State v. Mason

2024 UT App 171

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
BRYCE MASON,
Appellant.

Opinion
No. 20220351-CA
Filed November 21, 2024

Sixth District Court, Junction Department
The Honorable Marvin D. Bagley
No. 201600001

Emily Adams, Freyja Johnson, and Melissa Jo
Townsend, Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 During a confrontation at an outdoor party, Bryce Mason
retrieved a gun from his vehicle. As a result of circumstances that
were later disputed at trial, the gun was fired, hitting a nearby
partygoer in the foot. A jury later convicted Mason of aggravated
assault with serious bodily injury. Mason now challenges his
conviction on several grounds, and he also requests a remand
under rule 23B of the Utah Rules of Appellate Procedure. For the
reasons set forth below, we affirm his conviction and deny his
request for a remand.
State v. Mason

BACKGROUND

The Incident

¶2 On the evening of April 26, 2020, Mason and his friend
David went to an outdoor party in a canyon in Piute County.
1

Mason had a gun in his vehicle, and he retrieved that gun when
conflict arose between David and Braxton, another partygoer. At
some point the confrontation escalated to physical blows, and a
group gathered around David and Braxton. During the ensuing
fight, Mason’s gun discharged, hitting a partygoer named Kolten
in the foot. The incident ended when Gunnar, who was also at the
party, tackled Mason to the ground and threw the gun out of his
reach. From this, the State later charged Mason with aggravated
assault with serious bodily injury, a second-degree felony, as well
as two lesser-included offenses (aggravated assault as a third-
degree felony, and threatening with a dangerous weapon in a
fight, which is a class A misdemeanor).

The State’s Case at Trial

¶3 Several people at the party witnessed the fight and heard
the gunshot, and six of them testified for the State at Mason’s trial.
We note upfront that many (if not all) of the partygoers were
drinking, it was dark outside when the relevant events occurred,
and the incident happened quickly, so the witnesses’ accounts at
trial of what happened were somewhat varied.

¶4 The State’s first witness was the party’s organizer, Natalie.
Natalie testified that she posted about the party on social media
and that it then “got really big.” She said that she did not
specifically invite Mason or David.

1. We’ll refer to attendees of the party who later participated in
the trial by their first names only.

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State v. Mason

¶5 According to Natalie, nobody was fighting before Mason
and David showed up. She said that after the two arrived, David
“tried to pick a fight with Braxton” but that Braxton declined. She
told David and Braxton to “keep it verbal.” After the party went
on for a while, Natalie heard someone yell, “he’s got a gun,” at
which point she looked over and saw fighting. She said that she
did not see the gunshot, but she did hear it. She also testified that
she believed that the gun discharged before Mason was on the
ground, but she wasn’t sure. As she helped Kolten with his
gunshot wound, she heard more yelling. When she looked over,
she saw Gunnar on top of Mason, and she also saw Gunnar take
the gun out of Mason’s hand and throw it. During Natalie’s
testimony, the prosecutor asked her if she’d “ever seen anybody
bring a gun” to a party before, to which Natalie responded,
“Never.”

¶6 The State’s second witness was Brayden. Brayden testified
that everyone was “drinking beer, sitting by the campfire, talking,
hanging out, [when] David started getting mouthy with Braxton.”
Brayden said that when David and Braxton “started to fight,”
others shouted out ground rules, such as “[n]o jumping in” and
“[n]o going to the ground.” Brayden said that David took Braxton
to the ground twice, but the group picked them back up “so they
could fight standing up.”

¶7 Brayden testified that, at one point during the fight, he
heard Mason say, “they’re rushing us,” and he said that he then
saw Mason “pull a gun.” Brayden said that Mason’s gun was
“aimed right at us,” and he agreed with the prosecutor’s
suggestion that Mason was holding the gun in a “shooter’s
position.” Brayden said that at that point, he yelled “gun” and
watched Gunnar tackle Mason. As Brayden remembered it, the
gun went off as Mason “was going down.” Brayden said that
Gunnar then grabbed “the gun and chuck[ed] it out in the
woods.” When the prosecutor asked Brayden if he’s “ever seen
anybody take a gun to one of those parties,” Brayden responded,
“Never.”

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¶8 The State’s third witness was Garrett. Garrett testified that
David and Braxton “wanted to box,” but “they just kept going to
the ground and wrestling,” so the group would make “them stand
up.” After that happened “two or three times,” Garrett heard the
gun go off. Garrett said that he saw Gunnar on top of Mason and
that Gunnar was angrily hitting Mason. Garrett said that he
pulled Gunnar off Mason, that he did not see anyone besides
Gunnar punch Mason, and that he did not see the gun. The
prosecutor asked Garrett if he’d “ever seen anybody bring a gun”
to a party before, to which Garrett said, “No.”

¶9 The State’s fourth witness was Braxton. Braxton testified
that David approached him and insulted him in a vulgar manner
in an apparent attempt to start a fight. Braxton said that the two
began fighting in what he described as “a boxing match.” Braxton
said that at some point during the fight, he heard someone say
“gun, gun, gun,” and when he looked up, he saw “a gun pointed
at [him]” from six or seven feet away. Braxton said that he
watched Gunnar “football tackle” Mason and that he heard—but
did not see—the gun go off. The prosecutor asked Braxton if he
had “ever been to a party . . . when anybody brought a gun,” to
which Braxton responded, “No, absolutely not.”

¶10 During Braxton’s testimony, the State asked him about a
video that purportedly showed portions of the fight between him
and David. Braxton testified that he had received the video from
another partygoer (though he couldn’t remember which one).
Mason’s counsel (Trial Counsel) stipulated to admission of this
video, and it was played for the jury. The video was 14 seconds
long, the first 9 seconds of which had no audio. The video showed
Braxton hitting David in the face, after which David restrained
Braxton with a “wrestling tactic.” The video ended before the
gunshot.

¶11 The State’s fifth witness was Gunnar. Gunnar testified that
David and Braxton “were boxing a little bit” and that the group
picked them up when “they went down to the ground a couple

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State v. Mason

times.” He said he was “sitting on the flatbed of [his] truck” when
he heard someone shout “gun.” When he looked up, he saw a
“gun pointed at Braxton’s head” and reacted by tackling Mason.
Gunnar testified that he was then “holding [Mason’s] wrist down
. . . when [he] heard a gunshot.” He said he took the gun from
Mason, threw it to the woods, and knocked Mason out. Gunnar
said he understood this was a “bad situation” because he’d “seen
people get shot” when he previously worked in Denver. The
prosecutor asked Gunnar if he had “ever seen . . . anybody bring
a gun to [a] party” “when these kids in Utah meet up,” to which
Gunnar said, “Nope.”

