State v. Carranza

2023 UT App 72

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
EMANUEL CARRANZA,
Appellant.

Opinion
No. 20210167-CA
Filed July 6, 2023

Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 181900252

Emily Adams, Freyja Johnson, and Hannah
Leavitt-Howell, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik,
Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

OLIVER, Judge:

¶1 Emanuel Carranza was charged with kidnapping a man he
encountered in a park. The events surrounding the kidnapping
itself were relayed entirely by the victim. For his part, Carranza
claimed that there was no kidnapping because the victim
voluntarily hung out with him but then subsequently embellished
the encounter. Carranza insisted there were witnesses who could
corroborate his version of events. But Carranza’s trial was well
underway by the time his attorney contacted a key witness and
concluded that he would be of no help to the case. Following his
conviction, Carranza filed a motion for a new trial, asserting that
 State v. Carranza

his attorney provided ineffective assistance by failing to
investigate this witness, along with several others. The district
court denied the motion, determining that Carranza was not
prejudiced by the alleged deficient performance. On appeal, we
come to the contrary conclusion that Carranza did receive
ineffective assistance of counsel and reverse his convictions.
Additionally, because it may arise again on remand, we provide
guidance on an evidentiary issue that forms the basis of another
ineffective assistance of counsel claim raised by Carranza.

BACKGROUND 1

The Kidnapping

¶2 Ron 2 was walking through a park on February 1, 2018,
when Carranza, who was unknown to Ron, approached him and
asked who he was. Carranza introduced himself as “Cholo from
18th Street.” 3 Carranza started acting “aggressively” as he forced
Ron to a bench and held him at gunpoint with a 9mm handgun.
Carranza took Ron’s hat, shoes, and sweater and “threw them.”
Carranza also took Ron’s cellphone and wallet. Carranza searched
Ron’s backpack and then called someone to pick them up from
the park.

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 (cleaned
up).

2. Ron is a pseudonym.

3. The State indicated that “18th Street” refers to a gang.

20210167-CA 2 2023 UT App 72
 State v. Carranza

¶3 Carranza forced Ron into the back seat of the car he had
called, making Ron lay his head on the floor and pointing the gun
at Ron’s hip. Carranza told the driver “to take him somewhere ‘to
dust this fool.’” Carranza eventually decided that he was instead
going to take Ron to a house, where he would keep Ron “as a little
bitch.” They arrived at a house, where Carranza led Ron to a room
and told him to lie on the floor. Carranza proceeded to cut straps
off Ron’s backpack and use them to tie Ron’s hands behind his
back. Carranza tied Ron’s feet with another strap or belt. The next
day, on February 2, Carranza untied Ron and made him clean the
house and wash the dishes under Carranza’s watch. Carranza
then gave Ron beer and candy.

¶4 Later in the day, Carranza gave Ron shoes so they could go
for a walk. They made their way to a brown car, which had its
keys stashed under the bumper. They got in, and Carranza drove
around the block twice until they encountered a white car. Upon
seeing the white car, Carranza told its occupants, “This is 18th
Street,” and proceeded to fire his gun at them four or five times.
Both cars then fled the scene.

¶5 Carranza stopped at a gas station and ordered Ron to pay
for gas and buy him a drink while he refueled the car. Ron entered
the store alone while Carranza watched Ron from the gas pump.
Ron attempted to ask the store clerk for help, but the clerk was
busy on the phone and did not hear him.

¶6 Carranza and Ron returned to Carranza’s room at the
house. Despite being unbound and alone on occasion, Ron still
“feared for [his] life,” and he did not want “to risk getting shot
trying to run away.”

¶7 A few hours later, Carranza, armed with a gun, took Ron
to a nearby store. Carranza told Ron he would release him if he
would buy some 9mm ammunition. Carranza kept Ron’s
backpack with him in the car to prevent him from fleeing.

20210167-CA 3 2023 UT App 72
 State v. Carranza

¶8 Ron entered the store, went to the sporting goods counter,
and told the clerk that he needed to call 911 because he had been
“kidnapped” and was “in fear for [his] life.” The clerk took Ron
to the customer service desk, where he called 911.

