State v. Horvath

2018 UT App 165
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BREANNA LYNN HORVATH ,
Appellant.
Opinion
No. 20160789-CA
Filed August 23, 2018
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 141910232
Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. O RME and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 	Breanna Lynn Horvath appeals her convictions of one
count of obstruction of justice and one count of reckless driving.
Regarding 	her 	obstruction 	of 	justice 	conviction, 	Horvath
argues that the trial court erred by refusing her request for a
lesser-included-offense 	instruction 	and 	that 	she 	received
constitutionally ineffective assistance of counsel because her
counsel failed to object to an allegedly erroneous instruction. As
to her reckless driving conviction, she argues that the court
incorrectly entered the conviction as a class A misdemeanor
rather 	than 	a 	class 	B 	misdemeanor. 	We 	affirm 	Horvath’s
obstruction of justice conviction, but we vacate her reckless
driving sentence and remand the case to the trial court to correct

State v. Horvath
20160789-CA 	2 	2018 UT App 165
the penalty classification and to amend her sentence accordingly
on that count.
BACKGROUND
The Car Chase
¶2 	Horvath’s convictions arise from a car chase involving
Horvath, 	another 	driver 	(Other 	Driver), 	and 	a 	detective
(Detective). In July 2014, West Valley City police officers were
surveilling a house near 4000 West and 3500 South. The police
had 	received 	information 	that 	a 	witness 	to 	a 	homicide
frequented this particular house. The officers were in plain-
clothes, and their vehicles were unmarked. One of the officers
(Officer) was parked in a lot facing the house, while Detective
was parked in a grocery store parking lot on 4000 West, facing
the street.
¶3 	Officer observed two people exit the house around the
same time, and he alerted Detective. The first person to exit,
Other Driver, entered a Pontiac. The second person, Horvath,
entered 	a 	Subaru. 	Both 	cars 	drove 	away 	from 	the 	house
“[w]ithin seconds” of each other, with Other Driver leading.
¶4 	Meanwhile, 	Officer 	and 	Detective 	confirmed 	Other
Driver’s identity through a records check and discovered that he
was on parole, that the car he was driving was registered to him
but uninsured, and that his license was invalid. Officer and
Detective determined Detective would initiate a traffic stop with
Other Driver and Officer would assist him once the stop was
made.
¶5 	From his parked location, Detective watched Other Driver
drive past him. Other Driver looked at Detective “quite heavily,”
making sustained eye contact with Detective while he drove by.
Detective 	observed 	Horvath 	pass 	by 	him 	“immediately”
afterward, at which point Detective “pulled out on to the street”
behind the two cars. Once Detective did so, both cars “began to

State v. Horvath
20160789-CA 	3 	2018 UT App 165
accelerate 	very, 	very 	rapidly” 	toward 	the 	intersection 	of
4000 West and 3500 South. Detective then saw both cars make
right turns onto 3500 South “against the red light with . . . no
signal.”
¶6 	Detective 	continued 	to 	follow 	Other 	Driver 	and
Horvath, observing them drive aggressively and apparently in
tandem with one another. They merged into the center passing
lane on 3500 South, using it “as a travel lane” to speed past
the 	traffic 	waiting 	for 	the 	light 	at 	the 	Bangerter 	Highway
intersection. Detective estimated that the cars were traveling at
approximately sixty miles per hour. Both cars then ran the
red light at Bangerter Highway, continuing east on 3500 South
toward 	the 	I-215 	interchange. 	Detective 	followed 	them,
working his way closer through the traffic.
¶7 	The center turn lane that both cars had been using as a
travel lane became a bus lane after Bangerter Highway, and 3500
South eastbound opened up to three travel lanes. Detective
observed both cars merge right, out of the center lane, and
into slower traffic. At that point, both Other Driver and Horvath
continued 	to 	drive 	“very 	aggressively,” 	cutting 	off 	other
vehicles, 	making 	abrupt 	lane 	changes 	without 	signaling,
and accelerating around other vehicles. To keep up with the
cars, 	Detective 	had 	to 	employ 	similarly 	aggressive 	driving
tactics.
¶8 	After 	several 	blocks, 	at 	approximately 	3300 	West,
Detective 	caught 	up 	to 	Other 	Driver, 	ending 	up 	“directly
behind” him within one car length. In doing so, Detective lost
sight 	of 	Horvath. 	Detective 	activated 	his 	lights 	and 	siren,
signaling Other Driver to pull over. Although Detective’s vehicle
was unmarked, Detective testified at trial that it was equipped
with a combination 	of white, red, and 	blue flashing lights
around all sides of the vehicle at various heights and locations,
and 	that 	the 	lights 	were 	“very, 	very 	visible” 	from 	every
direction. 	When 	activated, 	lights 	flashed 	in 	the 	headlights,
the brake lights, the grill, the fog lights, and on bars around
the front, sides, and back.

