State v. Amboh

2023 UT App 150

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TARA JEANNE AMBOH,
Appellant.

Opinion
No. 20210678-CA
Filed December 14, 2023

Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 201800404

Freyja Johnson and Emily Adams,
Attorneys for Appellant
Stephen Foote, Attorney for Appellee

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

ORME, Judge:

¶1 Tara Jeanne Amboh appeals her misdemeanor convictions
for operating a motor vehicle without insurance and for
interfering with a peace officer, raising four claims of ineffective
assistance of counsel. But because the State, represented in this
matter by the Duchesne County Attorney (Duchesne County), did
not file an appellate brief, Amboh’s burden of persuasion is lower
than that of a typical appeal in which both sides present
argument. We hold that Amboh’s challenge to her conviction for
operating a motor vehicle without insurance satisfies this lower
standard and reverse that conviction, but we affirm her conviction
for interfering with a peace officer.
State v. Amboh

BACKGROUND 1

¶2 Duchesne County charged Amboh with interfering with a
peace officer and operating a motor vehicle without insurance,
class B and C misdemeanors, respectively.2 See Utah Code Ann.
§ 76-8-305(1) (LexisNexis 2017); id. § 41-12a-302(2)(a) (2018). The
case proceeded to a one-day jury trial in which the arresting
officer (Officer) was the sole witness called to testify.

¶3 Officer testified that one night in December 2020, he was
driving westbound on a highway in rural Utah when he saw
Amboh driving eastbound on that same highway. As their
vehicles approached each other, Amboh did not turn off her high
beam headlights. See id. § 41-6a-1613(1)(c), (3) (2018) (noting that
it is an infraction if the operator of a motor vehicle does not use a
“low beam distribution of light or composite beam if the vehicle
approaches . . . an oncoming vehicle within 500 feet”). And as they
passed each other, Officer observed that the license plate on her
car was not illuminated. For these reasons, Officer decided to turn
around and pull Amboh over.

¶4 A license plate check revealed that the vehicle was
registered to another individual. Amboh told Officer that
individual was her mother. Officer also testified that the check
further showed no insurance on the vehicle, i.e., “No insurance
found, second letter sent.” Officer explained that the reference to
letters meant “that the Department of Motor Vehicles has sent out

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.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. Duchesne County also charged Amboh with another
misdemeanor and an infraction, but the trial court dismissed
those charges following a preliminary hearing.

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State v. Amboh

letters stating that they don’t have proof of insurance for your
vehicle.”

¶5 When Officer inquired of Amboh regarding insurance on
the car, she stated that the car was insured by State Farm but that
she did not have any proof of coverage. Officer told Amboh that
if the car was uninsured, he “would have to impound the
vehicle,” and he then asked her to call her mother to get more
information on the vehicle’s insurance status. On the phone,
Amboh’s mother confirmed that the car was insured by State
Farm. Officer then called State Farm to verify this assertion.
Officer testified that he “spoke with one of the employees for State
Farm, gave them the information for the vehicle and the registered
owner and they said that the insurance is not active on the
vehicle.”

¶6 Officer testified that when he informed Amboh that the car
was not insured, she became “openly hostile,” stating that she was
“going to get her lawyer on this” and that she believed they were
on reservation land, meaning she was not required to have
insurance. She also told Officer “that she had been stopped in
Heber for no insurance and Heber told her that all she would have
to do is fax over the proof of insurance and they let her go” and
that “her mom usually has insurance on the vehicle.” Because
Officer intended to impound the car, he had Amboh call someone
to come pick her up. Officer then returned to his vehicle to call for
the impound and to fill out a citation, telling Amboh that he
“would be back with her after she called for a ride.” Officer was
in possession of Amboh’s driver license when he returned to his
car, which he testified he typically parks between 15 and 20 feet
behind the vehicles he pulls over.

