State v. Cecala

2021 UT App 141
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
GINO JAMES CECALA,
Appellant.
Opinion
No. 20190689-CA
Filed December 16, 2021
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 171907888
Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 After his girlfriend left him and her new boyfriend beat
him up, Gino James Cecala wanted revenge. He fired a handgun
multiple times through the boyfriend’s bedroom window, but
ended up striking and killing his ex-girlfriend instead. A jury
convicted Cecala of first-degree murder and other crimes. Cecala
now appeals, arguing that the district court erred when it
admitted testimony from the lead detective, which, Cecala
contends, bolstered the testimony of the State’s principal

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witness, Todd Hull.1 He also asks us to reverse his convictions
on the ground that the court erred when it denied his motion for
a directed verdict. Because the district court did not err in either
respect, we affirm Cecala’s convictions.
¶2 Cecala also seeks remand under rule 23B of the Utah
Rules of Appellate Procedure to supplement the record with
evidence related to defense counsel’s alleged conflict of interest
and failure to investigate or call exculpatory witnesses. Because
Cecala has failed to allege nonspeculative facts that, if true,
would support his ineffective assistance of counsel claim, we
deny the motion.
BACKGROUND2
¶3 Cecala’s ex-girlfriend left him for another man. Later, the
new boyfriend and two others beat Cecala, striking him in the
face with a hammer. Cecala wanted to “even the score.” Multiple
witnesses saw Cecala with a handgun, and a mutual friend,
Lexi,3 heard Cecala say “he was going to kill” the boyfriend. Lexi
proceeded to warn the boyfriend that Cecala had a gun and
“was going to hurt him.”
1. Although we normally use descriptors or pseudonyms to refer
to witnesses, Hull was convicted of obstruction of justice arising
from the facts of this case.
2. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (cleaned up).
3. A pseudonym.

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¶4 Three days after making the threat, just a week after being
pummeled with a hammer, Cecala was ready to “exact revenge.”
In the early morning of July 16, 2017, Cecala met with his friend
Todd Hull at a motel. According to Hull, he had agreed to “have
[Cecala’s] back” by “even[ing] up the numbers” in what he
expected to be a fight between Cecala and the boyfriend. The
two men left around 4:00 a.m. in a white Chevy Cruze and drove
to the boyfriend’s house in Magna.
¶5 About a mile away from the boyfriend’s house, Cecala
pulled over to the side of the road where the two men smoked
bath salts then disguised themselves with black shirts, bandanas,
beanies, and gloves that Cecala had packed in a backpack. Hull
saw that Cecala had packed a handgun as well. When the men
finished changing clothes, they switched seats.
¶6 With Hull now driving, they slowly circled the block to
see if the boyfriend’s car was parked outside his house, then
they stopped nearby to “get [their] bearings” before circling
back. Cell phone records showed that Cecala received two calls,
the first at 4:34 a.m. and the second at 4:48 a.m.; both calls were
routed through the cell tower in Magna, establishing that he was
“in the Magna area” at that time.
¶7 Around 5:00 a.m., Hull stopped the car in the middle of
the street, and Cecala got out. Hull watched as Cecala walked
briskly to a basement window that was covered inside by a dark
curtain, crouched down on one knee, and fired his gun. Hull
would later testify that he heard ten shots. A neighbor testified
that he counted “about six to eight.” Both witnesses testified that
there was a pause followed by a few more shots. Police later
collected fifteen 9mm bullet casings from outside the window,
all fired from the same gun. At trial, the State presented
trajectory evidence, photographs, and testimony showing that
the shots were fired from outside the house, through the closed
window and curtain, and into the room.

