State v. Carter

2022 UT App 9
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
DOUGLAS J ACK C ARTER , JR .,
Appellant.
Opinion
No. 20190708-CA
Filed January 21, 2022
Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 181500817
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Sean D. Reyes and Thomas Brunker,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGE R YAN D. T ENNEY concurred, with opinion. JUDGE DIANA
HAGEN dissented, with opinion.
ORME, Judge:
¶1 	Douglas 	Jack 	Carter, 	Jr., 	appeals 	his 	conviction 	for
aggravated arson. He asserts that his trial counsel provided
ineffective assistance by not objecting to certain testimony of the
State’s expert witness and by not moving for a directed verdict.
We affirm.

State v. Carter
20190708-CA 	2 	2022 UT App 9
BACKGROUND1
¶2 	On a Monday in October 2018, a vacant house in a
residential 	neighborhood 	caught 	fire. 	The 	fire 	department
successfully 	extinguished 	the 	blaze, 	and 	the 	damage 	was
confined to the area around the utility meter. The fire melted
some siding but otherwise did little damage. While responding
to the fire, firefighters found it necessary to pull drywall and
insulation from the interior walls nearest the meter to check for
flames or hot embers. The firefighters then left the house with
the drywall and insulation on the floor, and they disconnected
all the utilities for safety reasons.
¶3 	Just three days later, early on Thursday morning, the
house again caught fire. This time, the fire was much more
destructive, resulting in the house being declared a total loss and
later being demolished. The fire marshal, with the assistance of
“an accelerant detection canine,” investigated the scene and soon
determined that the second fire originated in the same location
as the previous fire and that it was intentionally set by igniting
gasoline.
¶4 	While firefighters worked at the scene, Carter appeared
and spoke with responding police officers. His presence seemed
odd to the officers because it was very early in the morning, it
was cold, and Carter was only wearing “pajamas and a light
jacket.” The officers began to suspect that Carter, who lived just
“two houses to the north of where the fire was located” and who
was suspected of burning utility poles in an unrelated case, was
involved with the fire. Furthermore, the vacant house was a
“family 	home” 	that 	once 	belonged 	to 	Carter’s 	deceased
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

State v. Carter
20190708-CA 	3 	2022 UT App 9
grandmother and was then passed to Carter’s mother, who sold
it to Carter’s cousin due to her inability to pay the taxes and
utility bills on the property. Based on these facts, the officers
obtained a warrant to search Carter’s property. The search
revealed an empty box of matches on an armchair in his home
and a gas can containing a small amount of gas in a shed. Carter
was then arrested. The arresting officers observed a visible burn
on his wrist. Carter initially denied starting the second fire but
later admitted that he used the gasoline and matches found
during the search to start the fire.
¶5 	The State charged Carter with aggravated arson under
Utah Code section 76-6-103 for the second fire.2 In relevant part,
under that section “[a] person is guilty of aggravated arson if by
means of fire or explosives he intentionally and unlawfully
damages 	. 	. 	. 	a 	habitable 	structure.” 	Utah 	Code 	Ann.
§ 76-6-103(1) (LexisNexis 2017). A habitable structure is defined
as 	“any 	building, 	vehicle, 	trailer, 	railway 	car, 	aircraft, 	or
watercraft used for lodging or assembling persons or conducting
business 	whether 	a 	person 	is 	actually 	present 	or 	not.” 	Id.
§ 76-6-101(1)(b).
¶6 	At trial, it was undisputed that Carter set the second fire.
Thus, 	the 	trial 	turned 	solely 	on 	whether 	the 	vacant 	house
qualified as a “habitable structure” under the statute. If it did,
then Carter was guilty of aggravated arson, a first-degree felony.
See id. § 76-6-103(2). If it did not, then Carter was guilty of the
lesser included offense of arson, a second-degree felony under
the facts of this case. See id. § 76-6-102(3).
¶7 	Prior to the start of trial, the parties debated how to
instruct 	the 	jury 	on 	the 	definition 	of 	“habitable 	structure.”
2. Carter was also charged with two counts of arson for burning
utility poles. The jury acquitted Carter of these counts. He was
not charged for the first fire at the house.

State v. Carter
20190708-CA 	4 	2022 UT App 9
Carter’s trial counsel proposed a jury instruction that stated,
“The focus of the definition of ‘Habitable Structure’ is on the
actual use of the particular structure, not on the usual use of
similar types of structures.” Trial counsel’s argument, therefore,
was that for a house to be deemed a habitable structure under
the statutory definition, it must actively be lived in and cannot
be vacant at the time the fire is set. The district court apparently
disagreed, stating that “[y]ou don’t have to show it’s being
actually lived in,” and the court refused to provide the jury with
the proposed instruction.
¶8 	On the other hand, the State, relying on an Arizona case,
proposed an instruction that “habitable structure includes any
dwelling house, whether occupied, unoccupied, or vacant.” The
district court also rejected this proposed instruction. It reasoned
that the Arizona case the State cited was inapplicable because it
dealt with an Arizona statutory definition that differed from the
Utah statutory definition.
¶9 	The court then determined that it would simply instruct
the jury with the exact wording of the statutory definition of
“habitable structure.” See id. § 76-6-101(1)(b). The court informed
the parties that they could argue to the jury whether that
definition meant that the house had to actually be in use at the
time the arson took place. The court also indicated that it would
instruct the jury that if it found that the house was not a
habitable structure, then it could convict Carter of the lesser
included offense of arson.
¶10 	At trial, the State called, as an expert witness, the fire
marshal who investigated the fire.3 The last question the State
asked the fire marshal in its direct examination was whether, “in
3. The State called additional witnesses but, except as hereafter
noted, their testimony is irrelevant to the issues Carter raises on
appeal.

State v. Carter
20190708-CA 	5 	2022 UT App 9
[his] expert opinion,” the house was “a habitable structure.” The
fire marshal responded, “Yes.” Carter’s trial counsel did not
object.
¶11 	On cross-examination, the fire marshal explained that
while drywall and insulation “had fallen into the structure . . . it
was pretty obvious that . . . the home was livable” before the
second fire destroyed the house. But trial counsel did elicit
testimony from the fire marshal that there was no food or
furniture in the house that would indicate that someone had
been living there at the time the second fire was started. Trial
counsel 	then 	asked 	how 	the 	fire 	marshal 	was 	qualified 	to
determine whether the house was a habitable structure. The fire
marshal explained that in determining the house was a habitable
structure, he relied on “general common sense,” his experience
in investigating fires over the years and seeing “what people are
willing to live in,” and the fact that the house had been “built to
be a habitable structure.” The fire marshal also explained that he
had “seen structures that were considerably more damaged than
[the house was after the first fire] that people have moved back
into.”
¶12 	Later, during a discussion with the court on another issue,
trial 	counsel 	explained 	why 	he 	did 	not 	object 	to 	the 	fire
marshal’s testimony that the house was a habitable structure. He
explained that he did not object because “all [the fire marshal]
says is that somebody could live in it.” And as part of the
defense 	strategy, 	that 	answer 	was 	irrelevant 	because, 	in
accordance with trial counsel’s interpretation of the statute, he
was focused on “what was it being used for at that time.”
¶13 	During its closing argument, the State walked the jury
through the elements of aggravated arson. When discussing
whether the house was a “habitable structure,” the State argued
that “[i]t was classified as a habitable structure by Fire Marshal
. . . , 	an 	expert 	witness.” 	The 	State 	also 	argued 	that 	“[t]he
primary purpose of this type of structure is lodging” as seen by

