State v. Cissel

2024 UT App 139

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CORY T. CISSEL,
Appellant.

Opinion
No. 20220963-CA
Filed October 3, 2024

Fourth District Court, Heber Department
The Honorable Jennifer A. Mabey
No. 201500253

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee

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

MORTENSEN, Judge:

¶1 A sheriff’s deputy detected the odor of alcohol wafting
from the breath of the driver he had just stopped for speeding
along a curvy road in the wee hours of the morning. A subsequent
test revealed a blood alcohol content (BAC) of .10 and the
presence of a metabolite of cocaine in the driver’s system. A jury
convicted that driver, Cory T. Cissel, of driving under the
influence (DUI). Cissel now argues that a jury instruction was
flawed, leading to a potential lack of unanimity, and that his trial
counsel (Counsel) should have sought suppression of the
metabolite evidence. We affirm.
State v. Cissel

BACKGROUND

¶2 Shortly after midnight one October morning in 2020, a
deputy stopped a car for going 54 miles per hour in a 40-mile-per-
hour zone where the road was “hilly and curvy.” The deputy
found Cissel behind the wheel, and as he asked for Cissel’s driver
license, the deputy could “smell the odor of alcohol coming from
his breath.” When asked if he had anything to drink, Cissel
replied that he had “something to drink” “about three hours”
earlier “at a wedding,” but Cissel assured the deputy that “he was
being safe.”

¶3 After verifying Cissel’s insurance and license, the deputy
asked Cissel to exit his car. The deputy continued to smell the
odor of alcohol coming from Cissel’s mouth as he talked to him.
He also recalled that Cissel “was a little bit unsteady on his feet.”
The deputy then administered three standardized field sobriety
tests (FSTs) to Cissel: a nystagmus test, a walk-and-turn test, and
a one-legged-stand test. Based on Cissel’s performance of these
tests, the deputy determined that Cissel “was not safe to be
operating a motor vehicle due to intoxication.” The deputy
requested that Cissel complete a portable breath test, but Cissel
“didn’t perform that test.”

¶4 The deputy arrested Cissel, and while Cissel was in jail, the
police collected a blood sample from him. The test result indicated
that Cissel’s BAC was .10. Cissel’s blood also tested positive for
benzoylecgonine (a metabolite of cocaine that indicates recent
use), THC (the principal psychoactive component of marijuana),
and two metabolites of THC.

¶5 Cissel was charged with one count of DUI and other
offenses. The court bound Cissel over, and Cissel pled not guilty.
The State subsequently dismissed all counts but the DUI charge
before trial.

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State v. Cissel

¶6 At trial, the deputy testified to the events as described
above, namely that he had pulled Cissel over because he was
speeding, that he could smell alcohol on Cissel’s breath, that he
observed Cissel was unsteady and administered the FSTs, that he
determined that Cissel was impaired, and that Cissel’s blood was
drawn at the jail and sent to the state lab for testing. On cross-
examination, Counsel focused on the deputy’s physical handling
of the blood sample after it was drawn and before it was sent to
the lab.

¶7 Two forensic toxicologists from the state lab also testified.
As relevant here, the first toxicologist testified that Cissel’s BAC
measured .10. On cross-examination, Counsel asked a number of
questions about the chain of custody of the blood sample. The
second toxicologist testified that Cissel’s blood tested positive for
benzoylecgonine, which he indicated was a metabolite of cocaine.
On cross-examination, when asked if his testimony was that there
was cocaine in Cissel’s blood sample, the second toxicologist
clarified, “My testimony is that there’s the metabolite of cocaine,
which is what is left after cocaine has been utilized by the body as
it’s trying to use it up and get rid of it.” Additionally on cross-
examination, Counsel focused some of his questions on chain-of-
custody issues.

¶8 After the State rested, Counsel made a directed verdict
motion based on an alleged chain-of-custody problem with the
blood sample, which the court denied. Also at this point in the
trial, the jury instructions and special verdict form were finalized.
The discussion about the instructions and special verdict form
took place during a break, which was not recorded. On the record,
however, the court summarized that the instructions were
modified to include instructions about Cissel testifying and to
remove instructions about Cissel not testifying. In addition, the
court noted that a resolution was reached about the special verdict
form including an enhancement based on Cissel’s previous DUI
convictions. No objection was stated on the record.

