State v. Paule

This opinion is subject to revision before final
Publication in the Pacific Recorder

2024 UT 2

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Respondent,
v.
ELBERT JOHN PAULE,
Petitioner.

No. 20220039
Heard: March 6, 2023
Filed February 1, 2024

On Certiorari to the Utah Court of Appeals

Fourth District, Provo
The Honorable Lynn W. Davis
No. 191400658

Attorneys:
Sean D. Reyes, Att’y Gen., David A. Simpson, Asst. Solic. Gen.,
Salt Lake City, for respondent
Douglas J. Thompson, Jennifer L. Foresta, Provo, for petitioner

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN, JUSTICE HAGEN,
and JUSTICE POHLMAN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Elbert Paule argued over the phone with his friend (Friend). As
the argument escalated, Friend said he intended to go to Paule’s
apartment to “take him out.” Friend also said that if he did go to
Paule’s apartment, things would not end well for Paule. Although
Paule told Friend not to come to his apartment, Friend came anyway.
¶2 When Friend arrived at Paule’s apartment and tried to open the
door, Paule retrieved and loaded his shotgun. Friend then used the
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door code to open the apartment door, at which time Paule shot and
killed Friend. Paule ran from his apartment to another friend’s house
and soon thereafter traveled by shuttle bus to Las Vegas and then to
San Diego, where his grandmother lives.
¶3 The State charged Paule with murder, obstruction of justice,
reckless endangerment, and assault, and he underwent a jury trial.
The jury acquitted him on all charges except obstruction of justice.
¶4 Paule moved to arrest the judgment on the ground that the
obstruction of justice conviction was legally inconsistent with the
jury’s determination that he was not guilty of the other charged
crimes. 1 The trial court denied Paule’s motion.
¶5 Paule appealed his conviction to the court of appeals, arguing
that the trial court erred in denying his motion to arrest judgment and
that his counsel rendered ineffective assistance. The court of appeals
affirmed Paule’s conviction, and we granted certiorari to review two
of the court of appeals’ determinations: (1) that Paule’s conviction for
obstruction of justice was not legally inconsistent with his acquittal on
the other charges, and (2) that Paule could not demonstrate his trial
counsel was ineffective in failing to seek a more detailed unanimity
jury instruction. We affirm.
Background
¶6 Paule and Friend knew each other for a few months, during
which time they hung out and played video games together. Their
friendship began to deteriorate when another of Paule’s friends
rebuffed Friend’s romantic advances and Paule intervened.
¶7 On the day of Friend’s death, Paule and Friend argued over the
phone. Friend told Paule he planned to come to Paule’s apartment to
“take him out.” Paule responded to Friend, “Do not come over.”
Fearing that Friend would come to his apartment, Paule and one of

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1 An “arrest of judgment” means “[t]he staying of a judgment after

its entry; esp., a court’s refusal to render or enforce a judgment
because of a defect apparent from the record.” Arrest of judgment,
BLACK’S LAW DICTIONARY (11th ed. 2019). At any time before
sentencing, a district court may, sua sponte or upon motion of a
defendant, “arrest judgment if the facts proved or admitted do not
constitute a public offense, . . . or there is other good cause for the
arrest of judgment.” UTAH R. CRIM. P. 23.

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his roommates established a special knock to identify who was at the
apartment door.
¶8 Friend came to Paule’s apartment, bringing along Friend’s
fiancée and infant child. Upon arriving at Paule’s apartment, Friend
knocked on the door. Recognizing that the knock was not the
identifiable one he and his roommate had established, Paule did not
answer. Instead, he waited and hoped whoever was at the door would
leave. When the person at the door had not left after five minutes,
Paule went to his bedroom, retrieved his shotgun, loaded it, and
returned to the apartment entryway—standing four or five feet from
the door. According to Paule’s testimony, Friend—using the code to
Paule’s apartment door, which was saved on his phone—opened the
door holding a knife, the two made eye contact, Friend stepped into
the doorway, and Paule fired the shotgun at Friend.
¶9 At that point, one of Paule’s roommates came out of his
bedroom to see what had happened. Paule ran from his apartment,
crossed the property, and jumped over a fence. He went to a friend’s
house, then left Utah on a shuttle bus, traveling first to Las Vegas and
then to San Diego. After Paule shot Friend, but before law
enforcement officers arrived at the scene, the shotgun Paule used to
shoot Friend ended up in the grass below Paule’s apartment balcony.
In addition, sometime after Paule left his apartment, his phone went
missing and was never found.
¶10 Eventually, Paule turned himself in to law enforcement. The
State charged him with four crimes—(1) murder, a first-degree felony;
(2) obstruction of justice; a second-degree felony (due to the first-
degree felony nature of the murder charge); (3) reckless
endangerment, a class-A misdemeanor; and (4) assault, a class-B
misdemeanor—and the case went to trial.
¶11 In the State’s opening statement, it identified the obstruction
of justice charge as follows: “Number two is obstruction of justice,
when, after he shot [Friend], he took that shotgun [and] threw it off
the balcony in order to hinder, delay, or prevent the investigation.” At
trial, competing evidence was presented. Paule testified that he shot
Friend in self-defense. He stated that immediately after he shot Friend,
his roommate took the shotgun from him. Paule further testified that
he believed his phone had accidentally dropped out of his pocket
when he jumped over the fence near his apartment complex. And,
when asked why he left Utah and went to California, he testified that
he had wanted to explain to his family what had happened.

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¶12 The responding and investigating officers also testified at trial.
The officer who arrived at the apartment immediately after the
shooting testified that he found a knife just outside the apartment
door and a spent shotgun shell inside the apartment. Another officer
testified that he found the shotgun—loaded and ready to fire with the
same brand of shell as the empty shell found in Paule’s apartment—
in the grass below Paule’s apartment balcony. Forensic evidence
established that the five identifiable prints on the shotgun (four
fingerprints and one palmprint) all matched Paule.
¶13 Paule moved for a directed verdict on the obstruction of justice
charge. Outside the jury’s presence, his counsel argued that no
evidence showed that Paule had obstructed justice, explaining that
although the shotgun was found in the grass outside, there was no
evidence that Paule was the one who threw or dropped it from the
balcony. In response, the State argued there was enough
circumstantial evidence for a reasonable jury to conclude that Paule
had obstructed justice by throwing the shotgun from the balcony. The
court agreed with the State and determined that the jurors could
“make their conclusion as it relates ultimately to [whether] they
believe that . . . [Paule] discarded the shotgun and attempted to
obstruct justice.” Accordingly, the court denied Paule’s motion for a
directed verdict.
¶14 In its closing argument, the State maintained that Paule
committed obstruction of justice by throwing the shotgun from the
balcony, saying:
Count 2 is obstruction of justice. That is when [Paule]
threw the gun over the balcony. The statute says that . . .
we’d have to show that . . . Paule did [this] with intent
to hinder, delay or prevent the investigation,
apprehension, prosecution, conviction or punishment of
any person regarding conduct that constituted a
criminal offense and did alter, destroy, conceal or
remove any item or thing. Now, again, he threw that
shotgun over and only his prints are on that. That would
be consistent with him shooting the shot, going and
throwing it over the balcony and then coming out a
short time later to get away.
¶15 The parties stipulated to the jury instructions. Regarding the
obstruction of justice charge, the jury was instructed that it could not
convict Paule unless it found, beyond a reasonable doubt, that Paule
had “alter[ed], destroy[ed], conceal[ed] or remove[d] any item or
thing” with the “intent to hinder, delay, or prevent the investigation,

