State v. Garcia

2016 UT App 59

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
YESHA ANTHONY GARCIA,
Appellant.

Opinion
No. 20140203-CA
Filed March 31, 2016

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

John B. Plimpton and Teresa L. Welch, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Yesha Anthony Garcia appeals from his convictions for
attempted murder and possession of a firearm by a restricted
person. We reverse in part, affirm in part, and remand the case
for further proceedings consistent with this opinion.

BACKGROUND

¶2 Garcia was charged with two counts of attempted
murder, two counts of felony discharge of a firearm, one count
of possession or use of a firearm by a restricted person, and one
count of possession of drug paraphernalia, all stemming from an
 State v. Garcia

incident in which Garcia shot at his cousin and his cousin’s
girlfriend’s daughter as they drove by Garcia’s house.

¶3 Garcia, a drug dealer, believed that his cousin (Cousin)
and Cousin’s girlfriend’s daughter (K.C.) had stolen cocaine
from him. Garcia went looking for Cousin and ran into Cousin’s
girlfriend (Girlfriend) and K.C. at an apartment Garcia was
renting out. Garcia assaulted Girlfriend and K.C. ‚in a rage.‛

¶4 Garcia believed that Cousin would ‚seek revenge‛ for the
assault. The day after the assault on Girlfriend and K.C., Garcia
waited for Cousin to retaliate. Cousin and K.C. drove by Garcia’s
house, turned around, and then drove by again. During the
second pass, Garcia came out of his house and fired four shots at
Cousin’s vehicle. Neither Cousin nor K.C. were struck by the
bullets, but one of the bullets hit the vehicle, chipping the paint.
K.C. testified at trial that they had driven past Garcia’s house to
obtain Garcia’s address for the purpose of reporting the previous
day’s assault to the police. In contrast, Garcia testified that he
believed Cousin was driving by his house to seek revenge and
that the second time Cousin drove by, Garcia was justified in
protecting himself and his property from an attack.

¶5 At trial, Garcia asserted the affirmative defense of self-
defense to the charges of attempted murder. The evidence
presented to support this assertion included the following: (1)
Garcia believed Cousin would seek revenge for Garcia’s attack
on Girlfriend and K.C., (2) Cousin had a history of violence and
Garcia understood Cousin’s history and character, and (3) there
were long-running feuds between Garcia and Cousin. In
addition, Detective O’Camb, who interviewed Garcia after his
arrest, testified at trial that Garcia admitted during the interview
that he was so worried about revenge from Cousin that he took
precautionary measures by sending his live-in girlfriend away
and by not allowing her nieces and nephews over to his house
on the night that Garcia thought Cousin would attack. Garcia
believed that Cousin would seek revenge either by throwing a
Molotov cocktail at his house (which Garcia stated in the police

20140203-CA 2 2016 UT App 59
 State v. Garcia

interview) or by ‚coming for him‛ with a gun (to which he
testified at trial).

¶6 At the end of the State’s case, Garcia’s trial counsel (Trial
Counsel) moved for a directed verdict. With regard to the charge
of restricted person in possession of a firearm, Trial Counsel
argued that the evidence presented at trial was insufficient to
support a finding that Garcia was an unlawful drug user. Trial
Counsel argued that no evidence had been presented
demonstrating that Garcia was ‚currently using‛ drugs as Trial
Counsel argued was required to be proved under the statute.
The trial court granted Garcia’s motion on the charge of
possession of drug paraphernalia, but declined to direct a
verdict on the remaining charges.

¶7 Before the jury instructions were read to the jury, Trial
Counsel requested a jury instruction on the lesser-included
offense of attempted manslaughter based on recklessness. The
State opposed Trial Counsel’s argument but conceded that
‚there is some evidence upon which *the State] believe[d] that
the Defense could argue‛ for a defense of imperfect self-defense
and that the State ‚*thought+ that *an+ instruction *on imperfect
self-defense+ should come in.‛ Trial Counsel was then instructed
to prepare an instruction on the lesser-included offense of
attempted manslaughter based upon imperfect self-defense. The
instruction stated, ‚Before you can find the Defendant guilty of
the lesser-included offense of ATTEMPTED MANSLAUGHTER,
. . . you must find beyond a reasonable doubt [that the]
affirmative defense of imperfect-self defense does not apply.‛
The jury found Garcia guilty of one count of attempted murder,
both counts of discharge of a firearm, and the count of
possessing a firearm as a restricted person.1 Garcia appeals.

