State v. Seach

2021 UT App 22
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
NICHOLAS P ATRICK SEACH,
Appellant.
Opinion
No. 20190457-CA
Filed March 4, 2021
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 181400824
Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
J UDGE R YAN M. HARRIS authored this Opinion, in which
J UDGES MICHELE M. C HRISTIANSEN FORSTER and
D AVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 	Nicholas 	Patrick 	Seach 	appeals 	three 	of 	his 	four
convictions 	for 	aggravated 	assault, 	which 	stem 	from 	his
interactions with a family of four at a public park. On appeal,
Seach raises a claim of ineffective assistance of counsel, asserting
that his trial attorney performed deficiently by not lodging an
objection to certain aspects of the jury instructions, and that this
prejudiced him with respect to three of the charges. We find
Seach’s 	arguments 	unpersuasive, 	and 	therefore 	affirm 	his
convictions.

State v. Seach
20190457-CA 	2 	2021 UT App 22
BACKGROUND1
¶2 	One day, a family (consisting of Father, Mother, a teenage
Son, and a teenage Daughter) drove their pickup truck to a
public park to recreate. Mother and Daughter went on a run, and
Son and Father stayed near the truck while Father tinkered with
and rode his bicycle. Some time later, Father saw a man—who
turned 	out 	to 	be 	Seach—walking 	“back 	and 	forth” 	on 	the
sidewalk. When Father approached, Seach began cursing at
Father. Father did not respond to Seach’s exclamations, and
decided it might be best to leave the park to avoid further
interactions with Seach. Father then went to find Mother and
Daughter, and Son remained inside the truck. While Father was
gone, Son watched from inside as Seach spit on the truck’s door
handles. When Father returned to the truck with Mother and
Daughter, he noticed the spit on the door handles, and at that
point, Mother called the police. Seach was still close by and,
while Mother was on the phone, Seach approached the family
and told them that they “needed to go away” and “leave.”
Mother responded by telling Seach that she was phoning the
police and that the family did not “want to have any problems
with [him] or with anybody.”
¶3 	As Mother was conversing with Seach, Son became angry
because he perceived that Seach “was yelling at [his] mom,” so
he “got out of the truck . . . and[] started cussing” at Seach.
Mother testified that, at that point, Seach threatened to kill the
family, and looked like “he wanted to hit” Son. After a while,
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (quotation simplified).

State v. Seach
20190457-CA 	3 	2021 UT App 22
Seach walked over to his car. “By then [the family] could hear
the police” sirens and thought Seach would leave.
¶4 	Instead, Seach returned to the area near the family’s truck,
walking with “one hand in front of him and one hand behind”
his back. Father testified that Seach “had a gun” in his front
hand 	and 	“had 	a 	knife” 	in 	his 	back 	hand. 	The 	family,
meanwhile, had no weapons with them; indeed, Father testified
that he “never use[s] weapons” and does not “like them.” As
Seach approached the family, he continued to state “that he was
going to kill” them. Mother testified that Seach “had his gun in
his hand,” and that he “went like this towards all of us,” making
a gesture in which she “pointed her hand back and forth across
her body.” Mother then “rushed [Son and Daughter] into the
back 	of 	the 	truck” 	from 	the 	passenger 	side, 	while 	Father
attempted to get into the driver’s seat. Seach then walked over to
the driver’s side of the truck, held the gun to “the back part of
[Father’s] head,” and “stopped [Father] from closing the door.”
¶5 	By this point, Mother and Daughter were “crying and
screaming,” Son “panicked,” and all three of them became
“hysterical.” Eventually, Father was able to close the truck door,
at which point Seach started shooting at the truck. Seach’s gun—
although it appeared to be a real handgun—turned out to be a
pellet gun, and Seach’s shots hit but therefore did not penetrate
the truck’s windows. After firing the gun multiple times, Seach
“took off” in his car.
¶6 	At least two officers were dispatched to the park in
response 	to 	Mother’s 	initial 	911 	call, 	and 	they 	were 	given
Mother’s description of Seach’s vehicle. The primary responding
officer 	(Officer) 	saw 	a 	car 	matching 	the 	description, 	and
“initiated a traffic stop on that vehicle.” Seach was in the car.
Officer 	and 	a 	second 	officer 	“performed 	a 	high-risk 	stop”
because the dispatcher had “relayed . . . that a firearm had been
brandished and that the caller had been threatened with that

