2013 UT App 154

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

ANGELO NOE MARTINEZ,

Defendant and Appellant.

Memorandum Decision

No. 20120297-CA

Filed June 20, 2013

Second District, Ogden Department

The Honorable W. Brent West

No. 101900070

Samuel P. Newton, Attorney for Appellant

John E. Swallow and Karen A. Klucznik, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum

Decision, in which JUDGES GREGORY K. ORME and

CAROLYN B. MCHUGH concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Angelo Noe Martinez appeals his convictions for

aggravated assault and distribution of a controlled substance in a

drug-free zone. We affirm.

¶2 Defendant’s convictions stem from a drug transaction that

took place at a public park in January 2010. During the transaction, 1

Defendant stabbed Luis Torres after Torres threatened Defendant

1. “On appeal, we recite the facts in the light most favorable to the

jury’s verdict.” State v. Burk, 839 P.2d 880, 882 (Utah Ct. App. 1992).
State v. Martinez

with a gun. At trial, defense counsel argued that Defendant stabbed

Torres in self-defense. Accordingly, the trial court’s jury

instructions included a summary of the law of self-defense. The

relevant jury instruction included the following sentence: “A

person is not justified in using force . . . if the person is attempting

to commit, committing, or fleeing after the commission or

attempted commission of a felony.” See alsoUtah Code Ann. § 76-2-

402(2)(a)(ii) (LexisNexis 2012). On November 18, 2011, the jury 2

convicted Defendant of aggravated assault, a third degree felony,

and arranging to distribute a controlled substance in a drug-free

zone, a second degree felony.

¶3 On appeal, Defendant asserts that the trial court failed to

adequately instruct the jury on his claim of self-defense. “‘[W]hen

there is a basis in the evidence . . . , which would provide some

reasonable basis for the jury to conclude that . . . the defendant

[acted to protect himself] from an imminent threat . . . , an

instruction on self-defense should be given to the jury.’” State v.

Lucero, 2012 UT App 202, ¶ 6, 283 P.3d 967 (alterations and

omissions in original) (quoting State v. Knoll, 712 P.2d 211, 214

(Utah 1985)). Even though the trial court did instruct the jury on

the law of self-defense, Defendant claims that the court’s

instructions were flawed because they did not properly explain the

State’s and Defendant’s relative burdens of proof. See id.(“Once the

jury has been instructed on self-defense, the [State] has the burden

to prove beyond a reasonable doubt that the [defendant did] . . .

not [act] in self-defense.” (alterations and omission in original)

(citation and internal quotation marksomitted)). Defendant asserts

that the trial court’s error in failing to provide proper instructions

requires reversal of his convictions.

2. Because the current statutory provisions do not materially differ

from the provisions in effect at the time of the offense, we cite the

current version of the Utah Code for the reader’s convenience.

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State v. Martinez

¶4 At the outset, we note, and Defendant acknowledges, that

he did not preserve his objection to the jury instructions before the

trial court. Therefore, we must review his claim for plain error. See

Utah R. Crim P. 19(e) (“Unless a party objects to an instruction or

the failure to give an instruction, the instruction may not be

assigned as error except to avoid a manifest injustice.”) ; see also 3

State v. Lee, 2006 UT 5, ¶ 24, 128 P.3d 1179 (permitting appellate

review of unpreserved claims for plain error, exceptional

circumstances, and ineffective assistance of counsel). A party

seeking reversal under the plain error standard must prove that

“‘[1] [a]n error exists; [2] the error should have been obvious to the

trial court; and [3] the erroris harmful.’” See State v. Powell, 2007 UT

9, ¶ 18, 154 P.3d 788 (alterations in original) (quoting State v. Dunn,

850 P.2d 1201, 1208 (Utah 1993)). A party must prove all three

prongs to successfully mount a plain error challenge. See State v.

Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (“If any one of these

requirements is not met, plain error is not established.” (citation

and internal quotation marks omitted)). Because resolution of this

case turns on the third prong, we limit our analysis to a discussion

of harmfulness. To establish that an error is harmful, a party must

demonstrate that, “absent the error, there is a reasonable likelihood

of a more favorable outcome.” Lee, 2006 UT 5, ¶ 26 (citation and

internal quotation marks omitted).

¶5 Additionally, Defendant argues for the first time on appeal

that his convictions should be overturned as a result of the

ineffective assistance of his trial counsel. See Strickland v.

