State v. Aiken

2023 UT App 44

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DALTON JAMES AIKEN,
Appellant.

Opinion
No. 20190678-CA
Filed April 27, 2023

Second District Court, Ogden Department
The Honorable Camille L. Neider
No. 181902032

Emily Adams, Freyja Johnson, and
Cherise Bacalski, Attorneys for Appellant
Sean D. Reyes, Kris C. Leonard, and Jonathan S.
Bauer, Attorneys for Appellee

JUSTICE DIANA HAGEN authored this Opinion, in which JUSTICE
JILL M. POHLMAN AND JUDGE RYAN M. HARRIS concurred. 1

HAGEN, Justice:

¶1 Around 3:00 a.m. on an August morning, Dalton Aiken
and his friend, Cory Fitzwater, set out to “fight a homeless guy.”
They searched a wooded area near Ogden’s 21st Street pond for
encampments and found the victim asleep next to a campfire.

1. Justices Diana Hagen and Jill M. Pohlman began their work on
this case as members of the Utah Court of Appeals. Both became
members of the Utah Supreme Court thereafter and completed
their work on the case sitting by special assignment as authorized
by law. See generally Utah R. Jud. Admin. 3-108(4).
State v. Aiken

According to Aiken, Fitzwater woke the victim and shot him in
the head with a .45 caliber handgun.

¶2 After the shooting, the pair tried to leave the area in
Aiken’s truck, but they were stopped by police on suspicion of
marijuana possession. Aiken was arrested, and a search incident
to arrest revealed .45 caliber bullets in his pocket.

¶3 Once the police discovered that a man had been shot to
death nearby, they suspected a connection and questioned Aiken
about his involvement in the shooting. In his interviews with
police, Aiken gave multiple accounts of what had occurred that
night, but he eventually told police that he had witnessed
Fitzwater shoot the victim.

¶4 The State charged both Aiken and Fitzwater with the
victim’s murder. Each man proceeded to trial separately, and both
were convicted. This appeal concerns only the case against Aiken.

¶5 Aiken argues on appeal that his trial counsel provided
ineffective assistance by not objecting to the admission of crime
scene reconstruction evidence and the testimony of the victim’s
mother. We conclude that Aiken cannot establish that he was
prejudiced by the crime scene reconstruction evidence or that
counsel performed deficiently in not objecting to the mother’s
testimony. Therefore, his claims of ineffective assistance of
counsel fail.

¶6 Aiken has also submitted a motion under rule 23B of the
Utah Rules of Appellate Procedure, seeking a remand to support
additional claims of ineffective assistance of counsel. He argues
that his counsel’s failure to request a unanimity instruction and
failure to call an expert witness as to false confessions was
deficient and that the deficient performance prejudiced his trial.
Because Aiken has not alleged nonspeculative facts that are not
apparent from the record to support his argument that counsel
was deficient in not requesting a unanimity instruction, we deny

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State v. Aiken

the motion in that respect. With respect to his claim that counsel
should have called an expert witness, Aiken has not shown a
reasonable probability that admitting expert testimony would
have affected the jury’s verdict. Accordingly, a remand is not
warranted, and we affirm Aiken’s murder conviction.

BACKGROUND 2

¶7 Just after 4:00 a.m. on August 16, 2018, Ogden City police
officers were dispatched to the 21st Street pond area in response
to a 911 call reporting that “a male in a large Army tent” had
suffered a head injury. The caller guided the officers through a
wooded area to the victim’s camp. The path through the woods
“was difficult” and the officers “wouldn’t have been able to find
[the injured male] without” the caller guiding them. It was very
dark and, even with a “police flashlight,” the officers could “just
barely . . . see through the trees.”

¶8 When the officers arrived at the victim’s campsite, there
was no active fire, but the coals were warm. The victim was lying
by the firepit next to a mat that was covered in blood. The officers
determined that the victim was dead and had suffered a gunshot
wound to the head. No one else was at the campsite, but police
found a .45 caliber shell casing near the body.

Aiken’s Arrest

¶9 Earlier that morning, at around 2:30 a.m., a Weber County
Sheriff’s deputy was on patrol near the 21st Street pond. The
deputy, who “frequently check[s] for illegal activity” in that area,

2. “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.
Garcia-Lorenzo, 2022 UT App 101, n.1, 517 P.3d 424 (cleaned up),
cert. granted, 525 P.3d 1263 (Utah 2022).

20190678-CA 3 2023 UT App 44
State v. Aiken

noticed a white truck in a parking lot that “leads to a trailhead
system.” On the driver’s seat of the truck, the deputy “observed a
Ziploc baggie with a green, leafy substance” that appeared to be
consistent with marijuana, along with a gun magazine. The
deputy could also smell the odor of marijuana while standing next
to the vehicle. The deputy returned to his vehicle but kept an eye
on the truck.

¶10 About forty-five minutes later, the deputy saw two men
return to the truck and drive away. The deputy followed and,
after observing the driver commit a traffic violation, pulled the
vehicle over. Aiken, who was driving the vehicle and admitted
that the marijuana belonged to him, was arrested for possession
of marijuana. In a search incident to arrest, the deputy found a
handgun and two magazines inside the truck and three .45 caliber
bullets in Aiken’s pocket. Aiken’s passenger, Cory Fitzwater, was
allowed to leave.

Aiken’s Statements

¶11 While Aiken was being held in jail for marijuana
possession, detectives investigating the murder at the campsite
reviewed the report from Aiken’s traffic stop and suspected a
connection to the murder. About ten hours after his arrest, Aiken
was taken from the jail to an interview room at the Weber County
Sheriff’s Office where he was asked what he and Fitzwater had
been doing near the 21st Street pond. Aiken initially claimed that
they had gone to the area to walk around and smoke marijuana.
One of the detectives asked, “Did you guys hear any commotion
or anything out there?” Although Aiken had not yet been told
about a death in the area, he responded, “Well, I kind of have a
feeling that I know what you guys are after. But did someone get
killed? I mean, so I heard a gunshot for sure.”

¶12 Although Aiken knew that the victim’s camp was east of
the parking lot, he told officers that he and Fitzwater had walked
west. He denied going into any encampments and claimed they

20190678-CA 4 2023 UT App 44
State v. Aiken

“never came face-to-face with any” “homeless people.” When
asked about the gun found in his truck, Aiken said it belonged to
Fitzwater. Aiken claimed that the bullets found in his pocket were
from target practice earlier that day and denied that they took the
gun with them on their walk.

¶13 But as the detectives revealed more details about the
murder investigation, Aiken changed his story to account for
that new information. When asked, “[W]ould there be any
reason why we would find a spent shell casing that matches the
gun you guys had at the scene of what we’re investigating?”
Aiken responded, “I’m going to come clean right now, okay?”
Aiken then told the detective that Fitzwater had left Aiken behind
on the trail and “that’s when [Aiken] heard the gunshot.”
According to Aiken, Fitzwater reappeared after the gunshot and
“seemed more calm and relaxed,” then both men left the wooded
area together.

