State v. Fitzwater

2026 UT App 10

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CORY MICHAEL FITZWATER,
Appellant.

Opinion
No. 20220451-CA
Filed January 29, 2026

Second District Court, Ogden Department
The Honorable Camille L. Neider
No. 181902031

Ann M. Taliaferro, Staci Visser, and Jackie
Reidelberger, Attorneys for Appellant
Derek E. Brown and Daniel W. Boyer,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1 After spending several hours drinking, Cory Fitzwater and
Dalton Aiken drove to a pond near Ogden in the middle of the
night. The two walked into a secluded and forested area near the
pond, where they found the camp of a sleeping homeless man. At
that point, either Fitzwater or Aiken took out a handgun and shot
the man, killing him. Officers quickly obtained evidence that
pointed to Fitzwater and Aiken as the likely culprits. In a series of
police interviews that occurred over the ensuing days and weeks,
Fitzwater and Aiken each gave conflicting stories, and each
ultimately blamed the other for the shooting.
State v. Fitzwater

¶2 Fitzwater and Aiken were each charged with several
offenses, including murder, and they were jailed pending trial.
The State later filed witness tampering charges against Fitzwater
based on Fitzwater’s attempts to bribe two fellow inmates into
giving false testimony implicating Aiken. Aiken’s case was
severed from Fitzwater’s. Aiken went to trial first, and he was
convicted of murder. At Fitzwater’s subsequent trial, Fitzwater
was prosecuted for murder under alternative theories of principal
and accomplice liability. At the close of trial, the jury found
Fitzwater guilty on all charges.

¶3 Fitzwater now appeals his convictions on several grounds.
These include: (1) a series of arguments relating to the unanimity
instructions; (2) a claim that he received ineffective assistance
because his defense counsel (Counsel 1) stipulated to the
admission of Aiken’s conviction and various statements Aiken
made to police; and (3) a claim that he received ineffective
assistance because Counsel did not move to sever the witness
tampering charge from the other charges in his case. For the
reasons set forth below, we see no reversible error and affirm
Fitzwater’s convictions.

BACKGROUND 2

The Murder and Initial Encounter with Police

¶4 On the evening of August 15, 2018, Aiken went to the home
of Fitzwater (who was his friend) and offered to give Fitzwater

1. Fitzwater was represented by two attorneys during
proceedings below. For simplicity, we’ll refer to them with the
singular “Counsel” throughout this opinion.

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
(continued…)

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State v. Fitzwater

two rifles in exchange for Fitzwater’s Sig Sauer handgun. The two
men spent the next several hours drinking, and around 2:00 a.m.
the next morning, Aiken suggested that they go on an
“adventure” to a nearby pond. The area surrounding the pond
was heavily forested, and it was also frequented by homeless
people. Fitzwater and Aiken were familiar with the area, and the
two brought the Sig Sauer handgun with them. They drove to the
pond in Aiken’s truck and then smoked marijuana in the parking
lot before heading out on foot onto the trails surrounding the
pond.

¶5 After walking around the pond for about a half hour,
Aiken and Fitzwater saw a campfire about 200 feet from the main
trail (which was paved). The two men veered off the trail and
walked toward the fire. There was no marked path to the area,
and the two had to walk through “pretty thick” brush to get there.
The two arrived at a campsite, where they found a homeless man
(the Victim) sleeping on a dark mat. Fitzwater nudged the man
with his foot. At that point, either Fitzwater or Aiken pulled out
the Sig Sauer and shot the Victim, killing him. Fitzwater and
Aiken then ran back to Aiken’s truck, and while doing so, they got
separated in the brush.

¶6 While Aiken and Fitzwater had been off walking around
the pond and then encountering (and shooting) the Victim, a
police officer happened to drive by the parked truck. When the
officer got out of his vehicle and looked inside the truck’s
windows, he saw a bag of marijuana and a magazine for a
handgun. He then parked a short distance away from the truck
and waited for the owner to return. The officer also alerted two
other officers, who soon arrived to assist him with what they

only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified).

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State v. Fitzwater

believed would be a forthcoming encounter based on the
marijuana in the truck.

¶7 When Fitzwater made it back to the truck, Aiken was
waiting for him. One of the two men placed the Sig Sauer behind
the passenger seat. Aiken got in the driver’s seat, and Fitzwater
got in the passenger seat. As the two began driving away, they
were pulled over by the officers. After the truck was pulled over,
Fitzwater immediately put his hands up. An officer asked
Fitzwater to step outside, and Fitzwater kept his hands either
above his head or on the truck for the remainder of the interaction
with the officers. After being told to “hang tight” by an officer,
Fitzwater went into a prone position on the truck with his hands
stretched outward as if he was expecting to be searched, and after
he was later told to “relax,” he put his hands behind his back as if
he was expecting to be handcuffed.

¶8 When officers searched the truck, they found marijuana
inside. They also found the Sig Sauer behind the passenger seat, a
loaded magazine for the Sig Sauer and one additional round for it
on the front passenger seat, two empty rifle cases behind the
passenger seat, a magazine for another handgun (a Glock) in the
front console, and a black ski mask with debris on it lying on the
floorboard in front of the passenger seat. When officers searched
Aiken, they found three bullets that matched a Sig Sauer in his
pockets.

¶9 While talking with an officer at the scene, Fitzwater
claimed that he and Aiken had just been “walking around” and
“looking around” and that they had “stayed on the main trail.”
Fitzwater also said that they had only seen “like one bad person”
while out. Fitzwater said nothing about having observed or been
part of any shooting. At this point, the officers were unaware of
the shooting. Aiken was arrested at the scene for marijuana
possession, and Fitzwater was allowed to leave.

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State v. Fitzwater

The Early Investigation and Interviews

¶10 Another homeless man found the Victim’s body around
4:00 a.m. that morning and then alerted authorities. When police
responded to the scene, they found the Victim’s body lying next
to a mat near a campfire. Blood was pooled on the mat near the
Victim’s head. Officers also found a shell casing on the mat, as
well as a bullet under the mat.

¶11 At this point, Aiken was still in custody for the marijuana
arrest. Officers almost immediately suspected that Aiken and
Fitzwater were involved in the shooting, given that they had been
pulled over in the same area in the middle of the night and officers
had found a handgun and ammunition in the truck. Officers also
quickly observed that the shell casing found at the scene appeared
to come from a gun of the same caliber as the Sig Sauer found in
Aiken’s truck, and officers later matched the bullet found at the
scene to that particular gun.

¶12 Aiken was interviewed by detectives several times that
day, and his version of the events changed several times. In the
first interview, which occurred about ten hours after his
marijuana arrest, Aiken initially told detectives that he had
“heard a gunshot” somewhere in the area, but he denied going
into the Victim’s camp, saying he never came “face-to-face” with
any homeless person that night. He also said that the Sig Sauer
was Fitzwater’s, that they had not completed the gun trade yet,
and that they had not brought the gun with them on their walk.
When detectives told Aiken that they had found a shell casing at
the murder scene that matched the Sig Sauer, however, Aiken
changed his story. He then said that while he and Fitzwater were
out walking on the main trail, Fitzwater had branched off on his
own and that Aiken soon heard a gunshot off in the distance.
Sometime later in this same interview, however, Aiken changed
his story yet again. This time, he said that he had actually followed
Fitzwater to the campsite and that he had seen Fitzwater shoot the

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Victim. Aiken’s initial interview ended after around thirty
minutes, and he was interviewed a second time a few hours later.
During this second interview, Aiken repeated his story that
Fitzwater went off the trail, stumbled upon the Victim’s tent, and
“shot the guy.”

