State v. Paule

2021 UT App 120

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ELBERT JOHN PAULE,
Appellant.

Opinion
No. 20200555-CA
Filed November 12, 2021

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

Douglas J. Thompson and Margaret P. Lindsay,
Attorneys for Appellant
Sean D. Reyes and Nathan Jack,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 Elbert John Paule shot and killed his friend (Friend), and
police later discovered the weapon used in the shooting—a
shotgun—lying in the grass below the balcony of Paule’s
apartment. Paule was charged with, among other things, murder
(for shooting Friend) and obstruction of justice (for allegedly
throwing the shotgun off the balcony). After a nine-day trial, a
jury credited Paule’s account that he shot Friend in self-defense
and acquitted him of murder, but nevertheless convicted him of
obstruction of justice. Paule now appeals that conviction,
asserting that the trial court erred by denying his motion to
arrest judgment and that his trial attorneys rendered ineffective
assistance. We affirm.
 State v. Paule

BACKGROUND 1

¶2 Paule and Friend became acquainted a month or two
prior to the shooting. While the depth of their friendship was not
entirely clear from trial testimony, witnesses testified that Paule
and Friend often spent time together hanging out, eating dinner,
and playing video games, and that Paule had stayed the night at
Friend’s residence several times. However, in the days leading
up to the shooting, their relationship began to deteriorate, and
the two of them exchanged heated words, largely through
digital messages. At one point, Paule suggested that the two of
them settle their dispute with a fight; Friend, for his part, told
Paule that he was going to come over to Paule’s apartment so the
two could “fight it out,” that it was not “going to end good for
[Paule],” and that he was going to “take [Paule] out.” Paule later
testified that he took these threats seriously and was concerned
for his safety.

¶3 On the day of the shooting, Friend—with his fiancée
(Fiancée) and infant child in tow—went over to Paule’s
apartment, ostensibly to “squash the beef” between himself and
Paule. Accompanied by Fiancée and their infant, Friend climbed
the three flights of stairs to Paule’s apartment and knocked on
the door. Paule was home at the time and, fearing it was Friend
at the door, went into his bedroom to retrieve his shotgun.
Accounts differ as to whether Friend or Paule opened the door
first, and as to whether Friend had a knife in his hand, but one
thing is certain: as soon as Paule realized that Friend was
standing in his doorway, and before any meaningful dialogue

1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (quotation simplified).

20200555-CA 2 2021 UT App 120
 State v. Paule

occurred, Paule pulled the shotgun’s trigger and fatally shot
Friend.

¶4 After the shooting, Paule fled the scene, allegedly
assaulting Fiancée in his attempt to escape the apartment.
Somehow, the shotgun made its way down onto the grass below
the balcony of Paule’s apartment, and Paule’s phone was lost—
and never found—during his departure from the apartment
complex. Paule then traveled to California, where he eventually
turned himself in to the local authorities and was extradited back
to Utah. The officer who booked Paule into jail in California
asked Paule if he knew why he was being taken into custody,
and Paule responded: “I’m here for murder” and “I used a
shotgun.”

¶5 After investigation, the State charged Paule with four
crimes: (1) murder, a first-degree felony; (2) obstruction of
justice, a second-degree felony; (3) reckless endangerment, a
class A misdemeanor; and (4) assault, a class B misdemeanor.
The case eventually proceeded to a jury trial, which lasted nine
days. During his opening statement at trial, the prosecutor
explained to the jury that the murder charge was “for shooting
and killing” Friend; the obstruction of justice charge was for
throwing the shotgun “off the balcony in order to hinder, delay,
or prevent the investigation”; the reckless endangerment charge
was for endangering Fiancée and the infant by “just randomly
fir[ing]” a shotgun in their vicinity; and the assault charge was
for “punch[ing]” and “push[ing]” past Fiancée after the
shooting.

¶6 At trial, the State presented testimony from many
witnesses, including Fiancée—who testified about what she saw
at the time of the shooting—and several law enforcement
officers. One of the officers testified that, while searching the
apartment’s balcony, he could see a “long rifle” or “shotgun” in
the grass “almost directly below the balcony.” Another officer

20200555-CA 3 2021 UT App 120
 State v. Paule

testified that he retrieved that gun—which he determined to be a
shotgun—from the grass below the balcony, and he stated that
the position in which the gun was found was consistent with it
having been thrown to the ground. That same officer also
testified that a live round was found in the chamber of the
shotgun, and that the round inside the gun was “the same
brand” as the spent shell casing discovered inside the apartment.
And yet another officer testified that the only prints recovered
from the shotgun were Paule’s finger and palm prints.

