2019 UT App 2

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ERNESTO NAVARRO,

Appellant.

Opinion

No. 20151019-CA

Filed January 4, 2019

Third District Court, Salt Lake Department

The Honorable Paul B. Parker

No. 141907986

Nathalie S. Skibine, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Two groups of rival gang members encountered each 

other and began shooting. When the shooting stopped, a man in 

one group was dead, killed instantly by a bullet that hit his neck 

and severed his spine. Defendant Ernesto Navarro was in the 

other group and was convicted of several charges including 

murder. He now challenges those convictions on two grounds.

¶2 Defendant contends that he received constitutionally 

ineffective assistance of counsel because (1) his trial counsel

failed to object on hearsay grounds to a detective’s testimony 

concerning another witness’s trial testimony and (2) his trial

counsel failed to correct a jury instruction that misstated the law 

regarding imperfect self-defense. Because Defendant did not 
State v. Navarro

20151019-CA 2 2019 UT App 2

suffer prejudice from the detective’s testimony or the erroneous 

jury instruction, we conclude that Defendant did not receive 

constitutionally ineffective assistance of counsel. We therefore 

affirm.

BACKGROUND

¶3 Victim, a gang member, was driving a stolen Chevrolet 

Avalanche. His nephew (Nephew) was riding in the front 

passenger seat while Victim’s two nieces sat in the back. The

group encountered a sedan containing four members of a rival 

gang. Traveling in the sedan were Defendant, Driver, Passenger, 

and another individual who did not testify at trial.

¶4 The sedan stopped to investigate a man wearing blue—

the color of a rival gang. According to Driver, if the person 

belonged to a rival gang, “[they] would have got out and fought 

with him or done anything, because if he’s a rival gang member, 

then usually [they] go and . . . do something to him.” However, 

the sedan occupants determined that the man was not from a 

rival gang and continued driving. They then noticed that the 

Avalanche was following them and that it was driven by 

someone—Victim—wearing red, the color of another rival gang.

¶5 People in both vehicles, including Defendant, began using 

hand gestures to signal their gang affiliation, commonly referred 

to as “throwing up gang signs.” However, Driver refused to stop 

the sedan because he sensed “something was going to happen”

and the sedan belonged to his mother. Eventually, Driver drove 

down an alley to elude the pursuing Avalanche.

¶6 After losing the Avalanche, Driver parked the sedan at 

Defendant’s apartment. They went inside “to get something to 

drink” and turned on a video game console. When they decided 

to leave the apartment, Defendant took his gun with him

because he “was concerned.” Defendant’s group continued on 

foot. According to Defendant, they left to go to the store to buy 
State v. Navarro

20151019-CA 3 2019 UT App 2

some food and did not expect to meet the Avalanche occupants 

again. But according to Driver, Defendant said, “Let’s go get 

these fools,” and, according to Passenger, Defendant said, “We 

got to do something about him if we see him again.”

¶7 Meanwhile, after losing sight of the sedan, Victim drove 

off to pick up three of his brothers-in-law, two of whom were 

members of his gang and at least one of whom had a gun on his 

person. With these reinforcements, Victim then began driving 

around, looking for the sedan or Defendant’s group intending to 

fight them.

¶8 Victim eventually spotted the empty sedan. He continued 

driving the Avalanche around until he found Defendant’s group

walking down an alley. Victim stopped the Avalanche at a right 

angle to the alley.

¶9 Shortly thereafter, a flurry of gunfire erupted, drawing 

the attention of other nearby witnesses. One of the shots killed 

Victim. Another wounded Nephew. Everyone in the Avalanche, 

except Victim, scrambled to get out of the vehicle and then fled. 

Defendant’s group also ran away.

¶10 At least thirteen shots were fired. Police later found seven

spent bullet casings from Defendant’s .40 caliber firearm and five

spent casings from Passenger’s 9mm firearm in the alley where 

Defendant’s group had been standing. Outside the driver’s side 

passenger door of the Avalanche, police found one spent casing 

and matched it to a 9mm gun found next to the driver’s seat 

inside the Avalanche.

¶11 Defendant’s group returned to his apartment, where he

took a shower to remove any gunshot residue. He then left the 

apartment, taking both his and Passenger’s guns, and attempted 

to stash them where they would not be found by police. 

According to Defendant, Passenger instructed him “to not talk to 

the police,” and threatened that if Defendant did talk to police, 

“that would mean danger [to Defendant’s] life or [his] family.”
State v. Navarro

20151019-CA 4 2019 UT App 2

¶12 Police officers eventually located and arrested Defendant. 