State v. Seach
20190457-CA 	4 	2021 UT App 22
firearm.” After initiating the stop, Officer placed Seach under
arrest without incident, and gave him a chance to explain what
had “happened at the park.” Seach, who is white, willingly
responded that he “felt threatened by” the family members, who
are Latino, and offered his perception that “there were Mexican
cartel members at the park.” Seach told Officer that he thought
the 	family 	had 	weapons, 	but 	upon 	further 	questioning 	he
admitted that he had “not actually see[n] any weapons.” Seach
also disclosed “that he did not have a gun on him but that there
was a toy gun in his car.” Officer then conducted a search of
Seach’s vehicle and recovered a realistic-looking, revolver-style
“air soft” or “pellet gun” that was “loaded.” Officer did not
recover a knife from the car.
¶7 	Officers 	also 	met 	the 	family 	at 	the 	park, 	and 	took
statements from them about what had just occurred. Officer
examined the family’s truck and observed two “pockmarks in
the windshield” of the vehicle that were “consistent with” marks
that 	could 	have 	been 	made 	by 	a 	pellet 	gun. 	Officer 	“also
observed saliva on the door” of the truck.
¶8 	The State charged Seach with four counts of third-degree-
felony aggravated assault, one for each member of the family.
Seach pleaded not guilty to all counts, and the case proceeded to
a two-day jury trial. The State called Father, Mother, Son, and
Officer as witnesses, each of whom testified about the events as
outlined above.
¶9 	After the State rested its case, Seach testified in his own
defense, 	claiming 	that 	he 	felt 	“uncomfortable” 	after 	seeing
Father “riding [a] little pedal bike” around the parking lot and
“directly behind [Seach’s] car more than once.” Seach stated that
he “almost felt like [he] was being stalked in a way,” and that
Father’s actions made him feel like he was “getting creeped on.”
Seach testified that he became nervous and thought he “possibly
heard my name being called,” so he asked Father “if he knew

State v. Seach
20190457-CA 	5 	2021 UT App 22
who I was” and told Father to “back off bitch and back off my
car.” Seach admitted to spitting on the family’s truck, claiming
that he did so because Father was “spotting me or whatever his
business was in the park.” After telling Father to back off, Seach
claimed that Mother then yelled at him and Son approached him
as if he were going to “windmill [Seach] with his fists,” and
verbally threatened to “kill [Seach] with a razor blade.” Seach
admitted to “agging it on” by “get[ting] into a fighting stance”
and stated that, at that time, he held a “cooking utensil” in his
hand. Seach testified that, eventually, he retreated to his car to
grab his pellet gun after he saw the family “making a move.” He
claimed to have thought that his “life was in danger” because
the family might have been going into the truck “to get a
weapon to come at” him. When asked why he thought this,
Seach stated that his fear “was based on the fact that there [was]
. . . 	an 	older 	Hispanic 	on 	a 	pedal 	bike,” 	which 	he 	found
“suspicious,” and was based on his “perception” that Father
might be “a construction worker” and thus carry tools in his
truck that could be used as weapons. Seach then admitted to
“popping off rounds onto the windshield” of the truck, and to
pointing the gun at Father, but denied pointing the gun at
anyone else and denied touching Father directly with the gun.
He 	claimed 	that 	he 	had 	acted 	at 	all 	times 	in 	self-defense,
intending merely to deploy a “scare tactic” against the family,
and 	that 	he 	had 	no 	“intention 	to 	hurt 	them.” 	On 	cross-
examination, Seach admitted that his “intention [was] to frighten
them” with his “realistic looking pistol.” On recross and redirect,
Seach further clarified that he “wanted them to think that [he]
could” 	kill 	them 	to 	discourage 	the 	family 	members 	from
retrieving any weapons that they might have in their truck.
¶10 	After both sides rested, the court instructed the jury.
Because the sole issue presented on appeal has to do with certain
of the jury instructions, we set forth those instructions here in
some detail, and note that none of the relevant instructions drew

