State v. Juarez

2021 UT App 53
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
OSCAR EDUARDO G ODINEZ J UAREZ,
Appellant.
Opinion
No. 20190123-CA
Filed May 20, 2021
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 161909011
Brett J. DelPorto, Attorney for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee
J UDGE R YAN M. HARRIS authored this Opinion, in which J UDGE
J ILL M. P OHLMAN and SENIOR J UDGE KATE A PPLEBY concurred.1
HARRIS, Judge:
¶1 	A 	jury 	convicted 	Oscar 	Eduardo 	Godinez 	Juarez 	of
aggravated kidnapping, aggravated robbery, and aggravated
assault. Godinez Juarez2 appeals those convictions, asserting that
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
2. Before the trial court, the attorneys, various witnesses, and the
court referred to the defendant as either “Mr. Godinez” or “Mr.
Godinez Juarez.” Yet in his briefing on appeal, the defendant is
referred to simply as “Juarez.” These discrepancies likely arise
from 	the 	differences 	between 	naming 	conventions 	used 	by
(continued…)

State v. Godinez Juarez
20190123-CA 	2 	2021 UT App 53
his trial attorney rendered constitutionally ineffective assistance
by agreeing to a “dual-jury” trial procedure, and asserting that
the trial court erred in denying his motion for mistrial related to
the prosecutor’s and witnesses’ use of the term “victims” in
referring 	to 	the 	complaining 	witnesses. 	We 	reject 	Godinez
Juarez’s arguments and affirm his convictions.
BACKGROUND3
¶2 	One evening, two seventeen-year-old boys (collectively,
Teens; individually, Teen 1 and Teen 2) went to Godinez Juarez’s
house—a place they had been “once or twice” before—to “hang
out.” When they arrived, Godinez Juarez was not home, but
Teens were greeted by another acquaintance (Codefendant),
with whom they socialized while waiting for Godinez Juarez.
When Godinez Juarez got home, he immediately confronted
Teen 1, “calling him a snitch,” and pointed a handgun “right in
(…continued)
individuals 	of 	non-Spanish 	European 	descent—who 	often
“have a first name, an optional middle name, and a single
last name inherited solely from the father”—and individuals
of 	Hispanic 	descent—who 	often 	“have 	two 	given 	names,
plus 	a 	paternal 	surname 	. 	. 	. 	and 	a 	maternal 	surname.”
See 	Naming 	customs 	of 	Hispanic 	America, 	Wikipedia,
https://en.wikipedia.org/wiki/Naming_customs_of_Hispanic_A
merica [https://perma.cc/R9JQ-N5S7]. To avoid confusion and to
recognize the defendant’s paternal and maternal surnames, in
this opinion we refer to him as “Godinez Juarez.”
3. “In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable
to the verdict.” Noor v. State, 2019 UT 3, n.1, 435 P.3d 221
(quotation simplified).

State v. Godinez Juarez
20190123-CA 	3 	2021 UT App 53
[Teen 1’s] face.” Teen 1 first thought Godinez Juarez was joking
and pushed the gun away, but Godinez Juarez continued to
threaten Teen 1. Teen 2 attempted to intervene, but Codefendant
quickly “smacked” him, took away his cell phone, and produced
a rifle. While pointing the guns at Teens, Godinez Juarez and
Codefendant threatened to “smoke” them, and commanded
them to go downstairs into the basement.
¶3 	Once 	they 	were 	downstairs, 	Godinez 	Juarez 	ordered
Teens to empty their pockets and “to get on [their] knees”; he
then struck Teen 2 on the head with the handgun, and he and
Codefendant 	began 	kicking 	Teens 	“everywhere 	on 	[their]
bodies.” After a while, Godinez Juarez and Codefendant left the
room and when they returned, Codefendant was holding some
“weed eater string” and Godinez Juarez had a “Fiji” brand
plastic water bottle that contained gasoline. Codefendant tied up
Teens with the weed eater string and Godinez Juarez poured the
gasoline onto both Teens. While pouring gasoline onto Teen 2,
Godinez Juarez pressed his foot to Teen 2’s face, causing him to
ingest some of the gasoline. Godinez Juarez then sprayed a
different 	substance—that 	Teens 	at 	first 	thought 	was 	“brake
fluid” but turned out to be “starter fluid”—into Teens’ ears.
After dousing Teens in flammable liquid, Codefendant held a lit
“blunt”4 over Teen 1 and repeatedly brought it close to his body
as 	“if 	he 	was 	going 	to 	let 	it 	go.” 	Godinez 	Juarez 	and
Codefendant also picked up a chainsaw in an effort to further
torment Teens, but were unable to get it started.
¶4 	Throughout the basement ordeal, Godinez Juarez and
Codefendant 	were 	intermittently 	laughing 	and 	repeatedly
4. “A blunt is a street term used to describe a cigar that has been
hollowed out, filled with marijuana, and smoked to ingest the
drug.” Robert S. v. Commissioner of Corr., 221 A.3d 493, 499 n.4
(Conn. App. Ct. 2019) (quotation simplified).