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¶8 None of the bullets hit the boyfriend. Unbeknownst to
Cecala, the victim had been sitting across from the window in
the boyfriend’s bedroom. Thirteen of Cecala’s bullets lodged into
the bed; two bullets struck the victim—one in the leg and one in
the back of her head, killing her.
¶9 Cecala ran back to the car, commanding Hull to “[G]o, go,
go!” The neighbor heard a car door slam, and saw a small white
car drive away. A nearby security camera also recorded footage
of a white car.
¶10 About a mile down the road, the two men began
shedding their clothes and throwing them out the window. After
another couple miles, Hull pulled into an unfinished
subdivision, stopping at a dead-end street by a vacant lot. Cecala
got out of the car and buried the gun behind a pile of dirt. Back
on the road, Cecala told Hull that he had “methodically placed
every shot.”
¶11 A few hours after the shooting, Lexi learned that the
victim had been killed. She called Cecala and told him, “You
killed [the victim], I hate you.” Cecala said nothing and hung up.
¶12 The next day, Hull went with a woman and another man
to recover the gun from where Cecala had buried it. Hull
testified that they could not find it.
¶13 That same evening, police learned that Hull, who was
booked on an unrelated charge, may have been involved in the
shooting and interrogated him. At first, Hull denied knowing
anything about the shooting, but after police claimed that a
witness placed him at the scene of the crime, Hull confessed that
he had driven Cecala to the boyfriend’s house and had
witnessed the shooting. Hull maintained that he did not know
what happened to the gun, but he admitted the next day that he
knew where it was. He led two homicide detectives to the dirt
pile where Cecala had buried the gun, but it was not there.

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¶14 Police spoke to a nearby resident who reported seeing
two women behind some dirt piles carrying a duffel bag and a
small shovel the day before. The women walked south to meet
up with a man, and then the three of them got into a car and
drove away. Shortly thereafter, police stopped the woman who
had accompanied Hull to look for the gun the day after the
shooting. They found a shovel in the trunk of her car, which the
nearby resident identified as “very similar” in size and color to
the one he had seen being carried by the women coming from
the piles of dirt. A search of the woman’s home uncovered
Cecala’s identification card, wallet, and a couple of Cecala’s cell
phones. The gun was never found.
¶15 Not long after the shooting, Cecala disappeared. Months
later, police found him in Texas. Cecala had changed his
appearance and was now sporting “a full beard,” and “his hair
had grown.”
¶16 Cecala was transported to Utah and charged with
murder, obstruction of justice, possession of a firearm by a
restricted person, one count of felony discharge of a firearm with
serious bodily injury (for the bullet that struck the victim’s leg),
and thirteen counts of felony discharge of a firearm (for the
bullets that missed).
¶17 At trial, the State relied heavily on Hull’s testimony to
establish what happened before, during, and after the shooting.
The State also called the lead detective to testify about Hull’s
police interview. During the State’s redirect of the detective, the
following exchange occurred:
Prosecutor: Is [Hull] the first person who started
out an interview being reticent to talk to you?
Witness: No, it happens all the time.

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Prosecutor: Is it — is it typical that then it changes
and you get the real story?
Witness: Yes.
Defense Counsel: I’m going to object, Your Honor.
Court: Overruled.
Defense Counsel: “The real story,” that’s coming to
a conclusion.
Court: Well, he’s not — he’s talking generally at
this point. I’m going to overrule the objection.
The prosecutor quickly wrapped up the examination.
¶18 After the prosecution rested, Cecala moved for a directed
verdict on the grounds that the State had presented insufficient
evidence to prove that he had the mental state required to
commit certain crimes. With respect to the murder charge,
defense counsel argued that there was insufficient evidence that
Cecala “intentionally or knowingly caused the death” of the
victim or that “he intended to cause bodily injury to another,
and therefore caused her death.” With respect to the lesser
included offense of manslaughter, defense counsel argued that
there was insufficient evidence to prove that Cecala was
“reckless in causing” the victim’s death because there was no
“evidence that he knew or should have known that she was in
there.” Finally, regarding the obstruction of justice charge,
defense counsel argued that there was “no evidence that [Cecala]
knew there was an active warrant for him” when he fled the
jurisdiction, even assuming that such conduct amounted to
obstruction of justice.
¶19 The district court denied the motion, explaining that the
court’s limited role was “to assess based on the evidence that’s
been submitted, whether or not a reasonable jury could return a

