State v. Garcia

This opinion is subject to revision before final
publication in the Pacific Reporter

2017 UT 53

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Petitioner and Cross-Respondent,
v.
YESHA ANTHONY GARCIA,
Respondent and Cross-Petitioner.

No. 20160451
Filed August 23, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Robin W. Reese
No. 101904923

Attorneys:
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,
Salt Lake City, for petitioner
Teresa L. Welch, Salt Lake City, for respondent

JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.

JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Yesha 1 Anthony Garcia fired four shots at a car driving past
his house. The car’s driver, Garcia’s cousin Keith, was the intended
_____________________________________________________________
1 The pleadings spell Mr. Garcia’s first name as Yesha, but it
appears that the correct spelling is Yshiah. For the sake of
consistency, we maintain the spelling reflected in the district court
and court of appeals records.
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Opinion of the Court

target. Keith’s step-daughter Kanesha was also aboard when Garcia
took aim. The State charged Garcia with attempted murder and
possession of a firearm by a restricted person. 2
¶2 At trial, Garcia presented evidence of an imperfect self-
defense. The district court decided—and the State conceded—that
sufficient evidence of imperfect self-defense existed to present the
defense to a jury. The jury was also instructed on the lesser-included
offense of attempted manslaughter. But the jury instruction
explaining how imperfect self-defense interacted with attempted
manslaughter misstated the law. 3 The jury convicted Garcia on the
attempted murder and possession of a firearm by a restricted person
charges.
¶3 Garcia argued to the Utah Court of Appeals that his counsel
provided ineffective assistance when he failed to object to the
attempted manslaughter jury instruction. Garcia also argued that the
district court erred by not granting a directed verdict on the
possession of a firearm charge because there was insufficient
evidence to convict him. Garcia claimed that to the extent his
insufficiency claim was unpreserved, his counsel provided
ineffective assistance with respect to that claim. The court of appeals
found that the defective jury instruction prejudiced Garcia’s trial and
vacated his attempted murder conviction. State v. Garcia, 2016 UT
App 59, ¶ 26, 370 P.3d 970. The court of appeals affirmed the
possession of a firearm by a restricted person charge, concluding that
even if Garcia’s counsel had erred, the error was not prejudicial. Id.
¶ 37.
¶4 The State seeks certiorari review of the court of appeals’
ruling. The State argues that the court erred by presuming prejudice
without considering whether, without counsel’s error, “[t]he
likelihood of a different result [was] substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). Garcia
cross-petitions and argues that the court of appeals erred when it

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2 The State also charged Garcia with attempted murder for shots
fired at the car passenger, two counts of felony discharge of a
firearm, and one count of possession of drug paraphernalia. These
charges are not relevant to the issues on appeal.
3 Garcia is represented by different counsel on appeal.

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found that his counsel had not preserved his argument concerning
the constitutionality of the unlawful user in possession statute.
Garcia also claims that the court of appeals erred when it found that
his counsel had not provided ineffective assistance when he
neglected to argue that the term “unlawful user” was
unconstitutionally vague as applied to him.
¶5 We reverse the court of appeals with respect to the jury
instruction argument, but we uphold the denial of Garcia’s motion
for directed verdict.
BACKGROUND
¶6 Yesha Anthony Garcia sold drugs professionally. Garcia
believed his cousin Keith had stolen a portion of his cocaine stash
that Garcia kept at his cousin Tish’s apartment. This enraged Garcia.
He beat up both Keith’s wife and step-daughter, Kanesha. Garcia
then called Keith’s mom on the phone, telling her he was going to
kill Keith.
¶7 That same evening, Garcia sent his live-in girlfriend to her
family’s home, and—loaded gun in hand—waited for Keith to
appear. Eventually, Garcia saw Keith and Kanesha—who claim they
were looking for Garcia’s address to give to the police—drive past
his house, turn around, and drive past again. Garcia ran out his front
door and unloaded his revolver in the car’s direction. Garcia failed to
hit the car. Kanesha called the police.
¶8 A little while later, a police officer found Garcia walking in
his neighborhood. At trial, the officer who made first contact with
Garcia on the street testified about their encounter. The officer
testified that he called over to Garcia, who walked toward the officer
and—unprompted—put his hands on the hood of the police car.
Garcia told the officer that his name was Chancey Garcia. When
asked to spell Chancey, Garcia couldn’t. When the officer asked him
“how that was possible that a grown man didn’t know how to spell
his name,” Garcia became defensive. The officer told Garcia that he
was looking for someone who had committed a crime and that, if it
wasn’t him, he could be on his way. According to the officer, at that
point, Garcia began looking from side to side in a way that, in the
officer’s opinion, seemed like Garcia was “looking for an escape
route.” After that, the officer ordered Garcia to sit down on the

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ground. Garcia complied. Another officer approached with “the
complainant,” who identified Garcia as the shooter.4
¶9 After Garcia was identified, he was cuffed and placed in a
police car. A detective who interviewed Garcia testified that Garcia
told him where the gun Garcia had fired could be found. The
detective also reported that Garcia insisted he “hadn’t done anything
wrong. He was just protecting himself and his family, that sort of
thing.”
¶10 Garcia spoke with a sergeant at the police station later that
morning. In the interview, Garcia explained his frame of mind when
Keith and Kanesha drove past his house:
A: I don’t know what the f*** [Keith]’s gonna do. I
thought he was gonna throw a cocktail in my house.
Q: A Molotov cocktail?
A: Yeah. That’s why I was there. If it wasn’t for that
I would’ve been in Wendover or something. I would
try and let this shit die down.
....
Q: Tish had said, yeah, he [Keith] came and got his
gun, he’s gonna light you up? Or what’d she say?
A: Nah, I wasn’t . . . thinking about him like hurting
me, burning me like that.
Q: But if Tish told you he had his gun . . . you knew
that he was coming for you, possibly.
A: Not really. Not in that kind of way because he’s
scary you know, I mean, I know his character.
Q: So you didn’t think he was gonna come? You
just thought maybe?
A: Yeah, I was like mainly worried about my
property really.

