State v. Lee

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc., 2003 UT
(continued...)
2014 UT App 4
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JOSEPH LOGAN LEE,
Defendant and Appellant.
Opinion
No. 20110707-CA
Filed January 9, 2014
Second District Court, Ogden Department
The Honorable Michael D. Lyon
No. 061902692
Randall W. Richards, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE GREGORY K. ORME concurred. JUDGE J. FREDERIC
VOROS JR. concurred, with opinion.
CHRISTIANSEN, Judge:
¶1 Joseph Logan Lee appeals from his conviction for murder,
a first degree felony, and for unlawful possession of a firearm and
for failure to stop at the command of a police officer, both third
degree felonies. We affirm.
BACKGROUND
¶2 Lee met with the victim, T.H., on June 1, 2006, to settle a
drug debt owed to T.H. by a friend of Lee’s. At some point during1

State v. Lee
1. (...continued)
41, ¶ 3, 82 P.3d 1064 (citation and internal quotation marks
omitted).
20110707-CA 2 2014 UT App 4
the exchange, T.H. was leaning through the open driver’s window
of Lee’s car when Lee pulled out a handgun. While the parties
dispute what happened next, Lee ultimately fired two shots, one of
which struck T.H. and killed him almost instantly. Lee fled the
scene but later that day was identified and pursued by police, who
apprehended Lee after his vehicle struck a median and was
disabled. Subsequent to Lee’s arrest, police found two speed-
loaders for a .357 magnum revolver on Lee’s person and a .357
magnum revolver on the driver’s floorboard of Lee’s car. Lee was
charged by information based on the shooting and his flight from
police.
¶3 Lee retained private counsel (Trial Counsel) to represent
him. Trial Counsel entered his appearance at a May 10, 2007
hearing and notified the trial court that he would be filing a motion
in limine seeking to admit the testimony of a proposed defense
witness. Trial Counsel had difficulty timely filing the motion and
requested additional time on at least three occasions. Trial Counsel
ultimately filed the motion approximately ten days after the final
deadline given by the trial court, but the trial court allowed briefing
and oral argument on the motion to proceed and ruled on the
merits of the motion, granting it in part.
¶4 The case proceeded to trial, and Lee argued that he had shot
T.H. in self-defense. In support of this theory, Lee introduced
testimony that he had met T.H. while the two men were
incarcerated at the Utah State Prison, that T.H. often carried a gun,
and that Lee was paying off the drug debt because T.H. had
threatened a friend of Lee’s. Lee testified that just before the
shooting he handed the gun to T.H. as a showing of good faith, that
T.H. turned the gun on Lee, and that Lee wrestled the gun away
from him. Lee testified that he then shot T.H. because he believed
T.H. was reaching behind his back for another gun. T.H.’s
girlfriend, the only other eyewitness to the shooting, testified for

State v. Lee
20110707-CA 3 2014 UT App 4
the State that T.H. was unarmed and was not threatening Lee at the
time of the shooting. At the close of trial, the court instructed the
jury as to both self-defense and imperfect self-defense at Lee’s
request. The jury found Lee guilty of murder, and he appeals.
ISSUES AND STANDARDS OF REVIEW
¶5 As an initial matter, Lee requests a remand for an
evidentiary hearing under rule 23B for the development of the
record and the entry of factual findings necessary for this court’s
review of his ineffective assistance of counsel claim. See Utah R.
App. P. 23B. A remand under rule 23B will only be granted “upon
a nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination that
counsel was ineffective.” See id.
¶6 Lee claims that he was denied effective assistance of counsel
due to multiple alleged deficiencies on the part of Trial Counsel.
“An ineffective assistance of counsel claim raised for the first time
on appeal presents a question of law.” State v. Ott, 2010 UT 1, ¶ 22,
247 P.3d 344 (citation and internal quotation marks omitted).
¶7 Lee also argues that the trial court erroneously instructed
the jury as to the elements of murder and manslaughter in light of
Lee’s claim of self-defense. “Claims of erroneous jury instructions
present questions of law that we review for correctness.” State v.
Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.
ANALYSIS
I. Lee’s Rule 23B Motion Is Not Adequately Supported to
Warrant Remand for an Evidentiary Hearing.
¶8 Lee asserts that a remand for an evidentiary hearing is
appropriate to address all of the claims of Trial Counsel’s alleged
deficiencies that Lee raises on appeal. However, remand under rule

