State v. Garza

2026 UT App 128
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JULIO C ESAR G ARZA,
Appellant.
Opinion
No. 20220330-CA
Filed August 20, 2026
Sixth District Court, Manti Department
The Honorable Wallace A. Lee
No. 171600008
Ann M. Taliaferro, Attorney for Appellant
Derek E. Brown and Natalie M. Edmundson,
Attorneys for Appellee
JUDGE R YAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
TENNEY, Judge:
¶1 	Julio Garza beat his prison cellmate (Cellmate) to death
during a violent assault that was caught on video. The State
charged Garza with 	aggravated murder, and the jury later
convicted him as charged.
¶2 	Garza now challenges his conviction on several grounds.
First, he argues that the voir dire process was inadequate because
the district court did not adequately explore several sources of
potential bias with prospective jurors. Second, he raises several
claims relating to evidence that was presented about the bloody
crime scene and Cellmate’s injuries. Finally, Garza raises several
ineffective assistance of counsel claims relating to testimony
about intent that was presented at trial, as well as to jury

State v. Garza
20220330-CA 	2 	2026 UT App 128
instructions that were (and were not) given relating to lesser
included offenses. For the reasons discussed more fully below, we
reject each of Garza’s challenges and affirm his conviction.
BACKGROUND1
The Murder
¶3 	On August 25, 2016, Garza was transferred from the
Draper prison to the Gunnison prison. Garza is a Sureños gang
member, but Cellmate was not a member of any gang. Of some
note for this appeal, Cellmate was a sex offender.
¶4 	Officer Larson was on duty on the evening that Garza
arrived, and while making the rounds sometime between 6:00 and
6:30 p.m., he briefly observed Garza and Cellmate in their cell.
Cellmate was sitting on the bottom bunk while Officer Larson
talked to Garza, and “[e]verything was totally normal.” Garza and
Cellmate “seemed to be getting along” with “no issues.” At about
7:30 p.m., Officer Larson went past the cell again, and nothing
seemed out of the ordinary.
¶5 	Video that was taken from a surveillance camera in the hall
shows that at 7:53 p.m., Garza was pacing in the cell when he
suddenly began throwing punches toward the bottom bunk
(which, as noted, was where Cellmate had previously been seen).
Although the entire cell cannot be seen in the video due to the
lower part of the door being made of metal, the top part of the
door was clear plexiglass and allowed a view of what was
1. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, 	and 	we 	present 	conflicting 	evidence 	only 	as
necessary 	to 	understand 	issues 	raised 	on 	appeal.” 	State 	v.
Newberry, 2026 UT App 2, n.2, 584 P.3d 343 (quotation simplified).

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happening. It appears from the video that Garza pulls Cellmate
from the bottom bunk to the floor, and from that point forward,
Cellmate is obscured from view of the camera. The video shows
Garza repeatedly punching and stomping what must have been
Cellmate in an attack that continued for the next seven minutes.
Several times during the attack, Garza is shown jumping into the
air, bringing both knees up to his chest, and then stomping down
with both feet. Garza is shown taking several breaks during the
attack, during which he turns his back to Cellmate and walks
toward the back of the cell before returning and continuing the
attack.
¶6 	At some point during this assault, Officer Orozco, who
worked in the prison control room, received an alert that the door
alarm for Garza and Cellmate’s cell had been triggered. Officer
Orozco later explained that the door alarm alerts officers in the
control room if someone is trying to open the cell door. For the
door alarm to be triggered, the sensor needs to be “jarred enough”
to trigger the system, and this requires “a lot of pressure” or
“movement.”
¶7 	When 	Officer 	Orozco 	saw 	that 	the 	door 	alarm 	was
triggered, he used a speaker button to talk to Garza and Cellmate
in their cell. Garza told Officer Orozco, “Oh, my bad. I’m sorry. It
won’t happen again.” Officer Orozco suspected that something
was amiss, though, so he left the speaker on. In the ensuing
moments, he could hear “somebody having difficulty breathing,”
like the person was “wheezing.” Officer Orozco then pulled up
the surveillance video feed and saw Garza “pulling on something
. . . and then kicking something” while saying, “Get the fuck over
here.” 	At 	that 	point, 	Officer 	Orozco 	activated 	the 	incident
management system to call officers into the unit.
¶8 	Officer Orozco and Officer Larson were the first officers to
respond to Garza’s cell. As they approached the cell, they
observed a “large amount of blood coming from [underneath] the

State v. Garza
20220330-CA 	4 	2026 UT App 128
right-hand side of the door.” When they opened the cell door,
they found Cellmate lying on the ground with a “pool of blood”
underneath him. Cellmate was unresponsive and his head was
close to the cell door. Cellmate had a large laceration on his
forehead, and his head was “covered in blood.” Cellmate was
making “gurgling noises” and having a “very difficult time
breathing.”
¶9 	There was “[a] lot of blood” “everywhere” in the cell—
blood was on the floor, the walls, and the ceiling. Garza was
cooperative with the officers, and he sat down on the bunk bed at
Officer Larson’s request. Garza “joked at least twice” about
whether he should go back over to Cellmate and “teach him a
lesson.” Garza did not have any injuries.
¶10 	A full team of officers and medics soon arrived, at which
point Garza was handcuffed and removed from the cell. Cellmate
was put on a gurney, removed from the cell, and transported to
the local hospital. Cellmate was then life-flighted from the local
hospital to a larger hospital, where he was pronounced dead.
¶11 	The State later charged Garza with aggravated murder,
and the case proceeded to a jury trial.
Voir Dire
¶12 	Before jury selection began, prospective jurors were sent a
questionnaire 	with 	approximately 	50 	questions. 	The
questionnaire included questions about jurors’ employments and
family circumstances; their education levels and primary sources
of news; their familiarities with the legal system; their experiences
with and attitudes toward law enforcement officers, prosecutors,
and defense attorneys; their abilities and willingness to follow
legal instructions; their abilities and willingness to afford Garza
the presumption of innocence; and their abilities and willingness

State v. Garza
20220330-CA 	5 	2026 UT App 128
to follow the “principle of law” under which the State is required
to prove guilt beyond a reasonable doubt.
¶13 	On the day of jury selection, the 80 prospective jurors were
broken 	into 	smaller 	groups 	of 	20. 	The 	court 	explained 	to
prospective jurors that the purpose of voir dire was to “select a
jury that can be fair and impartial to both sides,” and it asked
them not to “withhold any information that [they thought] might
be important.” Prospective jurors were asked whether they knew
Garza or any of the attorneys, witnesses, or court staff. They were
also asked if they, or any members of their immediate families,
had ever been accused of the same crime as Garza. At the request
of 	defense 	counsel 	(Counsel), 	the 	district 	court 	also 	asked
prospective jurors if anything about Garza’s “Hispanic origin”
would impact their ability to treat Garza fairly. Also, and again at
Counsel’s request, most prospective jurors were asked if they had
any preconceived notions about people who had tattoos.2
¶14 	After questioning each group, the court gave the State and
Counsel 	opportunities 	to 	approach 	the 	bench 	and 	discuss
whether any additional questions should be asked. Counsel did
not ask any further questions of the prospective jurors.
Law Enforcement Testimony
¶15 	At trial, the State called seven law enforcement officers
who testified consistently with the facts detailed above. The
parties also elicited the following additional testimony that is
relevant to issues raised in this appeal.
¶16 	As noted, Officer Orozco was one of the first officers to
enter the cell after the assault, and he testified that it was “beyond
2. It appears from our review of the record that the first group of
20 was not asked about tattoos, but Garza has not pointed to this
as a source of reversible error on appeal.

