2024 UT App 92

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

TED LEONARD SALSMAN,

Appellant.

Opinion

No. 20230327-CA

Filed July 5, 2024

Sixth District Court, Kanab Department

The Honorable Mandy Larsen

No. 221600005

Debra M. Nelson, Dylan T. Carlson, Benjamin Miller, 

and Wendy M. Brown,

Attorneys for Appellant

Sean D. Reyes and Connor Nelson,

Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which 

JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 A jury convicted Ted Leonard Salsman of various charges 

related to drug distribution, drug possession, and possession of a 

dangerous weapon by a restricted person. On appeal, he argues 

the district court abused its discretion in denying his continuance 

motion to secure testimony from a witness who was incarcerated 

out of state and that his counsel provided ineffective assistance in 

failing to object to the jury instruction on the definition of a 

dangerous weapon. We reject Salsman’s arguments and affirm his 

convictions.
State v. Salsman

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BACKGROUND 

¶2 Salsman lived in a trailer and allowed several other 

people—including his pregnant girlfriend (Girlfriend) and his 

friend (Friend)—to stay with him on his property. While 

executing a search warrant, police found Salsman, Girlfriend, and 

Friend inside the trailer, where a “chunk of meth,” a handgun, 

and a safe with $14,000 in cash lay on the bed. Police found digital 

scales and a bowl and cutting board dusted with a white “crystallike substance.” In total, they seized approximately 315 grams of 

methamphetamine. And police found a variety of sizes of 

cellophane baggies—some unused and others with a “crystal-like 

substance” inside, which later tested positive for 

methamphetamine. They also discovered several “steak-type 

knives” and a hatchet sticking in the wall of the trailer—which 

Salsman used as a “throwing gallery”—and a twelve-inch 

serrated hunting knife in a sheath. 

¶3 Salsman admitted to using drugs with Friend and told 

officers, Friend “gets [them] from me.” Salsman was charged with

possession of a controlled substance with intent to distribute, 

possession of a controlled substance, possession of a firearm by a 

restricted person, possession of a dangerous weapon by a 

restricted person, and possession of drug paraphernalia.

¶4 In his pretrial disclosures, Salsman listed Girlfriend as a 

potential witness. Because Girlfriend had since been incarcerated 

in Arizona on murder charges, Salsman’s counsel (Counsel)

arranged for her to testify by video. But during the trial, Counsel 

informed the court that Girlfriend would be testifying by phone 

instead because the Arizona jail could not accommodate a video 

appearance. Upon the State’s stipulation, the court agreed to 

allow Girlfriend to testify by phone. After a recess on the second 

day of trial, Counsel explained to the court that the jail had 

canceled Girlfriend’s appearance because Girlfriend’s defense 

attorney had told the jail that Girlfriend would “go in and plead 

the Fifth.” Counsel had contacted Girlfriend’s defense attorney, 
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who confirmed that she “was not going to take a chance with her 

client” and would not allow her to appear—even just to exercise 

her right under the Fifth Amendment. Counsel asked the court to 

order Girlfriend to appear. Noting it had already done so, the 

court stated it would order that she appear by phone and 

declared, “[I]f she chooses to invoke the Fifth Amendment, we’ll 

cross that bridge when we get there.”

¶5 When it came time for Girlfriend to testify, Counsel 

informed the court that Girlfriend would not be testifying because 

the Arizona jail had “cut off” the call due to the lengthy wait time 

and Girlfriend’s need to go to her own court appearance that 

afternoon. Counsel then requested a continuance “because of 

[Girlfriend’s] unavailability.” The State opposed the request, 

pointing to the repeated instructions from Girlfriend’s defense 

attorney for her to plead the Fifth if she did appear. The court 

denied the continuance, noting “it appear[ed] there wouldn’t be 

any testimony elicited” because Girlfriend “would invoke her 

Fifth Amendment right as represented by her defense attorney.” 

Without Girlfriend’s testimony, Salsman was the only witness in 

his defense. 

¶6 After the close of the evidence, the court provided 

instructions to the jury, including instructions to unanimously 

decide whether the hatchet or hunting knife qualified as a 

dangerous weapon. The jury was also provided with a definition 

of a “dangerous weapon” as “an object that in the manner of its 

use or intended use is capable of causing death or serious bodily 

injury.” See Utah Code § 76-10-501(6)(a). The instructions did not 

include the statutory list of factors to help the jury determine 

whether a particular item meets this definition. See id. § 76-10-

501(6)(b). The jury found Salsman guilty on all charges.

