State v. Ramos

2018 UT App 161
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
HARLIN A RGELIO R AMOS,
Appellant.
Opinion
No. 20160075-CA
Filed August 23, 2018
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 141904935
Debra M. Nelson, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA H AGEN concurred.
MORTENSEN, Judge:
¶1 	“Please don’t kill me. I have kids.” Victim’s plea was in vain,
as Defendant Harlin Argelio Ramos stabbed him eight times,
including a fatal thrust to the heart. After fleeing the scene,
police located and arrested Ramos. In his interview, Ramos
alleged that Victim had been the aggressor and that he had only
acted in self-defense. The State charged Ramos with murder. At
trial, the judge instructed the jury on both perfect and imperfect
self-defense, and on the lesser-included offense of imperfect-self-
defense manslaughter. One of those instructions was flawed, but
the error was not prejudicial. The jury convicted Ramos as
charged, and he timely appeals. We affirm.

State v. Ramos
20160075-CA 	2 	2018 UT App 161
BACKGROUND
The Murder
¶2 	Shortly after 1:00 a.m. on a mid-April morning, Victim
and Friend had just finished watching a late movie at a movie
theater. Because they had driven separately, Victim walked
Friend to her car and she drove him back to his own. Before
parting ways, the two talked in the car. While they conversed,
Friend 	noticed 	two 	men—Ramos 	and 	his 	accomplice
(Accomplice)—walk in front of her car and look at her in a way
that 	“made 	[her] 	very 	uncomfortable.” 	The 	men’s 	behavior
alarmed her so much that she removed her Taser from the glove
compartment 	and 	rested 	it 	on 	the 	center 	console. 	Victim,
however, seemed unconcerned about the men and continued
their conversation.
¶3 	Just as Victim was about to exit the vehicle, Ramos
suddenly opened the passenger door and thrust his “whole arm”
inside. Friend thought Ramos was reaching for her keys in an
attempt to rob her. Victim pushed Ramos away and the two
struggled outside of the car. Meanwhile, 	Friend closed her
passenger door and went to call 911, but accidentally dropped
her phone on the car floor. She then locked her car doors,
honked her horn, screamed for help, and tried to find her phone.
¶4 	When Friend looked back up, Victim and Ramos were
no 	longer 	within 	eyesight, 	so 	she 	opened 	her 	door 	and
stepped 	out 	of 	her 	car 	to 	find 	them. 	She 	heard 	Victim
screaming 	“Please 	don’t 	kill 	me. 	I 	have 	kids. 	Please 	don’t
kill me.” Friend then grabbed her Taser and ran around to
the 	front 	of 	her 	car. 	She 	found 	Victim 	on 	the 	ground
with Ramos straddling Victim’s lower abdomen and upper legs.
She 	thought 	that 	Ramos 	was 	punching 	Victim, 	so
she approached Ramos from behind and applied her Taser to
the back of his pant leg, but it had no effect.

State v. Ramos
20160075-CA 	3 	2018 UT App 161
¶5 	Realizing that the Taser needed to contact skin, Friend
pulled down the collar of Ramos’s jacket and applied the Taser
to the back of his neck. Ramos tried to fight her off, and she ran
back to her car, locked her car doors, began honking her horn
and screaming for help. Having located her phone, she then
dialed 911. Ramos and Accomplice then fled the scene on foot
and were soon thereafter picked up by a taxi driver.1 As Friend
waited for someone to answer her 911 call, she saw Victim
stagger in front of her car and fall near her door. Friend opened
her door and heard Victim say, “I’m dying. Please help me.”
¶6 	As the 911 operator answered, an off-duty paramedic
(Paramedic) responded to Friend’s cries for help. Paramedic
testified that, as he approached, he saw Ramos “cross in front of
him and look directly at him.” Paramedic rolled Victim onto his
back to triage and treat his injuries, and soon thereafter he
started CPR.
¶7 	Meanwhile, 	Witness, 	whose 	apartment 	overlooks 	the
crime scene, was watching television at home when he heard a
woman screaming for help. From his vantage point, Witness
saw two men assaulting another man 	and pinning him 	to
the 	ground. 	Thinking 	that 	a 	robbery 	was 	in 	progress,
Witness went to help, but by the time he arrived, Paramedic
had already begun treatment. Police and on-duty paramedics
soon arrived and took over, but Victim had already passed
away.
1. 	The 	taxi 	driver 	(Taxi 	Driver) 	and 	Ramos 	were 	well-
acquainted: Ramos used Taxi Driver’s service regularly, getting
rides approximately “two to three times a week,” and Taxi
Driver allowed Ramos to use Taxi Driver’s home address to
purchase 	a 	cell 	phone 	because 	Ramos 	lacked 	a 	permanent
address. The day before the murder, Taxi Driver also paid for
Ramos’s room at the motel where Ramos was later arrested by
police.

