State v. Percival

2020 UT App 75

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SANTANA JAMES PERCIVAL,
Appellant.

Opinion
No. 20180377-CA
Filed May 7, 2020

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 151903580

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Santana James Percival was the only person seen with a
knife during a brawl that broke out at a party attended by
numerous gang members. In the melee, four people were
stabbed, including one victim who suffered life-threatening stab
wounds to his heart and lung. Percival appeals his convictions
for aggravated assault resulting in serious bodily injury, a
second-degree felony, and aggravated assault, a third-degree
felony. He claims that his trial counsel was constitutionally
ineffective in failing to request a special verdict form to ensure
jury unanimity regarding the victim of the third-degree-felony
aggravated assault. He also claims that the district court abused
its discretion by admitting gang evidence. He has not shown
prejudice on either claim and we therefore affirm.
State v. Percival

BACKGROUND 1

¶2 On the night of March 13, 2015, twenty-three-year-old
Percival hosted a party at the third-floor apartment he shared
with his seventeen-year-old girlfriend, Danielle. 2 Marco and
Nicholas attended the party, along with several teenagers,
including Adriana, Sandra, and Carlos. There was “[a] lot of
drinking” at the party.

¶3 Percival was the leader of a gang called the Sureños
Villains, a subset of the Sureños gang. The party itself was “a
Friday the 13th celebration party” because the number “13 is
correlated with [the] Sureños.” Partygoers wore “tan Dickies and
white shirts,” clothing associated with the gang.

¶4 Nicholas and Carlos were members of the Washington
Boys gang. The Washington Boys are another subset of the
Sureños gang. The Sureños Villains and the Washington Boys
were friendly with each other, and both groups used blue as
their gang color.

¶5 During the party, Percival and Nicholas started arguing
near the bathroom. One witness thought that the argument was
precipitated by Percival saying something about Nicholas’s red
hat, which was a color associated with a different gang, while
another thought that Nicholas had criticized Percival’s
leadership of the Sureños Villains. In any event, Percival and
Nicholas were in “each other’s faces yelling back and forth.”

1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict
and recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2,
114 P.3d 551 (cleaned up).

2. We use pseudonyms to protect the privacy of the victims and
witnesses in this case.

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¶6 When the argument got louder, at least two of the
partygoers tried to intervene. But Percival “kept coming
towards” Nicholas, trying to fight. Nicholas left the apartment
and went downstairs to the ground level of the apartment
building.

¶7 But the conflict did not end there. Percival ran down the
stairwell and “tackled” Nicholas on the grass. They started
punching each other. Carlos then saw Percival stab Nicholas
with a knife he observed in Percival’s hand. Nicholas fell to the
ground, and Adriana and Sandra saw that he was bleeding from
his chest.

¶8 Adriana tried to pick up Nicholas, turning her back to
Percival. Adriana then felt Percival “hit [her] in the back” and
felt a “numb feeling” in the side of her hip. Although she did not
immediately realize that she had been stabbed, Adriana knew
that Percival struck her. Sandra also saw Percival hit Adriana in
the side and Sandra tried to stop Adriana’s bleeding.

¶9 Also while Percival was hitting Nicholas, who was on the
ground, Danielle approached Percival and put her hand on his
back. She then felt “hits” to her face and stomach without seeing
who hit her and she “blacked out.” But Adriana and Sandra both
saw Percival fall on top of Danielle.

¶10 Percival resumed hitting Nicholas, who was still on the
ground and bleeding. Marco joined Percival, and the two
“started kicking” and continued punching Nicholas.

¶11 Eventually, Adriana, Sandra, and Carlos helped get
Nicholas into a car so that they could take him to the hospital.
Nicholas’s injuries required emergency lifesaving measures,
including CPR and surgery. He had two penetrating wounds to
his chest, which caused his lung to collapse and created a hole
and bleeding in his heart. Although Nicholas survived his
injuries, he suffered permanent cognitive impairment.

