2021 UT App 120

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ELBERT JOHN PAULE,

Appellant.

Opinion

No. 20200555-CA

Filed November 12, 2021

Fourth District Court, Provo Department

The Honorable Lynn W. Davis

No. 191400658

Douglas J. Thompson and Margaret P. Lindsay, 

Attorneys for Appellant

Sean D. Reyes and Nathan Jack, 

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 Elbert John Paule shot and killed his friend (Friend), and 

police later discovered the weapon used in the shooting—a 

shotgun—lying in the grass below the balcony of Paule’s 

apartment. Paule was charged with, among other things, murder 

(for shooting Friend) and obstruction of justice (for allegedly 

throwing the shotgun off the balcony). After a nine-day trial, a 

jury credited Paule’s account that he shot Friend in self-defense 

and acquitted him of murder, but nevertheless convicted him of 

obstruction of justice. Paule now appeals that conviction, 

asserting that the trial court erred by denying his motion to 

arrest judgment and that his trial attorneys rendered ineffective 

assistance. We affirm. 
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BACKGROUND1

¶2 Paule and Friend became acquainted a month or two 

prior to the shooting. While the depth of their friendship was not 

entirely clear from trial testimony, witnesses testified that Paule 

and Friend often spent time together hanging out, eating dinner, 

and playing video games, and that Paule had stayed the night at 

Friend’s residence several times. However, in the days leading 

up to the shooting, their relationship began to deteriorate, and 

the two of them exchanged heated words, largely through 

digital messages. At one point, Paule suggested that the two of 

them settle their dispute with a fight; Friend, for his part, told 

Paule that he was going to come over to Paule’s apartment so the 

two could “fight it out,” that it was not “going to end good for 

[Paule],” and that he was going to “take [Paule] out.” Paule later 

testified that he took these threats seriously and was concerned 

for his safety. 

¶3 On the day of the shooting, Friend—with his fiancée

(Fiancée) and infant child in tow—went over to Paule’s 

apartment, ostensibly to “squash the beef” between himself and 

Paule. Accompanied by Fiancée and their infant, Friend climbed 

the three flights of stairs to Paule’s apartment and knocked on 

the door. Paule was home at the time and, fearing it was Friend 

at the door, went into his bedroom to retrieve his shotgun. 

Accounts differ as to whether Friend or Paule opened the door 

first, and as to whether Friend had a knife in his hand, but one 

thing is certain: as soon as Paule realized that Friend was 

standing in his doorway, and before any meaningful dialogue 

 

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.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d 

587 (quotation simplified).
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occurred, Paule pulled the shotgun’s trigger and fatally shot 

Friend. 

¶4 After the shooting, Paule fled the scene, allegedly 

assaulting Fiancée in his attempt to escape the apartment. 

Somehow, the shotgun made its way down onto the grass below 

the balcony of Paule’s apartment, and Paule’s phone was lost—

and never found—during his departure from the apartment 

complex. Paule then traveled to California, where he eventually

turned himself in to the local authorities and was extradited back 

to Utah. The officer who booked Paule into jail in California 

asked Paule if he knew why he was being taken into custody, 

and Paule responded: “I’m here for murder” and “I used a 

shotgun.” 

¶5 After investigation, the State charged Paule with four 

crimes: (1) murder, a first-degree felony; (2) obstruction of 

justice, a second-degree felony; (3) reckless endangerment, a

class A misdemeanor; and (4) assault, a class B misdemeanor. 

The case eventually proceeded to a jury trial, which lasted nine 

days. During his opening statement at trial, the prosecutor 

explained to the jury that the murder charge was “for shooting 

and killing” Friend; the obstruction of justice charge was for 

throwing the shotgun “off the balcony in order to hinder, delay, 

or prevent the investigation”; the reckless endangerment charge

was for endangering Fiancée and the infant by “just randomly 

fir[ing]” a shotgun in their vicinity; and the assault charge was 

for “punch[ing]” and “push[ing]” past Fiancée after the 

shooting. 

¶6 At trial, the State presented testimony from many

witnesses, including Fiancée—who testified about what she saw 

at the time of the shooting—and several law enforcement 

officers. One of the officers testified that, while searching the 

apartment’s balcony, he could see a “long rifle” or “shotgun” in 

the grass “almost directly below the balcony.” Another officer 
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testified that he retrieved that gun—which he determined to be a 

shotgun—from the grass below the balcony, and he stated that 

the position in which the gun was found was consistent with it 

having been thrown to the ground. That same officer also 

testified that a live round was found in the chamber of the 

shotgun, and that the round inside the gun was “the same 

brand” as the spent shell casing discovered inside the apartment. 

And yet another officer testified that the only prints recovered 

from the shotgun were Paule’s finger and palm prints. 

