State v. Plexico

2016 UT App 118
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
S HONI PLEXICO,
Appellant.
Memorandum Decision
No. 20140590-CA
Filed June 3, 2016
Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall1
The Honorable Keith C. Barnes
No. 131500464
J. Bryan Jackson, Attorney for Appellant
Sean D. Reyes, Deborah L. Bulkeley, and Thomas B.
Brunker, Attorneys for Appellee
JUDGE K ATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE S TEPHEN L. R OTH concurred. JUDGE GREGORY K.
O RME dissented.
TOOMEY, Judge:
¶1 	In this case, we must determine whether the jury heard
sufficient evidence to convict Shoni Plexico of tampering with a
witness, a third degree felony. We must also determine whether
the trial court exceeded its discretion by not allowing the jury to
hear that Plexico had been acquitted of the underlying charges
and whether the jury instructions were erroneous. We affirm.
1. Judge Westfall presided over the jury trial; Judge Barnes
denied Plexico’s motion for a new trial.

State v. Plexico
20140590-CA 	2 	2016 UT App 118
BACKGROUND
¶2 	In 	August 	2013, 	Plexico 	allegedly 	fought 	with 	her
boyfriend 	(Boyfriend) 	and 	a 	friend 	(Friend).2 	In 	a 	written
statement to the investigating police officer, Friend reported that
Plexico hit Boyfriend. The officer issued Plexico a citation for
two assault charges, each a class B misdemeanor. Approximately
two hours later, the officer interviewed Friend and Plexico. In
the interview and a second written statement, Friend told the
officer that Plexico asked her to change her earlier statement and
to tell the officer that Plexico did not hit Boyfriend. The officer
then arrested Plexico for tampering with a witness.
¶3 	Plexico’s 	assault 	charges 	and 	the 	witness 	tampering
charge were severed, and in March 2014 she was acquitted of the
assault charges. A few weeks later in the witness tampering case,
Plexico moved the court to suppress any evidence regarding the
assault charges, but asked that if such evidence were introduced,
the court give a cautionary instruction for the jury to use it only
for the specific purpose for which it was admitted. Plexico also
asked that if the court found it necessary to admit the evidence,
the court would advise the jury that she was acquitted of the
underlying assault charges.
¶4 	The court determined it would not admit evidence that
Plexico had been acquitted of the assault charges, explaining that
just 	as 	allowing 	evidence 	of 	a 	conviction 	would 	unduly
prejudice a jury, so would evidence of an acquittal. The court
also 	cautioned 	that 	the 	State 	should 	only 	submit 	evidence
2. “In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable
to the verdict. We recite the facts accordingly.” State v. Boyd, 2001
UT 30, ¶ 2, 25 P.3d 985 (citation and internal quotation marks
omitted).

State v. Plexico
20140590-CA 	3 	2016 UT App 118
“sufficient to establish the element of her knowledge of an
official proceeding being pending” as required by the governing
statute. Thus, the court admonished that the State needed only to
show that “as a result of [a] fight [Plexico] was issued a citation
and was aware of that citation.” It also determined it would
instruct 	the 	jury 	“not 	to 	consider 	[the] 	citation” 	or 	the
“circumstances that resulted” in it. Plexico’s counsel responded,
“I think if the Court gives that admonition as the evidence comes
in that will suffice.”
¶5 	During trial, the jury heard testimony from Friend, the
police 	officer, 	Plexico, 	and 	Boyfriend 	regarding 	Plexico’s
interactions 	with 	Friend 	after 	Plexico 	received 	the 	assault
citation. Friend testified that Plexico asked her to lie by asking
her to tell the police officer that Plexico did not hit Boyfriend. In
contrast, Plexico testified she did not ask Friend to lie, but,
instead, to tell the truth about the assault. Boyfriend testified that
Plexico did hit him. The police officer testified that Boyfriend’s
and Friend’s statements about the assault were consistent and, in
his opinion, Plexico had asked Friend to make a false statement.
¶6 	In an attempt to impeach Friend’s credibility, on cross-
examination defense counsel attempted to ask about her first
statement to the police officer and her testimony at the assault
trial. The State objected to defense counsel’s line of questioning,
and the court excused the jury so that it could discuss with
counsel 	the 	appropriateness 	of 	introducing 	Friend’s 	prior
testimony and statements. The court was concerned that defense
counsel was attempting to elicit information to show that Friend
had a propensity to lie and that this propensity had led to an
acquittal of the assault charges. Defense counsel explained to the
court that because the witness tampering charge was severed
from the assault charges, he was deprived of the opportunity to
“let the jury be aware of what had transpired that led up to
[Plexico] going over to [Friend’s] house” after being cited for the
assault. He further claimed that “[t]he reality of it is [Friend and