¶7 At the close of the State’s case, Paule moved for a directed
verdict as to the obstruction of justice count. In support of that
motion, Paule made one argument: that the State had presented
insufficient evidence indicating that it had been Paule—as
opposed to someone else—who had thrown the shotgun off the
balcony. During argument on the motion, which took place
outside the jury’s presence, all participants (including the court)
appeared to assume that the obstruction of justice count
concerned only the allegation that Paule had attempted to
dispose of the shotgun; indeed, inherent in Paule’s request—
which asked the court to order an acquittal on the obstruction
count—was the notion that the only thing Paule had been
accused of doing that could constitute obstruction of justice was
throwing the gun off the balcony. The State opposed the motion
on the sole ground that there existed “sufficient circumstantial
evidence” that Paule had been the person who threw the gun off
the balcony. That is, the State did not assert any other factual
bases on which the jury could convict Paule of obstruction of
justice. The court denied the motion, concluding that, based on
the circumstantial evidence, “the jury could make a
determination” that Paule had been the one who threw the gun
off the balcony.

¶8 Paule testified in his own defense, and gave a much
different account of the shooting than Fiancée, claiming that he
shot Friend in self-defense. He also testified that he did not do

20200555-CA 4 2021 UT App 120
 State v. Paule

anything with the shotgun after the shooting, and instead
claimed that one of his roommates took the shotgun from his
hands and “ran out to the balcony.”

¶9 After Paule rested his case, the trial court instructed the
jury. The instruction for the obstruction of justice charge stated
that the jury could not convict Paule unless it was able to find,
beyond a reasonable doubt, that Paule had “conceal[ed] or
remove[d] any item or other thing” with the “intent to hinder,
delay, or prevent the investigation . . . of any person regarding
conduct that constitutes a criminal offense.” The court also
instructed the jury that, “[i]n all criminal cases, including this
case, the unanimous agreement of all jurors is required before a
verdict can be reached.” No further instruction regarding jury
unanimity was given.

¶10 During closing argument, the prosecutor discussed the
obstruction of justice charge and—as he had during his opening
statement—made clear to the jury that this charge was for “when
[Paule] threw the gun over the balcony.” He pointed out that
“only [Paule’s] prints [were] on that” gun, and urged the jury to
convict Paule on the obstruction charge because the evidence
indicated that Paule had been the one who threw the gun off the
balcony. At no point did the prosecutor identify any other act as
being the basis for the obstruction of justice charge, nor did he
ask the jury to convict Paule on that count for any other act.

¶11 At certain points in his closing argument, the prosecutor
mentioned that Paule had “got rid of” his phone while fleeing
the scene and that Paule had traveled to California immediately
thereafter. But these comments were made much earlier in the
argument than the prosecutor’s discussion of the obstruction
charge, and were made in the context of discussing Paule’s guilt
on the murder charge. The prosecutor prefaced the discussion by
saying, “[n]ow, as to Paule’s guilt” on the murder charge, and
argued that a person who was truly scared of Friend and who

20200555-CA 5 2021 UT App 120
 State v. Paule

had acted in self-defense would not have “got rid of his phone”
and “fled to” California.

¶12 The jury ultimately acquitted Paule of murder, reckless
endangerment, and assault, but convicted him of obstruction of
justice. Paule subsequently filed a motion to arrest judgment,
arguing that the jury’s verdict was legally inconsistent because
“the jury found [Paule] was legally justified” in shooting Friend
and that there had been “no crime for [Paule] to obstruct.” Paule
therefore asked the court to either enter an acquittal on the
obstruction of justice charge or, in the alternative, to reduce
Paule’s conviction from a second-degree felony to a class A
misdemeanor. In its written opposition to Paule’s motion, the
State continued to take the position that the obstruction of justice
count had been about Paule throwing the shotgun off the
balcony. But at oral argument on the motion, the State for the
first time asserted that there might have been other factual bases
upon which the jury might have convicted Paule of obstruction
of justice, including disposing of his phone and fleeing to
California. After argument, the trial court denied Paule’s motion.

¶13 A few weeks later, at Paule’s sentencing hearing, the State
asked the court to deviate from the sentencing guidelines—
which indicated that probation would be appropriate—and
sentence Paule to prison. As part of its argument, the State
represented that it had spoken “with the jurors” and that they
had “mentioned” three things Paule did that they thought might
have constituted obstruction of justice: throwing the shotgun off
the balcony; disposing of the cell phone; and “absconding to
California.” The State discussed all three of those things in its
argument, and urged the court to deviate from the guidelines
because, among other reasons, Paule had taken “deliberate and
intentional steps to obstruct not only the investigation, but to
obstruct the entire prosecution.” Paule’s attorney objected to the
State’s discussion of anything that jurors might have told the
State after trial, and asked the court to strike those statements;

20200555-CA 6 2021 UT App 120
 State v. Paule

the court granted that request. Nevertheless, at the conclusion of
the sentencing hearing the court sentenced Paule to prison,
consistent with the State’s request.

