State v. Alzaga

2015 UT App 133
_________________________________________________________
THE UTAH C OURT OF APPEALS
STATE OF UTAH ,
Plaintiff and Appellee,
v.
C RISTIAN A. A LZAGA ,
Defendant and Appellant.
Opinion
No. 20120742-CA
Filed May 29, 2015
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 101401263
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
J UDGE J. FREDERIC VOROS J R . authored this Opinion, in which
J UDGES G REGORY K. ORME and STEPHEN L. R OTH concurred.
VOROS, Judge:
¶1 	Cristian A. Alzaga was convicted of murder, aggravated
assault, and aggravated robbery. All the crimes occurred in
connection with a drug deal under a bridge on the Jordan
Parkway. The State claimed that the victims were at the bridge to
sell marijuana; Alzaga claimed they were there to buy heroin. On
appeal Alzaga challenges certain of the trial court’s evidentiary
rulings, its instructions to the jury on self-defense, and its denial
of his motion for a new trial. He also contends that his trial counsel
rendered constitutionally ineffective assistance. We affirm.

State v. Alzaga
20120742-CA 	2 	2015 UT App 133
BACKGROUND1
The Drug Deal
¶2 	Hannah and her boyfriend, Mark,2 lived together in a tent
near the Jordan River Parkway Trail in Midvale, Utah. The two
scraped by; each sold marijuana, while Mark received food
stamps and donated his blood plasma.
¶3 	In 	May 	2010, 	one 	of 	the 	couple’s 	regular 	customers
contacted Hannah to purchase an ounce of marijuana. Hannah
and Mark agreed to meet the customer for the sale at a spot where
they had met before, on a footbridge by the Jordan River near 3900
South (the Footbridge). When Mark and Hannah arrived for the
sale, they crossed the Footbridge and spotted the customer. With
him was “a bigger guy” who acted as a lookout. Mark also spotted
a third man talking on a cell phone and pacing back and forth on
a larger bridge spanning the Jordan River nearby (the Jordan
River Bridge). Mark described this third man, the defendant, as
having spiked black hair, “kind of crown shaped,” and wearing a
white shirt. Mark did not immediately connect Alzaga with the
customer and the lookout. However, Mark felt concerned that the
lookout had accompanied the customer to the drug deal; Mark
and the customer “had kind of an agreement that you didn’t bring
anybody with you when you came to buy marijuana,” because
“anything could happen when you meet new people.” But
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation
and internal quotation marks omitted).
2. We use pseudonyms to protect the privacy of the victims and
their families.

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Hannah felt comfortable because she had known the customer for
“[p]retty much her entire life.”
¶4 	Mark and Hannah decided to go ahead with the deal. The
customer asked Mark and Hannah to weigh the marijuana, and
Hannah climbed down onto a ledge under the Footbridge to do
so. The customer stood against a post above Hannah, and the
lookout made “sure that nobody was coming while [Hannah]
weighed the marijuana.” Alzaga approached, still talking on his
cell phone. When he and the customer argued briefly, Alzaga
pulled what appeared to be a gun and pointed it at the customer.
The customer looked under the Footbridge at Hannah; Alzaga
then pointed the gun at her and said, “You give me all your shit.”
The Stabbings
¶5 	Hannah backed up under the Footbridge. Alzaga jumped
down after her, and Mark followed. Mark saw that Alzaga and
Hannah “were kind of close together” and saw Hannah jump
back 	from 	Alzaga 	“like 	she 	was 	trying 	to 	get 	away 	from
something.” Mark then grabbed Alzaga by the shoulder from
behind. Alzaga wheeled around, pointed the gun at Mark, and
said, “You can give me all your shit, too.” Mark thought that the
gun looked fake and batted it away from Alzaga.3 But Alzaga also
had a knife. Alzaga slashed at Mark, who jumped back and yelled
at Hannah to run. Hannah walked slowly up the hill and said that
she had been stabbed. Both Alzaga and Mark ran toward Hannah.
Mark then heard the customer yell, “Forget it. It’s done. Let’s go.
Let’s go. Let’s go.” The customer and the lookout fled the scene
toward 3900 South.
¶6 	Alzaga 	reached 	Hannah 	before 	Mark 	did 	and 	began
pulling at her purse. Mark caught up to Hannah and Alzaga and
stepped between them to shield Hannah from Alzaga. Mark told
3. Police later found the gun in some brush by the path that
crossed the Footbridge. It was in fact a toy gun.

State v. Alzaga
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Hannah to let go of the purse. As Mark and Alzaga “struggled
over the purse” Alzaga slashed at Mark and struck him in the eye.
Alzaga had wounded both Mark and Hannah; Mark’s eye was
swollen shut, and Hannah told Mark that she could not breathe.
Mark then relinquished the purse to help Hannah, and Alzaga
took off running. Hannah threw away the marijuana she had in
her pocket and lay down on the ground, struggling to breathe.
Mark grabbed Hannah’s phone and dialed 911. Hannah, eighteen
years old, died at the hospital of a stab wound to the abdomen.
Alzaga’s Version of Events
¶7 	Alzaga 	described 	quite 	a 	different 	encounter. 	He
maintained that he did not kill Hannah and that he stabbed Mark
in self-defense. Alzaga testified that he, the customer, and the
lookout agreed to meet Mark and Hannah at the Footbridge to sell
them a large amount—fifty-two grams—of heroin. The three
drove together to the Jordan River Parkway Trail, walked to the
Footbridge, and after meeting up with Mark and Hannah, Alzaga
weighed a plastic-wrapped package of heroin the size of a tennis
ball and worth $6,000. After Alzaga confirmed its weight, he
claimed that Mark suddenly “just grab[bed] the ball of heroin”
and handed it to Hannah, who “start[ed] running.”
¶8 	Alzaga then testified that Mark began punching him on the
left side of his face and neck. As Mark assaulted him, Alzaga
observed 	the 	customer 	running 	across 	the 	Footbridge 	and
“noticed [the lookout] chasing after [Hannah].” Alzaga told the
jury that he was “high on [e]cstasy” and “just felt terrified” by
Mark’s assault. Alzaga absorbed Mark’s punches for a time but
then started to fall over, and “that’s when” Alzaga “felt the knife”
in his pocket. Alzaga then pulled the knife out of his pocket, and
as Mark punched him, he “countered back with a right hook” and
slashed Mark in the eye. Mark backed away while the lookout
returned with Hannah’s purse in hand. The lookout gave the
purse to Alzaga, and both fled the scene.

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20120742-CA 	5 	2015 UT App 133
¶9 	Alzaga was convicted of murder, a first-degree felony,
Utah 	Code 	Ann. 	§ 76-5-203(3) 	(LexisNexis 	Supp. 	2010);
aggravated 	robbery, 	a 	first-degree 	felony, 	id. 	§ 76-6-302
(LexisNexis 	2008); 	and 	aggravated 	assault, 	a 	second-degree
felony, id. § 76-5-103. He appeals.
ISSUES
¶10 	First, Alzaga contends that the trial court erroneously
admitted Mark’s testimony that Hannah had a life philosophy of
peace and nonviolence and that she consumed no drugs other
than marijuana.
¶11 	Second, Alzaga contends that the trial court erroneously
excluded evidence pertaining to the details of Mark’s prior drug
convictions.
¶12 	Third, Alzaga contends that the trial court erroneously
admitted a prison recording of a conversation between Alzaga
and his girlfriend during which he made derogatory remarks
about Hannah and did not deny killing her.
¶13 	Fourth, Alzaga contends that the trial court erroneously
admitted photographs of the crime scene taken in February 2012
that did not accurately reflect the view of the scene when the
crimes occurred in May 2010.
¶14 	Fifth, Alzaga contends that the trial court erroneously
instructed the jury on the standard for self-defense.
¶15 	Sixth, Alzaga contends that his trial counsel ineffectively
failed to present expert testimony challenging Mark’s eyewitness
identification of him.
¶16 	Finally, Alzaga contends that the trial court erroneously
denied his motion for a new trial, which he made on the basis of
newly discovered exculpatory evidence.

