State v. Vigil

2019 UT App 131
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
ERIKA VIGIL,
Appellant.
Opinion
No. 20170469-CA
Filed August 1, 2019
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 161901897
Peter Daines, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE K ATE A PPLEBY authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
APPLEBY, Judge:
¶1 	Erika 	Vigil 	(Defendant) 	saw 	her 	live-in 	boyfriend
(Boyfriend) point a gun at the head of someone (Victim) who
was trying to help her. Boyfriend also took Victim’s wallet and
phone before fleeing the scene. Once the police arrived and
questioned 	her, 	Defendant 	repeatedly 	denied 	knowing 	the
person who committed these crimes and gave them a name she
knew 	was 	false. 	Ultimately, 	though, 	her 	relationship 	with
Boyfriend 	came 	to 	light 	and 	she 	was 	charged 	with
obstructing justice and convicted after a jury trial. Defendant
appeals, arguing she received ineffective assistance of counsel
when her attorney did not object to one of the jury instructions.
We affirm.

State v. Vigil
20170469-CA 	2 	2019 UT App 131
BACKGROUND
¶2 	Victim was returning home after removing snow from his
neighbors’ driveways when Defendant, who “looked frantic and
scared,” approached him asking for help.1 Defendant had just
escaped from a car Boyfriend was driving after he assaulted her
because he believed she had “snitched” to the police about a
friend. In light of Defendant’s distress, Victim handed her his
phone and she made a call, then asked him for a ride. Victim
urged Defendant to call the police, but she refused.
¶3 	A car approached, parking near them, and Boyfriend
yelled at Defendant, “Get in the fucking car, bitch.” Victim
raised his phone to photograph Boyfriend, who “exited the
vehicle with a handkerchief up over his face with a gun drawn
running at [Victim].” Victim testified the gun was “pointed in
[his] 	face 	and 	[Boyfriend] demand[ed] 	[his] phone.” 	Victim
threw down the phone and Defendant picked it up then took
Victim’s wallet.
¶4 	After a person in a nearby house opened a door and
announced “[t]he cops are on their way,” Boyfriend got back
into the car and fled the scene, but within a short distance his car
collided with another vehicle. Defendant went to Boyfriend’s car
and looked for something, then asked the driver of the other
vehicle “where [Boyfriend] went.” After the vehicle’s driver told
Defendant 	that 	Boyfriend 	had 	“just 	[run] 	up 	the 	street,”
Defendant said she would “go find him.”
¶5 	Defendant eventually went inside a nearby house, where
she was interviewed by one officer, then another. Apparently
unwilling to “snitch” on Boyfriend, Defendant told each officer
she had accepted a ride from a stranger because he was “cute,”
and she repeatedly said she did not know the car’s driver, but
1. “[W]e recite the facts in the light most favorable to the jury’s
verdict.” State v. Lane, 2019 UT App 86, ¶ 2 n.1.

State v. Vigil
20170469-CA 	3 	2019 UT App 131
thought his name was Joey. Defendant also gave the officers
misleading information about where she lived. Not surprisingly,
the ensuing search for “Joey” was unsuccessful. After more than
a week of investigation, the police identified Boyfriend as a
suspect and learned that he and Defendant lived in the same
apartment. 	They 	obtained 	surveillance 	video 	from 	a 	store
Boyfriend 	ran 	through 	after 	the 	crash 	and 	showed 	it 	to
Defendant, who finally identified Boyfriend.
¶6 	Defendant was charged with obstruction of justice, and
the matter proceeded to a jury trial. At the conclusion of trial, the
judge 	asked 	counsel 	about 	the 	proposed 	jury 	instructions,
including 	Instruction 	28, 	and 	Defendant’s 	counsel 	(Trial
Counsel) said, “They look good to the defense.” Instruction 28
told the jury that to convict Defendant of obstructing justice, it
must find that she:
Knowingly 	or 	intentionally, 	and 	with 	intent 	to
hinder, 	delay, 	or 	prevent 	the 	investigation,
apprehension, 	prosecution, 	conviction, 	or
punishment of any person regarding conduct that
constitutes a criminal offense; (a) Prevented by
deception, any person from performing any act
that 	might 	aid 	in 	the 	discovery, 	apprehension,
prosecution, 	conviction, 	or 	punishment 	of 	any
person; 	OR 	(b) 	Provided 	false 	information
regarding a suspect . . . AND; [t]he conduct which
constituted a criminal offense would be a . . . first
degree felony.
¶7 	Defendant was convicted and now appeals.
ISSUE AND STANDARD OF REVIEW
¶8 	Defendant 	argues 	Trial 	Counsel 	“rendered 	ineffective
assistance of counsel for failing to object to Instruction 28.”
“When a claim of ineffective assistance of counsel is raised for

