State v. Garcia

2017 UT App 200

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSE AMPARO GARCIA,
Appellant.

Opinion
No. 20150874-CA
Filed November 9, 2017

Second District Court, Ogden Department
The Honorable W. Brent West
No. 141901202

Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

HARRIS, Judge:

¶1 A man (Husband) and his wife (Wife) were attending a
barbecue at their neighbor’s house one night when a fight broke
out. During the altercation, Husband was stabbed thirteen times,
and Wife was groped, assaulted, and threatened. Wife
subsequently called the police and implicated three assailants,
including Defendant Jose Amparo Garcia.

¶2 After trial, Defendant was convicted of attempted
murder, a first degree felony, and misdemeanor assault. He
appeals both convictions, contending that he was denied his
right to the effective assistance of counsel, and that the trial court
improperly failed to conduct an investigation after Defendant
 State v. Garcia

informed the court that he was not satisfied with his counsel. We
disagree, and therefore affirm Defendant’s convictions.

BACKGROUND 1

¶3 On the evening of May 31, 2014, Husband and Wife
attended a barbecue at the residence of their neighbor,
Defendant’s uncle (Neighbor). The three began to socialize, and
Husband and Wife ended up staying for several hours. Later in
the evening, Defendant arrived at the barbecue along with a
friend (Friend). Wife did not know Defendant or Friend.

¶4 At some point not long after Defendant and Friend
arrived, an altercation erupted. Wife testified that, “out of
nowhere,” Friend told Husband that Friend was “going to shank
you to death, mother ‘effer.” Friend got “riled up” with
Husband, and Neighbor led Husband into the backyard, away
from the confrontation with Friend. Wife further testified that, as
Neighbor and Husband talked, Defendant and Friend began
“getting hyped up” and pacing closer to Husband and Neighbor.
When she tried to approach Defendant and Friend and persuade
them to calm down, Friend grabbed her, held her with one arm
so that she could not get away, and groped her. Wife testified
that almost immediately after Friend let go of her, Neighbor
suddenly began punching Husband. At this point, Defendant
and Friend entered the backyard and joined Neighbor in
punching and kicking Husband. Defendant and Friend appeared
to be holding objects and delivering quick, short strikes to
Husband’s body. During the altercation, Husband was stabbed
thirteen times, including twice in the face. As a result of the

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 47, ¶ 2, 10 P.3d 346.

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stabbing, Husband’s lungs were punctured and an artery in one
of his arms was cut.

¶5 Wife also testified that, as the fight was ongoing, she took
her phone out to call the police, but either Defendant or Friend
knocked it out of her hands. As she tried to retrieve her phone,
Friend and Defendant attacked her, shoving her into a fence and
punching her in the face. She testified that Friend then attempted
to leave the scene to get a weed-whacker while proclaiming,
“I’m going to finish [Husband] off. I’m going to kill him.” Wife
then got in Friend’s way and shouted that she was calling the
police. Upon hearing this, Defendant and Friend resumed
assaulting her and stated that they would kill both her and
Husband if she called the police. Soon thereafter, Defendant and
Friend fled, and Wife was able to notify the police.

¶6 Police officers responded to the incident and
apprehended Friend later that night. During a police interview
shortly afterward, Friend admitted to his involvement in the
altercation but claimed that Defendant was solely responsible for
stabbing Husband and that Defendant would confess if
confronted.

¶7 The next day, Defendant was apprehended. During his
subsequent police interview, Defendant confirmed that he was
involved in the altercation with Husband. Specifically, although
he admitted that he had punched and kicked Husband, he
claimed that he had not hit or threatened Wife. He did not
mention the stabbing. When the interviewing officer brought up
the stabbing, Defendant expressed surprise. Defendant also
claimed that Friend had told him that Friend had groped Wife,
but Defendant maintained that he and Friend did not further
assault her. Defendant also informed the interviewing officer
that he had not wanted to implicate Friend because Defendant
was afraid of being “violated” by members of his gang. At trial,
one of the State’s witnesses explained that gang members would
be “violated” if they “snitched” on fellow gang members and

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that being “violated” typically entailed getting “beat up,”
“stabbed,” or suffering other consequences, depending on the
severity of the “violation.” During the interview, Defendant
explained that he had been “violated” by the gang before and
that gang members had put a gun to his loved one’s head.