¶14 When the police questioned Aiken’s story “that you guys
randomly showed up at this random spot to randomly smoke
some marijuana, ran into a random camp, and shot some guy,”
Aiken responded, “Yeah. That sounds bad,” and changed his
story again. Aiken admitted he had followed Fitzwater into the
camp and explained that the victim was sleeping on the ground
outside of a tent and next to a fire that “looked like it pretty much
went out.” Aiken admitted that he was there when Fitzwater shot
the victim.

¶15 Aiken was later transported to the Ogden City Police
Department for a second interview with a new set of detectives
investigating the murder. He was told that Fitzwater was also in
custody and was being interviewed in a separate room.

¶16 Aiken told the detectives that he was “going to spill out
the entire story” and asked if he should “get something” out of
it. Aiken repeated that he and Fitzwater had gone to the 21st
Street pond to “just go out to the river and smoke,” but they

20190678-CA 5 2023 UT App 44
State v. Aiken

brought “a sidearm because . . . there’s homeless people out
there.” He claimed that he was following Fitzwater, who had
been holding the gun close to his chest, when Fitzwater left
the trail and “stumbled” onto a big tent. Aiken said he stayed
about twenty yards back from the camp but could see a man
sleeping on the ground between the tent and a smoldering
campfire. Despite the darkness, Aiken was able to describe the
victim as “a white guy, maybe halfway shaggy looking” or
“maybe [with] a full face.” According to Aiken, Fitzwater
mumbled something about a cat, the victim began to get up, and
Fitzwater “shot the guy.”

¶17 When asked why he and Fitzwater went to that area, Aiken
responded, “[T]here’s always been talk of like the homeless. But I
never thought it would amount to that. But I knew there was that
kind of talk going on. But never like shooting somebody.” Aiken
reiterated that they went to the river “to enjoy [them]selves and
to smoke pot” but added, “I think in [Fitzwater’s] mind it was to
kill somebody.” The detective told Aiken not to speculate about
what was in Fitzwater’s mind, but to say only what he knew. The
detective asked again, “Why did you guys go to the river? You
had to have talked about it?” Aiken responded, “Yeah. Okay. To
fight a homeless guy.”

¶18 Aiken then backtracked, saying that fighting “a homeless
guy” “wasn’t the plan,” but that “it was in the back of both of our
minds probably.” The detective asked whether Aiken and
Fitzwater had actually talked about it, and Aiken replied, “Yeah,
I think we did probably. I don’t remember talk[ing] about it, that’s
the thing. But I’m sure we did. That was our motive. But I don’t
remember specifically exactly what was said. I swear to God.”
When pressed for details, Aiken said, “We wanted to pick a fight
with homeless people. [Fitzwater] probably said some violent
things, kind of like he wanted to kill them, I’m sure,” but “I don’t
remember exactly.” The detective asked what Aiken had said in
response, and Aiken replied, “There was never a plan to murder,

20190678-CA 6 2023 UT App 44
State v. Aiken

but there was a plan to hurt. . . . To just go and find some and beat
them up.” He then backtracked again, “I really wasn’t planning
on doing that. That was always just talk. You know?” He said that
he and Fitzwater went there “[t]o be tough guys, try and scare a
homeless guy, beat him up. But I don’t think I would have. It’s
just that’s what his plan was.” Aiken admitted that he and
Fitzwater had had more than one conversation in which they had
discussed “homeless people” being “what’s wrong with the
country,” but “obviously [Fitzwater] took it way farther. So it
never was this truly gruesome hate crime.”

¶19 Although Aiken maintained that targeting a “homeless
person” was Fitzwater’s idea, he admitted that he had selected
the location. Aiken told police that he had grown up
camping, hunting, and fishing in that area. Fitzwater had never
been there, but Aiken “knew it like the back of [his] hand” and
knew that there were encampments in the area. Aiken reiterated
that the plan was “[t]o go out there and think about being tough
with a homeless guy” because “[t]hey’re not contributing to
society.”

¶20 Over the course of the interview, Aiken also changed
his story about possessing the firearm and ammunition.
When first asked about the bullets found in his pocket,
Aiken claimed that Fitzwater had dropped them on the trail,
and Aiken had picked them up and handed them back to
Fitzwater. But when the detective asked why the bullets were in
his pocket when he was arrested, Aiken replied, “Right? . . . Gosh-
dang it, has he been trying to set me up from the beginning?”
Aiken also initially claimed that he had not possessed the gun
that night. But when asked again whether he had the gun,
Aiken responded, “I just had something come back to me.
No. After he shot the guy, [Fitzwater] like shoved [the gun] at me.
And . . . I put it in my back [pocket] and I ran. . . . So I did have
the gun after he shot the guy.” Aiken also admitted that, after
returning to the truck, he told Fitzwater to hide the gun. When the

20190678-CA 7 2023 UT App 44
State v. Aiken

detectives asked Aiken why he did not tell the officers when he
was arrested that Fitzwater had shot someone, Aiken said, “part
of it is because he is my buddy” and “I was taking one for the
team.”

¶21 After this interview, Aiken agreed to return to the crime
scene with the detectives. He showed the detectives how he and
Fitzwater got to the victim’s campsite and where the victim was
sleeping on the ground facing the tent with the firepit at his back.
He pointed out the tree where he claimed to have been crouching
and showed the detectives where he claimed Fitzwater was
standing, between the tent and the victim, facing Aiken. He
claimed that Fitzwater had fired back toward Aiken as the victim
“kind of leaned up.”

¶22 The next day, Aiken called his father from the jail. Aiken
told his father that he “got in trouble” and that Fitzwater “killed
someone and he’s saying it’s me, so I’m trying to get it figured
out.” On this call, Aiken admitted to being with Fitzwater when
he shot the victim and that they “were out there . . . asking for
trouble, . . . [b]ut never, ever [murder]. Never, ever.” Aiken said
that it was “sickening” and that he “feels so picked on” and that
“it’s not fair.”

Crime Scene Reconstruction

¶23 Shortly after the victim’s body was discovered, law
enforcement officers and crime scene investigators arrived at the
campsite to take photographs and collect evidence. The
photographs showed the victim’s sleeping mat, which was
attached to “plywood-type” wood and propped up on 2x4s to
help level it out on the uneven ground. The mat was placed
between a tent on one side and a firepit on the other. On the mat
was blood and a spent .45 caliber shell casing. The bullet that
killed the victim was later found in the ground underneath where
the mat had been. At the scene, investigators from the State Crime

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State v. Aiken

Lab also took FARO scans to map out the natural landscape and
layout of the campsite. 3

¶24 Months later, Investigator Sandra Grogan was tasked with
reconstructing the murder. In the evidence room at the Ogden
Police Department, Investigator Grogan examined the mat on
which the victim was killed. She used a trajectory rod and an
angle finder to determine “the direction the bullet went into the
mat.” Comparing the directionality of the bullet with the crime
scene photographs, Investigator Grogan was able to determine
that the bullet was fired from the fireplace side of the mat, not
from the tent side of the mat as Aiken had claimed. Investigator
Grogan placed a 160-pound mannequin on the mat to see if it
would change the trajectory but noted no significant difference.