¶9 The police arrived and spoke to Ron. Meanwhile, Carranza
drove out of the store’s parking lot. After a chase and crash into a
police car, Carranza was apprehended. Officers found a backpack
in the car, with its contents scattered on the passenger seat and
floor. No gun was found on Carranza or in the car. Officers
searched Carranza’s room at the house and found straps that had
been cut from the backpack, beer and candy, a digital scale, a
marijuana pipe, and a bottle containing “miscellaneous pills.”

¶10 The State charged Carranza with aggravated kidnapping,
aggravated robbery, felony discharge of a firearm, possession of a
firearm by a restricted person, failure to respond to an officer’s
signal to stop, and aggravated assault (related to the crash with
the police car). All of the charges except failure to stop were
enhanced based on Carranza’s status as a habitual offender.

Carranza’s Pretrial Complaints About Trial Counsel

¶11 In March and April 2019, Carranza sent three letters to the
district court complaining that his counsel (Trial Counsel) was not
communicating with him and was pressuring him to plead guilty.
In January 2020, about two weeks prior to the trial, Carranza filed
a pro se motion for new counsel.

¶12 At a hearing on January 29, 2020, Carranza informed the
court that Trial Counsel had not “look[ed] for two witnesses” or
at “certain statutes.” Trial Counsel told the court that Carranza
felt he had not “gotten some things done” and had not “prepared
properly.” But Trial Counsel offered that he “could probably
remedy that” if the trial “were continued.”

20210167-CA 4 2023 UT App 72
 State v. Carranza

¶13 At the pretrial conference on February 5, 2020, Carranza
asked the court for a continuance and new counsel:

Your Honor, over and over I’ve asked [Trial
Counsel] to do things. He doesn’t do them . . . . I
need a conflict attorney, we need . . . a continuance
on this trial.

....

[Trial Counsel] is not ready. I’ve asked him to locate
witnesses for me. He declined to do it. And two
weeks before trial he decides to have someone talk
to me about it . . . . He’s not ready [on any] level for
this.

The court declined to continue the trial or appoint new counsel.

The Trial

¶14 At trial, Ron testified about the events of the kidnapping.
The State also called the store clerk and the store manager to
testify.

¶15 The clerk testified that after she had finished helping
another customer, she approached Ron and asked if she
could help him. She said Ron stared at the floor and did not
look at her as he disclosed “that he was nervous and
embarrassed to tell [her] that he had been kidnapped.” Ron told
her Carranza had “sent him in to buy ammunition” and he was
“wearing [Carranza’s] shoes.” The clerk testified the shoes “really
didn’t match what he was wearing.” The clerk called her
manager to apprise her of the situation and then walked Ron
up to the service desk so that he could call the police. The
manager testified the clerk told her Ron was “trying to
buy ammunition and that he had stated that he had been
kidnapped.” The manager spoke to Ron, who asked her to call

20210167-CA 5 2023 UT App 72
 State v. Carranza

the police. She dialed the police and handed the phone to Ron.
The manager testified that police cars arrived with sirens on
and began chasing a car that had been in the parking lot.

¶16 After the State rested its case, Trial Counsel rested
Carranza’s case without calling any witnesses.

¶17 In closing, the State told the jury that

the key thing about this case is a lot of the conduct
between [Carranza] and [Ron] is unknown to any
other witnesses, a lot of it is in private, being
kidnapped at the park, being taken in the brown car
with [Carranza], being stored in [Carranza’s]
bedroom, all of that is not readily apparent to a lot
of witnesses. So what you ultimately have to do in
looking at the evidence, looking at the statement
from [Ron], is to look at the other corroborating
evidence, other evidence you have from other
witnesses at the various crime scenes involved in
this case.

¶18 Trial Counsel argued in closing that Ron essentially
fabricated the kidnapping story:

[Ron] is hanging out with . . . Carranza and for
whatever reason he decides to make up a story,
what’s he going to do? He’s going to take the basics,
the skeleton, if you will, and he’s going to flesh it
out. He’s going to add, he’s going to embellish it.

¶19 The jury convicted Carranza of all the charges except for
aggravated assault and found the convictions were subject to
enhancements.