¶12 The sixth person to testify was Kolten. Kolten testified that
he saw Braxton and David get into a fight. He said that he “stood
in the background to make sure things didn’t get out of hand” and
that when they’d “go to the ground,” Kolten and Gunnar would
“stand them back up.” Kolten did not see the gun, but he heard it
go off and realized that he had been shot in the left foot. “At the
time, [he] didn’t know who had shot [him].” Unlike the approach
taken with many of the other State’s witnesses, the prosecutor did
not ask Kolten if he had previously seen people bring guns to
parties.

¶13 At the close of the State’s evidence, Trial Counsel moved
for a directed verdict, arguing that the State had not put on
sufficient evidence to establish the requisite intent. The district
court denied the motion, relying on the testimony that Mason had
pointed his gun at Braxton or at least at the group generally.

Mason’s Case at Trial

¶14 In the defense’s case, Trial Counsel called two witnesses—
a deputy and Mason. Through the deputy’s testimony, Trial
Counsel offered photographs of Mason and David that were
taken on the night of the incident by investigating officers. Those
photographs showed injuries on Mason and David that were

20220351-CA 5 2024 UT App 171
State v. Mason

consistent with being punched in the face or being involved in a
fight.

¶15 Mason testified that after he and David arrived at the party,
Braxton approached Mason and said that he wanted to fight.
Mason said that he told Braxton that he “didn’t want to fight,” at
which point Braxton walked away. Mason said that this
interaction made him “afraid,” so he went to his vehicle and
retrieved his gun. Mason said that he asked David to leave with
him but that David didn’t want to.

¶16 According to Mason, Braxton soon approached David and
started a fight with him. Mason said that as the two fought, the
“other guys . . . would pull David off and . . . set them back up.”
Mason said that he was yelling, “no fighting, quit fighting.”
Mason said that while this was happening, someone walked up
behind Mason and yelled at him, and when he turned around, he
was “slugged in the jaw.” Mason said that he pulled his gun out
at that point but that he was then tackled to the ground. Mason
denied aiming the gun, holding the gun in a “shooter’s position,”
or threatening anyone with the gun. He explained that when he
pulled the gun out, he only intended “to hit the guy that hit [him]
with it,” not to shoot it. He also explained that he had owned the
gun since he was 12 years old and that it did not require a lot of
pressure to be cocked or discharged. And he further said that at
the time the gun “discharged,” “a couple guys” were holding his
“arm to the ground and holding [onto] the gun trying to pull it
from [his] hands,” thus suggesting that it had accidentally
discharged. Trial Counsel asked Mason if he had “ever seen
someone with a firearm at a party,” and he said, “Yes, sir. . . . In
Iron County . . . [q]uite a few times, about two, three times.” After
Mason’s testimony, the defense rested its case.

Closing Arguments

¶17 In the State’s closing argument, the prosecutor recounted
much of the evidence summarized above, and from this, he

20220351-CA 6 2024 UT App 171
State v. Mason

argued that the State had proved that Mason committed the
charged offense. In the course of this argument, the prosecutor
talked about the culture of fighting that existed when he grew up
in Piute County, emphasizing that “nobody ever brought a gun to
the [fist]fight.” The prosecutor also said that he didn’t know how
it was in Iron County but that he was “pretty sure it’s the same,
you don’t bring a gun to a party of friends who are around a
bonfire.” The prosecutor ended his argument by observing that a
“kid got shot. It shouldn’t happen in our county.”

¶18 In the defense’s closing argument, Trial Counsel argued to
the jurors that it wasn’t their role “to remedy what happened” to
Kolten and that they should not find Mason “guilty of a crime [he]
didn’t commit . . . in an attempt to be fair to an alleged victim.”
He also argued that this case wasn’t “about gun laws” or about
the jurors’ “opinion[s] about guns” or about drinking around
guns. Instead, the jury’s role was to “figure out what the facts are”
and “to apply those facts to the law.” Trial Counsel then conceded
that several elements of aggravated assault with serious bodily
injury had been satisfied—namely, that on April 26, 2020, in Piute
County, Mason had been involved in an incident with a gun and
that this resulted in serious bodily injury to Kolten. But Trial
Counsel urged the jurors to focus on the intent element, arguing
that Mason did not “knowingly or intentionally” commit an
assault on Kolten because he did not aim the gun at Kolten and
his “hand [was] being held to the ground.” Trial Counsel
suggested that jurors may “want to consider the brandishing
[charge],” because that offense does not require intent to harm.
And he also argued that the State failed to prove that Mason
wasn’t acting in defense of himself or David.

¶19 After the case was submitted, the jury found Mason guilty
of aggravated assault with serious bodily injury.

20220351-CA 7 2024 UT App 171
State v. Mason

Post-Trial Motions

¶20 A few weeks after Mason was convicted (but before
sentencing), Trial Counsel filed a motion to arrest judgment and
to reduce the degree of conviction. Trial Counsel argued that (1)
even if Mason pulled the gun out and pointed it at Kolten, this
was not enough to constitute assault and (2) the evidence only
showed that the gun had gone off as a result of Mason being
tackled to the ground but there was no evidence that Mason had
voluntarily pulled the trigger. For these and other reasons, Trial
Counsel asked the district court to vacate the second-degree
felony aggravated assault conviction and instead conclude that
Mason’s conduct “constituted, at most, third degree aggravated
assault.” Trial Counsel then asked the court, if that relief were
granted, to reduce the third-degree aggravated assault conviction
to a class A misdemeanor pursuant to Utah Code section 76-3-
402(2).

¶21 A short time later, Trial Counsel filed a motion to withdraw
as counsel. Trial Counsel explained that Mason believed that his
representation had been “ineffective and deficient” and that these
issues “may need to be raised . . . in a Motion for a New Trial.”
Trial Counsel also noted that he and Mason “had fundamental
disagreements regarding the importance of some of the evidence
or lack thereof in the case.”

