State v. Gallegos

2018 UT App 192
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JOHN E. GALLEGOS,
Appellant.
Opinion
No. 20150688-CA
Filed October 4, 2018
Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 111900879
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGE GREGORY K. O RME concurred. JUDGE R YAN M. HARRIS
concurred in part and dissented in part, with opinion.
MORTENSEN, Judge:
¶1 	A 	group 	was 	busy 	spray-painting 	a 	wall 	when
Victim interrupted their evening activity. Upset by the intrusion,
one of the group members stabbed Victim twice in the chest and
once 	in 	the 	back, 	while 	others threw rocks and 	beer 	cans
and unleashed two dogs to attack Victim. Police, with the help of
Witness, 	later 	identified 	defendant 	John 	E. 	Gallegos 	as 	the
one 	who 	stabbed 	Victim 	and 	arrested 	him 	that 	night.
Upon 	arresting 	Gallegos, 	police 	found 	blood 	on 	Gallegos’s
shirt, pants, and ear, as well as on a folding knife 	in his
pocket. Victim survived the attack and, after viewing a photo
lineup at the hospital, identified Gallegos as the person who
stabbed him. While in custody at the police station, Gallegos

State v. Gallegos
20150688-CA 	2 	2018 UT App 192
kicked and spit at a police officer and also used a chair to smash
a hole in a wall.
¶2 	For 	his 	involvement 	in 	the 	stabbing, 	Gallegos 	was
convicted 	of 	attempted 	murder, 	possession 	of 	a 	dangerous
weapon by a restricted person, using a dangerous weapon in a
fight, graffiti, and consumption of alcohol by a minor (the
Stabbing Charges). For his actions at the police station after his
arrest, Gallegos was also convicted of assault by a prisoner,
propelling a substance or object at a peace officer, and damaging
a jail (the Police Station Charges). He appeals, arguing that (1)
trial counsel was ineffective for not moving to sever the Stabbing
Charges 	and 	Police 	Station 	Charges 	and 	(2) 	police 	lacked
reasonable suspicion to stop him the night he was arrested.
Gallegos also seeks remand pursuant to rule 23B of the Utah
Rules of Appellate Procedure. We deny the rule 23B motion and
otherwise affirm.
BACKGROUND
¶3 	Victim’s RV, in which he was staying, had broken down.
With the permission of a library security officer, Victim parked
the RV at the library lot for the night. Later that evening, Victim
heard someone using a spray can outside. Intending to pay the
vandals twenty dollars to leave his RV alone, Victim left his RV
and approached the bathroom of a nearby park, where he saw
someone spray painting the wall.
¶4 	As Victim approached, a group of men emerged from
behind 	the 	bathroom 	and 	surrounded 	him. 	Gallegos 	began
yelling at Victim and threw what Victim thought were punches
at his chest. But when Victim suddenly began struggling to
breathe, he realized he had been stabbed.
¶5 	The other men joined in the attack, throwing rocks, cans,
and other debris. As Victim tried to escape, a large rock hit
him on the head. Someone in the group yelled “Attack,” and

State v. Gallegos
20150688-CA 	3 	2018 UT App 192
two dogs lunged at Victim, biting his leg. Victim continued to
retreat, dragging along the dog that had clamped down on his
leg. Gallegos again stabbed Victim, this time in the back. Just
before losing consciousness, Victim crawled to a nearby truck
and asked for help.
¶6 	Witness, who was one of the truck’s occupants, testified
that he saw a group of men and dogs chasing Victim. Witness
saw Gallegos standing roughly ten feet in front of the group and
swinging something at Victim. The rest of the group stood
back and threw cans at Victim.1 Witness exited the truck and
confronted 	Gallegos. 	Witness 	further 	testified 	that 	Gallegos
approached 	Witness 	with 	something 	shiny 	in 	his 	hand.
Gallegos came within ten feet of Witness and yelled, “You
want some too homey? Get the fuck back in the truck.” The
attackers fled when they realized one of the truck’s passengers
had called the police. Witness tended to Victim until the police
arrived.
¶7 	The police first interviewed another witness (Bystander)
who had been at the park. Bystander reported seeing several
Hispanic 	men 	wearing 	white 	jerseys 	with 	dark 	numbers
run toward a nearby dead-end street, where a Toyota Camry
shortly 	emerged 	and 	headed 	away 	from 	the 	scene. 	After
reporting 	this 	information 	to 	the 	police, 	Bystander 	saw
the Camry return to the same street. Nearby officers were
alerted to look for Hispanic men, wearing white jerseys or shirts,
in 	a 	Camry 	on 	a 	dead-end 	street. 	Only 	later 	did 	the
police 	receive 	a 	more 	detailed 	description 	from 	Witness—
who had stood ten feet away from and was threatened by
Gallegos—that Gallegos was actually wearing dark clothes.
1. It is important to note that both Victim and Witness saw that
only a single person—Gallegos—was ever close enough to stab
Victim.

State v. Gallegos
20150688-CA 	4 	2018 UT App 192
¶8 	An officer arrived at the dead-end street and saw a
parked Camry with a man, Gallegos, 	wearing dark-colored
clothes, standing nearby with two women. Without activating
the patrol car’s overhead lights, the officer parked and got out.
The three people near the Camry began walking away and were
about to go behind a house. The officer, with his flashlight on,
yelled, “Hey, come back and talk to me.” The officer testified
that he yelled so Gallegos could hear him but did not command
Gallegos to comply. Gallegos returned to speak with the officer.
¶9 	Not realizing that Gallegos was, in fact, the suspect in
the stabbing, the officer asked Gallegos what he was doing in
the area. Gallegos responded that he was on his way to a friend’s
house. The 	officer 	noticed tattoos on Gallegos’s hands and
asked if he was in a gang. Gallegos told the officer that he
used to be a member of the South Side Colonia2 Chiques.
When 	another 	officer 	arrived, 	the 	first 	officer 	ran 	a
warrants check on Gallegos. The warrants check confirmed
Gallegos’s 	membership 	in 	the 	South 	Side 	Colonia 	Chiques.
The officer asked Gallegos if he was carrying any weapons, and
Gallegos 	answered 	that 	he 	was 	not. 	Responding 	to 	a
request 	from 	the 	officer, 	Gallegos 	agreed 	to 	be 	searched.
The 	officer 	found 	a 	five-inch 	folding 	knife 	in 	Gallegos’s
back pocket. At the time, the officer did not notice any blood on
the 	knife, 	which 	was 	folded 	closed. 	Having 	determined
during 	their 	discussion 	that 	Gallegos 	was 	intoxicated, 	the
2. 	The 	briefs 	and 	much 	of 	the 	record 	transcripts 	and
other documents refer to the gang as the South Side “Colonial”
Chiques. We believe 	this is a typographical error. At least
one 	presentence 	report 	identifies 	Gallegos’s 	gang 	as 	“La
Colonia Chiques Surrenos.” Further, “Colonia Chiques” is used
in 	informational 	materials 	supplied 	by 	the 	Salt 	Lake 	Area
Gang Project. See Gang Names & Alliances in the Salt Lake Area,
http://www.wvc-ut.gov/DocumentCenter/View/6752/Gang-
Handouts [https://perma.cc/58DC-MT9A].