¶7 At the close of the State’s case, Paule moved for a directed 

verdict as to the obstruction of justice count. In support of that

motion, Paule made one argument: that the State had presented 

insufficient evidence indicating that it had been Paule—as 

opposed to someone else—who had thrown the shotgun off the 

balcony. During argument on the motion, which took place 

outside the jury’s presence, all participants (including the court) 

appeared to assume that the obstruction of justice count 

concerned only the allegation that Paule had attempted to 

dispose of the shotgun; indeed, inherent in Paule’s request—

which asked the court to order an acquittal on the obstruction

count—was the notion that the only thing Paule had been 

accused of doing that could constitute obstruction of justice was 

throwing the gun off the balcony. The State opposed the motion

on the sole ground that there existed “sufficient circumstantial 

evidence” that Paule had been the person who threw the gun off 

the balcony. That is, the State did not assert any other factual 

bases on which the jury could convict Paule of obstruction of 

justice. The court denied the motion, concluding that, based on 

the circumstantial evidence, “the jury could make a 

determination” that Paule had been the one who threw the gun 

off the balcony. 

¶8 Paule testified in his own defense, and gave a much 

different account of the shooting than Fiancée, claiming that he 

shot Friend in self-defense. He also testified that he did not do 
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anything with the shotgun after the shooting, and instead 

claimed that one of his roommates took the shotgun from his 

hands and “ran out to the balcony.” 

¶9 After Paule rested his case, the trial court instructed the 

jury. The instruction for the obstruction of justice charge stated 

that the jury could not convict Paule unless it was able to find, 

beyond a reasonable doubt, that Paule had “conceal[ed] or 

remove[d] any item or other thing” with the “intent to hinder, 

delay, or prevent the investigation . . . of any person regarding 

conduct that constitutes a criminal offense.” The court also 

instructed the jury that, “[i]n all criminal cases, including this 

case, the unanimous agreement of all jurors is required before a 

verdict can be reached.” No further instruction regarding jury 

unanimity was given. 

¶10 During closing argument, the prosecutor discussed the 

obstruction of justice charge and—as he had during his opening 

statement—made clear to the jury that this charge was for “when 

[Paule] threw the gun over the balcony.” He pointed out that 

“only [Paule’s] prints [were] on that” gun, and urged the jury to 

convict Paule on the obstruction charge because the evidence 

indicated that Paule had been the one who threw the gun off the 

balcony. At no point did the prosecutor identify any other act as 

being the basis for the obstruction of justice charge, nor did he 

ask the jury to convict Paule on that count for any other act. 

¶11 At certain points in his closing argument, the prosecutor 

mentioned that Paule had “got rid of” his phone while fleeing 

the scene and that Paule had traveled to California immediately 

thereafter. But these comments were made much earlier in the 

argument than the prosecutor’s discussion of the obstruction 

charge, and were made in the context of discussing Paule’s guilt 

on the murder charge. The prosecutor prefaced the discussion by 

saying, “[n]ow, as to Paule’s guilt” on the murder charge, and 

argued that a person who was truly scared of Friend and who 
State v. Paule

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had acted in self-defense would not have “got rid of his phone” 

and “fled to” California. 

¶12 The jury ultimately acquitted Paule of murder, reckless 

endangerment, and assault, but convicted him of obstruction of 

justice. Paule subsequently filed a motion to arrest judgment,

arguing that the jury’s verdict was legally inconsistent because 

“the jury found [Paule] was legally justified” in shooting Friend 

and that there had been “no crime for [Paule] to obstruct.” Paule 

therefore asked the court to either enter an acquittal on the 

obstruction of justice charge or, in the alternative, to reduce 

Paule’s conviction from a second-degree felony to a class A 

misdemeanor. In its written opposition to Paule’s motion, the 

State continued to take the position that the obstruction of justice 

count had been about Paule throwing the shotgun off the 

balcony. But at oral argument on the motion, the State for the 

first time asserted that there might have been other factual bases 

upon which the jury might have convicted Paule of obstruction 

of justice, including disposing of his phone and fleeing to 

California. After argument, the trial court denied Paule’s motion.

¶13 A few weeks later, at Paule’s sentencing hearing, the State 

asked the court to deviate from the sentencing guidelines—

which indicated that probation would be appropriate—and 

sentence Paule to prison. As part of its argument, the State 

represented that it had spoken “with the jurors” and that they 

had “mentioned” three things Paule did that they thought might 

have constituted obstruction of justice: throwing the shotgun off 

the balcony; disposing of the cell phone; and “absconding to 

California.” The State discussed all three of those things in its 

argument, and urged the court to deviate from the guidelines 

because, among other reasons, Paule had taken “deliberate and 

intentional steps to obstruct not only the investigation, but to 

obstruct the entire prosecution.” Paule’s attorney objected to the 

State’s discussion of anything that jurors might have told the 

State after trial, and asked the court to strike those statements; 
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the court granted that request. Nevertheless, at the conclusion of 

the sentencing hearing the court sentenced Paule to prison, 

consistent with the State’s request.