1. The jury acquitted Garcia of the charge of attempted murder
relating to K.C.

20140203-CA 3 2016 UT App 59
 State v. Garcia

ISSUES AND STANDARDS OF REVIEW

¶8 Garcia contends that Trial Counsel was ineffective 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 beyond a reasonable
doubt.‛ ‚An ineffective assistance of counsel claim raised for the
first time on appeal presents a question of law, which we review
for correctness.‛ State v. Fowers, 2011 UT App 383, ¶ 15, 265 P.3d
832 (citation and internal quotation marks omitted).

¶9 Garcia also contends that the evidence presented at trial
was insufficient to sustain his conviction of possession of a
firearm by a restricted person. ‚When a defendant challenges a
jury verdict for insufficiency of the evidence, we review the
evidence and all inferences which may be reasonably drawn
from it in the light most favorable to the verdict.‛ State v. Noor,
2012 UT App 187, ¶ 4, 283 P.3d 543 (citation and internal
quotation marks omitted). ‚We will reverse the jury’s verdict
only when the evidence, so viewed, is sufficiently inconclusive
or inherently improbable that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime of which he was convicted.‛ Id. (citation and internal
quotation marks omitted). To the extent that this claim is
unpreserved, Garcia argues that this court should nevertheless
review it because it is a result of ineffective assistance by his trial
counsel.

ANALYSIS

I. Jury Instruction on Attempted Manslaughter

¶10 Garcia contends that Trial Counsel was ineffective for
submitting and then not objecting to an incorrect jury

20140203-CA 4 2016 UT App 59
 State v. Garcia

instruction.2 We first consider whether the attempted-
manslaughter instruction was erroneous.

A. Instruction 26 Misstated the Law.

¶11 Garcia contends that Trial Counsel was ineffective for
failing to object to the instruction on attempted manslaughter
(Instruction 26). Garcia argues that Instruction 26 was erroneous
because it ‚incorrectly instructed the jury that it needed to find
beyond a reasonable doubt that imperfect self-defense did ‘not
apply’ in order to convict *Garcia+ of attempted manslaughter.‛
Thus, he argues, ‚the jury was effectively instructed that the
elements of attempted murder and attempted manslaughter are
the same.‛

¶12 To secure a conviction for attempted murder, the State
must prove beyond a reasonable doubt that a defendant
attempted to cause the victim’s death. See, e.g., State v. Garcia,
2001 UT App 19, ¶ 11, 18 P.3d 1123. A defendant is entitled to
acquittal if there is any basis in the evidence sufficient to create a
reasonable doubt that he or she committed the offense. See id.
¶ 12. If there is any basis in the evidence for the jury to
reasonably conclude that a defendant acted in self-defense, that
defendant is entitled to have the jury instructed as to self-
defense. Id. ¶ 8. ‚The defendant’s burden of proof [to receive a
self-defense instruction] is quite limited‛; he or she ‚need not
even prove the defense by a mere preponderance.‛ Id.
(emphasis, brackets, ellipsis, citation, and internal quotation
marks omitted).

¶13 Self-defense may be perfect or imperfect. Perfect self-
defense bars conviction when a defendant’s use of force was

2. We note that the submission of an incorrect jury instruction
likely amounts to waiver of the right to appeal the correctness of
the jury instruction. However, we understand Garcia’s argument
to incorporate a contention that any such invited error by
counsel constitutes ineffective assistance at trial.

20140203-CA 5 2016 UT App 59
 State v. Garcia

legally justified. See Utah Code Ann. § 76-2-402 (LexisNexis
2012). Imperfect self-defense reduces a murder charge to
manslaughter, or an attempted murder charge to attempted
manslaughter, when a defendant acts ‚under a reasonable belief
that the circumstances provided a legal justification or excuse for
the conduct although the conduct was not legally justifiable or
excusable under the existing circumstances.‛ See id. § 76-5-203(4).

