State v. Alvarado

2023 UT App 123

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ANTHONY JASON ALVARADO,
Appellant.

Opinion
No. 20210416-CA
Filed October 13, 2023

Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 201800128

Emily Adams, Freyja Johnson, and Scott Goodwin,
Attorneys for Appellant, assisted by law students
Brandon Graves, Adam Reed Moore, Annie
Carmack, and Danna Radford 1 0F

Sean D. Reyes and David A. Simpson,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1 Anthony Jason Alvarado appeals his two convictions for
failure to stop at the command of a police officer. He argues that
his trial counsel (Counsel) rendered deficient performance in two
respects related to the jury instructions and that he was thereby
prejudiced. We agree with the first of Alvarado’s arguments, and
we therefore reverse his conviction on one charge and remand the

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
State v. Alvarado

matter to the trial court for a new trial on that charge. We affirm
Alvarado’s conviction on the other charge.

BACKGROUND 2 1F

¶2 In the early morning hours of April 22, 2020, in Roosevelt,
Utah, a police officer (Patrol Officer) was seated in his car on
stationary patrol when he heard “an engine rev up like it was
speeding or accelerating hard.” Looking for the source of the
noise, Patrol Officer saw a “red Ford pickup” come past him and,
without signaling, turn left at the intersection “at a pretty good
rate of speed.” Patrol Officer activated his emergency lights and
tried to pull the truck over. However, the truck did not stop and
instead “accelerated more.” Patrol Officer briefly pursued,
reaching a speed of at least sixty miles per hour, and then saw the
truck make a “really hard, fast turn” into a cul-de-sac in a trailer
park, nearly hit a tree and a parked car, and finally come to a stop.
Patrol Officer pulled behind the truck and saw the driver exit the
vehicle and run away. Patrol Officer attempted to pursue the
driver on foot but lost sight of him.

¶3 Patrol Officer then returned to the truck to be sure there
was no one else inside it and radioed dispatch to give a
description of the driver—a man dressed in “a green or a gray
shirt with jeans.” Dispatch ran the license plate of the truck and
determined that it belonged to Alvarado. Shortly thereafter, a
second police officer in the area (Backup Officer) located and
detained a man—Alvarado—who matched Patrol Officer’s
description of the driver. The officers identified and searched
Alvarado, finding no truck key, and placed him under arrest.

2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Gallegos, 2020 UT 19, n.1, 463 P.3d 641 (cleaned up).

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State v. Alvarado

¶4 Because Alvarado smelled of alcohol and was staggering,
the officers took him to the hospital for a medical clearance before
transporting him to jail. The officers also procured a warrant to
obtain a blood alcohol test, which revealed that Alvarado’s blood
alcohol level was about four times the legal limit. While the
officers were standing just outside of Alvarado’s hospital room,
Backup Officer heard Alvarado—who had generally been “kind
of mouthy . . . and arrogant and noncooperative”—say, “[Y]ou
guys are lucky that I pulled over or else you would have never
caught me.”

¶5 Alvarado was charged with two different failure-to-stop
crimes: one based on his failure to stop when Patrol Officer
attempted to pull him over (fleeing by vehicle), see Utah Code
§ 41-6a-210, and one based on his fleeing the scene after exiting
the truck to avoid arrest (fleeing on foot), see id. § 76-8-305.5.

¶6 In April 2021, a jury trial was held, during which the two
officers testified to the facts as set forth above. On cross-
examination, Counsel asked Patrol Officer whether he had
activated either his body-worn camera or the dashboard camera
of his vehicle during the episode with Alvarado—emphasizing
that those were “the very things that could prove [Patrol Officer’s]
identification of [Alvarado].” Patrol Officer acknowledged the
significance of video evidence but admitted that he had not
activated his body-worn camera, and he testified that he could not
remember if his police vehicle was equipped with a dashboard
camera.