State v. Plexico
20140590-CA 	4 	2016 UT App 118
Boyfriend] chose basically to file a report against [Plexico] not
because they had been assaulted” but for some other reason. In
her 	first 	statement 	regarding 	the 	assault, 	defense 	counsel
explained, Friend omitted the fact that a handgun was involved
and “picked and [chose] . . . what [she] wanted to report.”
“[W]hen we questioned [Friend] about that in the last case,”
defense counsel claimed, “[it] became obvious to everybody that
[Friend was] abusing the process.” He argued, “That’s really
what’s going on here. Witness tampering is all wrapped-up in
[Friend’s] misuse of the process to bring false charges against
[Plexico] regarding assault.”
¶7 	The court responded that what happened at the assault
trial was “irrelevant,” explaining that “[i]t doesn’t matter what
happened in the justice court because as soon as you present
evidence that something happened in the justice court, now this
jury is going to be asked to determine whether the justice court
jury believed or didn’t believe [Friend].” The court specified that
it had “no idea why [the jurors in the assault trial] reached the
verdict that [they] did,” and it was too speculative to assume the
jury in the assault case “said [Friend was] a liar.” It concluded it
would not allow defense counsel to offer evidence showing that
Friend’s statements about the assault were inconsistent with her
testimony at the assault trial unless defense counsel could offer
Friend’s prior statements that were “somehow relevant to what
[Plexico] told her” about changing her statement. It explained,
“[I]f you want to open that door and go into the facts and
circumstances because you think it’s relevant to . . . your client
[telling Friend to change her statement], I’ll allow that . . . , but
I’m also going to instruct the jury that . . . the outcome of that
case has nothing to do with this case.”
¶8 	Before 	deliberations, 	the 	State 	and 	Plexico’s 	defense
counsel finalized jury instructions for the court to use, which the
court then approved and gave. Among other instructions, the
court told the jury that Plexico could not be found guilty unless

State v. Plexico
20140590-CA 	5 	2016 UT App 118
she had the “culpable mental state.” In particular, the court
recited 	jury 	instruction 	ten, 	stating 	that 	“[i]n 	this 	case 	the
plaintiff must prove that the defendant engaged in the alleged
criminal conduct and that the defendant did so intentionally,
knowingly or recklessly with respect to each element of the
crime.” 	The 	court 	then 	read 	jury 	instruction 	eleven, 	which
provided 	the 	elements 	of 	the 	offense. 	It 	then 	defined
“knowingly” and “intentionally.”3
¶9 	The court also gave the jury a cautionary instruction “on
how 	to 	consider 	the 	evidence 	presented 	regarding 	the
defendant’s alleged prior acts.” It stated,
It would be inappropriate for this jury to find the
defendant guilty upon the pending charge because
one or more members of the jury suspected or
believed the defendant should have been found
guilty of the charges for which she was initially
cited. 	You 	are 	instructed 	that 	you 	shall 	not
speculate 	about 	what 	resulted 	from 	that initial
citation. 	It 	is 	however, 	appropriate 	for 	you 	to
consider 	the 	circumstances 	when 	determining
whether 	or 	not 	the 	defendant 	committed 	the
present offense . . . .
Plexico’s counsel did not object to the jury instructions.
¶10 	The jury found Plexico guilty, and the court sentenced her
to an indeterminate prison term of up to five years. The court
suspended the prison term and instead sentenced her to thirty
days in jail and twenty-four months of probation. Plexico moved
the court for a new trial and asked it to stay her jail term pending
3. We note that the court did not define “recklessly.” But because
Plexico does not challenge this omission, we do not address this
issue further.

