Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 12, 2026 Get Citation Alerts Download PDF Add Note

State v. Rodriguez

Court of Appeals of Utah

• Citations: 2026 UT App 34

• Docket Number: Case No. 20210900-CA

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.5K)

• PDF

Combined Opinion

2026 UT App 34

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ENRIQUE REY RODRIGUEZ,
Appellant.

Opinion
No. 20210900-CA
Filed March 12, 2026

Second District Court, Farmington Department
The Honorable David M. Connors
No. 201700861

Scott L Wiggins, Attorney for Appellant
Derek E. Brown and Lindsey Wheeler,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Early one morning, a married couple (Husband and Wife)
woke to find a burglar in their house. Husband confronted the
burglar, resulting in a struggle and the burglar damaging his
getaway vehicle while fleeing the property. Law enforcement
identified the burglar as Enrique Rey Rodriguez, whom a jury
later convicted of aggravated burglary and theft. At his
subsequent sentencing hearing, Rodriguez personally raised
concerns regarding the accuracy of his presentence investigation
report (PSI). The trial court sentenced Rodriguez to concurrent
indeterminate prison terms.

¶2 In challenging his convictions on appeal, Rodriguez argues
that his trial counsel (Counsel) was constitutionally ineffective for
State v. Rodriguez

not moving for a directed verdict, for not objecting to a statement
Wife made at trial, and for not requesting a
reasonable-alternative-hypothesis jury instruction. In challenging
his sentences, Rodriguez contends that the trial court erred in not
resolving the claimed inaccuracies in the PSI before imposing
sentence. We disagree on all fronts and affirm Rodriguez’s
convictions and sentences.

BACKGROUND 1

Burglary and Altercation

¶3 Around 5:30 a.m. on December 26, 2019, Wife heard
“creaking sounds” on the other side of her bedroom door. At first,
Wife thought that one of her children was up and walking about.
But after not hearing any additional noises her children tended to
make in the morning, Wife decided to investigate. Wife opened
the bedroom door and observed the figure of a “shorter, stocky”
person holding a flashlight and walking toward the dining area
on the floor below. Wife then shut the bedroom door, turned on
the bedroom light, and shouted, “Someone is in our house!”

¶4 Husband, who up until then had been “dead asleep,” leapt
out of bed and ran into the unlit hallway yelling, “Get out of my
house!” Husband heard someone on the lower floor run from the
dining area toward the kitchen, and he pursued. From the top of
the stairs, Husband observed that the burglar was a male wearing
a dark hoodie. Husband went downstairs and took a shorter route
to the kitchen, intending to cut the burglar off. The burglar ran out

1. “On appeal from a jury trial, 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. Speights, 2021 UT 56, n.1, 497 P.3d 340 (quotation simplified).

20210900-CA 2 2026 UT App 34
State v. Rodriguez

the kitchen door into the attached garage, and Husband
continued to give chase.

¶5 The motion sensor light in the garage turned on and
Husband saw the burglar, who was carrying a bag and some
clothes in his arms, head toward a dark-colored sedan that had
been left running in the driveway with its headlights on. The
burglar discarded some clothes onto the driveway as he opened
the driver side door and entered the car.

¶6 As the burglar shifted the car into reverse, Husband
reached into the car and snatched several items from the burglar’s
lap, including the bag and some clothing. As the car started
reversing, the open car door struck Husband, bruising his left calf
and knocking him to the ground. Husband’s “whole right side,”
including his hand, arm, hip, leg, and knee were all scraped as he
slid on the pavement. The car continued in reverse and the car
door hit a red fire hydrant at the end of the driveway. The impact
bent the open door “backwards,” and the car drove away with the
door still open.

¶7 Husband was able to see the burglar’s face during the
driveway altercation. At trial, Husband described the burglar as a
Hispanic male, “about 30 years old,” “stocky,” wearing glasses,
and between 3 and 6 inches shorter than Husband, who is around
6’1’’. After the altercation, Husband learned that the burglar
entered the house through the garage door that Husband’s son
had inadvertently left open that night.

