2019 UT App 90



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee , v. V ILIAMU S EUMANU , Appell ant

.

Opinion N o. 20150593

- CA Filed May 23, 2019

Third District Court, Salt Lake Department The Honorable Randall N. Skanchy No. 141900236

Brett J. DelPorto
, Attorney for Appellant Sean D. Reyes and Kris C. Leonard
, Attorney s for Appellee

J UDGE D AVID N. M ORTENSEN authored th is Opinion
, in which J UDGES M ICHELE M. C HRISTIANSEN F ORSTER and D IANA H AGEN concurred

.

MORTENSEN
, Judge :

¶1 In retaliation for a drug deal gone sideways, Chris Leech orchestrated the kidnapping of two individuals ( Middle m an and Victim ) . Leech and several other individuals

— including defendant Viliamu Seumanu

— held, bound, and transported Middleman and Victim to a remote location in Weber Canyon. There, Leech shot Victim and then told Middleman to shoot Victim or else Leech would kill Middleman

. Middleman complied . Seumanu, under the orders of Leech, later destr oyed all physical evidence of the murder. Seumanu was charged with murder
, aggravated kidnapping of Victim and Middleman , and obstruction of justice. A jury convicted Seumanu on all charges

.State v. Seumanu

20150593

- CA 2 2019 UT App 90 He appeals one of the aggravated kidnapping convictions for which he was sentenced to life without parole. We affirm.

BACKGROUND

The Murder

¶2 Middleman was supp osed to deliver four ounces of

m eth amphetamine to a distributor (Soules) waiting at a local residence (Residence). Middleman could not reach his supplier and
, therefore, could only procure two ounces. During the additional two

- day wait to get more methamphetamine
, Middleman confided his problem to Victim , who offered to get the remaining two ounces for a little more money. After Middleman was yet again unable t o reach his supplier , he accepted Victim’s offer to get the additional two ounces without notifying Soules of the deal or the price increase

.
¶3 Middleman waited at a friend’s house while Victim went to get the drugs. Victim took longer than expected and stop ped answering his phone when Middleman called. This caused Middleman to begin ignoring Soules’s repeated requests for an update on where the drugs were.

¶4 After waiting several hours, Middleman had Soules pick him up. Together, they went to the Residence, wh ere Middleman told Soules about Victim and how Victim was now in charge of procuring the additional two ounces of methamphetamine. Soules complained that she had customers waiting and urged Middleman to g et the problem taken care of before Leech arrived. S oon thereafter, Leech arrived at the Residence.

¶5 Upon arrival, Leech pulled out a gun and asked Middleman what was going on. Middleman tried to assure Leech that he was dealing w ith it, to which Leech replied that he had better get it done “or it was [ Middl eman ’s] ass.” After this exchange, Leech left a man with a gun in the garage withState v. Seumanu

20150593

- CA 3 2019 UT App 90 Middleman and refused to let Middleman leave. Around this time, Seumanu and several others arrived at the Residence.

¶6 In an effort to find and punish Victim, four men

— Leech, Seumanu, Middleman , and one other (Myore)

— left the Residence and went to an apartment where Victim was supposed to meet Soules. When Victim arrived at the apartment, Leech pulled a gun out and ordered Victim and Middleman to lie face down, side

- by

- side, on the floor. Leech then frisked them both, removed their shoes, and emptied their pockets. Victim tried to explain that he had the additional two ounces of drugs, but Leech told him to shut up. Leech t hen ordered Myore to blindfold both men and tie their hands behind their backs
, which he did. While there were other people present in the room, including Seumanu, n o one tried to stop Leech.

¶7 In the early morning hou rs, Myore transferred Middleman and Vict im to the backseat of Myore’s truck. Se umanu sat in the back seat next to Middleman and Victim. Myore then drove Leech, Seumanu, Victim, and Middleman to an abandoned road in Weber Canyon , stopping once for gas

. During their travels, Victim pleaded for his life and asked them not to follow through with their plan. He promised not to say anything to anyone, but Leech said it was already “too late.”

¶8 Leech asked Myore for his firearm
, and Myore complied. On Leech’s order, Seumanu opened the door of the truck an d

e scorted Middleman and Victim approximately 100 yards down a hill. There, after their faces were uncovered, Middleman looked to Victim, who said
, “I guess this is it,” and
, “I’m sorry, bro.” Leech then shot Victim in the back.

