State v. Mendoza

2021 UT App 79

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ALEX CHRISTOPHER MENDOZA SR.,
Appellant.

Opinion
No. 20200068-CA
Filed July 22, 2021

Third District Court, West Jordan Department
The Honorable Dianna Gibson
No. 181403365

Herschel Bullen, Attorney for Appellant
Simarjit S. Gill and Heather Lindsay, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY
concurred. 1

MORTENSEN, Judge:

¶1 An urgent search by police for an alleged assault victim
came to an abrupt halt at Alex Christopher Mendoza Sr.’s
residence. Standing on Mendoza’s porch before a closed front
door, police endured Mendoza’s barrage of profanity and
demands to get off his property. When Mendoza finally
emerged, police arrested him, setting him on the road to trial
where he faced a single charge for obstruction of justice. At trial,
Mendoza’s counsel failed to either request an instruction

1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
 State v. Mendoza

explaining that the jury needed to unanimously agree on the
specific statutory grounds for conviction or request a special
verdict form that would have required the jury to agree on and
indicate which specific act Mendoza performed to satisfy all the
elements of the crime with which he was charged. After being
convicted, Mendoza now appeals. We reverse and remand for a
new trial.

BACKGROUND 2

¶2 Responding to various 911 calls reporting a young man
violently assaulting a young woman, police rushed to
Mendoza’s home searching not only for the assailant, but also
for the victim. On arrival, police found—consistent with the
dispatcher’s description—a young woman, who promptly ran
into the house, and a young man, who began to yell at the
officers.

¶3 Amid the ruckus, Mendoza and his wife emerged from
the house, and Mendoza joined the young man—his son—in
yelling and swearing at the officers. After his son was arrested,
Mendoza continued to prowl his front porch, yelling, “[F]uck
you,” “[G]et the fuck off my property,” “[G]et the fuck off my
yard,” and “[F]uck off” before retreating into his house.

¶4 In an attempt to advance the investigation of the assault
one officer approached the door, which Mendoza opened long
enough to yell, “[G]et the fuck off my property,” before
slamming it shut. From inside the house, Mendoza continued to

2. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict,” Layton City v. Carr, 2014 UT
App 227, ¶ 2 n.2, 336 P.3d 587 (cleaned up), and we recognize
that the verdict may or may not stand following a new trial on
remand.

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yell, “You guys need to get off my property. You don’t have a
right to be here.” Mendoza never told officers that he would not
let the young woman come out and speak with them—only that
they could not enter the house. But each time officers tried to
speak with Mendoza he would “drop an f-word and tell [the
police] to get off his property.”

¶5 For the next ten minutes, officers struggled to learn
anything about the young woman’s medical status—whether she
was “okay, or injured, or in need of assistance.” Eventually,
Mendoza’s wife, who had stayed outside with the police, called
Mendoza on the phone, after which the young woman came out
of the house. 3 And after additional time and some persuasion,
Mendoza came out himself, at which point officers arrested him
for his role in allegedly obstructing the investigation.

¶6 As written, the obstruction of justice statute describes the
requisite intent (its first element) and provides a list of various
prohibited actions (its second element), see Utah Code Ann. § 76-
8-306(1)(a)–(j) (LexisNexis 2017), and at trial, both the
prosecution and the defense agreed on an obstruction of justice
jury instruction that recited only certain parts from the statute.
However, this instruction did not instruct the jurors that they
needed to unanimously agree on which act Mendoza had
committed to satisfy the statute’s second element. Indeed, the
court clarified that both counsel agreed on the instruction
submitted, stating,

3. At trial, the young woman denied having been assaulted and
testified that when police initially arrived, she went into the
house “willingly,” and that Mendoza never “told her not to
cooperate with the police,” never “threatened her,” never
“instructed her to lie for him,” and never told “her to tell the
police anything untruthful.” In fact, she testified “that there was
never a time that she felt uncomfortable or that she couldn’t go
and talk to the police because of” Mendoza.

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The other thing I wanted to make sure we’re all
on the same page, both of you only quoted a
portion of all the different elements on obstruction
of justice. My assumption is that you both—and
you both quoted the exact same ones. So that is
what I have incorporated here instead of just
repeating the entire statute. Everyone is good
with that?

