State v. Arnold

2023 UT App 68
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
WILLIAM JOHN A RNOLD ,
Appellant.
Opinion
No. 20210286-CA
Filed June 23, 2023
Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 201800052
Freyja Johnson, Emily Adams, and Hannah
Leavitt-Howell, Attorneys for Appellant, assisted by
law students Brock Mason, Christopher Melling, and
Hunter Sullivan0F
1
Sean D. Reyes, Christopher D. Ballard, and William
M. Hains, Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 	William John Arnold’s ex-wife, Tabitha,1F
2 reported to police
that one evening Arnold broke into her home and spent the night
with her while threatening her with a gun. The undisputed details
of the night include Arnold choking Tabitha and punching her in
the face, firing the gun into a mirror behind her, driving her
1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
2. A pseudonym.

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around to various locations, trying to convince her to shoot him
or else threatening to do “suicide by cop,” and leaving the next
morning with the gun. The two also had sexual intercourse, which
Tabitha testified was not consensual. After a trial, a jury convicted
Arnold on nine charges related to these events. Arnold now
claims 	his 	defense 	attorney 	(Counsel) 	provided 	ineffective
assistance and appeals his convictions on seven of the nine
charges: aggravated burglary, aggravated robbery, aggravated
kidnapping, aggravated sexual assault, theft, criminal mischief,
and felony discharge of a firearm with injury. He asserts that
Counsel performed deficiently for failing to (1) object to erroneous
jury instructions for the charges of aggravated sexual assault,
aggravated kidnapping, and theft; (2) move for a directed verdict
on or object to the jury instructions concerning the criminal
mischief charge; (3) move for a directed verdict on the charge of
discharge of a firearm with injury; and (4) object to Tabitha’s
testimony that she believed Arnold to be a felon. Arnold argues
that he was prejudiced by each of these alleged deficiencies. We
ultimately conclude that—for each claimed instance of ineffective
assistance—either Counsel did not perform deficiently or Arnold
was not prejudiced. As a result, we affirm all of Arnold’s
convictions.
BACKGROUND2F
3
¶2 	Arnold and Tabitha shared a “tumultuous, on-again-off-
again relationship” for about a decade. The two were divorced
just over a year after their marriage, yet they continued their
romantic relationship after the divorce despite their recurring
fighting. 	However, 	by 	December 	2019, 	Tabitha 	had 	evicted
Arnold from her home. When he returned later that month,
3. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Thomas, 2019 UT App 177, n.1, 474 P.3d 470
(cleaned up), cert. denied, 462 P.3d 804 (Utah 2020).

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Tabitha called the police, and officers came and informed Arnold
that he was no longer allowed to come to the house. Arnold was
supposed to return all the keys he had to Tabitha’s home, but he
failed to do so.
Arnold Arrives and Assaults Tabitha
¶3 	One night in February 2020 at approximately 9:30 p.m.,
Tabitha was sitting in her home office at her computer and was
“startled . . . and scared” to look up and see Arnold standing in
the doorway. He had been watching her home from a distance
through binoculars for a couple of hours and later admitted that
he knew he was not allowed to be there. But he came into the
home and told Tabitha he was there to retrieve the title to a pickup
truck the two had discussed in the past. Tabitha told Arnold that
he had already taken the title and it wasn’t there, but he began
ransacking her office and then her bedroom looking for it. Arnold
was “very, very agitated.” Tabitha testified that when she said the
truck was technically hers, Arnold grabbed her by the neck and
lifted her off the ground. She said she couldn’t breathe and feared
passing out or dying, so she scratched Arnold’s face to try to get
loose. Arnold admitted to choking her but claimed her feet
remained on the ground and that she scratched him after he let
her go. Arnold responded by punching her in the eye with a
closed fist. He said he “know[s] she’s frail” and “[s]he bruises and
breaks easy because all the medication she’s on” but that he
“barely hit her.” Tabitha, on the other hand, said the hit was so
hard that she “saw stars” or “a bright light.” A later CT scan
revealed multiple broken bones around Tabitha’s left eye. After
Arnold’s punch, Tabitha felt dizzy and like she “had a black eye”
that was “starting to swell” and “was going to swell so bad it
would swell shut.” Shortly thereafter she could no longer see out
of that eye.
Arnold Obtains and Shoots a Gun
¶4 	As Arnold continued ransacking Tabitha’s bedroom in
search of the title, he found a loaded .22-caliber pistol she had

State v. Arnold
20210286-CA 	4 	2023 UT App 68
hidden 	under 	her 	bed. 	When 	Counsel 	later 	cross-examined
Tabitha about the gun, he asked, “He didn’t bring his own
.22-caliber pistol to your house to kill you, as far as you know, did
he?” Tabitha responded, “I believe he is a felon. He’s not allowed
to own a weapon.” On appeal, Arnold claims that Counsel should
have objected to this statement. Instead, Counsel said, “Well,
that’s not my question. He didn’t bring a gun to your house, did
he?” Tabitha responded, “No, he didn’t.”
¶5 	Arnold admitted that he removed the gun from under
Tabitha’s bed and that she didn’t give it to him, but he said, “I
don’t think I took it either, but—I mean, 17 years in the oil field
giving her my paycheck, I seem to think half of everything is
mine.” He agreed, though, that no property distribution between
the parties had been adjudicated. He relayed that the gun had
belonged to Tabitha’s ex-husband and had been in pawn when
the two “got together” and that Arnold had paid to release it from
pawn because she had no money at the time. When the prosecutor
asked on cross-examination, “And you didn’t have permission to
take that gun, did you?” Arnold responded, “Other than the fact
that I paid for it.” But he agreed that the gun had been in Tabitha’s
possession when the evening began and that he took it with him
when he eventually left Tabitha’s home the next morning.
¶6 	Tabitha testified that when Arnold picked up the gun
he commented, “Somebody’s going to die tonight, and I’m
going 	to 	do 	suicide 	by 	cop.” 	At 	the 	time, 	Tabitha 	was
standing across the bed from Arnold. He chambered a round
and, according to Tabitha’s testimony, threatened to kill her
while 	he 	pointed 	the 	gun 	at 	her 	head, 	with 	her 	“looking
right down the barrel.” Arnold fired the gun, and Tabitha testified
that the bullet went “[r]ight past [her] head into [her] mirror on
[her] dresser” and “through the mirror, into the wall.” Arnold
testified that he actually pointed the gun at his own head. He
claimed, “I wanted to kill myself, and I told her she’s going to
watch. And I couldn’t do it. And then I shot my reflection [in the
mirror] . . . .”

State v. Arnold
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¶7 	After Arnold shot the gun, Tabitha’s ears were ringing
from the sound of the shot, and for some time she couldn’t hear.
Arnold said something to her, but she was unable to hear what he
was saying. “[E]ventually,” she regained her ability to hear.
¶8 	Tabitha 	told 	Arnold 	she 	wanted 	a 	cigarette. 	Arnold
testified, “She said if she’s going to die, [she] wants it to be her last
one. I told her, ‘You’re not going to die.’ I go, ‘I want to die.’ And
she was just under the impression—she was scared, I guess, after
I choked her.” Tabitha testified that she had only one cigarette left
and Arnold also wanted one, so she suggested that they go to
town to get more. She also testified that she was afraid Arnold
would kill her and she thought she could get some help in town.
¶9 	Arnold eventually agreed to go to town, but before leaving
he asked where Tabitha’s cell phone was. Tabitha told him it was
in her office, and he told her to bring it to him. She did so, and he
“beat it violently against [her] bedpost to the point he cracked
[her] bedpost [and] completely destroyed [the] cell phone.” At
trial, the prosecutor asked about damage to the bedpost, to which
Tabitha responded that it was cracked and had a “chunk that
[was] ready to fall out of it.” The prosecutor also asked about the
value of the bedpost or the cost of the damage, and Tabitha
answered, “That bedpost actually will screw off, and to really fix
it you’d have to have another one made. The cost of it, I have no
idea.” The prosecutor inquired about the value of the cell phone
that was destroyed, and Tabitha said, “I think I paid $600 for it.
It’s got no value now.”
Arnold Drives Tabitha to Various Locations
¶10 	At approximately 2 or 3 a.m., Arnold and Tabitha left the
house to go to town, with Arnold driving Tabitha’s car. Tabitha
testified that Arnold did not have a driver license because it was
revoked after a DUI. Still, Arnold drove and brought the gun,
which Tabitha testified was in his lap but Arnold testified was
under the seat. Arnold said he didn’t kidnap Tabitha but that,

State v. Arnold
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instead, he told her she could leave at any time and she could have
done so.
¶11 	They drove first to one gas station, but it was closed, so
they drove around and eventually went to another. Tabitha said
Arnold went into the store and took the keys with him. But
Arnold said that he asked her if she wanted him to leave the car
running and she said she didn’t care, so he turned it off like they
usually did and left the keys in the ignition. When asked what
Arnold did with the gun when he went into the gas station,
Tabitha testified, “I don’t remember. I think he took it with him.”
When the prosecutor asked, “Do you remember seeing it in the
vehicle when he left?” she responded, “No.” Arnold stated that
he left the gun under the seat while he went in the store, but he
admitted he didn’t “know if she knew where it was at or not.”
¶12 	Tabitha did not get out of the car. She testified that she
stayed in the car because Arnold told her “if [she] ran [she’d] be
hunted down and killed.” She also said, “I’m old.[3F
4] There is no
run left in me. And looking around, it was cold out there and there
was nowhere to go for help.” Arnold testified that he never said
he would hunt Tabitha down nor threatened to kill her. Tabitha
testified that while Arnold was in the store, another vehicle pulled
up, but she didn’t attempt to ask the driver for help because “[i]t
was a young man in that truck, and he wasn’t a big man.” She
said, “I thought, I don’t want to be responsible for someone else
getting hurt over this.” She also felt unsure as to whether the man
would help her.
¶13 	Arnold returned to the car and drove toward the residence
of an acquaintance, saying he hated the man and wanted to kill
him. But then Arnold stopped the car and handed the gun to
Tabitha, instructing her to kill Arnold. Tabitha responded that she
couldn’t do that. She set the gun on the floor and “was kind of
scooting it back under the seat,” but Arnold soon asked for the
gun back, and Tabitha gave it back to him. She testified that she
4. Tabitha was fifty-eight years old at the time.