State v. Horvath
20160789-CA 	4 	2018 UT App 165
¶9 	Other Driver did not stop. Instead, he “continued to
accelerate” and drive aggressively, “cutting off cars, driving
around 	cars 	quickly, 	[and] 	not 	using 	[his] 	signal.” 	From
Detective’s perspective, Other Driver appeared to be “run[ning]
from [him].” Detective tried to keep up with Other Driver by
driving in the same aggressive manner over several blocks.
During this time, Detective did not observe Horvath’s location.
¶10 	As Other Driver and Detective approached 2900 West,
Other Driver merged into the innermost lane to pass a slowing
vehicle in the center lane, and Detective followed. After passing
the slowing vehicle, Other Driver merged back into the center
lane. Detective tried to follow Other Driver into that lane, but as
he began to merge, Detective saw “out of [his] peripheral vision”
Horvath accelerating toward his vehicle into the center lane at
the same time, “almost causing a collision.” Indeed, Detective
testified 	that 	he 	“had 	to 	jerk 	[his] 	wheel 	back 	into 	the
[innermost] lane to avoid a collision.” While she merged into the
center 	lane, 	Horvath 	kept 	her 	car 	parallel 	with 	Detective’s
vehicle, and Detective testified that Horvath “maintained direct
eye contact” with him for three to five seconds, that he did not
observe “any panic” or “shock on her face” as if she had merged
accidentally, and that she was looking at him with an aggressive
expression on her face, as though she was “mad at [him].”
¶11 	Thereafter, Horvath did not move out of Detective’s way,
but continued to stay in the center lane, blocking him from
pursuing Other Driver. Although Detective was eventually able
to work his way around other vehicles to continue the pursuit,
Other Driver had gained too much ground. When Detective saw
Other Driver merge onto I-215, he broke off pursuit.
The Trial
¶12 	The State charged Horvath with reckless driving and with
obstruction of justice with respect to Other Driver’s criminal
conduct of failing to respond to Detective’s signal to stop. The
case proceeded to a one-day jury trial. Detective was the State’s
primary witness, and he was the only witness who testified

State v. Horvath
20160789-CA 	5 	2018 UT App 165
regarding the details of the pursuit and Horvath’s obstruction.
Neither Horvath nor Other Driver testified.
¶13 	The State asserted at trial that Horvath had obstructed
Detective’s ability to apprehend Other Driver for failure to
respond to Detective’s signal. The seriousness of the offense
being obstructed—failure to respond—made a conviction under
this theory a felony.1
¶14 	During trial, defense counsel asked the court to instruct
the jury on a lesser included offense of misdemeanor obstruction
of justice predicated on reckless driving. Defense counsel argued
that a jury could find that “the only thing in [Horvath’s] realm of
knowledge” at the time she nearly merged into Detective’s
vehicle was that Other Driver had been driving recklessly, not
that he had failed to respond. Defense counsel asserted that the
evidence supported a finding that Horvath intended only to
impede Other Driver’s apprehension for reckless driving, which
would lower the severity of the obstruction crime from a felony
to a misdemeanor. The court denied defense counsel’s request.
¶15 	The jury convicted Horvath of both charges. Horvath
timely appeals.
ANALYSIS
¶16 	Horvath raises three issues on appeal. First, she argues
that the trial court erred when it declined to instruct the jury on a
1. The penalty classification of obstruction of justice largely
depends on the classification of the predicate criminal conduct.
See 	Utah 	Code 	Ann. 	§ 	76-8-306(3) 	(LexisNexis 	2017). 	Here,
obstruction of justice predicated on failure to respond is a third
degree felony. See id. § 76-8-306(3)(b)(i); id. § 41-6a-210(1)(b)(i)
(2014). Obstruction of justice predicated on reckless driving is a
class 	A 	misdemeanor. 	See 	id. 	§ 	76-8-306(3)(c) 	(2017); 	id.
§ 41-6a-528(2) (2014).