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4The record is not clear on whether the complainant was Keith or
Kanesha.

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¶11 Garcia also spoke about his motive for firing at Keith:
[Keith] just pulled up in the Explorer, just like
looking, like—mad dogging and shit. And I looked,
and I was like no he didn’t, no he didn’t. And I just
grabbed my shit like boom boom boom boom, and I
emptied out the whole clip.
....
I’m just glad I didn’t hurt nobody, though. It was
just like when I saw him I just like, because I wanted to
kill him bad, I want him dead.
....
I just lost it, man. Because I’m already done. Like, I
was so antsy yesterday. I wanted to just kill him. I
wanted to go just kill him.
¶12 At the station, Garcia also spoke about his drug dealing and
his drug use:
When I’m off cocaine, too, I get like real paranoid. I
always think the cops gonna run in my shit. So, uh,
yeah cuz I do a lot of cocaine like sometimes.
....
Q: [I]t’s odd that you use, because lots of people
who really got skills don’t use at all.
A: Yeah, no, it’s just my heart and soul is into this
shit man, you know what I mean?
....
A: I started using in 2006. I was twenty-five about
to turn twenty-six.
¶13 At trial, Garcia told a somewhat different story. He testified
that he believed Keith had stolen drugs from him and that he had
merely taken “precautions to protect [his] home from an attack from
Keith.” He also testified that he expected Keith to come over to his
house “with a gun”—but never mentioned a Molotov cocktail. He
said he sent his girlfriend away because he “didn’t feel safe.” When
his counsel asked why he didn’t feel safe, he stated, “I just know my
cousin.”
Q: What does that mean?
A: He just blows stuff out of proportion. Just like
one minute he is cool with us, and then he just snaps.

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Q: Okay. Does Keith have a history of violence?
A: Yeah.
Q: Okay. And you believed him to possess a
firearm?
A: Yeah.
....
Q: Okay. And . . . what was your understanding of
what he was going to do with that gun?
A: He was coming for me. Like he was coming to
look for me.
Q: Okay. And so you felt there was a danger?
A: Yes.
....
Q: And you told [the detectives] Keith was coming
for [you], and you did what?
A: I defended myself.
¶14 After Garcia was questioned by his counsel, the prosecutor
cross-examined him.
Q: [Y]ou just testified that you were afraid Keith
was coming at you with a gun?
A: Yes.
Q: And you just testified that Keith—you had been
told Keith was going to come get you with a gun?
A: Yes.
Q: All right. Now, you, um, talked to this detective,
right?
A: Yes.
Q: You watched the videotape of that interview?
A: Yes.
....
Q: [T]he detective asked you, um, says, Hey, you
thought that Keith was coming for you with a gun?
And you said, Not in that way. I know his character.
Um, I was more worried about my property.

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¶15 The sergeant later testified that in his interview with Garcia,
Garcia never mentioned that he was afraid Keith was coming at him
with a gun.
¶16 After the close of evidence, Garcia argued that there was an
evidentiary basis to instruct the jury on attempted manslaughter “if
you look at his actions as reckless.” The State countered that there
was no evidence that Garcia shot at Keith recklessly. But it suggested
that “there is some evidence upon which . . . [Garcia] could argue
that it was imperfect self-defense,” because Garcia could have
believed, even though “[Keith] wasn’t armed, . . . [that] he thought
[Keith] was coming at him with a gun.” The State explained that
even though it thought the theory was “wrong,” there was enough
evidence that “the instruction should come in.”
¶17 In response to the State’s comments, Garcia offered to
modify the attempted manslaughter jury instruction to reflect
imperfect self-defense. The district court agreed to let Garcia put the
imperfect self-defense attempted manslaughter instruction before
the jury.
¶18 Garcia also moved the district court to direct a verdict on the
State’s charge of possession of a firearm by a restricted person—in
Garcia’s case, an “unlawful user.” See UTAH CODE § 76-10-
503(1)(b)(iii). Garcia took issue with the phrase “unlawful user,”
asking the court to narrowly define the phrase because the statute
offered no definition. He argued that the phrase must describe “a
current user, not someone who’s used drugs in the past, but they are
actually currently using drugs.” Garcia also argued that under this
narrow definition, there was insufficient evidence to convict and that
a directed verdict was appropriate.
¶19 The State responded that there was sufficient evidence to
defeat Garcia’s directed verdict motion because Garcia “describes
himself as a drug dealer and a drug user.” Garcia reasoned that the
evidence of being a drug dealer was insufficient because the statute
employs the term “user” not “dealer” and because a “user” is
defined as someone who currently has drugs “in your system.”
Under that definition, Garcia maintained, there was insufficient
evidence to prove that he was a user of drugs.
¶20 The court denied the directed verdict motion and allowed
the question of whether Garcia was an unlawful user in possession
of a firearm to go to the jury:

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I don’t see anything in the statute that would
require proof that he had some measurable amount of
substance in his system . . . . It’s at least a jury question
as to whether he is a user or not a user, and the jury
will just have to apply their own definition of the word
“user.” If they have a question about it, we will use a
dictionary and we will let them go from there.
¶21 When the jury began deliberations, it had before it five
charges to consider: two charges of attempted murder—one charge
each for Keith and Kanesha; possession of a firearm as an unlawful
user of a controlled substance; and two counts of discharge of a
firearm. The jury was instructed as to the elements of each alleged
crime. Relevant to this case, the jury was also instructed on the
lesser-included offense of attempted manslaughter.
¶22 The attempted murder jury instruction explained that, in
order to convict Garcia of attempted murder as charged in count I,
“which is alleged to have occurred on or about the 30th day of June,
2010, in Salt Lake County, State of Utah,” the jury “must find from
all of the evidence and beyond a reasonable doubt”:
1. That the defendant, Yesha Anthony Garcia,
2. Intentionally,
3. Attempted to cause the death of Keith.
A similar instruction replaced Keith with Kanesha.
¶23 The attempted manslaughter instruction explained that, in
order to convict Garcia of attempted manslaughter, the jury “must
find beyond a reasonable doubt”:
1. That on or about June 30, 2010;
2. In Salt Lake County, State of Utah;
3. The Defendant, Yesha Anthony Garcia;
4. Attempted to cause the death of Keith . . . ; and