¶7 While Officer was still completing the citation, Amboh’s
ride arrived and pulled up next to her vehicle. Amboh then exited
her vehicle and approached her ride. Once Officer realized that
Amboh did not intend to direct the driver to park in front of her

20210678-CA 3 2023 UT App 150
State v. Amboh

car but to immediately enter the vehicle, he started waving his
hands, yelling, “stop” and “Tara, hold on. Tara.” Amboh did not
respond to his commands and entered the other vehicle, which
then drove off. Officer testified that he believed Amboh to be
detained and not free to leave at that time. But because her car
was parked on the side of the highway, he had to remain in place
to alert approaching vehicles of its presence with his lights. So
instead of pursuing Amboh himself, he called for another officer
to intercept her.

¶8 Officer remained in place until the tow truck arrived and
then headed toward the location where the second officer had
pulled Amboh’s ride over. When he arrived, Officer saw Amboh
sitting in the passenger seat. At this point in Officer’s testimony,
the prosecutor played for the jury footage taken from Officer’s
body camera of that second encounter.

¶9 The video began with Officer discussing the citation with
Amboh, asking her to sign it, and attempting to take her
fingerprint.3 Amboh refused, stating, “No, I’m not going to do any
of your stuff. Sorry. I’m refusing everything.” She added, “I’ll get
everything that the courts need and I will be after you, man.” The
following exchange then ensued:

OFFICER: Can you step out of the vehicle for me,
please?

[DRIVER]: Wow.

[AMBOH]: Wow.

OFFICER: Place your hands behind your back.

3. Although a copy of the video was not included as part of the
record on appeal, the trial transcript includes what was said in the
video.

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[AMBOH]: Hey. Hey.

OFFICER: Place your hands behind your back.

[DRIVER]: You need to calm down.

OFFICER: Place your hands behind your back.

[AMBOH]: Wow.

OFFICER: Stop resisting.

¶10 Recognizing that “[w]e can hear a lot, [but] we can’t see a
whole lot” in the video, the prosecutor asked Officer to explain
what had transpired. Officer stated that he had Amboh step out
of the car and face away from him. Because she did not comply
with his instruction to place her hands behind her back, he
grabbed one of her wrists, and she yelled, “Hey.” Officer
recounted that when he proceeded to handcuff her, Amboh
“pulled her hands away from me and started to yell, as you can
hear” and “I had to tell her to stop resisting and pull her hands
together to put her into handcuffs.”

¶11 On cross-examination, Officer acknowledged that he did
not inform Amboh that she was under arrest when he asked her
to exit the car and that the video did not show Amboh’s hands
while he was trying to handcuff her because it was “too dark
outside.” Officer also confirmed that he did not mention Amboh’s
resistance to being handcuffed in his written report of the
incident.

¶12 At the conclusion of Officer’s testimony, the prosecutor
rested the State’s case. Amboh’s trial counsel (Counsel) also rested
the defense’s case without calling any witnesses. Counsel did not
move for a directed verdict, nor did he request a unanimity
instruction or any other change to the jury instructions. The trial

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court then read the instructions to the jury, and the case
proceeded to closing argument.

¶13 During closing argument, the prosecutor argued to the
jury, in relevant part, that circumstantial evidence proved that
Amboh drove her mother’s car “with the knowledge” that it was
uninsured. He pointed to Amboh’s statements to Officer that she
had previously been pulled over in Heber for lack of insurance
and that her mother “usually has insurance,” meaning that “she
knows that at times [her mother] doesn’t have insurance.”
Regarding the charge for interfering with a peace officer, the
prosecutor identified two instances for which the jury could
convict Amboh: (1) when she got into the other car and drove
away and (2) when she resisted Officer’s efforts to handcuff her.

¶14 In response, Counsel argued, among other things, that the
prosecution failed to prove that Amboh drove her mother’s car
knowing that it was uninsured. Regarding the interference
charge, Counsel did not contest that Amboh drove off when her
ride arrived but argued that “there was no testimony or evidence
. . . that the officer gave, asking her to stay, saying that you’re
detained or arrested or hold on” and that although Officer
considered her to be detained, there was reasonable doubt
whether she “had knowledge of that.” And regarding the
handcuffing, Counsel argued that Officer’s account that Amboh
pulled her arm away was contested because it was not discernible
in the video and because Officer made no mention of it in the
subsequent written report.

