State v. Salsman

2024 UT App 92
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
TED LEONARD S ALSMAN ,
Appellant.
Opinion
No. 20230327-CA
Filed July 5, 2024
Sixth District Court, Kanab Department
The Honorable Mandy Larsen
No. 221600005
Debra M. Nelson, Dylan T. Carlson, Benjamin Miller,
and Wendy M. Brown,
Attorneys for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN D. TENNEY concurred.
OLIVER, Judge:
¶1 	A jury convicted Ted Leonard Salsman of various charges
related to drug distribution, drug possession, and possession of a
dangerous weapon by a restricted person. On appeal, he argues
the district court abused its discretion in denying his continuance
motion to secure testimony from a witness who was incarcerated
out of state and that his counsel provided ineffective assistance in
failing to object to the jury instruction on the definition of a
dangerous weapon. We reject Salsman’s arguments and affirm his
convictions.

State v. Salsman
20230327-CA 	2 	2024 UT App 92
BACKGROUND
¶2 	Salsman 	lived 	in 	a 	trailer 	and 	allowed 	several other
people—including his pregnant girlfriend (Girlfriend) and his
friend 	(Friend)—to 	stay 	with 	him 	on 	his 	property. 	While
executing a search warrant, police found Salsman, Girlfriend, and
Friend inside the trailer, where a “chunk of meth,” a handgun,
and a safe with $14,000 in cash lay on the bed. Police found digital
scales and a bowl and cutting board dusted with a white “crystal-
like substance.” In total, they seized approximately 315 grams of
methamphetamine. 	And 	police 	found 	a 	variety 	of 	sizes 	of
cellophane baggies—some unused and others with a “crystal-like
substance” 	inside, 	which 	later 	tested 	positive 	for
methamphetamine. They also discovered several “steak-type
knives” and a hatchet sticking in the wall of the trailer—which
Salsman 	used 	as 	a 	“throwing 	gallery”—and 	a 	twelve-inch
serrated hunting knife in a sheath.
¶3 	Salsman admitted to using drugs with Friend and told
officers, Friend “gets [them] from me.” Salsman was charged with
possession of a controlled substance with intent to distribute,
possession of a controlled substance, possession of a firearm by a
restricted 	person, 	possession 	of 	a 	dangerous 	weapon 	by 	a
restricted person, and possession of drug paraphernalia.
¶4 	In his pretrial disclosures, Salsman listed Girlfriend as a
potential witness. Because Girlfriend had since been incarcerated
in Arizona on murder charges, Salsman’s counsel (Counsel)
arranged for her to testify by video. But during the trial, Counsel
informed the court that Girlfriend would be testifying by phone
instead because the Arizona jail could not accommodate a video
appearance. Upon the State’s stipulation, the court agreed to
allow Girlfriend to testify by phone. After a recess on the second
day of trial, Counsel explained to the court that the jail had
canceled Girlfriend’s appearance because Girlfriend’s defense
attorney had told the jail that Girlfriend would “go in and plead
the Fifth.” Counsel had contacted Girlfriend’s defense attorney,

State v. Salsman
20230327-CA 	3 	2024 UT App 92
who confirmed that she “was not going to take a chance with her
client” and would not allow her to appear—even just to exercise
her right under the Fifth Amendment. Counsel asked the court to
order Girlfriend to appear. Noting it had already done so, the
court stated it would order that she appear by phone and
declared, “[I]f she chooses to invoke the Fifth Amendment, we’ll
cross that bridge when we get there.”
¶5 	When it came time 	for Girlfriend to testify, Counsel
informed the court that Girlfriend would not be testifying because
the Arizona jail had “cut off” the call due to the lengthy wait time
and Girlfriend’s need to go to her own court appearance that
afternoon. Counsel then requested a continuance “because of
[Girlfriend’s] unavailability.” The State opposed the request,
pointing to the repeated instructions from Girlfriend’s defense
attorney for her to plead the Fifth if she did appear. The court
denied the continuance, noting “it appear[ed] there wouldn’t be
any testimony elicited” because Girlfriend “would invoke her
Fifth Amendment right as represented by her defense attorney.”
Without Girlfriend’s testimony, Salsman was the only witness in
his defense.
¶6 	After 	the 	close 	of 	the 	evidence, 	the 	court 	provided
instructions to the jury, including instructions to unanimously
decide whether the hatchet or hunting knife qualified as a
dangerous weapon. The jury was also provided with a definition
of a “dangerous weapon” as “an object that in the manner of its
use or intended use is capable of causing death or serious bodily
injury.” See Utah Code § 76-10-501(6)(a). The instructions did not
include the statutory list of factors to help the jury determine
whether a particular item meets this definition. See id. § 76-10-
501(6)(b). The jury found Salsman guilty on all charges.
ISSUES AND STANDARDS OF REVIEW
¶7 	Salsman challenges the district court’s refusal to grant a
continuance to allow him to secure Girlfriend’s appearance. “The