¶13 In another interview that occurred later that day, Aiken
changed his story again. This time, Aiken told detectives that he
and Fitzwater had gone to the pond that night with a specific plan
to “beat . . . up” or “hurt” a homeless person. He also said that
they had brought the Sig Sauer with them and that he had seen
Fitzwater shoot the Victim.

¶14 Fitzwater was brought in for questioning later that same
day. Though a touch unclear from the record, it appears that this
interview happened in between Aiken’s first and second
interviews. In his interview, Fitzwater said that he and Aiken had
stayed on the main trails, that they hadn’t heard any gunshots,
and that they hadn’t gone into any homeless camps. Fitzwater
claimed that at some point, he had “lost” Aiken, at which point he
got panicked, ran back to the truck, and found Aiken there
waiting for him. Fitzwater admitted that the Sig Sauer belonged
to him, but he said that he had given Aiken the gun earlier that
night. Fitzwater claimed that he wasn’t aware that Aiken had
brought it with him on the walk. At the conclusion of this
interview, Fitzwater was arrested.

¶15 Officers searched Fitzwater’s house the next day. During
that search, they found the case for the Sig Sauer in Fitzwater’s
basement, and they found several other guns too.

Initial Charges and Fitzwater’s Second Interview

¶16 On August 23, 2018, Fitzwater was charged with one count
of murder and one count of purchase, transfer, possession, or use
of a firearm by a restricted person (the firearm possession charge).

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State v. Fitzwater

Aiken was also charged with murder, and Aiken and Fitzwater
were charged as co-defendants.

¶17 About four months later, Fitzwater was interviewed again,
and this time he had an attorney with him during the interview.
In contrast to what he had told detectives previously, Fitzwater
now said that he and Aiken had walked to the Victim’s camp that
night, where they found the Victim sleeping. Fitzwater said that
he had nudged the Victim with his foot to ask him a question.
Fitzwater said that Aiken had been standing behind him, that
Aiken had suddenly reached around him, and that he had then
heard a gunshot. Fitzwater also claimed that the gun trade had
been completed earlier that day and that the Sig Sauer was
Aiken’s gun by that point.

Fitzwater’s Interactions with Other Inmates

¶18 Fitzwater and Aiken were kept in the same jail while their
cases were pending. Sometime in October 2018, Fitzwater asked
his cellmate (Cellmate) to “lie” and say that Cellmate had
overheard Aiken “admit” to Aiken’s cellmate that he had shot the
Victim. Fitzwater initially promised Cellmate $500 for telling this
story, he later increased the offer to $20,000, and he later increased
it again to “whatever he saved after his lawyer fees.” Cellmate
agreed to participate in this plan.

¶19 Fitzwater also recruited an inmate who was in the
neighboring cell (Neighbor Inmate) to tell a similar story. By way
of notes that were passed between the cells, Fitzwater asked
Neighbor Inmate to say that he had also heard Aiken confess that
he had shot the Victim. Fitzwater offered to put “money on”
Neighbor Inmate’s jail account for his help, and Fitzwater also
offered to ensure that the victim from Neighbor Inmate’s own
case wouldn’t show up to court. Like Cellmate, Neighbor Inmate
agreed to participate in this plan.

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State v. Fitzwater

¶20 Fitzwater set up interviews between a private investigator
he hired and Cellmate and Neighbor Inmate, and both inmates
told the private investigator the things that Fitzwater had asked
them to say. Law enforcement soon heard about these claims, and
when detectives interviewed Cellmate and Neighbor Inmate, the
inmates told the detectives that they had heard Aiken confess to
shooting the Victim.

¶21 Another inmate (Cooperating Inmate) was aware of what
had happened, however, and Cooperating Inmate separately told
authorities that Fitzwater had bribed Cellmate and Neighbor
Inmate to give false accounts. When authorities confronted
Cellmate and Neighbor Inmate about this, they each admitted that
Fitzwater had bribed them to give false statements implicating
Aiken.

¶22 The State later filed an amended information against
Fitzwater that added one count of obstructing justice and two
counts of witness tampering. The obstruction of justice charge
alleged that Fitzwater had obstructed justice “on or about August
16, 2018,” which, as noted, was the day of the early morning
shooting, and it included the allegation that he had done so by
providing “false information” to authorities. The witness
tampering charges were based on the allegations involving
Fitzwater’s offers to Cellmate and Neighbor Inmate.

Pretrial Stipulation Regarding Use of Aiken’s Statements and
Conviction

¶23 As noted, Aiken and Fitzwater were charged as co-
defendants. In February 2019, Fitzwater filed a motion to sever the
two cases, this motion went unopposed by the State, and the
district court granted that motion.

¶24 Aiken’s case went to trial in June 2019. At Aiken’s trial, the
State alleged that Aiken was the one who shot the Victim, and it
did so, in part, by pointing to evidence that it believed showed

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State v. Fitzwater

that Aiken had been holding the gun as the men walked around
the pond. Aiken testified at his trial, and the State challenged his
credibility, in part, by pointing to his many shifting narratives
about what had happened that night. At the close of trial, the jury
convicted Aiken of murder.3

¶25 After Aiken was convicted, the State filed a motion to
exclude evidence of Aiken’s conviction in Fitzwater’s case.
Counsel opposed this motion, and Counsel also sought admission
of Aiken’s prior statements too. At a pretrial conference that was
held in December 2021, Counsel and the State told the court that
they were now jointly stipulating to the admission of “all of . . .
Aiken’s testimony, his prior interviews with the police, . . . any of
[Aiken’s relevant] jail calls,” and “the fact that . . . Aiken was
previously tried and convicted of murder.”

¶26 In that hearing, Counsel told the court that this was “a
strategic decision,” that it was “well-advised,” and that he had
discussed the “potential trial strategies” involved in this decision
with Fitzwater. Fitzwater was in attendance at the hearing, and he
responded affirmatively when the court asked him if he had
discussed this strategy with Counsel and if he was “satisfied with
the advice” that Counsel had given him. Fitzwater also responded
affirmatively when asked whether he agreed that the stipulation
was for a “strategic reason.” Finally, Fitzwater responded
affirmatively when he was asked whether he understood that he
would not be able to confront Aiken about Aiken’s prior
statements and that he was accordingly waiving his confrontation
clause rights as to Aiken’s statements against him.

¶27 This oral stipulation was later memorialized in a written
joint stipulation that was filed with the court. In the written
stipulation, Fitzwater further agreed to “waive any appeal for any

3. Aiken appealed his convictions, and this court affirmed them.
See State v. Aiken, 2023 UT App 44, 530 P.3d 148.

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State v. Fitzwater

issue concerning the admission of and effect of these statements
at trial.”

Trial Strategies

¶28 Fitzwater’s case proceeded to a nine-day jury trial in
February 2022. The State presented testimony about the events
described above, including the evidence that was collected at the
murder scene and elsewhere, as well as the various statements
made by Fitzwater during the investigation. Pursuant to the
stipulation, the State also played Aiken’s several interviews with
officers from the day of the murder in which Aiken accused
Fitzwater of shooting the Victim. The State pointed out that Aiken
said that the Sig Sauer belonged to Fitzwater and that he
witnessed Fitzwater shoot the Victim. Later in the trial, the State
read aloud the entirety of Aiken’s trial testimony. The State also
played excerpts from Fitzwater’s interview where his attorney
was present. And jurors also heard testimony from Cellmate,
Neighbor Inmate, and Cooperating Inmate about Fitzwater’s
attempts to obtain false testimony from Cellmate and Neighbor
Inmate.

