State v. Bush

2025 UT App 87

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JEFFREY WAYNE BUSH,
Appellant.

Opinion
No. 20221012-CA
Filed June 5, 2025

Fourth District Court, Heber Department
The Honorable Jennifer A. Mabey
No. 201500061

Ramon Ortiz, Debra M. Nelson, and Benjamin Miller,
Attorneys for Appellant
Derek E. Brown and Jonathan S. Bauer,
Attorneys for Appellee

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

ORME, Judge:

¶1 Jeffrey Wayne Bush appeals his conviction of third-degree
felony criminal mischief, arguing that the district court should
have granted a directed verdict in his favor and that his counsel
(Counsel) provided constitutionally ineffective assistance in
several regards. We reject Bush’s claims and affirm.
State v. Bush

BACKGROUND 1

¶2 Bush advertised a room for rent in his house. Gabby 2
responded to the ad and moved in. Almost immediately, their
relationship became sexual. But the “honeymoon” did not last
long. In March 2020, nine days after Gabby moved in, Bush
invited her parents over for dinner. He later claimed he wanted to
meet them to try “to figure out a way to get [Gabby] out of the
house.” But after her parents left, Gabby and Bush shared a bottle
of wine and had sex. Bush then went upstairs and locked the door
to his bedroom, wanting to sleep. Gabby started knocking on his
bedroom door, and Bush asked her to leave him alone. But Gabby
persisted, asking to hug Bush. The two argued through the door
for several minutes, much of which Bush recorded on his cell
phone.

¶3 Eventually, Bush threatened to call the police. He then
opened his bedroom door and tried to move into the bathroom to
use the work phone he had left there to make the call. Gabby
followed him into the bathroom, holding her own cell phone.
Thinking it might be the cell phone he had just used to record their
conversation, Bush grabbed the phone out of Gabby’s hands.
Upon realizing that it was not his, he repeatedly smashed it
against the doorframe, breaking it into pieces. He collected the
fragments and discarded them in a dumpster outside.

¶4 Gabby later testified that Bush then grabbed her by the hair
and pulled her down some stairs, threatened to kill her, and
pressed his arm against her chest and throat, which restricted her

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Brown, 2025 UT App 31, n.1, 566 P.3d 737 (quotation simplified).

2. A pseudonym.

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State v. Bush

breathing, but the jury apparently did not find her credible in this
regard. Using another cell phone she had in her pocket, she
eventually managed to call 911. Police arrived and took Bush
outside to separate him from Gabby. Gabby told an officer
(Officer) that Bush had pushed her, broken her phone, and put his
arm over her throat. And she showed Officer a bruise on her chest.

¶5 Officer then spoke to Bush outside. Although it was “very
dark” outside, Officer’s body camera captured audio of Bush
explaining what had happened that night. Bush told Officer that
he had “pushed [Gabby] away” because “she wouldn’t leave
[him] alone.” When Officer said, “It’s more than a push,” Bush
replied, “Yeah. I agree. I’m ready to go to jail.” Officer then asked,
“And what happened with the phones?” Bush said, “I broke one
of her phones,” and explained, “Yeah, I tried to get her to leave
and leave me alone and she wouldn’t do it.” Bush again said,
“Yeah, I’m . . . ready to go to jail. I did everything, you know.” He
then opened a dumpster and showed Officer the pieces of the
broken phone. Officer asked Bush, “Why did you break the
phone?,” and Bush answered, “I [was] just trying to get her to
leave me alone, man.”

¶6 Bush was charged with aggravated assault and criminal
mischief. In relevant part, the information charged him with
“Criminal Mischief (Domestic Violence)” under then-Utah Code
section 76-6-106(2)(c) for causing pecuniary loss between $1,500
and $5,000—a third-degree felony under then-section
76-6-106(3)(b)(ii). 3 But at the preliminary hearing, the State
recognized that due to a “clerical error,” the value of the
pecuniary loss should have been listed as $500, making the
offense a class A misdemeanor that would then be enhanced to a

3. Utah Code section 76-6-106 has since been amended, and this
particular offense has been renumbered. See Utah Code Ann.
§ 76-6-106.1(2)(b) (LexisNexis Supp. 2024). We cite the version in
effect at the time of the incident.