¶8 Neighbor also testified to his version of events. Neighbor
acknowledged the altercation, but maintained that Husband had
hit him first. He claimed he then lost consciousness almost
immediately and could not remember the majority of the fight,
and that he did not see who stabbed Husband. On cross-
examination, Neighbor also acknowledged that he, Friend, and
Defendant were all gang members and that it would be
considered “snitching” if any of them were to implicate any of
the others.

¶9 The State charged Defendant with attempted murder of
Husband and with assaulting Wife. The State charged an “in
concert” enhancement for both offenses, alleging that Defendant
had committed them in concert with two or more persons, and
charged a “use of a deadly weapon” enhancement for the
attempted murder charge. With those enhancements, the
attempted murder count was charged as a first degree felony,
and the assault count was charged as a class A misdemeanor. See
Utah Code Ann. § 76-5-203(2)(a)–(c) (LexisNexis 2012); id. § 76-4-
10 (2012); id. § 76-5-102(3)(a) (Supp. 2017). Friend was charged
separately for his involvement in the altercation.

¶10 Prior to Defendant’s trial, Friend pled guilty to reduced
charges in his own case. Thereafter, during Defendant’s trial,
Friend testified in contradiction to his earlier police-interview
statements. Friend had initially told officers that Defendant had
been solely responsible for the stabbing. However, at
Defendant’s trial, Friend testified that Defendant had merely
punched and kicked Husband and that Friend was solely
responsible for stabbing Husband.

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 State v. Garcia

¶11 During pretrial proceedings, Defendant was initially
provided a public defender, and that appointed attorney
appeared on Defendant’s behalf at his initial appearance and at
least once thereafter. Early in the proceedings, however,
Defendant retained a different attorney, and upon that attorney’s
appearance, the public defender withdrew. Thereafter, and all
the way through trial, Defendant was represented by his own
retained lawyer.

¶12 At trial, the State relied primarily on the testimonies of
Husband and Wife that Defendant, Neighbor, and Friend had
attacked them without provocation and that Defendant and
Friend had stabbed Husband. The State also introduced
evidence that Defendant, Neighbor, and Friend were current or
former gang members, and that their gang would discourage all
three from “snitching” on each other. A witness for the State
explained that Defendant’s face tattoo—which was not shielded
from the jury’s view—marked his affiliation with a gang, and the
witness expounded upon the notion that a gang member could
be “violated” for snitching. Defense counsel did not object to the
presentation of this gang evidence.

¶13 Instead, defense counsel relied on the testimony from
Neighbor that Husband started the fight, and the new narrative
from Friend—that Defendant never stabbed Husband—to
present a theory of the case that limited Defendant’s culpability.
Defense counsel acknowledged Defendant’s admission, in his
police interview, that he had punched and kicked Husband, but
defense counsel maintained that Defendant did so only to
defend Neighbor from Husband. Further, defense counsel
argued that, in the confusion of the fray, Defendant was not
aware that Friend had stabbed Husband until after the
altercation. Accordingly, defense counsel presented the theory
that Defendant was innocent of attempted murder because,
while he concededly assaulted Husband in defense of Neighbor,
he did not do so while Friend was stabbing Husband and did

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not know about or participate in the stabbing. Defendant did not
testify at trial.

¶14 In closing arguments, the State argued that Neighbor and
Friend were untrustworthy witnesses and maintained that the
only credible version of the altercation was the version that
Husband and Wife presented. The jury apparently agreed,
returning a guilty verdict on both counts, as well as on the two
enhancements to attempted murder. 2

¶15 After his conviction but before his sentencing hearing,
Defendant sent a letter to the court indicating that he was
unhappy with his retained defense counsel and that he wanted
to appeal. The trial court addressed the letter only briefly, by
informing Defendant that his appeal was premature and
instructing him about proper appellate procedure. The court
then sentenced Defendant. Defendant now timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶16 Defendant raises two arguments on appeal. First, he
contends that defense counsel’s performance was so deficient
that he was denied his constitutional right to effective assistance
of counsel. Specifically, Defendant argues that his attorney was
ineffective by (a) conceding that Defendant assaulted Husband,
a concession that Defendant asserts led inexorably to the legal
conclusion that Defendant was guilty of being an accomplice to

2. Although the jury found that Defendant acted “in concert with
two or more persons” in committing attempted murder, the jury
also determined that Defendant had not acted “in concert with
two or more persons” in committing assault. Accordingly,
although the assault was originally charged as a class A
misdemeanor, Defendant was ultimately convicted of class B
misdemeanor assault.