State v. Carter
20190708-CA 	6 	2022 UT App 9
the fact that Carter’s grandmother had resided in the house
before she died, it had the typical layout of a house, it contained
appliances, and the utilities were hooked up and usable before
the first fire. The State explained that the aggravated arson
statute purposefully “uses the word habitable versus inhabited,”
meaning that “[t]he law does not require that somebody be
living there full time and they just happen to not be home.” The
State then concluded that “if a business, if a trailer, if a railway
car, 	a 	watercraft, 	or 	an 	aircraft 	can 	constitute 	a 	habitable
structure under the law, then this home surely constituted a
habitable structure.”
¶14 	Trial counsel countered, arguing,
I want you to focus on the word . . . “used.” It
doesn’t say what it’s usually used for or what it’s
been used for in the past. It doesn’t say what it’s
going to be used for in the future. It’s, used. . . .
[W]e all know what that word means, but just
focus on that while we’re going forward.
You heard . . . testimony from the State
about the condition of the property. You heard . . .
the fire inspector talk about [how] he’s seen people
live 	in 	worse 	places 	than 	this 	building. 	That’s
going 	to 	condition. 	We’re 	not 	talking 	about
condition. This statute is talking about use. . . .
[T]he condition of the property is irrelevant. It’s the
use of the property. What was the property being
used for?
Fire inspector said he’s seen people living in
. . . other places worse than that after fires. Well, he
didn’t ever say that he saw people using it for
lodging or assembling people or doing business.

State v. Carter
20190708-CA 	7 	2022 UT App 9
Trial counsel concluded by stating that all that was relevant was
“the actual use of this property, this structure, at this time,” and
that it was undisputed that no one had used the house for
lodging for many years.4
¶15 	After closing argument, the case was submitted to the
jury, which found Carter guilty of aggravated arson. Carter
appeals.
ISSUES AND STANDARD OF REVIEW
¶16 	Carter raises two issues for our consideration. First, he
asserts that trial counsel was ineffective for failing to object to
the fire marshal’s testimony regarding the house’s habitability.
Second, he asserts that trial counsel was ineffective for failing to
move for a directed verdict when the State rested its case. “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 law.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).
4. It is not clear from the record how long the house sat vacant.
But it is clear that it was vacant for a significant amount of time.
Carter’s cousin took possession of it in July 2017, and he began
to slowly repair the dilapidated house, but he had never stayed a
single night in the house by the time of the fires in late 2018.
Carter’s cousin also could not remember “the last time anyone
did stay overnight” at the house. Additionally, a police officer
testified that he had not “notice[d] anybody living there in the
last couple years.”

State v. Carter
20190708-CA 	8 	2022 UT App 9
ANALYSIS
I.
¶17 	There is no getting around the fact that Utah’s aggravated
arson statutory scheme is potentially contradictory. It begins
reasonably enough, providing in relevant part, “A person is
guilty of aggravated arson if by means of fire or explosives he
intentionally 	and 	unlawfully 	damages 	. 	. 	. 	a 	habitable
structure[.]” Utah Code Ann. § 76-6-103(1) (LexisNexis 2017).
¶18 	The term “habitable” is commonly understood to mean
“capable of being lived in.” See Habitable, Merriam-Webster,
https://www.merriam-webster.com/dictionary/habitable [https://
perma.cc/KM2G-SF64]. This meaning of the term is likely what
the fire marshal had in mind in saying that the structure Carter
burned 	was 	habitable. 	But 	our 	Legislature 	did 	not 	leave
“habitable” statutorily undefined. Instead, 	it added its own
definition. But the definition chosen by the Legislature does not
track 	the 	commonly 	understood 	definition 	of 	the 	term; 	it
changes it: “‘Habitable structure’ means any building, vehicle,
trailer, railway car, aircraft, or watercraft used for lodging or
assembling persons or conducting business whether a person is
actually present or not.” Utah Code Ann. § 76-6-101(1)(b).
¶19 	One purpose behind our Legislature’s doing so is clear. It
meant to expand the reach of the statute beyond traditional
housing structures to a broad array of “structures” where arson
might put occupants, or potential occupants, at risk. In an
apparent effort to scale back that expansive reach somewhat, it
then 	added 	the 	qualification 	that 	the 	target 	of 	the 	fire 	or
explosion must be “used for lodging or assembling persons or
conducting business.” Id. The idea seems to be, for example, that
if an individual lights a WaveRunner on fire, the crime is simple
arson, not aggravated arson, whereas if a houseboat or even a
sailboat in which the owner frequently spends the weekend is
burned, it is aggravated arson.

State v. Carter
20190708-CA 	9 	2022 UT App 9
¶20 	While 	that 	seems 	reasonable 	enough, 	the 	“used 	for”
qualifier employed by our Legislature in the definition is not
restricted to the less typically inhabited items—vehicles, trailers,
railway 	cars, 	aircraft, 	and 	watercraft—but 	also 	applies 	to
buildings. On its face, then, the statute suggests that to establish
aggravated arson, it is not enough that the building is “capable
of being lived in.” See Habitable, Merriam-Webster. Rather, it
must have been “used for lodging or assembling persons or
conducting business.” Utah Code Ann. § 76-6-101(1)(b). The
long-vacant house Carter burned was not being used in any of
these ways at the time of the second fire, and this was the basis
for Carter’s argument that while the house may have been
“habitable” as that term is commonly understood, it was not
“habitable” as that term is specifically defined in the statute.
¶21 	Given this conundrum, our Legislature may well wish to
revisit this provision. But any such future amendment will not
aid our solution of the case before us, which we must decide on
the basis of the statute as it now exists, warts and all, and the
district court’s ruling on how it would instruct the jury in this
case.
II.
¶22 	We now turn to Carter’s ineffective assistance of counsel
claims. An ineffective assistance claim requires a defendant to
prove both that (1) “counsel’s performance was deficient” and
(2) “the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). “A defendant’s inability
to 	establish 	either 	element 	defeats 	a 	claim 	for 	ineffective
assistance of counsel.” State v. Cruz, 2020 UT App 157, ¶ 17, 478
P.3d 631 (quotation simplified).
¶23 	To establish deficient performance, i.e., that trial counsel’s
actions “fell below an objective standard of reasonableness,” the
defendant 	must 	overcome 	the 	“strong 	presumption 	that
counsel’s conduct falls within the wide range of reasonable

State v. Carter
20190708-CA 	10 	2022 UT App 9
professional assistance.” Strickland, 466 U.S. at 688–89. Indeed,
“even if an [act or] omission is inadvertent and not due to a
purposeful strategy, relief is not automatic.” State v. Ray, 2020
UT 12, ¶ 34, 469 P.3d 871 (quotation simplified). Instead, “even 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.” State
v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350.
¶24 	To 	establish 	prejudice, 	“a 	defendant 	must 	present
sufficient evidence to support a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Archuleta v. Galetka, 2011 UT 73,
¶ 40, 	267 	P.3d 	232 	(quotation 	simplified). 	“A 	reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694.
A. 	The Fire Marshal’s Testimony
¶25 	Carter asserts that “counsel was objectively unreasonable
when he did not object to the [fire marshal’s] opinion that the
house was a ‘habitable structure.’”5 Specifically, Carter contends
5. Carter also argues that trial counsel was ineffective for “not
object[ing] when the [fire marshal] impermissibly broadened the
meaning 	of 	the 	statutory 	phrase 	‘habitable 	structure.’” 	To
support 	this 	contention, 	Carter 	undertakes 	an 	extremely
thorough 	analysis 	with 	the 	assistance 	of 	corpus 	linguistics,
dictionaries, and 	case 	law of the phrase 	“used for” in the
statutory definition of “habitable structure” to establish that the
statute defines these structures based on their current use. He
does this in an attempt to establish that “[b]y focusing on what
the structure could have been used for” rather than what it was
actually used for at the time of the second fire, the fire marshal
“improperly expanded the statutory definition from the ongoing
use 	that 	the 	statute 	required,” 	and 	therefore 	counsel 	was
(continued…)