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State v. Bush

third-degree felony due to a prior domestic violence conviction.
The court bound Bush over on both charges.

¶7 At the beginning of the two-day trial, the court read the
information to the jury. The court described the criminal mischief
charge as “Count 2, criminal mischief, domestic violence
enhancement,” but then, apparently forgetting the correction
made at the preliminary hearing, mistakenly stated the
requirement that Bush’s “conduct caused or was intended to
cause pecuniary loss equal to or in excess of $1,500 but . . . less
than $5,000 in value.”

¶8 At trial, Gabby testified about her version of the events
outlined above, saying Bush had “smashed” her “brand-new
iPhone” against the wall. Officer testified about his conversation
with Bush, and the body camera recording of that conversation
was played for the jury. At the close of the State’s case, Bush
moved for a directed verdict, with Counsel stating, “Judge, at this
time we’d make a motion for a directed verdict that the State has
not presented sufficient evidence to make their case and for the
case to go to the jury. That’s all.” The court denied the motion.

¶9 Bush then testified in his own defense. He stated that he
“grabbed the phone from” Gabby and admitted, “I did smash her
phone.” He also admitted that he knew it was Gabby’s phone
when he did so. On cross-examination, Bush testified that, after
the incident but prior to trial, he had paid Gabby $600 for breaking
the phone. And he acknowledged that “breaking that phone was
not justified.”

¶10 At the close of trial, the court discussed the final jury
instructions with the parties. The court read the instruction
regarding the criminal mischief charge, which stated that “the
defendant, Jeffrey Wayne Bush, is charged in Count 2 with
committing criminal mischief, domestic violence . . . . You cannot
convict him of this offense unless based on the evidence you find
beyond a reasonable doubt” each of the elements of the offense,

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State v. Bush

including “pecuniary loss equal to or greater than $500.” The
court then asked the parties whether that instruction was
acceptable. Both Counsel and the State affirmed that it was. The
court then instructed the jury accordingly.

¶11 The jury acquitted Bush of aggravated assault but found
him guilty of criminal mischief. After the jury was dismissed, the
State addressed the criminal mischief charge, saying, “[W]e had
discussed as to Count 2, based on the value, that charge is a Class
A misdemeanor because it’s over $500.” The State also reminded
the court that the parties had agreed to provide proof of Bush’s
prior domestic violence conviction so the court could then
determine “whether or not there was a domestic violence
enhancement.” Counsel acknowledged that the defense had
“stipulated to that.” The court then received evidence of Bush’s
prior plea in abeyance to domestic violence, and the criminal
mischief charge was entered as a third-degree felony given the
domestic violence enhancement.

ISSUES AND STANDARDS OF REVIEW

¶12 On appeal, Bush argues that the district court erred in
denying his motion for a directed verdict because the State failed
to present any evidence of the value of Gabby’s cell phone—an
essential element of criminal mischief. Generally, “when an
appellant challenges the denial of a motion for a directed verdict
based on the sufficiency of the evidence, the applicable standard
of review is highly deferential” and we will uphold the denial “if,
when viewed in the light most favorable to the State, some
evidence exists from which a reasonable jury could find that the
elements of the crime had been proven beyond a reasonable
doubt.” State v. Hawkins, 2016 UT App 9, ¶ 32, 366 P.3d 884
(quotation simplified), cert. denied, 379 P.3d 1181 (Utah 2016). And
ordinarily, our review is limited to the evidence presented before
the motion for directed verdict is made. But, as we discuss in Part
I, where a defendant later introduces evidence on the very point

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State v. Bush

on which he previously claimed insufficiency, he waives the
directed verdict motion altogether. See State v. McCallie, 2016 UT
App 4, ¶ 49, 369 P.3d 103 (concluding the district court did not err
in denying the defendant’s motion for a directed verdict “because
the State and the defense presented sufficient evidence to support”
conviction) (emphasis added).

