2019 UT App 66

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BLAKE REES WRIGHT,

Appellant.

Opinion

No. 20150153-CA

Filed April 25, 2019

Fourth District Court, Nephi Department

The Honorable James R. Taylor

No. 111600138

Nathan E. Burdsal, Robert C. Avery, and 

Hutch U. Fale, Attorneys for Appellant

Sean D. Reyes and John J. Nielsen, Attorneys 

for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Defendant Blake Rees Wright challenges his guilty plea to 

aggravated kidnapping, a first-degree felony; attempted murder

and aggravated elder abuse, both second-degree felonies; and 

obstruction of justice, witness retaliation, possession of 

ammunition in a correctional facility, unlawful discharge of a 

firearm, and possession of a firearm by a restricted person, all 

third-degree felonies. Defendant argues, among other things, 

that his trial counsel provided ineffective assistance. Apart from 

his aggravated kidnapping conviction, which we vacate and in 

connection with which we remand for further proceedings, we 

affirm his convictions and deny his request to withdraw his 

guilty pleas. 
State v. Wright

20150153-CA 2 2019 UT App 66

BACKGROUND

The Assault

¶2 Defendant, who lived with his mother (Mother), 

instigated an argument with her about whether she had been 

interfering with his prescription medications and telling other 

people that he, a convicted felon, had access to a gun. Defendant

recorded the altercation with a video camera, apparently for the 

purpose of making a video record of her “lies.”

¶3 A few minutes into the argument, Mother stood up, 

intending to leave, but Defendant pushed her back into her

chair. Mother and Defendant continued to argue, and Defendant 

told Mother that he “could fuckin’ put a bullet in [her] fuckin’ 

head and not even think twice about it.” Mother admitted that 

she had told someone that he had a gun. She then shoved 

Defendant, knocking the video camera out of his hands. 

Although Defendant and Mother are no longer visible on the 

recording, a subsequent assault can be heard in the background. 

¶4 Mother testified that Defendant hit her “hard” with “both 

hands” for what “felt like forever.” He also put her in a headlock 

and squeezed her until it “felt like something was breaking.” 

After releasing Mother, Defendant took a piece of glass from a 

coffee table that had been broken during the attack and 

brandished it over Mother, making her think it was “all over.” In 

the video recording, Defendant is heard saying, “You, fuckin’,

you oughta get your fuckin’ hands off you old bitch or I’ll 

fuckin’ kill you, to death. I’ll choke you to death.” As Mother 

pleads with Defendant to stop, he tells her he is going to “beat 

[her] to death,” “kill [her],” and that the beating was “just a taste 

[of] what [she was] going to get.” Defendant then stops the 

recording. 

¶5 For a few hours, Defendant left Mother alone and the two 

were not together. But once again Defendant became upset with 
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20150153-CA 3 2019 UT App 66

Mother for interfering with his prescription medications. 

Defendant then got a gun, pointed it at her head and ordered her 

to call 911. He told her he was “not kidding around” and he 

“could shoot [her] leg,” and then he shot two bullets into the 

floor. Subsequently, Defendant grabbed Mother by the legs and 

pulled her out of the chair. She fell to the floor and “could hear” 

her ribs cracking. Mother eventually got back on the chair and 

stayed there “because it was so painful that [she] couldn’t do 

anything else.” 

¶6 Unable to tolerate the pain anymore, Mother asked 

Defendant to open the garage door so that she could go to the 

hospital. She asked him three times to open the garage door 

before he complied with her request. Before Mother left, 

Defendant asked her what she was going to say at the hospital, 

and she told him that she would tell the hospital staff she fell off 

the cement steps. 

¶7 Defendant followed Mother to the hospital. Approaching 

her in the emergency room area, he lifted up his coat “to show 

[her] that he had [a] gun.” When the emergency room doctor 

(First Doctor) examined Mother, she told him that she had fallen

off the front porch steps. First Doctor recommended that Mother 

stay the night, but Mother was worried that Defendant would 

hurt other people, so she returned home. 

¶8 The next day, when her daughter picked her up, Mother 

told her that Defendant had attacked and “pistol whipped” her. 

After a few days at her daughter’s home, Mother was still in a lot 

of pain and returned to the hospital. A doctor (Second Doctor) 

examined her and determined that she had a subdural 

hematoma and edema—bleeding between the brain and the 

skull and swelling of the brain. Another doctor confirmed the 

diagnosis with an MRI that showed a subdural hematoma and 

“[shear] injury” to Mother’s brain. Mother also had a bruised 

spleen and four broken ribs. 
State v. Wright

20150153-CA 4 2019 UT App 66

¶9 Officers arrested Defendant. Defendant, smiling at an 

officer said, “You guys didn’t even find the gun, did you?” But 

officers found a fully loaded .22 caliber gun hidden at the house,

and Defendant unsuccessfully tried to dispose of .22 caliber 

ammunition at the jail. Defendant’s sister later found the video 

recording and turned it over to the police. Defendant was 

charged as noted above, see supra ¶ 1, and the case proceeded to 

trial.