State v. Godinez Juarez
20190123-CA 	4 	2021 UT App 53
threatening to kill Teens, suggesting more than once that they
were going to “take [them] somewhere,” “cut [them] up,” and
bury them. After “stomping and kicking” Teens some more,
Godinez Juarez and Codefendant told them to move into the
garage. In the process of getting up off the basement floor, Teen
1 was able to grab his cell phone, which Codefendant had
confiscated but left nearby, and conceal it in his waistband. Once
in the garage, Godinez Juarez and Codefendant forced Teens to
“roll over” and “lick the floor,” which was covered in dog feces.
After a few minutes, Godinez Juarez and Codefendant left the
room, and Teen 1 was able to pull the cell phone out of his
waistband and dial 911. Once the operator answered, Teen 1
began 	to 	tell 	her 	about 	the 	situation, 	but 	Godinez 	Juarez
returned and Teen 1 had to hang up the phone.
¶5 	On the other end of Teen 1’s 911 call, the operator at first
could not hear anything aside from “a lot of ruffling and some
talking,” but eventually was able to hear someone exclaim,
“[T]hey’re going to kill me.” Based on what the operator and
dispatcher 	could 	glean 	from 	the 	call, 	they 	informed 	the
responding officers that the caller was being held in a garage,
but were not able to give an exact address. As the phone call
continued, the operator was able to triangulate a general GPS
location based on the cell signal and updated the dispatcher with
an approximate address. One of the responding officers (Officer)
was travelling toward the approximate location given by the
dispatcher when he came across Godinez Juarez in an alleyway.
Officer identified himself as a police officer, prompting Godinez
Juarez to attempt to retreat. After Officer “grabbed ahold of
him,” Godinez Juarez looked in the direction of his house and
yelled, “Shut the garage, shut the garage.” At that point, Officer
looked toward the garage and saw that it was partially open, but
did not immediately notice anything out of the ordinary. A few
moments later, however, the garage “opened all the way” and
Teen 1 ran out, shouting expletives and exclaiming, “[T]hese
guys are trying to kill us.”

State v. Godinez Juarez
20190123-CA 	5 	2021 UT App 53
¶6 	Shortly 	thereafter, 	Teen 	2 	was 	able 	to 	partially 	free
himself and make his way out of the garage. After Teens had
exited the garage, and with Godinez Juarez in custody, Officer
used a bullhorn to command any other individuals to come out
based on the belief “that there was possibly another person in
the 	house, 	and 	that 	that 	person 	was 	probably 	armed 	and
dangerous.” After a few minutes, Codefendant exited the house
without further incident and was detained by police.
¶7 	“[A]fter the residence was cleared,” officers searched the
house pursuant to a search warrant. During the search, officers
recovered evidence indicating that Godinez Juarez lived at the
house, including mail addressed to him, his student ID, and his
passport. The officers also found evidence that substantiated
many of the details given in Teens’ account of events, including
a “Fiji water bottle that contained a yellow-like substance,” a can
of “starter fluid,” a chainsaw, and a handgun and rifle hidden in
a 	ventilation 	grate. 	Finally, 	at 	least 	one 	responding 	officer
observed the condition of the garage, noting that he “could smell
the dog feces and urine” as soon as the garage door opened, and
described how “it was everywhere.”
¶8 	Later that night, officers interviewed Godinez Juarez at
the police station. In the interview, Godinez Juarez admitted that
he lived in the house where Teens were found and that Teens
had been there multiple times before. Godinez Juarez also stated
that he believed Teens “were snitching on him,” and that “he
wanted to teach them a lesson” that night. He admitted to
binding Teens’ legs with “weed whacker wire,” and pouring
“clear liquid [on them] from a Fiji bottle,” although he claimed
that he did not realize the liquid was gasoline until he smelled
the fumes as he was pouring it. During the interview, Godinez
Juarez 	exhibited 	a 	“proud” 	demeanor, 	admitting 	that 	he
“slapped [Teens] around” and simultaneously demonstrating a
slapping motion while laughing.

State v. Godinez Juarez
20190123-CA 	6 	2021 UT App 53
¶9 	That same night, officers also interviewed Codefendant.
He was interviewed in a separate room from Godinez Juarez,
and they could not hear each other. During the course of the
interview, Codefendant at first denied any wrongdoing, but
eventually “admitted to tying [Teens] up” with “weed eater
cord” based on the belief that “one of [them] was a snitch.”
Codefendant also admitted to “handling the rifle,” and told
officers where they could find the guns in Godinez Juarez’s
house. Codefendant also told officers that Teens were not his
friends and “they didn’t like [him] and [he] didn’t like them.”
¶10 	The State charged Godinez Juarez with two counts each of
aggravated kidnapping and aggravated robbery, all first-degree
felonies, 	and 	two 	counts 	of 	third-degree-felony 	aggravated
assault.5 The State filed similar charges against Codefendant.
¶11 	As the case proceeded toward trial, Godinez Juarez filed a
motion to sever his trial from Codefendant’s. In response, the
State filed a motion asking the trial court to employ a “dual jury
procedure” to resolve the apparent “Bruton problem”6 posed by
the State’s intention to offer both defendants’ confessions into
evidence at trial. Rather than conduct two entirely separate
trials, the State proposed that just one trial be held, but that the
court 	empanel 	two 	separate 	juries—one 	specific 	to 	each
5. Godinez Juarez was also charged with several drug-related
offenses, but the State later voluntarily dismissed these charges
with prejudice.
6. See generally Bruton v. United States, 391 U.S. 123 (1968)
(holding 	that, 	in 	a 	criminal 	trial 	with 	two 	defendants, 	a
codefendant’s out-of-court statement implicating the defendant’s
guilt cannot be offered against the defendant because it violates
the defendant’s Sixth Amendment right to confront and cross-
examine witnesses).