¶14 Here, Garcia argued to the jury that he had acted in self-
defense. The jury was therefore given an instruction on self-
defense (Instruction 20). Instruction 20 correctly informed the
jury as to the application of both perfect and imperfect self-
defense. The jury was also given an instruction that further
explained imperfect self-defense (Instruction 24). These two
instructions correctly explained the law—that unless the jury
found beyond a reasonable doubt that Garcia had not acted in
circumstances amounting to imperfect self-defense, the jury
could at most convict him of attempted manslaughter. However,
the instruction submitted by Trial Counsel at the concession of
the State, Instruction 26, incorrectly stated that the jury should
convict Garcia of attempted manslaughter—thus giving Garcia
the benefit of an imperfect self-defense finding—if the jury
concluded that imperfect self-defense did not apply. In its
entirety, Instruction 26 stated:

Before you can find the Defendant guilty of
the lesser-included offense of ATTEMPTED
MANSLAUGHTER, under Count I of the
Information, you must find beyond a reasonable
doubt each of the following elements:
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
[Cousin]; and
5. The affirmative defense of imperfect-self
defense does not apply.

20140203-CA 6 2016 UT App 59
 State v. Garcia

As a result, the jury instructions regarding imperfect self-defense
and attempted manslaughter were in direct conflict. Instructions
20 and 24 both correctly stated that even if the jury found that
the State had proved all the elements of attempted murder, it
could convict Garcia only of attempted manslaughter ‚if the
State has not disproved the affirmative defense of imperfect self-
defense,‛ whereas Instruction 26 incorrectly stated that in order
to convict Garcia of attempted manslaughter, the jury had to
find that the State had disproved the affirmative defense of
imperfect self-defense. (Emphasis added.)

¶15 The fact that Instructions 20 and 24 correctly state the law
on imperfect self-defense does not remedy or cure Instruction
26’s error. See State v. Green, 6 P.2d 177, 183 (Utah 1931)
(‚‘*W+here instructions are in irreconcilable conflict, or so
conflicting as to confuse or mislead the jury, the rule requiring
instructions to be read together has no application.’‛ (citation
omitted)); State v. Campos, 2013 UT App 213, ¶ 64, 309 P.3d 1160
(‚*W+e cannot say that the jury was fairly instructed on the
applicable law‛ where there existed a ‚direct conflict between
[an] imperfect self-defense instruction and the verdict form.‛);
see also State v. Lawson, 688 P.2d 479, 481 (Utah 1984) (noting that
the jury instructions should be considered together ‚in light of
the total evidence before the jury‛ to determine whether ‚the
jury was properly instructed‛). In this case, the only practical
difference between conviction for attempted murder and for
attempted manslaughter was whether the affirmative defense of
imperfect self-defense applied.3 Due to the error in Instruction
26, the jury was erroneously provided with two slightly different
yet substantively identical instructions outlining the elements of

3. If it did apply, the State had failed to meet its burden of
disproving imperfect self-defense beyond a reasonable doubt
and Garcia should have been convicted of attempted
manslaughter. If it did not apply, the State had satisfied that
burden, and Garcia would have been properly convicted of
attempted murder.

20140203-CA 7 2016 UT App 59
 State v. Garcia

attempted murder and was given no instruction accurately
outlining the elements of attempted manslaughter. See State v.
Johnson, 2014 UT App 161, ¶ 23, 330 P.3d 743 (stating that the
instructions listing the elements for murder and the lesser-
included offense of homicide by assault were identical, and
therefore the jury was erroneously provided with ‚substantively
identical instructions outlining the elements of criminal
homicide and no instruction accurately outlining the elements of
homicide by assault‛), cert. granted, 343 P.3d 708 (Utah Jan. 9,
2015).