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 State v. Garcia

attempted murder; and (b) failing to object to evidence that
demonstrated that Defendant, Friend, and Neighbor were part of
a gang. “A claim of ineffective assistance of counsel raised for
the first time on appeal presents a question of law that we
review for correctness.” State v. Charles, 2011 UT App 291, ¶ 18,
263 P.3d 469.

¶17 Second, Defendant contends that the trial court erred by
failing to further inquire into Defendant’s post-verdict letter
informing the court that he was dissatisfied with his counsel.
“Whether a trial court should have inquired further into a
defendant’s dissatisfaction with counsel is reviewed for an abuse
of discretion.” State v. Hall, 2013 UT App 4, ¶ 8, 294 P.3d 632.
However, this issue is unpreserved, and Defendant asks us to
review this issue for plain error. Generally, to “establish the
existence of plain error and to obtain appellate relief from an
alleged error that was not properly objected to, the appellant
must show” that an error exists, that the error should have been
obvious to the trial court, and that the trial court’s handling of
the issue prejudiced the defendant. See State v. Dunn, 850 P.2d
1201, 1208–09 (Utah 1993). “If any one of these requirements is
not met, plain error is not established.” Id. at 1209.

ANALYSIS

I

¶18 The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend VI. Under this amendment, the
states must provide counsel “for defendants unable to employ
counsel unless the right is competently and intelligently
waived.” Gideon v. Wainwright, 372 U.S. 335, 340 (1963); see State
v. Von Ferguson, 2007 UT 1, ¶ 14, 169 P.3d 423. Further, even if a
criminal defendant is represented by counsel, that defendant’s

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right to counsel under the Sixth Amendment is violated if his
counsel represents him “so inadequately” as to functionally
deny him the assistance of counsel. See Peyton v. Rowe, 391 U.S.
54, 61 (1968). This principle applies both to attorneys appointed
by the court for indigent defendants and to attorneys who are
privately retained by the defendant. Cuyler v. Sullivan, 446 U.S.
335, 344 (1980).

¶19 To succeed on a claim that his defense counsel was
constitutionally ineffective, Defendant “must show: (1) that
counsel’s performance was objectively deficient, and (2) a
reasonable probability exists that but for the deficient conduct
defendant would have obtained a more favorable outcome at
trial.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To satisfy the
first element of this test, Defendant “must overcome the strong
presumption that [his] trial counsel rendered adequate
assistance by persuading the court that there was no conceivable
tactical basis for counsel’s actions.” Id. (alteration in original)
(citations and quotation marks omitted). Trial counsel is given
“wide latitude in making tactical decisions,” and courts “will not
question such decisions unless there is no reasonable basis
supporting them.” Id. (citation and internal quotation marks
omitted). To satisfy the second element, Defendant must
demonstrate that “’any deficiencies in counsel’s performance
[were] prejudicial to the defense.’” State v. Mohamud, 2017 UT 23,
¶ 14, 395 P.3d 133 (alteration in original) (quoting Strickland v.
Washington, 466 U.S. 668, 692 (1984)).

¶20 In this case, Defendant makes two separate claims that
defense counsel was ineffective, which we discuss in turn. 3

3. Defendant has timely moved for remand, pursuant to Rule
23B of the Utah Rules Appellate Procedure, to supplement the
record with additional information that he asserts could support
his claims for ineffective assistance of counsel. We deny that
motion because we conclude that the facts necessary to pursue
(continued…)

20150874-CA 8 2017 UT App 200
 State v. Garcia

A

¶21 First, Defendant points to counsel’s decision to concede to
the jury that Defendant had assaulted Husband and argues that
the legal import of this concession was effectively to admit
Defendant’s guilt as an accomplice to attempted murder.
Defendant asserts that, in so doing, his attorney “serious[ly]
misapprehend[ed]” the law. We are unpersuaded.

