State v. Oreilly

2024 UT App 79

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LISA YVONNE OREILLY,
Appellant.

Opinion
No. 20230104-CA
Filed May 23, 2024

Sixth District Court, Panguitch Department
The Honorable Mandy Larsen
No. 181600010

Nicolas C. Wilde and Trevor J. Lee,
Attorneys for Appellant
Barry Huntington and Jerry Jaeger,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

ORME, Judge:

¶1 Lisa Yvonne Oreilly appeals her convictions for possession
of methamphetamine, possession of marijuana, and possession of
drug paraphernalia. Oreilly argues she was denied her
constitutional right to counsel and, thus, is entitled to a new trial.
Orielly’s challenge is based on the assertion that her trial counsel
labored under an actual conflict of interest because counsel
represented both her and her codefendant, Michael Thompson.
We agree with Oreilly that because of the joint representation she
is not required to show prejudice under the traditional ineffective
assistance analysis, but we deny the requested relief because
State v. Oreilly

Oreilly has not carried her burden of showing the existence of an
actual conflict of interest.

BACKGROUND 1

¶2 Acting on a tip, a Utah Highway Patrol trooper and
sergeant located a vehicle parked in front of a rest stop bathroom
in February 2018. The vehicle was empty and, according to the
sergeant, “parked crooked, unusual.” Less than a minute after the
officers arrived, Oreilly and Thompson emerged from the
bathroom. Both officers described Oreilly and Thompson as
nervous and seemingly under the influence of drugs.

¶3 The officers approached and made contact with Oreilly
and Thompson. Thompson was arrested when a driver license
check revealed two outstanding arrest warrants. After Oreilly
said she did not have a valid driver license and the officers
determined neither Oreilly nor Thompson owned the vehicle, the
decision was made to have the vehicle towed.

¶4 At some point during the encounter, a trained K-9 handler
with the Garfield County Sheriff’s Office arrived at the scene and
walked his dog around the vehicle. The dog alerted to the
presence of drugs. The officers then conducted a physical search
of the vehicle and found marijuana, marijuana grinders, a
marijuana pipe, a baggie containing methamphetamine, a clear
container containing methamphetamine, and syringes containing
methamphetamine. All of the items were in areas accessible to
both the driver and the passenger.

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.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

20230104-CA 2 2024 UT App 79
State v. Oreilly

¶5 Thompson told the trooper that all the seized evidence
belonged to him. Oreilly told the sergeant and the trooper that the
pipe and a grinder belonged to her. She also informed the trooper
that the substance in the syringes was methamphetamine, not
heroin, stating, “I can guarantee you that whatever you did find,
it ain’t heroin. I could guarantee you that it’s probably
methamphetamine.” The trooper observed and took pictures of
needle marks and bruising on Oreilly’s arms. The trooper later
reviewed a video recorded while Oreilly and Thompson were
seated in his patrol car. The video showed Oreilly acknowledging
to Thompson that she knew used syringes were present in the
vehicle and stating that she had disposed of a syringe in the rest
stop bathroom. The video also showed Oreilly and Thompson
discussing who should take responsibility for the seized evidence,
with Oreilly stating, “So, I don’t know what to do and this is
gonna sound really shitty but maybe you should take the blame
and then I’ll bail you out babe.” Later in the recording, Oreilly
said to Thompson, “If it goes all on me, then I can’t get you out. . . .
Is it selfish of me to make you take all the rap? Was that selfish of
me?”

¶6 Oreilly was subsequently charged with possession of
methamphetamine, possession of marijuana, and possession of
drug paraphernalia. Thompson was charged in a separate
information with the same crimes. At their initial appearance,
Oreilly and Thompson were provided with a copy of the
applicable information and advised of their right to counsel. Both
defendants asked the court to continue the initial appearances
until they could hire an attorney. After noting that Oreilly’s case
and Thompson’s case were assigned to two different judges, the
district court stated, “I think just pretrial, we could probably keep
the cases together.”

¶7 In June 2018, an attorney appeared before the district court
on behalf of both Oreilly and Thompson. When the court asked
whether the two matters should be heard together, the attorney

20230104-CA 3 2024 UT App 79
State v. Oreilly

responded, “Yeah. It’s the same facts and we can consolidate
them[.]” The cases were then set for a preliminary hearing, but
Oreilly later waived her right to a preliminary hearing. The
attorney represented Oreilly at her arraignment and entered a
plea of not guilty on her behalf.