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State v. Cissel

¶9 After recess, Cissel began his defense by taking the stand.
He testified that he had attended a wedding on the day of the
incident. He insisted that he consumed “no more than” sixteen
ounces of beer at around 5:30 p.m. and half a glass of champagne
at around 7:00 p.m. He further testified that he had “[j]uice, water,
ginger ale and Coke” because he wanted to ensure that he would
“be operating any kind of vehicle” in “a safe manner.” Based on
his height and weight and the amount of alcohol he had, Cissel
agreed with Counsel that he had considered it “safe for [him] to
drive,” especially by midnight.

¶10 Referring to the testimony about the blood sample, the
following exchange took place between Counsel and Cissel:

Counsel: Okay. Now, . . . you’ve heard testimony
about a blood sample?
Cissel: Yes.
Counsel: Did you use cocaine?
Cissel: No.
Counsel: If there’s cocaine or cocaine metabolite in
that blood sample, is that your blood sample?
Cissel: No.
Counsel: So a blood sample that’s over .05, is that
your blood sample?
Cissel: If I’m correct on knowing how that works, no,
that my blood level would not have been that
high.
Counsel: Okay. And your blood sample would not
have cocaine in it?
Cissel: No.

¶11 After Cissel testified, the defense rested its case. As
relevant here, Instruction 24 stated that to convict Cissel of DUI,

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the jury had to find beyond a reasonable doubt each of the
following elements:

1. That on or about October 4, 2020;
2. In Wasatch County;
3. The defendant, CORY CISSEL,
4. Did operat[e] or was in actual physical
control of a vehicle; and
a. Had sufficient alcohol in his body that a subsequent
chemical test showed that the defendant had a
blood or breath alcohol concentration of .08[1] grams
or greater at the time of the test; or
b. Was under the influence of alcohol, any drug, or the
combined influence of alcohol and any drug to a
degree that rendered the defendant incapable of
safely operating a vehicle; or
c. Had a blood or breath alcohol concentration of .08
grams or greater at the time of operation or actual
physical control.

See Utah Code § 41-6a-502(1) (providing the statutory foundation
for the instruction). The jury was also instructed, “Because this is
a criminal case, every single juror must agree with the verdict
before the defendant can be found guilty or not guilty.”

¶12 During closing argument, the prosecutor explained that
the jury had to find beyond a reasonable doubt only one of the
three theories identified in Instruction 24. But he added that he

1. Oddly, the jury instruction and the prosecutor referred to a BAC
of .08 as being the threshold for intoxication. This appears to have
been in error. The correct number is .05, and it has been so since
December 30, 2018. See Act of Mar. 8, 2017, ch. 283 § 3, 2017 Utah
Laws 1342, 1343. This apparent error had no bearing on Cissel’s
conviction since his BAC exceeded both concentrations.

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wanted “to really focus on the first one,” which was whether
Cissel had “sufficient alcohol in his body that a subsequent
chemical test showed that [he] had a blood or breath alcohol
concentration of .08 grams or greater at the time of the test.” The
prosecutor then said, “In my hand I have the results of the test.
This says that the results of the subsequent chemical test show
that the defendant had a blood alcohol level of .10, which is higher
than .08. Based on that, if you believe this document and you
believe the other things that I’ve told you, you must find [Cissel]
guilty based on” the first theory identified in Instruction 24.

¶13 In his closing argument, Counsel explicitly asserted that
the blood sample did not belong to Cissel: “We’re asking for a not
guilty verdict in this case. The document you have, there’s no
proof that that’s his blood, none at all. . . . [T]here’s actually no
proof that it’s the defendant’s blood [in] that sample.” Along these
lines, Counsel asked the jury to consider alleged problems with
the chain of custody that could have compromised the testing of
the sample. Of particular importance, Counsel noted the presence
of benzoylecgonine in the sample, which he said proved that it
could not belong to Cissel, who had testified that he hadn’t used
cocaine.

¶14 The jury convicted Cissel of DUI. And because he had
previously been convicted of two or more DUIs within the
preceding ten years, the offense could also be enhanced. See id.
§ 41-6a-502(2)(c)(i). So, following his DUI conviction, evidence of
Cissel’s previous DUI convictions was presented, and the jury
returned an enhancement on the conviction.

ISSUES AND STANDARDS OF REVIEW

¶15 Cissel appeals, asserting that Counsel was ineffective for
not seeking a specific unanimity instruction or special verdict
form for DUI. In a similar vein, Cissel also claims that the district
court plainly erred by not sua sponte issuing a specific unanimity

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instruction or special verdict form for DUI. Cissel’s final claim is
that Counsel was ineffective for not moving to suppress the
benzoylecgonine evidence or testimony about the presence of
benzoylecgonine.