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verdict of guilty beyond a reasonable doubt.” The court found
that there was sufficient evidence to support a conviction for
obstruction of justice based not only on Cecala’s “flight with the
intent to evade arrest” but also on his “efforts to dispose of the
firearm” and to alter his appearance. As to the murder charge,
the court observed,
[W]e have evidence from a person who testified
under oath that he drove the defendant to the site
of this offense and witnessed the murder that’s
charged, and the Court can’t decide whether Mr.
Hull was telling the truth, the jury has to decide
that. I can’t step into their shoes, make that
determination. So I can’t find that a reasonable jury
can’t convict the defendant of the murder offense,
can’t [convict him] beyond a reasonable doubt.
That’s up to the jury to decide.
Cecala never argued that Hull’s testimony was inherently
improbable or should otherwise be disregarded.
¶20 The jury convicted Cecala of murder, obstruction of
justice, felony discharge of a firearm with serious bodily injury,
and the remaining thirteen counts of felony discharge of a
firearm. By stipulation, the restricted person charge was tried to
the bench, and the court found Cecala guilty of that charge as
well. Cecala appeals each of his convictions.
ISSUES AND STANDARDS OF REVIEW
¶21 Cecala raises three issues on appeal. First, he claims that
the district court erred by allowing the lead detective to bolster
Hull’s credibility. “We review preserved claims challenging the
district court’s admission of testimony for an abuse of
discretion.” State v. Lewis, 2020 UT App 132, ¶ 15, 475 P.3d 956.

State v. Cecala
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¶22 Next, Cecala argues that there was insufficient evidence
to convict him of several charges, and therefore the district court
erred by denying his motion for directed verdict. “We review a
district court’s ultimate ruling on a motion for directed verdict
for correctness.” State v. LeVasseur, 2020 UT App 118, ¶ 18, 473
P.3d 204.
¶23 Lastly, Cecala has filed a rule 23B motion for a remand to
supplement the record with evidence to support a claim of
ineffective assistance of counsel. “Rule 23B allows this court to
remand a criminal case ‘to the trial court for entry of findings of
fact, necessary for the appellate court’s determination of a claim
of ineffective assistance of counsel.’” State v. Powell, 2020 UT App
63, ¶ 11, 463 P.3d 705 5 (quoting Utah R. App. P. 23B(a)). “A
remand under rule 23B is available only upon a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” State v. Ramirez, 2019 UT App 196, ¶ 13, 455 P.3d
1082 (cleaned up).
ANALYSIS
I. Bolstering
¶24 First, Cecala claims that the lead detective improperly
bolstered Hull’s testimony when he affirmed that it is common
to “get the real story” from a suspect after the suspect initially
refuses to cooperate with police.4 Bolstering is governed by rule
4. The State argues that this claim of error was not preserved.
Although Cecala objected to the testimony on the grounds that
the detective was “coming to a conclusion,” the State points out
that Cecala “did not argue that the testimony bolstered [Hull’s]
credibility, nor did he cite evidence rule 608(a) or any other
authority.” Although the State’s preservation argument may be
(continued…)

State v. Cecala
20190689-CA 9 2021 UT App 141
608(a) of the Utah Rules of Evidence, which prohibits “direct
testimony regarding the truthfulness of a witness on a particular
occasion.” State v. Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (cleaned
up); see also Utah R. Evid. 608(a). As the State aptly puts it, “the
key word is ‘direct’ because there is a ‘fundamental difference’
between ‘testimony from which a jury could infer the veracity of
the witness,’ which is not prohibited, and ‘an affirmative
statement that [the witness] was in fact telling the truth,’ which
is.” (Quoting Adams, 2000 UT 42, ¶¶ 13–14.)
¶25 The detective’s testimony did not constitute
impermissible bolstering because it did not comment on the
veracity of a witness’s statement on a particular occasion. Rather,
the testimony concerned the detective’s experience with suspects
generally: he explained that suspects are often “reticent to talk”
at the outset of an interview, but that attitude typically “changes
and you get the real story.” The detective did not opine that such
a situation had occurred in this case. Although the jury could
infer as much, rule 608(a) does not prohibit “testimony from
which a jury could infer the veracity of the witness”; “it only
bars direct testimony regarding the truthfulness of a witness on
a particular occasion.” Adams, 2000 UT 42, ¶ 14 (cleaned up).
¶26 This court recently reviewed the admission of similar
testimony in State v. Lewis, 2020 UT App 132, 475 P.3d 956, and
concluded that it did not constitute impermissible bolstering. In
Lewis, a sexual assault victim gave varying statements to police.
See id. ¶¶ 4–8. On direct examination, the interviewing officer
(…continued)
well taken, we elect to resolve the claim on the merits because
we can easily do so in the State’s favor. See State v. Kitches, 2021
UT App 24, ¶ 28, 484 P.3d 415 (“If the merits of a claim can easily
be resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.” (cleaned up)).