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¶12 The police were contacted and they investigated at the
hospital and at the apartment complex. They discovered that, in
addition to Nicholas, three other individuals had stab wounds.
Adriana was wounded in her left hip, Danielle had two stab
wounds to her shoulder and back, and Marco had a small stab
wound to his lower leg. They also observed that Percival had
blood on his clothes and injuries on his right hand, including to
the base of his thumb and to the “web” between his thumb and
forefinger.

¶13 The partygoers, however, were less than forthcoming
about the events of the evening. Expecting that the police
would be called, Adriana, Sandra, and Carlos “all decided to
lie” because, among other things, they thought they “were
going to get locked up” because they had been drinking at
a party while underage and “ended up fighting.” In keeping
with their plan, Adriana and Sandra later told police that “a
black guy came towards” them near a high school and stabbed
Nicholas. They both admitted at Percival’s trial that this story
was a lie.

¶14 The State charged Percival with one count of attempted
murder or, alternatively, second-degree-felony aggravated
assault resulting in serious bodily injury (Count One) for his acts
against Nicholas. It also charged him with one count of
aggravated assault as a third-degree felony (Count Two) for the
other stabbings.

¶15 The case proceeded to a four-day jury trial. Adriana,
Danielle, Sandra, and Carlos testified about the altercation.
Although Sandra testified “there was something in [Percival’s]
hand” that she “assumed” was a knife because “it looked like a
knife” and she saw bleeding, Carlos was the only witness who
specifically testified that he saw the knife in Percival’s hand. But
Adriana, Sandra, and Danielle testified that they had seen
Percival with a knife on other occasions. Adriana testified that
shortly before the day of the party, Percival showed her his

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yellow pocketknife, “flipping it open and stuff.” Sandra had
also witnessed Percival show off a switchblade pocketknife.
And Danielle testified that Percival kept a knife in his right
pocket.

¶16 Throughout trial, the defense repeatedly objected to the
introduction of evidence of Percival’s gang membership and
activity and evidence of other aspects of gang activity. The
defense argued that the gang evidence was, among other things,
irrelevant and unfairly prejudicial. The district court overruled
the objections but noted that it would “watch[] . . . closely . . . in
terms of the need to get so deeply into this gang business.” The
court thus allowed Danielle, Sandra, and Carlos to provide
evidence about the gangs. Supra ¶¶ 3–5. Additionally, over the
defense’s objection, the State presented expert testimony from a
detective (Detective), who testified about the Sureños gang in
Utah, its symbols, customs, and codes of conduct.

¶17 Relevant to this appeal, the district court instructed the
jury, in Instruction 33, that to convict on aggravated assault as
charged in Count Two, it had to find beyond a reasonable doubt
each of the following elements:

1. That the defendant, Santana James Percival;

2. Intentionally, knowingly, or recklessly;

3. Committed an Assault;

4. That caused bodily injury to [Adriana] OR
[Danielle] OR [Marco];

5. And used a dangerous weapon; AND

6. The defense of self-defense or defense of a third
person does not apply.

No special verdict form was given to the jury, and Percival’s trial
counsel made no request for a special verdict form.

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¶18 The jury returned a verdict finding Percival guilty of
aggravated assault resulting in serious bodily injury on Count
One and guilty of aggravated assault on Count Two. Percival
appeals.

ISSUES AND STANDARDS OF REVIEW

¶19 First, Percival contends that his trial counsel was
constitutionally ineffective in failing to request a special verdict
form on Count Two to ensure jury unanimity on the identity of
the victim of that aggravated assault. To prevail on a claim of
ineffective assistance of counsel, a defendant must establish both
that his “counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law.” State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344
(cleaned up).

¶20 Second, Percival contends that the district court erred by
admitting, over his objection, evidence of gang affiliations and
customs. “[W]e review a district court’s ultimate decision to
admit or exclude evidence for an abuse of discretion.” State v.
Tulley, 2018 UT 35, ¶ 26, 428 P.3d 1005. “A district court abuses
its discretion only when its decision to admit or exclude
evidence is beyond the limits of reasonability.” Id. (cleaned up).

