2017 UT App 233

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

TRAVIS BRITTON HULL,

Appellant.

Opinion

No. 20151028-CA

Filed December 21, 2017

Second District Court, Farmington Department

The Honorable Michael G. Allphin

No. 151700631

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes and Daniel W. Boyer, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS

concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Travis Britton Hull appeals from his conviction 

for burglary, charged as a second-degree felony. He argues that 

his constitutional right to the effective assistance of counsel was 

violated because his trial counsel failed to request an instruction 

regarding a lesser included offense of criminal trespass. Because 

a decision not to request such instruction was objectively 

reasonable in this case, we conclude that Defendant has failed to 

show that the assistance he received from counsel was 

constitutionally ineffective. We therefore affirm.
State v. Hull

20151028-CA 2 2017 UT App 233

BACKGROUND

¶2 One morning, Defendant got out of a parked SUV and 

approached a homeowner (Homeowner) as she walked up to her 

house. He asked if Homeowner remembered him, introduced 

himself as Travis, and said he had dated Homeowner’s daughter 

in high school. Defendant inquired after Homeowner’s 

daughter, before asking for a ride to a gas station because he had 

run out of gas. Homeowner agreed to give him a lift, but stepped 

inside her house first.

¶3 While this conversation was taking place, Homeowner’s 

brother (Brother) had begun unloading supplies from his truck

for some remodeling work he was doing inside the house. 

Homeowner told Brother that she was taking Defendant to the 

gas station. As she left the house, she picked up a bag of trash 

from the kitchen trashcan and took it outside to the garbage bin, 

leaving the empty trashcan in the kitchen. Defendant retrieved a 

portable gas can from his SUV, and he and Homeowner left for 

the gas station.

¶4 Later, after Brother finished unloading his supplies, he 

drove to the same gas station for breakfast. When Brother 

arrived, Defendant came to Brother’s truck, opened the door,

and asked for a ride back to the house where his SUV was 

parked. Brother drove Defendant to the house and dropped him 

off. Brother then drove back to the gas station for breakfast.

¶5 While driving, Brother remembered that he had left the 

front door to the house unlocked and became worried. After 

picking up breakfast, he quickly returned to the house, arriving 

five to ten minutes after he had dropped off Defendant there. 

The SUV was still there, now with the motor running, but 

Defendant was not in it. Brother went up to the house and found 

the front door locked. He then spotted Defendant in the back 

yard of the house, walking toward a neighboring property.
State v. Hull

20151028-CA 3 2017 UT App 233

¶6 Brother confronted Defendant by saying to him, “You’ve 

been in the house.” Defendant responded, “I wasn’t in the 

house. You never saw me in the house. You can’t prove I was in 

the house.” Brother said he was going to call the police, and 

Defendant retreated to his SUV. Defendant drove away in 

reverse—perhaps to conceal his license plate, which was affixed 

only to the rear of the SUV.

¶7 Brother called the police and was able to provide a partial 

license plate number to them. While he waited for officers to 

arrive, he checked the back door of the house and found it 

unlocked. Brother also noticed the kitchen trashcan sitting on the 

back porch and inspected it. When Homeowner had left the 

house, the trashcan was empty and in the kitchen. But now it 

was on the back porch and contained a bag of chocolate covered 

pretzels, a pack of frozen fish sticks, two pork chops, and an 

iPad with its charger.

¶8 Homeowner returned to the house and confirmed that 

these items had been inside the house when she left. She 

remembered that the pretzels had been on the kitchen counter, 

the fish sticks and pork chops had been in the freezer, and the 

iPad and its charger had been on her dresser. She also noticed 

that her iPod, which had been next to the iPad, was missing. The 

iPod was not found.

¶9 Homeowner called her daughter and asked if the 

daughter had dated anyone named Travis in high school. Her 

daughter said she had dated a Travis Hull, and Homeowner 

reported that name to the police. This information led to 

Defendant’s arrest.