State v. Arnold
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did so because she “didn’t want to fight” and she “didn’t want to
be hurt anymore.” Arnold testified that he gave Tabitha the gun
four times—twice at the house and twice in the car—to get her to
kill him but that “[s]he told [him] she couldn’t.” He said, “I
wanted to get her mad so she would.” While they drove, Arnold
talked about “all the horrible things that [Tabitha had] done to
make his life miserable.” Tabitha said she lost track of time and
felt like the whole thing was a nightmare. She also testified that
she never tried to leave because she “didn’t know” and “didn’t
want to find out” exactly what would happen to her if she tried it;
but she said, “I knew he’d come after me.”
¶14 	Eventually, the pair returned to Tabitha’s house, but only
to retrieve the binoculars Arnold had earlier been using to watch
Tabitha’s house. Arnold then drove Tabitha to his residence.
Tabitha testified that she still did not feel like she could leave
while they drove around because Arnold “would come after” her.
She said she still stayed with him because she didn’t want to be
hurt or have her stuff destroyed, and she “just want[ed] to get
through [the] night.” They arrived at Arnold’s place, and when a
police car drove by, Arnold made Tabitha duck down so she
couldn’t be seen.
¶15 	Arnold next took Tabitha to a site where the disputed truck
was parked, told Tabitha to get out and drive the truck, and
started driving away in Tabitha’s car. The truck windows were
covered in ice, so Tabitha rolled down the window and stuck her
head out to drive, but she hit something as she exited the site,
taking the passenger side mirror off. At trial, Arnold postulated
that the fractures around Tabitha’s eye came from hitting her eye
on the truck door during this incident, rather than from his punch.
Tabitha testified that she thought about driving to get help but
didn’t do so because it was very cold, she couldn’t see where she
was driving, she had already learned from driving around town
that there was no one out to provide help, and she didn’t know if
Arnold would come after her. So instead of driving for help, she
used Arnold’s taillights as a guide and followed him back to her
house.

State v. Arnold
20210286-CA 	8 	2023 UT App 68
The Pair Return and Have a Sexual Encounter
¶16 	After returning home, Tabitha sat in front of the fireplace
because she was “freezing cold.” Arnold sat in her living room
recliner with the gun in his lap. Tabitha testified that she didn’t
attempt to call anyone because Arnold would hear her and she
“would be hurt or killed” and “wouldn’t get any help until it was
too late.” But Tabitha sent two messages for help while Arnold
was in her home—one early in the night (around 9:45 p.m.) to her
sister telling her to call 911, and the other through the computer
at approximately 4 a.m. to an acquaintance who is a police officer.
Tabitha recounted that the later message said “something along
the lines of, ‘911. [Arnold’s] here.’” Tabitha did not receive replies
at the time.
¶17 	At some point, Arnold told Tabitha, “I would like to . . . lay
down and hold you in my arms one last time.” Tabitha reported
that she said, “‘Okay,’ hoping that maybe he’d fall asleep.”
Tabitha testified that she was agreeing “[t]o laying down and
having [a] snuggle together and hopefully he’d go to sleep” and
that she was not wanting or agreeing to anything more than that.
Tabitha removed her shoes and pants and lay down with Arnold
in the bed. She testified that she took her pants off “[b]ecause they
were dirty and [she] didn’t want [her] sheets to be all nasty dirty.”
Tabitha then lay with her back to Arnold’s front. She testified that
Arnold kept the gun with him and told her, “If I fall asleep, don’t
you touch that gun.”
¶18 	Tabitha testified that she felt Arnold getting an erection,
and he began pulling on her underwear. She testified, “I can just
remember thinking, I have this huge black, swollen eye and
everything we’ve gone through this night, and you want to have
sex? . . . Are you nuts?” She testified she was “bawling and saying,
‘No. Please, no. No. I don’t want to. No.’” She said she “couldn’t
believe . . . [that] anyone [could] do that to someone and then want
to have sex.” But Arnold persisted and performed oral sex on
Tabitha and then penetrated her vaginally. Throughout this
encounter, Tabitha did not physically resist because “she didn’t

State v. Arnold
20210286-CA 	9 	2023 UT App 68
want to be hurt anymore” and she “just wanted to get through
that night.” Tabitha testified that Arnold kept the gun on his side
of the bed during the sexual encounter. She also said he stated,
“Boy, I’m a sick fuck,” which Tabitha thought referred “to
beat[ing] someone and treat[ing] someone that way and then
want[ing] to have sex with them.” After intercourse, the pair got
cleaned up, and Arnold went to sleep. But Tabitha took pain
medication and stayed awake.
¶19 	Arnold’s testimony regarding the sexual encounter was
different. He testified that after Tabitha removed her pants, she
got in bed and “crawled . . . literally right up to [him] and start[ed]
rubbing on [him] real tight.” He admitted that he was warm and
Tabitha may have been trying to warm up. He also admitted that
Tabitha would sometimes get into bed without pants on and they
wouldn’t always have sex on such occasions. But he testified that
this time, while they had sex, Tabitha didn’t resist or pull away.
He said, “Actually, when I was going down on her, she was
rubbing her fingers through my hair just like she always does.
And when I got done and lifted my head up, she—I didn’t push
her legs up; she pushed her legs up herself, lifted them.” He also
said, “[W]e’ve had fights before where we’ve made up like that.”
He further claimed, “There’s been times where I didn’t have sex
with her and she told me, you know, ‘I got a very high sex drive.
If you would have just pushed me a little further, I would have.’
And she tells everyone she has a high sex drive.” He again stated
later, “She said no before and then changed her mind and told me
the next day, ‘Well, I really wanted to. Why [weren’t] you just a
little more persistent? You know I got a high sex drive.’”
¶20 	Arnold also indicated that, in the past, the two had had sex
after Tabitha had been violent toward him. He recounted a time
when the pair had gotten into an argument and were throwing
each other’s clothes out the front door and she got a gun. He
stated,
I went out on the porch and I told her, “If you’re
going to shoot me, shoot me, then, bitch.” And I

State v. Arnold
20210286-CA 	10 	2023 UT App 68
started grabbing my clothes and bringing them back
in, and she goes, “You ain’t bringing your clothes
back in and you ain’t stepping back in.” And she
cocked it back and pointed it at my head, and I
grabbed it and pushed it down.
I should have pushed it up, but I wasn’t
thinking; and I pushed it down and it shot through
my leg.
Arnold testified that the pair had sex a week later, and he said he
was fully recovered by then. He said that they would “always
fight and have sex afterwards,” including after occasions when
she scratched and hit him. He declared that he believed her
feelings on the night in question were like those other, previous
times when she said no but the next day “got mad at [him]
because [he] wasn’t persistent.” However, Arnold acknowledged
that he did, in fact, hear Tabitha say no two times during the
sexual encounter. As to the location of the gun during the
encounter, Arnold testified that Tabitha was the one to set the gun
on the bed after the last time he told her to shoot him and that it
was down by their feet while they had sex.
Arnold Leaves and Tabitha Prompts an Investigation
¶21 	Tabitha said that when Arnold woke up, he asked Tabitha
for money while holding the gun, and she gave him the money
she had in her coat pocket—between ten and fifteen dollars—to
get him to leave. Arnold agreed that he asked for money and
Tabitha gave it to him before he left. Counsel asked Arnold, after
Tabitha initially told him she wanted him to leave the evening
before, “Was it your impression or was it not your impression that
you were okay to stay there?” Arnold responded, “I knew I
probably wasn’t okay to stay there.”
¶22 	After he left, Tabitha said she waited for about fifteen
minutes in case he was watching, then crawled from the living
room to the landline telephone in her office and called the police.

State v. Arnold
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She said she did this because she thought, “He’s gone but he could
be watching me. If he sees me get that phone, he’s going to come
back and get me and I’m going to have to live through more of
this.”
¶23 	Tabitha met with officers that morning and described the
events of the night, but she did not initially tell officers that she
had been raped. She later explained that she was ashamed and
was reluctant to disclose the rape to the officers because “there
[were] a bunch of men hanging around” and because of the “huge
stigma” associated with rape. But after meeting with the officers,
she went to the hospital for an examination, and there she
informed medical personnel, who were women, that she had been
raped.
¶24 	The sexual assault nurse examiner (Nurse) who examined
Tabitha at the hospital testified at trial that she remembered
Tabitha’s exam “far more” than she remembered most exams
“[b]ecause of the number of injuries that [Tabitha] had.” She
testified that she identified various injuries on Tabitha: a black eye
that was “quite bruised, quite swollen,” bruising on her neck
consistent with strangulation, “swelling on the right side of her
head,” bruising on both elbows, and bruising above both biceps
“consistent with having been grabbed.” Regarding injuries in
Tabitha’s vaginal area, Nurse reported “extensive bruising at the
posterior of the vaginal wall,” bruising of the perihymenal tissue,
bruising on the cervix, bruising on the tissue below the vaginal
wall, and a laceration on “the outermost part of the inferior
vaginal wall.” Nurse opined that these injuries were “more
consistent” with Tabitha having been sexually assaulted than
having had consensual sex. She also testified that, during the
exam, Tabitha “expressed fear that she would be killed” and
“frequently was tearful and asked, ‘Why did this happen[?]’” On
cross-examination, Counsel asked Nurse to read a line from her
written 	summary 	of 	the 	account 	Tabitha 	gave 	during 	the
examination, which stated that while driving, Tabitha had “hit
something and hit her eye on the door.”