¶29 In the defense’s opening statement, Counsel pointed to
evidence suggesting that Aiken was the one who shot the Victim.
Counsel told the jury that it was Aiken who knew the area and
that he went there “frequently”; that Aiken and Fitzwater
completed the gun trade earlier that evening, which suggested,
according to Counsel, that Aiken was in possession of the Sig
Sauer at the time of the murder; that there was an imprint of the
Sig Sauer’s handle under Aiken’s waistband; and that bullets
matching the Sig Sauer were found in Aiken’s pocket. Counsel
emphasized that Aiken “was convicted of murdering” the Victim,
stating that the parties “all agree[d] on that.” Tying things all
together, Counsel stated, “Where the gun was, who owned the
gun, . . . where the bullets were. Dalton Aiken. Dalton Aiken.
Dalton Aiken. That’s the evidence about who pulled the trigger.”

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State v. Fitzwater

In terms of Fitzwater’s involvement, Counsel then asserted that
the question was not whether Fitzwater killed the Victim but
whether Fitzwater was aware of Aiken’s plan to kill the Victim,
again placing the blame on Aiken.

¶30 During the defense’s case, Counsel also emphasized
Aiken’s contradictory testimony, pointing out that he gave “at
least four different stories in a half-hour interview.” Counsel
called a post-traumatic stress disorder (PTSD) expert who posited
that Fitzwater suffered PTSD from prior traumas, and the expert
then opined that this could have affected Fitzwater’s memory
after the shooting, thus explaining his answers from the initial
interview.

¶31 During closing argument, Counsel reiterated that Aiken
had been convicted of murder. Counsel then played a video
compilation showing many of Aiken’s contradictions and
multiple stories. Counsel also read a portion of Aiken’s trial
testimony showing that the State’s strategy at Aiken’s trial was to
accuse him of the murder.

Relevant Procedural History Regarding Jury Instructions

¶32 In both the initial information and the amended
information, Fitzwater was charged as an accomplice to murder,
while he was charged as a principal as it related to the firearm
possession charge. As the case proceeded toward trial, it became
clear the State intended to pursue alternative theories for these
two charges—namely, that it intended to argue that Fitzwater was
guilty as either a principal or an accomplice for both the murder
and the firearm possession charge.

¶33 Counsel submitted proposed jury instructions a few
months before trial. One of the proposed instructions for the
murder charge would require jurors to be unanimous as to
whether Fitzwater was guilty as a principal or instead as an
accomplice. During a jury instruction discussion midway through

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State v. Fitzwater

trial, the district court declined to give this instruction, citing the
Utah Supreme Court’s decision in State v. Hummel, 2017 UT 19,
393 P.3d 314, in support of its conclusion. In the final instructions
that were given to the jury at trial, the jury was instructed that it
could find Fitzwater guilty of murder as either a principal or an
accomplice.

¶34 With regard to the firearm possession charge, Fitzwater’s
proposed jury instructions before trial did not include language
asking for jurors to be unanimous as to principal or accomplice
liability. In a separate filing, Counsel instead argued that party
liability did not legally apply to this offense, and Counsel thus
asked the court to strike that as an option at all. At trial, the court
overruled the objection, and the final jury instruction on the
firearm possession charge included theories of both principal and
accomplice liability.

¶35 At trial, the court gave a general instruction on unanimity
that included the following language:

In the jury room, discuss the evidence and
speak your minds with each other. Open discussion
should help you reach a unanimous agreement on a
verdict. . . .

Try to reach unanimous agreement, but only
if you can do so honestly and in good conscience. If
there is a difference of opinion about the evidence
or the verdict, do not hesitate to change your mind
if you become convinced that your position is
wrong. On the other hand, do not give up your
honestly held views about the evidence simply to
agree on a verdict, to give in to pressure from other
jurors, or just to get the case over with. In the end,
your vote must be your own.

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State v. Fitzwater

Because this is a criminal case, every single
juror must agree with the verdict before the
defendant can be found “guilty” or “not guilty.”
. . . [T]he verdict must reflect your individual,
careful, and conscientious judgment as to whether
the evidence presented by the prosecutor proved a
crime beyond a reasonable doubt.

¶36 During a midtrial discussion about jury instructions,
Counsel and the State made a record about an in-chambers
discussion that had taken place the previous day. According to
their account, Counsel had objected to one aspect of one of the
proposed murder instructions, after which Counsel had
affirmatively indicated that he had no further objections to the
court’s proposed instructions relating to the firearm possession
charge, the obstruction of justice charge, or the general unanimity
instructions.

Convictions

¶37 After the case was submitted to the jury, the jury convicted
Fitzwater on all counts.

ISSUES AND STANDARDS OF REVIEW

¶38 Fitzwater first raises several issues relating to the jury
instructions. As explained below, one of his issues was preserved.
For this issue, we review the relevant ruling “under a correctness
standard.” State v. Powell, 2007 UT 9, ¶ 11, 154 P.3d 788 (quotation
simplified). For Fitzwater’s unpreserved issues relating to jury
instructions, Fitzwater asks us to reverse for either plain error or
ineffective assistance of counsel. Because these issues are raised
for the first time on appeal and there is no lower court ruling to
review, we decide them as a matter of law. See State v. Thomas,
2025 UT App 145, ¶ 15, 579 P.3d 416.

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State v. Fitzwater

¶39 Fitzwater next argues that he received ineffective
assistance when Counsel stipulated to the admission of Aiken’s
prior statements and trial testimony. Finally, Fitzwater argues
that he received ineffective assistance when Counsel failed to file
a motion to sever the two witness tampering charges from the
other charges in his case. Again, because these ineffective
assistance claims are raised for the first time on appeal, we decide
them in the first instance as a matter of law. See id.

ANALYSIS

I. Unanimity Instructions

¶40 Fitzwater raises several issues relating to the jury
instructions on unanimity. These include: (A) a challenge to the
district court’s denial of his request to instruct the jury that it must
be unanimous as to whether Fitzwater was guilty of murder as a
principal or instead as an accomplice; (B) a claim of either plain
error or ineffective assistance relating to alleged defects in the
general unanimity instruction; (C) a claim of either plain error or
ineffective assistance based on the absence of a unanimity
instruction on the firearm possession charge; and (D) a claim of
either plain error or ineffective assistance based on the absence of
a unanimity instruction on the obstruction of justice charge.

¶41 As an initial matter, we conclude that Fitzwater cannot
assert claims of plain error relating to the last three issues. During
a jury instruction conference at trial, Counsel affirmatively told
the court that he had no objection to these instructions. “Under
the doctrine of invited error, an error is invited when counsel
encourages the trial court to make an erroneous ruling.” State v.
McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. This occurs when a
defendant “manifest[s] some sort of affirmative representation to
the trial court that the court is proceeding appropriately.” State v.
Popp, 2019 UT App 173, ¶ 23, 453 P.3d 657. In the context of jury
instructions, a defendant invites error when the defendant

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State v. Fitzwater

“affirmatively approves of the jury instructions at trial.” State v.
Alfatlawi, 2006 UT App 511, ¶ 26, 153 P.3d 804 (quotation
simplified); accord State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d
742. Because Fitzwater (through Counsel) did this very thing here,
he cannot assert plain error relating to these issues.