ISSUES AND STANDARDS OF REVIEW

¶14 Paule appeals his obstruction of justice conviction, and

asks us to consider two issues. First, he asserts that the trial court 

erred when it denied his motion to arrest judgment; among other 

things, he argues that his conviction for obstruction of justice is 

legally inconsistent with his acquittal on the other charges. “We

review a trial court’s ruling on a motion to arrest judgment for 

correctness.” State v. Hand, 2016 UT App 26, ¶ 10, 367 P.3d 1052; 

see also Pleasant Grove City v. Terry, 2020 UT 69, ¶ 11, 478 P.3d 

1026 (noting that “legally impossible verdicts involve a question 

of law” and that such questions are reviewed “for correctness”). 

¶15 Second, Paule asserts that his trial attorneys rendered 

ineffective assistance by failing to object to allegedly incomplete 

jury instructions. “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

I

¶16 Paule challenges the trial court’s denial of his motion to 

arrest judgment and, in support of that challenge, makes two 

independent arguments. First, he takes issue with the conviction 

as a whole, asserting that the guilty verdict on the obstruction of 

justice charge is legally inconsistent with his acquittal on the 
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other charges and should therefore be vacated. Second, he takes 

issue with the level of conviction, arguing in the alternative that 

even if the verdict is not legally inconsistent, there is insufficient 

evidence to support a felony conviction, and asks that the 

conviction be instead entered as a misdemeanor. We address

each of Paule’s arguments, in turn, and reject them because they

are grounded in a misinterpretation of the obstruction of justice 

statute. 

A

¶17 Paule’s first argument—for complete vacatur of his 

conviction—is that the jury’s verdict was legally inconsistent. As 

Paule sees it, his conviction for obstruction of justice is 

inherently inconsistent with his acquittals on the remaining 

counts, because the acquittals mean that there was no 

underlying criminal conduct to obstruct. We first discuss the 

obstruction of justice statute, including material amendments 

made in 2001, and then address the merits of Paule’s argument. 

1

¶18 Prior to 2001, a person could be found guilty of 

obstruction of justice under Utah law if that person “conceal[ed], 

destroy[ed], or alter[ed] any physical evidence that might aid in 

the discovery, apprehension, or conviction of [an] offender,” and 

did so “with intent to hinder, prevent, or delay the discovery, 

apprehension, prosecution, conviction, or punishment of another 

for the commission of a crime.” Utah Code Ann. § 76-8-306(1)(f) 

(Lexis Supp. 2000) (emphasis added). 

¶19 In 2001, our legislature materially amended the 

obstruction of justice statute. Among other changes, the

legislature added “investigation” to the list of things that an 

actor cannot hinder, delay, or prevent without potentially 

committing obstruction of justice. See Act of Apr. 30, 2001, ch. 

307, § 2, 2001 Utah Laws 1385, 1385. And, notably for present 
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purposes, the legislature deleted “for the commission of a crime” 

and replaced that text with “regarding conduct that constitutes a 

criminal offense,” and then included a statutory definition of the 

phrase “conduct that constitutes a criminal offense.” Compare 

Utah Code Ann. § 76-8-306(1), with Act of Apr. 30, 2001, at 1385–

86. According to that definition, “‘conduct that constitutes a 

criminal offense’ means conduct that would be punishable as a 

crime and is separate from a violation of this section, and 

includes . . . any violation of a criminal statute or ordinance of 

this state.” Act of Apr. 30, 2001, at 1386 (emphasis added). 

¶20 Thus, under current Utah law, as relevant here, “[a]n 

actor commits obstruction of justice if the actor” does any one

of ten enumerated acts with the “intent to hinder, delay, or 

prevent the investigation . . . of any person regarding . . . conduct 

that would be punishable as a crime.” See Utah Code Ann. § 76-8-

306(1), (2)(a) (LexisNexis Supp. 2021) (emphasis added).2 In 

our view, the 2001 amendments broadened the scope of the 

statute. The inclusion of the word “investigation” bespeaks a 

legislative intent to criminalize interference with law 

enforcement criminal investigations, and not just the 

apprehension, prosecution, conviction, or punishment of persons 

who commit crimes. And the replacement of the phrase 

“commission of a crime” with the phrase “conduct that 

constitutes a criminal offense,” along with the inclusion of the 

statutory definition of that phrase—especially that definition’s 

use of the conditional verb construction “would be”—indicates 

legislative intent that obstruction of justice can be present even if 

the underlying conduct is never ultimately found to constitute a 

crime. Indeed, we have previously so held. See State v. Hamilton, 

 

2. Because the current iteration of the statute is not materially 

different, for purposes of this case, from the version of the 

statute in effect at the time of the shooting, we cite the current 

statute for convenience.
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2020 UT App 11, ¶ 15, 457 P.3d 447 (stating that “the obstruction 

of justice statute does not require a conviction of the underlying 

crime”). 

¶21 In this case, the enumerated act Paule was accused of 

committing was “alter[ing], destroy[ing], conceal[ing], or 

remov[ing] any item or other thing.” See Utah Code Ann. § 76-8-

306(1)(c). Thus, to obtain a conviction, the State needed to prove, 

beyond a reasonable doubt, that Paule (1) concealed or removed 

the shotgun (2) with the intent to hinder, delay, or prevent an 

investigation (3) into “conduct that would be punishable as a 

crime.” See id. § 76-8-306(1)(c), (2)(a) (emphasis added). 

