State v. Cartwright

2026 UT App 78

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
AARON PAUL CARTWRIGHT,
Appellant.

Opinion
No. 20230748-CA
Filed May 14, 2026

Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 221911399

Emily Adams, Jessica Holzer, and Freyja Johnson,
Attorneys for Appellant
Derek E. Brown and Christopher A. Bates,
Attorneys for Appellee

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

HARRIS, Judge:

¶1 A jury convicted Aaron Paul Cartwright of aggravated
assault. Cartwright appeals his conviction, arguing that his trial
attorney (Counsel) rendered ineffective assistance in three ways:
(1) by not asking for a jury instruction on defense of others, (2) by
not objecting to various questions the State asked the complaining
witness, which questions Cartwright contends were leading
questions, and (3) by not asking for admission of some of
Cartwright’s medical records. Cartwright contends that the first
two of these claims can be supported by evidence already in the
record, but for the third, Cartwright asks us to remand this case
to the trial court for supplementation of the record. For the
State v. Cartwright

reasons that follow, we reject Cartwright’s arguments, deny his
motion for a remand, and affirm his conviction.

BACKGROUND 1

The Incident

¶2 Cartwright and his girlfriend (Girlfriend) lived together in
Cartwright’s car. One evening, they got high on
methamphetamine (meth) and eventually fell asleep. Sometime
later, Girlfriend and Cartwright awoke in the middle of the night,
and Cartwright “woke up really mad.” Girlfriend “tried to get out
of the car,” and Cartwright “tried to grab [her]” to prevent her
from leaving. Eventually, she was able to “open the door, . . .
jump[] out of the car and [run] across the street,” and Cartwright
“came chasing [her] out of the car [in] a rage.” He soon caught up
to her, and she “started screaming, ‘Leave me alone!’” At one
point, “some guy [from] across the street . . . came over and
handed” Girlfriend a soft drink, and she drank it and “waited a
little bit.” After a few minutes, she tried to escape Cartwright
again, but as she left, he pursued her, and “the chase was on
again,” with Girlfriend “screaming” and Cartwright telling her
that he was “going to kill [her].”

¶3 Cartwright eventually caught up to her again in a nearby
parking lot, but by that time Girlfriend had fallen “down on the
ground” and was “on [her] back,” missing some of her clothing.
Cartwright got “on top of [her] and [held her] down” with “[h]is
hands . . . on [her] face,” “over [her] mouth,” and “on [her] neck.”

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Popp, 2019 UT App 173, n.1, 453
P.3d 657 (cleaned up).

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Girlfriend “couldn’t swallow . . . [or] breathe,” and she “[tried] to
scream, but . . . couldn’t.” This continued for “30 seconds to one
minute,” until law enforcement officers arrived on the scene.

¶4 Officers immediately separated Cartwright and Girlfriend
and ordered Cartwright to sit down, which he did. Cartwright
was enraged and shouted profanities at the officers, protesting
that he had been “the one that was helping” Girlfriend. Officers
began putting handcuffs on Cartwright, who looked over at
Girlfriend and yelled, “I fucking helped you! . . . This is fucked
up, what you’re doing to me; I will fucking take you to court! You
will go down for this!”

¶5 Then an officer (Officer 1) walked Girlfriend out of
Cartwright’s sight. Girlfriend was breathing heavily and told
Officer 1 that she felt like she was going to “pass out.” Officer 1
told her to sit down to catch her breath, which she did, and he
called “medical” to come take a look at her. After a few minutes,
Girlfriend explained through labored breathing much of the
incident recounted above, and she stated that during the incident,
she had been unable to breathe. Girlfriend also stated that during
the altercation, Cartwright grabbed her throat. Officer 1 then
made a “C” shape with his hand and asked if that is how
Cartwright grabbed her throat, to which Girlfriend nodded and
said, “Yeah.” A few minutes later, while still waiting for medical
assistance, Girlfriend told Officer 1, “I don’t want [Cartwright] to
get out, because I don’t want him hurting me.” And nearly fifteen
minutes after officers had arrived on the scene, Girlfriend said, “I
can breathe now, so that’s better.”

¶6 After Cartwright was handcuffed, another officer (Officer
2) placed him in the back of a police car. From there, Cartwright
continued to shout profanities at the officers and bang on the
vehicle’s plexiglass separation barrier. After a few minutes,
Cartwright said to Officer 2, in a much gentler tone, “She’s going
to kill herself. She started screaming and yelling that she’s going

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to kill herself. You don’t care. Oh, ok, I didn’t think you did.” Then
Cartwright reverted to shouting profanities and banging on the
barrier. After a few more minutes, Cartwright yelled, “I woke up
to [Girlfriend] biting the shit out of me!” And later, when Officer
2 tried to explain to Cartwright why he was in the police car,
Cartwright yelled, “Stop making me look like a goddamn
criminal and instead have the criminal over there look like the
criminal,” referring to Girlfriend. 2

¶7 Officers later took Cartwright to the county jail, where
Cartwright told officers, in “a singsong voice,” that he had
swallowed “balloons of heroin.” Cartwright was later taken to a
hospital, where Officer 2 observed “scratch marks” on
Cartwright’s chest and arms. Cartwright was eventually “cleared
by doctors” and escorted back to the jail.