State v. Ramos
20160075-CA 	4 	2018 UT App 161
¶8 	Victim suffered nine sharp-force injuries: three to his
chest, two to his upper back, two to his abdomen, one to his
armpit, and one to the back of his right hand that was consistent
with a defensive injury. All wounds were likely inflicted by a
single-edged knife. The blade had entered Victim’s chest and
penetrated completely through his heart, “fully perforat[ing]”
his “right ventricle.” This was “a lethal injury” that stopped
Victim’s 	heart 	“within 	minutes.” 	Victim’s 	left 	lung 	was
punctured twice, once from the front and once from the back,
which hastened his death.
The Arrest
¶9 	Before police arrived, Ramos and Accomplice2 fled the
scene as Victim bled out. On arrival, police found two backpacks
on site, one of which contained a cell phone receipt with Ramos’s
name on it, as well as his identification card. Police eventually
located Ramos at a motel and arrested him. In the motel room,
police found a t-shirt, a black jacket, and black athletic pants—all
bloodstained—in the trash can in Ramos’s room. DNA testing
revealed 	Victim’s 	blood 	on 	the 	t-shirt, 	jacket, 	and 	pants.
Additionally, Ramos’s fingerprint was on the front passenger
door of Friend’s car.
¶10 	Ramos was given his Miranda warnings3 and agreed to be
interviewed by police. He informed police that he did not speak
English, 	so 	the 	interview 	was 	conducted 	in 	Spanish. 	His
interview 	resulted 	in 	several 	conflicting 	accounts. 	Initially,
Ramos said that he and Accomplice had planned to meet a “taxi”
from “someone who had a white sedan” and had mistaken
2. Accomplice never contacted police about the case, nor were
the police ever able to find him.
3. See generally Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).

State v. Ramos
20160075-CA 	5 	2018 UT App 161
Friend’s 	car 	for 	the 	taxi. 	He 	further 	alleged 	that 	as 	he
approached the door, Victim had jumped out and started hitting
him in the head, grabbed his throat, and lifted him completely
off of the ground. Ramos stated that as Victim hit him, Ramos
said “‘sorry, sorry,’ and ‘no problem,’” in English, but Victim
continued to choke Ramos until he “became desperate” because
he was “being asphyxiated.” Ramos said he exclaimed, “Help
me, help me, he is going to kill me,” and then pulled out his
knife and stabbed Victim.
¶11 	When a detective told Ramos to “tell the truth,” Ramos
responded by claiming he was “confused” and maintained that
he was attacked by Victim. But he then stated that he believed
that Victim was somehow associated with a violent street gang
and feared that they had come to harm him.
¶12 	When the detective again asked Ramos to tell the truth,
Ramos gave yet another version of the events, claiming that he
had approached the vehicle because “he was selling drugs and
he thought the people in the car wanted some.” He continued to
state that Victim had exited the car, began hitting and choking
him, and because Ramos had drugs in his mouth that night, he
spit them out when he was choked. But police did not recover
any drugs at the murder scene or in Ramos’s backpack or motel
room. Ramos also told police initially that he dropped the knife
as he fled the scene, but later said that he “may have thrown it
away” with his clothing. Despite a thorough search, police did
not find a knife in the area.
The Taxi Driver
¶13 	Three days after the murder, the police interviewed Taxi
Driver. He also testified at trial, but his two accounts differ
significantly. During his police interview, Taxi Driver told police
that Ramos called him “around 1:00 a.m., 1:30 a.m., or 1:40 a.m.”
But when police asked to see Taxi Driver’s phone log, he said
that he had deleted it. A review of Ramos’s phone records

