2013 UT App 71

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

,

Plaintiff, Appellant, and Cross

‐ appellee,

v.

A NDY R ASABOUT

,

Defendant and Appellee,

and

L EVITZ L ONDON K AYKEO

, Defendant, Appellee, and Cross

‐ appellant.

Opinion

No. 20100284

‐ CA

Filed March 21, 2013

Third District, West Jordan Department

The Honorable Robert Adkins

No. 071402384 & 071402387

John E. Swallow and Ryan D. Tenney, Attorneys for Appellant

and Cross

‐ appellee

Debra M. Nelson and Daniel M. Torrence, Attorneys for Appellee Andy Rasabout

Kelly Ann Booth, Attorney for Appellee and Cross

‐ appellant

Levitz London Kaykeo

J UDGE J. F REDERIC V OROS J R

. authored this Opinion,

in which J UDGE W ILLIAM A. T HORNE J R

. concurred.

J UDGE G REGORY K. O RME concurred in part and concurred in the

result in part, with opinion.

VOROS, Judge:

¶1 Following a jury trial, Andy Rasabout and Levitz London

Kaykeo (collectively, Defendants) were each convicted of one countState v. Rasabout and Kaykeo

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

to the jury’s verdict and recite the facts accordingly. We present

conflicting evidence only as necessary to understand issues raised

on appeal.” State v. Holgate

, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation

and internal quotation marks omitted).

20100284

‐ CA 2013 UT App 71 2 of possession of alcohol by a minor, a class B misdemeanor, see

Utah Code Ann. § 32A

‐ 12

‐ 209 (LexisNexis Supp. 2007) (current

version at id. § 32B

‐ 4

‐ 409 (2011)), and twelve counts of discharge of

a firearm from a vehicle, a third degree felony, see id. § 76

‐ 10

‐ 508

(Supp. 2007) (current version at id. §§ 76

‐ 10

‐ 508,

‐ 508.1 (2012)).

Before sentencing, the trial court merged the twelve counts of

discharge of a firearm into a single count for each defendant. The

State appeals that decision. Kaykeo cross

‐ appeals, challenging his

conviction on the basis of ineffective assistance of counsel. We

reverse and remand for resentencing on the first issue and affirm

on the second.

BACKGROUND 1

¶2 In the early hours of the morning on November 1, 2007, a

man standing outside his house smoking a cigarette saw a white

Honda Civic drive past, make a U

‐ turn, and circle back toward

him. When he heard a shot fired from the car, he ducked inside the

house. He then heard another “eight or nine shots” fired “one right

after another, just nonstop.” After the car had gone, he ran through

the house to check on his family and friends. As he looked out the

window moments later, he saw the car drive by again and heard

two more shots. No one was injured, but the twelve shots damaged

the interior and exterior of the house and two cars parked outside.

One of the cars was a distinctive vehicle that belonged to a guest

who was at the house that morning.

¶3 Police arrived in minutes. While one officer was outside the

house, he saw Defendants drive by in a white Honda Civic,State v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 3 followed by a BMW. The officer got into his car and pulled

Defendants over. Both the driver of the Civic, Kaykeo, and the

passenger, Rasabout, showed signs that they had been drinking.

The officer also noticed shell casings in plain view in the passenger

compartment of the Civic. After the car was impounded and

searched, a nine

‐ millimeter semiautomatic handgun with an empty

magazine was found hidden in a compartment under the glove

box, and four nine

‐ millimeter shell casings were found in the

passenger compartment. Eight additional nine

‐ millimeter shell

casings were found near the house.

¶4 Kaykeo presented an alibi at trial, testifying that he was at

a party at the time of the shooting. According to Kaykeo’s testi

‐

mony, Rasabout approached Kaykeo at the party and asked him to

drive Rasabout home because he had drunk too much. They were

pulled over within a few minutes of leaving the party. Kaykeo

called no other witnesses to corroborate his alibi.

¶5 The jury returned a verdict of guilty on all counts against

Defendants. Before sentencing, the trial court granted a motion to

merge convictions. The court merged the twelve counts of dis

‐ charge of a firearm from a vehicle into a single count for each

defendant.

¶6 After sentencing, Kaykeo filed a motion for new trial,

arguing that his trial counsel was ineffective because he did not

investigate possible witnesses who could verify Kaykeo’s alibi.

Kaykeo supported his motion with signed declarations from

himself and two friends. The State opposed the motion for new

trial and filed an affidavit from Kaykeo’s trial attorney countering

the assertions in Kaykeo’s declaration. The trial court found

Kaykeo’s declaration not credible, found his trial attorney’s

affidavit credible, and accordingly rejected Kaykeo’s ineffective

assistance claim.State v. Rasabout and Kaykeo

2. We compliment the parties on their exemplary briefing of this

complex issue.

20100284

‐ CA 2013 UT App 71 4 ISSUES AND STANDARDS OF REVIEW

¶7 On appeal, the State contends that the trial court erred by

merging the counts of discharging a firearm from a vehicle.

“Because merger questions are legal in nature, we review them for

correctness.” State v. Lee

, 2006 UT 5, ¶ 26, 128 P.3d 1179.

¶8 On cross

‐ appeal, Kaykeo challenges his conviction, arguing

that he was deprived of his constitutional right to counsel because

his trial counsel was ineffective. An ineffective assistance claim

presents mixed questions of law and fact. State v. Templin

, 805 P.2d

182, 186 (Utah 1990) (citing Strickland v. Washington

, 466 U.S. 668,

698 (1984)). “Therefore, in a situation where a trial court has

previously heard a motion based on ineffective assistance of

counsel,” as here, “reviewing courts are free to make an independ

‐

ent determination of a trial court’s conclusions. The factual findings

of the trial court, however, shall not be set aside on appeal unless

clearly erroneous.” Id. (footnote citations omitted). But “[b]ecause

this appeal comes to us on a motion for a new trial, there are few,

if any, factual findings to review.” State v. Lenkart

, 2011 UT 27, ¶ 20

n.7, 262 P.3d 1.

ANALYSIS

I. Merger 2

¶9 The State contends that the trial court erred by merging the

twelve counts of discharge of a firearm into a single count for each

defendant. The trial court ruled that the multiple shots fired toward

the house and cars constituted one offense because the shots were

all part of a “single criminal episode.” See Utah Code Ann.