Trial

¶8 The State charged Cartwright with aggravated assault,
which in this case required the State to prove, among other things,
that Cartwright had committed an “act that impede[d] the
breathing or the circulation of blood of [Girlfriend] by [his] use of
unlawful force or violence that [was] likely to produce a loss of
consciousness by” either (a) “applying pressure to the neck or
throat” or (b) “obstructing the nose, mouth, or airway.” See Utah
Code § 76-5-103(2)(b)(ii) (2022). The case proceeded toward trial.

¶9 About a month before the scheduled trial date, the State
submitted proposed jury instructions, and Counsel stipulated to

2. The quotations in paragraphs 4 through 6 come directly from
officers’ video footage of the incident in question, which was
presented at trial and which is part of the record submitted to us.
Other quotations in the factual recitation are taken from testimony
offered during trial.

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all of them. Notably, these agreed-upon instructions did not
include any instructions regarding defense of others.

¶10 At trial, the State presented testimony from Girlfriend and
Officer 2, who each testified to the facts outlined above. This
testimony was accompanied by video evidence from the
bodycams of Officer 1 and Officer 2. The State also presented
testimony from a forensic nurse consultant with training in
strangulation cases (Expert).

¶11 During Girlfriend’s direct examination, the State played
the bodycam footage and asked Girlfriend clarifying questions
about it. On cross-examination, Counsel inquired about
Girlfriend’s memory of the night in question, which Girlfriend
acknowledged was “[n]ot that great.” Counsel also asked how
meth typically affects Girlfriend’s mental state and breathing, and
Girlfriend acknowledged that meth can sometimes make her feel
fearful and that she needs to run away, and that it can sometimes
cause shortness of breath. Girlfriend also expressly denied ever
biting Cartwright on the night in question. On redirect, Girlfriend
clarified that she felt “a different level of shortness of breath” on
the night of the incident compared to when she had previously
used meth. She further recounted the pressure and weight she
had felt when Cartwright was on top of her.

¶12 Next, Officer 2 testified that the wounds he saw on
Cartwright at the hospital were “commonly defensive” wounds,
meaning wounds typically “inflicted by somebody else in a
defensive manner, usually to protect themselves.” Officer 2 also
testified that Cartwright told him that he had been awakened by
Girlfriend “biting him.” And Officer 2 stated that he had “noticed
some dry blood on [Cartwright’s] right shoulder, upper arm, and
left forearm.”

¶13 During her direct examination, Expert indicated that she
had not examined Girlfriend and that she had not reviewed any
reports associated with the case; instead, she testified about

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strangulation generally. In so doing, she described several types
of strangulation, including “[m]anual strangulation,” in which a
person applies pressure to the neck using a body part, and
including “postural or positional asphyxia,” a situation in which
“the body is in a position where it cannot fully inflate the lungs,”
either because of “the way that the body is sitting” or because of
“external pressure . . . being placed to the chest or the back” or to
the “nose and/or the mouth,” as happens during smothering. She
explained that it only takes “33 pounds of pressure” on the front
of the neck to occlude an airway, and “only about four and a half
pounds of pressure” to occlude the jugular vein. And she testified
that depriving the brain of oxygen, either by cutting off air supply
or obstructing blood flow, can lead to death in “anywhere from as
little as 62 seconds . . . to about two minutes.” On cross-
examination, Expert agreed that the use of a controlled substance
could “affect someone’s memory” and that many different things
can cause scratch marks.

¶14 At the conclusion of the State’s case, Counsel made a
motion for a directed verdict, which the court denied. Thereafter,
the defense rested without calling any witnesses, and both sides
presented closing arguments.

¶15 In the State’s closing argument, the prosecutor emphasized
the video recordings and argued that “this case was about
[Cartwright’s] rage.” The prosecutor argued that the most telling
fact was Cartwright stating to Girlfriend that he was “going to
kill” her and then “taking an action that regularly causes death.”

¶16 Counsel’s closing argument centered on the assertion that
the State had failed to meet its “very heavy burden of proving
[Cartwright’s] guilt.” Counsel argued that Girlfriend’s testimony
“was all over the place,” noting that she couldn’t remember key
details like whether she felt pain during the incident or how long
it lasted. Counsel asserted that Girlfriend’s poor memory
provided the jury “a reasonable doubt about” whether Cartwright

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committed the charged crime. Counsel also argued that the
testimonies of Officer 2 and Expert were unhelpful because
neither of them could offer firsthand testimony about what
happened. In particular, Counsel offered the view that Expert’s
testimony was unhelpful because Expert was “a blind expert
witness” who “kn[ew] nothing about the case.” And in an attempt
to justify Cartwright’s anger during the incident, Counsel posited
that there could have been “all kinds of alternate explanations
about why [Cartwright was] upset,” including that Cartwright
“was worried that [Girlfriend] was going to kill herself.”

