State v. Medina

2025 UT App 99

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SERGIO BRISENO MEDINA,
Appellant.

Opinion
No. 20220789-CA
Filed July 3, 2025

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 161903223

Emily Adams, Freyja Johnson, and Rachel Phillips
Ainscough, Attorneys for Appellant
Derek E. Brown and Daniel W. Boyer,
Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

OLIVER, Judge:

¶1 Sergio Briseno Medina was convicted of the murder of
Hope Gabaldon and obstructing justice. Medina appeals his
convictions, arguing that the district court abused its discretion
in ruling that a key witness in the prosecution’s case was
unavailable to testify at trial, and that he received constitutionally
ineffective assistance of counsel. Medina also filed a motion
pursuant to rule 23B of the Utah Rules of Appellate Procedure
seeking a remand to support his ineffective assistance claim. We
reject Medina’s arguments, deny his rule 23B motion, and affirm
his convictions.
State v. Medina

BACKGROUND 1

The Week Before Hope’s Murder

¶2 Hope and Medina were friends who were involved in
selling drugs. Medina claimed he wanted to scare Hope out of the
drug business. To that end, during the week before Hope’s
murder, Medina asked his girlfriend (Girlfriend) to call Hope
from a blocked number and ask Hope if she was going to “take a
deal.” Girlfriend did so at least twice. Then, on February 24, 2016,
Medina texted Girlfriend that he needed to “[t]ake someone out.”
When Girlfriend asked why, he responded, “No good.”

The Day of Hope’s Murder

¶3 Around 3:30 p.m. on February 25, Hope and Medina got
into an argument about her allegedly accessing his phone and
contacting people in the drug scene and stealing money from
him. Based on cell phone records, the last communication
between Hope and Medina occurred around 5:45 p.m. that
day. By 9:51 p.m., Hope’s phone was no longer sending or
receiving information. Shortly after Hope’s phone stopped
working, Medina called his friend, Luis, 2 to ask for a ride because
he was “stranded.” When Medina could not get hold of Luis, he
called another friend (Driver) for a ride. Medina did not give
Driver an exact address. Instead, he gave her directions over the
phone. Once she arrived, he asked her to take him to Girlfriend’s
house.

1. “On appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly. We present conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Speights, 2021 UT 56,
n.1, 497 P.3d 340 (cleaned up).

2. A pseudonym.

20220789-CA 2 2025 UT App 99
State v. Medina

¶4 Close to the time Driver picked up Medina, a man
returning home from the grocery store noticed a woman lying on
the ground alongside the road, half in the gutter and half on the
lawn, and called 911. When police officers arrived at the scene, the
woman was still alive and was taken to the hospital. She had been
stabbed eighteen times, and she ultimately succumbed to her
injuries. The woman was later identified as Hope.

¶5 When Medina arrived at Girlfriend’s house, he asked
Girlfriend for a change of clothes. Medina went into Girlfriend’s
house for a few minutes before returning to Driver’s car with a
bag that he put in the backseat. Driver and Medina then left to get
food before going to Driver’s house.

¶6 After he left Girlfriend’s house, Medina texted Girlfriend
and told her that there were bags outside of her house that he
wanted her to get rid of. When Girlfriend asked Medina when he
had left them, he responded, “Just now.” Girlfriend asked him
what the bags looked like, and Medina described them only as
“pink.” When Girlfriend looked in the bags, she saw someone
else’s clothes, including sweaters, shoes, and women’s
underwear. She became upset because she thought Medina was
asking her to wash another woman’s clothes, and because the
bags were not hers, she put them in the shed at her house.

¶7 When Medina and Driver arrived at Driver’s house,
Girlfriend texted Driver asking if Driver knew where Medina
was. Driver told Medina about the texts, and Medina told Driver
he did not want to talk to Girlfriend and to “just tell her that he
left, and then to check the news.” Driver relayed this to Girlfriend.

The Day After Hope’s Murder

¶8 The next morning, Driver woke up to a text from Girlfriend
with a link to a news article asking the public for help identifying
the woman found by the side of the road. Driver did not respond
to Girlfriend’s message but she read the article and “kind of”

20220789-CA 3 2025 UT App 99
State v. Medina

knew who it was about. Driver then woke up Medina and told
him that he needed to leave, but she did not mention the article or
the text from Girlfriend.

¶9 Driver gave Medina a ride to an apartment complex at
Medina’s instruction, and parked next to a gold Jeep, later
determined by police to belong to Hope. Once Driver parked,
Medina got out and grabbed several white, plastic grocery bags
from inside the Jeep, which he put in Driver’s car. Driver and
Medina then met up with Luis. Luis watched Medina grab several
items from Driver’s car, including the grocery bags, water bottles,
two license plates, Hope’s gray purse, and some papers. Medina
then left with Luis to go to another friend’s (Friend 1) apartment.