§ 76

‐ 1

‐ 401 (LexisNexis 2012). Relying on case law, the court alsoState v. Rasabout and Kaykeo

3. Because we agree with the State’s main contention, we do not

address its alternative argument that the events involved two

criminal episodes.

20100284

‐ CA 2013 UT App 71 5 ruled that the multiple shots constituted one offense because the

multiple shots were animated by “one intention, one general

impulse, and one plan.” See State v. Crosby

, 927 P.2d 638, 645 (Utah

1996) (citation and internal quotation marks omitted). The State

argues that the trial court erred by relying on the “single criminal

episode” statute and case law interpreting it rather than looking to

the firearm discharge statute to determine how many counts

Defendants may be convicted of. We agree. 3

¶10 Though not presented in this fashion, the question before the

trial court was one of multiplicity and double jeopardy. Among the

protections embodied in the Double Jeopardy Clause of the United

States Constitution is “protection against multiple punishments for

the same offense.” Bernat v. Allphin

, 2005 UT 1, ¶ 11, 106 P.3d 707

(citing Justices of Boston Mun. Court v. Lydon

, 466 U.S. 294, 306–07

(1984)). The problem of multiplicity arises when “a single offense

[is charged] in several counts.” Charles Alan Wright et al., 1A

Federal Practice & Procedure : Criminal § 142, at 10 (4th ed. 2008). The

“rule against multiplicity

. . . ‘is intended to prevent multiple

punishments for the same act,’” thus guarding against double

jeopardy by “‘prohibit[ing] the Government from charging a single

offense in several counts.’” State v. Morrison

, 2001 UT 73, ¶ 26, 31

P.3d 547 (emphases omitted) (quoting United States v. Kimbrough

,

69 F.3d 723, 729 (5th Cir. 1995)). When a defendant has been

charged under multiple counts for the same offense, the court may

merge the counts to avoid a double jeopardy violation. See Lee

, 2006

UT 5, ¶¶ 30–31. Therefore, to determine whether merger was

appropriate, the relevant question is what constitutes a single

offense.

¶11 The trial court answered this question by turning to the

definition of “single criminal episode” in the Utah Code. See UtahState v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 6 Code Ann. §§ 76

‐ 1

‐ 401 to

‐ 403 (LexisNexis 2012). The single

criminal episode statute enlarges double jeopardy protections. The

Fifth Amendment prohibits any person “for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. The

single criminal episode statute “expand[s] the scope of offenses

barred from multiple trials beyond ‘the same offense’ focus in

double jeopardy, to all offenses arising from a ‘single criminal

episode.’” State v. Strader

, 902 P.2d 638, 641 (Utah Ct. App. 1995)

(citing Utah Code Ann. §§ 76

‐ 1

‐ 402(2),

‐ 403(1) (1995); Utah R. Crim.

P. 9.5; State v. Franklin

, 735 P.2d 34, 35–36 (Utah 1987)); see also State

v. Sommerville

, 2013 UT App 40, ¶ 34 n.11,

— P.3d

—

. The statute

is thus “designed to protect a defendant from multiple trials for

offenses that are part of a ‘single criminal episode.’” Sommerville

,

2013 UT App 40, ¶ 7 (citation omitted). Accordingly, subject to

stated qualifications, such as where “the court otherwise orders to

promote justice,” section 76

‐ 1

‐ 402(2) of the Utah Code prohibits

separate trials for “separate offenses” arising “under a single

criminal episode.” Utah Code Ann. § 76

‐ 1

‐ 402(2).

¶12 The statute defines a single criminal episode as “all conduct

which is closely related in time and is incident to an attempt or an

accomplishment of a single criminal objective.” Id. § 76

‐ 1

‐ 401. This

definition of “single criminal episode” explains how closely

“separate offenses” must be connected to fall within the statutory

requirement of a single prosecution; it does not define “separate

offense.” Indeed, the purpose of the provision is to require a single

trial on “separate offenses” that are “closely related in time” and

“incident to an attempt or an accomplishment of a single criminal

objective.” Id. Accordingly, the fact that separate acts fall within the

definition of “single criminal episode” does not establish that they

are a single offense. See, e.g., State v. Porter

, 705 P.2d 1174, 1178

(Utah 1985) (“Although defendant’s crimes were committed during

a single criminal episode, he committed two distinct burglaries

separately punishable under section 76

‐ 1

‐ 402.”); State v. James

, 631

P.2d 854, 856 (Utah 1981) (“Double jeopardy

. . . does not prevent

multiple convictions for multiple offenses arising from a single

criminal episode.”). On the contrary, Utah law expressly providesState v. Rasabout and Kaykeo

4. Nor is section 76

‐ 1

‐ 402(1) relevant to this case. That provision

states that “when the same act of a defendant under a single

criminal episode shall establish offenses which may be punished in

different ways under different provisions of this code, the act shall

be punishable under only one such provision.” Utah Code Ann.

§ 76

‐ 1

‐ 402(1) (LexisNexis 2012). The present case involves multiple

charges under the same provision, not different provisions.

20100284

‐ CA 2013 UT App 71 7 that “[a] court may impose consecutive sentences for offenses

arising out of a single criminal episode as defined in Section

76

‐ 1

‐ 401.” Utah Code Ann. § 76

‐ 3

‐ 401(5) (LexisNexis 2012).

Accordingly, a determination that separate acts—in this case, shots

from a gun—are part of a single criminal episode does not mean

that they cannot be punished separately, but that—again, subject

to enumerated qualifications—they must be tried together. Thus,

the single criminal episode statute does not resolve the question

before us. 4

¶13 The trial court also applied a test used to determine what

constitutes a single offense in the context of theft. Our supreme

court has held that the test to determine whether multiple takings

constitute a single offense or multiple offenses considers the intent

of the defendant:

“[T]he general test as to whether there are separate

offenses or one offense is whether the evidence

discloses one general intent or discloses separate and

distinct intents.

. . . If there is but one intention, one

general impulse, and one plan, even though there is

a series of transactions, there is but one offense

. . . .”