¶25 Investigator Grogan then traveled to the crime scene with
Detective Steve Zaccardi. The remnants of the victim’s firepit and
some stakes that had been holding up the sleeping mat were still
there. Using those landmarks and the measurements and
photographs of the crime scene, Investigator Grogan placed a
replica of the mat in the same position as the night of the murder.
A trajectory rod had been placed through the replica at the same
angle that the bullet traveled through the mat. Based on the
medical examiner’s measurements of the bullet entry and exit
wounds, Investigator Grogan placed a second trajectory rod
through a mannequin head to determine the position of the victim
when he was shot. Investigator Grogan confirmed that the bullet
had come from the firepit side of the mat and that the victim had
been looking the other way, toward the tent, when he was shot.
Because the bullet did not enter any other part of the victim’s

3. A FARO scan uses “3D laser scanning technology” and allows
crime scene investigators “to capture complete, accurate views of
the on-scene evidence and generate photorealistic 360-degree
views of the space.” FARO, https://www.faro.com/en/LP/Crime-
Workflow#cta.

20190678-CA 9 2023 UT App 44
State v. Aiken

body, Investigator Grogan was also able to determine that the
victim had lifted his head and was starting to rise when he was
shot.

Trial

¶26 Aiken was charged with murder and stood trial separately
from Fitzwater. The State argued that Aiken was either the
shooter or that he aided and abetted Fitzwater’s commission of
the crime. The jury was instructed that Aiken could be convicted
as either a principal or a party to the murder.

1. Investigator Grogan’s Testimony

¶27 At trial, the State called Investigator Grogan to testify
about the two crime scene reconstructions she had performed—
one at the police station and one at the crime scene—and to offer
her expert opinion as to what each analysis showed. Specifically,
she testified that the police station reconstruction established that
the bullet was fired from the firepit side of the mat, not the tent
side as Aiken had described in his statements to police. The crime
scene reconstruction confirmed the placement of the shooter and
also established that the victim was facing the tent and beginning
to rise when the shot was fired.

¶28 Trial counsel did not object to Investigator Grogan’s
testimony but established on cross-examination that the
“trajectory process that she used [was not] an exact science” and
that all variables had not been precisely replicated.

2. Detective Zaccardi’s Testimony

¶29 Detective Zaccardi also testified about the crime scene
reconstruction. He explained how he assisted Investigator Grogan
and described what was depicted in photographs documenting
the reconstruction. He also repeated the opinions that Investigator
Grogan had offered about where the shooter was standing and

20190678-CA 10 2023 UT App 44
State v. Aiken

how the victim was facing the tent and beginning to rise when the
shot was fired.

¶30 Detective Zaccardi offered two additional opinions that he
formed based on the reconstruction. First, because the ejected
shell casing was found on the mat, he opined that the shooter
must have been holding the gun sideways when it was fired.
Second, he opined that if Aiken had been standing by the tree as
he claimed, it was doubtful that he would have been able to see
the victim from that distance through the foliage at night,
particularly when the shooter would have been standing between
Aiken and the victim, obstructing Aiken’s view. Instead,
Detective Zaccardi placed the second person close to the shooter,
near the tent.

¶31 Trial counsel did not object to Detective Zaccardi’s
testimony but elicited on cross examination that Zaccardi had no
formal training in crime scene reconstruction. Detective Zaccardi
also conceded that he had conducted no tests to determine how a
spent casing would have ejected from the murder weapon. He
further conceded that the only reason he placed the second person
near the tent was because “the victim [was] looking in [that]
direction which would indicate to me that he is being either
spoken to or he’s looking at something.”

3. The FARO Exhibits

¶32 The State offered ten computer-generated images as
exhibits that purported to illustrate the difference between the
scenario described by Aiken and the scenario suggested by the
reconstruction. To create those reconstruction exhibits,
Investigator Heather Miles started with a 3D image, or point
cloud, of the landscape where the murder occurred. Investigator
Miles testified that she did not create the point cloud; the campsite
was scanned by the State Crime Lab using a FARO machine and
those scans were stitched together by a FARO representative to
create a 3D representation of the crime scene. Trial counsel did not

20190678-CA 11 2023 UT App 44
State v. Aiken

challenge Investigator Miles’s ability to lay foundation for the
FARO point cloud.

¶33 To create the reconstruction exhibits, Investigator Miles
added additional details to the FARO point cloud based on crime
scene photographs, such as food items and the victim’s sleeping
mat. She then placed human figures into the scene based on
information from Detective Zaccardi’s report.

¶34 The first series of reconstruction exhibits purport to depict
how Aiken described the shooting to police. In those images, the
victim is depicted as an orange figure lying on the mat, the shooter
(Fitzwater) is standing on the tent side of the mat, and a second
figure (Aiken) is standing some distance away by a tree. Detective
Zaccardi testified that, “based on the physical evidence, [i]t’s
impossible” that Fitzwater fired the shot from that position.

¶35 The second series of reconstruction exhibits purport to
depict how Detective Zaccardi believed the shooting occurred.
Those images again show an orange figure lying on the mat,
but now the shooter is depicted as a blue figure standing on
the firepit side of the mat and a second blue figure is
shown standing between the tent and the shooter. Detective
Zaccardi initially testified that both blue figures were placed “in a

20190678-CA 12 2023 UT App 44
State v. Aiken

location that would fit all the physical evidence.” On cross-
examination, however, he clarified that while the placement of
the shooter was based on the trajectory evidence, the placement
of the second figure was “based on speculation and conjecture”
and there was “no solid physical evidence that person was
standing there.”

4. Testimony of the Victim’s Mother

¶36 The State also called the victim’s mother to testify at trial.
During her testimony, the mother told the jury about her son’s
upbringing and other life circumstances. She explained that he
had been married “for about a year to an older lady” and that
“they ended up having two beautiful little baby girls.” The
mother believed that the victim’s ex-wife was not a good influence
on him and “got him into drugs,” which resulted in a divorce and
the children being adopted. She explained that after the divorce
and adoption, the victim “was kind of lost” and “was homeless
[for] the moment.” He eventually made his way from California
to Utah. The mother shared three pictures of the victim: one of
him “holding his little baby brother,” another of him with his
brothers and an uncle, and one of him and his mother that was
taken a week before he left for Utah.

