State v. Hunt

2024 UT App 180
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BRADLY S COTT HUNT,
Appellant.
Opinion
No. 20221023-CA
Filed December 12, 2024
Fifth District Court, St. George Department
The Honorable Keith C. Barnes
No. 201500943
Michael Winn and K. Andrew Fitzgerald,
Attorneys for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and DAVID N.
M ORTENSEN concurred.
ORME, Judge:
¶1 	Bradly Scott Hunt was convicted of murder and possession
of a dangerous weapon by a restricted person for fatally shooting
his former neighbor (Neighbor). On appeal, he argues his trial
counsel (Counsel) provided ineffective assistance in eliciting
testimony 	from 	him 	on 	direct 	examination 	about 	his 	prior
convictions. He also argues he was entitled to a mistrial after the
State asked him about his intent to kill Neighbor, and he argues
this 	questioning 	constituted 	prosecutorial 	misconduct. 	We
disagree on all fronts and affirm Hunt’s convictions.

State v. Hunt
20221023-CA 	2 	2024 UT App 180
BACKGROUND1
¶2 	Hunt and Neighbor used to spend lots of time together
fixing cars and hanging out at Hunt’s house. But after learning
that Neighbor’s wife, whom Neighbor could observe from Hunt’s
property, had obtained a protective order against Neighbor, Hunt
asked Neighbor to stay away from his house.
¶3 	One night, Hunt had just returned home from work
when he heard the gate on the side of his house rattling and saw
Neighbor 	trying 	to 	enter 	the 	backyard. 	Although 	visitors
usually entered 	through 	that 	side 	gate, 	Hunt 	“saw 	red”
because he felt that Neighbor was violating his boundaries.
Hunt ran out the front door, yelling that Neighbor was not
supposed to be on his property and warning that if he had his
gun, he would kill Neighbor. Hunt then hit Neighbor in the head,
knocking him unconscious. After Neighbor fell to the ground,
Hunt struck him a few more times and then dragged him by the
legs down the driveway and into the middle of the road, where
he broke a glass bottle next to Neighbor’s head. Police responded
after 	being 	called 	by 	witnesses 	and, 	notwithstanding 	the
protective order, Neighbor’s wife helped him away. Neighbor
opted 	not 	to 	press 	charges 	against 	Hunt 	because 	of 	their
“friendship.”
¶4 	Later that night, after things had calmed down, Hunt, his
father, and two friends were in Hunt’s backyard. Wary that
Neighbor would return with a gun, Hunt and his father had
turned off all the interior and exterior lights and padlocked the
side gate. Hunt’s father had also leaned a shotgun near the front
1. “We review the record facts in a light most favorable to the
jury’s verdict and recite the facts accordingly, and we present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Fraughton, 2024 UT App 118, n.1, 556 P.3d 118
(quotation simplified).

State v. Hunt
20221023-CA 	3 	2024 UT App 180
door. Hunt’s dogs began barking inside the house, and Hunt got
up and ran inside. He later testified that he saw a “silhouette of a
man” outside the front windows. He immediately grabbed the
shotgun, ran outside, and fired, shooting Neighbor, who was on
the other side of the gate.
¶5 	Neighbor lay on the driveway with a wound to his
torso until emergency personnel arrived. He later died at the
hospital. Meanwhile, Hunt was transported to the police station,
where he admitted in an interview to shooting Neighbor and
claimed he had acted in self-defense. He was later charged with
murder and possession of a dangerous weapon by a restricted
person.2
¶6 	Before trial, Hunt filed a motion in limine seeking to
exclude evidence of his prior felony convictions under rule 404(b)
of the Utah Rules of Evidence. But at a hearing on the motion, the
parties indicated that they had reached an agreement regarding
evidence of Hunt’s convictions. The parties stipulated to Hunt’s
status as a 	convicted 	felon 	for 	purposes of 	the 	charge 	for
possession of a dangerous weapon by a restricted person and they
acknowledged that if Hunt were to testify at trial, the State could
cross-examine him using his prior convictions under rule 609 of
the Utah Rules of Evidence.
¶7 	At trial, the State called several witnesses, some of whom
testified 	about 	Hunt’s 	prior 	convictions. 	An 	officer, 	who
responded to the earlier physical altercation between Hunt and
Neighbor, testified that he was familiar with Hunt and had told
him, “[H]ey, look, you don’t want to go back to prison since
you’ve been there for ten years.” While testifying about the events
2. Hunt was also charged with possession or use of a controlled
substance 	and 	possession 	of 	drug 	paraphernalia 	based 	on
materials recovered during the search of his home after the
shooting, but he was acquitted of these charges at trial.

