2024 UT App 75

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JOSHUA CLAYTON NELSON,

Appellant.

Opinion

No. 20230259-CA

Filed May 16, 2024

Fourth District Court, Heber Department

The Honorable Jennifer A. Mabey

No. 211500195

Benjamin Miller and Debra M. Nelson,

Attorneys for Appellant

Scott H. Sweat and S. Case Wade,

Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER

and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 On July 24, 2021, Joshua Clayton Nelson and two of his 

friends kayaked down the Provo River. None of them were 

wearing life jackets, in violation of state law. After a series of 

exchanges with a state park ranger (Ranger) about the missing life 

jackets, Nelson and his friends stopped on the bank of the river. 

They were arrested, taken to jail, and charged with failure to stop 

at the command of a law enforcement officer, a class A 

misdemeanor. A jury convicted Nelson of the charge, and he now 

appeals, asserting that his counsel was ineffective for failing to file 

a motion for a directed verdict where the evidence presented at 

trial was insufficient to establish that he fled or attempted to elude 
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a law enforcement officer after receiving a command to stop with 

the purpose of avoiding arrest. We agree, reverse his conviction, 

and remand the matter for a new trial.

BACKGROUND1

¶2 On July 24, 2021, Ranger was in uniform, patrolling the 

Provo River to ensure all people on it were properly wearing life 

jackets. Because it was a state holiday, there were many 

recreational users on the river. Nelson and his two friends 

(collectively, the kayakers) were kayaking down the river without 

life jackets when Ranger first noticed them and ordered them “to 

step out of the river so that [he] could speak with them.” 

According to Ranger’s trial testimony, “All three of them looked 

at me. We made eye contact.” Ranger saw Nelson start to “put his 

water shoes or flip-flops or something on,” as if he were going to 

get out of the water. Yet Nelson and his friends did not get out.

Ranger testified that when he “felt like they were ignoring [him] 

and were failing to comply,” he pulled out his phone “to start 

recording.” The video showed Ranger saying, “Paddle over and 

get out. Okay. We’ll play that game.”2 The kayakers kept floating 

down the river, and Ranger got into his truck to follow them.

¶3 By the time Ranger reached the kayakers, they had joined 

a group of people floating on tubes. Ranger again recorded this 

interaction with his phone. He stated, “Hey, you three right here. 

Look at the camera. Get out of the water right now. Your last 

chance before you go to jail.” One of the voices on the video said, 

1. “On appeal, we review the record facts in a light most favorable 

to the jury’s verdict and recite the facts accordingly.” State v. 

Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned up).

2. None of the videos that were played for the jury at trial were

included in the record on appeal. Our review of them is limited to 

their transcription in the record.
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“You’re talking to me?” At trial, Ranger admitted that during this 

interaction, he did not explain why he wanted the kayakers to get 

out of the river and claimed he did so during the earlier, 

unrecorded interaction.

¶4 According to his testimony, Nelson did not realize Ranger 

was a law enforcement officer until their second encounter.

Nelson explained that he and his friends were initially reluctant 

to even acknowledge Ranger because “[h]e just wasn’t calm” and 

it “seemed like an interaction [Nelson] wanted to avoid.” After 

one of the people floating on tubes turned to Nelson and said, “I 

think this guy is serious,” Nelson paddled up to his friends and 

suggested they all get out. They looked for a place to stop and 

then pulled their kayaks out.

¶5 Ranger, meanwhile, had gotten back in his truck, figuring 

that the kayakers would use the “public exit point” in a nearby 

park. Sitting in his truck with binoculars, Ranger spotted the

kayakers sitting behind bushes on the far side of the river. He

called for backup to keep an eye on the kayakers while he drove 

to a crossing point and hiked “about a mile up the train tracks” to 

where they were.

¶6 When he reached the kayakers, Ranger asked why they 

had not listened to him and gotten out of the river earlier. 

According to Ranger, the kayakers responded that they did not 

see him and did not know that they had to get out of the water.

Ranger also testified the kayakers made comments “about why, 

you know, it’s just a life jacket” and whether they could “just get 

[their] ticket” and “things like that.” When Ranger asked if they 

were hiding from him in the bushes, the kayakers denied doing 

so, explaining that they had just “stopped to drink beer and to 

pick up garbage.” Nelson testified they exited “on the opposite 

side of the river” because “it was just easier” and “safer” for them

to get out on that “more gradual” section of shore. 
State v. Nelson

20230259-CA 4 2024 UT App 75

¶7 Ranger arrested the kayakers and took them to jail. They 

were charged with failure to stop at the command of a law 

enforcement officer, a class A misdemeanor. At Nelson’s two-day 

jury trial, the State called two witnesses, Ranger, and his coworker

who had assisted as backup. Ranger testified to the events as 

recounted above and the State played the video recordings from 

Ranger’s phone for the jury. Nelson also testified as described

above and asserted “it was crazy that [he and his friends] could 

be doing nothing wrong, wearing no life jacket, and end up in jail 

that night.”