ISSUES AND STANDARDS OF REVIEW 

¶7 Salsman challenges the district court’s refusal to grant a 

continuance to allow him to secure Girlfriend’s appearance. “The 
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granting of a continuance is at the discretion of the trial judge, 

whose decision will not be reversed . . . absent a clear abuse of that 

discretion.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986 (cleaned 

up). “A district court abuses its discretion when it denies a 

continuance and the resulting prejudice affects the substantial 

rights of the defendant, such that a review of the record persuades 

[this] court that without the error there was a reasonable 

likelihood of a more favorable result for the defendant.” Id.

(cleaned up).

¶8 He also argues Counsel provided ineffective assistance in 

failing to object to the incomplete jury instruction defining a 

“dangerous weapon.” “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. Alvarado, 2023 UT App 123, ¶ 12, 538 P.3d 633 

(cleaned up). 

ANALYSIS 

I. Continuance Motion

¶9 Salsman argues the district court abused its discretion in 

denying his continuance motion. To convince us he was entitled 

to a continuance, Salsman must show (1) “that the testimony 

sought is material and admissible,” (2) “that the witness could 

actually be produced,” (3) “that the witness could be produced 

within a reasonable time,” and (4) “that due diligence has been 

exercised before the request for a continuance.” Mackin v. State, 

2016 UT 47, ¶ 33, 387 P.3d 986 (cleaned up).1 And he must also 

1. Salsman suggests a different standard, articulated in State v. 

Torres-Garcia, 2006 UT App 45, 131 P.3d 292, which sets forth 

different factors a court may consider in ruling on a continuance 

motion. See id. ¶ 18. But the factors in Torres-Garcia are applied 

(continued...)
State v. Salsman

20230327-CA 5 2024 UT App 92

show that the denial of the continuance was “a clear abuse 

of . . . discretion,” meaning it resulted in prejudice that affected 

his substantial rights “such that a review of the record persuades 

[us] that without the error there was a reasonable likelihood of a 

more favorable result.” Id. (cleaned up). Salsman cannot meet this 

burden.

¶10 Although the district court mistakenly denied the 

continuance based on the representations from Counsel that 

Girlfriend would invoke her Fifth Amendment rights rather than 

on an invocation by Girlfriend herself, the denial does not 

constitute a clear abuse of discretion because Salsman has not 

demonstrated that Girlfriend’s testimony would have affected 

the outcome of his case.2 On appeal, Salsman argues her 

testimony would have supported his defense that the drugs in 

his trailer were for “personal use” rather than for distribution. 

But he proffers no details about what the substance of this 

testimony would have been, leaving us with pure speculation. 

And the evidence strongly suggested otherwise. Inside Salsman’s 

trailer, police found 315 grams of methamphetamine (including a 

large “chunk of meth”), digital scales, a cutting board that tested 

positive for methamphetamine, and a large quantity of various 

sizes of cellophane baggies—some of which also contained 

methamphetamine. Police also found several weapons and a 

safe containing $14,000 in cash. Given the speculative nature 

of Girlfriend’s testimony and the strength of the evidence 

“when considering a defendant’s request for a continuance based 

on the State’s failure to provide” adequate notice of a witness’s 

testimony, State v. Samples, 2022 UT App 125, ¶ 60 n.9, 521 P.3d 

526, cert. denied, 525 P.3d 1279 (Utah 2023), which is not the 

situation here. 

2. The “attorney for a witness cannot claim a privilege against selfincrimination; he can only advise the witness. In order for the 

claim to be honored by the court, it must be made by the witness.”

State v. White, 671 P.2d 191, 193 (Utah 1983) (cleaned up).
State v. Salsman

20230327-CA 6 2024 UT App 92

against Salsman, on the record before us “we cannot see a 

reasonable likelihood of a more favorable” outcome at trial had 

the court granted the continuance. Id. ¶ 37 (cleaned up).

Therefore, the district court did not abuse its discretion in denying 

his motion.

