State v. Seach

483 P.3d 1265

STATE of Utah, Appellee,

v.Nicholas Patrick SEACH, Appellant.

No. 20190457-CA

Court of Appeals of Utah.

Filed March 4, 2021

Sarah J. Carlquist, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

Opinion

HARRIS, Judge:

¶1 Nicholas Patrick Seach appeals three of his four convictions for aggravated assault, which stem from his interactions with a family of four at a public park. On appeal, Seach raises a claim of ineffective assistance of counsel, asserting that his trial attorney performed deficiently by not lodging an objection to certain aspects of the jury instructions, and that this prejudiced him with respect to three of the charges. We find Seach's arguments unpersuasive, and therefore affirm his convictions.

BACKGROUND¹

¶2 One day, a family (consisting of Father, Mother, a teenage Son, and a teenage Daughter) drove their pickup truck to a public park to recreate. Mother and Daughter went on a run, and Son and Father stayed near the truck while Father tinkered with and rode his bicycle. Some time later, Father saw a man—who turned out to be Seach—walking "back and forth" on the sidewalk. When Father approached, Seach began cursing at Father. Father did not respond to Seach's exclamations, and decided it might be best to leave the park to avoid further interactions with Seach. Father then went to find Mother and Daughter, and Son remained inside the truck. While Father was gone, Son watched from inside as Seach spit on the truck's door handles. When Father returned to the truck with Mother and Daughter, he noticed the spit on the door handles, and at that point, Mother called the police. Seach was still close by and, while Mother was on the phone, Seach approached the family and told them that they "needed to go away" and "leave." Mother responded by telling Seach that she was phoning the police and that the family did not "want to have any problems with [him] or with anybody."

¶3 As Mother was conversing with Seach, Son became angry because he perceived that Seach "was yelling at [his] mom," so he "got out of the truck ... and[ ] started cussing" at Seach. Mother testified that, at that point, Seach threatened to kill the family, and looked like "he wanted to hit" Son. After a while, Seach walked over to his car. "By then [the family] could hear the police" sirens and thought Seach would leave.

¶4 Instead, Seach returned to the area near the family's truck, walking with "one hand in front of him and one hand behind" his back. Father testified that Seach "had a gun" in his front hand and "had a knife" in his back hand. The family, meanwhile, had no weapons with them; indeed, Father testified that he "never use[s] weapons" and does not "like them." As Seach approached the family, he continued to state "that he was going to kill" them. Mother testified that Seach "had his gun in his hand," and that he "went like this towards all of us," making a gesture in which she "pointed her hand back and forth across her body." Mother then "rushed [Son and Daughter] into the back of the truck" from the passenger side, while Father attempted to get into the driver's seat. Seach then walked over to the driver's side of the truck, held the gun to "the back part of [Father's] head," and "stopped [Father] from closing the door."

¶5 By this point, Mother and Daughter were "crying and screaming," Son "panicked," and all three of them became "hysterical." Eventually, Father was able to close the truck door, at which point Seach started shooting at the truck. Seach's gun—although it appeared to be a real handgun—turned out to be a pellet gun, and Seach's shots hit but therefore did not penetrate the truck's windows. After firing the gun multiple times, Seach "took off" in his car.

¶6 At least two officers were dispatched to the park in response to Mother's initial 911 call, and they were given Mother's description of Seach's vehicle. The primary responding officer (Officer) saw a car matching the description, and "initiated a traffic stop on that vehicle." Seach was in the car. Officer and a second officer "performed a high-risk stop" because the dispatcher had "relayed ... that a firearm had been brandished and that the caller had been threatened with that firearm." After initiating the stop, Officer placed Seach under arrest without incident, and gave him a chance to explain what had "happened at the park." Seach, who is white, willingly responded that he "felt threatened by" the family members, who are Latino, and offered his perception that "there were Mexican cartel members at the park." Seach told Officer that he thought the family had weapons, but upon further questioning he admitted that he had "not actually see[n] any weapons." Seach also disclosed "that he did not have a gun on him but that there was a toy gun in his car." Officer then conducted a search of Seach's vehicle and recovered a realistic-looking, revolver-style "air soft" or "pellet gun" that was "loaded." Officer did not recover a knife from the car.