State v. Gallegos
20150688-CA 	5 	2018 UT App 192
officer said, “Being 	in your state right now, being a gang
member, you probably shouldn’t be carrying a knife.” Gallegos
responded, “Well, you can keep it.” The officer offered to hold
the 	knife 	at 	the 	police 	station 	until 	Gallegos 	was 	sober,
whereupon Gallegos could pick it up. Gallegos agreed and left in
the direction he had been walking earlier.
¶10 	Having concluded his encounter with Gallegos, the officer
drove to the park where the stabbing occurred. There, the officer
learned from other officers that the attacker was, in fact, a
member of the South Side Colonia Chiques gang and wore dark
clothing instead of white. Realizing that Gallegos matched the
updated description, the officer inspected Gallegos’s knife more
closely, unfolding it and finding blood on the blade. The officer
reported his encounter, and Gallegos was apprehended shortly
thereafter.3
3. The dissenting opinion highlights Witness’s identification of
Gallegos 	as 	problematic 	evidence, 	in 	part 	because 	Witness
identified Gallegos as the attacker during a police “showup.”
Infra ¶ 62. Witness told the police that he could “[w]ithout a
doubt” identify the stabber. Officers drove Witness to the street
where Gallegos had been arrested. An officer shined a spotlight
on Gallegos, the only suspect present, and Witness indicated that
Gallegos was the attacker who confronted him at the park.
We agree with the sentiment expressed by the dissent that
this type of identification is problematic. See State v. Ramirez, 817
P.2d 	774, 	784 	(Utah 	1991) 	(explaining 	that 	the 	“blatant
suggestiveness” of a showup where the defendant identified
“was the only person at the showup who was not a police
officer,” “stood with his hands cuffed,” and had “headlights of
several police cars . . . trained on him” is “troublesome”).
Because we recognize the problems inherent with this type of
identification, we are careful not to emphasize this evidence in
our determination of the strength of the evidence overall. Our
(continued…)

State v. Gallegos
20150688-CA 	6 	2018 UT App 192
¶11 	Upon 	arresting 	Gallegos, 	the 	officers found 	drops of
blood by Gallegos’s ear and on his hands, along with blood
stains on his shirt and pants. He also had blue residue on his
hands. Gallegos explained that he had been boxing that day and
had also fallen while running away from police earlier that
night. While all of the blood samples were not tested, lab results
showed that the blood on Gallegos’s knife, shirt, pants, and ear
matched Victim’s DNA.
¶12 	While in custody at the police station, Gallegos noticed
photographs of fellow gang members on the wall. Gallegos
became angry and, while in handcuffs, started to walk away
from officers. An officer caught him at the door, and Gallegos
kicked the officer in the leg before being subdued. Officers led
Gallegos to an interview room where he spit in an officer’s face.
Alone in the room, Gallegos began yelling and banging on the
walls. Officers returned to the room to find chairs overturned
and a fresh hole in the wall.
¶13 	The next day, officers went to the hospital to interview
Victim about the stabbing and to show him a photo lineup.
Victim had not taken medication for five hours and confirmed to
the officers that he was thinking clearly during the interview.
Based on the photo lineup, Victim identified Gallegos as the man
who stabbed him.
¶14 	The State charged Gallegos for his involvement in the
stabbing and for his violent behavior at the police station. The
case 	proceeded 	to 	trial, 	and 	Gallegos 	moved 	to 	suppress
evidence stemming from the encounter Gallegos had with the
officer on the dead-end street, arguing that the officer lacked
reasonable suspicion to stop Gallegos.
(…continued)
conclusion that the evidence against Gallegos is overwhelming is
only minimally buttressed by Witness’s identification.

State v. Gallegos
20150688-CA 	7 	2018 UT App 192
¶15 	The trial court ruled that Gallegos’s conversation with the
officer was a consensual encounter and thus did not require the
officer to have reasonable suspicion. In doing so, the court
acknowledged 	that 	“under 	certain 	circumstances 	an 	officer
yelling at someone to stop . . . immediately conveys a sort of
Level 2 . . . scenario,” but that an encounter with police is
“entirely fact intensive and [yelling] hey come back and talk to
me isn’t necessarily stop, police.” Rather, it “actually invites a
voluntar[y] return.” The court concluded,
[W]hen you look at the entire circumstances in
addition 	to 	[the 	police 	officer’s 	statement 	to
Gallegos], that he was talked to, he wasn’t placed
in custody, there weren’t lights going on, there
weren’t sirens, he didn’t have his gun drawn, there
weren’t other officers around, [and] his ingress and
egress wasn’t blocked by a show of force . . . this
was a consensual encounter . . . even to the point
where [Gallegos] allows the officer to search him.
The court further reasoned that it was “consensual to the point
where 	the 	officer 	established 	enough 	of 	a 	rapport 	with
[Gallegos] to say you shouldn’t be carrying this knife in your
condition and . . . instead of arresting him for possession of a
weapon while intoxicated or something like that he gave him the
option of just coming down to the police station the next day and
picking it up.” And the fact that Gallegos told the officer to just
keep the knife, in the view of the court, “convey[ed] nothing
more 	than 	a 	consensual 	conversation 	between 	the 	two
individuals.”
¶16 	Prior to trial, Gallegos personally addressed the court
regarding issues he was having with his trial counsel and his
desire to sever the charges against him. Because all of the
charges stemmed from “one joint act,” Gallegos’s trial counsel
believed the charges could not be severed. The trial court agreed
to hear Gallegos but explained to him that it “usually will not
consider severing charges unless grounds can be stated for

State v. Gallegos
20150688-CA 	8 	2018 UT App 192
severance.” Gallegos explained his frustration with counsel, but
his counsel argued that Gallegos wanted the charges severed
because there was little evidence on some of the charges, such as
his graffiti charge. The court denied the motion to sever and
explained, “It may actually even be that prior to submission to
the jury, the Court may determine that there [is] a reasonable
doubt on the graffiti charge and it may not send that to the jury.”
¶17 	After the court denied the motion to suppress and the
motion 	to 	sever, 	the 	case 	went 	to 	trial, 	and 	Gallegos 	was
convicted on all charges. Gallegos appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 	Gallegos raises three issues for our review. First, Gallegos
filed a motion for remand under rule 23B of the Utah Rules of
Appellate Procedure. “A remand under rule 23B is available
only 	upon 	a 	nonspeculative 	allegation 	of 	facts, 	not 	fully
appearing in the record on appeal, which, if true, could support
a determination that counsel was ineffective.” State v. Crespo,
2017 UT App 219, ¶ 24, 409 P.3d 99 (cleaned up).
¶19 	Second, 	Gallegos 	contends 	that 	his 	trial 	counsel 	was
ineffective for failing to move for severance of the Stabbing
Charges and the Police Station Charges.4 “When a claim of
4. Gallegos also argues in the alternative that the trial court erred
in denying his motion to sever. At trial, Gallegos’s argument to
the court was that evidence supporting his graffiti conviction
was weak compared to the other charges and thus should be
severed. On appeal, Gallegos contends that the Stabbing Charges
should have been severed from the Police Station Charges.
Because the argument before the trial court was substantially
different from what is argued on appeal, and because trial
counsel argued only why he thought a motion to sever would
fail, we conclude that the issue is unpreserved. See 438 Main St.
(continued…)

State v. Gallegos
20150688-CA 	9 	2018 UT App 192
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).
¶20 	Third, 	Gallegos 	contends 	that 	“the 	police 	lacked
reasonable suspicion to stop [Gallegos] because he did not match
the description of the alleged suspect.” This presents a mixed
question of law and fact.
We review a trial court’s decision to grant or deny
a 	motion 	to 	suppress 	for 	an 	alleged 	Fourth
Amendment violation as a mixed question of law
and fact. While the court’s factual findings are
reviewed for clear error, its legal conclusions are
reviewed for correctness, including its application
of law to the facts of the case. Accordingly, we
review as a matter of law whether a specific set of
facts gives rise to reasonable suspicion.
State v. Sanchez-Granado, 2017 UT App 98, ¶ 2, 400 P.3d 1110 (per
curiam) (cleaned up).
ANALYSIS
I. Rule 23B Motion
¶21 	Gallegos has filed a motion for remand under rule 23B of
the Utah Rules of Appellate Procedure, seeking remand for five
(…continued)
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“In order to
preserve an issue for appeal, the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.” (cleaned up)).

State v. Gallegos
20150688-CA 	10 	2018 UT App 192
issues: (1) failure to call an eyewitness expert who had been
retained and who had submitted a report; (2) failure to call a
forensics 	expert; 	(3) 	failure 	to 	move 	to 	sever 	the 	Stabbing
Charges from the Police Station Charges; (4) failure to move to
“sever” evidence of gang association; and (5) an opportunity to
“explore” a variety of other complaints contained in an affidavit
of 	Gallegos (including 	claims of 	excessive 	force, 	lost blood
evidence, failure to provide unspecified documents, improper
closing 	arguments by 	the 	prosecutor, 	and 	arguing 	that 	the
prosecutor “visibly, but not audibly” coached witnesses).5
¶22 	We 	have 	reviewed 	Gallegos’s 	motion, 	the 	associated
affidavits, and the State’s response. We deny the motion. We
address 	Gallegos’s 	issue 	regarding 	severance 	because 	the
relevant facts are already in the record. The other assertions fail
because Gallegos has not explained how the evidence would
have likely changed the result of the trial. Specifically, Gallegos
does 	not 	squarely 	confront 	the 	majority 	of 	the 	evidence
supporting the verdict.6
¶23 	To be successful, a rule 23B motion (1) must be supported
by an affidavit alleging facts outside the existing record, (2) those
facts must be non-speculative, and (3) the alleged facts must, if
true, 	support 	a 	determination 	that 	counsel’s 	ineffectiveness
5. In his rule 23B motion, Gallegos asserts that the root of his
counsel’s ineffectiveness was in failing to meet with Gallegos
often enough to “gather evidence in support of [Gallegos’s]
claims.”
6. The dissenting opinion agrees that the rule 23B motion should
be denied except as it pertains to trial counsel’s (1) failure to
meet with Gallegos for more than a few minutes until three
weeks before trial and (2) decision not to call an expert on
eyewitness identification who had been retained by predecessor
counsel. See infra ¶ 60.