¶7 Alvarado presented one witness in his defense: a friend
(Friend) who lived in the trailer park and claimed to have
witnessed him exiting his truck that night. Friend testified that she
actually saw two people exit Alvarado’s truck—a man she did not
recognize, who exited from the driver’s door, and Alvarado, who
exited from the passenger side. She related that she then saw both
men run past her trailer and that shortly thereafter she saw a

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police car pulling into the trailer park. At that point, Friend said,
she “just shut the window and quit looking out,” generally not
wanting to be involved, although she did cooperate with police
when later approached.

¶8 In its closing argument, the State largely focused on the
credibility of the witnesses, contrasting the potential biases of
Patrol Officer—who, again, had testified to witnessing a person
dressed like Alvarado exit the driver’s side of the truck—and
Friend—who had testified to witnessing Alvarado exit the
passenger side of the truck. The State argued that Friend’s
testimony was “just not credible” because of her location in
relation to Alvarado’s truck and the sources of light. The State also
asserted that Friend “ha[d] an incentive” to lie because of the close
relationship between Alvarado and Friend: “[Alvarado’s] own
wife or girlfriend thought that he was cheating on her with
[Friend].” The State argued that the officers, on the other hand,
had “no bias” and “no incentive to come in here and lie.” The State
also downplayed the lack of body-worn camera footage:

Would I have loved to have body cam here[?] [S]ure.
. . . [Y]ou would have seen every bit of it if I had it.
But we just don’t have that all the time. It’s just not
something that exists all the time. And . . . I wish we
had it, . . . but it’s not relevant.

¶9 Counsel’s closing argument emphasized the lack of
evidence, particularly any “fundamental” camera footage from a
dashboard camera or body-worn camera. Counsel also reminded
the jury that Friend was cooperative with police—calling this “a
hallmark of somebody that is telling the truth”—and suggested
that Friend would not “risk perjury or any type of a criminal
charge by lying on the stand.” Counsel concluded by arguing that
this case was the product of a “keystone cops operation” that did
not produce evidence sufficient to support the charges.

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State v. Alvarado

¶10 The jury was given instructions to guide its deliberations,
including instructions setting forth statutory elements of the
crimes with which Alvarado was charged. Counsel did not object
to these elements instructions. Nor did he request any instruction
related to Patrol Officer’s failure to activate his body-worn
camera, although such an instruction is permitted by statute in
certain circumstances.

¶11 After deliberating, the jury returned guilty verdicts on both
charges. Alvarado was later sentenced to suspended prison and
jail terms and placed on probation. Alvarado now appeals.

ISSUES AND STANDARD OF REVIEW

¶12 Alvarado raises two claims of ineffective assistance of
counsel. His first claim is based on Counsel’s failure to request an
adverse inference jury instruction due to Patrol Officer’s failure to
activate his body-worn camera. Alvarado’s second claim is based
on Counsel’s failure to object to the jury instructions, which, he
contends, failed to set forth the relevant mens rea for the charged
crimes. “When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (cleaned up).

ANALYSIS

¶13 To succeed on a claim of ineffective assistance of counsel,
the defendant must establish both requirements set forth by the
United States Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984). “First, the defendant must show that counsel’s
performance was deficient. . . . Second, the defendant must show
that the deficient performance prejudiced the defense.” Id. at 687.
“Both elements must be present, and if either is lacking, the claim

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State v. Alvarado

fails and the court need not address the other.” State v. Nelson,
2015 UT 62, ¶ 12, 355 P.3d 1031.

¶14 To show deficient performance of counsel, “the defendant
must show that counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. In making
this assessment, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.

¶15 To show prejudice, “[t]he 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.”
Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. And in assessing the
likely impact of a particular error, we must “consider the totality
of the evidence before the judge or jury” since “[s]ome errors will
have had a pervasive effect on the inferences to be drawn from
the evidence, altering the entire evidentiary picture, and some
will have had an isolated, trivial effect.” Id. at 695–96. “Moreover,
a verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with
overwhelming record support.” Id. at 696.