¶8 Husband and Wife called 911. As they waited for police to
arrive, Husband looked through the bag he had retrieved from
the fleeing burglar. Inside, among some items taken from the
home (including a GoPro camera, car keys, and clothing),
Husband found a flashlight that did not belong to them. He gave
the flashlight to the responding officer who arrived shortly
thereafter. Husband and Wife reported several items missing
from their home, including a professional camera, clothing, drills,
and motorcycle helmets.

20210900-CA 3 2026 UT App 34
State v. Rodriguez

¶9 The responding officer found the missing camera on the
driveway. After walking through the house, the officer decided
against calling crime scene investigators to dust for fingerprints
because the home was “contaminated with multiple
fingerprints.” The officer’s written report stated that Husband
described the burglar as “a Hispanic male, about five foot six,”
and wearing glasses. The officer issued an “Attempt to Locate”
(ATL), via dispatch, to other law enforcement officers for a male
matching the description Husband provided, with the further
information that the suspect was driving a dark sedan.

Vehicle Theft

¶10 Rodriguez had been staying with his parents over the
Christmas holiday and had slept at their house on Christmas
night. At around 7:15 a.m. the next morning—the same morning
as the burglary—approximately three miles away from Husband
and Wife’s house, Rodriguez’s mother (Mother), who had arisen
at 5:45 a.m., was about to leave for work when she discovered her
dark blue sedan was missing from her attached garage. Other
than the sedan, nothing else was missing from the garage.
Rodriguez’s father (Father) had parked the sedan in the garage
around 10:30 p.m. the night before, and Mother last saw it around
11:30 p.m.

¶11 The missing sedan required a key fob that was uniquely
programmed to start that car. Mother had two key fobs for her
car: she kept one in her purse, which she hung in her bedroom at
night, and Father held onto the other one. The garage from which
the car went missing could be opened one of two ways: by
pressing a button in the garage next to the door leading into the
house or by using one of at least two garage door remotes. The
house also had a security system for which only Mother knew the
code. When set, the alarm would go off whenever anyone entered
or exited the house through a regular door, but the garage door as
well as the windows to two bedrooms—including the bedroom in
which Rodriguez was staying—did not have sensors. Mother had

20210900-CA 4 2026 UT App 34
State v. Rodriguez

set the alarm that night, and it was not set off by anyone entering
or exiting the home. But the following morning, Mother
discovered that the security system’s cameras were not working
and did not record the theft of her car. This malfunction was
apparently due to Mother and Father replacing their internet
modem a few days earlier without also informing the security
company of the change.

¶12 Mother reported her car as stolen to law enforcement. The
responding officer encountered Mother, Father, and Rodriguez at
the house. Mother showed the officer that her key fob was still in
her possession. After obtaining a vehicle theft affidavit from
Mother, the officer issued an ATL for the missing car. The officer
also learned that an ATL for a car matching the sedan’s
description had been issued earlier that morning.

¶13 Later that day, Mother contacted OnStar, which tracked the
car’s GPS to a location just four blocks from her house. Police
found the car at that location. The driver side door had sustained
“pretty severe damage” and was almost entirely detached. Red
paint transfer was also found on the door, which was consistent
with the door hitting a fire hydrant. Police also found a garage
door remote in the glovebox. Mother was “[s]hocked” when the
remote was returned to her because it was supposed to be in her
dresser. Police informed Mother that her car had been involved in
a burglary earlier that morning.

¶14 Police found no evidence that Mother’s car had been
started by anything other than its own key fob. The car was not
conducive to fingerprinting because a passenger window and the
driver side door had been left open, causing the interior to be
soaked by rain.

Investigation

¶15 After consulting one another, investigators assigned to the
burglary and vehicle theft cases determined that Rodriguez fit
Husband’s description of the burglar. Husband was asked to view

20210900-CA 5 2026 UT App 34
State v. Rodriguez

a photo lineup, but he could not identify the burglar “with 100
percent certainty.”