¶22 Defendant admitted during his police interview that he
had punched and kicked Husband. Defense counsel had to
decide what to make of that concession at trial. Several strategies
were available to him. For instance, defense counsel could have
argued that Defendant did not ever punch and kick Husband,

(…continued)
and adjudicate Defendant’s ineffective assistance claims are
already contained within the existing record.
We also deny Defendant’s post-argument motion to
supplement his rule 23B motion. We note initially that the rule
expressly mandates that “[i]n no event shall the court permit a
[rule 23B] motion to be filed after oral argument.” Utah R. App.
P. 23B(a). In addition, even if this motion could be considered
timely, denying the post-argument motion to supplement is
appropriate here because both of the items Defendant brings to
our attention in the post-argument supplementation were issues
that Defendant should have been aware of much earlier. The first
issue involves events cited in an April 2017 newspaper article,
but Defendant offers no persuasive explanation as to why he
could not have brought the matter to our attention prior to the
August 2017 oral argument. The other issue involves
Defendant’s assertion that his defense counsel had a conflict of
interest, but the record reveals that the trial court raised this
precise issue with Defendant at a hearing in June 2014, and
Defendant offers no explanation as to why he did not raise the
issue sooner.

20150874-CA 9 2017 UT App 200
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that Defendant was confused during his first interview, and that
after some weeks of reflection Defendant realized that he had
actually never assaulted Husband. This option, however, would
likely have required Defendant to testify in his own defense.
Alternatively, defense counsel could have asserted that
Defendant did not ever make that admission to the officer
during the interview and that the police officer who claimed
Defendant made that admission was lying. Or, counsel could
have tried to work with Defendant’s admission, conceding to the
jury that Defendant assaulted Husband but arguing that
Defendant was not guilty of attempted murder, even as an
accomplice. None of these alternatives was ideal, and all of them
came with downside risks. Counsel chose the latter option.

¶23 In general, the selection of one among several strategic
options is common and not constitutionally ineffective. See
Strickland v. Washington, 466 U.S. 668, 689 (1984) (stating that
“[t]here are countless ways to provide effective assistance in any
given case” and that “[e]ven the best criminal defense attorneys
would not defend a particular client in the same way”). After all,
an attorney must play the hand he or she is dealt, and an
attorney’s decision about how to deal with adverse facts is the
sort of thing that courts should not second-guess in the context
of ineffective assistance claims. Indeed, this court has previously
placed its stamp of approval on precisely this sort of tactical
choice:

[D]efense tactics, whereby counsel admits guilt on
a lesser charge in the hope that the jury would then
be more receptive to the claim that the defendant
was innocent of the far more serious offense and
acquit him thereof, is a perfectly acceptable
strategy which should not be second guess[ed] by
the courts.

State v. Phillips, 2012 UT App 286, ¶ 17, 288 P.3d 310 (alteration
in original) (citation and internal quotation marks omitted). In

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particular, selecting this strategy when one’s client has already
admitted to police that he committed assault is eminently
rational and thus cannot be ineffective.

¶24 In this case, Defendant nevertheless claims that defense
counsel’s selection of these tactics had the legal effect of
conceding his guilt not only to assault but also to the more
serious charge of accomplice to attempted murder. Specifically,
Defendant argues that defense counsel’s “admission that
[Defendant] helped assault [Husband] while he was being stabbed
was an admission to the entire offense under the accomplice
liability theory.” (Emphasis added.) The flaw in this position,
however, is that counsel did not ever admit, during his
arguments, that Defendant assaulted Husband while Husband
was being stabbed or that Defendant assaulted Husband at any
time after Defendant was aware that Husband had been stabbed.

¶25 For a jury to convict a defendant under a theory of
accomplice liability, the State “must show that an individual
acted with both the intent that the underlying offense be
committed and the intent to aid the principal actor in the
offense.” State v. Briggs, 2008 UT 75, ¶ 13, 197 P.3d 628; see also id.
¶ 14 (stating that “[a]n accomplice must . . . have the intent that
the underlying offense be committed” (emphasis added)).
Briggs’s use of the definite—rather than the indefinite—article is
significant here. A defendant who only has intent to commit a
lesser offense (e.g., assault) cannot be convicted of a more
serious crime (e.g., attempted murder), even as an accomplice.
Id. ¶ 13; see also State v. Calliham, 2002 UT 86, ¶ 64, 55 P.3d 573
(stating that “accomplice liability adheres only when the accused
acts with the mens rea to commit the principal offense”). The
accomplice need not have the same level of intent toward the
more serious crime as the principal actor, Briggs, 2008 UT 75,
¶ 14 (stating that “it is not necessary for the accomplice to have
the same intent that the principal actor possessed”), but in order
to be convicted of the more serious charge, the accomplice must

20150874-CA 11 2017 UT App 200
 State v. Garcia

have at least some level of intent that the more serious crime be
committed.