State v. Cecala
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acknowledged that sexual assault victims often “have to give
their account multiple times.” Id. ¶ 20 (cleaned up). The State
then asked whether it was “common for victims’ accounts to
sometimes have variations.” Id. (cleaned up). After the defense
objected on bolstering grounds, the court overruled the
objection, and the officer responded, “That is correct.” Id. This
court held that the officer did not opine as to “the truthfulness of
a witness on a particular occasion” in violation of rule 608(a)
because he “merely described his observation that in other cases
there are often variations among a victim’s statements when
multiple accounts are given.” Id. ¶ 26. “It was left to the jury to
determine whether [the victim] was telling the truth in her
differing accounts, informed by the knowledge that varying
accounts are not uncommon in similar circumstances.” Id.
¶27 Similarly, the detective here did not opine directly on
Hull’s credibility or offer a subjective opinion that Hull was
telling the truth when he claimed to have witnessed the
shooting. The detective’s testimony stopped short of concluding,
based on his experience with other suspects, that Hull had told
“the real story” after initially being “reticent to talk.” Instead, he
spoke of his past experience generally, leaving it to the jury to
determine whether Hull was telling the truth, informed by the
knowledge that it is not uncommon for a suspect to give the true
story after initially being reticent to talk. In other words, it was
“testimony from which a jury could infer the veracity of the
witness,” not impermissible bolstering. See Adams, 2000 UT 42,
¶ 14. Because the detective’s testimony was not a “direct,”
“affirmative statement that [Hull] was in fact telling the truth,”
see id. ¶ 13, Cecala has not established that it was wrongfully
admitted.
II. Sufficiency of the Evidence
¶28 Next, Cecala challenges the district court’s denial of his
directed verdict motion, arguing that the State did not prove his
guilt beyond a reasonable doubt because Hull’s testimony could

State v. Cecala
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not be believed. Specifically, Cecala argues that Hull’s testimony
at trial was inconsistent with his original statements to police
and that his “self-serving” version of events was “beyond
reasonable belief.”5 Cecala asks us to hold that “the
acknowledged inconsistencies and self-serving assertions in
[Hull’s] testimony rendered his testimony such that ‘reasonable
minds must have entertained a reasonable doubt’” that Cecala
committed the crimes for which he was convicted. (Quoting State
v. Cady, 2018 UT App 8, ¶ 25, 414 P.3d 974.)
¶29 As an initial matter, Cecala has not identified any
“internal inconsistencies” in Hull’s trial testimony. Instead, he
argues only that, “at the preliminary hearing and again at trial,
5. To the extent that Cecala asks us to entirely disregard Hull’s
testimony, we agree with the State that Cecala’s general motion
for a directed verdict did not preserve that theory for appeal.
When ruling on a directed verdict motion, “it is ordinarily not
the court’s place to disregard any particular items of admitted
evidence; rather, a court should examine all admitted evidence
to determine if some evidence exists that could support the
verdict.” State v. Skinner, 2020 UT App 3, ¶ 25, 457 P.3d 421
(cleaned up). In contrast, a challenge to the evidence based on
inherent improbability “introduces a new legal theory: that the
insufficiency should be reviewed only after [the challenged]
testimony is ignored as inherently improbable.” See State v.
Doyle, 2018 UT App 239, ¶ 19, 437 P.3d 1266 (cleaned up). Where
the defendant has “not specifically asked the court to exclude or
disregard any particular evidence,” a general directed verdict
motion does not preserve an inherent improbability claim for
appeal. See Skinner, 2020 UT App 3, ¶ 27. Here, Cecala maintains
that his “argument on appeal is not aimed at the inherently
improbable [doctrine], but, instead, on the fact that Mr. Hull’s
testimony was internally inconsistent.” Therefore, we address
this issue as a general challenge to the sufficiency of the
evidence.