¶9 Next, Leech unbound Middleman ’s hands. He then handed his gun to Middleman and said, “There’s your home boy, you finish it or I’m going to kill you.” Middleman attempted to fire a single shot at Victim, but the gun jammed. Middleman quickly gave the gun back to Leech, who ord ered Seumanu to point a different gun at Middleman ’s head

.State v. Seumanu

20150593

- CA 4 2019 UT App 90 Seumanu did so, and once the original gun was unjammed, Leech gave it back to Middleman . With a gun pressed against the back of Middleman ’s head, Middleman shot Victim.

¶10 V ictim was left alone where he was shot
, and the four other men

— Leech, Seumanu, Myore, and Middleman

— left in the truck. On the way back to the Residence, Leech directed everyone to pretend they were still trying to find Victim. Leech further ordered Myore to clean, vacuum, and shampo o the truck, and he told Seumanu to burn everything belonging to Victim and Middleman

. Myore and Seumanu complied.

The Investigation

¶11 Several months later, detectives from the West Valley City Police Department discovered Victim ’s body

. Police interviewed many of the people present the night of the murder, including Seumanu. During Seumanu’s interview, he claimed that he did not know what the officers were talking about and stated that “it had been a while since he’d seen” Middleman ; and he last saw Victim three or four months earlier smoking outside an apartment complex in Taylorsville. When pressed further, Seumanu changed his story, admitting that he had been at the Residence with Soules
, Myore , Leech, Middleman
, and Victim

.
¶12 Seumanu then admitted that he waited for Victim at the Residence along with Soules
, Myore , Middleman
, and Leech ; he got into Myore ’s truck and went into the mountains; the group stopped for gas on th e way to Weber Canyon ; t he y drove about an hour; a nd they parked near a gate and everyone else got out while he remained at the truck. Seumanu eventually told police that Leech and Myore walked Middleman and Victim down a hill while he followed
, that he watched Leech shoot Victim , saw Leech and Middleman walk to ward Victim ’s body, and saw Middleman shoot Victim

. Finally, Seumanu stated that when they returned from Weber C anyon , Myore and Leech took care of destroying evidence while he went home

.State v. Seumanu

20150593

- CA 5 2019 UT App 90 The Proceedings

¶13 Over a year before trial, the State filed charges against Seumanu as an accomplice to one count of murder
, two counts of aggravated kidnapping, and one count of obstruction of justice (Information)

. 1 C ount 3 in the Information is titled

“ AGGRAVATED KIDNAPPING ” and makes specific reference
to the aggravated kidnapping statute: Utah Code section 76

- 5

- 302. T he Information also contains the State’s probable cause
statement describing Seumanu’s role in the kidnapping a nd that during the course of Middleman ’s kidnapping, Victim was shot and killed

.
¶14 On the morning of trial, Seumanu received the State’s proposed verdict form (Verdict Form)
, proposed special verdict form (Special Verdict Form) , and proposed jury instruction 40 (Instruction 40)

. The Verdict Form listed the charges

— including count 3 for aggravated kidnapping

— and required the jury to indicate whether Seumanu was guilty or not guilty on each charge . The Special Verdict Form required the jury to indicate whether it found “beyond a reasonable doubt” that “[d] uring the course of the commission of the Aggravated Kidnapping of [ Middleman
, ] [Seumanu] , as a party, caused se rious bodily injury to [Victim] ”

— which, if found, could result in a sentence of life without parole

. Instruction 40 defined the “as a party” language used in the Special Verdict Form. Specifically, Instruction 40 stated that “a person can commit a criminal offense even though that person did not personally do all of the acts that make up the offense” if “(1) the defendant had the

m e ntal state required to commit the offense, and (2 ) the defendant solicited, requested, commanded, encouraged, or intentionally aided another to commit the offense, and (3) the

1. The State filed a first amended Information on March 18, 2015, and a second amende d Information on March 24, 2015. N either amendment contains significant changes to the aggravated kidnapping charge or facts relevant to th at charge.State v. Seumanu

20150593

- CA 6 2019 UT App 90 offense was committed.” When Seumanu ’s counsel received the Verdict Form, the Special Verdict Form, and Instruction 40
, he did no t object, request a continuance, or indicate that he was unprepared to proceed with trial.