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5. The affirmative defense of imperfect self-defense
does not apply. 5
A similar instruction replaced the name of Keith with Kanesha.
¶24 Another jury instruction explained that in order to convict
Garcia of possession of a firearm by a restricted person, the jury
must find beyond a reasonable doubt that Garcia had “possessed,
used, or had under his custody or control a firearm; and . . . [w]as at
the time a category II restricted person.” Subsequent jury
instructions defined a category II restricted person as “a person who
. . . [i]s an unlawful user of a controlled substance” and defined
cocaine as a controlled substance. Garcia never asked for a jury
instruction containing the narrower reading of the statutory
language that he advocated for when seeking a directed verdict.
¶25 The jury found Garcia guilty of one count of attempted
murder, one count of possession of a firearm by a restricted person,
and two counts of felony discharge of a firearm. The jury acquitted
him of the second count of attempted murder as to Kanesha.
¶26 Garcia appealed his convictions to the Utah Court of
Appeals. State v. Garcia, 2016 UT App 59, 370 P.3d 970. He argued,
among other things, that his trial counsel provided ineffective
assistance “for failing to object to a jury instruction ‘that told the jury
to convict [Garcia] of lesser-included attempted manslaughter only if
imperfect self-defense does not apply.’” Id. ¶ 8 (alteration in
original). He also argued that the evidence was insufficient to
convict him of possession of a firearm by a restricted person, because
“the only evidence supporting [Garcia]’s status as an ‘unlawful user’
of cocaine was his uncorroborated out-of-court admission to [the
sergeant] that he ‘sometimes’ did ‘a lot of cocaine.’”
¶27 Under Strickland v. Washington, 466 U.S. 668, 687 (1984), to
prevail on an ineffective assistance of counsel claim, trial counsel
must have (1) performed deficiently and (2) prejudiced defendant
with her deficient performance. The court of appeals held that
Garcia’s trial counsel performed deficiently when he submitted a

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5 A correct instruction would have informed the jury that if
Garcia acted in imperfect self-defense, he could be convicted of
attempted manslaughter. If the jury were to find that imperfect self-
defense did not apply, Garcia could be guilty of attempted murder.

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jury instruction that “failed to set forth the actual elements the jury
needed to find in order to convict Garcia of attempted
manslaughter” instead of attempted murder. Garcia, 2016 UT App
59, ¶ 21.
¶28 Strickland’s prejudice prong requires a court to “consider the
totality of the evidence before the judge or jury” and then “ask if the
defendant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors.”
Strickland, 466 U.S. at 695–96. The court of appeals cited a Utah case,
which states that failure to give “an accurate instruction upon the
basic elements of an offense . . . . can never be harmless error.”
Garcia, 2016 UT App 59, ¶ 23 (quoting State v. Bluff, 2002 UT 66, ¶ 26,
52 P.3d 1210). The court also found that “because there was a
reasonable basis for the jury to conclude that imperfect self-defense
applied, there is necessarily ‘a reasonable probability . . . that, but for
counsel’s error, the result would have been different.’” Id. ¶ 25
(alteration in original) (citation omitted). It therefore determined that
Garcia’s trial counsel’s ineffective assistance had prejudiced Garcia’s
defense. Id. ¶ 26.
¶29 The court of appeals held that Garcia’s second argument—
that the phrase “unlawful user” was unconstitutionally vague—was
unpreserved. Id. ¶ 34. It then considered whether the failure to raise
the argument below constituted ineffective assistance of counsel. Id.
The court of appeals concluded that even if Garcia’s counsel had
provided ineffective assistance, Garcia did not suffer prejudice. Id.
¶ 38. It reasoned that Garcia could provide no authority for his
proposed definition of unlawful user and that even if the court were
to define the term the way federal courts have interpreted similar
language to assuage vagueness concerns, sufficient evidence existed
to convict Garcia. Id.; see United States v. Patterson, 431 F.3d 832, 838–
39 (5th Cir. 2005) (requiring evidence of (1) regularity of drug use
and (2) temporal proximity between the drug use and the firearm
possession). Specifically, the court commented that Garcia’s
confession that “I [present-tense] do a lot of cocaine like sometimes”
and his “admissions that he was a user in context as to why he had
the gun nearby” provided ample evidence to defeat a directed
verdict motion. Garcia, 2016 UT App 59, ¶ 38.
¶30 On certiorari, the State claims the court of appeals erred by
finding that trial counsel’s defective jury instruction prejudiced
Garcia. And Garcia claims the court of appeals erred when it “failed