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apprehension, prosecution, conviction, or punishment of any person
regarding conduct that constitutes a criminal offense.” The jury was
also instructed that in all criminal cases, including Paule’s case, a
verdict must be reached by the unanimous agreement of all the jurors.
¶16 The jury convicted Paule of obstruction of justice but acquitted
him on all the other charges. Paule moved the trial court to arrest the
lone conviction, arguing that it was legally inconsistent with the jury’s
determination that he was not guilty of the other crimes. He asserted
that if the jury determined he did not engage in conduct that
constitutes a crime, it could not find him guilty under the elements of
obstruction of justice. The court heard the parties’ arguments on the
motion and denied it.
¶17 Paule appealed his conviction to the court of appeals, arguing
that the trial court erred in denying his motion to arrest judgment and
that his counsel rendered ineffective assistance. The court of appeals
first reviewed Paule’s argument that his conviction should be vacated
under the theory that the obstruction conviction was legally
inconsistent with the acquittals on the other charges. It examined the
language and legislative history of the obstruction of justice statute,2
specifically noting that “the legislature added ‘investigation’ to the list
of things that an actor cannot hinder, delay, or prevent without
potentially committing obstruction of justice.” 3
¶18 The court also highlighted that the legislature removed the
phrase “for the commission of a crime” from the statute—replacing it
with the phrase “regarding conduct that constitutes a criminal
offense” and adding a definition of “conduct that constitutes a
criminal offense.” 4 The court reasoned that these changes indicated
the legislature’s intent that under the obstruction of justice statute, a
person can be convicted of obstruction of justice “even if the
underlying conduct is never ultimately found to constitute a crime.”5
So, the court continued, to obtain a conviction for obstruction of justice
in Paule’s case, the State needed to prove, beyond a reasonable doubt,
three elements: that Paule “(1) concealed or removed the shotgun

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2 See UTAH CODE § 76-8-306.

3 State v. Paule, 2021 UT App 120, ¶ 19, 502 P.3d 1217.

4 Id.

5 Id. ¶ 20.

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(2) with the intent to hinder, delay, or prevent an investigation (3) into
conduct that would be punishable as a crime.” 6
¶19 The court of appeals rejected Paule’s argument that the
reasoning in Pleasant Grove City v. Terry 7 renders his verdict legally
impossible, 8 explaining that none of the other charges on which Paule
was acquitted are predicate offenses of obstruction of justice. 9 The
court pointed to its decision in State v. Hamilton, 10 in which it held that
a person can be convicted of obstruction of justice without also being
convicted of any underlying crime. 11 The court emphasized the
legislature’s decision to define “conduct that constitutes a criminal
offense” as “conduct that would be punishable as a crime,” and
explained that “the statutory focus is squarely placed on the conduct
being investigated at the time of the alleged obstruction, and not
necessarily on any conduct that a factfinder ultimately finds, after
trial, to have actually occurred.” 12 In the court’s eyes, “the conduct
that matter[ed] for purposes of the obstruction count is twofold:
(a) the actions Paule took that allegedly constitute obstruction, and
(b) the underlying conduct being investigated at the time of the
alleged obstruction.” 13 The court interpreted the key statutory
language in Utah Code subsection 76-8-306(2)(a), “conduct that
constitutes a criminal offense,” to mean “conduct that would be
punishable as a crime if the facts had developed as suspected.” 14 So
the court determined that, in Paule’s case, the jury’s verdict was not
legally impossible.
¶20 Paule also argued to the court of appeals that his counsel was
ineffective. His primary argument was that his counsel was ineffective
for failing to object to the absence of a specific instruction regarding

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6 Id. ¶ 21 (cleaned up).

7 2020 UT 69, 478 P.3d 1026.

8 Utah courts have used the phrases “legally inconsistent” and

legally impossible” interchangeably. We do so as well.
9 Paule, 2021 UT App 120, ¶¶ 22–24.

10 2020 UT App 11, 457 P.3d 447.

11 Id. ¶¶ 1, 15–18.

12 Paule, 2021 UT App 120, ¶ 26.

13 Id. ¶ 27.

14 Id. ¶ 30 (cleaned up).

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jury unanimity in relation to the obstruction of justice charge.15
According to him, the jury members could have been divided in their
opinions as to which of Paule’s actions constituted obstruction—his
discarding of the shotgun, his disposing of his phone, or his fleeing to
California. 16
¶21 The court disagreed with Paule, explaining that the only act
alleged at trial for the obstruction charge was Paule’s throwing the
shotgun off the balcony. 17 The court pointed to various portions of the
record to show that the focus of the obstruction charge was Paule’s
disposal of the shotgun—not the other actions mentioned. 18 It
determined that although the State presented evidence of his
disposing of his phone and fleeing to California at trial, the State
mentioned those actions only in connection with the murder charge,
not the obstruction of justice charge. 19 The court concluded that the
State “clearly identified for the jury which factual circumstance
formed the basis for its obstruction of justice charge,” and,
consequently, Paule’s counsel was not ineffective in failing to object
to the absence of a specific instruction regarding jury unanimity. 20
¶22 The court also ruled on Paule’s claim that his counsel
provided ineffective assistance in failing to request either “an
additional instruction that might have further defined the phrase
‘conduct that constitutes a criminal offense’” or “some unspecified
mechanism—perhaps a special verdict form—that would have
allowed the jurors to ‘inform the court which conduct that constitutes a
criminal offense they determined beyond a reasonable doubt Paule
acted to obstruct.’” 21 In a footnote, the court rejected this ancillary
claim, giving two alternative justifications for its decision. First, “to
the extent that Paule’s argument intend[ed] to incorporate” his
statutory interpretation argument, the court rejected his ineffective
assistance of counsel claim for the same reasons outlined above.22
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15 Id. ¶¶ 37, 40.

16 Id. ¶ 37.

17 Id. ¶ 45.

18 Id.

19 Id. ¶ 46.

20 Id. ¶ 48.

21 Id. ¶ 36 n.3.

22 Id.

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Second, and alternatively, it determined Paule had not convinced the
court of “a reasonable likelihood of a different result” even if his
counsel had asked for an additional jury instruction or a special
verdict form.23
¶23 Because the court of appeals determined that the district court
did not err in denying Paule’s motion to arrest judgment and that
Paule had not shown that his counsel was ineffective, it affirmed
Paule’s conviction. 24
¶24 Paule requested that we review two aspects of the court of
appeals’ decision: (1) its interpretation of the obstruction statute and
the doctrine of legally impossible verdicts, and (2) its conclusion that
a jury is adequately instructed about unanimity if the State identifies
the theory supporting its case in its opening statement or closing
argument. We granted certiorari and agreed to review two issues:
(1) whether the court of appeals erred in concluding Paule’s
conviction for obstruction was not legally impossible in light of his
acquittal on the other charges, and (2) whether the court of appeals
erred in concluding Paule did not demonstrate that his counsel was
ineffective in failing to seek a more detailed unanimity instruction.
Standard of Review
¶25 On certiorari, we review court of appeals decisions for
correctness, giving no deference to the court of appeals’ conclusions
of law. 25 Whether Paule’s obstruction of justice conviction is legally
impossible presents a question of law. 26
¶26 When confronted with an ineffective assistance of counsel
claim, “we review the court of appeals’ decision for correctness.” 27
Analysis
¶27 Paule asks us to reverse his obstruction of justice conviction,
arguing that the court of appeals improperly interpreted the
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23 Id.