¶16 “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.” State v. Lisenbee,
2022 UT App 19, ¶ 8, 505 P.3d 523 (cleaned up). “Plain error is a
question of law reviewed for correctness.” State v. Popp, 2019 UT
App 173, ¶ 19, 453 P.3d 657 (cleaned up).

ANALYSIS

I. Jury Instruction Claims

¶17 Cissel first claims that Counsel rendered ineffective
assistance by not seeking a specific unanimity instruction or a
special verdict form to ensure that the members of the jury relied
on the same subparagraph of Instruction 24 in reaching a verdict.
Cissel relatedly contends that the district court committed plain
error in not giving a specific unanimity instruction or providing a
special verdict form. Cissel points to the three subparagraphs of
Instruction 24, see supra ¶ 11, as creating the unanimity problem,
arguing that some jurors might have agreed on one of the
subparagraphs while others might have selected another. Cissel
asserts “that the jury had to agree on at least one of the alternatives
unanimously,” but given the composition of Instruction 24, he
claims that there is simply “no way of knowing whether the jury
was unanimous as to any particular alternative.”

¶18 “To succeed on a claim of ineffective assistance of counsel,
an appellant must show, first, that counsel’s performance was
deficient and, second, that the deficient performance prejudiced
the defense.” State v. Rosen, 2021 UT App 32, ¶ 8, 484 P.3d 1225

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(cleaned up). “Because failure to establish either prong of the test
is fatal to an ineffective assistance of counsel claim, we are free to
address [an ineffective assistance claim] under either prong.”
Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. And “to demonstrate
plain error, a defendant must establish that (i) an error exists; (ii)
the error should have been obvious to the trial court; and (iii) the
error is harmful . . . . If any one of these requirements is not met,
plain error is not established.” State v. Dean, 2004 UT 63, ¶ 15, 95
P.3d 276 (cleaned up). In this case, we conclude that a reasonable
attorney could have concluded, based on the state of Utah’s
unanimity case law, that there was no unanimity problem with
Instruction 24 or the verdict form. And for the same reason, the
district court did not commit any obvious error by not stepping
in, sua sponte, to amend the instructions or the verdict form.

¶19 The Utah Constitution provides, “In criminal cases the
verdict shall be unanimous.” Utah Const. art. I, § 10 (Unanimous
Verdict Clause). Utah courts have understood this clause “is not
met if a jury unanimously finds only that a defendant is guilty of
a crime” but does not necessarily reach a unanimous finding as to
which crime. See State v. Mottaghian, 2022 UT App 8, ¶ 55, 504 P.3d
773 (cleaned up), cert. denied, 525 P.3d 1256 (Utah 2022). Rather,
our constitution “requires unanimity as to each count of each
distinct crime charged by the prosecution and submitted to the
jury for decision.” Id. (cleaned up). In other words, “a generic
‘guilty’ verdict that does not differentiate among various charges
would fall short,” as would a “verdict of ‘guilty of some crime,’”
because it “would not tell us whether the jury was unanimous in
finding guilt on any individual crime.” State v. Hummel, 2017 UT
19, ¶¶ 26–27, 393 P.3d 314. But there isn’t a unanimity problem if
“either the State [informs] the jury which act to rely upon for each
charge during its deliberations or the district court [instructs] the
jury to agree on the specific criminal act for each charge in order
to convict.” State v. Santos-Vega, 321 P.3d 1, 7 (Kan. 2014), quoted
with approval in Mottaghian, 2022 UT App 8, ¶ 58, and State v. Paule,
2021 UT App 120, ¶ 43, 502 P.3d 1217, aff’d, 2024 UT 2, and State v.

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Case, 2020 UT App 81, ¶ 23, 467 P.3d 893, and State v. Alires, 2019
UT App 206, ¶ 22, 455 P.3d 636.

¶20 In addition, Utah law does not appear to require unanimity
“on alternate manners or means of fulfilling an element of a
crime.” Hummel, 2017 UT 19, ¶ 30. For example, there might be
multiple theories behind a charge of theft, but “those ‘theories’ do
not represent distinct criminal offenses with different elements in
our substantive criminal law. Instead, they are definitional
examples—and non-exhaustive ones—of the various means by
which someone may commit the single offense of theft.” Id. ¶ 58. 2
To illustrate, the Utah Supreme Court offered this example:

The relevant parallel here would be to . . . a murder
case with evidence of two alternative means by
which it was committed—by poison and by
suffocation. There is no distinct crime of murder by
poison or murder by suffocation. And for that
reason it cannot be said that these distinct theories
or means of committing the murder are legally
distinct, or more importantly, that they are legal
elements that must be found unanimously by the
jury to have a valid conviction under the
Unanimous Verdict Clause.