¶16 In short, Instruction 26 misstated the law regarding the
application of a defense about which the State had conceded
Garcia was entitled to have the jury instructed.4 Logically,
entitlement to an instruction is entitlement to a correct
instruction. And dueling instructions—in conflict as to how the
jury should consider the defense—cannot satisfy that
entitlement. See Green, 6 P.2d at 183–84 (‚‘*T+he giving of
inconsistent instructions is error and sufficient ground for a
reversal of the judgment, because, after verdict, it cannot be told

4. On appeal, the State argues that because ‚neither *Garcia+ nor
the State presented any evidence at trial to support an imperfect
self-defense claim,‛ Garcia was not entitled to an imperfect self-
defense instruction. However, the quantum of evidence needed
to trigger entitlement to a self-defense instruction is ‚quite
limited.‛ State v. Garcia, 2001 UT App 19, ¶ 8, 18 P.3d 1123; see
also State v. Torres, 619 P.2d 694, 695 (Utah 1980) (noting that a
defendant is entitled to an instruction ‚if there is any reasonable
basis in the evidence to justify it‛). Although we are skeptical as
to the viability of an imperfect-self-defense claim under these
facts, the State conceded at trial that ‚there is some evidence
upon which *the State+ believe*s+ that the defense could argue‛
imperfect self-defense and that the State thought ‚that
instruction should come in.‛ Not only did the State agree to an
instruction on imperfect self-defense, it suggested that the jury
be so instructed in the first place.

20140203-CA 8 2016 UT App 59
 State v. Garcia

which instruction was followed by the jury, or what influence
the erroneous instruction had on their deliberations.’‛ (citation
omitted)). We conclude that the instructions failed to fairly
instruct the jury on the applicable law because the instructions
failed to distinguish between the elements of attempted murder
and the elements of attempted manslaughter and because the
instructions given to the jury contradicted one another.5

B. Trial Counsel Performed Ineffectively by Proposing
Instruction 26.

¶17 Having concluded that the jury instructions failed to
correctly and fairly state the law, we must next consider whether
Trial Counsel performed deficiently by proposing an incorrect
jury instruction.

¶18 To succeed on a claim of ineffective assistance of counsel,
a defendant must show both ‚that counsel’s performance was
deficient‛ and ‚that the deficient performance prejudiced the
defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish that counsel’s performance was deficient, a defendant
‚must show that counsel’s representation fell below an objective
standard of reasonableness.‛ Id. at 688. ‚To establish the
prejudice prong of an ineffective assistance of counsel claim, the
defendant must show that a reasonable probability exists that,

5. We note that Instruction 26 also misstates the burden of proof.
It states that, to convict Garcia of attempted manslaughter, the
jury must first find that, among other things, ‚beyond a
reasonable doubt . . . [t]he affirmative defense of imperfect-self
defense does not apply.‛ As we have explained, the word ‚not‛
is in error. But it is also true that once a defendant has raised
imperfect self-defense, the defendant is entitled to the benefit of
that defense unless the State has proved beyond a reasonable
doubt that the defendant’s actions did not amount to imperfect
self-defense. Thus, the jury need not find that the defense applies
beyond a reasonable doubt.

20140203-CA 9 2016 UT App 59
 State v. Garcia

but for counsel’s error, the result would have been different.‛
State v. Lee, 2014 UT App 4, ¶ 13, 318 P.3d 1164 (citation and
internal quotation marks omitted); accord Strickland, 466 U.S. at
694.

¶19 To show that Trial Counsel’s assistance ‚fell below an
objective standard of reasonableness,‛ Garcia must ‚overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.‛ Strickland, 466
U.S. at 687–89 (citation and internal quotation marks omitted).

¶20 Trial Counsel drafted and submitted Instruction 26. The
State now argues that Garcia’s ‚theory at trial, however, was
never imperfect self-defense‛ and ‚the evidence *does not]
support such a defense.‛ The State asserts that, as a result, Trial
Counsel could have reasonably decided that ‚any imperfect self-
defense instructions were superfluous and not worthy of great
attention.‛ However, at trial, the State conceded that the
evidence presented at trial merited an instruction on imperfect
self-defense and also stated that ‚that instruction should come
in.‛ We can see no conceivable tactical basis for Trial Counsel to
respond to that concession by proposing a legally erroneous
instruction.6 See Lee, 2014 UT App 4, ¶ 27.