¶13 Bush also argues that Counsel provided ineffective
assistance by failing to (1) argue that Bush did not act
intentionally in smashing the phone, (2) object to the purportedly
flawed jury instruction on criminal mischief, and (3) file a motion
to suppress Bush’s statements to Officer. “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. Perkins, 2024 UT
App 101, ¶ 11, 554 P.3d 363 (quotation simplified).

ANALYSIS

I. Directed Verdict

¶14 Bush argues that the district court should have granted his
motion for a directed verdict because the State, during its
case-in-chief, failed to present any evidence of the value of
Gabby’s smashed cell phone. 4 But Bush himself presented

4. The State argues that Bush’s unfocused directed verdict motion
did not preserve this issue for appeal. But because the merits of
this claim are easily resolved in the State’s favor, we address it
anyway. See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415
(“If the merits of a claim can easily be resolved in favor of the
party asserting that the claim was not preserved, we readily may
opt to do so without addressing preservation.”) (quotation
simplified), cert. denied, 496 P.3d 718 (Utah 2021).

20221012-CA 6 2025 UT App 87
State v. Bush

evidence on this point, so any error the court made in denying the
motion is inconsequential.

¶15 In State v. Stockton, 310 P.2d 398 (Utah 1957), our Supreme
Court recognized that a defendant “cannot complain of the
insufficiency of the evidence to sustain the verdict, though the
state failed to make a case, if he himself proved one for it.” Id. at
400 (quotation simplified). In doing so, the Court “adopted the
waiver rule,” embracing the notion that “presenting evidence
after denial of a motion for directed verdict constitutes waiver of
the motion to direct.” State v. McCallie, 2016 UT App 4, ¶ 44, 369
P.3d 103 (quotation simplified).

¶16 In this case, Bush was charged with criminal mischief
under then-Utah Code section 76-6-106(2)(c), which required that
the defendant “intentionally damages, defaces, or destroys the
property of another.” And section 76-6-106(3)(b) conditioned the
level of the offense on the monetary value of the destroyed
property. While the State elicited testimony from Gabby that the
phone was a “brand-new iPhone,” it did not introduce evidence
of the actual value of the phone. But following the unsuccessful
directed verdict motion, Bush testified that prior to trial, he had
paid Gabby $600 for breaking the phone. In doing so, under
Stockton’s waiver rule, he waived the insufficiency argument he
claims to have raised in his directed verdict motion because he
himself supplied the missing evidence as to the value.

¶17 Bush resists this conclusion, arguing that Stockton is
distinguishable on its facts because “there’s practically no overlap
between a broken phone and [the] attempted burglary” that was
at issue there. See 310 P.2d at 398. But Stockton recognized “the
general rule that, if the entire evidence is sufficient to sustain a
conviction, the introduction of evidence by the defense, after the
court has refused to direct a verdict of acquittal at the close of the
prosecution’s case, amounts to a waiver of the motion to direct.”
Id. at 400 (emphasis added; quotation otherwise simplified). Thus,

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State v. Bush

the factual differences between Stockton and the case at hand are
immaterial to the application of the waiver rule.

¶18 Bush also points to cases where he claims we declined to
apply Stockton’s waiver rule, urging us to do the same here. See,
e.g., State v. Johnson, 2023 UT App 145, ¶ 49 n.10, 540 P.3d 744
(noting the waiver rule but declining to further address it because
the appellant did not put it at issue on appeal), cert. denied, 544
P.3d 458 (Utah 2024); Salt Lake City v. Howe, 2016 UT App 219, ¶ 7
n.1, 387 P.3d 562 (declining to address the waiver rule because
“the evidence produced after the motion for a directed verdict
neither substantially undercut the City’s case-in-chief, nor
provided inculpatory evidence that aided the City”); McCallie,
2016 UT App 4, ¶¶ 42–45 (declining to address the waiver rule
because “the parties apparently agree that we may assess the
sufficiency of the evidence in light of the entire record”). But in
any event, Stockton is Utah Supreme Court precedent to which we
are bound. See In re adoption of B.N.A., 2018 UT App 224, ¶ 23, 438
P.3d 10 (noting that “we are duty-bound to follow the path” our
Supreme Court has set). That precedent requires that here, where
Bush introduced evidence on an element on which he previously
claimed insufficiency, he effectively waived his directed verdict
motion based on that insufficiency, which no longer existed after
he put on his case.