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State v. Aiken

¶37 Trial counsel did not object to the mother’s testimony and
did not engage in cross-examination.

5. Aiken’s Testimony

¶38 Aiken took the stand in his defense. Aiken testified that the
reason he and Fitzwater went to the wooded area was to smoke
marijuana and talk about Fitzwater’s marital issues. Aiken
claimed that they had not gone “to the pond area to kill the
homeless” or “to fight the homeless,” and that he had had “no
idea” that Fitzwater “was going to kill a homeless person” that
night. He insisted that he and Fitzwater had never “talk[ed] about
beating up or killing the homeless.” When asked why he told
police otherwise, Aiken responded:

Because I had been without sleep for over 24 hours
and I was in, being interrogated for 5 hours. And he
asked me the same question over, I don’t even know
how many times, 50 times. And I didn’t think their
questions would stop unless I said what they
wanted me to say.

But Aiken admitted that it was his decision to go to the 21st Street
pond area and that he assumed there would be “transients” there
because he had seen them there in the past. Aiken also admitted
that he had first driven Fitzwater back home to grab a “few beers,
a gun, and the bag of weed,” and that he knew Fitzwater was
carrying the gun when they left the truck and headed east toward
the victim’s camp.

¶39 Aiken testified that Fitzwater had unexpectedly turned off
the main trail and had led the way through the trees to the victim’s
camp, holding the gun against his chest. Aiken claimed that he
had stayed back by a tree about twenty yards away, but that
Fitzwater had “just walked into the middle of the camp and was
looking around at things” with the gun “still against his chest.”
He testified that Fitzwater “would have been close to the fire pit,”

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State v. Aiken

“closer to the mat than what [Aiken] initially had indicated to the
detectives.” Aiken claimed that when the victim woke up and
“started getting up from his sleeping position, a cat ran out from
underneath of him,” and Aiken’s eyes followed the cat. Then “the
shot rang out” and the victim “fell down and quit moving.”

¶40 Aiken claimed that he “took off running” but was not sure
where he was going because “[t]here was no clear exit” and “[i]t
was really thick back there.” Aiken and Fitzwater “met up and
[Fitzwater] shoved the gun at [Aiken]” who “took it and . . . ran
back to the truck.” He explained that “at first [he] actually didn’t
even remember” that Fitzwater had given him the gun but that it
“came back to [him] a little bit later because the state of shock [he]
was in.”

¶41 Aiken also changed his story about how the bullets had
gotten into his pocket. Aiken reiterated that Fitzwater had
dropped at least one bullet on the trail, but this time Aiken
claimed that Fitzwater had picked it up himself. Aiken testified
that, after the shooting, he had returned to the truck with the gun,
unloaded it, and put the bullets into his pocket at that time. When
asked why he had not told the police how the bullets got into his
pocket, Aiken explained, “Well, the state of shock I was in I
couldn’t remember at all what had happened until a week and a
half, two weeks later.”

¶42 Aiken also offered a new explanation for his actions
following the shooting. He testified that he kept quiet, not because
Fitzwater was his “buddy” and he “wanted to take one for the
team,” but because he was afraid of Fitzwater and feared that he
would do something to Aiken or his family. But on cross-
examination, Aiken acknowledged that he had waited for about
twenty-five minutes for Fitzwater to return to the truck, even
though Aiken had Fitzwater’s gun and could have driven away
or called the police or an ambulance. And he admitted that he was
the one who instructed Fitzwater to hide the gun. When asked

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State v. Aiken

why he did not tell the police about the shooting when they were
stopped, Aiken claimed, “I was still scared of [Fitzwater] at that
time. He was giving me death looks. And I was scared of the
whole situation. And I was even scared of the cops.”

¶43 Aiken also admitted that, during the traffic stop, he was
“joking around with the officer [and] acting like [he didn’t] know
where the gun” was, even though he knew it had just been used
to shoot someone. Aiken explained that he was “smiling, joking
around,” and “hoping the officer just would not find the gun”
because he “just wanted it all to go away.”

¶44 Aiken also admitted that he had lied to the police when he
said that he and Fitzwater were just walking near the pond and
had not “come face to face with any homeless people.” And he
acknowledged that he deliberately tried to mislead the officers by
saying that he and Fitzwater had walked west rather than east. He
also admitted that he told the police that he had heard a gunshot
from far off and asked if someone had been killed, even though
he had been present and knew exactly what had happened.
Because he did not know that the police had found the body, he
admitted that he told the police that the gunshot had come from
a different direction, hoping that they would not find the victim.
He also admitted lying to the police when he claimed that he and
Fitzwater had not taken the gun with them when they left the
truck.

¶45 Aiken acknowledged that his story had changed when the
police told him that the casing found at the victim’s campsite
matched the gun. He told the police that he was going to “come
clean” but then lied again and said that he and Fitzwater had been
separated when he heard the gunshot. When Aiken realized that
the police did not believe his story, he changed it again and
admitted that he was present when the victim was shot.

¶46 The jury convicted Aiken of murder.

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State v. Aiken

ISSUES AND STANDARDS OF REVIEW

¶47 Aiken raises two ineffective assistance of counsel claims on
appeal. He argues that counsel was ineffective in failing to object
to (1) the crime scene reconstruction evidence and (2) the victim’s
mother’s testimony. “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. Guerro, 2021 UT App 136, ¶ 25, 502 P.3d 338 (cleaned
up), cert. denied, 525 P.3d 1254 (Utah 2022). 4

¶48 Aiken also seeks a remand under rule 23B of the Utah Rules
of Appellate Procedure based on two claims of ineffective
assistance of counsel. “A remand under rule 23B is available only
upon a nonspeculative allegation of facts, not fully appearing in

4. Aiken also argues that we should reverse the conviction under
the cumulative error doctrine. “Under the cumulative error
doctrine, we will reverse only if the cumulative effect of the
several errors undermines our confidence that a fair trial was
had.” State v. Ramos, 2018 UT App 161, ¶ 22, 428 P.3d 334 (cleaned
up), cert. denied, 437 P.3d 1249 (Utah 2019). Because we conclude
that Aiken has not established either ineffective assistance claim,
the cumulative error doctrine does not apply. Further, Aiken
seeks a remand under rule 23B to support his argument that
counsel should have objected to certain crime scene
reconstruction testimony and evidence and offers an affidavit
from an expert witness in support of his 23B motion. See Utah R.
App. P. 23B(a) (“A party to an appeal in a criminal case may move
the court to remand the case to the trial court for entry of findings
of fact, necessary for the appellate court’s determination of a claim
of ineffective assistance of counsel.”). But for the same reasons
discussed in Part I, Aiken was not prejudiced by the admission of
the allegedly improper evidence. Accordingly, we deny the
request for remand.