State v. Horvath
20160789-CA 	6 	2018 UT App 165
lesser included offense of misdemeanor obstruction of justice. In
particular, she argues that misdemeanor obstruction of justice
predicated on reckless driving is a lesser included offense of
felony obstruction of justice predicated on failure to respond.
She also contends that there is a rational basis in the evidence
from which the jury could have acquitted her of the greater
charge and convicted her of the lesser charge.
¶17 	Second, 	she 	argues 	that 	she 	received 	constitutionally
ineffective assistance of counsel when her defense counsel failed
to object to the instruction for failure to respond. She claims that
her 	counsel 	performed 	deficiently 	because 	the 	instruction
obviously omitted the required mens rea for certain terms in the
failure-to-respond instruction and that she was harmed thereby.
¶18 	Third, she argues that the court erred in entering and
sentencing her reckless driving conviction as a class A, rather
than a class B, misdemeanor. We address each issue below,
ultimately affirming her conviction for obstruction of justice
predicated 	on 	failure 	to 	respond. 	However, 	we 	vacate 	her
reckless driving sentence and remand the case for the limited
purpose of correcting the classification of and sentence on her
reckless driving conviction.
I. Lesser-Included-Offense Instruction
¶19 	Horvath 	was 	charged 	with 	obstruction 	of 	justice
predicated on Other Driver’s failure to respond to Detective’s
signal to stop, see Utah Code Ann. § 41-6a-210(1) (LexisNexis
2014),2 	which 	constitutes 	a 	third 	degree 	felony 	under 	the
2. As relevant here, Utah Code section 41-6a-210, the failure to
respond statute, provides,
(1)(a) An operator who receives a visual or audible
signal from a peace officer to bring the vehicle to a
stop may not: (i) operate the vehicle in willful or
wanton disregard of the signal so as to interfere
(continued…)

State v. Horvath
20160789-CA 	7 	2018 UT App 165
obstruction 	of 	justice 	statute, 	see 	id. 	§ 	76-8-306(3)(b)(i)
(2017). 	Horvath 	argues 	that 	she 	should 	be 	granted 	a 	new
trial 	because 	the 	trial 	court 	incorrectly 	refused 	her 	request
to instruct the jury on the lesser included offense of obstruction
of 	justice 	predicated 	on 	the 	underlying 	offense 	of 	Other
Driver’s 	reckless 	driving, 	see 	id. 	§ 	41-6a-528 	(2014),3
which would have constituted a class A misdemeanor under
the obstruction of justice statute, see id. § 76-8-306(3)(c) (2017).
¶20 	Horvath frames this error as a statutory construction
question; she asks us to construe the obstruction of justice statute
as requiring a defendant to know that the criminal conduct
on 	which 	the 	obstruction 	charge 	is 	predicated occurred.
The obstruction of justice statute provides in relevant part,
(…continued)
with or endanger the operation of any vehicle or
person; or (ii) attempt to flee or elude a peace officer
by vehicle or other means.
(b)(i) A person who violates Subsection (1)(a) is
guilty of a felony of the third degree.
Id. § 41-6a-210(1) (2014) (emphases added).
3. Utah Code section 41-6a-528, reckless driving, provides,
(1) A person is guilty of reckless driving who
operates 	a 	vehicle: 	(a) 	in 	willful 	or 	wanton
disregard for the safety of persons or property; or
(b) while committing three or more moving traffic
violations under Title 41, Chapter 6a, Traffic Code,
in 	a 	series 	of 	acts 	occurring 	within 	a 	single
continuous period of driving covering three miles
or less in total distance.
(2) A person who violates Subsection (1) is guilty of
a class B misdemeanor.