The Trial

¶10 On the first day of trial, Defendant requested a 

continuance, seeking new counsel. The district court, unaware of 

any conflict between Defendant and his counsel (Trial Counsel), 

asked Trial Counsel about the conflict. Trial Counsel replied that 

it would be better for “additional counsel [to] come in the case,” 

based on the “complexity of the case” and given the number of 

counts and his “relationship with [Defendant].” Trial Counsel 

indicated that Defendant “want[ed him] to continue to work on 

the case” and appreciated counsel’s efforts, but Defendant

wanted “an attorney of his own that he’s selected to join in and 

be lead counsel.” The State pointed out that Trial Counsel was a 

“very experienced attorney” who had “tried a number of very 

difficult cases” that were “much more complicated and much 

more serious than” Defendant’s case, and he had the necessary 

skill and experience to try the case on his own. The court denied 

the continuance request, stating that Defendant should have 

made the request “months ago” instead of on the first day of 

trial. It also denied Trial Counsel’s request for additional 

counsel. 

¶11 Three days into the trial, and after having viewed 

the video recording made by Defendant, the jury heard 

detailed testimony from Mother about the assault. After 

Mother’s testimony, Trial Counsel requested additional time 

during the break. After returning from this break, the parties 
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20150153-CA 5 2019 UT App 66

announced that Defendant would plead guilty as charged, but 

the State would amend the aggravated kidnapping count by

removing the serious bodily injury allegation which would 

reduce the maximum sentence from life without parole to 15 

years to life. See Utah Code Ann. § 76-5-302(3)(a)‒(b) (LexisNexis 

2017). 

¶12 Defendant signed a plea statement, listing the rights 

that he was waiving, including his right to a trial at which

the State would have “the burden of proving, beyond a 

reasonable doubt, what are called ‘elements’ of the offense (or 

offenses) charged.” The district court conducted a plea colloquy 

to ensure that Defendant understood his guilty plea. During the 

colloquy, Defendant acknowledged that he had read and 

understood the plea agreement and the rights he was waiving, 

had no questions about it and required no further explanation of 

it, and was “acting freely and voluntarily” in entering his guilty 

plea. 

The Plea Withdrawal Hearing

¶13 A few days later, Defendant wrote a letter to the district 

court seeking to withdraw his guilty plea. Although the pro se

motion was filed before sentencing, the district court failed to 

address it and proceeded with sentencing. Defendant appealed 

and this court summarily reversed Defendant’s sentence and 

remanded the matter to the district court to address the motion. 

See id. § 77-13-6(2)(b). 

¶14 On remand, Defendant was appointed new counsel and 

granted leave to amend his motion to withdraw his guilty plea. 

In his amended motion, Defendant argued that his plea was not 

made knowingly or voluntarily and that Trial Counsel provided 

ineffective assistance. In an evidentiary hearing on these issues,

Defendant testified that he pled guilty because Trial Counsel 

was unprepared for trial and he felt forced to take the plea deal. 

But Trial Counsel contradicted this testimony, stating that he 
State v. Wright

20150153-CA 6 2019 UT App 66

had met with Defendant multiple times, interviewed the 

witnesses, visited the crime scene, and reviewed the evidence. 

Trial Counsel further testified that, after Mother testified at trial, 

Defendant did not want her to be cross-examined because “she’d 

been through enough” and Defendant had seen “the entire jury 

was in tears.” Defendant also told Trial Counsel that he was 

“going to be convicted,” a conclusion with which Trial Counsel 

apparently did not disagree. Trial Counsel then asked Defendant 

if he wanted to seek a plea deal, and Defendant told him that he 

did. 

¶15 The district court determined that Trial Counsel’s 

testimony was more consistent with the record and that 

Defendant’s testimony was self-serving and “was contradicted 

by the record.” Based on that determination, the court found that 

Defendant was the one who sought a plea agreement, not Trial 

Counsel, and that he was not “coerced or compelled to accept a 

plea bargain.” It also concluded that the record established that 

Defendant entered his plea knowingly and voluntarily and that 

Trial Counsel’s performance “was not deficient” nor prejudicial 

to Defendant. 

¶16 Defendant was then sentenced to several prison terms, 

some running consecutively and some running concurrently.

Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Defendant raises two arguments on appeal. He first 

argues that Trial Counsel provided ineffective assistance of 

counsel in several ways, rendering his plea unknowing and 

involuntary. With regard to those issues upon which the district 

court found facts at the plea withdrawal hearing conducted at 

our direction on remand following Defendant’s initial appeal, 

our decision is informed by the court’s findings of fact. See State 

v. King, 2017 UT App 43, ¶ 13, 392 P.3d 997. For those issues 
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20150153-CA 7 2019 UT App 66

upon which the district court did not find facts, we review the 

ineffectiveness issues for correctness, examining “whether the 

defendant was deprived of the effective assistance of counsel as 

a matter of law.” See Layton City v. Carr, 2014 UT App 227, ¶ 6, 

336 P.3d 587.1

¶18 Defendant also contends that cumulative errors made by 

Trial Counsel allow the withdrawal of his guilty plea. “Under 

the cumulative error doctrine, we will reverse only if the 

cumulative effect of the several errors undermines our 

confidence that a fair [proceeding] was had.” State v. Kohl, 2000 

UT 35, ¶ 25, 999 P.2d 7 (quotation simplified).