State v. Carter
20190708-CA 	11 	2022 UT App 9
that counsel performed deficiently because the fire marshal’s
testimony contained “an impermissible legal conclusion” “of
whether the house was a habitable structure.” Carter explains
that “[f]ailing to object to expert testimony improperly opining
on the only legal conclusion that matters is not a defensible
course of action.” But counsel is not required “to correct every
error that might have occurred at trial.” Ray, 2020 UT 12, ¶ 32.
Rather, counsel is required only to act reasonably and, assuming
(…continued)
ineffective for not objecting to his testimony on this basis. We
ultimately need not resolve Carter’s preferred interpretation of
the statutory scheme because we conclude in section IIA that,
based on the posture of the case and the district court allowing
the parties to present their own interpretations of “habitable
structure” to the jury, counsel’s actions were not unreasonable in
forgoing an objection to the fire marshal’s testimony. After all,
trial counsel was able to cross-examine the fire marshal and
counter that testimony with his own interpretation that the
house had to be currently used for lodging to qualify as a
habitable structure. Counsel also elicited an acknowledgement
from the fire marshal that the structure was not being used for
lodging when Carter set fire to it. Had Carter directly challenged
on appeal the court’s denial of his proposed jury instruction
containing his preferred interpretation of the statutory scheme,
then the statutory meaning would be directly before us, and we
would have to wade into this debate. But because we consider
Carter’s appeal only through the lens of ineffective assistance of
counsel, we are limited to determining whether trial counsel
acted reasonably in what he did, and we have no occasion to
undertake such a thorough analysis and interpretation of the
true meaning of the admittedly confusing statutory scheme. See
State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350 (“[T]he ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.”).

State v. Carter
20190708-CA 	12 	2022 UT App 9
that the fire marshal’s testimony was impermissible,6 we can
determine 	that 	reasonable 	counsel 	could 	have 	decided 	to
cross-examine the fire marshal in this situation rather than object
and move for the testimony to be stricken.
¶26 	Here, the complained-of testimony came at the end of the
fire 	marshal’s 	direct 	examination. 	Immediately 	after 	this
statement, trial counsel began his cross-examination and elicited
from the fire marshal that the basis for his conclusion the house
was habitable was simply the fact that it “was livable” even
though no one actually lived in the house at the time of the
second fire. Trial counsel also got the fire marshal to explain that
he called the house a habitable structure based on his “general
common sense”; his experience over the years and seeing “what
people are willing to live in”; and the fact that this house had
been “built to be a habitable structure.” The fire marshal also
explained that he had “seen structures that were considerably
more damaged than [this house was by the first fire] that people
have moved back into.” Thus, through cross-examination, trial
counsel 	was 	able 	to 	elicit 	testimony 	from 	the 	fire 	marshal
6. “Rule 702 of the Utah Rules of Evidence permits expert
testimony if it ‘will help the trier of fact to understand the
evidence or to determine a fact in issue.’” State v. Brown, 2019 UT
App 122, ¶ 28, 447 P.3d 1250 (quoting Utah R. Evid. 702(a)).
“Such testimony is not rendered inadmissible purely on the basis
that it offers an opinion on an ‘ultimate issue’ to be decided by
the jury.” Id. (citing Utah R. Evid. 704(a)). But “opinions that tell
the jury what result to reach or give legal conclusions [are]
impermissible under rule 704.” State v. Davis, 2007 UT App 13,
¶ 15, 155 P.3d 909 (quotation simplified). For purposes of our
analysis, we assume, without deciding, that the fire marshal’s
testimony was impermissible but ultimately conclude that trial
counsel 	acted 	reasonably 	in 	attempting 	to 	undermine 	the
testimony through cross-examination rather than through an
objection.

State v. Carter
20190708-CA 	13 	2022 UT App 9
suggesting he meant only that the house was capable of being
lived in and was not opining with reference to the peculiar
statutory definition applicable in this case. In other words, trial
counsel was able to get the fire marshal to explain that he was
using the word “habitable” as it is commonly understood and
not as it is used in the statute—at least under trial counsel’s
interpretation. Thus, trial counsel’s cross-examination made the
jury well aware of the limits of the fire marshal’s testimony.
¶27 	Trial counsel also had the opportunity to explain this
strategy when he told the court that he did not object to the fire
marshal’s conclusion that the house was capable of being lived
in because his focus was on “what was it being used for at that
time.” Based on this strategy, trial counsel’s cross-examination
was reasonable because he elicited testimony that the house was
vacant at the time of the second fire. This testimony supported
trial counsel’s definition of a “habitable structure” under the
statute. And given the fact that the court had authorized the
parties to argue their own definitions of “habitable structure”
and whether the house fit that definition, it was reasonable for
counsel not to object and instead to attempt to elicit testimony
from the fire marshal on cross-examination that would establish
that the house was not currently in use—the very key to trial
counsel’s strategy.
¶28 	The 	reasonableness 	of 	trial 	counsel’s 	performance 	is
further seen in his closing argument. There, he argued that the
fire marshal’s testimony about the house generally being capable
of being lived in was “irrelevant” because under the statute,
properly understood, all that mattered was whether the house
was being lived in at the time of the second fire, which the fire
marshal 	said 	was 	not 	the 	case. 	Thus, 	“considering 	all 	the
circumstances,” we cannot say that “counsel’s acts or omissions
were objectively unreasonable” in relying on cross-examination
of the fire marshal to attempt to establish the defense’s theory of
the case rather than objecting outright. See State v. Scott, 2020 UT
13, ¶ 36, 462 P.3d 350.

State v. Carter
20190708-CA 	14 	2022 UT App 9
B. 	Directed Verdict
¶29 	Carter asserts that “[o]bjectively reasonable trial counsel
would 	have 	moved 	for 	a 	directed 	verdict 	when 	the 	State
presented no evidence of ongoing use of the house because
ongoing 	use 	is 	what 	the 	statutory 	definition 	of 	habitable
structure requires.” We disagree for two reasons.
¶30 	First, 	“[i]n 	this 	case, 	[Carter] 	cannot 	establish 	either
deficient performance 	or prejudice, because a motion 	for a
directed verdict had no chance of success.” See State v. Makaya,
2020 UT App 152, ¶ 9, 476 P.3d 1025, cert. denied, 481 P.3d 1039
(Utah 2021). “A futile motion necessarily fails both the deficiency
and prejudice prongs of the Strickland analysis because it is not
unreasonable for counsel to choose not to make a motion that
would not have been granted, and forgoing such a motion does
not prejudice the outcome.” Id. See also State v. Jordan, 2021 UT
37, ¶ 27, 493 P.3d 683 (rejecting the defendant’s “ineffective
assistance of counsel claim on the ground that any objection to
the prosecutor’s statements at closing argument would have
been futile”).
¶31 	Here, a motion for a directed verdict premised on the fact
that the State could not prove that the house was being used at
the time of the second fire would have been futile because the
district court had already indicated its disagreement with that
theory, at least as a matter of law. Specifically, when the parties
were arguing how the jury should be instructed regarding the
meaning 	of 	“habitable 	structure,” 	trial 	counsel 	proposed 	to
instruct the jury that it meant ongoing use. And the State argued
for 	its 	preferred 	definition 	premised 	on 	the 	more 	familiar
meaning of “habitable.” The court declined to adopt either
version urged by the attorneys and instead instructed the jury
using the exact language found in section 76-6-101(1)(b), leaving
both sides to argue their competing definitions to the jury. This
approach left trial counsel free to argue to the jury that ongoing
use of the house was required under the statutory definition of

