2022 UT App 41

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ANDY PHILLIPS CABUTUTAN,

Appellant.

Opinion

No. 20200151-CA

Filed March 31, 2022

Eighth District Court, Vernal Department

The Honorable Edwin T. Peterson

No. 181800504

Aaron P. Dodd and Kara H. North, 

Attorneys for Appellant

Sean D. Reyes and Jonathan S. Bauer, 

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

MORTENSEN, Judge:

¶1 Andy Phillips Cabututan’s fight with his boss (Boss)

started with words, a pistol, swinging fists, a kick to the groin,

and a brick; but the fight ended with Boss’s death after 

Cabututan struck Boss’s head with a shovel. At Cabututan’s 

murder trial, the jury rejected his assertion that he acted in 

perfect self-defense and ultimately convicted him of the lesser 

included offense of manslaughter. Cabututan appeals on various 

grounds, but we affirm.
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BACKGROUND1

¶2 At a time when Cabututan and Boss maintained a good 

relationship, Cabututan moved his camper onto Boss’s property 

as part of an agreement to perform mechanical work on Boss’s 

taxis. However, as the months passed, their relationship soured. 

Cabututan, in Boss’s view, had failed to live up to his end of the 

bargain—namely, Cabututan sat in his camper instead of 

working on the taxis.

¶3 One morning, while Cabututan sat in his camper, he 

heard a sudden bang on his door. Boss had come to confront 

Cabututan about Cabututan’s failure to do enough work. After 

opening the camper door, Cabututan walked past Boss, opened 

the door to his van and got in, and, leaving the van door open, 

began rolling a cigarette. For a moment, Cabututan listened as 

Boss “yell[ed] and scream[ed],” but he soon informed Boss that 

he would be moving. In response, Boss challenged him, “Come 

on out of there and we’ll handle this.”

¶4 So, as Cabututan told the police, he “stepped up to him,” 

“[t]ook off [his] shirt[,] and came at him.” But almost 

immediately, Boss produced a pistol. Cabututan, seeing a loaded 

pistol pointed straight at him, “just went into complete blank out 

self-defense mode,” “took a swing at [Boss], and blocked . . . the 

pistol.” Boss lowered the pistol and Cabututan jumped to the 

side before seeing Boss raise the pistol again. Cabututan reacted 

quickly and “kicked [Boss] square in the nuts,” but to 

Cabututan’s surprise, “it didn’t even [faze] him. He still had the 

pistol in his hand.” When Boss raised the pistol again, Cabututan 

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
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20200151-CA 3 2022 UT App 41

“just started dancing” and “moving around”—all amidst “a 

bunch of screaming” from both of them.

¶5 Eventually, Boss “reached down and picked up [a] brick,” 

giving him “two weapons in his hand[s]” while Cabututan had 

none. But then Cabututan saw a shovel lying on the ground. 

Cabututan picked it up and swung it at Boss, but Boss “ducked 

to the side.” Boss raised the pistol in one hand and had the brick 

“up ready to throw.” Thinking that Boss would throw the brick,

Cabututan swung the shovel again. Boss side-stepped and 

started to raise the pistol again, but Cabututan struck him with 

the shovel on the side of the head and he “dropped,” falling 

“face first.” Cabututan threw the shovel, “kind of freaked out 

and walked [away] and came back.”

¶6 From her living-room window, Boss’s wife (Wife) saw 

Cabututan “walking around, holding his head.” When she went 

outside to find out what was going on, Cabututan told her that 

Boss “came after [him]” and pointed toward where Boss’s body 

lay on the ground, face down. She then called 911, and 

Cabututan attempted to perform CPR. Despite these efforts, and 

the efforts of police and medical professionals, Boss died. At the 

scene, Cabututan provided police a statement detailing the 

fight’s progression as described above, and later, the State 

charged Cabututan with murder.