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¶25 	Based on its investigation, the State charged Arnold with
(1) 	attempted 	aggravated 	murder; 	(2) 	aggravated 	burglary;
(3) aggravated 	robbery; 	(4) 	aggravated 	kidnapping;
(5) aggravated sexual assault; (6) theft; (7) aggravated assault;
(8) purchase, 	transfer, 	possession 	or 	use 	of 	a 	firearm 	by 	a
restricted 	person; 	(9) 	violation 	of 	a 	protective 	order;
(10) retaliation 	against 	a 	witness, 	victim, 	or 	informant;
(11) criminal mischief; and (12) felony discharge of a firearm with
injury.
Additional Relevant Testimony Is Given at Trial
¶26 	At trial, in addition to the testimonies detailed above, the
emergency room doctor testified that a possible side effect of
Tabitha’s medications was easy bruising, though Nurse indicated
that none of Tabitha’s listed medications were blood thinners.
¶27 	Three deputies (Deputy 1, Deputy 2, and Deputy 3) who
responded to Tabitha’s 911 call also testified. Deputy 1 testified
that when he arrived, he found that Tabitha “had a large . . .
swelling to her left eye that was rather significant that caused
pretty great alarm,” so he requested a medical response to the
scene. 	Deputy 	2 	testified 	that 	Tabitha 	appeared 	“[h]ighly
emotional” and that “[h]er voice was trembling [and] she was
shaking.” He also testified, “One of the first things she said to me
was that, ‘You have to find him, you have to find him. He’s going
to kill somebody.’” Deputy 3 likewise indicated that Tabitha’s eye
“was completely swollen shut and blood-filled and couldn’t have
any visual,” that Tabitha was “[v]ery distraught, very emotional,”
and that “[i]t was very hard for her to complete and construct her
sentences and her thoughts.” Additionally, Deputy 1 and Deputy
3 testified that Tabitha said she was taking blood thinners.
¶28 	Deputy 3 testified about an outstanding protective order
against Arnold that Tabitha had obtained in 2012 (before the
parties had been married). Deputy 3 testified that the protective
order was still active and it prohibited Arnold from going to
Tabitha’s home and from contacting her via phone, email, or other

State v. Arnold
20210286-CA 	13 	2023 UT App 68
methods. On this point, Arnold testified that Tabitha had told him
that protective orders go away after two years. And Tabitha
testified that she thought the protective order worked both ways
and prevented both parties from interacting with each other.
¶29 	Deputy 1 and Deputy 3 testified about the bullet hole
through the mirror, and Deputy 3 also testified that there were
multiple holes in the wall, likely from “fragments of the dresser
and . . . the lead [from the bullet] going through that wall.” Deputy
3 also testified that he believed the location of a bullet casing he
found to be consistent with Tabitha’s description of the shooting.
¶30 	Deputy 2 testified that he and other officers arrested
Arnold at his residence that morning, where they also found the
gun. Deputy 3 testified that Arnold had a scratch on his face
consistent with Tabitha’s account of the events. And he testified
that Arnold, upon arrest, had twelve dollars in his pants, also
consistent with Tabitha’s account.
¶31 	Deputy 3 testified that four days later he interviewed
Tabitha again and found her “a lot more rational, calm, collected”
and able to provide “more detail” into the events, which change,
he testified, was normal and expected for victims of these types of
crimes. He also testified that a vaginal swab, which had been
collected as part of Tabitha’s rape examination and subsequently
sent to the state lab for testing, matched a sample of Arnold’s
DNA, which had also been sent to the state lab. On cross-
examination, Deputy 3 confirmed that Tabitha had told him that
while driving Arnold handed her the gun twice but took it back
when she wouldn’t shoot him.
The Jury Convicts on Nine Charges
¶32 	After all the witnesses testified, the State withdrew the
attempted murder charge before submitting the case to the jury.
On the charge of possession or use of a firearm by a restricted
person, the jury instructions indicated that the parties stipulated
that Arnold “was a Category II restricted person at the time of the

State v. Arnold
20210286-CA 	14 	2023 UT App 68
alleged offense.” The jury deliberated and acquitted Arnold of the
charges of violating a protective order and retaliating against a
witness, victim, or informant but convicted him of all nine
remaining charges. Of these, Arnold now appeals his convictions
on seven charges: aggravated burglary, aggravated robbery,
aggravated kidnapping, aggravated sexual assault, theft, criminal
mischief, and felony discharge of a firearm with injury.
ISSUES AND STANDARD OF REVIEW
¶33 	Arnold claims that Counsel provided ineffective assistance
and that, accordingly, seven of his convictions should be reversed.
Arnold 	presents 	several 	issues, 	asserting 	that 	Counsel 	was
ineffective for (1) not objecting to erroneous jury instructions for
the aggravated sexual assault, aggravated kidnapping, and theft
charges; (2) not moving for a directed verdict on or objecting to
the jury instructions for the criminal mischief charge; (3) not
moving for a directed verdict on the discharge of a firearm charge;
and (4) not objecting to Tabitha’s testimony that she believed
Arnold to be a felon.
¶34 	“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 [the appellate court] must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up),
cert. denied, 432 P.3d 1225 (Utah 2018).
ANALYSIS
¶35 	“To prevail on a claim of ineffective assistance of counsel,
[a defendant] must demonstrate that (1) [defense] counsel’s
performance was deficient in that it fell below an objective
standard of reasonableness and (2) the deficient performance
prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34,

State v. Arnold
20210286-CA 	15 	2023 UT App 68
523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023);
see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶36 	The first prong “requires showing that counsel made errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687. “[T]he proper standard for attorney performance
is that of reasonably effective assistance.” Id. In other words, “the
defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. “In evaluating
trial counsel’s performance, we give trial counsel wide latitude in
making tactical decisions and will not question such decisions
unless there is no reasonable basis supporting them.” State v. Liti,
2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up).
¶37 	The second prong “requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. “When a
defendant challenges a conviction, the question is whether there
is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Id. at 695.
“Unless a defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.” Id. at 687. “Because
failure to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address [a defendant’s]
claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342
P.3d 182. We address each of Arnold’s assertions of ineffective
assistance in turn.
I. Counsel’s Failure to Object to Jury Instructions
¶38 	Arnold claims, “The jury was not properly instructed on
three offenses . . . . Specifically, the jury was not instructed on two
elements of aggravated sexual assault (the mens rea for consent
and the requirement that a dangerous weapon be used ‘in the
course’ of the crime), key statutory language for aggravated
kidnapping, and affirmative defenses to theft.” He asserts that

State v. Arnold
20210286-CA 	16 	2023 UT App 68
“[C]ounsel’s failure to object to the erroneous instructions or
propose correct instructions constituted ineffective assistance
. . . .” “Absent some tactical explanation, defense counsel’s failure
to object to a jury instruction that does not alert the jury to every
element of the crime with which [the defendant] was charged
constitutes deficient performance.” State v. Liti, 2015 UT App 186,
¶ 18, 355 P.3d 1078 (cleaned up).
¶39 	Even 	if 	we 	assume 	without 	deciding 	that 	Counsel’s
performance was deficient in this respect, Utah and United States
caselaw indicate:
A 	proper 	analysis 	also 	needs 	to 	focus 	on 	the
evidence before the jury and whether the jury could
reasonably have found that . . . a failure to instruct
the jury properly undermines confidence in the
verdict. . . . A court must consider the totality of the
evidence before the judge or jury and then ask if the
defendant has met the burden of showing that . . .
there 	is 	a 	reasonable 	probability 	that, 	but 	for
counsel’s unprofessional errors, the result of the
proceeding would have been different. Ultimately,
a reasonable probability is a probability sufficient to
undermine confidence in the outcome.
State v. Garcia, 2017 UT 53, ¶ 42, 424 P.3d 171 (cleaned up)
(discussing Strickland v. Washington, 466 U.S. 668, 694–96 (1984)).
After considering the totality of the evidence presented to the
jury, we conclude that Arnold was not prejudiced by any of the
erroneous jury instructions. We address each of the relevant jury
instructions in turn.
A. 	Aggravated Sexual Assault
¶40 	Arnold first alleges ineffective assistance because Counsel
did not object to the jury instruction on sexual assault based on
two errors. The instruction in question read,

State v. Arnold
20210286-CA 	17 	2023 UT App 68
You cannot convict him of this offense unless you
find 	beyond 	a 	reasonable 	doubt 	based 	on 	the
evidence each of the following . . . elements:· that
[Arnold] did knowingly, intentionally, or recklessly
have sexual intercourse with [Tabitha] without her·
consent and used or threatened her with the use of
a dangerous weapon.
Arnold asserts that this instruction failed to properly instruct the
jury on the mens rea requirement for this charge and failed to
provide the statutory language that the use or threat of use of the
dangerous weapon must have occurred “in the course of” the
sexual assault. See Utah Code § 76-5-405(2)(a).
1. 	The Mens Rea Requirement
¶41 	Our supreme court has explained that “the crime of rape
requires 	proof 	not 	only 	that 	a 	defendant 	‘knowingly,
intentionally, or recklessly had sexual intercourse,’ but also that
[the defendant] had the requisite mens rea as to the victim’s
nonconsent.” State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676. This
means a jury should be instructed that a defendant accused of
rape must have acted knowingly, intentionally, or recklessly as to
the victim’s nonconsent.4F
5
5. We echo our supreme court’s declaration that “going forward,
. . . district courts should ensure that jury instructions for rape
clearly require a finding that a defendant had the requisite mens
rea as to the victim’s nonconsent.” State v. Newton, 2020 UT 24,
¶ 29, 466 P.3d 135 (cleaned up). Recent decisions clearly indicate
that the district court ought to ensure the correctness of these
instructions. See State v. Barela, 2015 UT 22, ¶¶ 25–27, 30, 349 P.3d
676; State v. Norton, 2021 UT 2, ¶ 51, 481 P.3d 445. Our supreme
court endorsed the use of Model Utah Jury Instruction 1605:
(continued…)