State v. Alzaga
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ANALYSIS
I. Hannah’s Character for Peacefulness
¶17 	Alzaga contends that the trial court “abused its discretion
when 	it 	admitted 	evidence 	of 	[Hannah’s] 	character 	for
peacefulness and aversion to serious drugs.” Alzaga argues that
this evidence was inadmissible character evidence under rules 404
and 405 of the Utah Rules of Evidence. In the alternative, Alzaga
contends that the trial court plainly erred in admitting the
evidence. The State counters that Alzaga inadequately briefed his
plain error claim and that, in any event, he fails to carry the
burden of persuasion because the error, if any, was neither
obvious nor prejudicial.
¶18 	“Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted
in conformity with the character or trait.” Utah R. Evid. 404(a)(1).
Rule 404(a)(2) sets out exceptions to this general prohibition that
apply to defendants and alleged victims in criminal cases:
(A) a 	defendant 	may 	offer 	evidence 	of 	the
defendant’s pertinent trait, and if the evidence is
admitted, the prosecutor may offer evidence to
rebut it;
(B) subject 	to 	the 	limitations 	in 	Rule 	412, 	a
defendant may offer evidence of an alleged
victim’s pertinent trait, and if the evidence is
admitted, the prosecutor may:
i. 	offer evidence to rebut it; and
ii. 	offer evidence of the defendant’s same
trait; and
(C) in a homicide case, the prosecutor may offer
evidence 	of 	the 	alleged 	victim’s 	trait 	of
peacefulness to rebut evidence that the victim
was the first aggressor.

State v. Alzaga
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Id. 	R. 	404(a)(2). 	Evidence 	of 	a 	person’s 	character 	may 	be
introduced by opinion or reputation testimony:
When evidence of a person’s character or character
trait is admissible, it may be proved by testimony
about the person’s reputation or by testimony in the
form of an opinion. On cross-examination of the
character witness, the court may allow an inquiry
into 	relevant 	specific 	instances 	of 	the 	person’s
conduct.
Id. R. 405(a).
¶19 	At trial, Mark testified that Hannah was “just like kind of a
modern-day hippie”; that she “smoked weed, yes, but that’s the
only drug she did”; and that she did not “even want to try
anything else like hallucinogens, nothing else like that.” Mark also
testified that Hannah “loved the peace sign” and that she believed
in the philosophy of “PLUR . . . peace, love, unity, and respect.”
Mark added that he had a peace-sign tattoo on his shoulder and
that “[e]very time [he] would find something with a peace sign on
it, [he] would buy it for her.”
¶20 	Alzaga 	argues 	that 	Mark’s 	testimony 	violated 	rule
404(a)(1) because it constituted evidence of Hannah’s character
trait offered to prove that she acted in conformity with that trait.
Alzaga 	further 	argues 	that 	Mark’s 	testimony 	violated 	rule
404(a)(2) because “[Mark] was the first witness to testify, and . . .
Alzaga’s opening statement could not open the door to the
introduction of positive character evidence.” Because opening
statements “do not constitute evidence and cannot open the door
to character evidence,” State v. Leber, 2009 UT 59, ¶ 16, 216 P.3d
964, Alzaga maintains that the trial court erred in admitting
rehabilitative character evidence before Hannah’s character was
attacked. Alzaga further argues that Mark’s testimony violated
rule 405(a) because “the State did not offer reputation or opinion

State v. Alzaga
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testimony, 	but 	rather, 	specific 	instances 	of . . . [Hannah’s]
conduct.”
¶21 	The State responds that Alzaga failed to preserve this claim
in the trial court. To preserve an issue for appeal, “the issue must
be presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.” 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal quotation
marks omitted). “[I]f a party makes an objection at trial based on
one ground, this objection does not preserve for appeal any
alterative grounds for objection.” State v. Low, 2008 UT 58, ¶ 17,
192 P.3d 867. Counsel objected to Mark’s testimony on relevance
grounds, but Alzaga does not argue relevance on appeal.4 He
instead argues that his relevance objection was sufficient to
preserve his rule 404 and rule 405 claims and that, in any event,
the trial court plainly erred in admitting the character evidence.
¶22 	We 	agree 	with 	the 	State 	that 	Alzaga’s 	objection 	on
relevance grounds did not preserve his appellate claim. His
objection did not convey to the trial court that Alzaga believed the
testimony, 	though 	relevant, 	constituted 	improper 	character
evidence. Accordingly, we analyze his rule 404 and rule 405
claims under the plain error standard.
¶23 	To demonstrate plain error, a defendant must establish that
(1) the trial court committed error, (2) the error should have been
obvious to the court, and (3) the error was harmful. State v. Dunn,
850 P.2d 1201, 1208 (Utah 1993). “To establish that the error should
have been obvious to the trial court, [an appellant] must show that
the law governing the error was clear at the time the alleged error
was made.” State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276; State v.
Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997). Thus, an obvious
error is one that contravenes “settled appellate law,” Ross, 951
4. In fact, the reply brief acknowledges that if, as Mark testified,
Hannah did not use hard drugs, “then she was less likely to have
arranged a heroin transaction, as Mr. Alzaga testified.”

State v. Alzaga
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P.2d at 239, or “the plain language of the relevant statute,” Low,
2008 UT 58, ¶ 41. An error is prejudicial if “absent the error, there
is a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” Dunn, 850 P.2d at 1208–09 (footnote omitted).
¶24 	Alzaga has not established plain error. First, any possible
error in admitting testimony that Hannah smoked marijuana was
not obvious under rule 404(a)(1). Rule 404(a)(1) declares evidence
“of a person’s character or character trait” offered “to prove that
on a particular occasion the person acted in conformity with the
character or trait” inadmissible. Utah R. Evid. 404(a)(1). Here, we
do not think it obvious that testimony that Hannah “smoked
weed, yes, but that’s the only drug she did” describes a “character
trait.” And even if it did, the obviously prohibited use would be
to show that Hannah acted in conformity with this character trait
on this occasion. Acting in conformity with the “character trait”
of smoking marijuana would be to smoke marijuana. But the
State’s theory was not that Hannah smoked marijuana on this or
any other occasion but that she went to the meeting place to sell
marijuana. And it is not obvious that selling marijuana constitutes
acting in conformity with the “character trait” of smoking it. See
R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah
Evidence 191–92 (2014–2015 ed.). Accordingly, whether the State
did or did not “offer evidence of an alleged victim’s pertinent
trait” under rule 404(a)(2)(B) is of no moment.
¶25 	Even if admission of the testimony was obvious error,
Alzaga has not shown prejudice. At most, the testimony that
Hannah smoked marijuana corroborated more directly relevant
testimony. Mark testified without objection that he and Hannah
dealt marijuana and that they went to the rendezvous that day to
sell some to the customer. Given this direct evidence that Hannah
and Mark sold marijuana, the admission of additional evidence
that Hannah smoked marijuana, from which the jury might infer
that 	Hannah 	also 	sold 	marijuana, 	does 	not 	undermine 	our
confidence in the verdict. See Dunn, 850 P.2d at 1208–09.

State v. Alzaga
20120742-CA 	10 	2015 UT App 133
¶26 	The same is true for testimony that Hannah did not use
other drugs, i.e. heroin. It is far from obvious that not using heroin
is a “character trait” and that not arranging to buy heroin
constituted acting in conformity with that character trait on this
occasion. Nor has Alzaga demonstrated a reasonable likelihood of
a more favorable trial outcome absent testimony that Hannah
“smoked weed, yes, but that’s the only drug she did.”
¶27 	Finally, 	we 	cannot 	agree 	that 	Mark’s 	testimony 	that
Hannah’s “philosophy of life was PLUR, . . . peace, love, unity
and respect” obviously violated rule 404(a). While this testimony
may well describe a character trait, Alzaga has not shown that the
State offered the testimony to prove that Hannah acted in
conformity with that character trait on a particular occasion.
While the defense argued that Mark attacked Alzaga, no one
claimed that Hannah acted other than peacefully throughout the
encounter.5
¶28 	In 	sum, 	the 	challenged 	testimony 	was 	not 	obviously
inadmissible, but even if it had been, we cannot say that this
evidence undermines our confidence in the verdict. See id.
II. Mark’s Prior Drug Convictions
¶29 	Alzaga contends that the trial court abused its discretion
by excluding the details of Mark’s prior drug convictions under
rule 609 of the Utah Rules of Evidence.
¶30 	On direct examination, Mark admitted to three prior drug
convictions, two for possession and one for possession with intent
to 	distribute. 	After 	the 	prosecution 	rested, 	defense 	counsel
5. On appeal, Alzaga does not challenge Mark’s testimony that he
shared Hannah’s philosophy of life. Instead, Alzaga argues that
the trial court abused its discretion “when it admitted evidence of
[Hannah’s] character for peacefulness and aversion to serious
drugs” and “when it admitted extensive evidence characterizing
[Hannah] as a peaceful hippie who used only marijuana.”