State v. Lee
20110707-CA 4 2014 UT App 4
23B is available only upon a motion that alleges nonspeculative
facts that do not appear in the record and is accompanied by
affidavits setting forth those facts. See Utah R. App. P. 23B(a), (b).
To succeed on the motion, Lee must “allege facts that if true would
show (1) ‘that counsel’s performance was so deficient as to fall
below an objective standard of reasonableness’ and (2) ‘that but for
counsel’s deficient performance there is a reasonable probability
that the outcome of the trial would have been different.’” State v.
King, 2012 UT App 203, ¶ 18, 283 P.3d 980 (quoting State v. Hales,
2007 UT 14, ¶ 68, 152 P.3d 321).
A. Claims Based on Record Evidence
¶9 Lee argues that Trial Counsel performed deficiently because
he did not object to the jury instructions on murder and self-
defense, did not comply with the trial court’s orders to timely file
a motion in limine, and introduced the fact of Lee’s prior
incarceration during his opening statement and examination of
witnesses. However, Lee does not identify any evidence that is not
already in the record on appeal to support these claims of
ineffective assistance. “A [rule 23B] remand is not necessary if the
facts underlying the ineffectiveness claim are contained in the
existing record.” State v. Johnston, 2000 UT App 290, ¶ 9, 13 P.3d 175
(per curiam).
¶10 Here, all of the jury instructions at issue appear in the
record. The trial transcript contains all of the relevant discussions
between the court and counsel regarding the jury instructions and
Trial Counsel’s waiver of objections to the final jury instructions.
The record also includes transcripts of the hearings in which the
untimely motion in limine were discussed, the motion itself, all
supporting and responsive briefing, and the trial court’s ruling on
the motion. Finally, Trial Counsel’s opening statement in which he
referred to Lee’s prior incarceration is part of the trial transcript in
the record. As a result, Lee has not demonstrated that any
additional non-record evidence is available to support these claims
on appeal, and remand is therefore inappropriate. See id.

State v. Lee
20110707-CA 5 2014 UT App 4
B. Claims Based on Non-Record Evidence
¶11 Lee also argues that Trial Counsel performed deficiently
because he failed to adequately investigate the case and to call a
witness who Lee claims would have supported his self-defense
claim (the Witness). However, a rule 23B motion must include
“affidavits alleging facts not fully appearing in the record on
appeal that show the claimed deficient performance of the
attorney” and show “the claimed prejudice suffered by the
appellant as a result of the claimed deficient performance.” Utah R.
App. P. 23B(b). “[T]o obtain a Rule 23B remand, a defendant must
not only submit affidavits specifying who the uncalled witnesses
are and that they are available to testify at an evidentiary hearing,
he must ordinarily submit affidavits from the witnesses detailing
their testimony.” Johnston, 2000 UT App 290, ¶ 11. To show that
counsel’s failure to investigate resulted in prejudice “as a
demonstrable reality and not a speculative matter,” a rule 23B
movant must identify exculpatory testimony or evidence that his
attorney failed to uncover. See State v. Bryant, 2012 UT App 264,
¶ 23, 290 P.3d 33 (citation and internal quotation marks omitted)
(concluding that no prejudice resulted from trial counsel’s failure
to investigate because defendant did not identify any evidence that
his trial counsel allegedly failed to discover).
¶12 Here, Lee did not support his rule 23B motion with an
affidavit from the Witness. Lee also has not identified any
particular evidence, other than his proffer of the Witness’s potential
testimony, that Trial Counsel failed to uncover. Lee offered
affidavits only from his mother and a member of his appellate
counsel’s staff averring that Trial Counsel did not hire a private
investigator and may not have adequately reviewed the Witness’s
statement. However, Lee cannot meet his burden by merely
pointing out what counsel did not do; he must bring forth the
evidence that would have been available in the absence of counsel’s
deficient performance. See id.; Johnston, 2000 UT App 290, ¶ 7 (“The
purpose of Rule 23B is for appellate counsel to put on evidence he
or she now has, not to amass evidence that might help prove an
ineffectiveness of counsel claim.”). Absent affidavits demonstrating
a likelihood that further review of the Witness’s testimony or

State v. Lee
2. Lee’s motion also states that Trial Counsel “was in the middle of
his disbarment proceedings at the time leading up to and during
the trial,” and an exhibit to the motion includes excerpts from the
Utah Bar Journal detailing disciplinary sanctions entered against
Trial Counsel for his failure to comply with the Utah Rules of
Professional Conduct in other cases. However, Lee fails to explain
how this evidence would support any of his claims in this case if
remand were granted to enter this exhibit into the record.
20110707-CA 6 2014 UT App 4
inquiry by an investigator would have uncovered evidence
sufficient to support Lee’s claims, remand for an evidentiary
hearing is not appropriate. We therefore deny Lee’s motion for a
remand under rule 23B.2
II. Lee Has Not Demonstrated That Trial Counsel Was
Ineffective.
¶13 Lee argues that Trial Counsel was ineffective by failing to
adequately investigate the case, failing to call the Witness at trial,
failing to comply with the trial court’s deadlines for filing a motion
in limine, and introducing the fact of Lee’s prior incarceration in
opening statements and witness examination. To succeed on a
claim of ineffective assistance of counsel, a defendant must show
both “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish that counsel’s
performance was deficient, a defendant “must show that counsel’s
representation fell below an objective standard of reasonableness.”
Id. at 688. This showing requires the defendant to “overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. at 689 (citation and
internal quotation marks omitted; see also State v. Larrabee, 2013 UT
70, ¶ 19. To establish the prejudice prong of an ineffective
assistance of counsel claim, the “defendant must show that a
reasonable probability exists that, but for counsel’s error, the result
would have been different.” State v. Millard, 2010 UT App 355, ¶ 18,
246 P.3d 151; accord Strickland, 466 U.S. at 694. “In the event it is
‘easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice,’ we will do so without analyzing whether