State v. Arnold
20210286-CA 	18 	2023 UT App 68
¶42 	“A person engages in conduct . . . [r]ecklessly with respect
to circumstances surrounding [the actor’s] conduct or the result of
[the actor’s] conduct when [the actor] is aware of but consciously
disregards 	a 	substantial 	and 	unjustifiable 	risk 	that 	the
circumstances exist or the result will occur. The risk must be of
such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the
actor’s standpoint.” Utah Code § 76-2-103(3).
¶43 	In State v. Barela, 2015 UT 22, 349 P.3d 676, a massage
therapist and client presented different accounts of a sexual
encounter, with the therapist testifying that the client initiated
and engaged in sex and the client testifying that the therapist—
without encouragement or consent—inappropriately rubbed her
inner 	thigh 	during 	the 	massage 	and 	then 	penetrated 	her
vaginally, id. ¶¶ 5–7. In evaluating a jury instruction very similar
to the one at issue here, id. ¶ 25, our supreme court concluded that
“reasonable trial counsel should have objected to it,” id. ¶ 27. And
the court ultimately determined that the faulty jury instruction
(DEFENDANT’S NAME) is charged [in Count__]
with committing Rape [on or about DATE]. You
cannot convict [him][her] of this offense unless,
based 	on 	the 	evidence, 	you 	find 	beyond 	a
reasonable doubt each of the following elements:
1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly had sexual
intercourse with (VICTIM’S NAME);
3. Without (VICTIM’S NAME)’s consent; and
4. 	(DEFENDANT’S 	NAME) 	acted 	with 	intent,
knowledge or recklessness that (VICTIM’S NAME)
did not consent.
Newton, 2020 UT 24, ¶ 29 (brackets in original) (quoting Model
Utah Jury Instructions 2d CR1605 (2015), https://legacy.utcourts.
gov/resources/muji/inc_list.asp?action=showRule&id=44#1605
[https://perma.cc/S78Q-PSHF]).

State v. Arnold
20210286-CA 	19 	2023 UT App 68
was prejudicial to the defendant. Id. ¶ 32. Later, discussing Barela
in another case, the court explained,
This court found that the evidence was such that a
jury 	could 	have 	“thought 	that 	the 	truth 	fell
somewhere in between the two accounts.” While the
victim in that case said the defendant had suddenly
instigated and perpetrated the intercourse without
her consent, she testified that she “froze,” “neither
actively 	participating 	in 	sex 	nor 	speaking 	any
words,” and otherwise expressed no reaction. This
court concluded that a jury could have believed that
although the victim did not consent, the defendant
may have mistakenly thought she did. Accordingly,
we held that it was “reasonably likely” that a proper
jury instruction regarding the requisite mental state
as to the victim’s nonconsent could have affected the
outcome of the trial.
State v. Norton, 2021 UT 2, ¶¶ 48–49, 481 P.3d 445 (cleaned up).
¶44 	On the other hand, in State v. Newton, 2020 UT 24, 466 P.3d
135, our supreme court found that a defendant was not prejudiced
as a result of similarly deficient jury instructions, id. ¶¶ 19, 30. The
defendant faced rape charges based on the victim’s account that,
after a party, the defendant attacked her in his car and violently
forced her to have sex despite her screaming, crying, and fighting
back and that he also choked her and pointed a gun at her. Id. ¶ 4.
The defendant told a different story, claiming that the victim
initiated and participated willingly in sex. Id. ¶ 6. The court
determined 	that 	the 	defendant 	was 	not 	prejudiced 	because
neither version presented the possibility that the victim didn’t
consent but the defendant reasonably believed she did. Id. ¶ 34.
The court explained that because “the evidence shows only that
she either fought back or initiated the sex[,] . . . the jury could not
easily have thought that the truth fell somewhere in between the
two accounts.” Id. (cleaned up). “So in convicting [the defendant],

State v. Arnold
20210286-CA 	20 	2023 UT App 68
the jury must have found that [the victim] did not consent and, by
extension, 	must 	have 	concluded 	that 	[the 	defendant]
intentionally, knowingly, or recklessly had nonconsensual sexual
intercourse with [the victim].” Id. (cleaned up). The court noted
that the victim’s version of the events was also corroborated by
extensive injuries identified during her medical examination,
including genital injuries that would have been painful enough
for her to stop consensual intercourse, evidence of strangulation,
and bruising on her arms and legs. Id. ¶ 35. Accordingly, the court
concluded that the evidence supported a jury determination that
the defendant was at least reckless as to the victim’s consent. See
id. ¶¶ 35–36. Because its confidence in the outcome was not
undermined, the court found no prejudice. See id.
¶45 	Likewise, in State v. Norton, 2021 UT 2, 481 P.3d 445, our
supreme court held that similar instructions were not prejudicial,
id. ¶¶ 38–39, 49–51. There, a woman accused her estranged
husband—against whom she had a protective order—of breaking
into her parents’ home, assaulting her and tying her up with duct
tape, abducting her, and forcibly penetrating her vaginally while
holding her down. Id. ¶¶ 1, 5–9. She testified that she said “no”
repeatedly and also physically resisted. Id. ¶¶ 8–9. The estranged
husband, on the other hand, described how the wife willingly left
with 	him 	and 	initiated 	physical 	affection 	that 	resulted 	in
consensual sex. Id. ¶¶ 14–16. He testified that the pair later argued
and “rastled,” including him backhanding her and grabbing her
hands. Id. ¶ 17. The jury convicted the husband of aggravated
sexual assault and other charges, and he argued on appeal that
the jury instructions were prejudicial because they did 	not
identify the mens rea regarding consent. Id. ¶¶ 20, 33. Our
supreme court disagreed, concluding that “a reasonable jury
could not have found that [the husband] mistook [the wife’s]
conduct for consent based on the totality of the evidence.” Id. ¶ 42.
This was because the husband’s “testimony did not describe
ambiguous behavior that he could have believed was consent,”
the wife’s “testimony similarly left no room for a finding that [the
husband] mistook her conduct for consent,” and “[o]ther evidence
corroborated her version of events”—including the use of duct

State v. Arnold
20210286-CA 	21 	2023 UT App 68
tape and injuries on the wife’s back, face, inner thighs, and labia.
Id. ¶¶ 43–45.
¶46 	The State argues that “[t]he facts here contain none of the
subtlety that drove the result in Barela. Rather, as in Newton and
Norton, the only issue was whose version of consent to believe.”
We disagree. Unlike in Newton and Norton, Arnold’s and Tabitha’s
accounts are not so very different that the jury must have chosen
to believe one at the complete exclusion of the other. Both testified
that Tabitha took off her pants, climbed in the bed, and lay with
Arnold and that sex subsequently ensued. To be sure, the parties’
descriptions contained other contradictory facts. But we first
acknowledge that this case is unlike Newton and Norton, where
neither party testified to behavior that could have been construed
to be ambiguous. See Norton, 2021 UT 2, ¶ 43; Newton, 2020 UT 24,
¶ 34. Indeed, Tabitha admitted that she did not physically resist
Arnold because she “didn’t want to be hurt more,” and Arnold
testified that Tabitha ran her hands through his hair as she
normally would during oral sex and lifted her legs up on her own.
In this respect, the present case is more like Barela, where there
was behavior that was potentially ambiguous. See 2015 UT 22,
¶ 29.
¶47 	However, 	unlike 	in 	Barela, 	both 	Arnold 	and 	Tabitha
testified that Tabitha said “no,” with Tabitha stating that she did
so repeatedly while sobbing and Arnold admitting that he heard
her say “no” twice. We consider it critical to accept that “[n]o
means no.” State v. Cady, 2018 UT App 8, ¶ 1, 414 P.3d 974, cert.
denied, 421 P.3d 439 (Utah 2018). By admitting that Tabitha said no
twice, Arnold would have to convince us that some exceptional
circumstances applied to make it reasonable for him to believe
that no—stated twice—actually meant yes. As explained below,
he fails to accomplish this feat. While we agree with Arnold that
this case is less straightforward than Newton and Norton and
disagree with the State’s contention that “as in Newton and Norton,
the only issue was whose version of consent to believe,” on the
record before us, our agreement with Arnold on this point does
not carry the day for him. Ultimately, we are not convinced that,

State v. Arnold
20210286-CA 	22 	2023 UT App 68
on these facts, a reasonable jury could have looked “at the totality
of the trial evidence here and [found] that, under either version of
events, [Arnold] may have mistaken [Tabitha’s] conduct for
consent.” See Norton, 2021 UT 2, ¶ 49.
¶48 	Arnold asserts that the parties’ history made it reasonable
for him to believe that Tabitha was consenting when she said
“no.” He testified: “There’s been times where I didn’t have sex
with her and she told me, you know, ‘I got a very high sex drive.
If you would have just pushed me a little further, I would have.’”
He also claimed that “[s]he said no before and then changed her
mind and told me the next day, ‘Well, I really wanted to. Why
[weren’t] you just a little more persistent? You know I got a high
sex drive.’” But Arnold’s own testimony does not support a
conclusion that he could have reasonably supposed that this was
a time when Tabitha just wanted him to be more persistent.
¶49 	First, we note that nothing in Arnold’s description of the
parties’ past sexual history indicates that Arnold ever successfully
changed Tabitha’s mind during the course of a sexual encounter.
Her alleged statements on days after the couple did not have sex
do not establish a history where Tabitha first said “no” but
changed her mind during the course of sex—and her feelings on
consent the day after not having sex do not reliably establish her
feelings on consent at the time. But the more important question
is whether Arnold could have reasonably believed Tabitha’s noes
to be yeses here.
¶50 	Arnold testified that the couple “had fights before where
[they] made up like that,” meaning having sex, including after she
“scratched and hit” him, as well as a week after she shot him in
the leg, when he had fully recovered. Even if true, this testimony
does not provide evidence of a single instance when Tabitha
consented 	to 	having 	sex 	contemporaneously 	with 	Arnold
physically assaulting her (rather than after she injured him), and
it does not raise a reasonable inference or basis to conclude that
she would have consented so soon after Arnold punched her in