When he was arrested, Defendant gave a false name. At trial, 

Defendant admitted that he had lied to the arresting officers. For 

example, he acknowledged that although he had owned his gun 

for about six months, he told the arresting officers that he had 

only received his gun on the day he was arrested. Defendant 

further acknowledged that he lied to police by telling them he 

had never been to the apartment even though he had lived there 

for two months, and by telling them that he had been working at 

a hospital on the day of the shooting.

¶13 Defendant was charged with murder, obstruction of 

justice, and felony discharge of a firearm. Following a jury trial, 

he was convicted on all counts. 

ISSUE AND STANDARD OF REVIEW

¶14 Defendant contends that he was deprived of his 

constitutional right to effective assistance of counsel. See generally

Strickland v. Washington, 466 U.S. 668, 686 (1984) (“The 

benchmark for judging any claim of ineffectiveness must be 

whether counsel’s conduct so undermined the proper 

functioning of the adversarial process that the trial cannot be 

relied on as having produced a just result.”). “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 (quotation simplified).

ANALYSIS

¶15 Defendant contends that he was deprived of the effective 

assistance of counsel in two ways. First, he asserts that his trial 

counsel was ineffective for failing to object to certain testimony
State v. Navarro

20151019-CA 5 2019 UT App 2

he characterizes as hearsay. Second, he asserts his counsel was 

ineffective for failing to object to an erroneous jury instruction. 

¶16 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.

I. Hearsay

¶17 Defendant first contends that his trial counsel “should 

have objected to hearsay statements” elicited from a detective

“concerning prior consistent statements by the State’s key 

witnesses”—Nephew and one of Victim’s nieces. Specifically, he 

argues that the State was allowed “to ask a string of questions 

bolstering the credibility of [Nephew] and another witness from 

his group on the most contested issue at trial: who shot first.”

¶18 A statement is hearsay when the declarant makes the 

statement outside of court and the statement is offered into 

evidence at trial to prove the truth of the matter asserted. See

Utah R. Evid. 801(c). However, as relevant here, when the 

declarant is subject to in-court cross-examination, such a 

statement will be considered non-hearsay when the statement 

“is consistent with the declarant’s testimony and is offered to 

rebut an express or implied charge that the declarant recently 

fabricated it or acted from a recent improper influence or motive 

in so testifying.” Id. R. 801(d)(1)(B).

¶19 At trial, Nephew testified that Defendant’s group had 

fired first and that no shots had been fired by Victim’s group. 

Nephew admitted that after picking up reinforcements, the 

Avalanche occupants went “looking for them guys, the guys that 

were in front of [Victim’s group] in the green sedan.” When 
State v. Navarro

20151019-CA 6 2019 UT App 2

asked why, he testified, “I believe we were going to go fight 

them.” And despite believing that at least one of his companions 

had a gun, Nephew claimed that they planned to fight “[w]ith 

our fists.” According to Nephew, they encountered Defendant’s 

group shortly after finding the empty sedan. Nephew stated that 

Defendant’s group had at least two guns visible and that no one 

in the Avalanche had a gun out. Victim stopped the Avalanche, 

and without words being exchanged, “firing happened.” When 

pressed on who shot first, Nephew answered that “[t]he first 

shot came from the right side . . . of the vehicle” “from the alley.”

Nephew further testified that no shots were fired from the 

Avalanche.

¶20 During Nephew’s cross-examination, Defendant’s counsel 

asserted that this account departed from the version Nephew

initially told to the police. Counsel asked Nephew whether he 

had told “the police that originally [Victim] was taking [two 

occupants of the Avalanche] home, and then you guys were 

going to take [Victim’s nieces] to dinner before the run in with 

[Defendant’s Group] took place.” Counsel also asked Nephew 

whether he remembered telling police that one of the Avalanche 

occupants “actually had a gun and that [he] heard it go off.” 

Nephew denied that he had so informed the police.

¶21 Defendant’s counsel then questioned Nephew about his 

statement to the police that he had recognized some of the 

people who had been firing at him, and Nephew admitted that 

this statement had been false:

Q. You were interviewed at least three times, 

correct?

A. Yes.

Q. And it was the second day that you gave them 

the false information about three suspects that 

were totally innocent?
State v. Navarro

20151019-CA 7 2019 UT App 2

A. Yes.

Q. And your explanation of why you gave them 

three suspects was because you felt pressured by 

the police?