State v. Godinez Juarez
20190123-CA 	7 	2021 UT App 53
defendant—and ask each defendant’s respective jury to leave the
courtroom 	when 	a 	codefendant’s 	out-of-court 	statement 	(or
other 	evidence 	admissible 	as 	to 	only 	one 	defendant) 	was
presented. In this way, each defendant’s confession would be
heard only by that defendant’s jury. The State asserted in its
motion that a dual-jury trial would serve judicial economy and
would require the witnesses—including Teens in particular—to
testify at only one trial rather than two. Eventually, through his
trial counsel (Trial Counsel), Godinez Juarez agreed to this
procedure and indicated that he did “not object to the State’s
request for dual juries.”
¶12 	The trial court presided over a five-day jury trial, for
which 	it 	empaneled 	two 	separate 	juries. 	To 	ensure 	easy
identification 	of 	the 	jurors, 	the 	court 	required 	members 	of
Godinez 	Juarez’s jury 	to 	wear 	blue 	lanyards, 	and 	required
members of Codefendant’s jury to wear black lanyards. The
court also provided several instructions to ensure that the jurors
understood 	that 	their 	role 	was 	specific 	to 	adjudging 	their
respective defendant’s guilt, and not that of the other defendant.
¶13 	On the second day of trial, Teen 2 testified extensively as
to the events outlined above. During the third day of trial, the
State presented testimony from Teen 1, but he indicated that he
could not remember the incident after two years, and stated that
he “blacked out.” The prosecutor then attempted to refresh his
recollection by presenting him with the police report from that
night, when the following exchange occurred:
Prosecutor: 	When you’ve had a chance to look at
that report, does that refresh your
recollection as to whether you told
the police . . . that [Godinez Juarez]
had accused you of being a snitch?
Teen 1: 	Yeah, somewhat.

State v. Godinez Juarez
20190123-CA 	8 	2021 UT App 53
Prosecutor: 	Well—okay. 	Do 	you 	remember
[Godinez 	Juarez] 	telling 	you, 	you
were a snitch?
Teen 1: 	I don’t remember exactly who said
what, but it was something about . . .
being 	a 	snitch 	between 	me 	and
another victim.
Prosecutor: 	Okay. And who’s the other victim?
Teen 1: 	You said his name was—
At that point, Trial Counsel asked to approach the bench and
lodged an objection, asserting, “I don’t want to object before the
jury just to bring more attention to it, but I don’t think it’s proper
for the . . . witness [to say] victim, and I don’t think it’s proper
for 	the 	[prosecutor] 	to 	say—use 	the 	word 	‘victim.’” 	The
prosecutor 	agreed, 	and 	indicated 	he 	would 	refrain 	from
referring to Teens as “victims.”
¶14 	The State also presented testimony from several officers
and detectives, who testified about the actions they took upon
arriving at the scene. In this context, one officer stated, “I walked
over there because that was where I was directed where the
victims were.” Trial Counsel objected a few minutes later during
a sidebar conference, stating that the officer-witness had “used
the term ‘victim’ again. I would just ask the State . . . to inform
all of the witnesses before they call them not to use that term.”
The court observed that the State was already “aware of that.”
Later that day, a different officer—a detective—was testifying
about his post-incident interview with Teen 1 and, in describing
where the interview took place, referred to the location as “one
of our victim interview rooms.” And during cross-examination,
the detective referred to being in that room with “the victim.”

State v. Godinez Juarez
20190123-CA 	9 	2021 UT App 53
¶15 	This last reference prompted Trial Counsel to “move for a
mistrial on the repeated use of the word ‘victim’ by the State[]”
when referring to Teens. After making the motion, Trial Counsel
recounted each instance in which the word “victim” had been
used. Trial Counsel asserted that this constituted a “repeated
pattern” on the part of the State after there “was a very clear
directive 	from 	[the 	court] 	to 	the 	State 	to 	inform 	all 	of 	its
witnesses not to use that term.” Trial Counsel further argued
that repeatedly “calling people who are not legally established as
victims through a jury verdict as victims . . . invit[ed] prejudice
to the right to [a] fair trial for both defendants,” and that a
curative instruction would “bring[] more attention to the issue
than is necessary.” The trial court disagreed, opining that the
specific uses of the word “victim,” viewed in context, had been
inadvertent and not prejudicial. The court denied the motion for
mistrial, but offered to give the jury a curative instruction if Trial
Counsel requested one. Trial Counsel later agreed to a set of jury
instructions that included such an instruction and, after the close
of evidence, in connection with giving other instructions, the
court instructed the jury that “[c]ertain witnesses have referred
to [Teens] as victims in this case. This was done in error. It is up
to you, and you alone, to determine beyond a reasonable doubt
whether the crimes have been committed in this case.”
¶16 	Also during the third day of trial—the final day of the
State’s 	case-in-chief—the 	State 	offered 	testimony 	from 	a
detective 	who 	served 	as 	the 	case 	manager 	for 	everyone
investigating Codefendant’s case (Case Manager). During direct
examination, Case Manager testified about his participation in
the search of Godinez Juarez’s house, the recovery of several
pieces of evidence, photographs of the evidence and certain
parts of the house, and the chain of custody over that evidence.
Both juries were present for the State’s direct examination of
Case 	Manager. 	At 	the 	conclusion 	of 	the 	State’s 	direct
examination, the court excused both juries for a short break, but
after 	the 	break 	invited 	only 	Codefendant’s 	jury—and 	not