¶17 After deliberation, the jury found Cartwright guilty as
charged. Later, the court sentenced Cartwright to prison.

ISSUE AND STANDARD OF REVIEW

¶18 Cartwright now appeals his conviction, asserting that
Counsel rendered constitutionally ineffective assistance. “A claim
of ineffective assistance of counsel raised for the first time on
appeal presents a question of law, which we consider de novo.”
State v. King, 2018 UT App 190, ¶ 11, 437 P.3d 425 (cleaned up).
Cartwright acknowledges that one of his ineffective assistance
claims cannot be supported by the evidence in the record, and
with regard to this claim, he seeks a remand, pursuant to rule 23B
of the Utah Rules of Appellate Procedure, to enable him to
supplement the record. “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. Tuinman,
2023 UT App 83, ¶ 53, 535 P.3d 362 (cleaned up).

ANALYSIS

¶19 To succeed on an ineffective assistance claim, a defendant
must make a two-part showing. First, “the defendant must show

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that counsel’s performance was deficient,” which “requires
showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
And second, “the defendant must show that the deficient
performance prejudiced the defense,” which “requires showing
that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. A defendant must
prove both elements to be successful. See id.

¶20 To demonstrate deficient performance, a defendant must
show that “counsel’s representation fell below an objective
standard of reasonableness.” State v. Popp, 2019 UT App 173, ¶ 26,
453 P.3d 657 (cleaned up). In evaluating the reasonableness of
counsel’s actions, courts often look to whether the actions counsel
took were motivated by trial strategy. See State v. Scott, 2020 UT
13, ¶ 35, 462 P.3d 350 (“To be sure, the performance inquiry will
often include an analysis of whether there could have been a
sound strategic reason for counsel’s actions.”). And while “the
ultimate question is not whether there was a possible strategic
reason for counsel’s conduct, but instead whether that conduct
was objectively reasonable,” see id., “[i]f it appears counsel’s
actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance,” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.

¶21 To satisfy the second part of the test, the defendant must
show that counsel’s deficient performance resulted in prejudice.
See Strickland, 466 U.S. at 687. “Prejudice exists when there is a
reasonable probability that the case would have had a different
outcome had trial counsel not performed deficiently.” State v.
Whytock, 2020 UT App 107, ¶ 28, 469 P.3d 1150. “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome” of the proceeding. Strickland, 466 U.S. at 694. In
assessing prejudice, we “consider the totality of the evidence
before the judge or jury and then ask if the defendant has met the

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burden of showing that the decision reached would reasonably
likely have been different absent the errors.” State v. Garcia, 2017
UT 53, ¶ 28, 424 P.3d 171 (cleaned up).

¶22 In this case, Cartwright asks us to consider three ineffective
assistance claims. First, he argues that Counsel provided
ineffective assistance by not asking for a jury instruction
regarding defense of others. Second, Cartwright argues that
Counsel provided ineffective assistance by not objecting to certain
questions that the State put to Girlfriend during her direct (and
redirect) examination, which questions Cartwright characterizes
as leading questions. And third, Cartwright argues that Counsel
provided ineffective assistance by not seeking admission of
medical records, generated by the hospital on the night in
question, showing that Cartwright had sustained a human bite.
Cartwright acknowledges that the current record does not
support this third claim, so he has filed a motion, pursuant to rule
23B of the Utah Rules of Appellate Procedure, asking us to
remand the case to the trial court for additional factfinding. We
discuss each of Cartwright’s claims, in turn.

I. Defense-of-Others Jury Instruction

¶23 Cartwright first claims that Counsel rendered ineffective
assistance by opting not to ask for a jury instruction regarding
defense of others. Specifically, Cartwright claims that such an
instruction was warranted because his actions during the incident
were justified in that “he acted with a reasonable belief that force
was necessary to prevent Girlfriend from injuring herself.” In
response, the State argues that Counsel could have reasonably
concluded that Cartwright was not entitled to such an instruction
and that, even if he was, Counsel could have reasonably decided
not to seek such an instruction because a defense-of-others

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defense was unlikely to succeed on the facts of this case. 3 We agree
with the State and conclude that Counsel did not perform
deficiently by not asking for a defense-of-others instruction.

¶24 “When a criminal defendant requests a jury instruction
regarding a particular affirmative defense, the court is obligated
to give the instruction if evidence has been presented . . . that
provides any reasonable basis upon which a jury could conclude
that the affirmative defense applies to the defendant.” State v. Low,
2008 UT 58, ¶ 25, 192 P.3d 867. “However, a court need not
instruct the jury on the requested affirmative defense where the
evidence is so slight as to be incapable of raising a reasonable
doubt in the jury’s mind as to whether the defendant acted in
accordance with that affirmative defense.” State v. Burke, 2011 UT
App 168, ¶ 81, 256 P.3d 1102 (cleaned up).