State v. Arnold
20210286-CA 	23 	2023 UT App 68
the face, breaking her facial bones, when her eye was still so
swollen that she couldn’t open it.
¶51 	But Arnold’s own testimony is even more damning. When
speaking of Tabitha’s feelings that she was going to die that night,
Arnold said, “And she was just under the impression—she was
scared, I guess, after I choked her.” This shows his awareness that
Tabitha was afraid for her life, which is not consistent with him
reasonably believing that—despite saying no—she was willing to
have sex with him. Certainly, some hours had passed between
Arnold’s 	punch 	and 	the 	sexual 	encounter, 	but 	we 	are 	not
convinced that Arnold could have reasonably believed that
Tabitha’s fear turned into consent for sexual activity.
¶52 	Furthermore, Arnold’s testimony was clear that he knew
he was not welcome at Tabitha’s home both before he arrived and
throughout 	the 	time 	he 	stayed. 	Arnold 	agreed 	when 	the
prosecutor asked if he knew he wasn’t “supposed to be at her
house” but “still went over anyways.” And the prosecutor
confirmed, “So you came in the house uninvited, knew you
weren’t supposed to be there; is that correct?” Arnold responded,
“Yes.” The prosecutor then asked, “She told you to leave, but you
didn’t leave?” and again Arnold replied, “Yes.” Separately, when
Counsel was questioning Arnold about the circumstances around
him leaving Tabitha’s home in the morning, he asked Arnold,
“Was it your impression or was it not your impression that you
were okay to stay there?” Arnold responded, “I knew I probably
wasn’t okay to stay there.” It is beyond the limits of reasonability
to believe that Arnold knew throughout the whole night that
Tabitha was not okay with him staying in her home but that he
thought she wanted to have sex with him in that very home.
Therefore, Arnold’s testimony does not support a conclusion that
he reasonably believed Tabitha was consenting to sex despite
twice telling him no, and a correction to the jury instruction would
not likely have made any difference on this point.
¶53 	Beyond Arnold’s testimony, other evidence supports a
conclusion that “a reasonable jury could not have found that

State v. Arnold
20210286-CA 	24 	2023 UT App 68
[Arnold] mistook [Tabitha’s] conduct for consent based on the
totality of the evidence.” Norton, 2021 UT 2, ¶ 42. First, it is clear
that the jury believed more of Tabitha’s version of the events than
Arnold’s. Because the chief dispute on this point at trial was
whether the sexual encounter was consensual, the jury’s guilty
verdict for aggravated sexual assault indicates that the jury
accepted Tabitha’s facts, or at least more of Tabitha’s facts than
Arnold’s.5F
6 Tabitha testified that she “just kept bawling and
saying, ‘No. Please, no. No. I don’t want to. No.’” She stated that
Arnold said, “Boy, I’m a sick fuck,” presumably referring—in
Tabitha’s 	estimation—“to 	beat[ing] 	someone 	and 	treat[ing]
someone that way and then want[ing] to have sex with them.”
Tabitha’s sobbing would certainly have informed Arnold that she
was not consenting to sex. And Arnold’s statement indicates that
he understood (1) that his desire to have sex with Tabitha was
extremely perverse—even given their history—after his previous
actions and (2) that she would view his desire as just as shocking
as she, in reality, did.
¶54 	Additionally, Nurse testified that Tabitha had extensive
injuries that were “more consistent” with Tabitha having been
sexually assaulted than having had consensual sex. Even if the
jury accepted Arnold’s theory that blood thinners could have
caused the extensive bruising during consensual sex, they would
not have caused a laceration on the “outermost part of the inferior
vaginal wall.” This is similar to the injuries the court highlighted
in both Newton and Norton as weighing against a finding of
prejudice. See id. ¶ 45; Newton, 2020 UT 24, ¶ 35. And this is
particularly similar to the injuries in Newton that the court
reasoned 	would 	likely 	have 	caused 	the 	victim 	to 	stop 	the
intercourse if it had been consensual. See Newton, 2020 UT 24, ¶ 35.
Arnold provides no explanation that would support Tabitha’s
desire to engage in such a painful encounter, including no
6. While the jury did acquit Arnold on two charges, neither charge
was related to the sexual encounter, and we have no other
indication that the jury disbelieved Tabitha’s testimony on this
point.

State v. Arnold
20210286-CA 	25 	2023 UT App 68
testimony that the couple’s history involved sex that was painful
for Tabitha. Nurse also testified that Tabitha “expressed fear that
she would be killed” and “frequently was tearful and asked, ‘Why
did this happen[?]’” These facts are consistent with Tabitha’s
account of her feelings about the experience and do not support a
finding that Arnold was anything but reckless—or worse—as to
Tabitha’s nonconsent.
¶55 	Finally, we find it worth noting that the jury’s attention
was drawn to Arnold’s state of mind before it convicted him on
this count. In its closing argument, the State said, describing the
sexual encounter, that Arnold claimed to be thinking, “Well, this
is how we’ve had sex in the past . . . so that’s what we should do.
That’s what’s going on.” But the State drew the jury’s attention to
facts that would make Arnold’s alleged perception unreasonable,
saying he claimed to have thought that “[e]ven though she was
telling him no, was crying because he had punched her in the face,
had choked her and shot at her, driven her all over town, that—
well, she still wanted to have sex.” Then the State asked, “That
doesn’t make sense, does it? When you look at this evidence you
should look at things. Is it reasonable? Does that make sense?”
Given this, it is very likely that the jury did consider Arnold’s state
of mind as to Tabitha’s consent when it convicted him on this
charge. The State specifically drew the jury’s attention to the
unreasonable 	nature 	of 	Arnold’s 	purported 	beliefs 	about
Tabitha’s consent, and the jury returned a verdict that Arnold was
guilty on this count.
¶56 	It is clear that Arnold acted recklessly—at the very least—
as to Tabitha’s consent when he was “aware of but consciously
disregard[ed] a substantial and unjustifiable risk” that she was
not 	consenting 	to 	have 	sex. 	See 	Utah 	Code 	§ 	76-2-103(3).
Disregarding this risk in light of Tabitha verbally stating she was
not willing to have sex and in light of the very painful injuries she
had sustained was “a gross deviation from the standard of care
that 	an 	ordinary 	person 	would 	exercise 	under 	all 	the
circumstances as viewed from [Arnold’s] standpoint.” See id. In
light of the totality of the circumstances, including Arnold’s own

State v. Arnold
20210286-CA 	26 	2023 UT App 68
testimony, it is unlikely that the outcome would have been
different if the jury had heard an instruction on Arnold’s mens rea
related 	to 	Tabitha’s 	consent. 	Therefore, 	the 	erroneous 	jury
instructions on this point did not prejudice Arnold.
2. 	The “in the course of” Language
¶57 	Arnold next argues that Counsel was ineffective for not
objecting to the jury instruction for aggravated sexual assault
when it failed to indicate that the use or threat of use of the
dangerous weapon must have occurred “in the course of” the
sexual assault. See id. § 76-5-405(2)(a)(i). Even if we assume
without 	deciding 	that 	this 	omission 	constituted 	deficient
performance, we conclude that Arnold was not prejudiced by it.
The totality of the evidence presented to the jury indicates that
Arnold’s use of the gun presented a continuous threat and that
this threat extended through the course of the sexual assault.
¶58 	As discussed above, the supreme court in Norton found no
prejudice deriving from a faulty jury instruction on aggravated
sexual assault. 2021 UT 2, ¶ 51. Though the “in the course of”
language was not omitted in the jury instruction at issue there, the
circumstances of the use of the gun are relevant to this case. After
the victim’s estranged husband broke into her house, punched her
in the face, and drove her to another location with a gun in his lap,
id. ¶¶ 5–6—circumstances very similar to what happened here—
[the husband] led [the victim] into an office and told
her to take off her pants. She . . . said “no,” and he
again pointed the gun at her, forcing her to comply.
While she did so, [he] undressed, removed the
magazine from the gun, and put the magazine and
gun in a filing cabinet. Then, he told [her] that they
were going to have sex. She said “no,” but [he]
responded that “yes” they were. “So you’re going to
rape me?” she asked. [He] replied, “You can’t rape
somebody that you’re married to.”

