court had the discretion to refuse to give

the jury her proposed mistake-of-fact instruction. Kennedy’s

challenge to the sufficiency of the evidence is unpreserved.

¶52 Affirmed.

20130229-CA 19 2015 UT App 152