¶8 The attorney subsequently attended several hearings on
various matters involving Oreilly’s case. Nothing in the
transcripts of these hearings indicates that the district court ever
inquired into the propriety of the attorney’s joint representation
of Oreilly and Thompson. Nor does the record show that the
attorney or Oreilly raised any concerns with the court stemming
from the attorney’s joint representation. In fact, at a pretrial
conference in January 2020, it was the attorney who asked the
court to “consolidate the two cases and try them together.” In May
2020, the attorney again told the district court he had “no
objection to consolidating the cases and just having one jury and
one trial for both cases.” In June 2021, the attorney indicated he
and his clients were “comfortable” with a joint trial. Oreilly was
present for this hearing. She did not express any concerns with
the attorney’s joint representation, and the district court did not
inquire into the possibility of a conflict of interest.

¶9 Oreilly and Thompson were tried together in August 2022.
Neither defendant was incarcerated at the time of trial and neither
appeared for the one-day trial. The State presented, inter alia, the
testimony of the trooper and the sergeant describing their
encounter with Oreilly and Thompson, as summarized above.
The attorney for Oreilly and Thompson did not call any witnesses
for the defense, but during closing argument, he highlighted that
the vehicle in which the drugs and paraphernalia were found was
not owned by Oreilly or Thompson, implying the items could
belong to the owner. The attorney also questioned whether the
officers acted properly in video-recording Oreilly and Thompson
while they sat in the trooper’s patrol car.

20230104-CA 4 2024 UT App 79
State v. Oreilly

¶10 The jury found Oreilly and Thompson guilty of all charged
crimes, and the court later imposed sentences for each. Oreilly
then filed this timely appeal.

ISSUE AND STANDARD OF REVIEW

¶11 Oreilly seeks reversal of her convictions based on a claim
of ineffective assistance of counsel. The Sixth Amendment to the
United States Constitution guarantees a criminal defendant the
right to effective assistance of counsel. 2 See Strickland v.
Washington, 466 U.S. 668, 684 (1984). “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. Holsomback, 2022 UT App 72, ¶ 19, 513 P.3d
82 (quotation simplified).

¶12 Typically, a defendant challenging her conviction based on
ineffective assistance of counsel must demonstrate that counsel’s
performance was deficient and that she was prejudiced by the
deficient performance. See State v. Centeno, 2023 UT 22, ¶ 64, 537
P.3d 232. Here, however, Oreilly’s ineffective assistance claim is
based on allegations that her attorney’s joint representation of her
and her codefendant gave rise to a conflict of interest. Absent
special circumstances not present in this matter, see Holloway v.
Arkansas, 435 U.S. 475, 484–85 (1978); State v. Newman, 928 P.2d
1040, 1044 (Utah Ct. App. 1996), an appellant asserting an
ineffective assistance claim based on an actual conflict of interest

2. Oreilly also raises an ineffective assistance of counsel claim
under Article I, Section 12 of the Utah Constitution. Because she
does not differentiate between her federal and state claims, we
follow the lead of the Utah Supreme Court and “consider only the
claim based on the federal Constitution.” State v. Templin, 805 P.2d
182, 185 (Utah 1990).

20230104-CA 5 2024 UT App 79
State v. Oreilly

arising from joint representation can prevail without
demonstrating prejudice if she can show the alleged conflict
actually existed and that it adversely affected her attorney’s
performance, Newman, 928 P.2d at 1044.

¶13 “To establish an actual conflict of interest, [an appellant]
must show a conflict that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties.” State v. Cecala,
2021 UT App 141, ¶ 37, 502 P.3d 790 (quotation simplified). A
conflict arising from joint representation affects counsel’s
performance if “arguments or actions allegedly omitted would
likely have been made by other counsel” and there was no
“tactical reason (other than the asserted conflict) for the
omission.” State v. Webb, 790 P.2d 65, 76 (Utah Ct. App. 1990).

ANALYSIS

I. A Preliminary Matter

¶14 As an initial matter, the State argues Oreilly cannot
proceed under the theory that an actual conflict existed because
she did not timely object to the attorney’s joint representation.
This argument is based on a misreading of both United States
Supreme Court and Utah precedent.