State v. Plexico
20140590-CA 	6 	2016 UT App 118
appeal, arguing, among other things, that the jury had been
misled and that the court erred by not allowing the jury to hear
evidence that she had been acquitted of the underlying assault
charges. To support her argument, she attached an affidavit
from one of the jurors which indicated the jury assumed Plexico
was convicted of the underlying charges. The court denied her
motion for a new trial but granted the motion to stay her
sentence pending appeal.
ANALYSIS
I. Sufficiency of the Evidence
¶11 	On appeal, Plexico first contends there was insufficient
evidence for the jury to convict her of witness tampering. She
essentially argues that “merely asking a friend a favor to lie
about what happened” was insufficient to convict her. Plexico
asserts the plain language of the witness tampering statute did
not 	adequately 	prohibit 	her 	conduct, 	arguing 	it 	“expands
application of the language of the charging statute to include
conduct which is not criminal misconduct.”4 We disagree.
4. The State asks us not to address Plexico’s sufficiency of the
evidence challenge, arguing that it is unpreserved. Generally, we
will not consider an issue on appeal unless it has been preserved.
Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828. “An issue is
preserved for appeal when it has been presented to the district
court in such a way that the court has an opportunity to rule on
[it].” Id. (alteration in original) (citation and internal quotation
marks omitted). Here, although Plexico did not articulate her
challenges 	to 	the 	evidence 	well, 	she 	raised 	the 	issue 	that
something more than asking a favor was required, and argued
“there [has] to be a substantial effort made in 	changing a
person’s position to constitute attempt.” In response, the court
suggested she draft a jury instruction defining “attempt.” She
(continued…)

State v. Plexico
20140590-CA 	7 	2016 UT App 118
¶12 	“When examining the sufficiency of the evidence in a
criminal jury trial, we begin with the threshold issue of statutory
interpretation, which we decide as a matter of law.” State v.
Widdison, 2000 UT App 185, ¶ 16, 4 P.3d 100 (citation and
internal 	quotation 	marks 	omitted). 	But 	“‘we 	will 	reverse 	a
conviction only when the evidence, viewed in light of our
interpretation 	of 	the 	statute, 	is 	sufficiently 	inconclusive 	or
inherently 	improbable 	that 	reasonable 	minds 	must 	have
entertained a reasonable doubt that the defendant committed the
crime of which he [or she] was convicted.’” Id. (alteration in
original) (quoting State v. Fisher, 972 P.2d 90, 97 (Utah Ct. App.
1998)). This standard of review is highly deferential. State v.
Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645.
¶13 	Plexico argues that “[t]o ask a friend, as a favor, to lie for
them 	certainly 	qualifies 	as 	being 	indecorous 	and 	perhaps
inappropriate” but is not “in and of itself criminal.” We agree;
generally asking a friend to lie may not be criminal. But asking a
friend to lie for the purpose of preventing an official proceeding
or to testify falsely is indeed a crime. Section 76-8-508 provides,
A person is guilty of the third degree felony of
tampering 	with 	a 	witness 	if, 	believing 	that 	an
official proceeding or investigation is pending or
about to be instituted, or with the intent to prevent
an official proceeding or investigation, he attempts
(…continued)
also moved for a directed verdict, arguing “there was no change
in the testimony.” But the court denied that motion, noting that
the evidence “made out a prima facie case” and it was “for the
trier of fact to determine whether [Friend’s] testimony [was]
believable or not.” As a result, Plexico’s challenge on appeal
does not assert new theories or raise new issues not presented to
the court, and is therefore preserved. See id. ¶¶ 15–16.

State v. Plexico
20140590-CA 	8 	2016 UT App 118
to induce or otherwise cause another person to . . .
testify or inform falsely.
Utah Code Ann. § 76-8-508(1) (LexisNexis 2012). Thus, based on
the plain language of the statute, to convict Plexico the jury must
have found that she (1) knew an official proceeding was pending
or intended to prevent an official proceeding and (2) attempted
to get Friend to testify or inform falsely. See id. This does not
only require the jury to find that Plexico attempted to induce her
friend to lie; it also requires that the lie involved an official
proceeding. See id. Moreover, the statute explicitly requires the
jury to determine that Plexico asked Friend to “testify or inform
falsely,” as opposed to testify or inform truthfully. See id. Thus,
to 	the 	extent 	that 	Plexico 	challenges 	the 	sufficiency 	of 	the
evidence based on the interpretation of the governing statute, we
cannot conclude the court erred, because the plain language of
section 76-8-508 makes it illegal to attempt to induce or to ask
someone to lie with regard to an official proceeding, such as a
proceeding resulting from an assault citation.
¶14 	To challenge the sufficiency of the evidence after a jury
trial, a defendant must “marshal the evidence in support of the
verdict and then demonstrate that the evidence is insufficient
when viewed in the light most favorable to the verdict.” State v.
Rudolph, 2000 UT App 155, ¶ 18, 3 P.3d 192 (citation and internal
quotation 	marks 	omitted). 	“[A] 	party 	challenging 	a 	factual
finding or sufficiency of the evidence to support a verdict will
almost certainly fail to carry its burden of persuasion on appeal
if it fails to marshal [the evidence].” See Nielsen, 2014 UT 10, ¶ 42.
¶15 	Plexico vastly understates the evidence supporting her
conviction of tampering with a witness. She fails to address
whether sufficient evidence was presented to establish she knew
an official proceeding was pending and asked Friend to inform
or testify falsely. Instead, Plexico focuses her arguments on a few
isolated statements made during trial to show that her “version