¶7 At trial, defense counsel opted to pursue a theory of selfdefense and conceded that Boss had died by Cabututan’s hand, 

stating, “We all know [how Boss died]. He died—he got hit in 

the head with a shovel.” Defense counsel, however, did object to 

several photos depicting both the autopsy and the crime scene. 

The autopsy photos showed a skull, with the scalp skinned back 

to reveal the internal injuries that resulted from the hit with the 

shovel. In defense counsel’s estimation, the prejudicial impact to 

the jury far outweighed any probative impact that could result 

from the photos’ admission; he asserted that the jury would just 
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20200151-CA 4 2022 UT App 41

see “a morbid, blood[y], skinned back[] skull.” The trial court, 

however, disagreed, stating that because “the State is going to be 

proving up the cause of death and the degree of force that 

caused the death . . . the probative value of these [photos] 

outweigh[ed] the prejudicial value in that” the photos went 

toward “the degree of force that was exerted that would have 

caused the demise of the individual.” As for the crime scene 

photos, the court determined that they depicted the external 

injury and the spatial relationship between where the body, the 

brick, and the pistol were found on the scene. Defense counsel 

objected to these photos on grounds that they “sensationalized” 

the on-scene treatment to elicit sympathy from the jury. But, 

except for one photo excluded because it was “redundant,” the 

court allowed the photos, in part, because they “show[ed] the 

alleged injury,” as well as “a lot of other things that the State 

deem[ed] relevant” but that the court did not expressly identify.

¶8 In addition to testimony about the fight as described 

above, the State elicited testimony from Wife about how she 

experienced the incident, and when asked how the incident had 

affected her, she responded, “It’s changed my whole life. I’ve 

lost everything. I even lost my dog. He died. I mean, [I] lost my 

financial [security] that I had before, where I’m having to work 

just to survive now.” And later, the State elicited testimony from 

the medical examiner who conducted the autopsy. The medical 

examiner described the autopsy photos and testified that he 

determined the “manner of death” was—as a medical and not a 

legal matter—“homicide” due to “blunt head trauma.”

¶9 Following the State’s case, Cabututan moved for a 

directed verdict. He asserted that the State had failed to carry its 

burden of proving that his affirmative defense of “perfect selfdefense” did not apply. In response, the State argued that it had 

“provided sufficient evidence that the jury could find that the 

defendant [was] in fact guilty of murder and that in fact selfdefense [did] not apply.” The State asserted that the instructions
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would “state that if [Cabututan] . . . was engaged [in] combat by 

agreement,” then perfect self-defense would not apply. And by 

Cabututan’s “own words” combat by agreement was “exactly 

what happened, and the jury could so find.” The court agreed

and denied the motion.

¶10 The jury instructions informed the jury that to find 

Cabututan guilty of murder, it would have to agree on each of 

the elements of murder and that perfect self-defense did not 

apply. The jury was also instructed that if it found him guilty of 

murder, it would have to determine whether imperfect selfdefense applied. The jury was informed that imperfect selfdefense was a “partial defense” to murder, that it applied “when 

the defendant caused the death of another while incorrectly, but 

reasonably, believing that his conduct was legally justified or 

excused,” and that its effect would be “to reduce the level of the 

offense.” Ultimately—whether due to a determination that only 

imperfect self-defense applied or because it did not believe that 

the State had proved the elements of murder—the jury found 

Cabututan guilty of the lesser included offense of manslaughter.

ISSUES AND STANDARDS OF REVIEW

¶11 Cabututan now appeals and raises three primary issues 

for our review. First, he contends that the State presented 

insufficient evidence to overcome his claim of perfect selfdefense. “When reviewing a preserved sufficiency of the 

evidence claim, we ask simply whether the jury’s verdict is 

reasonable in light of all of the evidence taken cumulatively, 

under a standard of review that yields deference to all 

reasonable inferences supporting the jury’s verdict.” State v. 

Darnstaedt, 2021 UT App 19, ¶ 18, 483 P.3d 71 (cleaned up). 