¶42 In light of this, we review the initial issue (which, again,
was preserved) on the merits, and we review the other issues only
for ineffective assistance.

A. Principal Versus Accomplice Liability

¶43 Fitzwater was charged with murder under Utah Code
section 76-5-203(2). In the key part relevant to this appeal, the
statute states that a person commits murder if he or she
“intentionally or knowingly causes the death of another
individual.” Utah Code § 76-5-203(2)(a). The elements instruction
that was given to the jury included these elements. As noted, the
State asserted that Fitzwater was guilty as either a principal or as
an accomplice, and the jury was instructed accordingly. Under the
accomplice liability statute, “[e]very person, acting with the
mental state required for the commission of an offense who
directly commits the offense, who solicits, requests, commands,
encourages, or intentionally aids another person to engage in
conduct which constitutes an offense shall be criminally liable as
a party for such conduct.” Id. § 76-2-202. In this sense, “party
liability, otherwise known as accomplice liability, is an alternate
theory of liability under which a defendant is guilty of an offense
when he acts with both the intent that the underlying offense be
committed and the intent to aid the principal actor in the offense.”
State v. Rogers, 2020 UT App 78, ¶ 1 n.1, 467 P.3d 880 (quotation
simplified).

¶44 During proceedings below, Fitzwater asked the district
court to instruct the jury that it was required to be unanimous as
to whether he was guilty as a principal or instead as an accomplice
to murder, but the district court declined to give such an

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instruction. Fitzwater now challenges that decision on appeal, but
we see no error. 4

¶45 The Utah Constitution provides that “[i]n criminal cases
the verdict shall be unanimous.” Utah Const. art. I, § 10. This
clause requires unanimity for “each distinct crime charged,” and
the jury must be “unanimous on all elements of a criminal charge
for a conviction to stand.” State v. Hummel, 2017 UT 19, ¶¶ 26, 29,
393 P.3d 314 (quotation simplified). But this clause does not
require the jury to be unanimous “at the level of theory of a crime
or means of fulfilling an element,” nor is unanimity required “on
every method or means of fulfilling each individual element of
each crime in question.” Id. ¶¶ 33, 80 (emphases omitted).
Unanimity also is not required on “the precise manner in which
the crime was committed” or on the “alternative methods or
modes,” State v. Russell, 733 P.2d 162, 165 (Utah 1987), nor is it
required when a jury is presented with “two alternative[]”
theories of mens rea, State v. Powell, 872 P.2d 1027, 1032 (Utah
1994).

¶46 The supreme court expounded on these principles at some
length in Hummel. The issue there involved unanimity as it relates
to the crime of theft. 2017 UT 19, ¶ 1. The court noted that, by
statute, the elements of theft are that the defendant “‘obtain[ed]
or exercis[ed] unauthorized control over the property of another

4. As noted above, the jury was also given principal and
accomplice instructions with respect to the firearm possession
charge, but Fitzwater did not make a similar unanimity request
about the instructions for that charge below. On appeal, Fitzwater
asserts that such an instruction should have been given, and he
asks us to review this omission for either plain error or ineffective
assistance of counsel. For the reasons set forth below, however,
we conclude that Fitzwater was not legally entitled to such an
instruction. Thus, under either rubric, we reject the assertion that
Fitzwater was entitled to a similar instruction for this charge.

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State v. Fitzwater

with a purpose to deprive him [or her] thereof.’” Id. ¶ 19 (quoting
Utah Code § 76-6-404). The court then noted that the statute lists
several ways that a person can obtain unauthorized control over
another’s property, such as “extortion or deception,” id., and that
the defendant in that case had been prosecuted under both
theories, see id. ¶ 15. On appeal, the supreme court held that the
jury was not required to be unanimous as to whether the
defendant had committed theft by extortion as opposed to theft
by deception. See id. ¶¶ 57–58. In the supreme court’s view,
extortion and deception are simply the “means of satisfying the
criminal elements defined by the legislature,” id. ¶ 61 (quotation
simplified), and because they “are not and cannot logically be
separate offenses”—i.e., theft by extortion and theft by deception
are not “separate crime[s]” but instead constitute the “single
offense of theft”—the jury was not required to be unanimous as to
whether the defendant committed the crime in one way versus the
other, id. ¶¶ 19, 21, 89 (emphasis added).

¶47 In the course of this analysis, the supreme court discussed,
by way of illustration, how unanimity would work in a murder
prosecution. See id. ¶¶ 51–52. The court noted that the key
elements of murder are that the defendant “‘cause[d] the death of
another’ either ‘intentionally or knowingly.’” Id. ¶ 51 (quoting
Utah Code § 76-5-203(2)(a)). The court then observed that
although a defendant could in theory cause another’s death
through various “mechanism[s],” a jury would not be required to
be unanimous about which mechanism the defendant had used in
a particular case. Id. ¶ 52. In the court’s view, “if the jury heard
evidence that the defendant both poisoned the victim and tried to
suffocate him with a pillow, there would be no requirement for
the jury to agree on which mechanism was the ultimate cause of
death.” Id. This is so, according to the court, “because the precise
mechanism of the cause of death is not an element of the crime of
murder. All that matters under our substantive law is that the
defendant caused death knowingly or intentionally.” Id.
(quotation simplified).

20220451-CA 17 2026 UT App 10
State v. Fitzwater

¶48 In light of these principles, we see no error here. Again, the
key elements of murder at issue in this case were whether
Fitzwater “intentionally or knowingly cause[d] the death of
another individual.” Utah Code § 76-5-203(2)(a). While Fitzwater
contends that the jury needed to be unanimous as to whether he
acted as a principal or instead as an accomplice, we disagree.

¶49 In several past cases, our courts have referred to
accomplice liability as a “theory” of how the underlying offense
was committed. See, e.g., In re D.B., 2012 UT 65, ¶ 41, 289 P.3d 459
(referring to the State’s “theory of accomplice liability”); State v.
Briggs, 2008 UT 75, ¶ 16, 197 P.3d 628 (noting that, at trial, “the
State relied upon accomplice liability only as a theory for
convicting [the defendant] of the crimes included in the
information, and not as a separate offense”); State v. Gonzales, 2002
UT App 256, ¶ 8, 56 P.3d 969 (discussing how the State “pursue[d]
an accomplice liability theory at trial”). But in Hummel, the
supreme court held that “theories” are the analytical equivalent
of “methods, modes, or manners of committing a crime,” none of
which are subject to the unanimity requirement. 2017 UT 19, ¶ 57
(quotation simplified).

¶50 We also note that in Gonzales, we held that accomplice
liability is not “a separate offense from principal liability” for
purposes of the constitutional right to notice of pending charges.
2002 UT App 256, ¶ 12. We held that this is so, in part, because
“accomplices incur the same liability as principals.” Id. While
Gonzales was not a unanimity case, our conclusion that principal
liability and accomplice liability do not constitute “separate
offense[s],” id., naturally ties into Hummel’s conclusion that
unanimity is only required for “each distinct crime charged,” 2017
UT 19, ¶ 26 (quotation simplified).