¶15 The jury returned guilty verdicts on both counts. This
appeal followed.

ISSUE AND STANDARD OF REVIEW

¶16 Amboh alleges four instances of ineffective assistance of
counsel. Ordinarily, “when a claim of ineffective assistance of

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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. Elkface, 2023 UT App 24, ¶ 7, 527 P.3d 820 (quotation
simplified), cert. denied, 534 P.3d 752 (Utah 2023). But, as discussed
in more detail below, because Duchesne County did not file a brief
in response to Amboh’s arguments, we apply “a lower standard
than the typical burden of persuasion on appeal.” AL-IN Partners,
LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76. Namely, in
such cases “an appellant need only establish a prima facie
showing of a plausible basis for reversal.” Id. (quotation
simplified).

ANALYSIS

¶17 Amboh argues that Counsel was constitutionally
ineffective for not objecting to inadmissible hearsay evidence and
for not requesting that the jury be properly instructed on the
constitutional unanimity requirement and the mens rea
requirement. The former claim of ineffective assistance relates to
her conviction for operating a motor vehicle without insurance,
and the latter two claims relate to her conviction for interfering
with a peace officer. 4

¶18 A successful ineffective assistance of counsel claim
requires a criminal defendant to establish that (1) “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). The deficient performance prong is satisfied when defense

4. Amboh raises one other claim of ineffective assistance relating
to her conviction for operating a motor vehicle without insurance.
But because she has made a prima facie showing on her primary
challenge to that conviction, resulting in reversal, we have no
need to address this other claim.

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State v. Amboh

counsel’s actions fall “below an objective standard of
reasonableness.” Id. at 688. This standard is “highly deferential”
to counsel’s performance, and the defendant must overcome the
“strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. And under
the prejudice prong, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Failure “to establish
either element defeats a claim for ineffective assistance of
counsel.” State v. Cruz, 2020 UT App 157, ¶ 17, 478 P.3d 631
(quotation simplified), cert. denied, 481 P.3d 1040 (Utah 2021).

¶19 But because Duchesne County did not file a brief or
otherwise participate in this appeal, we do not reach the merits of
these arguments in the usual way. 5 See Zions Bancorporation, NA v.
Schwab, 2023 UT App 105, ¶ 15, 537 P.3d 273; Mitchell v. Arco Indus.
Sales, 2023 UT App 70, ¶ 22 & n.2, 533 P.3d 394, cert. denied, 537
P.3d 1016 (Utah 2023). Although “[a]n appellee’s failure to file a
brief does not amount to an automatic default and consequent
reversal of the lower court,” AL-IN Partners, LLC v. LifeVantage
Corp., 2021 UT 42, ¶ 19, 496 P.3d 76, the failure nonetheless
deprives appellate courts “of adversarial briefing on the matter at
hand,” Zions Bancorporation, 2023 UT App 105, ¶ 15. See Broderick
v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–20, 279
P.3d 391. For this reason, in such situations we apply “a lower
standard than the typical burden of persuasion on appeal.” AL-IN
Partners, 2021 UT 42, ¶ 19. That is, “when an appellee fails to
present us with any argument, an appellant need only establish a

5. This is not the first time that Duchesne County has elected to
forgo filing an appellate brief. See State v. Sorbonne, 2020 UT App
48, ¶ 16 n.3, 462 P.3d 409, aff’d, 2022 UT 5, 506 P.3d 545; id. ¶ 34
(Orme, J., dissenting).

20210678-CA 8 2023 UT App 150
State v. Amboh

prima facie showing of a plausible basis for reversal.” 6 Id.
(quotation simplified). See Mitchell, 2023 UT App 70, ¶ 22 (“Our
supreme court has previously held that it is appropriate to rule in
favor of an appellant if the appellant establishes a prima facie
showing of a plausible basis for reversal and the appellee fails to
brief the argument.”) (quotation simplified); Prima facie, Black’s
Law Dictionary (11th ed. 2019) (defining “prima facie” as “[a]t
first sight; on first appearance but subject to further evidence or
information”).

¶20 We thus proceed to address Amboh’s claims of ineffective
assistance of counsel through the lens of this lower standard of
review.