State v. Alzaga
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announced her intention to recall Mark as a witness. Anticipating
that defense counsel would inquire further into the specifics of
Mark’s 	prior 	drug 	convictions—in 	particular, 	which 	drugs
formed the bases for those convictions—the prosecutor objected
to the inquiry as impermissible under rule 609. Because Mark had
“not denied or tried to explain away those [drug] convictions,”
the prosecutor argued, any inquiry “should be limited to the
nature 	of 	the 	crime, 	the 	date 	of 	the 	conviction, 	and 	the
punishment.” Defense counsel countered that she wanted to
explore the specifics of the drug convictions to impeach Mark.
¶31 	The 	trial 	court 	sustained 	the 	prosecutor’s 	objection,
reasoning that because Mark never testified that he used only
marijuana, rule 609 prohibited questions related to the details of
his prior drug convictions. Alzaga challenges this ruling on
appeal. We review a trial court’s evidentiary rulings for an abuse
of discretion. State v. Davis, 2013 UT App 228, ¶ 13, 311 P.3d 538.
We review a trial court’s interpretation of evidentiary rules for
correctness. State v. Richardson, 2013 UT 50, ¶ 32, 308 P.3d 526.
¶32 	Rule 609 permits a party to attack a witness’s character for
truthfulness using evidence of a criminal conviction. Where, as
here, Mark’s convictions were punishable by imprisonment for
more than one year, “the evidence must be admitted, subject to
Rule 403, . . . in a criminal case in which the witness is not a
defendant.” Utah R. Evid. 609(a)(1)(A).
¶33 	“Rule 609 does not provide a clear answer to whether an
examiner can inquire for impeachment purposes into the nature
of the conviction, the details of the crime, or the circumstances of
the sentence . . . .” R. Collin Mangrum & Dee Benson, Mangrum &
Benson on Utah Evidence 485 (2014–2015 ed.). However, caselaw
makes clear that “it is permissible to inquire into the fact and
nature of the prior conviction, but not the details or circumstances
surrounding the event, absent unusual circumstances.” State v.
Colwell, 2000 UT 8, ¶ 33, 994 P.2d 177. Generally, an examining

State v. Alzaga
20120742-CA 	12 	2015 UT App 133
attorney “may not parade the details of the prior crime in front of
the jury.” State v. Tucker, 800 P.2d 819, 822 (Utah Ct. App. 1990).
¶34 	But there “is an exception to the Rule 609(a) ‘mandate’ that
inquiry be confined to the nature, date and punishment of past
convictions.” Id. at 823. When a witness on direct examination
“attempts to explain away the effect of the conviction or to
minimize his guilt,” he may be “cross-examined on any facts
which are relevant to the direct examination.” Id. (citation and
internal quotation marks omitted). Thus, “when a [witness] seeks
to mischaracterize a prior conviction,” the examining attorney
may use the conviction to contradict the inaccurate testimony.
State v. Levin, 2004 UT App 396, ¶ 26, 101 P.3d 846; see also Tucker,
800 P.2d at 823 (holding that an examining attorney could inquire
into specific details of a witness’s prior crimes after the witness
attempted to minimize his guilt for those crimes).
¶35 	Alzaga claims the benefit of this exception. He argues that
Mark “conveyed the impression to the jury that both he and . . .
[Hannah] were ‘modern day hippies’ who smoked weed but
avoided other drugs” and who “shared a life philosophy of peace
and respect.” This testimony, Alzaga argues, “left the jury with
the impression that [Mark] was a marijuana dealer, and that the
prior convictions . . . Alzaga used to impeach [Mark’s] credibility
likely related to his admitted use and distribution of marijuana.”
Alzaga argues that the trial court should have allowed counsel to
question Mark about the details of the convictions because Mark
“mischaracterize[d] a prior conviction.” See Levin, 2004 UT App
396, ¶ 26. The State counters that Mark did not mislead the jury
and 	therefore 	the 	trial 	court 	acted 	within 	its 	discretion 	in
excluding the evidence. We agree with the State.
¶36 	Mark testified that he had three prior drug convictions. But
he never testified that he used only marijuana or otherwise
attempted 	to 	minimize 	his 	culpability 	for 	the 	prior 	drug
convictions. Instead, he testified to only Hannah’s drug use,
stating that she “smoked weed, yes, but that’s the only drug she

State v. Alzaga
20120742-CA 	13 	2015 UT App 133
did,” and that she did not “even want to try anything else like
hallucinogens, nothing else like that.” Mark’s silence concerning
his own past drug use informs the analysis. In State v. Levin, a
defendant was charged with marijuana possession. 2004 UT App
396, ¶ 1, 101 P.3d 846. Before trial, the trial court granted the
defendant’s motion to exclude evidence of a prior conviction for
marijuana possession. Id. ¶ 5. But the defendant then testified on
direct examination, “I don’t smoke marijuana, and I haven’t
smoked marijuana.” Id. ¶ 24. The trial court then permitted the
State to present evidence of his prior conviction because his
testimony about not smoking marijuana could have misled the
jury. Id. We affirmed. Id. ¶ 27.
¶37 	But here, Mark made no misleading statements about his
drug use or drug convictions that would have opened the door to
detailed questioning. We do not agree with Alzaga that Mark’s
claimed devotion to the principles of “peace, love, unity, and
respect” or his peace-sign tattoo said anything about his prior
drug 	convictions. 	Mark 	did 	not 	“mischaracterize 	a 	prior
conviction,” see id. ¶ 26, or “attempt[] to explain away the effect of
the conviction or to minimize his guilt,” see Tucker, 800 P.2d at 823
(citation 	and 	internal 	quotation 	marks 	omitted). 	And 	his
testimony that Hannah was a “modern-day hippie” who only
“smoked weed” was too attenuated from Mark’s convictions to
open the door to further cross-examination concerning them.
Accordingly, 	the 	trial 	court 	acted 	within 	its 	discretion 	in
excluding detailed testimony about Mark’s past drug convictions.
¶38 	Alzaga next contends that the trial court erred in excluding
the details of Mark’s prior drug convictions under rules 404(a)
and 405(a) of the Utah Rules of Evidence. Alzaga reasons that,
while Mark did not directly testify that he used only marijuana,
he opened the door by suggesting that purchasing heroin would
have been contrary to his and Hannah’s past behavior and
character. Thus, Alzaga should have been allowed on cross-
examination to inquire into specific instances of Mark’s drug use

State v. Alzaga
20120742-CA 	14 	2015 UT App 133
to contradict “the misleading testimony concerning his character
in this case.”
¶39 	Rule 404(a) allows a criminal defendant to “offer evidence
of an alleged victim’s pertinent trait.” Utah R. Evid. 404(a)(2)(B).
And when the State introduces testimonial evidence of a victim’s
positive 	character 	or 	character 	trait, 	rule 	405(a) 	allows 	the
defendant “to discredit the testimony . . . by ‘inquir[ing] into
relevant specific instances of conduct’ that might contradict” the
witness’s assessment of the victim’s character. State v. Martin, 2002
UT 34, ¶ 38, 44 P.3d 805 (alteration in original) (quoting Utah R.
Evid. 405(a)). The State maintains that Alzaga did not preserve
this claim at trial.
¶40 	We agree with the State that Alzaga did not preserve this
claim. To preserve an issue for appeal, “the issue must be
presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.” 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal quotation
marks omitted). Among other things, this standard requires that
the issue be “specifically raised.” See id. “[I]f a party makes an
objection at trial based on one ground, this objection does not
preserve for appeal any alternative grounds for objection.” State
v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867. Because Alzaga “did not
preserve his claims before the trial court, he must establish plain
error, 	ineffective 	assistance 	of 	counsel, 	or 	exceptional
circumstances to warrant review by this court.” State v. Kozlov,
2012 UT App 114, ¶ 28, 276 P.3d 1207 (citing Low, 2008 UT 58,
¶ 19). Alzaga did not object to the trial court’s decision to exclude
details of Mark’s prior drug convictions on rule 404(a) or rule
405(a) grounds. Accordingly, this claim is unpreserved.
¶41 	Alzaga argues in the alternative that his trial counsel
rendered ineffective assistance by not preserving this claim for
appeal. See State v. Weaver, 2005 UT 49, ¶ 18, 122 P.3d 566
(identifying plain error and ineffective assistance of counsel as
two exceptions to the preservation rule). The State responds that