State v. Gallegos
20150688-CA 	11 	2018 UT App 192
prejudiced the result. State v. Tirado, 2017 UT App 31, ¶ 14, 392
P.3d 926. Specifically, a defendant must present the “court with
the evidence he intends to present on remand and explain how
that evidence supports both prongs of the ineffective assistance
of counsel test.” State v. Christensen, 2013 UT App 163, ¶ 4,
305 	P.3d 	222 	(per 	curiam) 	(cleaned 	up); 	see 	Strickland 	v.
Washington, 466 U.S. 668, 687–88 (1984) (articulating the prongs
of 	the 	ineffective 	assistance 	of 	counsel 	test 	as 	(1) 	showing
counsel’s 	performance 	fell 	below 	an 	“objective 	standard 	of
reasonableness” 	and 	(2) 	that 	the 	“deficient 	performance
prejudiced the defense”)
¶24 	When analyzing evidence under the Strickland standard,
[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 the
decision 	reached 	would 	reasonably 	likely 	have
been 	different 	absent 	the 	errors. 	Thus, 	the
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. 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). The
United States Supreme Court has held that “[t]he likelihood of a
different 	result 	must 	be 	substantial, 	not 	just 	conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011). And our supreme
court has observed, “Strickland’s requirement of a reasonable
probability of a different outcome is a relatively high hurdle to
overcome.” Garcia, 2017 UT 53, ¶ 44 (cleaned up).
¶25 	Gallegos’s rule 23B motion fails to meet the Strickland
standard. Gallegos does not acknowledge in his motion that

State v. Gallegos
20150688-CA 	12 	2018 UT App 192
Victim’s blood was found on his knife, shirt, pants, and ear.7 He
does not acknowledge that Witness gave a detailed description
of Gallegos, whom Witness saw from ten feet away, which
description enabled officers to locate Gallegos quickly. Gallegos
does concede that he and trial counsel discussed the potential
testimony 	of 	the 	retained 	eyewitness 	expert, 	and 	that 	trial
counsel determined that the expert would not be helpful—a fact
that undercuts his ineffective assistance claim. See State v. Alzaga,
2015 UT App 133, ¶ 86, 352 P.3d 107 (“Counsel’s decision to call
or not to call an expert witness is a matter of trial strategy, which
will not be questioned and viewed as ineffectiveness unless there
is no reasonable basis for that decision.” (cleaned up)). The
motion acknowledges that Gallegos does not actually know
what 	the 	“forensic” 	expert 	would 	have 	testified. 	And 	the
hodgepodge of other complaints made by Gallegos in his rule
23B affidavit is exactly the unsubstantiated fishing expedition
that precedent has previously indicated will not sustain a rule
23B motion. See State v. Griffin, 2015 UT 18, ¶ 19 (“The mere hope
that 	an 	individual 	may 	be 	able 	to 	provide 	information 	if
subpoenaed to testify is not sufficient. An affiant must submit
7. The dissenting opinion characterizes “the eyewitness accounts
of both Victim and Witness” as “some of the most powerful
evidence at the State’s disposal.” Infra ¶ 62. While compelling,
the eyewitness accounts are not the most powerful evidence in
this case. The most powerful evidence is that Gallegos possessed
a knife with Victim’s blood on it and was otherwise covered
with 	Victim’s 	blood 	when 	arrested—facts 	that 	remain
unchallenged in Gallegos’s rule 23B motion and arguments on
appeal. This blood evidence is especially compelling where both
Victim and Witness testified that there was only one attacker
who was in close proximity to Victim. The other attackers were
described as “st[anding] back.” Thus, the unrefuted evidence of
Victim’s blood in several locations on Gallegos’s person becomes
even more compelling—and untainted by any issues of false
identification.

State v. Gallegos
20150688-CA 	13 	2018 UT App 192
specific 	facts 	and 	details 	that 	relate 	to 	specific 	relevant
occurrences.”). Upon review, Gallegos’s motion fails to establish
facts that, if true, would have likely changed the result here.
Given 	the 	fact 	that 	forensic 	evidence 	overwhelmingly 	tied
Gallegos to the crime, that Victim identified Gallegos as the
assailant, 	and 	that 	Gallegos’s 	trial 	counsel 	determined 	that
calling 	an 	eyewitness 	expert 	would 	not 	be 	helpful, 	any
testimony offered by the eyewitness expert would not have
likely changed the result.
¶26 	We further comment on Gallegos’s inability to carry his
burden in demonstrating that his counsel was deficient for not
calling an eyewitness expert. Trial counsel is not required to call
an eyewitness expert to testify. See State v. King, 2017 UT App 43,
¶ 23 n.3, 392 P.3d 997 (“[R]ule 702 of the Utah Rules of Evidence
governs only the admissibility of expert testimony, and [Utah
precedent does] not transform admissible expert testimony into
required expert testimony.”). “To demonstrate that his counsel
was ineffective in retaining and presenting expert witnesses, a
defendant must rebut the strong presumption that under the
circumstances, counsel’s action might be considered sound trial
strategy.”8 Alzaga, 2015 UT App 133, ¶ 86 (cleaned up). In other
8. 	The 	dissenting 	opinion 	resists 	this 	strong 	presumption,
remarking that an affidavit from another attorney asserts that
trial counsel’s contract to provide indigent defense services had
been terminated for failure to complete work assigned to him on
an unrelated case. See infra ¶ 61 n.14. Our task, however, is not to
allow trial counsel’s reputation to color our conclusions, but to
determine only whether counsel performed deficiently in this
instance. See Anderson v. Collins, 18 F.3d 1208, 1215 (5th Cir. 1994)
(“Both prongs of the Strickland test . . . require examination of the
specific conduct and decisions made by counsel in the particular
case; [the defendant] cannot establish that the representation he
received was constitutionally inadequate merely from evidence
about [trial counsel’s] reputation or conduct in other cases.”).
(continued…)

State v. Gallegos
20150688-CA 	14 	2018 UT App 192
(…continued)
Evidence 	of 	substandard 	performance 	by 	Gallegos’s
counsel in another case does not inform us of any specific
conduct or decision in the matter at hand. We do not downplay
this affidavit as the dissent suggests. See infra ¶ 61 n.14. Instead,
we view the affidavit under the established standard applicable
to a rule 23B motion, a standard that the dissent overlooks: Is
there 	evidence 	that, 	if 	presented 	after 	it 	is 	established 	on
remand, would support both prongs of the Strickland test—
deficient performance and prejudice? See State v. Griffin, 2015 UT
18, ¶ 17. The burden on the movant to make this showing has
been described by our supreme court as a “high bar.” Id. The
dissent essentially says, “Well, let’s see what the defendant
comes 	up 	with 	on 	remand.” 	The 	dissent 	thereby 	relieves
Gallegos of his high-bar-burden and, if established as precedent,
such an approach would so dilute the burden as to render a rule
23B remand nearly automatic when any attorney does not meet
with his client. Instead, because Gallegos fails to explain—in fact,
he makes literally no attempt to explain—how the failure of his
attorney to meet with him had any impact on the trial in this
case, the motion for remand on this basis must be denied.
Specifically, Gallegos points to no evidence on the issue of
trial counsel’s failure to meet with him 	that he anticipates
eliciting on remand, but he is required to do so: “[T]he defendant
must provide allegations of fact that are not speculative.” Id.
¶ 19. Speculative facts are those which are the fruit of mere
guesswork or conjecture. Id. This is all Gallegos offers as it
pertains to trial counsel not meeting with him until weeks before
trial. Gallegos does not claim, for example, that the failure to
meet 	with 	him 	resulted 	in 	available 	evidence 	not 	being
investigated or offered, nor does he claim a witness existed who
was not contacted, nor does he claim that an alternate defense
theory was not somehow explored. Because Gallegos identifies
no specific evidence and offers no explanation as to how the
evidence would inform the issue of ineffective assistance, the
(continued…)