A. Yes.

Q. And instead of saying ‘I don’t know who they 

were,’ you gave [inaudible] people?

A. I did tell them I didn’t know who they were.

Q. And you also told them that one of the 

individuals goes by a street name of Radio, correct?

A. Yes, sir.

¶22 Defendant’s counsel later called the detective to the stand 

to testify regarding Nephew’s police report. The detective 

testified that after Nephew implicated Radio, the detective

discovered Radio had been two and a half hours away from the 

shooting when it happened. According to the detective, when he 

confronted Nephew about Radio’s alibi, Nephew admitted that 

Radio had not been involved, that Nephew had simply named a 

person with whom he had past dealings, and that Nephew had 

made up the name of one of the other people he had identified 

as a suspect. The State then questioned the detective:

Q. [Nephew] was consistent that [Victim] was the 

driver?

A. Yes.

Q. He was consistent that he was the passenger?

A. Yes.
State v. Navarro

20151019-CA 8 2019 UT App 2

Q. He was consistent that there was another group 

throwing gang signs . . . that they encountered?

A. Correct.

Q. And he was consistent that there [were] men in 

the alley?

A. Yes.

Q. That those men in the alley had shot at his truck 

he was in first?

A. That’s correct.

Q. He was consistent that he was hit in the arm and 

close to his hip?

A. Yes.

Q. Those are the type of facts that most related to 

your investigation, the shooting?

A. Yes. Those facts were everything related to the 

shooting, yes.

. . .

Q. Did [Victim’s niece] ever deviate that the men 

from the alley shot first at the truck?

A. No.

¶23 Defendant contends that his counsel should have objected 

to this line of questioning. “The purpose of rule 801(d)(1)(B) is to 

admit statements that rebut a charge of recent fabrication or 

improper influence or motive, not to bolster the believability of a 

statement already uttered at trial.” State v. Bujan, 2008 UT 47,
State v. Navarro

20151019-CA 9 2019 UT App 2

¶ 11, 190 P.3d 1255. Thus, even where testimony is properly 

admitted for rehabilitative purposes, it should be limited to 

“testimony that directly rebuts charges of recent fabrication,” 

and not necessarily admitted in its entirety. Id. ¶ 10. Our 

supreme court has also suggested that a limiting instruction may 

be necessary to inform the jury that the testimony should be 

considered only for rehabilitative purposes. See id. ¶ 9. 

Defendant asserts that the string of questions calling out all of 

Nephew’s prior consistent statements went beyond the scope of 

admissibility under rule 801(d)(1)(B) and inappropriately 

bolstered Nephew’s testimony rather than merely rebutting a 

charge of prior inconsistent statements, particularly in the 

absence of a limiting instruction.

¶24 But even assuming Defendant’s counsel performed 

deficiently by failing to object to this line of questioning 

or failing to request a limiting instruction, we ultimately 

conclude that Defendant cannot demonstrate prejudice resulting 

from this testimony. Defendant asserts that in the absence of 

the detective’s testimony, “the State would [have been] hard 

pressed to meet its burden to prove beyond a reasonable 

doubt that [Defendant] did not act in self-defense.” But we 

are not convinced that the introduction of Nephew’s prior 

consistent statements had any significant impact on the ultimate 

verdict. 

¶25 The Utah Supreme Court has recently explained that an 

appellate court “must ‘consider the totality of the evidence 

before the judge or jury’ and then ‘ask if the defendant has met 

the burden of showing that the decision reached would 

reasonably likely have been different absent the errors.’” State v. 

Garcia, 2017 UT 53, ¶ 42, 424 P.3d 171 (quoting Strickland v. 

Washington, 466 U.S. 668, 695–96 (1984)). Accordingly, an 

appellate court must “examine the record as a whole” to 

determine whether the court’s confidence in the jury’s verdict is 

undermined. Id. ¶ 45.
State v. Navarro

20151019-CA 10 2019 UT App 2

¶26 While the detective’s testimony may have reinforced 

Nephew’s testimony to some degree, other credibility issues 

with his testimony remained—notably his admitted lies to police 

in the course of the investigation and his motivation to fabricate 

testimony both at the time he spoke to police and at the time of 

trial. Further, there was much more to the question of 

self-defense in this case than who shot first. A defendant cannot 

claim self-defense when he was “attempting to commit” or 

“committing . . . a felony” or “was the aggressor or was engaged 

in a combat by agreement.” Utah Code Ann. § 76-2-402(2)(a) 

(LexisNexis 2012).