State v. Alzaga
20120742-CA 	15 	2015 UT App 133
Alzaga’s ineffective-assistance-of-counsel claim is inadequately
briefed. Again, we agree with the State.
¶42 	An appellant’s brief “shall contain the contentions and
reasons 	of 	the 	appellant 	with 	respect 	to 	the 	issues
presented, . . . with citations to the authorities, statutes, and parts
of the record relied on.” Utah R. App. P. 24(a)(9). Briefs require
“not just bald citation to authority but development of that
authority and reasoned analysis based on that authority.” State v.
Thomas, 961 P.2d 299, 305 (Utah 1998). “An issue is inadequately
briefed when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing
court.” State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (citation
and internal quotation marks omitted).
¶43 	Here, Alzaga has not demonstrated that his trial counsel
rendered ineffective assistance. In a footnote, Alzaga states, “To
the extent that defense counsel did not specifically argue that Rule
405(a) . . . allowed for the introduction of this evidence she was
ineffective.” In support, he directs us to sections of his brief in
which he discusses error and prejudice as it relates to his
discussion of Hannah’s character for peacefulness. Even if a
generalized reference to other sections of his brief otherwise
satisfied our briefing requirements, Alzaga fails to develop any
meaningful analysis of his argument as it relates to the evidence
at 	issue—Mark’s 	prior 	drug 	convictions. 	Under 	the
circumstances, 	Alzaga 	has 	inadequately 	briefed 	this 	claim.
Accordingly, Alzaga has failed to meet his burden of persuasion
on appeal. See Simmons Media Group, LLC v. Waykar, LLC, 2014 UT
App 145, ¶ 37, 335 P.3d 885.
III. The Prison Recording
¶44 	On appeal, Alzaga challenges the admission of a recording
of a prison telephone conversation between himself and his
girlfriend. In that call, Alzaga told his girlfriend about his

State v. Alzaga
20120742-CA 	16 	2015 UT App 133
altercation with another inmate who had accused him of killing
Hannah:
Alzaga: And then I got into a fuckin’ [fight].
. . . .
Girlfriend: Why?
Alzaga: Cause that fool was like, “Hey, you’re the
one who killed my fuckin’ home girl” like, “I don’t
give a fuck, fool, fuck that bitch,” and that fool
fuckin’ tried to head butt me and shit.
At trial, Alzaga argued that the recording was irrelevant because
it had no tendency to prove or disprove the elements of the crimes
charged. In the alternative, he argued that any relevant probative
value was substantially outweighed by a risk of unfair prejudice
to him because of the language he used. The State responded that
the recording was highly probative because by not denying the
stabbing, Alzaga gave “nearly a confession to the crime.”
¶45 	The trial court denied Alzaga’s motion to exclude the
recording. It ruled that the recording was relevant and that
because the language Alzaga used constituted “fairly common
talk in lots of venues,” the recording was not substantially more
prejudicial than probative.
¶46 	On 	appeal, 	Alzaga 	argues 	that 	the 	recording 	was
substantially 	more 	prejudicial 	than 	probative 	and 	therefore
should have been excluded under rule 403 of the Utah Rules of
Evidence. The State counters that the trial court acted within its
discretion under rule 403 because the jury “could reasonably have
understood [Alzaga’s] not denying that he killed [Hannah] to be
a tacit admission that he did.” Thus, the State argues, the
recording’s probative value exceeded any risk of unfair prejudice.

State v. Alzaga
20120742-CA 	17 	2015 UT App 133
We review a trial court’s evidentiary rulings for an abuse of
discretion. State v. Davis, 2013 UT App 228, ¶ 13, 311 P.3d 538.
¶47 	“The court may exclude relevant evidence if its probative
value 	is 	substantially 	outweighed 	by 	a 	danger 	of . . . unfair
prejudice . . . .” Utah R. Evid. 403. Alzaga argues that this rule, as
applied in State v. Maurer, requires that we reverse the trial court’s
ruling admitting the prison recording. 770 P.2d 981 (Utah 1989).
¶48 	In 	Maurer, 	our 	supreme 	court 	reversed 	a 	murder
conviction 	based 	on 	the 	State’s 	introduction 	at 	trial 	of 	an
inflammatory letter written by the defendant to his victim’s
father. Id. at 987. The letter taunted the victim’s father, stating,
“You might have prevented [the murder]. I hope you feel guilt
over it.” Id. at 982. The defendant wrote that “[i]t was a great
feeling 	to 	watch 	her 	die.” 	Id. 	The 	letter 	“display[ed] 	his
callousness toward the killing” in “profane and vulgar language”
manifesting “complete insensitivity to this tragedy.” Id. at 983.
Our supreme court held that even though portions of the letter
were relevant to the defendant’s guilt, the trial court erred in
admitting the entire letter because much of it contained “little or
no relevance to the central issues.” Id. The court concluded that
any 	relevance 	the 	balance 	of 	the 	letter 	had 	was 	“clearly
outweighed” 	by 	the 	“repulsiveness 	of 	[the 	defendant’s]
expressions 	toward 	the 	victim.” 	Id. 	(citation 	and 	internal
quotation 	marks 	omitted). 	The 	court 	noted 	the 	risk 	of 	“a
conviction based on a generalized assessment of character” when
“the 	conversation 	include[d] 	obscenities, 	ethnic 	slurs, 	and
otherwise coarse language.” Id. at 985 (emphasis, citation, and
internal quotation marks omitted). The court thus concluded that
admission of the entire letter was improper under rule 403.
¶49 	Alzaga argues that here, as in Maurer, the prison recording
risked “provoking an emotional response from the jury” and
triggering its “instinct to punish,” making “a conviction based on
a generalized assessment of character likely.” We disagree.

State v. Alzaga
20120742-CA 	18 	2015 UT App 133
¶50 	The recording in this case had substantial probative value.
Evidence is relevant “if it has any tendency to make a fact more
or less probable than it would be without the evidence.” Utah R.
Evid. 401(a). The short exchange between Alzaga and another
inmate, as recounted by Alzaga to his girlfriend, centered on the
identity of Hannah’s killer, a central question in the case. When
Alzaga told his girlfriend that another inmate said to him,
“[Y]ou’re the one who killed my . . . girl,” the jury could have
concluded that the other inmate had accused him of killing
Hannah. And the jury could have interpreted Alzaga’s non-denial
as consistent with guilt.
¶51 	More importantly, unlike in Maurer, the trial court did not
exceed its discretion in concluding that the danger of unfair
prejudice did not substantially outweigh the probative value of
the recording. True, Alzaga employed coarse language. But as the
trial court observed, the words he used have lost much of their
shock value in contemporary culture. These words alone were
unlikely to induce the jury to return “a conviction based on a
generalized assessment of character.” See Maurer, 770 P.2d at 985
(citation and internal quotation marks omitted). Moreover, the
core concern with the letter in Maurer was not so much the letter’s
language but what it revealed about the defendant’s character: he
wrote it to inflict additional emotional pain upon the victim’s
father, literally to add insult to injury. Alzaga’s prison comments
lack this quality. Thus, even if Alzaga’s choice of words risked
some unfair prejudice, we cannot conclude that the trial court
abused its discretion in ruling that the recording’s probative value
was 	not 	substantially 	outweighed 	by 	the 	danger 	of unfair
prejudice. See Utah R. Evid. 403.
IV. Winter Photographs of the Crime Scene
¶52 	Alzaga contends that the trial court abused its discretion
by admitting three photographs of the crime scene taken in
February 2012, even though the crimes took place in May 2010.
He argues that the photographs should have been excluded as