I. Adverse Inference Jury Instruction

¶16 Alvarado argues that Counsel performed deficiently by not
requesting an adverse inference jury instruction due to Patrol
Officer’s failure to activate his body-worn camera. Alvarado also
argues that had such an instruction been requested, it likely
would have been given and that if the instruction had been given,
there is a reasonable probability that the jury’s verdict on the
fleeing by vehicle charge would have been different. We agree.

¶17 In 2016, the Utah Legislature enacted Utah Code section 77-
7a-104, under which police officers are required to, when possible,

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activate their body-worn cameras 3 before any law enforcement
2F

encounter. 4 See Utah Code § 77-7a-104(4) (“An officer shall
3F

activate the body-worn camera prior to any law enforcement
encounter, or as soon as reasonably possible.”); see also Act of Mar.
10, 2016, ch. 410, § 6, 2016 Utah Laws 2481, 2485. At that time,
however, the legislature provided no direction should a law
enforcement officer not comply with section 77-7a-104. Then in
2020, the legislature enacted Utah Code section 77-7a-104.1 (the
Adverse Inference Statute), which provides that if an officer fails
to comply with section 77-7a-104, the trial court is allowed to
“direct[] the jury that an officer’s failure to comply . . . may give
rise to an adverse inference against the officer.” Utah Code § 77-
7a-104.1(1); see also Act of Mar. 12, 2020, ch. 404, § 2, 2020 Utah
Laws 3245, 3246. 5 The Adverse Inference Statute also says that
4F

“[i]f a court includes an adverse inference instruction, the
prosecutor shall, after the conclusion of the trial, send written

3. Neither section 77-7a-104 nor any other part of chapter 7a,
which addresses law enforcement use of body-worn cameras,
requires all law enforcement agencies in the state to use body-
worn cameras. See Utah Code §§ 77-7a-101 to -107. But chapter 7a
does require any agencies that choose to use body-worn cameras
to have a “written policy governing the use of body-worn cameras
that is consistent with” the minimum requirements set forth in
that chapter of the code. Id. § 77-7a-102(1), (2).

4. The statutory definition of a “law enforcement encounter”
includes “a traffic stop.” Utah Code § 77-7a-103(3)(f).

5. Section 77-7a-104 was amended at the same time that the
Adverse Inference Statute was enacted, see Act of Mar. 12, 2020,
ch. 404, § 2, 2020 Utah Laws 3245, 3245–46, but the relevant
provision in that section—the requirement to activate the body-
worn camera—has remained unchanged since its original
enactment in 2016, see Act of Mar. 10, 2016, ch. 410, § 6, 2016 Utah
Laws 2481, 2485.

20210416-CA 7 2023 UT App 123
State v. Alvarado

notice of the instruction to the law enforcement agency that
employed the officer” and include in the notice “the written order
or a description of the order allowing for the instruction,” “the
language of the instruction,” and “the outcome of the trial.” Utah
Code § 77-7a-104.1(2)(c).

¶18 Because the Adverse Inference Statute became effective in
May 2020, prior to the April 2021 trial in this case,
Alvarado argues that Counsel performed deficiently by not
requesting an adverse inference jury instruction under the
Adverse Inference Statute. See Act of Mar. 12, 2020, ch. 404, § 2,
2020 Utah Laws 3245, 3246. In response, the State argues that
because the encounter giving rise to the charges against Alvarado
occurred in April 2020, a few weeks before the Adverse Inference
Statute became effective, competent counsel could have
reasonably concluded that the Adverse Inference Statute did not
apply to this case. Thus, we first focus on Utah’s rules regarding
the retroactivity of statutes to determine whether not requesting
an instruction under the Adverse Inference Statute in light of the
timeline of this case “falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668, 689
(1984).