¶10 The State charged Defendant with burglary as a seconddegree felony and theft as a class B misdemeanor. Burglary is a 

third-degree felony “unless it was committed in a dwelling, in 

which event it is a second degree felony.” See Utah Code Ann. 
State v. Hull

20151028-CA 4 2017 UT App 233

§ 76-6-202(2) (LexisNexis 2012). The State’s theory was therefore 

that Defendant had entered the house to steal the items. 

Defendant’s trial counsel argued to the jury that Defendant had 

never entered the house, noting that no one had seen Defendant 

enter or exit the house and that no forensic evidence of his 

presence had been found inside the house. Trial counsel also

noted the short time period between Defendant being dropped 

off at the house and being confronted by Brother and suggested 

that it was more likely that someone else had entered the house 

to steal the items while Brother and Defendant were at, or en 

route to or from, the gas station.

¶11 The jury convicted Defendant of burglary but acquitted 

him of theft. But see infra ¶ 23 note 4 (noting an apparent error in 

the minutes). Defendant appeals.

ISSUE AND STANDARD OF REVIEW

¶12 On appeal, Defendant contends that the jury should have 

been instructed as to criminal trespass as a lesser included 

offense of burglary. See generally State v. Baker, 671 P.2d 152,

159–60 (Utah 1983). Because Defendant did not raise this 

contention at trial, he argues he received ineffective assistance of 

counsel. See, e.g., State v. Kennedy, 2015 UT App 152, ¶¶ 22–23, 

354 P.3d 775 (discussing the resolution of unpreserved claims 

through the lens of ineffective assistance of counsel). Defendant 

argues that trial counsel’s failure to request an instruction 

regarding criminal trespass deprived him of his constitutional 

right to the effective assistance of counsel. “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.” Layton City v. Carr, 2014 

UT App 227, ¶ 6, 336 P.3d 587 (brackets, citation, and internal 

quotation marks omitted).
State v. Hull

20151028-CA 5 2017 UT App 233

ANALYSIS

¶13 To demonstrate ineffective assistance of counsel, a 

defendant must show that counsel’s performance was deficient 

and that the deficient performance prejudiced the defense. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both 

deficient performance and resulting prejudice are requisite 

elements for a claim of ineffective assistance of counsel, failure to 

prove either element necessarily defeats the claim. Id. at 697; 

State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769.

¶14 Defendant argues that trial counsel performed deficiently 

by failing to request that the trial court instruct the jury 

regarding criminal trespass. Defendant asserts that criminal 

trespass is a lesser included offense of burglary. An offense is 

lesser and included when “[i]t is established by proof of the 

same or less than all the facts required to establish the 

commission” of the greater offense charged, when it is an 

inchoate form of the greater offense, or when it is “specifically 

designated by a statute as a lesser included offense.” Utah Code 

Ann. § 76-1-402(3) (LexisNexis 2012). Thus, a lesser included 

offense exists when the defendant is charged with some greater 

offense and conviction of that greater offense necessarily 

requires finding that the defendant committed each and every 

element of the lesser offense plus at least one other element 

found in the greater offense. See, e.g., State v. Powell, 2007 UT 9, 

¶ 25, 154 P.3d 788. We assume, for the purposes of this case, that 

criminal trespass is a lesser included offense of the burglary

charged.

1

 

1. See, e.g., State v. Neeley, 748 P.2d 1091, 1095 (Utah 1988) 

(treating criminal trespass as a lesser included offense of 

burglary); State v. Baker, 671 P.2d 152, 159–60 (Utah 1983) (same); 

State v. Quintana, 2004 UT App 418, ¶¶ 8–9, 103 P.3d 168 

(accepting without analysis that criminal trespass was a lesser 

(continued...)
State v. Hull

20151028-CA 6 2017 UT App 233

¶15 A defendant is entitled to a jury instruction on a lesser 

included offense, so long as “the evidence would permit a jury 

rationally to find him guilty of the lesser offense and acquit him 

of the greater.” Keeble v. United States, 412 U.S. 205, 208 (1973).2

Thus, when there is a basis for a lesser-included-offense 

instruction in the evidence, and the defense requests one be 

given, the court must give the instruction. See id. at 208, 213.