I. Operating a Motor Vehicle Without Insurance

¶21 Amboh contends that Counsel was ineffective for failing to
object to inadmissible hearsay evidence regarding the vehicle’s
uninsured status. Specifically, she challenges Officer’s testimony
that (1) the State Farm employee told him “the insurance is not
active on the vehicle” and (2) the license plate check reported, “No

6. Although Utah appellate published decisions have largely
applied this legal doctrine to civil cases, the doctrine is also
applicable in the criminal context. See State v. Sorbonne, 2020 UT
App 48, ¶ 16 n.3, 462 P.3d 409, aff’d, 2022 UT 5, 506 P.3d 545; State
v. Carter, 2022 UT App 9, ¶ 69, 504 P.3d 179 (Hagen, J., dissenting),
aff’d, 2023 UT 18, 535 P.3d 819. Nothing in AL-IN Partners suggests
that this doctrine is limited to the civil context. To the contrary,
such a limitation would run against the widely recognized
principle that “[t]he interests at stake in civil cases are generally
not as fundamental as those at stake in criminal cases.” Kelly v.
Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42, 507 P.3d
357. See id. (“[T]he economic and property interests that are
typically the subject of civil cases are not as fundamental as the
liberty interests at stake in criminal cases.”).

20210678-CA 9 2023 UT App 150
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insurance found, second letter sent.” She asserts that “[t]hese
out-of-court statements were hearsay and not admissible under
any hearsay exception” and that the prosecution presented no
other admissible evidence at trial that the car was uninsured. We
hold that Amboh has made a prima facie showing of ineffective
assistance on this claim and therefore reverse her conviction for
operating a motor vehicle without insurance.

¶22 Hearsay is a “statement” that “the declarant does not
make while testifying at the current trial or hearing” and that is
offered by a party “to prove the truth of the matter asserted in the
statement.” Utah R. Evid. 801(c)(1)–(2). Unless authorized by rule
or statute, hearsay statements are inadmissible at trial. See id. R.
802. Here, it is clear from the record that the challenged statements
were offered to prove the truth of the matter asserted—that the
car Amboh was driving was uninsured. See Utah Code Ann.
§ 41-12a-302(2)(a) (LexisNexis 2018) (“[A]ny other person who
operates a motor vehicle upon a highway in Utah with the
knowledge that the owner does not have owner’s security in effect
for the motor vehicle is also guilty of a class C misdemeanor[.]”).

¶23 Amboh asserts that the challenged hearsay statements did
not fall under the “Records of a Regularly Conducted Activity”
exception to the rule against hearsay. See Utah R. Evid. 803(6).
Under that exception,

A record of an act, event, condition, opinion, or
diagnosis [is admissible] if:

(A) the record was made at or near the time by—or
from information transmitted by—someone with
knowledge;

(B) the record was kept in the course of a regularly
conducted activity of a business, organization,
occupation, or calling, whether or not for profit;

20210678-CA 10 2023 UT App 150
State v. Amboh

(C) making the record was a regular practice of that
activity;

(D) all these conditions are shown by the testimony
of the custodian or another qualified witness, or by
a certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and

(E) neither the source of information nor the method
or circumstances of preparation indicate a lack of
trustworthiness.

Id.

¶24 Amboh contends that the State Farm employee’s statement
to Officer did not fall under that exception because it was not a
“record.” She also asserts that the exception likewise did not
extend to the report generated by the license plate check because
the prosecution did not establish that the conditions enumerated
in rule 803(6)(A)–(C) were met through “testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification.” Id. R. 803(6)(D). Because this argument is plausible
on a prima facie level, Amboh has satisfied her burden to show
that the challenged statements did not satisfy that exception.