State v. Kimbel

, 620 P.2d 515, 518 (Utah 1980) (alteration and second

omission in original) (quoting People v. Howes

, 222 P.2d 969, 976

(Cal. Dist. Ct. App. 1950)); see also State v. Crosby

, 927 P.2d 638, 645

(Utah 1996) (following Kimbel in context of theft); State v. Irvin

, 2007State v. Rasabout and Kaykeo

5. On the other hand, the prosecution may seek to aggregate thefts

under the single larceny doctrine to convict a defendant of a single

felony rather than several misdemeanors. See, e.g., State v. Barker

,

624 P.2d 694, 695 (Utah 1981).

20100284

‐ CA 2013 UT App 71 8 UT App 319, ¶¶ 18–19, 169 P.3d 798 (following Kimbel in context of

aggravated robbery).

¶14 This rule is sometimes referred to as the “single larceny

doctrine.” See State v. Barker

, 624 P.2d 694, 695 (Utah 1981); State v.

McClanahan

, 836 P.2d 1164, 1166–67 (Kan. 1992). The gist of the

doctrine is that “if the taking

. . . constitutes but a single act, then

there is but one offense and the multiple ownership of the property

taken is immaterial.” Barker

, 624 P.2d at 695. “The overriding

principle behind the single larceny doctrine is to prevent the state

from aggregating multiple criminal penalties for a single criminal

act.” Richardson v. Commonwealth

, 489 S.E.2d 697, 700 (Va. Ct. App.

1997) (en banc). The doctrine thus often operates as a “humane

rule,” because “[i]f each article stolen were of a value sufficient to

make the crime a felony, and a separate charge could be filed as to

each, a defendant, if convicted, might be sentenced to the peniten

‐ tiary for the rest of his life.” Sweek v. People

, 277 P. 1, 3 (Colo. 1929).

See generally 50 Am. Jur. 2d Larceny §§ 4–8. 5

¶15 The single larceny doctrine thus evolved to limit charging

discretion in the context of aggregating or separating theft counts

based on their dollar values for the purpose of maximizing criminal

liability. No Utah court has applied this test beyond the context of

theft

‐ related crimes. See State v. Escamilla

‐ Hernandez

, 2008 UT App

419, ¶¶ 10–11, 198 P.3d 997 (“We are not persuaded that competent

counsel should have argued for an extension of these larceny cases

to the arena of child sexual abuse.”); State v. Smith

, 2003 UT App

179, ¶¶ 17–19, 72 P.3d 692 (distinguishing cases involving “theft

over time” from attempted tax evasion); see also Barker

, 624 P.2d at

696 (analogizing to the doctrine without adopting it in the context

of a criminal mischief charge for damaging the windshields ofState v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 9 sixteen vehicles, and rejecting the State’s argument that the

doctrine required reversal, because “the factual prerequisite for the

application of the single larceny doctrine, i.e., a single act, is

absent”). We similarly decline to extend the single larceny doctrine

to this case, which does not involve the grouping of multiple thefts.

¶16 Rasabout and the State both suggest, and we agree, that

distinguishing a single, continuous offense from separate, distinct

offenses is primarily a question of interpreting the text of the

statute defining the crime. See State v. Morrison

, 2001 UT 73,

¶¶ 25–26, 31 P.3d 547 (analyzing the statute to determine whether

multiple charges involved a single offense); State v. James

, 631 P.2d

854, 855–56 (Utah 1981) (same); Escamilla

‐ Hernandez

, 2008 UT App

419, ¶¶ 11–13 (same); State v. Irvin

, 2007 UT App 319, ¶¶ 15–17, 169

P.3d 798 (same); State v. Suarez

, 736 P.2d 1040, 1042 (Utah Ct. App.

1987) (same); see also United States v. Kimbrough

, 69 F.3d 723, 730

(5th Cir. 1995) (“We must defer to the legislature’s determination

of whether a specific course of conduct constitutes one or more

separate crimes.” (citing Sanabria v. United States

, 437 U.S. 54, 70

(1978))). Thus, “at its core, the issue of duplicity or multiplicity is

one of statutory interpretation.” Charles Alan Wright et al., 1A

Federal Practice & Procedure: Criminal § 142, at 13 (4th ed. 2008).

¶17 The key question in reviewing the statute is what the

legislature has determined to be the “allowable unit of prosecu

‐

tion.” See United States v. Universal C.I.T. Credit Corp.

, 344 U.S. 218,

221 (1952). “‘The test is whether the individual acts are prohibited,

or the course of action which they constitute. If the former, then

each act is punishable separately.

. . . If the latter, there can be but

one penalty.’” Blockburger v. United States

, 284 U.S. 299, 302 (1932)

(omission in original) (quoting Wharton ʹ s Criminal Law § 34 n.3

(11th ed.)). “Whether a particular course of conduct involves one

or more distinct ‘offenses’ under the statute depends on this

[legislative] choice.” Sanabria

, 437 U.S. at 70. Thus, “‘[t]he question

of what punishments are constitutionally permissible is not

different from the question of what punishments the Legislative

Branch intended to be imposed.’” State v. McCovey

, 803 P.2d 1234,State v. Rasabout and Kaykeo

6. The text of the enhancement is as follows:

(2) A violation of any provision of this section is a

class B misdemeanor unless the actor discharges a

firearm under any of the following circumstances not

amounting to criminal homicide or attempted

criminal homicide, in which case it is a third degree

felony and the convicted person shall be sentenced to

(continued...)

20100284

‐ CA 2013 UT App 71 10 1239 (Utah 1990) (quoting Albernaz v. United States

, 450 U.S. 333,

344 (1981)), modified by State v. Smith

, 2005 UT 57, ¶ 11 & n.4, 122

P.3d 615 (addressing the method of determining “what punish

‐

ments the Legislative Branch intended to be imposed”). We

therefore turn to an analysis of the firearm discharge statute.

¶18 “When interpreting a statute, we look first to its text.”

Richards v. Brown

, 2012 UT 14, ¶ 23, 274 P.3d 911. The text of the

statute under which Defendants were convicted makes it a crime

to discharge a firearm from a vehicle:

(1)(a) A person may not discharge any kind of

dangerous weapon or firearm:

(i) from an automobile or other vehicle;

(ii) from, upon, or across any highway;

. . . (vii) without written permission to discharge

the dangerous weapon from the owner or person in

charge of the property within 600 feet of:

(A) a house, dwelling, or any

other building

. . . .

