State v. Jones

2025 UT App 56

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JORDAN ROBERT JONES,
Appellant.

Opinion
No. 20220912-CA
Filed April 24, 2025

Fourth District Court, Provo Department
The Honorable Robert C. Lunnen
No. 201401579

Dain Smoland, Attorney for Appellant
Derek E. Brown and Daniel W. Boyer,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1 Jordan Robert Jones appeals his convictions—primarily on
three counts of assault against a peace officer—after he drove his
car at high speed past the scene of a roadside DUI investigation
involving multiple officers. He asserts that his trial counsel
(Counsel) rendered ineffective assistance by not objecting when a
sheriff’s deputy who was at the scene testified that he “thought”
Jones “was trying to run [him] over” and that he and another
deputy “felt” that Jones’s conduct “was intentional.” Jones further
asserts that Counsel provided ineffective assistance by not putting
on evidence that one of the officers who was allegedly standing in
the road when Jones drove past was instead standing on a curb
some distance away.
State v. Jones

¶2 We conclude that Jones has not established his first
ineffective assistance claim but that he has established his second
claim with respect to one of the charges of assault against a peace
officer. We therefore affirm in part, reverse in part, and remand
this case for additional proceedings consistent with this opinion.

BACKGROUND 1

The Unrelated Traffic Stop and Jones’s Assault Against Officers

¶3 One evening at about 11:00 p.m. in a residential area of
Eagle Mountain, two Utah County Sheriff’s deputies in a single
patrol truck (Deputy 1 and Deputy 2) pulled over a southbound
motorist. The night “was extremely dark.” The road was
“skinny,” and it “curve[d] to the right” for southbound travel. The
deputies parked behind the stopped vehicle with the driver side
of their patrol truck about three feet further into the road than the
driver side of the stopped vehicle to create an “alleyway of safety”
to use as they walked between their truck and the stopped vehicle.
During the stop, the patrol truck’s front and rear emergency lights
were on, and their dashcam was recording.

¶4 The stop “turned into a DUI investigation,” and Deputy 1
and Deputy 2 called for backup. A third deputy (Deputy 3)
arrived and parked his vehicle behind and about three feet further
into the road than Deputy 1 and Deputy 2’s patrol truck, creating
a roughly six-foot “alleyway” between the driver side of Deputy
3’s vehicle and the driver side of the stopped vehicle. Deputy 3
left his rear emergency lights on. Then a fourth deputy (Deputy 4)
arrived and parked his vehicle facing northbound on the other
side of the road and about “50 to 70 yards” to the north of the

1. On appeal, “we recite the facts in a light most favorable to the
jury’s verdict, but present conflicting evidence to the extent
necessary to clarify the issues on appeal.” State v. Garcia-Mejia,
2017 UT App 129, ¶ 2, 402 P.3d 82 (cleaned up).

20220912-CA 2 2025 UT App 56
State v. Jones

other deputies’ vehicles. As he arrived, Deputy 4 saw the other
three deputies “in the road” moving back and forth between their
vehicles and the stopped vehicle. Deputy 4 left his front grill
emergency lights on.

¶5 The DUI investigation lasted nearly an hour. During that
time, more than two dozen vehicles drove past the scene.
Generally, those vehicles slowed to a “slow, safe, reasonable
speed,” “giving plenty of space for all [of the] deputies on scene”
and keeping their “trajector[ies] . . . away from [the deputies] and
not towards [them].” When those vehicles passed, the beams of
their headlights “would cast . . . away from” where the deputies
were working.