State v. Hunt
20221023-CA 	4 	2024 UT App 180
surrounding the shooting, Hunt’s father also verified that Hunt
was a convicted felon.
¶8 	After the State rested, Counsel3 informed the court that the
defense 	would 	be 	calling 	a 	sheriff’s 	deputy 	who 	had 	“a
rapport with” Hunt “from the jail.” The deputy testified that he
had worked as a corrections officer during Hunt’s prior periods
of 	incarceration 	and 	that 	Hunt 	had 	been 	a 	respectful 	and
cooperative inmate. The deputy also happened to respond to the
aftermath of the shooting and testified that Hunt had posed “no
problems” 	as 	he 	was 	transported 	to 	the 	police 	station 	for
questioning.
¶9 	Hunt also testified. He stated that after his dogs began
barking, he went inside and saw the “silhouette” of a man “trying
to manipulate” the front windows of his house. He claimed he
was “terrified” thinking it was Neighbor “breaking into” his
home to kill him. Counsel also asked Hunt, “[Y]ou’ve been to
prison, right?” Hunt answered, “I have,” and he explained he had
prior 	convictions 	for 	drug-related 	charges, 	retail 	theft, 	and
forgery. Hunt indicated he had taken plea deals in these prior
cases and “accepted responsibility,” the implication being that he
would have done the same in this case if he were guilty.
¶10 	During Hunt’s cross-examination, the State elicited the
following exchange:
[The State]: And just to be clear, [Neighbor] wasn’t
killed accidentally, correct?
[Hunt]: Correct.
3. The defense team included two attorneys. Because Hunt raises
his ineffective assistance claim against only one of them, we focus
on her actions alone.

State v. Hunt
20221023-CA 	5 	2024 UT App 180
[The State]: You intentionally pointed the shotgun
at [Neighbor] and you pulled the trigger intending
to kill or seriously wound [Neighbor]; is that true?
[Hunt]: Correct.
Counsel then objected, stating, “Intentionally is a legal term” that
“calls for a legal conclusion my client can’t make” and that it was
“defined in the jury instructions as a legal term.” After a sidebar,
the court sustained the objection. But later, the State again
inquired about Hunt’s intent:
[The State]: It wasn’t until after you made that
decision, after you popped the door open with the
desire to shoot the gun, that at that point you say
you saw something, correct?
[Hunt]: So when you say desire—
[The 	State]: 	Well, 	I 	say 	intent, 	but 	apparently
counsel has issue with that.
[Hunt]: Did I desire to shoot [Neighbor]? No.
[The State]: Did you intend to shoot [Neighbor]?
[Hunt]: Yes.
¶11 	Counsel again objected, stating, “Your Honor, this is
twice.” At a sidebar, Counsel said, “I’m inclined to move for a
mistrial.” The defense pointed out that the “jury will specifically
get mens rea terms that will say intent” and noted that the State
had “used that word several times.” The court sustained the
objection, stating, “We’ve already gone through this earlier,” but
it declined to grant a mistrial and suggested a curative instruction
instead.

State v. Hunt
20221023-CA 	6 	2024 UT App 180
¶12 	After the defense rested, the court instructed the jury,
including with this curative instruction:
The 	terms 	“intend,” 	“intentional,” 	or
“intentionally” are terms of common usage which
have plain meanings.
However, 	there 	are 	specific 	legal
implications of these terms which go towards the
mens rea or state of mind elements to certain
offenses; namely, murder.
The common usage of these terms should not
be confused with the legal meanings of these terms.
“Intentionally” 	is 	a 	legal 	term 	of 	art 	as
defined in jury instructions.
The instructions also addressed perfect and imperfect self-defense
and defense of habitation, each of which Hunt had argued at trial.
The jury found Hunt guilty of murder and possession of a
dangerous weapon by a restricted person.
¶13 	Hunt appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 	On appeal, Hunt argues Counsel provided ineffective
assistance when she elicited testimony from him regarding his
prior convictions. “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.” State
v. Lee, 2014 UT App 4, ¶ 6, 318 P.3d 1164 (quotation simplified).
¶15 	Hunt also argues the district court erred in denying his
motion for a mistrial after the State cross-examined him regarding
his intent to kill Neighbor. “We review the denial of a motion for