¶27 The totality of the evidence includes the testimony of 

Defendant and his companions, Driver, and Passenger. 

Defendant testified that his group left the apartment to buy some 

food, not to seek out the Avalanche or Victim’s group. He also 

explained his decision to retrieve his gun and take it with him; 

he testified that he took it because he “was concerned.” But 

Driver testified that Defendant stated, “Let’s go get these fools,” 

and Passenger testified that Defendant said, “We got to do 

something about him if we see him again.” See supra ¶ 6. Thus, 

two of Defendant’s own companions testified that the group left 

the apartment seeking a confrontation. His companions also 

testified “they always do something to” members of rival gangs 

when they see them; that Defendant had been “[t]hrowing up 

gang signs;” that Defendant had his gun out even before the

Avalanche arrived in the alley; and that it was possible 

Defendant had fired first. This testimony was consistent with 

other testimony presented by the State, discussed above, 

suggesting that Defendant’s group began the firefight.

¶28 Additionally, Defendant’s actions and initial statements to 

police were evasive and designed to frustrate an investigation 

into his role in Victim’s death. Defendant’s companions testified 

that upon returning to the apartment, he attempted to hide the 

gun, remove gun residue from his person, and he expressed 

excitement that he could now get his gang tattoo as a result of 
State v. Navarro

20151019-CA 11 2019 UT App 2

the shooting. Upon his arrest several days after the shooting, 

Defendant did not claim to have acted in self-defense. Instead, 

he first gave police a false name, denied driving the sedan, and 

denied having been anywhere in the area for years. Defendant 

also claimed to have been staying at a hotel but could not 

remember the hotel’s name. Later, Defendant admitted he had 

been to the apartment, but only to feed some dogs; however, he 

could not name the owner of the dogs. Defendant also claimed 

that he had been working at a hospital on the day of the 

shooting. And still later, Defendant admitted that he had been 

staying at the apartment but denied having been present at the 

shooting. Finally, Defendant admitted that he had witnessed the 

shooting but denied firing his gun. It was not until trial that 

Defendant admitted he had fired his gun at the Avalanche, but 

only in self-defense. Defendant’s evolving and uncorroborated 

account likely made it difficult for the jury to credit his trial 

testimony.

¶29 All this evidence amply supports a conclusion that 

Defendant actively sought a fight with Victim rather than acting 

in self-defense. Thus, we are not convinced that “there is a 

reasonable probability that . . . the result of the proceeding 

would have been different” without the detective’s testimony. 

See Strickland, 466 U.S. at 694. Defendant therefore cannot show 

that he was deprived of the effective assistance of counsel with 

regard to the detective’s testimony.

II. Jury Instruction

¶30 Defendant also contends that his trial counsel was 

constitutionally ineffective for failing to object to an erroneous 

jury instruction. Specifically, he argues that his counsel 

“approv[ed] a jury instruction stating that [Defendant] could be 

convicted of manslaughter only if the jury found beyond a 

reasonable doubt that imperfect self-defense applied” instead of

stating that “[Defendant] could be convicted of manslaughter 
State v. Navarro

20151019-CA 12 2019 UT App 2

only if the State failed to disprove imperfect self-defense beyond 

a reasonable doubt.”

¶31 Utah law provides that a murder charge may be reduced 

to a manslaughter charge when the defendant erroneously 

believed that the killing was legally justified, such as in 

self-defense:

It is an affirmative defense to a charge of 

murder . . . that the defendant caused the death of 

another . . . under a reasonable belief that the 

circumstances provided a legal justification or 

excuse for the conduct although the conduct was 

not legally justifiable or excusable under the 

existing circumstances.

Utah Code Ann. § 76-5-203(4)(a) (LexisNexis 2012). “Once a 

defendant has produced some evidence of imperfect 

self-defense, the prosecution is required to disprove imperfect 

self-defense beyond a reasonable doubt.” State v. Lee, 2014 UT 

App 4, ¶ 27, 318 P.3d 1164 (quotation simplified). “Because the 

burden of proof for an affirmative defense is counterintuitive, 

instructions on affirmative defenses must clearly communicate 

to the jury what the burden of proof is and who carries the 

burden.” Id. (quotation simplified).