ANALYSIS

I. Ineffective Assistance of Counsel 

¶19 Defendant contends that his plea was unknowing and 

involuntary because he either had to “plead guilty to crimes he 

did not commit but have the chance of parole” or “continue with 

trial and assuredly be convicted without the possibility of 

parole.” He essentially argues that Trial Counsel provided such 

deficient legal representation that Defendant had no choice but 

to plead guilty to the crimes for which he was charged, raising 

 

1. In relation to one of his ineffective assistance claims, 

Defendant also argues that the district court failed to apply the 

doctrine of merger to his aggravated kidnapping charge. 

Because we reverse and vacate Defendant’s aggravated 

kidnapping conviction, the issue is moot. There was a distinct 

possibility of merger under the common-law merger test set 

forth in State v. Finlayson, 2000 UT 10, 994 P.2d 1243, abrogated by 

State v. Wilder, 2018 UT 17, 420 P.3d 1064, but in any event,

Defendant waived that argument by pleading guilty to the 

aggravated kidnapping charge.
State v. Wright

20150153-CA 8 2019 UT App 66

six instances where Trial Counsel provided such deficient 

representation and one instance in which his plea withdrawal 

counsel did.2

¶20 To prevail on a claim of 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). In the 

context of a guilty plea, “in order to satisfy the ‘prejudice’

requirement, the defendant must show that there is a reasonable 

probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.”3 Hill 

v. Lockhart, 474 U.S. 52, 59 (1985). And allegations of ineffective 

assistance “cannot be a speculative matter” and must be firmly 

rooted in the record. Nicholls v. State, 2009 UT 12, ¶ 36, 203 P.3d 

976 (quotation simplified).

A. Failure to Obtain Independent Medical Experts

¶21 Defendant contends that Trial Counsel failed to “follow 

up with independent medical analysis” or call independent 

 

2. Upon Defendant’s request, the district court appointed new 

counsel to represent Defendant in the plea withdrawal hearing.

He is again represented by new attorneys on the current appeal.

3. There is no requirement that he additionally show he would 

have received a more favorable outcome at trial. Compare Hill v. 

Lockhart, 474 U.S. 52, 59 (1985) (requiring, in the context of a 

guilty plea, that a defendant show he “would not have pleaded 

guilty and would have insisted on going to trial”), with Strickland 

v. Washington, 466 U.S. 668, 694 (1984) (requiring a defendant, in 

the context of a flawed trial or other proceeding, to demonstrate 

that “but for counsel’s unprofessional errors, the result of the 

proceeding would have been different”). 
State v. Wright

20150153-CA 9 2019 UT App 66

medical experts at trial to demonstrate that Second Doctor’s 

subdural hematoma diagnosis was incorrect. He asserts that 

Mother’s injuries can occur “spontaneously” as a result of her

age and Trial Counsel should have followed up with a medical 

expert to confirm this theory. Defendant raised this claim at the 

plea withdrawal hearing, and the district court found that Trial 

Counsel’s decision not to call “an additional medical expert” was 

“a reasonable strategy choice.” The court determined that “a 

neurologist or an additional medical expert” “would not have 

made a significant difference to the outcome of the case” and 

“Defendant has not presented any actual evidence that these 

additional expert witnesses would have given ground shaking 

testimony to contradict or undermine the testimony the medical 

doctors gave in this case.” 

¶22 Defendant does not point to evidence in the record 

demonstrating that the court’s factual findings were clearly

erroneous. On appeal, a defendant “cannot ‘simply restate or 

review evidence that points to an alternate finding or a 

finding contrary to the trial court’s finding of fact.’” Salt Lake City 

v. Reyes-Gutierrez, 2017 UT App 161, ¶ 25, 405 P.3d 781 (quoting 

Ostermiller v. Ostermiller, 2010 UT 43, ¶ 20, 233 P.3d 489). 

“Rather, to show clear error, he must identify the supporting 

evidence and explain why the trial court’s factual finding 

is nonetheless against the clear weight of the evidence.” Id. For 

that reason, we defer to the district court’s finding that Trial 

Counsel’s decision not to obtain an additional medical expert 

was a reasonable strategic choice because Trial Counsel “could 

make and argue the same points using the more credible 

doctor witnesses the State had already subpoenaed.” We 

conclude that Trial Counsel’s decision to forgo independent 

medical experts does not constitute deficient performance, and 

Defendant’s ineffective assistance of counsel claim therefore 

fails.
State v. Wright

20150153-CA 10 2019 UT App 66

B. Failure to View or Investigate Evidence 

¶23 Defendant contends that Trial Counsel did not view or 

investigate critical evidence in his case. To begin with, 

Defendant argues that Trial Counsel did not view the video 

recording prior to the evidentiary hearing on his motion 

to suppress or otherwise before trial and that Trial Counsel’s 

motion in support lacked “legal authority or meaningful 

analysis.” Had it not been for these errors, Defendant argues,

the motion would have been successful because his sister 

conducted the warrantless, nonconsensual search on behalf of 

the police.4

¶24 At the plea withdrawal hearing, Trial Counsel stated that 

he viewed the video with Defendant multiple times before trial. 