¶19 “The courts of this state operate under a statutory bar
against the retroactive application of newly codified laws.” State
v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829; see also Utah Code § 68-3-
3. However, this statutory bar provides for one exception, namely,
when the newly codified law “is expressly declared to be
retroactive.” 6 See Utah Code § 68-3-3. Thus, absent this exception,
5F

6. Although Utah case law has also “occasionally referred to
amendments clarifying statutes as an exception to the
retroactivity ban,” Gressman v. State, 2013 UT 63, ¶ 16, 323 P.3d
998 (cleaned up), any “exception” for amendments that clarify
statutes has been specifically repudiated by our supreme court,
see id.; Waddoups v. Noorda, 2013 UT 64, ¶ 9, 321 P.3d 1108.

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“we apply the law as it exists at the time of the event regulated by
the law in question.” Clark, 2011 UT 23, ¶ 13. And this rule applies
regardless of whether the law is characterized as substantive or
procedural; either way, we look to the timing of the event
regulated by the new law. Id. The event regulated differs,
however, based on whether the law is substantive or procedural.
See id. ¶¶ 13–14; see also State v. Rodriguez-Ramirez, 2015 UT 16,
¶ 10, 345 P.3d 1165 (characterizing “the line between substance
and procedure” as “a tool for identifying the relevant ‘event’
being regulated by the law in question”). Our supreme court has
explained this distinction:

On matters of substance the parties’ primary rights
and duties are dictated by the law in effect at the
time of their underlying primary conduct (e.g., the
conduct giving rise to a criminal charge or civil
claim). When it comes to the parties’ procedural
rights and responsibilities, however, the relevant
underlying conduct is different: the relevant
occurrence for such purposes is the underlying
procedural act (e.g., filing a motion or seeking an
appeal).

Clark, 2011 UT 23, ¶ 14; accord Gressman v. State, 2013 UT 63, ¶ 13,
323 P.3d 998. Therefore, the governing issue is what event is
regulated by the Adverse Inference Statute, and a determination
of whether the statute is substantive or procedural will aid in
identifying that event.

¶20 The State argues that the event the Adverse Inference
Statute is aimed at regulating is the police encounter because it
imposes a “penalty” on an officer who fails to comply with the
requirement to turn on his body-worn camera. This penalty,
according to the State, includes both the availability of an adverse
inference jury instruction and the requirement, when such an
instruction is given, for the prosecutor to “send written notice of

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State v. Alvarado

the instruction to the law enforcement agency that employed the
officer.” Utah Code § 77-7a-104.1(2)(c). To underscore its
argument, the State directs us to the following language from our
supreme court: “We should use a common sense, functional
judgment about whether the new provision attaches new legal
consequences to events completed before its enactment. This
judgment should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled
expectations.” Goebel v. Salt Lake City S. R.R. Co., 2004 UT 80, ¶ 39,
104 P.3d 1185 (cleaned up).

¶21 We disagree that the event the Adverse Inference Statute
regulates is the relevant police encounter. Although the Adverse
Inference Statute may create an incentive for law enforcement
officers to comply with the statutory duty to activate their body-
worn cameras prior to law enforcement encounters, its enactment
did not create or alter that duty, and it inflicts no direct penalty on
any officer who fails to comply with that duty. Moreover, while
we agree that we must consider whether the new provision
attaches new legal consequences to events completed before its
enactment and be guided in that judgment by considerations of
fair notice, reasonable reliance, and settled expectations, such
considerations do not aid the State’s argument in this case. Given
the clear directive in Utah Code section 77-7a-104, which existed
on the night of the police encounter here, Patrol Officer had fair
notice of the requirement to turn on his body-worn camera and
should not have had any settled expectation that he was allowed
to disregard that requirement simply because no procedural
consequence for such disregard existed at the time.

¶22 The Adverse Inference Statute does not affect a defendant’s
substantive rights that arise at the time of the conduct for which
the defendant is charged, such as the substantive elements of the
offense or the sentence for the offense. Rather, the Adverse
Inference Statute creates a procedural right for certain defendants
to be able to request an adverse inference jury instruction during

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State v. Alvarado

trial, cf. Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980) (explaining
that “the doctrine of res ipsa loquitur,” which “establishes an
inference of negligence,” is “a procedural rather than substantive
rule of law”), and a procedural obligation on prosecutors to
provide notice to law enforcement after an adverse inference
instruction is given. Therefore, the events it regulates are the trial
and the post-trial sending of notice. Accordingly, the statute,
having been enacted over a year before the trial in this case, was
applicable here, and we are unconvinced that counsel rendering
adequate professional assistance could have reasonably
concluded otherwise.