¶15 At trial, Seumanu claimed that his presence at the murder was coerced by Leech and that his actions did not contribute to the murder. H is wife (Wife) also testified that she attempted to persuade Leech not to do anything, but he was “gone in his mind” and would not listen. She claimed that she attempted to prevent Leech from taking Seumanu with him, but in response , Leech pointed his gun at her and insisted that Seumanu would be leaving with hi m. And o nly then did Seumanu agree to go. Finally, she testified that Seumanu returned the next morning and called her to pick him up at the Residence

.
¶16 A t least two accomplice witnesses also testified that (1) Seumanu had a gun at some point on the night of the murder; (2) Leech handled two guns at the murder scene while S eu manu stood close by; (3) Seumanu was present for the drive up Weber Ca nyon ; (4) Seumanu hiked to the murder scene with Leech, Middleman
, and Victim ; (5) S eumanu returned to the Residence with the others ; and (6) Leech ordered Seumanu to burn everything belonging to Middleman and Victim

. The trial court did not specifically provide a cautionary instruction on accomplice testimony
, but it did provide a genera l credibility instruction educating jurors generally on witness credibility, including explicit instructions to consider whether any witnesses had a personal inter est in the outcome of the trial or had some other bias or motive to testify a certain way.

¶17 After the evidence phase of trial, the parties discussed the jury instructions and verdict forms

. This time, Seumanu objected to the S pecial V erdict F orm on the grounds that he had not

rece ived notice in the Information that the State was seeking a life wi thout parole sentence. The court overruled the objection and allowed the State’s S pecial V erdict F orm to be submitted toState v. Seumanu

20150593

- CA 7 2019 UT App 90 the jury

. The court also allowed the Verdict Form and Instruction 40 as proposed by the State to be submitted to the jury.

¶18 T he jury con v icted Seumanu on all charges and further found, beyond a reasonable doubt
, that Seumanu had caused serious bodily injury to Victim during the commission of the aggravated kidnapping of Middleman

. The judge u ltimately imposed the statutory indeterminate se ntences for three of the four felon y convictions and life without parole for one of the aggravated kidnapping convictions. Seumanu appeals

.

ISSUES AND STANDARDS OF REVIEW

¶19 Seumanu raises three issues on appeal. F irst , he asserts that he is entitled to a new trial because his Sixth Amendment right to be given fair notice of the charges against him

was violated when the State failed to provide adequate notice that it would seek a factual finding of “serious bodily injury” under the aggr avated kidnapping statute. 2 “A claim of

2 . Seumanu does not challenge his conviction of aggravated kidnapping
, which is punishable by a term of imprisonment of fifteen years to life. Utah Code Ann. § 76

- 5

- 302(3)(a) (LexisNexis 201 7 ). Rather, he argues that the State failed to provide adequate notice that if “the trier of fact finds that during the course of the commission of the aggravated kidnapping the defendant caused serious bodily injury to another
, ” he could be sentenced to life without parole. Id. § 76

- 5

- 302(3)(b). Thus, if we were persuaded on this issue, Seumanu would
, at best
, be entitled to resentencing for his aggravated kidnapping conviction. See State v. Helmick
, 2000 UT 70, ¶ 12, 9 P.3d 164; see also State v. Bryant , 2012 UT App 264, ¶ 20, 290 P.3d 33 (holding tha t because “ life without parole was not an available sentencing option” the defendant was entitled only to be “resentenced on his aggra vated kidnapping conviction ”).State v. Seumanu

20150593

- CA 8 2019 UT App 90 inadequate notice presents a question of law that we review for correctness.” State v. Bragg , 2013 UT App 282, ¶ 17, 317 P. 3d 452.

¶20 Second, Seumanu argues that his defense counsel provided ineffective assistance by n ot objecting to the “as

a party” language in the S pecial V erdict F orm and/or Instruction 40 , which defined the term

. When a defendant argues that his counsel was ineffective for the first time on appeal, there is no ruling for this court to review and t he issue presents a question of law. See State v. Ott , 2010 UT 1, ¶ 16, 247 P.3d 344.

¶21 Third, Seumanu argues that the trial court plainly erred by not sua sponte providing a cautionary jury i nstruction on accomplice testimony. Ordinarily, claims regarding alleged

error s in the jury instructions are review ed for correctness. See State v. Malaga , 2006 UT App 103, ¶ 7, 132 P.3d 703. But because Seumanu failed to preserve the issue, we review for plain error. Id. 3

3 . Seumanu furt her contends that pursuant to rule 23B of the Utah Rule s of Appellate Procedure
, a remand is necessary for the trial court to make findings on whether a cautionary instruction on accomplice testimony was required . “ The purpose of R ule 23B is for appellate counsel to put on evidence he or she now has, not to ama ss evidence that might help prove an ineffectiveness of counsel claim. To this end, appellate counsel is required to submit affidavit evidence setting forth nonspeculative facts showing the alleged deficient performance of trial counsel.” State v. Bragg , 2 013 UT App 282, ¶ 24 n.6 , 317 P.3d 452 (cleaned up)