State v. Garza
20220330-CA 	6 	2026 UT App 128
anything [he had] seen” in his eight-year career and that he had
“never seen a crime scene this bloody.” He testified that “this
assault [was] pretty much burned in [his] mind.” Officer Orozco
also explained that there is a button in each cell for emergencies.
The inmates can press the button and officers will respond. But
this button is different from the door alarm—the button is used
when an inmate wants to talk to officers; the door alarm is a
security measure to keep the doors closed.
¶17 	Officer Jones was another officer who responded to the
cell. He testified that the cell was “very bloody” and that the blood
was “splattered from the door to the back of the cell and on the
ceiling.” Officer Jones said that the “back of the cell [was] at least
eight feet away” and maybe as much as “12 feet” from the cell
door.
¶18 	Officer Larson testified that when he responded, he noticed
a pool of blood that was slowly coming out from under the cell
door. He said that he had “never seen that much blood in [his]
life.” He also said although he initially thought he might have to
engage with Garza and even use pepper spray on him, Garza was
“very calm and very compliant” when officers entered the cell.
Officer Larson testified that when “talking to guys that had
worked” at the prison for “20, 25, even 30 years, they all [said] in
all their careers, they’d never seen anything like that, ever.”
Officer Larson said that there was blood splatter “everywhere in
the cell, in spots that you would not even imagine or think, clear
across the cell room, on the ceiling or wall, on the far end of the
cell away from the door.” He testified that the blood splatter was
present when he entered the cell and was not “caused by officers.”
¶19 	Sergeant Larsen (not to be confused with Officer Larson)
was another responding officer. He said that when he entered the
cell, he saw “a very brutal scene, very graphic, a lot of blood.”
Continuing, he said that “there was blood everywhere”—enough
that “when you opened . . . the door, it came cascading out from

State v. Garza
20220330-CA 	7 	2026 UT App 128
underneath the door of the cell.” He described it as “[o]ne of the
most brutal incidents that [he had] responded to in [his] 11 years”
working in corrections.
¶20 	The State played the surveillance footage of the attack for
the jury, and Sergeant Larsen narrated what was happening as the
footage played. During this narration, Sergeant Larsen pointed
out that Garza was “pacing” before the attack, and he told jurors
that this can be a “red flag” because it is “usually indicative of a
fight.” Sergeant Larsen testified that, in his view, the video
showed 	Garza 	repeatedly 	“stomping” 	on 	and 	“punching”
Cellmate, and he explained that Cellmate could not be seen in the
video because he was “not standing up at that point” and would
have been “laying close to the front of the cell,” “[u]p against the
door.” Sergeant Larsen pointed out that at one point, Garza
“[took] a break” and “turn[ed] his back” to Cellmate, which
Sergeant 	Larsen 	then 	said 	was 	an 	indication 	that 	Garza
“underst[ood]” Cellmate was “not a threat.”3 Sergeant Larsen
testified that in his experience, attacks in the prison do not usually
last as long as this attack did. He said that most fights that he had
encountered were “under 90 seconds,” usually “somewhere
between 30 to 45 seconds and the fight’s done.”
¶21 	On 	cross-examination, 	Sergeant 	Larsen 	was 	asked
questions about whether gang members and sex offenders are
housed together in prison. Sergeant Larsen explained that gang
members and sex offenders have been housed together and have
gotten along “just fine,” so it’s “not a general rule” to separate
them unless one of them raises a safety concern.
¶22 	Officer Hunt was another responding officer. He said that
he saw “[l]ots of blood” inside the cell—“the most blood that [he
had] ever seen before in [his] life.”
3. As noted, the video shows Garza taking several such breaks.

State v. Garza
20220330-CA 	8 	2026 UT App 128
¶23 	Former Police Chief Halliday testified as well. He said that
from viewing the video, it appeared to be a one-sided fight
because there were no signs that Cellmate threw any punches.
Chief Halliday said that he had never seen anything “quite this
bloody.”
¶24 	Investigator 	Garlock 	from 	the 	Department 	of
Corrections investigated the assault. He said that this crime scene
was not typical because of the amount of blood present. This was
partially so, he explained, because in a “typical assault case[],”
“[u]sually 	the 	fight 	stops” 	once 	one 	of 	the 	inmates 	is
incapacitated. He also said that he had not seen a prison assault
last 	seven 	minutes. 	He 	testified 	that 	he 	had 	reviewed 	the
surveillance footage and counted at least 111 kicks and punches
thrown by Garza.
¶25 	Investigator Garlock also testified that he had experience
investigating gang attacks inside prisons. He explained that while
Sureños members don’t like sex offenders, he had never heard of
that gang taking the position that members need to target all sex
offenders. The State asked Investigator Garlock, “Based upon
your experience as a gang investigator and someone who’s
investigated many different prison attacks and many different
circumstances, based upon your review of this video, do you
believe that . . . Garza intended to kill [Cellmate] by his actions?”
Investigator Garlock responded, “I do.”
Photographs of the Crime Scene and Cellmate’s Injuries
¶26 	During Officer Larson’s testimony, the State moved to
admit several photographic exhibits, including Exhibits 1 through
13. Exhibits 3 through 9 and Exhibit 11 show blood that was

State v. Garza
20220330-CA 	9 	2026 UT App 128
present inside and outside the cell. Exhibit 13 shows Cellmate’s
head and face, with a large cut visible on Cellmate’s forehead.4
¶27 	Counsel did not object to the admission of Exhibits 1
through 7. But Counsel did request that the photographs not
remain displayed for the jury once they were shown, and the State
agreed to that request.
¶28 	Before the State admitted Exhibit 8, Counsel objected,
stating, “[T]here’s a few more pictures that are similar, and I’m
going to object at this point.” Continuing, Counsel argued that
there were already “enough that [were] sufficient,” that “any
additional pictures” would be “more prejudicial than probative at
[that] point,” and that “the prejudicial effect outweigh[ed] the
probative value.” The State responded that Exhibit 8 was “very
probative” of “the amount of violence” and “force” that were
used in the attack. The court overruled the objection, noting,
“[I]t’s hard to say when you’ve seen enough blood, but the [c]ourt
finds at this point that it’s more probative than prejudicial . . . and
goes to the State’s burden of showing what exactly happened in
this case.” Counsel later stated that he had “no objection” when
the State sought to admit the photographic exhibits that followed
Exhibit 8.
Medical Testimony
¶29 	The medical examiner (Medical Examiner) testified that
Cellmate’s cause of death was blunt force trauma to his head.
Medical 	Examiner 	testified 	that 	Cellmate 	had 	two 	“large
fractures” to his skull “on the right side, extending to underneath
the eye or the orbit,” as well as “another fracture that was on the
left side” toward “the base of the skull.” Medical Examiner said
that she observed “bruising and lacerations” on both sides of the
4. More detail about these exhibits is set forth in the Analysis
section below.

