State v. Perez - Dangerous Weapon Conviction Affirmed

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April 16, 2026 Get Citation Alerts Download PDF Add Note

State v. Perez

Court of Appeals of Utah

• Citations: 2026 UT App 57

• Docket Number: Case No. 20240808-CA

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.9K)

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Combined Opinion

2026 UT App 57

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GERARDO ENRIQUE PEREZ,
Appellant.

Opinion
No. 20240808-CA
Filed April 16, 2026

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 221911282

Emily Adams and Hannah Leavitt-Howell,
Attorneys for Appellant
Derek E. Brown and Jason E. Greene,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

MORTENSEN, Judge:

¶1 Gerardo Enrique Perez was charged with and convicted of
possessing a dangerous weapon as a restricted person. On appeal,
he argues that the jury was not properly instructed on what
constitutes a “dangerous weapon” and that his counsel’s failure
to object to the relevant instruction constituted ineffective
assistance. We reject his arguments and affirm his conviction.
State v. Perez

BACKGROUND 1

¶2 In August 2022, Perez was an inmate at the Utah State
Correctional Facility. He and his cellmate were subject to a routine
cell search. After one officer concluded a strip search of Perez,
another officer saw Perez remove a shirt from his bed. The officer
confiscated the shirt and found a piece of plastic that had been
“sharpened to a point”—in other words, a shiv 2—wrapped inside
the shirt. Perez was charged with one count of being a restricted
person in possession of a dangerous weapon.

The Shiv

1. “On appeal, we review the record facts in a light most favorable
   to the jury’s verdict and recite the facts accordingly. We present
   conflicting evidence only as necessary to understand issues raised
   on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned
   up).

2. See, e.g., Sterling v. State, 199 N.E.3d 377, 380 (Ind. Ct. App. 2022)
   (defining “shiv” as “makeshift knife”); State v. Bulach, 76 A.2d 692,
   693 (N.J. Super. Ct. App. Div. 1950) (“A shiv is a knife.”).

20240808-CA 2 2026 UT App 57
State v. Perez

¶3 The case proceeded to a jury trial, at which the State called
a single witness: the officer who found the shiv. The
officer testified that, based on his “training and experience,” the
shiv was a “dangerous weapon” because such objects are used for
protection and to hurt others. He further testified that he had
seen inmates use similar objects that had caused “severe
injuries requiring hospitalization” and “a lot of blood loss.” The
State also introduced a video showing Perez handing the shirt to
the officer.

¶4 Perez’s lawyer (Counsel) then briefly cross-examined the
officer. Part of Counsel’s strategy entailed convincing the jury to
convict on the lesser included offense of possession of contraband
in a correctional facility. To that end, Counsel asked the officer to
define “contraband.” The officer testified that contraband refers
to “anything that an inmate should not have.” After Counsel
concluded his cross-examination, the State briefly questioned the
officer on redirect examination. The officer was then excused, and
the State rested. Perez elected not to testify and called no
witnesses.

¶5 Before closing arguments, the jury was instructed on the
elements for the dangerous weapon charge and the lesser
included offense of possession of contraband in a correctional
facility. Another instruction defined a “dangerous weapon” as
“an item that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” The jury was also
instructed,

The following factors shall be used in determining
whether an item, object or thing not commonly
known as a dangerous weapon is a dangerous
weapon:

a. the character of the instrument, object, or thing;

b. the character of the wound produced, if any;

20240808-CA 3 2026 UT App 57
State v. Perez

c. the manner in which the instrument, object, or
thing was used; and

d. the other lawful purposes for which the
instrument, object, or thing may be used.

As set forth below, the instruction omitted three of the
statutory factors for a factfinder to consider when determining
whether any object other than a firearm constitutes a dangerous
weapon.

¶6 During its closing argument, the State asserted that Perez
knew the shiv was of a dangerous “character” because it was
“sharp” and it could “pierce things” and “people.” The State
argued further that the shiv could cause “serious damage”—or, in
other words, a serious “wound.” The State also asserted that
Perez’s apparent attempt to hide the shiv from the officer led to
the obvious inference of how it could have been used, specifically
that it was concealed and meant to be concealed. This led to the
additional inference that Perez knew he could not have the shiv
in the prison, according to the State. Finally, the State argued that
the shiv had no lawful purpose and that its intended use was for
“causing death or serious bodily injury.”