¶7 Officers also met the family at the park, and took statements from them about what had just occurred. Officer examined the family's truck and observed two "pockmarks in the windshield" of the vehicle that were "consistent with" marks that could have been made by a pellet gun. Officer "also observed saliva on the door" of the truck.

¶8 The State charged Seach with four counts of third-degree-felony aggravated assault, one for each member of the family. Seach pleaded not guilty to all counts, and the case proceeded to a two-day jury trial. The State called Father, Mother, Son, and Officer as witnesses, each of whom testified about the events as outlined above.

¶9 After the State rested its case, Seach testified in his own defense, claiming that he felt "uncomfortable" after seeing Father "riding [a] little pedal bike" around the parking lot and "directly behind [Seach's] car more than once." Seach stated that he "almost felt like [he] was being stalked in a way," and that Father's actions made him feel like he was "getting creeped on." Seach testified that he became nervous and thought he "possibly heard my name being called," so he asked Father "if he knew who I was" and told Father to "back off bitch and back off my car." Seach admitted to spitting on the family's truck, claiming that he did so because Father was "spotting me or whatever his business was in the park." After telling Father to back off, Seach claimed that Mother then yelled at him and Son approached him as if he were going to "windmill [Seach] with his fists," and verbally threatened to "kill [Seach] with a razor blade." Seach admitted to "agging it on" by "get[ting] into a fighting stance" and stated that, at that time, he held a "cooking utensil" in his hand. Seach testified that, eventually, he retreated to his car to grab his pellet gun after he saw the family "making a move." He claimed to have thought that his "life was in danger" because the family might have been going into the truck "to get a weapon to come at" him. When asked why he thought this, Seach stated that his fear "was based on the fact that there [was] ... an older Hispanic on a pedal bike," which he found "suspicious," and was based on his "perception" that Father might be "a construction worker" and thus carry tools in his truck that could be used as weapons. Seach then admitted to "popping off rounds onto the windshield" of the truck, and to pointing the gun at Father, but denied pointing the gun at anyone else and denied touching Father directly with the gun. He claimed that he had acted at all times in self-defense, intending merely to deploy a "scare tactic" against the family, and that he had no "intention to hurt them." On cross-examination, Seach admitted that his "intention [was] to frighten them" with his "realistic looking pistol." On recross and redirect, Seach further clarified that he "wanted them to think that [he] could" kill them to discourage the family members from retrieving any weapons that they might have in their truck.

¶10 After both sides rested, the court instructed the jury. Because the sole issue presented on appeal has to do with certain of the jury instructions, we set forth those instructions here in some detail, and note that none of the relevant instructions drew an objection from Seach at trial. Instruction 26 stated, in relevant part, as follows:

A person cannot be found guilty of a criminal offense unless that person's conduct is prohibited by law, AND at the time the conduct occurred, the defendant demonstrated a particular mental state specified by law. ....

As to the "mental state" requirement, the prosecution must prove that at the time the defendant acted (or failed to act), he did so with a particular mental state. For each offense, the law defines what kind of mental state the defendant had to have, if any. For some crimes the defendant must have acted "intentionally" or "knowingly." For other crimes, it is enough that the defendant acted "recklessly," with "criminal negligence," or with some other specified mental state.

Later I will instruct you on the specific conduct and mental state that the prosecution must prove before the defendant can be found guilty of the crime(s) charged.

¶11 Instruction 28 informed the jury that "[e]very offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge, or recklessness shall suffice to establish criminal responsibility." Instructions 29 through 34 provided definitions of "intentionally," "knowingly," and "recklessly."

¶12 The jury instructions also included four separate "elements" instructions—Instructions 39 through 42—one for each charged count of...