ANALYSIS

¶21 Percival raises two issues for our consideration: one claim
of ineffective assistance of counsel and one preserved claim of
evidentiary error. To succeed, Percival must demonstrate that he
was prejudiced either by his trial counsel’s deficient
performance or the district court’s evidentiary error. See Utah R.
Crim. P. 30(a) (“Any error, defect, irregularity or variance which

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State v. Percival

does not affect the substantial rights of a party shall be
disregarded.”); State v. Garcia, 2017 UT 53, ¶ 37, 424 P.3d 171
(explaining that under the test for an ineffective assistance claim,
“it is the defendant’s burden to show that he was prejudiced by
his counsel’s performance”); State v. Reece, 2015 UT 45, ¶ 33, 349
P.3d 712 (“[T]he defendant generally bears the burden to
demonstrate that the error he complains of affected the outcome
of his case.”).

¶22 To establish prejudice for an ineffective assistance claim,
the appellant “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 694 (1984). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. Likewise, establishing prejudice from a district court’s alleged
evidentiary error requires the same showing. See State v. Mitchell,
2013 UT App 289, ¶ 40 & n.8, 318 P.3d 238 (“Ordinary preserved
error shares this same prejudice standard.”); see also State v.
Landon, 2014 UT App 91, ¶ 3, 326 P.3d 101 (“We will not
overturn a jury verdict for the admission of improper evidence if
the admission of the evidence did not reasonably affect the
likelihood of a different verdict.” (cleaned up)); id. (“‘For an
error to require reversal, the likelihood of a different outcome
must be sufficiently high to undermine confidence in the
verdict.’” (quoting State v. Knight, 734 P.2d 913, 920 (Utah
1987))).

¶23 For the reasons below, we conclude that Percival has not
established prejudice with respect to either of his claims.

I. Ineffective Assistance Claim

¶24 Percival first contends that his trial counsel was
ineffective in failing to request a special verdict form requiring
the jury to identify a victim for the aggravated assault on Count
Two. The consequence of trial counsel’s failing, Percival asserts,

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State v. Percival

is that the jury may not have been unanimous on an element of
the offense. Instruction 33 allowed the jury to convict Percival if
the jury found all the elements beyond a reasonable doubt,
including the element that Percival “caused bodily injury to
[Adriana] OR [Danielle] OR [Marco].” Because of the phrasing
on this element and the lack of a special verdict form, Percival
asserts that “it is not possible to determine whether the jury was
unanimous in its decision regarding any particular victim or
combination of victims” on Count Two.

¶25 The State counters that “[t]here was no reasonable
likelihood of a different verdict with a special verdict instruction,
given the overwhelming evidence that only [Percival] stabbed
people at the party.” In other words, the State argues that it is
not reasonably likely that the jury would have “failed to agree
on a victim” had it been given a special verdict form for Count
Two.

¶26 Article I, Section 10 of the Utah Constitution guarantees
the right to a unanimous verdict in criminal cases. This provision
“requires unanimity as to each count of each distinct crime charged
by the prosecution and submitted to the jury for decision.” State
v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314. And “a jury must be
unanimous on all elements of a criminal charge for a conviction
to stand.” Id. ¶ 29 (cleaned up). A jury is not unanimous,
however, if the jury instructions allow for conviction “with each
juror deciding guilt on the basis of a different act by [the]
defendant.” State v. Saunders, 1999 UT 59, ¶ 62, 992 P.2d 951. For
purposes of our analysis, we assume that Percival is correct that
Instruction 33 in conjunction with the lack of a special verdict
form violated his right to a unanimous verdict and that his trial
counsel performed deficiently by not requesting a special verdict
form.

¶27 But it is not enough to show deficient performance;
Percival must also show prejudice. This means that he must
show a reasonable likelihood that the use of a special verdict

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form would have led to a more favorable result. Specifically, he
must show that had the jury been given a special verdict form
asking it to identify a specific victim, there is a reasonable
likelihood that the jury would not have agreed on any one
victim of the aggravated assault on Count Two. See Strickland v.
Washington, 466 U.S. 668, 694 (1984).