20210167-CA 6 2023 UT App 72
 State v. Carranza

Motion for New Trial

¶20 After his conviction, Carranza filed pro se motions for a
new trial and for the appointment of conflict counsel (Conflict
Counsel). After appointment, Conflict Counsel filed a motion for
a new trial, which, as relevant here, included an argument that
Trial Counsel had rendered ineffective assistance “for not
investigating a crucial defense witness” (Witness) until after the
trial had started. Carranza asserted that Witness would have
provided evidence that (1) he saw Carranza and Ron at the house
the day after the alleged kidnapping, (2) Ron initially appeared
normal at the house, (3) Ron left the house for about thirty
minutes while Carranza stayed in the house, and (4) Ron “seemed
worried and possibly high when he returned.”

¶21 At the evidentiary hearing on this issue, the court heard the
testimony of Witness, Trial Counsel’s investigator (Investigator),
Carranza, and Trial Counsel. 4

a. Witness’s Testimony

¶22 Witness owned a house where Carranza would
occasionally stay in an extra room. Witness testified that on
February 2, 2018, Carranza and Ron were in Carranza’s room. He
talked with Carranza and Ron for roughly two hours. He
described Ron’s demeanor as being “normal,” and he said that
Ron did not “seem afraid” or like he did not “want to be there.”
Witness said that during their conversation, Ron “walked out [of]
the room, out [of] the house.” Carranza and Witness stayed
behind and continued to talk, and Ron returned about thirty
minutes later. Witness “notice[d] something different” about Ron
on his return, and he wondered if Ron had gone “to go get high

4. Another individual testified during the evidentiary hearing, but
on appeal, Carranza makes no ineffective assistance claim
regarding this witness.

20210167-CA 7 2023 UT App 72
 State v. Carranza

because he was kind of like a little paranoid” and “anxious.” Ron
kept asking Carranza “for a ride or for the car,” and Carranza
“kept telling him no” because the car did not have plates.
Carranza eventually “got frustrated” and left with Ron. Witness
said that was the last time he spoke with them.

¶23 Witness also testified about his interactions with Trial
Counsel. He said Trial Counsel contacted him “a month [or] like
a couple weeks” before Carranza’s trial. Witness said he thought
“it was kind of strange” that Trial Counsel waited so long to
contact him given that some events surrounding the alleged
kidnapping had taken place in his house: “I thought I would be
. . . the number one witness because it’s my home. It’s my spot
. . . .” Witness said that he met with Trial Counsel at Trial
Counsel’s office, that Trial Counsel asked him if he “knew
anything about any kidnapping or whatnot,” and that Witness
shared the same information recounted above. Witness said Trial
Counsel told him that he would be in contact if necessary, but
Witness never heard from Trial Counsel.

b. Investigator’s Testimony

¶24 Investigator testified that he first became involved in this
case on January 29, 2020—less than two weeks before the trial
started on February 10—when Trial Counsel asked him to meet
with Carranza about “some investigating that [Carranza] wanted
done that hadn’t been done yet.” Carranza told Investigator about
Witness. Investigator explained that because Carranza was being
represented by a public defender, Trial Counsel was required to
submit an authorization form before Investigator could begin
investigating the case. But Trial Counsel did not submit the form
until five days later, on February 3. While Investigator had done
the “preliminary work” of scoping out Witness’s house and
leaving “a card” on Witness’s door, he could not begin his formal
investigation until receiving the form. Adding to these delays,
Investigator did not receive discovery from Trial Counsel—which

20210167-CA 8 2023 UT App 72
 State v. Carranza

included factual and witness information—until late on February
9, the night before the trial started. Moreover, Investigator was
unaware that the trial was starting the next morning because Trial
Counsel had never informed him of it.

¶25 Investigator stated that he went to Witness’s house the
following morning, which was the day the trial started. Receiving
no answer, he left his card wedged in the door. Witness called
Investigator the next day and told him “that he would be able to
testify that there had been no kidnapping, nobody held at his
house.” Investigator set up a phone call between Trial Counsel
and Witness during lunch that same day, the second day of the
trial.

c. Carranza’s Testimony

¶26 Carranza testified he told Trial Counsel on March 27,
2019—ten months before trial—that Trial Counsel needed to
contact Witness, along with three other individuals, who could
testify about his interactions with Ron during the time of the
alleged kidnapping. Carranza testified he asked Trial Counsel
about contacting these individuals, including Witness, “at least a
half a dozen times” after March 27, 2019, as well.