¶7 In response, Counsel conceded that Perez possessed
contraband and was therefore guilty of the lesser included
offense. He also conceded that the shiv was “definitely capable of
causing serious bodily injury.” But, he argued, that was only “half
the equation.” The other half related to “manner of use” and
“intended use.” Counsel asked the jury to find Perez not guilty on
the dangerous weapon charge because the State failed to prove
that he used or intended to use the shiv.

¶8 A little less than an hour after the case was submitted to
the jury, Perez was convicted.

20240808-CA 4 2026 UT App 57
State v. Perez

ISSUE AND STANDARD OF REVIEW

¶9 Perez argues that Counsel rendered ineffective assistance
by failing to object to the jury instruction on what constitutes a
“dangerous weapon.” “Where, as here, a defendant raises [an
ineffective assistance] claim for the first time on appeal, we decide
it as a matter of law.” West Valley City v. Drawn, 2025 UT App 198,
¶ 14, 583 P.3d 1129.

ANALYSIS

¶10 Perez argues that the State’s burden was “effectively
lowered” in this case because (1) the jury instruction omitted some
of the statutory factors for the jury to consider in its
determination of whether the shiv was a dangerous weapon and
(2) the jury instruction included language not found in the statute
that could arguably have enabled the jury to disregard the factors
altogether. Perez maintains that Counsel’s failure to object to the
instruction constituted ineffective assistance because his entire
defense was that the shiv was “merely contraband.” We are not
convinced.

¶11 Prevailing on an ineffective assistance claim requires a
defendant to “show both that counsel’s performance
was deficient and that the deficient performance prejudiced
the defense.” State v. Salsman, 2024 UT App 92, ¶ 11, 553 P.3d
66 (cleaned up), cert. denied, 558 P.3d 88 (Utah 2024). Where a
defendant cannot make the required showing on one of the
prongs, we need not address the other prong. See State v. Lolani,
2025 UT App 138, ¶ 16, 581 P.3d 1024, cert. denied, Mar. 12, 2026
(No. 20251386). Here, we elect to resolve Perez’s claim on
prejudice grounds. Establishing prejudice requires a defendant to
demonstrate “a reasonable probability that but for
counsel’s errors, the result would have been different.”
Salsman, 2024 UT App 92, ¶ 11 (cleaned up). In addressing a
defendant’s argument on prejudice, we must consider
the counterfactual universe in which the trial proceeded

20240808-CA 5 2026 UT App 57
State v. Perez

without the asserted errors and ask whether it is reasonably likely
that a different result would have obtained but for those errors.
State v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86. If the answer to that
question is “no,” then the defendant has failed to establish
prejudice. Id.

¶12 Under Utah law, it is a third-degree felony for a “category
I restricted person” to “intentionally or knowingly” purchase,
transfer, use, carry, or otherwise possess “a dangerous weapon”
that “is not a firearm.” Utah Code § 76-11-305(2)(a), (2)(b)(ii),
(3)(a). 3 A dangerous weapon other than a firearm is “an object that
in the manner of its use or intended use is capable of causing
death or serious bodily injury.” Id. § 76-11-101(3)(a)(ii). The
applicable statute enumerates six factors for a factfinder to
consider “in determining whether any object, other than a firearm,
is a dangerous weapon.” Id. § 76-11-101(3)(b). Those factors
include:

(i) the location and circumstances in which the
object was used or possessed;

(ii) the primary purpose for which the object was
made;

(iii) the character of the wound, if any, produced by
the object’s unlawful use;

(iv) the manner in which the object was unlawfully
used;

1. In the time since Perez was charged, the relevant statutes have been renumbered. See Utah Code §§ 76-10-501(6), -503(2) (2022). Because they remain substantively the same, we cite the current versions for convenience.

20240808-CA 6 2026 UT App 57
State v. Perez

(v) whether the manner in which the object is used
or possessed constitutes a potential imminent threat
to public safety; and

(vi) the lawful purposes for which the object may be
used.

Id.