¶28 Here, Percival’s entire prejudice argument in his opening
brief is confined to his statement that “prejudice is shown, i.e.,
there is a reasonable probability that but for . . . counsel’s
unprofessional errors, there is a reasonable likelihood of a more
favorable outcome for [him].” (Cleaned up.) But “[m]erely
repeating the legal prejudice standard is insufficient.” Archuleta
v. Galetka, 2011 UT 73, ¶ 52, 267 P.3d 232. Percival recites the
prejudice standard without discussing the evidence and without
articulating how the jury’s verdict on Count Two is reasonably
likely to have been different had a special verdict form been
used. That does not satisfy the prejudice prong of the Strickland
test for ineffective assistance of counsel. See id.; see also State v.
Murphy, 2019 UT App 64, ¶ 42, 441 P.3d 787 (concluding that the
appellant did not satisfy the prejudice prong of Strickland
because he limited his prejudice argument “to the reiteration of
the legal standard of the prejudice prong”).

¶29 Further, based on our review of the evidentiary picture,
we see no reasonable likelihood that the jury would not have
agreed on any one victim on Count Two. We agree with the State
that the evidence overwhelmingly established that Adriana,
Danielle, and Marco were all stabbed during the fracas and that
Percival was the sole person wielding a knife. 3

3. In fact, when discussing the wording of Instruction 33 at trial,
the State suggested that because the evidence supported three
aggravated assaults against these three victims, it could have
charged Percival with two more counts of aggravated assault.
(continued…)

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¶30 The police documented stab wounds to all three possible
victims, and the testimony strongly showed that Percival
inflicted those injuries during the fight. Adriana testified that
when she tried helping Nicholas, she felt Percival stab her in the
hip. Sandra also saw Percival hit Adriana and saw her bleeding
afterward.

¶31 As for Danielle, both Adriana and Sandra saw Percival
make contact with her when he fell on top of her. And Danielle
herself testified that when she put her hand on Percival’s back,
she was hit and blacked out. She realized later that she had been
stabbed in the shoulder and back. Though Danielle did not see
who hit her, before she was hit, she saw in her proximity only
Percival and Nicholas. And Nicholas was on the ground and, by
all accounts, unarmed.

¶32 Finally, regarding Marco, Adriana and Sandra testified
that Percival and Marco together kicked and punched Nicholas
on the ground, and when police arrived on the scene, Marco had
a small stab wound to his lower leg. This evidence is consistent
with Percival recklessly stabbing Marco in the leg as the two
men kicked and hit Nicholas. See State v. Loeffel, 2013 UT App 85,
¶¶ 7–10, 300 P.3d 336 (explaining that recklessness is sufficient
to prove aggravated assault).

¶33 Significantly, Percival was the only person seen wielding
a knife during the brawl. He also had injuries on his hand that
could be consistent with using a knife to stab others. Because of
the overwhelming evidence that Percival stabbed Adriana,
Danielle, and Marco, it is unlikely that the jury would have

(…continued)
Percival benefited from the State’s decision to charge only a
single assault count when the evidence was likely more than
sufficient to sustain convictions with respect to all three victims.

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acquitted Percival on Count Two had it been asked to agree on a
single victim.

¶34 In sum, Percival has not demonstrated that he was
prejudiced by his counsel’s failure to request a special verdict
form to ensure jury unanimity on Count Two. His ineffective
assistance claim therefore fails. 4

II. Claim of Evidentiary Error

¶35 Next, Percival claims that the district court abused its
discretion by admitting “very substantial gratuitous and
unnecessary references to [his] gang membership.” Percival
attacks the “sheer bulk” of the gang-related evidence, asserting
that “[i]t was not necessary that the case be steeped in gang
trivia, gang customs, gang signs and symbols, and all manner of
gang matters, as it was.” But in so arguing, he admits that, to a
point, “[t]he gang angle had its place.” Indeed, he agrees with
the State that “the fight was apparently gang related, and
therefore the fact that Percival and [Nicholas] got in to an
argument related to gang issues was integral to the State’s case.”
(Cleaned up.) Yet he claims “the overwhelming amount of
gangland lore and collateral references . . . were so unnecessary”
and were “of a nature to inherently generate a propensity for
undue prejudice.”