24 Id. ¶ 49.

25 State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.

26 See Pleasant Grove City v. Terry, 2020 UT 69, ¶ 7, 478 P.3d 1026

(addressing “the appropriate standard of review for a legally
impossible verdict” and holding that the issue presents “a question of
law, which we review for correctness”).
27 State v. McNeil, 2016 UT 3, ¶ 14, 365 P.3d 699.

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obstruction of justice statute and misapplied the doctrine of
inconsistent verdicts laid out in Pleasant Grove City v. Terry. 28 He also
argues that the court of appeals erred in holding that his counsel was
not ineffective.
¶28 We reject Paule’s arguments and hold that (1) to be convicted
of obstruction of justice, a defendant need only perform an obstructive
act with the requisite intent—proof of a separate crime is not
necessary—and (2) Paule has not shown that he received ineffective
assistance of counsel. Accordingly, we affirm Paule’s conviction.
I. The Court of Appeals Was Correct in Upholding the Jury’s Verdict
that Paule Violated the Obstruction of Justice Statute
¶29 Most crimes require a certain actus reus and mens rea. 29 Actus
reus refers to the “physical components of a crime,” which include
“[t]he voluntary act or omission” and “the attendant circumstances”
of a crime. 30 Mens rea refers to the state of mind a defendant must have
had when committing that crime. 31 The mens rea of a crime may
require either general or specific intent. To be convicted of a specific
intent crime, the defendant must have acted with the intent to cause a
specific result rather than simply the intent to perform the act. 32 “[A]
defendant’s intent can be inferred from conduct and attendant
circumstances in the light of human behavior and experience.” 33
Obstruction of justice “is a crime of specific intent.” 34
¶30 In Utah Code subsection 76-8-306(1), Utah’s obstruction of
justice statute states, in relevant part, “[a]n actor commits obstruction
of justice if the actor, with intent to hinder, delay, or prevent the

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28 2020 UT 69, 478 P.3d 1026.

29 See Actus reus, BLACK’S LAW DICTIONARY (11th ed. 2019).

30 Id.

31 See Mens rea, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining

mens rea as the “state of mind that the prosecution, to secure a
conviction, must prove that a defendant had when committing a
crime”).
32 See State v. Hutchings, 2012 UT 50, ¶ 14 n.3, 285 P.3d 1183
(explaining the difference between specific- and general-intent
crimes).
33 State v. Carrell, 2018 UT App 21, ¶ 57, 414 P.3d 1030 (cleaned up).

34 State v. Maughan, 2013 UT 37, ¶ 13, 305 P.3d 1058.

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investigation, apprehension, prosecution, conviction, or punishment
of any person regarding conduct that constitutes a criminal offense:
. . . alters, destroys, conceals, or removes any item or other thing.”
¶31 Thus, the actus reus of Utah’s obstruction of justice statute is
“alter[ing], destroy[ing], conceal[ing], or remov[ing] any item or other
thing.” 35 And the mens rea portion of the statute requires the “intent
to hinder, delay, or prevent the investigation, apprehension,
prosecution, conviction, or punishment of any person regarding
conduct that constitutes a criminal offense.” 36
¶32 Paule and the State do not dispute the actus reus of the statute.
But they disagree about the mens rea required for obstruction of justice.
Specifically, they disagree as to whether the language “conduct that
constitutes a criminal offense” requires the State to prove that the
conduct at issue could ultimately be proven to be a separate crime.
¶33 Paule contends that the “conduct” described in the statute
must be independently criminal. He argues that the State must prove
that Paule satisfied all the elements of the crime related to the criminal
conduct, including the mens rea. Accordingly, acquittal on a criminal
charge—in this case, murder— that is related to the criminal
conduct—in this case, shooting Friend—would necessarily preclude
an obstruction of justice charge because, ultimately, the State could
not prove that the underlying conduct was independently criminal.
¶34 The State disagrees, arguing that it need only prove that Paule
thought his conduct was criminal. Obstruction of justice, the State
contends, is much like a conspiracy crime, in which the State need
only prove that the defendant intended that a crime be committed; the
crime need not materialize. Therefore, acquittal on all other criminal
charges would not affect an obstruction of justice conviction because
that conviction does not turn on whether the underlying criminal
conduct results in a separate punishable crime.
¶35 We agree with the State and conclude that because a violation
of Utah’s obstruction of justice statute requires only that a defendant
act with the requisite intent—it does not require proof of a separate
criminal offense—the jury’s verdict was not legally impossible.

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35 Id.

36 Id.

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A. The Court of Appeals Did Not Err in Holding that Paule’s Obstruction
of Justice Conviction Was Not Legally Impossible
¶36 “Legally impossible verdicts are verdicts that are inconsistent
as a matter of law because it is impossible to reconcile the different
determinations that the jury would have had [to] make to render
them.” 37 We addressed legally impossible verdicts for the first time in
Terry. 38 In that case, the defendant, Terry, was charged with, among
other crimes, domestic violence and commission of domestic violence
in the presence of a child. 39 The jury returned a verdict that acquitted
Terry on domestic violence but convicted him of domestic violence in
the presence of a child. 40
¶37 On appeal of that conviction, we addressed whether it is
legally possible to acquit a defendant on a predicate offense but
convict them of the compound offense. 41 A predicate offense is a
“crime that is composed of some, but not all, of the elements of a more
serious crime and that is necessarily committed in carrying out the
greater crime.” 42 A compound offense is an “offense composed of one
or more separate offenses.” 43
¶38 Acquitting a defendant on a predicate offense that constitutes
at least one “essential element” of the compound offense but
convicting the defendant on the compound offense is illogical because
the jury has already concluded that the prosecution did not establish
that element of the compound offense. 44 Accordingly, we ultimately
held in Terry that when a defendant is “acquitted on the predicate
offense but convicted on the compound offense,” such that “without
the underlying offense the compound charge cannot stand,” then the
verdict is legally impossible and the reviewing court must overturn

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37 Terry, 2020 UT 69, ¶ 13 (cleaned up).

38 See generally id.

39 Id. ¶ 4.

40 Id.

41 Id. ¶ 12.

42 Offense, BLACK’S LAW DICTIONARY (11th ed. 2019) (equating lesser

included offense with predicate offense).
43 Id.

44 See Terry, 2020 UT 69, ¶¶ 15–16.

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it. 45 We instructed that, in making its determination, a reviewing court
“should look into the elements of the crime, the jury verdicts, and the
case’s instructions.” 46
¶39 Paule argues that the court of appeals erred both in its
interpretation of the obstruction of justice statute and in its analysis of
the jury instructions. First, Paule argues that legally impossible
verdicts are not confined to predicate/compound offenses and that an
obstruction of justice conviction after acquittal on all other criminal
charges is legally impossible because the mens rea element of the Utah
obstruction of justice statute requires that the State prove that the
defendant’s conduct is criminal. Therefore, if the defendant is
acquitted on the criminal charge related to the criminal conduct, the
State cannot prove that the defendant’s conduct was criminal.
¶40 Second, Paule contends that the court inappropriately applied
the Terry factors, principally by considering the additional context of
the language in subsection 76-8-306(2)(a) that was not given to the jury
when interpreting the obstruction of justice statute. Paule thus argues
the court improperly analyzed the “case’s instructions.” 47
¶41 The State responds that because murder, assault, and reckless
endangerment are not “predicate” or “lesser included” offenses of
obstruction of justice, the jury’s verdict is not legally impossible. It
contends that because “a jury could also rationally conclude that
Paule subjectively believed he was legally at risk of a murder
conviction—and thus acted ‘with intent to hinder’ a murder
investigation”—his verdict of obstruction of justice is legally
consistent. In other words, the State reiterates that intent to hinder an
investigation is what matters and argues that a reasonable jury could
find Paule guilty of obstruction of justice.
¶42 Turning to Paule’s argument that the court of appeals violated
Terry by considering language outside of the instructions given to the
jury, the State argues that any error the court committed in this regard
was immaterial. Even without the additional context of subsection 76-
8-306(2)(a), the State argues, the plain language of subsection 76-8-
306(1) indicates that the jury could have convicted Paule of
obstruction of justice despite acquitting him on all other charges.