State v. Godinez Juarez
20190123-CA 	10 	2021 UT App 53
Godinez Juarez’s jury—back to the courtroom to hear cross-
examination of Case Manager by Codefendant’s counsel. While
cross-examining Case Manager, Codefendant’s counsel asked a
series of questions designed to cast more of the blame on
Godinez 	Juarez 	than 	on 	Codefendant. 	For 	instance, 	Case
Manager offered his view that Codefendant was only a “short
term” 	visitor 	at 	the 	house, 	that 	the 	house 	appeared 	to 	be
Godinez Juarez’s residence, and that police had no reason to
believe that many of the items discovered during the search of
the 	house 	belonged 	to 	Codefendant. 	Following 	the 	cross-
examination by Codefendant’s counsel, the State chose not to
conduct 	a 	redirect 	examination, 	the 	court 	informed
Codefendant’s jury that the State had rested its case against
Codefendant, and Codefendant’s jury was excused for the day.
Trial Counsel then indicated that he was not going to cross-
examine Case Manager with respect to Godinez Juarez’s case.
Godinez Juarez’s jury then returned to the courtroom, and Case
Manager was excused from the witness stand. Thus, Godinez
Juarez’s jury was not present for any testimony offered by Case
Manager on cross-examination.
¶17 	After calling one more witness to testify against Godinez
Juarez, the State rested its case against him. On the afternoon of
the trial’s third day, Godinez Juarez presented his case-in-chief,
during which he called one witness, but elected not to testify in
his own defense. At the end of the day, after Godinez Juarez
rested his case, the court informed Godinez Juarez’s jury that it
would be excused for the entire fourth day of trial, because that
day would exclusively involve “matters [for] the other jury.”
¶18 	On the fourth trial day, outside the presence of Godinez
Juarez’s 	jury, 	Codefendant 	presented 	his 	case-in-chief 	and
testified in his own defense. In his testimony, Codefendant
admitted 	to 	his 	own 	involvement 	by 	describing 	how 	he
threatened Teens with the rifle, but emphasized that Godinez
Juarez was the primary perpetrator and suggested that he was

State v. Godinez Juarez
20190123-CA 	11 	2021 UT App 53
an 	unwilling 	participant 	and 	was 	himself 	intimidated 	by
Godinez Juarez. Codefendant also testified about his confession
during his police station interview, describing how he had at
first denied any wrongdoing, but “[e]ventually . . . ended up
telling [police] that [he] was the one that tied [Teens] up and
[told police] where they could find the guns.” After Codefendant
rested his case, the State called, as a rebuttal witness, one of the
detectives who interviewed Codefendant; that detective gave
additional testimony about Codefendant’s confession. But as
noted, 	Godinez 	Juarez’s 	jury 	did 	not 	hear 	any 	of 	this
testimony—neither Codefendant’s in-court testimony nor any
testimony about his confession the night of the crime—because it
was not present during the entire fourth day of trial.
¶19 	Also during the fourth trial day, after Codefendant had
rested his case, the court heard argument—outside the presence
of either jury—regarding finalization of the jury instructions for
the two cases. During this discussion, Trial Counsel objected to a
proposed 	instruction 	“suggest[ing] 	that 	if 	a 	jury 	finds 	the
evidence proof beyond a reasonable doubt, they must convict.”
(Emphasis added.) Trial Counsel characterized his objection as
“[e]ssentially a jury nullification argument,” and asserted that
“both the Utah Constitution and the Federal Constitution, when
they were adopted, contemplated the ability of a jury to reject
charges simply because they disagreed with them.” In particular,
Trial Counsel asked the court to change the language of the
relevant instruction from “must” to “may.” Trial Counsel’s sole
argument in this regard was constitutional; he made no statutory
argument and cited no case law; indeed, he acknowledged that
“the weight of the case law [wa]s against” his argument. The
trial court overruled the objection.
¶20 	At 	the 	conclusion 	of 	the 	trial, 	Godinez 	Juarez’s 	jury
returned a guilty verdict on all counts, and the trial court later
sentenced Godinez Juarez to prison.

State v. Godinez Juarez
20190123-CA 	12 	2021 UT App 53
ISSUES AND STANDARDS OF REVIEW
¶21 	Godinez Juarez now appeals, raising two principal issues
for our review. First, he asserts that Trial Counsel rendered
ineffective 	assistance 	by 	agreeing 	to 	the 	dual-jury 	trial
procedure. An ineffective assistance of counsel claim “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 (quotation simplified).
¶22 	Second, he challenges the trial court’s decision to deny his
motion 	for 	mistrial 	related 	to 	the 	prosecutor’s 	and 	certain
witnesses’ use of the term “victim.” The “denial of a motion for
mistrial” is reviewed “under an abuse of discretion standard.”
State v. Vallejo, 2019 UT 38, ¶ 35, 449 P.3d 39.7
7. In addition to the two principal issues addressed herein,
Godinez Juarez also argues that the trial court erred by denying
his request for a jury instruction that would have advised jurors
that they had the ability to acquit even if the State had proved its
case beyond a reasonable doubt. Such an instruction is forbidden
by statute in Utah, as jurors “are bound to follow the law as
stated by the court.” Utah Code Ann. § 77-17-10(2) (LexisNexis
2019). And statutes are binding on courts unless proven to be
unconstitutional. Cf. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22,
27 (1987) (“If Congress intended to reach the issue before the
district court, and if it enacted its intention into law in a manner
that abides with the Constitution, that is the end of the matter;
federal courts are bound to apply rules enacted by Congress
with respect to matters over which it has legislative power.”
(quotation 	simplified)). 	Although 	Godinez 	Juarez 	made 	a
constitutional argument to the trial court, he makes no such
argument 	here, 	and 	does 	not 	otherwise 	explain 	why 	the
governing 	statute 	should 	not 	control. 	Under 	these
(continued…)