(Cleaned up.) Both the State and Mendoza responded
affirmatively. When explaining the instruction to the jury, the
prosecutor noted the “various different ways to obstruct justice”
but clarified, “[H]ere we are not dealing with all of them. We’re
focused on just a few.” And, rather than provide a special
verdict form requiring the jurors to indicate which act they
unanimously agreed Mendoza had committed to satisfy the
statute’s second element the court allowed the jury to convict
Mendoza for obstruction of justice by way of a general verdict
form.

ISSUE AND STANDARD OF REVIEW

¶7 On appeal, Mendoza contends that counsel rendered
ineffective assistance by failing to either request an obstruction
of justice jury instruction that explained that the jury needed to
unanimously agree on which act Mendoza committed to satisfy
the obstruction of justice statute’s second element (unanimity
instruction) or request a special verdict form that would have
required the jury to agree on and indicate which specific
statutory act Mendoza committed in satisfying the statute’s
second element (special verdict form). 4 “An ineffective assistance
of counsel claim raised for the first time on appeal presents a

4. Because we reverse on the grounds indicated, we do not reach
the other issues Mendoza has raised on appeal.

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question of law.” State v. Bowen, 2019 UT App 163, ¶ 15, 451 P.3d
1050 (cleaned up).

ANALYSIS

I. Deficient Performance

¶8 Mendoza contends that counsel rendered ineffective
assistance by failing to either request a unanimity instruction or
request a special verdict form. To prevail on an ineffective
assistance claim, Mendoza must first demonstrate that “his
counsel’s performance was deficient in that it fell below an
objective standard of reasonableness.” State v. Scott, 2020 UT 13,
¶ 28, 462 P.3d 350 (cleaned up). This requires Mendoza to
demonstrate, “considering all the circumstances,” that “counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
See Strickland v. Washington, 466 U.S. 668, 687–88 (1984). In other
words, “to overcome the high level of deference we give to trial
counsel’s performance, [Mendoza] must show that counsel’s
representation fell below an objective standard of reasonableness
when measured against prevailing professional norms.” See State
v. Alires, 2019 UT App 206, ¶ 17, 455 P.3d 636 (cleaned up). Here,
counsel’s failure to request an instruction or, alternatively, a
special verdict form, that would require a constitutionally
demanded level of juror unanimity fell below that objective
standard and counsel thus rendered deficient performance.

¶9 The United States Constitution’s Sixth Amendment
requires that in criminal trials, a jury reach a unanimous verdict.
Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (stating that “the
Sixth Amendment’s unanimity requirement applies to state and
federal criminal trials equally”). Article 1, section 10 of the Utah
Constitution requires the same. And Utah Rule of Criminal
Procedure 21(b) also requires that a verdict be “unanimous.” But
these unanimity requirements are “not met if a jury

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unanimously finds only that a defendant is guilty of a crime.”
See State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951 (emphasis
added). Rather, unanimity requires that the jury reach
“unanimity as to each count of each distinct crime charged.”
State v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314 (cleaned up).
Additionally, the “jury must be unanimous on all elements of a
criminal charge,” id. ¶ 29 (cleaned up), including “alternative
elements” such as the “alternative actus reus elements by which
a person could be found guilty” of a crime, Alires, 2019 UT App
206, ¶¶ 20–21 (cleaned up).

¶10 Utah courts have recognized a distinction between
“alternative elements,” which require a jury to unanimously
agree on which alternative act satisfies the element of the crime,
and “alternative factual theories,” which allow a jury to agree
that the element of the crime has been satisfied without
requiring the jury to unanimously agree on the factual theory
that satisfied that element. See id. ¶ 20 (cleaned up) (citing
Hummel, 2017 UT 19, ¶ 53).

¶11 In State v. Alires, 2019 UT App 206, 455 P.3d 636, the
defendant faced charges for sexual abuse of a child under Utah
Code section 76-5-404.1(2), which, in the same subsection,
provided the criminal act’s requisite intent and actus reus
elements including “touching ‘the anus, buttocks, pubic area, or
genitalia of any child, the breast of a female child, or otherwise
tak[ing] indecent liberties with a child.’” Id. ¶ 21 (quoting Utah
Code Ann. § 76-5-404.1(2)). The jury instructions used in Alires
allowed the jury to—and the jury did—vaguely convict the
defendant based on various alleged inappropriate touches but
without specifying which act of inappropriate touching
constituted the act for which it convicted the defendant of each
crime. Id. ¶¶ 1, 20–24. Noting that, based on this statute, a
defendant could be “charged in separate counts and be
convicted for each act that violates the statute,” the court
determined that “the sexual abuse of a child statute contains
alternative actus reus elements by which a person could be

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found guilty of sexual abuse” and, therefore, that each illegal
touching “constitutes a distinct criminal offense.” Id. ¶ 21
(cleaned up). Thus, the court determined that where the jury
instruction failed to require the jurors to agree on which
individual touching constituted the individual illegal act of
which the defendant was being convicted, the jury instruction
failed to require proper unanimity. Id. ¶¶ 20–24.

