State v. Lisenbee

2022 UT App 19

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
EARON WILLIAM EDWARD LISENBEE,
Appellant.

Opinion
No. 20200155-CA
Filed February 10, 2022

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 161904667

Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 Earon Lisenbee brutally attacked a friend after a
disagreement over the status of their relationship, inflicting
serious permanent injuries and nearly causing her death. As a
result of the attack, Lisenbee was charged with, among other
things, attempted murder. After a three-day trial, a jury
convicted Lisenbee of attempted murder. Lisenbee now appeals
that conviction, arguing that his trial attorney rendered
ineffective assistance by failing to object to allegedly erroneous
jury instructions. We affirm.
State v. Lisenbee

BACKGROUND1

¶2 Lisenbee and Rebecca2 had been working on some
artwork, and Lisenbee invited Rebecca over to his apartment,
ostensibly to discuss that artwork. Shortly after Rebecca arrived
at the apartment, an argument ensued about the status of their
relationship, with Lisenbee expressing that he wanted to be
more than just friends. At that point, Rebecca attempted to leave
the apartment and began making her way to the front door, but
Lisenbee pushed her back and prevented her from leaving. Due
to the severity of her head injuries, Rebecca remembers very
little about what came next. But she does remember that
Lisenbee pinned her to the ground, by placing his knee on her
chest, and hit her with his fists. She also remembers that at one
point, Lisenbee stopped hitting her with his fists and instead
began hitting her in the face and ribs with something shiny,
which she believed was an exercise weight.

¶3 Sometime after the attack, Lisenbee called a friend
(Friend) and said, “I think I killed her.” Thinking it was a joke,
Friend initially hung up. Lisenbee continued to call Friend, and
during these various phone calls he told Friend that he had “beat
her with a hammer” and that he wanted Friend’s help disposing
of her body. During one of the calls, Friend could hear
“somebody gurgling on blood” in the background; at that point,
Friend became concerned that someone was actually hurt and
called the police. Around this same time, Lisenbee also received

1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Rosen, 2021 UT App 32, n.1, 484 P.3d 1225
(quotation simplified).

2. A pseudonym.

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State v. Lisenbee

a text message from another friend asking how he was doing, to
which Lisenbee replied, “I just murder” and “not lying.”

¶4 When police arrived at Lisenbee’s apartment, they
observed broken glass and blood on the floor, and it was
“immediately evident” to them that “something bad . . . had
taken place.” Police eventually found Lisenbee and Rebecca
inside a locked bedroom, with Rebecca unconscious on the floor
and Lisenbee lying down next to her. Both Lisenbee and Rebecca
were “covered with blood,” and Rebecca’s face was beaten so
badly that it appeared “almost flat,” as if “the orbital bones were
caved in.” Police also observed multiple teeth lying on the
bedroom floor. Rebecca was immediately rushed to the hospital,
and police took Lisenbee into custody. Later, during a search of
the apartment, police found a bloody hammer concealed
underneath a pair of shorts in the bedroom closet.

¶5 After investigation, the State charged Lisenbee with
attempted murder, aggravated kidnapping, mayhem, and
assault. The case proceeded to a jury trial, which lasted three
days. At trial, the State presented testimony from Rebecca,
Friend, several law enforcement officers, and various medical
professionals who had treated Rebecca’s injuries. In addition to
testifying about what she remembered regarding the attack,
Rebecca described the injuries she had sustained: her right arm
and several fingers were broken, as was “every single bone” in
her face; she had three hematomas—“big balls of pus and
blood”—on her head; and all the teeth on the right side of her
mouth were knocked out. Rebecca testified that, as a result of her
injuries, she has “a hard time breathing” and “can’t sleep more
than an hour at a time,” that she is now blind in her right eye,
and that she “feel[s] pain all the time.” In addition to confirming
the extent and severity of Rebecca’s injuries, the physicians who
treated Rebecca testified that had she not received timely
treatment, she would have died.