State v. Salsman
20230327-CA 	4 	2024 UT App 92
granting of a continuance is at the discretion of the trial judge,
whose decision will not be reversed . . . absent a clear abuse of that
discretion.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986 (cleaned
up). “A district court abuses its discretion when it denies a
continuance and the resulting prejudice affects the substantial
rights of the defendant, such that a review of the record persuades
[this] 	court 	that 	without 	the 	error 	there 	was 	a 	reasonable
likelihood of a more favorable result for the defendant.” Id.
(cleaned up).
¶8 	He also argues Counsel provided ineffective assistance in
failing to object to the incomplete jury instruction defining a
“dangerous weapon.” “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the defendant
was deprived of the effective assistance of counsel as a matter of
law.” State v. Alvarado, 2023 UT App 123, ¶ 12, 538 P.3d 633
(cleaned up).
ANALYSIS
I. Continuance Motion
¶9 	Salsman argues the district court abused its discretion in
denying his continuance motion. To convince us he was entitled
to a continuance, Salsman must show (1) “that the testimony
sought is material and admissible,” (2) “that the witness could
actually be produced,” (3) “that the witness could be produced
within a reasonable time,” and (4) “that due diligence has been
exercised before the request for a continuance.” Mackin v. State,
2016 UT 47, ¶ 33, 387 P.3d 986 (cleaned up).1 And he must also
1. Salsman suggests a different standard, articulated in State v.
Torres-Garcia, 2006 UT App 45, 131 P.3d 292, which sets forth
different factors a court may consider in ruling on a continuance
motion. See id. ¶ 18. But the factors in Torres-Garcia are applied
(continued…)

State v. Salsman
20230327-CA 	5 	2024 UT App 92
show that the denial of the continuance was “a clear abuse
of . . . discretion,” meaning it resulted in prejudice that affected
his substantial rights “such that a review of the record persuades
[us] that without the error there was a reasonable likelihood of a
more favorable result.” Id. (cleaned up). Salsman cannot meet this
burden.
¶10 	Although 	the 	district 	court 	mistakenly 	denied 	the
continuance based on the representations from Counsel that
Girlfriend would invoke her Fifth Amendment rights rather than
on an invocation by Girlfriend herself, the denial does not
constitute a clear abuse of discretion because Salsman has not
demonstrated that Girlfriend’s testimony would have affected
the 	outcome 	of 	his 	case.2 	On 	appeal, 	Salsman 	argues 	her
testimony would have supported his defense that the drugs in
his trailer were for “personal use” rather than for distribution.
But he proffers no details about what the substance of this
testimony would have been, leaving us with pure speculation.
And the evidence strongly suggested otherwise. Inside Salsman’s
trailer, police found 315 grams of methamphetamine (including a
large “chunk of meth”), digital scales, a cutting board that tested
positive for methamphetamine, and a large quantity of various
sizes 	of 	cellophane 	baggies—some 	of 	which 	also 	contained
methamphetamine. Police also found several weapons and a
safe containing $14,000 in cash. Given the speculative nature
of 	Girlfriend’s 	testimony 	and 	the 	strength 	of 	the 	evidence
“when considering a defendant’s request for a continuance based
on the State’s failure to provide” adequate notice of a witness’s
testimony, State v. Samples, 2022 UT App 125, ¶ 60 n.9, 521 P.3d
526, cert. denied, 525 P.3d 1279 (Utah 2023), which is not the
situation here.
2. The “attorney for a witness cannot claim a privilege against self-
incrimination; he can only advise the witness. In order for the
claim to be honored by the court, it must be made by the witness.”
State v. White, 671 P.2d 191, 193 (Utah 1983) (cleaned up).