State v. Hunt
20221023-CA 	7 	2024 UT App 180
a mistrial under an abuse of discretion standard, and we will not
reverse the court’s decision unless it is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot be
said to have had a fair trial.” State v. Kufrin, 2024 UT App 86, ¶ 33,
551 P.3d 416 (quotation simplified).
¶16 	Relatedly, Hunt argues this cross-examination regarding
his intent constituted prosecutorial misconduct. “Prosecutorial
misconduct is not a standalone basis for independent judicial
review, meaning that we do not review the prosecutor’s actions;
rather, when a prosecutorial misconduct objection is made below,
we review the district court’s ruling on the objection for abuse of
discretion.” State v. Lyden, 2020 UT App 66, ¶ 12, 464 P.3d 1155
(quotation simplified). But “when a prosecutorial misconduct
objection is not made, . . . the law of preservation controls and we
review the issues under established exceptions to the law of
preservation.” Id. (quotation simplified).
ANALYSIS
I. Ineffective Assistance
¶17 	Hunt argues Counsel provided ineffective assistance in
eliciting testimony from the deputy and Hunt himself about
his prior convictions. “To succeed 	on a 	claim of 	ineffective
assistance 	of 	counsel, 	a 	defendant 	must 	show 	both 	that
counsel’s performance 	was 	deficient 	and 	that 	the 	deficient
performance prejudiced the defense.” State v. Lee, 2014 UT App 4,
¶ 13, 318 P.3d 1164 (quotation simplified). “To establish that
counsel’s performance was deficient, a defendant must show that
counsel’s representation fell below an objective standard of
reasonableness,” which requires the defendant to “overcome the
presumption that, under the circumstances, the challenged action
might 	be 	considered 	sound 	trial 	strategy.” 	Id. 	(quotation
simplified). 	“To 	establish 	the 	prejudice 	prong 	of 	an

State v. Hunt
20221023-CA 	8 	2024 UT App 180
ineffective assistance 	of 	counsel 	claim, 	the 	defendant 	must
show that a reasonable probability exists that, but for counsel’s
error, the result would have been different.” Id. (quotation
simplified).
¶18 	Turning to the first prong, we conclude that bringing up
Hunt’s prior convictions did not constitute deficient performance
by Counsel. In State v. Bedell, 2014 UT 1, 322 P.3d 697, prior to the
trial of a doctor charged with sexual abuse of a patient, the district
court prevented the State from admitting evidence of nine other
sexual 	misconduct 	allegations 	against 	him, 	concluding 	the
evidence was inadmissible under rule 403 of the Utah Rules of
Evidence. Id. ¶ 6. Despite this, the doctor’s defense counsel
mentioned during opening statements that the accusing patient
had 	learned 	that 	the 	doctor 	was 	“being 	investigated 	for
allegations of sexual impropriety against [other] patients.” Id. ¶ 7
(quotation simplified). Defense counsel then repeatedly brought
up the other allegations while cross-examining the investigating
detective and again during closing argument “to argue that the
State had not thoroughly investigated [the patient’s] claims
‘because there was already an investigation going on’” and to
establish “a theme that [the patient] had limited credibility and
had only reported her claims after she learned of an ongoing
investigation.” Id. ¶ 21. Our Supreme Court concluded that
defense counsel’s “affirmative decision from the outset to utilize
the . . . evidence to attack the State’s case and [the patient’s]
credibility” and to create a “theme” for the defense was a
“legitimate 	strategic 	decision” 	and 	thus 	not 	deficient
performance. Id. ¶¶ 21, 24–25.
¶19 	Similarly, 	Counsel 	used 	Hunt’s 	prior 	convictions
strategically, introducing the evidence to minimize its damage
and in an attempt to spin the narrative to Hunt’s advantage.
During its case-in-chief, the State admitted exhibits by stipulation,
including a copy of a judgment in which Hunt pled guilty to a
prior felony charge. And testimony from two of the State’s