State v. Gallegos
20150688-CA 	15 	2018 UT App 192
words, “[t]his presumption may be overcome only if there is a
lack of any conceivable tactical basis for counsel’s actions.” State
v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980 (cleaned up).9 And
(…continued)
only purpose of remand on this issue would be to establish that
his attorney had not met with him—a fact that the dissent ably
points out is already in the record, see infra ¶ 61, and therefore is
not a proper basis for remand, see Griffin, 2015 UT 18, ¶ 18. While
we in no way endorse or fail to appreciate the substandard
nature of trial counsel’s repeated failure to meet with his client,
the dissent’s approach fails to require the correct showing, as
established by our rules and precedent.
9. The dissenting opinion takes exception to our analysis of
whether defense counsel was deficient, stating that “the majority
speculates about some of the reasons why counsel might have
reached this conclusion but, at least at this point, I find those
potential reasons unconvincing. We simply do not know, on this
record, why trial counsel elected not to call the expert.” Infra
¶ 68. However, the long-established standard—whether there
was “any conceivable tactical basis for counsel’s actions”—invites,
if not requires, an appellate court to speculate and does not
require that defense counsel’s actual reason for not calling an
expert be articulated. State v. King, 2012 UT App 203, ¶ 14, 283
P.3d 	980 	(emphasis 	added) 	(cleaned 	up). 	And 	while 	the
dissenting opinion does not find convincing the reasons we
conceive for counsel’s decision not to call the retained expert
witness, our supreme court has expressly acknowledged such
realities. State v. Clopten, 2009 UT 84, ¶ 20, 223 P.3d 1103
(“[W]here 	a 	witness 	sees 	the 	perpetrator 	under 	favorable
conditions, expert testimony actually makes jurors more likely to
convict.”); State v. Long, 721 P.2d 483, 492 n.5 (Utah 1986) (noting
that 	research 	indicates 	giving 	cautionary 	instruction 	in
conjunction with strong eyewitness testimony serves to bolster
the identification testimony).
(continued…)

State v. Gallegos
20150688-CA 	16 	2018 UT App 192
given this “strong presumption of competence, we need not
come to a conclusion that counsel, in fact, had a specific strategy
in 	mind. 	Instead, 	we 	need 	only 	articulate 	some 	plausible
strategic explanation for counsel’s behavior. This calls for an
inquiry 	into 	the 	objective 	reasonableness 	of 	counsel’s
performance, not counsel’s subjective state of mind.” Jackson v.
State, 2015 UT App 217, ¶ 15, 359 P.3d 659 (cleaned up).
¶27 	Here, there was a conceivable basis for trial counsel’s
decision. Trial counsel could have reasonably calculated that
putting 	this 	expert 	on 	the 	stand 	carried 	too 	significant 	a
possibility that cross-examination by the State would serve only
to 	solidify 	and 	repeatedly 	highlight 	the 	State’s 	arguments
concerning 	factors 	that 	made 	the 	eyewitness 	identification
credible. Gallegos’s rule 23B motion fails to address this or other
(…continued)
The 	“strong 	presumption” 	in 	favor 	of 	finding 	trial
counsel’s assistance adequate, coupled with an express burden
on a defendant to persuade the appellate court that there is no
conceivable 	tactical 	basis 	for 	a 	decision, 	can 	only 	be
conscientiously administered post trial when an appellate court
attempts to conceive of an appropriate strategy. State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162 (explaining that courts “will not
question 	such 	decisions unless there 	is no reasonable 	basis
supporting 	them” 	(emphasis 	added) 	(cleaned 	up)); 	State 	v.
Garcia, 2017 UT App 200, ¶ 19, 407 P.3d 1061 (explaining that a
defendant must “overcome the strong presumption that his trial
counsel rendered adequate assistance by persuading the court
that there was no conceivable tactical basis for counsel’s actions”
(cleaned up); State v. Bryant, 965 P.2d 539, 542–44 (Utah Ct. App.
1998) (accepting the State’s suggested conceivable tactical bases
and therefore concluding that the defendant had not overcome
the strong presumption that counsel’s performance was not
deficient).

State v. Gallegos
20150688-CA 	17 	2018 UT App 192
reasonable bases trial counsel may have considered in deciding
not to call the eyewitness expert.
¶28 	The rule 23B motion is denied.
II. Ineffective Assistance for Not Moving to Sever
¶29 	Gallegos argues that his trial counsel was ineffective for
not moving to sever the Stabbing Charges from the Police
Station Charges. Because the Stabbing Charges were neither
connected in their commission nor part of a common scheme or
plan with the Police Station Charges, we agree that a motion to
sever would have likely been successful. We further agree that
Gallegos’s attorney performed below an objectively reasonable
standard by not moving to sever. However, Gallegos was not
prejudiced by his counsel’s deficient performance.10
¶30 	The Sixth Amendment guarantees defendants the right to
effective assistance of counsel. U.S. Const. amend. VI; Strickland
v. Washington, 466 U.S. 668, 684–86 (1984). To succeed on a claim
of ineffective assistance of counsel, a defendant must show
(1) “that counsel’s performance was deficient,” that is, falling
below an “objective standard of reasonableness,” and (2) “that
the deficient performance prejudiced the defense.” Id. at 687–88.
We examine these requirements in turn.
10. Typically, where “it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, we will do so
without 	analyzing 	whether 	counsel’s 	performance 	was
professionally unreasonable.” Archuleta v. Galetka, 2011 UT 73,
¶ 41, 267 P.3d 232; see also State v. Hill, 2018 UT App 140, ¶ 14.
This would have been our course here because we anticipated
the State would concede deficient performance on the severance
issue. However, far from conceding the point, the State has
vigorously 	opposed 	any 	claim 	of 	deficient 	performance.
Therefore, we deem it advisable to address the issue fully.

State v. Gallegos
20150688-CA 	18 	2018 UT App 192
A. 	Deficient Performance
¶31 	When challenging trial counsel’s failure to make a motion,
part of a defendant’s burden under the deficient performance
prong is to show that the motion would have been successful
had it been made. See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d
104 (explaining that failure to raise a futile motion does not
amount to ineffective assistance). Further, a defendant must
otherwise 	establish 	“that 	the 	challenged 	actions 	cannot 	be
considered sound strategy under the circumstances.” Menzies v.
State, 2014 UT 40, ¶ 76, 344 P.3d 581 (cleaned up).
1. 	Successful Claim for Severance
¶32 	We first examine whether Gallegos’s motion to sever
would have been successful, and we conclude that it likely
would have.
¶33 	Utah 	law 	allows 	the 	joinder 	of 	offenses 	in
some circumstances. Specifically, “joinder of multiple offenses is
appropriate if the requirements of Utah Code section 77-8a-1(1)
are 	met 	and 	neither 	the 	defendant 	nor 	the 	prosecution
is prejudiced as a result of the joinder.” State v. Balfour, 2008
UT App 410, ¶ 18, 198 P.3d 471. Utah Code section 77-8a-1 states,
(1) Two or more felonies, misdemeanors, or both,
may 	be 	charged 	in 	the 	same 	indictment 	or
information if each offense is a separate count
and if the offenses charged are:
(a) based on the same conduct or are otherwise
connected together in their commission; or
(b) alleged to have been part of a common
scheme or plan.
. . .

State v. Gallegos
20150688-CA 	19 	2018 UT App 192
(4) (a) 	If 	the 	court 	finds 	a 	defendant 	or 	the
prosecution 	is 	prejudiced 	by 	a 	joinder 	of
offenses 	or 	defendants 	in 	an 	indictment 	or
information or by a joinder for trial together,
the court shall order an election of separate
trials of separate counts, grant a severance of
defendants, or provide other relief as justice
requires.
Utah Code Ann. § 77-8a-1 (LexisNexis 2017).11
¶34 	Pursuant to the joinder statute, to determine whether a
motion to sever would be successful, we must decide whether
the Stabbing Charges and the Police Station Charges were based
on the same conduct or were otherwise connected in their
commission. We then must decide whether the charges were
part of a common scheme or plan.
a. 	The Offenses Were Not Connected in their Commission
¶35 	The 	statute 	governing 	joinder 	requires 	only 	that 	the
offenses 	be 	“connected 	together 	in 	their 	commission.” 	Id.
§ 77-8a-1(a). We have held that crimes are connected in their
commission where the later crime is “precipitated by an earlier
one, such as where a later crime facilitates flight after the earlier
one.” State v. Benson, 2014 UT App 92, ¶ 13, 325 P.3d 855 (cleaned
up). After examining other jurisdictions’ application of the term
“otherwise connected in their commission,” we have concluded
that “precipitation cases” from other jurisdictions “seem to share
as a common element of their analysis the conclusion that most
of 	the 	evidence 	admissible 	in 	proof 	of 	one 	offense 	is also
11. Because the statutory provisions in effect in 2015—when
Gallegos alleges his counsel failed to file a motion to sever the
Stabbing Charges from the Police Station Charges—do not differ
in any material way from those now in effect, we cite the current
version of the Utah Code for convenience.

