2020 UT App 18

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CULLEN CHRISTOPHER CARRICK,

Appellant.

Opinion

No. 20160249-CA

Filed January 30, 2020

First District Court, Brigham City Department

The Honorable Brandon J. Maynard

No. 141100418

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Appellant Cullen Christopher Carrick challenges his 

conviction for burglary. He argues that errors by the trial court 

in denying his motion for a directed verdict, admitting a hearsay 

statement, and not properly instructing the jury, coupled with 

various instances of ineffective assistance of counsel, entitle him 

to reversal and a new trial. We disagree and affirm his 

conviction.
State v. Carrick

20160249-CA 2 2020 UT App 18

BACKGROUND1

The Burglary

¶2 Carrick and a woman (Wife) were involved in an 

extramarital affair when Wife unexpectedly passed away. Wife’s 

friend (Friend) was privy to the affair and had met Carrick once 

at Wife’s home (the home). Friend had also seen photos of 

Carrick and shared them with her husband (Friend’s Husband). 

Friend was “[d]isappointed” in Wife for the affair but was still 

“going to be her best friend.” Wife’s husband (Husband) learned 

of the affair just days before Wife’s passing when, at the hospital, 

he stumbled upon romantic messages on social media between 

Carrick and Wife. 

¶3 Undeterred by the potential for a confrontation with 

Husband, Carrick attended Wife’s funeral.2 Two of Wife’s 

neighbors, neither of whom knew Carrick or about his affair

with Wife, saw him at the funeral wearing a distinctive cowboy 

hat with feathers that “looked like it belonged on a Man From 

Snowy River.”

¶4 After the funeral, the neighbors returned to their home in 

the “daytime,” during the “[a]fternoon.” They saw Carrick, 

wearing the “same hat,” walk down the home’s driveway,

remove a screen from a garage window, and crawl inside. 

Despite the atypical mode of entry, the neighbors assumed that 

Carrick had been asked by Husband or Friend to get something 

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. On the day in question, there was a traditional funeral service 

followed by a balloon release in the parking lot. For ease of 

reference, we refer to both events collectively as “the funeral.”
State v. Carrick

20160249-CA 3 2020 UT App 18

from the home. They did not call the police but simply 

proceeded into their own house to retrieve something. When 

they came back out, they saw Carrick exit through the same 

window and replace the screen, whereupon they became more 

suspicious and called the police. They then waved at Carrick,

who waved back. They did not see Carrick carrying anything

from the home.

¶5 Friend and Friend’s Husband soon pulled up in 

separate vehicles and saw Carrick coming out of the 

backyard. Friend was “a hundred percent” sure that it was 

Carrick, and Friend’s Husband saw Carrick “briskly” enter into,

and then leave in, a silver SUV that was parked just south of the 

home.

¶6 A police officer (Officer) came to the home, and the 

neighbors described the suspect to Officer as a “slender guy with 

long hair” but did not include any mention of the distinctive hat 

Carrick was wearing. After several people who had gathered at 

the scene identified Carrick through social media, Officer 

searched Carrick’s name on his computer and obtained an image 

of Carrick’s driver license. He showed it to Friend’s Husband

and one of the neighbors, and both positively identified Carrick

as the person who had entered the home.

3

¶7 One of the individuals at the scene then called Carrick 

and handed the phone to Officer. Officer informed Carrick that 

he was investigating a break-in at the home, that a number of 

 

3. Nine days later, Officer took the driver license photo he had 

initially shown the neighbor back to her and had her initial it. 

Officer never followed up on Friend’s Husband’s report that 

Carrick left in a silver SUV. Officer also had a fingerprint 

dusting kit in his vehicle but decided against dusting for prints 

because there were “no obvious fingerprints on the window” 

and “[i]f there was fingerprints on the screen, there wouldn’t be 

enough . . . of a fingerprint to make an identification.” 
State v. Carrick

20160249-CA 4 2020 UT App 18

witnesses had seen him enter and leave the home’s garage, and 

that he wanted Carrick’s “side of the story.” Carrick said “he 

was busy” and asked “how important it was” because he was on 

his way to Salt Lake City. Officer responded that “it was very 

important” and that if Carrick did not give him an explanation,

he “would have to take what [he] had and forward it to the 

county attorney.” In response, Carrick again said he was busy 

and hung up before Officer could “get his name, date of birth, 

and personal information.” 

¶8 Husband then arrived and searched the home to see 

if anything was missing. Although he noticed that his golf 

clubs in the garage had been moved, nothing appeared to be 

missing.