¶25 Utah’s justification statute provides, in relevant part, that
“[a]n individual is justified in . . . using force against another
individual when and to the extent that the individual reasonably
believes that force . . . is necessary to defend . . . another individual
against the imminent use of unlawful force.” Utah Code § 76-2-
402(2)(a). This defense applies when several elements are met.

¶26 First, “an individual is justified in . . . using force against
another if and where he [or she] reasonably believes such force is

3. The State also posits that Counsel could have reasonably
concluded that the defense-of-others defense did not apply
because “the justification statute does not apply to the use of force
to stop self-harm.” In the State’s view, the relevant statute
authorizes the use of defensive force only when necessary to
defend against “unlawful” force, see Utah Code § 76-2-402(2)(a),
and it posits that self-harm “is not ‘unlawful.’” Because we resolve
this issue on other grounds, we need not weigh in on this
argument, and we offer no opinion as to the merits of the State’s
position on this point.

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necessary.” State v. Sorbonne, 2022 UT 5, ¶ 2, 506 P.3d 545 (emphasis
added) (cleaned up). This necessity element “encompasses both a
subjective and an objective component—the defendant must
believe the force is necessary and the belief must be reasonable
under the relevant circumstances.” Id. (cleaned up). “[W]e
evaluate defendants’ beliefs—both the objective and the
subjective components—as of the moment they used force.” State
v. Wilcox, 2025 UT 31, ¶ 43, 579 P.3d 277.

¶27 Second, the defendant must reasonably believe that danger
is imminent. See Utah Code § 76-2-402(2)(a). This part of the
inquiry also “has both a subjective and an objective component:
the defendant must genuinely believe” that another individual
“face[s] an imminent threat, and that belief must be reasonable.”
Wilcox, 2025 UT 31, ¶ 27. Relevant here is the objective part of the
inquiry, which requires “courts to ask whether a reasonable
person in the defendant’s position would have believed” that
another individual was “facing an imminent use of unlawful
force.” See State v. Clara, 2024 UT 10, ¶ 44, 546 P.3d 963.

¶28 And third, the defendant’s use of force must be
proportionate to the danger. “The law on self-defense [and
defense of others] does not allow for disproportionate use of
defensive force.” State v. Jennings, 2026 UT 4, ¶ 53, 585 P.3d 1217
(cleaned up). “It is assault . . . when a defendant [uses defensive
force] with a level of violence that is out of proportion to the
provocation.” Id. (cleaned up).

¶29 On the facts of this case, a competent attorney could have
reasonably believed that the evidence presented at trial did not
provide a sufficient basis to support a defense-of-others defense.
And because “an attorney does not perform deficiently by failing
to seek” particular relief when doing so “would be futile,” State v.
Whytock, 2020 UT App 107, ¶ 43, 469 P.3d 1150, Counsel did not
perform deficiently, on this record, by not requesting a defense-
of-others instruction.

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¶30 The evidence does little to establish that Cartwright
subjectively believed defensive force was necessary to protect
Girlfriend. To be sure, he made statements to that effect after
officers arrived on scene, telling them that he had been “helping”
Girlfriend and, later, that she was “going to kill herself.” But all
other evidence in the record cuts the other way. When officers
arrived, Cartwright was clearly angry, even shouting and
swearing at the officers. Such behavior belies any subjective belief
that Girlfriend had just been trying to commit suicide; indeed, a
person who had just been trying to help a loved one fend off a
suicide attempt would likely have been grateful for the
appearance of police officers. Moreover, in the moment,
Cartwright expressed no concern for Girlfriend, calling her a
“criminal” and shouting that he intended to “take [her] to court”
and that she would “go down for this.” Thus, the evidence
supporting Cartwright’s contention that he had a subjective belief
that defensive force was necessary to save Girlfriend from a
suicide attempt is weak.

¶31 But the evidence supporting the notion that Cartwright
had a subjective belief that force was necessary, as weak as it is, is
stronger than the evidence supporting the other elements. The
objective component of the necessity inquiry “is satisfied if the
proverbial reasonable person in the defendant’s position” would
reasonably believe that defensive force was necessary. Clara, 2024
UT 10, ¶¶ 37, 44. Even assuming, for purposes of this part of the
discussion, that Cartwright actually had a subjective belief that
Girlfriend was going to kill herself and that use of defensive force
was necessary to prevent that, there is no reasonable basis in the
evidence to support the notion that any such belief was
objectively reasonable. When Cartwright caught up to Girlfriend,
she was on the ground, on her back, missing some of her clothing.
There was no indication—other than Cartwright’s own later
statement—that Girlfriend was actually attempting to harm
herself. And there was no evidence that, in the moment, she had
any kind of weapon or other means (e.g., pills) of actually

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committing self-harm. Indeed, Cartwright makes no effort to
identify the method of suicide Girlfriend was attempting, and he
does not attempt to explain how holding her down and applying
force to her neck and throat could conceivably be calculated to
deter any such effort. In short, given these facts, the evidence does
not support a conclusion that any belief Cartwright might have
had that use of such force was necessary to deter a suicide attempt
was objectively reasonable.