¶6 At one point, however, Deputy 4 was standing behind
Deputy 1 and Deputy 2’s patrol truck “watch[ing] the suspect
vehicle” when he “noticed a set of headlights” approaching from
the north that initially “[swung] far out and away from the traffic
stop” and then “turned slightly towards where [the] traffic stop
was.” Deputy 4 thought this was “odd because the curvature of
the road” had “the tendency to . . . push[] [oncoming headlights]
to the outside of the [curve], . . . not the inside” where the deputies
were working. As the approaching car’s “headlights turned
towards where [he] was standing,” Deputy 4 “heard the RPMs of
the engine increase, quite loudly.” When Deputy 4 “turned to look
at this vehicle, . . . it proceeded at [him] and [his] fellow deputies
at a high rate of speed,” and he “felt the rush off of the wind” as
it passed only “slightly more than 16 inches” from him. Deputy 3
was in his vehicle entering information into his computer when
the car passed. He too heard it “speeding up” and getting “quite
loud,” and when he looked to his left, he also saw it “speeding
very fast right through [the] scene.”

¶7 The car was a Mercedes GLK-Class SUV with a license
plate number beginning with V78. There was one person in the
car, and he was wearing a dark hoodie. Deputy 4 left the DUI

20220912-CA 3 2025 UT App 56
State v. Jones

investigation scene to pursue the car, and he soon saw a Mercedes
GLK-Class SUV with a license plate number beginning with V78
parked in the driveway of a nearby house. He watched the driver,
who was wearing a dark hoodie, exit the Mercedes, and in a “very
loud, authoritative” voice, he ordered the driver to stop. The
driver fled into the open garage of the house. Rather than
immediately pursue the driver, Deputy 4 called for backup.
Subsequent investigation confirmed that Jones was the registered
owner of the Mercedes.

¶8 After backup arrived, Jones’s stepfather came out of the
house and became “very aggressive with law enforcement,
demanding [that they] leave his residence.” He was put in
handcuffs and placed in the back of a patrol vehicle. Jones then
exited the house and was likewise “verbally confrontational with
law enforcement.” He too was placed in handcuffs and put in a
patrol vehicle. Deputies then went to the door of the house and
smelled “a clear, present odor of marijuana emitting from the
house.” They obtained a warrant and searched the house. That
search produced keys to the Mercedes, a sweatshirt matching the
one worn by its driver, marijuana, and drug paraphernalia. The
deputies impounded and conducted an inventory search of the
Mercedes. That search yielded additional marijuana, a handgun,
and ammunition.

The Charges and Trial

¶9 Jones was charged with three counts of assault against a
peace officer based on allegations in the probable cause statement
that he “veer[ed]” and “accelerate[d]” his car toward the deputies
in the road, “missing at least one by mere inches.” He was also
charged with failure to stop for a peace officer, possession of a
firearm by a restricted person, possession of a controlled
substance with intent to distribute, and possession of drug
paraphernalia. The case proceeded to a jury trial.

20220912-CA 4 2025 UT App 56
State v. Jones

¶10 At trial, Deputy 3 and Deputy 4 each testified for the State,
recounting the facts recited above. An evidence technician and a
forensic toxicologist also testified, and the dashcam video from
Deputy 1 and Deputy 2’s patrol truck was played for the jury.

¶11 Deputy 4 testified further about where the deputies were
standing when the Mercedes passed the DUI investigation scene.
He affirmed that he, Deputy 1, and Deputy 2—“all three of
[them]”—were “standing out in the roadway a little ways” behind
Deputy 1 and Deputy 2’s patrol truck when the Mercedes passed
“extremely close to all the deputies.” He later confirmed that they
“were all standing right next to each other on the side of the
roadway.” The prosecutor then asked Deputy 4 “what was going
through [his] mind” when the Mercedes passed, and Deputy 4
testified that he “thought that [the] person [driving the Mercedes]
was trying to run [him] over.” He further averred that after the
Mercedes passed, he and Deputy 1 had “a brief discussion” about
whether Deputy 4 “could leave [the DUI investigation] scene . . .
to go after that person” while maintaining the other deputies’
safety and that during that conversation, they both “felt” that the
driver’s conduct “was intentional.” The prosecutor then asked
Deputy 4 to identify the “factors” he saw “that drew [him] to that
conclusion.” Deputy 4 responded,

The totality of it, where the vehicle had stopped—
or rather, passed my vehicle and swung to the far
outside of the roadway. Again, its headlights didn’t
turn away and cast out into the field, but its
headlights pointed directly at us as we were
standing there. The increase in the speed, based
upon my observation, as well as the audible signal
of the RPMs of that engine coming by.