¶19 Thus, any error the district court made in denying the
directed verdict motion was inconsequential. 5

5. Bush also argues that State v. Stockton, 310 P.2d 398 (Utah 1957),
is no longer good law under United States Supreme Court
precedent and should be overruled. To the extent that he raises
these issues in anticipation of review by our Supreme Court, he
has preserved them. See State v. Brown, 2025 UT App 31, ¶ 14 n.4,
566 P.3d 737. But this is an issue left to that Court, so we do not
(continued…)

20221012-CA 8 2025 UT App 87
State v. Bush

II. Ineffective Assistance of Counsel

¶20 Bush contends that Counsel provided ineffective
assistance by failing to argue that Bush lacked the criminal intent
to destroy Gabby’s phone, failing to object to the jury instruction
on criminal mischief, and failing to move to suppress
incriminating statements Bush made to Officer. To prevail on
these claims, Bush “must first show that counsel’s performance
was deficient, and second, that the deficient performance
prejudiced the defense.” State v. Forbush, 2024 UT App 11, ¶ 25,
544 P.3d 1 (quotation simplified), cert. denied, 550 P.3d 995 (Utah
2024). He “must establish both deficient performance and
prejudice,” and “if either is lacking, the claim fails and this court
need not address the other.” Id. ¶ 26 (quotation simplified).

¶21 To establish deficient performance, Bush “must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. ¶ 25
(quotation simplified). “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. (quotation simplified). “Even if a court concludes that counsel
made an error, the ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Miller, 2023 UT App 85,
¶ 26, 535 P.3d 390 (quotation simplified), cert. denied, 540 P.3d 78
(Utah 2023).

¶22 And to establish prejudice, Bush “must show that there is
a reasonable probability that, but for Counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Forbush, 2024 UT App 11, ¶ 25 (quotation simplified). “A

address it. See id.; State v. Sundara, 2021 UT App 85, ¶ 60, 498 P.3d
443 (“[T]his court lacks the authority to overrule Utah Supreme
Court precedent.”), cert. denied, 502 P.3d 271 (Utah 2021).

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State v. Bush

reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (quotation simplified). “When
evaluating prejudice, an appellate court should consider the
totality of the evidence, taking into account such factors as
whether the errors affect the entire evidentiary picture or have an
isolated effect and how strongly the verdict is supported by the
record.” Miller, 2023 UT App 85, ¶ 27 (quotation simplified).

¶23 We address each of Bush’s ineffective assistance claims
under this standard.

A. Lack of Intent

¶24 Bush first contends that Counsel was ineffective in failing
to argue that he lacked the intent to commit criminal mischief. In
particular, Bush argues Counsel should have renewed the motion
for a directed verdict at the close of all the evidence based on the
lack of intent, requested jury instructions on the affirmative
defenses of self-defense and extreme emotional distress, or
argued in closing arguments that Bush lacked intent. But Bush
admitted—both in his conversation with Officer, which was
played for the jury, and in his trial testimony—that he had
destroyed the phone. And he testified that he knew it was Gabby’s
phone before he smashed it. Bush also admitted in his
conversation with Officer that he smashed the phone because he
“was just trying to get [Gabby] to leave [him] alone.” Given all
this, reasonable counsel could conclude that it would be futile to
argue that Bush somehow broke the phone unintentionally. See
State v. Baer, 2019 UT App 15, ¶ 7, 438 P.3d 979 (“Trial counsel’s
decision not to raise a futile motion for a directed verdict would
not be deficient performance.”) (quotation simplified). And
because Bush also acknowledged that “breaking that phone was
not justified,” it was reasonable for Counsel not to request an
instruction on affirmative defenses either. See State v. Arnold, 2023
UT App 68, ¶ 67, 532 P.3d 1267 (concluding that where
“affirmative defenses were not available” to the defendant, “it

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State v. Bush

was neither deficient performance nor prejudicial for Counsel not
to request instructions on them”), cert. denied, 540 P.3d 78 (Utah
2023). Thus, Bush cannot demonstrate deficient performance in
this regard.