¶12 In so concluding, the court contrasted the statute at issue
in Alires, with the statute at issue in State v. Hummel, 2017 UT 19,
393 P.3d 314. See Alires, 2019 UT App 206, ¶¶ 20–21. In Hummel,
the defendant faced a charge for theft under Utah Code section
76-6-404, which provided that “[a] person commits theft if he
obtains or exercises unauthorized control over the property of
another with a purpose to deprive him thereof.” See 2017 UT 19,
¶¶ 14, 56 (quoting Utah Code Ann. § 76-6-404 (LexisNexis
2017)). The Hummel court went on to explain that in Utah, “theft”
“is a single crime,” id. ¶ 19 (citing Utah Code Ann. § 76-6-403
(LexisNexis 2017), that the code described the elements of theft
in a new section, id. (citing Utah Code Ann. § 76-4-404), and that
after setting forth these “simple and straightforward” “general
elements” of the offense, the code then went on to provide, in
subsequent sections, various “means by which those elements
may be fulfilled,” including by “deception” or “extortion,” see id.
¶ 19 & n.7 (citing Utah Code Ann. §§ 76-6-405, -406). However,
the Hummel court stated that the provisions referencing
deception and extortion “set forth only non-exhaustive
examples. They describe illustrative ways that the single crime of
theft may be committed.” Id. ¶ 19. In so concluding, the court
explained that a defendant could not escape a charge of theft
merely by claiming that the defendant’s manner of theft, despite
meeting the general elements set forth in section 404, was not
specifically enumerated in a subsequent section—specifically,
the court noted,

A defendant could hardly escape a theft charge by
admitting he obtained or exercised unauthorized

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control over the property of another with a
purpose to deprive him thereof but insisting that
he didn’t do so in any of the specific manners set
forth in sections 405 through 410. (A pickpocket,
for example, is still guilty of theft even if
pickpocketing is not expressly set forth as a
manner of committing theft.)

Id. ¶ 19 n.7 (cleaned up). Thus, the Hummel court rejected the
idea that the jury needed to unanimously agree on whether the
theft was committed by deception or extortion because “neither
of [the provisions referencing deception and extortion] purports
to define a separate crime. Both define the crime of theft. For that
reason they do not alter the elements of theft, or add in any way to
what the jury must find to enter a verdict on a charge of theft.”
Id. ¶ 60 (cleaned up). In other words, “[t]he statutory examples
of means by which a person can meet the elements of the single
crime of theft are not ‘alternative actus reus elements’ of theft.
They are simply exemplary means of satisfying the criminal
elements defined by the legislature” as theft. Id. ¶ 61.

¶13 So, in Alires, where the statute at issue listed various
body parts that the legislature declared illegal to touch, the
court determined the statute’s various designations of
touching constituted independent “alternative elements,” each
of which constituted an independent crime, and the court
distinguished that statutory structure from the one in
Hummel, where the theft statute’s various sections and
designations of ways to commit theft constituted “alternative
factual theories” by which the elements of theft could be
enacted, but which did not amount to independent crimes.
See Alires, 2019 UT App 206, ¶¶ 20–21 (cleaned up). Here,
we determine that the obstruction of justice statute’s various
ways to perform the actus reus of the crime constitute
alternative elements, the commission of any one of which
could satisfy that statutory element, but which also require
the jury to “agree that the same underlying criminal act has been

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proved beyond a reasonable doubt.” See id. ¶ 22 (cleaned up); see
also State v. Rasabout, 2015 UT 72, ¶¶ 26–27, 356 P.3d 1258
(affirming “each discrete shot” as the unit of prosecution for
“unlawful discharge of a firearm” and stating that the state may
charge “a defendant with multiple violations consistent with the
statutorily defined unit of prosecution”).