¶32 Moreover, and for similar reasons, there is no reasonable
basis to conclude that any suicide threat by Girlfriend was
imminent. For a threat to be imminent, it must be “about to occur
at any moment.” Id. ¶ 36 (cleaned up). Cartwright’s actions
leading up to his use of force do not suggest that he believed
Girlfriend was in imminent danger. After Cartwright chased her
out of the car, events paused for a few minutes while “some guy
[from] across the street . . . came over and handed” Girlfriend a
soft drink. There is no evidence that Cartwright asked this
bystander for help or that Cartwright attempted to use defensive
force at that time. A few minutes later, when Cartwright actually
did apply force to Girlfriend, there is likewise no indication—
aside from Cartwright’s later statement to officers—that
Girlfriend was in any imminent danger of self-harm. As noted,
there is no evidence that Girlfriend had any actual means of
immediate self-harm. Indeed, even Cartwright’s own initial
statements to police—shouting profanities, claiming that he had
been “helping” Girlfriend, and threatening to “take [her] to
court”—were not indicative of the presence of any imminent
threat of self-harm. It’s notable that Cartwright did not
immediately ask officers to attend to Girlfriend, something one
would have expected him to do if a threat of self-harm were
imminent at that moment.

¶33 Finally, the force Cartwright used on Girlfriend was
entirely disproportionate to any perceived threat of immediate
self-harm. Even if we assume, for purposes of this part of the

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discussion, that some evidence existed indicating that Girlfriend
was attempting self-harm in that moment, Cartwright does not
explain how holding her down and applying force to her face and
throat for “30 seconds to one minute”—as opposed to, say,
hugging her, attempting to reason with her, or attempting to
disarm her—would be effective and proportionate in helping
someone overcome a threat of self-harm.

¶34 Accordingly, Counsel could have reasonably concluded
that, on this record, there was not a reasonable basis in the
evidence to support a request for a defense-of-others instruction.
On this basis, we conclude that Counsel did not perform
deficiently by not requesting such an instruction. 4

II. Leading Questions

¶35 Next, Cartwright claims that Counsel rendered ineffective
assistance by not objecting to certain questions the prosecutor
asked Girlfriend during direct (and redirect) examination.
Cartwright asserts that the questions were leading and were
objectionable on that basis. In response, the State asserts that some
of the identified questions were not in fact leading and that, for

4. For similar reasons, we also agree with the State’s position that
Counsel could also have concluded that—even if there were some
remote chance that the trial court might have granted a request
for a defense-of-others instruction—a defense-of-others defense
was extremely unlikely to succeed and that Counsel would have
been wise to focus her efforts elsewhere. See State v. King, 2024 UT
App 151, ¶ 34, 559 P.3d 96 (stating that where “there was little, if
anything, to be gained” by making a request, counsel “could
reasonably have decided not to bother”). And for similar reasons,
we agree with the State that, even if Counsel had succeeded in
persuading the court to give a defense-of-others instruction in this
case, there is no reasonable likelihood of a different outcome.

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the others, Counsel could have reasonably opted not to lodge an
objection anyway. We agree with the State.

¶36 Under our rules of evidence, “[l]eading questions should
not be used on direct examination except as necessary to develop
the witness’s testimony.” Utah R. Evid. 611(c). “A leading
question suggests its answer.” State v. Isom, 2015 UT App 160,
¶ 65, 354 P.3d 791. “The vice in a leading question is that it in effect
puts words in the witness’s mouth so the testimony is really that
of the questioner and not the witness.” Id. (cleaned up). “This
usually occurs in so framing a question that it assumes a fact to be
true, or in reciting a fact and merely seeking affirmation from the
witness, or in so phrasing the question as to suggest the desired
answer.” Id. (cleaned up). A question is not considered “leading”
merely because it calls for a “yes” or “no” answer; such questions
“are not leading unless they are unduly suggestive under the
circumstances.” Id. (cleaned up).

¶37 Here, Cartwright identifies seven exchanges between the
prosecutor and Girlfriend in which he claims the prosecutor asked
Girlfriend leading questions. Those exchanges are quoted in full
below. In our view, Counsel could reasonably have concluded
that the first four exchanges contain no leading questions. And
although the other three exchanges do contain leading questions,
Cartwright has not borne his burden of showing that Counsel
rendered ineffective assistance by not objecting to them. We
address each exchange in turn.

A. Exchanges Without Leading Questions

¶38 With regard to four of the identified exchanges, Counsel
could reasonably have concluded that none of the prosecutor’s
questions were objectionably leading, and she could therefore
have reasonably believed that any objection would be futile. After
all, choosing not “to raise futile objections does not constitute
ineffective assistance of counsel.” State v. Christensen, 2014 UT
App 166, ¶ 10, 331 P.3d 1128 (cleaned up).