. Seumanu has failed to file both a separate motion and an affidavit and instead attempts to bring this motion by simply adding his rule 23B argument to the body of his appellate brief. This is insufficient. See i d. For this reason, we decline to address this issue further.State v. Seumanu

20150593

- CA 9 2019 UT App 90 ANALYSIS

I. Notice of Intent to Seek a Finding of “Serious Bodily Injury”

¶22 Seumanu contends that the State violated his Sixth Amendment right to fair notice of the charges against him because it failed to provide adequate notice that it intended to seek a factual find ing of “serious bodily injury” which
, if found b eyond a reasonable doubt by the jury
, would result in a sentence of life without parole. After oral argument
, we ordered supplemental briefing for clarification on t wo key issues: (A) whether a finding of “ serious bodily injury ” is an element of the offense under Apprendi v. New Jersey , 530 U.S. 466 (2000) and its progeny Alleyne v. United States , 570 U.S. 99 (2013), and if so, whether the State was required to allege it in the I nforma tion; and ( B ) whether the State was required to give Seumanu pr e

trial notice that it would seek a finding of “serious bodily injury

. ” We discuss each in turn

.

A. Element of the offense under Apprendi and All e yne

¶23 The United States Supreme Court, in Apprendi , held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. This holding was expanded to mandatory minimum sentences in Alleyne
, 5 70 U.S. 99

. 4

4

. The Supreme Court in Apprendi and Alleyne reasoned that requiring such facts to be considered elements of the offense “enables t he defendant to predict the legally applicable penalty from the face of the indictment.” Alleyne , 570 U.S. 99, 114 (2013) ( citing Apprendi , 530 U.S. 466, 478

– 79 (2000) ). Here, however, Seumanu has conceded that the element of “serious bodily injury” was not required on the face of the Information. See infra ¶ 2 6

. Therefore, we limit our analysis to whether a finding of (continued...)State v. Seumanu

20150593

- CA 10 2019 UT App 90 ¶24 Seumanu argues that “ [a] finding of serious b odily [injury] is an element of aggravated kidnapping because it increases the penalty from 15

- years

- to

- life to life without parole.” Seumanu continues, “Because a finding that Seumanu ‘caused serio us bodily injury to another’ is a factual finding . . . that extended Mr. Seumanu’s prison stay from a minimum of 15 years

— with the possibility of parole

— to life without parole, Apprendi and Alleyne require . . . it to be a factual finding that must be det ermined by a jury.”

¶25 Even a ssuming that Seumanu is correct, and without directly deciding the issue , he has conceded that the finding of serious bodily injury was submitted to the jury and found beyond a reasonable doubt as required by Apprendi and Alleyne

. 5 First, it is undisputed that the S pecial V erdict F orm required the jury to indicate whether it found “beyond a reasonable doubt” that “[d]uring the course of the commission of the Aggravated Kidnapping of [ Middleman
, ] [Seumanu], as a party, caused serious bodily injury to [Victim].” Second, Seumanu concedes

(...continued) “serious bodily injury” should have been submitted to the jury and prove d beyond a reasonable doubt.

5

. The State argues that “neither Ap prendi nor Alleyne applies to transform the [finding of serious bodily injury] into an element” because it is merely a “sentencing factor” that establishes a presumptive sentence for a particular type of aggravated kidnapping. The State cites LeBeau v. Sta te , 2014 UT 39, 337 P.3d 254, to support its argument that “[t]he sentencing scheme does not enhance a sentence for a conviction but, based on two identified sentencing factors, determines which sentence in the range of possible sentences is the appropriat e presumptive sentence to be assigned to a particular conviction.” However, because Seumanu has conceded that the element of serious bodily injury was submitted to a jury and prove d beyond a reasonable doubt, we decline to address the State’s argument

.State v. Seumanu

20150593

- CA 11 2019 UT App 90 that he was “ convicted of aggravated kidnapping” and that

“

juror s also found . . . [that] he actually caused serious bodily injury.” (Emphasis added.) Thus, Seumanu was not de prived of his due process right to have elements of the crime charged submitted to a jury and prove d beyond a reasonable doubt.