State v. Horvath
20160789-CA 	8 	2018 UT App 165
(1) 	An 	actor 	commits 	obstruction 	of 	justice 	if
the actor, with intent to hinder, delay, or prevent
the 	investigation, 	apprehension, 	prosecution,
conviction, or punishment of any person regarding
conduct that constitutes a criminal offense:
. . .
(b) prevents by force, intimidation, or deception,
any person from performing any act that might
aid in the discovery, apprehension, prosecution,
conviction, or punishment of any person[.]
Id. § 76-8-306(1)(b). Horvath argues that obstruction of justice is a
specific 	intent 	crime 	requiring 	a 	defendant 	to 	“act 	with
knowledge 	of 	the 	predicate 	conduct” 	charged—in 	this 	case,
failure to respond to a police officer’s signal. And if a defendant
is charged with felony obstruction, as she was here, Horvath
argues 	that 	“that 	conduct 	must 	be 	of 	a 	nature 	that[,] 	if
prosecuted, it would constitute a felony crime.” As applied to
her case, Horvath claims that she had to know that Other Driver
committed 	the 	felonious 	criminal 	conduct 	underlying 	her
obstruction charge—failure to respond to Detective’s signal.
¶21 	Employing similar reasoning, Horvath further argues that
she was entitled to the lesser-included-offense instruction for
obstruction based on reckless driving, asserting that there was a
rational basis in the evidence from which the jury could have
determined that she did not know that Other Driver had failed
to respond to Detective at the time she obstructed Detective’s
attempts to apprehend Other Driver, but that she did know that
Other Driver had committed reckless driving. See generally State
v. 	Powell, 	2007 	UT 	9, 	¶ 	24, 	154 	P.3d 	788 	(setting 	out 	the
“two-pronged test” for deciding when a defendant is entitled to
a lesser-included-offense instruction, which requires a defendant
to show “(1) that the charged offense and the lesser included
offense have overlapping statutory elements and (2) that the
evidence provides a rational basis for a verdict acquitting the

State v. Horvath
20160789-CA 	9 	2018 UT App 165
defendant of the offense charged and convicting him of the
included offense” (quotation simplified)).4
¶22 	However, 	even 	if 	Horvath’s 	interpretation 	of
the obstruction of justice statute is correct and there is a rational
basis in the evidence to support her requested instruction, to
obtain 	reversal 	she 	must 	still 	persuade 	us 	that 	the 	trial
court’s refusal to give the lesser-included-offense instruction
was harmful to her case. See Utah R. Crim. P. 30(a); State v.
Miranda, 2017 UT App 203, ¶ 44, 407 P.3d 1033 (explaining
that “for an error to require reversal, the likelihood of a different
outcome must be sufficiently high to undermine confidence in
the 	verdict” 	and 	that 	a 	defendant 	“bears 	the 	burden 	of
showing 	that 	he 	was 	harmed 	by 	the 	trial 	court’s 	error”
(quotation simplified)). In particular, Horvath must persuade
us that, had her requested lesser-included-offense instruction
been given, there is a “reasonable likelihood” that she would
have enjoyed “a more favorable trial result.” See State v. Whittle,
1999 UT 96, ¶ 17, 989 P.2d 52; see also State v. Reece, 2015 UT 45,
¶¶ 32–39, 349 P.3d 712 (explaining that failure to give a lesser-
included-offense 	instruction 	is 	subject 	to 	harmless 	error
analysis); State v. Fairchild, 2016 UT App 205, ¶ 17, 385 P.3d 696
(explaining that “a new trial is not merited” where the alleged
errors “are sufficiently inconsequential that we conclude there is
no reasonable likelihood that the error affected the outcome of
the 	proceedings” 	(quotation 	simplified)). 	We 	therefore
assume, without deciding, that the court erred in refusing to
give 	her 	requested 	instruction, 	and 	we 	proceed 	to
consider whether Horvath has demonstrated that the alleged
error was harmful.
4. The State concedes that the elements between obstruction of
justice predicated on failure to respond and obstruction of justice
predicated on reckless driving overlap for purposes of a lesser-
included-offense instruction. For purposes of our analysis, we
accept this concession but do so without reaching the merits.