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¶39 The first instance occurred during direct examination:

Q: [C]ould you breathe freely [when Cartwright
was on top of you]?
A: Yeah, I was trying to, but yeah.
Q: So when you say you were “trying to,” does that
mean you couldn’t?
A: I couldn’t scream.
Q: Okay. Could you breathe?
A: For a second. But at—this only happened for a
second. It didn’t last that long.

¶40 Counsel could reasonably have concluded that this
exchange didn’t contain any leading questions.
Immediately before the exchange, Girlfriend had testified
that Cartwright had been “on top of [her] and holding [her]
down.” The prosecutor asking Girlfriend to clarify the extent of
her ability to breathe while Cartwright was on top of her and
holding her down does not suggest that she could or could not
breathe. To be sure, these questions called for “yes” or “no”
answers, but as already noted, such questions “are not leading
unless they are unduly suggestive under the circumstances.”
Isom, 2015 UT App 160, ¶ 65 (cleaned up). And Counsel could
reasonably have believed that these questions were not unduly
suggestive.

¶41 The second instance also occurred on direct examination:

Q: How did [Cartwright’s hands] feel on your
throat?
A: It was—it was like dry mouth, like cotton mouth,
dry, like, you just can’t seem to swallow, is what
it felt like.
Q: Was there any kind of pain?
A: It was just kind of like you can’t swallow, is what
it felt like.

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Q: Okay. And if you couldn’t swallow, does that
mean you couldn’t breathe?
A: Yeah.

¶42 Similarly here, Counsel could reasonably have believed
that the prosecutor’s questions were not leading. While two of
them did seek “yes” or “no” responses, Counsel could have
concluded that neither of them—even the one asking Girlfriend to
compare her inability to swallow with a potential inability to
breathe—was suggestive enough to warrant an objection.

¶43 The third instance likewise occurred during direct
examination. Immediately prior to this exchange, Girlfriend
testified that, at some point, Cartwright had stopped putting his
hands on her mouth, and the prosecutor asked questions aimed
at placing that moment into a timeline:

Q: Was there anything that you saw that you
believed caused it to stop? Like, was there
anyone else there that showed up, or anything
like that?
A: No.
Q: Did the cops ever arrive?
A: Yeah, the cops finally came.
Q: Okay. And when did they come?
A: Oh, I don’t even remember. This happened—this
was, like, I can’t even—shortly after—after the
fact of after I got out of the car. I don’t even
remember what time that was.
Q: Is that when the pressure on your chest and the
hands on your neck and over your mouth
stopped, is when the cops got there?
A: Yeah.

¶44 For similar reasons, Counsel could have believed that these
questions were not unduly suggestive. Asking whether police
ever arrived is not leading, particularly when evidence of police

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State v. Cartwright

officer involvement had already been introduced. And asking if
the arrival of the police was the event that spurred Cartwright to
release the pressure on her throat is not an unduly suggestive
question, especially here, when much of that information had
already been established through Girlfriend’s prior testimony. Or,
at least, Counsel could have reasonably so concluded.

¶45 The fourth instance occurred on redirect:

Q: [W]hat about the hand on your neck? Was that
holding you gently, or was there pressure?
A: That was holding me. It was—it was soft.
Q: It was soft?
A: Yeah.
Q: Was there any kind of pressure?
A: No.
Q: No pressure at all?
A: Well, there was—I was—wasn’t able to get up, is
what it was.
Q: Okay. Do you remember any kind of squeezing,
or the hand was just there, no pressure?
A: It was there.
Q: Just there.
A: Yeah.
Q: Okay. But you couldn’t breathe?
A: Yeah, I couldn’t breathe.

¶46 Again, Counsel could have reasonably concluded that
these questions were not unduly suggestive. Here, the prosecutor
merely sought additional details about Girlfriend’s prior
testimony. Girlfriend had previously testified that Cartwright’s
hands had been on her neck and that she had not been able to
breathe. These follow-up questions asked Girlfriend to provide
additional details about that pressure. In context, Counsel could
have reasonably believed that these questions were not leading
and therefore not objectionable.

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State v. Cartwright

¶47 For these reasons, Counsel did not render deficient
performance by not objecting to these four exchanges between the
prosecutor and Girlfriend.

B. Exchanges Containing Leading Questions

¶48 The other three exchanges, however, did contain questions
that were objectionable as leading. But we nevertheless conclude
that Cartwright cannot demonstrate ineffective assistance here,
both because Counsel could reasonably have decided not to object
to many of them and because, in any event, Cartwright cannot
demonstrate that any prejudice resulted from Counsel’s decision
not to object to these questions.

¶49 Applicable performance standards do not require
competent defense attorneys “to pursue every claim or defense,
regardless of its merit, viability, or realistic chance for success.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Indeed, in deciding
whether to lodge objections, attorneys are entitled to “pick [their]
battles,” and they do not have “a Sixth Amendment obligation”
to object to everything. State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871;
see also State v. Hart, 2020 UT App 25, ¶ 29, 460 P.3d 604 (“[J]ust
because counsel can make an objection does not mean counsel
must make an objection to avoid rendering ineffective assistance.
Legal objections are an inherently strategic business.”). “We must
view a decision to not object in context and determine whether . . .
failure to do so was objectively unreasonable—i.e., a battle that
competent counsel would have fought.” Ray, 2020 UT 12, ¶ 32.