¶15 In Holloway v. Arkansas, 435 U.S. 475 (1978), the United
States Supreme Court addressed a claim that trial counsel was
constitutionally ineffective because he simultaneously
represented three codefendants. Id. at 476–77. Counsel repeatedly
alerted the trial court to a “probable risk of a conflict of interests”
arising from his joint representation. Id. at 477–80, 484. The trial
court, however, failed to appoint new counsel or inquire into the
nature and scope of the alleged conflict. Id. at 484. Under these
circumstances, the Supreme Court held that the defendant was
entitled to a presumption the conflict resulted in ineffective

20230104-CA 6 2024 UT App 79
State v. Oreilly

assistance of counsel and the “automatic” reversal of his
conviction. Id. at 488. Two years later, in Cuyler v. Sullivan, 446 U.S.
335 (1980), the Supreme Court refused to extend its automatic
reversal ruling to a situation where the alleged conflict arising
from joint representation was not brought to the attention of the
trial court. See id. at 347–49. The Supreme Court held that a
presumption of an actual conflict and accompanying automatic
reversal of a conviction are appropriate only when the trial court
fails to provide “a defendant who objects to multiple
representation” with “the opportunity to show that potential
conflicts impermissibly imperil his right to a fair trial.” Id. at 348.
Otherwise, “[u]nless the trial court knows or reasonably should
know that a particular conflict exists, the court need not initiate
an inquiry.” Id. at 347.

¶16 In State v. Webb, 790 P.2d 65 (Utah Ct. App. 1990), this court
applied the holdings in Holloway and Cuyler to a situation in
which the defendant and his codefendant were represented by
two attorneys from the same public defender office. See id. at
71-73. This court noted that the Sixth Amendment does not
require a trial court to question the propriety of joint
representation sua sponte unless the court knows or reasonably
should know that a conflict exists because of the joint
representation. Id. at 72–73. As the Supreme Court stated in
Cuyler, “[a]bsent special circumstances, . . . trial courts may
assume either that multiple representation entails no conflict or
that the lawyer and his clients knowingly accept such risk of
conflict as may exist.” 446 U.S. at 346–47. See also State v. Newman,
928 P.2d 1040, 1043 (Utah Ct. App. 1996) (“[W]here counsel makes
no objection at trial, the trial court may presume that no improper
conflict due to joint representation is present.”). Instead, the
presumption of ineffective assistance and the automatic reversal
remedy established by Holloway are triggered only when the trial
court knew or should have known of a potential conflict and
failed to investigate. Webb, 790 P.2d at 72–73. One such situation—

20230104-CA 7 2024 UT App 79
State v. Oreilly

the one present in Holloway—is when a trial court fails to take
adequate steps after a potential conflict is brought to its attention
by an “objecting defendant.” Id. at 73 (“The Cuyler court explained
that the Holloway presumption of prejudice from a possible
conflict of interest is only appropriate in cases where the trial
court did not provide an objecting defendant with an opportunity
to show that potential conflicts impermissibly imperil his right to
a fair trial.”) (quotation simplified).

¶17 The State misreads these cases as precluding a criminal
defendant from raising an ineffective assistance claim based on a
conflict of interest arising from joint representation without first
showing she made a timely objection to the joint representation—
a situation not present here. The State overlooks our cogent
summary of the rule applicable to joint representation set out in
State v. Humphrey, 793 P.2d 918 (Utah Ct. App. 1990):

[W]here . . . the potential conflict is brought to the
attention of the trial court by counsel before or
during the early stages of trial, the trial court must
take adequate steps to resolve the issue. If a trial
court fails to investigate such a potential conflict of
interest, we presume prejudice and reverse. A
defendant who fails to bring a potential conflict to
the attention of the trial court must show on appeal
that an actual conflict of interest existed which
adversely affected his or her lawyer’s performance.

Id. at 922–23 (citations omitted).

¶18 Thus, under our precedent, Oreilly’s failure to object to the
attorney’s joint representation does not preclude her from raising
an ineffective assistance claim based on allegations of a conflict of
interest arising from joint representation. Rather, her failure to
timely object means that she does not benefit from an automatic
reversal of her conviction. Instead, she is required to show the

20230104-CA 8 2024 UT App 79
State v. Oreilly

existence of “an actual conflict which affected . . . her attorney’s
performance,” and if she does make such a showing, she need not
also “demonstrate prejudice.” Newman, 928 P.2d at 1044
(emphasis added). Therefore, Oreilly is not required to show
prejudice under the traditional ineffective assistance analysis, but
she can prevail on the particular ineffective assistance claim she
has raised only if she meets her appellate burden of showing that
an actual conflict adversely affected her attorney’s
representation. 3

II. No Actual Conflict

¶19 Having determined that Oreilly’s claim of ineffective
assistance is properly before this court, we must address whether
she has met her burden of showing the existence of an actual
conflict of interest that affected her counsel’s performance. “In
order to show an actual conflict of interest existed, a defendant
must point to specific instances in the record to suggest an actual
conflict or impairment of his or her interests. There is no violation
where the conflict is irrelevant or merely hypothetical; there must
be an actual, significant conflict.” State v. Webb, 790 P.2d 65, 75
(Utah Ct. App. 1990) (citations omitted).