State v. Plexico
20140590-CA 	9 	2016 UT App 118
of why she went to see her friend [was] different” from what
Friend testified to. Her broad assertions and failure to marshal
the 	evidence 	supporting 	conviction 	greatly 	undermine 	our
assessment of this claim. See id. ¶ 44.
¶16 	At trial, Friend testified Plexico asked her to “lie to the
cops and say that she never hit [Boyfriend].” She testified that
the first statement she made to the police officer regarding the
alleged assault was accurate and Plexico “tried to make [her]
change [her] statement.” She explained that Plexico “didn’t want
to go to jail.” Friend and Boyfriend each testified that they
coordinated 	their 	statements 	regarding 	the 	assault 	so 	that
Plexico would be arrested but did not do the same with their
statements 	regarding 	the 	witness 	tampering 	charge 	and
confirmed that Plexico hit Boyfriend.
¶17 	In contrast, Plexico recalled that after she received the
assault citation, Friend asked her why there were two charges
and told Plexico one of the two charges “shouldn’t be there.”
Believing the second charge was a mistake, Plexico called the
police officer to ask him to drop it. Later in her testimony,
Plexico admitted she had not been “very truthful” when the
officer interviewed her about the alleged assault, but insisted she
never asked Friend to change her statement; rather, she merely
talked to Friend about the citation because she wanted to know
“why [Friend] had lied.” She emphasized that her “only lie” was
telling the officer she did not hit Boyfriend, and she only lied
because she felt pressured.
¶18 	Implicitly, 	the 	jury 	was 	charged 	with 	determining
whether Plexico’s asking Friend to tell the police officer she did
not hit Boyfriend was equivalent to her asking Friend to inform
or testify falsely. Although Plexico’s testimony contradicts that
of Friend and Boyfriend, there was sufficient evidence that she
hit Boyfriend and asked Friend to testify otherwise. In light of
this evidence, we cannot conclude that “reasonable minds must

State v. Plexico
20140590-CA 	10 	2016 UT App 118
have 	entertained 	a 	reasonable 	doubt 	about 	the 	essential
elements” of the tampering with a witness charge. See State v.
Nielsen, 2014 UT 10, ¶ 49, 326 P.3d 645 (citation and internal
quotation marks omitted).
II. Plexico’s Acquittal
¶19 	Plexico next argues the trial court abused its discretion
when it prevented the jury from hearing evidence that she was
acquitted 	of 	the 	assault 	charges. 	She 	argues 	“this 	was 	a
misapplication of [the Utah Rules of Evidence], particularly
Rules 403 and 404.” Plexico asserts the court did not make the
proper 	admissibility 	analysis 	for 	whether 	evidence 	of 	her
acquittal could have been admitted for “a proper non-character
purpose under Rule 404(b)” and erred in determining that her
acquittal on the underlying assault charges was not relevant.5
5. Plexico also briefly raises two additional challenges regarding
her acquittal. First, she argues the court abused its discretion by
not allowing evidence of her acquittal through Friend’s prior
statements. It is unclear how this relates to the relevance of her
acquittal, and although Plexico cites the Utah Rules of Evidence
and two criminal cases regarding the court’s ability to admit
prior inconsistent statements, she offers no analysis and does not
apply the rules to the facts. Second, Plexico argues the court
abused its discretion by denying her motion for a new trial
because a juror’s affidavit gave “rise to an allegation of jury
misconduct during deliberation.” But Plexico offers no case law
or citations to the record to support her argument. Indeed, the
only law she cites is rule 606(b) of the Utah Rules of Evidence
which states the “court may not receive a juror’s affidavit”
regarding the jury deliberations. She also fails to explain how her
generally inadmissible juror affidavit meets an exception to the
rule. Neither argument is adequately developed, so we decline
to address them. See State v. Thomas, 961 P.2d 299, 305 (Utah
(continued…)