¶16 A detective (Detective) interviewed Rodriguez, who
denied stealing Mother’s car. Rodriguez claimed to have been at
his parents’ house on the morning in question, and he stated that
Father had seen him going into the bathroom at around 4:30 a.m.
Rodriguez told Detective that the culprit was an acquaintance
named Tyler, whom he had met through a mutual friend.
Rodriguez suggested that Tyler had stolen the car in retaliation
for a deal in which Tyler felt “cheated” by Rodriguez. Rodriguez
stated that Tyler had admitted to him that he had taken the car.
Rodriguez explained that he kept a garage door remote to his
parents’ house in his personal vehicle, which Tyler “potentially”
took while Rodriguez’s car was parked at the mutual friend’s
apartment complex. Rodriguez also told Detective that because
Tyler had not worn gloves, his fingerprints should be in Mother’s
vehicle. Rodriguez claimed not to know Tyler’s last name, and he
declined to disclose the mutual friend’s name to Detective, stating
that he did not wish to get the friend “involved in this situation.”
Rodriguez described Tyler as “older,” probably in his forties, and
around 5’2” or 5’3’’. He also indicated that Tyler was staying at
the mutual friend’s apartment.

¶17 A forensic analysis did not reveal any latent fingerprints on
the burglar’s flashlight. But DNA was found on one of the
batteries inside the flashlight. And a few weeks after the
interview, Detective obtained a warrant to gather Rodriguez’s
DNA via buccal swab. Rodriguez’s DNA matched the DNA
found on the flashlight’s battery. A search of Mother and Father’s
house did not reveal any of Husband’s or Wife’s property.

Trial

¶18 In connection with the burglary, the State charged
Rodriguez with one count of aggravated burglary, a first-degree

20210900-CA 6 2026 UT App 34
State v. Rodriguez

felony, and one count of theft, a third-degree felony. 2 A two-day
jury trial was held in September 2021. The State called several
witnesses as part of its case-in-chief, including Husband, Wife,
Mother, Father, Detective, other investigating officers, a car
dealership employee, and a forensic biologist. Their pertinent
testimony is summarized above.

¶19 Notably, during Counsel’s cross-examination of Wife,
Counsel asked whether law enforcement ever offered “any kind
of description” of the suspect they had in custody, such as
whether the person was “[m]ale or female.” Wife answered, “I
don’t think they ever gave a description. . . . Maybe that it was
male.” Counsel pressed further, “Okay. What kind of information
did they give you?” Wife replied, “I’m trying to remember the
conversation, just that he was in jail for something else.” Counsel
did not object to this response. Instead, he asked, “Okay, all right.
With regard to a description of the person, anything?” Wife
answered, “I mean, I know my husband went in and looked at
different people, but I don’t know that we ever went over
descriptions.” Counsel ended the cross-examination at that point.

¶20 The defense did not call any witnesses. During closing
argument, Counsel argued that the State had failed to establish
the burglar’s identity. He asserted that the DNA found on the
flashlight battery did not incriminate Rodriguez because the
flashlight may very well have been in Mother’s car at the time it
was stolen. Counsel also pointed to Husband’s statement to the
responding officer that the burglar was 5’6’’ and to Husband’s
trial testimony that the burglar was between 3 to 6 inches shorter
than Husband, arguing that Rodriguez, who is 5’10’’, falls outside
this range. 3 And in light of Husband’s inability to positively

1. The State did not charge Rodriguez for the theft of Mother’s car.

2. Counsel stated that Husband is “just over 6-foot” tall, making
   the height range for the burglar between 5’6’’ and 5’9’’. But
   (continued…)

20210900-CA 7 2026 UT App 34
State v. Rodriguez

identify the burglar in a photo lineup, Counsel asserted that this
height discrepancy was “important” and “substantial.” Counsel
also emphasized the logistical difficulties of Rodriguez leaving his
parents’ house and taking Mother’s car without setting off the
security system. This included climbing out the bedroom
window, opening the garage door with a remote, taking the car,
burglarizing Husband and Wife, and returning to his parents’
neighborhood with the vehicle before Mother awoke around 5:45
a.m.—all the while believing that the security system’s cameras
were working.

¶21 Following closing arguments, the court instructed the jury.
As relevant to this appeal, the elements instructions for each
charge directed the jury that to convict Rodriguez, it had to “find
beyond a reasonable doubt each of the following elements.” The
instructions then listed the elements pertaining to each charge.
Another instruction defined the “proof beyond a reasonable
doubt” standard for the jury:

[P]roof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. There are very few things in this world that
we know with absolute certainty, and in criminal
cases the law does not require proof that overcomes
every possible doubt. If the evidence leaves you
firmly convinced that the defendant is guilty of the
crime charged, you must find the defendant guilty.
On the other hand, if there is a real possibility that
the defendant is not guilty, you must give the
defendant the benefit of the doubt and return a
verdict of not guilty.