State v. Carter
20190708-CA 	15 	2022 UT App 9
“habitable structure” in section 76-6-101(1)(b). Thus, while the
court permitted trial counsel to argue his interpretation, it would
have been abundantly clear to counsel that because the court had
previously 	denied 	an 	instruction 	to 	the 	jury 	directing 	that
ongoing use was required, it would not have granted a directed
verdict 	motion 	premised 	on 	the 	State’s 	inability 	to 	prove
ongoing use.
¶32 	Therefore, because such a directed verdict motion would
have been futile, as well articulated by Judge Tenney in his
concurring opinion, trial counsel did not act unreasonably in
declining to pursue it. See Makaya, 2020 UT App 152, ¶ 9. And
Carter cannot show prejudice from trial counsel declining to
pursue a futile motion.
¶33 	Second, 	trial 	counsel 	did 	not 	perform 	deficiently 	in
forgoing a directed verdict motion. Given the district court’s
earlier 	ruling 	on 	the 	statutory 	definition 	of 	“habitable
structure”—that it did not require the State “to show it’s being
actually 	lived 	in”—counsel 	could 	have 	reasonably 	seen 	a
potential risk that in the discussion that would follow such a
motion, the court might be prompted to curb counsel’s ability to
make his argument to the jury that the house had to be in
continual use to be considered habitable. See generally Strickland
v. 	Washington, 	466 	U.S. 	668, 	695 	(1984) 	(stating 	that 	“the
idiosyncracies of [a] particular decisionmaker” can “enter[] into
counsel’s selection of strategies and . . . may thus affect the
performance inquiry”). Given this, we cannot say that counsel
was “objectively unreasonable” in forgoing this motion for a
directed verdict under the circumstances. See State v. Scott, 2020
UT 13, ¶ 36, 462 P.3d 350.
CONCLUSION
¶34 	Trial counsel did not perform deficiently when he did not
object to the fire marshal’s conclusion that the house was a

State v. Carter
20190708-CA 	16 	2022 UT App 9
habitable structure because it was reasonable to address the fire
marshal’s testimony through cross-examination. Additionally,
Carter has not shown that trial counsel performed deficiently, or
that he was prejudiced, when trial counsel did not move for a
directed verdict based on his preferred definition of habitable
structure.
¶35 	Affirmed.
TENNEY, Judge (concurring):
¶36 	I join the majority opinion in full. I write separately to
elaborate on why I believe that Carter did not receive ineffective
assistance when his counsel did not move for a directed verdict.
¶37 	As discussed, Carter faults his counsel for not making a
directed verdict motion. According to Carter, that motion should
have been based on the assertion that the home could not qualify
as a “habitable structure” under the controlling statute because it
was not being used for lodging at the time that Carter burned it.
¶38 	Several 	things 	complicate 	our 	consideration 	of 	this
question. First, Carter’s argument largely turns on the statutory
definition of the term “habitable structure.” But this definition
has not been analyzed in any depth by Utah’s appellate courts,
and as the majority opinion points out, the statutory language is
arguably problematic. Second, in its appellate brief, the State
doesn’t give us a substantive argument about its preferred
interpretation of the statute. Instead, as is its right, it asks us to
affirm on futility and reasonable performance grounds alone.
And third, this is not the usual missing-motion case in which we
don’t know what the district court would have done if counsel
had made the motion; rather, as I discuss below, I believe that
the record shows that the district court would have denied the
motion if Carter’s counsel had made it.

State v. Carter
20190708-CA 	17 	2022 UT App 9
¶39 	Even so, the majority opinion rejects Carter’s ineffective
assistance claim on two grounds: first, because the motion would
have been futile; and second, because defense counsel had a
reasonable basis for not making it. Again, I join both aspects of
that opinion.
¶40 	The dissent, however, disagrees. In the dissent’s view,
“the futility of a directed verdict motion cannot be determined
without analyzing the merits of that motion” ourselves. Infra
¶ 62. 	Because 	the 	State 	has 	not 	given 	us 	a 	competing
interpretation of the habitable structure definition, the dissent
suggests that our hands are tied. Infra ¶¶ 62, 69. According to the
dissent, the State’s silence should therefore essentially compel us
to conclude that the motion would have been meritorious by
default and, as a result, that defense counsel was ineffective for
not making it. Id.
¶41 	On the question of how a futility analysis ordinarily
works, I respect where the dissent is coming from. And so far as
I can tell, the dissent is correct that our futility cases have
commonly 	turned 	on 	our 	own 	assessment 	of 	the 	missing
motion’s merits.
¶42 	Unlike the dissent, however, I don’t regard this as a
prescriptive rule. Rather, I believe that it’s primarily a feature of
how these cases usually come up. When a defendant claims that
his counsel was ineffective for not making a particular argument,
we normally don’t have a clear statement from the district court
indicating what it would have done with the argument if it had
been made, and the reason for that is that the district court was
never 	presented 	with 	it 	in 	the 	first 	instance. 	Hence, 	the
ineffective assistance claim.
¶43 	But that’s not what happened here. Again, Carter faults
his counsel for not making a directed verdict motion that would
have been based on his preferred interpretation of the habitable
structure statute. What makes this case somewhat atypical from

State v. Carter
20190708-CA 	18 	2022 UT App 9
an ineffective assistance standpoint, however, is that the district
court had already been presented with that very interpretation
earlier when the defense requested a jury instruction that was
based on it. And when the court heard this interpretation, it
expressed its clear disagreement with it. The court opined that
“[y]ou don’t have to show” that the home is “being actually
lived in” for the home to qualify as a habitable structure, and the
court also said that, in its view, a home that was “just built” and
“nobody’s 	moved 	into 	it 	yet” 	would 	qualify. 	The 	court
expressed a similar view later, explaining that it believed the
statute doesn’t turn on “whether [the home] was actually being
occupied at the time.”
¶44 	Carter has not given us any reason to believe that shifting
from the jury instruction context to the directed verdict context
would have changed the court’s mind about how the controlling
statute 	works. 	Given 	this, 	Carter 	is 	essentially 	faulting 	his
counsel for not repurposing an already-rejected argument into a
new form, even though there was no appreciable likelihood of
obtaining any different result.
¶45 	In the dissent’s view, however, what ends up mattering
for futility purposes are the merits of the motion, which, in the
dissent’s view, turns on how we would decide this question on
appeal. See infra ¶¶ 66–67. But unlike the dissent, I don’t believe
that a futility analysis is necessarily that limited.
¶46 	An 	ineffective 	assistance 	claim 	stems 	from 	the 	Sixth
Amendment, and the “standards for adjudicating such claims
are thus a matter of federal law.” State v. Silva, 2019 UT 36, ¶ 20,
456 P.3d 718. As a matter of federal law, a Sixth Amendment
ineffective 	assistance 	claim 	has 	two 	elements: 	deficient
performance and prejudice. See State v. Drommond, 2020 UT 50,
¶ 51, 469 P.3d 1056.
¶47 	Utah’s cases have never treated futility as a standalone
third element. Rather, they’ve offered futility as the reason (or,