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45 Id. ¶ 53 (cleaned up).

46 Id.

47 Id.

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¶43 Thus, the State argues that the court of appeals did not err in
holding that the jury’s verdict was not legally impossible. We agree
with the State that the jury’s verdict was not legally impossible.
¶44 Determining whether the court of appeals erred in holding
that Paule’s conviction was not legally impossible requires that we
first identify the elements of obstruction of justice under subsection
76-8-306(1). 48 As explained above, the obstruction of justice statute is
divided into mens rea and actus reus elements. Because the mens rea
element is the only disputed portion here, it is our focal point.
¶45 The relevant portion of subsection 76-8-306(1) states that a
defendant must act “with intent to hinder, delay, or prevent the
investigation, apprehension, prosecution, conviction, or punishment
of any person regarding conduct that constitutes a criminal offense.”
Read in a vacuum, this language could be interpreted to mean either—
as Paule argues—that the conduct at issue must ultimately be
punishable as a separate crime, or—as the State argues—that the
defendant’s intent to impede a criminal investigation is all that
matters, and the State need not prove that the conduct constituted a
separate, punishable criminal offense.
¶46 Though we have not analyzed this statutory language in
depth, our court of appeals recently provided some insight into its
meaning. In State v. Mendoza, the court explained that “to find a person
guilty of obstruction of justice, a jury must determine that the person
has done two things: (1) acted with the appropriate intent as described
in section 76-8-306(1) and (2) committed any one of the specific acts
listed in section 76-8-306(1)(a)–(j).” 49 Neither of the two statutory
elements of obstruction of justice discussed in Mendoza requires that a
jury conclude that a separate crime has been committed.
¶47 As the Mendoza court noted, the language of the statute does
not expressly require the State to prove that the defendant committed
a separate crime. Therefore, “conduct that constitutes a criminal
offense” must mean something other than what Paule argues—that
the State must prove that the conduct at issue satisfies both the actus
reus and the mens rea of a separate crime. We interpret the phrase as

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48 See id. (requiring a reviewing court to “look into the elements of

the crime, the jury verdicts, and the case’s instructions” when
determining whether verdicts are legally impossible).
49 2021 UT App 79, ¶ 15, 496 P.3d 275.

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instead meaning conduct that the defendant believes constitutes the
actus reus of a crime.
¶48 This interpretation becomes apparent when we consider the
statute as a whole, as our caselaw directs. The primary goal of
statutory interpretation is “to ascertain the intent of the legislature.”50
In doing so, we look at the plain language of the statute, “[b]ut we do
not interpret statutory provisions in isolation.” 51 We consider the
statute as a whole, including the current language in the context of
any relevant amendments. 52
¶49 Here, we cannot read subsection 76-8-306(1) without the
context of subsection 76-8-306(2), which defines “conduct that
constitutes a criminal offense” as “conduct that would be punishable
as a crime and is separate from a violation of this section.” 53 As the
court of appeals noted, before 2001, the statute defined the mens rea of
obstruction of justice as “intent to hinder, prevent, or delay the
discovery, apprehension, prosecution, conviction, or punishment of
another for the commission of a crime.”54 In 2001, the legislature
amended the statute to replace “for the commission of a crime” with
“regarding conduct that constitutes a criminal offense.” 55 It also
defined “conduct that constitutes a criminal offense” as “conduct that
would be punishable as a crime and is separate from a violation of this
section.” 56 In changing the language to “conduct that constitutes a
criminal offense” and defining that conduct with the conditional
“would be,” the legislature manifested a clear intent to amend the
obstruction of justice mens rea requirement to no longer require that
the State prove that the conduct in question ultimately resulted in a
separately punishable crime. That is, the legislature intended that a
defendant could be convicted of an obstruction of justice charge even
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50 Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (cleaned up).

51 Hertzske v. Snyder, 2017 UT 4, ¶ 12, 390 P.3d 307 (cleaned up).

52 See Gressman v. State, 2013 UT 63, ¶¶ 30–32, 323 P.3d 998.

53 UTAH CODE § 76-8-306(2)(a).

54 State v. Paule, 2021 UT App 120, ¶ 18, 502 P.3d 1217 (quoting

UTAH CODE § 76-8-306(1)(f) (2000)).
55 See id. ¶ 19 (comparing UTAH CODE § 76-8-306(1), with Act of

Apr. 30, 2001, ch. 307, § 2, 2001 Utah Laws 1385, 1385–86).
56 See id. (quoting Act of Apr. 30, 2001, ch. 307, § 2, 2001 Utah Laws

1385, 1386).

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if they have not been convicted of any crime linked to the underlying
conduct.
¶50 Therefore, “conduct that constitutes a criminal offense” does
not refer to conduct that constitutes both the actus reus and the mens
rea of the separate crime; if a defendant’s underlying conduct satisfied
both elements, that conduct would be punishable as a separate
criminal offense. And as we have noted, the legislature did not intend
to require that the State prove a separate criminal offense in proving
obstruction of justice.
¶51 The plain language of the statute points to “conduct” as
meaning the actus reus of a crime. Conduct means “a mode or standard
of personal behavior” 57 or “the manner in which a person behaves.”58
The definition does not refer to the mental state motivating a behavior;
it focuses only on the behavior itself. That focus echoes the meaning
of actus reus, which is defined as the physical act of a criminal
offense. 59 So “conduct that constitutes a criminal offense” refers only
to the actus reus of a criminal offense.
¶52 But the State need not prove that the underlying conduct was
in fact the actus reus of a criminal offense. Remember that “conduct
that constitutes a criminal offense” is found within the mens rea
requirement of the obstruction of justice statute. 60 And mens rea refers
to the mental state, fault, or culpability of a defendant. 61
¶53 So the mens rea element of the obstruction of justice statute
focuses on the defendant’s mental state. Whether the defendant’s—or
any other person’s—conduct was actually the actus reus of a criminal
offense has no bearing on the defendant’s intent to obstruct justice.
Instead, because it is the only factor that can affect the defendant’s
culpability, the defendant’s subjective belief that the underlying
conduct constituted the actus reus of a separate criminal offense is the

_____________________________________________________________
57 Conduct, MERRIAM WEBSTER https://www.merriam-
webster.com/dictionary/conduct (last visited Jan. 12, 2024).
58 Conduct, BLACK’S LAW DICTIONARY (11th ed. 2019).