State v. Hunt
20221023-CA 	9 	2024 UT App 180
witnesses—a police officer who responded to the earlier physical
altercation between Hunt and Neighbor and Hunt’s own father—
had already alluded to these convictions. The State had also made
it clear that should Hunt choose to testify, it would introduce
evidence of his convictions to cross-examine him pursuant to rule
609 of the Utah Rules of Evidence. Counsel chose to deal with the
prior convictions “up front . . . to build credibility” for Hunt and
try to “minimize the prejudicial impact of the convictions”—
which is “often a sound strategic decision.” See Lee, 2014 UT App
4, ¶ 18.
¶20 	Using this evidence also allowed Counsel to highlight that
in 	each 	prior 	case, 	Hunt 	had 	“accepted 	responsibility” 	by
pleading guilty. See State v. Gedi, 2013 UT App 133, ¶ 11, 302 P.3d
840 (holding that, although “disclosure of a defendant’s prior
conviction is generally something defense counsel would seek to
avoid,” defense counsel had not performed deficiently in bringing
up a defendant’s prior convictions “to make the point that he had
willingly taken responsibility for his actions when he was guilty
and 	therefore was telling 	the 	truth 	now”). 	Counsel 	further
attempted to salvage Hunt’s image by eliciting testimony about
his 	cooperative 	and 	respectful 	behavior 	during 	his 	prior
incarceration.
¶21 	Bringing up the convictions again—despite the earlier
motion seeking to exclude them—allowed Counsel “to take the
wind out of the sails” of the State before it could cross-examine
Hunt. See Lee, 2014 UT App 4, ¶ 18 (quotation simplified).
Considering the “wide latitude” we give “to trial counsel to make
tactical decisions,” it was certainly reasonable for Counsel to use
the evidence this way. Bedell, 2014 UT 1, ¶ 23. Accordingly,
Counsel did not perform deficiently, and Hunt’s ineffective
assistance claim fails.

State v. Hunt
20221023-CA 	10 	2024 UT App 180
II. Motion for Mistrial
¶22 	Hunt next argues the district court should have granted his
motion for a mistrial. During cross-examination, the State twice
asked Hunt about his intent to shoot Neighbor. It first asked, “You
intentionally pointed the shotgun at [Neighbor] and you pulled
the trigger intending to kill or seriously wound [Neighbor]; is that
true?” Counsel objected, arguing that “[i]ntentionally is a legal
term” that was “defined in the jury instructions” and the State’s
question thus called “for a legal conclusion” that Hunt could not
make. The court sustained the objection. Later, the State elicited
the following exchange, which we repeat:
[The State]: It wasn’t until after you made that
decision, after you popped the door open with the
desire to shoot the gun, that at that point you say
you saw something, correct?
[Hunt]: So when you say the desire—
[The 	State]: 	Well, 	I 	say 	intent, 	but 	apparently
counsel has issue with that.
[Hunt]: Did I desire to shoot [Neighbor]? No.
[The State]: Did you intend to shoot [Neighbor]?
[Hunt]: Yes.
Counsel again objected, saying, “Your Honor, this is twice.” The
court sustained this objection, indicating that the parties had
“already gone through this earlier.” Counsel later moved for a
mistrial, arguing that the word “intent” and its variations “have a
very specific legal definition” that the jury would read in the jury
instructions 	after 	having 	already 	heard 	the 	State’s
cross-examination. The court denied the motion, observing that a

State v. Hunt
20221023-CA 	11 	2024 UT App 180
curative instruction would be an adequate remedy. Hunt argues
this was an abuse of the court’s discretion.
¶23 	“A mistrial is strong medicine.” State v. Bermejo, 2020 UT
App 142, ¶ 75, 476 P.3d 148 (quotation simplified). And “in view
of 	the 	practical 	necessity 	of 	avoiding 	mistrials 	and 	getting
litigation finished, the trial court should not grant a mistrial
except where the circumstances are such as to reasonably indicate
that a fair trial cannot be had and that a mistrial is necessary to
avoid injustice.” Id. (quotation simplified). “Because a district
judge is in an advantaged position to determine the impact of
courtroom events on the total proceedings, once a district court
has exercised its discretion and denied a motion for a mistrial, an
appellate court will not reverse the court’s decision unless it is
plainly wrong in that the incident so likely influenced the jury that
the defendant cannot be said to have had a fair trial.” Id.
(quotation simplified). Ultimately, “[e]valuating a denial of a
mistrial motion requires us to consider the totality of evidence
against the defendant and the circumstances surrounding the
improper statements.” Id. ¶ 76. Under the circumstances here, we
conclude the district court did not abuse its discretion in denying
Hunt’s motion for a mistrial.
¶24 	Hunt 	relied 	on 	self-defense 	and 	defense-of-habitation
arguments throughout trial. And these arguments assumed the
fact that he did intend to shoot Neighbor—albeit justifiably. True,
the jury instructions asked the jury to determine beyond a
reasonable doubt whether Hunt “intentionally or knowingly
caused the death of” Neighbor. And the State cross-examined him
regarding his intent. But, in making his self-defense and defense-
of-habitation arguments, Hunt had essentially conceded that he
had such intent. We cannot say that the State’s questioning
regarding intent so influenced the jury as to deprive Hunt of a fair