ISSUES AND STANDARDS OF REVIEW

¶14 Paule appeals his obstruction of justice conviction, and
asks us to consider two issues. First, he asserts that the trial court
erred when it denied his motion to arrest judgment; among other
things, he argues that his conviction for obstruction of justice is
legally inconsistent with his acquittal on the other charges. “We
review a trial court’s ruling on a motion to arrest judgment for
correctness.” State v. Hand, 2016 UT App 26, ¶ 10, 367 P.3d 1052;
see also Pleasant Grove City v. Terry, 2020 UT 69, ¶ 11, 478 P.3d
1026 (noting that “legally impossible verdicts involve a question
of law” and that such questions are reviewed “for correctness”).

¶15 Second, Paule asserts that his trial attorneys rendered
ineffective assistance by failing to object to allegedly incomplete
jury instructions. “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 must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Beckering, 2015 UT App 53, ¶ 18, 346
P.3d 672 (quotation simplified).

ANALYSIS

I

¶16 Paule challenges the trial court’s denial of his motion to
arrest judgment and, in support of that challenge, makes two
independent arguments. First, he takes issue with the conviction
as a whole, asserting that the guilty verdict on the obstruction of
justice charge is legally inconsistent with his acquittal on the

20200555-CA 7 2021 UT App 120
 State v. Paule

other charges and should therefore be vacated. Second, he takes
issue with the level of conviction, arguing in the alternative that
even if the verdict is not legally inconsistent, there is insufficient
evidence to support a felony conviction, and asks that the
conviction be instead entered as a misdemeanor. We address
each of Paule’s arguments, in turn, and reject them because they
are grounded in a misinterpretation of the obstruction of justice
statute.

A

¶17 Paule’s first argument—for complete vacatur of his
conviction—is that the jury’s verdict was legally inconsistent. As
Paule sees it, his conviction for obstruction of justice is
inherently inconsistent with his acquittals on the remaining
counts, because the acquittals mean that there was no
underlying criminal conduct to obstruct. We first discuss the
obstruction of justice statute, including material amendments
made in 2001, and then address the merits of Paule’s argument.

1

¶18 Prior to 2001, a person could be found guilty of
obstruction of justice under Utah law if that person “conceal[ed],
destroy[ed], or alter[ed] any physical evidence that might aid in
the discovery, apprehension, or conviction of [an] offender,” and
did so “with intent to hinder, prevent, or delay the discovery,
apprehension, prosecution, conviction, or punishment of another
for the commission of a crime.” Utah Code Ann. § 76-8-306(1)(f)
(Lexis Supp. 2000) (emphasis added).

¶19 In 2001, our legislature materially amended the
obstruction of justice statute. Among other changes, the
legislature added “investigation” to the list of things that an
actor cannot hinder, delay, or prevent without potentially
committing obstruction of justice. See Act of Apr. 30, 2001, ch.
307, § 2, 2001 Utah Laws 1385, 1385. And, notably for present

20200555-CA 8 2021 UT App 120
 State v. Paule

purposes, the legislature deleted “for the commission of a crime”
and replaced that text with “regarding conduct that constitutes a
criminal offense,” and then included a statutory definition of the
phrase “conduct that constitutes a criminal offense.” Compare
Utah Code Ann. § 76-8-306(1), with Act of Apr. 30, 2001, at 1385–
86. According to that definition, “‘conduct that constitutes a
criminal offense’ means conduct that would be punishable as a
crime and is separate from a violation of this section, and
includes . . . any violation of a criminal statute or ordinance of
this state.” Act of Apr. 30, 2001, at 1386 (emphasis added).

¶20 Thus, under current Utah law, as relevant here, “[a]n
actor commits obstruction of justice if the actor” does any one
of ten enumerated acts with the “intent to hinder, delay, or
prevent the investigation . . . of any person regarding . . . conduct
that would be punishable as a crime.” See Utah Code Ann. § 76-8-
306(1), (2)(a) (LexisNexis Supp. 2021) (emphasis added). 2 In
our view, the 2001 amendments broadened the scope of the
statute. The inclusion of the word “investigation” bespeaks a
legislative intent to criminalize interference with law
enforcement criminal investigations, and not just the
apprehension, prosecution, conviction, or punishment of persons
who commit crimes. And the replacement of the phrase
“commission of a crime” with the phrase “conduct that
constitutes a criminal offense,” along with the inclusion of the
statutory definition of that phrase—especially that definition’s
use of the conditional verb construction “would be”—indicates
legislative intent that obstruction of justice can be present even if
the underlying conduct is never ultimately found to constitute a
crime. Indeed, we have previously so held. See State v. Hamilton,

2. Because the current iteration of the statute is not materially
different, for purposes of this case, from the version of the
statute in effect at the time of the shooting, we cite the current
statute for convenience.