State v. Arnold
20210286-CA 	27 	2023 UT App 68
Id. ¶ 8. Notably, the gun was stored in a filing cabinet during the
rape—less accessible than was the gun here, as it stayed within
arm’s reach on the bed. Although Norton made his victim undress
at gunpoint, while here Tabitha removed her pants voluntarily,
the removal of clothing was not the act constituting sexual assault.
Norton’s conviction on the charge of sexual assault based on rape
supports an understanding that the “in the course of” language
can be satisfied through an ongoing threat present during the
rape.
¶59 	This understanding comports with the plain meaning of
the statute and with Utah caselaw—both as to threat of use of a
weapon and as to use of a weapon. See generally Bevan v. State, 2021
UT App 107, ¶ 11, 499 P.3d 191 (“For all questions of statutory
interpretation, we begin by looking at the plain language. In doing
so, we assume that the legislature used each term advisedly
according to its ordinary and usually accepted meaning. . . .
Should we conclude the language is unambiguous and provides
a workable result, our analysis is complete.” (cleaned up)). First,
while the plain meaning of “threatens” includes “utter[ing]
threats 	against” 	someone, 	see 	Threaten, 	Merriam-Webster,
https://www.merriam-webster.com/dictionary/threaten [https://
perma.cc/QDE8-JD58], it also includes “caus[ing] to feel insecure
or anxious,” see id. Where the actor has already issued verbal
threats related to the dangerous weapon or has taken physical
action threatening use of the gun—such as pointing it at the victim
or firing it, see State v. Hodson, 907 P.2d 1155, 1157 (Utah 1995)
(“We conclude . . . that the only possible inference to be made
when someone holds a loaded gun to the head of another and
issues an order is that failure to comply will result in use of the
gun. Implicit threats are as real as express verbal threats . . . .”)—
a threat may continue while the weapon continues to be accessible
to the actor. The language of the statute does not state differently,
and we have no reason to read into “threatens” a temporal
restriction it does not contain. See Utah Code § 76-5-405(2)(a)(i).
So to satisfy this element, Arnold need not have pointed a loaded
gun toward Tabitha during the actual sexual encounter and
threatened to shoot her if she did not comply. Rather, it was

State v. Arnold
20210286-CA 	28 	2023 UT App 68
sufficient for him to have earlier established the threat of use of
the gun through words or actions and for that threat to continue
during the course of the sexual assault.6F
7
¶60 	Furthermore, Utah law is clear that the phrase “use of,” see
id., does not require an actor to take affirmative action besides
presenting the weapon, see In re R.G.B., 597 P.2d 1333, 1335 (Utah
1979) (“Defendant . . . argues that there was no evidence of . . . the
use of a deadly weapon . . . since the robber did not handle the
gun or point it at the victim . . . . [I]t is not necessary that the State
prove that the robber actually pointed a gun at the victim . . . . If
merely exhibiting the gun creates fear in the victim, it constitutes
‘use of a firearm’ for that purpose.”); State v. Weisberg, 2002 UT
App 434, ¶¶ 15–17, 62 P.3d 457 (“[The defendant] objected to the
portion of the instruction that equated ‘use’ to ‘exhibiting a
weapon in such a manner that it creates fear in a reasonable
person.’ [The defendant] argues that this portion of the instruction
incorrectly stated the law, because it did not require an active
employment of the weapon . . . . We are unpersuaded . . . . A
7. In several cases, we have determined that the “in the course of”
language is satisfied if the defendant threatens to use a gun but
the victim never sees it, even if the gun is fictitious. See State v.
Bryant, 965 P.2d 539, 541, 545–46 (Utah Ct. App. 1998) (concluding
that a threat of use of an unseen—and possibly fictitious—gun
occurred “in the course of” a sexual assault where the defendant
threatened to kill the victim if she failed to give him her money
(cleaned up)); see also State v. Meza, 2011 UT App 260, ¶¶ 2, 11, 263
P.3d 424 (determining that the State provided sufficient evidence
that the defendant threatened use of a gun “in the course of” an
aggravated robbery where he gestured as if he had a gun in his
pocket and stated, “This is a stickup.” (cleaned up)). It makes little
sense to recognize this as a qualifying threat but to take the
narrow view that a real and present gun’s use does not occur “in
the course of” a sexual assault if a defendant threatens use of the
weapon or uses it before the sexual assault but does not again
verbally state the threat or wield the gun while actually engaging
in sexual activity.

State v. Arnold
20210286-CA 	29 	2023 UT App 68
weapon is used even if it is never actually pointed at a victim, so
long as exhibiting the weapon creates fear in the victim.” (cleaned
up)).
¶61 	Like in Norton, the evidence of what occurred before the
sexual assault established a backdrop of physical violence and an
ongoing threat of harm with the gun. Both Tabitha and Arnold
testified that Arnold choked Tabitha and hit her, so the jury would
have no questions about whether Tabitha knew that Arnold was
willing to hurt her. Both parties also testified that Arnold shot the
gun very close to Tabitha, so the jury would have no doubts as to
Tabitha’s understanding that Arnold was willing to do this—or
worse—with the gun later. Tabitha testified that Arnold shot at
her and threatened to kill her with the gun, and while Arnold
testified that he shot at his own reflection and never threatened to
kill Tabitha, he did admit that Tabitha spoke as if he was going to
kill her and that “she was just under the impression—she was
scared, I guess, after I choked her.” Accordingly, he was aware
that she feared him killing her and believed it was a real
possibility.
¶62 	Additionally, both parties agreed that Arnold was in
control of the gun when the pair began driving. And while
Tabitha and Arnold disagreed about how many times Arnold
handed the gun to Tabitha throughout the night, both testified
that he did so, that he instructed her to kill him, and that he got
the gun back after she refused to do so. Arnold suggests that his
actions of repeatedly handing the gun to Tabitha indicate that he
was not threatening her with the weapon. The State argues,
instead, that “acts of giving Tabitha the gun and asking her to
shoot him could be reasonably viewed as acts of manipulation
and intimidation, not opportunities for her to escape.” We are
persuaded that the jury accepted this interpretation because it
found Arnold guilty of kidnapping even though he testified that
Tabitha was free to leave anytime and because Arnold testified
that, despite Tabitha telling Arnold she couldn’t kill him, he said
he “wanted to get her mad so she would.” Other than during
these incidents—after which Arnold admittedly took back the

State v. Arnold
20210286-CA 	30 	2023 UT App 68
gun—and the time that Arnold was in the store (when he testified
that he left the gun under the seat but didn’t “know if she knew
where it was at or not” and she testified that she didn’t know
where it was), Arnold controlled the gun until the time of the
sexual assault. In other words, we do not view the testimony
about the events prior to the sexual assault—including testimony
that Arnold handed the gun to Tabitha multiple times—as
evidence supporting any conclusion other than that there existed
a continuous threat of harm by Arnold against Tabitha.
¶63 	Moreover, the evidence related to the sexual assault itself
does not support a conclusion that had the jury instruction
included the “in the course of” language, the jury would likely
have acquitted Arnold on this count. Both Arnold and Tabitha
testified that the gun remained on the bed—easily accessible to
Arnold—during the sexual assault. While Arnold testified that
Tabitha was the one to place it there, the testimony from both
individuals described above does not support an inference that
Tabitha felt like she was free to do what she wanted with the gun
or that she stopped feeling threatened by the gun during the
sexual assault. Tabitha testified that Arnold kept the gun on his
side of the bed during the sexual encounter. This testimony was
consistent with Arnold’s own narrative about regaining control of
the gun each time he gave it to Tabitha. Additionally, the jury
heard both Arnold and Tabitha testify that Tabitha repeatedly
said no during the sexual encounter, yet Arnold proceeded to
engage in sexual intercourse. It also heard Tabitha testify that she
did not physically resist because she “didn’t want to be hurt
anymore” and she “just wanted to get through that night.” It is
likely that the jury interpreted these statements as meaning that
during the sexual encounter, Tabitha felt threatened by Arnold’s
continued control over the gun, so she did not resist for the sake
of 	her 	life 	and 	her 	safety. 	Based 	on 	the 	totality 	of 	the
circumstances, it is unlikely that the jury would have acquitted
Arnold on this charge even if it had been instructed as Arnold
now claims it should have been. Accordingly, we are satisfied that
Arnold was not prejudiced by the omission of the “in the course
of” language in the jury instruction.

State v. Arnold
20210286-CA 	31 	2023 UT App 68
B. 	Aggravated Kidnapping
¶64 	Arnold next argues that Counsel was ineffective for not
objecting when the same language—“in the course of”—was left
out of the jury instruction for the aggravated kidnapping charge.
Under 	the 	relevant 	statute, 	a 	defendant 	must 	commit 	an
enumerated act—as relevant here, using or threatening to use a
dangerous weapon, acting with the intent to inflict bodily injury
or terrorize, or acting with the intent to commit a sexual assault—
“in the course of” a kidnapping or unlawful detention. See Utah
Code § 76-5-302(2). The jury did not specify which enumerated act
it based its determination of guilt on for this charge, but—even if
we 	assume 	without 	deciding 	that 	Counsel 	performed
deficiently—we have no difficulty concluding that the “in the
course of” language was satisfied and that the jury would not
have reached a different outcome had the instruction been
different.
¶65 	Many of Arnold’s actions satisfied the elements of this
charge, including the “in the course of” language. Importantly,
the jury instruction clearly indicated to jurors that kidnapping
occurred if Arnold “detain[ed] or restrain[ed] [Tabitha] for any
substantial period of time” or “under circumstances exposing her
to risk of bodily injury.” Accordingly, the jury would have
understood that the kidnapping could have taken place before,
after, or during the driving. While we do not know which moment
or stretch of time the jury found Tabitha to have been detained or
restrained 	(including 	potentially 	the 	whole 	night), 	we 	are
comfortable in concluding that the jury believed Arnold to have
simultaneously committed one of the enumerated acts. If the jury
believed that Tabitha was detained or restrained while Arnold
ransacked her house and choked and punched her, Arnold was
acting at that time with the intent to inflict bodily injury or
terrorize Tabitha. If the jury found that Tabitha was detained
while Arnold took her loaded gun and shot it very close to her, he
acted simultaneously to—at least—use a dangerous weapon. If
the kidnapping occurred during the drive, Arnold’s testimony
establishes that he only gave the gun to Tabitha briefly several