2

¶22 Citing Pleasant Grove City v. Terry, 2020 UT 69, 478 P.3d 

1026, Paule asserts that the verdict in this case is “legally 

impossible.” In Paule’s view, it is impossible to reconcile the 

jury’s conviction for obstruction of justice with the jury’s 

acquittal on all other counts. As Paule sees it, the jury’s verdict 

means that no underlying crime was ever committed, and that

therefore no criminal conduct ever occurred whose investigation 

he could have been guilty of obstructing. We reject Paule’s 

argument because Terry does not apply here, and because Paule 

misinterprets the obstruction of justice statute. 

¶23 In Terry, our supreme court determined that a defendant 

who was “acquitted on [a] predicate offense but convicted on [a]

compound offense” was subject to a “legally impossible” verdict

and, in that situation, the defendant’s conviction on the 

compound offense had to be vacated. Id. ¶¶ 54, 56. The court 

distinguished between “legally impossible” verdicts and 

“factually inconsistent” verdicts, and held that the former 

“cannot stand” while the latter are sometimes permissible. Id.

¶¶ 38, 56. The court defined “legally impossible” verdicts as 

those “that are inconsistent as a matter of law because it is 

impossible to reconcile the different determinations that the jury 
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would have had [to] make to render them.” Id. ¶ 13 (quotation 

simplified). The court also noted that its decision was “narrow” 

and “limited” to situations “in which a defendant is acquitted on 

the predicate offense but convicted on the compound offense.” 

Id. ¶ 54. 

¶24 Terry simply does not apply here. Neither murder nor 

any of the other charges on which Paule was acquitted is a 

predicate offense for an obstruction of justice conviction. See

Utah Code Ann. § 76-8-306(1). A person can legally be convicted 

of obstruction of justice without also being convicted of 

murder, reckless endangerment, or assault. Indeed, as noted, a 

person can legally be convicted of obstruction of justice even in 

the absence of any conviction on any underlying crime. See

Hamilton, 2020 UT App 11, ¶ 15. The verdict the jury rendered 

here is simply not a “legally impossible” verdict as defined in 

Terry. 

¶25 Moreover, Paule’s argument is founded on an incorrect 

interpretation of the obstruction of justice statute. As Paule sees 

it, the statute requires the presence of underlying “conduct that 

constitutes a criminal offense,” see Utah Code Ann. § 76-8-306(1), 

and he contends that there was no such conduct here because the 

jury acquitted him of all underlying charges. But Paule 

overlooks the included statutory definition of the phrase 

“conduct that constitutes a criminal offense.” As noted, our 

legislature defined that phrase as “conduct that would be

punishable as a crime.” See id. § 76-8-306(2)(a) (emphasis added). 

In particular, Paule overlooks the legislature’s use of the 

conditional verb form “would be” in the statutory definition. 

“When we interpret statutes, our primary objective is to 

ascertain the intent of the legislature,” and that intent is 

sometimes expressed through verb tense or verb form. See Scott 

v. Scott, 2017 UT 66, ¶ 22, 423 P.3d 1275 (quotation simplified); 

see also id. ¶ 24 (“A statutory reading that credits a verb’s tense is 

not uncommon.”). Because “the best evidence of the legislature’s 
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intent is the plain language of the statute itself, we look first to 

the plain language of the statute.” Id. ¶ 22 (quotation simplified).

“In so doing, we presume that the legislature used each word 

advisedly,” including verb tense and verb form. Id. ¶¶ 22, 24

(quotation simplified). In our view, the legislature’s choice to use 

a conditional verb form (“would be”) in the obstruction statute 

indicates that the underlying conduct need not necessarily result 

in a criminal conviction. 

¶26 Indeed, the legislature added the word “investigation” to 

the statute in 2001, along with the amendment that defined 

“conduct that constitutes a criminal offense.” See Act of Apr. 30, 

2001, ch. 307, § 2, 2001 Utah Laws 1385, 1385–86. Since 2001, it 

has been a crime to interfere with an “investigation” of any 

person regarding “conduct that would be punishable as a 

crime.” See Utah Code Ann. § 76-8-306(1), (2)(a). Thus, in cases 

like this one where the allegation is that the actor hindered a law 

enforcement investigation, the statutory focus is squarely placed 

on the conduct being investigated at the time of the alleged 

obstruction, and not necessarily on any conduct that a factfinder 

ultimately finds, after trial, to have actually occurred. If the 

conduct under investigation at the time of the alleged 

obstruction “would be punishable as a crime,” then that conduct 

qualifies as “conduct that constitutes a criminal offense,” as that 

phrase is statutorily defined. See id.

¶27 And all of this remains true, under the statutory language, 

even if it is later determined—whether by law enforcement

officers or prosecutors who decide not to file charges, or by a 

jury who acquits—that no underlying criminal activity occurred. 