Husband testified that he is “about six foot one,” actually making
the upper range for the burglar’s height 5’10’’.

20210900-CA 8 2026 UT App 34
State v. Rodriguez

¶22 The jury convicted Rodriguez on both charges. The court
then ordered Adult Probation and Parole (AP&P) to prepare a PSI.

Sentencing

¶23 The PSI recommended that Rodriguez serve prison
sentences for his convictions, and it provided the following
summary of Rodriguez’s criminal history. In 2006, Rodriguez was
placed on probation for burglary, but by the end of that year, the
probation was terminated and he was charged with additional
offenses. As a result, Rodriguez was incarcerated until 2011, when
he was released on parole. But three months later, due to
subsequent parole violations, including substance abuse,
Rodriguez returned to prison for two more months until his
sentence was discharged. Upon his release in 2011, Rodriguez
“immediately returned to criminal activity,” resulting in five new
charges for theft and burglary. For those charges, Rodriguez
served time in prison until 2018, when he was released once more
on parole. Rodriguez “performed poorly while on parole” due to
repeatedly testing positive for controlled substances, failing to
maintain employment, and failing to report to AP&P, which
ultimately resulted in him returning to jail for 5 days. Rodriguez
thereafter was released and continued to test positive for
controlled substances until his arrest in the current matter.

¶24 At Rodriguez’s sentencing hearing, held in November
2021, the trial court asked whether there were “any comments or
corrections” relating to the PSI. Counsel answered, “No,” but
Rodriguez then spoke up, stating, “Yeah, I would like to say
something.” Rodriguez told the court that the PSI “says a whole
bunch of things . . . that’s incorrect.” When asked to elaborate,
Rodriguez stated, “I’d like to correct that when I was on parole, I
was doing well. . . . It just makes it seem like that every time I’ve
been on probation or parole, I’ve gotten violated, which is a lie.”
The court then asked whether the State or Counsel had “[a]ny
input” on what Rodriguez had just stated. Counsel answered,
“No, I’ll just let him make a record of it.”

20210900-CA 9 2026 UT App 34
State v. Rodriguez

¶25 The parties then proceeded to argue about sentencing,
following which Rodriguez addressed the court again, insisting
on his innocence. The court sentenced Rodriguez to concurrent
indeterminate prison terms: five years to life for the aggravated
burglary conviction and up to five years for the theft conviction.

ISSUES AND STANDARDS OF REVIEW

¶26 Rodriguez appeals both his convictions and sentences. In
challenging his convictions, Rodriguez contends that Counsel
was constitutionally ineffective in three instances: (1) for not
moving for a directed verdict, (2) for not objecting to Wife’s
statement that he “was in jail for something else,” and (3) for not
requesting a reasonable-alternative-hypothesis jury instruction.
“When an ineffective assistance claim is raised for the first time
on appeal, it presents a question of law that we address in the first
instance.” State v. James, 2026 UT App 20, ¶ 32 (quotation
simplified).

¶27 In challenging his sentences, Rodriguez argues that the
trial court failed to resolve alleged inaccuracies in the PSI before
imposing sentence. “Whether the trial court properly complied
with a legal duty to resolve on the record the accuracy of
contested information in sentencing reports is a question of law
that we review for correctness.” State v. Samulski, 2016 UT App
226, ¶ 9, 387 P.3d 595 (quotation simplified), cert. denied, 390 P.3d
725 (Utah 2017).

ANALYSIS

I. Ineffective Assistance of Counsel

¶28 To succeed on a claim of ineffective assistance of counsel, a
criminal defendant must show that (1) defense “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

20210900-CA 10 2026 UT App 34
State v. Rodriguez

(1984). “Failure to establish either prong is fatal to a defendant’s
ineffective assistance claim.” State v. King, 2010 UT App 396, ¶ 30,
248 P.3d 984.