20200555-CA 9 2021 UT App 120
 State v. Paule

2020 UT App 11, ¶ 15, 457 P.3d 447 (stating that “the obstruction
of justice statute does not require a conviction of the underlying
crime”).

¶21 In this case, the enumerated act Paule was accused of
committing was “alter[ing], destroy[ing], conceal[ing], or
remov[ing] any item or other thing.” See Utah Code Ann. § 76-8-
306(1)(c). Thus, to obtain a conviction, the State needed to prove,
beyond a reasonable doubt, that Paule (1) concealed or removed
the shotgun (2) with the intent to hinder, delay, or prevent an
investigation (3) into “conduct that would be punishable as a
crime.” See id. § 76-8-306(1)(c), (2)(a) (emphasis added).

2

¶22 Citing Pleasant Grove City v. Terry, 2020 UT 69, 478 P.3d
1026, Paule asserts that the verdict in this case is “legally
impossible.” In Paule’s view, it is impossible to reconcile the
jury’s conviction for obstruction of justice with the jury’s
acquittal on all other counts. As Paule sees it, the jury’s verdict
means that no underlying crime was ever committed, and that
therefore no criminal conduct ever occurred whose investigation
he could have been guilty of obstructing. We reject Paule’s
argument because Terry does not apply here, and because Paule
misinterprets the obstruction of justice statute.

¶23 In Terry, our supreme court determined that a defendant
who was “acquitted on [a] predicate offense but convicted on [a]
compound offense” was subject to a “legally impossible” verdict
and, in that situation, the defendant’s conviction on the
compound offense had to be vacated. Id. ¶¶ 54, 56. The court
distinguished between “legally impossible” verdicts and
“factually inconsistent” verdicts, and held that the former
“cannot stand” while the latter are sometimes permissible. Id.
¶¶ 38, 56. The court defined “legally impossible” verdicts as
those “that are inconsistent as a matter of law because it is
impossible to reconcile the different determinations that the jury

20200555-CA 10 2021 UT App 120
 State v. Paule

would have had [to] make to render them.” Id. ¶ 13 (quotation
simplified). The court also noted that its decision was “narrow”
and “limited” to situations “in which a defendant is acquitted on
the predicate offense but convicted on the compound offense.”
Id. ¶ 54.

¶24 Terry simply does not apply here. Neither murder nor
any of the other charges on which Paule was acquitted is a
predicate offense for an obstruction of justice conviction. See
Utah Code Ann. § 76-8-306(1). A person can legally be convicted
of obstruction of justice without also being convicted of
murder, reckless endangerment, or assault. Indeed, as noted, a
person can legally be convicted of obstruction of justice even in
the absence of any conviction on any underlying crime. See
Hamilton, 2020 UT App 11, ¶ 15. The verdict the jury rendered
here is simply not a “legally impossible” verdict as defined in
Terry.

¶25 Moreover, Paule’s argument is founded on an incorrect
interpretation of the obstruction of justice statute. As Paule sees
it, the statute requires the presence of underlying “conduct that
constitutes a criminal offense,” see Utah Code Ann. § 76-8-306(1),
and he contends that there was no such conduct here because the
jury acquitted him of all underlying charges. But Paule
overlooks the included statutory definition of the phrase
“conduct that constitutes a criminal offense.” As noted, our
legislature defined that phrase as “conduct that would be
punishable as a crime.” See id. § 76-8-306(2)(a) (emphasis added).
In particular, Paule overlooks the legislature’s use of the
conditional verb form “would be” in the statutory definition.
“When we interpret statutes, our primary objective is to
ascertain the intent of the legislature,” and that intent is
sometimes expressed through verb tense or verb form. See Scott
v. Scott, 2017 UT 66, ¶ 22, 423 P.3d 1275 (quotation simplified);
see also id. ¶ 24 (“A statutory reading that credits a verb’s tense is
not uncommon.”). Because “the best evidence of the legislature’s

20200555-CA 11 2021 UT App 120
 State v. Paule

intent is the plain language of the statute itself, we look first to
the plain language of the statute.” Id. ¶ 22 (quotation simplified).
“In so doing, we presume that the legislature used each word
advisedly,” including verb tense and verb form. Id. ¶¶ 22, 24
(quotation simplified). In our view, the legislature’s choice to use
a conditional verb form (“would be”) in the obstruction statute
indicates that the underlying conduct need not necessarily result
in a criminal conviction.

¶26 Indeed, the legislature added the word “investigation” to
the statute in 2001, along with the amendment that defined
“conduct that constitutes a criminal offense.” See Act of Apr. 30,
2001, ch. 307, § 2, 2001 Utah Laws 1385, 1385–86. Since 2001, it
has been a crime to interfere with an “investigation” of any
person regarding “conduct that would be punishable as a
crime.” See Utah Code Ann. § 76-8-306(1), (2)(a). Thus, in cases
like this one where the allegation is that the actor hindered a law
enforcement investigation, 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. If the
conduct under investigation at the time of the alleged
obstruction “would be punishable as a crime,” then that conduct
qualifies as “conduct that constitutes a criminal offense,” as that
phrase is statutorily defined. See id.