¶27 At a hearing on January 29, 2020, Trial Counsel told
Carranza he had not investigated any of the witnesses Carranza
had identified. Carranza said he let the court know the
investigation “hasn’t happened.” Carranza testified that after the
hearing, he was able to meet with Investigator and told him about
the individuals who could testify on his behalf, including Witness.

d. Trial Counsel’s Testimony

¶28 Trial Counsel testified he did not recall whether Carranza
provided him with specific information “as to witnesses to follow
up on.” But he did remember speaking to Witness by phone

20210167-CA 9 2023 UT App 72
 State v. Carranza

during lunch on one of the trial days. He recalled that Witness
“owned the house where . . . Carranza was supposed to have held
[Ron] against his will.” Trial Counsel offered this account of his
conversation with Witness:

[H]e said . . . I go to work every day. I get up . . . at
5:00 or something like that. I get up, I go to work, I
come home. . . . I really don’t have much life. And I
asked him if . . . Carranza had been staying there.
And he said no, I don’t know anything about it. If
. . . Carranza had been there[,] . . . I would have
known about it, but I didn’t know it. I didn’t know
he was there. And [Witness] seemed adamant . . .
either that he didn’t know or that . . . Carranza was
not there at the time that was alleged, that he just
wasn’t at that home at all.

Trial Counsel decided not to have Witness testify because his
testimony “would have made . . . [Carranza] look like a liar” and
would “do more harm than good.”

¶29 The district court rejected all aspects of Carranza’s motion
for a new trial, including his argument that Trial Counsel had
rendered ineffective assistance for not investigating Witness.
Specifically, the court concluded that Carranza was not
prejudiced by the lack of investigation:

Even if [Witness had] been investigated and
testified at trial, the outcome would likely have
remained the same. [Witness]’s testimony at the
evidentiary hearing added very little to the analysis.
[Witness] testified he spoke with [Ron] and
Carranza. However, he did not know [Ron].
[Witness] testified [that Ron] was acting normal, but
since he had never met [Ron] before he would not
know what “normal” looked like. Further, [Witness]

20210167-CA 10 2023 UT App 72
 State v. Carranza

adamantly denied Carranza was staying at his
residence when he spoke with [Trial Counsel].
However, the evidence was clear Carranza was
staying there. Carranza argues the jury could have
found [Witness] credible, but it is just as likely they
would not have found him credible. Thus, Carranza
has not met his burden of proof to show he was
prejudiced by [Trial Counsel] failing to investigate
or call [Witness].

¶30 The court sentenced Carranza for each of his convictions.

ISSUES AND STANDARDS OF REVIEW

¶31 Carranza argues the district court incorrectly concluded
that Trial Counsel’s investigation of Witness did not prejudice
Carranza. “When a defendant asserts a constitutional claim of
ineffective assistance of trial counsel,” we approach it as “a mixed
question of law and fact. We review the trial court’s application of
the law to the facts under a correctness standard. If there are
factual findings to review, we will not set them aside unless they
are clearly erroneous.” State v. J.A.L., 2011 UT 27, ¶ 20, 262 P.3d 1
(cleaned up).

¶32 On appeal, Carranza additionally argues that Trial Counsel
provided ineffective assistance when he did not raise a hearsay
objection to the testimony offered by the store employees. 5 “When
a claim of ineffective assistance of counsel is raised for the first
time on appeal, there is no lower court ruling to review and we

5. Because we conclude that Carranza is entitled to a new trial
based on the ineffective assistance of Trial Counsel in neglecting
to properly investigate, we would not need to address this issue.
But since it might arise again on remand, we will consider it, albeit
briefly.