B. Criminal Mischief Instruction

¶25 Bush also argues Counsel was ineffective in failing to object
to the jury instruction on the elements of criminal mischief. At the
beginning of his trial—despite the State’s acknowledgment that it
contained a “clerical error” regarding the monetary value—the
court read from the amended information, which charged Bush
with “Criminal Mischief (Domestic Violence)” and which
indicated that Bush destroyed property worth between $1,500 and
$5,000. But at the end of trial, the court correctly instructed the
jury that to convict Bush of criminal mischief, it must find that he
had destroyed property worth at least $500. Bush argues Counsel
should have contested the initial instruction, as it “lowered the
State’s burden by a factor of three,” allowing it to prove Bush
committed felony criminal mischief based on a misdemeanor
monetary value.

¶26 But Bush was convicted of third-degree felony criminal
mischief based on a domestic violence enhancement to which he
stipulated—not based on the monetary value of Gabby’s phone.
Thus, he cannot show he was prejudiced by Counsel’s failure to
object to the final instruction given.

C. Lack of Suppression Motion

¶27 Finally, Bush argues that Counsel was ineffective in not
filing a motion to suppress the recording of his conversation with
Officer. Bush argues the incriminating statements he made during
this conversation should have been suppressed because he was

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State v. Bush

subjected to a custodial interrogation in violation of his Miranda
rights. 6

¶28 “The Fifth Amendment to the United States Constitution
provides that no person shall be compelled in any criminal case
to be a witness against himself.” State v. Fredrick, 2019 UT App 152,
¶ 28, 450 P.3d 1154 (quotation simplified), cert. denied, 458 P.3d 748
(Utah 2020). “To protect this right against self-incrimination, the
United States Supreme Court held, in Miranda v. Arizona, 384 U.S.
436 (1966), that individuals who are in police custody must be
apprised of their rights prior to any questioning.” Fredrick, 2019
UT App 152, ¶ 28 (quotation simplified). These “Miranda
warnings are not required every time police ask someone
questions. But due to their critical importance, Miranda warnings
must be given to a defendant subject to custodial interrogation.”
State v. Jessop, 2023 UT App 140, ¶ 38, 540 P.3d 713 (quotation
simplified), cert. denied, 550 P.3d 998 (Utah 2024). “Where an
individual is subject to custodial interrogation and not given
Miranda warnings, any statement made by that individual is
inadmissible at trial.” Id. (quotation simplified).

¶29 “Custodial interrogation occurs where there is both
(1) custody and (2) interrogation.” State v. Maestas, 2012 UT App
53, ¶ 48, 272 P.3d 769 (quotation simplified). The parties do not
contest whether Bush’s conversation with Officer was an

6. The State notes that there is no recording of the five-minute
period in which Bush was outside with a different officer and
argues that this “gap in the record is fatal to Bush’s
ineffective-assistance claim” as he could have waived his Miranda
rights prior to speaking with Officer. But what occurred during
these five minutes was not discussed at trial. It was the
incriminating statements made during Bush’s conversation with
Officer that led to his arrest. And the record is adequate for us to
evaluate whether those statements should have been suppressed.

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State v. Bush

interrogation, so we focus only on whether Bush was in custody
when it occurred.