¶8 After the close of evidence, the trial court instructed the 

jury that to find Nelson guilty, it must unanimously decide that 

the State has proved beyond a reasonable doubt that Nelson “did 

recklessly, knowingly, or intentionally . . . flee from or otherwise 

attempt to elude a police officer . . . after the officer issued a verbal 

or visual command to stop . . . for the purpose of avoiding arrest.”

¶9 In closing, the State argued that Ranger was identifiable as 

an officer, gave Nelson repeated commands to stop and get out of 

the river, and that Nelson did not stop. The State also maintained

“the reason [Nelson] didn’t want to stop is because he didn’t want 

to get a citation for not wearing a life jacket.” Finally, the State 

argued Nelson did not go to jail because of not wearing a life 

jacket, but “because he didn’t want to face consequences” and “he 

eluded a peace officer for roughly a mile down the river, [and] 

made [Ranger] come after him multiple times.”

¶10 During closing argument, Nelson’s attorney (Trial 

Counsel) stated that Nelson “had no intention to elude an officer.”

Trial Counsel pointed out that it took some time for Nelson to 

even realize that Ranger was a law enforcement officer and that 

Ranger was addressing him and his friends. Once Nelson had “an 

opportunity to process the experience,” he and his friends 

“decided to comply,” got out of the river, and waited for Ranger.

Although Nelson did not stop immediately, Trial Counsel 
State v. Nelson

20230259-CA 5 2024 UT App 75

emphasized the fact Nelson “did end up stopping” and waited for 

Ranger, at no point acting with the needed intent to elude the 

officer.

ISSUE AND STANDARD OF REVIEW

¶11 Nelson asserts there was insufficient evidence to support 

the jury’s verdict. Nelson admits he did not preserve this issue for 

appeal by raising it below. “[W]hen a party realizes an important 

issue was not preserved in the trial court, but wishes an appellate 

court to address that issue, the party must argue that an exception 

to preservation applies.” State v. Johnson, 2017 UT 76, ¶ 27, 416 

P.3d 443. Nelson invokes the ineffective assistance of counsel 

exception to preservation.3 Id. ¶ 19. “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. Popp, 2019 UT App 173, ¶ 19, 453 P.3d 657

(cleaned up). 

ANALYSIS

¶12 Nelson contends the State did not present evidence that 

proved beyond a reasonable doubt that he fled or attempted to 

elude a law enforcement officer after receiving a command to stop 

with the purpose of avoiding arrest. Nelson points to the fact that 

he did stop and wait for the Ranger as evidence he did not flee or 

attempt to elude an officer. And he also argues that, even if his 

failure to stop immediately could be viewed as an intent to flee or 

elude, the evidence failed to show he was acting to evade arrest. 

3. Nelson also invokes the plain error exception to preservation. 

But because we agree with Nelson that Trial Counsel rendered 

ineffective assistance, we need not address whether there was also 

plain error.
State v. Nelson

20230259-CA 6 2024 UT App 75

Nelson acknowledges this argument was not preserved but 

contends that review is appropriate under the ineffective 

assistance of counsel exception to the preservation requirement. 

¶13 Nelson contends that Trial Counsel was ineffective in 

failing to move for a directed verdict at the close of the State’s case 

because the State put forth insufficient evidence that he “acted 

with the required purpose to flee or to avoid arrest.” An 

ineffective assistance of counsel claim stems from “the Sixth 

Amendment right to counsel” that exists “to protect the 

fundamental right to a fair trial,” and we review it under the 

standard set forth by the United States Supreme Court in 

Strickland v. Washington, 466 U.S. 668 (1984). Id. at 684. To meet the 

standard, a criminal defendant must first “show that counsel’s 

performance was deficient,” and second “show that the deficient 

performance prejudiced the defense.” Id. at 687. “Unless a 

defendant makes both showings,” the claim fails. Id. To 

demonstrate deficient performance, “the defendant must show 

that counsel’s representation fell below an objective standard of 

reasonableness.” Id. at 688. In our analysis, we “must indulge a 

strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” Id. at 689. “To 

establish prejudice, the defendant must show that there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

State v. Bonds, 2023 UT 1, ¶ 53, 524 P.3d 581 (cleaned up).

¶14 Nelson was charged with failure to stop at the command 

of a law enforcement officer. See Utah Code § 76-8-305.5(2) (2021).

The elements of that offense required the State to prove Nelson (1) 

fled from or otherwise attempted to elude a peace officer (2) after 

the officer “issued a verbal or visual command to stop,” (3) “for 

the purpose of avoiding arrest.” Id. All three elements must be met 

to support a conviction. We agree with Nelson that the State failed 

to show that he acted with the intent to avoid arrest.
State v. Nelson

20230259-CA 7 2024 UT App 75

¶15 In Utah, there are “essential mens rea elements of the 

failure-to-respond charge.” State v. Bird, 2015 UT 7, ¶ 24, 345 P.3d 

1141. Specifically, the first and third elements of the charge 

include a “required mental state” that the State must prove. See id. 