¶22 Before the district court ruled on Trial Counsel’s motion to
withdraw, Mason filed a pro se motion requesting a new trial.
Mason pointed out that an attorney who had briefly represented
him in the initial stages of the case (and who, to be clear, was not
Trial Counsel) had hired a private investigator. According to
Mason, the private investigator had discovered “a great deal of
exculpatory information favorable to [Mason’s] defense,” but this
evidence was not introduced at trial due to what Mason alleged
was Trial Counsel’s “ineffectiveness.” In his motion and in his
own supporting affidavit, Mason faulted Trial Counsel for:

20220351-CA 8 2024 UT App 171
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• not requesting forensic testing on Mason’s gun, despite
repeated requests to do so;

• not retaining an expert to enhance a second video that had
been taken by a partygoer of some of the events, which
Mason now contended could have, with enhancements,
supported his version of the events; and

• not calling an additional partygoer, John, who was
interviewed by the investigator and could allegedly offer
testimony that, in Mason’s view, would support his
version of the events.

¶23 After Trial Counsel withdrew, Mason asked the district
court to appoint an attorney to assist him with his post-trial
motions and sentencing. At a subsequent hearing, the court
appointed an attorney (Successor Counsel) to represent Mason
moving forward, and the court then set an argument hearing for
a few weeks out to give Successor Counsel time to prepare.

¶24 At that hearing, Successor Counsel addressed both Trial
Counsel’s motion to arrest judgment and Mason’s pro se motion
for a new trial. On the motion to arrest judgment, Successor
Counsel argued consistent with the approach taken in the motion,
pointing to various perceived deficiencies in the evidence and
asking the court to conclude that the State had not presented
sufficient evidence to establish the intent element of the offense.
In contrast to the motion, however, Successor Counsel expressed
“reservations about reducing the degree of conviction,” pointing
out that the jury had been instructed on lesser included offenses.

¶25 Successor Counsel then turned to Mason’s pro se motion
for a new trial. Successor Counsel told the court that, in his view,
the motion should actually be “stricken.” Successor Counsel gave
several reasons for this, including that the motion was “not
supported by a memorandum of points and authorities,” as well
as that Mason was represented by counsel “at the time [the]

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motion was filed.” Successor Counsel further asserted that while
Mason was now faulting Trial Counsel for not introducing
evidence, “[t]here often is a strategic reason for not bringing
certain evidence forward.” And Successor Counsel observed that,
in his view, the district court could not grant a new trial because
double jeopardy had attached. 2

¶26 In a written decision, the district court subsequently
denied Mason’s motion to arrest judgment. In doing so, the court
addressed and rejected the various arguments that Mason had
made through his attorneys in support of that motion. With
respect to the motion for a new trial, the court concluded that
Mason did not have authority to file it given that he was
represented by counsel at the time. As a result, the court said that
it would “not consider” the motion and would instead deny it on
that limited basis.

¶27 Mason appealed his conviction and then obtained
appellate counsel. Contemporaneous with his appellate brief, he
filed a motion for a rule 23B remand, asking this court to remand
for factual development of several ineffective assistance of
counsel claims.

2. Successor Counsel’s assertion about the potential double
jeopardy problem was incorrect. See State v. Rudolph, 970 P.2d
1221, 1232 (Utah 1998) (stating that a defendant generally waives
any double jeopardy defense if he or she seeks a mistrial). And
while we have no need to delve into the particulars, Mason now
points to several other legal assertions that Successor Counsel
made that were arguably incorrect as well. As explained below in
Part III, however, we conclude that Mason has not established that
he received ineffective assistance from Successor Counsel’s
conduct.

20220351-CA 10 2024 UT App 171
State v. Mason

ISSUES AND STANDARDS OF REVIEW

¶28 On appeal, Mason argues that he received ineffective
assistance because (1) Trial Counsel did not object when the
prosecutor asked several witnesses about whether they’d seen
guns at other parties, (2) Trial Counsel did not object to certain
statements the prosecutor made during closing arguments, and
(3) Successor Counsel did not renew (and even advocated against)
Mason’s pro se motion for a new trial. “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. Amboh, 2023 UT
App 150, ¶ 16, 541 P.3d 299 (quotation simplified). 3

¶29 Alongside his brief, Mason has also filed a request for a
remand pursuant to rule 23B of the Utah Rules of Appellate
Procedure. A rule 23B remand is “available only upon a
nonspeculative allegation of facts, not fully appearing in the

3. As noted above, Mason filed a pro se motion for a new trial in
which he assailed Trial Counsel’s alleged “ineffectiveness” for not
introducing certain evidence. Although the district court
considered and denied that motion, this ruling was based on the
court’s conclusion that Mason was not authorized to file the
motion (as opposed to the court rejecting the ineffective assistance
argument on substantive grounds).
The third claim we’ve identified above is related to that
motion. But it’s nevertheless distinct from the claim that the
district court rejected—namely, Mason is now claiming that he
received ineffective assistance from Successor Counsel when
Successor Counsel effectively advocated against his earlier
motion. Because that claim has not previously been raised or
ruled on, it is appropriately regarded as being raised for the “first
time on appeal” for purposes of this appeal and the standard of
review.

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State v. Mason

record on appeal, which, if true, could support a determination
that counsel was ineffective.” Utah R. App. P. 23B(a).

ANALYSIS

I. Prosecutor’s Questions About Guns

¶30 Mason argues that Trial Counsel provided ineffective
assistance by not objecting when the prosecutor asked several
witnesses about whether they’d previously seen guns at parties.

¶31 To prevail under a traditional Strickland ineffective
assistance claim, Mason must show that counsel performed
deficiently and that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); see also
State v. Suhail, 2023 UT App 15, ¶ 122, 525 P.3d 550, cert. denied,
531 P.3d 730 (Utah 2023). To establish deficient performance,
Mason 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
(quotation simplified), cert. denied, 550 P.3d 995 (Utah 2024). The
focus of this inquiry is reasonableness, and when “we judge the
reasonableness of counsel’s challenged conduct,” we do so
“viewed as of the time of counsel’s conduct.” State v. Carter, 2023
UT 18, ¶ 45, 535 P.3d 819 (quotation simplified).