The Trial

¶9 The State charged Carrick with one count of burglary, a 

second-degree felony. In the trial court’s opening instructions, in 

addition to being instructed on burglary, the jury was instructed 

on the lesser-included offense of criminal trespass. The court 

also instructed the jury that “[t]he culpable mental state 

required” to find Carrick guilty of burglary or criminal trespass 

“is intentionally, or knowingly, or recklessly.” The court then 

defined “knowingly” as being “aware of the nature of [one’s]

conduct or the existing circumstances” and added that “[a] 

person acts knowingly . . . with respect to a result of his conduct 

when he is aware that his conduct is reasonably certain to cause 

the result.” The court did not define what it meant for a 

defendant to act “intentionally” or “recklessly.” Before 

presenting the instructions to the jury, the court asked Carrick’s 

counsel (Trial Counsel) if he had “any objections to the 

instructions,” to which Trial Counsel responded, “No, Your 

Honor.” 

¶10 At the close of the State’s case-in-chief, in which the State

presented the testimony of Officer, the neighbors, Friend, 

Friend’s Husband, and Husband, Trial Counsel moved for a 
State v. Carrick

20160249-CA 5 2020 UT App 18

directed verdict. Trial Counsel argued that “[t]he State has not 

met their burden” of showing that Carrick “entered or remained 

unlawfully in a dwelling with the intent to commit a felony or a 

theft.” He also argued, with respect to the lesser-included 

offense, that even assuming Carrick was in the home, “there has 

to be a . . . showing that he was reckless as to whether his 

presence would cause fear for the safety of another” and 

“[t]here’s been no showing of that.” The court denied the 

motion.

¶11 Trial Counsel then presented the testimony of four alibi 

witnesses: Tanya, Matthew, Elias, and Celeste. In submitting his 

pre-trial alibi witness list, Trial Counsel represented that the alibi 

witnesses would testify that “[a]t no time did [Carrick], or any 

individual in his party, go to the home.” 

¶12 Tanya, a friend of Wife, testified that she sat with Carrick 

at the funeral and remained with him until he left when “[i]t was 

almost dark” and that he “[a]bsolutely” could not have broken 

into the home. She also testified that at no time during the 

funeral did he leave and come back because “[h]e didn’t have a

vehicle.”

¶13 Matthew, Wife’s co-worker and Carrick’s friend, testified 

that he drove Carrick to and from the funeral. He said the car 

he drove was a white 2002 Mazda Protege, which he 

indicated was a five-passenger “car, not an SUV.” Matthew

testified that Carrick was at the funeral with him “the whole 

time” and never left. They remained after the funeral “for about 

an hour or so” and left when “it was getting dark.” They made 

no stops on the way back to his work, where he and Carrick

parted ways. 

¶14 Elias, a good friend of Carrick’s, testified that he and 

Carrick “hung out in the parking lot and talked” for “quite a 

while” after the funeral ended. Then, when “it was starting to 

get dusk,” a group, including Carrick, left and met up at Elias’s 

house in Salt Lake City.
State v. Carrick

20160249-CA 6 2020 UT App 18

¶15 Celeste, Elias’s girlfriend and Wife’s friend, testified that 

she sat next to Carrick at the funeral and that they “hung out in 

the parking lot for around an hour” after the funeral and left

when “[i]t was getting to be dark.” She never saw him leave

before them. She testified that “he hung out with [them]” 

because he was “emotionally upset.” Celeste also testified that 

“later that night,” Carrick and a few others “hung out at [her 

and Elias’s] house.”

¶16 On cross-examination, Celeste testified that she received a 

phone call from Husband, a “day or two” after the funeral, and 

that he told her “that somebody may have broken into the house 

the day of the funeral.” She denied telling Husband that 

“Carrick went into the house to get a momento or a token.”

Celeste testified that she told Husband that it could have been 

Wife’s cousin’s son (Cousin) who broke in “because he is known 

for breaking and entering into their families’ homes on the day 

of funerals.” Husband then testified on rebuttal that when he 

called Celeste, he asked her “why [Carrick] was in the house and 

what he was looking for.” He said she responded that Carrick

“was just in there looking for a momento or . . . something 

sentimental.” At this point, Trial Counsel objected on the basis of

hearsay. The court overruled the objection, concluding it was 

“not offered for the truth” but “to impeach what [Celeste]

denied.” 

¶17 Carrick testified in his own defense. He recounted

meeting Matthew at Matthew’s work and riding with him to the 

funeral. He acknowledged wearing a feathered cowboy hat at 

the funeral and that its being characterized as a hat reminiscent 

of “a Man From Snowy River” was a “fair description.” Carrick 

also testified that he stayed and talked “with a lot of people” in 

the parking lot for some time after the funeral and that Matthew

dropped him off at Matthew’s work. He then drove home in his 

Dodge Caravan, where he switched cars to his father’s Kia and 

drove to Salt Lake City. When asked why witnesses would 

testify under oath that they saw him enter the home, Carrick 

responded that it was because “they didn’t approve of [his] 
State v. Carrick

20160249-CA 7 2020 UT App 18

relation[ship] with [Wife]” and were apparently willing to 

perjure themselves to frame him. The jury convicted Carrick of 

burglary.

The Appeal and Rule 23B Remand

¶18 Through new counsel, Carrick appealed. Carrick also 

filed, pursuant to rule 23B of the Utah Rules of Appellate 

Procedure, a motion alleging ineffective assistance of counsel 

and seeking remand to develop “critical facts” regarding Trial 

Counsel’s perceived failures and the resulting prejudice to 

Carrick.