¶25 Additionally, to the extent the challenged hearsay
statements were admissible at trial under another rule or theory,
it was incumbent on Duchesne County to make such an argument
in its brief had it filed one. No other hearsay exception is readily
applicable to the challenged statements, and given the absence “of
adversarial briefing on the matter at hand,” Zions Bancorporation,
NA v. Schwab, 2023 UT App 105, ¶ 15, 537 P.3d 273, we do not
address alternative avenues through which the hearsay
statements might have possibly been admitted at trial. See State v.
Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443 (“Our appellate system has
developed along the adversarial model, which is founded on the

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State v. Amboh

premise that parties are in the best position to select and argue the
issues most advantageous to themselves, while allowing an
impartial tribunal to determine the merits of those arguments.”);
Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (“An appellate court is
not a depository in which a party may dump the burden of
argument and research.”) (quotation simplified). As matters
stand, Amboh has made a prima facie showing that the
challenged statements were inadmissible hearsay, and absent
contradiction, we have no occasion to further address this aspect
of Amboh’s argument.

¶26 Amboh next argues that Counsel’s failure to object to the
inadmissible hearsay statements constituted deficient
performance because “[t]he hearsay went directly to an element
of the driving-without-insurance charge” and the prosecution
“had no other evidence to prove that the car was uninsured.” In
light of the importance of Officer’s statements to the prosecution’s
case, Amboh asserts that “[t]here was no reasonable basis for
failing to object[.]”

¶27 “We must view a decision to not object in context and
determine whether correcting the error was sufficiently important
under the circumstances that failure to do so was objectively
unreasonable—i.e., a battle that competent counsel would have
fought.” State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871. As discussed
in more detail below, without the challenged hearsay statements,
the fact that the vehicle was uninsured was only weakly
supported by other evidence. Accordingly, Amboh has made a
prima facie showing that the challenged hearsay was crucial to
the prosecution’s case and was therefore “sufficiently important”
to constitute “a battle that competent counsel would have
fought.” Id. Thus, under the lower standard applied in this case,
Amboh satisfied the deficient performance prong of the
ineffective assistance claim.

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State v. Amboh

¶28 Amboh similarly argues that Counsel’s deficient
performance was prejudicial because the trial court would have
likely sustained an objection to the hearsay statements, thereby
depriving the prosecution of the only evidence it presented
regarding the car’s uninsured status.

¶29 “[A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with
overwhelming record support.” Strickland v. Washington, 466 U.S.
668, 696 (1984). Our review of the record shows that absent the
hearsay testimony, the claim that the car was uninsured was only
weakly supported by other evidence. Although Officer also
testified that Amboh told him “that she had been stopped in
Heber for no insurance” at an unspecified time and that “her mom
usually has insurance on the vehicle,” these statements did not go
directly to the vehicle’s uninsured status at the time Officer pulled
Amboh over. Similarly, the fact that Amboh did not have proof of
insurance for the car, although probative, was not sufficient to
establish beyond a reasonable doubt that the car was uninsured.
The car was not Amboh’s, and so the jury could have concluded
that she did not know where to look, that the proof of insurance
was simply misplaced, or that her mother had not printed it. Thus,
because the remaining evidence that went to the vehicle’s
uninsured status was relatively weak, Amboh has made a prima
facie showing “that there is a reasonable probability that . . . the
result of the proceeding would have been different” if Counsel
had objected to Officer’s testimony about the car’s insurance
status on hearsay grounds. Id. at 694.

¶30 In sum, in the absence of any appellate opposition, Amboh
has satisfied the lower burden of making “a prima facie showing
of a plausible basis for reversal.” AL-IN Partners, LLC v.
LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation
simplified). We accordingly reverse her conviction for operating
a motor vehicle without insurance.

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II. Interfering with a Peace Officer

¶31 As relevant here, the interference with a peace officer
charge requires the prosecution to prove that

the person knows, or by the exercise of reasonable
care should have known, that a peace officer is
seeking to effect a lawful arrest or detention of that
person or another person and interferes with the
arrest or detention by:

...

(b) refusing to perform any act required by lawful
order:
(i) necessary to effect the arrest or detention;
and
(ii) made by a peace officer involved in the
arrest or detention; or

(c) refusing to refrain from performing any act that
would impede the arrest or detention.