¶20 In Webb, this court considered whether the appellant met
his burden of showing an actual conflict where there was a
“substantial disparity” in the evidence incriminating him and his
jointly represented codefendant. Id. at 76. This court borrowed its
substantial-disparity analysis from the Colorado Supreme Court’s
opinion in Armstrong v. People, 701 P.2d 17 (Colo. 1985) (en banc).
See Webb, 790 P.2d at 76. In Armstrong, the jointly represented

3. Oreilly does not claim she is entitled to the presumption her
counsel was ineffective because the trial court failed to investigate
a potential conflict of which it knew or should have known. See
Cuyler v. Sullivan, 446 U.S. 335, 346–47 (1980); Holloway v. Arkansas,
435 U.S. 475, 484–85 (1978).

20230104-CA 9 2024 UT App 79
State v. Oreilly

defendants were charged with widely differing criminal activity
and “the great bulk of the evidence introduced at trial was
directed toward [one defendant’s] alleged culpability.” 701 P.2d
at 22. Because of counsel’s joint representation, he was unable to
highlight the evidentiary disparities to the jury. Id. at 22–23.
Under these circumstances, the Colorado Supreme Court held
that the appellant met his burden of showing an actual conflict.
Id. at 23–24. The Armstrong court explained the reasoning behind
permitting a defendant to demonstrate an actual conflict by
showing a substantial disparity in the evidence, stating that an
actual conflict existed because “[f]or one defendant, the disparity
should be emphasized to demonstrate the weakness of the case
against and lesser culpability of that defendant. For the other
defendant, any disparity in the quantity or quality of the evidence
should be ignored or diminished.” Id. at 22.

¶21 But this court reached the opposite conclusion in Webb on
very different facts. There, two defendants represented by two
public defenders from the same office were charged with
aggravated robbery. Webb, 790 P.2d at 70–71. We held that there
was no substantial disparity in the evidence notwithstanding the
fact that there was eyewitness testimony identifying only one of
the two defendants “as the robber in the store.” Id. at 76. We noted
that (1) there was testimony the codefendant was directly
involved in the crime and (2) the jointly represented defendants
both testified at trial and “gave entirely consistent, corroborative
testimony” supporting their joint defense that other individuals
were culpable for the criminal conduct charged against them. Id.
For these reasons, we concluded that “counsel’s loyalty was not
divided between [two codefendants] with actual conflicting
interests.” Id.

¶22 We revisited the substantial disparity issue in State v.
Newman, 928 P.2d 1040 (Utah Ct. App. 1996). We again
distinguished Armstrong on the basis that the jointly represented
defendants in Newman “were charged essentially with the same

20230104-CA 10 2024 UT App 79
State v. Oreilly

crimes” whereas in Armstrong the defendants were charged with
differing levels of participation in a single criminal episode. Id. at
1044–45. Thus, we concluded, “the likelihood of a conflict” was
not present. Id. at 1045.

¶23 Oreilly argues there was a disparity in the weight of the
evidence between the methamphetamine charges brought against
her and Thompson because Thompson voluntarily admitted to
law enforcement that all the items found in the vehicle belonged
to him, but she admitted only to possession of the marijuana pipe
and grinder. 4 According to Oreilly, voluntary admissions are
among the strongest forms of evidence available to prosecutors
and Thompson’s admission is sufficient to establish the required
substantial disparity. But Webb, Newman, and Armstrong all stand
for the proposition that the substantial disparity inquiry is not
focused solely on the quantum of evidence presented against each
codefendant. As we stated in Newman, a disparity in evidence is
not substantial unless the differing weight raises the “likelihood
of a conflict” because, for example, the codefendants were
charged with different conduct as in Armstrong. See id. That is not
the situation here.

¶24 Oreilly and Thompson were charged with the same three
crimes, and they presented the same defense at trial—attempting
to attribute the drugs and paraphernalia to the owner of the
vehicle. These circumstances are on the same footing as those in
Webb, where the jointly represented defendants were both
charged with the same crime—aggravated robbery—and they
pursued the same defense of placing the blame on third parties.
See Webb, 790 P.2d at 71, 76. Similarly, in Newman, the three

4. Because we conclude Oreilly is not entitled to relief on her
ineffective assistance claim even if we consider Thompson’s
admission to law enforcement, it is not necessary to resolve the
State’s argument that Thompson’s statement was inadmissible
hearsay that Oreilly’s attorney could not comment on at trial.