Washington, 466 U.S. 668, 686 (1984). Defendant argues that his trial

counsel’s failure to request specific instructions regarding the

burdens of proof for a claim of self-defense was objectively

deficient performance and prejudiced his defense by seriously

undermining the fairness of his trial. According to Defendant, “it

seems likely that with proper instructions, the jury would have

3. “Manifest injustice is synonymous with the plain error standard

. . . .” State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640.

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State v. Martinez

considered self-defense to create a reasonable doubt as to

[Defendant’s] guilt.” We review this claim as a matter of law. See

State v. Sellers, 2011 UT App 38, ¶ 9, 248 P.3d 70. To warrant

reversal, Defendant must first “demonstrate that specific acts or

omissions of counsel fell below an objective standard of

reasonableness.” See Powell, 2007 UT 9, ¶ 45. Second, Defendant

must show that this deficient performance prejudiced his defense.

See Strickland, 466 U.S. at 687. Prejudice is established by showing

“that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Powell, 2007 UT 9, ¶ 45 (citation and internal

quotation marks omitted). Thus, the prejudice test for ineffective

assistance of counsel claims is equivalent to the harmfulness test for

plain error. See Dunn, 850 P.2d at 1225.

¶6 We conclude that Defendant’s claims of plain error and

ineffective assistance fail because he cannot demonstrate that the

instructions given to the jury were harmful or that his counsel’s

failure to request properinstructions resultedin prejudice. Because

the analysis is equivalent on both claims, we limit our analysis to

whether providing the jury with an instruction setting forth the

appropriate burdens of proof would have created a reasonable

probability, in this instance, that Defendant would have been

acquitted.4

¶7 As a general matter, self-defense is not available as a defense

to a criminal act in several circumstances. See Utah Code Ann. § 76-

2-402(2)(a)(i)–(iii) (LexisNexis 2012). One such circumstance occurs

when a defendant uses force while attempting to commit,

4. The Utah Supreme Court has held that lack of prejudice is

dispositive of a defendant’s plain error claim. See Jimenez, 2012 UT

41, ¶ 20. The United States Supreme Court has also instructed, “If

it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, . . . that course should be followed.”

Strickland v. Washington, 466 U.S. 668, 697 (1984).

20120297-CA 4 2013 UT App 154
State v. Martinez

committing, or fleeing after the commission or attempted

commission of a felony. Id. § 76-2-402(2)(a)(ii). Here, the State does

not dispute that Defendant was acting in what would otherwise be

reasonable self-defense when he stabbed Torres. However, the

State argues that because Defendant’s use of force occurred during

Defendant’s drug transaction, a second degree felony, he is

precluded from claiming self-defense. We agree.

¶8 With respect to Defendant’s drug conviction, we determine

that even if the jury instructions had been prepared exactly to

Defendant’s specification, those instructions could not have

affected the jury’s decision on the drug count because self-defense

is not a valid defense to the attempted commission of a drug

offense. See id. § 76-2-401(1) (“Conduct which is justified is a

defense to prosecution for any offense based on the conduct.”

(emphasis added)). Here, the conduct for which Defendant claims

self-defense was his stabbing of Torres. Yet the State’s prosecution

of the drug offense was based on Defendant’s arrangement to sell

drugs. Thus, Defendant is statutorily precluded from claiming selfdefense for the drug offense. BecauseDefendant does not challenge

his drug conviction on any other grounds, we affirm the jury’s

verdict on this count.

¶9 As to the aggravated assault charge, Defendant has never

disputed that he stabbed Torres. Indeed, his entire defense hinged

on his claim of self-defense, which necessarily involved admission

oftheunderlying assault. However, because we affirm Defendant’s

conviction of the felony drug offense, Defendant’s use of force

against Torres cannot be justified because it occurred during the

drug transaction. See id. § 76-2-402(2)(a)(ii). Accordingly, even if the

jury instructions had been written as he preferred, there is not a

reasonable probability that Defendant would have been acquitted

of the aggravated assault.

¶10 Defendant is correct in asserting that a proper self-defense

jury instruction should inform the jury about the burdens of proof

necessary for self-defense to be considered. However, Defendant

20120297-CA 5 2013 UT App 154
State v. Martinez

could not have successfully raised such a defense in this case. That

is, Defendant’s use of force against Torres cannot be justified here

because the stabbing occurred during the commission of a felony.

Therefore, Defendant cannot demonstrate that the trial court’s

failure to provide jury instructions setting forth the appropriate

burdens of proof was harmful under the plain error standard. Nor

can Defendant demonstrate that his trial counsel’s failure to request

such instructions prejudiced him, resulting in ineffective assistance

at trial.Accordingly,wedecline to reverse Defendant’s convictions.

¶11 Affirmed.

20120297-CA 6 2013 UT App 154