2019 UT App 90

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

VILIAMU SEUMANU,

Appellant.

Opinion

No. 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, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN

concurred.

MORTENSEN, Judge:

¶1 In retaliation for a drug deal gone sideways, Chris Leech 

orchestrated the kidnapping of two individuals (Middleman 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 destroyed 

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 supposed to deliver four ounces of 

methamphetamine 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 to 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 stopped 

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, where 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 get the problem taken care of before Leech

arrived. Soon 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 with it, to which Leech replied that he 

had better get it done “or it was [Middleman’s] ass.” After this 

exchange, Leech left a man with a gun in the garage with 
State 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 then 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, no one tried to stop Leech.

¶7 In the early morning hours, Myore transferred 

Middleman and Victim to the backseat of Myore’s truck. 

Seumanu sat in the backseat 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 and

escorted 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 ordered 

Seumanu to point a different gun at Middleman’s head. 
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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 Victim 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 shampoo 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 the way to Weber Canyon; they drove about 

an hour; and 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 toward Victim’s body, and saw 

Middleman shoot Victim. Finally, Seumanu stated that when 

they returned from Weber Canyon, 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 Count 3 in the Information is titled 

“AGGRAVATED KIDNAPPING” and makes specific reference 

to the aggravated kidnapping statute: Utah Code section 76-5-

302. The Information also contains the State’s probable cause 

statement describing Seumanu’s role in the kidnapping and 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 serious 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 

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 

 

1. The State filed a first amended Information on March 18, 2015, 

and a second amended Information on March 24, 2015. Neither 

amendment contains significant changes to the aggravated 

kidnapping charge or facts relevant to that charge.
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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 not 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. His 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 him. And only 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 At 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 Seumanu 

stood close by; (3) Seumanu was present for the drive up Weber 

Canyon; (4) Seumanu hiked to the murder scene with Leech, 

Middleman, and Victim; (5) Seumanu 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 general credibility 

instruction educating jurors generally on witness credibility, 

including explicit instructions to consider whether any witnesses 

had a personal interest 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 Special Verdict Form on the grounds that he had not 

received notice in the Information that the State was seeking a 

life without parole sentence. The court overruled the objection 

and allowed the State’s Special Verdict Form to be submitted to 
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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 The jury convicted 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 ultimately 

imposed the statutory indeterminate sentences for three of the 

four felony 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. First, 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 aggravated 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 

2017). 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 that because “life without parole 

was not an available sentencing option” the defendant was 

entitled only to be “resentenced on his aggravated 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 not objecting to the “as 

a party” language in the Special Verdict Form 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 the 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 instruction on 

accomplice testimony. Ordinarily, claims regarding alleged 

errors in the jury instructions are reviewed 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 further contends that pursuant to rule 23B of the 

Utah Rules 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 Rule 

23B is for appellate counsel to put on evidence he or she now 

has, not to amass 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, 2013 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 id. 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 finding of “serious bodily injury” which, if found

beyond 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 two 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 Information;

and (B) whether the State was required to give Seumanu pretrial notice that it would seek a finding of “serious bodily 

injury.” We discuss each in turn.

A. Element of the offense under Apprendi and Alleyne

¶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, 570 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 the 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

¶ 26. 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 bodily 

[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 serious 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 determined by a jury.”

¶25 Even assuming 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 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 

serious bodily injury to [Victim].” Second, Seumanu concedes 

 

(...continued)

“serious bodily injury” should have been submitted to the jury 

and proved beyond a reasonable doubt.

5. The State argues that “neither Apprendi 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. State, 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 appropriate 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 proved 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

“jurors also found . . . [that] he actually caused serious bodily 

injury.” (Emphasis added.) Thus, Seumanu was not deprived of 

his due process right to have elements of the crime charged 

submitted to a jury and proved 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 contend that it is an element that must be alleged in the 

Information. The 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 must be alleged in the Information. To the direct 

question posed in our order for supplemental briefing—must an 

element of serious bodily injury be alleged in the information—

Seumanu answered, “No.” We therefore consider the issue 

conceded and decline to address it further.6

B. Pre-Trial notice

¶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 of 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. NelsonWaggoner, 2004 UT 29, ¶ 17, 94 P.3d 186. These constitutional 

 

6. The State notes that “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 

sufficiency of the notice.
State v. Seumanu

20150593-CA 12 2019 UT App 90

protections “ensure that the 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, “ultimately, as long 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 fulfilled.” Id. ¶ 35 (cleaned 

up).

¶29 Here, Seumanu’s contention 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 Special 

Verdict Form—both of which were received before trial.

¶30 Seumanu was provided sufficient pre-trial notice of the 

serious bodily injury element in the Information. Count 3 in the 

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. § 76-5-302(3)(b) (LexisNexis 

2017),7 Seumanu was unmistakably provided with sufficient pretrial notice of his possible sentence if convicted, see State v. Preece, 

971 P.2d 1, 6 (Utah Ct. App. 1998) (holding that “an 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. Because 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.
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20150593-CA 13 2019 UT App 90

with the actual language of the statute under which he had been 

charged”).