¶19 Carrick argued that Trial Counsel provided ineffective 

assistance when he failed to (1) call “an expert witness to testify 

about the deficiencies and pitfalls of eyewitness identifications”;

(2) investigate “the critical failures of Officer . . . to follow 

standard CSI practices in his investigation of this case”;

(3) investigate additional key alibi witnesses who accompanied 

him during the time the crime allegedly occurred; (4) adequately 

investigate Cousin, who “should have been a prime suspect” in 

the burglary; (5) adequately investigate Officer’s relationship to 

one of the neighbors, with whom he was “more than [a] simple 

acquaintance[]”; and (6) demonstrate at trial that Wife had 

provided Carrick with the code to the garage door. We denied 

Carrick’s motion as to the alleged failure to call an expert 

witness because Carrick could not show that Trial Counsel’s 

strategy was unreasonable, see State v. Walker, 2010 UT App 157, 

¶ 14, 235 P.3d 766, and as to the alleged failure to investigate 

Officer’s “CSI” practices and relationship with one of the 

witnesses because these assertions relied on speculation, see State 

v. Norton, 2015 UT App 263, ¶ 6, 361 P.3d 719. But we partially

granted the motion and remanded for the trial court to take 

evidence and make findings regarding Trial Counsel’s alleged 

failure to adequately investigate all alibi witnesses and Cousin, 

as well as Carrick’s assertion that he informed Trial Counsel that 

Wife had given him the garage code, but Trial Counsel failed to

use that information at trial.
State v. Carrick

20160249-CA 8 2020 UT App 18

¶20 On remand the trial court found that Carrick and 

Trial Counsel discussed alibi witnesses in a meeting during 

which Trial Counsel “wrote down the names and contact 

information [Carrick] gave him” and that Carrick “failed to 

disclose additional alibi witnesses and [Trial Counsel] was not 

aware of them.” The court found, however, that Carrick 

disclosed to Trial Counsel “that he knew the garage code and 

would not need to go through the window” had he desired to 

enter the home.

¶21 Additionally, regarding Cousin being a suspect, Carrick’s 

private investigator testified that Cousin had two burglary 

convictions from Texas and was of a similar height and build as 

Carrick but that he was bald whereas Carrick had long hair. The 

investigator stated that he did not find any photos of Cousin

wearing a distinctive hat similar to the one the State’s witnesses 

testified they saw Carrick wearing on the day of the funeral and

during the burglary. The court ultimately found that the 

investigator “did not place [Cousin] at the scene” and that the 

only connection between Cousin and the burglary was his 

relation to Wife.

ISSUES AND STANDARDS OF REVIEW

¶22 Carrick argues that the trial court committed three errors. 

First, he argues that the trial court erred in denying his

motion for a directed verdict. “We review a trial court’s ruling 

on a motion for directed verdict for correctness.” State v. 

Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168. “In reviewing the 

denial of a motion for a directed verdict based on a claim of 

insufficiency of the evidence, we will uphold the trial court’s 

decision if, upon reviewing the evidence and all inferences that 

can be reasonably drawn from it, we conclude that some 

evidence exists from which a reasonable jury could find that the 

elements of the crime had been proven beyond a reasonable 

doubt.” State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation 

simplified).
State v. Carrick

20160249-CA 9 2020 UT App 18

¶23 Second, Carrick challenges the trial court’s ruling 

admitting what Carrick characterizes as a hearsay statement that 

established his intent to commit theft. The standard of review for 

admissibility of hearsay is “complex.” State v. Workman, 2005 UT 

66, ¶ 10, 122 P.3d 639. “We review the legal questions to make 

the determination of admissibility for correctness, . . . the 

questions of fact for clear error,” and the ultimate “ruling on 

admissibility for abuse of discretion.” Id.

¶24 Third, Carrick asserts that the trial court erred when it 

improperly instructed the jury on the mental states required for 

both burglary and criminal trespass. “Generally, whether a jury 

instruction correctly states the law presents a question of law 

which we review for correctness.” State v. Weaver, 2005 UT 49, 

¶ 6, 122 P.3d 566 (quotation simplified). But Carrick raises this 

issue as a matter of plain error. “To demonstrate plain error, a 

defendant must establish that (i) an error exists; (ii) the error 

should have been obvious to the trial court; and (iii) the error is 

harmful, i.e., absent the error, there is a reasonable likelihood of 

a more favorable outcome for the appellant.” State v. Dean, 2004 

UT 63, ¶ 15, 95 P.3d 276 (quotation simplified). However, if a 

defendant “affirmatively approved of the jury instructions . . . 

the invited error doctrine precludes our examining the 

purported . . . errors under the plain error . . . doctrine.” State v. 

Malaga, 2006 UT App 103, ¶ 8, 132 P.3d 703.