¶27 And all of this remains true, under the statutory language,
even if it is later determined—whether by law enforcement
officers or prosecutors who decide not to file charges, or by a
jury who acquits—that no underlying criminal activity occurred.
See Hamilton, 2020 UT App 11, ¶ 15 (stating that “the obstruction
of justice statute does not require a conviction of the underlying
crime—it simply requires a finding that the defendant took
certain actions with the intent to hinder, delay, or prevent the
investigation . . . of any person regarding conduct that
constitutes a criminal offense” (quotation simplified)). Paule’s

20200555-CA 12 2021 UT App 120
 State v. Paule

argument—that the jury’s acquittal on the underlying counts is
inconsistent with his conviction for obstruction—founders
principally because the conduct ultimately found to have
occurred by the jury on the underlying charges is, in this case,
not particularly relevant to the obstruction count. Instead, the
conduct that matters 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.

¶28 Paule’s contrary interpretation of the statute is not only
incompatible with the statutory text, but could also lead to
seemingly absurd results and could incentivize individuals to
commit even more obstruction. Imagine a situation in which a
driver is involved in an auto-pedestrian accident with a fatality,
but the driver observed all traffic laws and did not act even
negligently, let alone intentionally. The driver panics, however,
upon seeing that the pedestrian died and—before police arrive,
and out of a concern that police might think a homicide was
committed—takes the body and hides it in a nearby ditch. Police
investigate the incident, based on the evidence found at the
crash site, as a potential homicide, and while conducting that
investigation they discover the body and learn that the driver
attempted to conceal it. Later, however, police conclude that the
crash was completely accidental and that no provable criminal
conduct occurred in connection with it, and no underlying
criminal charges are ever filed. Under Paule’s interpretation of
the statute, the driver could never be charged with obstruction of
justice for hiding the body, because there was no underlying
conduct that constituted a criminal offense. But Paule’s
interpretation is incorrect: in this situation, the driver can still be
charged with obstruction of justice, even though there is no
underlying criminal conduct, because at the time of the
obstruction the police were investigating a potential homicide,
and the driver hid the body with the intent to hinder or delay
that investigation. The possible homicide being investigated is

20200555-CA 13 2021 UT App 120
 State v. Paule

“conduct that would be punishable as a crime” if the facts end
up turning out the way police investigators suspect, and
therefore that conduct, under the applicable statutory definition,
is “conduct that constitutes a criminal offense,” even though
such conduct may never actually be proved or even prosecuted.
See Utah Code Ann. § 76-8-306(1), (2)(a).

¶29 In addition, Paule’s interpretation of the obstruction
statute would incentivize individuals interested in obstructing
justice to go all out in such efforts, because if they hinder the
investigation well enough to prevent any convictions on the
underlying charges, they will be immune from conviction for
obstruction of justice as well. Such a result is not only
incompatible with the text of the statute, but it is a result that is
unlikely to have been intended by legislative drafters.

¶30 Thus, the jury’s ultimate conclusion that Paule acted in
self-defense in shooting Friend does not insulate him from
charges that he obstructed justice by impeding the investigation
into the underlying incident. At the time Paule threw the
shotgun off the balcony, police were investigating (or were about
to start investigating) potential criminal conduct associated with
the shooting death of Friend. Put in terms of the statutory text,
that investigation was “regarding conduct . . . that would be
punishable as a crime” if the facts had developed as suspected.
See id. The jury’s later acquittal of Paule on the underlying
charges does not mean that the State failed to prove any of the
elements of obstruction of justice. In appropriate cases, when
supported by the facts, a defendant who is acquitted on the
underlying charges may still—without any inconsistency in the
verdict—be convicted of obstruction of justice.

¶31 Accordingly, we conclude that the jury’s verdict in this
case was not legally impossible, as that term is discussed in
Terry, and that the trial court correctly rejected Paule’s argument
to the contrary in denying his motion to arrest judgment.

20200555-CA 14 2021 UT App 120
 State v. Paule

B

¶32 Second, and in the alternative, Paule takes issue with the
level of his conviction, and asserts that the trial court erred when
it refused to reduce his obstruction of justice conviction from a
second-degree felony to a class A misdemeanor. At trial, during
proceedings in connection with the motion to arrest judgment, as
well as here on appeal, Paule couches these arguments in terms
of insufficiency of the evidence—that is, he asserts that the
evidence presented at trial was insufficient to support a
conviction as a second-degree felony, as opposed to a
misdemeanor. In assessing a sufficiency of the evidence
challenge, we will reverse only where “the evidence is
sufficiently inconclusive or inherently improbable such that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime for which he or she was
convicted.” State v. Jok, 2021 UT 35, ¶ 17, 493 P.3d 665 (quotation
simplified). That standard is not met here, and on that basis we
reject Paule’s argument.