Second, Cabututan contends that the trial court erred in 

admitting the photos. We review such challenges to the 

admission of evidence for an abuse of discretion. Met v. State, 

2016 UT 51, ¶ 36, 388 P.3d 447. Third, Cabututan contends that 
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20200151-CA 6 2022 UT App 41

defense counsel rendered ineffective assistance by failing to 

object to testimony about the effect of Boss’s death on Wife.2

“When a claim of ineffective assistance of counsel is raised for 

the first time on appeal, there is no lower court ruling to review 

and we must decide whether the defendant was deprived of the 

effective assistance of counsel as a matter of law.” State v. 

Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).

ANALYSIS

I. Sufficiency of the Evidence

¶12 To prevail on his contention that the State presented 

insufficient evidence to overcome his assertion of perfect selfdefense, Cabututan would need to show either that, given the 

evidence presented at trial, a jury could not “find, beyond a 

reasonable doubt, that the defendant committed the crime,” see

State v. Henfling, 2020 UT App 129, ¶ 28, 474 P.3d 994 (cleaned 

up), or that perfect self-defense did not apply. But this is 

something Cabututan cannot do because his own statements 

provided the evidence necessary for the State to meet its burden 

 

2. Cabututan also alleges that his counsel performed 

ineffectively by failing to object to a medical examiner’s 

testimony. This contention stems from his concession that Boss 

died from a wound he inflicted with the shovel. According to 

Cabututan, because he conceded the cause of Boss’s death, the 

jury did not need to hear the medical examiner’s testimony, and 

allowing the testimony without objection paved the path for the 

State to admit the allegedly gruesome autopsy photos. However, 

as we will describe, the court did not abuse its discretion in 

admitting the autopsy photos. Thus, Cabututan’s ineffective 

assistance of counsel claim related to the medical examiner’s 

testimony, which is contingent on the inadmissibility of the 

autopsy photos, falls short, and we do not discuss it further.
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to show guilt and disprove perfect self-defense beyond a 

reasonable doubt.

¶13 Under Utah self-defense law, “[a]n individual is justified 

in using force intended or likely to cause death or serious bodily 

injury only if the individual reasonably believes that force is 

necessary to prevent death or serious bodily injury to the 

individual . . . as a result of imminent use of unlawful force.” 

Utah Code Ann. § 76-2-402(2)(b) (LexisNexis Supp. 2021). But, 

[a]n individual is not justified in using force . . . if 

the individual . . . was the aggressor or was 

engaged in a combat by agreement, unless the 

individual withdraws from the encounter and 

effectively communicates to the other individual 

the intent to withdraw from the encounter and, 

notwithstanding, the other individual continues or 

threatens to continue the use of unlawful force.

Id. § 76-2-402(3)(a)(iii). This brand of self-defense is known as 

“perfect self-defense.” See State v. Bonds, 2019 UT App 156, ¶ 44, 

450 P.3d 120, cert. granted on other grounds, 466 P.3d 1072 (Utah 

2020). However, even in the absence of legally justified perfect

self-defense, 

[i]t is an affirmative defense to a charge of murder 

or attempted murder that the defendant caused the 

death of another or attempted to cause the death of 

another under a reasonable belief that the 

circumstances provided a legal justification or 

excuse for the conduct although the conduct was 

not legally justifiable or excusable under the 

existing circumstances.

Utah Code Ann. § 76-5-203(4)(a) (LexisNexis 2017). This brand of 

self-defense is known as “imperfect self-defense.” Bonds, 2019 

UT App 156, ¶ 44.
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¶14 “Where applicable, [imperfect self-defense] results only in 

reduction of a conviction from murder to manslaughter, whereas 

perfect self-defense is a complete defense to any crime that, 

where applicable, results in acquittal . . . .” Id. (cleaned up). And, 

as with any affirmative defense, an assertion of self-defense, be it 

perfect or imperfect, places the burden on the prosecution to 

“disprove” that defense “once a defendant has produced some 

evidence of” it. Id. ¶ 45 (cleaned up); see also State v. Garcia, 2001 

UT App 19, ¶¶ 1, 16, 18 P.3d 1123 (identifying self-defense as an 

affirmative defense); State v. Drej, 2010 UT 35, ¶ 15, 233 P.3d 476 

(“The Utah rule requires that the prosecution disprove the 

existence of affirmative defenses beyond a reasonable doubt 

once the defendant has produced some evidence of the defense.” 