4. Percival alternatively claims that the district court plainly
erred in failing to require a special verdict form as a necessary
supplement to Instruction 33 to ensure jury unanimity regarding
the victim of the aggravated assault. Under the rubric of plain
error, an appellant must show the existence of an obvious and
prejudicial error. State v. Beverly, 2018 UT 60, ¶ 37, 435 P.3d 160.
Because “the prejudice test is the same whether under the claim
of ineffective assistance or plain error,” id. (cleaned up),
Percival’s plain-error argument likewise fails.

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State v. Percival

¶36 In response, the State emphasizes Percival’s concession
that “some gang evidence was proper.” It then asserts that “[t]he
admission of gang evidence beyond what [Percival] concedes
was proper was ‘unlikely to increase by any significant degree
the negative impact of the properly admitted gang evidence.’”
(Quoting State v. High, 2012 UT App 180, ¶ 52, 282 P.3d 1046.)

¶37 This court has acknowledged “there may be some unfair
prejudice inherent in making the jury aware of gang affiliation in
a criminal context.” State v. Garcia, 2017 UT App 200, ¶ 33, 407
P.3d 1061 (cleaned up). Thus, “gang evidence should be viewed
with caution due to the risk that it may carry some unfair
prejudice, including potentially leading the jury to attach a
propensity for committing crimes to defendants who are
affiliated with gangs or allow its negative feelings towards gangs
to influence its verdict.” Id. (cleaned up). Yet “in the appropriate
context, gang evidence has probative value warranting its
admission even over claims of prejudice.” Id. (cleaned up); see
also State v. Gonzalez, 2015 UT 10, ¶¶ 37, 40, 345 P.3d 1168 (stating
that “even where gang-related evidence is prejudicial, it is not
necessarily unfairly prejudicial and therefore should be admitted
where it has high probative value,” and giving examples of
properly admitted gang-related evidence, including evidence
“explaining the circumstances surrounding a crime and the
victim’s and the defendant’s intent”); High, 2012 UT App 180,
¶ 23 (collecting cases where gang-related evidence was properly
admitted).

¶38 We agree with the State that Percival does not specify the
point at which the gang evidence crossed the threshold from
proper to improper. In other words, Percival has not identified
specific error and what the district court should have done
differently. And as a practical matter, without more assistance
from Percival in this regard, we struggle to see error in the
district court’s admission of the gang evidence. See State v.
Graves, 2019 UT App 72, ¶¶ 27–28, 442 P.3d 1228 (explaining that
when the appellant conceded “that the trial court properly

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allowed into evidence at least some references” to his heritage
and the appellant did “not identify any specific juncture in the
trial . . . at which he believe[d] the references crossed the line
from individually permissible to cumulatively impermissible,” it
was not enough for the appellant to assert that “‘at some point’
. . . the repeated references . . . became error”); see also State v.
Ogden, 2018 UT 8, ¶ 24 n.3, 416 P.3d 1132 (“An appellant that
fails to devote adequate attention to an issue is almost certainly
going to fail to meet its burden of persuasion.” (cleaned up));
Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (explaining that
where an appellant does not “allege specific errors of the lower
court, [this] court will not seek out errors in the lower court’s
decision”).

¶39 In any event, although some of the gang evidence in this
case was perhaps needlessly cumulative, we “will not overturn a
jury verdict based on erroneous admission of evidence unless
the defendant has been prejudiced as a result.” State v. Toki, 2011
UT App 293, ¶¶ 44, 46, 263 P.3d 481. To establish prejudice,
Percival must show that had the district court excluded gang
evidence, there is a reasonable probability that he would not
have been convicted on both counts. See State v. Mitchell, 2013 UT
App 289, ¶ 40 & n.8, 318 P.3d 238.

