State v. Nelson

2021 UT App 26

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TYLER CHRIS NELSON,
Appellant.

Opinion
No. 20190495-CA
Filed March 11, 2021

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 181912217

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and David A. Simpson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Tyler Chris Nelson appeals his conviction for aggravated
robbery. He asserts that his counsel provided ineffective
assistance in failing to object to the introduction of a statement
Nelson made during a police interview in which Nelson implied
that he had committed a similar crime in the past. Nelson also
asserts that the district court erred when it refused his request
for a lesser-included-offense jury instruction. We affirm.
 State v. Nelson

BACKGROUND 1

¶2 One morning, Victim, who worked as an assistant
manager at a restaurant, went to his car in the restaurant parking
lot to smoke a cigarette. As Victim sat behind the wheel of his car
with the door open, Nelson approached. Thinking Nelson might
want a handout, Victim told him, “I don’t have any money or
cigarette[s].” Nelson responded, “I don’t want that. I want your
car. . . . I want to borrow your car.” Victim told him, “No.
Absolutely not.” By this point, Victim “could tell that [Nelson]
was planning on” stealing his car. After Nelson told Victim
“Don’t be stupid” a few times, Victim got out of the car to get
away from Nelson. Nelson kept “coming at” Victim “[f]ace to
face,” saying, “Give me your car, I’m going to take your car.
Give me your keys. Don’t be dumb.” Victim then saw Nelson
pull out a can of what appeared to be pepper spray, which
Nelson aimed at Victim’s face. Nelson was unable to discharge
the spray, and Victim ran toward the front door of the
restaurant. But Nelson gave chase, caught Victim around his
waist, took Victim to the ground, and “ripped” Victim’s keys off
his belt loop. Victim received minor bruises to his legs as a result
of the incident.

¶3 Nelson then headed toward Victim’s car. Victim got up
and chased Nelson, but by the time he got to his car, Nelson had
already started the engine. Victim reached into the car with the
intent to “grab [Nelson] by his hair and pull him out the [driver-
side] window,” but he ended up getting only Nelson’s
sunglasses. Nelson took off in Victim’s car. Victim set the

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (quotation simplified).

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 State v. Nelson

sunglasses on the concrete curb near the corner of the restaurant
building and called the police immediately.

¶4 Officers took a statement from Victim and collected the
sunglasses as evidence. Testing the sunglasses yielded no useful
fingerprints, so the glasses were submitted for DNA analysis. A
swab of the glasses revealed two genetic profiles. Victim was
excluded as a match, but the major DNA profile returned a
“CODIS hit” (i.e., a match) on Nelson, making Nelson the prime
suspect in the theft. 2 The DNA analyst who performed the test
explained that the “frequency of occurrence of the [major DNA]
profile among unrelated individuals in the U.S. population is
estimated to be: 1 in 27.3 octillion for Caucasians, 1 in 4.53
decillion for African-Americans and 1 in 277 octillion for
Hispanics.” 3

¶5 After identifying Nelson as the suspect based on the DNA
analysis, the detective (Detective) on the case located Nelson,
who been booked into the Salt Lake County jail on an unrelated
case involving similar conduct, see infra ¶ 11, and obtained a
warrant to collect Nelson’s DNA by means of a cheek swab. At
the time he obtained the swab, Detective also interviewed
Nelson, the audio recording of which was played at trial. In that
recording, Detective identified himself, advised Nelson of his

2. “CODIS is the FBI’s Combined DNA Index System—a
centrally-managed database linking DNA profiles culled from
federal, state, and territorial DNA collection programs, as well as
profiles drawn from crime-scene evidence, unidentified remains,
and genetic samples voluntarily provided by relatives of missing
persons.” United States v. Kriesel, 508 F.3d 941, 944 (9th Cir. 2007).

3. An octillion is a number equal to a one followed by twenty-
seven zeros, and a decillion is a one followed by thirty-three
zeros. See Number, Webster’s Third Int’l Dictionary (2002).