¶26 These principles are illustrated by two cases cited by
Defendant. In State v. Garcia-Vargas, 2012 UT App 270, 287 P.3d
474, two men entered a house, and at least one of them
demanded money from, and began to assault, the occupants. Id.
¶ 2. The other man claimed that he initially believed they were
in the house with permission and that he had no intention of
committing aggravated robbery. Id. ¶ 17. However, after seeing
his companion commit assault, the other man eventually joined
in and aided in the assault. Id. This court determined that both
men could be convicted of aggravated robbery, stating that
“once [the first man] began hitting [the victim] and ransacking
the house, [the second man] was on notice that [the first man]
was committing robbery, yet he actively participated and aided
[the first man] rather than fleeing or even remaining without
participating.” Id. (footnote omitted).

¶27 Likewise, in State v. Lomu, 2014 UT App 41, 321 P.3d 243,
two men entered a convenience store at 3:30 a.m. Id. ¶ 2. One of
them went to the cooler section and picked up a case of beer, and
the other remained by the door to keep lookout. Id. While the
man holding the beer was speaking with the store clerk, the man
at the door “raised his shirt slightly, moved his hand to his hip,
and informed the clerk he had a gun.” Id. The man holding the
beer reacted to this threat by taking the beer and fleeing together
with the other man. Id. This court determined that both men
could be convicted of aggravated robbery, even though the man
holding the beer did not make the threat, because he assisted the
other man after the threat was made by taking the beer and
fleeing with him. Id. ¶¶ 2, 15.

¶28 In both of these cases, the criminal encounter escalated
and after the escalation—and, more precisely, after the
defendant was aware of the escalation—the defendant elected to
remain involved in the criminal encounter. The defendant’s

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continued involvement in the enterprise after learning of its
severity is what provided evidence of at least some level of mens
rea regarding the more serious offense, and therefore gives rise
to accomplice liability for the more serious offense.

¶29 In this case, in order for Defendant to be convicted of
being an accomplice to attempted murder, it was not sufficient
for Defendant to merely have had an intent that a lesser crime
(e.g. assault) would be committed; rather, Defendant must have
had at least some level of intent—in keeping with applicable
statutes 4—that murder would be attempted, as well as some
intent to aid the principal actor in attempting murder. See Briggs,
2008 UT 75, ¶ 13. Even if Defendant did not actually stab
Husband, he could have been convicted of being an accomplice
to attempted murder if he remained involved in the enterprise
after becoming aware of the stabbing.

¶30 While there was certainly evidence presented at trial to
the effect that Defendant directly participated in the stabbing of
Husband and that Defendant aided Friend in the enterprise after
becoming aware of the stabbing, none of that information came
from defense counsel’s arguments. Rather, defense counsel’s
arguments were carefully couched to state that Defendant had

4. Utah’s accomplice liability statute states that anyone “acting
with the mental state required for the commission of an offense
who directly commits the offense” or who “intentionally aids
another person to engage in conduct” constituting the offense
“shall be criminally liable as a party for such conduct.” Utah
Code Ann. § 76-2-202 (2012). A person may be convicted of
murder by acting either “intentionally or knowingly.” See id.
§ 76-5-203(2)(a) (2012). And a person may be convicted of
attempted crimes, including attempted murder, if that person
“acts with an awareness that his conduct is reasonably certain to
cause that result.” See id. § 76-4-101(1)(b)(ii) (2012).

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punched and kicked Husband before the stabbing began, but that
Defendant did not at any point participate or aid in the stabbing.