State v. Godinez Juarez
20190123-CA 	13 	2021 UT App 53
ANALYSIS
I
¶23 	“Defendants charged together with committing the same
offense are generally tried together,” but “[s]eparate trials may
be required when one defendant’s incriminating out-of-court
statements” would be offered in evidence at trial, and those
statements are “admissible against the declarant but not against
other codefendants.” Elizabeth Williams, Annotation, Propriety of
Use of Multiple Juries at Joint Trial of Multiple Defendants in Federal
Criminal Prosecution, 40 A.L.R. Fed. 3d Art. 4, § 2 (2019). This is
because of the United States Supreme Court’s decision in Bruton
v. United States, 391 U.S. 123 (1968), in which the Court held that,
in 	a 	joint 	trial, 	admission 	of 	a 	codefendant’s 	out-of-court
statements that tend to incriminate the other defendant violate
the other defendant’s “right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment” because the
codefendant cannot be cross-examined without violating the
codefendant’s Fifth Amendment right against compelled self-
incrimination. 	Id. 	at 	126–27. 	One 	potential 	solution 	to 	the
quandary posed by Bruton is holding a joint trial with multiple
juries, one for each defendant. See 40 A.L.R. Fed. 3d Art. 4, § 2.
“In such cases, both or all of the juries generally hear all of the
evidence, but the jury determining one codefendant’s guilt is not
permitted to hear the statement introduced against another
(…continued)
circumstances, Godinez Juarez has not carried his appellate
burden of persuasion on this issue, and we decline to address it
further. See Kendall v. Olsen, 2017 UT 38, ¶¶ 9, 15, 424 P.3d 12
(affirming “on the basis of [the appellant]’s failure to carry his
burden of persuasion on appeal,” without necessarily reaching
the merits of the underlying issue).

State v. Godinez Juarez
20190123-CA 	14 	2021 UT App 53
codefendant if it would not be admissible against the first
codefendant.” Id.
¶24 	In this case, the State asked the trial court to employ a
dual-jury 	trial 	procedure 	in 	trying 	Godinez 	Juarez 	and
Codefendant, and Trial Counsel eventually stipulated to that
request. Godinez Juarez argues that Trial Counsel rendered
constitutionally 	ineffective 	assistance 	by 	acquiescing 	to 	the
State’s dual-jury proposal.
¶25 	“Ineffective assistance of counsel claims arise under the
Sixth Amendment to the United States Constitution, and we
evaluate them under the standard articulated by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984).” State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350 (quotation
simplified). Under Strickland, to establish that Trial Counsel was
constitutionally ineffective, Godinez Juarez must satisfy two
elements: (1) that “counsel’s performance was deficient,” and (2)
that this “deficient performance prejudiced the defense” by
giving rise to “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” 466 U.S. at 687, 694. “A reasonable probability is
a probability sufficient to undermine [our] confidence in the
outcome.” See id. at 694; accord Scott, 2020 UT 13, ¶ 43.
¶26 	“In practice,” however, “we often skip the question of
deficient 	performance 	when 	a 	defendant 	cannot 	show
prejudice.” State v. Roberts, 2019 UT App 9, ¶ 23, 438 P.3d 885;
accord Strickland, 466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness 	claim 	on 	the 	ground 	of 	lack 	of 	sufficient
prejudice, . . . that course should be followed.”). This is because a
defendant asserting an ineffective assistance of counsel claim
“must make a sufficient showing on both parts of this test in
order to establish that counsel provided ineffective assistance,”
and therefore “it is unnecessary to address both components of
the inquiry if we determine that [the defendant] has made an

State v. Godinez Juarez
20190123-CA 	15 	2021 UT App 53
insufficient showing on one.” See State v. Delgado, 2020 UT App
121, ¶ 25, 473 P.3d 234 (quotation simplified).
¶27 	In this instance, to demonstrate prejudice Godinez Juarez
must persuade us that there exists a “reasonable probability”
that the result of his case “would have been different” had he
been 	tried 	through 	a 	standard 	jury 	trial, 	severed 	from
Codefendant’s, rather than through the dual-jury trial employed
here. See Strickland, 466 U.S. at 694. To satisfy this part of
Strickland’s 	test, 	Godinez 	Juarez 	must 	show 	particularized
prejudice in his specific case; allegations of structural prejudice,
or prejudice per se, are generally insufficient in the context of an
ineffective assistance claim. See State v. Garcia, 2017 UT 53, ¶ 36,
424 	P.3d 	171 	(stating 	that 	nearly 	all 	claims 	for 	ineffective
assistance 	“are 	subject 	to 	a 	general 	requirement 	that 	the
defendant affirmatively prove prejudice,” and that the United
States Supreme Court “has even been hesitant to forgo the
prejudice analysis where the ineffective assistance resulted in a
‘structural error’” (quotation simplified)). And because we agree
with the State’s position that Godinez Juarez cannot demonstrate
prejudice under the Strickland test, we proceed directly to that
part of the test, without fully addressing deficient performance.8
8. Although we do not reach the merits of Godinez Juarez’s
argument that Trial Counsel performed deficiently by agreeing
to a dual-jury trial, we recognize the strength of the State’s
argument that a trial attorney’s choice to seek (or stipulate to) a
dual-jury trial will, in many cases, constitute the sort of strategic
decision that we are loath to second-guess in the context of an
ineffective assistance claim. See State v. Ray, 2020 UT 12, ¶ 34, 469
P.3d 	871 	(“If 	it 	appears 	counsel’s 	actions 	could 	have 	been
intended 	to 	further 	a 	reasonable 	strategy, 	a 	defendant 	has
necessarily failed to show unreasonable performance.”); see also
State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993) (stating that “trial
(continued…)