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to properly apply the applicable statutory phrase ‘unlawful user’ in a
constitutional manner that comports with its plain meaning.”
¶31 We have jurisdiction under Utah Code section 78A-3-
102(3)(a). We reverse the court of appeals with respect to the jury
instruction argument, but we uphold the denial of Garcia’s motion
for directed verdict.
ISSUES AND STANDARDS OF REVIEW
¶32 The State first asks us to review the Utah Court of Appeals’
decision that an error in Garcia’s jury instruction explaining the
lesser-included offense of attempted manslaughter was prejudicial.
“On certiorari, we review the decision of the court of appeals for
correctness, without deference to its conclusions of law.” State v.
Smith, 2014 UT 33, ¶ 9, 344 P.3d 573 (citation omitted).
¶33 Garcia cross-petitions for certiorari. He asks us to review the
court of appeals’ decision affirming the district court’s dismissal of
his motion for a directed verdict on his charge for “unlawful user” in
possession of a firearm. We review the court of appeals’ decision to
uphold the district court’s denial of a motion for a directed verdict
for correctness. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002
UT 48, ¶¶ 10–11, 48 P.3d 968. And we review “the evidence and all
reasonable inferences that may fairly be drawn therefrom in the light
most favorable to the party moved against, and will sustain the
denial if reasonable minds could disagree with the ground asserted
for directing a verdict.” Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d
933 (citation omitted).
ANALYSIS
I. Garcia Was Not Prejudiced by His
Counsel’s Ineffective Assistance
¶34 The State argues that the Utah Court of Appeals got it
wrong when it concluded that trial counsel’s assent to an erroneous
jury instruction prejudiced Garcia. The State assails the court of
appeals’ reliance on State v. Bluff, which states that errors in elements
instructions are never harmless. 2002 UT 66, ¶ 26, 52 P.3d 1210
abrogated on other grounds by Met v. State, 2016 UT 51, 388 P.3d 447. It
also takes issue with the court’s alternative grounds for reversal: that
because the parties agreed that “there was a reasonable basis for the
jury to conclude that imperfect self-defense applied”—which is the
standard for placing an instruction before a jury—“there is
necessarily ‘a reasonable probability . . . that, but for counsel’s error,
the result would have been different.” State v. Garcia, 2016 UT App

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59, ¶ 25, 370 P.3d 970 (alteration in original) (citation omitted). We
conclude that trial counsel’s mistake did not prejudice Garcia’s
defense.
¶35 The Sixth Amendment to the United States Constitution
guarantees the accused the “Assistance of Counsel for his defence.”
The United States Supreme Court “has recognized that ‘the right to
counsel is the right to the effective assistance of counsel.’” Strickland
v. Washington, 466 U.S. 668, 686 (1984) (citation omitted). In
Strickland, the Court “articulated what has been referred to as both
the ‘well-worn’ and now ‘famous’ two-prong test used by courts
when reviewing Sixth Amendment claims of ineffective assistance of
counsel.” Todd A. Berger, The Constitutional Limits of Client-Centered
Decision Making, 50 U. RICH. L. REV. 1089, 1120 (2016) (citations
omitted). That test requires “(1) attorney error . . . and (2) prejudice
. . . flowing from that error.” 6 Id. Thus, an “error by counsel, even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. In other words, “any
deficiencies in counsel’s performance must be prejudicial to the
defense in order to constitute ineffective assistance under the
Constitution.” Id. at 692; id. at 687 (“A convicted defendant’s claim
that counsel’s assistance was so defective as to require reversal of a
conviction,” requires the defendant to “show that the deficient
performance prejudiced the defense.”).
¶36 The Strickland Court explained that, “[c]onflict of interest
claims aside,” all other claims alleging counsel’s defective
performance “are subject to a general requirement that the defendant
affirmatively prove prejudice.” Id. at 693. The Court has even been
hesitant to forgo the prejudice analysis where the ineffective
assistance resulted in a “structural error”—an error where, if an
objection is made at trial, “the defendant generally is entitled to
‘automatic reversal.’” See, e.g., Weaver v. Massachusetts, 137 S. Ct.
1899, 1910 (2017) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)).
In Weaver, the Supreme Court held that although a violation of the
defendant’s right to a public trial is a structural error, where the

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6 The State does not contest the court of appeals’ conclusion that
Garcia’s counsel provided ineffective assistance with respect to the
jury instruction.

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unpreserved issue was raised as ineffective assistance of counsel,
Strickland prejudice is not shown automatically. Id. Rather, “the
burden is on the defendant to show either a reasonable probability of
a different outcome in his or her case or . . . to show that the
particular public-trial violation was so serious as to render his or her
trial fundamentally unfair.” Id. at 1911.
¶37 The Strickland Court explained why most ineffective
assistance of counsel claims are subject to a prejudice analysis:
Attorney errors come in an infinite variety and are
as likely to be utterly harmless in a particular case as
they are to be prejudicial. They cannot be classified
according to likelihood of causing prejudice. Nor can
they be defined with sufficient precision to inform
defense attorneys correctly just what conduct to avoid.
Representation is an art, and an act or omission that is
unprofessional in one case may be sound or even
brilliant in another. Even if a defendant shows that
particular errors of counsel were unreasonable,
therefore, defendant must show that they actually had
an adverse effect on the defense.
466 U.S. at 693. Thus, under Strickland, it is the defendant’s burden to
show that he was prejudiced by his counsel’s performance.
¶38 The State argues that the court of appeals erred by
presuming prejudice. The court of appeals never explicitly stated
that it could presume prejudice where the court erroneously
instructed the jury. Indeed, it recognized that Strickland required
examination into whether “but for counsel’s error, the result would
have been different.” Garcia, 2016 UT App 59, ¶ 22 (quoting
Strickland, 466 U.S. at 694). But the two analyses the court of appeals
employed to assess prejudice have the look and feel of presuming,
rather than finding, prejudice.
¶39 First, the court of appeals—relying on State v. Bluff—stated
The Utah Supreme Court has recognized that “an
accurate instruction upon the basic elements of an
offense is essential. Failure to so instruct constitutes
reversible error. Thus, the failure to give this [accurate]
instruction can never be harmless error.”
Garcia, 2016 UT App 59, ¶ 23 (alteration in original) (quoting Bluff,
2002 UT 66, ¶ 26). The court of appeals’ reliance on Bluff is
misplaced. In Bluff, the defendant argued that the district court failed