¶51 Finally, we note that several other jurisdictions have
concluded that, under their own unanimity principles, a jury is
not required to be unanimous as to whether a defendant is guilty

20220451-CA 18 2026 UT App 10
State v. Fitzwater

as a principal or instead as an accomplice. See, e.g., People v. Jenkins,
997 P.2d 1044, 1130 (Cal. 2000) (“The jury need not decide
unanimously whether defendant was guilty as the aider and
abettor or as the direct perpetrator.” (quotation simplified)); Ayers
v. State, 844 A.2d 304, 309 (Del. 2004) (holding that “a specific
unanimity instruction is not required in every case where a
defendant may be convicted as a principal or as an accomplice”
(emphasis in original)); Taylor v. State, 840 N.E.2d 324, 334 (Ind.
2006) (discussing principal and accomplice liability theories and
concluding that “the jury did not need to agree unanimously on
which theory supported [the defendant’s] murder conviction”);
Futrell v. Commonwealth, 471 S.W.3d 258, 277 (Ky. 2015)
(“Complicity is not a separate offense. It is rather an alternative
theory of the charged offense.”); State v. Nguyen, 2010 ME 14, ¶ 15,
989 A.2d 712 (“Accomplice and principal liability are alternate
means for the commission of a single crime.”). By contrast,
Fitzwater cites no case that held that a jury must be unanimous on
this point.

¶52 Pulling all this together, if a jury does not need to be
unanimous as to “two alternative[]” theories of mens rea, Powell,
872 P.2d at 1032, and if a jury also does not need to be unanimous
as to whether a murder defendant poisoned or instead suffocated
the victim, see Hummel, 2017 UT 19, ¶ 52, then it seems to us that
the jury in this case likewise did not need to be unanimous as to
whether Fitzwater directly caused the Victim’s death as a
principal by shooting him or instead caused the Victim’s death as
an accomplice by soliciting, requesting, commanding,
encouraging, or intentionally aiding Aiken in doing so. This is so
because murder as a principal and murder as an accomplice are
not “separate crimes” but are different ways of committing the
“single offense” of murder. Id. ¶¶ 19, 54. In this sense, the
differences between them go to the “manner in which the crime
was committed,” Russell, 733 P.2d at 165, or, instead, the “theory”
or “means” or “method” of “caus[ing] the death,” Hummel, 2017
UT 19, ¶¶ 31, 33 (quotation simplified). We therefore conclude

20220451-CA 19 2026 UT App 10
State v. Fitzwater

that the jury was not required to be unanimous as to whether
Fitzwater was guilty as a principal or instead as an accomplice, so
we accordingly see no error in the court’s denial of his request for
such an instruction.

B. General Unanimity Instruction

¶53 Fitzwater next argues that he received ineffective
assistance because Counsel did not object to certain alleged
defects in the general unanimity instruction.

¶54 To prevail on an ineffective assistance claim, Fitzwater
must show (1) that Counsel’s “performance was deficient and (2)
that the deficient performance prejudiced the defense.” State v.
Meik, 2024 UT App 46, ¶ 31, 547 P.3d 878 (quotation simplified),
cert. denied, 554 P.3d 923 (Utah 2024). Fitzwater “must establish
both prongs,” and if “either is lacking, the claim fails and this
court need not address the other.” Id. (quotation simplified). To
establish deficient performance, Fitzwater must show that
Counsel’s “representation fell below an objective standard of
reasonableness.” State v. Samples, 2022 UT App 125, ¶ 59, 521 P.3d
526 (quotation simplified). “Because the decision not to pursue a
futile motion is almost always a sound trial strategy,” Counsel’s
“failure to make a motion that would be futile if raised does not
constitute deficient performance.” State v. Powell, 2020 UT App 63,
¶ 20, 463 P.3d 705 (quotation simplified). To establish prejudice,
Fitzwater “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.” State v. Bonds, 2023 UT 1, ¶ 53, 524 P.3d 581 (quotation
simplified).

¶55 In Fitzwater’s view, the general unanimity instruction was
defective because it failed to inform jurors “what it meant to
actually render a unanimous verdict,” meaning that they were

20220451-CA 20 2026 UT App 10
State v. Fitzwater

“required to be unanimous as to each element of each count.” We
disagree.

¶56 “When reviewing jury instructions, 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.” State v. Devan, 2024 UT App 193, ¶ 30, 562 P.3d 1233
(quotation simplified), cert. denied, 568 P.3d 261 (Utah 2025). Here,
the general unanimity instruction told jurors that “[b]ecause this
is a criminal case, every single juror must agree with the verdict before
the defendant can be found ‘guilty’ or ‘not guilty,’” that “the
verdict must reflect [each juror’s] individual . . . judgment as to
whether the evidence presented by the prosecutor proved a crime
beyond a reasonable doubt,” that each juror’s “vote must be [the
juror’s] own,” and that “[o]pen discussion should help [the jurors]
reach a unanimous agreement on a verdict.” (Emphases added.) In
addition, the separate elements instructions that were given for
each count told jurors that they could only convict if they found
that “each and every one of the . . . elements” of the counts was proven
“beyond a reasonable doubt.” (Emphasis added.) Taken together,
these instructions clearly informed jurors that they needed to be
unanimous as to each element of each offense.

¶57 Despite all this, Fitzwater claims that the general
unanimity instruction was still flawed because it included a line
telling jurors to “[t]ry to reach unanimous agreement, but only if”
they could “do so honestly and in good conscience.” According to
Fitzwater, the word “try” suggested to jurors that they did not
actually need to be unanimous. But again, jury instructions are
read as a whole. Moreover, when assessing claims relating to
perceived inadequacies in instructions, we’re cognizant that
“jurors do not sit in solitary isolation booths parsing instructions
for subtle shades of meaning in the same way that lawyers might;
instead, we presume that jurors engage in a deliberative process
in which a commonsense understanding of the instructions
prevails over technical hairsplitting.” State v. Alarid, 2022 UT App

20220451-CA 21 2026 UT App 10
State v. Fitzwater

84, ¶ 39, 514 P.3d 610 (quotation simplified). In light of the
language recounted above—from both the general unanimity
instruction and the elements instructions—that repeatedly and
explicitly required jurors to be unanimous on the elements, we’re
not persuaded that the word “try” would have somehow
communicated to them that there actually was not such a
requirement.

¶58 Given this, we see no basis for concluding that Counsel
overlooked a meritorious objection, nor do we see any basis for
concluding that there’s a reasonable probability that the verdict
would have been different if Counsel had objected to the alleged
inadequacies in the general unanimity instruction. This
ineffective assistance claim fails.

C. Firearm Possession Charge

¶59 In the firearm possession charge, Fitzwater was charged
with violating Utah Code section 76-10-503(3), which stated that
“[a] Category II restricted person who intentionally or knowingly
purchases, transfers, possesses, uses, or has under the person’s
custody or control . . . any firearm is guilty of a third degree
felony.” Utah Code § 76-10-503(3) (2017) (repealed 2025). On
appeal, Fitzwater claims that he received ineffective assistance
because Counsel did not ask the court to instruct jurors that they
had to be unanimous as to whether he “purchase[d], transfer[red],
possesse[d], use[d],” or had under his “custody or control” “any
firearm.” Id.

¶60 On appeal, the parties disagree, for purposes of deficient
performance, whether Fitzwater was even entitled to such an
instruction. But we need not resolve that dispute here. This is so
because we conclude that, even if Fitzwater was entitled to an
instruction requiring unanimity on this front, Fitzwater has not
shown that he was prejudiced by Counsel’s failure to ask for it.

20220451-CA 22 2026 UT App 10
State v. Fitzwater

¶61 As explained, to prevail on his ineffective assistance claim,
Fitzwater “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.” Bonds, 2023 UT 1, ¶ 53 (quotation simplified). For a
claim such as this one, a defendant must “demonstrate that if the
jurors were given a unanimity instruction, they would not have
agreed that any one act amounted to” the charged offense. State v.
Medina, 2025 UT App 99, ¶ 49, 574 P.3d 1011, cert. denied, 578 P.3d
749 (Utah 2025).