¶25 Carrick further contends that Trial Counsel provided 

ineffective assistance in four respects. First, Carrick contends 

that Trial Counsel was ineffective for not objecting to the jury 

instructions’ lack of correct definitions for the culpable mental 

states for burglary and criminal trespass. Second, Carrick asserts 

that Trial Counsel was ineffective for failing to present evidence 

to the jury that Wife had provided Carrick with the code to the 

garage door. Third, Carrick argues that Trial Counsel provided 

ineffective assistance when he did not investigate additional alibi 

witnesses. Fourth, Carrick contends that Trial Counsel was 

ineffective for failing to adequately investigate Cousin as a 

suspect. Carrick’s claims present questions of law that we 
State v. Carrick

20160249-CA 10 2020 UT App 18

consider de novo. See State v. Kozlov, 2012 UT App 114, ¶ 29, 276 

P.3d 1207. But while “an appellate court is free to make an 

independent determination of a trial court’s conclusions” 

concerning ineffective assistance of counsel, “the factual findings 

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

erroneous.” Id. (quotation simplified).4

ANALYSIS

I. Directed Verdict

¶26 Carrick asserts that the trial court erred when it 

denied his motion for a directed verdict at the close of the 

State’s case because “the record demonstrates a lack of evidence 

that directly shows, or even supporting an inference reasonably 

to be drawn from the evidence, that [Carrick]—assuming he had 

unlawfully entered or remained in the house—intended to 

commit theft.”5

 

4. Carrick also argues that the cumulative effect of multiple 

errors was prejudicial. “A reviewing court will reverse a jury 

verdict under the cumulative error doctrine only if the 

cumulative effect of the several errors undermines confidence 

that a fair trial was had.” State v. Killpack, 2008 UT 49, ¶ 56, 191 

P.3d 17 (quotation simplified). Because we see no error—actual 

or assumed—that harmed Carrick, much less more than one, 

there are no errors to cumulate, and the doctrine is inapplicable. 

See State v. Martinez-Castellanos, 2018 UT 46, ¶ 35, 428 P.3d 1038 

(“The cumulative error doctrine applies only to errors that could 

conceivably harm a party in some way. Errors with no potential 

for harm do not accumulate.”).

5. Because Carrick challenges only the sufficiency of the evidence 

to prove that he had the intent to commit a theft inside the home, 

we analyze whether there was sufficient evidence to prove this 

(continued...)
State v. Carrick

20160249-CA 11 2020 UT App 18

¶27 Carrick was charged with burglary of a dwelling, and 

under the facts of this case, the State was required to prove 

beyond a reasonable doubt that Carrick entered the home with 

the “intent to commit . . . theft.” Utah Code Ann. § 76-6-202(1)(b) 

(LexisNexis 2017).6 Because “intent, being a state of mind, is 

rarely susceptible of direct proof . . . it can be inferred from 

conduct and attendant circumstances in the light of human 

behavior and experience.” State v. Hopkins, 359 P.2d 486, 487 

(Utah 1961). See also State v. Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346 

(“It is well established that intent can be proven by 

circumstantial evidence.”) (quotation simplified). Such 

circumstantial evidence may include “the manner of entry, the 

time of day, the character and contents of the building, the 

person’s actions after entry, the totality of the surrounding 

circumstances, and the intruder’s explanation.” State v. Porter, 

705 P.2d 1174, 1177 (Utah 1985). 

¶28 In this case, the State presented ample evidence to

warrant submitting the case to the jury so that it could decide 

whether Carrick intended to commit a theft once inside the

home. First, Carrick was having an affair with Wife, of which 

Husband was unaware until just before Wife’s passing. Second, 

Carrick was at the funeral where he was “emotionally upset” 

and witnessed Husband superintending the funeral proceedings. 

Third, witnesses placed Carrick at the home after the funeral and 

saw him remove a screen from a garage window, crawl through 

it, and then leave through the same window instead of a door,

which one with permission to enter would likely have used once

 

(...continued)

element of the crime—not whether there was sufficient evidence 

to establish that he entered the home, which there was.

6. Because the statutory provisions in effect at the relevant time

do not differ in any way material to our analysis from those now 

in effect, we cite the current version of the Utah Code for 

convenience.
State v. Carrick

20160249-CA 12 2020 UT App 18

he gained entry into the locked home. Witnesses also saw 

Carrick leave the home “briskly” and enter a waiting vehicle. 

Thus, the jury could have properly “inferred from [Carrick’s] 

conduct and attendant circumstances in the light of human 

behavior and experience,” Hopkins, 359 P.2d at 487, that because 

of Carrick’s affair with Wife, he may have wanted to enter the 

home—which he had visited on at least one prior occasion—to 

obtain something of sentimental value by which to remember 

Wife. A reasonable jury could also properly infer from this 

evidence that he used the time immediately after the funeral to 

go into the home, knowing Husband would not be present, so 

that he could complete the theft undetected. Furthermore, his 

mode of entry and exit was consistent with that of an individual 

who intended to commit a theft in the home. Cf. State v. 