State v. Salsman
20230327-CA 	6 	2024 UT App 92
against Salsman, on the record before us “we cannot see a
reasonable likelihood of a more favorable” outcome at trial had
the 	court 	granted 	the 	continuance. 	Id. 	¶ 	37 	(cleaned 	up).
Therefore, the district court did not abuse its discretion in denying
his motion.
II. Jury Instructions
¶11 	Salsman argues Counsel provided ineffective assistance
in 	failing 	to 	object 	to 	the 	jury 	instruction 	regarding 	the
definition of a “dangerous weapon.” To prevail on his ineffective
assistance 	claim, 	Salsman 	“must 	show 	both 	that 	Counsel’s
performance was deficient and that the deficient performance
prejudiced the defense.” State v. Beckering, 2015 UT App 53, ¶ 21,
346 P.3d 672 (cleaned up). “Counsel’s performance will not be
deemed deficient unless [Salsman] can show that Counsel’s
representation 	fell 	below 	an 	objective 	standard 	of
reasonableness.” Id. (cleaned up). And to establish prejudice,
Salsman 	must 	show 	a 	“reasonable 	probability 	that 	but 	for
Counsel’s errors, the result would have been different.” Id. ¶ 29
(cleaned 	up). 	“In 	the 	event 	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 deficient. Id. (cleaned up). Here, we need not address
Counsel’s alleged deficient performance as the failure to object to
the jury instruction did not prejudice Salsman.
¶12 	The jury was instructed to determine whether the hatchet
or hunting knife qualified as a dangerous weapon, and it was
provided with the general definition of a “dangerous weapon.”
The jury instruction quoted the statute, defining a “dangerous
weapon” as “an object that in the manner of its use or intended
use is capable of causing death or serious bodily injury.” Utah
Code § 76-10-501(6)(a). The instruction did not include the factors
listed in the statute to assist in “determining whether any object,
other than a firearm, is a dangerous weapon.” Id. § 76-10-
501(6)(b). These factors are

State v. Salsman
20230327-CA 	7 	2024 UT App 92
(i) the location and circumstances in which 	the
object was used or possessed;
(ii) the primary purpose for which the object was
made;
(iii) the character of the wound, if any, produced by
the object’s unlawful use;
(iv) the manner in which the object was unlawfully
used;
(v) whether the manner in which the object is used
or possessed constitutes a potential imminent threat
to public safety; and
(vi) the lawful purposes for which the object may be
used.
Id. Salsman argues that had the jury been instructed on these
statutory factors, it would not have convicted him. We disagree.
¶13 	At trial, the jury heard testimony that the hatchet was
found stuck into the wall of Salsman’s trailer—because he “used
the place as a . . . throwing gallery”—and the serrated hunting
knife was found lying on the couch. The jury also saw the photos
of the hatchet and the hunting knife. Based on this information,
the jury could evaluate for itself whether the hatchet or hunting
knife was “capable of causing death or serious bodily injury”
under section 76-10-501(6)(a). Cf. State v. Sorenson, 2023 UT App
159, ¶ 29, 542 P.3d 529 (concluding the “jurors were able to
evaluate for themselves whether the tools qualified as dangerous
weapons” when the tools were admitted as trial exhibits).
¶14 	Adding the six statutory factors to the jury instruction
would likely have harmed—not helped—Salsman’s case. First,
the hatchet and hunting knife were found in the open area of
Salsman’s 	trailer, 	with 	three 	people—one 	of 	whom 	was

State v. Salsman
20230327-CA 	8 	2024 UT App 92
pregnant—living inside the small space. Salsman testified that he
used the wall of the trailer as a “throwing gallery” for the hatchet
and other knives. And the trailer was full of methamphetamine,
which Salsman and Friend admitted to using. Thus, the location
and circumstances in which the hatchet and hunting knife were
used (factor 1) indicate that they were capable of causing death or
serious bodily injury. See Utah Code § 76-10-501(6)(b)(i). Next, the
primary purpose of both a hatchet and a hunting knife (factor 2)
is to cut. See id. § 76-10-501(6)(b)(ii). While these tools certainly
have lawful uses (factor 6), see id. § 76-10-501(6)(b)(vi), and there
is no indication that Salsman had used them unlawfully to
produce an injury (factors 3 and 4), see id. § 76-10-501(6)(b)(iii),
(iv), there was a risk that under these particular circumstances,
these objects that 	were designed to cut 	posed a “potential
imminent 	threat 	to 	public 	safety” 	(factor 	5), 	id. 	§ 	76-10-
501(6)(b)(v).
¶15 	Thus, we are persuaded that the addition to the jury
instruction of the six factors in section 76-10-501(6)(b) would only
have reinforced the jury’s conclusion that the hatchet or hunting
knife 	qualified 	as 	dangerous 	weapons 	under 	section
76-10-501(6)(a). Accordingly, Salsman cannot demonstrate that he
was 	prejudiced 	by 	Counsel’s 	failure 	to 	object 	to 	the 	jury
instruction, and his ineffective assistance claim fails.
CONCLUSION
¶16 	The district court did not abuse its discretion in denying
Salsman’s 	continuance 	motion. 	Nor 	did 	Counsel 	provide
ineffective assistance in failing to object to the jury instruction
regarding the definition of a “dangerous weapon.” We thus affirm
Salsman’s convictions.