Utah Code Ann. § 76

‐ 10

‐ 508(1) (LexisNexis Supp. 2007) (current

version at id. § 76

‐ 10

‐ 508(1) (2012)). The statute also includes a

felony enhancement if, among other things, the offender discharges

the firearm in the direction of a building or vehicle with the intent

to damage the building or intimidate or harass another person. 6State v. Rasabout and Kaykeo

6. (...continued)

an enhanced minimum term of three years in prison:

(a) the actor discharges a firearm in the

direction of any person or persons, knowing or

having reason to believe that any person may be

endangered;

(b) the actor, with intent to intimidate or

harass another or with intent to damage a habitable

structure as defined in Subsection 76

‐ 6

‐ 101(2),

discharges a firearm in the direction of any building;

or

(c) the actor, with intent to intimidate or

harass another, discharges a firearm in the direction

of any vehicle.

Utah Code Ann. § 76

‐ 10

‐ 508(2) (LexisNexis Supp. 2007) (current

version at id. § 76

‐ 10

‐ 508.1 (2012)).

20100284

‐ CA 2013 UT App 71 11 ¶19 The Utah Legislature has given us tools for construing

criminal statutes. Section 76

‐ 1

‐ 106 declares that “[a]ll provisions of

this code and offenses defined by the laws of this state shall be

construed according to the fair import of their terms to promote

justice and to effect the objects of the law and general purposes of

Section 76

‐ 1

‐ 104.” Utah Code Ann. § 76

‐ 1

‐ 106 (LexisNexis 2012).

Section 76

‐ 1

‐ 104 provides in part that the criminal code should be

construed to “[d]efine adequately the conduct and mental state

which constitute each offense and safeguard conduct that is

without fault from condemnation as criminal,” and to “[p]rescribe

penalties which are proportionate to the seriousness of offenses

and which permit recognition or differences in rehabilitation

possibilities among individual offenders.” Id. § 76

‐ 1

‐ 104(2),

‐ 104(3).

¶20 Our supreme court has applied these principles in analyzing

a multiplicity challenge. For example, in State v. Morrison

, 2001 UT

73, 31 P.3d 547, the court addressed a challenge to the sexual

exploitation of a minor statute. Morrison argued that, under the

statute, possession of fifty offending images constituted a singleState v. Rasabout and Kaykeo

7. Kaykeo was charged as a party to the offense. See Utah Code

Ann. § 76

‐ 2

‐ 202 (LexisNexis 2012).

20100284

‐ CA 2013 UT App 71 12 offense, not fifty offenses. The statute in effect at that time forbade

the possession or production of “‘any visual representation’” of

child pornography. Id. ¶ 25 (quoting Utah Code Ann. § 76

‐ 5a

‐ 2(3)

(1999)). Construing this provision “‘according to the fair import of

[its] terms to promote justice,’” id. (alteration in original) (quoting

Utah Code Ann. § 76

‐ 1

‐ 106 (1999)), the court held that “[t]he

clearest reading of the statute is that each individual ‘visual

representation’ of child pornography that is knowingly possessed

by a defendant constitutes the basis for a separate offense.” Id. ¶ 26.

“Therefore, the rule against multiplicity was not violated” when

Morrison was charged with fifty separate offenses. Id.

¶21 We approach the firearm discharge statute in the

same straightforward way. Under this statute, “[a] person

may not discharge any kind of dangerous weapon or

firearm” under the stated conditions. Utah Code Ann. § 76

‐ 10

‐ 508(1)(a) (LexisNexis Supp. 2007). The crux of the question

is what the Legislature meant by the word discharge

. The dictionary

definition of the verb discharge is clear. In the present context

it means simply to “fire a weapon,” MacmillanDictionary.com

, http://

www.macmillandictionary.com/dictionary/american/discharge

(last visited March 14, 2013), or to “shoot,” Merriam

‐ Webster

, http://www.merriam

‐ webster.com/dictionary/discharge (last

visited March 14, 2013). We therefore conclude that the “clearest

reading of the statute” is that each act of firing a gun constitutes a

separate offense, or unit of prosecution. See Morrison

, 2001 UT 73,

¶ 26. Here, Rasabout fired his weapon, or shot, twelve times.

Accordingly, reading the statute according to the “fair import” of

its terms as well as its plain language, these shots violated the

statutory prohibition twelve times. See Utah Code Ann. § 76

‐ 1

‐ 106

(LexisNexis 2012). 7State v. Rasabout and Kaykeo

8. Rasabout does cite one case that appears to have treated discharge

as meaning the firing of a series of shots. See McPherson v. State

, 933

So. 2d 1114, 1118 (Ala. Crim. App. 2005). However, that case turned

on the issue of whether multiple victims could serve as the basis for

multiple counts of discharging a firearm into a dwelling. See id. The

court determined that the number of victims was irrelevant, but it

otherwise did not address the meaning of discharge

. See id.

20100284

‐ CA 2013 UT App 71 13 ¶22 So interpreted, the statute is sufficiently clear to “safeguard

conduct that is without fault from condemnation as criminal.” See

id. § 76

‐ 1

‐ 104(2). The present case poses no such danger, as

Rasabout’s multiple shots at the home and car were not “without

fault.” And we are satisfied that, as construed, the statute

“[prescribes] penalties which are proportionate to the seriousness

of offenses and which permit recognition or differences in

rehabilitation possibilities among individual offenders.” Id. § 76

‐ 1

‐ 104(3). We agree with the State that “if one shot is dangerous, two

shots are even more dangerous, and 12 shots are more dangerous

still. Every time the gunman pulls the trigger, he fires a bullet that

could kill someone, damage property, or both

. . . .” We recognize

that shooting twelve shots in rapid succession may not be

twelvefold more culpable than shooting a single shot, but we

cannot escape the conclusion that it is nevertheless more culpable.

¶23 Rasabout argues that because the statute “does not

specifically define” the term discharge

, “the plain language of the

statute does not clearly indicate whether the legislature intended

the allowable unit of prosecution to be each ‘single shot’ fired as

the State argues, or the firing of the firearm which could result in

a series of shots.” Although the statute does not specifically define

discharge

, we are not persuaded that this omission results in

ambiguity. To discharge a weapon means to fire or shoot it.

Rasabout cites no case, dictionary, or compendium to support his

assertion that, unlike words such as gunfire or burst

, discharge can

mean firing a series of shots. 8State v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 14 ¶24 Rasabout and Kaykeo also rely on the unchallenged finding

of the trial court that “most of the shots were fired nonstop, and all

the shots were fired in less than a minute,” and thus that

Defendants had “one general intent in firing the several shots,

which was to intimidate or harass” the occupants of the house. This

finding is relevant to a determination of whether Defendants’ acts

were committed within a single criminal episode. But as noted

above, the fact that criminal acts fall within a single criminal

episode means that they must be charged in a single prosecution,

not that they must be charged in a single count.