State v. Gallegos
20150688-CA 	20 	2018 UT App 192
admissible in proof of the other.” State v. Smith, 927 P.2d 649, 653
(Utah Ct. App. 1996) (cleaned up). Even where offenses “are not
strictly precipitated by one another,” we have held that sufficient
connection exists where “the events are so related in time,
location, and purpose that they are directly connected in a
legally significant way.” State v. Burke, 2011 UT App 168, ¶ 24,
256 P.3d 1102 (cleaned up). In Burke, this court reasoned that
separate 	sexual 	offenses 	against 	multiple 	victims 	were
sufficiently connected where “the offenses are closely related in
time and place, occurring on the same night, within hours of
each other, in the same house, and even in the same room on the
same 	couch,” 	and 	where 	the 	actions 	“illustrate 	a 	distinct
behavioral 	arc 	of 	increasingly 	aggressive 	and 	opportunistic
transgressions of sexual boundaries.” Id. ¶¶ 22–23.
¶36 	On 	the 	other 	hand, 	we 	have 	concluded 	that 	the
commission of certain crimes was not sufficiently connected
where 	“[o]ther 	than 	the 	fact 	that 	all 	of 	the 	conduct 	was
committed 	by 	[a 	defendant], 	the 	charges 	were 	not 	directly
related to one another.” State v. Hildreth, 2010 UT App 209, ¶ 32,
238 P.3d 444. In Hildreth, a chiropractor was charged for sexually
assaulting four women on separate occasions under the guise of
providing chiropractic care. Id. ¶ 2. This court reasoned that the
charges were neither “precipitated by the commission of the
others, nor were any of the charges committed in an attempt to
conceal the others,” and thus concluded that “the charges were
not connected in their commission as contemplated by section
77-8a-1(1)(a).” Id. ¶ 32.
¶37 	The case before us is far more analogous to Hildreth than
to the others. Gallegos stabbed Victim in a park and was later
apprehended. Then, while at the police station, Gallegos acted
violently, 	resulting 	in 	additional 	charges. 	Gallegos’s 	violent
behavior at the police station did not “facilitate[] flight” from the
earlier attack, nor could the later crimes be characterized as “a
single [violent] spree,” as we would characterize a string of
robberies, for example. See Benson, 2014 UT App 92, ¶¶ 13–14.

State v. Gallegos
20150688-CA 	21 	2018 UT App 192
Neither 	do 	Gallegos’s 	crimes 	demonstrate 	“a 	distinct
behavioral 	arc 	of 	increasingly 	aggressive 	and 	opportunistic
transgressions.” Burke, 2011 UT App 168, ¶ 24. Instead, this case
is more like Hildreth, where the defendant committed a sequence
of offenses, but those offenses were not otherwise related to each
other. See 2010 UT App 209, ¶ 32. Here, the stabbing at the park
and the violent behavior at the police station are so independent
that one does not provide any legally significant context to the
other. Burke, 2011 UT App 168, ¶ 24. They therefore do not
“share as a common element of their analysis the conclusion that
most of the evidence admissible in proof of one offense is also
admissible in proof of the other.” Smith, 927 P.2d at 653 (cleaned
up).
¶38 	To 	be 	sure, 	this 	case 	is 	unlike 	Hildreth 	in 	that 	the
charged acts here occurred on the same night, and there is an
abstract 	connection 	between 	the 	charged 	offenses 	in
that 	Gallegos 	was 	detained 	at 	the 	police 	station 	for 	his
involvement 	in 	the 	stabbing. 	The 	State 	argues 	that 	the
charges 	were 	connected 	due 	to 	the 	fact 	that 	Gallegos 	was
tagging gang territory when he attacked Victim and “continued
in this aggressive arc” after seeing pictures of gang members
on the wall at the police station. But that abstract connection, in
our view, is not the type of distinct connection described in
our previous cases. See Burke, 2011 UT App 168, ¶ 24. Instead,
the connection in this case is akin to that in Hildreth, where a
chiropractor 	used 	his 	office 	and 	position 	to 	sexually
assault multiple victims, but the separate incidents did not
support joinder of the offenses at trial. 2010 UT App 209, ¶ 32.
The fact that Gallegos committed the crimes on the same night
and 	debatably 	in 	defense 	of 	his 	gang 	is 	not 	enough 	to
demonstrate that “the events [were] so related in time, location,
and 	purpose 	that 	they 	are 	directly 	connected 	in 	a 	legally
significant way.” Burke, 2011 UT App 168, ¶ 24. We therefore
conclude 	that 	“the 	charges 	were 	not 	connected 	in 	their
commission as contemplated by section 77-8a-1(1)(a).” Hildreth,
2010 UT App 209, ¶ 32.

State v. Gallegos
20150688-CA 	22 	2018 UT App 192
b. 	Common Scheme or Plan
¶39 	We next examine the second prong of Utah code section
77-8a-1(1)—whether the charged conduct was part of a common
plan or scheme. Utah Code Ann. § 77-8a-1 (LexisNexis 2017). “To
be classified as a common plan or scheme it is not necessary for
the crimes to have been perpetrated in an absolutely identical
manner, so long as the court perceives a visual connection
between the crimes.” State v. Hildreth, 2010 UT App 209, ¶¶ 33,
238 P.3d 444 (cleaned up). This usually means that the charged
crimes 	should 	share 	“striking 	similarities.” 	Id. 	¶¶ 	33, 	36.
Additionally, we have held that the crimes sharing a common
scheme or plan also have a similar proximity in time. Id. ¶ 34.
¶40 	We conclude that the Stabbing Charges and the Police
Station Charges do not share a common scheme or plan. The
only similarity in the conduct is that Gallegos acted violently in
both situations. But this is not strikingly similar conduct, such as
where a person carries out multiple crimes similar in minute
detail. See State v. Lee, 831 P.2d 114, 118 (Utah Ct. App. 1992)
(concluding that joinder was appropriate under common scheme
where the defendant’s conduct included targeting gay men at
bars, playing pool with them, convincing them to leave the bar
and ride on his motorcycle, driving each victim to a remote
location in the same canyon, robbing his victims by holding a
knife to their throats, ordering them to disrobe, and scattering
their clothes before driving away, with all incidents occurring
within five days of each other).
¶41 	In 	the 	first 	instance, 	Gallegos 	stabbed 	a 	person 	for
intruding on his efforts to spray paint a bathroom wall. In the
second, Gallegos attacked and spit on a police officer and put a
hole in a wall while confined at a police station. Other than a
broad 	category 	of 	violence, 	there 	is 	no 	“visual 	connection
between the crimes.” Hildreth, 2010 UT App 209, ¶ 33 (cleaned
up). The State again argues that the common plan or scheme
between the crimes was Gallegos’s desire to defend his gang’s