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State v. Lisenbee

¶6 After presentation of the evidence, the trial court
instructed the jury. With regard to the attempted murder charge,
the court’s instruction stated that the jury could not convict
Lisenbee unless it was able to find, beyond a reasonable doubt,
that Lisenbee had “[i]ntentionally or knowingly attempted to
cause the death of [Rebecca] and the defense of intoxication does
not apply.” And the instruction for attempt stated that:

A person is guilty of an attempt to commit a crime
if he:

a. Engages in conduct constituting a
substantial step toward the commission
of the crime; and

b. Intends to commit the crime; or

c. When causing a particular result is an
element of the crime, he acts with an
awareness that his conduct is reasonably
certain to cause that result.

The attempt instruction also stated that “[c]onduct constitutes a
substantial step if it strongly corroborates the actor’s mental
state.”

¶7 The jury ultimately acquitted Lisenbee of mayhem, but
convicted him of attempted murder, aggravated kidnapping,
and assault. Later, the trial court sentenced Lisenbee to prison.

ISSUE AND STANDARD OF REVIEW

¶8 Lisenbee now appeals his conviction for attempted
murder, and asserts that his trial attorney rendered ineffective

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State v. Lisenbee

assistance by failing to object to allegedly erroneous jury
instructions regarding the attempted murder charge.3 “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. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).

ANALYSIS

¶9 To establish that his attorney was ineffective, Lisenbee
must show both (1) that his attorney’s performance was
deficient, in that it “fell below an objective standard of
reasonableness,” and (2) that this deficient performance
“prejudiced the defense” such that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the

3. In his principal brief, Lisenbee also claims that the trial court
committed plain error by giving the allegedly erroneous jury
instruction relating to the attempted murder charge. In his reply
brief, however, Lisenbee concedes that, because his trial attorney
submitted proposed jury instructions that included the same
language to which he now ascribes error, he invited any error
and is therefore precluded from asserting plain error on appeal.
See State v. Perdue, 813 P.2d 1201, 1205 (Utah Ct. App. 1991)
(holding that invited error precluded a party—outside the
context of an ineffective assistance claim—from appealing a jury
instruction that the party requested); see also State v. Popp, 2019
UT App 173, ¶ 23, 453 P.3d 657 (stating that “in the context of
jury instructions . . . an instruction is not subject even to plain
error review if counsel, in response to a question from the court
about whether counsel has any objection to the instruction,
answers in the negative”). Accordingly, we need not consider
any claim that the trial court committed plain error.

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State v. Lisenbee

result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 687–88, 694 (1984); accord State v. Scott,
2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 12, ¶ 24, 469
P.3d 871. “A defendant must satisfy both parts of this test in
order to successfully establish ineffective assistance.” State v.
Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150. Thus, “it is
unnecessary for a court to address both components of the
inquiry if we determine that a defendant has made an
insufficient showing on one.” Id. (quotation simplified).

¶10 The first part of the test requires Lisenbee to show that his
attorney’s performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified).
In evaluating counsel’s actions, courts will often look to whether
those actions were motivated by a reasonable trial strategy. See
id. ¶ 35 (“[T]he performance inquiry will often include an
analysis of whether there could have been a sound strategic
reason for counsel’s actions.”). And while “the ultimate question
is not whether there was a possible strategic reason for counsel’s
conduct, but instead whether that conduct was objectively
reasonable,” id., “[i]f it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance,” Ray, 2020
UT 12, ¶ 34.

¶11 Lisenbee claims that his attorney performed deficiently by
failing to object to erroneous jury instructions regarding the
attempted murder charge. Specifically, he claims that the
instruction erroneously permitted the jury to convict him of
attempted murder based on a knowing mental state—as opposed
to an intentional mental state—in violation of our supreme
court’s guidance in State v. Casey, 2003 UT 55, 82 P.3d 1106.4

4. In addition to Casey, Lisenbee relies on State v. Apodaca, 2018
UT App 131, 428 P.3d 99, aff’d, 2019 UT 54, 448 P.3d 1255, but
(continued…)

20200155-CA 6 2022 UT App 19
State v. Lisenbee

Thus, because the jury instructions allegedly “set[] a lower
threshold of mental culpability than that which [was] required,”
Lisenbee asserts that the instructions were erroneous and that
his trial attorney performed deficiently by not objecting to them.