20190495-CA 3 2021 UT App 26
 State v. Nelson

Miranda rights, and notified Nelson he was investigating a
robbery that took place at the restaurant in question. Nelson
said, “I know where you’re talking about.” Detective said, “Tell
me what happened,” and Nelson said, “Same thing.” Nelson
elaborated, “You know, I was really dope sick . . . [n]eeded some
money, needed a car and . . . so . . . [t]ook the car from him . . . .”
Nelson added that he had the car “[m]aybe four or five hours”
and then abandoned it at a parking lot a few miles away.
Detective thanked Nelson for his honesty and told Nelson, “I
will try to get this screened as soon as possible so you can deal
with it while you’re in here, rather than . . . getting out and
getting jammed up with something else again.”

¶6 Nelson was charged with one count of aggravated
robbery. See Utah Code Ann. § 76-6-301(1)(a) (LexisNexis 2017)
(“A person commits robbery if . . . the person unlawfully and
intentionally takes or attempts to take personal property in the
possession of another from his person, or immediate presence,
against his will, by means of force or fear, and with a purpose or
intent to deprive the person permanently or temporarily of the
personal property.”); id. § 76-6-302(1)(c) (“A person commits
aggravated robbery if in the course of committing robbery, he . . .
takes or attempts to take an operable motor vehicle.”). At trial,
the State presented the evidence as summarized above. Nelson
did not testify or present any witnesses in his defense. However,
he requested that the jury be instructed on the lesser-included
offense of theft. See id. § 76-6-404 (“A person commits theft if he
obtains or exercises unauthorized control over the property of
another with a purpose to deprive him thereof.”). Nelson argued
“that if there is any form of evidence that supports one of the
jury instructions, the defendant should be able to present that to
a jury as an alternative.” The State opposed the lesser-included-
offense instruction: “There’s been no testimony that would raise
any inference that the keys were not on [Victim’s] person at the
time when they were taken. Based on [Nelson’s] own admission
. . . , he took the keys from [Victim].” The district court denied

20190495-CA 4 2021 UT App 26
 State v. Nelson

the request, stating that, given the “limited testimony with
regard to the incident,” there was no “alternate way to interpret
. . . what the testimony is with regard to the incident. . . . [I]t’s
not like [Victim] dropped the keys and they were picked up, or
[Nelson] went into the back of the restaurant and found keys
lying down.”

¶7 The jury found Nelson guilty as charged, and he was
sentenced to a prison term of five years to life. Nelson appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Nelson first asserts that his trial counsel (Counsel) was
constitutionally ineffective in failing to object to the admission of
the portion of the police interview where Nelson admitted to a
previous incident, which he characterized as the “same thing” as
the incident involving Victim. “A claim of ineffective assistance
of counsel raised for the first time on appeal presents a question
of law . . . .” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d 425
(quotation simplified).

¶9 Nelson also claims that the district court erred in refusing
to instruct the jury with regard to the lesser included offense of
theft. “A trial court’s refusal to grant a lesser included offense
instruction is a question of law, which we review for
correctness.” State v. Florez, 2020 UT App 76, ¶ 15, 465 P.3d 307
(quotation simplified).

ANALYSIS

I. Ineffective Assistance of Counsel

¶10 Nelson first claims that Counsel rendered ineffective
assistance by failing to object to the admission of the portion of
the police interview in which Nelson told Detective that what

20190495-CA 5 2021 UT App 26
 State v. Nelson

happened with Victim was the “same thing” as another incident
in which Nelson was involved.