(cleaned up)).

¶15 Cabututan contends that the State failed to present 

sufficient evidence to overcome his assertion of perfect selfdefense and that, accordingly, the trial court erred in denying his 

motion for a directed verdict and allowing the case to proceed to 

the jury. However, the entire evidentiary picture before the jury 

refutes that contention.

¶16 At trial, the State pointed out that the jury had heard in 

Cabututan’s “own words” that he had “engaged [in] combat by 

agreement.” Specifically, the jury heard from Cabututan that 

when Boss challenged him, he “stepped up to” the challenge, 

“[t]ook off [his] shirt[,] and came at” Boss. There was no 

evidence that, at any point, Cabututan attempted to withdraw 

from the encounter. Based on these facts, the jury could 

reasonably find that Cabututan participated in the fight by 

mutual agreement and at no point did he “withdraw[] from the 

encounter and effectively communicate[]” that “intent to 

withdraw.” See Utah Code Ann. § 76-2-402(3)(a)(iii). Far from 

requiring the court to direct the verdict in Cabututan’s favor, the 

evidence presented to the jury provided ample space for the jury 

to reject Cabututan’s assertion that he acted in perfect self-
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defense and enter a conviction. Accordingly, we reject his claim 

that the evidence was insufficient to support a jury verdict of 

manslaughter.

II. Admission of the Photos

¶17 To prevail on his contention that the trial court abused its 

discretion in admitting the photos over his objection, Cabututan 

must demonstrate that the court applied “the wrong legal 

standard or” rendered a decision “beyond the limits of 

reasonability.” See Met v. State, 2016 UT 51, ¶ 96, 388 P.3d 447

(cleaned up). Here, that means that Cabututan must demonstrate

that the court abused its discretion in determining that the 

photos passed muster under rule 403 of the Utah Rules of 

Evidence, see id. ¶ 83—i.e., that the photos’ “potential for unfair 

prejudice” did not “substantially outweigh[]” their “probative 

value,” id. ¶ 89; see also Utah R. Evid. 403 (“The court may 

exclude relevant evidence if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice . . . .”).

¶18 Below, the court determined that the autopsy photos’

probative value was not outweighed by unfair prejudice. 

Probative value existed, it ruled, because the State would “be 

proving up the cause of death and the degree of force that 

caused the death.” And it concluded that any potential prejudice 

would be ameliorated because the court required that the State 

clarify for the jury that the autopsy photos were “not 

representative of the condition of the individual prior to” 

“opening the skull up” during autopsy. Similarly, the court 

determined that the crime scene photos warranted admission 

because, rather than sensationalize the crime scene, they 

“show[ed] the alleged injury” and the spatial relationship of the 

body, the brick, and the pistol.

¶19 On appeal, Cabututan has not persuaded us that the 

court’s ruling constituted an abuse of discretion. Rather, we 

agree with the State that although Cabututan admitted to killing 
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20200151-CA 10 2022 UT App 41

Boss with the shovel, the photos could still assist the jury in 

determining that Cabututan had the requisite intent to commit 

the crime charged. Furthermore, the photos might also have 

been useful in assessing Cabututan’s self-defense claim and how 

it correlated with the degree of force he used when he hit Boss 

with the shovel. Put simply, the photos and the injury they 

showed could have helped the jury determine the way 

Cabututan used the shovel and whether he wielded it for only 

defensive parries or to inflict a substantial blow. Moreover, we 

do not believe the jury would have ascribed the condition of 

Boss’s body in the autopsy photos to the circumstances of the 

fight. Indeed, to prevent this possibility, the court specifically 

instructed the State to—and the State actually did—inform the 

jury that the autopsy (and not Cabututan) was to blame for any

apparent gruesomeness. Further, as to the crime scene photos, 

we agree with the court’s apparent view that seeing “the alleged 

injury” and the spatial relationship of the body, the brick, and 

the pistol could assist the jury in making its determination. And 

finally, having reviewed the photos ourselves, we do not 

perceive the photos as unfairly gruesome or disturbing. 