Robertson, 2005 UT App 419, ¶ 16, 122 P.3d 895 (holding that a

jury could reasonably infer the defendant intended to commit a 

theft because he “entered the home through a window after 

prying off a window screen,” the defendant did not have 

permission to be in the home, and the defendant “fled the scene 

and provided no explanation for his actions”). 

¶29 Ultimately, the State presented at least “some evidence . . . 

from which a reasonable jury could find that the element[] [of

intent to commit a theft] had been proven beyond a reasonable 

doubt.”7 State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183

 

7. Carrick relies on the fact that “[n]one of the State’s witnesses 

. . . provided any testimony that [he] had been seen carrying 

anything from the house” to support his position that the State 

“fail[ed] to produce believable evidence of all the elements of 

Burglary beyond a reasonable doubt.” But this point is irrelevant 

because the crime of burglary “is complete when the entry is 

made with the intent. Whether anything is stolen or not has 

nothing to do with the crime.” State v. Facer, 552 P.2d 110, 111 

(Utah 1976). Although Carrick was not seen carrying anything 

and Husband did not notice anything missing, this does not

necessarily mean that Carrick did not enter with the intent to 

(continued...)
State v. Carrick

20160249-CA 13 2020 UT App 18

(quotation simplified). Therefore, the trial court did not err; it 

was “the trial court’s duty to submit the case to the jury.”8 Id.

¶ 33 (quotation simplified).

II. Hearsay

¶30 Carrick asserts that the trial court erred in overruling his 

hearsay objection to Husband’s testimony that Celeste told him 

that Carrick was in the home “looking for a momento or . . . 

something sentimental.” Hearsay is an out-of-court statement 

offered “to prove the truth of the matter asserted in the 

statement,” Utah R. Evid. 801(c), and is ordinarily inadmissible 

at trial, id. R. 802. Statements that are not considered hearsay 

include those in which “[t]he declarant testifies and is subject to 

cross-examination about a prior statement, and the statement . . . 

is inconsistent with the declarant’s testimony or the declarant 

denies having made the statement or has forgotten.” Id. 

R. 801(d)(1)(A). Extrinsic evidence of prior inconsistent 

statements “is admissible only if the witness is given an 

opportunity to explain or deny the statement and an adverse 

party is given an opportunity to examine the witness about it, or 

if justice so requires.” Id. R. 613(b).

¶31 On cross-examination, the State asked Celeste whether it 

was “true that [she] told [Husband] that . . . Carrick went into 

 

(...continued)

steal something. Carrick could have stolen something small 

(such as jewelry, a picture, or a note) and put it in his pocket.

8. Carrick also argues that the trial court erred in denying his 

directed verdict motion regarding the lesser-included offense of 

criminal trespass. But because the jury convicted him of 

burglary, and the court did not err in denying Carrick’s directed 

verdict motion as to that charge, we have no need to discuss 

whether there was also sufficient evidence to convict Carrick of 

the lesser-included offense of criminal trespass. 
State v. Carrick

20160249-CA 14 2020 UT App 18

the house to get a momento or a token.” Celeste conceded that 

she spoke with Husband “[a] day or two” after the funeral but 

denied telling Husband that Carrick went into the home. Carrick 

then had an opportunity for redirect examination, which he 

took, but decided to question Celeste only about another issue 

that arose during the State’s cross-examination of her. The State 

then called Husband to testify in rebuttal. Husband testified that 

when he called Celeste, he asked her “why [Carrick] was in [the] 

house and what he was looking for,” and she responded that 

“[Carrick] was just in there looking for a momento or . . .

something sentimental.” Under rule 801(d), Husband’s rebuttal 

testimony about what Celeste told him was not hearsay because 

he was testifying about a prior inconsistent statement made by 

Celeste that she “denie[d] having made.” Id. R. 801(d)(1)(A).

Celeste was “given an opportunity to explain or deny the 

statement,” and Carrick was “given an opportunity to examine 

[Celeste] about it.” Id. R. 613(b). 

¶32 Carrick, however, argues that Husband’s testimony was 

hearsay because the State “substantively used the statement for 

its truth [during closing argument].” But Carrick makes no 

attempt to explain how the statement was not admissible as a 

prior inconsistent statement under rule 801(d) in the first place, 

which we conclude it was. The trial court’s admission of the 

statement at the time it was offered was consistent with rule 

801(d), and we reject Carrick’s assertion that the State’s use

during closing argument of Husband’s testimony regarding 

Celeste’s statement to him somehow retroactively rendered the 

statement hearsay. If Carrick had a problem with how the State 

used the statement during closing argument, Carrick should 

have objected at that time, which he did not, and he does not 

now claim Trial Counsel was ineffective for failing to object. In 

any event, the State’s use of the prior inconsistent statement for 

its truth during closing argument would not have rendered the 

testimony inadmissible. Although the trial court overruled 

Carrick’s objection on the ground that Husband’s testimony was 

“not offered for the truth” but “to impeach what [Celeste] 

denied,” prior inconsistent statements are statements that do not 
State v. Carrick

20160249-CA 15 2020 UT App 18

qualify as hearsay and generally may be used for their truth. See 

State v. Zaelit, 2010 UT App 208U, para. 4 (holding that prior 

inconsistent statements are not limited to impeachment and may 

be used as “‘substantive evidence’”) (quoting Utah R. Evid. 801 

advisory committee note) (emphasis in original). See also

R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah 

Evidence 824 (2018–2019 ed.) (“[U]nder the Utah rule a prior 

inconsistent statement is admissible to prove the truth of the 

matter asserted.”).