¶ 13. In Salt Lake City v. Gallegos, 2015 UT App 78, 347 P.3d 842, 

we explained that this charge requires “evidence supporting an 

inference that [the defendant] thought he was at risk for arrest and 

was therefore motivated to flee.” Id. ¶ 7. “While the statute does 

not require proof that another crime actually occurred, the 

element requiring the [State] to show that [the defendant] fled for 

the purpose of avoiding arrest requires evidence in addition to the 

flight itself.” Id. (cleaned up); see also State v. Young, 2015 UT App 

286, ¶ 12, 364 P.3d 55 (stating that Gallegos stands “for the 

proposition that Utah Code section 76-8-305.5(2) requires the State 

to present evidence, beyond a defendant’s flight itself, sufficient 

to support an inference that the defendant thought he was at risk 

for arrest and was therefore motivated to flee” (cleaned up)).

¶16 The defendant in Gallegos was arrested after police 

responded to a call about a disturbance involving men wearing 

red clothing in an alley of a high-crime area. 2015 UT App 78, ¶ 3. 

When police saw the defendant in an adjacent alleyway wearing 

a shirt with red stripes and yelled for him to stop, the defendant 

“turned and ran away.” Id. ¶¶ 2–3. The defendant was convicted 

of failure to stop at the command of law enforcement, but this 

court reversed and vacated that conviction for “insufficient 

evidence from which the jury could conclude beyond a reasonable 

doubt that [the defendant] fled from the officer for the purpose of 

avoiding arrest.” Id. ¶ 12 (cleaned up). Although there was 

evidence of the defendant’s flight from the police, there was no 

evidence his “motivation in fleeing from an officer was to avoid 

arrest.” Id. ¶ 8. 

¶17 So too here. The trial court properly instructed the jury that 

to find Nelson guilty, it must unanimously decide that the State 

had proved beyond a reasonable doubt that Nelson “did 
State v. Nelson

20230259-CA 8 2024 UT App 75

recklessly, knowingly, or intentionally . . . flee from or otherwise 

attempt to elude a police officer . . . after the officer issued a verbal 

or visual command to stop . . . for the purpose of avoiding arrest.”

Thus, the jury was instructed that both mens rea elements—of 

fleeing and of avoiding arrest—must be met. But there was no 

evidence presented that Nelson acted with the intent to avoid 

arrest. Instead, the evidence showed Nelson acted only to avoid a 

citation. Ranger testified the kayakers made comments “about 

why, you know, it’s just a life jacket” and whether they could “just 

get [their] ticket.” And when Ranger testified that he did mention 

jail to the kayakers during their second interaction, it was in the 

context of a choice between getting out of the water or going to 

jail. The kayakers did exit the river after realizing Ranger was an 

officer, but they did not think—correctly—that not wearing a life 

jacket could result in going to jail.4 Finally, the State argued in its 

closing that “the reason [Nelson] didn’t want to stop is because he 

didn’t want to get a citation for not wearing a life jacket.”

(Emphasis added.)

¶18 Because of the lack of evidence the State presented at trial 

on the element of intent to evade arrest, the “State failed to present 

[any] evidence of an essential element of the crime charged.” State 

v. Gonzales-Bejarano, 2018 UT App 60, ¶ 45, 427 P.3d 251. We 

therefore conclude that Trial Counsel’s “failure to move for a 

directed verdict” fell below the range of reasonable professional 

assistance, amounting to deficient performance. Id. 

¶19 We next consider whether Trial Counsel’s failure to move 

for a directed verdict was prejudicial. “Prejudice exists when there 

is a reasonable probability that the case would have had a 

4. Failure to wear a life jacket is an “infraction,” see Utah Code 

§ 73-18-8(8), punishable only by a fine. See Utah Admin. Code 

R650-215-6(5) (listing the personal flotation device requirements 

on a river), https://adminrules.utah.gov/public/rule/R650-215-

5/Current%20Rules [https://perma.cc/JR8A-RFSJ].
State v. Nelson

20230259-CA 9 2024 UT App 75

different outcome had trial counsel not performed deficiently.” 

State v. Carrera, 2022 UT App 100, ¶ 81, 517 P.3d 440 (cleaned up), 

cert. denied, 525 P.3d 1264 (Utah 2023). “Because the State failed to 

present [any] evidence of an essential element of the crime 

charged, defense counsel's failure to move for a directed verdict 

on the relevant charges amounted to prejudicial deficient 

performance.” Gonzales-Bejarano, 2018 UT App 60, ¶ 45. Thus, 

Nelson “has met the burden of showing that the decision reached 

would reasonably likely have been different absent the error[]” by 

Trial Counsel. Carrera, 2022 UT App 100, ¶ 81 (cleaned up).

¶20 Because Trial Counsel performed deficiently in not filing a 

motion for a directed verdict and Nelson was prejudiced as a 

result, we conclude that Nelson received ineffective assistance of 

counsel. Accordingly, he is entitled to reversal of his conviction 

and a new trial. 

CONCLUSION

¶21 Where the State failed to present evidence of an essential 

element of the crime, Trial Counsel’s decision to not file a motion 

for a directed verdict amounted to ineffective assistance of 

counsel. We therefore reverse Nelson’s conviction and remand 

the matter for a new trial.