State v. Seach
20190457-CA 	6 	2021 UT App 22
an objection from Seach at trial. Instruction 26 stated, in relevant
part, as follows:
A person cannot be found guilty of a criminal
offense unless that person’s conduct is prohibited
by law, AND at the time the conduct occurred, the
defendant demonstrated a particular mental state
specified by law.
. . . .
As 	to 	the 	“mental 	state” 	requirement, 	the
prosecution 	must 	prove 	that 	at 	the 	time 	the
defendant acted (or failed to act), he did so with a
particular mental state. For each offense, the law
defines what kind of mental state the defendant
had to have, if any. For some crimes the defendant
must have acted “intentionally” or “knowingly.”
For other crimes, it is enough that the defendant
acted “recklessly,” with “criminal negligence,” or
with some other specified mental state.
Later I will instruct you on the specific conduct and
mental 	state 	that 	the 	prosecution 	must 	prove
before the defendant can be found guilty of the
crime(s) charged.
¶11 	Instruction 28 informed the jury that “[e]very offense not
involving strict liability shall require a culpable mental state, and
when the definition of the offense does not specify a culpable
mental state and the offense does not involve strict liability,
intent, 	knowledge, 	or 	recklessness 	shall 	suffice 	to 	establish
criminal responsibility.” Instructions 29 through 34 provided
definitions of “intentionally,” “knowingly,” and “recklessly.”
¶12 	The 	jury 	instructions 	also 	included 	four 	separate
“elements” instructions—Instructions 39 through 42—one for

State v. Seach
20190457-CA 	7 	2021 UT App 22
each 	charged 	count 	of 	aggravated 	assault. 	These 	four
instructions were identical except for the name of the alleged
victim; we set out Instruction 39 here in its entirety:
Before you can convict the defendant of aggravated
assault as charged in count 1 of the information,
you 	must 	find 	from 	the 	evidence, 	beyond 	a
reasonable doubt, each of the following elements:
1. 	On or about February 17, 2018;
2. 	In Salt Lake County;
3. 	The 	defendant, 	NICHOLAS 	PATRICK
SEACH, did:
a. 	Attempt with unlawful force or violence
to do bodily injury to [Father]; or
b. 	Threaten, 	accompanied 	by 	a 	show 	of
immediate force or violence, to do bodily
injury to [Father]; or
c. 	Commit an act, with unlawful force or
violence, 	that 	caused 	bodily 	injury 	to
[Father] 	or 	created 	a 	substantial 	risk 	of
bodily injury to [Father];
4. 	And 	in 	so 	doing 	the 	defendant 	used 	a
dangerous weapon.
If, after careful consideration of all the evidence in
this case, you are convinced, beyond a reasonable
doubt, that the State has proven each one of the
foregoing 	elements, 	then 	you 	must 	find 	the
defendant 	GUILTY. 	However, 	if 	you 	are 	not
convinced beyond a reasonable doubt of any one
or more of the foregoing elements, then you must
find the defendant NOT GUILTY.