¶23 Furthermore, we agree with Alvarado that there is a high
likelihood that the trial court would have given the adverse
inference jury instruction if Counsel had requested it.

A court presiding over a jury trial may provide an
adverse inference instruction if the defendant
seeking the adverse inference instruction establishes
by a preponderance of the evidence that:

(i) an officer intentionally or, with reckless
disregard of a requirement of Section 77-7a-104,
failed to comply with a requirement of Section
77-7a-104; and

(ii) the officer’s failure to comply with the
requirement of Section 77-7a-104 is reasonably
likely to affect the outcome of the defendant’s
trial.

Utah Code § 77-7a-104.1(2)(a). We think it likely that the trial court
would have agreed both that Alvarado had established by a
preponderance of the evidence that Patrol Officer at least
recklessly disregarded the requirement to turn on his body-worn
camera when he failed to turn it on as he activated his patrol

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State v. Alvarado

vehicle lights and attempted to initiate a traffic stop 7 and that an
6F

adverse inference jury instruction would be reasonably likely to
have an impact on the jury’s decision.

¶24 Although the giving of the adverse inference jury
instruction is at the trial court’s discretion, see id. (“A court . . . may
provide an adverse inference instruction . . . .” (emphasis added)),
the Adverse Inference Statute gives the trial court the following
guidance for making that determination:

In considering whether to include an adverse
inference instruction . . . , the court shall consider:

(i) the degree of prejudice to the defendant as a
result of the officer’s failure to comply with
Section 77-7a-104;

(ii) the materiality and importance of the
missing evidence in relation to the case as a
whole;

(iii) the strength of the remaining evidence;

(iv) the degree of fault on behalf of the officer
described in Subsection (2)(a)(i) or the law
enforcement agency employing the officer,
including whether evidence supports that the
officer or the law enforcement agency displays a

7. Patrol Officer was seated in his stationary vehicle when he
made the decision to initiate a police encounter with the driver of
Alvarado’s truck and was able to activate his emergency lights
before pursuing the truck. Given the facts of this case, he should
have had no difficulty also activating his body-worn camera at
that time.

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State v. Alvarado

pattern of intentional or reckless disregard of the
requirements of Section 77-7a-104; and

(v) other considerations the court determines are
relevant to ensure just adjudication and due
process.

Id. § 77-7a-104.1(2)(b). Considering these factors, the
circumstances of this case weighed heavily in favor of giving an
adverse inference jury instruction. The fleeing by vehicle charge
required evidence that Alvarado was the driver of the truck at the
time Patrol Officer tried to initiate a traffic stop. The only direct
evidence the State presented on this point was the testimony of
Patrol Officer that a person matching Alvarado’s general
description had exited from the driver’s side of the vehicle before
fleeing on foot. But Alvarado presented Friend’s testimony
directly to the contrary—that Alvarado was only a passenger in
his truck that evening. Thus, a recording by Patrol Officer’s body-
worn camera was crucial as it would have shown which witness
was correct and whether Alvarado was driving his truck that
night.

¶25 We also do not agree with the State that the remaining
evidence was considerably strong in showing that Alvarado was
driving his truck that night. On this point, the State highlights
Backup Officer’s testimony that while stationed outside
Alvarado’s hospital room he heard Alvarado say, “[Y]ou guys are
lucky that I pulled over or else you would have never caught me.”
Even crediting Backup Officer’s credibility, this statement could
conceivably be interpreted as mere drunken bravado. The State
also points to Alvarado’s registration as the owner of the truck
and his being found near the scene. But this evidence is also
consistent with Alvarado’s version of events—that the truck was
his and that he was riding as a passenger in it. Finally, the State
points to Alvarado’s drunkenness and argues that he had a
stronger motive to flee if it was to avoid prosecution for drunk

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driving. Yet this argument overly discounts the plausibility of a
drunken companion’s impulse to flee the scene of criminal
conduct when police apprehension is imminent. As a whole, the
evidence pointing toward Alvarado as the driver that night is
simply not so strong that the trial court was likely to decide that
it weighed against giving a requested adverse inference jury
instruction.