State v. Lee
20110707-CA 7 2014 UT App 4
counsel’s performance was professionally unreasonable.” Archuleta
v. Galetka, 2011 UT 73, ¶ 42, 267 P.3d 232 (quoting Strickland, 466
U.S. at 697).
A. Failure To Investigate and Call the Witness
¶14 Lee argues that Trial Counsel’s performance was deficient
for failure to investigate the case prior to trial. The only evidence
Lee identifies that Trial Counsel allegedly failed to uncover in his
investigation is the testimony of the Witness. Accordingly, we
consider this claim together with Lee’s claim that Trial Counsel’s
performance was deficient for failing to call the Witness.
¶15 Lee asserts that the Witness was present at the time of the
shooting and that if Trial Counsel had investigated and called the
Witness, she would have offered testimony that contradicted the
testimony of T.H.’s girlfriend. However, because we are unable to
grant a rule 23B remand due to Lee’s failure to include an affidavit
from the Witness detailing her testimony, see supra ¶ 12, there is
nothing in the record before this court upon which we can evaluate
the merits of Trial Counsel’s decision not to call the Witness.
“Where the record appears inadequate in any fashion, ambiguities
or deficiencies resulting therefrom simply will be construed in
favor of a finding that counsel performed effectively.” State v.
Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. We therefore must assume
that Trial Counsel’s decision regarding this witness was not
deficient performance. Because Lee has not demonstrated that Trial
Counsel performed deficiently, we conclude that Trial Counsel was
not ineffective on this basis.
B. Failure To Comply with Deadlines for Filing a Motion in
Limine
¶16 Lee next argues that Trial Counsel performed deficiently in
failing to file a motion in limine in compliance with the trial court’s
deadlines for filing of the motion. While the record shows that Trial
Counsel repeatedly failed to submit the motion within the time
allowed by the trial court, the record also shows that the trial court
nevertheless considered the motion on the merits and partially

State v. Lee
20110707-CA 8 2014 UT App 4
granted it. Though we agree that Trial Counsel’s repeated failure
to timely file the motion in limine was likely deficient performance,
Lee has not demonstrated that he was prejudiced by Trial
Counsel’s late filing of the motion. Rather, Lee frankly concedes
that “the effect on the outcome of the trial is admittedly somewhat
speculative.” However, “proof of ineffective assistance of counsel
cannot be a speculative matter but must be a demonstrable reality.”
State v. Munguia, 2011 UT 5, ¶ 31, 253 P.3d 1082 (citation and
internal quotation marks omitted). Specifically, Lee has not
demonstrated how a more timely filing would have led to a
different result in either the trial court’s ruling on the motion or the
jury’s ultimate verdict. Absent a showing that Lee was prejudiced
by Trial Counsel’s alleged error, we conclude that Lee is not
entitled to relief on this basis.
C. Introduction of Lee’s Prior Incarceration
¶17 Lee also argues that Trial Counsel performed deficiently in
raising the issue of Lee’s prior conviction and incarceration during
his opening statement and examination of witnesses. Lee argues
that by introducing the evidence of Lee’s prior crimes and
incarceration, Trial Counsel inappropriately called the jury’s
attention to Lee’s criminal background and damaged his credibility
as a witness. In evaluating whether counsel was deficient, we will
not “second-guess trial counsel’s legitimate strategic choices,” State
v. Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004 (citations and
internal quotation marks omitted). Rather, if there is a “conceivable
tactical basis for counsel’s actions,” id. (citation and internal
quotation marks omitted), the defendant must “overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy,” Strickland v. Washington,
466 U.S. 668, 689 (1984) (citation and internal quotation marks
omitted). Accord State v. Larrabee, 2013 UT 70, ¶ 19.
¶18 Lee has not overcome the presumption that Trial Counsel
had a legitimate strategic basis for his decision to introduce to the
jury information regarding Lee’s prior convictions and
incarceration. Indeed, “many experienced counsel always tell the
jury of the convictions their client has suffered. This tends to take