¶11 To understand Nelson’s claim, it is helpful to understand
the context of the “same thing” statement. The State had planned
for Detective to testify—before the audio recording was played
for the jury—that he was the lead detective in another
aggravated robbery to which Nelson had pleaded guilty a few
months before the interview. The State pointed out that the
phrase “same thing” was in reference to a prior conversation
with Detective in which Nelson had confessed to stealing a car in
a similar way during a previous robbery. In this context, the
State sought to present evidence that Nelson had previously told
Detective, “Yes, . . . I took her purse, I took the keys, I took the
car,” with regard to the prior robbery. The State argued that
evidence of the prior bad act should come in to provide context:

So when [Nelson] says “same thing,” and then
follows it up with “I was dope sick, I needed
money, I took the car,” [evidence of the previous
offense is] not in any way to prove that . . . this is a
pattern of behavior. [Evidence of the previous
offense is] simply giving context to that [phrase]
“same thing,” because without that predicate
knowledge, . . . it doesn’t come in anywhere.

Counsel objected to the admission of the prior-act evidence,
arguing that the audio recording should stand on its own: “[The
jurors are] going . . . to hear the tape, there’s nothing that we can
do about that. And they should be able to listen to the tape and
put together the facts that correspond with this case, but not
injecting evidence from another case.”

¶12 The district court agreed with Counsel and did not allow
the State to present the prior-act evidence, noting that the
evidence of the previous offense was not “necessary” to give
“context to the statement on the tape” and that admitting the

20190495-CA 6 2021 UT App 26
 State v. Nelson

prior-bad-act evidence would be “problematic” because it posed
an “undue risk of prejudice to [Nelson] in that it appears to be
extremely similar, very close in time.” Consequently, the jury
heard the audio recording in which Nelson admitted to doing
the “same thing” without hearing the additional information
about the prior incident to which the statement referred.

¶13 On appeal, Nelson argues that it is difficult to understand
why—after the district court had already ruled that evidence of
the prior incident would be inadmissible—Counsel conceded to
allowing admission of the “same thing” statement. Nelson
asserts that “[a]llowing the jury to speculate as to the meaning of
‘same thing’ was highly improper” because it led the jury to
construe the statement as referring to a similar bad act, all to the
prejudice of Nelson. And Nelson argues that Counsel
unreasonably “failed to object to what was essentially an
admission . . . of a prior bad act.” He claims that had Counsel
objected, “the court would no doubt have agreed that the
statement should have been redacted” because (1) the statement
“required the jury to speculate as to its meaning” and (2) the
court had already ruled that the prior-bad-act evidence relating
to the first robbery was inadmissible. 4 With the remedy of
redaction likely at hand, Nelson argues that Counsel rendered
ineffective assistance by “allowing evidence of a prior bad act,
out of [Nelson’s] own mouth,” to be admitted without objection.

4. While, as we explain below, we limit our analysis to the
prejudice prong, we agree with Nelson that the “same thing”
statement “could easily have been excised” and that the State is
incorrect that “there was no way to present only part of the
recorded confession without diminishing its critical probative
value.” To this end, we encourage practitioners—both defense
lawyers and criminal prosecutors—to ensure that recorded
statements are properly redacted to suit the evidentiary
landscape.

20190495-CA 7 2021 UT App 26
 State v. Nelson

¶14 To succeed on a claim of ineffective assistance of counsel,
Nelson must demonstrate that Counsel’s “performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Nelson’s] claims under either prong.” See Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182. Here, we assume, without deciding, that
Counsel performed deficiently in failing to object to the
admission of the portion of the interview in which Nelson
admitted to doing the “same thing,” and we accordingly limit
our analysis to Strickland’s prejudice prong.

¶15 To establish prejudice, a “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. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In
assessing whether a defendant has met this standard, we
therefore 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.” State v. Gallegos, 2020 UT
19, ¶ 33, 463 P.3d 641 (quotation simplified).

¶16 “Here, [Nelson] cannot show that, but for [Counsel’s]
deficient performance, there is a reasonable probability that he
would have been acquitted, because the overwhelming,
undisputed evidence on the record supports the jury’s
conviction in this case.” See State v. Beverly, 2018 UT 60, ¶ 31, 435
P.3d 160; see also Seel v. Van Der Veur, 971 P.2d 924, 927 (Utah
1998) (noting that a jury’s knowledge of a defendant’s prior
felonies did not result in prejudice given “the overwhelming
weight of evidence against” the defendant). “And in
determining whether [Nelson] has shown a reasonable
probability that [redacting the audio recording] would have

20190495-CA 8 2021 UT App 26
 State v. Nelson

changed the jury’s guilty verdict, this piece of evidence must be
considered alongside the totality of the evidence that was
already before the jury.” See State v. Scott, 2020 UT 13, ¶ 46, 462
P.3d 350 (quotation simplified).