See Hamilton, 2020 UT App 11, ¶ 15 (stating that “the obstruction 

of justice statute does not require a conviction of the underlying 

crime—it simply requires a finding that the defendant took 

certain actions with the intent to hinder, delay, or prevent the 

investigation . . . of any person regarding conduct that 

constitutes a criminal offense” (quotation simplified)). Paule’s
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20200555-CA 13 2021 UT App 120

argument—that the jury’s acquittal on the underlying counts is 

inconsistent with his conviction for obstruction—founders 

principally because the conduct ultimately found to have 

occurred by the jury on the underlying charges is, in this case,

not particularly relevant to the obstruction count. Instead, the 

conduct that matters for purposes of the obstruction count is 

twofold: (a) the actions Paule took that allegedly constitute 

obstruction, and (b) the underlying conduct being investigated 

at the time of the alleged obstruction.

¶28 Paule’s contrary interpretation of the statute is not only 

incompatible with the statutory text, but could also lead to 

seemingly absurd results and could incentivize individuals to 

commit even more obstruction. Imagine a situation in which a 

driver is involved in an auto-pedestrian accident with a fatality,

but the driver observed all traffic laws and did not act even 

negligently, let alone intentionally. The driver panics, however,

upon seeing that the pedestrian died and—before police arrive, 

and out of a concern that police might think a homicide was 

committed—takes the body and hides it in a nearby ditch. Police 

investigate the incident, based on the evidence found at the 

crash site, as a potential homicide, and while conducting that 

investigation they discover the body and learn that the driver 

attempted to conceal it. Later, however, police conclude that the 

crash was completely accidental and that no provable criminal 

conduct occurred in connection with it, and no underlying 

criminal charges are ever filed. Under Paule’s interpretation of 

the statute, the driver could never be charged with obstruction of 

justice for hiding the body, because there was no underlying 

conduct that constituted a criminal offense. But Paule’s 

interpretation is incorrect: in this situation, the driver can still be 

charged with obstruction of justice, even though there is no 

underlying criminal conduct, because at the time of the 

obstruction the police were investigating a potential homicide, 

and the driver hid the body with the intent to hinder or delay 

that investigation. The possible homicide being investigated is 
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“conduct that would be punishable as a crime” if the facts end 

up turning out the way police investigators suspect, and 

therefore that conduct, under the applicable statutory definition, 

is “conduct that constitutes a criminal offense,” even though 

such conduct may never actually be proved or even prosecuted. 

See Utah Code Ann. § 76-8-306(1), (2)(a). 

¶29 In addition, Paule’s interpretation of the obstruction 

statute would incentivize individuals interested in obstructing 

justice to go all out in such efforts, because if they hinder the

investigation well enough to prevent any convictions on the 

underlying charges, they will be immune from conviction for 

obstruction of justice as well. Such a result is not only 

incompatible with the text of the statute, but it is a result that is 

unlikely to have been intended by legislative drafters. 

¶30 Thus, the jury’s ultimate conclusion that Paule acted in 

self-defense in shooting Friend does not insulate him from 

charges that he obstructed justice by impeding the investigation 

into the underlying incident. At the time Paule threw the 

shotgun off the balcony, police were investigating (or were about 

to start investigating) potential criminal conduct associated with 

the shooting death of Friend. Put in terms of the statutory text, 

that investigation was “regarding conduct . . . that would be 

punishable as a crime” if the facts had developed as suspected. 

See id. The jury’s later acquittal of Paule on the underlying

charges does not mean that the State failed to prove any of the 

elements of obstruction of justice. In appropriate cases, when 

supported by the facts, a defendant who is acquitted on the 

underlying charges may still—without any inconsistency in the 

verdict—be convicted of obstruction of justice. 

¶31 Accordingly, we conclude that the jury’s verdict in this 

case was not legally impossible, as that term is discussed in 

Terry, and that the trial court correctly rejected Paule’s argument 

to the contrary in denying his motion to arrest judgment. 
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B

¶32 Second, and in the alternative, Paule takes issue with the 

level of his conviction, and asserts that the trial court erred when 

it refused to reduce his obstruction of justice conviction from a 

second-degree felony to a class A misdemeanor. At trial, during 

proceedings in connection with the motion to arrest judgment, as 

well as here on appeal, Paule couches these arguments in terms 

of insufficiency of the evidence—that is, he asserts that the 

evidence presented at trial was insufficient to support a

conviction as a second-degree felony, as opposed to a 

misdemeanor. In assessing a sufficiency of the evidence 

challenge, we will reverse only where “the evidence is 

sufficiently inconclusive or inherently improbable such that 

reasonable minds must have entertained a reasonable doubt that 

the defendant committed the crime for which he or she was 

convicted.” State v. Jok, 2021 UT 35, ¶ 17, 493 P.3d 665 (quotation 

simplified). That standard is not met here, and on that basis we 

reject Paule’s argument. 

¶33 Under Utah law, obstruction of justice can constitute 

either a second-degree felony, a third-degree felony, or a class A 

misdemeanor, depending on the severity of the “conduct that 

constitutes an offense.” See Utah Code Ann. § 76-8-306(3). 