¶21 Trial Counsel should not have submitted Instruction 26 as
written, because it failed to set forth the actual elements the jury
needed to find in order to convict Garcia of attempted
manslaughter. See State v. Liti, 2015 UT App 186, ¶ 19, 355 P.3d
1078; see also Lee, 2014 UT App 4, ¶ 27 (stating that a trial counsel

6. The State’s position—that it was a reasonable tactical decision
for Trial Counsel, after the State conceded that Garcia was
entitled to an imperfect self-defense instruction, to change
course, opt to forgo an imperfect-self-defense claim ‚in favor of
an all-or-nothing self-defense claim,‛ and prepare an inaccurate
instruction on the elements of attempted manslaughter—is
simply untenable.

20140203-CA 10 2016 UT App 59
 State v. Garcia

‚had a duty to object to such a fundamentally flawed instruction
and to ensure that the jury was properly instructed on the
correct burden of proof,‛ where an instruction incorrectly placed
the burden of an affirmative defense on the defendant). We
conclude that Trial Counsel performed deficiently in this regard.

¶22 We next consider whether the error caused prejudice, i.e.,
whether ‚a reasonable probability exists that, but for counsel’s
error, the result would have been different.‛ Lee, 2014 UT App 4,
¶ 13 (citation and internal quotation marks omitted); accord
Strickland, 466 U.S. at 694.

¶23 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.‛ State v. Bluff, 2002 UT 66, ¶ 26, 52 P.3d 1210 (citations and
internal quotation marks omitted). Because Instruction 26
‚effectively mirrored the elements‛ of the attempted murder
instruction, ‚the jury may have believed that the two
instructions required it to make essentially the same factual
determinations and that it did not matter which offense was
selected.‛ See State v. Johnson, 2014 UT App 161, ¶ 27, 330 P.3d
743 (internal quotation marks omitted), cert. granted, 343 P.3d 708
(Utah Jan. 9, 2015). ‚*T+he choice is not a choice when, as
instructed, there is no real difference between‛ attempted
murder and attempted manslaughter. See id.

¶24 The error in Instruction 26 left the jury ‚with the option of
either ‘convicting the defendant of *the charged offense], or
acquitting him outright.’‛ See id. (alteration in original) (quoting
Keeble v. United States, 412 U.S. 205, 213 (1973)). Under the
instructions given, the jury was precluded from finding Garcia
guilty of attempted manslaughter. If the jury found that the State
had failed to disprove Garcia’s imperfect self-defense claim, the
instructions required it to convict him of both attempted murder
and attempted manslaughter. Additionally, the instructions as a
whole directed the jury to convict Garcia of attempted
manslaughter both if the defense of imperfect self-defense

20140203-CA 11 2016 UT App 59
 State v. Garcia

applied and did not apply. Thus, 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. But if the jury
found all the elements of the greater offense, it was required to
convict Garcia of the greater offense rather than the lesser
offense. And ‚when it cannot be told which instruction was
followed by the jury, or what influence the erroneous instruction
had on their deliberations, the giving of inconsistent instructions
is error and sufficient ground for a reversal of the judgment.‛
State v. Campos, 2013 UT App 213, ¶ 65, 309 P.3d 1160 (citation
and internal quotation marks omitted). Trial Counsel’s failure to
object or otherwise provide an accurate instruction on attempted
manslaughter effectively removed from the jury’s consideration
the option of convicting Garcia of the lesser-included offense.
Moreover, because Instruction 26 was in direct conflict with
Instructions 20 and 24, there can be no confidence that the jury
understood what impact a determination of imperfect self-
defense should have had on the verdict.

¶25 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. See State v. Garcia, 2001 UT App 19, ¶ 8, 18 P.3d 1123. 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
probability . . . that, but for counsel’s error, the result would
have been different.‛ State v. Lee, 2014 UT App 4, ¶ 13, 318 P.3d
1164 (citation and internal quotation marks omitted).