State v. Seach
20190457-CA 	8 	2021 UT App 22
¶13 	After hearing the evidence and deliberating, the jury
returned a verdict convicting Seach on all four counts.
ISSUE AND STANDARD OF REVIEW
¶14 	Seach now appeals three of his four convictions: the ones
for which the jury determined that he assaulted Mother, Son,
and Daughter.2 In so doing, Seach raises a single issue for our
consideration: whether his trial counsel was constitutionally
ineffective for failing to object to certain portions of the jury
instructions regarding the required mental state for aggravated
assault. “A claim of ineffective assistance of counsel raised for
the first time on appeal presents a question of law, which we
consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d
425 (quotation simplified).
ANALYSIS
¶15 	A defendant seeking to demonstrate that his attorney
rendered ineffective assistance must make a two-part showing:
that (1) the attorney’s performance was deficient, and (2) this
“deficient performance prejudiced the defense” by giving rise to
“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, 687, 694 (1984). The first
prong of this analysis involves an assessment of the objective
reasonableness of counsel’s actions, see State v. Scott, 2020 UT 13,
2. Seach does not appeal his conviction for aggravated assault
against Father, acknowledging in his brief that, even if counsel
had performed deficiently by failing to object to certain jury
instructions, any shortcomings in counsel’s performance did not
prejudice him with regard to the count involving Father.

State v. Seach
20190457-CA 	9 	2021 UT App 22
¶ 35, 462 P.3d 350, and “requires the defendant to show ‘that
counsel made errors so serious that counsel was not functioning
as 	the 	counsel 	guaranteed 	the 	defendant 	by 	the 	Sixth
Amendment,’” State v. Grunwald, 2020 UT 40, ¶ 19, 478 P.3d 1
(quoting Strickland, 466 U.S. at 687). “And the second prong
requires the defendant to show that ‘counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). With
regard to this second prong, the crucial question is whether “the
outcome of [the defendant’s] case would have been different
absent counsel’s error.” Scott, 2020 UT 13, ¶ 43.
¶16 	But in cases where a defendant claims that the attorney
rendered 	ineffective 	assistance 	by 	failing 	to 	object 	to 	jury
instructions, there is a threshold question whose answer will
inform the two-step Strickland analysis: in such cases “we must
first consider whether [the jury] instructions [at issue] were
legally correct.” State v. Liti, 2015 UT App 186, ¶ 12, 355 P.3d
1078. This is because “[f]ailure to object to jury instructions that
correctly state the law is not deficient performance,” State v.
Vigil, 2019 UT App 131, ¶ 11, 448 P.3d 738 (quotation simplified),
and cannot, by definition, lead to prejudice, see State v. Von
Niederhausern, 	2018 	UT 	App 	149, 	¶¶ 	29–30, 	427 	P.3d 	1277
(holding that, “where [a] [d]efendant fails to identify, let alone
argue, what would have been the legally correct version of the
instruction,” the “[d]efendant also fails to show prejudice since
an objection to the jury instructions would have surely been
unsuccessful”). Accordingly, we first assess the correctness of
the jury instructions Seach challenges.
A
¶17 	When 	examining 	jury 	instructions 	to 	assess 	their
correctness, we review them “in their entirety to determine
whether the instructions, taken as a whole, fairly instructed the
jury about the applicable law.” Liti, 2015 UT App 186, ¶ 12. The

State v. Seach
20190457-CA 	10 	2021 UT App 22
logical place to begin our analysis is with the statute defining the
offense with which Seach was charged. See id. ¶ 13.
¶18 	Aggravated assault is statutorily defined as:
(i) 	an 	attempt, 	with 	unlawful 	force 	or
violence, to do bodily injury to another;
(ii) 	a threat, accompanied by a show of
immediate force or violence, to do bodily
injury to another; or
(iii) an act, committed with unlawful force
or 	violence, 	that 	causes 	bodily 	injury 	to
another 	or 	creates 	a 	substantial 	risk 	of
bodily injury to another; and
(b) that includes the use of:
(i) a dangerous weapon . . . .
Utah Code Ann. § 76-5-103(1) (LexisNexis 2017). Although the
aggravated assault statute does not specify a particular mental
state, 	or 	mens 	rea,3 that 	the 	State 	must prove 	to 	establish
criminal liability, see id., a separate statute provides that, where
the offense in question “does not involve strict liability,” and
does not otherwise specify the level of mens rea required, then
proving the defendant’s “intent, knowledge, or recklessness
shall suffice to establish criminal responsibility,” id. § 76-2-102.
Aggravated assault is not a strict liability offense. See id. § 76-5-
3. “Mens rea is ‘[t]he state of mind that the prosecution, to secure
a conviction, must prove that a defendant had when committing
a crime,’ and ‘is the second of two essential elements of every
crime at common law, the other being the actus reus.’” State v.
Gallegos, 2020 UT App 162, ¶ 32 n.4 (quoting Mens Rea, Black’s
Law Dictionary (11th ed. 2019)), petition for cert. filed, Feb. 10,
2021 (No. 20210092); see also infra note 5.