¶12 After the parties rested, the court instructed the jury that
the three charges of assault against a peace officer were based on
Jones’s alleged conduct toward Deputy 1, Deputy 2, and Deputy

20220912-CA 5 2025 UT App 56
State v. Jones

4, respectively. The jury found Jones guilty on all three of those
charges. It also found him guilty of possession of a firearm by a
restricted person, possession of a controlled substance with intent
to distribute, and possession of drug paraphernalia. The State had
dismissed the charge of failure to stop for a peace officer prior to
the conclusion of trial.

Jones’s Appeal and Rule 23B Motion

¶13 Jones now appeals, asserting as to his convictions of assault
against a peace officer that he was deprived of the effective
assistance of counsel when Counsel did not object to Deputy 4’s
testimony that he “thought that [the person driving the Mercedes]
was trying to run [him] over” and that Deputy 1 and Deputy 4
“felt” that the driver’s conduct “was intentional.”

¶14 Jones also filed a motion under rule 23B of the Utah Rules
of Appellate Procedure, asking for a remand to the district court
to supplement the record in support of three additional ineffective
assistance of counsel claims. See generally Utah R. App. P. 23B(a)
(“A party to an appeal in a criminal case may move the court to
remand the case to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.”). In an unpublished order, we
granted Jones’s motion as to one of those additional claims and
denied it as to the others.

¶15 In support of the claim for which we granted a remand,
Jones had observed that the dashcam video from Deputy 1 and
Deputy 2’s patrol truck shows that when he drove past the DUI
investigation scene, one of the deputies was “standing in the grass
by the side of the road, a full car length (and then some) away
from the passing [Mercedes].” On remand, the parties “stipulated
that [Deputy 2] would testify that he was the [deputy] standing
on the curb as Jones [drove] through the scene.” The district court
therefore supplemented the record with a finding that Deputy 2
“is the deputy seen standing on the curb in the dashcam video as

20220912-CA 6 2025 UT App 56
State v. Jones

Jones drives through the scene.” Jones now argues that Counsel
rendered ineffective assistance as to all of the charges by “fail[ing]
to investigate, discover, and present evidence” of that fact at trial.

ISSUES AND STANDARD OF REVIEW

¶16 We address Jones’s ineffective assistance claims identified
above. “When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” State v. Guerro,
2021 UT App 136, ¶ 25, 502 P.3d 338 (cleaned up).

ANALYSIS

I. Failure to Object to Deputy 4’s Testimony About Jones’s Intent

¶17 Jones first asserts that Counsel rendered ineffective
assistance by not objecting to Deputy 4’s testimony that he
“thought that [the person driving the Mercedes] was trying to run
[him] over” and that he and Deputy 1 “felt” that the driver’s
conduct “was intentional.” Specifically, he contends that Counsel
should have objected under rule 704 of the Utah Rules of Evidence
because the testimony constituted an impermissible legal
conclusion that “invad[ed] the province of the jury” to make its
own finding about Jones’s mental state at the time of the crimes.
He also contends that Counsel should have objected under rule
602 of the Utah Rules of Evidence because the same testimony
“was also impermissible speculation about the interior thoughts
of” Jones.