State v. Lee
20110707-CA 9 2014 UT App 4
the wind out of the sails of the prosecutor.” United States v. Larsen,
525 F.2d 444, 449 (10th Cir. 1975). Because the State is generally
permitted to impeach a testifying defendant with evidence of his
prior convictions, see Utah R. Evid. 609(a), introduction of such
prior convictions up front is often a sound strategic decision to
build credibility for the defendant and minimize the prejudicial
impact of the convictions, see Larsen, 525 F.2d at 449; Swington v.
State, 97–KA–00591–SCT, ¶ 25, 742 So. 2d 1106 (Miss. 1999).
Further, Lee’s testimony that he had been incarcerated with T.H.
lent support to Lee’s self-defense theory by informing the jury that
T.H. himself was a felon. While Lee argues that there were
“alternative methods of establishing that Lee was afraid of [T.H.]
and that he had had some dealings with [T.H.] in the past to bolster
this fear,” this argument itself suggests that Trial Counsel in fact
had a conceivable tactical basis for introducing evidence of Lee’s
incarceration, even if Lee would now prefer some alternative
approach. See Franco, 2012 UT App 200, ¶ 7. Accordingly, we
conclude that Trial Counsel did not perform deficiently and
therefore did not render ineffective assistance of counsel on this
basis.
III. Trial Counsel Was Not Ineffective for Failing To Object to the
Challenged Jury Instructions.
¶19 Finally, Lee argues that the jury instructions for the charges
of murder (Instruction 15) and manslaughter (Instruction 16) did
not correctly instruct the jury on the State’s burden to prove that
Lee did not act in self-defense. Because Lee did not preserve this
claim for appeal by objecting to the jury instructions at trial, he asks
this court to review the jury instructions on the basis of plain error
or ineffective assistance of counsel. “When a party fails to preserve
an issue for appeal, we will address the issue only if (1) the
appellant establishes that the district court committed plain error,
(2) exceptional circumstances exist, or (3) in some situations, if the
appellant raises a claim of ineffective assistance of counsel in failing
to preserve the issue.” State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867
(citations and internal quotations marks omitted).

State v. Lee
20110707-CA 10 2014 UT App 4
A. Plain Error
¶20 Lee argues that the trial court’s instructions to the jury
constituted plain error and that this court should reverse to avoid
a manifest injustice. To obtain appellate relief under this standard,
Lee must show that “(i) [a]n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome.” State v. Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106
(citation and internal quotation marks omitted). However, invited
error precludes appellate review of an issue under the plain error
standard. State v. McNeil, 2013 UT App 134, ¶ 24., 302 P.3d 844.
¶21 Here, the trial court asked Trial Counsel, “Does the defense
waive any objections to the instructions?” and Trial Counsel
responded, “Yes.” This affirmative representation to the court that
there was no objection to the jury instructions forecloses Lee from
“tak[ing] advantage of an error committed at trial” because Trial
Counsel “led the trial court into committing the error.” State v.
Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111 (alteration in original)
(citation and internal quotation marks omitted). Thus, Trial
Counsel’s waiver of any objection to the finalized jury instructions
precludes our review of those instructions for plain error.
B. Ineffective Assistance of Counsel
¶22 Lee also contends that Trial Counsel was ineffective due to
his failure to object to the self-defense and imperfect self-defense
instructions given by the trial court. To prevail, Lee must show that
Trial Counsel’s performance was deficient and that Lee was
prejudiced by the deficient performance. Gregg v. State, 2012 UT 32,
¶ 19, 279 P.3d 396. Failure to object to jury instructions that
correctly state the law is not deficient performance. See State v.
Chavez-Espinoza, 2008 UT App 191, ¶ 15, 186 P.3d 1023.
¶23 Lee argues that the jury instructions were erroneous because
the murder and manslaughter instructions did not include as an
element of the offense that the prosecution had the burden to prove
that Lee did not act in self-defense. He claims that Trial Counsel’s

State v. Lee
20110707-CA 11 2014 UT App 4
failure to object and propose “adequate” instructions was deficient
performance. On appeal, “we look at the jury instructions in their
entirety and will affirm when the instructions taken as a whole
fairly instruct the jury on the law applicable to the case.” See State
v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (citation and internal
quotation marks omitted). Thus, 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.” See State v. Garcia, 2001 UT App 19,
¶ 13, 18 P.3d 1123 (citations and internal quotation marks omitted).
1. Murder Instruction
¶24 Lee contends that the jury instructions on murder were
erroneous because the trial court instructed the jury separately as
to the State’s burden to disprove his self-defense claim rather than
incorporating that burden as an element of the murder instruction.
Our review of the jury instructions confirms that Instruction 15
properly instructed the jury as to the elements of murder. See Utah
Code Ann. § 76-5-203(2) (LexisNexis Supp. 2006); State v. Knoll, 712
P.2d 211, 214 (Utah 1985) (“Absence of self-defense is not an
element of a homicide offense.”). In addition, the jury was
separately and accurately instructed that “if you find that the State
has failed to prove beyond a reasonable doubt that the defendant
did not act in self-defense, then you must find him not guilty” of
murder or manslaughter. Taken together, these instructions fairly
instructed the jury on the burden of proof relative to Lee’s claim of
self-defense and are a “correct statement of the law” applicable to
the case. See Garcia, 2001 UT App 19, ¶ 13 (citation and internal
quotation marks omitted).
¶25 Lee argues that because the jury was instructed on murder
separately from and prior to the instruction on self-defense, it is
“highly likely” that these instructions led the jury to determine that
he was guilty of murder “without realizing that proof of the lack of
self-defense beyond a reasonable doubt is an essential element of
the charge of murder.” However, the jury was instructed “not to
single out one instruction alone as stating the law” but to “consider