State v. Plexico
20140590-CA 	11 	2016 UT App 118
¶20 	Rule 404(b) of the Utah Rules of Evidence instructs that
“[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). In determining whether evidence of
other acts is admissible, “the trial court must first determine
whether 	the 	. 	. 	. 	evidence 	is 	being 	offered 	for 	a 	proper,
noncharacter purpose,” State v. Nelson-Waggoner, 2000 UT 59,
¶ 18, P.3d 1120, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack 	of 	accident,” 	Utah 	R. 	Evid. 	404(b)(2). 	“[I]f 	the 	court
determines that the evidence is being offered only to show the
defendant’s propensity to commit crime, [or not commit crime,]
then it is inadmissible and must be excluded at that point.” See
Nelson-Waggoner, 	2000 	UT 	59, 	¶ 	18 	(citation 	and 	internal
quotation marks omitted).
¶21 	Even if the court concludes that the evidence is being
offered for a proper purpose, it must still review the evidence
under rules 402 and 403. Rule 402 limits admission of evidence
to that which is relevant, defined as having “any tendency to
make a fact more or less probable than it would be without the
evidence” and “the fact is of consequence in determining the
action.” Utah R. Evid. 401, 402. The Utah Supreme Court has
emphasized that “unless the other crimes evidence tends to
prove some fact that is material to the crime charged—other than
the defendant’s propensity to commit crime—it is irrelevant and
should be excluded by the court pursuant to rule 402.” State v.
Decorso, 1999 UT 57, ¶ 22, 993 P.2d 837. Thus, “evidence of a
(…continued)
1998) 	(explaining 	that 	rule 	24(a)(9) 	of 	the 	Utah 	Rules 	of
Appellate Procedure “requires not just bald citation to authority
but development of that authority and reasoned analysis based
on that authority”).

State v. Plexico
20140590-CA 	12 	2016 UT App 118
common plan, scheme, or manner of operation is admitted [only]
where it tends to prove some fact material to the crime charged.”
Id. (alteration in original). Finally, the trial court must determine
whether the evidence meets the requirements of rule 403, which
provides, 	“The 	court 	may 	exclude 	relevant 	evidence 	if 	its
probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, [or] misleading the jury.”
Utah R. Evid. 403.
¶22 	“[W]e review a trial court’s decision to admit other acts
evidence under rule 404(b) of the Utah Rules of Evidence under
an abuse of discretion standard.” Nelson-Waggoner, 2000 UT 59,
¶ 16. And, “[w]e review the record to determine whether the
admission of other . . . acts evidence was scrupulously examined
by the trial judge in the proper exercise of that discretion.” Id.
(citation and internal quotation marks omitted).
¶23 	Here, 	the 	trial 	court 	determined 	it 	would 	not 	admit
evidence 	that 	Plexico 	was acquitted 	of 	the 	assault 	charges,
explaining that its decision was based on the same reasons it
“would not allow [a prior conviction] to come to the jury,”
because such evidence “would unduly prejudice the jury.” It
later 	explained 	that what 	occurred 	at the 	assault 	trial 	was
“irrelevant” unless it went to an element of the crime—whether
Plexico believed an official proceeding or investigation was
pending. The court also explained that allowing evidence of
Plexico’s acquittal would confuse the jury or mislead it by
inviting speculation about what the jury in the assault case
“believed or didn’t believe.”
¶24 	Even if we assume that Plexico’s acquittal on the assault
charges was offered for some other noncharacter purpose, we
cannot conclude the trial court abused its discretion when it
found this evidence irrelevant and prejudicial. Plexico asks this
court to assume that evidence of her acquittal is relevant to
“connect [her] to being acquitted” of this crime. But she offers no