¶26 We hold that Instruction 26 was erroneous, that Trial
Counsel performed deficiently by introducing the instruction,
and that Trial Counsel’s deficient performance prejudiced

20140203-CA 12 2016 UT App 59
 State v. Garcia

Garcia. Accordingly, we vacate Garcia’s conviction for attempted
murder.7

II. Sufficiency of the Evidence

¶27 Garcia argues that there was insufficient evidence to
support his conviction for possession of a firearm by a restricted
person because his statement that he took ‚a lot of cocaine like
sometimes‛ was insufficient to support an inference that he was
an unlawful user of a controlled substance, and thus that he
could not properly be convicted of possession of a firearm by a
restricted person.

A. Garcia’s Statement was Corroborated.

¶28 Garcia first argues that the statement was an
uncorroborated out-of-court confession, and that ‚*n+o
defendant can be convicted solely on the basis of an
uncorroborated out-of-court confession.‛ See State v. Mauchley,
2003 UT 10, ¶ 50, 67 P.3d 477. However, this issue is
unpreserved. See Wohnoutka v. Kelley, 2014 UT App 154, ¶¶ 3–4,
330 P.3d 762 (explaining that issues not brought to the trial
court’s attention are generally considered waived). While Garcia
filed a motion for a directed verdict at the close of the State’s
case, he argued only that he could not be convicted of this charge

7. Garcia also contends that Trial Counsel performed deficiently
by failing to request a jury instruction on arson and aggravated
arson. Garcia argues that arson and aggravated arson are
forcible felonies and that he was entitled to use deadly force to
defend against arson or aggravated arson. See Utah Code Ann.
§ 76-2-402(1)(a), (4)(a) (LexisNexis 2012). Because this contention
seeks vacatur of Garcia’s attempted-murder conviction and we
have vacated that conviction on other grounds, we need not
address it. Similarly, we need not address Garcia’s cumulative-
error claim, which also sought vacatur of the attempted-murder
conviction.

20140203-CA 13 2016 UT App 59
 State v. Garcia

because he was not actually under the influence of cocaine at the
relevant time, and thus was not ‚an unlawful user‛ of a
controlled substance.

¶29 Garcia also raises this argument under the ineffective
assistance of counsel exception to the preservation rule. To
demonstrate ineffective assistance of counsel, Garcia must show
that Trial Counsel’s performance was deficient and that this
deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Garcia asserts that Trial
Counsel’s performance was deficient because ‚there was no
‘conceivable tactical basis for *Trial Counsel’s+ failure to move
for a directed verdict’‛ on this argument. Because both deficient
performance and prejudice are requisite elements of a claim of
ineffective assistance of counsel, failure to prove either element
necessarily defeats the claim. Id. at 697; State v. Hards, 2015 UT
App 42, ¶ 18, 345 P.3d 769.

¶30 Under Mauchley, ‚a defendant may not be convicted
unless there exists independent evidence of the crime, a
corroborated confession, or a combination of both.‛8 Mauchley,
2003 UT 10, ¶ 61. ‚*C+orroboration of the confession itself is
sufficient to sustain a conviction.‛ Id. ¶ 76. ‚*O+ne available
mode of corroboration is for the independent evidence to bolster

8. State v. Mauchley, 2003 UT 10, 67 P.3d 477, dealt with whether
a confession could be admitted into evidence, not whether a
confession is sufficient evidence for conviction. Garcia filed a
motion challenging the admissibility of his confession based on
an alleged lack of Miranda warnings, which the court denied.
Thus, a directed-verdict motion based on that aspect of Mauchley
would likely have been futile, because the confession had
already been admitted. See State v. Kelley, 2000 UT 41, ¶ 26, 1
P.3d 546 (concluding that trial counsel was not ineffective for
failing to raise futile objections or arguments). But a motion to
dismiss based on a Mauchley challenge to the trustworthiness of
the confession may not have been futile.