¶29 Under the first prong, defense counsel’s performance is
deficient if it falls “below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. “Judicial scrutiny of
counsel’s performance” is “highly deferential” as there is “a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. This
inquiry “will often include an analysis of whether there could
have been a sound strategic reason for counsel’s actions.” State v.
Scott, 2020 UT 13, ¶ 35, 462 P.3d 350. Nevertheless, “even if a court
concludes that counsel made an error, the ultimate question is
always whether, considering all the circumstances, counsel’s acts
or omissions were objectively unreasonable.” Id. ¶ 36. See King,
2010 UT App 396, ¶ 31 (“So long as a rational basis for counsel’s
performance can be articulated, we will assume counsel acted
competently.”) (quotation simplified).

¶30 Under the second prong, a defendant is prejudiced by
defense counsel’s deficient performance if “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.

¶31 Rodriguez argues that Counsel was ineffective for not
moving for a directed verdict based on insufficiency of the
evidence, for not objecting to Wife’s reference to him serving jail
time for other charges, and for not seeking a
reasonable-alternative-hypothesis jury instruction. We address
each claim in turn.

A. Directed Verdict Motion

¶32 A directed verdict based on the insufficiency of the
evidence is appropriate only if, when “examining all evidence in

20210900-CA 11 2026 UT App 34
State v. Rodriguez

a light most favorable to the non-moving party, there is no
competent evidence that would support a verdict in the
non-moving party’s favor.” State v. Garcia, 2017 UT 53, ¶ 62, 424
P.3d 171 (quotation simplified). Thus, “if the State presents no
competent evidence from which a reasonable jury could find the
elements of the relevant crime,” trial counsel’s failure to move for
a directed verdict “would likely constitute deficient
performance.” State v. Baer, 2019 UT App 15, ¶ 7, 438 P.3d 979
(quotation simplified). Conversely, the trial court must deny a
directed verdict motion so long as “there is any evidence,
however slight or circumstantial, which tends to show guilt of the
crime charged.” State v. Montoya, 2004 UT 5, ¶ 33, 84 P.3d 1183
(quotation simplified). See State v. Makaya, 2020 UT App 152, ¶ 10,
476 P.3d 1025 (“A motion for a directed verdict based on
insufficiency of the evidence is futile when, upon reviewing the
evidence and all the inferences that can be reasonably drawn from
it, a court can find that some evidence exists from which a
reasonable jury could find that the elements of the crime had been
proven beyond a reasonable doubt.”) (quotation simplified), cert.
denied, 481 P.3d 1039 (Utah 2021). In such cases, “trial counsel’s
decision not to raise a futile motion for a directed verdict would
not be deficient performance.” Baer, 2019 UT App 15, ¶ 7
(quotation simplified). “In examining whether a motion for
directed verdict could have been granted, we view the evidence
presented at trial in the light most favorable to the State.” Id.
(quotation simplified).

¶33 Rodriguez argues that Counsel performed deficiently in
not moving for a directed verdict based on identity. Specifically,
Rodriguez asserts that the State failed to present sufficient
evidence establishing beyond a reasonable doubt that he was the
burglar. In support of this argument, Rodriguez points to
Husband’s inability, despite seeing the burglar’s face when
Husband confronted the burglar in the driveway, to positively
identify Rodriguez as the burglar in a photo line up; the fact that
the interior of the burglarized home was not processed for
forensic evidence; law enforcement’s failure to investigate the

20210900-CA 12 2026 UT App 34
State v. Rodriguez

person named Tyler; and the fact that none of Husband’s or Wife’s
possessions were found in Rodriguez’s parents’ house.

¶34 As an initial matter, it is “well-established that
identification can be inferred from circumstantial evidence.” State
v. Isom, 2015 UT App 160, ¶ 23 n.2, 354 P.3d 791 (quotation
simplified), cert. denied, 364 P.3d 48 (Utah 2015). And in
establishing identity, “a witness need not physically point out a
defendant so long as the evidence is sufficient to permit the
inference that the person on trial was the person who committed
the crime.” Id. (quotation simplified). Thus, Husband’s failure to
positively identify Rodriguez as the burglar was not fatal to the
State’s case.