It is not clear from the record whether Trial Counsel viewed the 

video prior to the evidentiary hearing on the motion to suppress. 

Nevertheless, the motion to suppress was futile. Trial Counsel 

filed a supporting memorandum after the evidentiary hearing, 

arguing that the video recording should be suppressed given 

that it was the fruit of an unconstitutional search by Defendant’s 

 

4. Defendant also argues that the video was altered, asserting 

that numerous recordings were deleted from the camera. But 

Defendant’s assertions are speculative and there is no evidence 

in the record that the key video was altered or establishing how

deletion of the other recordings was prejudicial. At the plea 

withdrawal hearing, Trial Counsel testified that Defendant told 

him that the video had been altered, but that Defendant did not 

know how, only that he “felt that the police had altered” it. 

Defendant then told Trial Counsel that if he saw the entire video 

he would know how it had been altered. After the suppression 

hearing, where the entire video was played, Defendant no longer 

objected to the video and Trial Counsel assumed the issue was 

dropped. 
State v. Wright

20150153-CA 11 2019 UT App 66

sister. While the district court concluded that Defendant’s sister 

conducted the search, it determined there was no evidence that 

this private search was done at the request of the police. And so, 

even if Trial Counsel failed to watch the video recording prior to 

the evidentiary hearing and his motion lacked “legal authority 

or meaningful analysis,” it was not prejudicial to Defendant 

given the futility of the motion premised on his sister acting as a 

police agent.

¶25 Defendant next argues that Trial Counsel failed to 

investigate ballistic and forensic evidence, asserting that it is not 

possible for him to have shot the gun at the angle the State 

claims he did, his fingerprints were not found on the gun, and 

there is no evidence the gun was fired. He contends that Trial 

Counsel should have hired an independent expert to testify to 

these claimed inconsistencies. But these claims are speculative,

without any basis in the record, and are insufficient to overcome 

the presumption that Trial Counsel provided effective assistance. 

See Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[C]ounsel 

is strongly presumed to have rendered adequate assistance and 

made all significant decisions in the exercise of reasonable 

professional judgment.”). 

¶26 Mother testified that Defendant shot the gun twice, which 

was corroborated by bullet holes found by officers in the floor.

An officer also testified that upon Defendant’s arrest Defendant, 

with a smile on his face, stated, “You guys didn’t even find the 

gun, did you?” But officers found a .22 caliber handgun at the 

house, and Defendant later unsuccessfully tried to dispose of .22

caliber ammunition, overlooked by the arresting officer during 

the search of Defendant once he got to jail. In light of this 

evidence, and given Trial Counsel’s testimony that he had 

viewed the evidence and the crime scene prior to trial, we 

presume Trial Counsel did not pursue ballistic and forensic 

experts having concluded, in his “reasonable professional 

judgment,” id., that such an exercise would be pointless. For 
State v. Wright

20150153-CA 12 2019 UT App 66

these reasons, Defendant’s ineffective assistance of counsel 

claim, premised on this ground, fails.

C. Failure to Advise Defendant on the Sufficiency of the 

Evidence

¶27 Defendant contends that he should be allowed to 

withdraw his guilty pleas to possession of ammunition in a 

correctional facility, attempted murder, and aggravated 

kidnapping because Trial Counsel “failed to provide competent 

legal advice” on the insufficiency of the evidence supporting 

these charges.

¶28 Determining that it was Defendant’s request that Trial 

Counsel seek a plea agreement after hearing Mother’s testimony

and seeing the jurors in tears, the district court found that 

Defendant was “not coerced or compelled to accept a plea 

bargain.” And because there was compliance with rule 11 of the 

Utah Rules of Criminal Procedure, including a factual basis, 

“provided by both the opening statement and the subsequent 

witnesses and exhibits that were presented to the court over two 

and one half days of testimony,” the court concluded that 

Defendant “entered his pleas knowingly and voluntarily.” See 

Utah R. Crim. P. 11(e)(4)(B) (requiring that the court may not 

accept a plea until “there is a factual basis for the plea,”

including “that the prosecution has sufficient evidence to 

establish a substantial risk of conviction”).

¶29 Defendant argues that his guilty plea was not “knowing 

and voluntary” because Trial Counsel failed to advise him that 

no sufficient factual basis supported the possession of 

ammunition in a correctional facility, attempted murder, and 

aggravated kidnapping charges. See Hill v. Lockhart, 474 U.S. 52, 

56 (1985) (stating that because “a defendant is represented by 

counsel during the plea process and enters his plea upon the 

advice of counsel, the voluntariness of the plea depends on 

whether counsel’s advice was within the range of competence 
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20150153-CA 13 2019 UT App 66

demanded of attorneys in criminal cases”) (quotation 

simplified). We address each claim in turn and conclude that 

Defendant’s guilty plea to these charges was knowingly and 

voluntarily made, with the exception of his guilty plea to

aggravated kidnapping where Trial Counsel erred in failing to 

raise any objection or to advise Defendant on the insufficient 

evidence supporting the element of “detention.”