¶33 Under Utah law, obstruction of justice can constitute
either a second-degree felony, a third-degree felony, or a class A
misdemeanor, depending on the severity of the “conduct that
constitutes an offense.” See Utah Code Ann. § 76-8-306(3).
Obstruction of justice is a second-degree felony “if the conduct
which constitutes an offense would be a . . . first degree felony,”
but it is a class A misdemeanor if, among other reasons, the
underlying offense is a misdemeanor. See id. The State charged
Paule with second-degree-felony obstruction of justice, asserting
that the investigation he obstructed was about whether Paule (or
someone else) had committed first-degree murder.

¶34 Paule contends that, because he was ultimately charged
with three different underlying counts—one first-degree murder
charge and two misdemeanor charges—“it is impossible to
know whether the underlying offense” found by the jury “was

20200555-CA 15 2021 UT App 120
 State v. Paule

murder, endangerment, assault, or some other offense.” Paule
thus asserts that the evidence is insufficient to support a second-
degree-felony conviction in this case.

¶35 But there was copious evidence in the record to support a
determination that the investigation at issue here was principally
an investigation of a potential first-degree felony. In this case,
police were clearly investigating Friend’s death as a possible
murder. Just two days after the shooting, police charged Paule
with first-degree murder; indeed, in the initial information filed
in this case, that was the only charge the State brought against
him. And on that very same day, when Paule turned himself in
to officers in California, he told them—in response to their query
as to what he was being held for—that he was “here for
murder.”

¶36 We therefore have no trouble concluding that sufficient
evidence existed to support a determination that the underlying
investigation concerned conduct that would be punishable as a
first-degree felony. Accordingly, the trial court did not err in
denying Paule’s motion to arrest judgment. 3

3. In a related argument, Paule asserts that his trial attorneys
rendered ineffective assistance by failing to request an additional
instruction that might have further defined the phrase “conduct
that constitutes a criminal offense,” and for failing to request
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.” Paule devotes less
than one page to this argument; to the extent Paule’s argument
here intends to incorporate by reference his earlier contentions
regarding his interpretation of the obstruction of justice statute,
we reject that argument for the same reasons already articulated.
(continued…)

20200555-CA 16 2021 UT App 120
 State v. Paule

II

¶37 Next, Paule asserts that his trial attorneys rendered
constitutionally ineffective assistance by failing to object to the
absence of a specific instruction regarding jury unanimity. In
particular, Paule asserts that certain evidence at trial supported
three different factual bases on which the jury might have found
that he had obstructed justice—throwing the gun off the
balcony, disposing of his phone, and fleeing to California—but
notes that he was charged with only one count of obstruction,
and he correctly observes that the jury was not instructed that
any guilty verdict needed to be unanimous with regard to which
factual episode formed the basis for the conviction. Paule faults
his attorneys for not asking for a specific instruction in this
regard, and asserts that the outcome of the case would have been
different if they had. We find Paule’s argument unpersuasive
because the State offered the jury only one potential basis upon
which to ground a conviction for obstruction of justice.

¶38 To establish that his attorneys rendered constitutionally
ineffective assistance, Paule must show both (1) that his
attorneys’ performance was deficient, in that it “fell below an
objective standard of reasonableness,” and (2) that this deficient

(…continued)
But even assuming, without deciding, that Paule’s trial attorneys
performed deficiently in failing to request these items, Paule
does not carry his burden of persuading us that there exists a
reasonable likelihood of a different result if they had, especially
in light of other evidence in the record, including Paule’s own
admission (to the California officer) that he knew he was “here
for murder.” See State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350
(“The burden is on the defendant to demonstrate a reasonable
probability that the outcome of his or her case would have been
different absent counsel’s error.”).

20200555-CA 17 2021 UT App 120
 State v. Paule

performance “prejudiced the defense” such that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of
this test in order to successfully establish ineffective assistance.”
State v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150. Thus, “it
is unnecessary for a court to address both components of the
inquiry if we determine that a defendant has made an
insufficient showing on one.” Id. (quotation simplified).

¶39 The first part of the test requires Paule to show that his
attorneys’ performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified).
In evaluating the reasonableness of trial counsel, courts will
often look to whether counsel acted strategically by taking the
disputed action. See id. ¶ 35 (“[T]he performance inquiry will
often include an analysis of whether there could have been a
sound strategic reason for counsel’s actions.”). “If it appears
counsel’s actions could have been intended to further a
reasonable strategy, a defendant has necessarily failed to show
unreasonable performance.” Ray, 2020 UT 12, ¶ 34.