¶18 “To prevail on a claim of ineffective assistance of counsel,
a criminal defendant must show that (1) ‘counsel’s performance
was deficient’ and (2) ‘the deficient performance prejudiced the
defense.’” State v. Miller, 2023 UT App 85, ¶ 25, 535 P.3d 390

20220912-CA 7 2025 UT App 56
State v. Jones

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), cert.
denied, 540 P.3d 78 (Utah 2023). “A defendant’s inability to
establish either element defeats a claim for ineffective assistance
of counsel.” Id. (cleaned up). To establish deficient performance,
the defendant must “overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” State v. Forbush, 2024 UT App 11, ¶ 25, 544 P.3d 1
(cleaned up), cert. denied, 550 P.3d 995 (Utah 2024). The focus of
this inquiry is reasonableness, and “we judge the reasonableness
of counsel’s challenged conduct, viewed as of the time of
counsel’s conduct.” Id. (cleaned up).

¶19 We now address, in turn, Jones’s rule 704 and rule 602
arguments and conclude, as to each, that Counsel did not perform
deficiently by not lodging an objection.

A. Rule 704

¶20 To establish the charge of assault against a peace officer,
the State was required to prove, among other things, that Jones
intentionally or knowingly “attempt[ed], with unlawful force or
violence, to inflict bodily injury on” a peace officer or that he
recklessly, knowingly, or intentionally “commit[ted] an act, with
unlawful force or violence, that . . . create[d] a substantial risk of
bodily injury to” a peace officer. Utah Code § 76-5-102(2); see also
id. § 76-2-102 (identifying “intent, knowledge, or recklessness” as
the required mental state when an offense does not involve strict
liability and “the definition of the offense does not [itself] specify
a culpable mental state”); id. § 76-4-101(1) (listing the elements of
the offense of attempt); id. § 76-5-102.4 (defining assault against a
peace officer and incorporating the definition of assault from
section 76-5-102). Thus, proof that Jones acted intentionally was
sufficient to satisfy the mental state element of the crime. Jones
contends that Deputy 4’s testimony violated rule 704 by providing
the jury with a legal conclusion regarding Jones’s intent.

20220912-CA 8 2025 UT App 56
State v. Jones

¶21 Under rule 704, “[a]n opinion is not objectionable just
because it embraces an ultimate issue.” Utah R. Evid. 704(a).
“Notwithstanding this rule, opinions that tell the jury what result
to reach or give legal conclusions continue to be impermissible.”
State v. Zimpfer, 2024 UT App 136, ¶ 35, 558 P.3d 111 (cleaned up).

While there is no bright line between responses that
embrace an ultimate issue and those that provide an
impermissible legal conclusion, testimony is likely
to constitute an impermissible legal conclusion if it
is framed in a way that is unhelpful to the factfinder;
blurs the separate and distinct responsibilities of the
judge, jury, and witness; or creates a danger that a
juror may turn to the witness’s legal conclusion
rather than the judge for guidance on the applicable
law.

Id. (cleaned up). “Witnesses quite clearly provide impermissible
legal conclusions when they tie their opinions to the requirements
of Utah law.” Id. ¶ 36 (cleaned up). “On the other hand, when
witnesses have used a term in its ordinary meaning rather than its
legal meaning, we have determined that their testimony was
appropriately admitted.” Id. ¶ 38 (cleaned up).

¶22 Under these standards, Deputy 4’s testimony that he
“thought that [the person driving the Mercedes] was trying to run
[him] over” was not an impermissible legal conclusion. That
testimony did not include the term “intent” or “intentional,” and
it did not suggest that Deputy 4 was trying to provide guidance
on the applicable law. Instead, it was void of legal conclusions,
explanations, or terminology, while being helpful to the jury’s
factual determination of whether Jones acted with the requisite
mental state.