State v. Carter
20190708-CA 	19 	2022 UT App 9
perhaps, as a shorthand descriptor) for why one of the two
ineffective 	assistance 	elements 	was 	not 	established 	in 	a
particular case. If the missing motion was futile, for example,
then defense counsel didn’t perform deficiently by not making it.
Or, 	similarly, 	if 	the 	missing 	motion 	was 	futile, 	then 	the
defendant wasn’t prejudiced by its absence.
¶48 	In this sense, futility is not the analytical end; rather,
it’s the means to the analytical end. So when futility is invoked,
the 	endpoint 	inquiry 	remains 	the 	same: 	has 	the 	defendant
shown that he received ineffective assistance? Cf. State v. Scott,
2020 UT 13, ¶ 35, 462 P.3d 350 (“[T]he ultimate question is not
whether there was a possible strategic reason for counsel’s
conduct, 	but 	instead 	whether 	that 	conduct 	was 	objectively
reasonable.”).
¶49 	The 	ineffective 	assistance 	inquiry 	then 	turns 	on 	the
reasonableness of counsel’s conduct. See Strickland v. Washington,
466 U.S. 668, 688 (1984). And when assessing whether counsel
performed reasonably, we must begin with how things looked to
counsel at the time the decision in question was made. As
explained by the Supreme Court in Strickland, we must “judge
the reasonableness of counsel’s challenged conduct on the facts
of 	the 	particular 	case, 	viewed 	as 	of 	the 	time 	of 	counsel’s
conduct,” id. at 690, and we must also make “every effort . . . to
eliminate the distorting effects of hindsight,” id. at 689.
¶50 	This largely explains why I disagree with the dissent
about how we must assess futility in a case like this one. If a
district court has already considered and rejected a particular
argument, I don’t see why we would be prevented from taking
that into account when assessing whether defense counsel acted
reasonably by not re-raising that same argument later. Since
defense counsel at the time would have necessarily considered
the court’s prior ruling or statements, I think we can too. See id.
at 690 (“The court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the

State v. Carter
20190708-CA 	20 	2022 UT App 9
wide range of professionally competent assistance.” (Emphasis
added.)).
¶51 	I therefore disagree with the dissent’s view that, when
assessing futility, we’re limited to our own post-hoc assessment
of the “merits of the motion” in question. See infra ¶¶ 66-67. I do
agree that this would be one way for us to analyze futility in a
case. After all, if we have examined the issue and we have
concluded that a proposed motion would have been meritless,
then that would certainly suggest that defense counsel below
could have reasonably decided not to make it.
¶52 	But I don’t believe that this is the only way we can assess
futility. 	Put 	differently, 	I 	don’t 	regard 	this 	as 	an 	either/or
proposition. In my view, a missing motion could be deemed
futile if we later conclude that it was meritless. But since an
ineffective assistance analysis calls for an assessment of the
reasonableness of defense counsel’s conduct, I believe that a
motion could also be deemed futile if the district court itself had
already considered and rejected it. In such a case, if counsel has
already lost once on an argument, I don’t believe that counsel is
constitutionally obligated to then lose twice.
¶53 	Even if it’s true, however, that the latter scenario falls
outside our traditional “futility” rubric, I don’t believe that the
outcome of this particular appeal must turn on that discrete
question 	of 	labeling. 	Again, 	what 	ultimately 	matters is 	the
reasonableness of counsel’s performance. Strickland, 466 U.S. at
688. And here, I agree with the State that defense counsel’s
performance was reasonable.
¶54 	Defense counsel had no real basis for arguing that Carter
did not set the fire. There was circumstantial evidence tying
Carter to the fire, and Carter also confessed to starting it in a
recorded interview. Because of this, the most viable defense
appeared to be that Carter had not committed aggravated arson
because the home that he burned did not qualify as a “habitable

State v. Carter
20190708-CA 	21 	2022 UT App 9
structure” under the statute. And if counsel had managed to
secure an acquittal on the aggravator, this could have resulted in
a substantial reduction in Carter’s sentence. Compare Utah Code
Ann. §§ 76-6-103(2), 76-3-203(1) (LexisNexis 2017) (setting forth a
sentencing range of five years to life for aggravated arson), with
id. § 76-3-203(2) (setting forth a sentencing range of one to fifteen
years for second degree felony arson).
¶55 	As noted, the district court had already expressed its own
disagreement with the defense’s proposed interpretation. And
yet, as also noted, the court nevertheless still decided to allow
defense counsel to make this argument to the jury.7
7. The dissent suggests that because the district court allowed
defense counsel to make the argument to the jury, this means
that the court didn’t actually reject the defense’s view of this
statutory definition. See infra ¶ 72. I do see this as a somewhat
curious decision by the court. As I read the record, however, it
seems that the court was simply trying to thread the needle after
being confronted with an ambiguous statutory provision that
had not yet been interpreted by an appellate court and could at
least arguably be viewed as presenting a factual question.
Unlike 	the 	dissent, 	however, 	I’m 	convinced 	that 	the
district court’s prior statements were clear enough to show that
it did disagree with the defense’s view of this definition—and,
necessarily, to also communicate to defense counsel that the
court would have rejected any directed verdict motion that
would have been predicated on that interpretation.
After all, consider the way that Carter frames his own
proposed argument in his appellate brief. There, Carter faults his
prior counsel for not moving for a directed verdict based on the
State’s failure to present evidence “of the ongoing use of the
house for lodging and assembling.” (Emphasis added.) As he
now puts it, the aggravated arson statute only applies to a
(continued…)

State v. Carter
20190708-CA 	22 	2022 UT App 9
¶56 	Given the centrality of this issue to the defense, the court’s
decision to allow counsel to make this argument to the jury was
a critical concession. After all, to avoid an aggravated arson
conviction, Carter needed to convince someone who mattered
that the home that he burned didn’t qualify as a “habitable
structure.” The court had already said that it wasn’t personally
convinced. But by allowing counsel to make the argument to the
jury anyway, the court was still giving counsel the chance to
make that argument to someone who could do something with
it.
¶57 	So why do anything that could even potentially upend
this delicate and necessary gain? Since defense counsel already
knew 	that 	the 	district 	court 	disagreed 	with 	the 	defense’s
interpretation 	of 	the 	statute, 	I 	believe 	that 	counsel 	could
reasonably decide that it wouldn’t be a good idea to prompt the
court to say so again on the record. Among others, counsel could
reasonably have wondered whether doing so might cause the
(…continued)
structure 	that 	“is 	currently 	or 	presently 	used 	for 	lodging,
assembling, or conducting business.” (Emphases in original.)
But again, during the jury instruction conference, the
court said that it thought the statute would apply to a home that
was “just built” and “nobody’s moved into it yet.” (Emphasis
added.) The court also said that it believed the statute doesn’t
turn on “whether [the home] was actually being occupied at the
time.” (Emphasis added.)
If the district court was correct in its on-the-record view
that a just-built home with no current occupants would qualify,
then Carter can’t be correct that the statute only applies to a
home that is “currently” subject to “ongoing” occupancy. So the
court’s prior comments do indeed seem to me to be a rejection of
the argument that Carter is now faulting his counsel for not
making a second time through the guise of a directed verdict
motion.