State v. Horvath
20160789-CA 	10 	2018 UT App 165
¶23 	Horvath 	contends 	that 	the 	alleged 	error 	was
harmful because the evidence that she committed obstruction of
justice 	predicated 	on 	failure 	to 	respond 	was 	“far
from overwhelming.” (Quotation simplified.) She argues that,
because Detective lost sight of her for a few blocks around the
time he activated his lights and siren, there was no direct
evidence that she actually “witnessed [Other Driver] fleeing or
otherwise knew that he committed Failure to Respond.” In
contrast, she claims that the evidence “more readily” supported
that she knew Other Driver committed reckless driving at the
time of her obstructive act. She suggests that it is therefore
reasonably likely the jury “would have resolved” in her favor
the doubt about whether she knew Other Driver had failed to
respond to Detective.
¶24 	We disagree. Although there was a lack of direct evidence
about what Horvath might have observed during the time
Detective 	lost 	sight 	of 	her, 	the 	circumstances 	surrounding
Horvath’s obstructive act overwhelmingly suggest that, at the
time 	she 	obstructed 	Detective 	in 	his 	pursuit, 	she 	did 	so
knowing that Other Driver had failed to respond to Detective’s
signal. See Reece, 2015 UT 45, ¶¶ 40–43 (concluding that a
trial court’s failure to give a requested lesser-included-offense
instruction was harmless where the evidence overwhelmingly
established 	the 	defendant’s 	guilt 	for 	the 	charged,
instructed offense); cf. State v. Harris, 2015 UT App 282, ¶ 9, 363
P.3d 555 (stating that “it is a well-settled rule that circumstantial
evidence 	alone 	may 	be 	sufficient 	to 	establish 	the 	guilt 	of
the accused” (quotation simplified)); State v. Cristobal, 2014 UT
App 55, ¶ 4, 322 P.3d 1170 (stating that “where there is an
absence of direct evidence supporting each element of the crime
charged, a jury’s guilty verdict must be based upon reasonable
inferences,” and explaining that “a reasonable inference is a
conclusion that can be drawn from the evidence and is based on
logic and reasonable human experience,” where “the facts can
reasonably be interpreted to support a conclusion that one
possibility 	is 	more 	probable 	than 	another” 	(quotation
simplified)).

State v. Horvath
20160789-CA 	11 	2018 UT App 165
¶25 	To 	begin 	with, 	regardless 	of 	whether 	Detective
temporarily lost sight of her, Horvath’s obstructive act occurred
in the larger context of a reckless driving spree in what appeared
to be a concerted effort between Other Driver and Horvath to
evade and flee from Detective. For example, Detective testified
that Other Driver “stare[d]” at him, maintaining eye contact “the
entire time [Other Driver] passed by” him, and that almost
immediately upon Detective pulling out from his vantage point
to follow them, both vehicles accelerated “very, very rapidly”
away from him—Horvath following Other Driver. Detective
testified that he observed both vehicles drive “very closely” and
in tandem with each other, speeding, running red lights, passing
vehicles by using the turning lane, and weaving aggressively
around and cutting off vehicles without signaling when they
could no longer use the turn lane for travel. While Detective
testified that he thereafter lost sight of Horvath for several
blocks, there was no suggestion in the evidence that Horvath did
not stay nearby throughout Other Driver’s flight. Indeed, the
timing 	of 	Horvath’s 	obstructive 	act 	strongly 	suggests 	the
opposite—that, 	even 	if 	Detective 	could 	not 	see 	her, 	she
continued to follow Other Driver.
¶26 	In 	this 	regard, 	the 	more 	specific 	context 	in 	which
Horvath’s obstructive lane change occurred powerfully suggests
that she knew Other Driver failed to respond to Detective’s
signal to stop when she blocked Detective from merging. For
example, Detective testified that his vehicle, though unmarked,
was equipped with a siren as well as a plethora of flashing
lights—white, red, and blue—surrounding every side of the
vehicle in various heights and locations. At the time Horvath
merged to block Detective, his flashing lights and siren had been
activated for approximately half a mile.
¶27 	Detective also testified that he activated his lights and
siren only when he maneuvered his vehicle directly behind
Other Driver, one car length away; that, rather than slowing or
stopping, Other Driver immediately responded by accelerating
away from him and weaving aggressively around other vehicles