20210167-CA 11 2023 UT App 72
 State v. Carranza

must decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Holsomback, 2022
UT App 72, ¶ 19, 513 P.3d 82 (cleaned up). 6

ANALYSIS

¶33 “To ensure a fair trial, the Sixth Amendment of the U.S.
Constitution guarantees the right to effective assistance of
counsel.” State v. Campos, 2013 UT App 213, ¶ 23, 309 P.3d 1160,
cert. denied, 320 P.3d 676 (Utah 2014). We evaluate a claim of
ineffective assistance under the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668 (1984). “First, the defendant
must show that counsel’s performance was deficient.” Id. at 687.
“Second, the defendant must show that the deficient performance
prejudiced the defense.” Id.

I. Failure to Investigate Witness

A. Deficient Performance

¶34 “Counsel’s function is to assist the defendant, . . . [which
includes] the overarching duty to advocate the defendant’s cause
. . . [by] bring[ing] to bear such skill and knowledge as will render
the trial a reliable adversarial testing process.” Strickland, 466 U.S.
at 688. The Sixth Amendment relies “on the legal profession’s
maintenance of standards sufficient to justify the law’s
presumption that counsel will fulfill the role in the adversary
process that the Amendment envisions.” Id. Accordingly, the

6. Carranza raises other issues related to the district court’s denial
of his mistrial motion and Trial Counsel’s failure to object to
certain testimony from a police detective, as well as cumulative
error. But given our disposition of this case on the first issue, we
do not reach these other issues.

20210167-CA 12 2023 UT App 72
 State v. Carranza

“proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Id.

¶35 “The American Bar Association Standards for Criminal
Justice . . . maintain that . . . it is the duty of the lawyer to conduct
a prompt investigation of the circumstances of the case and to
explore all avenues leading to facts relevant to the merits of the
case and the penalty in the event of conviction.” State v. Crestani,
771 P.2d 1085, 1090 (Utah Ct. App. 1989) (cleaned up); see also
ABA, Criminal Justice Standards for the Defense Function, Standard
4-4.1(c) (4th ed. 2017), https://www.americanbar.org/groups/crimi
nal_justice/ standards/DefenseFunctionFourthEdition [https://pe
rma.cc/ RUK8-TABY] (“Defense counsel’s investigative efforts
should commence promptly and should explore appropriate
avenues that reasonably might lead to information relevant to the
merits of the matter . . . .”). And our supreme court has
“repeatedly held that one of criminal defense counsel’s most
fundamental obligations is to investigate the underlying facts of a
case.” State v. J.A.L., 2011 UT 27, ¶ 28, 262 P.3d 1.

¶36 Accordingly, an attorney “has the duty to adequately
investigate the underlying facts of the case because investigation
sets the foundation for counsel’s strategic decisions about how to
build the best defense.” State v. Griffin, 2015 UT 18, ¶ 33, 441 P.3d
1166 (cleaned up). As our supreme court has observed, “failing to
investigate because counsel does not think it will help does not
constitute a strategic decision, but rather an abdication of
advocacy.” J.A.L., 2011 UT 27, ¶ 28 (cleaned up); accord Taylor v.
State, 2007 UT 12, ¶ 53, 156 P.3d 739. “If counsel does not
adequately investigate the underlying facts of a case, including
the availability of prospective defense witnesses, counsel’s
performance cannot fall within the wide range of reasonable
professional assistance.” State v. Templin, 805 P.2d 182, 188 (Utah
1990) (cleaned up). Succinctly put, counsel’s “duty to conduct an
adequate investigation of the facts and evidence” in a case “is not
optional; it is indispensable.” J.A.L., 2011 UT 27, ¶ 28.

20210167-CA 13 2023 UT App 72
 State v. Carranza

¶37 Under the standard set out by the United States Supreme
Court,

strategic choices made after thorough investigation
of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices
made after less than complete investigation are
reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation. In other words, counsel has a duty to
make reasonable investigations or to make a
reasonable decision that makes particular
investigations unnecessary.

Strickland, 466 U.S. at 690–91. From this perspective, we conclude
that Trial Counsel performed deficiently in failing to timely
investigate Witness because Trial Counsel deprived himself of the
opportunity to develop an effective trial strategy.