State v. Ramos
20160075-CA 	6 	2018 UT App 161
showed no outgoing calls to Taxi Driver during the 1:00 a.m.
hour. Instead, Ramos’s log showed only that Taxi Driver had
called him at 1:08 a.m. that morning. Taxi Driver testified that
after he got Ramos’s call, it took him “fifteen or twenty minutes
to drive from his West Valley home to [the murder scene], and
that he parked and waited another fifteen or twenty minutes
before [Ramos] and [Accomplice] ‘arrived.’” Taxi Driver also
initially told police that he did not see the fight and that Ramos
claimed to have been hit, but did not mention being strangled.
¶14 	Taxi Driver testified differently at trial. There, he stated
that he operated a private taxi service and that on the night of
the murder, Ramos called him in the early morning for a ride.
Taxi Driver claimed that he saw both Ramos and Accomplice
getting into a car. He then saw an angry man get out of that car
and heard Ramos say in Spanish, “This isn’t the right car,
sorry.”4 Taxi Driver said that the man refused to accept the
apology and fought with Ramos. Taxi Driver further testified
that he never saw Ramos with a knife but did see a woman try to
tase Ramos. Taxi Driver stated that Ramos looked “dizzy” and
fell, and that he “was bleeding all over [the left side of] his face,”
but photographs taken upon Ramos’s arrest show only one
abrasion on his forehead and no other injury to his face.
¶15 	When asked about the discrepancies in 	his accounts,
Taxi 	Driver 	testified 	that 	he 	was 	“nervous” 	during 	the
police 	interview 	and 	“might 	have 	omitted 	a 	few 	details
here and there.” Taxi Driver asserted that he had testified to
“the 	truth”—that 	he 	witnessed 	the 	fight, 	including 	Ramos
being choked, and that Ramos had asked for help because
the man was “killing him.”
4. Taxi Driver arrived in his car, a white Nissan Versa. The Versa
was a hatchback without tinted windows. Friend’s car was a
white four-door Toyota Corolla sedan with tinted rear windows.

State v. Ramos
20160075-CA 	7 	2018 UT App 161
The Strangulation Evidence
¶16 	Ramos suffered minor injuries. At the time of his arrest,
he had scratches on his neck, a scrape on his forehead, and one
abrasion above his left clavicle. At trial, two experts testified to
his injuries, Defense Expert and Medical Examiner. Medical
Examiner testified that he did not see evidence of petechial
hemorrhaging5 or other signs of strangulation, and opined that
“[y]ou’d 	expect 	to 	see 	damage 	both 	externally 	as 	well 	as
internally” if a person were lifted completely off the ground by
their neck. In contrast, Defense Expert testified that Ramos
showed 	signs 	of 	strangulation—abrasions 	on 	his 	neck 	and
petechiae on his skin.6 Her opinion was founded on her review
of police photographs taken when they arrested Ramos, as well
as her own examination and interview of Ramos more than
thirteen months after the murder. However, Defense Expert
conceded that the scratches could have been consistent with
having been tased on the neck by Friend.
Summary of Proceedings
¶17 	The State charged Ramos with one count of murder. At
trial, Friend testified that she heard Victim screaming, “Please
5. Petechial hemorrhaging is caused by significant strangulation.
State v. Lopez, 789 P.2d 39, 41 n.2 (Utah Ct. App. 1990). “High
pressure arterial blood continues to pump into the head from the
heart while blood is unable to leave the head through the veins
because of the ligature. As the pressure builds, blood vessels
burst, resulting in hemorrhaging in the skin and the whites of
the eyes.” Id.
6. When medical personnel examined him the day of his arrest,
Ramos did not mention, much less complain, that he had been
strangled. He also showed no difficulty eating or drinking and
never asked police for any medical treatment.