¶35 Moreover, ample circumstantial evidence, when viewed in
the light most favorable to the State, supported the finding that
Rodriguez was the burglar. The lack of other forensic evidence
notwithstanding, Rodriguez was directly tied to the scene of the
crime by the DNA found on the battery in the burglar’s flashlight. 4
The State further linked Rodriguez, who matched Husband’s
description of the burglar, to the car used in the burglary, which
tuned up four blocks from Rodriguez’s parent’s house. When
retrieved, Mother’s stolen car bore red paint transfer on the driver
side door, which was consistent with Husband’s account that the
car collided with a fire hydrant while fleeing his property. And
further evidence showed that Rodriguez had access to the car.
That is, even without Mother’s permission, Rodriguez could have

1. Rodriguez argues that this DNA evidence is immaterial because the burglar may have found the flashlight in the car he stole. But for purposes of a directed verdict motion, the evidence and all reasonable inferences are viewed in the light most favorable to the State. See State v. Makaya, 2020 UT App 152, ¶ 10, 476 P.3d 1025, cert. denied, 481 P.3d 1039 (Utah 2021); State v. Baer, 2019 UT App 15, ¶ 7, 438 P.3d 979. And the jury could reasonably infer that the flashlight containing Rodriguez’s DNA belonged to Rodriguez and was used by him in the burglary.

20210900-CA 13 2026 UT App 34
State v. Rodriguez

bypassed the home’s security system by climbing out his
bedroom window and opening the garage door with a remote he
either retrieved from Mother’s bedroom or, as he claimed to
Detective, kept in his own personal vehicle.

¶36 Rodriguez also contends that trial evidence supported “a
hypothesis that the individual named Tyler committed the
burglary and resulting theft,” which “necessarily raises a
reasonable doubt” as to Rodriguez’s guilt. But the directed verdict
standard does not look at whether evidence supporting an
alternative theory exists. Rather, as stated, the focus is on whether
“some evidence exists from which a reasonable jury could find
that the elements of the crime had been proven beyond a
reasonable doubt.” Makaya, 2020 UT App 152, ¶ 10 (quotation
simplified). “The law is well established that the existence of one
or more alternate reasonable hypotheses does not necessarily
prevent the jury from concluding that a defendant is guilty
beyond a reasonable doubt.” State v. Darnstaedt, 2021 UT App 19,
¶ 31, 483 P.3d 71 (quotation simplified), cert. denied, 496 P.3d 716
(Utah 2021). “It is the exclusive province of the jury to weigh the
competing theories of the case, in light of the evidence presented
and the reasonable inferences drawn therefrom, and to conclude
which one they believe.” Id. (quotation simplified). Thus,
“[a]lthough it is appropriate to argue alternative inferences to the
jury, such arguments would not merit a directed verdict.” Id. And
the evidence described above was indeed sufficient to withstand
a directed verdict motion.

¶37 In sum, because Counsel could have reasonably concluded
that a directed verdict motion would have proven unsuccessful,
Counsel did not perform deficiently in forgoing such a motion.
See Makaya, 2020 UT App 152, ¶ 9; Baer, 2019 UT App 15, ¶ 7.
Accordingly, this claim of ineffective assistance fails.

B. Wife’s Statement

¶38 Rodriguez next argues that Counsel was ineffective for not
seeking to strike Wife’s statement at trial that Rodriguez “was in

20210900-CA 14 2026 UT App 34
State v. Rodriguez

jail for something else.” He contends that this statement violated
rule 404(b) of the Utah Rules of Evidence, see Utah R. Evid.
404(b)(1) (“Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character.”), and that Counsel’s failure to object to the statement
constituted deficient performance “in light of the circumstances
of this case involving the insufficiency of evidence.” He also
asserts that the failure to object was prejudicial because it “had
tremendous potential . . . to improperly sway the jury.”

¶39 The challenged statement was made during Counsel’s
cross-examination of Wife. Counsel asked whether investigators
gave Wife “any kind of description” of the suspect they had in
custody. Wife answered, “Maybe that [the suspect] was male.”
Counsel responded, “Okay. What kind of information did they
give you?” It was at this point that Wife offered the statement that
the investigators told her that the suspect “was in jail for
something else.” Counsel immediately pivoted the conversation
back to the suspect’s description, asking, “Okay, all right. With
regard to a description of the person, anything?” And Wife
responded that although Husband was brought in to view
“different people” in a lineup, she did not believe they were ever
offered a description of the suspect.