¶26 Therefore, considering the importance of body-worn
camera footage of the police encounter and the relative weakness
of the remaining available evidence in support of the State’s case,
we think the trial court would very likely have exercised its
discretion to provide the adverse inference jury instruction had it
been requested to do so.

¶27 Finally, as to the issue of prejudice, where the only direct
evidence of whether Alvarado was driving his truck was the
conflicting testimony of Patrol Officer and Friend, the impact of a
jury instruction specifically permitting an adverse inference
against Patrol Officer would likely have been significant. This is
all the more true considering the arguments presented by the
State at trial. The State suggested that Patrol Officer should be
believed over Friend because Patrol Officer had “no bias” and “no
incentive to come in here and lie,” while Friend did have “an
incentive” to lie due to her relationship with Alvarado. The State
also argued that body-worn camera footage is “just not something
that exists all the time” and that the lack of it was “not relevant.”
Thus, had the jury been informed that Patrol Officer failed to
comply with a statutory requirement when he failed to activate
his body-worn camera and that this failure could “give rise to an
adverse inference against” him, we think there is a reasonable
probability that the jury would have weighed the competing
testimony differently and acquitted Alvarado on the fleeing by
vehicle charge. In other words, our confidence in the verdict is
undermined. See generally State v. Thompson, 2014 UT App 14, ¶ 73,
318 P.3d 1221 (“[C]ourts are more likely to reverse a jury verdict

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State v. Alvarado

if the pivotal issue at trial was credibility of the witnesses and the
errors went to that central issue.”).

¶28 Because the Adverse Inference Statute was in effect at the
time of trial and regulated trial conduct, because the trial court
would likely have given an adverse inference jury instruction if it
had been asked to do so, and because there is a reasonable
probability that such an instruction would have changed the
outcome of this case, we conclude that Alvarado received
ineffective assistance of counsel when Counsel failed to request
the adverse inference jury instruction. We therefore reverse
Alvarado’s conviction on the fleeing by vehicle charge and
remand to the trial court for a new trial on that charge.

II. Jury Instructions Setting Forth the Charged Crimes

¶29 Alvarado also argues that the jury instructions incorrectly
instructed the jury on each of the two charges and that Counsel
was ineffective in failing to correct those instructions. We address
each charge in turn.

A. Fleeing by Vehicle

¶30 We have, in Part I, already reversed Alvarado’s conviction
on the fleeing by vehicle charge and therefore need not address
his challenge to the related jury instruction. However, we take the
opportunity to provide some limited direction on the matter as it
may be useful upon remand. See State v. Ogden, 2018 UT 8, ¶ 49,
416 P.3d 1132 (“Although it is unnecessary to our decision, we
retain the authority to reach issues when we believe our analysis
could prove helpful on remand.”).

¶31 The statutory language underlying the fleeing by vehicle
charge is as follows: “An operator who receives a visual or audible
signal from a law enforcement officer to bring the vehicle to a stop
may not . . . attempt to flee or elude a law enforcement officer by
vehicle or other means.” Utah Code § 41-6a-210(1)(a). And Jury

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Instruction 42 provided that for a conviction on the fleeing by
vehicle count, the jury must “find beyond a reasonable doubt”
that Alvarado “[d]id, as an operator [of] a motor vehicle who
received a visual or audible signal from a law enforcement officer,
fail to bring the vehicle to a stop” and did “[a]ttempt to flee or
elude a law enforcement officer by vehicle or other means.”