¶14 Utah Code section 76-8-306(1)(a)–(j) provides,

(1) An actor commits obstruction of justice if the
actor, with intent to hinder, delay, or prevent
the investigation, apprehension, prosecution,
conviction, or punishment of any person regarding
conduct that constitutes a criminal offense:

(a) provides any person with a weapon;

(b) prevents by force, intimidation, or
deception, any person from performing any
act that might aid in the discovery,
apprehension, prosecution, conviction, or
punishment of any person;

(c) alters, destroys, conceals, or removes any
item or other thing;

(d) makes, presents, or uses any item or
thing known by the actor to be false;

(e) harbors or conceals a person;

(f) provides a person with transportation,
disguise, or other means of avoiding
discovery or apprehension;

(g) warns any person of impending
discovery or apprehension;

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(h) warns any person of an order
authorizing the interception of wire
communications or of a pending application
for an order authorizing the interception of
wire communications;

(i) conceals information that is not
privileged and that concerns the offense,
after a judge or magistrate has ordered the
actor to provide the information; or

(j) provides false information regarding a
suspect, a witness, the conduct constituting
an offense, or any other material aspect of
the investigation.

(LexisNexis 2017).

¶15 That is, to find a person guilty of obstruction of justice, a
jury must determine that the person has done two things: (1)
acted with the appropriate intent as described in section 76-8-
306(1) and (2) committed any one of the specific acts listed in
section 76-8-306(1)(a)–(j). Each act listed serves as an alternative
actus reus element, and like the statute in Alires, each
enumerated act could constitute an independent offense. In
contrast to the statute at issue in Hummel, instead of presenting
alternative methods or theories as to how a separate actus reus
element could be committed, these listed items themselves
constitute independent ways to satisfy a statutory actus reus
element and thus constitute independent alternative elements.
We can, however, imagine a statute constructed differently—one
that would require specified requisite intent and that the person
obstructed an investigation, potentially by a method identified in
Utah Code section 76-8-306(1)(a)–(j)—thus allowing the jury to
be unanimous as to the intent and obstruction elements but
allowing it to remain inconclusive about which act constituted
the obstruction. But this is not the statute the legislature enacted.

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The legislature instead identified the nature of intent required—
the first element—and rather than include an element devoted to
obstruction generally (with various potential ways to obstruct),
the legislature listed numerous acts, the commission of any one
of which would satisfy the second element. Thus, as the statute
is written, to unanimously determine that the second element
has been met, instead of simply agreeing that obstruction has
occurred, the jury must unanimously agree on which particular
obstructive act constituted that second element.

¶16 Here, trial counsel failed to request an instruction that
actually reflected the statute’s structure. Instead of requiring the
jury to specify which statutorily prohibited act Mendoza
engaged in, the jury instruction allowed for, and indeed invited,
ambiguity. The instruction required the jury to find only that
Mendoza “did any of the” items provided on the list without
explaining the need to reach unanimity as to which act Mendoza
committed to satisfy the statute’s second element. And this
problem was compounded by the fact that the jury was not
required to demonstrate unanimity by specifying, through a
special verdict form, which act Mendoza had committed in
satisfying that statutory element. As such, “the jury was never
instructed that it must unanimously agree that [Mendoza]
committed the same unlawful act” to meet the elements required
for obstruction of justice. See Alires, 2019 UT App 206, ¶ 23. But
our law regarding jury unanimity does require that jurors agree
on each element of a crime, including which “alternative
element” a defendant committed. See id. ¶¶ 20–21. And counsel’s
failure to request a jury instruction in accordance with that law
unreasonably simplified the jury’s task and thereby lightened
the State’s burden.

¶17 Indeed, a jury with each juror relying on that juror’s own
individual view in determining which one of many various acts
had been committed in order to satisfy the elements of a
particular crime might face little difficulty in reaching a verdict;
on the other hand, a jury forced to deliberate regarding the

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specific details would face a steeper climb to determine that each
juror agreed on which act had actually occurred; and
consequently, the State would face a more challenging task of
persuading the jury to agree, with specificity, on whether a
particular act had been committed. Regarding these
circumstances, trial counsel bears a duty to assist the defendant
in reaping the benefits of a jury trial and to hold the State to its
full and complete burden of proof. See Strickland v. Washington,
466 U.S. 668, 688 (1984) (“Counsel also has a duty to bring to
bear such skill and knowledge as will render the trial a reliable
adversarial testing process.”). Here, no objectively competent
attorney would have failed to request a clarifying instruction in
order to avoid streamlining the jury’s path to a verdict or
allowing the State to carry a burden any lighter than what our
law requires. In this regard, counsel’s failure fell below an
objective standard of reasonableness.