State v. Arnold
20210286-CA 	32 	2023 UT App 68
times then took it back, and we have already explained why we
are not persuaded that such actions removed the threat of the gun.
And if the jury found that Arnold detained Tabitha during what
it classified as a sexual assault, then he also used the gun and
detained her intentionally to commit that sexual assault. Simply
put, we are convinced that, at any time the jury may have
identified 	for 	the 	time 	of 	the 	kidnapping, 	it 	would 	have
determined that Arnold simultaneously committed one or more
enumerated acts. Thus, Arnold was not prejudiced by this alleged
error.
C. 	Theft
1. 	Affirmative Defenses
¶66 	Arnold next argues that Counsel was ineffective for not
ensuring that the jury instruction on theft included reference to
affirmative defenses that may have applied to Arnold. The theft
count was based on Arnold’s alleged theft of the gun, and there
are two affirmative defenses that Arnold argues should have been
presented to the jury: that Arnold “acted under an honest claim of
right” to the gun or that he “acted in the honest belief that [he]
had the right to obtain or exercise control over” the gun. See Utah
Code § 76-6-402(3)(a)–(b). Arnold points to where he testified, “I
don’t think I took it either, but—I mean, 17 years in the oil field
giving her my paycheck, I seem to think half of everything is
mine.” And when the prosecutor asked, “[Y]ou didn’t have
permission to take that gun, did you?” Arnold responded, “Other
than the fact that I paid for it.” He did not testify that he purchased
the gun but that he had paid to release the gun, which had
belonged to Tabitha’s ex-husband, from pawn.
¶67 	The 	State 	responds 	that 	Counsel 	did 	not 	perform
deficiently by not requesting these instructions because they were
foreclosed by the facts. The State points to the statutory language
that “[i]t is not a defense . . . that the actor . . . has an interest in the
property or service stolen if another person also has an interest
that the actor is not entitled to infringe.” See id. § 76-6-402(2). We

State v. Arnold
20210286-CA 	33 	2023 UT App 68
agree with the State. Arnold admitted that the gun was previously
at Tabitha’s house and in her possession, that his ownership rights
to it were never adjudicated, that Tabitha did not give him the
gun, and that he took the gun to his home when he eventually left
Tabitha’s house. So even if Arnold thought he had some sort of
property interest in the gun, he acknowledged that Tabitha did as
well. And he did not provide any convincing argument as to why
he was entitled to infringe on Tabitha’s property interest. See State
v. Murphy, 617 P.2d 399, 406 n.9 (Utah 1980) (Hall, J., dissenting)
(“Note that even a person with an interest in the property can
‘steal’ it from another with an interest.”); State v. Larsen, 834 P.2d
586, 590–91 (Utah Ct. App. 1992) (“One may be prosecuted for
theft if he takes the property of another, although the actor had an
interest in it. . . . [This] comprehensive definition of property is
intended to abrogate whatever still survives of the artificial
common-law restrictions on the scope of larceny and the other
theft offenses.” (cleaned up)), cert denied, 843 P.2d 1042 (Utah
1992). Therefore, the affirmative defenses were not available to
Arnold, and it was neither deficient performance nor prejudicial
for Counsel not to request instructions on them.7F
8
8. We are also unconvinced that the jury would have believed that
Arnold had an “honest claim of right to” or an “honest belief that
[he] had the right to obtain or exercise control over” the gun, see
Utah Code § 76-6-402(3)(a)–(b), given that Arnold stipulated to
the fact that he was a Category II restricted person. While the jury
did not know the details of why Arnold fell into this category, it
is common knowledge that restricted persons are not legally able
to possess, use, or control firearms in this state. See id. § 76-10-
503(2)(a), (3)(a). We think it practically certain that at least one
juror would have raised this point with respect to the affirmative
defenses. Counsel’s decision not to draw attention to this point
and to avoid inviting additional focus on Arnold’s status—as well
as speculation as to its cause—was not unreasonable.

State v. Arnold
20210286-CA 	34 	2023 UT App 68
2. 	Implications for Aggravated Burglary
¶68 	In line with his argument on the theft instruction, Arnold
asserts that instructing the jury about the affirmative defenses
would also raise a reasonable doubt as to Arnold’s intent to steal
the gun, thereby impacting the aggravated burglary charge.8F
9
Because we are not convinced by Arnold’s argument on the theft
instruction, we conclude that there would have been no likely
impact on the aggravated burglary conviction if Counsel had
sought instructions on the affirmative defenses to theft.
II. The Criminal Mischief Charge
¶69 	Arnold next argues that Counsel performed deficiently in
several ways related to the criminal mischief charge. Arnold
asserts that Counsel’s errors prejudiced him because he was
charged with class A misdemeanor criminal mischief rather than
class B misdemeanor criminal mischief. Class A misdemeanor
criminal mischief applies when “the actor’s conduct cause[d] or
[was] intended to cause pecuniary loss equal to or in excess of
$500 but . . . less than $1,500 in value.” Utah Code § 76-6-
9. This charge could also rely on Arnold’s intent to assault
Tabitha. See id. §§ 76-6-202(2)(c), -203(2). Arnold argues that,
under the applicable statute, the State was required to prove that
he formed the necessary intent when he entered her house. He is
wrong. “[T]he plain language of the statute requires that the
actor’s intent be formed at the time of entry or at any time while
the actor remains unlawfully in the building or dwelling.” State v.
Garcia, 2010 UT App 196, ¶ 13, 236 P.3d 853 (emphasis added),
cert. denied, 247 P.3d 774 (Utah 2011). “Moreover, in interpreting
this statute, the Utah Supreme Court has concluded that ‘a person
is guilty of burglary under Utah Code section 76-6-202(1) if [that
person] forms the intent to commit a felony, theft, or assault at the
time [the person] unlawfully enters a building or at any time
thereafter 	while 	[the 	person] 	continues 	to 	remain 	there
unlawfully.’” Id. (cleaned up) (quoting State v. Rudolph, 970 P.2d
1221, 1229 (Utah 1998)).

State v. Arnold
20210286-CA 	35 	2023 UT App 68
106(3)(d)(iii). But a loss with a value of less than $500 is a class B
misdemeanor. Id. § 76-6-106(3)(d)(iv). Arnold asserts that the jury
was not instructed on the statutory criteria for valuing property
for this chapter of the code, which defines value as “(i) the market
value of the property, if totally destroyed, at the time and place of
the offense, or where cost of replacement exceeds the market
value; or (ii) where the market value cannot be ascertained, the
cost of repairing or replacing the property within a reasonable
time following the offense.” Id. § 76-6-101(1)(f). The statute further
specifies that “[i]f the property damaged has a value that cannot
be ascertained by [this] criteria . . . , the property shall be
considered to have a value less than $500.” Id. § 76-6-101(3).
¶70 	However, 	the 	State argues 	that 	a 	different 	definition
applies to value here. The criminal mischief statute indicates that
“[i]n determining the value of damages under this section, . . . the
value of any item . . . includes the measurable value of the loss of
use of the items and the measurable cost to replace or restore the
items.” Id. § 76-6-106(4). Because we, as a rule, apply the more
specific definition where there is conflict, see, e.g., Grynberg v.
Questar Pipeline Co., 2003 UT 8, ¶ 31, 70 P.3d 1 (“When two
statutory 	provisions 	appear 	to 	conflict, 	the 	more 	specific
provision will govern over the more general provision.” (cleaned
up)), and because this latter definition explicitly applies to this
section while the other applies to the chapter, compare Utah Code
§ 76-6-104(4), with id. § 76-6-101(1)(f), (3), it applies insofar as the
definitions conflict.
¶71 	Arnold does not dispute that he destroyed Tabitha’s cell
phone, but he argues that Counsel should have taken action after
the State provided insufficient evidence of its value. On the
question of the cell phone’s value, the only testimony was
Tabitha’s when she, in response to being asked, “And what’s the
value of your cell phone? What does it cost?” stated, “I think I
paid $600 for it. It’s got no value now.” Based on this, Arnold
argues that “the State failed to produce competent evidence that
Tabitha’s phone had a market value of at least $500 at the time it
broke; nor did it put on evidence of a repair or replacement cost.”

State v. Arnold
20210286-CA 	36 	2023 UT App 68
Accordingly, Arnold argues that Counsel performed deficiently
by failing to move for a directed verdict on this point or ask that
the charge be reduced to a class B misdemeanor, as well as for
failing to request a jury instruction on calculating value.
¶72 	We agree with the State, however, that Counsel did not
perform deficiently by not taking any of these steps. In reviewing
Counsel’s actions, we apply “a strong presumption that Counsel’s
representation 	was 	within 	the 	wide 	range 	of 	reasonable
professional assistance,” see Harrington v. Richter, 562 U.S. 86, 104
(2011) (cleaned up), and that Counsel’s decisions were “sound
trial strategy,” Strickland v. Washington, 466 U.S. 668, 689 (1984)
(cleaned up). Here, we conclude that Counsel’s decisions were
sound 	because, 	“[u]nlike 	a 	later 	reviewing 	court, 	[Counsel]
observed the relevant proceedings, knew of materials outside the
record, 	and 	interacted 	with 	the 	client 	[and] 	with 	opposing
counsel.” See Harrington, 562 U.S. at 105.
¶73 	The State argues that Counsel could have reasonably
expected that either of the indicated actions would have been
futile.9F
10 We agree that Counsel could reasonably have believed
that, had he done as Arnold now desires, the court would have
allowed the State to present evidence on the value of the cell
10. Under Utah law, owners are “presumed to be familiar with the
value of [their] possessions” and are “competent to testify on the
present market value of [their] property.” State v. Purcell, 711 P.2d
243, 245 (Utah 1985). On an assertion of insufficient evidence, a
“trial court is not obligated to select a value figure specifically tied
to any particular testimony. Rather, evidence will be deemed to
support the value set by the fact finder if it is within the range
testified to.” State v. Anderson, 2004 UT App 131U, para. 7. While
we are not evaluating the sufficiency of the evidence here, given
this backdrop it was objectively reasonable for Counsel to believe
that the court would have denied a motion for directed verdict
based on Tabitha’s testimony.