State v. Plexico
20140590-CA 	13 	2016 UT App 118
explanation for how the fact of her acquittal on the underlying
assault charges might make it more or less probable she believed
an official proceeding or investigation was pending or attempted
to induce Friend to inform falsely—the offense for which she
was charged in this case. Rather, she seems to ask the court to
assume she was acquitted of the assault charges because she did
not hit Boyfriend and that her acquittal was thus relevant to
show that she merely asked Friend to testify truthfully, not
falsely. But we will not speculate or make that presumption. As
the trial court pointed out, we “have no idea why [the jury in the
assault trial] reached the verdict that they did,” and asking the
jury in this case to speculate why the jury in the previous case
acquitted her of the charges confuses the issues.6 We therefore
conclude the court did not exceed its discretion by preventing
the jury from hearing evidence that Plexico was acquitted of the
underlying assault charges.
6. From the record, we know very little about the underlying
charges. We know that Plexico was charged with two class B
misdemeanor assault charges for what defense counsel describes
as “slapping” Boyfriend and shoving Friend. But we do not
know if she had affirmative defenses to those allegations. It is
also not clear whether the jury acquitted Plexico of the assault
charges because it did not believe that Plexico hit Boyfriend or
because her conduct did not meet some other element of the
crime. 	See 	Utah 	Code 	Ann. 	§ 	76-5-102 	(LexisNexis 	2012)
(defining assault as either “an attempt, with unlawful force or
violence, to do bodily injury to another” or “an act, committed
with unlawful force or violence, that causes bodily injury to
another or creates substantial risk of bodily injury to another”).
Accordingly, we will not speculate as to why the jury in the
underlying case acquitted Plexico of the assault charges or infer
that, because she was acquitted, she did not hit Boyfriend and
that Friend therefore lied in her statement.

State v. Plexico
20140590-CA 	14 	2016 UT App 118
III. Jury Instructions
¶25 	Finally, Plexico challenges the jury instructions. Because
she proposed them and did not object to the trial court giving
them, she concedes to our review of this issue under the plain
error standard. State v. Martinez, 2013 UT App 154, ¶ 4, 304 P.3d
110; see also Utah R. Crim. P. 19(e) (explaining that “[u]nless a
party 	objects 	to 	an 	instruction 	or 	the 	failure 	to 	give 	an
instruction, the instruction may not be assigned as error except
to avoid a manifest injustice”). To demonstrate plain error,
Plexico must show “(1) that there was an error, (2) that it should
have been obvious to the trial court, and (3) that it was harmful.”
State v. Bond, 2015 UT 88, ¶ 48, 361 P.3d 104. “Because [Plexico]
bears the burden on plain error review, if any of the three
elements is not satisfied, [her] claim fails.” See id. ¶ 49.
¶26 	Relying solely on State v. Geukgeuzian (Geukgeuzian I), 2002
UT App 130, 54 P.3d 640, Plexico argues the jury instructions
were erroneous because they inadequately articulated the mens
rea 	requirement 	of 	the 	crime. 	In 	Geukgeuzian 	I, 	this 	court
determined it was reversible error for the trial court to omit
“language referring to the required mental state” of the charged
crime. Id. ¶ 9. In that case, the defendant was also charged with
witness tampering. Id. ¶ 1. The trial court gave an instruction to
the jury that “closely tracked the language of [Utah Code section
76-8-508].” Id. ¶ 9. But it “[did] not specify the culpable mental
state required for attempting or inducing a person as described
in the statute.” Id. Determining that the lack of a mens rea
instruction 	is 	reversible 	error, 	this 	court 	explained 	that
“[b]ecause section 76-8-508 specifies no mens rea for the attempt
or inducement element, the required mental state is governed by
Utah Code Ann. § 76-2-102,” which provides that knowledge or
recklessness “shall suffice to establish criminal responsibility” in
“[e]very 	offense 	not 	involving 	strict 	liability.” 	Id. 	¶¶ 	8–9
(citations and internal quotation marks omitted). On certiorari,
the 	Utah 	Supreme 	Court 	reversed 	Geukgeuzian 	I 	on 	other