¶32 To establish prejudice, Mason “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Suhail, 2023 UT App 15, ¶ 122 (quotation simplified). In
determining whether Mason was prejudiced, we “consider the
totality of the evidence before the judge or jury.” Strickland, 466
U.S. at 695; see also State v. King, 2012 UT App 203, ¶ 46, 283 P.3d
980 (“When we examine counsel’s alleged errors, we consider the
totality of the evidence to determine whether the errors altered
the entire evidentiary picture and whether the verdict is

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State v. Mason

supported by the record.” (quotation simplified)). Moreover, we
also “assess counterfactual[] scenarios” of “what would have
happened but for the ineffective assistance.” Ross v. State, 2019 UT
48, ¶ 76, 448 P.3d 1203. This “counterfactual analysis requires us
to consider a hypothetical—an alternative universe in which the
trial went off without the error.” State v. Garcia-Flores, 2021 UT
App 97, ¶ 27, 497 P.3d 847 (quotation simplified). “Because failure
to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address . . . either
prong” in our review. Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d
182; see also State v. Meik, 2024 UT App 46, ¶ 31, 547 P.3d 878
(recognizing that because a defendant “must establish both
prongs,” if “either is lacking, the claim fails and this court need
not address the other” (quotation simplified)), cert. denied, 554
P.3d 923 (Utah 2024). 4

4. As discussed, Strickland v. Washington sets forth the familiar
two-part test for an ineffective assistance claim, wherein a
defendant must prove both deficient performance and prejudice.
466 U.S. 668, 687–88, 694 (1984). Strickland also briefly discussed a
defendant’s right to have conflict-free counsel, referring to such a
claim as a “type of actual ineffectiveness claim.” Id. at 692; see also
Taylor v. State, 2007 UT 12, ¶ 123, 156 P.3d 739 (“The right to
effective assistance of counsel includes the right to counsel free
from conflicts of interest.” (quotation simplified)). But the
ineffective assistance claims at issue in Strickland did not include
a claim that defense counsel there had a conflict of interest. See 466
U.S. at 675–78, 698–701.
In Part III(A) below, we address Mason’s claim that his
counsel violated the duty of loyalty—which, we explain, is linked
to a defendant’s right to have conflict-free counsel. For clarity, we
note here that references throughout this opinion to a
“traditional” Strickland claim refer to a claim that is based on an
assertion of deficient performance plus prejudice.

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¶33 As noted, the prosecutor asked five witnesses if they had
previously seen someone bring a gun to a party. Mason now
argues that Trial Counsel should have objected to this
questioning, asserting that it “called the jury’s attention to matters
it was not justified in considering,” “elicited irrelevant evidence,”
and “elicited unfairly prejudicial evidence.” In response, the State
argues that the questioning “was relevant to Mason’s claimed
justification defense.” We need not decide the deficient
performance question, however, because we conclude that Mason
has not established prejudice.

¶34 According to Mason, this line of questioning prejudiced
him because “the State’s evidence was conflicted” and “it was
heavily contested whether [Mason] caused [Kolten’s] injuries and
whether he acted in self-defense.” But the alleged conflicts in the
evidence that Mason points to were already presented to the jury,
yet the jury convicted Mason anyway. And the jury had a clear
basis for doing so. As explained, it was uncontested that Mason
voluntarily retrieved a gun from his car, and no one has ever
claimed that anyone else displayed a gun that night. Two
witnesses (Braxton and Gunnar) testified that they saw Mason
pointing the gun at Braxton before it went it off, and a third
witness (Brayden) testified that he saw Mason pointing it at the
group more generally from a “shooter’s position.” This testimony
was the driving force behind the State’s case: the district court
used it to deny Mason’s motion for a directed verdict, and the
prosecutor relied on it in his closing argument to establish intent.
And it has never been disputed that it was a bullet fired from
Mason’s gun that injured Kolten.

¶35 It’s true that Mason testified on his own behalf and claimed
that he never pointed the gun at anyone. But although there were
“20 to 30” people at the party, Mason presented testimony from
no other witness to support his claim that he never pointed the
gun. This meant that the evidentiary picture on this point was
skewed in the State’s favor (three witnesses testified that they did
see Mason point the gun at someone, with only Mason saying that

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he didn’t). The jury heard this testimony and convicted Mason,
thus indicating that it found the testimony from the State’s
witnesses to be credible.

¶36 Again, the question before us now is whether there’s a
reasonable probability that Mason would have obtained a more
favorable outcome in an “alternative universe in which the trial
went off without the error.” Garcia-Flores, 2021 UT App 97, ¶ 27
(quotation simplified). And “the error” at issue is the prosecutor’s
questions about whether various witnesses had previously seen a
gun at a party. While the prosecutor clearly intended to make a
point with these questions, that point was secondary to the
question before the jury, which was what happened at this party.
And we also note that, in apparent response to the prosecutor’s
questions, Trial Counsel asked Mason if he had “ever seen
someone with a firearm at a party,” to which Mason responded
that he had seen this “[q]uite a few times, about two, three times.”
If the prosecutor’s questions (and the resultant answers) had been
removed from the equation, Mason’s presumably favorable
exchange would have been removed too.

¶37 Having reviewed the record and the arguments on this
point, we’re not persuaded that there’s a reasonable probability
that, without these questions and answers, the jury would have
viewed the evidence so differently that Mason would have
received a more favorable verdict. We therefore reject this claim
for lack of prejudice.

II. Prosecutor’s Closing Argument

¶38 Mason next argues that Trial Counsel was ineffective for
not objecting to a statement the prosecutor made during closing
argument—namely, that “[a] kid got shot. It shouldn’t happen in
our county.” In Mason’s view, this statement “improperly
suggested that the jury base its decision on the impact of the
verdict on the small, rural community from which the jury was
drawn.” We reject this challenge for lack of deficient performance.

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State v. Mason

¶39 There are many “legitimate, strategic reasons” why an
attorney might choose to not object to a statement made during
closing argument, even where the statement is “improper” or
objectionable. State v. Isom, 2015 UT App 160, ¶ 38, 354 P.3d 791.

First, trial counsel could reasonably have believed
that objecting would call attention to the improper
statements and suggest to the jury that they were
damaging when counsel felt they were not. Second,
trial counsel might also have sensed that the jury
was weary and inattentive to the prosecutor and
that objecting would only serve to focus their
attention on the remark. Finally, trial counsel’s
decision not to object could have been motivated by
concern that an objection would create antipathy to
the defense if the jury perceived that counsel's
repeated objections were only prolonging the
proceedings.