II. Jury Instructions 

¶11 Salsman argues Counsel provided ineffective assistance 

in failing to object to the jury instruction regarding the 

definition of a “dangerous weapon.” To prevail on his ineffective 

assistance claim, Salsman “must show both that Counsel’s 

performance was deficient and that the deficient performance 

prejudiced the defense.” State v. Beckering, 2015 UT App 53, ¶ 21, 

346 P.3d 672 (cleaned up). “Counsel’s performance will not be 

deemed deficient unless [Salsman] can show that Counsel’s 

representation fell below an objective standard of 

reasonableness.” Id. (cleaned up). And to establish prejudice, 

Salsman must show a “reasonable probability that but for 

Counsel’s errors, the result would have been different.” Id. ¶ 29 

(cleaned up). “In the event it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, 

we will do so without analyzing whether Counsel’s performance”

was deficient. Id. (cleaned up). Here, we need not address 

Counsel’s alleged deficient performance as the failure to object to 

the jury instruction did not prejudice Salsman. 

¶12 The jury was instructed to determine whether the hatchet 

or hunting knife qualified as a dangerous weapon, and it was 

provided with the general definition of a “dangerous weapon.” 

The jury instruction quoted the statute, defining a “dangerous 

weapon” as “an object that in the manner of its use or intended 

use is capable of causing death or serious bodily injury.” Utah 

Code § 76-10-501(6)(a). The instruction did not include the factors 

listed in the statute to assist in “determining whether any object, 

other than a firearm, is a dangerous weapon.” Id. § 76-10-

501(6)(b). These factors are 
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(i) the location and circumstances in which the 

object was used or possessed; 

(ii) the primary purpose for which the object was 

made; 

(iii) the character of the wound, if any, produced by 

the object’s unlawful use; 

(iv) the manner in which the object was unlawfully 

used; 

(v) whether the manner in which the object is used 

or possessed constitutes a potential imminent threat 

to public safety; and 

(vi) the lawful purposes for which the object may be 

used. 

Id. Salsman argues that had the jury been instructed on these 

statutory factors, it would not have convicted him. We disagree. 

¶13 At trial, the jury heard testimony that the hatchet was 

found stuck into the wall of Salsman’s trailer—because he “used 

the place as a . . . throwing gallery”—and the serrated hunting 

knife was found lying on the couch. The jury also saw the photos 

of the hatchet and the hunting knife. Based on this information, 

the jury could evaluate for itself whether the hatchet or hunting 

knife was “capable of causing death or serious bodily injury” 

under section 76-10-501(6)(a). Cf. State v. Sorenson, 2023 UT App 

159, ¶ 29, 542 P.3d 529 (concluding the “jurors were able to 

evaluate for themselves whether the tools qualified as dangerous 

weapons” when the tools were admitted as trial exhibits).

¶14 Adding the six statutory factors to the jury instruction 

would likely have harmed—not helped—Salsman’s case. First, 

the hatchet and hunting knife were found in the open area of 

Salsman’s trailer, with three people—one of whom was 
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20230327-CA 8 2024 UT App 92

pregnant—living inside the small space. Salsman testified that he 

used the wall of the trailer as a “throwing gallery” for the hatchet 

and other knives. And the trailer was full of methamphetamine, 

which Salsman and Friend admitted to using. Thus, the location 

and circumstances in which the hatchet and hunting knife were 

used (factor 1) indicate that they were capable of causing death or 

serious bodily injury. See Utah Code § 76-10-501(6)(b)(i). Next, the 

primary purpose of both a hatchet and a hunting knife (factor 2) 

is to cut. See id. § 76-10-501(6)(b)(ii). While these tools certainly 

have lawful uses (factor 6), see id. § 76-10-501(6)(b)(vi), and there 

is no indication that Salsman had used them unlawfully to 

produce an injury (factors 3 and 4), see id. § 76-10-501(6)(b)(iii), 

(iv), there was a risk that under these particular circumstances, 

these objects that were designed to cut posed a “potential 

imminent threat to public safety” (factor 5), id. § 76-10-

501(6)(b)(v). 

¶15 Thus, we are persuaded that the addition to the jury 

instruction of the six factors in section 76-10-501(6)(b) would only 

have reinforced the jury’s conclusion that the hatchet or hunting 

knife qualified as dangerous weapons under section 

76-10-501(6)(a). Accordingly, Salsman cannot demonstrate that he 

was prejudiced by Counsel’s failure to object to the jury 

instruction, and his ineffective assistance claim fails.

CONCLUSION 

¶16 The district court did not abuse its discretion in denying 

Salsman’s continuance motion. Nor did Counsel provide 

ineffective assistance in failing to object to the jury instruction 

regarding the definition of a “dangerous weapon.” We thus affirm 

Salsman’s convictions.