¶23 Deputy 4’s other statement—that he and Deputy 1 “felt”
that the driver’s conduct “was intentional”—admittedly did use
the term “intentional,” which has a legal meaning and constitutes

20220912-CA 9 2025 UT App 56
State v. Jones

a possible element of the charged offense. But Deputy 4 did not
attempt to provide a legal definition of intent. Nor did he mention
the law or suggest that the facts satisfied an element of the crime.
Instead, he made this statement while explaining a discussion he
and Deputy 1 had about whether Deputy 4 could leave the DUI
investigation scene to pursue the driver of the Mercedes without
compromising the safety of the remaining deputies. And the
prosecutor’s follow-up question did not attempt to elicit an
explanation of the law but, rather, the factual “factors” Deputy 4
saw “that drew [him] to [the] conclusion” that the driver of the
Mercedes acted intentionally. Hence, in context, this statement
also did not amount to a legal conclusion. See id. ¶ 41 (holding that
an officer’s testimony was not a legal conclusion where it “made
no mention of the law, let alone suggested to the jury that the facts
. . . ultimately satisf[ied] the ‘without consent’ elements at issue”).

¶24 Because Deputy 4’s testimony did not include a legal
conclusion, Counsel did not perform deficiently by not objecting
to the testimony under rule 704.

B. Rule 602

¶25 Jones argues that Counsel should have objected to the same
testimony on the ground that it violated rule 602 as well. That rule
states (with an exception for expert testimony) that “[a] witness
may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter.” Utah R. Evid. 602. Jones’s rule 602 argument consists of
only a citation to a case confirming that rule 602 “require[s] that
lay witness testimony be based on firsthand knowledge,” State v.
Cegers, 2019 UT App 54, ¶ 29, 440 P.3d 924, and the otherwise
unadorned assertion that Deputy 4’s testimony was
“impermissible speculation about the interior thoughts of [Jones],
rather than direct observation or perception of a lay witness.” This
argument fails to convince us that competent counsel was
required to object to Deputy 4’s testimony under rule 602.

20220912-CA 10 2025 UT App 56
State v. Jones

¶26 “[L]ay opinion testimony as to the mental state of another”
is “neither conclusively nor presumptively inadmissible.” United
States v. Guzzino, 810 F.2d 687, 699 (7th Cir. 1987). 2 Instead, it is
admissible under rule 701 of the Utah Rules of Evidence if it is
”rationally based on the witness’s perception” and “helpful . . . to
determining a fact in issue.” Utah R. Evid. 701; see also Guzzino,
810 F.2d at 699.

¶27 Here, Deputy 4’s lay opinion that the driver of the
Mercedes “was trying to run [him] over” and that the driver’s
conduct “was intentional” was expressly grounded in his
personal perception of where the car’s headlights pointed, the
speed at which the car was traveling, and “the audible signal of
the RPMs of [its] engine coming by.” Accordingly, Counsel could
have reasonably concluded that the court would have
overruled—under rule 701—any objection Counsel might have
made under rule 602 and, thus, reasonably decided not to make a
rule 602 objection. See State v. Ring, 2018 UT 19, ¶ 43, 424 P.3d 845
(determining that the defendant failed to demonstrate trial
counsel’s deficient performance because “under the prevailing
law at the time of trial, trial counsel could have reasonably
believed that an objection was futile”).

¶28 Jones’s rule 704 and rule 602 arguments both fail to
demonstrate Counsel’s deficient performance, and his ineffective
assistance claim related to Deputy 4’s testimony therefore fails.

II. Failure to Present Evidence That Deputy 2 Was Not in the
Road When Jones Drove Past

¶29 Jones next asserts that Counsel rendered ineffective
assistance in defending all of the charges by not “investigat[ing],

2. When interpreting our own rules of evidence, “[w]e may . . .
rely on interpretations of similar federal rules by federal courts to
assist our own interpretation.” Robinson v. Taylor, 2015 UT 69,
¶ 10, 356 P.3d 1230.

20220912-CA 11 2025 UT App 56
State v. Jones

discover[ing], and present[ing] evidence” that Deputy 2 was
standing on the curb, not in the street, when the Mercedes passed
the DUI investigation scene. We conclude that Counsel did
perform deficiently in this regard. We also conclude that
Counsel’s deficient performance prejudiced Jones’s defense
against the charge of assault against a peace officer specific to
Deputy 2. We determine, however, that Counsel’s deficient
performance did not prejudice Jones’s defense with respect to the
remaining charges.