Utah Code Ann. § 76-8-305(1) (LexisNexis 2017). Amboh’s
ineffective assistance of counsel challenges to this conviction both
focus on the jury instructions for this charge. First, she argues that
Counsel was ineffective for not requesting a unanimity
instruction. Second, she asserts that the jury was not properly
instructed on the mens rea element of the crime. We address each
argument in turn. 7

7. In the event we determine that evidence supporting these two
claims of ineffective assistance of counsel is not in the record,
“[o]ut of an abundance of caution” Amboh also seeks remand
under rule 23B of the Utah Rules of Appellate Procedure to
(continued…)

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State v. Amboh

A. Unanimity Instruction

¶32 The Utah Constitution directs that “[i]n criminal cases the
verdict shall be unanimous.” Utah Const. art. I, § 10. It is
insufficient for a jury to merely find “that a defendant is guilty of
a crime” and render “a generic ‘guilty’ verdict that does not
differentiate among various charges.” State v. Hummel, 2017 UT
19, ¶ 26, 393 P.3d 314 (emphasis in original) (quotation
simplified). See State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951
(stating that the constitutional unanimity requirement “is not met
if a jury unanimously finds only that a defendant is guilty of a
crime”). Rather, a jury verdict must be unanimous “as to a specific
crime” and “on all elements of a criminal charge for a conviction
to stand,” Hummel, 2017 UT 19, ¶¶ 28–29 (quotation simplified).
See State v. Case, 2020 UT App 81, ¶ 21, 467 P.3d 893 (“Where the
evidence indicates that more than one distinct criminal act has
been committed but the defendant is charged with only one count
of criminal conduct, the jury must be unanimous as to which act
or incident constitutes the charged crime.”) (quotation
simplified), cert. denied, 474 P.3d 948 (Utah 2020). Otherwise, the
State’s burden of proof at trial is “effectively lowered,” see State v.
Alires, 2019 UT App 206, ¶ 25, 455 P.3d 636, cert. denied, 466 P.3d

supplement the record with such evidence. In conjunction with
this motion, Amboh filed a declaration by Counsel stating that he
did not request a unanimity instruction or that any changes be
made to the elements instruction on the interference charge. “A
remand under rule 23B will be granted only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” State v. Norton, 2015 UT App 263,
¶ 3, 361 P.3d 719 (quotation simplified). Because, as discussed in
more detail below, the additional facts Amboh alleges are
insufficient to establish the prejudice prong of her
ineffective-assistance claim, we likewise deny her motion for
remand under rule 23B.

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State v. Amboh

1076 (Utah 2020), because it is possible for the jurors to convict in
situations where they “completely disagreed on which acts
occurred or which acts were illegal” but they nonetheless “all
agreed that [the crime] had occurred at some point,” State v.
Mottaghian, 2022 UT App 8, ¶ 56, 504 P.3d 773 (quotation
simplified), cert. denied, 525 P.3d 1256 (Utah 2022). For this reason,
“[w]here neither the charges nor the elements instructions link
each count to a particular act, instructing the jury that it must
agree as to which criminal acts occurred is critical to ensuring
unanimity on each element of each crime.” Alires, 2019 UT App
206, ¶ 23.

¶33 Amboh asserts that although she had been charged with
only one count of interference with a peace officer, the
prosecution stated during closing argument that she had
committed the crime twice: when she left the scene of the first stop
in her ride’s car and when she resisted being handcuffed during
the second stop. At trial, the jury was generally instructed that its
“verdict must be unanimous; all jurors must agree,” but it was not
instructed that it had to unanimously agree on which alleged act
constituted interference with a peace officer. Amboh therefore
contends that Counsel was ineffective for not requesting a more
specific unanimity instruction on the interference charge. But
because Amboh has not made a prima facie showing of prejudice,
we hold that Counsel was not ineffective in this respect. 8

¶34 In determining whether a defendant was prejudiced by
trial counsel’s deficient performance, “a court hearing an
ineffectiveness claim must consider the totality of the evidence

8. Amboh also argues that the trial court plainly erred in not
properly instructing the jury on unanimity. Because “the
prejudice test is the same whether under the claim of ineffective
assistance or plain error,” State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d
699, our resolution of her ineffective assistance claim on prejudice
grounds likewise resolves her plain error claim.