20230104-CA 11 2024 UT App 79
State v. Oreilly

codefendants were charged with “essentially” the same crimes
and presented the “common, unified defense” that the victim was
the aggressor in the incident. 928 P.2d at 1045. In Newman, we
concluded there was no likelihood of a conflict under these
circumstances, distinguishing Armstrong by noting the
codefendants in Armstrong were charged with “disparate . . .
criminal conduct.” Id. (quotation simplified). See also Armstrong,
701 P.2d at 22 (“[W]hen co-defendants are accused of varying
degrees of participation in an episode of criminal conduct, joint
representation invariably places defense counsel in the middle of
conflicting interests.”) (emphasis added).

¶25 Oreilly has not identified any case in which a jointly
represented defendant charged with the same crimes as her
codefendant has shown that a disparity in the weight of the
evidence presented against each resulted in an actual conflict of
interest. Nor is this a case in which the rule should be extended to
such a situation, because even assuming the weight of the
evidence against Thompson exceeded the weight against Oreilly,
that disparity did not create the likelihood of a conflict.

¶26 Oreilly was charged with possession of
methamphetamine, possession of marijuana, and possession of
drug paraphernalia. “For possession charges, the circumstantial
evidence necessary to convict is evidence showing a sufficient
nexus between the accused and the contraband to permit an
inference that the accused had both the power and the intent to
exercise dominion and control over the contraband.” State v.
Ashcraft, 2015 UT 5, ¶ 19, 349 P.3d 664 (quotation simplified). A
jury may consider, inter alia, “ownership and/or occupancy of the
residence or vehicle, presence of the defendant when the
contraband is discovered, the defendant’s proximity to the
contraband, previous drug use by the defendant (if the
contraband is drug-related), incriminating statements or
behavior, and presence of contraband in a specific area where the
defendant had control.” Id. (quotation simplified). Although

20230104-CA 12 2024 UT App 79
State v. Oreilly

Thompson told officers he owned the drugs and paraphernalia,
Utah law criminalizes possession, not ownership. Ownership is only
one of numerous factors that a jury may consider when it
evaluates whether a defendant is guilty of possession. See id.

¶27 Oreilly concedes the evidence against her “was not
insignificant.” As to the marijuana and paraphernalia charges, she
specifically told the trooper and the sergeant that the pipe and a
grinder belonged to her. The evidence showing Oreilly also
possessed methamphetamine included her conversation with
Thompson while they sat in the trooper’s patrol car. She told
Thompson she threw a syringe away in the rest stop bathroom.
That statement is consistent with the trooper’s testimony that
Oreilly appeared to be under the influence of drugs when she
exited the bathroom. There was also testimony Oreilly had needle
marks and bruising on her arms, indicating previous drug use.
Oreilly and Thompson also discussed the used syringes found in
the vehicle and whether it was illegal to keep them after using
them. Oreilly later told the trooper that any drugs officers found
were methamphetamine, not heroin. And, critically, there was
testimony that all the seized evidence was accessible to both the
driver and the passenger.

¶28 Our review of the record confirms that any defense
Oreilly’s attorney could pursue on her behalf would not be
materially aided by Thompson’s admission that he owned all the
drugs and paraphernalia. “[P]ossession of a controlled substance
need not be exclusive and is often joint.” State v. Burdick, 2014 UT
App 34, ¶ 39, 320 P.3d 55, cert. denied, 329 P.3d 36 (Utah 2014). The
State’s evidence shows that Oreilly “had both the power and the
intent to exercise dominion and control over the contraband”
even if Thompson owned the contraband or also possessed it.
Ashcraft, 2015 UT 5, ¶ 19 (quotation simplified). Thus,
Thompson’s admission of ownership did not diminish Oreilly’s
culpability on the possession charges, let alone potentially
exculpate her of the charges. Under the circumstances here,

20230104-CA 13 2024 UT App 79
State v. Oreilly

ownership was essentially irrelevant and Oreilly has not shown
how her attorney could use Thompson’s admission in her favor.
Thus, there is no likelihood that any disparity in evidence gave
rise to an actual conflict of interest.

CONCLUSION

¶29 Because Oreilly has failed to demonstrate an actual conflict
of interest that resulted in the denial of effective assistance of
counsel, she is not entitled to the relief she seeks, and her
convictions are affirmed.

20230104-CA 14 2024 UT App 79