¶50 Moreover, “[p]rejudice analysis is counterfactual. To
decide whether a trial affected by error is reasonably likely to have
turned out differently we have to consider a hypothetical—an
alternative universe in which the trial went off without the error.”
State v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86; see also State v. Soto, 2022
UT App 107, ¶ 25, 518 P.3d 157 (“Under a counterfactual analysis,
we consider whether, in the absence of the improperly admitted

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State v. Cartwright

evidence, the likelihood of a different outcome is sufficiently high
to undermine our confidence in the verdict.” (cleaned up)).

¶51 The fifth instance occurred on direct examination, after the
jury had viewed the video footage of Girlfriend’s on-scene
interview and after the prosecutor asked Girlfriend to clarify
some of the statements she made during the interview:

Q: What were you comparing that to when you said
you could breathe better?
A: I don’t know.
Q: Like, earlier?
A: From earlier—
Q: —before the cops got there?
A: Yeah.
Q: Okay. So that—does that mean that when that
was—when [Cartwright] was doing that, that
you couldn’t breathe very well?
A: Yeah.

¶52 The last question posed by the prosecutor during this
exchange constitutes a leading question: it suggests its answer
and is unduly suggestive. This is an instance of the questioner
putting “words in the witness’s mouth so the testimony is really
that of the questioner and not the witness.” State v. Isom, 2015 UT
App 160, ¶ 65, 354 P.3d 791 (cleaned up). Counsel could have
objected to this question, and such an objection would likely have
been sustained.

¶53 But, as stated, an attorney need not always lodge even a
valid objection. See Hart, 2020 UT App 25, ¶ 29. Here, Counsel
could have reasonably viewed an objection to this question as a
battle not worth fighting. The jury had already seen the interview
video footage in which Girlfriend stated she had difficulty
breathing when Cartwright was on top of her. Had Counsel
objected, the prosecutor would have been afforded an
opportunity to rephrase the question and may have succeeded in

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State v. Cartwright

eliciting the same testimony anyway. Counsel could have further
believed that this would have simply served to re-emphasize the
point in a way that could have been harmful to the defense. Thus,
Counsel could reasonably have opted not to fight this battle.

¶54 And in any event, we discern no reasonable probability of
prejudice from Counsel’s decision to forgo an objection to this
question. The jury had already seen and heard the substance of
the testimony in question, and even if the jury had not heard the
prosecutor’s leading question and Girlfriend’s subsequent
response, the outcome would very likely have been the same.

¶55 The sixth instance occurred after the jury viewed body cam
footage of Girlfriend’s interview at the scene:

Q: Do you remember why you were breathing
hard?
A: I couldn’t breathe—well, it was because of the
chase that I was running—it was hard to breathe.
Q: Okay.
A: Yeah.
Q: Was it—did it have anything to do with that
weight on your chest or the—
A: Yeah.
Q: —hands at your throat?
A: Well, it was from running.
Q: Okay.
A: Yeah.
Q: Was it also anything to do with that?
A: Yeah.
Q: With the—the hands on the throat?
A: Yeah.

¶56 This exchange also contains leading questions, because
Girlfriend gave an answer to a question about why she had been
breathing hard that the prosecutor apparently did not like, and
the prosecutor then asked leading follow-up questions designed

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State v. Cartwright

to elicit a different and more specific answer. Thus, Counsel could
have lodged an objection, and it may well have succeeded.

¶57 But Counsel could also have reasonably opted not to lodge
an objection. It is intuitive that having a person’s hands on one’s
throat will impair one’s ability to breathe. And the jury had
already seen the interview video in which Girlfriend spoke
through clearly labored breathing and told Officer 1 that she felt
like she was going to “pass out.” She also told officers that she had
trouble breathing normally when Cartwright was on top of her.
And as above, the prosecutor would have been afforded an
opportunity to rephrase the question and re-emphasize the point,
and may well have been able to elicit the same response anyway.

¶58 Moreover, even if the prosecutor had not been able to elicit
the same response to a better-phrased question, we discern no
reasonable probability of a different trial outcome. As noted, the
jury had already heard the substance of the response through the
video evidence, and excising this exchange from the trial would
not have been likely to lead to a different result.

¶59 The seventh instance occurred on redirect:

Q: So was the bulk of his body resting on your
chest?
A: I—I don’t remember.
Q: You don’t remember? Do you remember feeling
a weight when he was on top of you?
A: Somewhat, yeah.
Q: Okay. Do you remember it ever feeling, like,
heavy?
A: Yeah.
Q: Like you couldn’t get up if you wanted to?
A: Yeah.
Q: And it was holding you down, pressing—
A: Yes. Yes.