State v. Cecala
20190689-CA 12 2021 UT App 141
Mr. Hull offered an entirely new version of events” from the
statements he originally gave to police. As our supreme court
has recognized, the fact that witnesses “tied to events
surrounding a murder would deny their involvement when
initially interviewed by the police does not run so counter to
human experience that it renders their testimony inherently
improbable.” State v. Prater, 2017 UT 13, ¶ 39, 392 P.3d 398. To
the contrary, “[t]he question of which version of their stories was
more credible is the type of question we routinely require juries
to answer.” Id. Without more, we will not second-guess the
jury’s decision to credit Hull’s trial testimony notwithstanding
his earlier denials.
¶30 Moreover, Cecala does not undertake any analysis of the
evidence presented at trial in support of his seventeen counts of
conviction, much less show that the evidence was insufficient to
prove any one of the elements that the jury was required to find
beyond a reasonable doubt. When challenging the sufficiency of
the evidence, “a party who fails to identify and deal with
supportive evidence will never persuade an appellate court to
reverse under the deferential standard of review that applies to
such issues.” State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645. The
duty to marshal all record evidence in support of the verdict is
“a natural extension of an appellant’s burden of persuasion.” Id.
¶ 41. Failure to marshal does not result in procedural default,
but “a party challenging a factual finding or sufficiency of the
evidence to support a verdict will almost certainly fail to carry
its burden of persuasion on appeal if it fails to marshal.” Id. ¶ 42.
¶31 Here, Cecala does not address any of the evidence
supporting his various convictions, including multiple pieces of
evidence that corroborated Hull’s account of the shooting. See
infra ¶ 45. Nor does he identify one or more elements of each
offense that lacked evidentiary support. Absent such an analysis,
Cecala cannot carry his burden of persuasion. Accordingly, we
reject his challenge to the sufficiency of the evidence.

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III. Rule 23B Motion
¶32 Cecala also seeks a remand under rule 23B of the Utah
Rules of Appellate Procedure to supplement the record with
evidence to support his ineffective assistance of counsel claims.
Rule 23B “provides a mechanism for criminal defendants to
supplement the record with facts that are necessary for a finding
of ineffective assistance of counsel but which do not appear in
the record.” State v. Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166. A
rule 23B remand is “available only upon a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” Utah R. App. P. 23B(a).
¶33 In his rule 23B motion, Cecala claims that his defense
counsel was ineffective because counsel (1) had “an apparent
conflict of interest” and (2) “fail[ed] to investigate exculpatory
witnesses.” We therefore address whether the factual allegations
in Cecala’s motion, if true, would establish either claim of
ineffective assistance of counsel.
A. Conflict of Interest
¶34 First, Cecala claims that his defense counsel had “an
apparent conflict of interest” because he had previously
represented Lexi, one of the State’s witnesses. “The right to
effective assistance of counsel includes the right to counsel free
from conflicts of interest.” Taylor v. State, 2007 UT 12, ¶ 123, 156
P.3d 739 (cleaned up). Still, a defendant “claiming ineffective
assistance of counsel resulting from a conflict of interest must
show that ‘an actual conflict of interest adversely affected his
lawyer’s performance.’” State v. Taylor, 947 P.2d 681, 686 (Utah
1997) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). The
evidence supporting Cecala’s motion for a rule 23B remand does
not establish an actual conflict.

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20190689-CA 14 2021 UT App 141
¶35 Ordinarily, a defendant alleging ineffective assistance of
counsel must establish both that “counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). But “a
defendant who shows that a conflict of interest actually affected
the adequacy of his representation need not demonstrate
prejudice in order to obtain relief.” Cuyler, 446 U.S. at 349–50.
“Prejudice is presumed only if the defendant demonstrates that
counsel actively represented conflicting interests and that an
actual conflict of interest adversely affected his lawyer’s
performance.” Strickland, 466 U.S. at 692 (cleaned up); see also
Mickens v. Taylor, 535 U.S. 162, 173 (2002) (explaining that
“prejudice will be presumed only if the conflict has significantly
affected counsel’s performance”). In other words, “the defendant
must demonstrate as a threshold matter that the defense
attorney was required to make a choice advancing his own
interests to the detriment of his client’s interests.” State v. Taylor,
947 P.2d at 686 (cleaned up). “Hypothetical or speculative
conflicts will not suffice to establish a violation.” State v. Cheek,
2015 UT App 243, ¶ 35, 361 P.3d 679 (cleaned up).
¶36 In support of his contention that counsel had an actual
conflict of interest, Cecala offers defense counsel’s declaration
that, during Lexi’s cross-examination, he realized it was
“possible that [he] had represented her previously on a criminal
matter, perhaps when she had a different last name.” Afterward,
counsel learned that he had in fact represented Lexi under
another last name in an unrelated case sixteen years earlier.
According to Cecala, Lexi’s prior representation by defense
counsel necessarily “presents a conflict” because “an attorney
who cross-examines former clients inherently encounters
divided loyalties.” (Cleaned up.)
¶37 But to establish “an actual conflict of interest,” a
defendant must show “a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of
loyalties.” Mickens, 535 U.S. at 171 (cleaned up). Although