¶30 “For Miranda purposes, ‘custody’ is a term of art that
specifies circumstances that are thought generally to present a
serious danger of coercion.” Jessop, 2023 UT App 140, ¶ 40
(quotation simplified). “Questions of a suspect’s custody are to be
analyzed using a two-step analysis.” Id. (quotation simplified).
“The initial step is to ascertain whether, in light of the objective
circumstances of the interrogation, a reasonable person would
have felt he or she was not at liberty to terminate the interrogation
and leave.” Id. (quotation simplified). “If the court finds that an
individual’s freedom of movement was not curtailed, then the
person was not in custody for Miranda purposes and the court’s
analysis ends there.” Id. But “if the court does find that an
individual’s freedom of movement was curtailed, the focus turns
to whether the relevant environment presented the same
inherently coercive pressures as the type of station house
questioning at issue in Miranda.” Id. (quotation simplified).

¶31 “The first part of this inquiry—whether a reasonable
person would have felt free to leave—is an objective one.” Id. ¶ 41
(quotation simplified). “Relevant factors include, but are not
limited to, the location of the questioning, its duration, statements
made during the interview, the presence or absence of physical
restraints during the questioning, and the release of the
interviewee at the end of the questioning.” Id. (quotation
simplified).

¶32 Here, Bush’s conversation with Officer took place just
outside his own home—not in a police car or at the police station,
settings that are “inherently coercive.” State v. Goddard, 2021 UT
App 124, ¶ 51, 501 P.3d 1188, cert. denied, 505 P.3d 55 (Utah 2022).
See State v. Heywood, 2015 UT App 191, ¶ 51, 357 P.3d 565; Layton
City v. Carr, 2014 UT App 227, ¶ 18, 336 P.3d 587. Bush stresses
that he was not allowed to go back inside his house and that the

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State v. Bush

officers denied his requests for water. But the officers had
separated Bush and Gabby to speak to them separately about their
dispute. Just because Bush could not go back inside his house did
not mean he was not free to end the questioning. And there were
“no objective indicia of arrest such as readied handcuffs, locked
doors, or drawn guns.” Heywood, 2015 UT App 191, ¶ 51
(quotation simplified). The interview was also brief, lasting just
ten minutes, which, as Bush himself acknowledges, “arguably
cuts against the custody determination.” See id.; Carr, 2014 UT
App 227, ¶ 18 (noting that the defendant’s interview was “brief
and casual”). And though Bush was arrested at the end of the
interaction, this was largely due to his own ready admission that
he “did everything” and was “ready to go to jail.”

¶33 Even if we consider the second step in the inquiry—
“whether the relevant environment presented the same
inherently coercive pressures as the type of station house
questioning at issue in Miranda,” Jessop, 2023 UT App 140, ¶ 40
(quotation simplified)—Bush was just outside his own home and
not “‘in a room in which he was cut off from the outside world,’
‘thrust into an unfamiliar atmosphere’” “that emphasized the
‘invincibility of the forces of the law,’” or “‘run through menacing
police interrogation procedures.’” State v. Schaefer, 2025 UT App
4, ¶ 23, 563 P.3d 424 (quoting Miranda v. Arizona, 384 U.S. 436, 445,
450, 457 (1966)), petition for cert. filed, Mar. 12, 2025 (No. 20250261).

¶34 Thus, reasonable counsel could have concluded that Bush
was not in custody prior to his arrest. And Counsel’s decision not
to seek suppression of Bush’s statements therefore did not
amount to deficient performance.

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State v. Bush

¶35 In sum, Bush has not shown that Counsel performed
deficiently and that any alleged deficiency prejudiced him.
Accordingly, each of his ineffective assistance claims fails. 7

CONCLUSION

¶36 The district court did not commit reversible error in
denying Bush’s directed verdict motion because, by presenting
his own evidence regarding the value of the broken phone, Bush
waived any argument concerning the sufficiency of the State’s
evidence. Bush also has not shown that Counsel was ineffective
for not arguing lack of intent, not objecting to the initial criminal
mischief jury instruction, or not filing a suppression motion.
Accordingly, we affirm.

7. Bush also argues cumulative error based on his ineffective
assistance claims. But the cumulative error doctrine “will not be
applied when claims are found on appeal to not constitute error,
or the errors are found to be so minor as to result in no harm.”
State v. Martinez-Castellanos, 2018 UT 46, ¶ 40, 428 P.3d 1038
(quotation simplified). Such is the case here.

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