State v. Arnold
20210286-CA 	37 	2023 UT App 68
phone and any other damaged property.10F
11 See Utah R. Crim. P.
17(f)(5) (indicating that after the parties present their cases-in-
chief, “the parties may offer only rebutting evidence unless the
court, for good cause, otherwise permits”); see also Utah R. Evid.
611(a)(1) (“The court should exercise reasonable control over the
mode and order of . . . presenting evidence so as to make those
procedures effective for determining the truth . . . .”). Because
there is no record evidence that the cell phone’s value was actually
less than $500 and that Counsel knew of its lower value, we
cannot conclude that Counsel acted deficiently in this respect.
Arnold bears the burden of proof, so “it should go without saying
that 	the 	absence 	of 	evidence 	cannot 	overcome 	the 	strong
presumption that Counsel’s conduct fell within the wide range of
reasonable professional assistance.” See Burt v. Titlow, 571 U.S. 12,
17 	(2013) 	(cleaned 	up). 	Given 	our 	strong presumption 	that
Counsel acted reasonably and strategically according to his
knowledge of facts outside the record—which here may have
included the make, model, age, condition, and replacement cost
of 	the 	phone—we 	conclude 	that 	Counsel 	acted 	objectively
reasonably and that his performance was not deficient on this
point.11F
12
11. The cell phone was not the only property of Tabitha’s that
Arnold 	damaged. 	He 	also 	ruined 	her 	bedpost 	by 	violently
smashing the cell phone against it, and Tabitha testified that
repair would require a new post. Additionally, he shot through
Tabitha’s mirror, leaving a hole and “a shatter mark.” This action
also made holes in the wall behind the mirror. Given all this, it
was further reasonable for Counsel to believe that he would
ultimately be unsuccessful in taking the actions Arnold desires.
12. We are also convinced that Counsel was objectively reasonable
in determining that requesting a jury instruction on valuation
risked alienating the jury. Arnold was facing many charges, nine
of which were felonies and involved actions much more egregious
than damaging property. Counsel could have wisely decided that
(continued…)

State v. Arnold
20210286-CA 	38 	2023 UT App 68
III. Counsel’s Failure to Request a Directed Verdict on the
Discharge of Firearm with Injury Count
¶74 	Arnold next argues that Counsel was ineffective for failing
to move for a directed verdict on the second-degree felony
discharge of a firearm with injury count. This charge requires
proof that a defendant’s discharge of a firearm “cause[d] bodily
injury to any individual.” Utah Code § 76-10-508.1(2). The statute
defines 	“bodily 	injury” 	as 	“physical 	pain, 	illness, 	or 	any
impairment of physical condition.” Id. § 76-1-101.5(4). Arnold
argues that reasonable counsel would have realized that Tabitha’s
testimony did not satisfy this element and would have moved for
a directed verdict on this charge.
¶75 	Tabitha 	testified 	that 	after 	Arnold 	shot 	the 	gun, 	she
“couldn’t hear” and her ears “were ringing.” She knew that
Arnold was saying something to her, but for a time she couldn’t
hear or understand what he was saying. She was “eventually”
able to hear again.
¶76 	Arnold 	argues that this testimony 	does not 	establish
“impairment.” See id. The State disagrees, emphasizing that the
statute includes “any impairment,” see id. (emphasis added), and
pointing out that “substantial bodily injury”—a higher tier of
injury in the criminal context, see State v. Lyden, 2020 UT App 66,
¶ 24, 464 P.3d 1155—includes “temporary loss or impairment of the
function of any bodily member or organ,” see Utah Code § 76-1-
101.5(18) (emphasis added). We agree with the State. The plain
bickering over the value of the phone and the other property—
which Arnold did not dispute destroying and which highlights
his violence on the evening in question—would not be helpful.
Doing so would challenge Tabitha’s testimony as to value without
impacting 	her 	credibility 	(Arnold 	does 	not 	assert 	that 	her
testimony on this point was erroneous), and it was objectively
reasonable for Counsel to focus his efforts combatting Tabitha’s
testimony on weightier issues, like whether Arnold detained her
and raped her.

State v. Arnold
20210286-CA 	39 	2023 UT App 68
meaning of “impairment” is “diminishment or loss of function or
ability.” See Impairment, Merriam-Webster, https://www.merriam
-webster.com/dictionary/impairment [https://perma.cc/3B2E-M2
EY]. Tabitha testified that—for a time—her function of hearing
was diminished or entirely lost; this satisfies the plain meaning of
impairment.12F
13 Arnold does not argue that permanent hearing loss
would fail to qualify under the statute, nor does he provide any
authority supporting a position that a condition that would
qualify as impairment if it were permanent fails to qualify if it is
temporary. 	Indeed, 	a 	higher 	tier 	of 	bodily 	injury 	includes
temporary impairment, see Utah Code § 76-1-101.5(18), so we see
no reason to read the broad language of this definition as
excluding temporary conditions, see State v. Robinson, 2018 UT
App 227, ¶ 33, 438 P.3d 35 (describing the definition as “broad”),
cert. denied, 440 P.3d 694 (Utah 2019). Accordingly, we conclude
that Arnold was not prejudiced when Counsel chose not to move
for a directed verdict on this charge.
IV. Counsel’s Failure to Object to Tabitha’s Testimony that She
Believed Arnold Was a Felon
¶77 	Finally, Arnold argues that Counsel was ineffective for not
objecting or requesting a corrective instruction when Tabitha
testified that she believed Arnold was a felon. Counsel asked
Tabitha, “He didn’t bring his own .22-caliber pistol to your house
to kill you, as far as you know, did he?” Tabitha responded, “I
believe he is a felon. He’s not allowed to own a weapon.” Arnold
13. While the legislature may not have intended this language to
have such broad effect as to include a temporary reduction in
hearing ability or an impairment that is so temporary as to last for
mere minutes, we are bound to apply the plain language of the
statute. See, e.g., Bevan v. State, 2021 UT App 107, ¶ 11, 499 P.3d
191. 	Moreover, 	the 	statute 	does 	not 	place 	any 	temporal
qualification on “physical pain,” see Utah Code § 76-1-101.5(4),
which may often be quite temporary. But if the legislature
intended the language to be narrower than we suggest on this or
any other point, it has the power to modify this language.

State v. Arnold
20210286-CA 	40 	2023 UT App 68
argues that this statement was inadmissible and that Counsel
performed deficiently by not taking corrective action when he
knew that 	the 	testimony 	was harmful. 	Presumably, 	Arnold
stipulated to his status as a Category II restricted person to avoid
drawing unnecessary attention to his criminal history. Arnold
cites 	State 	v. 	Larrabee, 	2013 	UT 	70, 	321 	P.3d 	1136, 	for 	the
proposition that “although a defense attorney can reasonably
choose to not object so to not highlight harmful testimony, that
failure to object is unreasonable when the inadmissible evidence
is inflammatory,” id. ¶¶ 26–28, 32. Arnold asserts that “evidence
of [his] felon status was inflammatory, and it was harmful to
[him], 	especially 	in 	a 	case 	that 	depended 	heavily 	on 	[his]
credibility.”
¶78 	The State counters, “[T]he testimony did not tell the jury
that [Arnold] was, in fact, a felon. Rather, Tabitha said only that
she ‘believe[d]’ [Arnold] was.” Further, it states that “even if
Tabitha 	had 	testified 	that 	[Arnold] 	was 	a 	convicted 	felon,
competent counsel could . . . reasonably conclude that objecting
risked 	further 	emphasizing 	the 	testimony, 	especially 	where
[C]ounsel would have to ask the court to instruct the jury to
disregard what it had already heard.”
¶79 	We 	agree 	with 	the 	State. 	“Utah 	courts 	have 	long
recognized that [defense] counsel’s decision not to request an
available curative instruction may be construed as sound trial
strategy.” State v. Popp, 2019 UT App 173, ¶ 50, 453 P.3d 657
(cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). “Indeed, a
curative 	instruction 	may 	actually 	serve 	to 	draw 	the 	jury’s
attention toward the subject matter of the instruction and further
emphasize the issue the instruction is attempting to cure.” Id.
Counsel could have reasonably determined that he would be “ill-
advised to call undue attention to the testimony,” “particularly
when [it was] unanticipated and brief,” see State v. Squires, 2019
UT App 113, ¶ 43, 446 P.3d 581 (cleaned up), and particularly
when the jury was already aware that Arnold was a Category II
restricted person and was, accordingly, not permitted to use or

State v. Arnold
20210286-CA 	41 	2023 UT App 68
possess a firearm.13F
14 Tabitha’s comment was made in passing and
was made as to her belief rather than as to any certainty of
Arnold’s felony status. Accordingly, we conclude that Counsel
did not perform deficiently by deciding not to draw further
attention to the issue of Arnold’s criminal history.
CONCLUSION
¶80 	Arnold ultimately does not demonstrate that he received
ineffective assistance of counsel. We conclude that—on each of
Arnold’s 	claims—he 	fails 	to 	show 	deficient 	performance,
prejudice, or both. Therefore, we affirm his various convictions.
14. This point also makes it unlikely that Tabitha’s testimony
prejudiced Arnold. Tabitha’s testimony did not include details of
any 	alleged 	crimes 	that 	would 	likely 	impact 	the 	jury’s
determination of Arnold’s credibility beyond what its knowledge
of his status as a restricted person would.