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to include an element of felony murder in its jury instructions. 2002
UT 66, ¶ 24. The issue was not preserved at trial, so the defendant
argued that both plain error and ineffective assistance of counsel
allowed this court to reach the district court’s alleged error. Id. We
resolved Bluff by finding that any error, if there were error, was far
from plain and counsel did not provide ineffective assistance by
failing to request the augmented instruction. Id. ¶ 30. We did not
need to determine whether the supposed error had prejudiced Bluff.
¶40 Moreover, any attempt to graft Bluff’s holding into a Sixth
Amendment ineffective assistance argument would conflict with
federal precedent. See State v. Sessions, 2014 UT 44, ¶ 37, 342 P.3d 738
(The standard of proof for ineffective assistance of counsel claims “is
a matter of federal law, on which we are bound to follow Supreme
Court precedent.”). Although the question arose outside the
ineffective assistance context, in Neder, the United States Supreme
Court held that errors in jury instructions—even instructions going
to the elements of a charged crime—require harmless-error analysis.
527 U.S. at 15 (concluding “that the omission of an element is an
error that is subject to harmless-error analysis”). The Court
explained that jury instruction errors on the elements of a crime are
often subject to “harmless-error analysis” because a single error does
not “vitiate[] all the jury’s findings” and therefore did not affect the
entire framework of the trial’s process. Id. at 9–11 (citation omitted).
In light of Neder and Weaver, any reading of Bluff that suggests a
defendant need not show she was prejudiced by an erroneous jury
instruction resulting from her counsel’s ineffective assistance would
be inconsistent with federal precedent.
¶41 To the extent the court of appeals used our statement in Bluff
as a stand-in for a prejudice analysis, as the State claims it did, that
was error. It is not clear, however, that the court of appeals actually
used Bluff that way. After it cited Bluff, the court examined the jury
instructions and concluded that “the jury was caught in a Catch-22;
in order to convict Garcia of the lesser offense, the jury had to find all
the elements of the greater offense.” Garcia, 2016 UT App 59, ¶ 24.
This led the court of appeals to conclude that “there can be no
confidence that the jury understood what impact a determination of
imperfect self-defense should have had on the verdict.” Id. Unlike
the State, we do not read this as presuming prejudice. The court of
appeals went beyond just acknowledging the existence of an
erroneous instruction as it would if it were to presume prejudice.
Instead, it analyzed how that instruction might have impacted

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Garcia’s trial and predicted juror behavior in response to the
erroneous instruction. Id. However, the court of appeals stopped this
analysis short, which prevented it from fully conducting the
prejudice inquiry Strickland requires.
¶42 A proper analysis also needs to focus on the evidence before
the jury and whether the jury could reasonably have found that
Garcia acted in imperfect self-defense such that a failure to instruct
the jury properly undermines confidence in the verdict. The
Strickland Court explained, “[i]t is not enough for the defendant to
show that the errors had some conceivable effect on the outcome of
the proceeding.” Strickland, 466 U.S. at 693. A court must “consider
the totality of the evidence before the judge or jury” and then “ask if
the defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent the
errors.” Id. at 695–96. Thus, the “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694.
Ultimately, a “reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. The court of appeals did
not engage in this analysis, instead concluding that because the
instruction was erroneous, “there can be no confidence that the jury
understood what impact a determination of imperfect self-defense
should have had on the verdict.” Garcia, 2016 UT App 59, ¶ 24.
¶43 The court of appeals’ second analytical thrust focused on the
State, defense counsel, and the district court concluding that there
was sufficient evidence to warrant instructing the jury on imperfect
self-defense. Id. ¶ 25. The court of appeals suggested that if there was
sufficient evidence to provide the instruction, there was necessarily a
reasonable probability of a different outcome:
Odd though it may seem on this record, Trial
Counsel, the State, and the trial court all agreed that
Garcia was entitled to an instruction on imperfect self-
defense. A defendant is entitled to an imperfect self-
defense instruction if the evidence provides “[a]
reasonable basis for the jury to conclude” that the
defense applies. We will not now second-guess the
assessment made by the parties and the trial court that
the evidence here did so. And because there was a
reasonable basis for the jury to conclude that imperfect
self-defense applied, there is necessarily “a reasonable

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probability . . . that, but for counsel’s error, the result
would have been different.”
Id. (alterations in original) (citations omitted).
¶44 Strickland’s requirement of a “reasonable probability” of a
different outcome is a relatively high hurdle to overcome. See
Strickland, 466 U.S. at 694. A reasonable probability of a different
outcome is in no way synonymous with the lower bar a defendant
must clear to instruct the jury on an imperfect self-defense: “any
reasonable basis in the evidence.” State v. Torres, 619 P.2d 694, 695
(Utah 1980) (“We are not concerned with the reasonableness, nor the
credibility of the defendant’s evidence relating to his claim of self-
defense. Each party is, however, entitled to have the jury instructed
on the law applicable to its theory of the case if there is any
reasonable basis in the evidence to justify it.”). Thus, the court of
appeals erred when it equated these two standards and allowed the
decision to issue the jury instruction to stand in for Strickland
prejudice.
¶45 When we examine the record as a whole, counsel’s error
does not undermine our confidence in the jury’s verdict finding
Garcia guilty of attempted murder rather than attempted
manslaughter. The evidence that Garcia was motivated by a desire to
kill Keith overwhelmed the evidence that Garcia acted in imperfect
self-defense.
¶46 In Garcia’s statement to the police sergeant just hours after
the shooting, Garcia emphasized that he “just lost it” and that he
“wanted to just kill him”:
[Keith] just pulled up in the Explorer, just like
looking, like—mad dogging and shit. And I looked,
and I was like no he didn’t, no he didn’t. And I just
grabbed my shit like boom boom boom boom, and I
emptied out the whole clip.
....
It was just like when I saw him I just like, because I
wanted to kill him bad, I want him dead.
....
I just lost it, man. . . . I wanted to just kill him. I
wanted to go just kill him.
¶47 Garcia also told the sergeant that he had called Keith’s
mother the day before and told her that he was going to kill Keith.
Garcia did testify at trial, during his counsel’s direct examination,