State v. Horvath
20160789-CA 	12 	2018 UT App 165
in an apparent attempt to flee; and that, to keep up with
Other Driver, Detective had to drive with similar aggression.
Although Detective may not have been able to see Horvath
during the time that he activated his signal and proceeded
through 	the 	several 	blocks 	of 	vigorous 	pursuit, 	Horvath
demonstrated 	a 	present 	ability 	to 	block 	Other 	Driver’s
apprehension. Indeed, the timing of Horvath’s obstructive lane
change was precise and almost prescient; she accelerated from
behind and merged into the center lane at the exact moment
Detective attempted to follow a fleeing Other Driver into the
center 	lane, 	boxing 	him 	in 	behind 	slowing 	vehicles 	in 	the
innermost lane. She also maintained her vehicle parallel to his
after merging, blocking Detective from maneuvering into the
center lane in pursuit of Other Driver. Through these actions,
Horvath showed a keen awareness of Detective’s pursuit of
Other Driver, one sufficient to anticipate Detective’s merge and
then deftly block it.
¶28 	In 	these 	circumstances, 	the 	presence 	of 	mind 	and
action that Horvath displayed cannot be reasonably explained
away by mistake or ignorance. Rather, the contextual evidence
strongly suggests that, before her act of obstruction, Horvath
kept 	up 	with 	Detective 	and 	Other 	Driver 	through 	the
several 	blocks 	of 	aggressive 	driving 	and 	thereby 	knew
Other 	Driver 	was 	attempting 	to 	flee 	from 	Detective, 	fully
mindful of Detective’s signal to stop. Indeed, it strains credulity
to suggest that, despite being available to block Detective at the
exact moment he attempted to merge and after a significant
stretch of aggressive driving, Horvath was nevertheless unaware
of Detective’s signal and Other Driver’s flight from it. In this
regard, Detective’s testimony about Horvath’s demeanor upon
obstructing his lane change fairly supports an inference that she
intended to block any further pursuit of Other Driver. Detective
testified that she “maintained direct eye contact” with him “for a
good few seconds” and that, rather than having an expression of
shock indicative of a mistake, she “look[ed] at [him] like she was
very, very aggressive or mad or was mad at [him].”

State v. Horvath
20160789-CA 	13 	2018 UT App 165
¶29 	In 	sum, 	the 	context 	and 	circumstances 	surrounding
Horvath’s 	obstructive 	act 	overwhelmingly 	suggest 	that 	her
ability to merge in the moment she did arose from purposeful
maneuvering on her part based on her awareness of Detective’s
signal to stop and Other Driver’s failure to respond to it. See
State v. Reece, 2015 UT 45, ¶¶ 40–43, 349 P.3d 712. Accordingly,
we are not persuaded that it is reasonably likely that, had the
jury been instructed on obstruction of justice predicated on
reckless 	driving, 	the 	jury 	would 	have 	acquitted 	her 	of
obstruction 	of 	justice 	predicated 	on 	failure 	to 	respond 	by
necessarily finding that Horvath did not know Other Driver
failed to respond to Detective’s signal. See id. Horvath has
therefore not shown that it was reasonably likely she would
have enjoyed a more favorable trial outcome had the court
instructed 	the 	jury 	on 	obstruction 	of 	justice 	predicated 	on
reckless driving. Thus, she is not entitled to reversal based on
any such error.
II. Mens Rea for Failure to Respond
¶30 	Horvath also argues that she received constitutionally
ineffective assistance of counsel when her counsel failed to object
to the failure-to-respond jury instruction. To prevail on a claim
for ineffective assistance, Horvath must demonstrate both that
her counsel’s performance was objectively deficient and that her
counsel’s performance was prejudicial to her defense—that is, “a
reasonable probability exists that but for the deficient conduct
defendant would have obtained a more favorable outcome at
trial.” 	See 	State 	v. 	Lantz, 	2018 	UT 	App 	70, 	¶ 	7 	(quotation
simplified); see also State v. Johnson, 2015 UT App 312, ¶ 15, 365
P.3d 730 (same). “[A] failure to prove either element defeats the
claim.” Johnson, 2015 UT App 312, ¶ 15 (quotation simplified).
We need not decide whether Horvath’s counsel’s performance
was deficient if she has not demonstrated she was prejudiced by
her counsel’s performance. See State v. Arguelles, 921 P.2d 439,
441 (Utah 1996); see also Strickland v. Washington, 466 U.S. 668, 697
(1984) (“If it is easier to dispose of an ineffectiveness claim on the