Accordingly, we conclude that the court did not abuse its 

discretion in admitting the photos.

III. Ineffective Assistance of Counsel

¶20 To prevail on his claim of ineffective assistance of counsel, 

Cabututan must show not only that defense counsel performed 

deficiently but also that any deficient performance “prejudiced 

the defense.” See State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350

(cleaned up). In other words, Cabututan would have to show “a 

reasonable probability” that “absent counsel’s error,” “the 

outcome of his . . . case would have been different.” Id. ¶ 43. And 

because “a defendant must satisfy both parts of this test[,] . . . if 

we determine that a defendant has made an insufficient showing 

on one [component],” we need not address the other. State v. 

Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150 (cleaned up).
State v. Cabututan

20200151-CA 11 2022 UT App 41

¶21 Cabututan’s contention that defense counsel rendered 

ineffective assistance fails for a lack of prejudice. Cabututan 

contends that defense counsel rendered ineffective assistance by 

failing to object when Wife testified, among other things, that 

Boss’s death had “changed [her] whole life.” Specifically, he 

argues that the testimony elicited undue sympathy from the 

jury. But we disagree that Wife’s statements were reasonably 

likely to have had any material impact on the outcome of this 

case. Although Wife’s testimony delved into specific details the 

jury might not have known otherwise, the overarching message 

from Wife’s testimony—that her life had radically changed since 

Boss’s death and that she now faced financial difficulty—was 

something the jury would have discerned regardless, and we see 

no reasonable probability that this particular testimony tipped 

the scales away from acquittal and toward a conviction of 

manslaughter for a death Cabututan admitted to causing.

¶22 More fundamentally, a lack of prejudice in this case also

results from the fact that even without the contested testimony, 

the jury heard evidence from Cabututan that he willingly 

participated in the fight—an admission that undermined his

perfect self-defense theory and, as discussed, created at least a 

question for the jury. See supra Part I. And given the fact that 

Cabututan conceded that he hit Boss with the shovel and that the

blow resulted in his death, Cabututan would have to show that 

the failure to object to the contested testimony was the reason 

that the jury granted him the second-best outcome for his case—

a conviction for manslaughter—as opposed to the best outcome 

for his case—an acquittal resulting from a finding of perfect selfdefense. Under the circumstances presented here, even if defense 

counsel had objected to the contested testimony and the court 

had excluded it, such a change in the evidentiary landscape 

would not have altered the robust evidence that when Boss 

challenged Cabututan, Cabututan “stepped up to” the challenge, 

“[t]ook off [his] shirt[,] and came at” Boss and that he never 

backed down from the fight. Accordingly, it is not reasonably 
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20200151-CA 12 2022 UT App 41

likely that Wife’s testimony had any appreciable effect on the 

jury applying the statutory framework providing that a person 

who is engaged “in a combat by agreement” is, by law, not 

eligible for the protection of perfect self-defense, unless he 

communicates an intent to withdraw from the encounter and the 

other individual continues to engage in the attack. See Utah Code 

Ann. § 76-2-402(3)(a)(iii) (LexisNexis Supp. 2021). Thus,

Cabututan’s ineffective assistance claim fails for lack of 

prejudice.

CONCLUSION

¶23 Because sufficient evidence existed for the State to 

overcome its burden of showing that perfect self-defense did not 

apply, because the court did not abuse its discretion in admitting 

the photos, and because Cabututan cannot show ineffective 

assistance, we affirm Cabututan’s conviction.