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that he was afraid that Keith was “coming for [him]” with a gun. But
the jury also heard that immediately after the shooting, when
specifically asked if he was afraid of Keith coming to get him with a
gun, Garcia told the detective that he “wasn’t . . . thinking about him
like hurting me, burning me like that” but that he was “mainly
worried about [his] property really.” The evidence that Garcia pulled
the trigger out of a desire to kill Keith overpowers any evidence that
he acted on a reasonable but erroneous belief that he was defending
himself. Looking at all the evidence in front of the jury, much of it
from Garcia’s own mouth, our confidence in the jury’s verdict is not
undermined.
¶48 In sum, the court of appeals erred when it failed to conduct
the prejudice analysis Strickland requires. Under that analysis, Garcia
has not shown a reasonable probability of a different outcome at trial
sufficient to undermine our confidence in the jury’s verdict. The
court of appeals erred when it determined that Garcia was
prejudiced by the ineffective assistance of counsel he received with
regard to the erroneous jury instruction on a lesser-included offense.
II. The District Court’s Denial of the Motion for
Directed Verdict Did Not Prejudice Garcia
¶49 Garcia cross-petitions for certiorari, asking this court to
review the court of appeals’ decision to affirm the trial court’s
dismissal of his motion for directed verdict on the charge of being an
“unlawful user” in possession of a firearm. The court of appeals
found this issue to be unpreserved and reviewed it for ineffective
assistance of counsel. State v. Garcia, 2016 UT App 59, ¶ 34, 370 P.3d
970. The court of appeals concluded that Garcia had failed to
demonstrate that any error his counsel may have made prejudiced
him. Id. ¶ 35. Garcia first argues that the court of appeals erred in
finding that his counsel failed to preserve the issue before the district
court.
¶50 To preserve an issue for appeal, the issue must typically be
presented to the district court in a manner that would permit the
district court to address it. See Brookside Mobile Home Park, Ltd. v.
Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “Issues that are not raised at
trial are usually deemed waived.” 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801. The court of appeals correctly observed that

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Garcia “did not raise a constitutional argument at trial.” Garcia, 2016
UT App 59, ¶ 34. 7 Garcia did, however, place before the district court
the question of how the phrase “unlawful user” should be
interpreted. Garcia contends that by arguing about the proper
construction of the statute before the district court, he preserved the
ability to argue on appeal that the statute should be construed in a
manner that preserves its constitutionality. Thus, the question before
us is whether failure to argue a specific canon of construction before
the district court means that canon is unavailable on appeal.
¶51 In Bagley v. Bagley, we tackled this question. There, we
reasoned that
While Plaintiff correctly observes that Defendant did
not specifically raise an absurd results argument
below, this is ultimately immaterial for one simple
reason: Defendant’s absurd result argument does not
raise a wholly new issue. Instead, she offers an
argument in support of a particular issue already
preserved on appeal. As noted above, the issue on
appeal is whether the wrongful death and survival
action statutes allow an heir or personal representative
to stand in the shoes of a tortfeasor defendant. Where
the best reading of these statutes is directly before us
on appeal, an absurdity analysis is an integral
extension of our interpretive task. Our failure to
entertain Defendant’s absurdity argument may lead us
to misconstrue both statutes. Accordingly, we reach
this argument to fully address the issue on appeal.

_____________________________________________________________
7 Before the court of appeals, Garcia argued that “unlawful user”
was subject to a number of different interpretations. He further
argued that “[a] broad construction of ‘unlawful user’” raised
constitutional vagueness concerns. He pressed for an interpretation
that would ameliorate the potential constitutional issue. The canon
of constitutional avoidance “comes into play only when, after the
application of ordinary textual analysis, the statute is found to be
susceptible of more than one construction; and the canon functions
as a means of choosing between them.” Clark v. Martinez, 543 U.S. 371,
385 (2005).

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2016 UT 48, ¶ 26, 387 P.3d 1000 (footnotes omitted); see also
Richardson v. Fiedler Roofing, Inc., 493 N.E.2d 228, 230 (N.Y. 1986)
(“The argument raises solely a question of statutory interpretation
. . . which we may address even though it was not presented
below.”). Our decision in Bagley reflects a distinction we have made
and repeated: “Issues must be preserved, not arguments for or
against a particular ruling on an issue raised below.” Gressman v.
State, 2013 UT 63, ¶ 45, 323 P.3d 998. Thus, where an issue is
preserved for our consideration, we will not limit the interpretive
canons a party may argue as a means of persuading this court to
reach the correct result. See also State v. Shepherd, 236 P.3d 738, 741
(Or. Ct. App. 2010) (“We understand that . . . we are ‘responsible for
identifying the correct interpretation [of a statute], whether or not
asserted by the parties.’ That responsibility arises, however, only
when the parties have put the issue of statutory interpretation
before us by disagreeing as to what a statute means . . . .” (second
alteration in original) (citation omitted)).
¶52 Here, Garcia presented the question of how the statute
should be interpreted to the district court, and the district court
ruled on it. Garcia moved the court for a directed verdict on the
restricted person in possession charge, arguing that under a narrow
interpretation of the phrase “unlawful user,” there was insufficient
evidence to find him guilty. Garcia’s failure to invoke the
constitutional avoidance canon does not deprive us of the ability to
employ that canon to interpret the statute. Garcia preserved the
statutory interpretation and insufficient evidence issues at the
district court and on appeal and, thus, both are fair game on
certiorari. The court of appeals erred by finding the issue
unpreserved and reviewing the question through the lens of
ineffective assistance of counsel.
¶53 Instead of reviewing the court of appeals’ ineffective
assistance of counsel analysis, we will address the underlying
question of whether the district court erred in denying Garcia’s
motion for directed verdict. We recognize that this is not the
question the court of appeals answered, and, thus, we have no
appellate court opinion to review. Although we could remand for
further consideration of the question, in this instance, we are well-
positioned to consider the issue because the matter is fully briefed
and squarely before us.
¶54 The State charged Garcia with one count of possession of a
firearm by a restricted person—i.e., “an unlawful user of a controlled