III. Plain Error

¶33 Carrick argues that the trial court plainly erred in not 

providing correct definitional instructions to the jury on the 

culpable mental states for the charges of burglary and criminal 

trespass. The State contends that Carrick’s plain error argument 

is not available to him because Carrick invited any error made 

by the trial court in instructing the jury. We agree with the State. 

¶34 “Under the doctrine of invited error, an error is invited 

when counsel encourages the trial court to make an erroneous 

ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. This “rule 

discourages parties from intentionally misleading the trial court 

so as to preserve a hidden ground for reversal on appeal and 

gives the trial court the first opportunity to address the claim of 

error.” Id. (quotation simplified). “Thus, when an error is invited 

by an appellant, we will not review it even for plain error.” State 

v. Oliver, 2018 UT App 101, ¶ 27, 427 P.3d 495. “To invite an 

error, a party must do more than simply fail to object; the party 

must manifest some sort of affirmative representation to the trial 

court that the court is proceeding appropriately.” State v. Popp, 

2019 UT App 173, ¶ 23, 453 P.3d 657. “In the context of jury 

instructions, our supreme court has held that an instruction is 

not subject even to plain error review if counsel, in response to a 

question from the court about whether counsel has any objection 

to the instruction, answers in the negative.” Id. (quotation 

simplified). See also State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 

111 (holding that appellate review is unavailable “if counsel, 
State v. Carrick

20160249-CA 16 2020 UT App 18

either by statement or act, affirmatively represented to the court 

that he or she had no objection to the jury instruction”). 

¶35 In this case, before presenting the jury with the 

instructions, the trial court asked Trial Counsel if he had “any 

objections to the instructions,” to which Trial Counsel 

responded, “No, Your Honor.” Thus, because Trial Counsel 

made “an affirmative representation encouraging the court to 

proceed without further consideration of [the jury instructions],”

thus inviting any resulting error, we “need not consider 

[Carrick’s] objection” to those instructions under the plain error 

doctrine. State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985. See State v. 

Geukgeuzian, 2004 UT 16, ¶ 10, 86 P.3d 742 (“[A] defendant 

invite[s] error where his counsel confirm[s] on the record that 

the defense ha[s] no objection to the instructions given by the 

trial court.”). 

IV. Ineffective Assistance of Counsel 

¶36 Carrick next contends that Trial Counsel rendered 

ineffective assistance in four respects: first, by not objecting to 

the lack of definitions for the culpable mental states of burglary 

and criminal trespass; second, by not presenting evidence to the 

jury that Wife had provided Carrick with the code to the garage 

door; third, by not investigating additional alibi witnesses; and

fourth, by failing to adequately investigate Cousin as a potential 

suspect. 

¶37 The standard a defendant must meet in order to gain 

relief for ineffective assistance of counsel is a familiar one, and 

was recently summarized as follows:

To prove a claim of ineffective assistance of 

counsel, a defendant must establish both that his 

counsel’s performance was deficient and that the 

deficient performance prejudiced the defense. To 

establish the first element, the defendant must 

show that his counsel’s performance fell below an 
State v. Carrick

20160249-CA 17 2020 UT App 18

objective standard of reasonableness. Thus, he 

must convince us that, despite the fact that counsel 

is strongly presumed to have rendered adequate 

assistance, counsel’s acts or omissions nevertheless 

fell outside the wide range of professionally 

competent assistance. The second element requires 

the defendant to show there is a reasonable 

probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have 

been different. A reasonable probability is a 

probability sufficient to undermine confidence in 

the outcome. In evaluating this element, courts 

consider the totality of the evidence before the 

judge or jury, recognizing that some errors will 

have had a pervasive effect on the inferences to be 

drawn from the evidence, altering the entire 

evidentiary picture, and some will have had an 

isolated, trivial effect.

Proof of ineffective assistance of counsel 

cannot be a speculative matter but must be a 

demonstrable reality. Both elements of the claim 

must be present, and if either is lacking, the claim 

fails and the court need not address the other.

State v. Lopez-Gonzalez, 2020 UT App 15, ¶¶ 19–20 (quotation 

simplified).