State v. Ramos
20160075-CA 	8 	2018 UT App 161
don’t kill me. I have kids. Please don’t kill me.” Thereafter, the
prosecutor asked Friend what kind of cell phone Victim had and
whether she knew “what was on the screen of his cell phone?”
Friend responded, “He had a picture of his two little boys.”
When the prosecutor asked, “A picture of his two little boys?”
Friend nodded her head affirmatively. The prosecutor never
introduced the picture of Victim’s two boys.
¶18 	The judge then instructed the jury on both perfect and
imperfect self-defense, and on the lesser-included offense of
imperfect-self-defense manslaughter. While the imperfect-self-
defense instruction correctly instructed the jury on the State’s
burden of proof, both parties agree that the instruction on
imperfect-self-defense 	manslaughter 	misstated 	that 	burden.7
Instruction 34, which defined the elements of imperfect-self-
7. The State concedes that Instruction 34 was flawed. The three
other related instructions were correctly given. First, Instruction
33 	correctly 	stated 	the 	elements 	instruction 	for 	murder,
informing the jury that to convict Ramos of murder, the State
had 	to 	prove 	beyond 	a 	reasonable 	doubt 	that 	Ramos
intentionally 	or 	knowingly 	killed 	Victim 	without 	any 	legal
justification. 	Second, 	Instruction 	39 	correctly 	explained 	the
State’s 	burden 	to 	disprove 	self-defense, 	stating, 	“Once 	self-
defense is raised by the defendant, it is the prosecution’s burden
to prove beyond a reasonable doubt that the defendant did not
act in self-defense.” Instruction 39 continued, “The defendant
has no particular burden [of] proof but is entitled to an acquittal
if there is any basis in the evidence sufficient to create reasonable
doubt.” Finally, Instruction 48 correctly instructed the jury on
the 	State’s 	burden 	of 	proof 	on 	imperfect 	self-defense. 	It
explained that the defense applies when a “defendant caused the
death of another while incorrectly, but reasonably, believing that
his conduct was legally justified or excused.” It also explained
that if the State did not carry its burden, Ramos could “only be
convicted of Manslaughter Involving a Dangerous Weapon.”

State v. Ramos
20160075-CA 	9 	2018 UT App 161
defense 	manslaughter, 	contradicted 	Instruction 	48 	and
misinformed 	the 	jury 	about 	the 	State’s burden 	to 	disprove
imperfect self-defense. Instruction 34 incorrectly told the jury
that 	it 	could 	convict 	Ramos 	of 	imperfect-self-defense
manslaughter only if it found, beyond a reasonable doubt, that
the defense applied. The instruction stated,
You may consider the lesser included offense of
“Manslaughter Involving a Dangerous Weapon.”
To do so you must find from all of the evidence
and beyond a reasonable doubt each and every one
of the following elements of that offense. That on
or about April 19, 2014, in Salt Lake County, Utah:
1. The defendant . . . individually or as a
party to the offense;
2. Either:
(a) Recklessly 	caused 	the 	death 	of
[Victim]; or
(b) Caused 	the 	death 	of 	[Victim]
under 	circumstances 	where 	the
defendant 	reasonably 	believed 	the
circumstances 	provide 	a 	legal
justification or excuse for his conduct,
although the conduct was not legally
justifiable 	or 	excusable 	under 	the
existing circumstances; and
3. A dangerous weapon was used in the
commission or furtherance of this act.
After you carefully consider all the evidence in this
case, if you are convinced that each and every
element 	has 	been 	proven 	beyond 	a 	reasonable