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State v. Amboh

before the judge or jury.” Strickland v. Washington, 466 U.S. 668,
695 (1984). “[A] verdict or conclusion only weakly supported by
the record is more likely to have been affected by errors than one
with overwhelming record support.” Id. at 696. See Gregg v. State,
2012 UT 32, ¶ 21, 279 P.3d 396 (stating that 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”) (quotation
simplified); Alires, 2019 UT App 206, ¶¶ 28–29 (holding that the
defendant was prejudiced because “the evidence supporting [his]
guilt was not overwhelming,” “[t]he evidence was conflicting . . .
as to which acts occurred,” and “the surrounding circumstances
were sufficiently ambiguous”). Here, because strong evidence
supported her conviction, it is unlikely Amboh would have
received a more favorable outcome at trial if the jury had been
properly instructed on unanimity.

¶35 Regarding the instance where she left the scene of the first
stop, Amboh argues that “the evidence supported reasonable
doubt whether [she] knew or reasonably should have known that
[Officer] was ‘seeking to effect a lawful arrest or detention’ at that
point.” She asserts that Officer did not testify that he asked her to
stay or that he told her that she was not free to leave before he
returned her driver license to her. “To the contrary,” she contends
that “[t]he fact that [Officer] told her to get a ride supports
reasonable doubt about whether [she] knew or should have
known [he] was seeking to effect an arrest or detention.” She also
asserts that Officer’s testimony is unclear about whether she
“heard him or could see him because it was 1:00 a.m. and dark.”

¶36 But despite Amboh’s assertion to the contrary, Officer
testified that he told Amboh he “would be back with her after she
called for a ride,” thus directly communicating to her that the stop
had not come to an end. Additionally, a reasonable person would
have understood Officer’s retention of her driver license as an

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State v. Amboh

indication that she was not yet free to leave. Finally, Officer
testified that as soon as he realized that Amboh did not merely
intend to direct her ride to park in front of her but to enter the
vehicle, he “yelled out” “stop” and “Tara, hold on. Tara,” and
then “waved” his hands and again “yelled ‘stop’” as Amboh
drove off. This, in addition to his testimony that he would have
been parked somewhere between 15 and 20 feet from Amboh,
strongly indicates that she should have, at the very least, heard
his calls if not seen him waving after her as she entered the second
vehicle.

¶37 Regarding the second act, that of resisting Officer’s efforts
to handcuff her, Amboh similarly argues that the evidence
supported reasonable doubt whether she knew Officer was
attempting to effect an arrest and whether she had the requisite
mens rea when she pulled her arm away and was not simply
“reacting out of confusion, instinct, or a pinch from the
handcuffs.” In support of this assertion, she points to the
uncontested fact that Officer did not inform her that she was
under arrest before proceeding to handcuff her. Amboh also
contends that “the evidence was conflicting and contested”
because Officer acknowledged that he did not include this
instance of interference in his written report and because, due to
darkness, the body camera footage did not show her pulling her
arm away.

¶38 But the body camera footage presented at trial constitutes
compelling evidence in support of Amboh’s conviction. The audio
from the video supported Officer’s testimony that Amboh was
“openly hostile” toward him. Amboh was heard refusing to sign
the citation or to be fingerprinted, stating, “No, I’m not going to
do any of your stuff. Sorry. I’m refusing everything,” and, “I’ll get
everything that the courts need and I will be after you, man.”
Officer then asked her to “step on out of the vehicle” and
instructed her three times, “Place your hands behind your back,”
to which Amboh responded, “Hey. Hey,” and, “Wow.” After

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State v. Amboh

Amboh pulled her hand away, Officer told her, “Stop resisting.”
Even absent a direct statement that she was under arrest, a
reasonable person in Amboh’s position would have understood a
police officer’s thrice-repeated instruction to place her hands
behind her back to mean that she was under arrest.