Id. (quotation simplified). In this sense, “the law recognizes the
prerogative of opposing counsel to swallow their tongue instead
of making an objection that might have the risk of highlighting
problematic evidence or even just annoying the jury.” State v.
Granere, 2024 UT App 1, ¶ 62, 543 P.3d 177 (quotation simplified),
cert. denied, Sept. 23, 2024 (No. 20240134).

¶40 We’ve thus recognized that counsel may reasonably
conclude “that objecting might suggest to the jury that it is a
troublesome point—one worth objecting to—while letting it go
demonstrate[s] counsel’s confidence in the jury’s ability to
distinguish between evidence and argument, a subject covered in
the jury instructions.” State v. Shepherd, 2015 UT App 208, ¶ 52,
357 P.3d 598. And we’ve also recognized that an attorney may
reasonably decide “that rather than highlight the overall issue for
the jury,” counsel will instead choose to address the issue “during
[counsel’s] own closing argument.” State v. Bermejo, 2020 UT App
142, ¶ 90, 476 P.3d 148 (quotation simplified). As a result, “when

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we review an attorney’s failure to object to a prosecutor’s
statements during closing argument, the question is not whether
the prosecutor’s comments were proper, but whether they were so
improper that counsel’s only defensible choice was to interrupt
those comments with an objection.” State v. Houston, 2015 UT 40,
¶ 76, 353 P.3d 55 (emphasis in original, quotation otherwise
simplified).

¶41 Here, even though Trial Counsel could have conceivably
objected to the statement in question, Trial Counsel could also
have reasonably thought that jurors might think it odd if he
objected to the assertion that “a kid” getting “shot” “shouldn’t
happen in our county.” After all, no one would think that a kid
getting shot is something that should happen in the county. This,
alone, is likely enough to defeat the deficient performance claim.
Moreover, Trial Counsel could also have reasonably thought that
he didn’t need to object. After all, the statement in question was
something of a passing comment that was not elaborated on at
length. And Mason’s defense didn’t depend on jurors somehow
approving of Kolten having been shot. To the contrary, Mason’s
defense was that he never pointed the gun at anyone, that he
never intended to shoot anyone, and that the gun was accidentally
fired when he was tackled to the ground. In his own closing
argument, Trial Counsel thus argued to jurors that it wasn’t their
role “to remedy what happened to [Kolten]” and that they
shouldn’t find Mason “guilty of a crime [he] didn’t commit . . . in
an attempt to be fair to an alleged victim.” Trial Counsel therefore
chose to respond to the prosecutor’s closing argument through a
responsive closing argument of his own, as opposed to making an
objection. This was a reasonable choice on how to deal with the
potentially inflammatory argument. See Bermejo, 2020 UT App
142, ¶ 90.

¶42 In short, we agree with the State that the statement in
question was not “so improper that counsel’s only defensible choice
was to interrupt those comments with an objection.” Houston,
2015 UT 40, ¶ 76 (emphasis in original, quotation otherwise

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State v. Mason

simplified). We therefore reject this argument for lack of deficient
performance.

III. Mason’s Pro Se Motion for a New Trial

¶43 As noted, Trial Counsel filed a post-trial motion to arrest
judgment. While Mason was still represented by Trial Counsel,
Mason separately filed a pro se motion for a new trial. After Trial
Counsel was replaced by Successor Counsel, Successor Counsel
appeared at a hearing and argued in favor of the motion to arrest
judgment but against Mason’s new trial motion.

¶44 On appeal, Mason argues that Successor Counsel’s actions
were improper and grounds for reversal—both as a violation of
the duty of loyalty and, separately, as ineffective assistance of
counsel under the traditional Strickland standard. We disagree.

A. Duty of Loyalty

¶45 Mason first argues that Successor Counsel violated his
“duty of loyalty” toward Mason. As explained below, we
understand the duty of loyalty to be linked to the right to conflict-
free counsel. With that understanding, we see no reversible error.

¶46 The starting place for our analysis is State v. Holland, 876
P.2d 357 (Utah 1994). There, our supreme court recognized that
“an attorney’s duty to represent the interests of a client with zeal
and loyalty” is “[c]ritical to the attorney-client relationship and
the integrity of judicial proceedings.” Id. at 359. And the court
further recognized that the “duty of loyalty is so essential to the
proper functioning of the judicial system that its faithful discharge
is mandated not only by the Rules of Professional Conduct, but
also, in criminal cases, by the Sixth Amendment right of a criminal
defendant to the effective assistance of counsel.” Id.

¶47 After connecting the duty of loyalty to the Sixth
Amendment right to the effective assistance of counsel, Holland

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State v. Mason

elaborated on the duty’s contours. The court explained that, “[a]t
a minimum, an attorney’s duty of loyalty to his or her client
requires the attorney to refrain from acting as an advocate against
the client, even in a case unrelated to the cause for which the
attorney is retained.” Id. at 359–60. It further explained that an
“attorney who acts upon a belief that his client should be
convicted fails to function in any meaningful sense as the
government’s adversary.” Id. at 360 (quotation simplified). Of
some note, the court then held that if

an attorney’s loyalty is compromised because he believes
that his client should be convicted or because he is
influenced by a conflict in loyalties to other defendants,
third parties, or the government, the law cannot
tolerate the risk that the attorney will fail to subject
the prosecution’s case to the kind of adversarial
challenge necessary to ensure that the accused
receives the effective assistance of counsel as
guaranteed by the Sixth Amendment.

Id. (emphasis added). The court thus stressed that the duty of
loyalty may be violated if the attorney’s conduct was such that the
proceeding had “clearly lost its adversary character,” such as
when the attorney has “effectively join[ed] the State in an effort to
attain a conviction or a death sentence.” Id. (quotation simplified).

¶48 The court then explained how this had occurred in the case
before it. The defendant there (Holland) had been sentenced to
death after pleading guilty to homicide. See id. at 358. While
Holland’s appeal was pending, his attorney called Holland to
testify at the penalty hearing of one of the attorney’s other
clients—Taylor—and the attorney did so in an attempt to argue to
Taylor’s jury that while Holland was “a prime candidate for the
death penalty,” Taylor was not. Id. at 358–59 (emphasis omitted).
Although the court excluded the proposed testimony in the Taylor
case, our supreme court concluded in the Holland case that it could
not “countenance or condone” the continued representation of

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State v. Mason

Holland “by an attorney who ha[d] stated in a public document
that his client is ‘a prime candidate for the death penalty.’” Id. at
361. The court further held that because of “the direct and
fundamental nature of the duty of loyalty,” it would “not inquire
into the issue of whether the breach of that duty was prejudicial.”
Id. Instead, the court removed Holland’s attorney from Holland’s
case moving forward. See id.