¶17 The evidence that Nelson committed the robbery was
overwhelming. First, even without the admission that he did the
“same thing” on a previous occasion, Nelson told Detective that
he knew about the robbery at the restaurant, and he
unambiguously admitted that he “[t]ook the car” from Victim
because he was “dope sick” and “[n]eeded some money” and “a
car.” He further admitted to keeping the car for several hours
before abandoning it. So, even if the jury had not heard the
“same thing” statement, it still would have heard Nelson admit
that he stole Victim’s car and kept it for some time. Moreover,
Nelson’s DNA profile was found on the sunglasses grabbed by
Victim, providing compelling evidence that Nelson was the
individual who stole the car. On appeal, Nelson does not
address these two key pieces of evidence. Instead, he focuses on
the “same thing” statement, arguing that it likely caused the jury
to speculate that Nelson had committed a “similar prior bad
act.” That admission may well have inspired the jury to
speculate about Nelson’s character or criminal record, but it does
not follow that this potential speculation prejudiced Nelson such
that it undermines our confidence in the verdict. We are
unconvinced that any amount of speculation by the jury about
what Nelson meant by “same thing” would have made a
difference in the outcome of the trial given his unqualified
confession and the physical evidence linking Nelson to the
robbery.

¶18 Thus, because Nelson is unable to carry his burden of
demonstrating prejudice caused by the admission of the
“same thing” statement, his claim of ineffective assistance
is unavailing.

20190495-CA 9 2021 UT App 26
 State v. Nelson

II. Lesser Included Offense

¶19 Nelson also asserts that the district court erred in refusing
to instruct the jury with regard to a lesser included offense of
theft. At trial, Nelson argued that he was entitled to the
instruction “if there [was] any form of evidence” in support of
the lesser included offense. He claimed that the evidence
submitted at trial supported a simple theft instruction because
his intent, he asserted, when he took the keys from Victim, was
“to take the car, not to harm [Victim].” Nelson further argued,
“[T]he question is up to the jury as a matter of fact whether or
not there was a physical altercation, how the keys were obtained,
was there pepper spray used. . . . So I think the jury needs to
weigh the credibility of [Victim] and . . . Nelson in regards to
whether it was a theft of a vehicle or an aggravated robbery.”
The State responded by asserting, “[T]he evidence that was put
before the jury does not lend itself to the inclusion of a lesser
included of a simple theft of an automobile. We’ve heard ample
testimony that there has been force . . . .” The court denied
Nelson’s request for the lesser-included-offense instruction,
noting that the “very limited,” “clear,” and unambiguous
testimony “presented at trial” did not allow for the lesser
included instruction.

¶20 “[I]t has long been recognized that [a lesser-included-
offense instruction] can . . . be beneficial to the defendant
because it affords the jury a less drastic alternative than the
choice between conviction of the offense charged and acquittal.”
Beck v. Alabama, 447 U.S. 625, 633 (1980). “Where one of the
elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely to
resolve its doubts in favor of conviction.” State v. Baker, 671 P.2d
152, 157 (Utah 1983) (quotation simplified). By providing the
jury the option of convicting a defendant of a lesser included
offense, a defendant is thus “afforded the full benefit of the
reasonable doubt standard.” Id. at 156.