¶40 Paule’s claim of ineffective assistance raises the issue of a
non-unanimous jury verdict on the obstruction of justice charge.
Specifically, Paule asserts that some (but not all) members of the
jury could have believed that he obstructed justice by throwing
the shotgun off the balcony, some (but not all) members of the
jury could have believed that he obstructed justice by disposing
of his phone, and still other (but not all) members of the jury
could have believed that he obstructed justice by fleeing to
California; in that event, Paule could have been convicted of
obstruction of justice even though not all jurors would have
agreed that he committed any particular act of obstruction.
Because the jurors were not instructed that they had to agree on

20200555-CA 18 2021 UT App 120
 State v. Paule

the act underlying the obstruction charge, Paule contends that
the instructions were not legally correct and that his trial
attorneys were ineffective for not objecting to them.

¶41 Paule correctly understands Utah’s jury unanimity
jurisprudence. Our state constitution provides that “[i]n criminal
cases the verdict shall be unanimous.” Utah Const. art. I, § 10.
“At its most basic level, this provision requires the full
concurrence of all empaneled jurors on their judgment as to the
criminal charges submitted for their consideration.” State v.
Hummel, 2017 UT 19, ¶ 25, 393 P.3d 314. Additionally, it is “well-
established” that our constitutional unanimity requirement “‘is
not met if a jury unanimously finds only that a defendant is
guilty of a crime.’” See id. ¶¶ 26, 30 (emphasis omitted) (quoting
State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951). Our
constitution “requires unanimity as to each count of each distinct
crime charged by the prosecution and submitted to the jury for
decision.” Id. ¶ 26 (emphasis omitted). Indeed, “a generic ‘guilty’
verdict that does not differentiate among various charges would
fall short,” as would “a verdict of ‘guilty of some crime.’” Id.
¶¶ 26–27. 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, even
though all jurors found him guilty of the elements
of the crime of robbery.”

Id. ¶ 28 (quoting Saunders, 1999 UT 59, ¶ 60). “These are distinct
counts or separate instances of the crime of robbery, which
would have to be charged as such.” Id.

¶42 In State v. Alires, 2019 UT App 206, 455 P.3d 636, we held
that a jury verdict violated constitutional unanimity principles
where a defendant was charged with “six identically-worded

20200555-CA 19 2021 UT App 120
 State v. Paule

counts” of sexual abuse, the counts were not distinguished by
act or alleged victim, the victims described more than six acts
that could have qualified as abuse, and the jury convicted the
defendant on only two counts. See id. ¶¶ 22–23. This situation
was problematic because “the jurors could have completely
disagreed on which acts occurred or which acts were illegal.” Id.
¶ 23. And even more recently, in State v. Mendoza, 2021 UT App
79, we applied these principles to the obstruction of justice
statute, and concluded that “the obstruction of justice statute’s
various ways to perform the actus reus of the crime constitute
alternative elements, the commission of any one of which could
satisfy that statutory element, but which also require the jury to
agree that the same underlying criminal act has been proved
beyond a reasonable doubt.” See id. ¶ 13 (quotation simplified).
In Mendoza, we held that a trial attorney performed deficiently in
an obstruction of justice case by failing to request a specific jury
unanimity instruction or a special verdict form that would have
required the jury “to specify which statutorily prohibited act [the
defendant] engaged in.” Id. ¶ 16.

¶43 In cases like these, jury unanimity problems can be
mitigated in one of two ways. First, a trial court can give a
specific jury unanimity instruction—over and above the general
unanimity instruction, see Model Utah Jury Instructions 2d
CR216 (2018), https://www.utcourts.gov/resources/muji/inc_list.
asp?action=showRule&id=30#216 [https://perma.cc/TY2Y-DCEA]
—informing the jurors that “all of them must agree that the same
underlying criminal act has been proved beyond a reasonable
doubt.” 4 See State v. Vander Houwen, 177 P.3d 93, 99 (Wash. 2008)

4. While there exists a model Utah jury instruction discussing the
general unanimity requirement, there does not exist a model
instruction regarding specific unanimity as to the underlying
factual circumstance. We urge the Advisory Committee on
(continued…)

20200555-CA 20 2021 UT App 120
 State v. Paule

(en banc) (quotation simplified), quoted with approval in Alires,
2019 UT App 206, ¶ 22. Alternatively, the prosecutor can
specifically identify for the jury—usually in opening statement
or in closing argument—“which act supported each charge.” See
Alires, 2019 UT App 206, ¶ 22; see also State v. Santos-Vega, 321
P.3d 1, 18 (Kan. 2014) (stating that, in order to remedy a jury
unanimity problem, “either the State must have informed the
jury which act to rely upon for each charge . . . or the [trial] court
must have instructed the jury to agree on the specific criminal
act for each charge”), quoted with approval in Alires, 2019 UT App
206, ¶ 22; Mendoza, 2021 UT App 79, ¶¶ 19–20 (noting that, if the
prosecutor had “put[] all his eggs in one basket” and identified
“one particular action” that formed the basis for the obstruction
charge, the court “might be inclined to” reject the defendant’s
ineffective assistance of counsel claim “for lack of prejudice”);
Whytock, 2020 UT App 107, ¶ 31 (observing that the State could
have used the jury instructions or closing arguments to “indicate
to the jury which factual occasion was the one being charged”).