State v. Garza
20220330-CA 	10 	2026 UT App 128
brain “in addition to the skull fractures.” She described Cellmate’s
injuries as “very extensive,” saying that they had caused brain
swelling as well as bleeding between the layers of scalp and the
brain. During Medical Examiner’s testimony, the State introduced
Exhibit 24, which was an autopsy photograph of Cellmate’s head
and face. This photograph showed a large cut on his forehead
similar to what was portrayed in Exhibit 13. Counsel did not
object to the admission of this exhibit.
¶30 	On cross-examination, Medical Examiner testified that a
“minor injury to the scalp” can cause “extensive bleeding”
because the scalp is “very vascular.” Because of this, she said that,
“[v]isually,” the amount of blood produced isn’t “necessarily” a
“good gauge” of how “serious” a head injury is. Continuing,
however, 	Medical 	Examiner 	observed 	that 	Cellmate 	had
“numerous lacerations” and that “the scalp lacerations were very
deep; they went all the way to the skull.”
¶31 	The 	emergency 	room 	doctor 	(Doctor) 	who 	treated
Cellmate at the hospital to which he had been life-flighted also
testified. 	Doctor 	said 	that 	when 	Cellmate 	arrived, 	he 	was
“comatose” and “actively dying due to blood loss,” which doctors
tried to compensate for with “massive [blood] transfusions.”
Doctor 	observed 	a 	“massive 	laceration 	extending 	from
[Cellmate’s] forehead all the way to the back of his head.” After a
CAT scan, it was “evident that [Cellmate’s] brain injury was life
ending.” This fatal brain injury included brain swelling that had
pushed Cellmate’s brain “through the hole in the bottom of the
skull.” Doctor further testified that there was “very little that
wasn’t broken on [Cellmate’s] skull and face.” Doctor said that
Cellmate’s skull fractures were “extensive, probably [some] of the
most [he’d] seen in [his] career, if not the most, be it for just blunt
force trauma.” He said the fractures were consistent with injuries
he saw involving “high velocity blunt trauma” like those that he
would see if someone was “run over by a car and their head [was]
the primary area of impact.” He also said that Cellmate’s injuries

State v. Garza
20220330-CA 	11 	2026 UT App 128
were “not common for an assault” because there “were so many
breaks on both sides of his face, on both sides of his skull,”
whereas an assault usually stops after someone is hit in the head
and “lose[s] consciousness.”
Alleged Juror Statements
¶32 	On the third day of trial, and before the State called its last
witness, the court received a note from one of the alternate jurors.
This juror reported that another juror had made comments about
the case, including, “I want to hand the bailiff a note with my
verdict already,” “I think I know where this ship is sailing,” and
“No from the start.” The court and the attorneys met with each of
the individual jurors to “ascertain whether there had been any
taint of the proceedings” that would require the court to declare a
mistrial. Other than the reporting juror, none of the other jurors
had heard the alleged comments, and the juror in question denied
making them.
¶33 	Counsel moved for a mistrial or, in the alternative, to strike
the juror who purportedly made the comments. The court denied
the motion for a mistrial, finding that there was “not enough
evidence to show that the statements were made,” and further
finding that “there’s not enough evidence to show that if the
statements were made, they had any effect on the jury.” Before
deliberations began, however, the court excused both the juror
who had purportedly made the comments and the alternate juror
who reported the comments, and neither of them sat on the jury
that decided the case.
The Defense’s Case
¶34 	Garza testified in his own defense. He explained that he
grew up in an unstable, poor home, and he said that he joined the
Sureños gang for protection. Garza stated that he eventually met
a man who gave him access to things that were desirable to him

State v. Garza
20220330-CA 	12 	2026 UT App 128
and his gang. He said that this man sexually assaulted him while
Garza was under the influence of drugs, but that he had never
reported the assault to police because he feared retribution from
his gang.
¶35 	Garza testified that at the time of the assault on Cellmate,
he was in prison for an aggravated robbery he had committed
when he was 17 years old. He testified that the Sureños had a rule
against living with sex offenders. He said that when he first met
Cellmate, Cellmate did not tell Garza that he was a sex offender,
so they were “neutral.” But Garza said that he learned later that
day, through fellow Sureños, that Cellmate was a sex offender.
Garza claimed that he was already on thin ice with his gang, and
he said he thought he would get in trouble for having previously
vouched for Cellmate.
¶36 	Garza testified that, while in their cell that afternoon, he
confronted Cellmate about being a sex offender and told Cellmate
to “push the button” on the cell door and ask an officer to switch
cells.5 Garza claimed that Cellmate refused, and he said that after
a couple of hours of trying to negotiate with Cellmate, he became
“angry” and attacked Cellmate. Garza also said that when he
found out Cellmate was a sex offender, he thought about his own
sexual assault. Garza stated that when he was hitting Cellmate, he
was thinking about the bad things people had done to him, and
he said that he was “trying to beat [Cellmate] up enough . . . where
he wasn’t going to get back up.”
¶37 	On cross-examination, Garza admitted that he had a choice
to stop the attack as soon as one minute into the attack because at
5. In his trial testimony, Investigator Garlock explained that it was
against Sureños rules for a member of the gang to push the button
and ask for help from officers. He further explained that if a gang
member did so, the member would be in danger of retaliation
from the gang.

State v. Garza
20220330-CA 	13 	2026 UT App 128
that point, Cellmate wasn’t fighting back. Garza also admitted
that he took several breaks during the assault where he was
“resting” or “pacing back and forth,” and he admitted that during
those breaks, “there was no movement from [Cellmate].” He
testified that he nevertheless continued to “stomp [Cellmate]”
even though he could see that Cellmate’s “injuries were pretty
bad.” He also admitted that he could have told Officer Orozco that
Cellmate was hurt when Officer Orozco called into the cell but
that he didn’t. Finally, Garza admitted that he had previously
“beat . . . down” another inmate but didn’t kill him, and he also
admitted that he had “slashed” a previous cellmate but had then
“helped him live” by rendering aid.
Closing Instructions and Arguments
¶38 	The jury was instructed that to convict Garza of aggravated
murder, it needed to find that the State had proven, beyond a
reasonable doubt, that Garza intentionally or knowingly caused
the death of another person while confined in a correctional
facility. The jury was instructed that a “person engages in conduct
‘intentionally’ or ‘with intent,’ when his conscious objective is to”
(1) “[e]ngage in certain conduct” or (2) “[c]ause a certain result.”
It was further instructed that a “person engages in conduct
‘knowingly’ or ‘with knowledge’ when the person” (1) is “aware
of the nature of his conduct,” (2) is “aware of the particular
circumstances surrounding his conduct,” or (3) is “aware that his
conduct is reasonably certain to cause a particular result.”
¶39 	Counsel requested and received a lesser included offense
instruction for homicide by assault (but not instructions for non-
aggravated murder or manslaughter, which would constitute
other possible lesser included offenses). The jury was instructed
that it could not convict Garza of that offense unless it found the
following:

State v. Garza
20220330-CA 	14 	2026 UT App 128
(1) [Garza];
(2) Under 	circumstances 	not 	amounting 	to
aggravated murder, murder or manslaughter;
(3) Caused the death of another;
(4) While intentionally or knowingly;
(5) Attempting with unlawful force [or] violence;
(6) To do bodily injury to another.
In a separate instruction, the jury was instructed that it must
determine whether Garza was guilty of aggravated murder,
guilty of homicide by assault, or not guilty of either offense, and
it was instructed that it could not find Garza guilty of both
offenses. The jury was also given an instruction that defined a
number of terms used in the various instructions. This instruction
also included the elements of several variants of murder as well
as of manslaughter.6
¶40 	During 	the 	State’s 	closing 	argument, 	the 	prosecutor
emphasized that the only dispute in this case was about Garza’s
intent—namely, whether Garza intended to kill Cellmate or
instead intended to merely assault him. The State also reminded
jurors that because neither side had requested that the jury
consider other lesser included offenses, jurors could not consider
non-aggravated murder or manslaughter and were therefore left
with 	“two 	choices: 	aggravated 	murder[] 	[or] 	homicide 	by
assault.”
6. As noted above, the jury had been told that these variants of
murder and manslaughter could not support a conviction for the
lesser included offense of homicide by assault.