¶10 While they were driving, Luis asked Medina about the
grocery bags. Medina told Luis that he cleaned out Hope’s Jeep
and the grocery bags contained items from the Jeep. Luis then
asked Medina why he cleaned out the Jeep. In response, Medina
said, “Remember that bitch that I would take to your house?”
When Luis answered in the affirmative, understanding Medina to
be referring to Hope, Medina told him that he “took her out” in
the parking lot of a swap meet and that he stabbed her in the head.
Medina said that he thought she was dead at that point, but it
turned out she was not, so he ran her over with the Jeep. Medina
then pulled out a military-type knife from his pocket that had
blood on it and showed it to Luis. Luis described the blade as
being five to six inches long with a white, three-inch-long handle.

¶11 When Medina and Luis arrived at Friend 1’s apartment,
Medina asked Friend 1 if he had seen the news and then told
Friend 1 that “he did it” and that he “took her out and killed her.”
Medina showed Friend 1 the same knife he had shown Luis.

¶12 Later that day, Medina called another friend (Friend 2),
told him that he needed money, and asked if he could take Friend
2’s truck. Medina then sent Friend 2 a link to the news article.
After looking at the article, Friend 2 asked Medina if “he did that.”

20220789-CA 4 2025 UT App 99
State v. Medina

Medina replied in Spanish, “Ya sabes.” 3 Medina had a third friend
drive him to Rawlins, Wyoming. And from there, Medina took a
bus to Colorado, where he was ultimately arrested by police.

The Investigation

¶13 When police searched Girlfriend’s shed, they found a black
duffel bag with pink trim and black garbage bags with blue
handles. Inside the bags they found clothes as well as a service
contract for one of Hope’s vehicles. Police learned that a few
weeks earlier, Hope and her sister went to their parents’ house to
clean out old clothing of theirs to donate. Hope’s clothes were
bagged up in black garbage bags with blue handles and she put
the bags in her Jeep. Police also learned that the pink duffel bag
“was basically Hope’s life” and she took it “everywhere.”

¶14 Police visited Luis’s home and saw a knife similar to a steak
knife in his car. Luis later met police at the police department for
an interview, and he gave them his phone.

¶15 Police were able to look at location data for Hope’s,
Medina’s, and Luis’s phones. Location data showed that between
5:45 p.m. and 9:51 p.m. on February 25, Hope and Medina’s
phones were in the same general area, with only a few minutes of
separation. When Hope’s phone went silent at 9:51 p.m., Medina’s
phone was on and still in the same general area. Location data
then showed Medina traveling about ten minutes north to an area
that included the swap meet parking lot and the location where

3. Friend 2 testified that the meaning of “Ya sabes” can vary
depending on the context of the situation and a person’s
demeanor. It can mean “[c]ome on bro” or “[y]ou know me better
than that.” It can also mean “[y]ou already know.” The detective
that oversaw Hope’s case was fluent in Spanish and also testified
that the meaning of the phrase can vary based on the context and
that it can mean “[y]ou already know” or “[y]ou don’t need the
answer because you already have it.”

20220789-CA 5 2025 UT App 99
State v. Medina

Hope’s body was found, about a half a mile away, and staying
there from 10:15 p.m. to 11:10 p.m.

¶16 Location data also indicated that Luis’s phone was in a
coverage area that included the location where Hope was found
from 9:05 p.m. to 9:06 p.m. and that it was in an area by his
residence from 9:23 p.m. until 1:00 a.m. Location data did not put
Luis’s location near the swap meet parking lot, but it did show
that Hope’s phone could have been in the same area as Luis’s
phone from 9:38 p.m. to 9:51 p.m.

The Police Interviews of Medina

¶17 The police first interviewed Medina in Colorado, shortly
after he was arrested. Medina told officers that on the night of
Hope's murder, he waited to meet up with her at a gas station “by
the pay phone, near the ice machine.” But when police looked at
the security tape from that gas station “considerably before and
after the time frame” Medina gave them, Medina was not in the
footage. Nor was there a pay phone when police visited the gas
station. Medina also said he tried to call Hope that night, but his
call records showed he did not place any calls to Hope.

¶18 Medina then tried to blame the murder on an acquaintance
that Medina claimed “had romantic feelings” for Hope that she
did not reciprocate. Medina professed he did not know where
Hope’s Jeep was, but he then stated that “it might be at a chop
shop.” He also told police that if they would take him back to Utah
and let him out, he would work with them to try to find the Jeep.
He also told police that he “guarantee[d] [they would] find
nothing” in the Jeep that would link him to the crime. At the close
of the interview, the officer interviewing Medina noted that he
changed his story three times during the interview.