State v. Lee
20110707-CA 12 2014 UT App 4
the instructions as a whole,” giving the order of the instructions
“no significance as to their relative importance.” We “presume that
a jury . . . follow[ed] the instructions given it” unless the facts
indicate otherwise. See State v. Nelson, 2011 UT App 107, ¶ 4, 253
P.3d 1094 (citation and internal quotation marks omitted).
Particularly in this case, where self-defense was the central theme
of Lee’s defense at trial, and given the intuitive effect of a self-
defense claim on a charge of murder, it is unlikely that the separate
instruction on self-defense led the jury to convict Lee of murder on
the basis of Instruction 15 without considering his self-defense
claim. Because the jury was correctly instructed on the charge of
murder, Trial Counsel did not perform deficiently in failing to
object or propose an alternate murder instruction. See
Chavez-Espinoza, 2008 UT App 191, ¶ 15.
2. Manslaughter Instruction
¶26 Lee also challenges Instruction 16, which instructed the jury
to find Lee guilty of manslaughter if it found that he caused T.H.’s
death under circumstances constituting imperfect self-defense. See
Utah Code Ann. § 76-5-203(4) (providing that a charge of murder
is reduced to manslaughter if the defendant caused the death
“under a reasonable belief that the circumstances provided a legal
justification or excuse for the conduct although the conduct was not
legally justifiable or excusable under the existing circumstances”).
Lee argues that the instruction failed to properly instruct the jury
as to the State’s burden to disprove an imperfect self-defense claim
beyond a reasonable doubt. We agree.
¶27 Because the burden of proof for an affirmative defense is
counterintuitive, instructions on affirmative defenses “must clearly
communicate to the jury what the burden of proof is and who
carries the burden.” State v. Campos, 2013 UT App 213, ¶ 42, 309
P.3d 1160 (citations and internal quotation marks omitted). “[O]nce
a defendant has produced some evidence of imperfect self-defense,
the prosecution is required to disprove imperfect self-defense
beyond a reasonable doubt.” Id. ¶ 38. Instruction 16 provides, in
relevant part,

State v. Lee
20110707-CA 13 2014 UT App 4
Before you can convict the defendant of the
lesser included offense of manslaughter . . . you must
find from the evidence, beyond a reasonable doubt, all
of the following elements of the crime:
(1) That defendant, Joseph Logan Lee;
(2) Committed a homicide which would be
murder, but the offense is reduced because
the defendant caused the death of [T.H.]:
. . .
(ii) Under a reasonable belief that the
circumstances provided a legal
justification or excuse for his conduct
although the conduct was not legally
justifiable or excusable under the
existing circumstances.
If you believe that the evidence established
each and all of the essential elements of the offense
beyond a reasonable doubt, it is your duty to convict the
defendant. On the other hand, if the evidence failed
to establish one or more of said elements, it is your
duty to find the defendant not guilty.
(Emphases added.) See Utah Code Ann. § 76-5-203(4). Thus, the
jury was instructed that in order to convict Lee of imperfect self-
defense manslaughter rather than murder, it needed to find that all
of the listed elements were proven beyond a reasonable doubt,
including that Lee acted under a reasonable belief that his actions
were legally justifiable. This instruction improperly placed the
burden upon Lee 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
Campos, 2013 UT App 213, ¶ 42. Trial Counsel had a duty to object
to such a fundamentally flawed instruction and to ensure that the
jury was properly instructed on the correct burden of proof. See id.
¶ 45. We see no conceivable tactical basis for Trial Counsel’s
approval of such a flawed instruction and conclude that Trial
Counsel performed deficiently in failing to object to Instruction 16.