¶31 Unfortunately for Defendant, the jury apparently did not
accept defense counsel’s argument. But the argument was not
constitutionally ineffective, and it did not constitute a legal
admission that Defendant was guilty of being an accomplice to
attempted murder. Defense counsel’s argument was an
appropriate strategy for dealing with Defendant’s own previous
admission that he had punched and kicked Husband and was
well within “the wide range of reasonable professional
assistance” that counsel was obligated to provide. See Mohamud,
2017 UT 23, ¶ 14 (citation and internal quotation marks omitted).
There was clearly a “conceivable tactical basis” for defense
counsel’s actions, one that was in accordance with Utah law as
discussed above. Accordingly, defense counsel’s decision to
concede assault was not constitutionally ineffective.

B

¶32 Defendant next argues that his defense counsel was
ineffective in not doing more to prevent the introduction of
evidence regarding Defendant’s, Friend’s, and Neighbor’s gang
affiliations and customs. Some of this evidence was introduced
by the State, without objection from Defendant’s counsel, and
some of this evidence was affirmatively introduced by
Defendant’s counsel. Defendant now argues that defense
counsel’s decision to introduce and/or not object to this evidence
amounted to ineffective assistance.

¶33 This court has previously acknowledged that “there may
be some unfair prejudice inherent in making the jury aware of
gang affiliation” in a criminal context. State v. Milligan, 2010 UT
App 152U, para. 6. Indeed, we have noted that gang evidence
should be viewed “with caution due to the risk that it may carry
some unfair prejudice,” including potentially leading “the jury
to ‘attach a propensity for committing crimes to defendants who

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are affiliated with gangs or [allow its] negative feelings towards
gangs [to] influence its verdict.’” State v. High, 2012 UT App 180,
¶ 26, 282 P.3d 1046 (alteration in original) (internal quotation
marks omitted) (quoting State v. Torrez, 2009-NMSC-029, ¶ 32,
210 P.3d 228). Nevertheless, gang evidence is often admissible:
“[i]n the appropriate context, gang evidence has probative value
warranting its admission” even “over claims of prejudice.” Id.
¶ 27 (citation and internal quotation marks omitted).

¶34 For two reasons, we are not persuaded that Defendant
received ineffective assistance of counsel on issues related to the
admission of gang evidence.

¶35 First, Defendant’s counsel had a conceivable tactical basis
for not objecting to the admission of evidence that Defendant,
Friend, and Neighbor were members of a gang. Several of the
witnesses involved in the case, most notably Friend, had
changed their stories during the course of the case. During his
initial police interview, Friend had stated that Defendant was the
only one who had stabbed Husband, and that he (Friend) had
not done so. Later, however, when he testified at Defendant’s
trial after pleading guilty to reduced charges, he sang a different
tune. In front of the jury, Friend swore that he was solely
responsible for the stabbing and that Defendant had merely
punched and kicked Husband. Therefore, Defendant’s counsel
needed to find ways to emphasize Friend’s trial testimony, while
discrediting the initial tale Friend told to police.

¶36 In addition, Defendant himself, in his initial police
interview, had not fully implicated Friend in the stabbing.
Indeed, Defendant acted surprised to learn that Husband had
been stabbed at all, and he maintained that he had not stabbed
Husband. Defendant’s counsel needed to find ways to explain
why Defendant had not blamed the stabbing on Friend during
his initial account to police.

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 State v. Garcia

¶37 Defense counsel apparently elected to accomplish both of
these objectives by introducing, and by not objecting to, evidence
that Defendant and Friend (as well as Neighbor) were members
of a gang, that gang ethos prohibited “snitching” on other
members of the gang, and that gang members who “snitched”
on other members would be “violated” by other gang members.
In this way, defense counsel could explain why Defendant had
not “snitched” on Friend during his interview and could also
bolster the credibility of Friend’s trial testimony, couching it as a
manner of repentance for his earlier “snitching” during his
police interview.

¶38 Defense counsel’s decision to introduce, and not object to,
evidence that Defendant was a member of a gang is therefore
properly classified as a tactical decision, one that this court will
not second-guess. See Strickland, 466 U.S. at 689 (1984). The
evidence was merely that the three were members of a gang; no
evidence was introduced regarding any specific actions that had
been taken by the three as members of the gang, or by the gang
generally.5 There were certainly valid tactical reasons for defense
counsel to introduce, or to acquiesce to the introduction of,
evidence of this nature. Therefore, counsel’s performance in so
doing was not objectively deficient.

