State v. Rivera, 509 P.3d 257

Raul Rivera had a longstanding feud with his brother‑in‑law David and had threatened both David and Rivera’s brother Benjamin, including a birthday comment about putting a bullet in David.
At Benjamin’s house, Rivera confronted Benjamin and, as David and Benjamin approached his parked SUV, Rivera exited the vehicle holding a chrome object and said things like “I got something for you” and “pull your gun out.”
David, believing Rivera had a gun, retrieved his firearm and shot Rivera; police found no gun but discovered a black‑and‑chrome screwdriver lying under the driver‑side door hinge of Rivera’s SUV.
The State charged Rivera with two counts of aggravated assault—one as to David and one as to Benjamin—and the jury convicted him on both counts.
Rivera’s trial counsel initially proposed a self‑defense instruction but asked the court to remove it after Rivera decided not to testify; counsel pursued a contrary theory that the screwdriver was planted and faulted the State for not fingerprinting it.
On appeal Rivera argued ineffective assistance of counsel for (1) failing to seek dismissal on multiplicity grounds, (2) withdrawing the self‑defense instruction, and (3) not having the screwdriver fingerprinted; the court affirmed the convictions.

Issue	Rivera's Argument	State/Counsel's Position	Held
Multiplicity of aggravated‑assault counts	Two counts were impermissible because Rivera’s conduct involved a single movement with a single screwdriver	Each victim may constitute a separate unit of prosecution for aggravated assault; two victims → two counts	No ineffective assistance: motion would have been futile; two counts proper
Withdrawal of self‑defense instruction	Withdrawing the instruction was unreasonable and foreclosed a viable defense	Counsel reasonably chose an innocence/planting theory that conflicted with a self‑defense claim; tactical choice	No ineffective assistance: tactical, reasonable decision to avoid inconsistent defenses
Failure to fingerprint screwdriver	Counsel should have tested the screwdriver; prints might have supported planting theory	No evidence testing would have helped; testing risked undermining the defense narrative; strategic choice	No ineffective assistance: claim speculative and counsel reasonably withheld testing

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (established the two‑prong deficient‑performance and prejudice test for ineffective assistance)
State v. Rasabout, 356 P.3d 1258 (Utah 2015) (multiplicity analysis requires identifying unit of prosecution by statute)
State v. Mane, 783 P.2d 61 (Utah Ct. App. 1989) (aggravated assault statute’s reference to “another” supports separate counts per victim)
State v. Calvert, 407 P.3d 1098 (Utah Ct. App. 2017) (motion to dismiss on multiplicity grounds would have been denied under similar facts)
State v. Makaya, 476 P.3d 1025 (Utah Ct. App. 2020) (counsel not deficient for failing to pursue futile motions)
State v. James, 631 P.2d 854 (Utah 1981) (single episode can constitute as many offenses as there are victims for crimes against the person)
Burt v. Titlow, 571 U.S. 12 (U.S. 2013) (absence of evidence undermines claims of deficient performance)
Fernandez v. Cook, 870 P.2d 870 (Utah 1993) (ineffective‑assistance claims cannot rest on speculation)