¶39 Furthermore, Amboh’s responses of “Hey. Hey.” and
“Wow.” are consistent with an understanding that she was being
placed under arrest, to which she took exception. Although the
darkness prevented the body camera from showing the
handcuffing, Officer’s response of “Stop resisting” after repeated
calls to place her hands behind her back supports Officer’s
testimony that Amboh had pulled her hand away at that point.
See Utah Code Ann. § 76-8-305(1)(c) (LexisNexis 2017) (stating
that, among other things, a person “interferes with the arrest or
detention by . . . refusing to refrain from performing any act that
would impede the arrest or detention”). In any event, the act of
refusing to comply with the repeated directions to place her hands
behind her back in and of itself is sufficient to constitute
interference with a peace officer. See id. § 76-8-305(1)(b) (stating
that, among other things, a person “interferes with the arrest or
detention by . . . refusing to perform any act required by lawful
order: (i) necessary to effect the arrest or detention; and (ii) made
by a peace officer involved in the arrest or detention”). Finally,
Amboh’s hostile attitude and refusal to cooperate before being
asked to exit the car are indicative of Amboh’s state of mind and
intention to resist Officer’s requests.

¶40 In sum, even under the lower burden of proof applied in
this appeal, because strong evidence supports Amboh’s
conviction for interfering with a peace officer as concerns both
instances of interfering, we are unconvinced that the jury would
have acquitted her of the charge had it received a proper
unanimity instruction. In other words, a reasonable jury, properly
instructed on the need for unanimity, would have had no

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State v. Amboh

difficulty in unanimously convicting her on either allegation that
constituted interference with a peace officer.

B. Mens Rea Instruction

¶41 The jury was instructed that it could not convict Amboh of
interfering with a peace officer unless it found “beyond a
reasonable doubt each of the following elements”:

1. Tara Jeanne Amboh;

2. Had knowledge, or by the exercise of reasonable
care should have had knowledge;

3. That a peace officer was seeking to effect a lawful
arrest or detention of the defendant or another; and

4. Interfered with the arrest or detention by:

a. Refusing to perform any act by lawful
order:

i. Necessary to effect the arrest or
detention; and

ii. Made by a peace officer in the arrest
or detention;

or

b. Refusing to refrain from performing any
act that would impede the arrest or
detention.

¶42 Amboh contends that “although the instruction contains a
knowledge requirement in the second numbered item, the
grammar, sentence structure, and wording of the instruction
make that knowledge requirement a distinct element rather than

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State v. Amboh

the mens rea applicable to the interference act element.” In other
words, she asserts that the elements instruction fell short because
it did not include a mens rea requirement as part of the fourth
numbered item of the instruction. Accordingly, Amboh contends
that Counsel was ineffective for failing to ensure that the jury was
properly instructed on mens rea. But for many of the same reasons
discussed above, Amboh has not made a prima facie showing of
prejudice, and so this argument is unavailing as well.

¶43 Amboh’s prejudice argument is almost identical to the
argument she makes related to the unanimity instruction. She
asserts that she was prejudiced because “the evidence supports
reasonable doubt about whether [she] was aware that [Officer]
was still attempting to ‘effect an arrest or detention’ at the time
she got in her ride’s car” because he “never told her she was
arrested or detained or could not leave.” She further contends that
“the evidence again supports reasonable doubt about whether
[she] was aware but consciously disregarded a risk that pulling
her arm away interfered with an arrest” because Officer did not
inform her that she was under arrest, the act of pulling her arm
away could have been involuntary, Officer’s testimony was
contested because he did not note that instance of interference in
his written report, and the act was not visible in the body camera
footage.

¶44 For the same reasons discussed in Part II.A above, given
the strength of the evidence supporting her conviction for
interfering with a police officer, Amboh has not made a prima
facie showing of prejudice, and this ineffective assistance of
counsel claim likewise necessarily fails.

CONCLUSION

¶45 Amboh has made “a prima facie showing of a plausible
basis for reversal” of her conviction for operating a motor vehicle
without insurance. AL-IN Partners, LLC v. LifeVantage Corp., 2021

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State v. Amboh

UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Accordingly, we
reverse that conviction and remand to the trial court for such
further proceedings as may now be in order. But because Amboh
has not made such a showing in challenging her conviction for
interfering with a peace officer, we affirm that conviction.

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