A. Jury Instructions

¶38 Carrick contends that Trial Counsel was ineffective for

not objecting to the jury instructions. He argues that the 

instructions were “wholly insufficient” because they did not 

define “intent” (the culpable mental state for burglary), see Utah 

Code Ann. § 76-6-202(1) (LexisNexis 2017), or “reckless” (the 

culpable mental state for criminal trespass), see id.

§ 76-6-206(2)(a)(iii), while instead defining only “knowingly.”

While we are admittedly perplexed that the trial court provided
State v. Carrick

20160249-CA 18 2020 UT App 18

the definition of an irrelevant mental state, and not the mental 

states at issue, we do not agree that Trial Counsel rendered 

ineffective assistance by not objecting, because Carrick has not

shown prejudice. 

¶39 Here, had Trial Counsel objected to the jury instructions 

for their lack of definitions for the applicable mental states, 

prompting the trial court to give the statutory definition of 

intent, it is not reasonably probable that the verdict would have 

been different.

9 Under the Utah Code, intentional conduct is 

defined as acting “[i]ntentionally, or with intent or willfully with 

respect to the nature of his conduct or to a result of his conduct, 

when it is his conscious objective or desire to engage in the 

conduct or cause the result.” Utah Code Ann. § 76-2-103(1) 

(LexisNexis 2017). This definition comports with the plain 

meaning of the word intent. See, e.g., Webster’s Third New 

International Dictionary 1176 (1993) (defining “intent” as “the 

design or purpose to commit” an “act that is the natural and 

probable consequence of other voluntary acts or conduct”). 

Thus, even if the jury had been provided the statutory definition 

of intent, there is not a reasonable probability that it would have 

viewed Carrick’s actions in entering and exiting the home any 

differently than it did because the statutory definition simply 

reiterated the common meaning of the word, which we assume 

was within the jury’s knowledge. See People v. Powell, 512 N.E.2d 

1364, 1370 (Ill. App. Ct. 1987) (holding that the trial court did not 

err in failing to define “knowingly and intentionally because 

those terms have a plain meaning within the jury’s common 

knowledge”). This is especially so because the State presented a 

substantial amount of evidence indicating that Carrick had a 

 

9. We do not address Carrick’s claim regarding criminal trespass. 

The jury convicted him of burglary, and as explained in the text,

he suffered no prejudice attributable to definitional confusion on 

that conviction. Thus, there is no need for us to address Carrick’s 

claim regarding criminal trespass, a charge on which he was not 

convicted. 
State v. Carrick

20160249-CA 19 2020 UT App 18

“conscious objective or desire,” see Utah Code Ann. 

§ 76-2-103(1), to enter the home to commit theft. Furthermore,

the State argued its case in a manner consistent with the 

statutory definition of intent. In its opening statement, the State

argued that Carrick “went into [the home] for the purposes of 

retrieving something.” Then, in its closing argument, the State

argued that Carrick did not go into the home “[t]o look around 

and smile [or] look in the mirror and see how good he looked” 

but “to find something and to retrieve it because he wanted it.” 

The State continued, “[Y]ou can infer from the fact that he went 

into that house, you can infer from the motives that are likely 

that, in fact, he was in there to find something.” Thus, the 

evidence was presented to the jury in a manner consistent with 

the statutory definition of intent, and the jurors would in all 

reasonable probability have reached the same result had they 

been instructed in accordance with the statutory definition of 

intent. Carrick’s claim of ineffective assistance of counsel is 

therefore unavailing, because he has not shown prejudice. 

B. Garage Passcode 

¶40 Carrick asserts that he received ineffective assistance 

when Trial Counsel failed to present evidence that Carrick knew 

the passcode to the garage and therefore had no need to enter 

the home through a window to the attached garage. Carrick 

argues that he was prejudiced by this failure because evidence 

that Wife gave him the passcode to the garage “directly 

contradicted the possibility that he would have entered the 

home through the garage window,” thereby creating a 

reasonable probability of acquittal. We disagree. Even assuming 

Trial Counsel performed deficiently in this regard, the claim fails

because Carrick has not shown prejudice.

¶41 Two neighbors saw Carrick at the funeral wearing a 

distinctive cowboy hat with feathers that “looked like it 

belonged on a Man From Snowy River,” and then when they 

returned home they saw Carrick, still wearing that distinctive 

hat, crawl into and out of the garage through the window. 
State v. Carrick

20160249-CA 20 2020 UT App 18

Additionally, Friend (who had previously met Carrick in person)

and Friend’s Husband saw Carrick coming out of the backyard

of the home. Thus, the jury heard from four witnesses who 

placed Carrick at the scene in the “daytime,” during the 

“afternoon,” with no significant obstacles to obstruct their view. 