¶19 The police interviewed Medina again a few days later.
Medina’s second interview was not consistent with his first.
Medina continued to blame his acquaintance for the murder until

20220789-CA 6 2025 UT App 99
State v. Medina

police told him they had interviewed the acquaintance. At that
point, Medina shifted his story and for the first time blamed Luis
for the murder. He told the police that Luis called him and said
that “he took care of her,” apparently in reference to Hope.
Medina had previously said that he did not have Luis’s phone
number, but phone records show that he called Luis several times
on the night of Hope’s murder.

¶20 Medina denied texting Girlfriend that he needed to “take
someone out,” instead telling police he texted Girlfriend that he
needed to “take care of someone.” He explained that by “take care
of someone,” he meant he needed to “go jump” Luis’s little
brother. However, text messages between Medina and Girlfriend
revealed that Medina did in fact use the phrase “take someone
out.”

¶21 Medina also attempted to lie about asking Girlfriend to
get rid of the pink duffel bag and trash bags. But after police
told Medina they were aware of his text messages with
Girlfriend, Medina admitted that he told her to get rid of the bags.
Police pointed out to Medina that he kept lying and changing his
story. 4

¶22 Medina was charged with one count of murder and one
count of obstructing justice for one of three statutory alternatives.
The information alleged that by acting “with intent to hinder,
delay, or prevent the investigation” into the murder, Medina

4. Medina filed a motion to suppress the statements he made to
police in the two interviews, arguing that his rights against self-
incrimination had been violated. The district court granted
Medina’s motion to suppress, and the State filed a petition for an
interlocutory appeal, which this court granted. This court
reversed the grant of the motion to suppress, determining that
Medina had knowingly and voluntarily waived his rights. See
State v. Medina, 2019 UT App 49, ¶¶ 20–21, 28, 440 P.3d 846.

20220789-CA 7 2025 UT App 99
State v. Medina

either (1) “prevented 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”; (2) “altered, destroyed, concealed, or removed any item
or other thing”; or (3) “provided false information regarding a
suspect, a witness, the conduct constituting an offense, or any
other material aspect of the investigation.”

The Pretrial Proceedings

¶23 At Medina’s request, the court held a hearing on the
admissibility of expert testimony from a police detective (Expert)
who had overseen Hope’s case and had training and experience
with call and location data. The State intended to have Expert
testify at trial about the location of Hope’s, Medina’s, and Luis’s
cell phones on the night of the murder. Medina argued that
Expert’s testimony would mislead the jury because it lacked
foundation and asked the court to exclude it.

¶24 Expert testified that to generate the maps he created, he
took the raw data he received from the cell phone carriers from
the morning of February 25 through the early morning of
February 26 and entered it into a geolocation program, which
generated several reports. The program generated “an overlay in
Google Earth to show where on the map certain cell sites are
located and their coverage area.” With the information generated
from the program, Expert testified “that the cell phones were in a
general area during the time of this crime.” Expert acknowledged
that there were limitations to the data, specifically that a cell
phone that is powered off will not record data and that cell phones
will hit off the towers with the strongest signals, which is not
necessarily the closest tower. Expert conceded he did not know
“the mathematical or scientific basis” of the program or how it
generated reports. But he stated that he was familiar with the
underlying data in the reports since he was the one who entered
the data into the program.

20220789-CA 8 2025 UT App 99
State v. Medina

¶25 Medina then called his own expert (Rebuttal Expert).
Rebuttal Expert testified that there was no foundation for the
boundaries drawn on the map and that he could only guess at the
algorithm that the geolocation program used in creating the
overlay. Rebuttal Expert testified that the “problem with [the]
map is that the boundary” is “theoretical.” And he further
explained that it was inaccurate to say that the cell phones could
not be outside of the boundaries drawn on the map because “the
basis for the boundary” was unknown.

¶26 The court ruled that the evidence and testimony regarding
mapping was admissible. It reasoned that though the map was
“[t]heoretical in terms of location,” which would be subject to
cross-examination, Expert’s knowledge was based on sufficient
facts and data.

Luis’s Unavailability at Trial

¶27 Luis was arrested on unrelated federal charges. The State
obtained a material witness warrant 5 to ensure Luis would be
available to testify at trial because he was subject to deportation
to Mexico by the federal government. Concerned that Luis would
nevertheless be deported prior to trial, the State “appl[ied] to the
court for an order that [Luis] be examined conditionally by
deposition” to preserve his testimony. 6 The court granted the

5. Rule 7C of the Utah Rules of Criminal Procedure permits the
court to “issue a warrant and fix bail” to secure “the appearance
of the witness” in a case where “it appears from an affidavit filed
by a party that a material witness in a pending case will not
appear and testify” at trial. Utah R. Crim P. 7C(a).

6. Rule 14(a)(8) of the Utah Rules of Criminal Procedure permits a
witness to be deposed if there is “reason to believe a material
witness is about to leave the state . . . or will not appear and testify
pursuant to a subpoena.” Id. R. 14(a)(8).