¶40 Wife’s reference to Rodriguez being “in jail for something
else” was both fleeting and unexpected. In this context, Counsel
“may reasonably have believed it ill-advised to call undue
attention to the unanticipated testimony” by objecting, and his
decision not to acknowledge the passing statement and to instead
turn the conversation back to the suspect’s description “may be
considered sound trial strategy.” State v. Harper, 2006 UT App 178,
¶ 25, 136 P.3d 1261. See State v. Hulse, 2019 UT App 105, ¶ 40, 444
P.3d 1158 (“It is conceivable that a competent attorney would
have chosen not to draw the jury’s further attention to the fleeting
exchange by objecting to its content.”), cert. denied, 456 P.3d 389
(Utah 2019).

20210900-CA 15 2026 UT App 34
State v. Rodriguez

¶41 Accordingly, Counsel did not perform deficiently by not
objecting to Wife’s statement, and this claim of ineffective
assistance also fails.

C. Reasonable-Alternative-Hypothesis Jury Instruction

¶42 Rodriguez argues that Counsel was ineffective for not
requesting a reasonable-alternative-hypothesis jury instruction.
He asserts that failure to do so constituted deficient performance
given “the circumstances involving the insufficiency of evidence.”
He also contends that he was prejudiced by the lack of such an
instruction because the jury was thereby precluded “from
considering . . . the specific and unusual factual circumstances
created by the State’s refusal to investigate the potential suspect
‘Tyler’ and the resulting insufficiency-of-evidence conundrum.”

¶43 Utah case law does not require a
reasonable-alternative-hypothesis jury instruction. See State v.
Archuleta, 2021 UT App 66, ¶ 33, 492 P.3d 801, cert. denied, 497 P.3d
831 (Utah 2021). To the contrary, so long as “the jury instructions
clearly informed the jury of the standard of proof beyond a
reasonable doubt,” the jurors must “necessarily exclude all
reasonable alternative hypotheses” when determining whether
the evidence satisfies that high standard. Id. ¶ 32 (quotation
simplified). And here, Rodriguez has not asserted that the
beyond-a-reasonable-doubt jury instruction was in any regard
deficient. Based on this established caselaw, Counsel could have
reasonably concluded that an additional jury instruction was
unnecessary because the jury was already adequately instructed
on the controlling beyond-a-reasonable-doubt standard.

¶44 Moreover, Counsel also could have reasonably believed
that an instruction highlighting law enforcement’s alleged failure
to investigate Tyler would have harmed Rodriguez’s defense
more than it would have aided it. That is, any alleged shortcoming
in the investigation into Tyler was largely due to Rodriguez’s
refusal to provide any helpful information. Even if Rodriguez did
not know Tyler’s last name, he refused to provide the name or

20210900-CA 16 2026 UT App 34
State v. Rodriguez

address of his and Tyler’s mutual friend who presumably could
have supplied the missing information. And since, according to
Rodriguez, Tyler was staying with the mutual friend, law
enforcement might have even located Tyler at the friend’s
apartment. Based on these facts, Counsel could have reasonably
believed that Rodriguez’s refusal to provide helpful information
regarding Tyler, who Rodriguez claimed had confessed to the
burglary, would appear suspicious and create a negative
impression with the jury.

¶45 Another reason Counsel may have decided against
drawing further attention to Tyler via the jury instructions is that
doing so would have weakened Counsel’s chosen defense
strategy. During closing argument, as part of his argument that
the State failed to prove identity, Counsel emphasized the
discrepancy between Rodriguez’s height (5’10’’) and Husband’s
estimations of the burglar’s height. Husband initially told police
the burglar was 5’6’’ tall and he later testified at trial that the
intruder was 3 to 6 inches shorter than his own 6’1’’ frame—
neither of which, according to Counsel, matched Rodriguez. See
supra note 3. But the limited description Rodriguez offered of
Tyler—between 5’3’’ and 5’2’’ and in his forties—contradicted
both Husband’s height and age estimations of the burglar.
Accordingly, Counsel very well may have concluded that
pointing a finger at Tyler, who matched Husband’s descriptions
even less than Rodriguez did, would be detrimental to his chosen
defense.