¶32 Here, the jury received three instructions regarding the 

burden of proof. Instruction 55 explained that “[t]he defendant is 

not required to prove that the defense [of imperfect self-defense] 

applies. Rather, the State must prove beyond a reasonable doubt 

that the defense does not apply.” And Instruction 71 explained, 

“The laws of Utah do not require the defendant to prove 

self-defense. Once self-defense or imperfect self-defense is raised 

by the defendant, it is the prosecution’s burden to prove beyond 

a reasonable doubt that the defendant did not act in 

self-defense.” These instructions correctly stated the relevant 

law.
State v. Navarro

20151019-CA 13 2019 UT App 2

¶33 However, Instruction 53, to which Defendant’s counsel 

acquiesced, erroneously placed the burden on Defendant to 

prove that imperfect self-defense applied beyond a reasonable 

doubt:

You cannot convict the Defendant, Ernesto 

Navarro, of the offense of Manslaughter unless you 

find from all the evidence, and beyond a reasonable 

doubt, each and every one of the following 

elements: 1. That the defendant, Ernesto 

Navarro, . . . 2. committed the offense of Murder under 

circumstances amounting to imperfect self-defense . . . .

(Emphases added). The State concedes that Instruction 53 was 

erroneous but argues that Defendant was not prejudiced by the 

error because he was not entitled to claim imperfect self-defense.

¶34 In the State’s view, Defendant was not entitled to claim 

imperfect self-defense because he could not have acted “‘under a 

reasonable, but legally mistaken, belief that his use of deadly 

force was justified.’” (Quoting Lee, 2014 UT App 4, ¶ 29.) As 

discussed above, a defendant cannot claim self-defense when the 

defendant is engaged in committing a felony, is the aggressor, or 

is engaged in combat by agreement. See Utah Code Ann. 

§ 76-2-402(2)(a). 

¶35 Defendant was the only witness to testify that his group 

had not sought to confront Victim’s group after leaving the 

apartment, and his uncorroborated account contradicted the 

testimony of other witnesses credited by the jury. The jury 

apparently found that Defendant’s group had left the apartment 

in the hopes of confronting Victim’s group. Given the 

overwhelming evidence that Defendant was the aggressor, there 

is no reasonable probability that the jury would have convicted 

Defendant of the lesser offense of manslaughter if Instruction 53 

had properly explained the burden of proof. Because the 

evidence failed to establish a claim of imperfect self-defense, 
State v. Navarro

20151019-CA 14 2019 UT App 2

Defendant did not suffer prejudice when one of the three 

instructions misstated the burden of proof.1

¶36 Because Defendant has not shown how the erroneous 

instruction prejudiced his case, he has failed to demonstrate that 

his counsel’s assistance fell below the constitutionally required

level. See Strickland v. Washington, 466 U.S. 668, 687 (1984) 

(holding that a defendant must prove both counsel’s deficient 

performance and resulting prejudice to succeed on a claim of 

ineffective assistance of counsel); see also State v. Hards, 2015 UT 

App 42, ¶ 18, 345 P.3d 769 (“Because both deficient performance 

and resulting prejudice are requisite elements of an ineffective 

assistance of counsel claim, a failure to prove either element 

defeats the claim.”).

III. Cumulative Error

¶37 In Defendant’s reply brief, he asserts that “the two errors 

worked together—both the inadmissible hearsay and the faulty 

 

1. Our conclusion on this point is reinforced by the fact that the 

jury did not ask the court to reconcile or explain the conflicting 

instructions regarding the burden of proof for a claim of 

imperfect self-defense, suggesting that the jury did not believe 

that imperfect self-defense applied, regardless of who bore the 

burden of proof. It is also worth noting that both the State and 

the defense attempted to steer the jury away from manslaughter. 

The State implored the jury, “We are not [asking you to consider 

manslaughter]. We are asking you to convict the defendant of 

murder because that’s what he did.” The defense likewise 

eschewed a manslaughter request, stating, “We’re not asking 

you to find him guilty of manslaughter. We’re asking you to find 

. . . . [t]hat he was justified in defending himself. . . . Please find 

him not guilty.” Thus, the jury may have paid very little 

attention to the manslaughter instruction that contained the 

erroneous language.
State v. Navarro

20151019-CA 15 2019 UT App 2

instruction prevented the jury from considering imperfect 

self-defense.” However, “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 (quotation 

simplified). Thus, Defendant has waived his cumulative-error 

claim.

CONCLUSION

¶38 Defendant’s trial counsel’s failure to object on hearsay 

grounds to testimony regarding Nephew’s initial statement to a 

detective and counsel’s failure to object to the erroneous jury 

instruction did not lead to any discernable prejudice. We

therefore conclude that Defendant has not demonstrated that his

counsel’s assistance was constitutionally ineffective.

¶39 Affirmed.