¶25 Rasabout notes that other states are divided over whether a

series of gunshots constitutes a single discharge or multiple

discharges. This is certainly true. Some courts hold that each shot

fired constitutes a separate offense. See, e.g., Hennemeyer v.

Commonwealth

, 580 S.W.2d 211, 214 (Ky. 1979) (holding that six

separate gunshots fired by a defendant at pursuing police over a

span of fifteen minutes constituted six separate counts of wanton

endangerment); State v. Morrow

, 888 S.W.2d 387, 392–93 (Mo. Ct.

App. 1994) (“The conduct proscribed is complete on one shot. A

subsequent shot, whether moments or a substantial amount of time

later, creates the same danger which the statute was intended to

prevent.

. . . [T]he individual act of shooting a single shot is

prohibited.”), superseded by statute on other grounds as stated in State

v. French

, 79 S.W.3d 896, 899–900 (Mo. 2002) (en banc); State v.

Rambert

, 459 S.E.2d 510, 513 (N.C. 1995) (holding that defendant

was properly charged with three counts of discharging a firearm

where “defendant’s actions were three distinct and, therefore,

separate events,” explaining that “[e]ach shot, fired from a pistol,

as opposed to a machine gun or other automatic weapon, required

that defendant employ his thought processes each time he fired the

weapon” and that “[e]ach act was distinct in time, and each bullet

hit the vehicle in a different place”).

¶26 Other courts hold that multiple shots fired in rapid

succession—or even not

‐ so

‐ rapid succession—constitute a single

offense. See, e.g.

, McPherson v. State

, 933 So. 2d 1114, 1118 (Ala.State v. Rasabout and Kaykeo

9. Other states have found the unit of prosecution to be the number

of victims targeted by the shooting. See, e.g.

, Burleson v. Saffle

, 2002

OK CR 15, ¶ 7, 46 P.3d 150 (holding that the text and context of the

state’s drive

‐ by shooting statute “indicate[] the Legislature’s

recognition that drive

‐ by shootings often involve more than one

victim—that is, constitute a crime against more than one person”).

20100284

‐ CA 2013 UT App 71 15 Crim. App. 2005) (holding that defendant could only be convicted

of one count of discharging a firearm into an occupied dwelling

because, regardless of the number of victims inside a dwelling,

defendant’s two shots “involved only one unit of prosecution,

which was the [defendant’s] act of discharging the firearm into the

[victims’] occupied dwelling”); Williams v. State

, 90 So. 3d 931,

933–34 (Fla. Ct. App. 2012) (rejecting prosecution’s argument that

“each discharged bullet constituted a distinct act upon which

separate convictions could rest” where defendant “fired eight shots

in a short period of time with only a few seconds’ pause between

gunshots”); State v. Demongey

, 2008

‐ NMCA

‐ 066, ¶ 15, 187 P.3d 679

(holding that firing three shots separated by minutes and distance

traveled was “unitary conduct,” where the shots were fired during

“one high

‐ speed chase, in an extreme attempt to escape from the

pursuing officer”). 9

¶27 In addition, some states determine the unit of prosecution

based on judicial balancing of various factors, many of which are

related more to the facts of the crime than to the language of their

statutes. See, e.g., People v. Rodarte

, 547 N.E.2d 1256, 1261–62 (Ill.

App. Ct. 1989) (“Factors to be considered in determining whether

a defendant’s conduct constitutes separate acts or merely distinct

parts of a single act are: (1) the time interval occurring between

successive parts of the defendant’s conduct; (2) the existence of an

intervening event; (3) the identity of the victim; (4) the similarity of

the acts performed; (5) whether the conduct occurred at the same

location; and (6) prosecutorial intent.”); Harrell v. State

, 277 N.W.2d

462, 472–74 (Wis. Ct. App. 1979) (identifying the following factors:

(1) the nature of the act; (2) temporal proximity; (3) multiple

locations for an assault (including multiple locations on the victim’sState v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 16 body); (4) defendant’s intent; (5) cumulative punishment;

(6) number of physical acts, such as pulls of a trigger; (7) number

of victims); see also State v. Fillman

, 223 P.3d 827, 834 (Kan. Ct. App.

2010) (applying similar factors in conjunction with an analysis of

statutory language).

¶28 However, our analysis begins with the text of the statute

and, if that text is unambiguous, ends there. See Richards v. Brown

,

2012 UT 14, ¶ 23, 274 P.3d 911 (“Where a statute’s language is

unambiguous and provides a workable result, we need not resort

to other interpretive tools, and our analysis ends.”). And the fact

that courts in other states—looking at other factual situations,

interpreting other statutes, and in many cases using other

interpretive approaches—come to inconsistent conclusions does

not persuade us that our statute is ambiguous.

¶29 Finally, Rasabout argues, where the statute does not address

the allowable unit of prosecution, he is entitled to lenity. Rasabout

cites the United States Supreme Court’s statement that “it is

appropriate, before we choose the harsher alternative, to require

that [the legislature] should have spoken in language that is clear

and definite. We should not derive criminal outlawry from some

ambiguous implication.” United States v. Universal C.I.T. Credit

Corp.

, 344 U.S. 218, 221–22 (1952).

¶30 To be clear, while the rule of lenity may in some contexts

serve to safeguard a defendant’s constitutional rights, the rule is

one of statutory construction, not constitutional law. See, e.g., Clark

v. Martinez

, 543 U.S. 371, 398 (2005) (Thomas, J., dissenting) (“[T]he

rule of lenity is wholly independent of the rules governing

constitutional adjudication.”); Bifulco v. United States

, 447 U.S. 381,

387 (1980) (describing the rule of lenity as a “principle of statutory

construction”); Gollehon v. Mahoney

, 626 F.3d 1019, 1027 (9th Cir.

2010) (describing the rule of lenity as “simply a canon of statutory

construction”); United States v. Rivera

, 265 F.3d 310, 312 (5th Cir.