II. Prejudice

¶18 In addition to demonstrating counsel’s deficient
performance, Mendoza must also demonstrate that “the
deficient performance prejudiced” him such that there exists “a
reasonable probability that the outcome of his . . . case would
have been different absent counsel’s error.” See State v. Scott,
2020 UT 13, ¶¶ 28, 43, 462 P.3d 350 (cleaned up). This
“reasonable probability” exists when, after considering “the
totality of the evidence before the judge or jury,” State v. Alires,
2019 UT App 206, ¶ 27, 455 P.3d 636 (cleaned up), the alleged
prejudice undermines our confidence in the proceeding’s
outcome, Scott, 2020 UT 13, ¶ 43. Consequently, “a verdict or
conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record
support.” Strickland v. Washington, 466 U.S. 668, 696 (1984).

¶19 Here, as Mendoza rightly points out, the ultimate
question is, “[W]hich of the alternatives . . . did the jurors agree
upon beyond a reasonable doubt”? “[D]id they agree on any

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particular one? Did some agree on [one], beyond a reasonable
doubt, and others agree on [another], beyond a reasonable
doubt, and yet others agree on [a third], beyond a reasonable
doubt?” And we agree with Mendoza’s assessment that the
statute’s—and by association the instruction’s—“grab bag of
‘elements’ provides plenty for the jury to disagree on.”
Although, as Mendoza argues, “the jury had to agree on at least
one of the alternatives unanimously,” the instruction provided
to the jury renders it impossible to determine whether the jury
reached any level of unanimity regarding the specifics of
obstruction of justice’s second element. The prosecutor noted the
“various different ways to obstruct justice” but stated, “[H]ere
we are not dealing with all of them. We’re focused on just a
few.” In so doing, the prosecutor lumped numerous actions
together and urged the jury to convict on any of them instead of
putting all his eggs in one basket and arguing that the jury
should unanimously determine that Mendoza committed any
one particular action. This decreases our confidence that the
jurors unanimously agreed that Mendoza had committed a
specific act.

¶20 Had the evidence in this case clearly illustrated an
example of the statutorily prohibited conduct, we might be
inclined to affirm for lack of prejudice. But to be frank, none of
the facts presented here obviously fall within any of the
enumerated alternative elements. Although Mendoza used
strong language in informing the police of his distaste for their
presence, nothing in this language amounts to the type of force
or intimidation that could prevent the police from investigating
a crime, see Utah Code Ann. § 76-8-306(1)(b) (LexisNexis 2017)—
in fact, no evidence suggests that the police tried to do anything
except speak with Mendoza, and until Mendoza responded to
his wife’s phone call, nothing suggests that Mendoza even knew
what the police wanted, see supra ¶¶ 3–5. Further, although the
police were unable to make contact with the alleged assault
victim as quickly as they wanted to, nothing indicates that
Mendoza himself harbored or concealed her, see Utah Code Ann.

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§ 76-8-306(1)(e)—in fact, the trial testimony suggested that at all
times the young woman acted of her own volition in returning to
the house and exiting the house when she did, see supra note 3.

¶21 Reviewing the record ourselves, we remain unsure as to
how Mendoza’s conduct might have satisfied any of the
alternative elements, let alone whether and how the jury would
have unanimously agreed on which alternative element
Mendoza’s conduct satisfied. We agree with Mendoza that
“[a]ny presumption that the jury would have voted on any
particular element or elements is simply speculation,” and had
the jury been required to deliberate regarding the specific act
that satisfied the statutory element, we believe there exists a
reasonable probability that the proceeding’s outcome would
have differed—suffice it to say, our confidence in the
proceeding’s outcome has been undermined.

CONCLUSION

¶22 Counsel rendered ineffective assistance in failing to either
request a unanimity instruction or request a special verdict form,
and this failure has prejudiced Mendoza in a way that has
undermined our confidence in the proceeding’s outcome. We
therefore reverse and remand for a new trial and direct the court
to either instruct the jurors that they must agree on which act
Mendoza committed to satisfy the statute’s second element or
provide a special verdict form requiring the jurors to indicate
which act they agree Mendoza has committed to satisfy the
statute’s second element—and preferably, both.

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