State v. Alzaga
20120742-CA 	19 	2015 UT App 133
irrelevant 	and 	unfairly 	prejudicial. 	He 	also 	argues that 	the
photographs lacked proper authentication.
¶53 	The issue concerns whether leafy branches present in May
when 	the 	crimes 	occurred, 	but 	absent 	in 	the 	February
photographs, would have blocked an eyewitness’s view of the
crime. Mark testified that when he met the customer on the
Footbridge, he observed Alzaga walking across the Jordan River
Bridge. An eyewitness to the crimes testified that he could not see
the Jordan River Bridge from the crime scene, while the detective
recalled being able to see the Jordan River Bridge from the crime
scene when he investigated the crime. Despite the foliage, the
detective could see “at least a fourth or a third” of the Jordan River
Bridge’s span, and he could see the top and bottom of the Jordan
River Bridge. To demonstrate this, the detective took photographs
of the view of the Jordan River Bridge from the Footbridge on the
second day of trial, in February.
¶54 	Defense 	counsel 	objected 	to 	the 	admission 	of 	the
photographs 	on 	relevance 	grounds. 	She 	argued 	that 	the
photographs were irrelevant because the charged crimes took
place in May, whereas the photographs were taken in February.
They would present a misleading view of the crime scene, she
argued, because the February photographs did not show the May
foliage that purportedly obscured the view between the Jordan
River Bridge and the Footbridge.
¶55 	The trial court overruled the objection. First, it concluded
that the photographs satisfied rule 402’s relevance requirement
because Mark and the detective each testified that the foliage had
not blocked their views. Second, the trial court concluded that
under rule 403 the probative value of the photographs, while
limited, 	was 	not 	substantially 	outweighed 	by 	any 	unfair
prejudice, 	because 	the 	detective 	testified, 	and 	the 	jury
understood, that he took the photographs in February 2012, not in
May 2010.

State v. Alzaga
20120742-CA 	20 	2015 UT App 133
¶56 	On 	appeal, 	Alzaga 	contends 	that 	the 	photographs
inaccurately depicted the view of the crime scene and “likely
misled the jury into crediting [Mark’s] disputed testimony.”
Because, “[a]s the judge noted, the probative value of the evidence
was extremely low” and, Alzaga claims, “its tendency to mislead
the jury was high,” Alzaga argues that the trial court should have
excluded the photographs under rules 402 and 403. The State
responds 	that 	the 	trial 	court 	acted 	within 	its 	discretion 	in
admitting 	the 	photographs 	because they 	were 	relevant 	and
because their probative value was not substantially outweighed
by the danger of unfair prejudice. We review a trial court’s
evidentiary rulings for an abuse of discretion. State v. Davis, 2013
UT App 228, ¶ 13, 311 P.3d 538.
¶57 	Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence.”
Utah 	R. 	Evid. 	401(a). 	Under 	rule 	402, 	relevant 	evidence 	is
admissible unless barred by a constitution, statute, or other rule.
See id. R. 402. “Together these rules establish a very low bar that
deems evidence with even the slightest probative value relevant
and presumptively admissible.” Richardson, 2013 UT 50, ¶ 24
(citation and internal quotation marks omitted). Here, in light of
conflicting testimony regarding whether a clear sight line existed
between the Jordan River Bridge and the Footbridge, the trial
court 	acted 	within 	its 	discretion 	in 	ruling 	the 	photographs
relevant. The photographs had some “tendency to make a fact
more or less probable than it would be without the evidence”
because they tended to demonstrate whether from his position on
the Footbridge Mark could have seen Alzaga on the Jordan River
Bridge. See Utah R. Evid. 401.
¶58 	Rule 403 allows the trial court to exclude relevant evidence
if its “probative value is substantially outweighed by a danger
of . . . unfair prejudice.” Id. R. 403. Here, the photographs posed
little risk of unfair prejudice. Although the photographs depicted
the view of the Jordan River Bridge from the Footbridge as it
existed in February 2012, not in May 2010, the detective explained

State v. Alzaga
20120742-CA 	21 	2015 UT App 133
this fact to the jury. Further, the photographs show the reach of
the tree limbs and suggest where the foliage may have obscured
the view. Thus, even if the photographs posed some slight danger
of unfair prejudice, we cannot agree that the trial court exceeded
its 	discretion 	in 	determining 	that 	such 	danger 	did 	not
substantially outweigh the probative value. See Utah R. Evid. 403.
¶59 	Alzaga next argues that the trial court erred in admitting
the photographs because they were not properly authenticated
under rule 901 of the Utah Rules of Evidence. The State challenges
the claim as unpreserved, and contends that in any event witness
testimony authenticated the photographs. We agree with the State
that the claim is unpreserved and reject it on that ground. See 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
¶60 	In any event, we detect no error in the admission of the
photographs. 	Evidence 	must 	be 	properly 	authenticated 	or
identified before it is admitted into evidence at trial:
To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding
that the item is what the proponent claims it is.
Utah R. Evid. 901(a). Rule 901’s authentication requirement
applies to photographs. State v. Horton, 848 P.2d 708, 714 (Utah Ct.
App. 1993). “[I]f a competent witness with personal knowledge of
the 	facts 	represented 	by 	a 	photograph 	testifies 	that 	the
photograph accurately reflects those facts, it is admissible.” State
v. Purcell, 711 P.2d 243, 245 (Utah 1985) (citation omitted).
¶61 	Here, 	the 	State 	produced 	evidence—the 	detective’s
testimony—sufficient to support a finding that the photographs
were of what the State claimed they were, namely, depictions of
the crime scene as it appeared in February 2012. The detective did
not testify, nor did the State claim, that the photographs depicted
the crime scene as it appeared in May of 2010. Accordingly, the

State v. Alzaga
20120742-CA 	22 	2015 UT App 133
trial court acted within its discretion in admitting the photographs
under rule 901. See Utah R. Evid. 901(a).
V. Self-Defense Jury Instructions
¶62 	Alzaga contends that the trial court instructed the jury
erroneously on self-defense relating to the aggravated assault
against Mark. The trial court instructed the jury that a person may
use 	force 	reasonably 	necessary 	to 	defend 	against 	another’s
imminent use of unlawful force. The court then explained that a
person may not lawfully use defensive force when “attempting to
commit, committing, or fleeing after the commission, or the
attempted commission of a felony.” The court also instructed the
jury that Alzaga did not have to prove self-defense but that if any
evidence created a reasonable doubt as to his guilt, the jury should
acquit:
Defendant does not have to prove he acted in self-
defense but if any evidence shown on the question
of self-defense creates a reasonable doubt in your
mind 	whether 	he 	is 	guilty 	of 	Aggravated
Assault . . . , you are to find him not guilty of that
count. If the evidence of self-defense creates a
reasonable doubt in your mind about his guilt, he is
entitled to an acquittal on [the Aggravated Assault
count].
Defense counsel approved this instruction.
¶63 	The court orally supplemented the initial instruction by
telling the jury that “distribution of a controlled substance, heroin,
is 	a 	felony.” 	Defense 	counsel 	objected 	to 	the 	supplemental
instruction at sidebar but stated no legal basis for the objection on
the record. After closing arguments, and after the jury began
deliberations, counsel stated on the record a rationale for her
objection: the supplemental instruction allowed the jury to find
that Alzaga committed a felony offense—distribution of heroin—

State v. Alzaga
20120742-CA 	23 	2015 UT App 133
without first finding the elements of that offense beyond a
reasonable doubt. The prosecutor countered that the instruction
was a correct statement of the law and that Alzaga had testified to
distributing heroin. The trial court overruled the objection.
¶64 	Alzaga challenges the jury instructions on four grounds.
First, he argues that the oral instruction violated his right to self-
defense under Article I, section 1 of the Utah Constitution. “All
men,” that provision declares, “have the inherent and inalienable
right to enjoy and defend their lives and liberties . . . .” Utah
Const. art. 1, § 1. Alzaga contends that the court’s oral instruction
abridged his right to defend his life in two respects. First, it
precluded self-defense even if the felony he was committing at the
time of the aggravated assault—distribution of heroin—was
nonviolent. Second, the instruction drew no causal connection
between the distribution of heroin and the victim’s use of force.
The State responds that Alzaga did not preserve his constitutional
claim, and in that any event, any error was harmless.
¶65 	Under Utah’s self-defense statute, a person is justified in
using lethal force “only if the person reasonably believes that
force is necessary to prevent death or serious bodily injury to the
person or a third person as a result of another person’s imminent
use of unlawful force, or to prevent the commission of a forcible
felony.” Utah Code Ann. § 76-2-402(1)(b) (LexisNexis Supp. 2010).
But a person “is not justified” in using any defensive force “if the
person is attempting to commit, committing, or fleeing after the
commission 	or 	attempted 	commission 	of 	a 	felony.” 	Id.
§ 76-2-402(2)(a)(ii).
¶66 	Alzaga does not dispute that he was dealing heroin at the
time of the aggravated assault. Nor does he dispute that dealing
heroin qualifies as a felony. Rather, he argues that it is not a
forcible felony and that only attempting to commit, committing,
or fleeing after committing forcible felonies should bar a defendant
from invoking self-defense. He acknowledges that the statutory
text does not contain this limitation but argues that failure to read