State v. Carter
20190708-CA 	23 	2022 UT App 9
court to rethink its decision to allow counsel to make the
argument to the jury at all.8
¶58 	So in the end, I’m comfortable calling this a case of
futility. After all, given the district court’s prior comments, the
directed verdict motion Carter proposed on appeal would have
been decidedly quixotic on the ground, so I don’t believe that the
Constitution required counsel to fight that losing fight again. But
for similar reasons, because Carter’s ineffective assistance claim
ultimately turns on whether defense counsel acted reasonably, I
also agree with the majority opinion that Carter’s claim fails on
its own terms. Defense counsel knew at the time that the district
court didn’t agree with the defense about how to interpret that
statute, and yet the court had left the door open for the defense
8. The dissent suggests that counsel still should have moved for
a directed verdict to preserve that issue for appeal. Infra ¶ 78.
But futility operates as “an exception to the general requirement
of preservation.” State v. Ashcraft, 2015 UT 5, ¶ 33, 349 P.3d 664;
see also State v. Rothlisberger, 2004 UT App 226, ¶ 29, 95 P.3d 1193
(“Under 	our 	law, 	parties 	are 	not 	required 	to 	make 	futile
objections in order to preserve a future claim.”). Because the
court 	had 	already 	considered 	and 	rejected 	the 	defense’s
proposed 	interpretation 	of 	the 	statute, 	I 	don’t 	believe 	that
counsel 	had 	any 	further 	obligation 	to 	advance 	that 	same
interpretation in a new form just to preserve the argument for
appellate review.
Regardless, even if there could have been some gains on
the preservation front, one of the things that defense counsel are
allowed to do is “pick [their] battles.” State v. Ray, 2020 UT 12,
¶ 32, 469 P.3d 871. Here, a potential victory on appeal wasn’t
guaranteed, and that possibility was years removed anyway. I
don’t 	believe 	that 	this 	possibility 	constitutionally 	obligated
counsel to make a potentially risky motion at trial, particularly
where that motion would have been premised on an argument
that the district court had already considered and rejected.

State v. Carter
20190708-CA 	24 	2022 UT App 9
to 	make 	that 	pitch 	to 	the 	jury 	anyway. 	Under 	these
circumstances, I believe that counsel could reasonably decide to
leave well enough alone, accept the court’s invitation to take this
case to the jury, and push for an acquittal there. While there may
be some room for disagreement about whether this was the best
approach, I don’t believe that counsel acted unreasonably by
taking this one.
¶59 	With 	these 	additional 	observations, 	I 	concur 	in 	the
majority opinion.
HAGEN, Judge (dissenting):
¶60 	I respectfully dissent because I do not share the majority’s
view that trial counsel’s failure to move for a directed verdict
was objectively reasonable. Under the unique circumstances
presented by both the record below and the briefing on appeal, I
would 	conclude 	that 	Carter 	has 	satisfied 	his 	burden 	of
persuasion to show both deficient performance and prejudice
under Strickland. See Strickland v. Washington, 466 U.S. 668, 695
(1984). Because Carter has established his ineffective assistance
of counsel claim, I would reverse and remand for a new trial.
¶61 	The State has argued that trial counsel’s failure to move
for a directed verdict did not constitute deficient performance
because the motion would not have been granted by the district
court. The State bases that argument not on the merits of the
motion, 	but 	on 	the 	perceived 	receptiveness 	of 	the 	judge.
According to the State, “A reasonable attorney could conclude
that the judge who had already ruled that [the defense] theory
that ‘habitable structure’ means ‘actual use’ was a matter of
argument for the jury was not going to take the case from the
jury on that basis.” The majority opinion agrees with the State
that a directed verdict motion would have been futile because “it
would have been abundantly clear to counsel that because the
court had previously denied an instruction to the jury directing
that ongoing use was required, it would not have granted a

State v. Carter
20190708-CA 	25 	2022 UT App 9
directed verdict motion premised on the State’s inability to
prove ongoing use.” Supra ¶ 31.
¶62 	On the record and briefing before us, I cannot agree that a
directed verdict motion would have been futile. In my view, the
futility 	of 	a 	directed 	verdict 	motion 	cannot 	be 	determined
without analyzing the merits of that motion. And because the
State 	has 	not 	rebutted 	the 	merits 	of 	Carter’s 	statutory
interpretation argument, I cannot conclude that a motion for a
directed verdict would have been futile.
¶63 	To establish his ineffective assistance of counsel claim,
Carter must “show (1) that counsel’s performance was deficient
and (2) that the deficient performance prejudiced the defense.”
See State v. Gallegos, 2020 UT 19, ¶ 33, 463 P.3d 641 (cleaned up).
Because the State has not contested Carter’s showing on the
prejudice 	prong, 	our 	analysis 	is limited 	to 	the 	question 	of
whether trial counsel’s performance was objectively deficient. As
the concurrence correctly observes, futility is not “a standalone
third element.” Supra ¶ 47. Instead, Utah cases have “offered
futility as the reason (or, perhaps, as a shorthand descriptor) for
why one of the two ineffective assistance elements was not
established in a particular case.” Supra ¶ 47. Specifically, “[a]
futile 	motion 	necessarily 	fails 	both 	the 	deficiency 	and
prejudice prongs of the Strickland analysis because it is not
unreasonable for counsel to choose not to make a motion that
would not have been granted, and forgoing such a motion does
not prejudice the outcome.” State v. Makaya, 2020 UT App 152,
¶ 9, 476 P.3d 1025.
¶64 	In this context, a “futile” motion means a motion that had
“no chance of success.” Id. Used in this way, futility short-
circuits the Strickland analysis. If the defendant could not prevail
on the motion, it is a foregone conclusion that failure to make
that motion does not rise to the level of ineffective assistance of
counsel under Strickland.

State v. Carter
20190708-CA 	26 	2022 UT App 9
¶65 	The conclusion that a motion was futile operates much
like the conclusion that there was a strategic reason for counsel’s
actions. “If it appears counsel’s actions could have been intended
to further a reasonable strategy, a defendant has necessarily
failed to show unreasonable performance.” State v. Ray, 2020 UT
12, ¶ 34, 469 P.3d 871. Similarly, if the motion was futile, the
defendant 	has 	necessarily 	failed 	to 	show 	unreasonable
performance, because choosing not to make a motion on which
the defendant could not have prevailed is reasonable per se. See
State v. Baer, 2019 UT App 15, ¶ 7, 438 P.3d 979 (recognizing that
“trial counsel’s decision not to raise a futile motion for a directed
verdict would not be deficient performance” (cleaned up)). But
that conclusion does not automatically follow if, by “futile,” we
mean only that the judge presiding over the case was unlikely to
grant it. That fact might be highly relevant to whether counsel’s
choices were objectively reasonable under the circumstances, but
it does not mean that the omission was necessarily reasonable.
¶66 	Accordingly, 	we 	cannot 	use 	a 	motion’s 	futility 	as
shorthand for reasonable performance without examining the
merits of the motion. When assessing whether the motion would
have been futile, we must assume that the district court, when
squarely presented with the issue, would have gotten the law
right. See State v. Bell, 2016 UT App 157, ¶ 23, 380 P.3d 11 (“We
conclude that under correct application of the law, . . . a motion
to merge would have been successful, not futile.”). And, if not,
such a preserved error could be rectified on appeal.9
9. The concurring opinion suggests that, in my view, the only
thing that matters for futility purposes is “how we would decide
this question on appeal.” Supra ¶ 45. That is not my position. In
evaluating 	deficient 	performance, 	“the 	reasonableness 	of
counsel’s challenged conduct must be judged on the facts of the
particular case, viewed as of the time of counsel’s conduct.” State
v. Ray, 2020 UT 12, ¶ 31, 469 P.3d 871 (cleaned up). But when our
(continued…)

