2015 UT App 152
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
BENITA KENNEDY,
Defendant and Appellant.
Opinion
No. 20130229-CA
Filed June 18, 2015
Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 121900345
Scott S. Bell, Nicole G. Farrell, and Alan S. Mouritsen,
Attorneys for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
PEARCE, Judge:
¶1 Defendant Benita Kennedy appeals her obstruction-of-
justice conviction. She contends that the jury instructions were
vague, that the court erred in rejecting her proposed mistake-of-
fact instruction, and that she was deprived of her constitutional
right to effective assistance of counsel when her trial counsel
failed to object to the sufficiency of the evidence against her. We
affirm.
BACKGROUND
¶2 We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
State v. Kennedy
understand the issues raised on appeal. State v. Black, 2015 UT
App 30, ¶ 2, 344 P.3d 644.
¶3 Eddie Garza hatched a plan to raise funds to throw his
girlfriend’s son a birthday party by robbing Hiram Torez, a drug
dealer. Garza called Torez, asking to purchase drugs. They
agreed to meet in a parking lot. To help pull off the robbery,
Garza brought his girlfriend’s stepfather (Christian
Lizarzaburu), her brother (Larry Davis), and a friend (Anthony
Corona).
¶4 Kennedy was with Torez at the home of Natalie Jo Irish
when Torez received Garza’s call. Before leaving for the meeting,
Torez loaded his handgun. Kennedy drove Torez to the meeting
point—a church parking lot—in Irish’s SUV.
¶5 Garza’s group arrived first, driving a sedan Garza’s
cousin’s roommate had rented. Garza parked the sedan.
Lizarzaburu and Davis exited the car and hid behind a nearby
building. Garza remained in the driver’s seat. Corona took the
front passenger seat. When Kennedy arrived, she parked the
SUV next to the sedan but facing the opposite direction, so that
the drivers’ doors faced each other about five feet apart.
¶6 Torez got out of the SUV and into the rear seat of the
sedan. Garza, Torez, and Corona began to argue. Lizarzaburu
and Davis ran to the sedan, opened both rear doors, and saw
Garza and Torez fighting. Garza told Corona to shoot Torez.
Corona shot Torez six times; one bullet grazed Garza’s finger.
¶7 Garza, Corona, Lizarzaburu, and Davis then ran from the
sedan. As Garza exited the sedan, Torez pleaded for help. Garza
responded, ‚Sorry, homey.‛ Corona ran to a nearby building.
¶8 Meanwhile, Kennedy remained in the driver’s seat of the
SUV, playing a game on her cell phone. Out of the corner of her
eye, and through the tinted windows of the SUV, she saw flashes
and realized that the situation had soured. She saw three
20130229-CA 2 2015 UT App 152
State v. Kennedy
people—Garza, Lizarzaburu, and Davis—approaching the SUV.
According to Lizarzaburu, Kennedy recognized the three, rolled
down her window, called them by name, and told them to get
in.1 However, according to Irish, Kennedy later said she had not
recognized them until after they had entered the SUV.
¶9 Irish also testified that Kennedy told her that, while
driving away, Kennedy had exclaimed something to the effect of
‚Oh my God‛ and ‚[W]hat have you guys done?‛ Her
passengers instructed her to pick up Corona. According to
Lizarzaburu, Kennedy told Corona to ‚get in, get in, get in the
car.‛ After Corona got in, Kennedy asked the group if they had
killed Torez. Corona replied that he had ‚dumped on *Torez]
with the .22.‛
¶10 Kennedy dropped Corona, Lizarzaburu, and Davis off
before taking Garza to Irish’s house. Irish cleaned Garza’s
injured finger with hydrogen peroxide and drove him home.
According to Garza’s cousin, Kennedy suggested to Garza that
he tell the cousin to report the rented sedan as stolen.
Meanwhile, people near the scene of the shooting had heard the
gunshots and called the police. When officers arrived, they
discovered Torez’s body inside the sedan.