¶38 There is no question that Trial Counsel was made aware of
Witness—at the latest—on January 29, 2020, twelve days before
the trial began on February 10. 7 But even in this admittedly short
time, Trial Counsel did not act promptly to facilitate Investigator’s
contact with Witness. Instead, his failure to complete the
necessary paperwork delayed Investigator’s initial contact with
Witness until the second day of the trial.

¶39 By Trial Counsel’s own admission, his only conversation
with Witness took place during a lunch break call on the second
day of the trial. From this call, Trial Counsel concluded that

7. Carranza testified he told Trial Counsel to contact Witness
about ten months before the trial. See supra ¶ 26. If Trial Counsel
did receive this information nearly a year before trial, that would
only lend additional support to Carranza’s ineffective assistance
claim.

20210167-CA 14 2023 UT App 72
 State v. Carranza

calling Witness to testify would do more harm than good because
Witness’s potential testimony that Carranza was not at the house
or that Witness did not know if Carranza was there on the day in
question would make Carranza “look like a liar.” We fail to see
how Trial Counsel could have reached this conclusion based on
such a cursory conversation with Witness. The lunch break call—
conducted during the frenzy of the second day of trial—provided
no opportunity for Trial Counsel to ask the probing questions
necessary to evaluate Witness’s usefulness to Carranza’s case. For
example, there is no evidence that Trial Counsel oriented Witness
to the date in question to ensure that Witness knew what Trial
Counsel was talking about or made sure to clarify whether he was
asking if Carranza lived in the house or used a room there from
time to time. Nor is there evidence that Trial Counsel asked
follow-up questions of Witness.

¶40 Based on Trial Counsel’s account, the conversation
consisted of little more than Witness stating that he worked a lot
and that he did not remember Carranza being at the house. But
the spartan nature of the dialogue was likely due to the
circumstances of the call. Consider what would have happened
had Trial Counsel been even slightly more prompt—by perhaps a
few days—in contacting Witness. He could have sat down with
Witness in a less harried environment, explained Carranza’s
situation, provided essential details, and asked revealing
questions of Witness. 8 Witness would likely have recounted the
details he shared at the evidentiary hearing. After learning these
details, Trial Counsel could have developed a superior trial
strategy. It is difficult for us to see how any attorney could

8. We acknowledge that Witness claims he sat down with Trial
Counsel at his office and offered a more complete account of his
interaction with Carranza and Ron. See supra ¶ 23. If this is true,
Trial Counsel’s decision to ignore this information also falls below
the standards of professional conduct.

20210167-CA 15 2023 UT App 72
 State v. Carranza

develop a trial strategy without investigating the facts and
evidence of a case before the trial starts. Stated differently, Trial
Counsel was “not in a position to make a reasonable strategic
choice” about his approach to mounting Carranza’s defense
“without first conducting a full investigation of the merits of the
case.” State v. Hales, 2007 UT 14, ¶ 83, 152 P.3d 321 (cleaned up).

¶41 Because Trial Counsel did not conduct an adequate
investigation in a timely manner to inform his trial strategy and
decisions, we conclude he performed deficiently in his
representation of Carranza.

B. Prejudice

¶42 “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Strickland,
466 U.S. at 691. “To establish prejudice, the defendant must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” State v. Bonds, 2023 UT 1, ¶ 53, 524 P.3d 581
(cleaned up). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Here, we disagree with the district court and conclude
Carranza was prejudiced by Trial Counsel’s failure to timely
investigate Witness.

¶43 Carranza’s convictions for kidnapping, robbery, and
possession of a firearm rested primarily on Ron’s testimony. In
fact, the State admitted that “the key thing about this case is a lot
of the conduct between [Carranza] and [Ron] is unknown to any
other witnesses, a lot of it is in private, being kidnapped at the
park, being taken in the brown car . . . , being stored in
[Carranza’s] bedroom.” As the only witness to testify about these
events, the State’s case depended, in large part, on Ron’s
credibility. And because Trial Counsel did not present any

20210167-CA 16 2023 UT App 72
 State v. Carranza

defense witnesses, the jury lacked any counterpoint to Ron’s
testimony. But if the jury had heard from Witness, there is a
reasonable probability that Ron’s credibility before the jury would
have been compromised.