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substance.” UTAH CODE §§ 76-10-503(1)(b)(iii), 58-37-2(1)(ii), 58-37-
4(2)(b)(i)(D). Garcia argues that the term “unlawful user” is
unconstitutionally vague as applied to him:
Does [“unlawful user”] mean someone who has
used a controlled substance once in his or her life, no
matter when that use occurred? Twice? How many
times must one use drugs to be an “unlawful user”? Or
must the use be of a certain character? Must it be
somehow connected to the possession of a firearm?
Garcia suggests that, because the Utah Code offers no guidance as to
what boundaries the term “unlawful user” imposes, to overcome a
constitutional vagueness problem, this court should interpret the
language narrowly.
¶55 The United States Supreme Court articulated the policy
behind the vagueness doctrine in Grayned v. City of Rockford:
It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions are
not clearly defined. Vague laws offend several
important values. First, because we assume that man is
free to steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited,
so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for
those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and
discriminatory application. . . . Uncertain meanings
inevitably lead citizens to “‘steer far wider of the
unlawful zone’ . . . than if the boundaries of the
forbidden areas were clearly marked.”
408 U.S. 104, 108–09 (1972) (second alteration in original) (citations
omitted).
¶56 This doctrine involves two considerations.
First, a criminal statute is not unconstitutionally vague
“if it ‘defines the criminal offense with sufficient

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definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.’”
Second, “when a vagueness challenge does not involve
First Amendment freedoms, [this court] examine[s] the
statute only in light of the facts of the case at hand.”
United States v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005) (alterations
in original) (citations omitted).
¶57 Federal courts have recognized possible constitutional
vagueness concerns with United States Code title 18 section
922(g)(3), which contains nearly identical language to Utah Code
section 76-10-503(1)(b)(iii), (3).
Section 922(g)(3) prohibits ‘an unlawful user of . . . any
controlled substance’ from possessing a firearm. The
term ‘unlawful user’ is not otherwise defined in the
statute, but courts generally agree the law runs the risk
of being unconstitutionally vague without a judicially-
created temporal nexus between the gun possession
and regular drug use.
United States v. Turnbull, 349 F.3d 558, 561 (8th Cir. 2003) (alteration
in original), cert. granted, vacated, 543 U.S. 1099 (2005), reinstated, 414
F.3d 942 (8th Cir. 2005).
¶58 Garcia suggests two interpretations of “unlawful user” that
he posits would avoid the vagueness problem. Garcia prefers an
interpretation that requires a person to be “actually using a
controlled substance at the time he or she is in possession of the
firearm.” But he alternatively offers the interpretation many federal
courts have given to similar language. The federal interpretation
requires a “temporal nexus between the gun possession and regular
drug use.” Patterson, 431 F.3d at 839 (citation omitted); United States
v. Ocegueda, 564 F.2d 1363, 1366 (9th Cir. 1977) (upholding statute as
constitutional as applied to defendant because evidence supported
finding that defendant’s drug use was consistent, prolonged, and
contemporaneous with his firearms purchases to put him on notice
that he qualified as an unlawful user).
¶59 As an initial matter, we reject Garcia’s chosen reading of the
statute requiring a person to be “actually using a controlled
substance at the time he or she is in possession of the firearm.”
Principles of constitutional avoidance are not an invitation for us to
break faith with the statute’s text. Constitutional avoidance rests “on

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Opinion of the Court

the reasonable presumption” that where there is more than one
plausible interpretation of a statute, the legislature “did not intend
the [interpretation] which raises serious constitutional doubts.” Clark
v. Martinez, 543 U.S. 371, 381 (2005); see also Utah Dep’t of Transp. v.
Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900 (“[W]hen a court rejects one
of two plausible constructions of a statute on the ground that it
would raise grave doubts as to its constitutionality, it shows proper
respect for the legislature, which is assumed to ‘legislate[] in the light
of constitutional limitations.’” (second alteration in original) (citation
omitted)). Even when we are trying to save a statute from
constitutional concerns, we are not at liberty to rewrite the statute or
to inject the statute with our policy judgments. Our job is to interpret
the statute as the legislature wrote it.
¶60 As with the federal statute, the Utah Code “does not forbid
possession of a firearm while unlawfully using a controlled substance.
Rather, the statute prohibits unlawful users of controlled substances
. . . from possessing firearms.” United States v. Jackson, 280 F.3d 403,
406 (4th Cir. 2002). The reading Garcia prefers would require us to
rewrite the statute to include a concept of contemporaneous use that
the plain text does not require and is not necessary to preserve the
statute’s constitutionality—as explained below. And while not
dispositive, we cannot find any other jurisdiction that has accepted a
reading like the one Garcia advocates. In fact, many jurisdictions
have rejected that interpretation. See, e.g., United States v. Clanton, 515
F. App’x 826, 830 (11th Cir. 2013) (rejecting contention that an
“unlawful user” requires proof that defendant was under influence
at time of possession); United States v. Burchard, 580 F.3d 341, 346, 352
(6th Cir. 2009) (holding that “[t]he law does not require that the
Defendant used the controlled substance at the precise time he
possessed the firearm”); United States v. McIntosh, 23 F.3d 1454, 1458
(8th Cir. 1994) (rejecting as too restrictive a definition of “unlawful
user” that requires proof that the defendant “was using the
controlled substance at the same time he was in possession of the
firearm”).
¶61 Garcia’s second proffered interpretation, in contrast,
comports better with the statute’s text and has been accepted by a
number of federal courts. For example, the Fifth Circuit Court of
Appeals has held that in order to give a defendant fair notice of what
would make him an “unlawful user” of a controlled substance, the
State must forward evidence to show “some regularity of drug use in
addition to contemporaneousness” to the possession of a firearm.