 

(...continued)

included offense of burglary); State v. Peterson, 881 P.2d 965, 969 

(Utah Ct. App. 1994) (same); Utah Code Ann. § 76-6-206 notes of 

decisions (LexisNexis Supp. 2014). See generally 42 C.J.S. 

Indictments § 336 (2017) (noting that “[o]ther included offenses 

on a charge of burglary include . . . criminal trespass, at least 

under certain circumstances”) (footnotes omitted)).

2. This is true even if, as here, the jury subsequently finds the 

defendant guilty of the greater offense:

[I]t is no answer to petitioner’s demand for a jury 

instruction on a lesser offense to argue that a 

defendant may be better off without such an 

instruction. True, if the prosecution has not 

established beyond a reasonable doubt every 

element of the offense charged, and if no lesser 

offense instruction is offered, the jury must, as a 

theoretical matter, return a verdict of acquittal. But 

a defendant is entitled to a lesser offense 

instruction—in this context or any other—precisely 

because he should not be exposed to the 

substantial risk that the jury’s practice will diverge 

from theory. Where one of the elements of the 

offense charged remains in doubt, but the 

defendant is plainly guilty of some offense, the jury 

is likely to resolve its doubts in favor of conviction.

Keeble v. United States, 412 U.S. 205, 212–13 (1973).
State v. Hull

20151028-CA 7 2017 UT App 233

¶16 However, even when there is a basis for a lesser-includedoffense instruction, counsel can reasonably decide not to request 

one. This is because, depending on the facts of a particular case, 

counsel may have perfectly valid tactical reasons to forgo the 

instruction and to instead present an “all or nothing” defense

that entails avoiding a lesser-included-offense instruction in the 

hopes the jury will find the defendant “totally innocent of any

wrongdoing.” See State v. Dyer, 671 P.2d 142, 145 (Utah 1983); cf. 

State v. Feldmiller, 2013 UT App 275, ¶¶ 3–4, 316 P.3d 991 (per 

curiam) (holding that counsel did not perform deficiently by 

forgoing a special mitigation instruction, because the “wide 

latitude counsel is given in making strategic decisions” 

encompasses “all or nothing” defenses that could lead “to a 

complete acquittal”).

¶17 Because requesting a lesser-included-offense instruction is 

within counsel’s strategic discretion, we must consider whether, 

in the circumstances of this case, trial counsel could have 

reasonably decided not to have the jury instructed regarding the 

lesser included offense. Attorneys are afforded “wide latitude”

in making such decisions because “[e]ven the best criminal 

defense attorneys would not defend a particular client in the 

same way.” Strickland, 466 U.S. at 689. We will conclude that 

counsel’s performance was deficient only if it can be said that no 

objectively competent attorney would have adopted the 

complained-of strategy. See id. at 690 (charging reviewing courts 

with determining “whether, in light of all the circumstances, the 

identified acts or omissions were outside the wide range of 

professionally competent assistance”).

¶18 Defendant argues that the State’s evidence of burglary 

was so weak that the jury would not have convicted him of 

burglary had it been given the option of convicting him of 

criminal trespass instead. He notes that no forensic evidence of 

his presence (e.g., his fingerprints or his personal items) was 

found inside the house, that no one testified that he had been 
State v. Hull

20151028-CA 8 2017 UT App 233

inside the house, and that the State conceded in its closing 

argument that no one had seen him inside the house.

¶19 However, the very weaknesses Defendant identifies in the 

State’s case reinforce the reasonableness of a decision to pursue 

an “all or nothing” defense. While none of the witnesses testified

that they had seen Defendant inside the house, Brother did 

testify that Defendant had been in the back yard of the house

and Homeowner confirmed that items she had left inside the 

house were found in the trashcan on the back porch of the house. 

