2022 UT App 41



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH , Appellee , v. A NDY P HILLIPS C ABUTUTAN , Appellant

.

Opinion N o. 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 , Attorney s for Appellant Sean D. Reyes and Jonathan S. Bauer , 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 R YAN M. H ARRIS 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 Cabutu t an’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.State v. Cabututan

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- CA 2 2022 UT App 41 BACKGROUND 1

¶2 At a time when Cabututan and Boss maintained a good relationship, Cabututan moved his camper onto Boss ’s property

a s part of an agreement to perform mechanic al work on B oss’s taxi s. However , as the months passed , the ir relationship soured. Cabututan, in B oss’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. B oss had come to confront Cabututan about Cabututan’s failure to do enough work. After opening the camper door, Cabututan walked past B oss, opened the door to his van and got in , and , leaving the van door open , began rolling a cigarette. For a moment, Cabu tutan listened as B oss “yell[ed] and scream[ed] , ” but he soon informed B oss that he would be moving . In response, B oss 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, B oss 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 [ B oss] , and blocked . . . the pistol.” B oss lowered the pistol and Cabututan jumped to the side before seeing B oss raise the pistol again. Cabututan reacted quickly and “kicked [ B oss] square in the nuts,” but to Cabututan’s surprise , “it didn’t even [faze] him. He still had the pistol in his han d.” When B oss 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

.State v. Cabututan

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, B oss “reached down and picked up [a] brick,” giving him “two weapons in his hand [ s ] ” while Cabututa n had

none . But then Cabututan saw a shovel lying on the ground. Cabututan picked it up and swung it at B oss, but B oss “ducked to the side.” B oss raised the pistol in one hand and had the brick “up ready to throw.” Thinking that B oss would throw the brick, Cabututan swung the shovel again. B oss 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, B oss’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 B oss’s body lay on the ground, face down. She then called 911, and Cabututan attempted to perform CPR. Despite the se efforts, and the efforts of police and medical professionals, B oss died. At the scene, Cabututan provided police a statement detailing the fight’s progression as described above, and later, the S tate charged Cabututan with murder.

¶7 At trial , defense counsel opted to pursue a theory of self

defense and conceded that B oss had died by Cabututan’s hand, stating , “We all know [how B oss died]. He died

— he g ot hit in the head with a shovel

. ” D efense 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 p hotos ’ admission ; he asserted that the jury would justState v. Cabututan

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]
outw eigh[ed] the prejudicial value in that” the photos went toward “the degree of force that was exerted that would have

cause d the demise of the individual.” As for the crime scene photos, the court determined that they depicted the external injury and the sp atial relationship between where the body, the brick, and the pistol were found on the scene. D efense counsel objected to the se 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 testi mony about the fight as described above, the S tate elicited testimony from W ife 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 phot os 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 assert ed that the State had failed to carry its burden of proving that his affirmative defense of “perfect self

defense” did not apply. In response, the State argued that it had

“ provided sufficient evidence that t he jury could find that the defendant [was] in fac t guilty of murder and that in fact self

defense [did] not apply .” The State asserted that the instructionsState v. Cabututan

20200151

- CA 5 2022 UT App 41 would “ state that if [Cabut u tan] . . . was engaged [in] combat by agreement , ” then perfect self

- defense would not apply . And by Cabututan’s “ own wor ds ” 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 murd er 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 self

defense applied. The jury was informed that imperfect self

defense 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

— wheth er due to a determination that only imperfect self

- defense applied or because it did not believe that the State had prove d 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 self

defense. “When reviewing a preserved sufficiency of the evidence claim, we ask si mply 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 p hotos

. 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

. T hird, Cabututan contends thatState v. Cabututan

20200151

- CA 6 2022 UT App 41 defense counsel rendered ineffective assistance by failing to object to testimony about the effect of B oss’s death on W ife

. 2 “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there i s 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 self

defense , 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 , ” s ee 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 ad mitting 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.State v. Cabututan

20200151

- CA 7 2022 UT App 41 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 serio us 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 )

. B ut,
[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 A pp 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 caus ed 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 ci rcumstances.

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.State v. Cabututan

20200151

- CA 8 2022 UT App 41 ¶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); Sta te 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 conten ds that the State failed to present sufficient evidence to overcome his assertion of perfect self

defense 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 e ntire 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 B oss challenged him, he “stepped up to” the challenge,

“ [ t ] ook off [his] shirt[,] and came at” B oss. 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). F ar from requiring the court to direct the ver dict 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

-State v. Cabututan

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- CA 9 2022 UT App 41 defense and enter a conviction. Accordingly, we reject his claim that the evidence was insufficien t 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 p hotos over his objection, Cabututan must demonstrate that the court applied “the wrong legal
stan dard or” render ed 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 p hotos pass ed muster under rule 403 of the Utah Rules of Evidence , s ee id. ¶ 83

— i.e., that the p hotos’ “potential for unfair prejudice ” did not “ substantially outweigh [] ” their “ probative value , ” i d. ¶ 89 ; see also Utah R. Evid. 403 (“The court may exclude relevant evid ence 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 clarif y 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, t he court determined that the crime scene photos warranted admission because , rather than sensatio nalize 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, w e agree with the State that although Cabututan admitted to killingState v. Cabututan

20200151

- CA 10 2022 UT App 41 B oss with the shovel, the p hotos 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 assess ing Cabututan’s self

- defense claim and how it correlate d with the degree of force he used when he hit B oss with the shovel. Put simply , the p hotos and the injury they showed could have helped the jury determin e 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, t o prevent this possibility, the court specifically instructed the State to

— and the S tate actually did

— inform the jury that the autopsy ( and not Cabututan ) was to blame for any apparent gruesomeness. F urther , as to the crime scene photos, we agree with the court’s apparent view that see ing “the alleged injury” and the spatial relationship of the body, the brick, and the pistol could assist the jury in making its determination. A nd finally, having reviewed the p hotos ourselves, we do not perceive the p hotos as unfairly gruesome or dist urbing

. A ccordingly, we conclude that the court did not abuse its discretion in admitting the p hotos.

III. Ineffective Assistance of Counsel

¶20 T o prevail on his claim of ineffective assistance of counsel, Cabututan must show not only that defense counsel performe d 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

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- CA 11 2022 UT App 41 ¶21 Cabututan’s contention that defense counsel rendered ineffective assistance fail s for a lack of prejudice. Cabututan contends that defense counsel rendere d 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 statement s were reasonably likely to have had any material impact on the outcome of this case. A l though 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 M ore fundamentally, a lack of prejudice in this case also result s 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 g iven the fact that Cabututan conceded that he hit B oss 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 acquitt al resulting from a finding of perfect self

defense. 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 alter ed th e robust evidence that when B oss challenged Cabututan , Cabututan “stepped up to” the challenge,

“ [ t ] ook off [ his ] shirt[,] and came at” B o ss and that he never backed down from the fight. Accordingly, it is not reasonablyState v. Cabututan

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- CA 12 2022 UT App 41 likely that W ife’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 B ecause sufficient evidence exi sted 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

.