¶26 To be clear
, while Seumanu asserts on appeal that serious bodily injury is an element under Apprendi and Alleyne
, he does
not co ntend that it is an element that must be alleged in the I nformation. T he parties were ordered to provide supplemental briefing on the issue of whether serious bodily injury is an “element of the offense” under Apprendi and Alleyne
, and if so, whether it mu st be alleged in the I nformation. To the direct question posed in our order for supplemental briefing

— must an element of serious bodily injury be alleged in the i nformation

— Seumanu answer ed
, “No

. ” We therefore consider the issue conceded and decline to address it further

. 6

B. Pre

- Trial n otice

¶27 Seumanu does contend, however, that the “State should have

— and did not

— apprise [him] of its intent to seek a factual finding of serious bodily injury under [ Utah Code section 76

- 5

- 302(3)(b) ]

. ” We disagree.

¶28 “ The right o f an accused to know the nature of the offense with which he is charged is a fundamental right guaranteed by both our federal and state constitutions.” State v. Nelson

Waggoner , 2004 UT 29, ¶ 17, 94 P.3d 186. Th ese constitutional

6

. The State notes t hat “ the question of whether Apprendi

- type elements must be alleged in an Information has not been decided in this jurisdiction.” While we need not address the issue on the merits, we note that in practice it would be prudent for prosecutors to provide as express a notice as possible in order to be more clear to defendants and to avoid attacks on the suffi ciency of the notice.State v. Seumanu

20150593

- CA 12 2019 UT App 90 protection s “ensure that t he accused is given sufficient information so that he or she can know the particulars of the alleged wrongful conduct and can adequately prepare his or her defense. ” State v. Klenz , 2018 UT App 201, ¶ 34 , 437 P.3d 504 (cleaned up) . Thus, “u ltimately, as lo ng as a defendant is sufficiently apprised of the State’s evidence upon which the charge is based so that the defendant can prepare to meet that case, the constitutional requirement is ful filled.” Id. ¶ 35 (cleaned up)

.
¶29 Here, Seumanu ’s conten tion that only “after the close of evidence, [was] defense counsel . . . told in court that he should have prepared a defense to a different crime, i.e., that Seumanu caused serious bodily injury
, ” is not supported by the record

. The record shows that Seumanu was given adequate notice of his charges
, first in the Information and second in the S pecial V erdict F orm

— both of wh ich were received before trial.

¶30 Seumanu was provided sufficient pre

- trial notice of the serious bodily injury element in the Information. Count 3 in t he Information identifies aggravated kidnapping by both name and section of the Utah Code . And where the aggravated kidnapping
statute provides that “ [a] ggravated kidnapping is

. . . punishable by a term of imprisonment of . . . life without parole
, if the trier of fact finds that during the course of the commission of the aggravated kidnapping the defendant caused serious bodily injury to another
, ” Utah Code Ann. § 7 6

- 5

- 302(3)(b) (LexisNexis 201 7 )
, 7 Seumanu was unmistakably provided with s ufficient pre

tri al notice of his possible sentence if convicted
, s ee State v. Preece
, 971 P.2d 1, 6 (Utah Ct. App. 1998) ( holding that “ a n information was not defective where it specifically provided the offense’s statutory name and the section proscribing the relevant conduct ” because a defendant is responsible for “familiarizing himself

7

. Bec ause the statutory provision in effect at the relevant time does not differ in any material way from the provision now in effect, we cite the current version of the Utah Code.State v. Seumanu

20150593

- CA 13 2019 UT App 90 with the actual language of the stat ut e under which he ha d been charged” )

.
¶31 Further, Seumanu was provided with pre

- trial notice vis

à

- vis the factual allegation s in the Information. Specifically, the serious bodily injury attributed to Seumanu was the murder of Victim , which occurred during the commission of the joint kidnapping. T he probable cause statement appended to the I nformation elaborated on this allegati on by describing the kidnapping, the fact that Victim was shot twice, and when and where during the kidnapping Victim was shot. Thus, the State provided Seumanu with ample written notice in the Information that the State intended to prove that serious bodi ly injury was inflicted during the commission of the kidnapping. See State v. Martinez , 896 P.2d 38, 41 (Utah Ct. App. 1995 ) (“ [T] he State need only allege the circumstance necessary to invoke the enhancement statute in order to provide adequate due proces s

. ”) ; see also State v. Pham , 2016 UT App 105, ¶ 26, 372 P.3d 734 (“Because being shot can lead to death, it is not inherently unreasonable for a jury to find that a particular shooting resulted in serious bodily injury by creating a substantial risk of de ath

. ”)

.
¶32 Seumanu was also provided sufficient notice of the State’s intent to seek a finding of serious bodily injury in the S pecial V erdict F orm , which he received prior to trial. 8 The Verdict Form listed each charge