State v. Gallegos
20150688-CA 	23 	2018 UT App 192
territory 	and 	members. 	But 	this 	is 	a 	broad 	and 	abstract
similarity, not one in which the commission was strikingly
similar. Thus, the charged conduct was not part of a common
scheme or plan.
¶42 	Having determined that the Stabbing Charges and the
Police Station Charges were unconnected in their commission
and not part of a common scheme or plan, we conclude that a
motion to sever would have succeeded at trial. See id. ¶ 37
(concluding that a trial court “exceeded its permissible range of
discretion 	in 	denying 	[a] 	motion 	for 	severance” 	where 	the
charges were not connected in their commission nor part of a
common scheme or plan).
2. 	Sound Trial Strategy
¶43 	Next, 	to 	determine 	if 	Gallegos’s 	counsel 	performed
deficiently, we analyze whether failing to file a motion to sever
could conceivably advance a sound trial strategy. We see no
legitimate strategy under the circumstances, and neither party
asserts that Gallegos’s trial counsel refrained from objecting to
advance a particular strategy. And, as discussed above, a motion
to sever would have succeeded had counsel made the motion.
Counsel’s 	performance 	was 	therefore 	deficient. 	See 	State 	v.
Hallett, 796 P.2d 701, 706 (Utah Ct. App. 1990) (concluding that
“a motion to sever . . . would likely have been granted had the
motion been made” and, therefore, “counsel’s performance was
deficient since he did not make such a motion”).
B. 	Probability of a Different Result
¶44 	Having determined that trial counsel’s performance was
deficient, we turn to the second Strickland requirement, which
obligates 	a 	defendant 	to 	show 	that 	“there 	is 	a 	reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is

State v. Gallegos
20150688-CA 	24 	2018 UT App 192
a 	probability 	sufficient 	to 	undermine 	confidence 	in 	the
outcome.” Id.
¶45 	Under this standard, we conclude that Gallegos was not
prejudiced by his counsel’s deficient performance. Because there
is strong evidence against the charged conduct, our confidence
in the outcome of the trial is not undermined.
¶46 	First, the evidence against Gallegos in relation to the
Stabbing 	Charges 	was 	overwhelming. 	On 	the 	night 	of 	the
stabbing, Gallegos was arrested with Victim’s blood on his
clothes and behind his ear. An officer found a knife covered in
Victim’s blood in Gallegos’s pocket. Victim identified Gallegos
as the person who stabbed him based on a photo lineup. We
admit that evidence of Gallegos spitting at an officer, kicking an
officer, and putting a hole in a wall at the police station would
certainly 	not 	endear 	Gallegos 	to 	a 	jury. 	But 	evidence 	of
Gallegos’s 	violent 	behavior 	at 	the 	police 	station 	could 	not
reasonably have impacted Gallegos’s conviction on the Stabbing
Charges in the sense that it made the difference in the jury’s
decision to convict; the evidence against him was simply too
great. And Gallegos offers no persuasive explanation of how
severing his charges would have produced a different outcome
at trial, further supporting our conclusion that severing the
charges would not have made a difference.12 See Hallett, 796 P.2d
at 707.
12. The dissent is “not necessarily persuaded that the prejudicial
effect of the failure to sever, standing alone, would have raised a
‘significant possibility’ of a different outcome, given the relative
strength of the State’s evidence.” Infra ¶ 70. Rather, the dissent
would 	prefer 	to 	wait 	and 	see 	whether 	Gallegos is able 	to
demonstrate his attorney’s lack of preparation and ineffective
assistance 	in 	calling 	an 	eyewitness 	expert 	before 	making 	a
prejudice determination on severance. This approach, however,
(continued…)

State v. Gallegos
20150688-CA 	25 	2018 UT App 192
¶47 	Second, 	we 	similarly 	conclude 	that 	evidence 	of 	the
Stabbing Charges did not prejudice Gallegos in his convictions
stemming from the Police Station Charges. Even though the
Stabbing Charges are more gruesome and serious, the evidence
supporting 	convictions 	for 	the 	Police 	Station 	Charges 	was
overwhelming. Multiple officers witnessed Gallegos’s violent
behavior 	at 	the 	police 	station, 	and 	Gallegos 	points 	to 	no
meaningful dispute of that evidence. Thus, even though those
charges 	were 	tried 	in 	conjunction 	with 	another 	potentially
inflammatory set of charges, the amount of evidence against
him, 	coupled 	with 	the 	apparent 	lack 	of 	any 	meaningful
disagreement concerning that evidence, sustains our confidence
in the ultimate outcome.
¶48 	Because Gallegos has not shown that a more favorable
outcome at trial was likely had the charges been severed, we
reject his ineffective assistance of counsel argument.
III. Reasonable Suspicion
¶49 	Gallegos argues that the trial court erred in denying his
motion to suppress because it “base[d] its finding on whether
[Gallegos] was arrested, where the critical inquiry was whether
the officer had reasonable suspicion to make the stop.” We
disagree. Even assuming the encounter was a level two stop, as
(…continued)
is little more than a fishing license for Gallegos. See supra Part I.
To repeat, on a rule 23B motion, it is a defendant’s burden to
show that non-speculative facts would support a determination
that 	counsel’s 	ineffectiveness 	prejudiced 	the 	result. 	State 	v.
Tirado, 2017 UT App 31, ¶ 14, 392 P.3d 926. A defendant must
present the “court with the evidence he intends to present on
remand and explain how that evidence supports both prongs of
the ineffective assistance of counsel test.” State v. Christensen,
2013 UT App 163, ¶ 4, 305 P.3d 222 (per curiam) (cleaned up).

State v. Gallegos
20150688-CA 	26 	2018 UT App 192
Gallegos argues, the officer had reasonable, articulable suspicion
to temporarily seize Gallegos.
¶50 	The Fourth Amendment to the United States Constitution
guarantees the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. In determining whether a
seizure 	is reasonable 	under 	the 	Fourth 	Amendment, 	courts
analyze the three constitutionally permissible levels of police
stops. See State v. Johnson, 805 P.2d 761, 763 (Utah 1991). “A level
one encounter occurs when a police officer approaches a citizen
and asks questions, but the person is not detained against his
will and remains free to leave.” State v. Biggs, 2007 UT App 261,
¶ 10, 167 P.3d 544 (cleaned up). “A level two encounter occurs
when a police officer temporarily seizes an individual because
the officer has a reasonable, articulable suspicion that the person
has committed or is about to commit a crime.” Id. (cleaned up).
“Finally, a level three stop occurs when a police officer has
probable cause to believe that a crime has been committed and
effects an arrest of the suspect.” Id.
¶51 	Our supreme court has stated,
It is settled law that a police officer may detain and
question 	an 	individual 	when 	the 	officer 	has
reasonable, articulable suspicion that the person
has been, is, or is about to be engaged in criminal
activity. 	To 	detain 	an 	individual 	under 	such
circumstances, 	the 	officer’s 	suspicion 	must 	be
supported by specific and articulable facts and
rational 	inferences, 	and 	cannot 	be 	merely 	an
inchoate and unparticularized suspicion or hunch.
State v. Simons, 2013 UT 3, ¶ 21, 296 P.3d 721 (cleaned up). “The
standard for reasonable suspicion is relatively low. Indeed, the
likelihood of criminal activity need not rise to the level required
for probable cause, and it falls considerably short of satisfying a

State v. Gallegos
20150688-CA 	27 	2018 UT App 192
preponderance of the evidence standard.” State v. Morris, 2011
UT 40, ¶ 29, 259 P.3d 116 (cleaned up).
¶52 	Here, the officer was instructed, based on eyewitness
accounts, to look for Hispanic males wearing white clothes in a
Toyota Camry on a specific dead-end street. The officer arrived
at the dead-end street within a minute or two of receiving the
description. Gallegos was wearing dark clothes instead of white
and 	was standing 	with 	two 	women 	instead 	of 	other 	men.
Nevertheless, he was (1) standing next to a Toyota Camry, (2) on
the dead-end street where the attackers had fled and where the
Camry returned, and (3) engaged with the officer within minutes
of 	the 	officer 	receiving 	an 	instruction 	from 	dispatch 	to
investigate the area. A reasonable officer, seeing the parked
Camry, could conclude that Gallegos had been in the vehicle, or
at least knew its occupants, because he stood next to it.
¶53 	The case law Gallegos relies on to support his argument is
inapposite. In State v. Swanigan, 699 P.2d 718 (Utah 1985), the
primary 	case 	on 	which 	Gallegos 	bases 	his 	argument, 	our
supreme 	court 	explained 	that 	a 	stop 	“based 	solely 	on 	a
description by a fellow officer who had observed [two men]
walking along the street at a late hour in an area where recent
burglaries had been reported” could not form the basis of
reasonable suspicion. Id. at 719. Similarly, in State v. Steward, 806
P.2d 213 (Utah Ct. App. 1991), this court held that officers had no
reasonable 	basis 	to 	stop 	a 	person’s 	truck 	as 	he 	entered 	a
cul-de-sac where they had recently executed warrants on meth
houses. Id. at 216.
¶54 	But Gallegos was not merely in a neighborhood where
crimes had been reported. He was, only minutes after the crime
was reported, standing next to the suspect vehicle on the very
street to which witnesses reported seeing the attackers and their
vehicle flee. Furthermore, neither of the cases Gallegos cites
relied on eyewitness accounts. Here, the officer knew, based on
eyewitness reports, that (1) he was looking for Hispanic males