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¶41 	During the defense’s closing argument, Counsel agreed
that the only dispute was about Garza’s intent. Counsel asked the
jury to find Garza “guilty of homicide by assault” because there
was “reasonable doubt as to what was going through his mind.”
Before the jury retired to deliberate, the court went over the
verdict form with the jury and explained that the jury must
“choose 	between 	guilty 	of 	aggravated 	murder 	or 	guilty 	of
homicide by assault or not guilty” because those were “the only
three choices.”
¶42 	The jury convicted Garza of aggravated murder. Garza
now appeals.
ISSUES AND STANDARDS OF REVIEW
¶43 	On appeal, Garza first argues that the voir dire process was
inadequate for several reasons. Garza concedes that the voir dire
issues he raises here were not preserved below, so he asks us to
review them for either plain error or ineffective assistance of
counsel. Because these issues are raised for the first time on appeal
and there is no lower court ruling to review, we decide them as a
matter of law. See State v. Thomas, 2025 UT App 145, ¶ 15, 579 P.3d
416.
¶44 	Garza 	next 	argues 	that 	the 	court 	erred 	in 	admitting
photographs and testimony relating to the crime scene and
Cellmate’s injuries. This court reviews a preserved challenge “to
the admission of allegedly gruesome photographs for an abuse of
the district court’s discretion.” Met v. State, 2016 UT 51, ¶ 36, 388
P.3d 447. Garza concedes that some (though not all) of the issues
he raises regarding this evidence were unpreserved. On these, he
asks us to review them for either plain error or ineffective
assistance. As indicated, we decide these issues as a matter of law.
See Thomas, 2025 UT App 145, ¶ 15.

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20220330-CA 	16 	2026 UT App 128
¶45 	Finally, Garza raises several additional claims of ineffective
assistance of counsel. These include claims that Counsel provided
ineffective assistance by failing to object to the State’s introduction
of “inadmissible opinion testimony” on Garza’s intent, failing to
object to allegedly confusing instructions relating to the homicide
by assault offense, and failing to request a lesser included offense
instruction on murder. As indicated, we decide these issues as a
matter of law. See id.
ANALYSIS
I. Voir Dire
¶46 	Garza argues that voir dire was inadequate in three ways.
First, he claims that prospective jurors should not have been
allowed to “assess their own biases” when they responded to the
written questionnaires or to the court’s questions in groups (as
opposed 	to 	having 	their 	potential 	biases 	probed 	through
individualized questioning). Second, he claims that the district
court did not adequately explore prospective jurors’ knowledge
of, and potential sensitivity to, issues relating to prison and gang
culture. And third, he claims that the court did not adequately
assess whether prospective jurors had the ability to “emotionally
handle and impartially analyze” the bloody images that would be
presented. Garza acknowledges that he did not raise any of these
issues below, so he asks us to review them for either plain error
or ineffective assistance of counsel.
¶47 	To demonstrate plain error, Garza “must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful.” State v. Brown, 2025 UT
App 31, ¶ 27, 566 P.3d 737 (quotation simplified). “To prevail on
an ineffective assistance claim, [Garza] must show that Counsel
performed 	deficiently 	and 	that 	the 	deficient 	performance
prejudiced him.” State v. Draper, 2024 UT App 152, ¶ 80, 560 P.3d

State v. Garza
20220330-CA 	17 	2026 UT App 128
122. “Because failure to establish either prong of the test is fatal to
an ineffective assistance of counsel claim,” we are free to dispose
of such a claim based on a failure to meet either prong. State v.
Heward, 2024 UT App 40, ¶ 29, 547 P.3d 226 (quotation simplified).
Moreover, the “prejudice analysis is the same for claims of plain
error and ineffective assistance of counsel.” State v. Norton, 2021
UT 02, ¶ 101, 481 P.3d 445. Here, whether we review these claims
for plain error or for ineffective assistance, we conclude that Garza
has not shown prejudice relating to any of his voir dire claims.
¶48 	We have previously held that when a defendant raises an
ineffective assistance claim “arising from counsel’s performance
in the jury-selection process,” “a defendant must demonstrate
actual prejudice, which is synonymous with actual juror bias.”
State v. Escobar-Florez, 2019 UT App 135, ¶ 30, 450 P.3d 98
(quotation 	simplified). 	Thus, 	“to 	prevail 	on 	an 	ineffective
assistance of counsel claim” relating to whether “counsel should
have asked questions during voir dire to determine whether
jurors had bias,” the defendant must show that “trial counsel’s
actions prejudiced” the defendant by “allow[ing] the seating of an
actually biased juror.” Id. ¶¶ 30–31 (quotation simplified); see also
State v. King, 2008 UT 54, ¶ 47, 190 P.3d 1283 (“In order to prevail
on [a] claim of ineffective assistance of counsel, [the defendant]
must show that his [or her] counsel’s actions prejudiced him
because those actions allowed the seating of an actually biased
juror.”); State v. Carrera, 2022 UT App 100, ¶ 86, 517 P.3d 440
(holding 	that 	the 	defendant 	demonstrated 	the 	presence 	of
prejudice when an actually biased juror sat). The same holds true
when such a claim is raised under the plain error doctrine. See
State v. Sessions, 2014 UT 44, ¶¶ 50–52, 342 P.3d 738; see also State
v. Sessions, 2012 UT App 273, ¶ 33, 287 P.3d 497 (holding that
“potential, rather than the actual, bias of [j]urors” is “not enough
to meet the prejudice prong of either ineffective assistance of
counsel or plain error”), aff’d, 2014 UT 44. But if the defendant
does make this showing and demonstrates that he or she was

State v. Garza
20220330-CA 	18 	2026 UT App 128
“convicted of a crime by a jury comprised of even one member
who has exhibited actual bias,” the defendant “is entitled to a new
trial.” King, 2008 UT 54, ¶ 28.
¶49 	In his brief, however, Garza claims that the actually-biased-
juror standard only “applies when counsel fails to probe or
remove a juror already identified as potentially biased.” (Emphasis
in original.) In Garza’s view, “when the claim concerns a failure
in the voir dire process itself—specifically the failure to ask
questions necessary to uncover bias or other factors rendering a
prospective 	juror 	unsuitable 	for 	the 	particular 	case”—the
prejudice standard is satisfied by a showing that “the appellant’s
right to the informed exercise of peremptory challenges has been
substantially impaired.”
¶50 	Garza points to several Utah cases that, in his view,
support this position. See State v. Holm, 2017 UT App 148, ¶¶ 8–9,
402 P.3d 193; State v. Alvarez, 2014 UT App 179, ¶ 4, 332 P.3d 978;
Alcazar v. University of Utah Hosps. & Clinics, 2008 UT App 222, ¶ 9,
188 P.3d 490; Barrett v. Peterson, 868 P.2d 96, 97 (Utah Ct. App.
1993). But each of these cases involved appellate review of a
preserved issue. In our view, this distinction matters. It’s one
thing to say that a district court erred by denying a party’s
affirmative request for some additional inquiry. It’s quite another
for a litigant to stay silent during voir dire and yet claim on appeal
that the court or trial counsel should have done more. Given the
complexities of 	litigation, 	a 	district 	court could 	always ask
additional questions about some subject that’s involved in the
case. But without a request from the party at the time, the district
court is left to proceed with voir dire based on the usual
questioning and the requests made by the parties in the case.
When this happens, the reasons behind the preservation rule
(primarily finality and fairness to the other party) caution against
an appellate court later concluding that the party was prejudiced
by the absence of additional questioning that the party never
sought. And this seems to be why the caselaw we’ve cited above