¶39 Second, Defendant has not sufficiently demonstrated that
an objection to the introduction of gang evidence would not
have been futile. “The failure of counsel to make motions that

5. Defendant also maintains that his counsel was ineffective
because he did not cover up Defendant’s gang-related facial
tattoo at trial. We disagree. The tattoo was only briefly
mentioned at trial and, as noted, the gang evidence introduced
was general rather than specific. Defense counsel’s decision not
to cover up the tattoo, or to object to a question about it, was in
line with his tactical decision to use the gang evidence to explain
Defendant’s and Friend’s inconsistent accounts.

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 State v. Garcia

would be futile if raised does not constitute ineffective
assistance,” because “the decision not to pursue a futile motion
is almost always a ‘sound trial strategy.’” State v. Bond, 2015 UT
88, ¶ 75, 361 P.3d 104 (citation omitted); see also State v. Edgar,
2017 UT App 54, ¶ 17, 397 P.3d 656 (concluding that an objection
to the admission of certain evidence would have been futile
where defendant could not show a “reasonable probability” on
appeal that the trial court would have sustained an objection to
the admission of the testimony).

¶40 The gang evidence admitted at trial was limited to the
gang affiliations of Defendant, Friend, and Neighbor and to a
description of the gang’s attitude towards “snitching.” Beyond
the description Defendant gave police about “violation” and the
information that being “violated” by a gang for snitching
entailed being targeted with violence, no description was given
of the gang’s reputation or of any crimes that the gang’s
members may have committed.

¶41 Under rule 404(b)(1) of the Utah Rule of Evidence,
“[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.”
However, “mere evidence of gang affiliation that does not relate
to prior bad acts does not violate rule 404’s prohibition against
character evidence.” State v. Gonzalez, 2015 UT 10, ¶ 39, 345 P.3d
1168. Here, the State presented evidence of various participants’
gang affiliations, as well as a general description of gang culture
as it relates to “snitching” and “violation.” The State did not
relate this evidence to any prior bad acts attributed to
Defendant, Friend, or Neighbor, and the only evidence of any
specific prior bad acts attributed to the gang itself was limited to
discussion of the gang’s habit of “violating” snitches. If
Defendant’s counsel had objected to the admission of this
evidence under rule 404(b), the trial court would have been well
within its discretion to overrule the objection. Id.

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 State v. Garcia

¶42 Under rule 403 of the Utah Rules of Evidence, the result
would have been no different. Evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be
without the evidence,” Utah R. Evid. 401, and a trial court “may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice,” Utah R. Evid.
403. In this case, the State charged Defendant with attempted
murder with an “in concert” enhancement, which required the
State to prove that Defendant had committed the crime “in
concert” with others. See generally State v. Lopes, 1999 UT 24, ¶ 8,
980 P.2d 191 (stating that “in concert” for the purposes of
enhancement “means that the defendant acted with at least two
other people and ‘that those other persons must also be liable for
the underlying offense’” (citation omitted)). The gang evidence
proffered by the State was relevant and highly probative to
explain why Defendant might attempt to assault Husband “in
concert” with Friend and Neighbor. See State v. Toki, 2011 UT
App 293, ¶ 45, 263 P.3d 481 (determining that gang evidence
admitted in support of an “in concert” enhancement was “highly
probative of an essential element of one of the charges” and was
“not unfairly prejudicial”). In addition, the gang evidence was
probative because it contextualized the inconsistent statements
given by Defendant and Friend, by providing a possible
explanation—fear of being “violated” for “snitching”—for the
changed stories. See Milligan, 2010 UT App 152U, para. 4
(determining that “[r]eferences to gang punishment for being a
snitch” were “relevant” because “[t]he information regarding
snitching explained the codefendant’s fear of retribution and
thus made him more believable despite the conflict between his
initial and final characterizations of the pertinent events”). We
are not persuaded that the probative value of the proffered gang
evidence was substantially outweighed by the danger of unfair
prejudice. Defendant has therefore “not shown a reasonable
probability that an objection to the testimony’s admissibility
under rule 403 would have been sustained.” See Edgar, 2017 UT
App 54, ¶ 17.