State v. Gallegos
20150688-CA 	28 	2018 UT App 192
who had recently fled down the dead-end street, (2) a Camry
had picked up the suspects, and (3) the Camry had just returned
to the dead-end street. These are articulable facts giving rise to
reasonable suspicion that Gallegos—who is Hispanic and was
right next to the Camry, on the dead-end street, minutes after the
officer had received the report—was involved with the fleeing
suspects. See State v. Markland, 2005 UT 26, ¶¶ 20–21, 112 P.3d
507 (holding that a police officer’s detention of a defendant “was
justified at its inception by a reasonable suspicion that crime was
afoot and that [the defendant] was connected to that crime”
where the officer arrived at an apartment complex in the early
morning hours—just minutes after receiving a report of someone
screaming—and defendant was the only person on the dead-end
street); see also Sanchez v. Florida, 199 So. 3d 472, 475 (Fla. Dist. Ct.
App. 	2016) 	(analyzing 	whether 	an 	officer 	had 	reasonable
suspicion based on a report from dispatch by considering “the
length of time and distance from the offense, route of flight,
specificity of the description of the vehicle and its occupants, and
the source of the . . . information” (cleaned up)).
¶55 	We conclude that even if the officer’s encounter with
Gallegos 	was 	a 	level 	two 	stop, 	the 	officer 	had 	reasonable,
articulable suspicion that supported briefly detaining Gallegos.
Thus, the trial court did not err in denying the motion to
suppress.
CONCLUSION
¶56 	We deny Gallegos’s rule 23B motion with respect to the
failure to call an eyewitness expert and issues related to evidence
because there was a conceivable basis for his trial counsel’s
strategy and because Gallegos was not prejudiced by these
alleged 	deficiencies. 	We 	also 	conclude 	that, 	even 	though
Gallegos’s counsel performed deficiently by failing to make a
motion to sever the Stabbing Charges from the Police Station
Charges, counsel’s failure does not undermine our confidence in
the result at trial. We further conclude that the trial court

State v. Gallegos
20150688-CA 	29 	2018 UT App 192
properly 	denied 	Gallegos’s motion 	to 	suppress because 	the
officer had reasonable, articulable suspicion to temporarily seize
Gallegos. We therefore affirm Gallegos’s convictions.
HARRIS, Judge (concurring in part and dissenting in part):
¶57 	I concur with the majority’s analysis in Section III in its
entirety. I also concur with the majority’s analysis in Section II.A.
I disagree, however, with the conclusions the majority reaches in
much of Section I and most of Section II.B, and due to this
disagreement I cannot join in the majority’s resolution of this
appeal, at least not at this stage of the proceedings.
¶58 	The majority persuasively explains that Gallegos’s trial
counsel performed deficiently by failing to seek a separate trial
for the Police Station Charges. The majority concludes, however,
that 	his 	attorney’s 	deficient 	performance 	did 	not 	prejudice
Gallegos, because “the evidence against him [on the Stabbing
Charges] was simply too great.” See supra ¶ 46. While I certainly
acknowledge 	that 	the 	State 	introduced 	several 	pieces 	of
powerful evidence at trial that indicated Gallegos’s guilt, at this
point I cannot agree—at least not where Gallegos has raised
other questions about the effectiveness of his attorney in a rule
23B motion that, in my view, must first be resolved—that there is
no “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
See Strickland v. Washington, 466 U.S. 668, 694 (1984).
¶59 	As an initial matter, I note that Strickland’s “reasonable
probability” standard is not the same as the “more likely than
not” standard applied in civil cases. Our supreme court has
stated 	that 	the 	“more 	likely 	than 	not” 	standard 	is 	“more
demanding” than the “reasonable probability” standard. See
Tillman v. State, 2005 UT 56, ¶ 29 n.7, 128 P.3d 1123 (quoting
Strickler 	v. 	Greene, 	527 	U.S. 	263, 	297–300 	(1999) 	(Souter, 	J.,
concurring and dissenting)), superseded in part by statute on other
grounds as stated in Gordon v. State, 2016 UT App 190, ¶ 32 n.8,

State v. Gallegos
20150688-CA 	30 	2018 UT App 192
382 P.3d 1063. The reasonable probability standard is “more akin
to a ‘significant possibility’ of a different result.” Id. (citation
omitted). A “reasonable probability of a different result occurs”
when a court’s “confidence in the outcome of the trial” is
undermined. Id. ¶ 29 (cleaned up). In other words, in order to
win reversal, Gallegos does not have to convince us that there is
a greater than 50% chance that the outcome of his trial would
have been different. Instead, he must simply raise issues that
undermine our confidence in the outcome of Gallegos’s trial, and
persuade us that there is a “significant possibility” of a different
result. 	At 	this 	point 	in 	the 	proceedings, 	before 	a 	court
adjudicates the issues Gallegos has raised in his rule 23B motion,
my confidence in the outcome of Gallegos’s trial is not solid
enough to warrant affirmance under this standard.
¶60 	Aside from the one irregularity that the majority and I
agree 	upon—counsel’s failure 	to 	seek severance—I 	am 	also
concerned with two of the issues13 Gallegos raises in his rule 23B
motion, and I would accordingly grant that motion and remand
for resolution of those two issues. First, I am concerned that
counsel did not pay enough attention to this case. Second, I am
concerned with counsel’s failure to introduce expert testimony
regarding the infirmities inherent in eyewitness identification
testimony.
¶61 	With regard to the first issue, Gallegos avers in his rule
23B affidavit that his trial counsel was appointed to represent
him in August 2014, but that counsel did not meet with him
(outside of a handful of brief discussions in the courthouse
holding cell) until May 18, 2015, less than three weeks before
trial. In this case, it is impossible to dismiss these averments as
the self-serving statements of an imprisoned defendant, because
trial counsel himself admitted to these facts on the record at a
13. I agree with the majority’s analysis with regard to the other
three issues raised in the rule 23B motion.

State v. Gallegos
20150688-CA 	31 	2018 UT App 192
pretrial hearing just a few weeks prior to trial. After Gallegos
complained to the court that he had only spent a grand total of
“five[] [or] six minutes in ten months” with his counsel, despite
having 	“tried 	sending 	him 	letters” 	and 	“calling 	him,” 	trial
counsel did not dispute Gallegos’s account, stating on the record
that he had been busy with a capital murder case and that “[j]ust
because I haven’t met with him doesn’t mean I’m not prepared
for trial.”14 The trial court then ordered counsel to meet with
Gallegos, astutely noting that “sometimes defendants have a
keener apprehension of the facts than anyone else because they
were present or at least allegedly present when the matter
occurred,” and that failing to give the defendant the opportunity
to “go over all the discovery” and otherwise participate in the
preparation of the case “can disable the defense.” On May 18,
2015, a few days after the court ordered him to meet with his
client, 	trial 	counsel 	held 	his 	first 	substantive 	meeting 	with
Gallegos. This was less than three weeks prior to trial. It should
go without saying that failure to hold even one substantive
14. 	Gallegos 	has 	also 	produced 	an 	affidavit 	from 	another
attorney who worked with trial counsel on the same capital
murder case by which counsel was supposedly distracted, and
this other attorney avers that trial counsel failed to do the work
assigned to him on that capital murder case and that as a result
“his contract . . . to provide indigent defense services has been
terminated.” 	The 	majority 	downplays 	this 	affidavit, 	on 	the
ground 	that 	“[e]vidence 	of 	substandard 	performance 	by
Gallegos’s 	counsel 	in 	another 	case” 	sheds 	no 	light 	on 	his
performance in this case, and because ineffective assistance of
counsel cannot be established by evidence of an attorney’s poor
general reputation. See supra ¶ 26 n.8. But this was not merely a
reputational 	issue; 	indeed, 	according 	to 	trial 	counsel’s 	own
statement to the court, counsel’s performance in the two cases
are directly connected, because counsel’s explanation for not
meeting with Gallegos in this case was that he was ostensibly too
busy with the other one.