¶30 On an ineffective assistance of counsel claim, a convicted 

“defendant must show that counsel’s representation fell below 

an objective standard of reasonableness.” Strickland v. 

Washington, 466 U.S. 668, 688 (1984). However, we “indulge a 

strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant 

must overcome the presumption that, under the circumstances, 

the challenged action might be considered sound trial strategy.” 

Id. at 689 (quotation simplified). This standard “is a most 

deferential one,” Harrington v. Richter, 562 U.S. 86, 105 (2011), 

because “[e]ven the best criminal defense attorneys would not 

defend a particular client in the same way,” Strickland, 466 U.S. 

at 689. Therefore, “the question is whether an attorney’s 

representation amounted to incompetence under prevailing 

professional norms, not whether it deviated from best practices 

or most common custom.” Harrington, 562 U.S at 105 (quotation 

simplified). But even supposing counsel erred, a defendant 

“must convince the court that a decision to reject the plea 

bargain would have been rational under the circumstances.” 

Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

1. Possession of Ammunition in a Correctional Facility

¶31 Defendant contends that Trial Counsel failed to advise 

him that he had an entrapment defense to the charge of 

possession of ammunition in a correctional facility. To prove that 

charge, the State had to establish that Defendant knowingly 

possessed the ammunition he tried to get rid of at the jail. See 
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20150153-CA 14 2019 UT App 66

Utah Code Ann. § 76-8-311.3(4)(d) (LexisNexis 2017). See also id.

§ 76-2-103(2) (providing that a “person acts knowingly . . . when 

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

result”). When Defendant was arrested, the arresting officer 

searched Defendant for weapons before taking him to jail. At the 

jail, officers asked Defendant to empty his pockets. He started 

tossing items into a garbage can, and officers discovered he was 

trying to dispose of .22 caliber bullets. 

¶32 The State concedes that it would have been “the preferred 

course of action and good police practice” to have found the 

ammunition when Defendant was searched incident to arrest, 

before he arrived at the jail. But the arresting officer testified that 

in searching Defendant for weapons, he did not discover the .22 

caliber bullets. More importantly, Defendant would have been 

aware he could not have ammunition in the jail because there 

was a sign at the entrance of the jail stating, “NO FIREARMS 

ALLOWED IN THE JAIL[.] This includes: Ammunition, Knives, 

or Chemical sprays.” A second sign stated, “No Contraband 

Allowed In Jail[.] Any unauthorized contraband brought into 

this jail may result in additional charges against you. [Y]ou 

should make known to the jailer all possessions you bring into 

the jail.” Defendant therefore should have notified officers that 

he needed to divest himself of the bullets prior to entering the 

jail, but he did not. Instead, he entered the jail and then tried to 

dispose of the .22 caliber bullets in a garbage can, presumably 

because he did not want officers to discover evidence linking 

him to the gun. 

¶33 Defendant contends that officers put the ammunition in 

his pockets and he “attempted to dispose of the ammunition at 

the first opportunity.” “Entrapment occurs when a peace officer

. . . induces the commission of an offense . . . by methods 

creating a substantial risk that the offense would be committed 

by one not otherwise ready to commit it. Conduct merely 

affording a person an opportunity to commit an offense does not 
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20150153-CA 15 2019 UT App 66

constitute entrapment.” Id. § 76-2-303(1). There is no evidence in 

the record that the arresting officer or officers at the jail knew 

Defendant had ammunition with him prior to his entering the 

jail or that officers planted the ammunition on Defendant. There 

was sufficient evidence to support a conviction for possession of 

ammunition in a correctional facility, and we assume Trial 

Counsel concluded that trying an entrapment defense would not 

be successful. See Harrington v. Richter, 562 U.S. 86, 107 (2011)

(“Counsel was entitled to formulate a strategy that was 

reasonable at the time and to balance limited resources in accord 

with effective trial tactics and strategies.”). Therefore, 

Defendant’s ineffective assistance of counsel claim on this 

ground also fails.

2. Attempted Murder

¶34 Defendant argues that he could not have committed 

attempted murder because there is insufficient evidence to show 

that he intended to cause Mother serious bodily injury or death. 

To prove attempted murder, the State bore the burden of

establishing that Defendant “engage[d] in conduct constituting a 

substantial step toward commission of” murder and intended to 

commit the crime or “act[ed] with an awareness that his conduct 

[was] reasonably certain to cause that result.” Utah Code Ann. 

§ 76-4-101(1) (LexisNexis 2017). See also id. § 76-5-203(2)(a)‒(b)

(“Criminal homicide constitutes murder if . . . the actor 

intentionally or knowingly causes the death of another [or,]

intending to cause serious bodily injury to another, the actor 

commits an act clearly dangerous to human life that causes the 

death of another”); State v. Casey, 2003 UT 55, ¶ 38, 82 P.3d 1106 

(stating that for attempted murder the State “must show that the

defendant acted intentionally”). 