State v. Garza
20220330-CA 	19 	2026 UT App 128
has already established that to prevail on a claim like Garza’s (i.e.,
one raised through either plain error or ineffective assistance), the
party must show that, because of the allegedly inadequate voir
dire, an actually biased juror ultimately sat on the case.
¶51 	Garza has not made that showing. In the voir dire context,
actual bias “is not limited to bias in favor of or against the
prosecution, or in favor of or against the defendant,” but instead
includes a “bias that would interfere in any manner with a juror’s
deciding evidentiary issues fairly and objectively and applying
objectively the rules of law given to the jury by the trial judge.”
Carrera, 2022 UT App 100, ¶ 56 (quotation simplified); accord State
v. Saunders, 1999 UT 59, ¶¶ 43–44, 992 P.2d 951. In this sense,
actual bias is a “bias or conflict of interest” that is “so strong or
unequivocal as to inevitably taint the trial process.” Mulder v.
State, 2016 UT App 207, ¶ 66, 385 P.3d 708 (quotation simplified).
Actual bias is thus more than a “potential for bias, or a ground for
defense counsel to prefer that [a particular juror] not be seated.”
Sessions, 2014 UT 44, ¶ 47 (emphasis in original). It refers to the
type of bias “that would close the mind against testimony that
may be offered in opposition.” State v. Taylor, 2025 UT App 14,
¶ 17, 564 P.3d 962 (quotation simplified).
¶52 	In attempting to make this showing, Garza relies on the
note the court received on the third day of trial, wherein an
alternate 	juror 	reported 	that 	another 	juror 	had 	made 	three
comments—namely, “I want to hand the bailiff a note with my
verdict already”; “I think I know where this ship is sailing”; and
“No from the start.” Garza argues that if “the court and the parties
would have probed the juror’s attitudes on critical principles and
issues that would arise in the case,” including those he has
identified on appeal, “those attitudes would have surfaced during
the empaneling of the jury rather than on the third day of trial.”
(Emphasis in original.)

State v. Garza
20220330-CA 	20 	2026 UT App 128
¶53 	But there are several problems with Garza’s reliance on the
allegations contained in the note. We’ll mention just two of them.
First, after the district court investigated the alleged comments, it
found that “none of the other jurors corroborated what [the
reporting juror] heard” and that there was “not enough evidence
to show that the statements were made.” Garza has not clearly
challenged 	these 	findings 	on 	appeal, 	much 	less 	adequately
marshaled the evidence that supported them. But the “traditional
principle 	of 	marshaling 	remains 	a 	natural 	extension 	of 	an
appellant’s burden of persuasion, and a party challenging a
factual finding or sufficiency of the evidence will almost certainly
fail to carry its burden of persuasion on appeal if it fails to
marshal.” Klein v. Klein, 2025 UT App 170, ¶ 32, 582 P.3d 1197
(quotation simplified). So on this record, because there is no basis
for concluding that the alleged statements were even made, we
have no basis for concluding that the allegations set forth in this
note showed that an actually biased juror sat on the case.
¶54 	Second, and in any event, the juror who allegedly made the
statements was removed from the jury before deliberations, as
was the alternate juror who had reported the alleged statements.
And, as noted, no other juror who remained on the case reported
having heard anything similar.
¶55 	Again, to show plain error or ineffective assistance of
counsel in this context, Garza needs to demonstrate that an
actually biased juror sat. Because he has failed to do so, these
claims necessarily fail for lack of prejudice.
II. Evidence of the Crime Scene and Cellmate’s Injuries
¶56 	Garza next raises several claims relating to evidence that
was presented about the bloody nature of the crime scene and
Cellmate’s injuries. Broadly speaking, we’ll group them into two
claims. Garza first argues that several bloody photographs were
improperly admitted. Garza next argues that several witnesses

State v. Garza
20220330-CA 	21 	2026 UT App 128
gave impermissible testimony in which they characterized the
nature of the scene.
A. 	Bloody Photographs
¶57 	Garza 	argues 	that 	ten 	“inflammatory 	gruesome
photographs were admitted” at trial in violation of rule 403 of the
Utah Rules of Evidence.7
¶58 	To provide a bit more context, we note that during the
State’s case, the State introduced several photographs of the crime
scene and Cellmate’s injuries. These included the following:
• 	Exhibit 3: This photograph showed a “concentrated pool”
of blood and bloody footprints on the floor outside of the
cell.
• 	Exhibit 4: This photograph showed the “pool of blood”
from inside the cell that was spilling onto the platform
outside the cell. The photograph was taken from inside the
cell looking toward the inside of the cell door. It also
showed blood on the wall and cell door.
7. In his opening brief, Garza also argued that the admission of
these photographs violated “due process.” In response, the State
argued that because Counsel objected below based on rule 403 but
not on due process grounds, Garza’s due process argument was
not properly preserved for appeal. In his reply, Garza did not
respond 	to 	the 	State’s 	assertion 	that 	this 	argument 	was
unpreserved. Based on our review of the record, we agree with
the State that Garza did not make a due process challenge below,
and 	because 	Garza 	has failed 	to 	assert that 	a 	preservation
exception applies, we decline to address Garza’s due process
argument.

State v. Garza
20220330-CA 	22 	2026 UT App 128
• 	Exhibit 5: This photograph showed “the same thing” as
Exhibit 4, “just at another angle, a little closer up, right at
the very corner of the cell next to the door.” It also showed
blood splatter on the cell door and wall.
• 	Exhibit 6: This photograph showed the same scene as
Exhibits 4 and 5, but “zoomed in.”
• 	Exhibit 7: This photograph showed blood on the cell wall
but was taken “a little bit further back in the cell.”
• 	Exhibit 8: This was an up-close photograph of the blood on
the floor of the cell.
• 	Exhibit 9: This photograph showed the bottom of the bunk
beds in the cell, sandals underneath the bed, and the door
jamb. It also showed blood on the floor and splattered on
the leg of the bunk bed and door jamb.
• 	Exhibit 11: This photograph was of the “far end of the cell.”
It showed a metal stool, two pairs of shoes, and a brown
paper bag. Blood is shown splattered on the floor, wall, and
stool.
• 	Exhibit 13: This photograph showed Cellmate’s head and
face, with a clear view of a bloody laceration on his
forehead.
• 	Exhibit 24: This photograph was an autopsy photo of
Cellmate taken from the chest up, and it showed Cellmate
with a swollen face, a black eye, a laceration on his
forehead, and a marker from the medical examiner’s office
on his chest.
¶59 	Counsel did not object to the admission of Exhibits 1
through 7, but when the State offered Exhibit 8, Counsel objected
that this photograph was “similar” to the prior photographs, and

State v. Garza
20220330-CA 	23 	2026 UT App 128
he further argued that the photograph was “more prejudicial than
probative at [that] point.” The court overruled the objection,
noting, “[I]t’s hard to say when you’ve seen enough blood, but the
[c]ourt finds at this point that it’s more probative than prejudicial
. . . and goes to the State’s burden of showing what exactly
happened in this case.” Counsel later stated that he had “no
objection” when the State offered the remaining photographs
described above.
¶60 	On appeal, Garza argues that each of the ten photographs
described above was inadmissible under rule 403 of the Utah
Rules of Evidence. Because Counsel only raised this objection
with respect to Exhibit 8—and, even there, arguably only raised a
cumulativeness 	objection—Garza 	argues 	that 	he 	received
ineffective assistance due to Counsel’s failure to raise a rule 403
objection to the other photographs.8 We disagree. Instead, we
conclude that any such objection would have been futile because
all ten photographs were admissible.
¶61 	Under rule 403, the district court “may exclude relevant
evidence if its probative value is substantially outweighed by a
danger 	of 	one 	or 	more 	of 	the 	following: 	unfair 	prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Utah R.
Evid. 403. “This rule is inclusionary, meaning it imposes the
8. In his opening brief, Garza also presented this claim through
the plain error rubric. In response, however, the State argued that
because Counsel had affirmatively stated that he had no objection
to admission of further photographs, any error was invited. See
State v. Anderson, 2024 UT App 65, ¶ 17, 549 P.3d 101 (recognizing
that 	plain 	error 	review 	is 	unavailable 	when 	the 	party
“affirmatively represented to the trial court that he or she had no
objection” to the decision in question (quotation simplified)).
Garza appears to concede this point in his reply brief, so we
examine this issue only for ineffective assistance.