— including count 3

— and required the jury to indicate whether Seumanu was guilty or not guilty of each. The

8

. Seumanu, in his brief ing , infers that defense counsel was not made aware of t he S pecial V erdict F orm unt il after the close of evidence. However, t he record reflects that defense counsel received the S pecial V erdict F orm at 7:25 a.m. on March 30, 2015

— more than six hours before cou rt convened for jury selection. Importantly, having received this notice in writing before the commencement of trial, Seumanu cannot claim he would have conducted trial differently had he known that the State would be submitting the Special Verdict Form.State v. Seumanu

20150593

- CA 14 2019 UT App 90 Special Verdict Form further required the jury to indicate whether it found “beyond a reasonable doubt” that “[d]uring the course of the commission of the Aggravated Ki dnapping of [ Middleman
, ] [Seumanu] , as a party, caused serious bodily injury to [Victim].” The V erdict F orm and S pecial V erdict F orm, taken together, provide clear notice that the State intended to seek a conviction of aggravated kidnapping under count 3 a nd a fi nding of serious bodily injury.

¶33 In sum, we hold that the serious bodily injury component was properly submitted to the jury and prove d beyond a reasonable doubt

. We further hold that Seumanu was given adequate pre

- trial notice of the State’s intention to pursue a factual finding of serious bodily injury. 9

II. Ineffective Assistance

¶34 Next, Seumanu argues that his trial counsel was ineffective for not objecting to (1) the “ as a party ” langu age in the S pecial V erdict F orm and /or (2) Instruction 40, which defined the phrase “as a party” in terms of accomplice liability. His position is grounded on the premise that the aggravated kidnapping statute requires that he personally cause serious bodily injury to another during the kidnapping to be subject to a sentence of life without parole . In other words, Seumanu argues that accomplice liability cannot attach to aggravated kidnapping because that statute is phrased in terms of direct l iability
, not

9

. Seumanu also argued that his defense counsel was i neffective for failing to object to the Special Verdict Form on the ground that notice was inadequate. However, we conclude that Seumanu’s counsel was not ineffective because pre

- trial notice was adequate , and therefore any objection on that ground would h ave been futile. See State v. Christensen , 2014 UT App 166, ¶ 10, 331 P.3d 1128 (“The failure to raise futile objections does not constitute ineffective assistance of counsel.” (cleaned up)).State v. Seumanu

20150593

- CA 15 2019 UT App 90 indirect liability

. A nd therefore, his counsel’s failure t o object constitutes ineffective assistance . We disagree.

¶35 First, w e reject Seumanu’s argument that accomplice liability cannot attach to criminal statutes that are phrase d in terms of direct, rather than indirect, liability. See , e.g. , Utah Code Ann. § 76

- 5

- 302(3)(b) (LexisNexis 2017) ( providing that aggravated kidnapping is punishable by a term of life without parole “ i f the trier of fact finds that during the course of the commission of the aggravated kidnapping the defendant caused serious bodily inju ry to another ” (emphasis added)) ; id. § 76

- 5

- 202 ( 1 ) (“Criminal homicide constitutes aggravated murder if the actor

. . . causes the death of another

. ” (emphasis added)). Indeed,

a s a general matter, accomplice liability can, and does, attach to criminal li ability arising from statutes that are phrased only in terms of direct liability. See State v. Clark , 2014 UT App 56, ¶ 55, 322 P.3d 761 (affirming convictions of an accomplice to “ one count of aggravated murder, two counts of attempted aggravated murder, three counts of aggravated kidnapping, one count of aggravated burglary, one count of aggravated robbery, and one count of aggravated cruelty to animals ”)

. 10

¶36 Second, because accomplice liability can attach to aggravated kidnapping, the Special Verdict Form and Instruction 40 accurately instructed the jury on the law. The

10 . A nearly identical challenge to the application of accomplice liability was rejected by our supreme court in State v. Briggs , 2008 UT 75, 197 P.3d 628. The court in Briggs held that the State was not required to prove constructive possession before the d efendant could be convicted as an accomplice to the crime of possession. Id. ¶ 20 (“If we were to hold that it is necessary for an accomplice to be in actual possession of the contraband before accomplice liability could be established, the State could cha rge someone as an accomplice only when he or she had acted as a principal . A ccomplice liability would cease to ha ve any independent function.”).State v. Seumanu

20150593

- CA 16 2019 UT App 90 general rule is that an accurate instruction upon the basic elements of an offense is required. State v. Beckering , 2015 UT App 53, ¶ 23 , 346 P.3d 672 . “To determine if jury instructions

co rrectly state the law, we look at [them] in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” Id. (cleaned up).