¶35 At trial, the State provided sufficient evidence that 

Defendant intended to kill Mother and took a “substantial step” 

toward doing so. Prior to and during the assault, Defendant 
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20150153-CA 16 2019 UT App 66

threatened that he would “beat [Mother] to death.” He added: “I 

could fuckin’ put a bullet in your fuckin’ head and not even 

think twice about it. You fuckin’ whore”; “You fuckin’, you

oughta get your fuckin’ hands off you old bitch or I’ll fuckin’ kill 

you, to death. I’ll choke you to death”; “I’ll beat you to death”; 

and “Yeah, I kill you.” There is nothing to suggest he was only

kidding. On the contrary, he specifically told Mother that he was 

not kidding. Mother testified that Defendant hit her with both 

hands for what “felt like forever,” put her in a headlock and 

choked her until it “felt like something was breaking,” 

threatened her with a glass shard, put a gun to her head, pulled 

her out of her chair hard enough that she heard her ribs break, 

and shot two bullets into the floor. Defendant’s threats 

established his intent to kill Mother, or so the jury might well 

have concluded, and he acted in a manner consistent with those 

threats, as Mother testified, demonstrating that Defendant 

“engag[ed] in conduct constituting a substantial step toward 

commission of the crime.”5 Utah Code Ann. § 76-4-101(1)(a). See 

id. § 76-4-101(2) (providing that “conduct constitutes a 

substantial step if it strongly corroborates the actor’s mental 

state”). 

¶36 With the video recording and Mother’s testimony, the 

State had sufficient evidence to establish the elements of 

attempted murder. And given the overwhelming evidence of 

Defendant’s guilt on the attempted murder charge, Defendant 

fails to demonstrate that it would have been reasonable for him 

to reject a plea deal and proceed to trial on that charge. 

 

5. Defendant argues there is no evidence that he attempted to kill 

Mother because the ballistic and forensic “evidence” is contrary 

to Mother’s testimony. But Defendant’s purported ballistic and 

forensic evidence is entirely speculative, and Mother’s testimony 

and the video recording were ample evidence to support the 

charge of attempted murder. 
State v. Wright

20150153-CA 17 2019 UT App 66

Defendant’s ineffective assistance of counsel claim on this 

ground also fails.

3. Aggravated Kidnapping

¶37 Defendant argues that he could not have committed 

aggravated kidnapping because there is insufficient evidence to 

show he detained Mother. To prove aggravated kidnapping, the 

State had to establish that “in the course of committing unlawful 

detention or kidnapping,” Defendant “possesse[d], use[d], or 

threaten[ed] to use a dangerous weapon,” or intended “to inflict 

bodily injury on or to terrorize [Mother]” or “to hinder or delay 

the discovery of or reporting of a felony.” Utah Code Ann. 

§ 76-5-302(1) (LexisNexis 2017). As is relevant here, the Utah 

Code defines kidnapping and unlawful detention as detaining or 

restraining the victim “intentionally or knowingly, without 

authority of law, and against the will of the victim.” Id. 

§ 76-5-301(1), -304(1). And although the kidnapping statute may 

require the State to prove the defendant “detain[ed] or 

restrain[ed] the victim for any substantial period of time,” id.

§ 76-5-301(1)(a) (emphasis added), the unlawful detention statute 

does not. 

¶38 “[T]o demonstrate aggravated kidnapping of the 

unlawful detention variant, the State must show, in addition to 

one or more aggravating circumstances, only that the defendant 

unlawfully detained or restrained the victim and that he did so 

intentionally or knowingly.” State v. Wilder, 2016 UT App 210, 

¶ 20, 387 P.3d 512, aff’d on other grounds, 2018 UT 17, 420 P.3d 

1064. As we determined in Wilder, “‘detains or restrains’ refers to 

restriction of the victim’s movement, but neither definition

requires . . . complete confinement or imprisonment.” Id. ¶ 21. 

See Detain, Webster’s Third New International Dictionary 616 

(1993) (“to hold or keep in or as if in custody” or “to restrain 

[especially] from proceeding”); Restrain, Webster’s Third New 

International Dictionary 1936 (1993) (“to hold (as a person) back 
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20150153-CA 18 2019 UT App 66

from some action, procedure, or course” or “to deprive of 

liberty”). For that reason, the State need only prove that

“Defendant intentionally acted, however briefly, to impair the 

victim’s ability to move freely.” Wilder, 2016 UT App 210, ¶ 22. 

¶39 Here, the State argues that there were two detentions: 

(1) Defendant pushed Mother back into the chair, and 

(2) Defendant would not let her leave the house to go to the 

hospital. We disagree with both contentions. 

¶40 First, Defendant pushing Mother back into her chair is not 

sufficient to support a finding of detention. The push was 

incident to the ongoing assault. Defendant and Mother were 

arguing and when Mother stood up to walk away, Defendant 

pushed her back down into the chair. Defendant then shouted, 

“[W]hy did you fuckin’ accuse me of stealing my Dad’s stuff 

when I came home the other day?” The context of Defendant’s 

action indicates that the push was assaultive rather than 

restrictive. See Utah Code Ann. § 76-5-102(1)(a) (defining assault 

as “an attempt, with unlawful force or violence, to do bodily 

injury to another”). And we are not persuaded that Defendant 

intended to detain Mother. The video recording displays no 

other actions taken by Defendant to suggest that he intended to 

impair Mother’s ability to move. Cf. Wilder, 2016 UT App 210, 

¶¶ 6, 22 (holding a reasonable jury could have inferred a 

detention occurred where the defendant followed the victim into 

the hallway, grabbed her hair and tried to drag her away while 

she locked and braced her legs between the hallway walls); State 

v. Sanchez, 2015 UT App 27, ¶¶ 14‒15, 344 P.3d 191 (holding a 

reasonable jury could have found a detention where the 

defendant clearly intended to detain the victim against her will 

by dragging her 58 feet down a hallway and closing the door); 