State v. Ramos
20160075-CA 	10 	2018 UT App 161
doubt, then you must find the defendant GUILTY
of Manslaughter Involving a Dangerous Weapon.
On the other hand, if you are not convinced that
one or more of these elements has been proven
beyond a reasonable doubt, then you must find the
defendant 	NOT 	GUILTY 	of 	Manslaughter
Involving a Dangerous Weapon.
¶19 	The jury was further instructed that it could consider the
offense of manslaughter under Ramos’s imperfect-self-defense
theory only if it found “from all of the evidence and beyond a
reasonable doubt each and every one of the . . . elements of that
offense.” These statements impermissibly shifted the burden to
Ramos because they either infer that the burden rests upon
Ramos or they are vague concerning which party bears the
burden of proof.8
¶20 	The jury convicted Ramos of murder, and he timely
appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 	Ramos brings two claims on appeal. He first contends
that his trial counsel was constitutionally ineffective for failing
to 	object 	(1) 	to 	the 	erroneous 	imperfect-self-defense
manslaughter 	jury 	instruction 	and 	(2) 	to 	the 	prosecutor’s
questions regarding photos of Victim’s children on his cell
phone. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
8. Jury instructions should, at all times, clearly express that the
State bears the burden of proof. See State v. Lee, 2014 UT App 4,
¶ 27, 318 P.3d 1164.

State v. Ramos
20160075-CA 	11 	2018 UT App 161
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(cleaned up).
¶22 	Ramos also argues that the cumulative effect of trial
counsel’s error “should undermine this Court’s confidence in the
jury’s verdict.” “Under the cumulative error doctrine, we will
reverse 	only 	if 	the 	cumulative 	effect 	of 	the 	several 	errors
undermines our confidence that a fair trial was had.” State v.
Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (cleaned up).
ANALYSIS
I. Ramos’s Counsel Was Not Constitutionally Ineffective
¶23 	“To ensure a fair trial, the Sixth Amendment of the U.S.
Constitution 	guarantees 	the 	right 	to 	effective 	assistance
of counsel.” State v. Campos, 2013 UT App 213, ¶ 23, 309 P.3d
1160; 	see 	also 	U.S. 	Const. 	amend. 	VI. 	To 	prevail 	on 	an
ineffective assistance of counsel claim, a defendant must (1)
“identify 	specific 	acts 	or 	omissions 	demonstrating 	that
counsel’s representation failed to meet an objective standard
of 	reasonableness,” 	and 	(2) 	show 	that 	“but 	for 	counsel’s
deficient 	performance 	there 	is a 	reasonable 	probability 	that
the outcome of the trial would have been different.” State v.
Montoya, 2004 UT 5, ¶¶ 23–24, 84 P.3d 1183 (cleaned up). In
other 	words, 	to 	show 	constitutional 	ineffectiveness, 	Ramos
must 	prove 	both 	deficient 	performance 	and 	prejudice. 	See
Strickland v. Washington, 466 U.S. 668, 687–89, 694 (1984); State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.9
9. Ramos also argues that the court’s failure to ensure proper
jury instruction constitutes plain error. But a party to an appeal
cannot take advantage of an error that it invited the trial court to
commit. See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366. Thus,
(continued…)