¶32 Although that jury instruction closely tracks the statutory
language, it fails to follow prior direction from our supreme court
regarding jury instructions for this crime. In State v. Bird, 2015 UT
7, 345 P.3d 1141, the court stated that “the terms ‘receive’ and
‘attempt,’ which are contained in the statutory language, indicate
that this crime includes some level of mental appreciation” but
that “we cannot assume that the jury understood the mens rea
implications of these terms.” Id. ¶¶ 18–19. The court therefore
determined that further jury instruction is necessary regarding
the mens rea requirements of this crime, id. ¶ 19, specifically,
instruction that the term “receive” requires a knowing mens rea,
id. ¶ 20, and the term “attempt” requires an intentional mens rea,
id. ¶ 23.

¶33 Thus, as guidance upon remand, we reiterate the direction
from Bird, as applied here:

If the State recharges [Alvarado], we direct the trial
court to instruct the jury that [Alvarado] must have
knowingly ‘received a visual or audible signal from
a police officer’ and must have intended ‘to flee or
elude a peace officer.’ And the trial court should also
include an instruction defining the knowing and
intentional mental states.

Id. ¶ 26.

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B. Fleeing on Foot

¶34 The Utah Code defines the crime of fleeing on foot as
follows: “A person is guilty of a class A misdemeanor who flees
from or otherwise attempts to elude a peace officer: (1) after the
officer has issued a verbal or visual command to stop; (2) for the
purpose of avoiding arrest; and (3) by any means other than a
violation of [the fleeing by vehicle statute].” Utah Code § 76-8-
305.5. And Jury Instruction 43 stated that to convict on this count,
the jury must “find beyond a reasonable doubt” that Alvarado
“[d]id knowingly, intentionally or recklessly . . . [f]lee from or
otherwise attempt to elude a peace officer . . . [a]fter the officer
issued a verbal or visual command to stop . . . [f]or the purpose of
avoiding arrest . . . [b]y any means other than the operation of a
vehicle.”

¶35 Alvarado argues that, because the fleeing by vehicle statute
and the fleeing on foot statute are significantly similar and deal
with the same subject, the guidance from Bird is applicable to this
crime as well, that is, that the “attempt to elude” language in the
fleeing on foot statute implies an intentional mens rea. Therefore,
argues Alvarado, the jury instruction on the fleeing on foot charge
was incorrect by instead providing a mens rea element that
included the lesser mens rea options of “knowingly” and
“recklessly,” and Counsel’s failure to object to the instruction
amounted to deficient performance.

¶36 But even assuming, without deciding, that Alvarado is
correct regarding the application of Bird’s reasoning to the crime
of fleeing on foot, we still “must determine whether there is a
reasonable probability the jury would not have convicted the
defendant if the jury instructions had been correct.” State v.
Grunwald, 2020 UT 40, ¶ 22, 478 P.3d 1. And we see no reasonable
probability that the verdict on this charge would have been
different had the jury been given Alvarado’s “corrected”
instruction. Under the facts of this case, we see no support for a

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State v. Alvarado

finding that Alvarado’s fleeing on foot was only “knowing” or
“reckless,” but not “intentional,” where he came speeding into the
trailer park cul-de-sac (either as the driver or as the passenger),
immediately exited the truck, and took off running—not running
to any house or specific destination, but just running away from
the truck—as Patrol Officer came close behind with his lights
activated. Thus, Alvarado was not prejudiced even if the
instruction was incorrect and Counsel performed deficiently by
not objecting to it.

¶37 Alvarado also raises an issue with Jury Instruction 33,
which, in part, stated: “A defendant’s ‘mental state’ is not the
same as ‘motive.’ Motive is why a person does something. Motive
is not an element of the crime(s) charged in this case. As a result,
the prosecutor does not have to prove why the defendant acted
(or failed to act).” He argues that this instruction would have
indicated to the jury that the fleeing on foot charge did not require
a finding that the fleeing was “[f]or the purpose of avoiding
arrest,” despite that being a listed requirement in Jury Instruction
43.