State v. Hunt
20221023-CA 	12 	2024 UT App 180
trial. Thus, the district court did not abuse its discretion in
denying his motion for a mistrial.4
III. Prosecutorial Misconduct
¶25 	Relatedly, 	Hunt 	argues 	the 	State’s 	cross-examination
regarding 	his 	intent 	constituted 	prosecutorial 	misconduct.
Because “prosecutorial misconduct is not a standalone basis for
independent judicial review,” “when a defendant raises a claim
of prosecutorial misconduct on appeal,” our task on review “is
not . . . to question the prosecutor’s actions.” State v. Reid, 2018 UT
App 146, ¶ 40, 427 P.3d 1261 (quotation simplified), cert. denied,
432 P.3d 1225 (Utah 2018). “Instead, appellate courts review the
decisions of lower courts, not the actions of the prosecutor—at
least not directly.” Id. (quotation simplified). But for us to do so,
the issue must be preserved. See State v. Davis, 2013 UT App 228,
¶ 24, 321 P.3d 1136 (“Claims of prosecutorial misconduct are
subject to the preservation rule.”) (quotation simplified), abrogated
on other grounds by State v. Ringstad, 2018 UT App 66, 424 P.3d
1052.
¶26 	“An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity 	to 	rule 	on 	it”—meaning 	the 	issue 	has 	been
“specifically raised . . . in a timely manner” and is “supported by
4. It is far from clear that the court should have sustained either of
Counsel’s objections to the questions about Hunt’s intent in the
first place. As the court itself later noted in its curative instruction,
while the word “intentionally” is “a legal term of art as defined in
the jury instructions,” it also has a “common usage.” And “when
witnesses have used a term in its ordinary meaning rather than its
legal meaning, we have determined that their testimony was
appropriately admitted.” State v. Zimpfer, 2024 UT App 136, ¶ 38
(quotation simplified).

State v. Hunt
20221023-CA 	13 	2024 UT App 180
evidence and relevant legal authority.” State v. Johnson, 2017 UT
76, ¶ 15, 416 P.3d 443 (quotation simplified). Thus, “when a
defendant fails to raise the issue before the district court, the law
of 	preservation 	controls 	and 	we 	review 	the 	issues 	under
established exceptions to the law of preservation, namely, plain
error, 	exceptional 	circumstances, 	or 	ineffective 	assistance 	of
counsel, if the appellant argues that one of these exceptions
apply.” Reid, 2018 UT App 146, ¶ 40 (quotation simplified).
¶27 	The State argues that Hunt has not preserved this issue for
appeal. Given that the State’s questions regarding Hunt’s intent
likely were not improper, see supra note 4, we are far from certain
that any prosecutorial misconduct occurred here. In any event, we
agree 	with 	the 	State 	that 	Hunt’s 	prosecutorial 	misconduct
argument is unpreserved. Counsel moved for a mistrial, arguing
that the words “intend,” “intends,” “intention,” and the like
“have a very specific legal definition” and the last thing the jury
had heard from Hunt during his testimony were the words
“intention and shoot and intention and kill.” Counsel argued a
curative 	instruction 	would 	not 	be 	a 	sufficient 	remedy. 	But
Counsel did not invoke prosecutorial misconduct while arguing
for a mistrial, nor did the court address it. Accordingly, the issue
was not raised with specificity. And because Hunt does not urge
us to review the claim under an exception to our preservation
rule, “we have no occasion to address the merits of this issue.”
State v. Murphy, 2019 UT App 64, ¶ 14, 441 P.3d 787, cert. denied,
466 P.3d 1074 (Utah 2020).
CONCLUSION
¶28 	Counsel’s attempt to use Hunt’s prior convictions to his
advantage did not constitute deficient performance and thus,
Hunt’s ineffective assistance claim fails. Because Hunt’s defenses
rested on what amounted to a concession of intent, the district
court did not abuse its discretion in denying his motion for a

State v. Hunt
20221023-CA 	14 	2024 UT App 180
mistrial based on the State’s cross-examination regarding intent.
And we do not address Hunt’s unpreserved claim that this
cross-examination constituted prosecutorial misconduct.
¶29 	Affirmed.