¶31 Further, Seumanu was provided with pre-trial notice visà-vis the factual allegations 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. The probable cause statement appended to the 

Information elaborated on this allegation 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 bodily 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 

process.”); 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 death.”).

¶32 Seumanu was also provided sufficient notice of the State’s 

intent to seek a finding of serious bodily injury in the Special 

Verdict Form, 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 briefing, infers that defense counsel was not 

made aware of the Special Verdict Form until after the close of 

evidence. However, the record reflects that defense counsel 

received the Special Verdict Form at 7:25 a.m. on March 30, 

2015—more than six hours before court 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 Kidnapping of 

[Middleman,] [Seumanu], as a party, caused serious bodily 

injury to [Victim].” The Verdict Form and Special Verdict Form, 

taken together, provide clear notice that the State intended to 

seek a conviction of aggravated kidnapping under count 3 and a 

finding of serious bodily injury.

¶33 In sum, we hold that the serious bodily injury component

was properly submitted to the jury and proved 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” language in 

the Special Verdict Form 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 liability, not 

 

9. Seumanu also argued that his defense counsel was ineffective 

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 

have 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. And therefore, his counsel’s failure to object 

constitutes ineffective assistance. We disagree.

¶35 First, we reject Seumanu’s argument that accomplice 

liability cannot attach to criminal statutes that are phrased 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 “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” (emphasis added)); id. § 76-5-

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

actor . . . causes the death of another.” (emphasis added)). Indeed, 

as a general matter, accomplice liability can, and does, attach to

criminal liability 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 

defendant 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 charge 

someone as an accomplice only when he or she had acted as a 

principal. Accomplice liability would cease to have 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 

correctly 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 offense was committed.” In our view, 

Instruction 40 properly instructed the jury that Seumanu could 

be found guilty, “as a party,” under the theory of accomplice 

liability.

¶38 Similarly, the Special Verdict Form correctly instructed 

the jury on aggravated kidnapping. The aggravated kidnapping 

statute, in relevant part, provides that the crime is “a first degree 

felony 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. § 76-5-

302(3)(b). The Special Verdict Form stated that the jury 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 verbatim 
State v. Seumanu

20150593-CA 17 2019 UT App 90

recital of the serious bodily injury clause of the aggravated 

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 criminal liability 

arising from statutes that are phrased in terms of direct liability,

see Clark, 2014 UT App 56, ¶ 55, and that Instruction 40 

adequately describes the theory of accomplice liability, see Utah 

Code Ann. § 76-2-202, the phrase “as a party” as used in the 

Special Verdict Form and Instruction 40 was not erroneous.

¶40 Accordingly, we also reject Seumanu’s claim of ineffective 

assistance. “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 established, 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 above, 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 an accomplice instruction.

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 instruction.” (cleaned up). An 
State v. Seumanu

20150593-CA 18 2019 UT App 90

accomplice instruction 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 (Utah 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 This 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 error, 

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 accomplice instruction 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 trial, that he was at 

the Residence while 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 

objection—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, uncertain, or improbable that the 

court’s decision not to give an accomplice instruction was 

plainly 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 accomplice instruction was obviously required. 

Cf. State v. Marquina, 2018 UT App 219, ¶ 49, 437 P.3d 628

(holding that uncorroborated accomplice testimony was 

sufficient when “as to the core issue—[the defendant’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 

certainly, the nuance of the 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 cautionary 

accomplice instruction was required, see Utah Code Ann. § 77-

17-7(2) (LexisNexis 2017), we conclude that the court did not 

commit plain error by not providing such an instruction.

¶46 Moreover, even if the trial court’s decision not to give an 

accomplice instruction was obvious error, Seumanu cannot show 

that the error was harmful. See Dunn, 850 P.2d at 1208–09. Our 

supreme court has held that denying an accomplice instruction 

was harmless when the court instructed the jury to evaluate the 

witnesses’ credibility and those 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 (holding that the court was within its 

discretion to deny a cautionary instruction where an accomplice 
State v. Seumanu

20150593-CA 20 2019 UT App 90

witness was thoroughly cross-examined and testimony was 

corroborated).

¶47 Here, the court instructed the jury on general witness 

credibility, and its decision to not provide an accomplice 

instruction 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 interest in the outcome of the trial or had some other 

bias or motive to testify a certain way. Under these 

circumstances, an accomplice instruction “was simply not 

necessary to prompt the jury to question [the] veracity” of the 

accomplice witnesses, because the testimony, the arguments, and 

the general instructions had already “alerted the jury to [their] 

possible motives[s] for testifying with less than total candor.” 

State v. Guzman, 2004 UT App 211, ¶ 37, 95 P.3d 302.

¶48 Seumanu cannot show that an accomplice instruction 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, under a plain error analysis, 

Seumanu’s claim fails.

CONCLUSION

¶49 The 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 proved beyond a reasonable doubt. 

Additionally, Seumanu’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. 

Finally, the trial court did not commit plain error by not 

providing a cautionary accomplice instruction.

¶50 Affirmed.