20220789-CA 9 2025 UT App 99
State v. Medina

State’s request over Medina’s objection, and Luis’s testimony was
recorded on video on September 11, 2020.

¶28 Medina’s trial began on March 2, 2022. At the close of the
first day of the trial, the State brought to the court’s attention that
Luis had been deported to Mexico in 2021, and it had been
unsuccessful in contacting him there. The State explained that it
had been in contact with Luis’s wife (Wife) and she said she was
not in contact with Luis. The State had asked Wife for Luis’s
address so that it could send him mail or go to Mexico to
encourage him to come testify, but it appears the State was unable
to obtain his address. The State had also reached out to federal
immigration officials and requested that they permit Luis to
return to the United States to provide testimony at trial. And the
State indicated that it had planned to buy a plane ticket for Luis,
but it was unable to do so because he could not be located.

¶29 The following day, outside the presence of the jury, Luis’s
immigration attorney (Attorney) testified to his inability to get
into contact with Luis. Attorney said that he had a phone number
for Luis, but it was a communal village phone in Toluca, Mexico.
Attorney explained that a person in the village will answer the
phone, “find out . . . who the call is for and then try and locate that
person in the town to call [him] back.” However, he had never
received a call back when he attempted to contact Luis. Like the
State, Attorney had spoken to Wife, who originally had “semi-
regular” communication with Luis, but in the months leading up
to trial, “she also lost communication with [Luis].”

¶30 On day three of the trial, again outside the presence of the
jury, Medina called a defense investigator (Investigator) who had
looked into whether Luis was in the United States. Investigator,
who had been hired the day before he testified, performed a social
media search and found a Facebook page he believed belonged to
Luis. The Facebook page indicated that Luis “lives and resides in
West Valley.” A picture posted on the Facebook page on

20220789-CA 10 2025 UT App 99
State v. Medina

December 10, 2021, showed Luis working at a construction site
with a background that Investigator thought looked similar to the
Rocky Mountains. Comments on the post warned Luis to be
careful and to stay safe. Investigator also pointed to a photo
posted on January 10, 2022, of several children at the Gateway, a
mall in Salt Lake City. Luis was not present in the photo, but one
of the children in the photo appeared to be the same height and
age as the child in a photo that he had posted on October 19, 2021.
From that photo, Investigator inferred that the photo at the
Gateway was a recent picture. Investigator also testified that he
sat outside Wife’s house for two hours the prior day but did not
see anyone coming or going.

¶31 In response to Investigator’s testimony, the court stated
that it did not think the evidence rose “to the level . . . of some
suggestion that [Luis] is presently here and, therefore, available
as opposed to being unavailable.” The court noted that Luis’s
testimony had been “preserved and taken . . . to be trial
testimony” because of a risk that he would be unavailable to
testify given his impending deportation. The court then found
Luis unavailable to testify and permitted the State to play Luis’s
recorded testimony at trial.

The Trial

¶32 The State presented testimony from thirteen witnesses,
who testified to the events as described above, and played Luis’s
recorded testimony. Expert testified to the general location of
Medina’s, Luis’s, and Hope’s phones around the time of Hope’s
murder based on the map generated by the geolocation program.
Rebuttal Expert attended the trial and listened to Expert’s
testimony. After Expert’s testimony, Rebuttal Expert consulted
with Medina’s trial counsel (Counsel) and Counsel ultimately
chose not to call Rebuttal Expert. The prosecutor later spoke with
Counsel and confirmed that the decision not to call Rebuttal
Expert was Counsel’s “strategy” because Expert “did not go

20220789-CA 11 2025 UT App 99
State v. Medina

beyond the scope of [his] expertise and the science of the data, and
did not say that he could exactly pinpoint a location.”

¶33 The State argued in closing that Medina murdered Hope
and that he obstructed the investigation into her murder by
“tr[ying] to get rid of the evidence” and “lying to the police.”

¶34 Medina’s defense at trial was that Luis killed Hope and
framed Medina. During closing argument, Counsel argued that
Medina feared Luis and that is why “some of his details were a
little off” during his police interviews. Counsel emphasized that
Luis lived “within a mile of where [Hope’s] body was found” and
suggested that Hope’s phone was left at Luis’s after he killed her.
Counsel also suggested Luis could have murdered Hope with the
steak knife officers saw in his vehicle when visiting his home.

¶35 The jury convicted Medina of both murder and obstructing
justice. He was sentenced to a minimum of fifteen years for the
murder conviction and one to fifteen years for the obstructing
justice conviction.