State v. Horvath
20160789-CA 	14 	2018 UT App 165
ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.”).
¶31 	Horvath contends that the failure-to-respond instruction
did not include the mens rea for two terms—“receives” and
“attempts”—as required under our supreme court’s decision in
State v. Bird, 2015 UT 7, 345 P.3d 1141. In Bird, the Utah Supreme
Court held that the trial court should have instructed the jury
that, to find the defendant guilty of failure to respond, it must
have found that the vehicle operator “knowingly received a visual
or 	audible 	signal 	from 	a 	police 	officer” 	and 	intentionally
attempted “to flee or elude a peace officer.” See id. ¶¶ 18–24, 26
(emphasis added) (quotation simplified). Horvath further claims
that 	the 	mens 	rea 	omissions 	were 	prejudicial 	because 	they
prevented the jury from deciding whether Horvath “acted with
the intent to prevent [Other Driver’s] apprehension for Failure to
Respond.” Horvath asserts that the omission made it possible for
the jury to convict her even if it found she believed that Other
Driver was “unaware of [Detective’s] signal to stop” and/or “the
purpose of [Other Driver’s] actions was not to flee or elude.” In
this regard, she contends that there was a rational basis in the
evidence from which the jury could conclude that Horvath
believed 	Other 	Driver 	was 	not 	intending 	to 	flee 	or 	elude
Detective and that she believed Other Driver was unaware of
Detective’s signal to stop. On this basis, she claims that, had the
jury been adequately instructed on the mens rea required for a
failure to respond charge, it is reasonably likely she would have
enjoyed a more favorable result.
¶32 	But 	even 	assuming 	Horvath 	is 	correct 	that 	the 	jury
instructions were erroneous and that her counsel should have
objected to them, Horvath has not demonstrated that she was
prejudiced by her counsel’s performance. To begin with, no
evidence was presented at trial suggesting that Other Driver did
not “knowingly” receive Detective’s signal or “intentionally”
attempt to flee or elude Detective. Rather, the evidence of the
circumstances surrounding Detective’s activation of his lights
and signal and Other Driver’s immediate response only affirm

State v. Horvath
20160789-CA 	15 	2018 UT App 165
that Other Driver knew he had received a signal to stop and, by
accelerating and maneuvering away, intentionally attempted to
elude it. Detective turned on his lights and siren when he was
directly behind Other Driver—a position from which it would
have 	been 	nearly 	impossible 	for 	Other 	Driver 	to 	miss 	the
signal—and the only testimony about Other Driver’s actions
afterward 	was 	that 	he 	accelerated 	away 	from 	Detective,
aggressively 	weaving 	around 	cars 	for 	several 	blocks 	in 	an
apparent attempt to flee as Detective tried to keep up with him.
And 	although 	Detective’s 	signal 	and 	siren 	remained 	on
throughout the remainder of the pursuit, Other Driver never
stopped in response to Detective’s signal. Instead, he continued
toward I-215 and was ultimately successful in his flight from
Detective.
¶33 	Further, 	as 	already 	discussed, 	supra 	¶¶ 	24–29, 	the
circumstances surrounding Horvath’s obstruction overwhelming
ly suggest that she knew Other Driver intended to flee from
Detective’s signal to stop. Had she not, there would have been
little purpose for her obstructive act—one which ultimately
permitted Other Driver to escape Detective. As a result, even
had the jury been correctly instructed under Bird, there is no
reasonable likelihood that the result would have been more
favorable to Horvath. Thus, her ineffective assistance of counsel
claim fails.5
5. Horvath also argues that reversal is appropriate under the
cumulative error doctrine. Under that doctrine, we “consider all
the identified errors, as well as any errors we assume may have
occurred” to determine whether, “even if the errors committed
during the course of [her] trial were harmless individually, they
were cumulatively harmful.” State v. Dunn, 850 P.2d 1201, 1229
(Utah 	1993). 	Horvath 	contends 	that 	both 	of 	the 	alleged
instructional errors “increased the likelihood” that the jurors
convicted 	her 	“even 	if 	they 	had 	doubts 	about 	the 	State’s
evidence.” We disagree. Given the circumstances surrounding
(continued…)