Obstruction of justice is a second-degree felony “if the conduct 

which constitutes an offense would be a . . . first degree felony,” 

but it is a class A misdemeanor if, among other reasons, the 

underlying offense is a misdemeanor. See id. The State charged 

Paule with second-degree-felony obstruction of justice, asserting 

that the investigation he obstructed was about whether Paule (or 

someone else) had committed first-degree murder. 

¶34 Paule contends that, because he was ultimately charged 

with three different underlying counts—one first-degree murder 

charge and two misdemeanor charges—“it is impossible to 

know whether the underlying offense” found by the jury “was 
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murder, endangerment, assault, or some other offense.” Paule 

thus asserts that the evidence is insufficient to support a seconddegree-felony conviction in this case. 

¶35 But there was copious evidence in the record to support a 

determination that the investigation at issue here was principally 

an investigation of a potential first-degree felony. In this case, 

police were clearly investigating Friend’s death as a possible 

murder. Just two days after the shooting, police charged Paule 

with first-degree murder; indeed, in the initial information filed 

in this case, that was the only charge the State brought against 

him. And on that very same day, when Paule turned himself in 

to officers in California, he told them—in response to their query 

as to what he was being held for—that he was “here for 

murder.”

¶36 We therefore have no trouble concluding that sufficient 

evidence existed to support a determination that the underlying 

investigation concerned conduct that would be punishable as a 

first-degree felony. Accordingly, the trial court did not err in 

denying Paule’s motion to arrest judgment.

3

 

3. In a related argument, Paule asserts that his trial attorneys 

rendered ineffective assistance by failing to request an additional 

instruction that might have further defined the phrase “conduct 

that constitutes a criminal offense,” and for failing to request 

some unspecified mechanism—perhaps a special verdict form—

that would have allowed the jurors to “inform the court which 

conduct that constitutes a criminal offense they determined beyond 

a reasonable doubt Paule acted to obstruct.” Paule devotes less 

than one page to this argument; to the extent Paule’s argument 

here intends to incorporate by reference his earlier contentions

regarding his interpretation of the obstruction of justice statute, 

we reject that argument for the same reasons already articulated. 

(continued...)
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II

¶37 Next, Paule asserts that his trial attorneys rendered 

constitutionally ineffective assistance by failing to object to the 

absence of a specific instruction regarding jury unanimity. In 

particular, Paule asserts that certain evidence at trial supported 

three different factual bases on which the jury might have found 

that he had obstructed justice—throwing the gun off the 

balcony, disposing of his phone, and fleeing to California—but 

notes that he was charged with only one count of obstruction, 

and he correctly observes that the jury was not instructed that 

any guilty verdict needed to be unanimous with regard to which 

factual episode formed the basis for the conviction. Paule faults 

his attorneys for not asking for a specific instruction in this 

regard, and asserts that the outcome of the case would have been 

different if they had. We find Paule’s argument unpersuasive 

because the State offered the jury only one potential basis upon 

which to ground a conviction for obstruction of justice. 

¶38 To establish that his attorneys rendered constitutionally 

ineffective assistance, Paule must show both (1) that his 

attorneys’ performance was deficient, in that it “fell below an 

objective standard of reasonableness,” and (2) that this deficient 

 

(...continued)

But even assuming, without deciding, that Paule’s trial attorneys 

performed deficiently in failing to request these items, Paule 

does not carry his burden of persuading us that there exists a 

reasonable likelihood of a different result if they had, especially 

in light of other evidence in the record, including Paule’s own 

admission (to the California officer) that he knew he was “here 

for murder.” See State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350

(“The burden is on the defendant to demonstrate a reasonable

probability that the outcome of his or her case would have been 

different absent counsel’s error.”). 
State v. Paule

20200555-CA 18 2021 UT App 120

performance “prejudiced the defense” such that “there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the 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). 

¶39 The first part of the test requires Paule to show that his 

attorneys’ performance “fell below an objective standard of 

reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified).

In evaluating the reasonableness of trial counsel, courts will 

often look to whether counsel acted strategically by taking the 

disputed action. 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.”). “If 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. 

¶40 Paule’s claim of ineffective assistance raises the issue of a 

non-unanimous jury verdict on the obstruction of justice charge. 

Specifically, Paule asserts that some (but not all) members of the 

jury could have believed that he obstructed justice by throwing 

the shotgun off the balcony, some (but not all) members of the 

jury could have believed that he obstructed justice by disposing 

of his phone, and still other (but not all) members of the jury 

could have believed that he obstructed justice by fleeing to 

California; in that event, Paule could have been convicted of 

obstruction of justice even though not all jurors would have 

agreed that he committed any particular act of obstruction. 

Because the jurors were not instructed that they had to agree on 
State v. Paule

20200555-CA 19 2021 UT App 120

the act underlying the obstruction charge, Paule contends that 

the instructions were not legally correct and that his trial 

attorneys were ineffective for not objecting to them. 