¶49 Our supreme court later addressed the duty of loyalty in
Taylor v. State, 2007 UT 12, 156 P.3d 739, which involved the same
Taylor who had been indirectly implicated in Holland. 876 P.2d at
358. On appeal from his own conviction and death sentence,
Taylor raised a duty-of-loyalty claim of his own. See Taylor, 2007
UT 12, ¶¶ 122–26. In addressing that claim, the supreme court
referred to its decision in Holland and described the duty-of-
loyalty claim that was addressed in Holland as having been a
“conflict of interest” claim. Id. ¶ 124. The court thus explained that
“[d]espite trial counsel’s conflict-based disqualification in the
Holland case,” Taylor’s claim failed because he had “not pointed
. . . to any evidence suggesting that trial counsel ever acted to
advance interests other than Taylor’s.” Id. ¶ 125 (emphases added).
Reiterating this same point, the court rejected Taylor’s claim
because Taylor had not identified “the ulterior interest he
believe[d] trial counsel was serving,” nor had he “connect[ed] the
alleged deficiencies to anything other than poor lawyering.” Id.
¶ 126.

¶50 Consistent with Holland and Taylor, our supreme court has
repeatedly linked a Sixth Amendment duty-of-loyalty claim with
a Sixth Amendment conflict-of-interest claim. In Gardner v.
Holden, for example, our supreme court noted that a
“presumption of prejudice” applies “when defense counsel labors
under an actual conflict of interest, because an attorney’s duty of
loyalty is the most basic of counsel’s duties.” 888 P.2d 608, 620
(Utah 1994) (quotation simplified). And in Menzies v. State, the
supreme court again linked the two duties, noting that “counsel
owes the client a duty of loyalty, a duty to avoid conflicts of

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State v. Mason

interest.” 2014 UT 40, ¶ 156, 344 P.3d 581 (quotation simplified),
abrogated on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d
179. A number of other Utah appellate decisions have drawn this
same link. See, e.g., State v. Sessions, 2014 UT 44, ¶ 39, 342 P.3d 738;
State v. Tirado, 2017 UT App 31, ¶ 11, 392 P.3d 926; State v. Goodrich,
2016 UT App 72, ¶ 15, 372 P.3d 79; State v. Martinez, 2013 UT App
39, ¶ 25, 297 P.3d 653; State v. Brandley, 972 P.2d 78, 83–86 (Utah
Ct. App. 1998).

¶51 Indeed, while Mason largely discusses his own argument
in duty-of-loyalty terms, he also appears to recognize its link to
the conflict-of-interest standard, repeatedly asserting, within this
same argument, that Successor Counsel’s actions constituted a
“conflict of interest.” And he also identified this as a conflict-of-
interest claim in the Issues Presented section of his brief. Viewed
systemically, this link makes sense. Mason’s duty-of-loyalty claim
relies heavily on Successor Counsel’s decisions to not renew his
pro se motion for a new trial and even advocate against it. But
Utah’s caselaw is replete with situations in which Utah appellate
courts assessed claims of omission or even commission under the
traditional Strickland standard. If it were true that the duty of
loyalty (and, of particular note, its relaxed prejudice standard) is
implicated whenever an attorney does or doesn’t do something
that a reasonably competent attorney should have done, this
could well swallow Strickland wholesale, which is a result that
Utah’s duty-of-loyalty cases do not contemplate. This helps
explain why the duty-of-loyalty doctrine invoked by Mason is
properly understood as being a form of a conflict-of-interest
claim.

¶52 So viewed, Mason’s claim fails. As noted, Mason’s claim is
centered on Successor Counsel’s decision to argue against
Mason’s pro se motion for a new trial. In support of his assertion
that this violated the duty of loyalty, Mason relies heavily on
Taylor’s description of the Holland attorney having violated the
duty of loyalty by taking “a position that was directly contrary to
the defendant’s interest.” Taylor, 2007 UT 12, ¶ 124 (quotation

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State v. Mason

simplified). But again, in that same sentence, the supreme court
described the issue before it as being whether the Holland attorney
had a “conflict of interest.” Id. And shortly thereafter, the court
rejected Taylor’s duty-of-loyalty claim because Taylor had not
shown that his counsel was motivated by an “ulterior interest”
that “counsel was serving,” which the court viewed as being
distinct from a claim of “poor lawyering.” Id. ¶ 126.

¶53 Because this is a species of a conflict-of-interest claim,
Mason can only prevail if he makes “a threshold showing that a
conflict [actually] existed.” Menzies, 2014 UT 40, ¶ 153; see also
Taylor, 2007 UT 12, ¶ 123. Put differently, Mason must show that
“counsel was forced to make choices advancing other interests to
the detriment of his client.” Taylor, 2007 UT 12, ¶ 124 (quotation
simplified).

¶54 Mason has not done this. Like Taylor, Mason has not
shown that his attorney was acting “to advance interests other
than” his own. Id. ¶ 125. This case is thus distinguishable from
Holland, where the attorney in question was compromised by both
(1) competing loyalties to two different clients and (2) the
attorney’s pronounced and stated belief that his client should
perhaps receive the most severe criminal penalty possible: the
death penalty. Mason has not made either showing here. He has
not shown that Successor Counsel had any divided loyalties to
some other client, nor has Mason pointed to anything showing
that Successor Counsel had some pronounced personal belief that
Mason should be convicted, much less that Successor Counsel’s
personal beliefs were so pronounced that they caused him to
advocate against Mason’s interests in this or any other case.