¶11 Kennedy was eventually charged with one count of
obstruction of justice. The charge was enhanced to a first-degree
felony because the State alleged Kennedy had acted in concert
with two or more people. At trial, Kennedy primarily argued
that she could not have formed the intent to obstruct justice,
because she did not know a crime had been committed. The
State argued that, given Kennedy’s proximity to the shooting,
she must have known that a crime had occurred.
1. Kennedy told the investigating police officers that she had
known some of her new passengers for years.
20130229-CA 3 2015 UT App 152
State v. Kennedy
¶12 At the close of the evidentiary phase, Kennedy asked the
court to give the jury a mistake-of-fact instruction. The gist of the
proffered instruction was that ‚*a+n act committed under an
ignorance or mistake of fact, which disproves the culpable
mental state, is a defense to any prosecution for the crime.‛ The
court declined to give the instruction.
¶13 The court provided two jury instructions relevant to this
appeal. The first (Instruction 15) was a general instruction
concerning mental states:
[T]he prosecution must prove that at the time the
defendant acted, he/she did so with a particular
mental state. For each offense, the law defines what
kind of mental state the defendant had to have, if
any.
For the crime(s) charged in this case, the defendant
must have acted ‚intentionally‛ or ‚knowingly‛ or
recklessly. The prosecution must prove beyond a
reasonable doubt that the defendant acted
intentionally or knowingly or recklessly before the
defendant can be found guilty of the crime
charged.
¶14 Instruction 15 then defined each of the three mental states.
For example, ‚*a+ person engages in conduct intentionally or
with intent or willfully with respect to the nature of his conduct
or to a result of his conduct, when it is his conscious objective or
desire to engage in the conduct or cause the result.‛
¶15 The second instruction at issue is Instruction 19. Unlike
Instruction 15, Instruction 19 referred to the specific defendant
and crime charged:
Before you can convict the defendant, Benita
Kennedy, of the offense of Obstruction Of Justice
as charged in the Information, you must find from
20130229-CA 4 2015 UT App 152
State v. Kennedy
all of the evidence and beyond a reasonable doubt
all of the following elements of that offense:
1. That on or about the 10th day of December,
2011, in Salt Lake County, State of Utah, the
defendant, Benita Kennedy;
2. With the intent to hinder, delay, or prevent
the investigation, apprehension, prosecution,
conviction, or punishment of any person regarding
a criminal offense;
3. Did one or more of the following:
(a) altered, destroyed, concealed, or
removed any item or other thing; or
(b) harbored or concealed a person; or
(c) provided a person with transportation,
disguise, or other means of avoiding
discovery or apprehension; or
(d) warned any person of impending
discovery or apprehension; or
(e) provided false information regarding a
suspect, a witness, the conduct constituting
an offense, or any other material aspect of
the investigation; and
4. She knew or should have known the criminal
offense was either criminal homicide, aggravated
robbery, or discharge of a firearm causing serious
bodily injury.
¶16 The jury convicted Kennedy of obstruction of justice.
Kennedy appeals.2
2. The parties filed four letters with the court after briefing was
complete. See generally Utah R. App. P. 24(j) (governing letters of
(continued<)
20130229-CA 5 2015 UT App 152
State v. Kennedy
ISSUES AND STANDARDS OF REVIEW
¶17 Kennedy first contends that the jury instructions failed to
require that the jury find that she specifically intended to
obstruct justice. We review a challenge to jury instructions for
correctness. State v. Featherhat, 2011 UT App 154, ¶ 8, 257 P.3d
445.
¶18 Kennedy also contends that the trial court erred by failing
to give the jury her proposed mistake-of-fact instruction. The
issue of whether to instruct the jury on a theory that is supported
by the evidence presents a legal question. State v. Berriel, 2013 UT
19, ¶ 10, 299 P.3d 1133. We review the trial court’s resolution of
that question for correctness. But whether the evidence
introduced at trial supports a particular theory is ‚primarily a
factual question,‛ and we review the trial court’s resolution of it
for an abuse of discretion. Id. ¶¶ 9, 11.
¶19 Finally, Kennedy contends that the evidence against her
was insufficient to sustain a conviction. We will reverse a guilty
(