State v. Alzaga
20120742-CA 	24 	2015 UT App 133
“felony” as “forcible felony” produces absurd results. Cf. In re
Z.C., 2007 UT 54, ¶ 11, 165 P.3d 1206 (“[A] court should not follow
the literal language of a statute if its plain meaning works an
absurd result.” (citation and internal quotation marks omitted)).
“If the statute were read literally,” Alzaga reasons, “a man guilty
of theft of utility services could not defend himself in his own
home.”
¶67 	We agree with the State that any possible error in the oral
jury instruction was harmless. See Utah R. Crim. P. 30(a). Any
possible error here was harmless because the jury found Alzaga
guilty of a forcible felony. A “forcible felony” includes “arson,
robbery, and burglary as defined in Title 76, Chapter 6 [of the
Utah Code], Offenses Against Property,” as well as “[a]ny other
felony offense which involves 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)(a), (b). Title 76,
Chapter 6 includes the crime of aggravated robbery. The jury
convicted Alzaga of aggravated robbery, and he does not argue
on appeal that the facts presented at trial were insufficient to
support that conviction. We have previously held that a defendant
who kills another while committing an 	aggravated robbery
cannot avail himself of the self-defense statute. State v. Soules, 2012
UT App 238, ¶ 4, 286 P.3d 25.6 Thus, Alzaga’s first self-defense
claim fails under any applicable standard of review.
¶68 	Second, 	Alzaga 	argues 	that 	instructing 	the 	jury 	that
distribution of heroin is a felony allowed the jury to find him
ineligible for self-defense without first requiring the jury to find
all of the elements of heroin distribution, an uncharged offense,
beyond a reasonable doubt. The trial court orally instructed the
6. Alzaga did not argue self-defense to the charge of aggravated
robbery. Indeed, “[t]he premise[] of an accused being permitted
to raise the defense of self-defense to the charge of robbery
borders on the absurd.” Sutton v. State, 776 A.2d 47, 71 (Md. Ct.
Spec. App. 2001).

State v. Alzaga
20120742-CA 	25 	2015 UT App 133
jury, “I’m instructing you further that distribution of a controlled
substance, heroin, is a felony.” The State responds that Alzaga did
not timely preserve this claim and that he fails to assert any
exception to the preservation rule on appeal. And even if Alzaga
timely preserved his claim, the State argues, any error was
harmless.
¶69 	This claim fails for the same reason that Alzaga’s first
challenge 	to 	the 	instruction 	failed: 	any 	possible 	error 	was
harmless. “Any error, defect, irregularity or variance which does
not affect the substantial rights of a party shall be disregarded.”
Utah R. Crim. P. 30(a). As explained above, because Alzaga
committed a forcible felony—aggravated robbery—he was “not
justified in using force” against Mark. See Utah Code Ann.
§ 76-2-402(2)(a). Accordingly, any error in instructing the jury that
distribution of heroin is a felony was harmless.
¶70 	Third, Alzaga argues that the court’s written self-defense
instruction did not adequately convey the State’s burden to
disprove self-defense beyond a reasonable doubt. He argues that
counsel performed ineffectively for failing to correct this error.
The State responds that Alzaga has inadequately briefed this
claim and that he has therefore not satisfied his burden of
persuasion 	on 	his 	ineffective-assistance-of-counsel claim. 	“In
determining a claim of ineffective assistance of counsel raised for
the first time on appeal, we must decide whether [the] defendant
was deprived of the effective assistance of counsel as a matter of
law.” State v. Aguirre-Juarez, 2014 UT App 212, ¶ 6, 335 P.3d 896
(alteration in original) (citation and internal quotation marks
omitted); see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶71 	To succeed on an ineffective-assistance-of-counsel claim,
an appellant must show that (1) “counsel’s performance was
deficient 	in 	that 	it 	‘fell 	below 	an 	objective 	standard 	of
reasonableness’” and (2) “counsel’s performance was prejudicial
in that ‘there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have

State v. Alzaga
20120742-CA 	26 	2015 UT App 133
been different.’” Menzies v. Galetka, 2006 UT 81, ¶ 87, 150 P.3d 480
(quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). An
appellant 	must 	rebut 	“a 	strong 	presumption 	that 	counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 689
(citation and internal quotation marks omitted). Therefore, any
ambiguities or deficiencies in the appellate record “simply will be
construed 	in 	favor 	of 	a 	finding 	that 	counsel 	performed
effectively.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.
“[P]roof 	of 	ineffective 	assistance 	of 	counsel 	cannot 	be 	a
speculative matter but must be a demonstrable reality.” Allen v.
Friel, 2008 UT 56, ¶ 21, 194 P.3d 903 (alteration in original)
(citation and internal quotation marks omitted).
¶72 	The trial court’s instruction explained that Alzaga had no
burden to prove self-defense and that the existence of reasonable
doubt concerning whether he acted in self-defense required
acquittal:
Defendant does not have to prove he acted in self-
defense but if any evidence shown on the question
of self-defense creates a reasonable doubt in your
mind 	whether 	he 	is 	guilty 	of 	Aggravated
Assault . . . , you are to find him not guilty of that
count. If the evidence of self-defense creates a
reasonable doubt in your mind about his guilt, he
is 	entitled 	to 	an 	acquittal 	on 	[the 	Aggravated
Assault count].
Alzaga complains on appeal that this instruction does not state
explicitly that the State bore the burden of disproving self-defense
beyond a reasonable doubt.
¶73 	“[T]he failure of counsel to make motions or objections
which would be futile if raised does not constitute ineffective

State v. Alzaga
20120742-CA 	27 	2015 UT App 133
assistance.” Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983)
(citation and internal quotation marks omitted). Here, a trial
objection would have been futile because the jury instructions
adequately instructed the jury on the burden of proof.
¶74 	Our supreme court’s decision in State v. Knoll supports this
conclusion. 712 P.2d 211 (Utah 1985). In Knoll, the trial court
approved an instruction that did not state explicitly that the State
retained 	the 	burden 	of 	disproving 	self-defense 	beyond 	a
reasonable doubt:
[I]f upon the whole of the evidence, including that
produced by the defendant, . . . or otherwise shown
in evidence, the jury entertains a reasonable doubt
as to the defendant’s guilt of any element necessary
to constitute the charged [offense] or one included
therein, the defendant is entitled to an acquittal.
Id. at 215. The court held that even though “the trial court did not
give an instruction that stated that the prosecution had to prove
the absence of self-defense beyond a reasonable doubt,” the
instruction nevertheless “constituted a correct statement of the
law.” Id. The instruction clearly conveyed that the jury should
consider any evidence of self-defense, that the burden of proof
remained with the State at all stages of the trial, and that “if the
jury entertained a reasonable doubt about whether defendant
acted in self-defense, it should acquit.” Id.
¶75 	Here, as in Knoll, even though the instruction did not
expressly state that the prosecution had to prove the absence of
self-defense beyond a reasonable doubt, it made clear that the jury
must consider the defense, that the burden of proof remained
with the State, and that Alzaga did “not have to prove he acted in
self-defense.” And in stating that “if any evidence shown on the
question of self-defense creates a reasonable doubt in your mind”
Alzaga was “entitled to an acquittal,” the instruction correctly
conveyed that the State retained the burden of proof of disproving