A. Deficient Performance

¶30 Jones was charged with three counts of assault against a
peace officer. One count was specific to Deputy 1, one count was
specific to Deputy 2, and one count was specific to Deputy 4. All
three counts were premised on the theory that Jones recklessly,
knowingly, or intentionally accelerated his car toward the
deputies in the road. In support of that theory, Deputy 4 testified
that he, Deputy 1, and Deputy 2—“all three of [them]”—were
“standing out in the roadway a little ways” behind Deputy 1 and
Deputy 2’s patrol truck when the Mercedes passed “extremely
close to all the deputies.”

¶31 In potential conflict with that testimony, however, the
dashcam video from Deputy 1 and Deputy 2’s truck plainly shows
a deputy standing on the curb, with the DUI suspect’s vehicle
between that deputy and the roadway, when the Mercedes
passes. And the district court’s finding on remand confirms that
the deputy shown standing on the curb is Deputy 2. Jones
therefore contends that Counsel’s failure to “investigate, discover,
and present evidence” that Deputy 2 is the deputy shown in the
video standing on the curb, not in the road, when the Mercedes
passed was deficient performance. We agree.

¶32 “If counsel does not adequately investigate the underlying
facts of a case, . . . counsel’s performance cannot fall within the
wide range of reasonable professional assistance.” State v.

20220912-CA 12 2025 UT App 56
State v. Jones

Templin, 805 P.2d 182, 188 (Utah 1990) (cleaned up). “This is
because investigation sets the foundation for counsel’s strategic
decisions about how to build the best defense.” State v. J.A.L., 2011
UT 27, ¶ 27, 262 P.3d 1 (cleaned up).

¶33 Here, the State based its case of assault against three peace
officers on allegations that Jones accelerated his car toward three
deputies in the road. It supported that case with testimony from
Deputy 4 that he, Deputy 1, and Deputy 2 were all standing in the
road behind Deputy 1 and Deputy 2’s patrol truck and that the
Mercedes passed “extremely close to all the deputies.” Yet the
dashcam video, which was introduced by the State and shown to
the jury in full by the defense, plainly shows a deputy standing
on the curb on the side of the road and separated from the passing
Mercedes by the DUI suspect’s vehicle. Given the assault against
a peace officer charges that were specific to three particular
deputies, including Deputy 2, and the State’s theory of the case,
Counsel’s failure to adequately investigate and identify for the
jury that Deputy 2 was not standing in the road, as Deputy 4
testified, amounted to deficient performance. While “counsel is
not obligated to investigate every possible lead or present every
theory of defense,” State v. Griffin, 2015 UT 18, ¶ 33, 441 P.3d 1166,
counsel performs unreasonably by not following up on a strong,
obvious possibility that known evidence might, with additional
investigation, prove to be substantially exculpatory of a particular
charge.

B. Prejudice as to the Charge of Assault Against Deputy 2

¶34 Counsel’s failure to investigate and identify for the jury
that Deputy 2 was not standing in the road when Jones passed
prejudiced Jones’s defense against the charge of assault against a
peace officer specific to Deputy 2. To satisfy the prejudice prong
of an ineffective assistance of counsel claim, “[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding

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State v. Jones

would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Here, there is a
reasonable probability that had the jury known that Deputy 2 was
not in the road but, instead, standing on the curb on the other side
of the DUI suspect’s vehicle when Jones passed, there is a
reasonable probability that it would have acquitted Jones of the
charge of assault against a peace officer specific to Deputy 2. Thus,
Jones has established his ineffective assistance claim as to that
charge.