¶13 Here, the jury was instructed to consider three of the
applicable statutory factors in determining whether the shiv was
a dangerous weapon. The jury considered the following factors,
each of which roughly corresponded to one of the statutory
factors:

• “the character of the wound produced, if any” roughly
corresponds to “the character of the wound, if any,
produced by the object’s unlawful use,” see id. § 76-11-
101(3)(b)(iii);

• “the manner in which the instrument, object, or thing was
used” corresponds to the “the manner in which the object
was unlawfully used,” see id. § 76-11-101(3)(b)(iv); and

• “the other lawful purposes for which the instrument,
object, or thing may be used” roughly corresponds to “the
lawful purposes for which the object may be used,” see id.
§ 76-11-101(3)(b)(vi). 4

1. Perez does not argue that the minor differences between the statute and the jury instruction on these three factors led to an inaccurate statement of the law. See State v. Baize, 2019 UT App 202, ¶ 16, 456 P.3d 770 (explaining that “[j]ury instructions require no specific form” as long as they “accurately convey the law”).

20240808-CA 7 2026 UT App 57
State v. Perez

The jury was also instructed to consider the “character of the
instrument, object, or thing.” 5 In addition, the instruction
suggested that the jury did not need to consider the factors if the
object was “commonly known as a dangerous weapon,” language
that is not found in the statute. See id. § 76-11-101(3)(b). Finally,
the instruction omitted three of the statutory factors, including
“the location and circumstances in which the object was used or
possessed,” “the primary purpose for which the object was
made,” and “whether the manner in which the object is used or
possessed constitutes a potential imminent threat to public
safety.” See id. § 76-11-101(3)(b)(i), (ii), (v).

¶14 Perez claims that the apparent defects in the jury
instruction matter, arguing that “the State’s case against [him]
was that he must be guilty of possession of a dangerous weapon
because [the officer] claimed that every object like the [shiv] had
been used like a dangerous weapon and thus [Perez] must have
known it was a dangerous weapon.” Further compounding the
issue, he argues, was the “not commonly known” language in the
jury instruction because it “diminished the importance . . . of
analyzing” his intent and enabled the jury to “focus[] on the [shiv]
alone.” In other words, Perez maintains that the instruction’s
incompleteness (the omitted statutory factors) and incorrectness
(the “commonly known” language) unfairly distracted the jury
from what he claims was a lack of evidence of his “specific intent.”
For these reasons, Perez asserts that there was a reasonable
probability that the jury, properly instructed, would have
acquitted on the dangerous weapon charge and instead convicted
on the contraband charge.

1. While this factor does not strictly correspond to any of the enumerated factors, it seems to relate to “the primary purpose for which the object was made” factor. See Utah Code § 76-11- 101(3)(b)(ii). To the extent that Perez suggests that the factors are dissimilar, the dissimilarity doesn’t affect our analysis.

20240808-CA 8 2026 UT App 57
State v. Perez

¶15 We readily acknowledge that the jury instruction here
should have tracked the statute. 6 See generally, e.g., State v.
Beckering, 2015 UT App 53, ¶ 23, 346 P.3d 672 (“To determine if
jury instructions correctly state the law, we look at the jury
instructions in their entirety and will affirm when the instructions
taken as a whole fairly instruct the jury on the law applicable to
the case.” (cleaned up)). But in considering a hypothetical
universe where the instruction properly stated the applicable law,
we remain unconvinced that the jury would have done anything
other than convict Perez.

¶16 In State v. Salsman, 2024 UT App 92, 553 P.3d 66, this court
addressed a similar argument on appeal addressing the same
statute. There, the police searched the defendant’s trailer and
found, among other things, “several ‘steak-type knives,’ . . . a
hatchet sticking in the wall . . . , and a twelve-inch serrated
hunting knife in a sheath.” Id. ¶ 2. Officers also found more than
300 grams of methamphetamine. Id. ¶ 10. The defendant was
convicted of, among other charges, possession of a dangerous
weapon by a restricted person. Id. ¶ 6. On appeal, he argued that
his counsel was ineffective in failing to object to a jury instruction
that defined “a ‘dangerous weapon’ as ‘an object that in the
manner of its use or intended use is capable of causing death or
serious bodily injury’” but omitted all six of the applicable
statutory factors. Id. ¶¶ 6, 12. He argued that he would not have
been convicted had the jury been properly instructed. Id. ¶ 12.

¶17 On appeal, this court rejected the defendant’s argument,
holding that “[a]dding the six statutory factors to the jury

1. Of course, in some circumstances, inclusion of statutory language renders a jury instruction incorrect as a matter of law. See, e.g., State v. Lolani, 2025 UT App 138, ¶¶ 12–13, 19, 581 P.3d 1024 (holding as a matter of law that applicable statute’s language that “circumstances not amounting to murder” should not have been in jury instruction on lesser included offense of homicide by assault), cert. denied, Mar. 12, 2026 (No. 20251386). But we see no issue on that front in this case.