State v. Alzaga
20120742-CA 	28 	2015 UT App 133
self-defense beyond a reasonable doubt. Accordingly, because the
instruction 	correctly 	allocated 	the 	burden 	of 	proof 	under
controlling precedent, counsel did not perform deficiently in not
objecting to it.
¶76 	Finally, Alzaga argues that the verdict form did not
identify the State’s burden of proving aggravated assault, and
disproving self-defense, beyond a reasonable doubt. Because this
claim is unpreserved, he argues that the trial court plainly erred
and that his trial counsel ineffectively failed to correct this error.
The State responds that Alzaga has inadequately briefed his claim
and thus has not met his burden of persuasion on appeal.
¶77 	“We review the jury instructions, including the jury verdict
forms, for correctness.” State v. Johnson, 2014 UT App 161, ¶ 11,
330 P.3d 743, cert. granted, 343 P.3d 708 (Utah 2015); cf. State v. S.H.,
2002 UT 118, ¶ 11, 62 P.3d 444. To demonstrate plain error, a
defendant must establish that (1) an error exists, (2) the error
should have been obvious to the trial court, and (3) the error was
harmful; that is, “absent the error, there is a reasonable likelihood
of a more favorable outcome for the appellant, or phrased
differently, our confidence in the verdict is undermined.” State v.
Dunn, 850 P.2d 1201, 1208–09 (Utah 1993). “In determining a claim
of ineffective assistance of counsel raised for the first time on
appeal, we must decide whether [the] defendant was deprived of
the effective assistance of counsel as a matter of law.” State v.
Aguirre-Juarez, 2014 UT App 212, ¶ 6, 335 P.3d 896 (alteration in
original) (citation and internal quotation marks omitted); see also
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶78 	“[F]ailure to adequately instruct the jury ‘concerning the
burden of proof as to self-defense,’ is reversible error and requires
a new trial.” State v. Garcia, 2001 UT App 19, ¶ 18, 18 P.3d 1123
(quoting State v. Torres, 619 P.2d 694, 696 (Utah 1980)). “The duty
to properly instruct the jury applies to the verdict form.” State v.
Campos, 2013 UT App 213, ¶ 42, 309 P.3d 1160. “[W]hen reviewing
an alleged error in the jury instructions, ‘we look at the jury

State v. Alzaga
20120742-CA 	29 	2015 UT App 133
instructions in their entirety.’” Id. ¶ 64 (quoting State v. Maestas,
2012 UT 46, ¶ 148, 299 P.3d 892). “[I]f taken as a whole the[] [jury
instructions] fairly instruct the jury on the law applicable to the
case, the fact that one of the instructions, standing alone, is not as
accurate as it might have been is not reversible error.” Id. (first
alteration in original) (citation and internal quotation marks
omitted).
¶79 	Here, the verdict form read in isolation did not explain the
State’s burden of disproving self-defense beyond a reasonable
doubt:
We, 	the 	jury . . . unanimously 	find 	the
defendant . . . [a]s 	to 	Count 	3, 	AGGRAVATED
ASSAULT:
__ NOT GUILTY
__ GUILTY
If you find the defendant Guilty, by finding he
committed the assault . . . answer these questions:
Did the State prove beyond a reasonable
doubt that defendant intentionally inflicted serious
bodily injury on [Mark]? If YES, stop and sign the
verdict form. If NO, answer the next question.
__ YES
__ NO
Did the State prove beyond a reasonable
doubt that defendant assaulted [Mark] and used a
dangerous weapon:
__ YES
__ NO

State v. Alzaga
20120742-CA 	30 	2015 UT App 133
¶80 	Alzaga cites State v. Campos in support of his contention
that the trial court plainly erred in approving the instruction and
that counsel ineffectively failed to correct the error. 2013 UT App
213, 309 P.3d 1160. In Campos, we held that the verdict form at
issue affirmatively, but erroneously, instructed the jury on the
burden of proof for self-defense. Id. ¶ 43. The instructions stated
that if the jury found Campos guilty of attempted murder with
resulting injury, they should then decide whether “beyond a
reasonable doubt, . . . the defense of Imperfect Self Defense applies
in this case.” Id. ¶ 39. We explained that “[t]he fundamental
problem with the verdict form” was “that it require[d] an
affirmative defense to be established beyond a reasonable doubt.”
Id. ¶ 41. But under Utah law, “[a] defendant need only produce
enough evidence to raise a reasonable basis for the affirmative
defense.” Id. “Once that initial showing is made, the burden shifts
to the [S]tate to prove to the jury, beyond a reasonable doubt, that
the defense lacks merit.” Id. (citation and internal quotation marks
omitted).
¶81 	Here, unlike in Campos, the verdict form did not convey
that an affirmative defense requires the defendant to prove self-
defense beyond a reasonable doubt. Indeed, the verdict form did
not address the burden of proof with respect to self-defense at all.
But, 	as 	explained 	above, 	the 	jury 	instructions 	elsewhere
adequately conveyed the State’s burden with respect to Alzaga’s
claim of self-defense. The verdict form instructed the jury to
decide “yes” or “no” only as to whether “the State proved beyond
a reasonable doubt” that Alzaga committed aggravated assault
with a dangerous weapon. That statement incorporates the State’s
burden of proof pertaining to self-defense because the jury could
have found Alzaga guilty beyond a reasonable doubt only after
concluding that his evidence of self-defense did not create a
reasonable doubt as to this guilt.
¶82 	Accordingly, the trial court did not plainly err in approving
the verdict form, nor did counsel perform ineffectively by not
objecting to it.

State v. Alzaga
20120742-CA 	31 	2015 UT App 133
VI. Mark’s Eyewitness Identification
¶83 	Alzaga next contends that counsel “ineffectively failed to
present key expert testimony which would have established
reasonable doubt of . . . Alzaga’s involvement.” Alzaga seeks a
new trial “so that he may present this testimony.” The State
responds that Alzaga’s claim fails because “by the time of trial,
counsel had reasonably opted to concede that [Alzaga] was at the
crime scene and argue[d] that he was the victim, rather than that
he had been misidentified.” “In determining a claim of ineffective
assistance of counsel raised for the first time on appeal, we must
decide whether [the] defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Aguirre-Juarez,
2014 UT App 212, ¶ 6, 335 P.3d 896 (alteration in original) (citation
and internal quotation marks omitted); see also State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 162.
¶84 	During the investigation, Mark described Alzaga to police
officers as “5-foot 11, 130–140 pounds, skinny, tall, [with] spikey
[sic] hair . . . [that] looked like a crown.” A few days after the
attacks, Mark examined a six-person photo array prepared by
police with “as many consistencies . . . with the suspect” as
possible. Mark identified Alzaga from the photo lineup, but only
after having taken a narcotic painkiller and feeling “a little bit
loopy” and after having looked at the photos for “quite some
time” and “certainly [for] longer than most take to look at a
lineup.”
¶85 	At trial, defense counsel challenged the identification as
“unreliable and unduly suggestive,” but the trial court denied the
motion. Counsel did not request an instruction advising the jury
of the factors relevant in evaluating eyewitness identifications,
nor did she challenge the identification with expert testimony or
cross-examination.
¶86 	“‘[C]ounsel’s decision to call or not to call an expert witness
is a matter of trial strategy, which will not be questioned and

State v. Alzaga
20120742-CA 	32 	2015 UT App 133
viewed as ineffectiveness unless there is no reasonable basis for
that decision.’” State v. Houston, 2015 UT 40, ¶ 80 (alteration in
original) (quoting State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993)).
“Thus, to demonstrate that his counsel was ineffective in retaining
and presenting expert witnesses, [a defendant] must ‘rebut the
strong presumption that under the circumstances, [counsel’s]
action might be considered sound trial strategy.’” Id. (second
alteration in original) (quoting Taylor v. State, 2007 UT 12, ¶ 73,
156 P.3d 739). “This is because there are ‘countless ways to
provide effective assistance in any given case,’ and ‘[e]ven the best
criminal defense attorneys would not defend a particular client in
the same way.’” Id. (alteration in original) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)).
¶87 	On appeal, Alzaga argues that counsel’s failure to call an
expert witness to challenge Mark’s eyewitness identification
tracks the facts in State v. Maestas, where our supreme court held
that defense counsel ineffectively failed to challenge eyewitness
identifications. 1999 UT 32, ¶ 31, 984 P.2d 376. There, shortly after
the crime was committed by a man wearing a mask and a cap
covering his head, witnesses identified the defendant, who was
handcuffed and surrounded by police cars with their lights
shining on him. Id. ¶¶ 2, 23. The defendant’s sole defense “was
the unreliability of the eyewitness identifications.” Id. ¶ 25. The
court noted that all of the witnesses’ “identifications were tainted
by a highly-suggestive show-up.” Id. ¶ 29. The court held that
“unless obvious tactical reasons exist to forego an instruction, trial
counsel . . . should request a cautionary eyewitness instruction.”
Id. ¶ 28.
¶88 	The present case bears little resemblance to Maestas. Here,
obvious tactical considerations prompted counsel’s decision to
forego a misidentification defense. First, multiple witnesses, not
just Mark, placed Alzaga around and at the scene of the crime. In
addition, police found Alzaga’s toy gun, bearing his fingerprints,
in brush adjacent to the Footbridge where eyewitnesses saw him
discard it. This evidence supports counsel’s reasonable strategic