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 State v. Garcia

¶43 Accordingly, even if Defendant’s trial counsel had made a
proper objection to the admission of the gang evidence, the
objection would have been futile. Because “[f]ailure to raise
futile objections does not constitute ineffective assistance of
counsel,” State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546, and
because Defendant’s trial counsel had valid tactical reasons for
seeking admission of the gang evidence, counsel did not render
ineffective assistance by failing to resist admission of the gang
evidence.

II

¶44 Finally, Defendant argues that the trial court plainly erred
when it did not conduct a further inquiry into Defendant’s post-
verdict dissatisfaction with his trial counsel. In particular,
Defendant cites State v. Pursifell, 746 P.2d 270 (Utah Ct. App.
1987), and argues that the trial court failed to comply with
Pursifell’s instruction to make “reasonable, non-suggestive
efforts to determine the nature of the defendant’s complaints
and to . . . determine whether the defendant’s relationship with
his or her appointed attorney has deteriorated to the point that
sound discretion requires substitution.” Id. at 273.

¶45 Because Defendant did not object to the trial court’s
conduct until this appeal, this issue was not preserved for
review. See State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551
(“Generally speaking, a timely and specific objection must be
made [before the lower court] in order to preserve an issue for
appeal.”). Where the issue is unpreserved, it is unreviewable on
appeal, unless Defendant can “demonstrate that ‘exceptional
circumstances’ exist or [that] ‘plain error’ occurred.” See State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. In this instance, Defendant
asks us to review for plain error the trial court’s decision not to
conduct a Pursifell inquiry. Generally, to “establish the existence
of plain error and to obtain appellate relief from an alleged error
that was not properly objected to, the appellant must show” that
an error exists, that the error should have been obvious to the

20150874-CA 19 2017 UT App 200
 State v. Garcia

trial court, and that the trial court’s handling of the issue
prejudiced the defendant. See State v. Dunn, 850 P.2d 1201, 1208–
09 (Utah 1993). “If any one of these requirements is not met,
plain error is not established.” Id. at 1209.

¶46 For two independent reasons, Defendant’s arguments do
not persuade us that the trial court plainly erred. First, the
counsel with whom Defendant became dissatisfied was not
appointed by the court. Instead, Defendant’s counsel at that
point in the case was an attorney that Defendant had privately
retained. Defendant could have fired his counsel at any time,
without asking the court’s permission to do so. After firing his
counsel, Defendant could have then hired another more to his
liking or, if he believed that his financial situation still warranted
it, he could have claimed indigency and asked the court to re-
appoint a public defender. But Defendant did not do either of
these things. Instead, after his conviction, Defendant wrote a
letter informing the trial court that he intended to appeal and
that he disagreed with his trial counsel’s decisions in a number
of ways. The trial court responded by informing Defendant that
any appeal would be premature prior to sentencing and
provided Defendant with information regarding the proper
method for appealing his conviction. Significantly, Defendant
cites no authority for the proposition that a trial court has an
obligation to conduct a Pursifell inquiry with regard to retained
counsel, as opposed to appointed counsel. It is not plain error for
the court to “fail to take some action on the basis of unsettled
law.” State v. Bruun, 2017 UT App 182, ¶ 68; see also State v.
Roman, 2015 UT App 183, ¶¶ 10-11, 356 P.3d 185 (noting an
appellant cannot successfully “invoke the plain error exception
to our preservation rules” if he cannot demonstrate that there is
“settled appellate law” applicable to the alleged error). We are
unpersuaded that the trial court committed plain error by
responding as it did to Defendant’s letter.

¶47 Second, Defendant has not adequately explained how he
was harmed by the trial court’s response to his letter. By the time

20150874-CA 20 2017 UT App 200
 State v. Garcia

Defendant raised the issue, the jury had already convicted him
on all charges and he was simply awaiting sentencing. At that
point, it is unclear what substitute counsel could have done for
Defendant other than file a timely appeal, which was
accomplished in any event. Defendant has not shown prejudice
under these circumstances.

CONCLUSION

¶48 Defendant has failed to show that his trial counsel was
constitutionally ineffective, or that the trial court plainly erred in
its response to his letter. Accordingly, we affirm his convictions.

20150874-CA 21 2017 UT App 200