Id. ¶ 62. As the court pointed out, “[i]f unanimity is required as to
anything we could call a distinct ‘theory’ of a crime, our juries
would be required to agree on every minute detail presented by
the evidence—on whether a murder was caused by suffocation or
poisoning, or whether a shoplifter placed a stolen item in his
pocket or backpack.” Id. ¶ 64. This, the court warned, “would set
us on a slippery slope without a logical endpoint” that would

2. In discussing theft through deception or extortion, the Utah
Supreme Court was relying on the statutory scheme in effect at
the time. See Utah Code §§ 75-6-405(2)(a), -406(1) (2017).

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divorce “the requirement of unanimity from the elements set forth
in the substantive criminal law” and “open the door to the
argument that any and every detail presented by the evidence
implicates a distinct ‘theory’ of the crime charged.” Id.

¶21 Under this rubric, unanimity cases that have required the
presence of a specific unanimity instruction, insofar as we are
aware, have all been multiple-act cases, meaning that they
generally follow a pattern where the number of potentially illegal
discrete acts identified by the prosecution exceeds the number of
charged acts. Most recently, our supreme court determined that a
jury instruction was defective for leading jurors to believe that it
was acceptable to render a non-unanimous verdict in a case where
evidence of three instances of touching was “not specifically
attached” to two charged counts of sexual abuse of a child. State
v. Baugh, 2024 UT 33, ¶¶ 38, 53; see also State v. Mendoza, 2021 UT
App 79, ¶¶ 1, 6, 496 P.3d 275 (one count of obstruction of justice
where evidence of multiple obstructive acts was presented);
Alires, 2019 UT App 206, ¶ 22 (in a case involving the sexual abuse
of two children, four counts of abuse for six touchings of one child
and two counts of abuse for two undifferentiated touchings of the
other child).

¶22 A multiple-act unanimity issue may also present itself
when a defendant is charged with multiple counts but the jury
instructions do not “connect any of the acts . . . to a particular
count.” See State v. Chadwick, 2024 UT 34, ¶ 59. In Chadwick, the
defendant was charged with four counts of sexual abuse of a
child. But the jury instructions “did not instruct the jury that it
must unanimously agree on which instance of touching
support[ed] each count on which it” found the defendant guilty.
Id. Our supreme court stated that “our confidence in the
unanimity of a verdict is low in multiple-act cases when the
defendant is charged with multiple counts of the same crime and
the jury instructions do not connect a particular act to each count.”
Id. ¶ 45 (emphasis added).

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State v. Cissel

¶23 These are not the patterns we encounter with Cissel. The
jury instruction identified only one act: operating a vehicle on the
particular date and time in question while under the influence of
a substance. The DUI statute—as reflected by Instruction 24—lists
three ways the State can show a person committed the single act
of operating that vehicle at one time while under the influence: (a)
by having a BAC of .05 grams or greater at the time of a
subsequent chemical test; (b) by being “under the influence of
alcohol, any drug, or the combined influence of alcohol and any
drug to a degree that renders the actor incapable of safely
operating a vehicle”; or (c) by having “a blood or breath alcohol
concentration of .05 grams or greater at the time of operation.”
Utah Code § 41-6a-502(1). 3 These three means or manifestations
of being under the influence do not represent separate acts on the
part of the defendant. Rather, they are the three ways available to
the State to show that a charged individual had committed the
single act of driving under the influence.

¶24 Here, competent counsel who was familiar with this case
law could have reasonably concluded that there was no
unanimity problem with Instruction 24 because it identified not
three separate acts but three alternative means of satisfying the
element of being under the influence. In like manner—given that
there was one charge, one act, and one crime—there is no clear
precedent that would have alerted the district court that a
unanimity issue existed with Instruction 24. One charge for one
act simply doesn’t fit the paradigm readily apparent in our case
law that would have alerted Counsel or the district court to any
unanimity issue with Instruction 24.

¶25 In sum, given the state of Utah’s unanimity case law, Cissel
has failed to demonstrate that Counsel performed deficiently, and
he has likewise failed to show that the district court committed

3. Again, the instruction was at odds with the statute as it had
been amended. See supra note 1.

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any obvious error. We therefore reject Cissel’s claims of ineffective
assistance and plain error related to the unanimity issue.