¶40 “Bald assertions and platitudes are not enough to satisfy
an appellant’s burden to provide an adequate argument” on
prejudice. State v. Nelson, 2015 UT 62, ¶ 40, 355 P.3d 1031. All
Percival offers are bald assertions of prejudice. For example, he
asserts that “[t]here was a strong likelihood” the gang evidence
“affected the outcome of the trial to [his] detriment” and that
“[b]ased upon the foregoing irrelevant and unnecessary gang
references and the inflammatory effect upon the jury, it cannot
be doubted that the jury was prejudiced.” These bare assertions
do not meet Percival’s burden of persuasion.

¶41 Even setting aside the “gang angle,” there was
overwhelming evidence that during the altercation, Percival

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inflicted life-threatening, permanent injuries to Nicholas and
also stabbed Adriana, Danielle, and Marco. Given the strong
evidence of Percival’s guilt, we see no reasonable likelihood of a
different verdict even had the district court excluded some of the
gang evidence. See State v. Landon, 2014 UT App 91, ¶ 3, 326 P.3d
101 (“We will not overturn a jury verdict for the admission of
improper evidence if the admission of the evidence did not
reasonably affect the likelihood of a different verdict.” (cleaned
up)); State v. Ferguson, 2011 UT App 77, ¶¶ 19–20, 250 P.3d 89
(considering the strength of the other evidence of guilt to
determine whether harm resulted from the improper admission
of certain evidence).

¶42 The jury was also admonished that the gang evidence was
“not admitted to prove a character trait of the defendant nor to
show that the defendant acted in a manner consistent with such
a trait.” The court advised the jury that it could consider the
gang “evidence, if at all, for the limited purpose of identifying
the defendant and the defendant’s intent or motive.” When a
jury is so instructed, we “assume that the jury acted in
accordance with [the] instruction in rendering its verdict.” High,
2012 UT App 180, ¶ 53.

¶43 Percival nevertheless suggests that the gang evidence
“may very well have convinced the jury that [he] was simply a
bad person.” Any damage in this regard, however, was likely
already done by the admission of the fact that Percival was a
gang member, which he concedes was proper. Moreover, the
verdict in this case suggests that the jury was not easily
hoodwinked into convicting Percival on the ground that he was
“simply a bad person.” Rather, on Count One, the jury acquitted
Percival of the most serious charge against him, attempted
murder, and instead it convicted him on the lesser included
offense of aggravated assault with serious bodily injury. We
agree with the State that this result undermines Percival’s
supposition that the gang evidence unfairly prejudiced the
defense. See Toki, 2011 UT App 293, ¶¶ 3, 47 (explaining that the

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result in that case—an acquittal on an aggravated assault charge
and conviction on weapons charges only—was unlikely if the
gang evidence was “so prejudicial that it aroused the jury to
hostility or otherwise improperly influenced the jurors”).

¶44 In short, even had Percival established at what point the
gang evidence became improper, he has not shown that he was
prejudiced by any error in its admission. We therefore discern no
reversible error in the district court’s decision to admit the gang
evidence. 5

CONCLUSION

¶45 Percival has not shown prejudice resulting from his trial
counsel’s failure to request a special verdict form on the identity
of the victim of the third-degree-felony aggravated assault. He
also has not shown prejudice resulting from the district court’s
admission of gang evidence. Accordingly, we affirm.

5. Percival also suggests that we reverse for a new trial due to
the “cumulative effect” of the errors in this case. Under the
cumulative error doctrine, we will reverse “only if the
cumulative effect of the several errors undermines our
confidence that a fair trial was had.” State v. Martinez-Castellanos,
2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned up). In other words,
reversal is appropriate under this doctrine only when “there is a
reasonable probability that, but for the several errors, a different
verdict or sentence would have resulted.” Id. ¶ 39 n.27. We
conclude that even viewing the assumed errors collectively,
there is no reasonable probability that absent those errors a
different verdict would have resulted. See id.

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