¶55 In short, we understand the question of whether Successor
Counsel engaged in “poor lawyering” to be one that is properly
assessed under the traditional Strickland formulation. To the
extent that Mason claims this violated the duty of loyalty, that

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State v. Mason

claim fails because Mason has not shown that Successor Counsel
had a conflict of interest. We thus reject this claim. 5

5. Regardless, even if a duty of loyalty claim could be regarded as
being conceptually distinct from a conflict-of-interest claim, we
would also reject Mason’s claim on its own terms. Again, Holland
suggested that the attorney there had violated the duty of loyalty
by “effectively join[ing] the state in an effort to attain a conviction
or a [particular] sentence.” State v. Holland, 876 P.2d 357, 360 (Utah
1994) (quotation simplified). In this sense, Holland contemplated
that the duty of loyalty was violated because the proceeding had
“clearly lost its adversary character.” Id.
But our cases establish that an attorney doesn’t render
ineffective assistance under Strickland, much less violate the duty
of loyalty, by conceding individual motions or even elements of
an offense if those concessions were part of a strategy that still
advocated for the defendant’s broader interests. See, e.g., State v.
Lingmann, 2014 UT App 45, ¶¶ 26–29, 340 P.3d 1063 (holding that
counsel was not ineffective for “conceding the elements of
solicitation and pursuing a voluntary-termination defense”); State
v. Martinez, 2013 UT App 39, ¶ 28, 297 P.3d 653 (recognizing that
an attorney may concede guilt on a lesser-included offense in
hopes of obtaining an acquittal on the most serious offense, and
this is “a perfectly acceptable strategy which should not be second
guessed by the courts” (quotation simplified)).
Here, it’s true that Successor Counsel advocated against
Mason’s pro se motion for a new trial. But in that same hearing,
Successor Counsel advocated for the motion to arrest judgment,
thus directly asking the court to vacate Mason’s conviction. While
we address the potential implications of Successor Counsel’s
approach under the traditional Strickland framework in the next
subpart of this opinion, we conclude here that Successor Counsel
was not “effectively join[ing] the state in an effort to attain a
conviction” or the maximum sentence. Holland, 876 P.2d at 360
(continued…)

20220351-CA 23 2024 UT App 171
State v. Mason

B. Traditional Strickland Claim

¶56 Mason next argues in the alternative that Successor
Counsel provided ineffective assistance under the traditional
Strickland standard by not refiling his pro se motion for a new trial
and instead arguing against it. As noted, Mason must show both
deficient performance and prejudice to prevail on this claim, and
if proof of either prong “is lacking, the claim fails and this court
need not address the other.” Meik, 2024 UT App 46, ¶ 31
(quotation simplified). And to establish prejudice, Mason “must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Suhail, 2023 UT App 15, ¶ 122 (quotation
simplified). We reject this claim for lack of prejudice.

¶57 Mason’s claim is premised on the assertion that he would
have obtained a more favorable outcome if Successor Counsel had
adopted and then advocated for the assertions he’d previously
advanced in his pro se motion for a new trial. In other similar
ineffective assistance cases, we’ve commonly looked to the
likelihood of success of the missing motion. See, e.g., State v.
Beames, 2022 UT App 61, ¶ 17 n.3, 511 P.3d 1226 (considering
whether the missing motion “was likely to be granted” (emphasis
in original, quotation otherwise simplified)); State v. Makaya, 2020
UT App 152, ¶¶ 9, 18, 476 P.3d 1025 (rejecting an ineffective
assistance claim where it appeared that the “motion would have
been denied”). And this makes sense. If the missing motion would

(quotation simplified). Because the conduct in question falls far
short of the abdication-of-defense scenario contemplated by
Holland, we see no basis for concluding that the duty of loyalty
was violated on even its own substantive terms. For this reason
too, the claim fails.

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State v. Mason

not have been granted, then the defendant likely could not show
prejudice. 6

¶58 A district court “may . . . grant a new trial in the interest of
justice if there is any error or impropriety which had a substantial
adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a).
This rule allows a defendant to obtain a new trial upon a showing
of ineffective assistance. See, e.g., State v. Lewis, 2014 UT App 241,
¶ 8 n.6, 337 P.3d 1053. While Mason’s pro se motion below alleged
that Trial Counsel was ineffective on several grounds, Mason
focuses on just one of them on appeal: Trial Counsel’s failure to
call John as a defense witness.

¶59 Mason points out that the jury “heard from six witnesses”
who supported the State’s case in various ways, and he thus
argues that “[w]ithout John’s testimony, the jury heard a lopsided
view of the evidence that favored the State’s theory of the case.”
But Mason then argues that John’s testimony would have
“corroborated key portions of [Mason’s] testimony.” And in
Mason’s affidavit that he submitted below to support his motion
for a new trial, he identified how he believes John would have
helped him. According to Mason, John would have said that
Braxton initiated the fighting (not David); that Mason “started
getting into a fight . . . and he ended up pulling a gun”; that
Brayden “pushed [the gun] down, and it went off,” thus
suggesting that Brayden’s actions may have contributed to the

6. Our supreme court has recently contemplated that there may
be “instances where failure to file even a losing motion—to ensure
an issue is preserved, for example—might constitute
unreasonable performance.” State v. Carter, 2023 UT 18, ¶ 44, 535
P.3d 819. But Mason has not persuaded us that any such
circumstance exists here. Instead, his prejudice argument focuses
on his assertion that there was “a reasonable probability that the
court would have granted the motion.”

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State v. Mason

gun firing; and that John thought that Mason did not intend to
hurt anyone.

¶60 In response, the State points to various weaknesses in this
proposed testimony. As a starting place, the State notes that
Mason’s account was based on what an investigator allegedly told
him that John had told the investigator, which the State describes
as “double or triple hearsay.” In the State’s view, “[t]here is
simply no record evidence of what John would actually have
testified to at trial, under oath and subject to cross-examination.”
The State further points out that Mason’s assertions about John’s
proposed testimony are not consistent with the written statement
John gave to law enforcement on the night of the incident. 7 As a
result, if John had testified in the manner that Mason proposes,
the State argues that it would have been able to undermine his
credibility by pointing to certain conflicts in the evidence.

¶61 But even if we assume that John would have testified
consistently with the version of facts set forth in Mason’s affidavit,
we’re still not persuaded that there’s a reasonable possibility that
the court would or should have granted the motion. Again, the
State’s case was based on the testimony of six witnesses who all
supported pieces of the State’s claim to varying degrees, which is
why Mason himself describes this on appeal as having been a
“lopsided” evidentiary picture. If John’s testimony had been
added to the mix, the evidentiary picture would still have been
lopsided in the State’s favor. And while Mason offers various
reasons why the accounts from the State’s witnesses might not
have been credible—primarily that it was dark outside, that many
of the partygoers were drinking, and that the events in question

7. For example, Mason alleges in his affidavit that John would
have testified that Brayden “pushed [the gun] down, and it went
off,” suggesting that Brayden’s actions may have contributed to
the gun firing. But in his written statement, John says nothing
about Brayden pushing the gun. Rather, John just said that the
“gun went off.”