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20190689-CA 15 2021 UT App 141
defense counsel worries that his familiarity with Lexi “might
have, subconsciously, affected [his] cross-examination of her,”
causing him to “cross-examine[] her more lightly than [he]
would have otherwise if [he] were certain [he] had never
represented her as a client,” his declaration does not point to
anything he would have done differently. He does not identify
any objections that he should have made, any lines of inquiry
that he should have pursued, or any questions that he should
not have asked. Because “hypothetical or speculative conflicts
will not suffice to establish a violation,” see Cheek, 2015 UT App
243, ¶ 35 (cleaned up), we cannot conclude that an actual conflict
of interest existed merely because counsel’s vague recollection of
a witness may have “subconsciously” affected his performance
in some unidentified way. Defense counsel’s speculation that he
might have cross-examined Lexi “more lightly” does not
establish that defense counsel was actively representing other
interests to the detriment of his client.
¶38 Taking all the facts in the declaration as true, Cecala
cannot demonstrate an actual conflict of interest. And because
the evidence presented is insufficient to establish an ineffective
assistance of counsel claim, Cecala is not entitled to a remand to
supplement the record on this basis.
B. Failure to Investigate or Call Exculpatory Witnesses
¶39 Cecala also seeks a remand to supplement the record with
evidence that defense counsel “fail[ed] to investigate exculpatory
witnesses.” Cecala has submitted his own declaration in which
he claims that defense counsel did not meet with him to discuss
his case prior to the trial. If he had, Cecala says he would have
told counsel to speak with three witnesses and call them to
testify. According to Cecala, these witnesses would have offered
the following evidence at trial: Witness 1 would have testified
that Cecala was with her at a hotel at the time of the murder,
Witness 20 would have testified as to Cecala’s “former
relationship” with Lexi, and Witness 3 would have testified that

State v. Cecala
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she observed no animosity between Cecala and the boyfriend
prior to the murder and that Cecala seemed “normal” in the
hours before and after the murder.
¶40 To merit remand on his 23B motion, Cecala’s allegations,
if proven, must show “that counsel’s performance was deficient”
and “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Utah R.
App. P. 23B(b). To establish the prejudice prong of Strickland,
Cecala must show “that if counsel had presented the information
at trial, there would have been a substantial likelihood of a
different result.” See Menzies v. State, 2014 UT 40, ¶ 183, 344 P.3d
581, abrogated on other grounds by McCloud v. State, 2021 UT 51,
496 P.3d 179. The evidence Cecala has provided in support of his
rule 23B motion does not demonstrate the required prejudice.
¶41 To support his assertion that Witness 1 would have
testified as an alibi witness, Cecala attaches a police report in
which Witness 1 claims that she was in a hotel room with Cecala
at the time of the shooting from Saturday night until Sunday
around noon. However, when Witness 1 was “warned about
lying about [Cecala] being at the hotel . . . she stated that she
didn’t know what days he was at the hotel.” Cecala also offers a
declaration from Witness 1’s attorney, which states that she
probably would have granted defense counsel permission to
speak with her client at the time of Cecala’s trial, but he never
contacted her. Cecala does not attach a declaration from
Witness 1.
¶42 These facts, taken as true, do not establish that Witness 1
would have provided Cecala with an alibi if defense counsel had
called her to testify. Cecala has provided no evidence that
Witness 1 would have been available or willing to testify, much
less that her testimony would have been favorable to Cecala.
Witness 1 retracted her claim that Cecala was with her at the
time of the shooting, and Cecala has offered no evidence to
suggest that, if called at trial, Witness 1 would have reverted to