II. Suppression of Benzoylecgonine Evidence

¶26 Cissel next asserts that Counsel rendered ineffective
assistance for not moving to suppress the benzoylecgonine
evidence or testimony about the presence of benzoylecgonine.
More specifically, Cissel argues that Counsel should have filed a
motion in limine to exclude the benzoylecgonine evidence
because of its prejudicial nature.

¶27 To succeed on an ineffective-assistance claim, an appellant
must show that “counsel’s performance was deficient in that it fell
below an objective standard of reasonableness.” State v. Isom, 2015
UT App 160, ¶ 35, 354 P.3d 791 (cleaned up). In an effort “to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time,” an appellate
“court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689
(1984) (emphasis added) (cleaned up). After all, “[t]here are
countless ways to provide effective assistance in any given case,”
and “[e]ven the best criminal defense attorneys would not defend
a particular client in the same way.” Id.

¶28 While in hindsight it might appear that making no attempt
to exclude the benzoylecgonine evidence was unwise, allowing
this evidence was central to the defense that Counsel advanced at
trial, and it is not our place to deny Counsel the indulgence that
his conduct fell “within the wide range of reasonable professional
assistance.” Id. In other words, Counsel reasonably declined to
object to the benzoylecgonine evidence because he had a viable
strategic reason for including it.

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¶29 This case turned on the results of the blood test, which
documented that Cissel had a BAC of .10, along with
benzoylecgonine (the cocaine metabolite), THC, and THC
metabolites in his blood. Cissel now claims that Counsel should
have done more to exclude the benzoylecgonine evidence. 4 But
even without the benzoylecgonine evidence, the blood test
presented rather damning evidence that Cissel’s BAC was well
above the legal limit. Thus, it would have been little help to get
the benzoylecgonine evidence suppressed if Counsel still had to
deal with the .10 BAC evidence. Instead, he needed to discredit
the results of the blood test in its entirety. This is exactly what he
tried to do. And he used the benzoylecgonine evidence to aid in
this endeavor.

¶30 Counsel explicitly used the benzoylecgonine evidence to
discredit the blood test. On direct examination, he asked Cissel if
he had heard the testimony about the blood test. Then he asked
Cissel if he used cocaine. Cissel denied doing so. Then Counsel
asked the following pointed question: “If there’s cocaine or
cocaine metabolite in that blood sample, is that your blood
sample?” Cissel responded unequivocally, “No.” Counsel then
immediately followed up by asking Cissel if his blood sample
would have tested over the legal limit. Cissel answered that,
based on his knowledge, his BAC “would not have been that
high.” And to drive the point home, Counsel revisited the first
question: “And your blood sample would not have cocaine in it?”
Again, Cissel responded in the negative.

¶31 From this exchange, it’s clear that the benzoylecgonine
evidence played a pivotal role in Counsel’s defense strategy to
convince the jury that the blood sample didn’t belong to Cissel. In
addition to casting doubt on the chain of custody, Counsel

4. There is no indication in the record that the THC-related
evidence was presented to the jury, and Cissel makes no assertion
that it was.

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pointed to the benzoylecgonine evidence as proof that the blood
sample could not have belonged to Cissel. The message Counsel
was trying to convey was clear: Cissel didn’t use cocaine; so, if
that sample tested positive for benzoylecgonine, it could not have
belonged to Cissel. In other words, the benzoylecgonine fit
perfectly with Counsel’s theory of the case that the blood test
wasn’t valid because the sample didn’t come from Cissel. Rather
than attempting to have the benzoylecgonine evidence excluded,
Counsel had a reasonable strategic reason for its inclusion.

¶32 Because Counsel had a strategically reasonable basis for
including the benzoylecgonine evidence, the claim of ineffective
assistance fails. See State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350
(“If the court concludes that the challenged action might be
considered sound trial strategy, it follows that counsel did not
perform deficiently.” (cleaned up)); see also State v. Whytock, 2020
UT App 107, ¶ 27, 469 P.3d 1150 (“In evaluating counsel’s
performance, courts often examine whether counsel had a
strategic reason for taking the challenged action.”).

CONCLUSION

¶33 Cissel’s claims fail. There were no problems with the jury
instruction sufficient to support Cissel’s claims of ineffective
assistance or plain error. And Counsel had a reasonable strategic
purpose for including the benzoylecgonine evidence.

¶34 Affirmed.

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