State v. Vigil
20170469-CA 	4 	2019 UT App 131
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 law.” State v. Lopez,
2019 UT App 11, ¶ 22, 438 P.3d 950 (quotation simplified).
ANALYSIS
¶9 	Defendant contends Trial Counsel “rendered ineffective
assistance of counsel for failing to object to Instruction 28.” She
asserts 	a 	reasonable 	attorney 	would 	have 	objected 	because
Instruction 28 allowed the jury to “convict [her] upon proof that
she acted knowingly when the applicable statute requires the
State [to] demonstrate she acted with specific intent.” We are not
convinced. Because Instruction 28 “fairly instructed the jury
about the applicable law,” we conclude Trial Counsel was not
deficient in approving it. See State v. Liti, 2015 UT App 186, ¶ 12,
355 P.3d 1078.
¶10 	The Sixth Amendment to the United States Constitution
guarantees criminal defendants a right to effective assistance of
counsel. U.S. Const. amend. VI; see also Strickland v. Washington,
466 U.S. 668, 686 (1984). “We evaluate whether a defendant has
received ineffective assistance of counsel under [a] two part
test.” Gregg v. State, 2012 UT 32, ¶ 19, 279 P.3d 396. “First, the
defendant must show that counsel’s performance was deficient.
Second, the defendant must show that the deficient performance
prejudiced the defense.” Id. (quotation simplified). The inability
to establish either element defeats the claim. State v. Lopez, 2019
UT App 11, ¶ 23, 438 P.3d 950.
¶11 	“Failure to object to jury instructions that correctly state
the law is not deficient performance.” State v. Lee, 2014 UT App
4, ¶ 22, 318 P.3d 1164. “The general rule for jury instructions is
that an accurate instruction upon the basic elements of an
offense is essential.” State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141
(quotation simplified). Essential elements of an offense generally
include the “conduct [that] is prohibited by law,” Utah Code

State v. Vigil
20170469-CA 	5 	2019 UT App 131
Ann. § 76-2-101(1)(a) (LexisNexis 2017), and “the required mens
rea,” Bird, 2015 UT 7, ¶ 14; see also Utah Code Ann. § 76-2-102
(LexisNexis 2017) (“Every offense not involving strict liability
shall require a culpable mental state.”). “An appropriate jury
instruction 	must 	also 	distinguish 	between 	the 	general 	and
specific intent requirements of an offense.” Bird, 2015 UT 7, ¶ 17.
But “even if one or more of the instructions, standing alone, are
not as full or accurate as they might have been, counsel is not
deficient in approving the instructions as long as the trial court’s
instructions constituted a correct statement of the law.” State v.
Painter, 	2014 	UT 	App 	272, 	¶ 	6, 	339 	P.3d 	107 	(quotation
simplified).
¶12 	Instruction 28 provided the elements of obstruction of
justice. “A person commits obstruction of justice when she
engages in one of several enumerated activities . . . and acts with
intent 	to 	hinder, 	delay, 	or 	prevent 	the 	investigation,
apprehension, prosecution, conviction, or punishment of any
person regarding conduct that constitutes a criminal offense.”
Salt Lake City v. Valdez-Sadler, 2015 UT App 203, ¶ 7, 358 P.3d 341
(quotation simplified); see also Utah Code Ann. § 76-8-306(1)
(LexisNexis 	2017). 	There 	is 	no 	dispute 	that 	Instruction 	28
accurately 	instructed 	the 	jury 	on 	the 	relevant 	“prohibited
conduct” by requiring the State to prove Defendant provided
false information regarding Boyfriend or prevented by deception
his 	discovery, 	apprehension, 	prosecution, 	conviction, 	or
punishment. See Utah Code Ann. § 76-8-306(1)(b), (j). Defendant
asserts 	that 	“the 	only 	factual 	dispute 	in 	this 	case 	was
whether 	[she] 	lied 	with 	the 	requisite 	criminal 	intent.” 	Her
claim is that Instruction 28 “substantially reduced the State’s
burden with respect to the mental state element” by instructing
the jury that “it could convict [her] upon proof that she acted
knowingly when the applicable statute require[d] the State [to]
demonstrate 	she 	acted 	with 	specific 	intent.” 	This argument
misses the mark.
¶13 	To be sure, obstruction of justice “is a crime of specific
intent.” State v. Maughan, 2013 UT 37, ¶ 13, 305 P.3d 1058. But as