¶37 Instruction 40 correctly instructed the jury that Seumanu could be found guilty on an accomplice liability theory. Utah’s accomplice liability statute provides that a defendant is liable for criminal conduct if, “acting with the mental state required for the commission of an offense,” he “solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense.” Utah Code Ann. § 76

- 2

- 202 (LexisNexis 2017 )

. Instruction 40 stated that “a person can commit a criminal offense even though that person did not personally do all the acts that make up the offense” if “(1) the defendant had the mental state required to commit the offense, and (2) the defendant solicited, requested, commanded, encouraged, or intentionally aided another to commit the offense, and (3) the offen se was committed.” In our view, Instruction 40 properly instructed the jury that Seuman u could be found guilty, “as a party,” under the theory of accomplice liability.

¶38 Similarly, t he Special Verdict Form correctly instructed the jury on aggravated kidnappi ng. The aggravated kidnapping statute, in relevant part, provides that the crime is “a first degree felony punishabl e by a term of imprisonment of . . . life without parole, if the trier of fact finds that during the course of the commission of the aggrava ted kidnapping the defendant caused serious bodily injury to another. ” Utah Code Ann. § 76

- 5

- 302(3)(b). T he S pecial V erdict F orm stated that the j ury was required to indicate whether it found “beyond a reasonable doubt” that “[d]uring the course of the commission of the Aggravated Kidnapping of [ Middleman
, ] [Seumanu] , as a party, caused serious bodily injury to [Victim].” Thus, aside from the “as a party” phrase, the Special Verdict Form is a verbatimState v. Seumanu

20150593

- CA 17 2019 UT App 90 recital of the serious bodily injury clause of the ag gravated kidnapping statute

.
¶39 Taken as a whole , Instruction 40 and the Special Verdict Form correctly instructed the jury on accomplice liability as applied to aggravated kidnapping. In light of the fact that accomplice liability can, and does, extend crimi nal liability arising from statutes that are phrased in terms of direct liability
, see Clark , 2014 UT App 56, ¶ 55
, and that Instruction 40

a dequately describes the theory of accomplice liability, see Utah Code Ann. § 76

- 2

- 202, the phrase “as a party” as u sed in the Special Verdict Form and Instruction 40 was not erroneous.

¶40 Accordingly, we also reject Seumanu ’s claim of ineffective assist ance . “To succeed on an ineffective assistance of counsel claim, [Seumanu] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” See Beckering , 2015 UT App 53, ¶ 21 (cleaned up). It is well establis hed, however, that the “failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance.” State v. Whittle , 1999 UT 96, ¶ 34, 989 P.2d 52 (cleaned up); see also State v. Ricks , 2013 UT App 238, ¶ 22, 314 P.3d 1033 (“The Sixth Amendment does not require counsel to make futile objections.”). Thus, Seumanu’s ineffective assistance claim must fail if objections to the Special Verdict Form and Instruction 40 would have been futile if raised. As shown ab ove , there was no error in the Special Verdict Form or Instruction 40
, as to the “as a party ” language
, so objections to either would have been futile

.

III. Cautionary Instruction

¶41 Finally, Seumanu argues that the trial court plainly erred by not sua sponte providing a n a ccomplice i nstruction

. Specifically, Seumanu argues that the trial court erred by ignoring its “obligat [ ion ] to properly apprise the jury of the potentially unreliable nature of the accomplices’ testimony by means of a special cautionary inst ruction.” ( c leaned up)

. AnState v. Seumanu

20150593

- CA 18 2019 UT App 90 a ccomplice i nstruction is required only when (1) an accomplice (2) gives uncorroborated testimony, and (3) the judge finds the testimony “to be self contradictory, uncertain or improbable.” State v. Dunn , 850 P.2d 1201, 1226 (Uta h 1993) (quoting Utah Code section 77

- 17

- 7(2)). Otherwise, “the giving of a cautionary instruction is left to the trial court’s discretion.” State v. Neeley
, 748 P.2d 1091, 1096 (Utah 1988).

¶42 T his issue is not preserved
, and we therefore review it for plain error

. See State v. Ringstad , 2018 UT App 66, ¶ 32, 424 P.3d 1052. To demonstrate plain error, Seumanu must show that “(i) [a] n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the erro r, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined. ” Dunn , 850 P.2d at 1208

– 09.