¶41 Paule correctly understands Utah’s jury unanimity 

jurisprudence. Our state constitution provides that “[i]n criminal 

cases the verdict shall be unanimous.” Utah Const. art. I, § 10.

“At its most basic level, this provision requires the full 

concurrence of all empaneled jurors on their judgment as to the 

criminal charges submitted for their consideration.” State v. 

Hummel, 2017 UT 19, ¶ 25, 393 P.3d 314. Additionally, it is “wellestablished” that our constitutional unanimity requirement “‘is 

not met if a jury unanimously finds only that a defendant is 

guilty of a crime.’” See id. ¶¶ 26, 30 (emphasis omitted) (quoting

State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951). Our 

constitution “requires unanimity as to each count of each distinct 

crime charged by the prosecution and submitted to the jury for 

decision.” Id. ¶ 26 (emphasis omitted). Indeed, “a generic ‘guilty’ 

verdict that does not differentiate among various charges would 

fall short,” as would “a verdict of ‘guilty of some crime.’” Id.

¶¶ 26–27. For example, 

a verdict would not “be valid if some jurors found 

a defendant guilty of robbery committed on 

December 25, 1990, in Salt Lake City, but other 

jurors found him guilty of a robbery committed 

January 15, 1991, in Denver, Colorado, even 

though all jurors found him guilty of the elements 

of the crime of robbery.”

Id. ¶ 28 (quoting Saunders, 1999 UT 59, ¶ 60). “These are distinct 

counts or separate instances of the crime of robbery, which 

would have to be charged as such.” Id.

¶42 In State v. Alires, 2019 UT App 206, 455 P.3d 636, we held 

that a jury verdict violated constitutional unanimity principles 

where a defendant was charged with “six identically-worded 
State v. Paule

20200555-CA 20 2021 UT App 120

counts” of sexual abuse, the counts were not distinguished by 

act or alleged victim, the victims described more than six acts 

that could have qualified as abuse, and the jury convicted the 

defendant on only two counts. See id. ¶¶ 22–23. This situation 

was problematic because “the jurors could have completely 

disagreed on which acts occurred or which acts were illegal.” Id. 

¶ 23. And even more recently, in State v. Mendoza, 2021 UT App 

79, we applied these principles to the obstruction of justice 

statute, and concluded that “the obstruction of justice statute’s 

various ways to perform the actus reus of the crime constitute 

alternative elements, the commission of any one of which could 

satisfy that statutory element, but which also require the jury to 

agree that the same underlying criminal act has been proved 

beyond a reasonable doubt.” See id. ¶ 13 (quotation simplified). 

In Mendoza, we held that a trial attorney performed deficiently in 

an obstruction of justice case by failing to request a specific jury 

unanimity instruction or a special verdict form that would have 

required the jury “to specify which statutorily prohibited act [the 

defendant] engaged in.” Id. ¶ 16.

¶43 In cases like these, jury unanimity problems can be 

mitigated in one of two ways. First, a trial court can give a 

specific jury unanimity instruction—over and above the general 

unanimity instruction, see Model Utah Jury Instructions 2d

CR216 (2018), https://www.utcourts.gov/resources/muji/inc_list.

asp?action=showRule&id=30#216 [https://perma.cc/TY2Y-DCEA]

—informing the jurors that “all of them must agree that the same 

underlying criminal act has been proved beyond a reasonable 

doubt.”4 See State v. Vander Houwen, 177 P.3d 93, 99 (Wash. 2008)

 

4. While there exists a model Utah jury instruction discussing the 

general unanimity requirement, there does not exist a model 

instruction regarding specific unanimity as to the underlying 

factual circumstance. We urge the Advisory Committee on 

(continued...)
State v. Paule

20200555-CA 21 2021 UT App 120

(en banc) (quotation simplified), quoted with approval in Alires, 

2019 UT App 206, ¶ 22. Alternatively, the prosecutor can 

specifically identify for the jury—usually in opening statement 

or in closing argument—“which act supported each charge.” See

Alires, 2019 UT App 206, ¶ 22; see also State v. Santos-Vega, 321 

P.3d 1, 18 (Kan. 2014) (stating that, in order to remedy a jury 

unanimity problem, “either the State must have informed the 

jury which act to rely upon for each charge . . . or the [trial] court 

must have instructed the jury to agree on the specific criminal 

act for each charge”), quoted with approval in Alires, 2019 UT App 

206, ¶ 22; Mendoza, 2021 UT App 79, ¶¶ 19–20 (noting that, if the 

prosecutor had “put[] all his eggs in one basket” and identified 

“one particular action” that formed the basis for the obstruction 

charge, the court “might be inclined to” reject the defendant’s 

ineffective assistance of counsel claim “for lack of prejudice”); 

Whytock, 2020 UT App 107, ¶ 31 (observing that the State could 

have used the jury instructions or closing arguments to “indicate 

to the jury which factual occasion was the one being charged”). 