20140203-CA 14 2016 UT App 59
 State v. Garcia

the confession itself . . . .‛ Smith v. United States, 348 U.S. 147, 156
(1954). The State may establish a confession’s trustworthiness
‚with other evidence typically used to bolster the credibility and
reliability of an out-of-court statement.‛ Mauchley, 2003 UT 10,
¶ 51. ‚Factors used in other areas of the law to bolster the
credibility and reliability of an out-of-court statement include the
following: evidence as to the spontaneity of the statement; the
absence of deception, trick, threats, or promises to obtain the
statement; the defendant’s positive physical and mental
condition, including age, education, and experience; and the
presence of an attorney when the statement is given.‛ Id. ¶ 52.

¶31 Here, Garcia’s statement that he ‚[did] a lot of cocaine like
sometimes‛ was spontaneous. When Garcia made this statement
regarding his drug use during the interview, Garcia and
Detective O’Camb were discussing what Garcia was doing in his
house the night before the shooting. Garcia told Detective
O’Camb that he carried his gun on his person throughout his
house that night because he was worried Cousin would come by
his house, but also that he would do the same thing ‚when *he
is+ off cocaine.‛ Detective O’Camb responded, ‚Yeah. You’re not
normally like that,‛ but Garcia diverted the conversation back to
his drug use. Garcia stated, ‚Yeah, when I’m off cocaine, too, I
get real paranoid, I always think the cops gonna run in my shit.
So, uh, yeah, ‘cause I do a lot of cocaine like sometimes.‛ And
when Detective O’Camb later questioned Garcia about his drug
use as a drug dealer, stating to Garcia that ‚it’s odd that you use,
because a lot of people that really got skills don’t use at all,‛
Garcia responded, ‚Yeah, nah, it’s just, my heart and soul is into
this shit, man.‛ These facts and circumstances surrounding
Garcia’s drug use also corroborate the confession. Garcia
admitted that he was a drug dealer, that he dealt cocaine, and
that he believed Cousin had stolen cocaine from him. He also
stated that he becomes paranoid when he is not using cocaine.
Garcia has not challenged this corroborating evidence. Garcia
also has not stated that he was deceived or threatened in any
way into making these statements, other than an argument in his
reply brief in which he argues generally that the circumstances

20140203-CA 15 2016 UT App 59
 State v. Garcia

in videos are not always what they appear to be (citing terrorists’
propaganda videos of hostages).

¶32 Additionally, if a confession is trustworthy with respect to
one charge, it is strong evidence that the confession is
trustworthy with respect to other charges. United States v.
Singleterry, 29 F.3d 733, 737–38 (1st Cir. 1994). Garcia suggests
that the Singleterry rule only applies to ‚closely connected‛
charges, but he offers no case support that limits Singleterry in
such a way.9

¶33 Here, Garcia’s confession was trustworthy as to the other
charges. For instance, Garcia also confessed to shooting at
Cousin. Garcia stated that Cousin pulled up to his house and
was ‚just like looking, like mad-dogging and shit.‛ Garcia stated
that he then grabbed his gun and shot until he had emptied the
clip of his gun.10 Thus, Trial Counsel could reasonably have
determined that moving for a directed verdict on the unlawful
possession charge would have been futile because the cocaine-
use portion of Garcia’s confession was corroborated by the
consistency of the remainder of the confession regarding his
unlawful discharge of a weapon and Garcia’s testimony at trial
that he had a gun and was protecting himself from Cousin.
Failing to make a futile motion is not deficient performance.
Thus, Garcia has failed to demonstrate that Trial Counsel
performed deficiently in this regard.

9. We note the reasonably close connection between the charges
of unlawfully possessing a firearm and unlawfully discharging a
weapon.

10. Garcia stated that he emptied the clip of the gun, but he also
stated in the interview that the gun was a revolver. This
discrepancy does not call the general trustworthiness of his
confession into doubt.