59 Actus reus, BLACK’S LAW DICTIONARY (11th ed. 2019).

60 See UTAH CODE § 76-8-306(1).

61 1 Wayne R. LaFave, Mental States, Generally in Substantive Crim.

L. § 5.1 (3d ed. 2023).

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determining factor of the defendant’s intent to “hinder, delay, or
prevent [an] investigation.” 62
¶54 This analysis comports with general principles of criminal
law. A foundational concept of criminal law is that only people who
have done something wrong and are culpable for that wrong act
should be punished. 63 In other words, “it is unjust to blame and
punish anyone who does not deserve to be punished.” 64 Guilt is
determined by culpability. And culpability is determined by the
mental state of the defendant.
¶55 In sum, when an obstruction of justice charge is predicated
on the obstruction of an investigation, we conclude that the mens rea
for that crime requires that a defendant have the specific intent to
hinder an investigation into what the defendant believes is the actus
reus of a separate crime. Whether the defendant, or any other person,
had the mens rea to commit that separate crime is irrelevant.
¶56 The court of appeals’ interpretation overlaps with ours in that
the court of appeals agreed that the State need not prove a separate
crime to support an obstruction of justice charge. 65 But the court’s
interpretation diverges from ours with respect to what the State does
need to prove. 66 The court added its own gloss to the legislature’s
definition of “conduct that constitutes a criminal offense,” defining
the phrase as “conduct that would be punishable as a crime if the facts
had developed as suspected” by the police. 67 The statute, the court
reasoned, focuses on the conduct the police suspected, not the conduct
_____________________________________________________________
62 UTAH CODE § 76-8-306(1).

63 See Mens rea, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining

mens rea as the second essential element, along with actus reus, of a
crime); Paul H. Robinson, Mens Rea, ENCYCLOPEDIA OF CRIME & JUST.
995, 995–96 (Joshua Dressler ed., 2d ed. 2002), available at
https://scholarship.law.upenn.edu/faculty_scholarship/34/
(defining mens rea, in a broad sense, as “those conditions that make a
person’s violation sufficiently blameworthy to merit the
condemnation of criminal conviction”).
64 Stephen J. Morse, Inevitable Mens Rea, 27 HARV. J.L. & PUB. POL’Y

51, 61 (2003).
65 Paule, 2021 UT App 120, ¶ 27.

66 See id. ¶ 30.

67 Id. (emphasis added) (citing UTAH CODE § 76-8-306(1), (2)(a)).

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that is proven at trial. So the police’s suspicion controls whether the
underlying conduct is “conduct that constitutes a criminal offense,”
and the State need only prove that the police suspected criminal
conduct. 68 We disagree.
¶57 While presumably the police would not investigate conduct
they do not believe to be criminal, the police’s belief as to the
criminality of the underlying conduct is not relevant to a defendant’s
mental state. And as explained above, the only belief that matters
regarding “conduct that constitutes a criminal offense” is the
defendant’s belief. By construing “conduct that constitutes a criminal
offense” to mean “conduct that would be punishable as a crime if the
facts had developed as suspected,” 69 the court of appeals
inappropriately shifted the focus from what the defendant believed to
what the police suspected. The statute does not require a jury to
consider what the police may have believed during the investigation;
instead, the defendant’s intent and subsequent actions are controlling.
¶58 In short, as relevant here, obstruction of justice has two
elements: (1) the actus reus of “alter[ing], destroy[ing], conceal[ing], or
remov[ing] any item or other thing”; and (2) the mens rea of the intent
to “hinder, delay, or prevent the investigation . . . of any person
regarding conduct” that the defendant believed constitutes the actus
reus of a separate criminal offense. 70
B. The Court of Appeals Erred in Not Considering the Exact Language of
the Jury Instructions, but the Error Was Harmless
¶59 The court of appeals was correct in holding that Paule’s
conviction was not legally impossible after Paule was acquitted on all
other charges. As explained above, the fact that the criminal conduct
did not result in a separately punishable crime does not preclude a
conviction for obstruction of justice. The court did, however, err in one
respect: it failed to separately consider the case’s instructions, as
required under Terry. 71 Specifically, the court erred when it analyzed
language of the obstruction of justice statute that was not included in
the jury instructions. 72 The court could only consider language
_____________________________________________________________
68 Id.

69 Id. (cleaned up).

70 See UTAH CODE § 76-8-306(1).

71 See Terry, 2020 UT 69, ¶ 53.

72 See Paule, 2021 UT App 120, ¶¶ 25–30.

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outside the jury instructions when engaging in the first prong of the
Terry test: determining the elements of obstruction of justice. Despite
this error, we conclude that the jury could still have reasonably come
to its verdicts such that the verdicts were not irreconcilable.
¶60 Among other instructions, the jury was given the following
directive at trial:
The defendant is charged in Count 2 with Obstruction
of Justice. You cannot convict him of this offense unless
you find beyond a reasonable doubt, based on the
evidence, each of the following elements: (1) the
defendant, Elbert John Paule, did; (2) with intent to
hinder, delay, or prevent the investigation,
apprehension, prosecution, conviction, or punishment
of any person regarding conduct that constitutes a
criminal offense; (3) alter, destroy, conceal, or remove
any item or other thing.
This instruction quotes the relevant language of Utah Code subsection
76-8-306(1) of the obstruction of justice statute nearly verbatim.73 But
it excludes the “would be punishable” language from subsection 76-
8-306(2)(a), which the court of appeals relied on in both interpreting
the statute and analyzing the case’s jury instructions.
¶61 Subsection 76-8-306(1) lists the elements sufficient to satisfy
the obstruction of justice statute: (1) the defendant must “alter[],
destroy[], conceal[], or remove[] any item or other thing,” (2)“with
intent to hinder, delay, or prevent, the investigation . . . of any person
regarding conduct that constitutes a criminal offense.” With this
language before it, the jury was effectively asked to determine
whether Paule “removed” the shotgun from his apartment with the
intent to hinder the investigation into the killing of Friend. The fact
that the jury was not instructed on the statutory definition of “conduct
that constitutes a criminal offense” from subsection 76-8-306(2)(a) is
immaterial to this determination.
¶62 Having been properly instructed on the two elements from
subsection 76-8-306(1), the jury was asked to decide whether Paule

_____________________________________________________________
73 See UTAH CODE § 76-8-306(1)(c) (“An actor commits obstruction

of justice if the actor, with intent to hinder, delay, or prevent the
investigation, apprehension, prosecution, conviction, or punishment
of any person regarding conduct that constitutes a criminal offense . . .
alters, destroys, conceals, or removes any item or other thing.”).