Motion for a New Trial

¶36 After sentencing, Medina obtained new counsel and
moved for a new trial. He argued that Counsel was ineffective for
failing to (1) call Rebuttal Expert to testify on cell phone location
data and (2) request a unanimity instruction or special verdict
form for the obstructing justice charge. The district court denied
the motion, stating that Medina did not meet his burden of
demonstrating a reasonable probability that, but for the errors of
Counsel, the outcome of the trial would have been different.

ISSUES AND STANDARDS OF REVIEW

¶37 On appeal, Medina challenges the district court’s ruling
that Luis was unavailable to testify at trial. “When reviewing

20220789-CA 12 2025 UT App 99
State v. Medina

rulings on hearsay, appellate courts review legal questions
regarding admissibility for correctness, questions of fact for clear
error, and the final ruling on admissibility for abuse of
discretion.” State v. Meyer, 2023 UT App 65, ¶ 23, 532 P.3d 583
(cleaned up).

¶38 Next, Medina argues that the district court erred in
denying his motion for a new trial. “[W]hen a district court rules
on a criminal defendant’s claim that he was deprived of his Sixth
Amendment right to counsel due to ineffective assistance, the
district court’s determination of whether the defendant received
constitutionally ineffective assistance is reviewed for
correctness.” State v. Torres-Orellana, 2024 UT 46, ¶ 6, 562 P.3d 706.

¶39 Finally, Medina filed a rule 23B motion under the Utah
Rules of Appellate Procedure and asks us to “remand the case to
the [district] court for entry of findings of fact, necessary for the
appellate court’s determination of a claim of ineffective assistance
of counsel.” Utah R. App. P. 23B(a). “A remand under rule 23B
will only be granted upon a nonspeculative allegation of facts, not
fully appearing in the record on appeal, which, if true, could
support a determination that counsel was ineffective.” State v. Lee,
2014 UT App 4, ¶ 5, 318 P.3d 1164 (cleaned up).

ANALYSIS

I. Luis’s Unavailability to Testify at Trial

¶40 Hearsay is ordinarily inadmissible at trial unless it falls
under an exception. Utah R. Evid. 801. One such exception—set
forth in rule 804 of the Utah Rules of Evidence—allows former
testimony to be admitted when a witness is unavailable to testify
at trial if the testimony meets the requirements set forth in the
rule. Id. R. 804(b); State v. Goins, 2017 UT 61, ¶ 27, 423 P.3d 1236
(“The rule 804 exception extends only to circumstances in which
the declarant is considered unavailable.”). A witness is

20220789-CA 13 2025 UT App 99
State v. Medina

unavailable if the witness “is absent from the trial or hearing” and
the party calling the witness “has not been able, by process or
other reasonable means, to procure [the witness’s] attendance.” 7
Utah R. Evid. 804(a)(5).

¶41 Early on in the case, the State was aware that Luis might
not be available to testify at trial because he was subject to
deportation by the federal government. Other courts have
recognized that “state prosecutors have no ability to block
deportation if the federal government is determined to deport
someone swiftly.” People v. Torres, 262 Cal. Rptr. 3d 291, 297 (Cal.
Ct. App. 2020). But, as the California Court of Appeal explained,
that does not excuse the State from its obligations:

[E]ven when a witness’s deportation prior to trial
cannot reasonably be avoided, the government
must still undertake reasonable and good faith
efforts to procure his attendance at trial. . . . In other
words, the government cannot simply throw up its
hands and do nothing when faced with the prospect
of one of its witnesses being deported or leaving the
country on his own accord. Instead, it must

7. Our supreme court has noted that it has “not had the
opportunity to address the standard for unavailability under rule
804(a)(5) or to opine on whether rule 804 propounds a different
standard than the test for Confrontation Clause purposes.” State
v. Goins, 2017 UT 61, ¶ 28 n.7, 423 P.3d 1236. The court explained
it has not been consistent in its articulation of the test for
availability for Confrontation Clause purposes, having spoken in
terms of whether it was “practically impossible to produce the
witness in court” and whether the proponent of the evidence “has
used all reasonable means at his disposal to secure the attendance
of the witness.” Id. (cleaned up). But we need not resolve this issue
here because, under either formulation, the State met its burden
with respect to Luis’s unavailability at trial. See infra ¶¶ 43–46.

20220789-CA 14 2025 UT App 99
State v. Medina

undertake reasonable efforts to preserve the
defendant’s constitutional right to be confronted
with the witnesses against him.

People v. Roldan, 205 Cal. App. 4th 969, 980 (Cal. Ct. App. 2012)
(applying California Evidence Code section 240(a)(5)); compare
Cal. Evid. Code § 240(a)(5) (“the proponent of [the declarant’s]
statement has exercised reasonable diligence but has been unable
to procure his or her attendance by the court’s process”), with
Utah R. Evid. 804(a)(5) (the “proponent has not been able, by
process or other reasonable means, to procure the declarant’s
attendance”). The California Court of Appeal identified “one of
the things the prosecution could have done to protect [the
defendant]’s right of confrontation was to videotape [the
witness]’s” testimony. Roldan, 205 Cal. App. 4th at 980–81. Here,
the State did just that.