¶62 Here, the elements instruction for this charge told jurors
that they must find that Fitzwater “[k]nowingly or intentionally
purchased, transferred, possessed, used, or had under his custody
or control any firearm.” In that same instruction, jurors were also
told that, as a separate element, they must find that Fitzwater was
a “Category II restricted person.” The next two instructions
defined the various ways the State could prove that Fitzwater was
a “Category II restricted person.” This included evidence relating
to his drug use. And of note, both of these instructions also
required proof that Fitzwater was in “possession of a dangerous
weapon” in connection with his possession of drugs. (Emphasis
added.) Thus, while the broader elements instruction for the
offense initially gave the jury options beyond “possession,” the
additional instructions that were also linked to this charge more
narrowly required a finding of possession and possession alone.

¶63 And on this record, we see no real dispute that Fitzwater
had possessed a firearm on the day and even in the hours
immediately surrounding the shooting. As noted, Fitzwater told
police that, at his house just a few “hours before” the shooting, he
and Aiken traded guns—i.e., that Fitzwater gave Aiken his Sig
Sauer in exchange for two rifles. Fitzwater admitted in his
interviews that he had handled the Sig Sauer at some point that
night. And Fitzwater also told officers that, after the shooting, he

20220451-CA 23 2026 UT App 10
State v. Fitzwater

saw the Sig Sauer on the seat of the truck and handed it to Aiken.
When officers searched Fitzwater’s house, they found the case for
the Sig Sauer in his basement, along with several other guns too.

¶64 Based on the instructions that were given and the evidence
presented at trial, we see no reasonable probability that the
verdict on this count would have been any different if Counsel
had requested a unanimity instruction on this charge. We
therefore reject this claim for lack of prejudice.

D. Obstruction of Justice Charge

¶65 By statute,

an actor commits obstruction of justice in a criminal
investigation or proceeding 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, a
person from performing an act that might aid in the
discovery, apprehension, prosecution, conviction,
or punishment of any person;

(c) alters, destroys, conceals, or removes an item or
other thing; [or]

....

(j) provides false information regarding a suspect, a
witness, the conduct constituting an offense, or any
other material aspect of the investigation.

20220451-CA 24 2026 UT App 10
State v. Fitzwater

Utah Code § 76-8-306(2). The elements instruction given in this
case for the obstruction charge included the above language. On
appeal, Fitzwater argues that Counsel provided ineffective
assistance by not asking for an instruction that would require
jurors to be unanimous as to how Fitzwater had committed this
offense. We reject this claim for lack of prejudice.

¶66 In past unanimity cases, we have concluded that the
defendant was not prejudiced where the prosecutor made it
clear at trial (usually in closing argument) which act was at
issue. See, e.g., State v. Paule, 2021 UT App 120, ¶ 48, 502 P.3d 1217,
aff’d on other grounds, 2024 UT 2, 554 P.3d 844. We’ve likewise
rejected claims where, on the facts presented at trial, we saw no
reasonable probability that the defendant would have been
acquitted on at least one of the variants that was submitted to the
jury. See, e.g., State v. Mottaghian, 2022 UT App 8, ¶¶ 59, 68–71, 504
P.3d 773.

¶67 Here, at trial, the State focused on two theories: (1) that
Fitzwater “provided false information” to officers and (2) that
Fitzwater concealed the gun. We see no reasonable probability
that, if the jury had been instructed that it must be unanimous, it
would not have convicted Fitzwater based on the false
information theory advanced by the State.

¶68 As discussed, Fitzwater gave multiple accounts of what
happened on the night of the murder. His accounts were
decidedly varied and, in the end, transparently conflicting.

• At the initial traffic stop, Fitzwater told officers that he and
Aiken were just “looking around” and “walking around.”
When an officer brought up the homeless people who lived
near the pond, Fitzwater said they “only [saw] like, one
bad person.” He further said that he and Aiken “stayed on
the main trail.” Fitzwater said nothing at all about having
encountered the Victim, much less about having been there
when he was shot.

20220451-CA 25 2026 UT App 10
State v. Fitzwater

• In an interview at the police station later that day,
Fitzwater again said that he and Aiken had stayed on the
main trails, hadn’t heard any gunshots, and hadn’t gone
into any homeless camps.

• Four months later, however, Fitzwater gave another
interview, this time with an attorney present. In this
interview, Fitzwater said that while he and Aiken were out
walking near the pond, he saw a fire, at which point Aiken
veered off the trail and Fitzwater followed him. Fitzwater
then said that he saw the Victim sleeping on a mattress and
nudged him with his foot, that the Victim mumbled
something, and that Aiken reached around Fitzwater and
shot the Victim.

¶69 Thus, in these interviews, Fitzwater gave directly
conflicting information about (1) whether he and Aiken veered off
the trail and (2) whether they saw or personally encountered a
homeless person. Beyond that, in his initial account at the traffic
stop, Fitzwater gave a decidedly incomplete story, insofar as he
said nothing at all about having just been present at a shooting of
a person near the pond, which one could reasonably regard as a
lie by omission.

¶70 We’ve recently recognized that an obstruction conviction
can be based on a defendant’s initial lies to police, even where the
defendant later told the truth. See State v. Hernandez, 2025 UT App
90, ¶¶ 35–36, 572 P.3d 1156, cert. denied, 574 P.3d 524 (Utah 2025).
We have no difficulty concluding here that, by his own conflicting
accounts, Fitzwater told officers things that were not true. As a
result, we see no reasonable probability that a jury would have
acquitted him of obstruction of justice even if it had been given a
unanimity instruction as to this count. We therefore reject this
ineffective assistance claim for lack of prejudice.

20220451-CA 26 2026 UT App 10
State v. Fitzwater

II. Use of Aiken’s Statements and Conviction

¶71 As discussed, before trial, Counsel asked the court to admit
evidence of Aiken’s murder conviction. Counsel then entered a
joint stipulation with the State that allowed for the admission of
“all of . . . Aiken’s testimony, his prior interviews with the police,
. . . any of [Aiken’s relevant] jail calls,” and “the fact that . . . Aiken
was previously tried and convicted of murder.” In a pretrial
hearing, Counsel told the court that this was “a strategic decision”
and that it was “well-advised.” Fitzwater also affirmatively
agreed when asked if he was “satisfied with the advice” that
Counsel had given him and whether he understood that there was
a “strategic reason” for the stipulation.

¶72 Fitzwater now argues that the stipulation was “objectively
unreasonable and not a matter of prudent trial strategy.”
Fitzwater argues that Aiken’s statements were hearsay and thus
inadmissible, and he further argues that Counsel’s decision
“relieved the State of its significant burdens” in proving its case.
According to Fitzwater on appeal, Aiken’s prior statements were
“[t]he only direct evidence” that linked Fitzwater to the crime, so
Counsel’s stipulation gave the State a way of proving something
that it could not otherwise prove. We disagree.