State v. Ramos
20160075-CA 	12 	2018 UT App 161
A. 	Failure to Object to the Flawed Jury Instruction
¶24 	Because 	imperfect 	self-defense 	is 	an 	affirmative
defense, Ramos was entitled to the benefit of it—reduction of a
murder 	conviction 	to 	manslaughter—unless 	the 	State
proved beyond a reasonable doubt that the defense did not
apply. See State v. Low, 2008 UT 58, ¶ 45, 192 P.3d 867; State v. Lee,
2014 UT App 4, ¶ 27, 318 P.3d 1164; Campos, 2013 UT App 213,
¶ 38. The State concedes that sufficient evidence exists in the
record 	to 	support 	the 	trial 	court’s 	giving 	of 	a 	self-defense
instruction. 	Thus, 	Ramos 	was 	entitled 	to 	a 	proper 	self-
defense 	instruction. 	Accordingly, 	Ramos 	contends 	that 	his
trial 	counsel 	was 	constitutionally 	ineffective 	by 	failing 	to
object to the flawed jury instruction.
¶25 	A 	court 	need 	not 	review 	the 	deficient 	performance
element 	before 	examining 	the 	prejudice 	element. 	See
State v. Galindo, 2017 UT App 117, ¶ 7, 402 P.3d 8. “If it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, that course should be followed.”
Id. 	(cleaned 	up). 	Here, 	we 	follow 	that 	course 	because
Ramos cannot carry the heavy burden of demonstrating that
the erroneous instruction prejudiced him.
(…continued)
“a jury instruction may not be assigned as error even if such
instruction constitutes manifest injustice if counsel, either by
statement or act, affirmatively represented to the court that he or
she had no objection to the jury instruction.” State v. Geukgeuzian,
2004 UT 16, ¶ 9, 86 P.3d 742 (cleaned up). Here, Ramos did not
merely fail to object; he agreed to the instruction. When the court
discussed 	the 	proposed 	jury 	instruction 	for 	imperfect-self-
defense manslaughter, trial counsel stated, “We don’t have an
issue with this instruction, Judge.” Counsel therefore invited the
error in the instruction and precluded any plain error review.

State v. Ramos
20160075-CA 	13 	2018 UT App 161
¶26 	To 	prove 	prejudice, 	Ramos 	must 	demonstrate 	“a
reasonable probability” that but for counsel’s performance, “the
result of the proceeding would have been different.” Strickland,
466 	U.S. 	at 	694. 	“A 	reasonable 	probability 	is 	a 	probability
sufficient to undermine confidence in the outcome.” Id. Thus,
even 	when 	a 	jury 	instruction 	is 	erroneous, 	the 	error 	may
nevertheless 	be 	harmless 	given 	the 	evidence. 	See 	State 	v.
Hutchings, 2012 UT 50, ¶¶ 24–28, 285 P.3d 1183; see also Green v.
Louder, 2001 UT 62, ¶ 17, 29 P.3d 638 (noting that an erroneous
jury 	instruction 	is 	harmless 	if 	“we 	are 	not 	convinced 	that
without this instruction the jury would have reached a different
result”).
¶27 	Ramos argues that we must presume prejudice because
there 	is 	“a 	reasonable 	basis 	for 	the 	jury 	to 	conclude 	that
imperfect 	self-defense 	applied,” 	and 	therefore 	“there 	is
necessarily a reasonable probability . . . that, but for counsel’s
error, the result would have been different.” (quoting State v.
Garcia, 2016 UT App 59, ¶ 25, 370 P.3d 970, aff'd in part, rev'd in
part, 2017 UT 53). When assessing the “reasonable probability
that the jury would have returned a more favorable verdict . . . if
properly instructed,” Lee, 2014 UT App 4, ¶ 33, the court must
“consider 	the 	totality 	of 	the 	evidence” 	before 	the 	jury, 	see
Hutchings, 2012 UT 50, ¶ 28. When we consider the totality of the
evidence here, we do not find a reasonable probability that the
result would have been different had the jury been properly
instructed.
¶28 	In State v. Garcia, 2017 UT 53, our supreme court held that,
based on the totality of the evidence, the defendant was not
prejudiced 	by 	a 	similarly 	worded, 	erroneous 	imperfect-self-
defense instruction. Id. ¶ 45 (“When we examine the record as a
whole, counsel’s error does not undermine our confidence in the
jury’s verdict finding [Defendant] guilty of attempted murder
rather than attempted manslaughter. The evidence [in favor of
attempted murder] overwhelmed the evidence that [Defendant]
acted in imperfect self-defense.”).