State v. Seach
20190457-CA 	11 	2021 UT App 22
103(1). Therefore, because the aggravated assault statute does
not otherwise specify the required mens rea, the State was
required to prove that Seach acted intentionally, knowingly, or
recklessly. See id. §§ 76-2-102, -5-103(1).
¶19 	Seach correctly observes that a legally accurate set of jury
instructions 	in 	a 	criminal 	case 	will 	include 	an 	instruction
regarding the level of mens rea that the State must prove in
order to secure a conviction. See State v. Bird, 2015 UT 7, ¶ 14, 345
P.3d 	1141 	(stating 	that, 	as 	a 	“general 	rule,” 	an 	“accurate
instruction upon the basic elements of an offense is essential,”
and that “mens rea . . . is an essential element of an offense”
(quotation simplified)). Seach asserts that the set of instructions
given in this case lacked clear direction regarding the applicable
mens rea. And after reviewing the instructions, we think Seach
makes a good point.
¶20 	The elements instructions given in this case (Instructions
39–42) do not contain any guidance as to the applicable mens
rea.4 The State acknowledges this, but correctly points out in
response 	that 	mens 	rea 	guidance 	need 	not 	necessarily 	be
provided in the elements instruction (although it often is), as
long as it is provided elsewhere in the entire set of instructions.
4. We note (as does Seach) that the suggested Model Utah
Jury 	Instruction 	setting 	forth 	the 	elements 	of 	aggravated
assault does include guidance regarding the applicable mens rea,
and 	provides 	that 	a 	defendant 	must 	have 	“intentionally,
knowingly, 	or 	recklessly” 	committed 	the 	crime. 	See
Model Utah Jury Instructions 2d, CR1320 (Adv. Committee
on 	the 	Model 	Utah 	Criminal 	Jury 	Instructions 	2019),
https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho
wRule&id=41#1320 [https://perma.cc/ZVP8-NAY7]. The elements
instructions given in this case, by contrast, did not include those
four words.

State v. Seach
20190457-CA 	12 	2021 UT App 22
See State v. Beckering, 2015 UT App 53, ¶ 23, 346 P.3d 672 (stating
that “we look at the jury instructions in their entirety and will
affirm when the instructions taken as a whole fairly instruct the
jury on the law applicable to the case” (quotation simplified)); see
also State v. Plexico, 2016 UT App 118, ¶ 31, 376 P.3d 1080
(concluding that a set of jury instructions was not erroneous
“[e]ven though the elements instruction did not articulate the
culpable mental state,” because the proper mens rea guidance
could be found in a separate instruction). The State asserts that,
in this case, sufficient mens rea guidance was provided in
Instructions 	26 	and 	28–34. 	We 	acknowledge 	the 	State’s
argument, and can even imagine that law-trained readers—and
perhaps 	even 	some 	lay 	readers—of 	the 	complete 	set 	of
instructions might be able to infer that the applicable mens rea in
this case is “intentionally, knowingly, or recklessly.” But in our
view, this set of instructions was not quite as clear as it should
have been about the applicable level of mens rea.
¶21 	Instructions 26 and 28 contain some discussion of mens
rea, but they do not completely solve the problem, because those
instructions never expressly state that aggravated assault is not a
strict 	liability 	offense, 	or 	that 	“intentionally, 	knowingly, 	or
recklessly” is the required mens rea for aggravated assault.
Indeed, Instruction 26 tells the jury that it will “[l]ater” be
instructed “on the specific conduct and mental state that the
prosecution must prove before the defendant can be found
guilty,” but express instructions on that point never came. To be
sure, the jury was immediately thereafter given five instructions
(Nos. 	29–34) 	that 	define 	“intentionally,” 	“knowingly,” 	and
“recklessly,” and the jury was never given any instructions
defining “strict liability” or “criminal negligence” (the other two
potentially 	applicable 	levels 	of 	mens 	rea); 	from 	these
instructions, and from the fact that the only levels of mens rea
actually defined in the instructions are intent, knowledge, and
recklessness, one might be able to infer that those levels are the