State v. Alzaga
20120742-CA 	33 	2015 UT App 133
choice to abandon any defense that Alzaga was not present at the
scene.
¶89 	Most important, at trial Alzaga acknowledged on the stand
that he had been present at the crime scene.7 He admitted to
stabbing Mark but maintained that he acted in self-defense. This
defense was incompatible with, and at least as reasonable as, a
misidentification defense. “[C]ounsel’s decision to choose one of
two alternative, reasonable trial strategies is not grounds for an
ineffective assistance of counsel ruling.” State v. Lucero, 2014 UT
15, ¶ 53, 328 P.3d 841. We thus cannot conclude that Alzaga’s
counsel performed deficiently in not calling an eyewitness expert.
Accordingly, Alzaga has not demonstrated ineffective assistance
of counsel.
VII. New Trial Motion
¶90 	Finally, Alzaga contends that the trial court abused its
discretion in denying his motion for a new trial. He argues that he
“must receive a new trial based on newly discovered exculpatory
evidence, [specifically, his] cell phone, which had text messages
advertising a sale of heroin on the day of the murder.” He argues
that “the cell phone, and its contents, rendered a different result
probable.” The State responds that the trial court acted within its
discretion because Alzaga “has not adequately challenged the
trial court’s findings that he did not exercise reasonable diligence
in trying to produce the evidence, that the evidence was merely
cumulative, and that the evidence would not have altered the
outcome.” “When reviewing a trial court’s denial of a motion for
a new trial, we will not reverse absent a clear abuse of discretion
by the trial court.” State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551
7. The decision whether to testify lies exclusively with the
accused. See Menzies v. State, 2014 UT 40, ¶ 118 n.119, 344 P.3d 581;
see also Utah R. Prof’l Conduct 1.2(a) (“In a criminal case, the
lawyer shall abide by the client’s decision, after consultation with
the lawyer, as to . . . whether the client will testify.”).

State v. Alzaga
20120742-CA 	34 	2015 UT App 133
(citation and internal quotation marks omitted). We review the
legal standards applied by the trial court for correctness and its
factual findings for clear error. Id.
¶91 	The 	jury 	convicted 	Alzaga 	of 	aggravated 	robbery,
aggravated assault for stabbing Mark, and murder for killing
Hannah. Alzaga filed a timely motion for a new trial, arguing that
newly discovered exculpatory evidence—text messages on his
cell phone—corroborated his testimony that he distributed heroin
on the day of the crimes. The text messages suggested that Alzaga
was selling drugs around the time of the crimes. One message,
sent to ten different people, offered to sell heroin. Other text
messages contained offers to buy and sell cocaine, “pills,” and
“hash.”
¶92 	Alzaga told his defense counsel about the text messages
approximately a month before the trial. Alzaga told counsel he
believed that his girlfriend had the cell phone and that she would
produce it. Alzaga’s girlfriend did not produce the cell phone at
that time. About two weeks before trial, counsel again met with
Alzaga, who said that his girlfriend would deliver the phone in a
couple of days; again, she failed to do so. The State informed
Alzaga’s counsel that Alzaga’s girlfriend went to California to
avoid being subpoenaed for trial. Counsel did not request the trial
court’s assistance in procuring the cell phone, nor did she request
a continuance.
¶93 	The day after Alzaga was convicted on all charges, his
girlfriend dropped the cell phone off with counsel. In his motion
for a new trial, Alzaga argued that because he “had no ability to
force his girlfriend to produce the phone,” the trial court “abused
its discretion in refusing to grant a new trial.” The State responded
that the text messages were not newly discovered. In denying
Alzaga’s motion for a new trial, the court found that (1) with
reasonable 	diligence, 	Alzaga 	could 	have 	discovered 	and
produced the text messages at trial; (2) the text messages were
cumulative of Alzaga’s own testimony and other corroborative

State v. Alzaga
20120742-CA 	35 	2015 UT App 133
evidence that he sold heroin; and (3) admission of the text
messages at trial would not have made a different result probable.
¶94 	A trial court may grant a new trial motion based on newly
discovered evidence. See e.g., State v. Martin, 2002 UT 34, ¶ 45, 44
P.3d 805; see also Utah R. Crim. P. 24(a). Newly discovered
evidence warrants a new trial only if it (1) “could not with
reasonable diligence have been discovered and produced at the
trial,” (2) is not “merely cumulative,” and (3) would “render a
different result probable on the retrial of the case.” Pinder, 2005
UT 15, ¶ 66 (citation and internal quotation marks omitted). In
assessing a motion for a new trial, we review the trial court’s
factual findings for clear error. State v. Billingsley, 2013 UT 17, ¶ 9,
311 P.3d 995. And in determining whether newly discovered
evidence warrants granting a new trial, we “afford trial judges a
wide range of discretion.” Pinder, 2005 UT 15, ¶ 66 (citation and
internal quotation marks omitted).
¶95 	Here, Alzaga fails to demonstrate that the trial court’s
factual findings were clearly erroneous. To begin with, Alzaga
does not marshal the evidence supporting the trial court’s denial
of his motion for a new trial. A “party who fails to identify and
deal with supportive evidence will never persuade an appellate
court to reverse under the deferential standard of review.” State v.
Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645. In any event, the record
supports each of the trial court’s factual findings. Accordingly,
Alzaga fails, as a matter of law, to satisfy his burden of persuasion.
¶96 	First, the record supports the trial court’s finding that
Alzaga could have discovered and produced the text messages at
trial. As the trial court observed, Alzaga knew about the cell
phone, its contents, and its whereabouts for nearly two years
before trial, but he failed to notify counsel about the phone until
mere weeks before trial. Thus, even though Alzaga attempted to
retrieve the phone in the weeks preceding trial, he failed to
exercise reasonable diligence under the circumstances when he
did not attempt to retrieve it, or tell his attorney about it, earlier.

State v. Alzaga
20120742-CA 	36 	2015 UT App 133
Furthermore, the clear weight of the evidence does not contravene
the trial court’s finding that counsel did not exercise reasonable
diligence in retrieving the cell phone. Though aware of the cell
phone 	before 	trial, 	counsel 	nevertheless 	did 	not 	request 	a
continuance or seek to enlist the court’s assistance in procuring
the cell phone. Accordingly, because the record supports the trial
court’s factual findings, it did not clearly err by finding that the
defense did not exercise reasonable diligence in producing the cell
phone at trial.
¶97 	Second, the record supports the trial court’s finding that
the text messages were cumulative of Alzaga’s own testimony
and other evidence that he sold heroin. Alzaga testified that he
sold heroin, and other evidence corroborated that testimony. For
instance, text messages recovered from Alzaga’s girlfriend’s
phone corroborated his testimony that he sold heroin in the days
preceding the crimes. Accordingly, the trial court did not clearly
err in finding that the text messages on Alzaga’s phone were
cumulative of evidence already presented to the jury.
¶98 	Finally, the record supports the trial court’s finding that
retrying the case with the text messages in evidence would not
make a different result probable. Alzaga’s testimony—and the
text messages on Alzaga’s girlfriend’s phone—supported his
contention that he dealt heroin. But no party disputed that Alzaga
dealt heroin. The case centered on who committed the crimes and
under what circumstances, not whether one or more of the
principals 	dealt 	drugs. 	Alzaga’s 	text 	messages 	provide 	no
evidence about who committed the crimes. Furthermore, given
the abundance of other evidence tending to prove Alzaga’s guilt,
the text messages would not have made a different result more
probable. Accordingly, the trial court did not clearly err by
finding that the text messages would not have made a different
result probable.
¶99 	Because Alzaga has failed to show that the trial court
clearly erred in its factual findings, he cannot demonstrate that the

State v. Alzaga
20120742-CA 	37 	2015 UT App 133
trial court exceeded its wide discretion by denying his motion for
a new trial.
CONCLUSION
¶100 	In sum, Alzaga has failed to carry the burden of persuasion
on the claims he has raised on appeal. We therefore affirm his
convictions.