¶42 Understanding the risk that Luis could be deported before
trial, the State first obtained a material witness warrant to secure
his testimony. See Utah R. Crim. P. 7C. And when it became
apparent that Luis would likely be deported before the trial could
occur, the State obtained a court order and recorded his testimony
on video in order to preserve it for trial. See id. R. 14(a)(8).

¶43 Medina does not appear to question the State’s actions with
respect to the recording of Luis’s testimony. Rather, Medina
argues that the State’s efforts to bring Luis to testify in-person at
trial were insufficient and that the district court abused its
discretion in finding otherwise. In support of his argument,
Medina asserts that “the majority of the State’s efforts to locate
[Luis] were made assuming that he was in Mexico” despite
“photographs and Facebook posts indicat[ing] [Luis] had been in
Utah.” Specifically, Medina asserts that the State should have
done more to locate Luis, such as “look[ing] for [him]” at Wife’s
“or other family member’s houses.” But when we consider both
the efforts the State undertook to locate Luis and Medina’s

20220789-CA 15 2025 UT App 99
State v. Medina

evidence regarding Luis’s whereabouts, we fail to see any abuse
of discretion by the district court in concluding that Luis was
“presently unavailable” for trial.

¶44 First, the State made multiple attempts to contact Luis at
his last known location, which was a village in Mexico that had
only a shared telephone. Second, the State spoke to Wife, who told
the State she had lost contact with Luis in the months before trial.
The State asked her for an address for Luis, but did not obtain one.
Third, the State spoke to Attorney to attempt to locate Luis. And
the district court heard testimony from Attorney as to his
information regarding Luis’s whereabouts and efforts to contact
him, all of which were unsuccessful. Fourth, the State contacted
immigration officials to arrange for Luis to be able to return to the
United States to testify at the trial. Finally, the State investigated
the cost of a round-trip plane ticket for Luis to fly from Mexico to
Salt Lake City and was willing to purchase the ticket.

¶45 None of the evidence put forth by Medina suggests that
these efforts were insufficient. Indeed, the evidence presented by
Medina was rather weak. Investigator, who had been hired the
day before he testified, “conducted a social media search” for Luis
and found a Facebook page that he believed belonged to Luis.
Investigator testified that there were several photographs on the
Facebook page that appeared connected to Utah. One photograph
was posted 8 on January 10, 2022—approximately two months
before the trial started—and showed children, who Investigator
thought were Luis’s, at the Gateway. Luis is not in the first
photograph. The second photograph was posted on December 10,
2021, and showed a man, who Investigator believed was Luis,
working on a construction site with mountains in the background,
but Investigator could not confirm the location of the second
photograph. Investigator also noted the Facebook page showed

8. Investigator admitted that he did not know when any of the
photographs were taken or by whom.

20220789-CA 16 2025 UT App 99
State v. Medina

that Luis “lives and resides in West Valley.” And Investigator
testified that he had gone to Wife’s home and waited “for a couple
of hours” but that no one came or went. None of this evidence
demonstrated that Luis was present in Utah at any time after he
was deported, let alone at the time of trial.

¶46 Considering all this evidence, the State demonstrated
both that it “used all reasonable means at [its] disposal” to try
and locate Luis and facilitate his return to Salt Lake City for
trial and that it was “practically impossible to produce [Luis] in
court.” State v. Goins, 2017 UT 61, ¶ 27 n.7, 423 P.3d 1236 (cleaned
up). Thus, the district court did not abuse its discretion in
permitting the State to play the recording of Luis’s testimony at
trial. See State v. Draper, 2024 UT App 152, ¶ 60, 560 P.3d 122 (“An
abuse of discretion occurs only if it can be said that no reasonable
person would take the view adopted by the district court.”
(cleaned up)).

II. Ineffective Assistance of Counsel

¶47 To prove ineffective assistance of counsel, a defendant
must first demonstrate “that counsel’s performance was
deficient,” meaning it “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 687–88
(1984). But an “error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”
Id. at 691. Thus, a defendant must also show that counsel’s
“deficient performance prejudiced the defense.” Id. at 687. To do
so, a “defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “A defendant's inability to establish either”
that his counsel’s performance was deficient or that such deficient
performance prejudiced the defense “defeats a claim for

20220789-CA 17 2025 UT App 99
State v. Medina

ineffective assistance of counsel.” State v. Miller, 2023 UT App 85,
¶ 25, 535 P.3d 390 (cleaned up), cert. denied, 540 P.3d 78 (Utah
2023).