20240808-CA 9 2026 UT App 57
State v. Perez

instruction would likely have harmed—not helped—[his] case.”
Id. ¶ 14. We noted that “the hatchet and hunting knife were found
in the open area of [the] trailer, with three people—one of whom
was pregnant—living inside the small space,” that the defendant
“testified that he used the wall . . . as a ‘throwing gallery’ for the
hatchet and other knives,” and that ”the trailer was full of
methamphetamine, which [he] admitted to using.” Id. For these
reasons, we determined that “the location and circumstances in
which the hatchet and hunting knife were used”—or “factor 1,”
so called based on its place in the statute—“indicate[d] that they
were capable of causing death or serious bodily injury.” Id. We
also noted,

The primary purpose of both a hatchet and a
hunting knife (factor 2) is to cut. While these tools
certainly have lawful uses (factor 6), and there is no
indication that [the defendant] had used them
unlawfully to produce an injury (factors 3 and 4),
there was a risk that under these particular
circumstances, these objects that were designed to
cut posed a potential imminent threat to public
safety (factor 5).

Id. (cleaned up).

¶18 We think Salsman is helpful here. It’s true that the
instruction in that case did not include the “commonly known as
a dangerous weapon” language. See id. ¶ 6. However, as in
Salsman, a reasonable consideration of the factors omitted from
the jury instruction in this case suggests that the inclusion of those
factors would have hurt Perez’s defense. The jury instruction here
omitted “factor 1,” which refers to “the location and
circumstances in which the object was used or possessed.” See
Utah Code § 76-11-101(3)(b)(i). Had factor 1 been included in the
instruction, however, it almost certainly would have gone against
Perez. It’s true that the State didn’t offer evidence that the shiv
was actually used. But it did put on evidence that Perez had
attempted to conceal the shiv from the authorities and that Perez

20240808-CA 10 2026 UT App 57
State v. Perez

was not allowed to possess the shiv. The officer also testified that
the shiv was a “dangerous weapon” that inmates use, both for
protection and to hurt others. Therefore, factor 1 clearly weighed
in favor of a finding that the shiv was a dangerous weapon. See
Salsman, 2024 UT App 92, ¶ 14 (concluding that “the location and
circumstances in which the hatchet and hunting knife were used
. . . indicate that they were capable of causing death or serious
bodily injury” when the defendant used the wall of the trailer in
which he lived with two other people as a “throwing gallery”); cf.
State v. Holsomback, 2022 UT App 72, ¶ 31, 513 P.3d 82 (explaining
that the defendant’s concealment of a shiv in his cell’s toilet
supported his conviction for obstruction of justice after he stabbed
another inmate three times); United States v. Roche, 443 F.2d 98, 99
(10th Cir. 1971) (holding that authorities’ discovery of inmate’s
“false phallic appendage attached to his body” that had concealed
an improvised firearm readily supported inference that inmate
had “knowingly and willfully convey[ed] from place to place . . .
a thing designed to kill, injure or disable an employee or inmate”
and affirming inmate’s conviction under statute barring such
conduct).

¶19 The instruction also omitted factor 2—“the primary
purpose for which the object was made.” See Utah Code § 76-11-
101(3)(b)(ii). As with factor 1, however, factor 2 would have
harmed Perez’s case had it been included in the instruction. The
size and shape of the shiv, the officer’s testimony, and, most
importantly, common sense, clearly weigh in favor of a finding
that the shiv was a dangerous weapon because it was made for
the primary purpose of stabbing. 7 See Salsman, 2024 UT App 92,
¶ 14 (explaining that “the primary purpose of both a hatchet and
a hunting knife . . . is to cut” and concluding that factor 2 weighed
in favor of a finding that the hatchet and hunting knife were

1. Perez suggests the shiv, pictured in paragraph 2, was meant to be used to “cut materials for arts and crafts . . . , for personal hygiene . . . , or in activities like gardening or whittling” as opposed to being used to stab. We see no possibility that the jury would have believed such an assertion.