20190678-CA 17 2023 UT App 44
State v. Aiken

the record on appeal, which, if true, could support a
determination that counsel was ineffective.” State v. Crespo, 2017
UT App 219, ¶ 24, 409 P.3d 99 (cleaned up), cert. denied, 417 P.3d
575 (Utah 2018).

ANALYSIS

I. Aiken Was Not Prejudiced by the Admission of the Crime
Scene Reconstruction Evidence.

¶49 Aiken argues that he received ineffective assistance of
counsel at trial when his attorney failed to object to the admission
of crime scene reconstruction evidence on three occasions. First,
he argues that trial counsel should have objected when the State
failed to lay an adequate foundation for the admission of the
FARO images used to create the reconstruction exhibits. Second,
he argues that trial counsel should have challenged the reliability
of Investigator Grogan’s and Detective Zaccardi’s reconstruction
at the crime scene. 5 Third, he argues that trial counsel should have
objected to Detective Zaccardi’s opinion testimony because he
was not a qualified expert.

¶50 To prevail on a claim of ineffective assistance of
counsel, Aiken “must demonstrate that (1) his counsel’s
performance was deficient in that it ‘fell below an objective
standard of reasonableness’ and (2) ‘the deficient
performance prejudiced the defense.’” State v. Scott, 2020 UT 13,

5. Aiken also seeks a remand under rule 23B of the Utah Rules of
Appellate Procedure to admit evidence from a reconstruction
expert that he claims would have proven that the State’s crime
scene reconstruction was unreliable and should have been
excluded. Because we conclude that Aiken cannot demonstrate a
reasonable probability of a different result even if he had
successfully challenged the crime scene reconstruction evidence,
we deny the rule 23B motion on that claim.

20190678-CA 18 2023 UT App 44
State v. Aiken

¶ 28, 462 P.3d 350 (quoting Strickland v. Washington, 466 U.S. 668,
687–88 (1984)). “Because failure to establish either prong of
the test is fatal to an ineffective assistance of counsel claim, we
are free to address [a defendant’s] claims under either
prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. And “[i]f it
is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice,” we will do so. Strickland, 466 U.S.
at 697.

¶51 To evaluate whether a defendant has established prejudice
under Strickland, “we assess counterfactual[] scenarios—that is,
what would have happened but for the ineffective assistance.”
Ross v. State, 2019 UT 48, ¶ 76, 448 P.3d 1203. In other words, we
must “consider whether, in the absence of the improperly
admitted evidence, the likelihood of a different outcome is
sufficiently high to undermine our confidence in the verdict.”
State v. Leech, 2020 UT App 116, ¶ 67, 473 P.3d 218, cert. denied, 481
P.3d 1039 (Utah 2021).

¶52 Before we can conduct this counterfactual analysis, we
must identify exactly what the jury would have heard if
the evidence Aiken challenges on appeal had been excluded.
Even if Aiken had successfully challenged Detective
Zaccardi’s opinions as improper expert testimony and
Investigator Grogan’s reconstruction at the crime scene as
unreliable, Investigator Grogan still would have testified about
the trajectory analysis conducted at the police station. Based on
that analysis, Investigator Grogan concluded that the shooter was
standing on the firepit side of the mat when the shot was fired,
not on the tent side as Aiken had told police. Aiken has not
challenged that analysis as unreliable. Moreover, Aiken admitted
in his own testimony that his earlier placement of the shooter may
have been inaccurate and that the shooter was “close to the
firepit.” In short, the jury would have heard testimony placing the
shooter on the firepit side of the mat, which Aiken never directly
challenged.

20190678-CA 19 2023 UT App 44
State v. Aiken

¶53 The reconstruction at the crime scene, which Aiken has
challenged, led to four additional conclusions. Both Investigator
Grogan and Detective Zaccardi opined that the victim was
(1) beginning to rise and (2) facing the tent when the shot was
fired. Detective Zaccardi also opined that (3) the shooter must
have been holding the gun sideways in order for the spent shell
casing to land on the mat, and (4) the second person was likely
standing next to the shooter near the tent.

¶54 As to the first two opinions, Aiken has not explained
how the position of the victim implicated him as a party to
murder. Aiken himself told the officers that the victim was in
the process of sitting up when the shot was fired, and he
confirmed that fact in his testimony at trial. See supra ¶¶ 21, 39.
And Aiken did not dispute that the victim was facing the tent
and never told the officers otherwise. As to the third opinion,
Aiken has not explained how the manner in which the shooter
held the gun made it more or less likely that Aiken was guilty of
murder.

¶55 Only the fourth opinion—and the related reconstruction
exhibits—had any conceivable potential for prejudice. Detective
Zaccardi testified that he believed that the second person was
standing between the tent and the victim, not by the tree as Aiken
claimed. Aiken argues that Detective Zaccardi was “wrapped in
the guise of expert qualifications” when he “discredited [Aiken’s]
view of the case and placed [Aiken] in a position where he was
either the shooter or aided and abetted the shooter.”

¶56 The second series of FARO reconstruction exhibits aligned
with Detective Zaccardi’s testimony and report, placing the
second person in the same position. Aiken claims that trial
counsel should have objected to the FARO images based on lack
of foundation because Investigator Miles did not personally create
the point cloud. But the point cloud showing the landscape of the
crime scene was not itself inculpatory. Nor was there a dispute

20190678-CA 20 2023 UT App 44
State v. Aiken

about the physical layout of the campsite. The prejudice Aiken
asserts is not from the point cloud but from the reconstruction
exhibits Investigator Miles personally created by overlaying the
3D image of the campsite with figures in the positions described
by Detective Zaccardi’s report. Aiken characterizes those exhibits
as “persuasive digital depictions of the crime scene” that gave the
State a “powerful[]” argument that Aiken “was either the shooter
or he aided and abetted in the shooting.” But, for the reasons
explained below, there is no reasonable probability that the
placement of the figures—either during Detective Zaccardi’s
testimony or in the reconstruction exhibits—affected the jury’s
verdict.

¶57 Aiken was charged as either a principal or party to the
offense of murder. To prove his guilt as a party to the offense, the
State was not required to prove that he personally shot the victim.
Instead, the State was required to prove only that (1) the offense
had been committed; (2) Aiken had intentionally, knowingly, or
recklessly solicited, requested, commanded, encouraged, or
intentionally aided the commission of the offense; and (3) Aiken
acted with the mental state required for murder. See Utah Code
§ 76-2-202.

¶58 As to the first element, Aiken does not dispute that
someone committed the offense of murder. In fact, Aiken testified
that he saw Fitzwater intentionally shoot the victim in the head.
To establish the second and third elements of party liability, it was
enough to prove that Aiken intentionally aided the commission of
the offense with intent to cause the victim’s death or knowing the
victim’s death was reasonably certain to result. 6

6. At trial, the State did not put on evidence that Aiken “solicited,
requested, commanded, [or] encouraged” Fitzwater to commit
the murder. In closing, the State argued that Aiken intentionally
aided Fitzwater’s commission of the offense.