2001) (describing the rule of lenity as “a rule of statutory

construction

. . . rather than a separate constitutional framework forState v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 17 raising claims”); Lurie v. Wittner

, 228 F.3d 113, 126 (2d Cir. 2000)

(“The rule of lenity is a canon of statutory construction, not in itself

federal law.”); Sabetti v. Dipaolo

, 16 F.3d 16, 19 (1st Cir. 1994)

(stating that, other than the “fair notice” guarantee, petitioner “has

not pointed to anything in the federal Constitution

. . . that would

require a state court to apply the rule of lenity when interpreting a

state statute”).

¶31 More specifically, lenity is “‘an ancient rule of statutory

construction that penal statutes should be strictly construed against

the government

. . . and in favor of the persons on whom such

penalties are sought to be imposed.’” United States v. Mabry

, 518

F.3d 442, 452 (6th Cir. 2008) (omission in original) (quoting 3

N. Singer, Sutherland Statutory Construction (6th ed. 2007)).

However, our Legislature appears to have rejected the rule of lenity

as a permissible canon of statutory construction, stating that “[t]he

rule that a penal statute is to be strictly construed shall not apply

to this code, any of its provisions, or any offense defined by the

laws of this state.” Utah Code Ann. § 76

‐ 1

‐ 106 (LexisNexis 2012);

see also State v. Knepper

, 418 P.2d 780, 782 (Utah 1966) (applying a

previous version of this statute to reject a defendant’s invocation of

the rule of lenity). Cf. People v. Morrison

, 120 Cal. Rptr. 3d 502, 506

(Cal. Ct. App. 2011) (referring to California’s similarly worded

provision as “California’s anti

‐ lenity statute”). But see State v.

Bradshaw

, 2006 UT 87, ¶ 10, 152 P.3d 288 (noting, while neither

rejecting nor applying the rule of lenity, that courts may not apply

the rule, which “illuminate[s] definition indirectly,” without first

looking to “authoritative extra

‐ textual sources,” such as non

‐ Utah

precedent); State v. Kenison

, 2000 UT App 322, ¶ 8, 14 P.3d 129

(following the rule “that a defendant is entitled to the benefit of the

lesser penalty afforded by an amended statute made effective prior

to sentencing” and labeling it a “rule of lenity” (citation and

internal quotation marks omitted)).

¶32 At any rate, even if section 76

‐ 1

‐ 106 would permit us to

invoke the rule of lenity where a criminal statute suffers from

ambiguity, as Rasabout urges, or “ egregious ambiguity,” as at leastState v. Rasabout and Kaykeo

10. We express no opinion on how the firearm discharge statute

would apply to a weapon that propels multiple projectiles with a

single pull of the trigger.

20100284

‐ CA 2013 UT App 71 18 one court has held, see People v. Manzo

, 270 P.3d 711, 717 (Cal. 2012),

we are not persuaded that the statute before us falls into either

category. Thus, we need not resort to that interpretive canon here.

¶33 In sum, because we conclude that the unit of prosecution

under the firearm discharge statute is each discrete shot, we

reverse the trial court’s ruling merging the twelve counts into a

single count for each defendant. 10

II. Ineffective Assistance of Counsel

¶34 On cross

‐ appeal, Kaykeo contends that his trial counsel was

constitutionally deficient because he did not adequately investigate

Kaykeo’s alibi. Kaykeo argues that his counsel’s investigation was

inadequate because he failed to contact corroborating witnesses

and failed to request police dispatch logs that would have

corroborated the time frame of his alibi.

¶35 A claim of ineffective assistance of counsel requires proof of

two elements: “First, the defendant must show that counsel’s

performance was deficient.

. . . Second, the defendant must show

that the deficient performance prejudiced the defense.” Strickland

v. Washington

, 466 U.S. 668, 687 (1984); see also State v. Lenkart

, 2011

UT 27, ¶ 25, 262 P.3d 1. To prove constitutionally deficient

performance, “the defendant must show that counsel’s

representation fell below an objective standard of reasonableness”

in light of all the circumstances. Strickland

, 466 U.S. at 687–88.

Furthermore, the defendant must overcome “a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance” and that “under the circumstances, the

challenged action might be considered sound trial strategy.” Id. at

689 (citation and internal quotation marks omitted); see also State v.

Litherland

, 2000 UT 76, ¶ 19, 12 P.3d 92.State v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 19 ¶36 “[O]ne of criminal defense counsel’s most fundamental

obligations is to investigate the underlying facts of a case. This duty

is not optional; it is indispensable.” Lenkart

, 2011 UT 27, ¶ 28. As

our supreme court held in State v. Templin

, 805 P.2d 182 (Utah

1990), the failure to adequately investigate a case constitutes

deficient performance:

If counsel does not adequately investigate the

underlying facts of a case, including the availability

of prospective defense witnesses, counsel’s

performance cannot fall within the “wide range of

reasonable professional assistance.” This is because

a decision not to investigate cannot be considered a

tactical decision. It is only after an adequate inquiry

has been made that counsel can make a reasonable

decision to call or not to call particular witnesses for

tactical reasons.

Id. at 188 (quoting Strickland

, 466 U.S. at 689); see also Gregg v. State

,

2012 UT 32, ¶¶ 23–25, 31–34, 279 P.3d 396; Lenkart

, 2011 UT 27,

¶¶ 27–28.

¶37 The adequacy or reasonableness of the investigation is the

controlling factor. See Taylor v. State

, 2007 UT 12, ¶ 47, 156 P.3d 739

(citing Wiggins v. Smith

, 539 U.S. 510, 522–23 (2003)); State v. Hales

,

2007 UT 14, ¶¶ 69–70, 152 P.3d 321. “[S]trategic choices made after

less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

limitations on investigation. ʺ Strickland

, 466 U.S. at 690–91; see also

Taylor

, 2007 UT 12, ¶ 47. Thus, “a particular decision not to

investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s

judgments.” Strickland

, 466 U.S. at 691; see also Taylor

, 2007 UT 12,

¶ 48.

¶38 In determining the reasonableness of an investigation, “we

look to the information available to trial counsel” at the time of theState v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 20 challenged conduct. Taylor

, 2007 UT 12, ¶¶ 48–49; see also Hales

,

2007 UT 14, ¶ 70. Thus, “inquiry into counsel’s conversations with

the defendant may be critical to a proper assessment of counsel’s

investigation decisions.” Strickland

, 466 U.S. at 691. “[W]hen a

defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel’s failure

to pursue those investigations may not later be challenged as

unreasonable.” Id.