State v. Carter
20190708-CA 	27 	2022 UT App 9
¶67 	Such an approach is consistent with our caselaw. When
determining whether a motion would have been futile, Utah
appellate courts invariably analyze the merits of the motion. See,
e.g., State v. Eyre, 2021 UT 45, ¶ 21 (“To determine whether trial
counsel performed deficiently in failing to object to [the jury
instruction], we must decide if the instruction was, in fact,
erroneous.”); State v. Alfatlawi, 2006 UT App 511, ¶ 43, 153 P.3d
804 (“Because we hold that [the statute] is not unconstitutional,
we conclude that trial counsel did not perform ineffectively for
failing to challenge the enhancement.”). The only instance in
which we consider the trial judge’s perceived receptiveness to
the argument is when the judge has discretion in making the
ruling. See, e.g., State v. Whytock, 2020 UT App 107, ¶ 38, 469 P.3d
1150 (motion for a mistrial); State v. Gunter, 2013 UT App 140,
¶ 35, 304 P.3d 866 (motion for a continuance). We have never
concluded that a motion would have been futile without regard
to the merits of the motion and the degree of discretion afforded
to the district court.
¶68 	In the directed verdict context, it is objectively reasonable
to forgo a futile motion. Baer, 2019 UT App 15, ¶ 7. On the other
hand, “[i]f the State presents no competent evidence from which
(…continued)
conclusion that counsel’s conduct was objectively reasonable is
based solely on the fact that the missing motion was futile, we
must necessarily consider the merits of 	that motion. When
dealing with a purely legal issue, considering the merits does not
require us to speculate about how the issue would have been
decided, either at trial or on appeal. Rather, the question is
whether the defendant was entitled to prevail as a matter of law.
If so, the motion cannot be considered futile. We might still
conclude that it was reasonable for counsel to forgo the motion
based on all of the circumstances facing trial counsel at the time,
but, unlike failure to raise a futile motion, that choice is not
reasonable per se.

State v. Carter
20190708-CA 	28 	2022 UT App 9
a reasonable jury could find the elements of the relevant crime,
then trial counsel should move for a directed verdict and the
failure to do so . . . likely constitute[s] deficient performance.” Id.
(cleaned up). In other words, whether a motion for directed
verdict would be futile necessarily depends on the merits of that
motion. This is why Utah appellate courts have never concluded
that a directed verdict motion would have been futile without
examining 	whether 	the 	evidence 	was 	indeed 	sufficient 	to
support a conviction. See, e.g., State v. Cruz, 2020 UT App 157,
¶ 26, 478 P.3d 631; Makaya, 2020 UT App 152, ¶ 18; Baer, 2019 UT
App 15, ¶ 14; State v. Kirby, 2016 UT App 193, ¶ 18, 382 P.3d 644;
State v. Featherhat, 2011 UT App 154, ¶ 36, 257 P.3d 445.
¶69 	In this case, I cannot conclude that a directed verdict
motion 	would 	have 	been 	futile 	because 	the 	State 	has 	not
addressed the merits of Carter’s argument. “[W]hen an appellee
fails to present us with any argument, an appellant need only
establish a prima facie showing of a plausible basis for reversal.
This is a lower standard than the typical burden of persuasion
on appeal.” AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42,
¶ 19, 496 P.3d 76 (cleaned up). In this appeal, we have only
Carter’s unrebutted and facially persuasive arguments that the
statute defines habitability by the structure’s ongoing use and
that the vacant house in this case does not meet that definition as
a matter of law. That is enough to carry his burden of persuasion
on this issue. See Utah Dep’t of Transp. v. Coalt, Inc., 2020 UT 58,
¶ 45, 472 P.3d 942 (“An appellant bears the burden of persuasion
on appeal. But a court may rule in favor of an appellant for
purposes of that case if the appellee inadequately briefs an
argument 	and 	the 	appellant 	provides 	a 	plausible 	basis 	for
reversal.” 	(cleaned 	up)). 	Because 	the 	State 	has 	not 	refuted
Carter’s argument that the evidence was insufficient to prove
aggravated arson as a matter of law, we should assume for

State v. Carter
20190708-CA 	29 	2022 UT App 9
purposes of this appeal that he was entitled to a directed
verdict.10 Therefore, we cannot affirm on futility alone.
¶70 	But that is not the end of the analysis. Even if we accept,
for purposes of this appeal, that Carter was entitled to a directed
verdict as a matter of law, it does not automatically follow that
counsel’s failure to make that motion fell below an objective
standard 	of 	reasonableness. 	Although 	“a 	defendant 	has
necessarily failed to show unreasonable performance” if the
motion was futile, “the converse is not true.” See Ray, 2020 UT
12, ¶ 34. If we cannot conclude that the directed verdict motion
would have been futile, we must “still ask whether, in light of all
the circumstances, the attorney performed in an objectively
reasonable manner.” See id. (cleaned up).
¶71 	In my view, this is where we assess “how things looked to
counsel at the time the decision in question was made.” Supra
¶ 49. 	As 	Strickland 	recognizes, 	“the 	idiosyncra[sies] 	of 	the
particular decisionmaker . . . may actually have entered into
counsel’s selection of strategies and, to that limited extent, may
thus 	affect 	the 	performance 	inquiry.” 	466 	U.S. 	at 	695. 	We
therefore consider the judge’s predisposition as part of the
totality of the circumstances facing defense counsel in real time
and ask whether it would have been objectively reasonable for
defense counsel to decide not to make the motion.
¶72 	As an initial matter, I do not view the district court’s jury
instruction decision as a de facto rejection of Carter’s argument.11
10. At the very least, Carter has shown that such a motion was
arguably meritorious and thus cannot be characterized as futile.
11. 	The 	concurring 	opinion 	points 	out 	that 	futility 	is 	“an
exception to the general requirement of preservation.” Supra
¶ 57 n.8 (quoting State v. Ashcraft, 2015 UT 5, ¶ 33, 349 P.3d 664).
It is not clear to me how that fits into the deficient performance
(continued…)

State v. Carter
20190708-CA 	30 	2022 UT App 9
The State has accurately characterized the court’s decision as
ruling 	only 	“that 	[Carter’s] 	theory that 	‘habitable 	structure’
means ‘actual use’ was a matter for argument to the jury.”
Although 	the 	court 	expressed 	some 	skepticism 	during 	its
exchange with counsel, it ultimately chose not to resolve the
question 	and 	elected 	to 	simply 	provide 	the 	jury 	with 	the
statutory definition. Significantly, the court expressly allowed
counsel to argue Carter’s interpretation to the jury, something
that 	would 	have 	been 	improper 	if 	the 	court 	had 	in 	fact
concluded that his interpretation was legally incorrect. Indeed,
the court prohibited the defense from making “an improper
argument” that Carter could not be convicted of aggravated
arson because no one was actually present at the time of the
fire—an argument that the court deemed foreclosed by the
statutory 	language. 	See 	Utah 	Code 	Ann. 	§ 	76-6-101(1)(b)
(LexisNexis 2017) (defining “habitable structure” without regard
to “whether a person is actually present or not”). If the court had
determined that the statutory language did not support Carter’s
present tense interpretation of “used for lodging,” presumably
the 	court 	would 	have 	prohibited 	him 	from 	making 	that
argument, as well.
(…continued)
prong of the Strickland analysis. Perhaps an argument could be
made 	that 	reasonable 	defense 	counsel—assuming 	that 	the
exception would apply and Carter would be allowed to make an
unpreserved challenge to the sufficiency of the evidence on
appeal—might have deemed it unnecessary to make a directed
verdict motion below. But the State has not advanced that
argument on appeal and surely would resist the conclusion that
trial counsel was excused from making a directed verdict motion
under these circumstances. The district court never ruled on the
statutory interpretation question and never suggested that it
would not consider the matter further if properly raised outside
the jury instruction context.