20190678-CA 21 2023 UT App 44
State v. Aiken

¶59 The second and third elements of party liability were
established through evidence that had nothing to do with the
position of the victim or the location of the two men at the time of
the shooting. Therefore, there is no reasonable likelihood that
Aiken would have been acquitted if the jury had not been
presented with the evidence that Aiken believes should have been
excluded.

¶60 Aiken’s own statements were offered to prove both that he
intentionally aided Fitzwater by guiding him to the victim’s camp
and that he did so knowing the victim’s death was reasonably
certain to result. Aiken admitted in his interviews that he and
Fitzwater were targeting “homeless people” that night. Aiken told
police that he heard Fitzwater talk about his hatred of “homeless
people” “constantly” and that he had said “some violent things,
kind of like he wanted to kill them.” With this foreknowledge of
Fitzwater’s intentions, Aiken intentionally aided the commission
of the murder by taking Fitzwater home to get his gun, driving
Fitzwater to a location Aiken knew was frequented by “homeless
people,” and guiding Fitzwater through the dark, unfamiliar
territory that Aiken knew like the “back of [his] hand.”

¶61 Aiken’s own statements also supported the jury’s finding
that he acted with the intent to cause the victim’s death or
knowing the victim’s death was reasonably certain to result.
Intent is rarely subject to direct proof and must generally be
inferred from the actions of the defendant and the surrounding
circumstances. See State v. Florez, 2020 UT App 76, ¶ 18, 465 P.3d
307. In this case, the State offered Aiken’s own admission that he
went to the 21st Street pond with Fitzwater to “pick a fight with
homeless people” and “beat them up.” Aiken also knew that
Fitzwater was carrying a loaded gun in a ready position against
his chest as they approached the victim’s campsite, looking for a
“homeless person” “to hurt.” And Aiken admitted to police that
he thought Fitzwater went there “to kill somebody.” At the very
least, this evidence established that Aiken knowingly caused the

20190678-CA 22 2023 UT App 44
State v. Aiken

victim’s death because he was aware that his conduct—guiding
an armed Fitzwater to an unsuspecting victim—was reasonably
certain to cause that result. See Utah Code § 76-2-103(2).

¶62 At trial, Aiken denied that he and Fitzwater had ever
discussed “beating up or killing a homeless person” and claimed
that he did not know that Fitzwater intended to shoot someone
that night. But, in finding Aiken guilty, the jury necessarily
concluded that this testimony was not credible. Importantly,
whether Aiken’s testimony on that point was credible had
nothing to do with the evidence that he asserts should not have
been admitted. Where the second person was standing when the
shooting occurred did not make it any more or less likely that
Aiken knew the victim’s death was reasonably certain to result
when he helped Fitzwater locate the victim.

¶63 Aiken’s actions after the murder were also consistent with
him having intentionally aided the commission of the offense
with the mental state required for murder. After the shooting,
Aiken took the gun from Fitzwater, ran back to his truck,
unloaded the gun, and put the bullets into his pocket. He waited
there for twenty-five minutes until Fitzwater found his own way
back to the truck. During that time, Aiken did not call the police
or attempt to summon help for the victim. Then, when stopped by
police a few minutes later, Aiken told Fitzwater to hide the gun
and initially denied the existence of the gun when questioned by
police. During the traffic stop, Aiken joked with the officer and
never mentioned that a man had been shot and might need help.
A jury could reasonably conclude that Aiken behaved in this
manner because he had been a party to the murder, not an
innocent bystander who had been surprised by Fitzwater’s
actions. To be sure, Aiken gave another explanation at trial—that
he was afraid of Fitzwater and believed he would hurt Aiken or
his family. But, again, the jury’s assessment of whether to credit
this explanation had nothing to do with whether Aiken was
standing by the tree or next to Fitzwater when the shot was fired.

20190678-CA 23 2023 UT App 44
State v. Aiken

¶64 The only thing that the crime scene reconstruction
purported to establish was that Aiken and Fitzwater were not
standing in the places Aiken described to police, first in his
interviews and later at the crime scene. But Aiken himself
admitted as much when he took the stand at trial. Aiken admitted
that he may have been mistaken in his placement of the shooter,
whom Aiken claimed was Fitzwater, but maintained that he was
crouching by a tree twenty yards away, not standing next to
Fitzwater as Detective Zaccardi surmised. But whether Aiken was
close to Fitzwater or twenty yards away when the shot was fired
was irrelevant to the question before the jury—whether Aiken
intentionally aided Fitzwater to commit the murder knowing that
the victim’s death was reasonably certain to result. Although
Detective Zaccardi speculated that the victim might have been
looking toward Aiken when he was shot, the State never
suggested that Aiken’s position distracted the victim or otherwise
aided Fitzwater’s commission of the offense. And the State never
argued that Aiken’s position had any bearing on whether he had
the requisite mental state for murder. Because his guilt as a party
to the murder did not depend on where he was standing, there is
no reasonable likelihood that the admission of the challenged
evidence changed the result.

¶65 The only suggestion that the placement of the second
person was relevant to Aiken’s culpability was elicited by trial
counsel on cross-examination when Detective Zaccardi agreed
that placing the two individuals in those positions made it “more
likely” that “they were both involved.” But Aiken admitted he
was involved—he testified that he drove Fitzwater to the area,
accompanied him to the camp, witnessed the shooting, took the
murder weapon back to his truck, waited for Fitzwater to return,
told Fitzwater to hide the gun, and protected his friend when
stopped by police. The question before the jury was not whether
he was “involved,” but whether he intentionally aided the
commission of the offense with intent to cause the victim’s death
or knowing the victim’s death was reasonably certain to result.

20190678-CA 24 2023 UT App 44
State v. Aiken

Whether Aiken was standing next to the tree or next to Fitzwater
when the shot was fired had no bearing on that question.

¶66 At most, the opinion that Aiken was not by the tree, as he
claimed, undermined his credibility. But Aiken admitted that he
had lied to the police and had changed his story multiple times.
The trajectory analysis conducted at the police station—evidence
Aiken has not challenged—showed that Aiken had not told the
police the truth about the shooter’s location. Any additional
impeachment value from Detective Zaccardi’s opinion did not
materially change the overall evidentiary picture, particularly
where trial counsel effectively undercut the placement of the
second figure on cross-examination. Specifically, trial counsel
elicited testimony from Investigator Miles that the placement of
the second figure was based solely on Detective Zaccardi’s report
and then elicited testimony from Detective Zaccardi that the
placement was based on speculation and conjecture and not on
any physical evidence. Given Aiken’s admission that he had
repeatedly lied about what had occurred during the shooting,
there is no reasonable probability that the placement of the second
figure—which lacked any significant probative value and was
admittedly speculative—affected the jury’s verdict.