As a result, trial counsel could reasonably have anticipated that 

(1) the absence of direct or forensic evidence that Defendant had 

been inside the house could very well lead to an acquittal on the 

burglary charge while (2) Brother’s testimony that Defendant 

had been in the back yard would likely lead to conviction on the 

lesser included offense of criminal trespass. In other words, trial 

counsel could reasonably have believed that the jury would 

readily convict Defendant of criminal trespass even though the 

case for burglary was weak.3 Trial counsel could therefore have 

reasonably decided to focus on the perceived weaknesses of the 

evidence underlying the burglary charge. Indeed, trial counsel’s 

closing argument focused on the lack of proof that Defendant 

had been inside the house:

 

3. We employ the term “weak” not because we doubt the jury’s 

verdict but because the evidence supporting a burglary charge 

was relatively weaker than that which would have supported a 

criminal-trespass charge. Specifically, a criminal-trespass charge 

would have been supported by direct testimonial evidence while 

the burglary charge was supported by circumstantial evidence. 

Nevertheless, “it is a well-settled rule that circumstantial 

evidence alone may be sufficient to establish the guilt of the 

accused and direct evidence is not required to establish guilt.” 

State v. Harris, 2015 UT App 282, ¶ 9, 363 P.3d 555 (brackets, 

citations, and internal quotation marks omitted).
State v. Hull

20151028-CA 9 2017 UT App 233

Based upon all the facts that I’ve mentioned to you, 

there’s reasonable doubt as to the burglary because 

the State has to prove beyond a reasonable doubt 

that Mr. Hull entered or remained unlawfully 

inside the house with intent to commit theft. If 

either of those elements are lacking, his presence in 

the house or the intent to commit a theft, then the 

State’s failed to meet its burden, and you are 

required by our law and our constitution, both of 

our state and of the United States, to find my client, 

Mr. Hull, not guilty.

¶20 We conclude that it was objectively reasonable for trial 

counsel to forgo a lesser-included-offense instruction and to 

instead present an “all or nothing” defense.

¶21 Because not requesting a lesser-included-offense 

instruction was within the “wide range of professionally 

competent assistance,” we conclude that trial counsel’s failure to 

make such a request did not amount to deficient performance.

See Strickland, 466 U.S. at 690. And because both deficient 

performance and resulting prejudice are requisite elements in a 

successful ineffective-assistance-of-counsel claim, Defendant’s 

failure to prove deficient performance necessarily defeats his 

claim. Id. at 697; Hards, 2015 UT App 42, ¶ 18.

CONCLUSION

¶22 Defendant has not demonstrated that, under these 

circumstances, it was outside the wide range of professionally 

competent assistance to forgo a lesser-included-offense 

instruction in the hopes of securing a complete acquittal. We 

therefore conclude that trial counsel’s failure to request an 

instruction regarding the lesser included offense did not violate 
State v. Hull

20151028-CA 10 2017 UT App 233

Defendant’s constitutional right to the effective assistance of 

counsel.

¶23 Affirmed.4

 

4. We note a discrepancy in the record. According to the verdict 

form filled out by the jury’s foreperson, the jury convicted 

Defendant of burglary and acquitted him of theft. The eightperson jury was polled, and each juror confirmed that the 

verdict form accurately reflected the verdict. At the sentencing 

hearing, the court rejected a request for restitution for the 

missing iPod, noting that no theft conviction had been entered. 

And the State conceded, “He was acquitted on that charge, and I 

don’t think we can ask for [restitution].” However, according to 

the minutes memorializing the sentencing hearing, Defendant 

was convicted of both charges, Defendant was sentenced for

both charges, and the sentences for the two charges were

ordered to run concurrently. The minutes further reflect that 

Defendant was fined $10,000 for each charge, with the bulk of 

the two fines suspended.

On appeal, Defendant refers to the minutes in a footnote, 

stating that they are “subject to correction pursuant to clerical 

error.” See generally Utah R. Crim. P. 30(b). And the State 

concedes that the minutes “appear[] to be a clerical error.” 

Nevertheless, the error has not been corrected; during the 

pendency of this appeal, new probation documents containing 

and perpetuating the theft-conviction error have been added to 

the record.

Defendant does not ask this court to order any relief 

regarding the apparently erroneous minutes, and we therefore

do not do so. We note, however, that Defendant is free to move 

for such relief in the district court.