State v. Garza
20220330-CA 	24 	2026 UT App 128
heavy burden not only to show that the risk of unfair prejudice is
greater 	than 	the 	probative 	value, 	but 	that 	it 	substantially
outweighs the probative value.” State v. Christian, 2025 UT App
112, ¶ 28, 575 P.3d 293 (quotation simplified), cert. denied, 578 P.3d
751 (Utah 2025). “District courts have broad discretion when
conducting 	this 	balancing.” 	Id. 	(quotation 	simplified). 	“All
relevant photographs, regardless of their ‘gruesomeness,’ are
subject to the balancing test set out in rule 403.” Met v. State, 2016
UT 51, ¶ 89, 388 P.3d 447.
¶62 	Here, these photographs had clear probative value, insofar
as they showed the crime scene or the injuries that Cellmate
suffered 	from 	Garza’s assault. 	And 	in 	past 	decisions, 	Utah
appellate courts have held that photographs depicting the injuries
suffered by crime victims were admissible, even if they could
have been disturbing. See, e.g., id. ¶¶ 20, 97 (affirming admission
of a photograph of a murder victim, where the photograph
showed her lying face down in the shower with no underwear);
State v. Cobb, 774 P.2d 1123, 1125 (Utah 1989) (affirming admission
of a photograph taken from the autopsy of a murder victim, where
the photograph showed the victim’s body with a medical incision
on the chest); State v. Cabututan, 2022 UT App 41, ¶¶ 7, 19, 508
P.3d 1003 (affirming admission of autopsy photographs of a
murder victim, where the photographs showed such things as his
“skull, with the scalp skinned back to reveal the internal injuries
that resulted” from the blows, as well as “crime scene photos” that
showed “the external injury” suffered by the victim); State v.
Smith, 2019 UT App 141, ¶¶ 36–38, 449 P.3d 971 (affirming
admission 	of 	a 	photograph 	of 	a 	murder 	victim’s 	“gaping
wounds,” as well as of a video that “depicted quantities of blood
spray, spatter, and pooling on the walls, cabinets, toilet, bathtub,
and floor” (quotation simplified)).
¶63 	Moreover, we agree with the State that because many of
these photographs showed the amount of blood that Cellmate lost
due to the attack, they had at least some additional relevance to

State v. Garza
20220330-CA 	25 	2026 UT App 128
this case. The disputed issue at trial was whether Garza acted with
the intent to kill Cellmate or instead only acted with the intent to
assault him. We have previously held that photographs of a
victim’s injuries or the aftermath of an attack can have “extremely
high” probative value if the defendant’s intent is at issue and the
photographs have some relevance to establishing that intent (or
the lack thereof). State v. Stapley, 2011 UT App 54, ¶ 18, 249 P.3d
572 (quotation simplified). In such cases, the photographs may
“assist the jury in determining” whether the defendant “had the
requisite intent to commit the crime charged.” Cabututan, 2022 UT
App 41, ¶ 19; see also Cobb, 774 P.2d at 1125 (concluding that
bloody photograph could be admitted “to show [the] defendant’s
purposeful act in shooting the victim and to refute his claim that
the victim died accidentally”).
¶64 	We think that this was so here. The photographs showed
that Garza’s attack produced a large amount of blood, which
would have some relevance to both the extensive nature of the
wounds Garza inflicted and his willingness to keep assaulting
Cellmate even after Cellmate had begun copiously bleeding. The
photographs also showed blood splatter throughout the cell,
which would have some relevance to the extreme amount of force
that Garza was using (particularly given that Cellmate was not
moving for much of the attack). And these inferences, in turn,
could then have clear relevance to the jury’s assessment of Garza’s
intent.
¶65 	Garza nevertheless pushes back on two particular points.
First, Garza argues that the crime scene photographs lacked
probative value because they were taken after Cellmate had been
left bleeding for several minutes. In his view, because Cellmate
had continued bleeding during this period, the amount of blood
observed at the scene was not relevant to show the amount of
force Garza used. Garza further argues that because “multiple
individuals had entered and moved through [the cell],” thus

State v. Garza
20220330-CA 	26 	2026 UT App 128
“disturbing and spreading the blood,” the photographs were
tainted.
¶66 	We recognize these dynamics, but we’re not persuaded
that they undermined the probative value of these photographs
so much that they should have been excluded as a result. It is
undisputed that the blood in the photographs was Cellmate’s and
that the bleeding was caused by injuries that Garza inflicted
during his assault. True, there was likely more blood present than
would have been the case if officers had responded more quickly.
But even so, there was still an exceedingly large amount of blood
found at the scene—enough so that when officers “opened . . . the
door, [blood] came cascading out from underneath the door of the
cell.” Even with the delay, we think this large amount of blood
did still have some relevance to showing the extreme nature of
Cellmate’s injuries—and, by extension, the extreme amount of
force Garza used in the attack.
¶67 	Moreover, the fact that the blood may have been spread on
the floor by officers before the photographs were taken does not
wholly undermine their probative value. As discussed, blood was
observed all over the cell—including on the walls and even on the
ceiling—and Garza has not pointed to anything in the record
establishing that this was the result of officer movement. Indeed,
Officer Larson specifically testified that the splatter marks in the
cell were present when he entered the room and were not “caused
by officers.”
¶68 	In our view, the concerns identified by Garza relating to
both the delay and the officers’ presence in the cell could have
undermined the probative value of these photographs somewhat.
But such photos are commonly taken after some period of time
has elapsed following the violence, and we think jurors are
equipped to give appropriate weight to such concerns. So here,
we’re 	simply 	not 	persuaded 	that 	these 	concerns 	are 	so

State v. Garza
20220330-CA 	27 	2026 UT App 128
pronounced 	that 	they 	left 	these 	photographs 	without 	any
meaningful probative value.
¶69 	Second, Garza also points to testimony from Medical
Examiner 	indicating 	that 	minor 	scalp 	wounds 	can 	produce
significant amounts of blood. Based on that testimony, Garza
argues that “the amount of blood from a head wound” does not
“equate[] to force, and therefore the intent to kill.” We’re again
unpersuaded. No party has contended that Cellmate suffered
minor scalp wounds that somehow bled a lot. Medical Examiner
testified that there were “numerous lacerations” on Cellmate’s
head and that they “went all the way to the skull.” Doctor likewise
testified that he observed a “massive laceration extending from
[Cellmate’s] forehead all the way to the back of his head.” By any
measure, these were significant injuries, and it was undisputed
that Garza caused them. And as we’ve explained, we think the
photographs were corroborative at least in some measure of how
much force Garza used in the attack—and, by extension, his
intent.
¶70 	In short, while we recognize that Garza has raised some
concerns that could undermine the probative value of these
photographs to some degree, we think these concerns fall on the
wrong 	side 	of 	the 	familiar 	distinction 	between 	weight 	and
admissibility. See, e.g., State v. Simpson, 2025 UT App 32, ¶ 48 n.9,
566 P.3d 756 (noting that “if a court admits evidence over a rule
403 objection, the party who opposed admission could still argue
to the jury” that the evidence had no “meaningful probative
value”), cert. denied, 578 P.3d 748 (Utah 2025). Garza could have
argued to the jury that, in light of these very concerns, these
photographs were not probative of the nature of the attack or his
intent. But a jury could see things differently and conclude that,
even with these concerns, these photographs were still probative
of both things.