¶38 But again, even assuming error in the instruction and
deficient performance in Counsel’s not objecting, we similarly do
not see that the facts would support a conclusion that Alvarado
fled the scene for any purpose other than to avoid arrest. We think
there is no reasonable probability that the jury would have
determined that Alvarado was fleeing for some other reason than
to avoid arrest when his truck had been speeding down the street,
the vehicle came to a quick stop, and Alvarado jumped out of the
truck and ran away, with police close behind.

¶39 Thus, under the facts of this case, we are not convinced that
any objectionable parts of Jury Instruction 33 or Jury Instruction
43 were such as to undermine our confidence in the verdict as to
the fleeing on foot charge. Because of this lack of prejudice, we

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State v. Alvarado

reject this claim of ineffective assistance of counsel and affirm
Alvarado’s conviction as to this charge. 87F

8. Alvarado also makes an argument of cumulative error.
However, this doctrine is inapplicable in this case. As to the
fleeing by vehicle charge, we have already reversed that
conviction based on a single claim of ineffective assistance of
counsel. And as to the fleeing on foot charge, the cumulative error
doctrine is not applicable because only one error was alleged
related to that charge. State v. Martinez-Castellanos, 2018 UT 46,
¶ 39, 428 P.3d 1038 (“‘Cumulative error’ refers to a number of
errors which prejudice a defendant’s right to a fair trial. It is used
when a single error may not constitute grounds for reversal, but
many errors, when taken collectively, do.” (cleaned up)).
Alvarado does, however, seem to suggest within his
cumulative error argument that Counsel additionally rendered
ineffective assistance because he “came to trial without even
knowing all the charges against his client.” Specifically, Alvarado
argues that “Counsel did not know about [the fleeing on foot
charge] until after the State rested.” But the one exchange cited by
Alvarado in support of this assertion does not clearly indicate that
Counsel was mistaken as to the charges against Alvarado.
Instead, it seems Counsel may have recognized that the initial
Information was incorrect in referencing a statute from the State
Boating Act but may not have recognized that the State had
already made the necessary amendment to the Information. The
State explained to Counsel that someone “had inadvertently put
the wrong statute in” the original Information but that it had since
been fixed and that the second charge “had always been a fleeing
on foot” charge. Counsel responded, “I saw that, but . . . there’s
been some . . . difficulties in getting those amended Informations.”
We are not convinced from this exchange that Counsel was
operating off of an incorrect understanding of the charges as he
represented Alvarado at trial. See State v. Hards, 2015 UT App 42,
(continued…)

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State v. Alvarado

CONCLUSION

¶40 Alvarado received ineffective assistance of counsel because
Counsel did not request an adverse inference jury instruction that
the trial court likely would have given and that would have
created a reasonable probability of a more favorable result for
Alvarado on the fleeing by vehicle charge. We therefore reverse
and remand for a new trial on that charge. However, as to the
fleeing on foot charge, we see no prejudice stemming from any of
the alleged errors in the jury instructions, and we therefore affirm
Alvarado’s conviction as to this charge.

¶ 19, 345 P.3d 769 (“Proof of ineffective assistance of counsel must
be a demonstrable reality and not a speculative matter.” (cleaned
up)).
At any rate, even had Alvarado convinced us that Counsel was
unaware of the correct charges against his client, Alvarado asserts
no specific additional claims of prejudice tied to this alleged
misunderstanding. He claims only that this purported
misunderstanding led to the primary errors he alleges (the failure
to request an adverse inference jury instruction and the failure to
ensure the jury instructions correctly stated the mens rea elements
for each crime) and that, had Counsel been better prepared, “he
could have introduced additional evidence showing [Alvarado]
was too intoxicated to form the mens rea required for both
charges.” But Alvarado makes no effort to identify what that
available “additional evidence” would have been, so we are
unable to assess whether any additional prejudice resulted from
a failure to present that evidence. Thus, this additional suggestion
of ineffective assistance is also unavailing.

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