State v. Ramos
20160075-CA 	14 	2018 UT App 161
¶29 	Like Ramos’s jury instruction, the instruction in Garcia
incorrectly 	stated 	that 	the 	jury 	“needed 	to 	find 	beyond 	a
reasonable doubt that imperfect self-defense did not apply in
order to convict [Defendant] of attempted manslaughter.” Garcia,
2016 UT App 59, ¶ 11. This instruction was erroneous because it
“improperly placed the burden upon [Defendant] to prove his
affirmative 	defense 	beyond 	a 	reasonable 	doubt 	rather 	than
correctly placing the burden on the State to disprove the defense
beyond a reasonable doubt.” See State v. Lee, 2014 UT App 4,
¶ 27, 318 P.3d 1164.
¶30 	But on appeal, our supreme court concluded that the
defendant suffered no prejudice because counsel’s error did not
undermine the court’s confidence in the jury’s verdict. “The
evidence that [Defendant] was motivated by a desire to kill . . .
overwhelmed the evidence that [Defendant] acted in imperfect
self-defense.” Garcia, 2017 UT 53, ¶ 45. Said another way, just
because 	there 	was 	enough 	evidence 	to 	justify 	giving 	the
imperfect-self-defense instruction does not mean that the jury
would have found that it applied. The State’s evidence against
Garcia 	was 	so 	overwhelming 	that 	even 	had 	the 	proper
instruction been given, there was not a reasonable probability
that the outcome would have been different, since the jury could
not “reasonably have found that Garcia acted in imperfect self-
defense 	such 	that 	a 	failure 	to 	instruct 	the 	jury 	properly
undermines confidence in the verdict.” Id. ¶¶ 42–44.
¶31 	Similarly, Ramos suffered no prejudice because there was
no reasonable probability that but for his counsel’s performance,
“the result of the proceeding would have been different” such
that the error “undermine[s] [our] confidence in the outcome.”
Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Lee, 2014
UT App 4, ¶¶ 29–33 (holding that even erroneous affirmative-
defense 	instructions 	do 	not 	cause 	prejudice 	where
overwhelming evidence against the defendant demonstrates that
there is no reasonable probability that the jury would have

State v. Ramos
20160075-CA 	15 	2018 UT App 161
found 	that 	defendant 	acted 	reasonably 	or 	with 	legal
justification).
¶32 	The evidence against Ramos was so overwhelming that
there was no “reasonable probability” that but for counsel’s
performance regarding the jury instruction, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at
694. Ramos alleged imperfect self-defense, but several factors
weigh heavily against his claim. Victim was stabbed not once,
but nine times; Ramos was not alone, but attacked Victim with
the help of Accomplice; Ramos’s injuries, in comparison to
Victim’s, were minimal; and after repeatedly and fatally stabbing
Victim, Ramos did not seek or await law enforcement, but
instead fled. Finally, when Ramos was apprehended and talked
to law enforcement, he gave significantly inconsistent stories
about what happened.
¶33 	Furthermore, because Instruction 48 more plainly and
separately outlines the burden of proof, it is not reasonably
likely that the jury was confused as to the burden of proof, such
that 	the 	outcome 	of 	the 	case 	would 	have 	been 	different.
Instruction 48 read,
Imperfect self-defense is a partial defense to the
charge of Murder. It applies when the defendant
caused the death of another while incorrectly, but
reasonably, believing that his conduct was legally
justified or excused. The effect of the defense is to
reduce 	the 	crime 	of 	Murder 	to 	Manslaughter
Involving a Dangerous Weapon.
The defendant is not required to prove that the
defense 	applies. 	Rather, 	the 	State 	must 	prove
beyond a reasonable doubt that the defense does
not apply. The State has the burden of proof at all
times. If the State has not carried this burden, the