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intended to hinder the investigation of “conduct that constitutes a
criminal offense.” 74 Accordingly, the jury was tasked with
determining only that by “remov[ing] any item or other thing” from
his apartment, Paule “inten[ded] to hinder, delay, or prevent” the
investigation into the fatal shooting of Friend (the fatal shooting being
conduct that Paule believed constituted the actus reus of a criminal
offense). 75 Because killing someone is unquestionably the actus reus of
a criminal offense, the jury could have reasonably inferred, based on
the evidence before it, 76 that Paule chose to remove the shotgun from
his apartment with the intent to hinder the investigation into the
killing of Friend—an action that would constitute obstruction of
justice. The fact that the jury also determined that Paule was justified
in defending himself is ultimately irrelevant to this analysis.
¶63 Because the jury could have reasonably interpreted its
instructions in a way that returned reconcilable verdicts, the court of
appeals’ error in straying from the exact language of the jury
instructions was harmless. Accordingly, we affirm the court’s holding
that Paule’s verdicts were not legally impossible.
II. Paule Has Not Shown That His Counsel Was
Constitutionally Ineffective
¶64 We granted certiorari to review whether the court of appeals
erred in concluding that Paule’s counsel was not ineffective in failing
to seek a more detailed unanimity instruction. While Paule challenges
the court of appeals’ decision on that issue, he also challenges the
court’s decision on another issue: whether his counsel was ineffective
in failing to seek a clarifying instruction or a special verdict form with
respect to the charge for obstruction of justice.
¶65 Below, we address each of Paule’s claims. We hold that
(1) Paule’s counsel was not ineffective in failing to seek a more
detailed unanimity instruction, and (2) because Paule did not raise in
his petition for certiorari his claim that his counsel was ineffective in
failing to seek a clarifying instruction or a special verdict form, the
claim is beyond the scope of our review.

_____________________________________________________________
74 See id. § 76-8-306(1).

75 Id. § 76-8-306(1)(c).

76 See Carrell, 2018 UT App 21, ¶ 57 (“[A] defendant’s intent can be

inferred from conduct and attendant circumstances in the light of
human behavior and experience.” (Cleaned up)).

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A. Paule’s Counsel Was Not Ineffective in Failing to Seek a More Detailed
Unanimity Instruction
¶66 Paule argues that his trial counsel provided constitutionally
ineffective assistance in failing to request an instruction directing that
the jury unanimously agree not only about whether Paule was guilty
of obstruction of justice but also about the specific obstructive act that
he committed. To prevail on this claim, Paule must demonstrate that
(1) his counsel’s performance was deficient, falling “below an
objective standard of reasonableness,” 77 and (2) the deficient
performance prejudiced him. 78 Because we determine that Paule has
not shown that his counsel’s performance was deficient, we decide the
issue on the test’s first prong and do not address whether the alleged
deficient performance prejudiced Paule. 79
¶67 As Paule accurately observes—and the State does not
dispute—although the jury instructions in Paule’s case mentioned
general principles of jury unanimity, none specified that the jury must
unanimously agree about which specific obstructive act he
committed. 80 The Utah Constitution’s Unanimous Verdict Clause
expressly protects a criminal defendant’s right to a unanimous
verdict.81 The constitutional “requirement of unanimity is not met if a
_____________________________________________________________
77 Strickland v. Washington, 466 U.S. 668, 688 (1984).

78 Id. at 687.

79 See, e.g., Menzies v. State, 2014 UT 40, ¶ 78, 344 P.3d 581, abrogated

on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179
(reasoning that because “[a] satisfactory showing of both parts of the
Strickland test is required for the defendant to prevail,” “it is not
necessary . . . to address both components of the inquiry if we
determine that a defendant has made an insufficient showing on one”
(cleaned up)).
80 One jury instruction stated, “In all criminal cases, including this

case, the unanimous agreement of all jurors is required before a
verdict is reached.” Another encouraged the jury to “[t]ry to reach
unanimous agreement” and instructed that “[b]ecause this is a
criminal case, every single juror must agree with the verdict before the
defendant can be found ‘guilty’ or ‘not guilty.’” And another
instructed the foreperson to “fill in the appropriate blanks” on the
verdict form “to reflect the jury’s unanimous decision.”
81 See UTAH CONST. art. I, § 10 (“In criminal cases the verdict shall

be unanimous.”).

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jury unanimously finds only that a defendant is guilty of a crime.” 82
Under our “well-established” caselaw, 83 a jury verdict must also be
unanimous “as to each count of each distinct crime charged by the
prosecution and submitted to the jury for decision.” 84 For example, “a
verdict would not be valid if some jurors found a defendant guilty of
robbery committed on December 25, 1990, in Salt Lake City, but other
jurors found him guilty of a robbery committed January 15, 1991, in
Denver, Colorado,” despite “all jurors [finding] him guilty of the
elements of the crime of robbery.” 85
¶68 With these principles in mind, Paule asserts that in his case,
the jury instructions insufficiently described the jury’s constitutional
obligation to reach a unanimous verdict, and so his counsel acted
deficiently by not requesting a more specific unanimity instruction.
For two reasons, we hold that Paule’s counsel was not ineffective in
failing to seek a more detailed unanimity instruction. First, if counsel
had requested a more specific instruction, then the State’s options for
conviction of obstruction of justice could have expanded. Second,
counsel’s decision to rely on the State’s clear identification of the
shotgun evidence as the factual basis for the obstruction charge was
supported by controlling caselaw.
1. Counsel Acted Reasonably Because a More Detailed Unanimity
Instruction Could Have Hurt Paule’s Chances of Acquittal
¶69 Paule argues that the State presented evidence of three
separate acts, any of which a reasonable juror could have latched onto
to conclude that he committed obstruction of justice. Specifically, he
notes that the jury heard evidence about (1) the shotgun being found
in the grass below his apartment balcony, (2) the disappearance of his
phone, and (3) his travel to California immediately after the shooting
occurred.
¶70 Indeed, the jury heard law enforcement officers testify that the
shotgun was found in the grass below Paule’s balcony, which
indicated to the officers that it “had been tossed down to the ground.”
The jury also heard investigators testify that because Paule “was using
Instagram all night as he made his way to San Diego,” the

_____________________________________________________________
82 State v. Hummel, 2017 UT 19, ¶ 26, 393 P.3d 314 (cleaned up).

83 Id. ¶ 30.

84 Id. ¶ 26.

85 Id. ¶ 28 (cleaned up).

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investigators did not believe that Paule had lost his phone; rather, they
believed he “ditched” it. And the jury heard evidence indicating that,
after shooting Friend, Paule ran from his apartment and traveled to
California. As Paule sees it, because the jury could have concluded
that any of the three potentially obstructive acts amounted to
obstruction of justice, his counsel should have insisted on a unanimity
instruction that clearly identified the factual basis for the obstruction
of justice charge.
¶71 We do not disagree with Paule that the jury heard evidence
about multiple acts that a reasonable juror could have believed
amounted to obstruction of justice. 86 Nor do we disagree that any
potential confusion among the jurors could have been headed off by
an instruction that identified the shotgun disposal as the obstructive
act. But, properly framed, the issue before us is not whether trial
counsel followed best practices; the issue before us is whether
counsel’s performance was objectively reasonable under the
circumstances of Paule’s case. When reviewing a claim that a
defendant’s counsel performed deficiently, the question “is not
whether some strategy other than the one that counsel employed
looks superior”; 87 rather, “[i]f it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.” 88 Stated
differently, counsel’s performance can be objectively reasonable
despite a failure to employ “the best strategy.” 89
¶72 For example, in State v. Ray, we held that Ray’s trial counsel
was not ineffective in failing to object to an undefined term included
in one of the jury instructions. 90 There, the applicable statute provided
two ways in which a person could be convicted of forcible sexual
_____________________________________________________________
86 We note, however, the State’s position that under a natural
reading of the statute, Paule could not have been convicted of
obstruction for traveling to California, because the words “alter,”
“destroy,” “conceal,” and “remove” apply only to physical objects,
not to a person’s departure from a crime scene. See UTAH CODE § 76-
8-306(1)(c). As that question has no bearing on our decision, we
decline to address the merits of the State’s assertion.
87 State v. Hunter, 2021 UT 44, ¶ 95, 496 P.3d 119 (cleaned up).