State v. Ellis, 2014 UT App 185, ¶ 10, 336 P.3d 26 (holding a 

reasonable jury could base an aggravated kidnapping conviction 

on evidence that the defendant “followed [the victim] around 
State v. Wright

20150153-CA 19 2019 UT App 66

the house throughout the day,” even following her into the 

bathroom to prevent her from escaping) (quotation simplified). 

¶41 Second, the State argues that Defendant would not let 

Mother “leave the house to go to the hospital until she promised 

to lie about what happened.” The State claims that after the 

assault, Mother “begged” Defendant to open the garage door, 

but he would not until he knew what she would say. Defendant 

only let her leave after knowing she would tell the hospital that 

she fell off the cement steps. But the record does not support 

these assertions, and nothing in Mother’s testimony suggests

that Defendant intended to “detain” Mother by not opening the 

garage door. 

¶42 Mother testified that, after the assault, she asked 

Defendant three times “to open the garage door” before “he 

opened it.” She could not recall why she did not have a garage 

door key herself, but she did not. When the State asked Mother, 

“Without him opening that garage was there a way for you to 

leave?” Mother replied, “I could have gone outside and there’s 

buttons that you could push, but half the time it doesn’t do it.” 

Before Mother left the house, Defendant wanted to know what 

she was going to tell hospital personnel, but she gave no 

indication in her testimony that Defendant was preventing her 

from leaving the house. Instead, to prevent Mother from telling 

the truth, Defendant threatened Mother with a gun and followed 

her to the emergency room, lifting his coat to show her the gun 

before she met with First Doctor. And she testified that she was 

concerned about reporting Defendant’s assault because of what 

he would do to his sisters if she told the truth. Because Mother 

never testified that Defendant prevented her from leaving the 

house, we conclude that Defendant did not “detain” her.

¶43 Because neither of these instances amount to a detention 

under the aggravated kidnapping statute, Trial Counsel was 

remiss in not moving to dismiss the charge after Mother’s 
State v. Wright

20150153-CA 20 2019 UT App 66

testimony or during plea negotiations. And although Mother’s 

testimony of the assault may have persuaded Defendant that he 

was “going to be convicted” and he sought a plea agreement, 

Trial Counsel failed to inform Defendant that an insufficient 

factual basis supported the aggravated kidnapping charge. Trial 

Counsel testified that, during plea negotiations, he did not 

discuss the factual basis for the aggravated kidnapping charge 

with Defendant because Defendant said he understood the 

factual basis for each element based on the State’s evidence 

given at trial. He further testified that his advice about the 

aggravated kidnapping evidence occurred prior to trial. Given 

that the factual basis for Defendant’s plea rested on the evidence 

presented at trial, a reasonable defense attorney would have 

objected to the aggravated kidnapping charge and informed his 

client that an insufficient factual basis supported the element of 

“detention.” See State v. Finlayson, 2000 UT 10, ¶ 24, 994 P.2d 

1243 (holding that the first part of the Strickland test had been 

met because the facts of the case failed to support an aggravated 

kidnapping conviction and defendant’s counsel failed to make 

an objection), abrogated on other grounds by State v. Wilder, 2018 

UT 17, 420 P.3d 1064. Had Trial Counsel done so in this case, we 

are confident that Defendant “would not have pleaded guilty 

and would have insisted on going to trial.” Hill v. Lockhart, 474 

U.S. 52, 59 (1985). See also Miller v. Champion, 262 F.3d 1066, 1072 

(10th Cir. 2001) (stating that “the strength of the prosecutor’s 

case” is the best evidence of whether a defendant would have in 

fact changed his plea). More likely, of course, had Trial Counsel 

considered the evidence more carefully and shared this analysis 

with the State, it is possible the plea arrangement would have 

gone forward with aggravated kidnapping off the table, given 

Defendant’s willingness to plead to the other seven felony 

charges against him.

¶44 We conclude that there is sufficient evidence for 

Defendant’s possession of ammunition in a correctional facility

and attempted murder convictions, and consequently, 
State v. Wright

20150153-CA 21 2019 UT App 66

Defendant fails to demonstrate it would have been rational for 

him to withdraw his guilty plea to the charges resulting in

these convictions. But, as to his aggravated kidnapping 

conviction, Trial Counsel erred in failing to object to the charge

after Mother’s testimony or during plea negotiations and in 

failing to advise Defendant that an insufficient factual basis 

supported the “detention” element of the crime. Defendant’s 

plea to this charge was therefore unknowingly and involuntarily 

made, and accordingly we vacate his aggravated kidnapping 

conviction.