A. Unanimity Instruction

¶48 Our unanimous verdict caselaw is “well-established.” State
v. Paule, 2024 UT 2, ¶ 67, 554 P.3d 844. “The Utah Constitution’s
Unanimous Verdict Clause expressly protects a criminal
defendant’s right to a unanimous verdict.” Id. This constitutional
requirement “is not met if a jury unanimously finds only that a
defendant is guilty of a crime” rather than that the defendant is
guilty of “each count of each distinct crime charged by the
prosecution and submitted to the jury for decision.” Id. (cleaned
up). “Where the evidence indicates that more than one distinct
criminal act has been committed but the defendant is charged
with only one count of criminal conduct . . . the jury must be
unanimous as to which act or incident constitutes the charged
crime.” State v. Jiminez, 2025 UT App 76, ¶ 34 (cleaned up).

¶49 Here, even assuming, without deciding, that Counsel
performed deficiently by not requesting a unanimity instruction
for the obstructing justice charge, deficient performance alone
does not amount to ineffective assistance. See Strickland, 466 U.S.
at 691. Medina must also show that he was prejudiced because
“there existed a reasonable probability of a different outcome had
the jury been provided a specific unanimity instruction.” State v.
Mottaghian, 2022 UT App 8, ¶ 59, 504 P.3d 773. Thus, Medina must
demonstrate that if the jurors were given a unanimity instruction,
they would not have agreed that any one act amounted to
obstruction. See State v. Percival, 2020 UT App 75, ¶ 29, 464 P.3d
1184 (holding that there was “no reasonable likelihood that the
jury would not have agreed on any one victim” having been
stabbed when the evidence “overwhelmingly established” that
three people were stabbed during a fracas and only the defendant
was “wielding a knife”).

20220789-CA 18 2025 UT App 99
State v. Medina

¶50 Medina argues that he was prejudiced by Counsel not
requesting a unanimity instruction because the State alleged
several specific acts of obstruction. Because Medina believes there
was “conflicting evidence in support of each” act of obstruction,
he argues that “there is a reasonable likelihood that at least some
jurors would have had reasonable doubt” as to some of the acts.
Specifically, Medina points to conflicting evidence about when
and why the pink duffel bag was taken to Girlfriend’s house,
whether Medina would have had Hope’s keys to access her Jeep,
where Hope’s and Medina’s phones were, and where the knife
was that was used to murder Hope. He therefore argues that there
would have been a different result if the jury was instructed that
it had to unanimously agree on which act constituted obstruction.

¶51 But Medina ignores his most obvious act of obstruction—
he lied repeatedly to police during his two interviews. In
Medina’s first interview with police, he lied about (1) waiting for
Hope at a specific gas station “by the pay phone, near the ice
machine,” (2) calling Hope the night of her murder, (3) claiming
an acquaintance who “had romantic feelings” for Hope that were
not reciprocated was the murderer, and (4) knowing the location
of Hope’s Jeep and claiming that “it might be at a chop shop.” In
Medina’s second interview with police, he lied about (5) texting
Girlfriend that he needed to “take someone out,” (6) asking
Girlfriend to dispose of the pink duffel bag and trash bags,
(7) claiming (again) that his acquaintance committed the murder,
and (8) claiming that Luis murdered Hope because he called
Medina and said “he took care of her.” At trial, the State presented
strong—and in most instances, conclusive—evidence that
Medina’s statements were lies. And on appeal, Medina does not
dispute that he lied to the police.

¶52 On this evidence, we conclude that Medina has not
demonstrated a reasonable likelihood of a different result at trial
if the jury had been given a unanimity instruction. “[T]he jury
would have had no difficulty in unanimously agreeing” that

20220789-CA 19 2025 UT App 99
State v. Medina

Medina’s lies to the police supported the obstructing justice
charge. Mottaghian, 2022 UT App 8, ¶ 66; see also id. (holding that
the lack of a unanimity instruction did not prejudice the
defendant where there was “enough uncontested [conduct] to
satisfy all of the charged counts”). Thus, we have little doubt that
even had the jurors been instructed that they needed to agree on
the specific conduct that constituted obstructing justice, the jurors
would have unanimously agreed on the obstructive act of lying to
police and convicted Medina, especially when Medina presented
no evidence to the contrary. See State v. Amboh, 2023 UT App 150,
¶ 34, 541 P.3d 299 (holding that because strong evidence
supported a defendant’s conviction, it was unlikely that the
defendant “would have received a more favorable outcome at
trial if the jury had been properly instructed on unanimity”).

¶53 Accordingly, even assuming that Counsel performed
deficiently by not requesting a unanimity instruction, Medina has
failed to show that he was prejudiced. Thus, Medina has failed to
demonstrate ineffective assistance of counsel.