¶67 Even if the crime scene reconstruction evidence that
Aiken challenges on appeal had been excluded, there is no
reasonable probability that Aiken “would have obtained a more
favorable outcome at trial.” State v. Reid, 2018 UT App 146, ¶ 19,
427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).
The position of the victim and the location of the two men at the
time of the shooting were irrelevant to whether Aiken
intentionally aided the commission of the offense with intent to
cause the victim’s death or knowing the victim’s death was
reasonably certain to result. Whether Aiken was standing by the
tree or next to Fitzwater when the shot was fired had no impact
on the State’s proof that Aiken was guilty as a party to the murder.
Therefore, we conclude that Aiken’s ineffective assistance of

20190678-CA 25 2023 UT App 44
State v. Aiken

counsel claims relating to the crime scene reconstruction fail for
lack of prejudice.

II. Counsel Did Not Perform Deficiently by Not Objecting to the
Victim’s Mother’s Testimony.

¶68 Aiken next argues that trial counsel performed
deficiently in failing to object to the victim’s mother’s testimony
that included “inadmissible victim impact evidence.” To show
deficient performance, Aiken argues that trial counsel acted
unreasonably in not objecting to the mother’s testimony because
he was “responsible for knowing the law, and thus should have
known the confines of victim impact evidence and of the
relevance rules.”

¶69 Even accepting Aiken’s argument that much of the
mother’s testimony was inadmissible, we conclude that trial
counsel’s decision to forgo an objection did not fall below an
objective standard of reasonableness. “Judicial scrutiny of
counsel’s performance is highly deferential,” and we indulge “a
strong presumption that counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment.” State v. Escobar-Florez, 2019 UT App 135,
¶ 27, 450 P.3d 98 (cleaned up), cert. denied, 458 P.3d 748 (Utah
2020). “[N]ot objecting to an error does not automatically render
counsel’s performance deficient.” State v. Ray, 2020 UT 12, ¶ 31,
469 P.3d 871. Further, “even where a court cannot conceive of a
sound strategic reason for counsel’s challenged conduct, it does
not automatically follow that counsel was deficient.” State v. Scott,
2020 UT 13, ¶ 36, 462 P.3d 350. Instead, “[t]he reasonableness of
counsel’s challenged conduct must be judged on the facts of the
particular case, viewed as of the time of counsel’s conduct.” Ray,
2020 UT 12, ¶ 31 (cleaned up); see also id. (“The United States
Supreme Court has rejected the notion that certain actions by
counsel are per se deficient as inconsistent with Strickland’s
holding that ‘the performance inquiry must be whether counsel’s

20190678-CA 26 2023 UT App 44
State v. Aiken

assistance was reasonable considering all the circumstances.’”
(quoting Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)).

¶70 Based on all the circumstances at trial, we conclude that
trial counsel’s decision to forgo an objection to the mother’s
testimony was not objectively unreasonable. See id. Because Aiken
told police that the killing was motivated by hatred of “homeless
people,” trial counsel could have reasonably concluded that the
mother‘s testimony was relevant to establish that the victim
belonged to the targeted group.

¶71 Once the mother was on the stand, trial counsel could
have reasonably refrained from objecting to extraneous
details, especially where that testimony was brief and not
inflammatory. We agree with the State that choosing such a
strategy was objectively reasonable to “avoid alienating the jury
by appearing unsympathetic or callous toward” the victim or his
mother.

¶72 It was also consistent with the defense strategy. Aiken
himself characterized the murder as a “truly gruesome hate
crime” and trial counsel stated in closing that Aiken
“wholeheartedly agree[d] with the State” that the victim’s
death was “horrific” but that he was not responsible for
the murder. Not objecting to the State’s attempt to humanize
the victim arguably allowed Aiken to show empathy toward
the victim and his family without undermining Aiken’s theory of
the case.

¶73 Aiken has not shown that objecting to the extraneous
details in the mother’s testimony was “a battle that competent
counsel would have fought.” Ray, 2020 UT 12, ¶ 32. Because
he has not demonstrated that trial counsel’s performance
was objectively deficient, Aiken cannot establish his claim of
ineffective assistance relating to the mother’s testimony.

20190678-CA 27 2023 UT App 44
State v. Aiken

III. Aiken Has Not Shown that a Remand Is Warranted Under
Rule 23B.

¶74 In his rule 23B motion, Aiken raises two additional claims
of ineffective assistance of counsel for which he seeks a remand to
supplement the record with facts necessary to support each claim.
First, Aiken argues that trial counsel was ineffective in failing to
request a unanimity instruction. Second, Aiken argues that
counsel was ineffective in failing to present expert testimony on
false confessions.

¶75 When seeking a remand under rule 23B, the motion “must
meet several requirements: (1) it must be supported by affidavits
alleging facts outside the existing record, (2) the alleged facts must
be nonspeculative, and (3) the alleged facts, if true, must establish
both elements of a traditional ineffective-assistance claim, i.e.,
counsel’s deficient performance and resulting prejudice.” State v.
Tirado, 2017 UT App 31, ¶ 14, 392 P.3d 926.

¶76 To support his request for a remand with regard to the
unanimity instruction, Aiken submitted an affidavit from his trial
counsel stating that not requesting the instruction was “an
oversight and not part of trial strategy.” The State argues that this
is not a proper basis for a rule 23B remand because “[t]he record
is clear that counsel did not ask for the instruction” and therefore
the claim is not one “that requires additional factual
development.” We agree.

¶77 “Rule 23B is directed to cases where some crucial factual
information is absent from the record, not the typical ineffective
assistance case where the parties dispute whether trial counsel’s
actions reflected some strategy [or was otherwise reasonable],
given the facts established by the record.” State v. Curtis, 2013 UT
App 287, ¶ 27, 317 P.3d 968 (cleaned up), cert. denied, 343 P.3d 708
(Utah 2015). To prove deficient performance, Aiken must show
that his counsel’s actions were objectively unreasonable. See State
v. Gallegos, 2020 UT 19, ¶ 47, 463 P.3d 641 (“The Strickland inquiry

20190678-CA 28 2023 UT App 44
State v. Aiken

is objective, not subjective.”). Trial counsel’s subjective reason for
not requesting a unanimity instruction is not directly relevant to
the analysis. Because trial counsel’s affidavit does not allege a fact
outside the existing record that, if true, would establish an
ineffective assistance of counsel claim, Aiken has not made the
required rule 23B showing. Accordingly, we deny Aiken’s request
for a remand to supplement the record on this basis. 7

¶78 Aiken also argues that trial counsel “was deficient when he
did not investigate whether a false confession expert could have
explained to the jury the limits of [Aiken’s] confessions to the
police.” In support of his request for remand, he offered an
affidavit from an expert on false confessions who opines that a
police interrogation technique, known as the Reid Technique, is
“[a] common contributor to false confessions” and that the
technique was used in Aiken’s interview. If he had been retained
in this case, the expert would have been available to testify “about
the surprising frequency of false confessions; their correlation
with sleep deprivation; their correlation with use of the Reid
Technique; and the use of the Reid technique in this case.”