D. Other Ineffective Assistance Claims

¶45 Defendant contends that Trial Counsel failed to preserve 

evidence and object to hearsay testimony and that his plea 

withdrawal counsel provided ineffective assistance by failing to 

investigate and raise substantive issues. We conclude that these 

issues are inadequately briefed.

¶46 Because “we are not a depository in which the appealing 

party may dump the burden of argument and research,” we 

“will not address arguments that are not adequately briefed.” 

Johnson v. Johnson, 2014 UT 21, ¶ 20, 330 P.3d 704 (quotation 

simplified). “A party must cite the legal authority on which its 

argument is based and then provide reasoned analysis of how 

that authority should apply in the particular case, including 

citations to the record where appropriate.” Bank of Am. v. 

Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196 (emphasis added). And

“an appellant who fails to adequately brief an issue will almost 

certainly fail to carry its burden of persuasion on appeal.” Boyle 

v. Clyde Snow & Sessions PC, 2018 UT App 69, ¶ 11, 424 P.3d 1098 

(quotation simplified). This burden “can be met only if the facts 

used in the argument section of the brief are sufficient to provide 

context for the events that occurred in the district court, are 

correctly shown to be in the record, and are analyzed in relation 

to pertinent legal authority.” Id. ¶ 12.
State v. Wright

20150153-CA 22 2019 UT App 66

¶47 Defendant makes a number of assertions with no citation 

to the record,6 and he fails to engage in the analysis necessary to 

evaluate whether Trial Counsel’s performance in these instances 

was deficient and prejudicial. First, he argues that Trial Counsel 

failed to preserve crime scene evidence, claiming that the State 

has an obligation to preserve exculpatory evidence and that Trial 

Counsel should have required the State to preserve this evidence 

for the defense. But Defendant fails to cite any legal authority 

supporting this argument and does not discuss why the absence 

of this evidence at trial was prejudicial to his defense. 

¶48 Second, Defendant argues that Trial Counsel failed to 

object to obvious hearsay testimony from First and Second 

Doctors. Defendant argues that these witnesses did not diagnose 

Mother because they relied instead on the “radiologists 

specifically trained to read and interpret data.” Defendant fails 

to develop any meaningful legal analysis of his arguments or of 

rules 801(c) and 803 of the Utah Rules of Evidence and 

controlling authority on this issue. And furthermore, he asserts 

that “[a]t worst, the evidence shows that [Defendant] slapped his 

mother and pulled her out of a chair,” arguing that the evidence 

is sufficient to support a simple assault charge but not attempted 

 

6. We note that Defendant’s entire argument section lacks 

citation to the record, and he asserts a number of facts without 

any citation to the record. Rule 24 of the Utah Rules of Appellate

Procedure requires that the argument section of a brief contain 

“reasoned analysis supported by citations to legal authority and 

the record,” Utah R. App. P. 24(a)(8), because it is “not our 

obligation . . . to comb the record for evidence,” In re W.A., 2002 

UT 127, ¶ 45, 63 P.3d 607 (quotation simplified). Although 

Defendant’s statement of facts contains sufficient citation to the 

record, such citation does not relieve Defendant of his burden to 

demonstrate that the record also supports his assertions in the 

argument section.
State v. Wright

20150153-CA 23 2019 UT App 66

murder or aggravated assault. But Defendant was not convicted 

of aggravated assault, and as we discussed above, the video 

recording and Mother’s testimony constituted sufficient 

evidence to support the attempted murder conviction. See supra

¶¶ 34‒36. 

¶49 Finally, Defendant argues that his plea withdrawal 

counsel “failed to adequately question [Trial Counsel’s] 

credibility” and “failed to establish that [Trial Counsel] was 

highly motivated to get a guilty plea.” But the focus of 

Defendant’s argument is on Trial Counsel’s errors, not those of

his plea withdrawal counsel, and in framing the argument this 

way, he fails to engage in a meaningful analysis of these

ineffective assistance claims. Because Defendant fails to 

adequately brief these claims, he fails in his burden of 

persuasion, and we decline to address them further. 

II. Cumulative Error

¶50 Defendant contends that the cumulative prejudicial effect 

of his ineffective assistance of counsel claims undermines

confidence in his guilty plea, and we should therefore reverse his 

convictions. However, “[i]f [we] determine[] that either a party’s 

claim did not amount to an error, or that the claim was an error 

but has no potential to cause harm on its own, the claim cannot 

weigh in favor of reversal under the cumulative effects test.”

State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038.

¶51 Defendant did not demonstrate prejudice on six of his 

ineffective assistance of counsel claims, and although we 

concluded that Trial Counsel’s failure to object to the aggravated 

kidnapping charge given the State’s insufficient evidence 

supporting the element of “detention” prejudiced his defense, 

this does not undermine his guilty plea to the other charges. 

Accordingly, there was no cumulative error in this case.
State v. Wright

20150153-CA 24 2019 UT App 66

CONCLUSION

¶52 We affirm Defendant’s convictions and conclude that his 

guilty pleas were knowingly and voluntarily made, with the 

exception of the plea culminating in his aggravated kidnapping 

conviction. We vacate that conviction and remand for trial or 

such other proceedings as may now be in order.