State v. Lee
20110707-CA 14 2014 UT App 4
¶28 However, our inquiry does not end with our determination
that Trial Counsel performed deficiently in not objecting to the
erroneous instruction. Lee must also demonstrate that “but for
counsel’s deficient performance there is a reasonable probability
that the outcome of the trial would have been different.” State v.
Smith, 909 P.2d 236, 243 (Utah 1995). Lee argues that the facts of
this case are analogous to State v. Garcia, 2001 UT App 19, 18 P.3d
1123, where this court concluded that the defendant was prejudiced
by a jury instruction that did not clearly place the burden of proof
for self-defense on the State. Id. ¶ 19. There, we noted that “some
evidence was introduced by Garcia that he acted in self-defense,”
including corroboration of his testimony by another witness. Id. We
observed that had the jury been correctly instructed as to the
burden of proof, “it is reasonably likely that the jury could have
entertained a reasonable doubt as to whether Garcia acted in
self-defense, thus requiring acquittal.” Id. Accordingly, we reversed
Garcia’s conviction and remanded for a new trial. Id. ¶¶ 20–21.
¶29 However, in this case, neither the State nor Lee introduced
evidence that would support Lee’s theory that he caused T.H.’s
death under a reasonable, but legally mistaken, belief that his use
of deadly force was justified. The testimony elicited by the State
demonstrated that T.H. was unarmed and was not threatening Lee
when Lee shot him. The jury could not have found that Lee acted
reasonably or with legal justification in shooting T.H. under these
circumstances. The State’s evidence therefore supports Lee’s
conviction for murder. Conversely, the evidence put forth by Lee
supports his acquittal on the basis of perfect self-defense. Lee
testified that T.H. was the first aggressor when he pointed the gun
at Lee and that after Lee regained possession of the gun, he fired
only when he believed T.H. was reaching for another gun. If the
jury believed Lee’s version of events, then he would have been
justified in using deadly force to defend himself and been entitled
to an acquittal on the charge of murder. However, there is no basis
on this evidence for the jury to find that Lee acted reasonably but
without legal justification.
¶30 This case is unlike our decision in State v. Spillers, 2005 UT
App 283, 116 P.3d 985, aff’d, 2007 UT 13, 152 P.3d 315, where we

State v. Lee
20110707-CA 15 2014 UT App 4
determined that the trial court’s failure to give an instruction on
imperfect self-defense was in error. Id. ¶ 26. There, Spillers shot the
victim after the victim had struck Spillers once in the head with the
butt of a handgun and was attempting to strike him again. Id. ¶ 20.
The state argued that the evidence gave rise to only two
interpretations—that Spillers’ actions rose to the level of perfect
self-defense because he was about to suffer death or serious bodily
injury from being struck with the butt of the gun or that Spillers
had not acted in self-defense and was guilty of murder. Id. ¶ 25.
However, we concluded that the evidence supported other
interpretations, specifically “an interpretation that [Spillers] was
entitled to defend himself against an attack by [the victim] but not
entitled to use deadly force” because the jury could have concluded
that the victim’s strikes with the butt of the gun did not threaten
Spillers with serious bodily injury or death. Id. We reversed and
remanded for a new trial on the basis of the trial court’s failure to
give the requested imperfect self-defense instruction, id. ¶ 26, and
the Utah Supreme Court affirmed, State v. Spillers, 2007 UT 13, ¶ 23,
152 P.3d 315. Unlike in Spillers, however, as explained above, there
is no evidence in this case to suggest that Lee used excessive force
in reasonably responding to a threat from T.H., or that Lee’s actions
were otherwise reasonable but legally unjustifiable.
¶31 We also do not read our supreme court’s decision in State v.
Low, 2008 UT 58, 192 P.3d 867, as requiring a reversal in this case.
In Low, the supreme court reviewed the trial court’s decision to
include, over the defendant’s objection, an imperfect self-defense
instruction requested by the state. Id. ¶ 31. The supreme court held
that the imperfect self-defense instruction was appropriate,
explaining that “when a defendant presents evidence of perfect
self-defense, he necessarily presents evidence of imperfect
self-defense because ‘for both perfect and imperfect self-defense,
the same basic facts [are] at issue.’” Id. ¶ 32 (alteration in original)
(quoting Spillers, 2007 UT 13, ¶ 23). However, this conclusion was
based on the court’s observation that “perfect self-defense and
imperfect self-defense require the defendant to present the same
evidence: that the defendant had a reasonable belief that force was
necessary to defend himself.” Id. It is therefore clear that the
supreme court was considering only the evidence necessary for an

State v. Lee
20110707-CA 16 2014 UT App 4
imperfect self-defense claim to be “put into issue” such that an
instruction on the affirmative defense was properly given to the
jury. Id. ¶¶ 34, 45 (citation and internal quotation marks omitted).
The court went on to recognize that there is a fundamental
difference between the two defenses, specifically, “whether the
defendant’s conduct was, in fact, ‘legally justifiable or excusable
under the existing circumstances.’” Id. ¶ 32 (quoting Utah Code
Ann. § 76-5-203(4)(a)(ii) (LexisNexis Supp. 2007)).
¶32 Thus, Low stands for the proposition that once evidence is
introduced by either party that the defendant reasonably believed
that he was justified in using force, the trial court must instruct the
jury on both self-defense and imperfect self-defense upon the
request of a party, and that its failure to do so would be error. See
id.; see also Garcia, 2001 UT App 19, ¶ 8 (explaining that an
instruction on self-defense must be given when there is a
reasonable basis in the evidence to do so, irrespective of “whether
the evidence is produced by the prosecution or by the defendant”).
It does not, however, stand for the proposition that any time a
defendant presents evidence that he reasonably believed that his
use of force was justified, the complete evidentiary picture before
the jury would necessarily support a conviction for imperfect self-
defense manslaughter. Rather, in the absence of evidence from
which a jury could find that the defendant’s belief was reasonable,
but his conduct was not “legally justifiable or excusable under the
existing circumstances,” a conviction for imperfect self-defense
manslaughter would not be supported by the evidence. See Low,
2008 UT 58, ¶ 32 (citation and internal quotation marks omitted).
¶33 There is no evidence in this case to suggest that Lee used
excessive force in reasonably responding to a threat from T.H. or
that Lee’s actions were otherwise reasonable but legally
unjustifiable. Because the jury could not have concluded that Lee
caused T.H.’s death under circumstances constituting imperfect
self-defense, there is no reasonable probability that the jury would
have returned a more favorable verdict for Lee if properly
instructed. Thus, while Trial Counsel performed deficiently by not
objecting to the erroneous Instruction 16, Lee has not demonstrated