20240808-CA 11 2026 UT App 57
State v. Perez

dangerous weapons); see also Jason v. Tanner, 938 F.3d 191, 198–99
(5th Cir. 2019) (describing the myriad “creative” implements
prisoners have concocted to injure others, including “shanks,
toothbrush shivs, ruler shivs, ladle shivs, tightly-rolled-
newspaper spears (successfully used to kill a guard in 1985), [and]
broken black binder clips” (cleaned up)); Herzog v. Vail Resorts,
Inc., 2025 UT App 69, ¶ 55, 572 P.3d 402 (“Juries are . . . allowed to
use common sense and make reasonable inferences.”).

¶20 Lastly, the instruction omitted factor 5, which asks the
factfinder to consider “whether the manner in which the object is
used or possessed constitutes a potential imminent threat to
public safety.” See Utah Code § 76-11-101(3)(b)(v). The unrefuted
evidence showed that Perez had concealed the shiv from the
authorities and that it was readily capable of posing an imminent
threat to other inmates and prison staff. Indeed, the officer
testified that he had seen inmates use similar objects to cause
“severe injuries requiring hospitalization” and “a lot of blood
loss.” For these reasons, factor 5 also would have worked against
Perez had it been included in the jury instruction. See Salsman,
2024 UT App 92, ¶ 14 (concluding that the defendant’s hunting
knife and hatchet “posed a potential imminent threat to public
safety” (cleaned up)).

¶21 This leaves the “not commonly known” language, the
inclusion of which was erroneous as a matter of law. Cf. State v.
Lolani, 2025 UT App 138, ¶ 19, 581 P.3d 1024 (explaining that
“‘under circumstances not amounting to’ clauses (when
accompanied by an associated list of other crimes) do not
constitute elements of the actual crime that follows” and that the
jury instruction with such language incorrectly stated the law
(cleaned up)), cert. denied, Mar. 12, 2026 (No. 20251386). It is
certainly possible that the jurors interpreted this language in a
way that would have allowed them to disregard the factors
included in the instruction if they believed that a shiv is
commonly known as a dangerous weapon. Therefore, we
consider the hypothetical universe where (1) the jury instruction
did not include this language and (2) the jury affirmatively

20240808-CA 12 2026 UT App 57
State v. Perez

considered each of the six statutory factors. Stated otherwise, we
assess both the factors that were included in the instruction and
the additional factors that the jury would have been instructed to
consider had the instruction properly stated the law.

¶22 The statute tasks the factfinder with considering “the
lawful purposes for which the object may be used,” Utah Code
§ 76-11-101(3)(b)(vi), or what the Salsman court referred to as
factor 6, see 2024 UT App 92, ¶ 14. Perez concedes on appeal—as
he must—that “there is no ‘lawful’ use for contraband in prison.”
This fact is directly probative of intent with the shiv because it
stands to reason that an inmate can distinguish between mere
contraband and a dangerous object like a shiv. Accordingly, factor
6 weighs in favor of a finding that the shiv was a dangerous
weapon.

¶23 Finally, factors 3 and 4 correspond to “the character of the
wound, if any, produced by the object’s unlawful use” and “the
manner in which the object was unlawfully used,” respectively.
See Utah Code § 76-11-101(3)(b)(iii), (iv). In other words, these
factors task the jury with considering whether the defendant
actually used the object. Because there is no indication that Perez
used the shiv, factors 3 and 4 weigh against a finding that the shiv
was a dangerous weapon. See Salsman, 2024 UT App 92, ¶ 14. But
they are outweighed by the other statutory factors, see Utah Code
§ 76-11-101(3)(b)(i)–(ii), (v)–(vi), which overwhelmingly point to
the conclusion that the shiv was a dangerous weapon, see Salsman,
2024 UT App 92, ¶ 14 (suggesting that imminent threat to public
safety of a hatchet and throwing knife, which “were designed to
cut,” far outweighed that they had “lawful uses” and that there
was no indication the defendant “had used them unlawfully to
produce an injury”).

¶24 For these reasons, we are confident that had the jury
instruction properly stated the law, Perez would have been
convicted on the dangerous weapon charge. Thus, we are not
persuaded that he was prejudiced by Counsel’s allegedly

20240808-CA 13 2026 UT App 57
State v. Perez

deficient performance in this case. Consequently, his ineffective
assistance claim does not succeed.

CONCLUSION

¶25 Perez has not demonstrated that he was prejudiced by
Counsel’s failure to object to the jury instruction, so his ineffective
assistance claim fails. Affirmed.

20240808-CA 14 2026 UT App 57