¶73 We have recently explained that when a defendant raises a
choice-of-strategy claim like this one on appeal, “the relevant
question is not whether some strategy other than the one that
counsel employed looks superior given the actual results of trial,”
but is instead “whether a reasonable, competent lawyer could
have chosen the strategy that was employed in the real-time
context of trial.” State v. Florreich, 2024 UT App 9, ¶ 59, 543 P.3d
795 (quotation simplified). Our supreme court has likewise
cautioned that while “[i]t is easy to second-guess counsel’s trial
strategy from the rearview mirror of an appeal,” appellate courts
must not “evaluate counsel’s conduct from [this] hindsight-biased
vantage.” State v. Barela, 2015 UT 22, ¶ 22, 349 P.3d 676. Instead,

20220451-CA 27 2026 UT App 10
State v. Fitzwater

courts must consider whether the approach chosen by the
attorney “was reasonable at the time” the attorney made the
decision. Id.

¶74 Moreover, we have recognized that the ineffective
assistance standard “is a most deferential one” and takes into
account the understanding that “even the best criminal defense
attorneys would not defend a particular client in the same way.”
State v. Wright, 2019 UT App 66, ¶ 30, 442 P.3d 1185 (quotation
simplified). Our supreme court has thus held that “[i]f it appears
counsel’s actions could have been intended to further a reasonable
strategy,” the “defendant has necessarily failed to show
unreasonable performance.” State v. Ray, 2020 UT 12, ¶ 34, 469
P.3d 871. Indeed, Strickland v. Washington itself stated that
“strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.”
466 U.S. 668, 690 (1984).

¶75 When Fitzwater’s claim is assessed under these principles,
we see no deficient performance. Fitzwater’s claim on appeal is
focused on Aiken’s prior statements, and he asserts that without
them, the State had no way of linking Fitzwater to this crime. But
this is simply not so. Even without Aiken’s statements, the State
could prove the following things through other evidence and
testimony:

• After a night of drinking, Fitzwater and Aiken went
walking at 2:00 a.m. in a secluded and forested area that
was known to be a place where homeless people often
slept.

• Fitzwater and Aiken brought the Sig Sauer with them on
this walk.

• Fitzwater owned the Sig Sauer at least up through that
evening. While it appears that Fitzwater intended to trade
it to Aiken, there was some indication that the trade had

20220451-CA 28 2026 UT App 10
State v. Fitzwater

not yet been completed, including the fact that the gun’s
case was found in Fitzwater’s home the next day.

• While walking, Fitzwater and Aiken at some point left the
trail and proceeded through “very thick” brush in an area
that had “no path.”

• According to statements Fitzwater made to officers four
months after the shooting, the two men entered into a
campsite where they found the Victim sleeping, at which
point Fitzwater saw the Victim and nudged him with his
foot.

• The Victim was then shot with the Sig Sauer that, again,
had belonged to Fitzwater at least up through that evening.

• A short time later, Fitzwater and Aiken were seen driving
away from that same area, and they were pulled over by
an officer who knew nothing about the shooting.

• Although the officer pulled the truck over for what he
thought was a marijuana offense, and although Fitzwater
was a passenger in the truck, Fitzwater immediately raised
his hands and then kept them up, which appeared to the
officer as if Fitzwater expected to be searched. Even after
the officer told Fitzwater to “relax,” Fitzwater maintained
that posture. Later, unprompted, Fitzwater put his hands
behind his back as if he expected to be handcuffed.

• When officers searched the truck, they found the Sig Sauer
behind the passenger seat, which was where Fitzwater was
sitting, and they found a magazine and an extra round for
the Sig Sauer on that seat. Officers also found a ski mask
with debris on it in front of the passenger seat.

• Fitzwater omitted several key details when speaking to
officers at the traffic stop. In this and subsequent

20220451-CA 29 2026 UT App 10
State v. Fitzwater

interviews, he affirmatively changed his story about
several key details, meaning that, at some point, he was
lying to officers about the events he had been involved in
on the night of the shooting.

¶76 When considering evidentiary questions, jurors are
allowed to draw reasonable inferences from the evidence, and
they’re also allowed to use common sense. See, e.g., State v.
Ashcraft, 2015 UT 5, ¶ 37, 349 P.3d 664; Herzog v. Vail Resorts, Inc.,
2025 UT App 69, ¶ 55, 572 P.3d 402. “It is the exclusive province
of the jury to weigh the competing theories of the case, in light of
the evidence presented and the reasonable inferences drawn
therefrom, and to conclude which one they believe.” State v.
Cardona-Gueton, 2012 UT App 336, ¶ 11, 291 P.3d 847 (quotation
simplified). Moreover, “direct evidence is not required to support
a conviction, and sustainable verdicts are entered every day on
the sole basis of circumstantial evidence.” State v. Suhail, 2023 UT
App 15, ¶ 110, 525 P.3d 550 (quotation simplified).

¶77 Taken together, these facts could have allowed jurors to
conclude that Fitzwater was linked to the murder. They (1) placed
Fitzwater at the scene of the murder at a time and place that were
hardly indicative of happenstance; (2) directly linked him to the
murder weapon; (3) showed that at the time of the traffic stop, he
seemed to think he was about to be arrested; and (4) established
that he repeatedly engaged in deceptive and obfuscatory behavior
when speaking to authorities afterward.

¶78 This was the factual picture that confronted Counsel as he
was deciding on a defense strategy for trial. Faced with these facts,
Counsel decided on essentially a two-pronged approach.

¶79 First, Counsel did not try to claim that Fitzwater wasn’t
there that night. He couldn’t plausibly do so, given all of the
above. Instead, he chose to assert that Aiken, not Fitzwater, was
the shooter and to thus place the blame on Aiken. Counsel sought
to prove this, in part, by affirmatively using the fact of Aiken’s

20220451-CA 30 2026 UT App 10
State v. Fitzwater

prior conviction and what happened at Aiken’s trial in support of
Fitzwater’s theory. As part of this approach, Counsel pointed out
to the jury that the very same prosecutor’s office that was now
prosecuting Fitzwater had argued to Aiken’s jury that Aiken was
the shooter.

¶80 Second, while acknowledging that Aiken had pointed the
finger at Fitzwater, Counsel then used Aiken’s own conflicting
and evolving statements to assert that everything Aiken had said
was simply a lie. In support of all this, Counsel read Aiken’s trial
testimony to the jury, in part to again show that the prosecution
in Aiken’s trial had blamed Aiken for the shooting. And Counsel
presented in closing argument a video featuring a combination of
Aiken’s various contradicting statements to police.

¶81 As we’ve previously explained, “an attorney must play the
hand he or she is dealt, and an attorney’s decision about how to
deal with adverse facts is the sort of thing that courts should not
second-guess in the context of ineffective assistance claims.”
Florreich, 2024 UT App 9, ¶ 60 (quotation simplified). And again,
informed strategic decisions are “virtually unchallengeable.”
Strickland, 466 U.S. at 690. On this record, we think it’s clear
enough that Counsel made an informed decision about how to
deal with the adverse evidence that already linked Fitzwater to
the murder scene, the murder weapon, and, by implication,
possibly the murder itself, and Counsel’s chosen approach
involved using Aiken’s statements and conviction in an attempt
to cast the blame solely on him. We see no basis for concluding
that this approach was objectively unreasonable and that it
therefore constituted deficient performance. 5

5. A few final points regarding this issue warrant brief mention.
First, as noted, Fitzwater claims that Aiken’s statements were “all
inadmissible hearsay.” But even if this were true, cases establish
(continued…)

20220451-CA 31 2026 UT App 10
State v. Fitzwater

III. Severance of the Witness Tampering Charges

¶82 Finally, Fitzwater claims that Counsel provided ineffective
assistance by not moving to sever the witness tampering charges
from the other charges. We disagree.