¶12 As noted above, the court instructed the jury that it could
not convict Lisenbee of attempted murder unless it was able to
find that he had “[i]ntentionally or knowingly attempted to
cause the death of [Rebecca].” And the court further instructed
the jury that a person is guilty of an attempt crime if he
“[e]ngages in conduct constituting a substantial step toward the
commission of the crime” and either “[i]ntends to commit the
crime” or “acts with an awareness that his conduct is reasonably
certain to cause that result.” Lisenbee correctly asserts that these
instructions allowed the jury to convict him of attempted
murder based on a knowing mental state. But Lisenbee is
incorrect when he asserts that such instructions are contrary to
Utah law applicable at the time of the offense.

¶13 In Casey, the defendant was charged with, among other
things, attempted murder. See id. ¶ 6. Regarding that charge, the
trial court instructed the jury that the required mental state was
“intentionally or knowingly.” Id. ¶ 8 (quotation simplified). The

(…continued)
that case is easily distinguishable. In Apodaca, the defendant was
charged with aggravated robbery, a crime that—unlike the
murder crime charged here, which allows conviction for both
knowing and intentional conduct, see Utah Code Ann. § 76-5-
203(2)(a) (LexisNexis 2017)—allows conviction only for
intentional conduct. See 2018 UT App 131, ¶ 76. Moreover, the
defendant in Apodaca was not charged with an attempt crime,
and therefore the attempt statute—the statute at issue in Casey—
did not factor into the court’s analysis. See id. ¶ 68. Thus, Apodaca
is of no assistance to Lisenbee in this case.

20200155-CA 7 2022 UT App 19
State v. Lisenbee

jury found the defendant guilty of attempted murder and the
defendant appealed that conviction, arguing that the jury
instructions were erroneous because they “permitted the jurors
to find [the defendant] guilty if they determined he acted with
an intentional or knowing state of mind.” Id. ¶ 9. On appeal, our
supreme court held that “an attempted murder conviction
requires proof that the defendant acted intentionally,” not just
knowingly. See id. ¶ 12.

¶14 In so holding, however, the court applied a version of the
attempt statute that has since been materially amended. See id.
¶¶ 12, 15. At the time Casey was decided, our attempt statute
stated that “a person is guilty of an attempt to commit a crime if,
acting with the kind of culpability otherwise required for the
commission of the offense, he engages in conduct constituting a
substantial step toward commission of the offense.” See Utah
Code Ann. § 76-4-101(1) (LexisNexis 2003). The statute further
clarified that “conduct does not constitute a substantial step
unless it is strongly corroborative of the actor’s intent to commit
the offense.” Id. § 76-4-101(2) (emphasis added). Relying on this
language, the Casey court ultimately concluded that, “to be
convicted of attempted murder, a defendant’s actions must
constitute a substantial step toward causing the death of another,
and the substantial step must indicate his or her intent to commit
the crime.” Casey, 2003 UT 55, ¶ 15. In particular, the court noted
that Utah’s attempt statute, which was “based on” the Model
Penal Code’s (MPC) definition of attempt, nevertheless did not
parallel the MPC when it came to mens rea. See id. ¶¶ 26–29.

¶15 Under the MPC’s “formulation of attempt,” a person
could “be convicted of an attempt crime if the person acted in
one of two ways: ‘purposely engaging in conduct,’ or, ‘when
causing a particular result is an element of the crime, doing
anything with the purpose of causing or with the belief that it
will cause such result without further conduct on his part.’” Id.
¶ 28 (quoting Model Penal Code § 5.01(1)(a), (b) (1985)). Under

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State v. Lisenbee

Utah’s attempt statute, by contrast, intentional conduct was
required. Id. ¶ 26; see also id. ¶ 29 (“Though the [MPC] would
allow a conviction for attempt based on knowledge alone, Utah’s
attempt statute does not.”). The court concluded its analysis by
noting that, “[b]ecause the Utah legislature did not adopt the
particular wording of the [MPC] that would have allowed a
knowing attempt, we assume that it did so deliberately in order
to limit the reach of the attempt statute to intentional conduct.”
Id. ¶ 29.