State v. Carter
20190708-CA 	31 	2022 UT App 9
¶73 	The district court’s conservative decision to instruct the
jury 	using 	the 	statutory 	definition 	of 	“habitable 	structure”
signaled 	only 	that 	it 	was 	not 	inclined 	to 	further 	define
“habitability” beyond the statutory definition provided by the
legislature—a 	perfectly 	reasonable 	decision 	well 	within 	the
court’s discretion. See State v. Kitzmiller, 2021 UT App 87, ¶ 15,
493 P.3d 1159 (“The refusal to give a jury instruction is reviewed
for abuse of discretion . . . and [we] will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” (cleaned up)). By resolving the jury
instruction 	question 	in 	this way, 	the 	district 	court 	avoided
answering the statutory interpretation question that would have
been squarely presented by a directed verdict motion.
¶74 	The 	State 	has 	suggested 	no 	strategic 	reason 	why
objectively reasonable trial counsel would have chosen to argue
that issue to the jury instead of—rather than in addition to—the
court. Even if the State is correct that reasonable counsel could
have assumed that the court “was not going to take the case
from the jury,” there was no evident downside to making that
motion. It cannot be a reasonable strategic choice to “leave well
enough alone, accept the court’s invitation to take this case to the
jury, and push for an acquittal there,” supra ¶ 58, when there is
no reason that trial counsel could not have done both.
¶75 	Although the State has not argued that a motion for a
directed verdict carried any plausible downside, the majority
and concurring opinions suggest that, once the court allowed the
issue to be argued to the jury, counsel could have made a
reasonable strategic decision to avoid “anything that could even
potentially upend this delicate and necessary gain.” Supra ¶ 57.
The concurrence speculates, for instance, that “counsel could
reasonably have wondered whether doing so might cause the
court to rethink its decision to allow counsel to make the
argument to the jury at all.” Supra ¶ 57. Although this theory
was not argued by the State, we are entitled to affirm the district
court 	on 	any 	basis 	supported 	by 	the 	record, 	regardless 	of

State v. Carter
20190708-CA 	32 	2022 UT App 9
whether that argument was raised in the briefs. See Bailey v.
Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158. And if that scenario were
supported by the record, I would agree that making such a
choice would be a strategic decision virtually unassailable on
appeal. But nothing in the record suggests that trial counsel had
to make that choice here.
¶76 	The 	district 	court’s 	ruling 	on 	the 	proposed 	jury
instructions 	would 	not 	have 	signaled 	to 	reasonable 	trial
counsel that he risked losing his chance to argue the theory
to the jury if he moved for a directed verdict on the same
grounds. The court never suggested that allowing the defense to
argue the theory to the jury was contingent on not pressing the
issue further. To the contrary, the court’s decision to allow
counsel to argue the defense theory to the jury showed, at
minimum, that the court did not believe that the statutory
language foreclosed Carter’s interpretation. The record does not
readily support the conclusion that reasonable trial counsel in
these circumstances would have believed that a directed verdict
motion would forfeit the opportunity to argue the issue to the
jury. 	Therefore, 	that 	alternative 	basis 	for 	affirmance 	is 	not
apparent in the record.
¶77 	But even if there was no conceivable strategic purpose for
not making the motion, it does not automatically follow that trial
counsel’s 	omission 	fell 	below 	an 	objective 	standard 	of
reasonableness. 	The 	lack 	of 	a 	purposeful 	strategy 	does not
automatically entitle the defendant to relief. Ray, 2020 UT 12,
¶ 34. Rather, we must still assess whether the “omission fell
below an objective standard of reasonableness.” Id. ¶ 36. We
must 	view 	trial 	counsel’s 	decision 	in 	context 	to 	determine
whether 	the 	issue 	“was 	sufficiently 	important 	under 	the
circumstances that counsel’s failure to” make the motion was
objectively unreasonable. Id. ¶ 32. In other words, whether a
directed verdict motion was “a battle that competent counsel
would have fought.” Id.

State v. Carter
20190708-CA 	33 	2022 UT App 9
¶78 	If 	failing 	to 	make 	a 	well-grounded 	directed 	verdict
motion “likely constitute[s] deficient performance” in a typical
case, see Baer, 2019 UT App 15, ¶ 7, then it certainly constitutes
deficient performance under the circumstances presented here.
Carter’s defense hinged on whether the State had proven that
the vacant house was a “habitable structure” within the meaning
of the statute. Indeed, that was the only disputed issue at trial. It
was not merely central to his defense; it was his entire defense.
And if we assume, as we must on this briefing, that Carter’s
interpretation of the statute is at least arguably correct, then
failure to seek a directed verdict on that basis—a strategy that
would 	have 	at 	least 	preserved 	the 	issue 	for 	appeal—was
objectively unreasonable.
¶79 	The correct interpretation of “habitable structure” was not
only Carter’s entire defense, but also a purely legal question.
Questions of law—such as “[t]he applicability, interpretation,
and construction of a statute”—“are the exclusive province of
the court and not for the jury to determine.” Durham v. Duchesne
County, 893 P.2d 581, 584 (Utah 1995). The evidence at trial
established that the house had stood vacant for years, and
whether those undisputed facts satisfied the statutory definition
of 	“habitable 	structure” 	was 	a 	question 	of 	law 	most
appropriately argued to the court. In addition, the district court
is afforded no discretion on purely legal questions. So even
assuming that the motion would have been denied, it was not
objectively reasonable to forgo an arguably meritorious motion
based solely on the judge’s perceived inclinations when that
legal ruling was subject to correction on appeal.
¶80 	In sum, I would hold that we cannot conclude that a
motion is futile simply because a particular judge would have
denied it. We have to ask whether such a ruling would be
correct, 	or 	at 	least 	sustainable 	on 	appeal. 	This 	necessarily
requires examining the merits of the underlying motion, taking
into account whether the district court had any discretion in the
matter. Even if the record plainly demonstrates that the motion

State v. Carter
20190708-CA 	34 	2022 UT App 9
would have been denied at trial, that motion would not be futile
if the denial would have constituted reversible error on appeal.
In such situations, failure to make the motion is not reasonable
per se. Nor is it necessarily unreasonable. Rather, we must
examine whether forgoing the motion constituted objectively
deficient performance “based on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Ray, 2020 UT 12,
¶ 31 (cleaned up).
¶81 	Because the State has not addressed Carter’s argument
that the evidence was insufficient to prove aggravated arson as a
matter of law, we should assume for purposes of this appeal that
he was entitled to a directed verdict. Under these circumstances,
we cannot rely on futility to automatically conclude that the
failure to make the motion was reasonable. And because, on this
record, no reasonable trial counsel would have feared that a
directed verdict motion would have foreclosed his opportunity
to argue the theory to the jury, the decision to forgo the motion
was not a reasonable strategic choice. Finally, in the context of
this 	case, 	given 	the 	prominence 	of 	this 	issue 	at 	trial, 	its
importance to Carter’s defense, and the legal nature of the
question presented, failure to make the motion was objectively
unreasonable, 	thereby 	satisfying 	the 	deficient 	performance
prong of his ineffective assistance of counsel claim. Because the
State has not contested Carter’s showing of prejudice, I would
hold that Carter is entitled to a new trial.