State v. Seach
20190457-CA 	13 	2021 UT App 22
only ones applicable. But at most, this is an inference that might
be 	drawn 	by 	a 	keen-eyed 	reader. 	The 	instructions 	do 	not
expressly state as much, and never actually tell the jury that
assault is not a strict liability offense, nor do they ever actually
instruct the jury that, to find Seach guilty, it must find beyond a
reasonable doubt that he acted intentionally, knowingly, or
recklessly. And we consider this at least potentially problematic.
See Bird, 2015 UT 7, ¶ 16 (stating that an instruction is “[o]f
particular concern” when it “leaves the erroneous impression
that a crime is one of strict liability, when it in fact contains a
mens rea element”).
¶22 	Accordingly, 	we 	agree 	with 	Seach 	that 	the 	set 	of
instructions given to the jury in this case was infirm, and not
completely accurate.
B
¶23 	After finding infirmity in the jury instructions, we next
proceed 	to 	assess 	Seach’s 	claim 	of 	ineffective 	assistance 	of
counsel under the two-prong Strickland framework. See State v.
Liti, 2015 UT App 186, ¶¶ 12, 18, 355 P.3d 1078. In order to
prevail, Seach must make a showing sufficient to satisfy both
parts of the test. See State v. Delgado, 2020 UT App 121, ¶ 25, 473
P.3d 	234. 	Therefore, 	“[i]t 	is 	unnecessary 	to 	address 	both
components of the inquiry if we determine that [Seach] has
made 	an 	insufficient 	showing 	on 	one.” 	See 	id. 	(quotation
simplified). In the discussion that follows, we largely confine our
analysis to the prejudice prong. We do so because Seach has not
carried his burden of demonstrating that, even if his attorney
had timely objected and the trial court had given the jury a set of
instructions expressly stating that Seach must have acted with
intent, 	knowledge, 	or 	recklessness, 	it 	would 	have 	made 	a
difference under the facts of this case. See State v. Roberts, 2019
UT App 9, ¶ 23, 438 P.3d 885 (“In practice, we often skip the

State v. Seach
20190457-CA 	14 	2021 UT App 22
question of deficient performance when a defendant cannot
show prejudice.”).
¶24 	“When 	applying 	Strickland’s 	prejudice 	analysis 	in 	the
context 	of 	erroneous 	jury 	instructions, 	we 	must 	determine
whether there is a reasonable probability the jury would not
have convicted the defendant if the jury instructions had been
correct.” State v. Grunwald, 2020 UT 40, ¶ 22, 478 P.3d 1. “A
reasonable probability is a probability sufficient to undermine
our confidence in the outcome.” Id. (quotation simplified). This
determination hinges on the following questions: “(1) did the
error in the jury instructions create the possibility that the jury
convicted the defendant based on factual findings that would
not have led to conviction had the instructions been correct? and,
(2) if so, is there a reasonable probability that at least one juror
based its verdict on those factual findings?” Id.
¶25 	We turn, then, to the question of whether the issues
with the jury instructions, on the facts of this case, created a
“reasonable 	probability” 	that 	at 	least 	one 	juror 	voted 	to
convict Seach “based on factual findings that would not have
led to conviction had the instructions been correct.” See id.
As noted above, to convict Seach of all four counts, the State
had to prove beyond a reasonable doubt that Seach committed
aggravated assault against each family member, and that he
did so intentionally, knowingly, or recklessly. See Utah Code
Ann. 	§§ 76-2-102, 	-5-103(1). 	While 	it 	might 	be 	possible, 	in
some cases, for a defendant to be wrongfully convicted of
aggravated 	assault 	because 	of 	the 	precise 	lack-of-mens-rea-
instruction problem found in this set of jury instructions, we do
not think such a result was reasonably probable on the facts of
this case.
¶26 	Here, 	Seach 	never 	claimed 	that 	his 	actions 	were
not purposeful, or that his actions were accidental or merely
negligent; 	instead, 	his 	entire 	defense 	to 	the 	charges 	was