State v. Lee
20110707-CA 17 2014 UT App 4
that he was prejudiced by that deficient performance, and is
therefore not entitled to relief on this basis.
CONCLUSION
¶34 We deny Lee’s motion to remand for an evidentiary hearing
because Lee did not adequately support the motion with affidavits
alleging nonspeculative facts. Lee has failed to demonstrate that the
jury instruction on murder was erroneous. While the jury
instruction on imperfect self-defense manslaughter was erroneous,
Lee has not demonstrated that he was prejudiced by Trial
Counsel’s failure to object to the erroneous instruction under the
circumstances. Lee has also failed to demonstrate that Trial Counsel
was ineffective on any other basis. Accordingly, we affirm Lee’s
convictions.
VOROS, Judge (concurring):
¶35 I concur in the majority opinion. I write only to clarify why,
in my judgment, Lee was not prejudiced by the erroneous
instruction on imperfect self-defense on the facts of this case and
under controlling statutory law.
¶36 The interplay between perfect self-defense and imperfect
self-defense is subtle. Perfect self-defense is a complete defense to
any crime. See State v. Knoll, 712 P.2d 211, 214 (Utah 1985) (“[S]elf-
defense is a justification for killing and a defense to prosecution.”
(citation and internal quotation marks omitted)); see also State v.
Spillers, 2007 UT 13, ¶ 23, 152 P.3d 315 (referring to this first type of
self-defense as “perfect self-defense”). It is available to one who
reasonably believed that force was necessary to defend against
unlawful force:
A person is justified in threatening or using force
against another when and to the extent that he or she
reasonably believes that force is necessary to defend

State v. Lee
3. For purposes of this statutory section, a forcible felony includes
aggravated assault, most homicides, kidnapping, many sex crimes,
and any other felony involving “the use of force or violence against
a person so as to create a substantial danger of death or serious
bodily injury.” Utah Code Ann. § 76-2-402(4) (LexisNexis 2003). An
assault is aggravated if the actor uses a dangerous weapon or
“other means or force likely to produce death or serious bodily
injury.” Id. § 76-5-103(1). A dangerous weapon is “any item capable
of causing death or serious bodily injury” or, under certain
circumstances, a facsimile or representation of the item. Id. § 76-1-
601(5).
20110707-CA 18 2014 UT App 4
himself or a third person against such other’s
imminent use of unlawful force.
Utah Code Ann. § 76-2-402(1) (LexisNexis 2003). But this general
rule is subject to a crucial corollary: the use of lethal force is
justified only in the reasonable belief that it is “necessary to prevent
death or serious bodily injury . . . or to prevent the commission of
a forcible felony.” Id.3
¶37 In contrast, imperfect self-defense is a partial defense,
reducing a charge of murder or attempted murder to manslaughter
or attempted manslaughter. State v. Low, 2008 UT 58, ¶ 22, 192 P.3d
867. It is available to one who reasonably but incorrectly believed
that his use of lethal force was legally justified:
It is an affirmative defense to a charge of murder or
attempted murder that the defendant caused the
death of another or attempted to cause the death of
another . . . under a reasonable belief that the
circumstances provided a legal justification or excuse
for his conduct although the conduct was not legally
justifiable or excusable under the existing
circumstances.
Utah Code Ann. § 76-5-203(4)(a), (a)(ii) (LexisNexis Supp. 2006).