88 State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.

89 Hunter, 2021 UT 44, ¶ 95.

90 2020 UT 12, ¶¶ 25, 46.

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abuse: (1) by touching specific areas of another’s body or (2) by taking
“indecent liberties” with another.91 The jury instructions did not
define the term “indecent liberties,” 92 Ray’s counsel did not attempt
to correct the omission, 93 and Ray was convicted of forcible sexual
abuse. 94
¶73 On appeal, responding to Ray’s claim that his counsel
rendered ineffective assistance, we examined the context of his
counsel’s actions. 95 We noted that at trial, the State focused its
attention on the first of the two options described in the statute, the
“touching variant,” and it did not focus its attention on the second
option, the “indecent liberties variant.”96 Within that context, we held
that Ray had not “overcome the ‘strong presumption’ that his counsel
exercised reasonable professional judgment” 97 because his “counsel
could have reasonably concluded that clarifying indecent liberties
would not help clear Ray and could instead broaden the State’s
arguments against him.” 98
¶74 So too, here, we conclude that in the context of Paule’s trial,
his counsel could have reasonably concluded that seeking a more
specific unanimity instruction could have broadened the State’s
arguments against Paule to his detriment. Over the course of Paule’s
trial, the State clearly identified the obstruction charge as being
founded only on the shotgun evidence. In its opening statement, the
State informed the jury that the second charge against Paule was
“obstruction of justice, when, after he shot [Friend], he took that
shotgun, threw it off the balcony in order to hinder, delay, or prevent
the investigation.” Later at trial, in response to Paule’s motion for a
directed verdict on the obstruction charge, the State again framed the
charge as being centered on the shotgun evidence. It maintained that
based on the shotgun evidence, there was “sufficient circumstantial
_____________________________________________________________
91 Id. ¶¶ 25–26.

92 Id. ¶ 19.

93 Id.

94 Id. ¶ 1.

95 Id. ¶ 32 (explaining our decision to view Ray’s counsel’s decision

not to object “in context”).
96 Id. ¶¶ 37, 39.

97 Id. ¶ 43 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984).

98 Id. ¶ 42.

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evidence with regards to obstruction of justice.” And once more, in its
closing argument, the State reiterated that
Count 2 is obstruction of justice. That is when he threw
the gun over the balcony. . . . Now, again, he threw that
shotgun over and only his prints are on that. That would
be consistent with him shooting the shot, going and
throwing it over the balcony and then coming out a
short time later to get away.
¶75 Moreover, we agree with the court of appeals’ observation
that “[a]t no point during trial did the prosecutor ever argue that the
obstruction count was for any act other than throwing the shotgun off
the balcony.” 99 Evidence of Paule’s lost phone and his travel to
California was discussed only in connection with the murder
charge—not the obstruction charge. And because the State never
discussed any acts related to Paule’s phone or his travel to California
in the context of the obstruction charge, its position remained clear:
the obstruction charge rested only on the evidence suggesting that
Paule had disposed of the shotgun. 100
¶76 Viewed in that context, Paule’s counsel could have reasoned
that the State had elected to put all its obstruction eggs in the shotgun
basket. And if, in response to a request for a unanimity instruction,
the State introduced to the jury the question of whether it could,
alternatively, convict Paule based on the phone evidence or the
evidence of his travel to California, then the State’s options would
_____________________________________________________________
99 State v. Paule, 2021 UT App 120, ¶ 45, 502 P.3d 1217.

100 In his attempt to show that the State did not clearly identify the

obstruction charge as being founded only on the shotgun evidence,
Paule references statements the State made after trial. On this point,
we again agree with the court of appeals:
[A]ny comments the State made after the jury had been
discharged—for instance, at sentencing, or in defending
against Paule’s motion to arrest judgment—cannot have
had any effect on the jury’s perception of the factual
basis for the obstruction charge. . . . [W]e can readily
conclude that any comment made days or weeks after
the jury’s discharge cannot possibly have
countermanded or diluted, in the jury’s mind, the reach
of the State’s otherwise-clear guidance to the jury
regarding the scope of the obstruction charge.
Id. ¶ 47.

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have broadened, and its case for obstruction would have been
strengthened. Therefore, Paule’s counsel was reasonable in not
requesting a more detailed unanimity instruction.
2. Counsel Was Reasonable in Declining to Press for a More Detailed
Unanimity Instruction Because That Decision Was Supported by
Controlling Caselaw
¶77 Paule bristles at the State’s assertion—and the court of
appeals’ determination—that his counsel could have reasonably
concluded that the lack of a unanimity instruction was effectively
remedied by the State’s election to present the shotgun evidence as the
basis for the obstruction of justice charge. In his view, a proper jury
instruction is imperative in protecting a criminal defendant’s right to
jury unanimity. He reasons that it is “completely inappropriate” to
entrust the State—opposing counsel—with the obligation of
protecting a criminal defendant’s constitutional right to a unanimous
verdict because it is the court’s role to instruct the jury, while it is the
State’s role to present evidence and persuade the jury of the
defendant’s guilt.
¶78 But again, properly framed, the issue before us is not whether
an alleged jury unanimity problem may be resolved by prosecutorial
election; the issue before us is whether counsel’s performance was
objectively reasonable under the circumstances of Paule’s case. We
agree with the State that because courts in Utah and elsewhere have
determined that a unanimity problem can be remedied by
prosecutorial election, Paule’s counsel was objectively reasonable in
traveling that “well-trodden path” rather than potentially expanding
the State’s arguments against Paule.
¶79 Our court of appeals was presented with a jury unanimity
question in State v. Alires. 101 There, the State charged Alires with six
counts of aggravated sexual abuse of a child—two for conduct toward
his daughter and four for conduct toward his daughter’s friend. 102 The

_____________________________________________________________
101 2019 UT App 206, ¶ 15, 455 P.3d 636. In its briefing in Paule’s

case, the State reminds us that in a pending case before this court, the
State requests we reject or limit Alires. In Paule’s case, however, the
State “assume[s]—without conceding—that Alires was correctly
decided.” We adopt a similar approach. Because neither party argues
here that Alires was incorrectly decided, we leave that question open
for later determination.
102 Id. ¶ 1.

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daughter’s friend testified at trial that Alires had touched her
unlawfully at least six times and that he had touched his daughter
unlawfully twice. 103 The State failed to specify which touching
supported each charge, 104 Alires’s counsel did not request a clarifying
unanimity instruction, 105 and Alires was convicted on two of the six
counts. 106
¶80 Alires argued to the court of appeals that his counsel was
ineffective in failing to request an instruction informing the jury that
it had to unanimously agree on which criminal act supported each
conviction. 107 The court agreed. It concluded that “[o]nce the State
failed to elect which act supported each charge, the jury should have
been instructed to agree on a specific criminal act for each charge in
order to convict.”108 In reaching that conclusion, the court
approvingly cited two cases from outside Utah. 109 In the first, the
Supreme Court of Kansas held that to rectify a unanimity problem,
“either the State must have informed the jury which act to rely upon
for each charge during its deliberations or the district court must have
instructed the jury to agree on the specific criminal act for each charge
in order to convict.” 110 In the second, the Supreme Court of
Washington noted that “[t]o ensure jury unanimity in multiple acts
cases,” either the State is required to “elect the particular criminal act
upon which it will rely for conviction,” or “the trial court [must]
instruct the jury that all of them must agree that the same underlying
criminal act has been proved beyond a reasonable doubt.” 111
¶81 The court’s conclusion in Alires—that “[o]nce the State failed
to elect which act supported each charge, the jury should have been
instructed to agree on a specific criminal act for each charge in order