¶46 For these reasons, Counsel did not perform deficiently by
not requesting a reasonable-alternative-hypothesis jury
instruction.

II. The PSI

¶47 At the sentencing hearing, Rodriguez told the trial court
that the PSI “says a whole bunch of things . . . that’s incorrect.” He
continued, “I’d like to correct that when I was on parole, I was
doing well. . . . It just makes it seem like that every time I’ve been

20210900-CA 17 2026 UT App 34
State v. Rodriguez

on probation or parole, I’ve gotten violated, which is a lie.” After
confirming that Counsel and the State had nothing further to add
regarding Rodriguez’s criticism of the PSI, the trial court
sentenced Rodriguez. Rodriguez argues that the trial court erred
in imposing sentence without first resolving the claimed
inaccuracies in the PSI.

¶48 The Utah Code directs that “[i]f there is an alleged
inaccuracy in the presentence investigation report that is not
resolved by the parties and the [Utah Department of Corrections]
or law enforcement agency before sentencing,” then “the alleged
inaccuracy shall be brought to the attention of the court at
sentencing” and the court may then grant the parties “an
additional 10 working days . . . to resolve the alleged inaccuracy.”
Utah Code Ann. § 77-18-103 (5)(a)(i) (LexisNexis Supp. 2025). 5 If
no extension is granted or if the parties fail to reach an agreement
within that timeframe but “the court finds that there is an
inaccuracy,” the court must “enter a written finding as to the
relevance and accuracy of the challenged portion of the
presentence investigation report” and provide that finding to the
Department of Corrections or law enforcement agency. Id.
§ 77-18-103(5)(a)(ii). A party’s failure to raise any alleged
inaccuracies in the PSI at sentencing constitutes waiver of the
challenge. See id. § 77-18-103(5)(c).

¶49 Notably, “a defendant may not invoke the statute merely
by claiming generally that the report is inaccurate.” State v. Corry,
2024 UT App 142, ¶ 22, 558 P.3d 128. Rather, the “defendant must
identify specific items of information in a presentence report that
are allegedly inaccurate.” Id. But here, Rodriguez raised no
specific inaccuracy in the PSI for the court to resolve. Instead, his
complaint appears to have been strictly subjective in nature. He
complained, with our emphasis, that he felt he did “well” while

1. While renumbered since sentencing, the text of this subsection remains substantively unchanged. Accordingly, we cite the most current printed version of the Utah Code for convenience.

20210900-CA 18 2026 UT App 34
State v. Rodriguez

on supervision and that the PSI made “it seem” that he violated
every instance of probation or parole he had been placed on.
Critically, Rodriguez never disputed, either at sentencing or on
appeal, the underlying record of his probation and parole
violations as recounted in the PSI. Rodriguez has not asserted that
any specific instance of failed supervision in the PSI was factually
inaccurate or that the PSI omitted any instance of successfully
completed supervision.

¶50 Accordingly, because Rodriguez offered only a
generalized grievance rather than a specific factual challenge, he
failed to trigger the trial court’s statutory duty to resolve any
alleged factual inaccuracies in the PSI. 6

CONCLUSION

¶51 Rodriguez has not shown that Counsel performed
deficiently in any of the instances of ineffective assistance of
counsel he raises on appeal. The trial court also did not err in
proceeding with sentencing without first resolving Rodriguez’s
generalized claim of inaccuracy in the PSI.

¶52 Affirmed.

1. Rodriguez alternatively contends that Counsel was ineffective for not requesting that the court resolve the inaccuracies he raised. Because we hold that Rodriguez did not raise any specific inaccuracies for the trial court to resolve, this claim of ineffective assistance also fails. Counsel could have reasonably concluded that any motion to resolve non-specific inaccuracies in the PSI would have proven futile. See State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (“Because the decision not to pursue a futile motion is almost always a sound trial strategy, counsel’s failure to make a motion that would be futile if raised does not constitute deficient performance.”) (quotation simplified).

20210900-CA 19 2026 UT App 34