State v. Lee
20110707-CA 19 2014 UT App 4
¶38 In State v. Low our supreme court identified the factor
distinguishing perfect self-defense from imperfect self-defense:
“whether the defendant’s conduct was, in fact, ‘legally justifiable
or excusable under the existing circumstances.’” 2008 UT 58, ¶ 32
(quoting Utah Code Ann. § 76-5-203(4)(a)(ii) (LexisNexis Supp.
2007)). In other words, if, under the facts as he reasonably believed
them to be, the defendant’s conduct was legally justifiable, he then
acted in perfect self-defense. If, under the facts as he reasonably
believed them to be, he reasonably but incorrectly believed his
actions were legally justifiable, he acted in imperfect self-defense.
¶39 Ordinarily “for both perfect and imperfect self-defense, ‘the
same basic facts [are] at issue.’” Spillers, 2007 UT 13, ¶ 23 (alteration
in original) (quoting State v. Howell, 649 P.2d 91, 95 (Utah 1982)). So
when would a person ever reasonably but incorrectly believe he
was entitled to use force to defend himself? Spillers suggests the
answer.
¶40 Spillers shot a man who, Spillers testified, had struck him
with a gun on the back of the head and was poised to strike again.
Id. ¶ 3. The State argued that the evidence permitted the jury to
reach one of only two results: either Spillers had committed
murder or he had acted in perfect self-defense. Id. ¶¶ 21–23. But the
supreme court concluded that the evidence was amenable to a third
interpretation: Spillers was entitled to defend himself against his
assailant, but not with lethal force. Id. ¶ 23. In other words, where
Spillers’s assailant was using his gun as a club, a jury might find
that Spillers reasonably but incorrectly believed that lethal force
was “necessary to prevent death or serious bodily injury . . . or to
prevent the commission of a forcible felony.” Utah Code Ann. § 76-
2-402(1) (LexisNexis 2003). Accordingly, the court held that the trial
court erred in denying Spillers an imperfect self-defense
instruction. Spillers, 2007 UT 13, ¶ 23.
¶41 We learn from Spillers that a defendant is entitled to an
instruction on imperfect self-defense if a jury could conclude from
the evidence that he reasonably but incorrectly believed he was
justified in using lethal force against a non-lethal attack. Stated
more generally, imperfect self-defense applies when a defendant

State v. Lee
4. Of course, perfect self-defense also applies when a defendant
makes neither a mistake of law nor a mistake of fact.
20110707-CA 20 2014 UT App 4
makes a reasonable mistake of law—when he acts “under a
reasonable belief that the circumstances provided a legal
justification or excuse for his conduct although the conduct was not
legally justifiable or excusable under the existing circumstances.”
Utah Code Ann. § 76-5-203(4)(a)(ii) (LexisNexis Supp. 2006). On the
other hand, perfect self-defense applies when a defendant makes
a reasonable mistake of fact—when his conduct was justifiable
under the facts as he reasonably believed them to be.4
¶42 We can distill Low and Spillers into a two-part inquiry. To
determine whether either version of self-defense is available, we
assess both the defendant’s understanding of the facts and the
defendant’s understanding of the law. If the defendant’s
understanding of the facts is correct (or incorrect but reasonable)
and the defendant’s understanding of the law is correct, perfect
self-defense is available. If the defendant’s understanding of the
facts is correct (or incorrect but reasonable) and the defendant’s
understanding of the law is incorrect but reasonable, imperfect self-
defense is available. And if either the defendant’s understanding of
the facts is unreasonable or the defendant’s understanding of the
law is incorrect and unreasonable, neither perfect self-defense nor
imperfect self-defense is available.
¶43 Here, Lee argues in effect that his understanding of the facts
was incorrect but reasonable. He testified that, as the altercation
escalated, T.H. pointed Lee’s own gun at him, Lee grabbed it back,
and T.H. reached behind him for what Lee believed was “another
gun.” If this version of events was true, Lee reasonably but
incorrectly believed that T.H. was about to employ lethal force
against him, justifying his own use of lethal force. Lee thus
qualified for a perfect self-defense instruction because his
understanding of the facts was reasonable and his understanding
of the law was correct—if T.H. had a gun and intended to use it,
Lee was legally entitled to respond with lethal force.

State v. Lee
20110707-CA 21 2014 UT App 4
¶44 But Lee did not qualify for an imperfect self-defense
instruction, because he never claimed that his understanding of the
law was reasonable but incorrect; he never claimed that, under the
circumstances as he reasonably believed them to be, he reasonably
but incorrectly believed he had a right to respond with lethal force.
One can imagine a scenario where imperfect self-defense would
have been available. Had Lee testified that he shot T.H. because he
believed T.H. was pulling, say, brass knuckles out of his back
pocket, Lee may have been entitled to an instruction on imperfect
self-defense. In that situation, he could argue that he reasonably
believed that the circumstances justified his use of lethal force
when in fact they justified only his use of non-lethal force.
¶45 In short, this case presents the very factual dichotomy that
Spillers did not: the testimony at Lee’s trial allowed only two
options—that Lee was “either guilty of murder or [entitled to
acquittal] under a [perfect] self-defense theory.” See 2007 UT 13,
¶ 23, 152 P.3d 315. Accordingly, I conclude that Lee was not
prejudiced by trial counsel’s failure to object to the erroneous jury
instruction on imperfect self-defense.