State v. Ramos
20160075-CA 	16 	2018 UT App 161
defendant may only be convicted of Manslaughter
Involving a Dangerous Weapon.
¶34 	Where the instructions contained an express statement
correctly identifying the party who bore the burden of proof, we
find it unlikely that the jury misapplied the law. In the parlance
of Strickland, we do not believe that the misstatement of the law
changed the outcome in this case and we remain unpersuaded
that correcting the instruction would likely change the result
here.
¶35 	Ramos’s contention that he was prejudiced based solely
on his entitlement to a correctly drafted imperfect-self-defense
instruction fails. Because Ramos has not shown any error that
undermines our confidence in the jury’s verdict, we conclude
that he did not receive ineffective assistance of counsel.
B. 	Failure 	to 	Object 	to 	Questioning 	Regarding 	Victim’s
Children
¶36 	Ramos 	also 	argues 	that 	his 	trial 	counsel 	was
constitutionally 	ineffective 	by 	failing 	to 	object 	to 	Friend’s
testimony that Victim had a picture of his two sons on his cell
phone. As discussed, to show that his counsel was ineffective,
Ramos must prove both that his counsel performed deficiently
and 	that 	he 	was 	prejudiced 	as 	a 	result. 	See 	Strickland 	v.
Washington, 466 U.S. 668, 687–89, 694 (1984). Because there were
multiple 	strategic 	reasons 	not 	to 	object, 	Ramos 	cannot
demonstrate that no reasonable attorney would have failed to
object, and his contention fails.
¶37 	First, counsel could have reasonably concluded that the
testimony was relevant. Evidence is relevant if it has “any
tendency to make a fact more or less probable than it would be
without 	the 	evidence” 	and 	“the 	fact 	is 	of 	consequence 	in
determining the action.” Utah R. Evid. 401(a). Counsel could
have reasonably concluded that the testimony that Victim had a

State v. Ramos
20160075-CA 	17 	2018 UT App 161
picture of his boys on his cell phone cleared this low threshold
by 	helping 	corroborate 	Friend’s 	account 	of 	the 	stabbing,
including her testimony that Victim begged for his life because
he had children.
¶38 	Second, trial counsel could have reasonably concluded
that the testimony about the cell phone picture was cumulative.
The jury already knew from Friend’s testimony that Victim was
a father. Therefore, trial counsel could have reasonably chosen
not to object based on the fact that the information was not new
to the jury.
¶39 	In sum, counsel had valid reasons not to object to the
testimony Ramos now claims counsel should have opposed.
Ramos therefore has not rebutted the presumption that his
counsel’s performance was objectively reasonable. See Strickland,
466 U.S. at 687–89. Because he fails to demonstrate deficient
performance, we need not address prejudice, and his argument
fails.
II. Cumulative Error Doctrine Is Unavailing
¶40 	Ramos’ final contention is that because “the evidence that
[he] was guilty of murder . . . was not overwhelming” the
cumulative errors in his trial undermine the jury verdict. We are
not 	persuaded, 	having 	concluded 	that 	the 	only 	error 	that
occurred at trial was harmless.
¶41 	The 	cumulative 	error 	doctrine 	applies 	only 	when
“collective errors rise to a level that undermine[s] [an appellate
court’s] confidence in the fairness of the proceedings.” See State
v. Perea, 2013 UT 68, ¶ 105, 322 P.3d 624. Here, we have not
found any prejudicial error, and therefore the application of the
cumulative error doctrine is inapplicable. See State v. Killpack,
2008 UT 49, ¶ 56, 191 P.3d 17, abrogated on other grounds by State v.
Wood, 2018 UT App 98.

State v. Ramos
20160075-CA 	18 	2018 UT App 161
CONCLUSION
¶42 	Ramos’s trial counsel did not provide constitutionally
ineffective assistance in failing to object to the flawed imperfect-
self-defense manslaughter jury instruction. Further, counsel did
not provide ineffective assistance in not objecting to testimony
regarding the picture of Victim’s children on his cell phone.
Finally, based on the lack of multiple errors, the requirements of
the cumulative error doctrine have not been met.
¶43 	Affirmed.