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Patterson, 431 F.3d at 838–39; United States v. Augustin, 376 F.3d 135,
139 (3d Cir. 2004) (“[T]o be an unlawful user, one needed to have
engaged in regular use over a period of time proximate to or
contemporaneous with the possession of the firearm.”); Jackson, 280
F.3d at 406; United States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001).
This reading solves the problem that Garcia highlights in his brief,
that the phrase “unlawful user” might criminalize possession of a
firearm by someone who used a controlled substance decades ago.
And, more to the point, it solves the vagueness problem that the
statute does not provide adequate notice to someone that they could
be breaking the law if they used drugs in 1967 and carry a firearm in
2017. But it preserves the legislative intent that those who could
reasonably be considered to be “unlawful users”—those who use
with regularity and in a time period reasonably contemporaneous
with the possession of a firearm—be subject to criminal sanction.
¶62 Because Garcia’s counsel did not ask for a jury instruction
reflecting the narrowed interpretation—and Garcia does not claim
ineffective assistance based upon that—we review to see whether the
district court properly denied the directed verdict motion. “A trial
court is justified in granting a directed verdict only if, examining all
evidence in a light most favorable to the non-moving party, there is
no competent evidence that would support a verdict in the non-
moving party’s favor.” Merino v. Albertsons, Inc., 1999 UT 14, ¶ 3, 975
P.2d 467. Garcia moved for a directed verdict arguing that if the
court would properly interpret the statute, the State had introduced
insufficient evidence to sustain a conviction. We hold that any error
the district court committed in failing to interpret the statute in a
manner that avoided constitutional concerns was harmless because
evidence existed to permit the jury to convict Garcia under a proper
interpretation of the statute.
¶63 Garcia admitted that he had used cocaine since 2006 when
he “was twenty-five about to turn twenty-six.” He also told the
police,
When I’m off cocaine, too, I get like real paranoid. I
just think the cops gonna run in my shit. So, uh, yeah
cuz I do a lot of cocaine like sometimes.
....
Q: [I]t’s odd that you use, because lots of people
who really got skills don’t use at all.

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A: Yeah, no, it’s just my heart and soul is into this
shit man, you know what I mean?
¶64 Garcia’s statements demonstrate that there was an
evidentiary basis for the jury to conclude that Garcia was a user of
cocaine. He stated, “I do a lot of cocaine like sometimes.” And his
statement “when I’m off cocaine, too, I get real paranoid” gives rise
to a reasonable inference that there are times when he is on cocaine.
In response to a police sergeant’s incredulity that he would both use
and deal, Garcia did not assert that he had stopped using; rather he
responded that his “heart and soul is into this shit.” When Garcia
talked about his drug use, he did so in the present tense.
¶65 Garcia responds that this evidence is insufficient to
demonstrate that his cocaine use shared any temporal nexus with his
firearm possession. Garcia raises a logical, albeit ultimately
unavailing, point. Perhaps the easiest way for the State to meet its
burden would have been to introduce evidence of the last time
Garcia had ingested cocaine prior to the date he possessed the
firearm that gave rise to the charge. But the fact that the evidence did
not identify the date of Garcia’s last cocaine use does not dictate the
conclusion that there was insufficient evidence of Garcia’s on-going
drug use to survive a motion for a directed verdict. The evidence
was sufficient to permit a jury to reasonably conclude that Garcia’s
confessed drug use—he does a lot of cocaine sometimes, gets
paranoid when he goes off, has his heart and soul into drugs—meant
that he was a user of controlled substances on the night he fired his
weapon, even if the jury could not conclude that he was using drugs
on the day of the charged conduct. Other courts have reached a
similar conclusion. See, e.g., United States v. Edwards, 540 F.3d 1156,
1162 (10th Cir. 2008) (holding that “[w]hile it is true that the
government did not introduce specific, direct evidence pinpointing
precise dates on which Defendant used drugs,” there was sufficient
evidence to uphold an unlawful user in possession charge where the
jury heard testimony that the defendant was a “habitual, heavy user
of marijuana at the time the conspiracy was in effect, and none of the
witnesses indicated that Defendant’s drug usage changed or varied
over the year of the conspiracy”), cert. denied, 555 U.S. 1124 (2009);
United States v. McCowan, 469 F.3d 386, 392 (5th Cir. 2006) (upholding
unlawful user in possession conviction for event taking place in
October 2004 where the evidence presented at trial demonstrated
that defendant used marijuana daily until August 2004, admitted
recreational cocaine use, and tested positive for marijuana use in

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April 2005). We therefore find that any error the district court
committed in failing to narrow the meaning of “unlawful user” in
connection with the motion for a directed verdict was harmless.
CONCLUSION
¶66 The court of appeals erred when it failed to perform fully
the prejudice analysis Strickland v. Washington requires. See 466 U.S.
668 (1984). But Garcia was not prejudiced by his counsel’s complicity
in the jury receiving a flawed instruction. The evidence that Garcia
committed attempted murder is sufficiently strong that our
confidence in the jury’s verdict is not undermined. Therefore, we
reverse the court of appeals’ conclusion that Garcia was prejudiced
by his counsel’s performance. We reaffirm that a party may invoke
previously unargued canons of statutory interpretation on appeal if
the issue of the statute’s proper interpretation was preserved.
Although the district court should have interpreted the “unlawful
user” statute differently to avoid constitutional vagueness problems,
that error was harmless. The State introduced sufficient evidence to
permit a jury to convict Garcia even under a narrowed interpretation
of that statute. We affirm Garcia’s conviction for possession of a
firearm by a restricted person. In short, we reverse in part and affirm
in part.

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