¶83 By statute, two or more charges can be joined if they are
“based on the same conduct or are otherwise connected together
in their commission” or are “alleged to have been part of a
common scheme or plan.” Utah Code § 77-8a-1(1)(a)–(b).

that a defense attorney can reasonably decide to use otherwise
inadmissible evidence in pursuit of a strategy. See, e.g., State v.
Bullock, 791 P.2d 155, 157–58, 160 (Utah 1989).
Fitzwater also points out that as part of the pretrial
stipulation, he agreed to waive his right to later assert ineffective
assistance regarding Counsel’s chosen approach. In light of this,
Fitzwater next claims that this waiver created a conflict of interest
for Counsel, thereby implicating a different ineffective assistance
standard. See generally Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
But Fitzwater’s briefing on how this different standard would
apply to this case is cursory, so for this reason, we conclude that
he has not carried his burden of persuasion on this point.
Finally, again pointing to the ineffective assistance waiver,
Fitzwater claims that it’s unethical to ask a defendant to agree to
waive his or her right to later assert ineffective assistance, and
though a touch unclear, he seems to also suggest that such a
waiver is invalid. But in its responsive brief, the State did not seek
to enforce this waiver; rather, the State simply contended that
Fitzwater has not shown that he received ineffective assistance in
this case. Because we agree with the State that Fitzwater has not
shown ineffective assistance, we need not decide the question of
whether such a waiver can be enforced. And because this appeal
is from Fitzwater’s criminal conviction, not an ethics decision
relating to Counsel’s performance, it’s not necessary for us to
decide the ethical propriety of such waivers to resolve this appeal.

20220451-CA 32 2026 UT App 10
State v. Fitzwater

“Charges are connected in their commission when there is a direct
relationship between them, often because the conduct resulting in
one charge was precipitated by conduct resulting in another
charge.” State v. Burke, 2011 UT App 168, ¶ 21, 256 P.3d 1102
(quotation simplified).

¶84 “For a joinder to stand,” it must also “meet the prejudice
prong of section 77-8a-1.” State v. Lim, 2022 UT App 69, ¶ 34, 513
P.3d 72 (quotation simplified). That provision states that if

the court finds a defendant or the prosecution is
prejudiced by a joinder of offenses or defendants in
an indictment or information or by a joinder for trial
together, the court shall order an election of separate
trials of separate counts, grant a severance of
defendants, or provide other relief as justice
requires.

Utah Code § 77-8a-1(4)(a). In assessing prejudice, the “threshold
inquiry” is therefore “whether evidence of the other crime would
have been admissible in a separate trial.” State v. Lee, 831 P.2d 114,
118 (Utah Ct. App. 1992). “For example, evidence of the second
offense may be admissible to show the defendant’s guilty
conscience related to the first offense.” State v. Smith, 927 P.2d 649,
653 (Utah Ct. App. 1996). “Likewise, evidence of the first offense
may be admissible to show the defendant’s motive for committing
the second offense—i.e., to conceal criminal activities.” Id.
Because such a scenario seems to involve the use of other bad acts,
it likely implicates, of note, rules 403 and 404 of the Utah Rules of
Evidence. See Lim, 2022 UT App 69, ¶ 34. Thus, to prevail on an
improper joinder claim, the defendant must ordinarily show that
“the evidence of the . . . charged crimes would not have been
admissible at separate trials because its probative value was
substantially outweighed by the danger of unfair prejudice.” Id.
¶ 36.

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State v. Fitzwater

¶85 Our decision in Smith is instructive as to how these
principles play out in a case like this one. There, the defendant
hosted a gathering in which several people ingested illegal drugs.
See Smith, 927 P.2d at 650. One of the guests died of an overdose
in the middle of the night; after his body was discovered, and
before calling for help, the defendant directed others to gather
evidence of the illegal drug use and then throw it away in a nearby
dumpster. See id. at 650–51. The defendant was later charged with
both manslaughter and evidence tampering. See id. at 651. The
jury acquitted him of manslaughter, but it convicted him of
evidence tampering. See id.

¶86 On appeal, the defendant challenged a pretrial decision
from the district court that denied his request to sever the two
charges. See id. at 652. But we affirmed the district court’s decision.
See id. at 655. We held that the case involved a “precipitation
situation” because the defendant threw away the drug evidence
in an attempt to “conceal the illegal drug activities that caused
him to be charged with” manslaughter. Id. at 653. We also
observed that evidence of each offense would have been
admissible at a trial on the other. For example, we concluded that
evidence of the defendant’s involvement in the alleged
manslaughter “tend[ed] to show [his] motive for evidence
tampering.” Id. And we likewise concluded that the defendant’s
attempt to conceal the drug paraphernalia “tend[ed] to show
consciousness of his potential guilt regarding manslaughter.” Id. 6

6. Of some note, courts from other jurisdictions have reached
similar conclusions in similar cases. See, e.g., United States v.
Bourassa, 411 F.2d 69, 74 (10th Cir. 1969) (“While bail jumping was
a separate offense, proof of it was not prejudicial in the
counterfeiting case where flight was a circumstance that might be
considered in determining guilt.”); State v. Bravo, 639 P.2d 358, 359
(Ariz. Ct. App. 1981) (“Evidence that a defendant attempted to
(continued…)

20220451-CA 34 2026 UT App 10
State v. Fitzwater

¶87 We reach the same conclusions here too. First, we agree
with the State that these offenses were connected in their
commission. As discussed, after Fitzwater was charged with
murder, and while he was in jail awaiting trial on that charge, he
allegedly tried bribing two fellow inmates to give false testimony
implicating Aiken in the shooting. In this sense, the murder
charge clearly precipitated the conduct at issue in the witness
tampering charges because it provided the motive for the alleged
conduct. And evidence of the alleged witness tampering likewise
could have been used to show that Fitzwater had a
“consciousness of his potential guilt” for the murder. Id.

¶88 For similar reasons, we also conclude that Fitzwater has
not shown that he suffered any prejudice. Fitzwater claims that
allowing the State to use evidence of the witness tampering in the
trial for murder violated rule 404(b) of the Utah Rules of Evidence.
We disagree. Under that rule, “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). But the
State didn’t seek to use the evidence here to show character or
conformity—i.e., the State wasn’t arguing that because Fitzwater
was the kind of person who commits murder, he was also the kind
of person who commits witness tampering (or vice versa). Rather,
the State was arguing that the pending murder charge was the
motive for Fitzwater to engage in the conduct that led to the
witness tampering charges. And the State further argued that the
witness tampering conduct suggested that Fitzwater was
conscious and aware of his guilt with respect to the murder

influence the testimony of a witness against him tends to show a
consciousness of guilt.”); State v. Bingman, 745 P.2d 342, 347
(Mont. 1987) (holding that an assault charge and a witness
tampering charge “were properly joined” where the “assault
charge provide[d] a motive for and precipitate[d] the tampering
charge”).

20220451-CA 35 2026 UT App 10
State v. Fitzwater

charge. Under rule 404(b), “motive” and “intent” are permissible
purposes for admitting such evidence. Id. R. 404(b)(2).

¶89 As noted, “counsel’s failure to make a motion that would
be futile if raised does not constitute deficient performance.”
Powell, 2020 UT App 63, ¶ 20 (quotation simplified). In our view,
the proposed motion to sever the witness tampering charges from
the other charges would have been futile. We accordingly reject
this claim for lack of deficient performance.

CONCLUSION

¶90 Fitzwater has challenged his convictions on many grounds,
but we see no reversible error on any of them. His convictions are
therefore affirmed.

20220451-CA 36 2026 UT App 10