State v. Garza
20220330-CA 	28 	2026 UT App 128
¶71 	This leaves the question of unfair prejudice. Again, under
rule 403, evidence is excluded if the probative value of evidence
is substantially outweighed by danger of unfair prejudice. See
Utah R. Evid. 403. “Because all effective evidence is prejudicial in
the sense of being damaging to the party against whom it is
offered, rule 403 does not require a court to exclude all prejudicial
evidence.” Anderson-Wallace v. Rusk, 2021 UT App 10, ¶ 18, 482
P.3d 822 (quotation simplified). Instead, “unfair prejudice within
the rule 403 context means an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an
emotional one.” State v. Main, 2021 UT App 81, ¶ 29, 494 P.3d 1056
(quotation simplified).
¶72 	Here, Garza claims that the unfair prejudice he suffered
was the revulsion the jurors might feel at the sight of all the blood.
But even if this were cognizable as a form of unfair prejudice for
purposes of rule 403, we’re still not persuaded that this was
enough to render these photographs inadmissible. Simply put, the
jury was required to make assessments based on the nature of the
crime at issue, and this crime—even under Garza’s telling of the
facts—produced significant injuries that would have produced a
large amount of blood. The jury had to grapple with these things,
so in our view, the probative value of these photographs was not
substantially outweighed by any danger of unfair prejudice.
¶73 	For all these reasons, we conclude that a rule 403 objection
to these photographs would not have been meritorious. As a
result, we conclude that Counsel did not perform deficiently by
not objecting to them, and we reject Garza’s ineffective assistance
claim on this basis.
B. 	Testimony About the Crime Scene
¶74 	Garza 	next 	argues 	that 	Counsel 	provided 	ineffective
assistance by not objecting to testimony from various witnesses

State v. Garza
20220330-CA 	29 	2026 UT App 128
about the bloody nature of the crime scene. Garza points to an
array of such testimony, including the following:
• 	Officer Larson’s testimony that in “talking to guys that had
worked” at the prison for “20, 25, even 30 years,” they said
they had never seen that much blood from a prisoner
attack.
• 	Officer Orozco’s testimony that “this assault is pretty much
burned in [his] mind” because he had never seen a crime
scene so bloody.
• 	Officer Hunt’s testimony that he had never seen an assault
so bloody.
• 	Chief Halliday’s testimony that even though he had “dealt
with several investigations, even some gunshot wounds,”
he had “never seen anything quite this bloody.”
• 	Investigator Garlock’s testimony that he had never seen a
scene so bloody and that this attack was “more gruesome
than most by far.”
• 	Sergeant Larsen’s testimony that in the time he had worked
at the prison, he had never “seen anything as brutal as this
attack.”
¶75 	In Garza’s view, Counsel should have objected to this
testimony on two primary grounds. First, Garza argues that it
constituted expert testimony and was therefore inadmissible—
both because the State did not provide “the required advance
disclosure,” and because the State did not lay a “foundation”
about the officers’ past experiences with such incidents. Second,
he argues that this testimony was impermissible under State v.
Rammel, 721 P.2d 498 (Utah 1986), because it was “anecdotal”
evidence and was “not susceptible to quantitative analysis.” But
we see no deficient performance on either front.

State v. Garza
20220330-CA 	30 	2026 UT App 128
¶76 	On the expert testimony issue, and even assuming for
argument only that this testimony constituted expert testimony (a
point 	that 	we 	do 	not 	decide), 	Counsel 	could 	have
reasonably concluded that the notice requirements for expert
witnesses did not apply to the officers because they were state
employees. See Utah Code § 77-17-13(6) (stating that the expert-
notice statute “does not apply to the use of an expert who is an
employee of the state or its political subdivisions”). This aspect of
Garza’s claim thus fails. As to the foundation argument, we agree
with the State that Counsel could have reasonably decided that it
would be bad strategy to make a foundation objection, because
doing so would have essentially prompted the prosecution to ask
these officers “how many prison fights [they’d] witnessed” and
explain in more detail “exactly how much worse this one was.”
The failure to raise this objection therefore does not constitute
deficient performance.
¶77 	On 	the 	Rammel 	issue, 	we’ve 	recently 	explained 	that
Rammel and its progeny are concerned with whether an expert
may use “anecdotal statistical evidence to opine on a witness’s
credibility.” State v. Francis, 2025 UT App 104, ¶ 62, 575 P.3d 1197;
see also id. ¶¶ 62–75 (discussing the relevant cases). Garza points
to no authority construing this line of cases so as to prohibit the
use of anecdotal statistical evidence for some other purpose,
however, and our cases have held that it does not. See, e.g., State v.
Whitchurch, 	2024 	UT 	App 	108, 	¶¶ 	39–40, 	554 	P.3d 	1166
(holding that 	defense 	counsel 	reasonably 	did 	not 	object 	to
anecdotal statistical testimony that did not go to veracity); State v.
Nunez-Vasquez, 2020 UT App 98, ¶ 66, 468 P.3d 585 (holding
that the “problem with the testimony” at issue in Rammel and its
progeny 	“was 	that 	it 	focused 	directly 	on 	the 	veracity 	of
another witness’s 	testimony”). 	And 	to 	the 	extent 	that
Garza’s objection in this appeal is about whether the testimony
was “quantifiable,” we think that it was, because these officers
could certainly have testified about how many fights they’d

State v. Garza
20220330-CA 	31 	2026 UT App 128
observed or how bloody the resultant injuries were, and we also
think that Counsel could have reasonably decided it would be bad
strategy to ask them to opine on these things anyway (because,
again, such testimony would have likely strengthened the State’s
case).
¶78 	For these reasons, Counsel did not perform deficiently by
failing to object to the testimony from the officers we’ve recounted
above.9
III. Remaining Ineffective Assistance Claims
¶79 	Finally, Garza raises three more ineffective assistance
claims that we’ll address together:
• 	First, Garza argues that he received ineffective assistance
because Counsel failed to object to testimony from various
officers about his perceived intent.10
9. In a single paragraph, Garza also asserts in passing that the
testimony 	from 	the 	officers 	about 	the 	crime 	scene 	was
inadmissible under rule 403 for reasons that are “[s]imilar to the
problems in exposing jurors to the gruesome photographs.” In
making this argument, Garza makes no meaningful attempt to
differentiate this rule 403 objection from the one he made about
the photographs. For the reasons set forth above, however, we’ve
rejected that argument as it relates to the photographs. We
accordingly reject this one for the same reasons.
10. Here, Garza points to Sergeant Larsen’s testimony opining
that, during the assault, Garza understood that Cellmate was not
a threat, and he also points to Investigator Garlock’s testimony
that he believed Garza intended to kill Cellmate.

State v. Garza
20220330-CA 	32 	2026 UT App 128
• 	Second, 	Garza 	argues 	that 	he 	received 	ineffective
assistance 	because 	Counsel 	did 	not 	object 	to 	certain
instructions relating to homicide by assault.11
• 	Finally, he argues that he received ineffective assistance
because Counsel failed to request an additional lesser
included offense instruction for murder.12
¶80 	As 	discussed, 	Garza 	must 	demonstrate 	that 	he 	was
prejudiced to prevail on any of these claims. To carry this burden,
Garza “must establish that there is a reasonable probability that,
but 	for 	Counsel’s 	unprofessional 	errors, 	the 	result 	of 	the
proceeding would have been different.” Newton v. State, 2025 UT
50, ¶ 34, 585 P.3d 1159 (quotation simplified). “A reasonable
probability that the result would have been different exists” when
11. In the elements instruction for the lesser included offense of
homicide by assault, the jury was told that it had to find that
Garza committed certain actions “[u]nder circumstances not
amounting to aggravated murder, murder or manslaughter.”
Then, in a subsequent definitions instruction, the jury was given
the elements of certain variants of murder as well as the elements
of manslaughter. On appeal, Garza asserts that Counsel should
have argued that giving the jury definitions for murder and
manslaughter “misled the jury” because he had not been charged
with committing those offenses.
12. Garza bases this claim on Utah Code section 76-5-203(2)(b),
under which an actor commits murder if the actor, “intending to
cause serious bodily injury to another,” “commits an act clearly
dangerous to human life that causes the death of the other
individual.” In this claim on appeal, Garza argues that the “intent
to assault and incapacitate” defense he presented at trial would
have been the same for either homicide by assault or murder, so
Counsel’s failure to request an instruction on murder deprived
the jury of “a middle ground.”