¶39 That is precisely what happened here. Kaykeo claims that

his counsel was ineffective because he failed to contact potential

alibi witnesses. Kaykeo stated in his declaration that he provided

his defense counsel the names and contact information of four

people who were at the party with him at the time of the shooting.

Although Kaykeo did not name the four individuals in his

declaration, Kaykeo provided the trial court with declarations from

the host of the party and the driver of the BMW that was pulled

over with Kaykeo and Rasabout. If believed, these witnesses’

testimony may well have exonerated Kaykeo. The host stated that

Kaykeo was at the party until he left to take Rasabout home. The

driver of the BMW confirmed this account and stated that he

followed Kaykeo and Rasabout from the party, that the car Kaykeo

was driving never left his sight, and that he never saw or heard any

shots fired from Kaykeo’s car.

¶40 However, according to the affidavit provided by Kaykeo’s

defense counsel, Kaykeo told his attorney that he did not know

anyone at the party and he never provided an address or location

of the party. Kaykeo’s defense counsel stated that despite his

requests for potential witness names, Kaykeo never provided him

with any names, stating only that he was at the party with his

girlfriend but that she “would not be helpful because she was ‘mad

at him.’”

¶41 The trial court accepted Kaykeo’s defense counsel’s version

of events. Kaykeo had stated at trial that he only knew the general

location of the party and, aside from his girlfriend and Rasabout,State v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 21 the others at the party were only acquaintances. In light of this

testimony, the trial court stated that the affidavit provided by

Kaykeo’s counsel was consistent with Kaykeo’s trial testimony,

while Kaykeo’s declaration was not.

¶42 Kaykeo did not request an evidentiary hearing below.

Therefore, our review is limited to the affidavits and declarations

provided to the trial court. See State v. Litherland

, 2000 UT 76, ¶ 17,

12 P.3d 92. Nor does Kaykeo mention or challenge the trial court’s

credibility determination. When “[n]either party challenges the

trial court’s findings of fact,

. . . we assume them to be correct.”

Jacobs v. Hafen

, 917 P.2d 1078, 1078 (Utah 1996). We also defer to the

trial court’s determination of the credibility of Kaykeo and his

counsel, not based on its review of the dueling affidavits, but based

on its superior position to judge the credibility of Kaykeo and his

counsel, having observed them at trial. Cf. State v. Calliham

, 2002

UT 86, ¶ 23, 55 P.3d 573 (deferring to a trial court’s ruling that a

psychological examination was not needed, even though that

ruling was based primarily on a preliminary trial transcript,

because in contrast to the appellate court’s examination of a cold

record, the trial court made its determination “having personally

observed the quality of the evidence, the tenor of the proceedings,

and the demeanor of the parties”).

¶43 Therefore, according to the facts accepted by the trial court,

Kaykeo never informed his counsel of the two witnesses who could

corroborate his alibi. Kaykeo’s counsel inquired about potential

witnesses and was given only one lead. He did not follow that lead,

because Kaykeo dissuaded him from doing so.

¶44 Based on these facts, the only possible basis for a claim of

inadequate investigation is counsel’s failure to follow up with the

girlfriend. But this failure did not constitute deficient performance

in this case. As noted above, in deciding whether Kaykeo’s counsel

provided deficient performance, we “must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland v. Washington

, 466State v. Rasabout and Kaykeo

20100284

‐ CA 2013 UT App 71 22 U.S. 668, 689 (1984). Furthermore, the adequacy of an investigation

“may be determined or substantially influenced by the defendant’s

own statements or actions.” Id. at 691. Accordingly, we cannot

ignore—nor can we expect Kaykeo’s counsel to have

ignored—Kaykeo’s statement that his girlfriend “would not be

helpful because she was ‘mad at him.’” Counsel could have

interpreted this statement to mean that she would not be willing to

provide names of other witnesses, that she would lie out of spite

and provide harmful but false testimony, or that she would be

unwilling to lie and would provide harmful but true testimony.

Because Kaykeo gave his counsel “reason to believe that pursuing

certain investigations would be fruitless or even harmful, counsel’s

failure to pursue those investigations may not later be challenged

as unreasonable.” See id. In light of these facts, Kaykeo’s counsel

“rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.” See id. at 690.

¶45 Regarding Kaykeo’s claim of ineffective assistance based on

his counsel’s failure to obtain the police dispatch logs, we note that

the dispatch logs are not part of the record on appeal. Without

them, Kaykeo cannot prove that his counsel acted deficiently.

“Where the record appears inadequate in any fashion, ambiguities

or deficiencies resulting therefrom simply will be construed in

favor of a finding that counsel performed effectively.” Litherland

,

2000 UT 76, ¶ 17. Furthermore, Kaykeo cannot prove that he was

prejudiced by his counsel’s failure to request the dispatch logs. A

defendant “cannot meet the prejudice prong of the Strickland test

simply by identifying unexplored avenues of investigation. Rather,

he must demonstrate a reasonable probability that further

investigation would have yielded sufficient information to alter the

outcome of his [case].” Parsons v. Barnes

, 871 P.2d 516, 523–24 (Utah

1994); see also Litherland

, 2000 UT 76, ¶ 17; State v. Chacon

, 962 P.2d

48, 50 (Utah 1998) (stating that prejudice may not be established as

“a speculative matter” (citation and internal quotation marks

omitted)).State v. Rasabout and Kaykeo

11. Kaykeo claims that his trial counsel was ineffective for a

number of other reasons, such as failing to investigate possible

legal defenses before trial and failing to file “even a single motion

or proposed jury instruction” based on those defenses. In his

opening brief, Kaykeo does not identify which legal defenses trial

counsel should have asserted, which motions his counsel should

have filed, or which jury instructions should have been given.

Therefore, he has not carried his burden of persuasion on appeal.

See Utah R. App. P. 24(a)(9); State v. Thomas

, 961 P.2d 299, 305 (Utah

1998). See also State v. Lenkart

, 2011 UT 27, ¶ 27, 262 P.3d 1 (“[A]

defendant must identify specific acts or omissions which, under the

circumstances, show that counsel’s representation fell below an

objective standard of reasonableness.” (emphasis added) (citation

and internal quotation marks omitted)). In his reply brief, Kaykeo

argues that his counsel was ineffective for not moving to bifurcate

Kaykeo and Rasabout’s trial and for not challenging the admission

of evidence of Rasabout’s gang affiliation under rule 404(b) of the

Utah Rules of Evidence. “It is well settled that issues raised by an

appellant in the reply brief that were not presented in the opening

brief are considered waived and will not be considered by the

appellate court.” Allen v. Friel

, 2008 UT 56, ¶ 8, 194 P.3d 903

(citation and internal quotation marks omitted).