State v. Vigil
20170469-CA 	6 	2019 UT App 131
the State correctly explains, Utah courts use the term specific
intent “‘to designate a special mental element which is required
above and beyond any mental state required with respect to the
actus 	reus 	of 	the 	crime.’” 	(Quoting 	1 	Wayne 	R. 	LaFave,
Substantive Criminal Law § 5.2(e) (3d ed. 2017).) Even when an
offense contains a strict liability element, “our criminal code
requires proof of mens rea for each element of a non-strict
liability crime.” State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676
(citing 	Utah 	Code 	section 	76-2-101(1)). 	Thus, 	obstruction 	of
justice requires proof of both a general culpable mental state as
to conduct and the specific intent to cause a result. See State v.
Hutchings, 2012 UT 50, ¶ 14 n.3, 285 P.3d 1183 (explaining that
“Utah’s criminal code no longer applies the labels of specific
intent and general intent” but “[t]he distinction is still embodied
in our case law . . . described as intent to cause a result and
intent as to conduct, respectively”). Because the statute “does not
specify a culpable mental state” for the general intent element,
that element may be established by showing “intent, knowledge,
or recklessness.” Utah Code Ann. § 76-2-102; see also id. § 76-8-
306(1).
¶14 	Here, Instruction 28 properly instructed the jury on the
mens rea for obstruction of justice. First, it satisfied the general
mens rea requirement by informing the jury that Defendant
must have “[k]nowingly or intentionally” lied to the police.2
Second, Instruction 28 satisfied the specific intent requirement
by informing the jury that Defendant must have lied to the
police 	“with 	the 	intent 	to 	hinder, 	delay, 	or 	prevent 	the
investigation, 	apprehension, 	prosecution, 	conviction, 	or
punishment” of Boyfriend. In short, Instruction 28 correctly
2. It would have been proper to include the mental state of
“recklessness,” but this omission does not change our analysis.
See Utah Code Ann. § 76-2-104(2) (LexisNexis 2017) (“If acting
recklessly is sufficient to establish the culpable mental state for
an element of an offense, that element is also established if a
person acts intentionally or knowingly.”).

State v. Vigil
20170469-CA 	7 	2019 UT App 131
stated 	the 	law 	by 	including 	the 	culpable 	mental 	states 	of
“knowingly or intentionally” for the general mens rea element as
well as “with intent to hinder, delay, or prevent” for the element
of specific intent.
¶15 	We 	are 	sympathetic 	to 	Defendant’s 	claim 	that 	the
jury instructions could have been better. Although we conclude
that the jury instructions accurately stated the law, we see
no harm in explaining to the jury “the distinction between
the general and specific intent requirements.” State v. 	Bird,
2015 	UT 	7, 	¶ 	17, 	345 	P.3d 	1141 	(quotation 	simplified).
For example, discussing respectively in separate paragraphs
the specific intent requirement and the required mens rea as
to conduct, as was done in the instruction reviewed in State v.
Carrell, 2018 UT App 21, 414 P.3d 1030, would have avoided
any 	claimed 	confusion 	about 	what 	Defendant 	refers 	to 	as
“dual mental states.” Further, although the jury was instructed
that some crimes require a mental state of “intentionally or
knowingly” 	and 	others 	require 	only 	that 	a 	defendant 	act
“recklessly 	. 	. 	. 	or 	with 	some 	other 	specified 	mental 	state,”
the 	instructions 	did 	not 	state 	specifically 	that 	some 	crimes
also require the specific intent to cause a result. (Emphasis
added.) As Defendant notes in her brief, it may have been
helpful to include a clause that more thoroughly explained
this 	idea. 	But 	although 	these 	changes 	may 	have 	improved
the 	instructions, 	Instruction 	28 	adequately 	explained 	the
mens 	rea 	required 	under 	the 	statute 	by 	providing 	that
Defendant must have acted “[k]nowingly or intentionally, and
with intent to hinder, delay,” etcetera. (Emphasis added.); see
also Utah Code Ann. § 76-2-101(1) (LexisNexis 2017); id. § 76-8-
306(1).
¶16 	In sum, the jury instructions “fairly instructed the jury”
on the elements of obstruction of justice. See State v. Liti, 2015 UT
App 186, ¶ 12, 355 P.3d 1078. And because the jury received an
accurate statement of the law, we conclude that Trial Counsel
did 	not 	render 	deficient 	performance 	for 	approving 	the
instructions.

State v. Vigil
20170469-CA 	8 	2019 UT App 131
CONCLUSION
¶17 	Trial Counsel did not render ineffective assistance of
counsel by approving Instruction 28. We affirm.