State v. Godinez Juarez
20190123-CA 	16 	2021 UT App 53
¶28 	In attempting to demonstrate prejudice, Godinez Juarez
makes two arguments. First, he complains that the dual-jury
procedure was inefficient, and took longer than a single-jury trial
would have taken, because of the additional logistics of moving
juries in and out of the courtroom, and because of occasional
instances of testimony having to be repeated for each jury. But as
(…continued)
tactics and strategies” are “within the prerogative of counsel and
are 	generally 	left 	to 	counsel’s 	professional 	judgment”). 	We
acknowledge 	that 	some 	state 	courts 	have 	been 	critical 	of
multiple-jury trials. See, e.g., State v. Corsi, 430 A.2d 210, 213 (N.J.
1981) (“[T]he multiple jury procedure . . . can involve substantial
risks of prejudice to a defendant’s right to a fair trial. . . . [T]here
are too many opportunities for reversible error to take place. We
do not recommend it. If it is to be used at all, it should be in
relatively uncomplicated situations which will not require the
excessive moving of juries in and out of the courtroom and
where physical separation of the juries during the entire trial
proceedings 	can 	be 	insured.”). 	But 	every 	federal 	circuit 	to
consider the matter has ruled dual-jury trials acceptable and
constitutional, see Elizabeth Williams, Annotation, Propriety of
Use of Multiple Juries at Joint Trial of Multiple Defendants in Federal
Criminal Prosecution, 40 A.L.R. Fed. 3d Art. 4, § 2 & n.17 (2019)
(collecting cases), and they have been recognized as a viable
option by the American Bar Association, see Am. Bar Ass’n,
Principles 	for 	Juries 	and 	Jury 	Trials 	§ 	13(J) 	(2016),
https://www.americanbar.org/content/dam/aba/administrative/a
merican_jury/2016_jury_principles.pdf [https://perma.cc/HP5T-
V3DY]. Without making any pronouncement about how we
would review a trial court’s contested decision to impose a dual-
jury trial procedure over a defendant’s objection, we simply note
that it may be reasonable for attorneys to ask for (or stipulate to)
dual-jury trials in individual cases, and where that is the case,
deficient performance is not present.

State v. Godinez Juarez
20190123-CA 	17 	2021 UT App 53
the State notes, this argument misses the point: even if Godinez
Juarez’s 	assertion 	about 	inefficiency 	is 	true, 	at 	best 	it
demonstrates that the same result could have been achieved more
quickly through a single-jury trial, not that the “result of the
proceeding would have been different.” See Strickland, 466 U.S. at
694 (emphasis added).
¶29 	Second, Godinez Juarez asserts that he was prejudiced by
certain 	testimony 	presented 	at 	trial. 	But 	the 	only 	specific
testimony he identifies in support of this argument is testimony
offered by Case Manager during cross-examination. Godinez
Juarez 	asserts 	that, 	through 	this 	testimony, 	Codefendant
“blamed [Godinez] Juarez for the drugs police seized because
they were discovered at [Godinez] Juarez’s home,” and notes
that Codefendant “pointed to [Godinez] Juarez as the person
who 	poured 	gasoline 	on 	[Teens] 	because 	[Codefendant’s]
fingerprints were not on the water bottle containing gasoline.”
But as noted, supra ¶ 16, Godinez Juarez’s jury was not in the
courtroom to hear Codefendant’s counsel cross-examine Case
Manager, and therefore that testimony could not have affected
the result in Godinez Juarez’s case.
¶30 	Indeed, our review of the record indicates that the trial
court took great care to make sure neither jury heard evidence
that 	was 	not 	meant 	for 	its 	consideration. 	The 	juries 	wore
different colored lanyards for easy identification and separation.
Furthermore, the court ensured that each jury left the courtroom
whenever examination of a witness might potentially present a
Bruton issue; indeed, Godinez Juarez acknowledges that “cross-
examination almost always had to be conducted separately
before each defendant’s respective jury.” In particular, the court
excused Godinez Juarez’s jury from the courtroom for the entire
fourth day of trial, when Codefendant testified.
¶31 	Finally, our review of the record also indicates that the
evidence against Godinez Juarez—that any jury, even in a single-