State v. Cecala
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her original story. Without more, Cecala cannot establish a
reasonable probability that the failure to call Witness 1 affected
the outcome of the trial.
¶43 With respect to Witness 2, Cecala offers his own
declaration, which states that Witness 2 is his mother and that
she “had been aware of [Cecala and Lexi’s former] relationship[]
and could have been called to testify about the former
relationship.” Not only is this evidence insufficient to establish
the content of the missing testimony, but Cecala also fails to
explain how this testimony would have been exculpatory or
even favorable. Even accepting Cecala’s declaration as true, he
has not established that calling his mother to testify about his
“former relationship” with Lexi would have been reasonably
likely to change the result of the trial.
¶44 Lastly, Cecala has provided a declaration from Witness 3,
stating that she would have been willing to testify at trial that:
(1) she did not see any animosity between Cecala and the
boyfriend about a week before the murder; (2) she did not hear
Cecala make any threats against the boyfriend; (3) she spoke
with Cecala by phone shortly before and after the murder and
his tone and demeanor appeared to be normal; and (4) others
told her that they did not think Cecala was the murderer.6 But
even if the jury had heard and believed this testimony, it was not
reasonably likely to have affected the jury’s assessment of the
evidence.
¶45 At most, Witness 3’s testimony suggested that she did not
observe Cecala behave in a manner consistent with the State’s
theory of the case. But, even if the jury believed that testimony, it
did not disprove Hull’s corroborated eyewitness account of the
murder. Hull testified that, on the day of the murder, Cecala
6. As to the fourth item, Cecala suggests no grounds for
admitting these out-of-court statements at trial.

State v. Cecala
20190689-CA 18 2021 UT App 141
wanted revenge. Multiple witnesses confirmed that Cecala was
angry with the victim’s new boyfriend, and Lexi testified that
she heard Cecala threaten to kill him. According to Hull, he and
Cecala left around 4:00 a.m. to drive to the boyfriend’s home in
Magna. Cecala’s cell phone records placed him in Magna at 4:34
a.m. and 4:48 a.m., and a nearby security camera captured the
image of a white car around the time of the shooting. Hull
testified that Cecala had a handgun, which was consistent with
the testimony of other witnesses who saw Cecala with a
handgun in the days leading up to the murder. Hull further
testified that he watched Cecala kneel outside the boyfriend’s
basement window and fire multiple rounds through a dark
curtain. That account was corroborated by trajectory evidence,
the holes in the curtain, and the casings found outside the
window. Hull testified that Cecala fired ten shots, paused, and
then fired a few more, which was consistent with the testimony
of a neighbor who, at around 5:00 a.m., heard “about six to
eight” shots, a pause, and then a series of additional shots. It was
also consistent with the fifteen 9mm bullet casings the police
recovered from outside the window. And Hull’s account was
further corroborated by the neighbor’s testimony that, after the
shots were fired, he heard a car door slam and saw a white car
drive away. Even Hull’s testimony that Cecala had buried the
gun in a dirt pile behind an undeveloped subdivision was
partially corroborated by a nearby resident who saw two women
there with a shovel the day after the murder and by the police
recovering a similar shovel from a woman who was also in
possession of Cecala’s belongings. Finally, Cecala’s
disappearance shortly after the murder, flight to Texas, and
efforts to change his appearance also supported an inference that
he was attempting to evade capture and further supported
Hull’s account that Cecala had committed the crime.
¶46 Because the proposed testimony from Witness 3 would
not have significantly altered this evidentiary landscape, Cecala
has not established a substantial likelihood of a different result if
that testimony had been presented. Even assuming that the jury

State v. Cecala
20190689-CA 19 2021 UT App 141
credited Witness 3’s testimony, it is not reasonably likely that her
observations of Cecala’s behavior would have outweighed the
substantial evidence of Cecala’s guilt. Because Cecala cannot
establish that he was prejudiced by the absence of Witness 3’s
testimony, he is not entitled to a rule 23B remand.
CONCLUSION
¶47 The district court acted within its discretion when it
overruled Cecala’s objection to the lead detective’s testimony
because that testimony did not impermissibly bolster Hull’s
credibility. Whether to believe Hull’s testimony was a question
for the jury, and absent any analysis of the evidence supporting
the jury’s verdict, we reject Cecala’s challenge to the sufficiency
of the evidence. Finally, we deny the motion to remand under
rule 23B because Cecala has not alleged nonspeculative facts
that, if true, would establish his ineffective assistance of counsel
claims. Accordingly, we affirm.