State v. Plexico
20140590-CA 	15 	2016 UT App 118
grounds, holding that a jury instruction “may not be assigned as
error” if a party “affirmatively represented to the court that he or
she had no objection to the jury instruction.” State v. Geukgeuzian
(Geukgeuzian II), 2004 UT 16, ¶ 9, 86 P.3d 742.
¶27 	Like the defendant in Geukgeuzian I, Plexico argues that
the 	trial 	court 	committed 	plain 	error 	because 	the 	jury
instructions it gave articulated no mens rea. See 2002 UT App
130, ¶ 9. She also argues that, although defense counsel did not
object to the jury instructions, this did not invite the court’s error
because “there was no affirmative action taken with regard to
the elements instruction.” See Geukgeuzian II, 2004 UT 16, ¶ 9.
The State responds that this error was invited because defense
counsel affirmatively stated he had “no objection to the jury
instructions.” See id. In our view, the parties’ arguments miss the
mark.
¶28 	Although the Geukgeuzian cases seem analogous, they are
inapposite to Plexico’s case. In the Geukgeuzian cases, as the
supreme 	court 	pointed 	out, 	neither 	the 	State’s 	nor 	the
defendant’s proposed instructions “contained direct reference to
a separate culpable mental state apart from the language of the
statute requiring that a defendant act ‘believing that an official
proceeding 	or 	investigation 	is 	pending 	or 	about 	to 	be
instituted.’” Id. ¶ 4 (quoting Utah Code Ann. § 76-8-508(1)).
There was also no separate mens rea requirement instruction,
and the court read only those instructions proposed by the
parties. 	See 	id. 	Thus, 	the 	court 	never 	instructed 	the 	jury
regarding 	the 	required 	mental 	state 	of 	the 	offense 	in 	any
manner. See id.
¶29 	Here, the trial court more than adequately instructed the
jury regarding the required mens rea of the offense. Specifically,
it read jury instruction ten, which stated, “In this case the
plaintiff must prove that defendant engaged in the alleged
criminal conduct and that the defendant did so intentionally,

State v. Plexico
20140590-CA 	16 	2016 UT App 118
knowingly or recklessly with respect to each element of the
crime.” The court then read jury instruction eleven, which stated
the 	statutory 	elements 	of 	tampering 	with 	a 	witness. 	Even
further, in instruction twelve, the court instructed the jury that a
person acts “knowingly or within knowledge with respect to his
conduct or the circumstances surrounding his conduct when he
is 	aware 	of 	the 	nature 	of 	his 	conduct 	or 	the 	existing
circumstances.” It also defined “intentionally.”
¶30 	“‘The general rule for jury instructions is that an accurate
instruction upon the basic elements of an offense is essential.’”
State v. Beckering, 2015 UT App 209, ¶ 10, 358 P.3d 1131 (quoting
State v. Bird, 2015 UT 7, ¶ 14, 345 P.3d 1141). “To determine if
jury instructions correctly state the law, 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.” Id. (citations and internal quotation
marks omitted). Thus, “[i]f taken as a whole they fairly instruct
the jury on the law applicable to the case, the fact that one of the
instructions, standing alone, is not as accurate as it might have
been is not reversible error.” State v. Harper, 2006 UT App 178,
¶ 14, 	136 	P.3d 	1261 	(citation 	and 	internal 	quotation 	marks
omitted).
¶31 	Even though the elements instruction did not articulate
the culpable mental state required for attempting or inducing a
person to act, the court clearly instructed the jury that to find
Plexico 	guilty, 	it 	must 	find 	that 	she 	acted 	“knowingly 	or
recklessly with respect to each element of the crime.” The court
verbally instructed the jurors, and provided written instructions
ten and twelve, which informed it of the required mens rea and
explicitly defined “knowingly” and “intentionally.” Thus, when
considered as a whole, the jury instructions accurately instructed
the jury of the basic elements of the offense and the required
mens rea. We therefore conclude the instructions were not
erroneous.

State v. Plexico
20140590-CA 	17 	2016 UT App 118
CONCLUSION
¶32 	In sum, we affirm Plexico’s conviction. Based on the plain
language of the statute, and in light of the evidence in the record,
we 	cannot 	conclude 	that 	“reasonable 	minds 	must 	have
entertained a reasonable doubt [as to] the essential elements” of
the tampering with a witness charge. See State v. Nielsen, 2014 UT
10, ¶ 49, 326 P.3d 645 (citation and internal quotation marks
omitted). Moreover, the court did not exceed its discretion when
it refused to allow the jury to hear evidence that Plexico was
acquitted of the underlying assault charges. Finally, because the
verbal and written instructions properly informed the jury of the
required mens rea for the offense, there was no error in the jury
instructions—invited or otherwise. We therefore affirm.