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State v. Mason

happened quickly—many (if not all) of these circumstances were
attendant to John’s proposed testimony too.

¶62 Thus, even with John’s proposed testimony, the central
features of this case would have remained unchanged: Mason
voluntarily retrieved a gun from his car, no one else was seen with
a gun that night, several witnesses testified at trial that they saw
Mason point the gun at someone, and the gun went off, striking a
bystander in the foot. The proposed additional testimony from
John would have been somewhat compromised by darkness and
circumstance, it wasn’t particularly definitive in Mason’s favor
even on its own terms (for example, John would apparently have
testified that he saw Mason voluntarily retrieve the gun and then
pull it out during the confrontation), and the overall weight of the
testimony still favored the State. In light of all this, Mason has not
persuaded us that there’s a reasonable probability that, if
Successor Counsel had refiled the motion for a new trial (as
opposed to advocating against it), the motion would have been
granted. We therefore reject his claim for lack of prejudice.

IV. Rule 23B Remand

¶63 Alongside his brief, Mason filed a motion for a remand
pursuant to rule 23B(a) of the Utah Rules of Appellate Procedure.
Under that rule, 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. The motion will be available
only upon a nonspeculative allegation of facts, not
fully appearing in the record on appeal, which, if
true, could support a determination that counsel
was ineffective.

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State v. Mason

To obtain a rule 23B remand, a defendant must “present the court
with the evidence he intends to present on remand and explain
how that evidence supports both prongs of the ineffective
assistance of counsel test.” Suhail, 2023 UT App 15, ¶ 126
(quotation simplified). If the proffered evidence and arguments
do not “meet the test for ineffective assistance of counsel,” “there
is no reason to remand the case.” State v. Samples, 2022 UT App
125, ¶ 57, 521 P.3d 526 (quotation simplified), cert. denied, 525 P.3d
1279 (Utah 2023); see also State v. Miller, 2023 UT App 85, ¶ 52, 535
P.3d 390 (explaining that “the alleged facts, if true, must establish
both elements of a traditional ineffective-assistance claim”
(quotation simplified)), cert. denied, 540 P.3d 78 (Utah 2023).

¶64 In his motion, Mason requests a remand to create a record
on two potential claims: first, that Trial Counsel was ineffective
for not moving to suppress a video of the fight that was admitted
at trial; and second, that Trial Counsel should have sought to
introduce an enhanced version of a video taken by a partygoer
that captured the moment that his gun was fired. We deny both
requests because Mason has not established prejudice.

A. Fight Video

¶65 As noted above, Trial Counsel stipulated to admission of a
14-second video during Braxton’s testimony, and the first 9
seconds of this video had no audio. The video showed Braxton
hitting David in the face, after which David tackled him. The
video ended before the gunshot.

¶66 In support of his rule 23B motion, Mason has provided an
affidavit in which he proffers that, according to an expert he has
consulted, the lack of audio on the first 9 seconds might be the
result of the original video having been compressed while being
sent through a messaging service. In his motion, Mason argues
that Trial Counsel performed deficiently for not seeking to
exclude the original video because either (1) it was inadmissible
under the best evidence rule or (2) it was unfair to introduce a

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State v. Mason

potentially altered version of the video. We deny the request for a
remand, however, because Mason has failed to persuade us that
he was prejudiced by the alleged deficient performance.

¶67 This video did not purport to show the gunshot that was
central to the State’s case. And while it may have had some
potential bearing on what led up to the shooting (such as who was
the aggressor in the fight between Braxton and David), we’re not
persuaded that the video had any meaningful impact on the jury’s
verdict. As noted, the question before us is whether, in a
hypothetical trial that proceeded without this video, Mason
would have obtained a more favorable outcome. But even without
the video, the evidence would still have been “lopsided” in favor
of the State in the same manner described above. Again, as Mason
explains the state of the evidence on appeal, the jury “heard from
six witnesses who testified that [Mason] tried to start a fight, that
[David] fought willingly, that [Mason] did not fight with anyone
before the gun went off, and that the gun went off without anyone
else touching it.” Because of all this, Mason has not persuaded us
that removing the video from the evidentiary picture would have
resulted in a more favorable verdict. We therefore deny this
request for a remand.

B. Gunshot Video

¶68 In his pro se motion for a new trial, Mason faulted Trial
Counsel for not introducing a second video that was taken by a
partygoer and later given to law enforcement by Kolten. This
video allegedly captured the moment that the gun was fired. In
support of his rule 23B motion, Mason provided an affidavit from
Trial Counsel, who states that he “did not think about getting the
video enhanced” because it “was so dark and so short.” Mason
also provided an affidavit from his father, who says that a third-
party company has now enhanced the video to “sharpen” it and
“adjust [its] light levels.” Mason provided us with copies of both
the original and the enhanced video. From this, Mason requests a
remand so that he can create a record to show that Trial Counsel

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State v. Mason

was ineffective for not (1) retaining an expert to enhance the
gunshot video and (2) introducing the enhanced video at trial.

¶69 In Mason’s view, the enhanced video corroborated two key
pieces of his testimony. First, Mason alleges that it “confirmed
[his] testimony that the gun went off on the ground.” And second,
Mason alleges that it “support[ed] his testimony that he was
tackled and several people were grabbing for the gun before it
went off.”

¶70 We have carefully reviewed the enhanced video. Even with
the filtering that has now been done, the video quality is quite
poor, and the images are also decidedly dark. Despite repeated
viewings, and even with the benefit of knowing exactly what we
are supposed to be looking for, we’ve been unable to discern
anything specific with any level of precision. Because of this, we
see no reasonable probability that the enhanced video would have
meaningfully aided the defense’s case, much less led to a more
favorable outcome for Mason. We therefore decline to remand the
case for factual development on this claim.

CONCLUSION

¶71 Mason has not persuaded us he received ineffective
assistance in any of the identified respects, so we therefore affirm
his conviction. And for the reasons given, we also deny Mason’s
request for a rule 23B remand.

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