State v. Godinez Juarez
20190123-CA 	18 	2021 UT App 53
jury 	scenario, 	would 	have 	heard—was 	convincing: 	strong
evidence indicated that Godinez Juarez lived at the house where
Teens were found; both Teens implicated Godinez Juarez in
police interviews (although at trial Teen 1 claimed not to be able
to 	recall 	certain 	events); 	Teen 	2’s 	trial 	testimony 	strongly
implicated Godinez Juarez; several pieces of physical evidence
found in the house corroborated Teens’ narrative; and, perhaps
most significant, Godinez Juarez confessed to police that he
“slapped [Teens] around,” bound their legs with “weed whacker
wire,” and poured “clear liquid [onto them] from a Fiji bottle.”
¶32 	In 	short, 	Godinez 	Juarez 	has 	not 	undermined 	our
confidence in the result of his trial. See Strickland, 466 U.S. at 694;
Scott, 2020 UT 13, ¶ 43. Under these circumstances, Godinez
Juarez has fallen far short of persuading us that there exists a
reasonable probability that the outcome of his trial would have
been 	different 	if 	the 	trial 	had 	been 	conducted 	in 	a 	more
traditional single-jury format. Because Godinez Juarez has not
shown prejudice, he cannot demonstrate that Trial Counsel
rendered constitutionally ineffective assistance, and we reject his
claim on that basis.
II
¶33 	Godinez Juarez next asserts that the trial court abused its
discretion by denying his mistrial motion based on four uses of
the word “victim” by witnesses and one follow-up reference by
the prosecutor. Although the court denied the motion, it offered
to give a curative instruction, and Godinez Juarez later agreed to
a set of jury instructions that included a curative instruction. An
appellate court “will not reverse a trial court’s denial of a motion
for mistrial absent an abuse of discretion.” State v. Vallejo, 2019
UT 38, ¶ 98, 449 P.3d 39 (quotation simplified). And we will find
an abuse of discretion in this context only if our “review of the
record shows that the incident so likely influenced the jury that

State v. Godinez Juarez
20190123-CA 	19 	2021 UT App 53
the defendant cannot be said to have had a fair trial.” Id.
(quotation simplified).
¶34 	Our 	supreme 	court 	has 	“recognize[d] 	the 	gravity 	of
referring to witnesses as victims during a trial.” See id. ¶ 102. We
of course share this view. But as we explain below, the level of
judicial concern over the use of the term “victim” during trial
depends on the circumstances of the particular case at issue,
including the nature of the defendant’s defense to the charges,
and the context of the individual uses of the term “victim.”
¶35 	First, if it is clear from the undisputed facts—an analysis
partly driven by the defendant’s defense to the charges—that the
complaining witness was in fact the victim of a crime, our
concern 	with 	the 	use 	of 	the 	term 	“victim” 	during 	trial 	is
generally 	low. 	Take, 	for 	instance, 	a 	situation 	in 	which 	a
complaining witness was undoubtedly assaulted, as evidenced
by obvious physical injuries, and the defendant defends the case
not on the ground that no assault occurred but, instead, on the
ground that he or she was not the assailant. In such a scenario,
there is often no dispute that the complaining witness was the
victim of a crime; the only question presented for the jury’s
consideration 	is 	whether 	the 	defendant 	is 	the 	one 	who
committed that crime. Under such circumstances, use of the term
“victim” usually will be appropriate, even during trial before the
jury has reached a verdict. See Jackson v. State, 600 A.2d 21, 24
(Del. 1991) (noting that “[t]he term ‘victim’ is used appropriately
during trial when there is no doubt that a crime was committed
and simply the identity of the perpetrator is in issue”), cited with
approval in State v. Devey, 2006 UT App 219, ¶ 17, 138 P.3d 90. On
the 	other 	hand, 	use 	of 	the 	term 	“victim” 	usually 	will 	be
inappropriate when the defendant defends the case on grounds
that no crime was committed and, concomitantly, that there is no
victim in the case at all. See Devey, 2006 UT App 219, ¶ 17 & n.5
(stating that “where a defendant claims that the charged crime
did not actually occur, and the allegations against that defendant

State v. Godinez Juarez
20190123-CA 	20 	2021 UT App 53
are 	based 	almost 	exclusively 	on 	the 	complaining 	witness’s
testimony,” participants in the trial, including “the trial court,
the State, and all witnesses, should be prohibited from referring
to the complaining witness as ‘the victim’”). In other words,
because it has not yet been conclusively established, prior to the
verdict, that there is in fact a victim in such cases, reference to
the complaining witness as a “victim” can be problematic. See id.
¶ 17 (noting that the term “victim” is defined as “the person who
is the object of a crime,” and use of that term might imply that a
crime has been committed (quotation 	simplified)). One fact
pattern 	in 	which 	this 	scenario 	often 	arises 	is 	where 	a
complaining witness testifies to a nonconsensual sexual assault,
and 	the 	defendant 	defends 	the 	case 	by 	asserting 	that 	the
interactions were consensual. See id.
¶36 	Second, the context of the specific testimony in which the
term “victim” is used can make a difference. For instance, the
identity of the speaker matters, and statements by a trial court
are perhaps most concerning, given that juries tend to view
statements by the court as neutral and authoritative. See Vallejo,
2019 UT 38, ¶ 99 & n.18 (stating that “improper statements made
by the court are serious” and “could give a jury an impression of
partiality”). 	And 	statements 	referring 	to 	the 	particular
complaining witness in the case as a “victim” often are more
concerning than general statements referring to victims of crime
across a particular population. See id. ¶¶ 95, 103 (differentiating
between references to the complaining witnesses as “victims,”
on the one hand, and “more general” uses of the term, on the
other 	hand, 	such 	as 	references 	regarding 	the 	“generalized
experience” of individuals who work with crime victims).
¶37 	In this case, we cannot say that the trial court abused its
discretion 	by 	denying 	Godinez 	Juarez’s 	motion 	for 	mistrial
related to use of the term “victim.” First, the manner in which
Godinez Juarez defended the case made it clear that Teens were
indeed 	the 	victims 	of 	some 	sort 	of 	crime. 	Godinez 	Juarez