State v. Horvath
20160789-CA 	16 	2018 UT App 165
III. Reckless Driving Conviction
¶34 	Horvath challenges as erroneous and void the judgment
entered and the sentence imposed regarding her reckless driving
conviction. This is the kind of error we review for correctness,
affording no deference to the trial court’s decision. See State v.
Fairchild, 2016 UT App 205, ¶ 16, 385 P.3d 696.
¶35 	The jury returned a guilty verdict on Horvath’s reckless
driving charge, and the trial court entered the conviction as a
class 	A 	misdemeanor. 	For 	that 	conviction, 	the 	court 	then
sentenced 	her 	to 	a 	jail 	term 	of 	365 	days, 	with 	305 	days
suspended, and it also imposed a fine of $2,500. See generally
Utah Code Ann. § 76-3-204(1)–(2) (LexisNexis 2017) (providing
that a person convicted of a misdemeanor “may be sentenced to
imprisonment . . . for a term not exceeding one year” for a class
A misdemeanor, or “for a term not exceeding six months” for a
class B misdemeanor); id. § 76-3-301(1)(c)–(d) (providing that a
person “convicted of an offense may be sentenced to pay a fine,
not exceeding . . . $2,500 for a class A misdemeanor conviction”
or “$1,000 for a class B misdemeanor conviction”). Horvath
argues 	that 	her 	reckless 	driving 	conviction 	was 	incorrectly
entered 	as 	a 	class 	A 	misdemeanor 	instead 	of 	a 	class 	B
misdemeanor and that her sentence was therefore illegal. See
Utah R. Crim. P. 22(e)(1) (providing that a court “may correct a
sentence when the sentence imposed” 	was improper under
several enumerated circumstances, including when the sentence
“exceeds 	the 	statutorily 	authorized 	maximums”); 	State 	v.
Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008 (explaining that an
(…continued)
Horvath’s obstruction of justice charge, we conclude that the
assumed errors do not undermine our confidence that Horvath
received a fair trial. See id.; see also State v. King, 2010 UT App
396, ¶¶ 35, 38, 248 P.3d 984 (noting that we are less likely to
reverse under cumulative error when there is overwhelming
evidence of a defendant’s guilt).

State v. Horvath
20160789-CA 	17 	2018 UT App 165
appellate court may “vacate the illegal sentence without first
remanding the case to the trial court” (quotation simplified)).
The State concedes this issue on appeal.
¶36 	Horvath’s claim of error on this point and the State’s
concession are clearly supported by the plain language of the
reckless driving statute. That section states that reckless driving
is a class B, not a class A, misdemeanor. Utah Code Ann.
§ 41-6a-528(2) (LexisNexis 2014). The trial court therefore erred
when 	it 	entered 	judgment 	and 	sentenced 	Horvath 	on 	this
conviction as a class A misdemeanor rather than a class B
misdemeanor. Thus, we vacate the judgment and sentence on
this conviction, see Candedo, 2010 UT 32, ¶ 9, and we instruct the
trial court on remand to enter judgment on Horvath’s reckless
driving conviction as a class B misdemeanor and amend its
sentence accordingly.
CONCLUSION
¶37 	We affirm Horvath’s obstruction of justice conviction.
However, we remand for the limited purpose of correcting the
offense classification of Horvath’s reckless driving conviction
and amending her sentence.