¶44 In this case, Paule correctly notes that he was charged 

with only one count of obstruction of justice. He alleges, 

however, that the State put on evidence of three distinct 

underlying acts that each could have independently formed the 

basis for a conviction on that count. Paule therefore contends 

that, as in Alires, “the jurors could have completely disagreed on 

which acts occurred or which acts were illegal,” and yet could 

have nonetheless convicted him of obstruction of justice. See 2019 

UT App 206, ¶ 23. 

¶45 We disagree with Paule’s characterization of the evidence

and arguments presented at trial. At no point during trial did the 

 

(...continued)

Model Utah Criminal Jury Instructions to consider including 

such an instruction in its set of model instructions. 
State v. Paule

20200555-CA 22 2021 UT App 120

prosecutor ever argue that the obstruction count was for any act 

other than throwing the shotgun off the balcony. To the contrary, 

the State consistently maintained during trial, in representations 

made both to the jury and outside its presence, that the 

underlying act for which it sought conviction for obstruction 

was the act of throwing the shotgun off the balcony. During his 

opening statement, the prosecutor informed the jury that the 

obstruction count was for “when, after he shot [Friend], [Paule]

took that shotgun, [and] threw it off the balcony in order to 

hinder, delay, or prevent the investigation.” During the mid-trial 

argument regarding the directed verdict motion, the State again 

made clear its view that the act underlying the obstruction count 

was only the act of throwing the shotgun off the balcony. And in 

his closing argument, the prosecutor reemphasized that the 

obstruction charge was for “when [Paule] threw the gun over the 

balcony,” and asked for a conviction on that count because “only 

[Paule’s] prints are on that” gun and that fact, combined with 

other evidence, indicated that Paule had been the one who threw 

the gun off the balcony. 

¶46 Paule resists this conclusion by directing our attention to 

the fact that the jury heard evidence that Paule lost his phone 

while leaving the apartment complex and that he fled to 

California immediately thereafter, and to comments made by the 

prosecutor during closing argument discussing that evidence. 

But in our view, Paule misperceives the context in which this 

evidence was introduced and discussed. The prosecutor 

discussed that evidence during closing only in connection with 

his argument on the murder charge, not on the obstruction 

charge, and only as a way to discuss Paule’s potential 

consciousness of guilt and to argue that Paule did not shoot 

Friend out of self-defense; specifically, the prosecutor argued 

that a person who was truly scared of Friend and who had acted 

in self-defense would not have “got rid of his phone” and “fled 

to” California. These comments were not reasonably likely to 

have diluted the State’s otherwise-clear position: that it was 
State v. Paule

20200555-CA 23 2021 UT App 120

asking for an obstruction of justice conviction only for the act 

related to the shotgun, and not for any acts related to the cell 

phone or flight to California.5

¶47 And any comments the State made after the jury had been 

discharged—for instance, at sentencing, or in defending against 

Paule’s motion to arrest judgment—cannot have had any effect 

on the jury’s perception of the factual basis for the obstruction 

charge. Without commenting on whether those comments were 

well-advised, we can readily conclude that any comment made 

days or weeks after the jury’s discharge cannot possibly have 

countermanded or diluted, in the jury’s mind, the reach of the 

State’s otherwise-clear guidance to the jury regarding the scope 

of the obstruction charge. 

 

5. The trial court struck from the record any statements proffered 

by the State that jurors had told prosecutors that they considered 

the other acts—related to the phone and flight to California—to 

be in play related to the obstruction of justice charge. Not only 

have those comments been stricken from the record, and on that 

basis alone are not to be considered on appeal, our consideration 

of those comments would appear to violate at least two rules of 

evidence. See Utah R. Evid. 606(b)(1) (stating that “a juror may 

not testify about any statement made or incident that occurred 

during the jury’s deliberations; the effect of anything on that 

juror’s or another juror’s vote; or any juror’s mental processes 

concerning the verdict or indictment”); id. R. 802 (“Hearsay is 

not admissible except as provided by law or by these rules.”). 

Paule mentions these statements in his reply brief, even though 

he acknowledges that they are “inadmissible hearsay” and were 

stricken from the record. Those statements should not have been 

included in the reply brief, and we therefore grant the State’s 

motion to strike all references to those statements; we do not 

consider them for any purpose in this opinion. 
State v. Paule

20200555-CA 24 2021 UT App 120

¶48 Therefore, in this case the State properly took advantage 

of one of the pathways identified in our case law to obviate any 

jury unanimity problem: it clearly identified for the jury which 

factual circumstance formed the basis for its obstruction of 

justice charge. See Alires, 2019 UT App 206, ¶ 22. And because 

the State made this clear to the jury, Paule’s attorneys did not act 

unreasonably by electing not to seek further relief at trial. Thus, 

Paule cannot demonstrate that his attorneys performed 

deficiently, and on this basis we reject Paule’s ineffective 

assistance of counsel claim. 

CONCLUSION

¶49 The trial court did not err when it denied Paule’s motion 

to arrest judgment because the jury verdict was not legally 

inconsistent. And Paule has failed to demonstrate that his trial 

attorneys rendered constitutionally ineffective assistance. 

Accordingly, we affirm Paule’s conviction.