¶79 Whether this case even involves an allegedly false
confession is debatable. Aiken never confessed to murder, either
as a principal or as a party. His admissions about Fitzwater’s
statements and Aiken’s own understanding of “the plan” were
offered as circumstantial evidence to prove that he had the mental

7. In Aiken’s reply to the State’s opposition to his rule 23B motion,
Aiken suggests that, if “the State concedes the record is adequate
for this Court’s review,” we should “review the issue on its
merits.” We decline that invitation because the issue was not
raised in Aiken’s principal brief, and reaching the issue would
deny the State an adequate opportunity to respond. See, e.g.,
Mackin v. State, 2016 UT 47, ¶ 34 n.8, 387 P.3d 986 (“In the interests
of fairness, we do not address arguments omitted from an
appellant’s opening brief.”).

20190678-CA 29 2023 UT App 44
State v. Aiken

state required for murder, despite his denials. Because this is not
a case in which the defendant ever admitted guilt, trial counsel
could have reasonably concluded that expert testimony on false
confessions had limited applicability.

¶80 In any event, Aiken cannot establish prejudice. To establish
prejudice, it is not enough for a defendant to “show that the errors
had some conceivable effect on the outcome of the proceeding.”
Strickland v. Washington, 466 U.S. 668, 693 (1984). Instead, the
defendant has “the burden of showing that the decision reached
would reasonably likely have been different absent [trial counsel’s
alleged] errors.” Gallegos, 2020 UT 19, ¶ 33 (cleaned up). Even
assuming that trial counsel had elicited the testimony set forth in
the expert’s affidavit, Aiken has not demonstrated a reasonable
probability that the result of the trial would have been different.

¶81 Even without expert testimony, the jury had the
opportunity to consider the defense’s “false confession” theory,
which trial counsel developed through Aiken’s own testimony.
Aiken maintained that he had told the police the truth about what
happened during the shooting but that his statements about his
state of mind were false. Aiken also offered an explanation as to
why he would have admitted a motive that was not true. When
asked why he told the police that he and Fitzwater had “talk[ed]
about beating up or killing the homeless,” he testified as follows:

Because I had been without sleep for over 24 hours
and I was in, being interrogated for 5 hours. And he
asked me the same question over, I don’t even know
how many times, 50 times. And I didn’t think their
questions would stop unless I said what they
wanted me to say.

Under these circumstances, “[t]he jury was well positioned to
consider [Aiken’s] explanation for [his] shifting story and to
conclude which of [his] versions of events they believed” without
expert testimony. See State v. Prater, 2017 UT 13, ¶ 41 n.5, 392 P.3d

20190678-CA 30 2023 UT App 44
State v. Aiken

398. The expert’s testimony “would have done little to explain—
beyond what the jury already knew—why he purportedly falsely
confessed.” See State v. Streeper, 2022 UT App 147, ¶ 38, 523 P.3d
710 (holding that failure to call an expert was not prejudicial, in
part because the false confession theory was developed through
the defendant’s own testimony).

¶82 To be sure, expert testimony could have lent credence to
Aiken’s claim that the circumstances surrounding his interviews
might produce a false statement. But, under the facts of this case,
Aiken cannot establish a reasonable probability that the absence
of expert testimony affected the jury’s verdict. Aiken had to
convince the jury that, when repeatedly pressed by police about
his role in the shooting, he successfully resisted the urge to falsely
admit guilt, but that he nonetheless fabricated his statements
about all the “talk” of “homeless people.” The expert’s affidavit
offers no explanation for why a person in Aiken’s position would
have falsely admitted to participating in those conversations
while steadfastly minimizing his culpability for the murder.
Without such an explanation, it is unlikely that the jury would
have believed that Aiken selectively succumbed to police pressure
to say “what they wanted [him] to say,” but only with respect to
his conversations with Fitzwater.

¶83 The jury was more likely to believe that Aiken’s statements
to police were true because they squared with the other evidence
at trial. In a recorded jail phone call, Aiken admitted to his father
that he and Fitzwater “were out there . . . asking for trouble, . . .
[b]ut never, ever [murder].” This admission corroborated Aiken’s
repeated statements to police that “[t]here was never a plan to
murder, but there was a plan to hurt”—to “go and find some and
beat them up”—and that Fitzwater “took it way farther.”

¶84 And that was the only plausible reason for driving to the
21st Street pond in the middle of the night. Aiken testified at trial
that they had gone to the pond to smoke marijuana and talk about

20190678-CA 31 2023 UT App 44
State v. Aiken

Fitzwater’s marital issues. But he admitted that they did not take
the marijuana with them when they left the truck. And his claim
that he took Fitzwater there to talk because “it was a beautiful
place” was difficult to reconcile with his admission that it was too
dark to see where they were going. The only coherent explanation
for visiting the pond at 3:00 a.m. was the one that Aiken gave to
the police: they were looking for “a homeless guy” to hurt, and
Aiken knew that “homeless people” camped at the pond.

¶85 In sum, there is no reasonable probability that the jury
would have reached a different verdict if trial counsel had
engaged an expert to support Aiken’s “false confession” theory.
Aiken’s “own testimony put before the jury not only the assertion
that his confessions were false but the putative reason for his false
confessions.” See Streeper, 2022 UT App 147, ¶ 37. And Aiken’s
statements to police explaining why he and Fitzwater went to the
pond were consistent with the other evidence before the jury. The
facts alleged in the expert’s affidavit would not have significantly
altered this evidentiary landscape, especially since the expert has
offered no explanation for why Aiken would selectively “confess”
to conversations with Fitzwater while otherwise maintaining his
innocence. Because Aiken cannot “meet the test for ineffective
assistance of counsel, even if [the] new factual allegations were
true, there is no reason to remand the case.” State v. Griffin, 2015
UT 18, ¶ 20, 441 P.3d 1166.

CONCLUSION

¶86 Aiken has failed to establish his ineffective assistance
claims on appeal. He has not demonstrated a reasonable
probability of a different result if his trial counsel had successfully
challenged certain crime scene reconstruction evidence at trial.
And he has not shown that objecting to the testimony of the
victim’s mother was a battle that competent trial counsel would
have fought. Finally, Aiken has not established that a remand is
required under rule 23B because his claim that counsel performed

20190678-CA 32 2023 UT App 44
State v. Aiken

deficiently in failing to request a unanimity instruction does not
depend on facts absent from the record, and he has not established
a reasonable probability that the jury’s verdict would have been
different if trial counsel had called an expert witness on false
confessions. Therefore, we affirm.

20190678-CA 33 2023 UT App 44