¶44 In this case, Paule correctly notes that he was charged
with only one count of obstruction of justice. He alleges,
however, that the State put on evidence of three distinct
underlying acts that each could have independently formed the
basis for a conviction on that count. Paule therefore contends
that, as in Alires, “the jurors could have completely disagreed on
which acts occurred or which acts were illegal,” and yet could
have nonetheless convicted him of obstruction of justice. See 2019
UT App 206, ¶ 23.

¶45 We disagree with Paule’s characterization of the evidence
and arguments presented at trial. At no point during trial did the

(…continued)
Model Utah Criminal Jury Instructions to consider including
such an instruction in its set of model instructions.

20200555-CA 21 2021 UT App 120
 State v. Paule

prosecutor ever argue that the obstruction count was for any act
other than throwing the shotgun off the balcony. To the contrary,
the State consistently maintained during trial, in representations
made both to the jury and outside its presence, that the
underlying act for which it sought conviction for obstruction
was the act of throwing the shotgun off the balcony. During his
opening statement, the prosecutor informed the jury that the
obstruction count was for “when, after he shot [Friend], [Paule]
took that shotgun, [and] threw it off the balcony in order to
hinder, delay, or prevent the investigation.” During the mid-trial
argument regarding the directed verdict motion, the State again
made clear its view that the act underlying the obstruction count
was only the act of throwing the shotgun off the balcony. And in
his closing argument, the prosecutor reemphasized that the
obstruction charge was for “when [Paule] threw the gun over the
balcony,” and asked for a conviction on that count because “only
[Paule’s] prints are on that” gun and that fact, combined with
other evidence, indicated that Paule had been the one who threw
the gun off the balcony.

¶46 Paule resists this conclusion by directing our attention to
the fact that the jury heard evidence that Paule lost his phone
while leaving the apartment complex and that he fled to
California immediately thereafter, and to comments made by the
prosecutor during closing argument discussing that evidence.
But in our view, Paule misperceives the context in which this
evidence was introduced and discussed. The prosecutor
discussed that evidence during closing only in connection with
his argument on the murder charge, not on the obstruction
charge, and only as a way to discuss Paule’s potential
consciousness of guilt and to argue that Paule did not shoot
Friend out of self-defense; specifically, the prosecutor argued
that a person who was truly scared of Friend and who had acted
in self-defense would not have “got rid of his phone” and “fled
to” California. These comments were not reasonably likely to
have diluted the State’s otherwise-clear position: that it was

20200555-CA 22 2021 UT App 120
 State v. Paule

asking for an obstruction of justice conviction only for the act
related to the shotgun, and not for any acts related to the cell
phone or flight to California. 5

¶47 And any 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. Without commenting on whether those comments were
well-advised, we 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.

5. The trial court struck from the record any statements proffered
by the State that jurors had told prosecutors that they considered
the other acts—related to the phone and flight to California—to
be in play related to the obstruction of justice charge. Not only
have those comments been stricken from the record, and on that
basis alone are not to be considered on appeal, our consideration
of those comments would appear to violate at least two rules of
evidence. See Utah R. Evid. 606(b)(1) (stating that “a juror may
not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental processes
concerning the verdict or indictment”); id. R. 802 (“Hearsay is
not admissible except as provided by law or by these rules.”).
Paule mentions these statements in his reply brief, even though
he acknowledges that they are “inadmissible hearsay” and were
stricken from the record. Those statements should not have been
included in the reply brief, and we therefore grant the State’s
motion to strike all references to those statements; we do not
consider them for any purpose in this opinion.

20200555-CA 23 2021 UT App 120
 State v. Paule

¶48 Therefore, in this case the State properly took advantage
of one of the pathways identified in our case law to obviate any
jury unanimity problem: it clearly identified for the jury which
factual circumstance formed the basis for its obstruction of
justice charge. See Alires, 2019 UT App 206, ¶ 22. And because
the State made this clear to the jury, Paule’s attorneys did not act
unreasonably by electing not to seek further relief at trial. Thus,
Paule cannot demonstrate that his attorneys performed
deficiently, and on this basis we reject Paule’s ineffective
assistance of counsel claim.

CONCLUSION

¶49 The trial court did not err when it denied Paule’s motion
to arrest judgment because the jury verdict was not legally
inconsistent. And Paule has failed to demonstrate that his trial
attorneys rendered constitutionally ineffective assistance.
Accordingly, we affirm Paule’s conviction.

20200555-CA 24 2021 UT App 120