B. Rebuttal Expert

¶54 An appellate court’s review of Counsel’s performance is
“highly deferential” and “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668,
689 (1984). “If the court concludes that the challenged action
might be considered sound trial strategy, it follows that
counsel did not perform deficiently.” State v. Powell, 2020 UT
App 63, ¶ 20, 463 P.3d 705 (cleaned up). However, even where
“an omission is inadvertent and not due to a purposeful
strategy, relief is not automatic. Instead, . . . the ultimate question
is always whether, considering all the circumstances, counsel’s
acts or omissions were objectively unreasonable.” State v. Miller,
2023 UT App 85, ¶ 26, 535 P.3d 390 (cleaned up). “Counsel’s
performance can be objectively reasonable despite a failure to

20220789-CA 20 2025 UT App 99
State v. Medina

employ the best strategy.” State v. Paule, 2024 UT 2, ¶ 71, 554 P.3d
844 (cleaned up).

¶55 Medina argues on appeal that it was objectively
unreasonable to not call Rebuttal Expert to testify about cell phone
location data. Specifically, Medina asserts that cross-examination
of Expert alone did not elicit “the vital information” to which
Rebuttal Expert would have testified, namely, “the flaws or
limitations” in Expert’s data that would have “undermined”
Expert’s mapping that showed Luis was not near Hope’s body.

¶56 But Medina’s primary argument at trial was that Luis
murdered Hope. Expert had presented evidence that showed
Luis’s cell phone was in the same area as Hope’s during several
time periods on the night of her murder. If Medina’s intention in
calling Rebuttal Expert was to diminish Expert’s credibility and
highlight the flaws in Expert’s mapping, as Medina now claims it
would have been, then Luis’s location at the time of Hope’s
murder would also no longer be credible. Thus, Counsel was left
to decide whether calling Rebuttal Expert to testify was worth the
risk that, by doing so, Counsel would also undermine Expert’s
testimony that Luis’s cell phone was near Hope’s at the time of
her murder. Counsel chose not to take the risk. This was a
reasonable trial strategy.

¶57 Furthermore, Rebuttal Expert testified at the evidentiary
hearing and sat through the entirety of the trial. The State even
conferred with Counsel and confirmed that not calling Rebuttal
Expert was part of the defense’s trial “strategy” because Expert
“did not go beyond the scope of [his] expertise and the science of
the data.” The prior use of Rebuttal Expert and the presence of
Rebuttal Expert at trial further demonstrates that Counsel made a
strategic choice not to call Rebuttal Expert to the stand and to
instead rely on Expert’s testimony about the cell phone location
data. And at closing, Counsel explained to the jury that under
Medina’s theory of the case, Luis and Hope were at Luis’s house

20220789-CA 21 2025 UT App 99
State v. Medina

before he left his phone at home to avoid a digital footprint and
kill Hope. Therefore, Counsel’s performance was not deficient,
and Medina has not shown that he received constitutionally
ineffective assistance.

III. Rule 23B Motion for Remand

¶58 Rule 23B of the Utah Rules of Appellate Procedure permits
a party appealing a criminal case to move the court to “remand
the case to the [district] court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.” Utah R. App. P. 23B(a). Such a
motion is only available “upon a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.” Id.
Rule 23B requires the motion to include “affidavits or declarations
alleging facts not fully appearing in the record on appeal that
show the claimed deficient performance of the attorney.” Id. R.
23B(b). Here, Medina attached a declaration by Counsel that
stated the “failure to call [Rebuttal Expert] was not a tactical
decision, it was a mistake.”

¶59 As discussed above, see supra ¶ 54, deficient performance
is an objective standard. Therefore, whether in retrospect Counsel
now considers the decision to not call Rebuttal Expert a “mistake”
—instead of a strategic decision as Counsel had confirmed to the
State at the time of trial—is not dispositive to our review. And just
because Counsel thinks he made a mistake does not mean that his
action was objectively unreasonable. Indeed, “even if a court
concludes that counsel made an error, the ultimate question is
always whether, considering all the circumstances, counsel’s acts
or omissions were objectively unreasonable.” State v. Miller, 2023
UT App 85, ¶ 26, 535 P.3d 390 (cleaned up), cert. denied, 540 P.3d
78 (Utah 2023).

¶60 As discussed above, calling Rebuttal Expert would have
undermined Medina’s theory of his defense and was unlikely to

20220789-CA 22 2025 UT App 99
State v. Medina

result in an acquittal. See supra ¶¶ 56–57. Thus, it was not
objectively unreasonable for Counsel to decide to not call Rebuttal
Expert. We therefore deny Medina’s rule 23B motion.

CONCLUSION

¶61 Medina has not demonstrated that the district court abused
its discretion in finding Luis unavailable to testify, nor has he
shown that he received ineffective assistance of counsel.
Accordingly, we deny Medina’s rule 23B motion and affirm his
convictions.

20220789-CA 23 2025 UT App 99