20100284

‐ CA 2013 UT App 71 23 ¶46 Because Kaykeo has failed to demonstrate that his counsel

was deficient in failing to contact potential witnesses, and that his

counsel’s failure to obtain the dispatch logs was deficient and

prejudiced his case, Kaykeo’s claim of ineffective assistance fails. 11

CONCLUSION

¶47 The trial court erred by merging Rasabout’s and Kaykeo’s

twelve counts of discharge of a firearm into one count each. Based

on the language of the statute, the allowable unit of prosecution is

one count for each shot fired from the weapon. Therefore, we

reverse the trial court’s order merging the separate counts and

remand for resentencing.State v. Rasabout and Kaykeo

12. Rasabout does not join in Kaykeo’s cross appeal or otherwise

challenge the jury’s verdict against him. The jury’s determination

that Rasabout fired the shots at the house, therefore, must be taken

as a given in evaluating Kaykeo’s claim.

20100284

‐ CA 2013 UT App 71 24 ¶48 On cross

‐ appeal, Kaykeo has not established that his counsel

provided ineffective assistance at trial. Therefore, the trial court

correctly denied his motion for new trial on this ground, and we

affirm.

ORME, Judge (concurring in part and concurring in the result in

part):

¶49 I concur in section I of the lead opinion but concur only in

the result reached in section II. Given the difficulties in determining

the adequacy of trial counsel’s performance based on conflicting

affidavits and given the lack of an evidentiary hearing below to

resolve the conflict, I am persuaded that the best course is to

resolve the ineffective assistance claim raised by Kaykeo 12 purely

on the prejudice prong, as our cases allow us to do. See, e.g.

, State

v. Arguelles

, 921 P.2d 439, 441 (Utah 1996) (“Unless [the defendant]

has demonstrated that he was prejudiced by his trial counsel’s

performance, we need not decide whether that performance was

deficient.”); State v. Strain

, 885 P.2d 810, 814 (Utah Ct. App. 1994)

(“[I]n cases in which it is ‘easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice,’ we will do so

without addressing whether counsel’s performance was

professionally unreasonable.”) (quoting Strickland v. Washington

,

466 U.S. 668, 697 (1984)).

¶50 The requisite showing of prejudice in an ineffective

assistance claim cannot be established by simply “identifying

unexplored avenues of investigation.” Parsons v. Barnes

, 871 P.2d

516, 523 (Utah 1994). Instead, a defendant must show a reasonable

probability that further investigation would have resulted in a

more favorable outcome at trial. See id. at 523–24. While KaykeoState v. Rasabout and Kaykeo

13. Kaykeo testified that he and Rasabout were close, even

describing Rasabout as a “cousin.” Given that, the jury would have

to assume that Rasabout was completely indifferent to the obvious

(continued...)

20100284

‐ CA 2013 UT App 71 25 avers that his trial counsel failed to investigate and call witnesses

capable of corroborating his version of the events, Kaykeo wholly

fails to establish that the added testimony of these witnesses would

create a reasonable probability of acquittal. Even assuming that

(1) these potential witnesses were subject to subpoena at the time

of trial or that they were ready, willing, and able to testify

voluntarily and (2) that there was no obvious obstacle to these

witnesses being believed by the jury—e.g., prior criminal history

admissible under rule 609 of the Utah Rules of Evidence—it is

doubtful that the story these witnesses were ostensibly prepared to

tell was even possible, let alone plausible.

¶51 According to the declarations of the two uncalled witnesses,

Kaykeo had been at a party approximately five miles from where

the shootings occurred for the entire evening and did not leave

until Rasabout appeared and asked Kaykeo to be his designated

driver. The uncalled witness who claims he drove behind them

after they left the party declared that Rasabout’s vehicle, which

Kaykeo was driving, never left his sight and that he did not see or

hear any gunshots coming from the vehicle before they were pulled

over. This proposed testimony, according to Kaykeo, supposedly

substantiates his unconvincing narrative that Rasabout, after

engaging in two drive

‐ by shooting attacks on the same house,

immediately drove five miles to a party with the hope of finding a

designated driver to take him home and then—to add insult to

injury—allowed his unwitting driver to go right past the home he

had riddled with bullets only minutes before. To believe such a

fantastical tale, a jury would also have to believe that although

Rasabout formed the plan to drive five miles in search of a

designated driver, he did not have the good sense to direct that

driver away from the scene of his just

‐ completed crimes. 13State v. Rasabout and Kaykeo

13. (...continued)

risk that his close friend could be implicated in his crime if they

drove past the scene of the crime on their way home.

14. Kaykeo and Rasabout were pulled over and arrested

approximately 15 minutes after the shooting occurred. Taking

judicial notice of the times and distances involved, as confirmed by

MapQuest, the travel time from the scene of the crime to the party

and then back—with no delay at the party once there—is 24

minutes. By those calculations, Kaykeo and Rasabout would have

arrived roughly 10 minutes late to their own arrest.

20100284

‐ CA 2013 UT App 71 26 ¶52 The timing of all these events only serves to exacerbate the

utter implausibility of Kaykeo’s alibi. The police arrived only

minutes after the second round of shooting took place, and within

a few moments of their arrival Kaykeo and Rasabout drove by and

were pulled over. It would have seemed impossible to the jury, as

it does to me, that, within such a minuscule time frame, Rasabout

was able to drive five miles up the road, enter a party, locate

Kaykeo, get Kaykeo to agree to drive him home, leave the party,

and then head five miles back to where the shooting took place as

a mere coincidence of heading for home. Even assuming that

Rasabout was able to extricate Kaykeo from the party almost

instantaneously, and without allowing any time for Kaykeo to say

his goodbyes or gather his belongings, it is completely implausible,

if not impossible, that even the round trip drive could be

completed in that small amount of time. 14

¶53 In my view, the proposed testimony of the uncalled

witnesses does nothing to alleviate the many failings of Kaykeo’s

outlandish alibi defense. Consequently, I would resolve Kaykeo’s

ineffective assistance claim entirely on the prejudice prong of the

Strickland test. He simply was not prejudiced by the jury’s being

spared these tall tales.