State v. Gallegos
20150688-CA 	32 	2018 UT App 192
meeting with one’s client for nine months following retention,
and postponing any such meeting until less than three weeks
prior to trial—and only after it was ordered by the court— is
substandard attorney conduct in a case as serious as this one.
¶62 	With 	regard 	to 	the 	second 	issue, 	some 	of 	the 	most
powerful evidence at the State’s disposal was the eyewitness
accounts of both Victim and Witness, who both (in varying
ways) identified Gallegos as the stabber. Witness did so at a
police “showup” that took place on the night in question, in
which Gallegos was the only potential suspect for Witness to
choose from. Victim did so the next day, by way of a photo
lineup.
¶63 	Our supreme court has acknowledged that eyewitness
identification evidence can be problematic, because jurors tend
to overvalue it while overlooking its inherent flaws. See State v.
Clopten, 2009 UT 84, ¶¶ 15–29, 223 P.3d 1103. “Decades of study
. . . have established that eyewitnesses are prone to identifying
the wrong person as the perpetrator of a crime, particularly
when certain factors are present.” Id. ¶ 15. For instance, and
among other factors, people tend to “identify members of their
own race with greater accuracy than they do members of a
different race.“ Id. “[T]here is little doubt that juries are generally
unaware of these deficiencies in human perception and memory
and thus give great weight to eyewitness identifications.” Id. To
overcome 	these 	“inherent 	deficiencies” 	in 	eyewitness
identification 	testimony, 	“expert 	testimony 	is 	generally
necessary to adequately educate a jury” about the subject. Id.
¶ 16.
¶64 	It does not follow from Clopten, however, that counsel’s
failure to call an eyewitness identification expert “presumptively
renders counsel ineffective without regard for the circumstances
of a particular case.” See State v. Willey, 2011 UT App 23, ¶ 19,
248 P.3d 1014. If a particular case is “among those cases ‘in
which 	a 	witness 	viewed 	the 	perpetrator 	under 	such 	ideal

State v. Gallegos
20150688-CA 	33 	2018 UT App 192
conditions that an expert would not be able to identify factors
that could have contributed to a misidentification,’” counsel
cannot 	be 	said 	to 	act 	ineffectively 	by 	declining 	to 	call 	an
eyewitness identification expert. See State v. Heywood, 2015 UT
App 191, ¶ 28, 357 P.3d 565 (quoting Clopten, 2009 UT 84, ¶ 33).
Moreover, “such expert testimony does not always benefit the
defendant,” 	and 	“when 	an 	eyewitness-identification 	expert’s
testimony is likely to reinforce the credibility of identifications
made by eyewitnesses, declining to bring the expert to the
witness stand may be sound trial strategy.” See State v. King, 2017
UT App 43, ¶ 19, 392 P.3d 997.
¶65 	In this case, conditions were certainly not entirely ideal,
and various factors militate in both directions. Indeed, trial
counsel was actually in possession of a draft report from a
potential 	expert 	witness 	who 	identified 	several 	factors 	that
might militate in Gallegos’s favor and undermine Witness’s
eyewitness 	identification. 	Clopten’s 	first 	category 	of 	factors
“pertains to the observer” and his ability to perceive the events
in question. See Heywood, 2015 UT App 191, ¶ 19 (quoting
Clopten, 2009 UT 84, ¶ 32 n.22). Where the witness has vision
issues, 	or 	is 	tired, 	injured, 	or 	intoxicated, 	the 	witness’s
perceptive abilities may be impaired. Id. Also, where the witness
is a different race than the suspect, the witness’s ability to
accurately identify the suspect may be impaired. Id. Some of
these factors are (or may be) helpful to the defense, including the
cross-racial identification factor.
¶66 	The second category of factors pertains to the “event
witnessed” 	and 	the 	“circumstances 	of 	the 	observation,”
including 	such 	things 	as 	whether 	the 	event 	is 	high-stress,
lighting and visibility issues, distance, distractions, and whether
a weapon was present. Id. ¶ 20 (cleaned up). The presence of any
of these factors would tend to undermine the credibility of an
eyewitness’s identification. Many of these factors are present
here—the event was high-stress; it was dark, and the scene was
variably lit; and a weapon was present.

State v. Gallegos
20150688-CA 	34 	2018 UT App 192
¶67 	The third category of factors “pertains to the eyewitness’s
later identification of the suspect,” including the length of time
between 	observation 	and 	identification, 	and 	whether 	the
identification occurred at an in-person lineup, photo lineup, or
showup, and what procedures the officers used in staging the
lineup or showup. Id. ¶ 23. Some of these factors are present
here, at least with regard to one of the eyewitnesses—Witness’s
identification occurred after a one-man showup similar to the
one effectuated in State v. Ramirez, 817 P.2d 774, 784 (Utah 1991).
¶68 	One of Gallegos’s previous attorneys had identified and
retained an expert who could testify at trial and explain to the
jury the limitations of eyewitness identification testimony. Trial
counsel, however, elected not to call that (or any other) expert
regarding 	eyewitness 	identification 	testimony, 	apparently
because trial counsel determined that the expert would not be
helpful. In its opinion, the majority speculates about some of the
reasons why counsel might have reached this conclusion but, at
least at this point, I find those potential reasons unconvincing.
We simply do not know, on this record, why trial counsel elected
not to call the expert, and in a case like this one where both
(a) eyewitness identification testimony was so important and
(b) there are legitimate questions about trial counsel’s level of
preparedness, I would grant the rule 23B motion so that more
information 	can 	be 	gained 	about 	trial 	counsel’s 	reason 	for
making what might seem to be a questionable decision. See King,
2017 UT App 43, ¶¶ 16–24 (granting a rule 23B motion, but
eventually determining—after a remand in which the trial court
had made a factual finding that counsel had “made an informed,
reasonable strategic decision” based on many factors “that an
eyewitness identification expert would not be helpful to the
defense 	but 	would 	instead 	likely 	end 	up 	hurting 	it”—that
counsel had not acted ineffectively (cleaned up)).
¶69 	Finally, I am persuaded that the jury, in determining
Gallegos’s guilt on the Stabbing Charges, was—at least to some
degree—affected by hearing the evidence of the Police Station

State v. Gallegos
20150688-CA 	35 	2018 UT App 192
Charges.15 Gallegos’s primary defense to the Stabbing Charges
was that he was present at the scene of the stabbing, but that he
was not the stabber. The jury heard testimony from several
police officers that, after he was apprehended, he kicked a police
officer, tried to run away from a police officer, yelled and
screamed at police officers, spit on police officers, and gouged a
large hole in the wall of one of the rooms at the police station by
throwing or kicking a chair into the wall. This evidence—which
the trial court should have severed and kept from the jury
deciding Gallegos’s guilt on the Stabbing Charges—no doubt
made it easier for the jury to believe that Gallegos was a person
inclined to violence, and no doubt had some effect on the jury’s
decision to convict Gallegos on the Stabbing Charges.
¶70 	I 	am 	not 	necessarily 	persuaded 	that 	the 	prejudicial
effect of the failure to sever, standing alone, would have raised a
“significant 	possibility” 	of 	a 	different 	outcome, 	given 	the
relative 	strength 	of 	the 	State’s 	evidence. 	But 	I 	am 	not
comfortable definitively answering the “prejudice” question in
this case until after the rule 23B motion is resolved. Even
the 	majority 	acknowledges 	that 	Witness’s 	identification 	of
Gallegos at the police showup “is problematic.” See supra ¶ 10
n.3. It is possible that Gallegos might be able to demonstrate a
“significant possibility” of a different result, depending upon
the outcome of his rule 23B motion. If Gallegos is eventually
able to demonstrate that his attorney was unprepared, or that his
attorney 	acted 	ineffectively 	by 	failing 	to 	call 	an
eyewitness identification expert, the contours of the “prejudice”
inquiry may look a lot different.
15. I agree with the majority’s analysis, supra ¶ 47, that there is
not a reasonable probability that the outcome of a severed trial
on 	the 	Police 	Station 	Charges 	would 	have 	been 	different,
because the evidence of Gallegos’s guilt on the Police Station
Charges was overwhelming.

State v. Gallegos
20150688-CA 	36 	2018 UT App 192
¶71 	Accordingly, I cannot join in the result that the majority
reaches here. I would grant the rule 23B motion and, after
reviewing the outcome of the proceedings on remand, at that
point revisit the question of prejudice—that is, whether there is a
“significant possibility” of a different outcome, and whether my
confidence in the outcome of the trial is undermined.