¶43 Here, Seumanu cannot show error

— let alone obvious

error

— because no a ccomplice i nstruction was required for two

reasons

. First, any accomplice testimony of Seumanu ’s whereabouts on the night of the kidnapping and murder was corroborated by non

- accomplice testimony . Specifically, Seumanu admitted
, 11 and Wife testified at tria l
, that he was at the Residence w hile Victim and Middleman were held at gunpoint and tied

- up; he left the Residence with Leech, Myore, Victim, and Middleman ; and Wife picked him up at the Residence in the morning. Thus, accomplice testimony placing Seumanu at the scene of the crime was sufficiently corroborated.

¶44 Second, Seumanu has not demonstrated that other accomplice testimony relevant to Seumanu’s conduct and participation in the kidnapping and murder, supra ¶ 16, was so

11

. Seumanu made several admissions to police during an interview . Those statements were admitted

— without object ion

— when police later testified at trial. See Utah R. Evid

. 801(d) (2)

.State v. Seumanu

20150593

- CA 19 2019 UT App 90 obviously self

- contradictory, un certain, or improbable that the court’s decision not to give an a ccomplice i nstruction was plain ly in error. Seumanu’s sole argument on this point is that each accomplice admitted generally to not being completely honest with police during the investigation. This falls short of showing that an a ccomplice i nstruction was obviously required. Cf. State v. Marquina
, 2018 UT App 219, ¶ 49 , 437 P.3d 628 (holding that uncorroborated accomplice testi mony was sufficient when “as to the core issue

— [ the d efendant’s] involvement in the [crime]

— the stories were consistent ” and that “ it was for the jury to weigh the evidence and to determine the credibility of the witnesses” (cleaned up)). Indeed, Seumanu ’s general argument that accomplices were not honest with police during their initial investigation does not demonstrate that the accomplice testimony at trial was inconsistent as to any specific fact, let alone a “core issue.” And

c ertainly, the nuance of t he argument Seumanu now makes on appeal would not have been obvious to the trial court.

¶45 Because the aforementioned material testimony was either corroborated by Seumanu and his own witness , or otherwise not so obviously inconsistent that a c autionary

a ccom plice i nstruction was required, s ee Utah Code Ann. § 77

- 17

- 7(2) (LexisNexis 2017) , we conclude that the co urt did not commit plain error by not providing such an instruction

.
¶46 Moreover , e ven if the trial court’s decision not to give an

a ccomplice i nstruction was obvious error, Seumanu cannot show that the error was harmful

. See Dunn , 850 P.2d at 1208

– 09. O ur supreme court has held that denying a n a ccomplice i nstruction was harmless when the court instructed the jury to evaluate the witnesses’ credib ility and th ose credibility concerns were addressed at trial. Id. at 1226 ( holding that any error was harmless where the jury had evidence of the accomplice’s motivation to lie but received a general credibility instruction); Neeley , 748 P.2d at 1096 (hold ing that the court was within its discretion to deny a cautionary instruction where an accompliceState v. Seumanu

20150593

- CA 20 2019 UT App 90 witness was thoroughly cross

- examined an d testimony was corroborated).

¶47 Here, t he court instructed the jury on general witness credibility
, and its decision to not provide a n a ccomplice i nstruction therefore did not result in harm

. Specifically
, the trial court instructed jurors generally on witness credibility, including explicit instructions to consider whether any witnesses had a personal inter est in the outc ome of the trial or had some other bias or motive to testify a certain way. Under these circumstances, a n a ccomplice i nstruction “was simply not necessary to prompt the jury to question [the] veracity” of the accomplice witnesses
, because the testimony, th e arguments , and the general instructions had already “alerted the jury to [their] possible motives[s] for testifying with less tha n total candor.” State v. Guzman , 2004 UT App 211, ¶ 37, 95 P.3d 302.

¶48 Seumanu cannot show that an a ccomplice i nstruction was required
, that the need to so instruct was obvious, or that the trial court’s failure to provide such an accomplice instruction sua sponte caused any harm. Therefore, u nder a plain error analysis, Seumanu’s claim fails.

CONCLUSION

¶49 T he State did not fail to provide adequate notice of its intent to seek a finding of “serious bodily injury
, ” which could result in a sentence of life without parole
, and such a finding was submitted to the jury and prove d beyond a reasonable doubt

. A dditionally, S eumanu’s trial counsel was not ineffective for failing to object to the Special Verdict Form and/or Instruction 40 because those instructions correctly informed the jury of accomplice liability theory potentially applicable to this appeal

. F inally, the trial court did no t commit plain error by not providing a c autionary a ccomplice i nstruction.

¶50 Affirmed.