State v. Seach
20190457-CA 	15 	2021 UT App 22
built around a claim that he acted purposefully, out of self-
defense, 	with 	the 	stated 	intention 	to 	frighten 	members 	of
the family, even going so far as to say that he “wanted them
to think that [he] could” kill them. He readily acknowledged
retrieving a gun from his car, and admitted not only that
he intentionally pointed the gun at members of the family,
but also that he intentionally fired the gun in the direction of
the family’s truck. Neither party presented evidence to the
jury that the shooting was an accident, or that Seach’s actions
were 	merely 	the 	result 	of 	negligence. 	And 	no 	argument
was made, from either side, that the jury should convict Seach
on strict liability grounds. This case is therefore unlike the
facts 	of 	State 	v. 	Liti 	because, 	although 	counsel 	in 	that
case 	centered 	the 	defense 	around 	a 	claim 	of 	self-defense,
the defendant’s “own testimony was that the shooting was an
accident.” 	See 	2015 	UT 	App 	186, 	¶ 	20, 	355 	P.3d 	1078. 	In
a 	situation 	like 	that, 	where 	evidence 	was 	presented
indicating 	that 	the 	defendant’s 	actions 	could 	have
been 	accidental, 	omitting 	from 	the 	jury 	instructions 	the
requirement that the defendant must act with intent, knowledge,
or 	recklessness 	might 	have 	mattered. 	See 	id. 	¶ 	23. 	But
here, where no such evidence or argument was presented,
even by Seach, there exists no possibility—let alone a reasonable
probability—that the jury mistakenly convicted Seach under
an 	erroneous 	understanding 	that 	aggravated 	assault 	can
occur through negligent behavior or under a strict liability
theory.
¶27 	Seach 	resists 	this 	conclusion 	by 	attempting 	to 	parse
out 	his 	actions 	with 	respect 	to 	each 	family 	member, 	and
by asserting that he “did not act with the necessary intent
with 	respect 	to 	Mother 	and 	Daughter” 	at 	all, 	and 	that
any 	threatening 	actions 	he 	took 	toward 	Son 	“occurred
before Seach retreated to his car and retrieved the pellet gun.”
But even this argument contains no contention that any of

State v. Seach
20190457-CA 	16 	2021 UT App 22
Seach’s 	actions, 	at 	any 	point, 	were 	merely 	accidental 	or
negligent.
¶28 	Indeed, Seach’s argument applies more to actus reus5 than
it does to mens rea. The question Seach posits here is whether, as
a factual matter, he pointed the gun at one family member or at
all of them, not whether his action in waving the gun—at
whomever he waved it—was accidental or purposeful. The jury
convicted Seach of assaulting all four family members, and
Seach 	does 	not 	challenge 	the 	jury’s 	finding—through 	an
insufficiency-of-the-evidence argument or other means—that he
committed this conduct. After all, Mother testified that Seach
pointed the gun at all of them. So the relevant question, as
concerns this appeal, is not whether Seach committed acts that
could constitute assault against all four family members—the
jury found that he did, and that actus reus finding is here
unchallenged—but, rather, what Seach’s state of mind was when
he committed those acts. And there was no dispute about that,
because Seach told the jury what his state of mind was when he
took those actions: it was to intentionally frighten members of
the 	family.6 	Under 	these 	facts, 	Seach’s 	argument 	that 	he
5. Actus reus is “[t]he wrongful deed that comprises the physical
components of a crime and that generally must be coupled with
mens rea to establish criminal liability; a forbidden act.” Actus
Reus, Black’s Law Dictionary (11th ed. 2019); accord State v.
Tillman, 750 P.2d 546, 565 (Utah 1987) (noting that “actus reus” is
synonymous with the “conduct proscribed in the definition of
the offense”).
6. Seach’s testimony established that he was acting intentionally
toward Father and at least one other family member; he testified
that it was his “intention to frighten them.” (Emphasis added.)
One plausible reading of the record, espoused by the State, is
(continued…)