Moreover, Carrick’s mere knowledge of the garage code does 

not compel the conclusion that he could not possibly have 

entered through the window. Even with knowledge of the 

code,10 he may have still entered through the window thinking it 

was more covert than having the large garage door open up for 

all to see. Or he may have figured that not using the code would 

deflect attention from him, setting up the very argument he now 

makes, namely that it could not be him because he would not 

have gone in through the garage window because he had the 

code. These possibilities dispel the conclusion that, but for Trial 

Counsel not introducing evidence that Carrick knew the code, 

there is a reasonable probability the jury would have acquitted 

him. And mere knowledge of the code does not, as Carrick 

contends, “directly contradict[]” the ample eyewitness testimony 

that he entered through the garage window. Ultimately, Carrick 

cannot show that it is “a demonstrable reality and not a 

speculative matter,” see State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d 

1031 (quotation simplified), “that there is a reasonable 

probability that . . . the result of the proceeding would have 

been different” had the jury heard that he knew the passcode 

to the garage, see Strickland v. Washington, 466 U.S. 668, 694

(1984).

C. Alibi Witnesses 

¶42 Carrick contends that Trial Counsel was ineffective for 

failing to investigate additional alibi witnesses. On remand, the 

trial court found that Carrick never told Trial Counsel about 

 

10. Curiously, despite his oft-repeated claim to have known the 

code, Carrick never disclosed the code’s numerical sequence in 

support of this claim. 
State v. Carrick

20160249-CA 21 2020 UT App 18

these additional witnesses, and Carrick has not shown this 

finding to be clearly erroneous. 

¶43 But the fact that Carrick did not inform Trial Counsel of 

the additional alibi witnesses does not automatically establish 

that Trial Counsel’s performance was not deficient. Whether or 

not their clients inform them of alibi witnesses, counsel are still 

required “to make reasonable investigations or to make a 

reasonable decision that makes particular investigations 

unnecessary.” Menzies v. State, 2014 UT 40, ¶ 183, 344 P.3d 581

(quotation simplified). But “[t]he Sixth Amendment does not

require counsel to interview every possible relative or 

acquaintance or to fully investigate every potential lead.” Id.

(emphasis in original).

¶44 Here, Trial Counsel acted reasonably in presenting four 

solid alibi witnesses at trial, whom he and Carrick did discuss.

Trial Counsel was therefore not remiss in forgoing an

investigation of the possible existence of other, cumulative alibi 

witnesses whom Carrick had not mentioned. See State v. 

Rasabout, 2013 UT App 71, ¶¶ 43, 46, 299 P.3d 625 (holding that 

counsel’s failure to further investigate alibi witnesses was not 

deficient performance when defendant “never informed his 

counsel of the two witnesses who could corroborate his alibi” 

and “counsel inquired about potential witnesses and was given 

only one lead”), aff’d, 2015 UT 72, 356 P.3d 1258.

D. Investigation of Cousin 

¶45 Carrick’s claim that Trial Counsel provided ineffective 

assistance by not adequately investigating Cousin as a potential 

suspect is also unpersuasive because Carrick has not 

demonstrated prejudice. 

¶46 The trial court found that Cousin was bald, while Carrick 

had long hair; Carrick’s private investigator did not place 

Cousin at the scene, while four witnesses placed Carrick at the 

scene. Furthermore, there was no evidence that Cousin wore a 
State v. Carrick

20160249-CA 22 2020 UT App 18

distinctive, feathered cowboy hat, while multiple witnesses 

testified to seeing Carrick wearing one at the funeral and at the

home. Indeed, nothing in the record indicates that Cousin was 

even in the area that day, while it is undisputed that Carrick 

attended the funeral. 

¶47 Assuming, without deciding, that Trial Counsel was 

remiss for not investigating Cousin, the trial court’s findings 

demonstrate that even if Trial Counsel had done so, he would 

not have uncovered evidence that would have given rise to “a 

reasonable probability” of a different outcome at trial. See 

Strickland v. Washington, 466 U.S. 668, 694 (1984).

CONCLUSION

¶48 Carrick’s three claims of trial court error are unavailing. 

The trial court did not err in denying Carrick’s directed verdict 

motion because there was sufficient evidence for the case to be 

submitted to the jury. The court also did not err in overruling his 

hearsay objection because the complained-of statement was 

properly admitted as a prior inconsistent statement. Finally, 

because Carrick invited any error with respect to the jury 

instructions on the culpable mental states for burglary and 

criminal trespass, we do not consider his claim that the trial 

court plainly erred in giving these instructions.

¶49 Carrick’s argument that he received ineffective assistance 

of counsel in four respects is likewise unavailing. Carrick’s 

contention that Trial Counsel was ineffective for (1) failing to 

object to the trial court not instructing the jury on the culpable 

mental states for burglary and criminal trespass, (2) not 

presenting evidence that he knew the passcode to the garage 

door, and (3) not investigating Cousin as a potential suspect are 

unavailing due to a lack of demonstrated prejudice. 

Furthermore, Carrick’s claim that Trial Counsel was ineffective 

for failing to investigate additional alibi witnesses is 

unsuccessful because Trial Counsel’s performance was not 
State v. Carrick

20160249-CA 23 2020 UT App 18

deficient in this regard. Trial Counsel presented four alibi 

witnesses at trial, and Carrick never informed him of the 

additional witnesses. 

¶50 Affirmed.