¶44 Witness’s account of his interaction with Carranza and Ron
would have directly challenged Ron’s assertion that he had been
kidnapped. Witness testified that Ron did not seem distressed or
afraid when he visited with Ron and Carranza in his house.
Witness said they were “just talking” during the two hours he
spent with Carranza and Ron. Witness did not mention Ron being
restrained in any way. On the contrary, Witness said that Ron
freely departed from the house on his own about an hour after
Witness arrived, leaving Witness and Carranza behind in the
house. Ron later returned to the house and rejoined them in the
room. And Witness’s observation that Ron may have left the
house “to go get high” because he seemed “paranoid” and
“anxious” when he returned could have provided an explanation
for Ron’s account that Carranza had kidnapped him.

¶45 While the State points to the backpack straps, candy, and
beer found in the room to corroborate Ron’s testimony, this
evidence equally corroborates Witness’s version of events. The
beer cans and candy wrappers could just as likely support
Carranza’s account that he and Ron stayed long enough at the
house to consume beer and candy. And the drug paraphernalia
located in the search of the room supports Witness’s suspicion
that Ron may have been using illegal drugs on the day in question,
while the backpack straps may have been used to facilitate such
drug use.

¶46 In short, with Witness’s testimony providing a
contradictory version of events, the entire evidentiary landscape
of the case shifts. This fundamental shift undermines our
confidence in the outcome of the trial. See Gregg v. State, 2012 UT
32, ¶ 30, 279 P.3d 396 (holding that in cases resting on “the victim’s

20210167-CA 17 2023 UT App 72
 State v. Carranza

credibility, . . . evidence affect[ing] the overall evidentiary picture
. . . is sufficient to undermine our confidence in the trial’s
outcome”). We therefore conclude that Carranza was prejudiced
by Trial Counsel’s failure to timely investigate Witness.

¶47 Having determined that Trial Counsel performed
deficiently in not timely investigating Witness and that Carranza
was prejudiced by this lack of investigation, we conclude that
Carranza received ineffective assistance of counsel. His
kidnapping, robbery, and firearm convictions are therefore
reversed.

II. Alleged Hearsay Testimony

¶48 Because we reverse Carranza’s convictions due to
ineffective assistance of counsel, we need not address his other
arguments. But Carranza has identified an issue “on appeal that
will likely arise during retrial.” State v. Low, 2008 UT 58, ¶ 61, 192
P.3d 867. And “in an effort to offer guidance that might be useful
on remand, . . . we briefly discuss” the hearsay status of
statements made by the store employees. State v. Valdez, 2021 UT
App 13, ¶ 54, 482 P.3d 861.

¶49 Carranza asserts that the store clerk’s testimony about
what Ron told her and the manager’s testimony about what the
clerk told her constituted inadmissible hearsay. He complains that
Trial Counsel provided ineffective assistance for failing to object
to what he believes were “multiple instances of inadmissible
hearsay testimony from the State’s witnesses that improperly
bolstered [Ron’s] credibility.”

¶50 We agree with the State that competent counsel could forgo
objecting to this testimony on hearsay grounds since the
testimony was admissible for either of two reasons. First, it could
have been offered not for its truth but to explain the employees’
actions in responding to Ron’s requests. See State v. McNeil, 2013

20210167-CA 18 2023 UT App 72
 State v. Carranza

UT App 134, ¶ 48, 302 P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699
(“Where an out-of-court statement is offered simply to prove it
was made, without regard to whether it is true, such testimony is
not proscribed by the hearsay rule. . . . Often statements of this
type merely reveal people’s motives for later actions.” (cleaned
up)). Alternatively, at least portions of the testimony in question
would have been admissible as containing an expression of Ron’s
present-sense impression that a kidnapping was ongoing. See
Utah R. Evid. 803(1) (explaining that a “statement describing or
explaining an event or condition, made while or immediately
after the declarant perceived it” is “not excluded by the rule
against hearsay”).

CONCLUSION

¶51 Having determined that Carranza received ineffective
assistance of counsel, we reverse his kidnapping, robbery, and
firearms convictions and remand for further proceedings
consistent with this opinion.

20210167-CA 19 2023 UT App 72