State v. Godinez Juarez
20190123-CA 	21 	2021 UT App 53
admitted, in his police interview, that he believed Teens “were
snitching on him,” and that “he wanted to teach them a lesson.”
He admitted that he “slapped [Teens] around,” and that he had
bound their legs with “weed whacker wire,” and poured liquid
on them from a Fiji water bottle. Constrained by this evidence,
Trial 	Counsel 	acknowledged 	during 	closing 	argument 	that
something had happened to Teens, stating, “That’s not to say that
nothing occurred in the house.” Trial Counsel then appeared to
concede that Godinez Juarez was in the house when the events
in question occurred, and suggested that “had the State charged
different crimes,” those might have been “a better fit.” Indeed, as
the State accurately points out, “[t]here was no dispute” at trial
that Teens “were the ‘victims’ of something,” and “[t]he only
question—as 	argued 	to 	the 	jury—was 	whether 	there 	was
sufficient evidence to convict Godinez Juarez of the specific
crimes” of which he was accused. Under circumstances like this,
use of the term “victim” is not inappropriate.
¶38 	Moreover, 	the 	context 	of 	the 	specific 	references 	to
“victims” indicates that the references were largely innocuous,
and unlikely to have so “influenced the jury that the defendant
cannot be said to have had a fair trial.” See id. ¶ 98 (quotation
simplified). Two of the references were made by a detective,
who explained, without being prompted, that he interviewed
Teen 1 in a “victim interview room.” Another reference—also
unsolicited—was made by one of the responding officers, who
stated that, upon arriving at the scene, he walked over to “where
the victims were.” And another reference came unsolicited from
Teen 1, who during his testimony stated that someone had called
him and “another victim” snitches, apparently referring to Teen
2. 	The 	only 	other 	reference 	was 	by 	the 	prosecutor, 	who
reflexively responded to Teen 1’s use of the phrase “another
victim” by asking who that “other victim” was. We agree with
the trial court that, in the context of this five-day trial, these five
instances 	were 	inadvertent, 	cursory 	utterances 	that 	were
unlikely to have materially influenced the jury’s view of the case,

State v. Godinez Juarez
20190123-CA 	22 	2021 UT App 53
especially given the strength of the State’s evidence. Cf. id. ¶ 100
(holding that, “given the context of the single statement” when
the court used the word “victim,” the “court did not abuse its
discretion by denying the motion for a new trial” (emphasis
added)); Devey, 2006 UT App 219, ¶ 18 (concluding that, “even if
the trial court erred by denying” the defendant’s “motion in
limine to prohibit the State and its witnesses from referring to
the [complaining witness] as ‘the victim,’” “the solitary reference
to the [complaining witness] as ‘the victim,’ in this case was not
prejudicial . . . and constituted harmless error”).
¶39 	Finally, 	we 	note 	that 	the 	trial 	court 	gave 	a 	curative
instruction, a tool that can sometimes, depending upon the
“context” in which the statements were made, mitigate any
prejudice caused by the use of the term “victim.” See Vallejo, 2019
UT 38, ¶¶ 99–100. In Vallejo, the defendant faced several counts
of forcible sexual abuse and moved for a mistrial based on
multiple references by witnesses and the trial court itself using
the word “victim.” Id. ¶¶ 90–97. Specifically, “a police officer
used the term ‘victim’ three times while testifying,” an expert
witness used the term “a total of nine times,” and the judge
“referred to [one of the complaining witnesses] as a ‘victim’
while responding to an objection.” Id. ¶¶ 25, 28, 29. Our supreme
court, while cautioning that “improper statements made by the
court are serious,” held that this was not reversible error in part
because the trial “court gave a curative instruction.” Id. ¶¶ 99–
100. In Godinez Juarez’s trial, the five references and uses of
“victim” were much less frequent and egregious than those in
Vallejo—where the word was uttered a total of thirteen times, see
id. ¶ 91—particularly because here the trial court itself never
referred to either of the complaining witnesses as “the victim.”
And because these comparatively more severe circumstances in
Vallejo could properly be mitigated by a curative instruction, we
have no reason to conclude differently here. See State v. Wright,
2013 UT App 142, ¶ 42, 304 P.3d 887 (stating that, “in the absence
of any circumstances suggesting otherwise, courts presume that

State v. Godinez Juarez
20190123-CA 	23 	2021 UT App 53
the 	jury 	follows 	[jury] 	instructions” 	(quotation 	simplified));
accord Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (“The
crucial assumption underlying the system of trial by jury is that
juries will follow the instructions given them by the trial judge.”
(quotation simplified)).
¶40 	For all of these reasons, the trial court did not abuse its
discretion 	by 	denying 	Godinez 	Juarez’s 	motion 	for 	mistrial
because it is not reasonably likely that the five sporadic and
unintentional uses of the word “victim” influenced the jury to a
level that put the trial’s fairness in question.
CONCLUSION
¶41 	Godinez 	Juarez 	has 	failed 	to 	carry 	his 	burden 	of
demonstrating that he suffered prejudice from the use of a dual-
jury trial procedure in this case, and on that basis we reject his
claim that Trial Counsel rendered constitutionally ineffective
assistance by stipulating to that procedure. And the trial court
did not abuse its discretion in denying Godinez Juarez’s motion
for mistrial resulting from five uses of the term “victim” at trial.
¶42 	Affirmed.