¶16 In the wake of Casey, however, our legislature amended
the attempt statute, specifically adding language similar to the
missing MPC language whose absence the Casey court had
found notable. See Criminal Offense Attempt Amendments, ch.
154, § 1, 2004 Utah Laws 625, 625; see also Casey, 2003 UT 55,
¶¶ 26–29. The post-amendment version of the statute—which
was in effect at the time of the events giving rise to this case—
states that “a person is guilty of an attempt to commit a crime if
he . . . engages in conduct constituting a substantial step toward
commission of the crime” and either “intends to commit the
crime” or, “when causing a particular result is an element of the
crime, he acts with an awareness that his conduct is reasonably certain
to cause that result.” See Utah Code Ann. § 76-4-101(1) (LexisNexis
2017) (emphasis added). The statute also now states that
“conduct constitutes a substantial step if it strongly corroborates
the actor’s mental state.” Id. § 76-4-101(2) (emphasis added).

¶17 By amending the attempt statute in these particulars, the
legislature explicitly allowed for an attempt crime to be based on
a knowing mental state. Indeed, the language used in the
amended statute tracks the statutory definition of “knowingly.”
Compare id. § 76-2-103(2) (“A person acts knowingly . . . with
respect to a result of his conduct when he is aware that his conduct
is reasonably certain to cause the result.” (emphasis added)), with id.
§ 76-4-101(1)(b)(ii) (allowing an attempt conviction when the
defendant “acts with an awareness that his conduct is reasonably

20200155-CA 9 2022 UT App 19
State v. Lisenbee

certain to cause that result” (emphasis added)). The attempt statute
in effect at the time of Lisenbee’s charged conduct therefore
permitted a conviction based on a “knowing” mental state, so
long as causing a particular result is an element of the
underlying crime and the defendant acts with an awareness (i.e.,
knowingly) that the conduct is reasonably certain to cause that
result. And in Lisenbee’s case, causing a particular result—
death—is in fact one of the elements of murder. See id. § 76-5-
203(2)(a) (“Criminal homicide constitutes murder if . . . the actor
intentionally or knowingly causes the death of another . . . .”).

¶18 Thus, Casey’s holding—that “an attempted murder
conviction requires proof that the defendant acted intentionally,”
see Casey, 2003 UT 55, ¶ 12—has been superseded by statutory
amendment. Since 2004, a defendant can be convicted, under
Utah law, for attempted murder by acting either intentionally or
knowingly. The jury instructions given by the trial court in this
case were therefore correct in this regard, and any Casey-based
objection to them would not have been well-taken. Under these
circumstances, Lisenbee’s trial attorney did not perform
deficiently by forgoing an objection to the jury instructions
regarding the attempted murder charge. See State v. Whytock,
2020 UT App 107, ¶ 43, 469 P.3d 1150 (“[W]hen seeking
particular relief would be futile, an attorney does not perform
deficiently by failing to seek it.”). Accordingly, Lisenbee has not
met his burden of demonstrating that his attorney rendered
constitutionally ineffective assistance.5

5. Lisenbee also argues—for the first time in his reply brief—that
because the information filed by the State specifically alleged
that Lisenbee “intentionally attempted to cause the death” of
Rebecca, and said nothing about any potential conviction for
“knowing” conduct, Lisenbee’s trial attorney was ineffective for
“fail[ing] to require the State to prove what it actually charged.”
(continued…)

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State v. Lisenbee

CONCLUSION

¶19 Because the jury instructions Lisenbee identifies were
legally correct, Lisenbee’s trial attorney did not render
ineffective assistance by not objecting to them. On that basis, we
reject Lisenbee’s ineffective assistance claim, and affirm his
conviction.

(…continued)
We need not reach any decision on the merits of this argument,
however, because Lisenbee waived it by raising it for the first
time in his reply brief. See State v. Johnson, 2017 UT 76, ¶ 16, 416
P.3d 443 (“When a party fails to raise and argue an issue on
appeal, or raises it for the first time in a reply brief, that issue is
waived and will typically not be addressed by the appellate
court.”); see also Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540
(stating that the purpose behind the waiver rule “is to prevent
the resulting unfairness to the respondent if an argument or
issue was first raised in the reply brief and the respondent had
no opportunity to respond”).

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