State v. Garza
20220330-CA 	33 	2026 UT App 128
the defendant’s “proof is sufficient to undermine confidence in
the outcome.” Id. (quotation simplified). “In making the prejudice
determination, the court must consider the totality of the evidence
before the judge or jury.” Id. (quotation simplified). And when an
appellate 	court 	assesses 	such 	a 	claim, 	it 	must 	“assess
counterfactual scenarios—that is, what would have happened but
for the ineffective assistance.” State v. Garcia-Flores, 2021 UT App
97, ¶ 27, 497 P.3d 847 (quotation simplified). “The counterfactual
analysis requires us to consider a hypothetical—an alternative
universe in which the trial went off without the error.” Id.
(quotation simplified). Here, we conclude that Garza has not
shown that he was prejudiced by any of the failings he identifies,
and this is so whether they’re viewed individually or collectively.
¶81 	As discussed, there was no dispute that Garza violently
assaulted Cellmate. This was caught on video, and Garza openly
admitted as much at trial. Given this, his defense was that he
lacked the intent necessary to support an aggravated murder
conviction. If we imagine a world in which (1) the challenged
testimony from officers relating to Garza’s intent was not given,
(2) the language relating to the homicide by assault instruction
was not given, and (3) the jury was given an additional lesser
included offense instruction for murder, we see no reasonable
probability that the verdict would have been different. This is so
because, in our view, there still would have been overwhelming
evidence that Garza intended to kill Cellmate.
¶82 	Garza 	was 	charged 	with 	aggravated 	murder, 	which
requires proof that he “intentionally or knowingly cause[d] the
death of another individual.” Utah Code § 76-5-202(2)(a). The jury
was instructed that a “person engages in conduct ‘intentionally’
or ‘with intent,’ when his conscious objective is to” (1) “[e]ngage
in certain conduct” or (2) “[c]ause a certain result.” The jury was
further instructed that a “person engages in conduct ‘knowingly’
or ‘with knowledge’ when the person” (1) is “aware of the nature
of his conduct,” (2) is “aware of the particular circumstances

State v. Garza
20220330-CA 	34 	2026 UT App 128
surrounding his conduct,” or (3) is “aware that his conduct is
reasonably certain to cause a particular result.” “It is well-
established that intent can be proven by circumstantial evidence,”
State v. Mclain, 2026 UT App 4, ¶ 26, 585 P.3d 707 (quotation
simplified), and in assessing intent, “a jury is entitled to draw all
reasonable inferences from the facts and from the actions of the
defendant,” State v. Cesspooch, 2024 UT App 15, ¶ 16, 544 P.3d 1046
(quotation simplified).
¶83 	Here, the testimony and evidence presented included the
following:
• 	A 	video 	was 	played 	that 	showed 	Garza 	assaulting
Cellmate for seven minutes, and this video showed Garza
repeatedly jumping into the air, bringing both legs up to
his chest, and “stomping” down on Cellmate with both
feet. The video also showed Garza turning his back to
Cellmate and taking breaks between the punches and
stomps.
• 	Investigator Garlock testified that he had reviewed the
surveillance footage and counted at least 111 kicks and
punches thrown by Garza.
• 	Testimony 	established 	that 	Garza’s 	attack 	produced
copious amounts of blood, with blood splatter reaching
various parts of the cell.
• 	Garza admitted during his testimony that he could have
stopped assaulting Cellmate after just one minute.
• 	Garza admitted that he continued “stomping” Cellmate
even when Cellmate “wasn’t trying to get up.”
• 	Garza admitted that he took several breaks during the
assault where he was “resting” or “pacing back and forth,”

State v. Garza
20220330-CA 	35 	2026 UT App 128
and he also admitted that Cellmate was not trying to get
up during those breaks.
• 	Garza admitted that although there was “no movement”
from Cellmate as of five minutes into the assault, Garza
continued to “stomp him” even though he could see that
Cellmate’s “injuries were pretty bad.”
• 	Garza agreed with an officer’s assessment that he had
stomped, kicked, and punched Cellmate “more than a
hundred times.”
• 	Garza admitted that he had assaulted another cellmate
years earlier and that he had rendered aid to help that
cellmate live. He admitted that, by contrast, he took no
similar actions to assist Cellmate here. And there was also
testimony suggesting that when an officer responded to
the door alarm being triggered, Garza tried to conceal that
an assault was even underway.
• 	Medical Examiner testified that Cellmate’s injuries were
“very extensive” and included brain swelling and bleeding
between the layers of scalp and the brain.
• 	Doctor testified that blunt force trauma comparable to that
suffered by Cellmate typically comes from “high velocity
blunt trauma” like car accidents.
• 	Doctor testified that he had rarely seen a patient arrive at
the hospital “with [the] number of facial fractures that
[Cellmate] had” and that “[t]here was very little that wasn’t
broken on his skull and face.”
• 	Doctor testified that the fractures were consistent with
what he would expect to see if someone was “run over by
a car and their head [was] the primary area of impact.”

State v. Garza
20220330-CA 	36 	2026 UT App 128
• 	Doctor 	testified 	that, 	due 	to 	the 	repeated 	trauma,
Cellmate’s brain swelling “cause[d] [the brain] to push
through the hole in the bottom of the skull.”
¶84 	This is not a case involving just a few blows that were
landed under cloudy circumstances, nor is this a case where the
victim was ever seen fighting back. Rather, this is a case in which,
according to the unrebutted evidence, Garza used extreme force
over a sustained period of time against a victim who was
incapacitated for most (if not all) of the attack. And these weren’t
just body blows—they included repeated instances of Garza
bringing his knees to his chest and then stomping on Cellmate’s
head. Given the force used, the duration of the attack, and the
helpless state of Cellmate for much of it, we simply see no
reasonable probability that, even without the alleged errors, the
jury would have reached any conclusion other than that Garza
intentionally or knowingly caused the death of Cellmate. We
accordingly reject all of these claims for lack of prejudice.13
13. At the close of his brief, Garza invokes the cumulative
prejudice doctrine. Under that doctrine, “we will reverse if the
cumulative effect of the several errors undermines our confidence
that a fair trial was had.” State v. Vine, 2025 UT App 147, ¶ 33 n.3,
580 P.3d 401 (quotation simplified). In Part III, we’ve rejected
several ineffective assistance claims together, and we’ve done so
collectively for lack of prejudice.
The only other claims that we’ve rejected for lack of
prejudice were those addressed in Part I relating to alleged
inadequacies in voir dire. But as discussed, those claims are
subject to a different kind of prejudice inquiry. Unlike ordinary
claims of prejudice, these claims don’t look to the question of
whether, without the error, there was a reasonable probability of
a different outcome at trial. Instead, they ask whether the alleged
(continued…)

State v. Garza
20220330-CA 	37 	2026 UT App 128
CONCLUSION
¶85 	Garza has challenged his conviction on several grounds.
We see no basis for reversing on any of them. We accordingly
affirm.
inadequacy in voir dire led to an actually biased juror deciding
the case.
It’s unclear to us how or even whether the cumulative
prejudice doctrine would operate in this circumstance, where the
court is being asked to assess the combined effects of two wholly
different kinds of prejudice. In his brief, however, Garza makes
no 	real 	effort 	to 	grapple 	with 	this 	analytical 	problem. 	We
accordingly conclude that Garza has not carried his burden of
persuading us that he is entitled to reversal under the cumulative
prejudice doctrine. But in doing so, “we leave open the possibility
that, if some future case arises in which” this issue is “better
presented, we may consider [it] anew.” Keisel v. Westbrook, 2023
UT App 163, ¶ 52 n.9, 542 P.3d 536.