C. Prejudice as to the Remaining Charges

¶35 Jones argues additionally that if Counsel had
demonstrated to the jury that Deputy 4 “was factually incorrect
when he testified repeatedly that [Deputy 2] was right next to him
in the roadway when the car passed,” that “would have
undermined not just the [assault against a peace officer charge
specific to Deputy 2], but also every charge [that was dependent
on Deputy 4’s testimony], because it would have impeached his
reliability and credibility as a fact witness.” We disagree that
Counsel’s deficient performance prejudiced Jones’s defense with
respect to the remaining charges against him.

¶36 To determine if prejudice occurred, we must “assess
counterfactual scenarios—that is, what would have happened but
for the [deficient performance].” State v. Garcia-Flores, 2021 UT
App 97, ¶ 27, 497 P.3d 847 (cleaned up). “The counterfactual
analysis requires us to consider a hypothetical—an alternative
universe in which the trial went off without error.” Id. (cleaned
up). We must also “‘consider the totality of the evidence’ and ask
if the alleged error ‘had a pervasive’ or ‘an isolated, trivial effect.’”
State v. Howell, 2016 UT App 90, ¶ 5, 374 P.3d 1032 (quoting
Strickland, 466 U.S. at 695–96).

¶37 We initially consider what would have happened in a
counterfactual world with respect to Jones’s charges of possession

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State v. Jones

of a firearm by a restricted person, possession of a controlled
substance with intent to distribute, and possession of drug
paraphernalia if the jury had learned that Deputy 4’s testimony
about Deputy 2 standing in the road when Jones passed the DUI
investigation scene was demonstrably incorrect. We believe that
the hit to Deputy 4’s credibility that would have occurred in that
world would have been negligible when it came to the gun and
drug charges. The weight the jury clearly gave to the later
discovery of a gun and marijuana in Jones’s car and additional
marijuana and paraphernalia in his residence would have been
but trivially affected by its knowledge that Deputy 4 was wrong
about where Deputy 2 had been standing earlier. We therefore
conclude that Jones’s defense against those charges was not
prejudiced by Counsel’s deficient performance.

¶38 Additionally, the dashcam video shows that Deputy 1,
Deputy 2, Deputy 3, and Deputy 4 were all at the DUI
investigation scene and that only Deputy 2 was on the curb in
front of Deputy 1 and Deputy 2’s patrol truck when the Mercedes
passed. Deputy 4’s testimony that only Deputy 3 was sitting in a
patrol vehicle when the Mercedes passed and that the others were
standing outside was corroborated by Deputy 3. Thus, even if the
jury learned that Deputy 4 was wrong with regard to where
Deputy 2 was standing when the Mercedes passed, we do not
believe that would have changed its assessment of where
Deputy 1 and Deputy 4 were standing. Finally, even if Deputy 4’s
demonstrably incorrect testimony about Deputy 2’s location
might have caused the jury to question Deputy 4’s credibility
regarding how close the Mercedes came in inches when it passed
the deputies in the road, the other testimonial, video, and audio
evidence of Jones’s acceleration, speed, trajectory, and proximity
to the deputies when he passed is sufficiently robust for us to
conclude that there is no reasonable likelihood of a different
outcome on the other charges of assault against a peace officer due
to Counsel’s deficient performance. We therefore affirm those
convictions as well.

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CONCLUSION

¶39 Counsel did not render ineffective assistance by not
objecting to Deputy 4’s testimony regarding Jones’s intent when
he drove past the DUI investigation scene. Counsel did, however,
perform deficiently by failing to investigate and present to the
jury the fact that Deputy 2 was not standing in the road when
Jones drove past. That deficient performance prejudiced Jones’s
defense with regard to the charge of assault against a peace officer
specific to Deputy 2. It did not prejudice Jones’s defense against
the remaining charges. Accordingly, we reverse Jones’s
conviction of assault against Deputy 2 and remand this case for
additional proceedings on that charge consistent with this
opinion. We affirm Jones’s convictions on the remaining charges.

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