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 State v. Garcia

B. The Statute is Not Unconstitutionally Vague.

¶34 Garcia next argues that the phrase ‚unlawful user‛ is
unconstitutionally vague, and should be construed to mean ‚one
who is actually using a controlled substance at the time he or she
is in possession of the firearm.‛ This argument is unpreserved
because Trial Counsel did not raise a constitutional argument at
trial, and thus, Garcia claims that Trial Counsel was ineffective
for not raising such an argument.11 See State v. Kennedy, 2015 UT
App 152, ¶ 21, 354 P.3d 775 (‚The appellant must present the
legal basis for her claim to the trial court, not merely the
underlying facts or a tangentially related claim.‛). In support of
his argument that Trial Counsel erred by failing to raise this
argument to the trial court, Garcia claims that ‚federal circuits
‘generally agree’ that a broad interpretation of ‘unlawful user’ in
a federal statute materially identical to *the Utah statute+ ‘runs
the risk of being unconstitutionally vague.’‛ In response, the
State cites cases in which the term ‚unlawful user‛ applies so
long as there is a temporal nexus between the drug use and the
firearm possession.

¶35 Garcia has not demonstrated that he was prejudiced by
Trial Counsel’s failure to argue that the statute’s use of the term
‚unlawful user‛ should be interpreted as ‚current user‛ to avoid
constitutional risks, such as ‚rendering possession by an
‘unlawful user’ a status crime,‛ being void for vagueness, and
preventing a class of people from their right to bear arms. Garcia
points to no cases that limit ‚unlawful user‛ to people actually
under the influence of a drug at the time they possess a firearm.
And he neglects to cite to any cases in which such an argument
was successfully made to a court. As noted by the State, ‚every
court to consider [the] federal statute [regarding restricted
persons and unlawful users] has affirmed its constitutionality.‛

11. Trial Counsel moved for a directed verdict based on his belief
that ‚unlawful user‛ meant ‚current user,‛ but he did not raise
any constitutional basis for this argument.

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 State v. Garcia

(Citation and internal quotation marks omitted.) Thus, Garcia
has failed to adequately support his claim that Trial Counsel’s
failure to invoke these legal theories ‚would obligate the trial
court to grant‛ the motion for a directed verdict.

¶36 Alternatively, Garcia appears to claim that Trial Counsel
was ineffective for failing to argue that the term ‚unlawful user‛
should ‚mean one who engages in the regular use of a controlled
substance over a period of time proximate to or
contemporaneous with the possession of the firearm.‛ Garcia has
failed to cite any controlling precedent to support his claim that
Trial Counsel was deficient in failing to advance this definition.

¶37 The United States Court of Appeals for the Fifth Circuit
has noted that cases discussing ‚unlawful user‛ tend to focus on
the regularity of drug use and temporal proximity between the
drug use and the firearm possession. United States v. Patterson,
431 F.3d 832, 838–39 (5th Cir. 2005). But even if we were to adopt
the narrower definition advocated by Garcia, the trial court’s
denial of Trial Counsel’s motion for a directed verdict mirrors
that definition.

¶38 Garcia confessed, ‚I do a lot of cocaine like sometimes.‛
(Emphases added.) When explaining his drug use, Garcia stated
that his ‚heart and soul is into this shit, man.‛ He confirmed that
he began using cocaine in 2006 and admitted that he was a
dealer of cocaine. These statements suggest that he had not given
up his cocaine use and that he had used cocaine recently and
with some degree of regularity (given that his statements were
about present or recent drug use, he did not say that he had
stopped using, and he confirmed that he was a drug dealer who
also used drugs). In denying the motion for a directed verdict,
the trial court stated that ‚*Garcia’s+ admissions that he was a
user in context as to why he had the gun nearby would be
sufficient . . . to allow the jury, if they chose to believe that
evidence, to find him guilty.‛ Therefore, the confession satisfies
the requirements discussed by Patterson, limiting the term
‚unlawful user‛ to ensure its compliance with constitutional
protections.

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 State v. Garcia

¶39 We conclude that Garcia did not receive ineffective
assistance of counsel with regard to his conviction for possessing
a firearm as a restricted person.

CONCLUSION

¶40 We vacate Garcia’s conviction for attempted murder and
affirm his conviction for restricted person in possession of a
firearm. We remand to the district court for further proceedings
consistent with this opinion.

20140203-CA 19 2016 UT App 59