State v. Seach
20190457-CA 	17 	2021 UT App 22
purposefully waved the gun and shot the gun at Father, but did
not wave it or point it at anybody else, misses the mark.
¶29 	The circumstances presented here leave no possibility, let
alone a “reasonable probability,” see Grunwald, 2020 UT 40, ¶ 22,
that 	any 	juror 	voted 	to 	convict 	Seach 	based 	on 	a
misunderstanding that he could be convicted under a strict
liability theory or for acting negligently. Accordingly, Seach has
not carried his burden of demonstrating that he was prejudiced
by his trial counsel’s failure to object to the jury instructions.
Thus, we end our analysis here, without conclusively analyzing
the deficient performance element.7
(…continued)
that Seach—by using the word “them”—was referring to the
entire family. Seach asserts that this reference was only to Father
and Son, but we have our doubts about the plausibility of
Seach’s 	interpretation. 	This 	interpretive 	debate 	is 	ultimately
academic, however, because Seach’s actions toward Mother and
Daughter were at least reckless. Purposefully waving, and then
firing, a gun in the general direction of four persons located
together, even if the threat is only intended to be directed to one
or two of those persons, constitutes at least reckless behavior as
concerns the others. See, e.g., State Farm Fire & Cas. Co. v. Torio,
673 N.Y.S.2d 696, 697 (N.Y. App. Div. 1998) (holding that a
person’s “criminal act of firing 18 shots in the direction of a
group of people, inflicting five wounds, cannot be considered an
accident,” even if the gun was pointed “down low” with no
“inten[t] to actually hit anyone with gunfire”).
7. With regard to deficient performance, the central question is
whether counsel’s actions “fell below an objective standard of
reasonableness.” State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350
(quotation simplified). It seems to us that, given the state of the
(continued…)

State v. Seach
20190457-CA 	18 	2021 UT App 22
CONCLUSION
¶30 	The 	instructions 	given 	to 	the 	jury 	in 	this 	case 	were
incomplete with regard to mens rea. But because Seach admitted
at trial that his actions were purposeful, and made no argument
that they were accidental, there is no possibility that he was
improperly convicted by jurors operating under a mistaken
belief that he could be convicted of aggravated assault for mere
negligent 	behavior 	or 	under 	a 	strict 	liability 	theory.
Consequently, any failure on the part of Seach’s trial counsel to
object to the jury instructions did not prejudice Seach because
there is not a reasonable probability that it would have made a
difference to the outcome of the trial. For these reasons, Seach’s
ineffective assistance claim fails, and we affirm his convictions.
(…continued)
evidence presented to the jury in this case, a reasonable attorney
might have declined to spend time worrying about the jury
instructions’ lack of precision regarding mens rea. See State v.
Ray, 2020 UT 	12, ¶ 	32, 469 P.3d 871 (stating that defense
attorneys are entitled to “pick [their] battles” and that appellate
courts must “view a decision to not object in context and
determine 	whether 	correcting 	the 	error 	was 	sufficiently
important under the circumstances that failure to do so was
objectively unreasonable”). Thus, for the same reasons Seach’s
prejudice argument fails, his deficient performance argument
would have faced tough sledding.