_____________________________________________________________
103 Id. ¶ 22.

104 Id.

105 Id. ¶ 23.

106 Id. ¶ 1.

107 Id. ¶ 15.

108 Id. ¶ 22.

109 Id. ¶ 43.

110 State v. Santos-Vega, 321 P.3d 1, 18 (Kan. 2014).

111 State v. Vander Houwen, 177 P.3d 93, 99 (Wash. 2008) (en banc).

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to convict” 112—implied that if the State had elected which act
supported each charge, then a jury unanimity instruction may not
have been necessary. Paule brushes this implication aside as being
dicta because, in Alires, the State had not elected which act supported
each charge. But, regardless of whether the implication was dicta, our
court of appeals has since expressly affirmed what Alires implied, thus
further indicating the reasonableness of counsel’s actions in Paule’s
case. 113 In State v. Garcia-Lorenzo, the court of appeals noted that “jury
unanimity problems can sometimes be alleviated if the State carefully
identifies for the jury, in closing argument or elsewhere, which act
supported each charge.” 114 And in State v. Mottaghian, the court of
appeals observed that the alleged unanimity problem in the case
“could have been alleviated . . . if the State had identified for the
jury—in closing argument, for instance—which act supported each
charge.” 115
¶82 So our court of appeals has repeatedly conveyed—both
impliedly and expressly—that a jury unanimity problem can be
avoided if the State identifies for the jury which act supports each
charge. Here, the question is whether Paule’s counsel’s decision to
rely on the State’s clear identification of the obstruction charge as
being founded on the shotgun evidence—instead of proposing a more
specific unanimity instruction—was reasonable. Given that the
decision was supported by controlling caselaw, we cannot say it was
unreasonable. Accordingly, Paule’s counsel did not perform
deficiently.
¶83 In sum, because the State’s options for conviction could have
increased if Paule’s counsel had requested a more specific unanimity
instruction, and because Paule’s counsel’s decision to rely on the
State’s clear election was supported by controlling caselaw, we

_____________________________________________________________
112 Alires, 2019 UT App 206, ¶ 22.

113 We note that the following two cases were decided after Paule’s

trial. They nonetheless support our conclusion in that they confirmed
the court of appeals’ implication that if the State had elected an act to
support each charge, specific unanimity instructions would not be
required.
114 2022 UT App 101, ¶ 39, 517 P.3d 424 (quoting Alires, 2019 UT

App 206, ¶ 22), cert. granted, 525 P.3d 1263 (Utah 2022).
115 2022 UT App 8, ¶ 58, 504 P.3d 773 (quoting Alires, 2019 UT App

206, ¶ 22), cert. denied, 525 P.3d 1256 (Utah 2022).

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conclude that Paule has not “overcome the ‘strong presumption’ that
his counsel exercised reasonable professional judgment,” 116 and we
hold that his counsel was not ineffective in failing to seek a more
detailed unanimity instruction.
B. Because Paule’s Additional Ineffective Assistance of Counsel Claim Was
Not Included in His Petition for Certiorari, We Decline to Address
It on the Merits
¶84 In addition to the claim that his counsel was ineffective in
failing to request a more detailed unanimity instruction, Paule claims
that his counsel was ineffective in failing to rectify deficiencies in the
elements instruction for the obstruction charge. This second claim
goes beyond Paule’s ineffective assistance of counsel claim based on
the allegedly deficient unanimity instruction because a clearer
unanimity jury instruction would not have cured the alleged problem
with the elements instruction. Instead, to cure the alleged problem
with the elements instruction for the obstruction charge, Paule asserts
that reasonable counsel would have asked for either (1) an elements
instruction informing the jury that the obstruction charge was based
on Paule’s intent to obstruct the investigation of murder—not reckless
endangerment or assault—or (2) a special verdict form permitting the
jury to decide which “conduct that constitutes a crime” it believed
Paule intended to obstruct—murder, reckless endangerment, or
assault.
¶85 Paule made this argument—which he characterized as being
“separate and distinct” from his unanimity argument—to the court of
appeals. He argued that because the elements instruction for the
obstruction charge did not direct the jurors “to inform the court which
conduct that constitutes a criminal offense they determined . . . Paule
acted to obstruct” the investigation into, his counsel was ineffective in
not objecting to the deficiency. The court of appeals rejected this
argument in a footnote, describing two grounds on which its decision
was based. First, “to the extent that Paule’s argument intend[ed] to
incorporate” his statutory interpretation argument, the court rejected
his ineffective assistance of counsel claim for the same reasons it
rejected the statutory interpretation claim. 117 Second and

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116 Ray, 2020 UT 12, ¶ 43 (quoting Strickland, 466 U.S. at 689).

117 Paule, 2021 UT App 120, ¶ 36 n.3.

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alternatively, the court determined the argument failed because Paule
was not prejudiced by his counsel’s alleged deficient performance. 118
¶86 Although the court of appeals ruled on this claim, Paule’s
petition for writ of certiorari did not include a challenge to that ruling.
In his petition, Paule sought review of two issues: (1) whether the
court of appeals erred in its interpretation of the obstruction of justice
statute or in the application of the legally impossible verdict doctrine,
and (2) whether the court of appeals erred in concluding that a jury is
adequately instructed about the unanimity requirement as long as the
prosecutor’s opening or closing arguments identify a theory
supporting its case. And after reviewing Paule’s petition, we granted
certiorari on two related but narrower issues: (1) whether the court of
appeals erred in concluding Paule’s conviction for obstruction of
justice was not legally inconsistent with his acquittal on other charges,
and (2) whether the court of appeals erred in concluding Paule could
not demonstrate that his counsel was ineffective in failing to seek a
more detailed unanimity instruction.
¶87 On certiorari review, we consider “[o]nly the questions set
forth in the petition or fairly included therein.” 119 Because our review
is circumscribed in this way, 120 we are generally “disinclined to
review” an issue not raised in a petition for writ of certiorari. 121 Here,
Paule did not include in his petition a challenge to the court of
appeals’ ruling that his counsel was not ineffective in failing to seek a
clarifying instruction or a special verdict form with respect to the
elements instruction for the obstruction charge. And we cannot say
that the question is fairly included in his petition. Accordingly, we
decline to consider the merits of the parties’ arguments on the
question.
Conclusion
¶88 Under the obstruction of justice statute and our caselaw,
Paule’s conviction was legally consistent. Obstruction of justice does
not require the State to prove a separate crime. It is legally possible for
a jury to convict a defendant of obstruction of justice and acquit the
defendant on all other charged crimes.

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118 Id.

119 UTAH R. APP. P. 49(a)(4).

120 See Coulter & Smith, Ltd. v. Russell, 966 P.2d 852, 856 (Utah 1998).

121 State v. Shipp, 2005 UT 35, ¶ 18, 116 P.3d 317.

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¶89 Paule has not shown that his counsel was ineffective. His
counsel acted reasonably by not requesting a more specific unanimity
instruction because the decision could have been intended to further
a reasonable strategy and was supported by controlling caselaw. We
do not address the merits of Paule’s additional ineffective assistance
of counsel claim, as it is beyond the scope of our certiorari review.
¶90 We affirm.

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