20190495-CA 10 2021 UT App 26
 State v. Nelson

¶21 But the right to a lesser-included-offense instruction is not
absolute. “A criminal defendant is entitled to a jury instruction
on a lesser included offense if (1) the charged offense and the
lesser offense have overlapping statutory elements and (2) there
is a rational basis in the record as a whole for convicting the
defendant of the lesser offense rather than the one charged.”
State v. LoPrinzi, 2014 UT App 256, ¶ 17, 338 P.3d 253 (quotation
simplified); accord State v. Powell, 2007 UT 9, ¶¶ 24, 27, 154 P.3d
788; see also Utah Code Ann. § 76-1-402(4) (LexisNexis 2017).
Thus, “a defendant’s right to a lesser included offense
instruction is limited by the evidence and only justified where
there is a rational basis for a verdict acquitting the defendant of
the offense charged and convicting him of the included offense.”
Powell, 2007 UT 9, ¶ 27 (quotation simplified). And while a
district court must view “the evidence in the light most favorable
to the defendant requesting the instruction,” see id., a “defendant
is not entitled to a [lesser-included-offense] jury instruction” if
the request “is based on sheer speculation,” id. ¶ 33, “that the
jury could have potentially disbelieved the witnesses’
testimony,” id. ¶ 32. “Instructing the jury as to lesser included
offenses for which there is no support in the evidence would
allow the jury to preempt the prosecutor’s function in charging
offenses and the judge’s function in imposing sentences.” Id. ¶ 33
(quotation simplified).

¶22 Here, apart from Nelson’s “sheer speculation,” see id., that
the jury may have disbelieved Victim’s testimony, “there was no
rational basis in the evidence requiring a lesser included offense
instruction,” see id. ¶ 28. The evidence at trial did not provide a
rational basis for the jury to both acquit Nelson of aggravated
robbery and convict him of simple theft of a vehicle. Indeed, the
only evidence the jury heard from Nelson was the audio
recording in which he told Detective that he “[t]ook the car from
[Victim]” because he “[n]eeded some money, needed a car.” In
the interview, Nelson never asserted that he took the car without
force, and no other evidence supporting that contention was

20190495-CA 11 2021 UT App 26
 State v. Nelson

introduced at trial. In contrast, Victim unequivocally stated that
force was used. Victim testified that Nelson chased him as he
attempted to retreat inside the restaurant, grabbed him “around
[his] waist area and pretty much overpowered [him],” and then
“ripped [the keys to the car] off [his] belt loop,” bruising
Victim’s legs in the process. Moreover, Victim testified that
Nelson kept “coming at him,” “face to face,” saying, “Give me
your car, I’m going to take your car. Give me your keys. Don’t be
dumb,” while pointing what appeared to be a can of pepper
spray at him. Nelson never presented any evidence that he
happened to find the keys in the parking lot or that he otherwise
obtained them from Victim without using force. On the other
hand, the State presented evidence that Nelson “grabbed”
Victim, took him “to the ground,” and “pushed [Victim] down
once [Nelson] had a hold of the keys.” As the State argues in its
brief, “Nelson may have wished the jurors could have accepted
his unsupported theory and convicted him only of theft,” but the
only evidence presented to the jury was that Nelson forcefully
took the car from Victim.

¶23 Thus, the district court did not err in denying Nelson’s
request for a lesser-included-offense jury instruction. The State
presented uncontroverted evidence that sufficient force was
used to support a charge of robbery rather than theft. And
because Nelson failed to present any evidence that he did not
use force in taking the keys away from Victim, there was no
evidence to support the lesser included offense of theft.

CONCLUSION

¶24 Counsel did not render ineffective assistance, because
Nelson, given the overwhelming evidence of his guilt, cannot
show he was prejudiced by the admission of his statement that
he had recently committed an offense similar to the charged
offense. And because Nelson presented no evidence that he
obtained the keys from Victim absent the use of force, while the

20190495-CA 12 2021 UT App 26
 State v. Nelson

State produced ample evidence that force was used when
Nelson stole Victim’s car, the district court did not err in denying
Nelson’s request for a lesser-included-offense jury instruction.

¶25 Affirmed.

20190495-CA 13 2021 UT App 26