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State v. Cartwright

¶60 Again, similar to the two prior instances, this exchange
contains leading questions—especially toward the end—because
Girlfriend gave an initial explanation that the prosecutor wasn’t
satisfied with, and the prosecutor then asked follow-up questions
that suggested a different answer. As with the last two exchanges,
Counsel could have lodged an objection, and that objection likely
would have been sustained.

¶61 But as with the last two exchanges, a competent attorney
could have viewed this as a battle not worth fighting because of
the ample other evidence establishing that Cartwright had been
on top of Girlfriend and holding her down, and the jurors would
intuitively have understood that having a grown man on top of
another person would cause that person to feel weight and
pressure. And in any event, Cartwright has not come close to
demonstrating that any prejudice resulted from these questions
having been asked.

¶62 For these reasons, Cartwright has not demonstrated that
Counsel rendered ineffective assistance by not objecting to these
three exchanges. Although some of the questions were leading,
competent counsel could have viewed those leading questions as
battles not worth fighting and chosen, as Counsel did here, not to
object. Additionally, Cartwright has not shown that he was
prejudiced by any of those questions.

III. Cartwright’s Medical Records

¶63 Finally, Cartwright claims that Counsel rendered
ineffective assistance by not seeking admission of medical records
demonstrating that Cartwright had been the victim of a “human
bite” on the day in question. Cartwright asserts that these records
could have been used to impeach Girlfriend’s express denial that
she had bitten Cartwright at the outset of the episode, while the
two were still in their car. These medical records are not contained
in the record, so Cartwright asks us to consider his motion, filed
pursuant to rule 23B of the Utah Rules of Appellate Procedure,

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State v. Cartwright

seeking an order remanding this case to the trial court to
supplement the record with these medical records.

¶64 To obtain a remand order under rule 23B, the defendant
must make a four-part showing. First, the motion “must be
supported by affidavits setting forth facts that are not contained
in the existing record.” State v. Norton, 2015 UT App 263, ¶ 6, 361
P.3d 719 (cleaned up). Second, those affidavits must contain
“allegations of fact that are not speculative.” Id. (cleaned up).
Third, the allegations contained in the affidavits “must show
deficient performance by counsel.” Id. (cleaned up). And finally,
the affidavits “must also allege facts that show the claimed
prejudice suffered by the appellant as a result of the claimed
deficient performance.” Id. (cleaned up). Importantly, the third
and fourth elements require the defendant to “present the court
with the evidence he [or she] intends to present on remand and
explain how that evidence supports both prongs of the ineffective
assistance of counsel test.” State v. Mason, 2024 UT App 171, ¶ 63,
562 P.3d 1158 (cleaned up), cert. denied, 570 P.3d 658 (Utah 2025).
“[I]f the defendant could not meet the test for ineffective
assistance of counsel, even if his [or her] new factual allegations
were true, there is no reason to remand the case, and we should
deny the motion.” State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166.
Here, even assuming—without deciding—that Counsel
performed deficiently in not seeking the admission of
Cartwright’s medical records, Cartwright has not demonstrated
that he was prejudiced by that decision.

¶65 At trial, evidence was presented—in the form of, among
other things, a statement Cartwright made to police at the scene—
that Girlfriend bit him at the outset of the encounter, while they
were still in the car. Officer 2 also testified that he had “noticed
some dry blood on [Cartwright’s] right shoulder, upper arm, and
left forearm.” But Girlfriend, during her testimony, flatly denied
that she had bitten Cartwright. Thus, the medical records showing

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State v. Cartwright

that Cartwright had in fact been the victim of a “human bite” on
the day in question could have been used to impeach Girlfriend.

¶66 But that is the extent of their evidentiary value; indeed,
Cartwright does not argue that he could have used the medical
records for any other purpose. In particular, he does not contend
that Girlfriend’s bite spurred him to defend himself. After all, the
bite in question occurred many minutes before Cartwright’s
assaultive acts, and she was attempting to run away from him, not
bite him further.

¶67 In this case, the impeachment value of the medical records
is just not weighty enough to persuade us that a different trial
outcome would have been likely if the jury had seen the medical
records. Evidence of the bite’s existence was already fairly strong,
as it included not only Cartwright’s on-scene statement but also
Officer 2’s testimony about blood on Cartwright’s shoulder and
arm. And Girlfriend readily admitted that her memory of the
events in question was “[n]ot that great.” Introducing these
medical records would have thus strengthened Cartwright’s
contention that Girlfriend bit him, but it would have had little to
say about the more substantive issues surrounding the assaultive
acts for which he was charged. And on that score, the evidence
against Cartwright was strong, for reasons already discussed.
Thus, we conclude that Cartwright has failed to demonstrate a
reasonable probability of a different outcome in a hypothetical
trial in which the jury saw the medical records demonstrating that
he had been the victim of a human bite on the day in question.

CONCLUSION

¶68 For all of these reasons, we reject each of Cartwright’s
ineffective assistance arguments, deny his rule 23B motion, and
affirm his conviction.

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