State v. Cabututan, 20200151-CA

CourtCourt of Appeals of Utah
Writing for the CourtMORTENSEN, Judge
Citation508 P.3d 1003
Parties STATE of Utah, Appellee, v. Andy Phillips CABUTUTAN, Appellant.
Docket Number20200151-CA
Decision Date31 March 2022

508 P.3d 1003

STATE of Utah, Appellee,
Andy Phillips CABUTUTAN, Appellant.

No. 20200151-CA

Court of Appeals of Utah.

Filed March 31, 2022

Aaron P. Dodd, Provo, and Kara H. North, Orem, Attorneys for Appellant

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

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



¶1 Andy Phillips Cabututan's fight with his boss (Boss) started with words, a pistol, swinging fists, a kick to the groin, and a brick; but the fight ended with Boss's death after Cabututan struck Boss's head with a shovel. At Cabututan's murder trial, the jury rejected his assertion that he acted in perfect self-defense and ultimately convicted him of the lesser included offense of manslaughter.

508 P.3d 1005

Cabututan appeals on various grounds, but we affirm.


¶2 At a time when Cabututan and Boss maintained a good relationship, Cabututan moved his camper onto Boss's property as part of an agreement to perform mechanical work on Boss's taxis. However, as the months passed, their relationship soured. Cabututan, in Boss's view, had failed to live up to his end of the bargain—namely, Cabututan sat in his camper instead of working on the taxis.

¶3 One morning, while Cabututan sat in his camper, he heard a sudden bang on his door. Boss had come to confront Cabututan about Cabututan's failure to do enough work. After opening the camper door, Cabututan walked past Boss, opened the door to his van and got in, and, leaving the van door open, began rolling a cigarette. For a moment, Cabututan listened as Boss "yell[ed] and scream[ed]," but he soon informed Boss that he would be moving. In response, Boss challenged him, "Come on out of there and we'll handle this."

¶4 So, as Cabututan told the police, he "stepped up to him," "[t]ook off [his] shirt[,] and came at him." But almost immediately, Boss produced a pistol. Cabututan, seeing a loaded pistol pointed straight at him, "just went into complete blank out self-defense mode," "took a swing at [Boss], and blocked ... the pistol." Boss lowered the pistol and Cabututan jumped to the side before seeing Boss raise the pistol again. Cabututan reacted quickly and "kicked [Boss] square in the nuts," but to Cabututan's surprise, "it didn't even [faze] him. He still had the pistol in his hand." When Boss raised the pistol again, Cabututan "just started dancing" and "moving around"—all amidst "a bunch of screaming" from both of them.

¶5 Eventually, Boss "reached down and picked up [a] brick," giving him "two weapons in his hand[s]" while Cabututan had none. But then Cabututan saw a shovel lying on the ground. Cabututan picked it up and swung it at Boss, but Boss "ducked to the side." Boss raised the pistol in one hand and had the brick "up ready to throw." Thinking that Boss would throw the brick, Cabututan swung the shovel again. Boss side-stepped and started to raise the pistol again, but Cabututan struck him with the shovel on the side of the head and he "dropped," falling "face first." Cabututan threw the shovel, "kind of freaked out and walked [away] and came back."

¶6 From her living-room window, Boss's wife (Wife) saw Cabututan "walking around, holding his head." When she went outside to find out what was going on, Cabututan told her that Boss "came after [him]" and pointed toward where Boss's body lay on the ground, face down. She then called 911, and Cabututan attempted to perform CPR. Despite these efforts, and the efforts of police and medical professionals, Boss died. At the scene, Cabututan provided police a statement detailing the fight's progression as described above, and later, the State charged Cabututan with murder.

¶7 At trial, defense counsel opted to pursue a theory of self-defense and conceded that Boss had died by Cabututan's hand, stating, "We all know [how Boss died]. He died—he got hit in the head with a shovel." Defense counsel, however, did object to several photos depicting both the autopsy and the crime scene. The autopsy photos showed a skull, with the scalp skinned back to reveal the internal injuries that resulted from the hit with the shovel. In defense counsel's estimation, the prejudicial impact to the jury far outweighed any probative impact that could result from the photos’ admission; he asserted that the jury would just see "a morbid, blood[y], skinned back[ ] skull." The trial court, however, disagreed, stating that because "the State is going to be proving up the cause of death and the degree of force that caused the death ... the probative value of these [photos] outweigh[ed] the prejudicial value in that" the photos went toward "the degree of force that was exerted that would have caused the demise of the individual." As

508 P.3d 1006

for the crime scene photos, the court determined that they depicted the external injury and the spatial relationship between where the body, the brick, and the pistol were found on the scene. Defense counsel objected to these photos on grounds that they "sensationalized" the on-scene treatment to elicit sympathy from the jury. But, except for one photo excluded because it was "redundant," the court allowed the photos, in part, because they "show[ed] the alleged injury," as well as "a lot of other things that the State deem[ed] relevant" but that the court did not expressly identify.

¶8 In addition to testimony about the fight as described above, the State elicited testimony from Wife about how she experienced the incident, and when asked how the incident had affected her, she responded, "It's changed my whole life. I've lost everything. I even lost my dog. He died. I mean, [I] lost my financial [security] that I had before, where I'm having to work just to survive now." And later, the State elicited testimony from the medical examiner who conducted the autopsy. The medical examiner described the autopsy photos and testified that he determined the "manner of death" was—as a medical and not a legal matter—"homicide" due to "blunt head trauma."

¶9 Following the State's case, Cabututan moved for a directed verdict. He asserted that the State had failed to carry its burden of proving that his affirmative defense of "perfect self-defense" did not apply. In response, the State argued that it had "provided sufficient evidence that the jury could find that the defendant [was] in fact guilty of murder and that in fact self-defense [did] not apply." The State asserted that the instructions would "state that if [Cabututan] ... was engaged [in] combat by agreement," then perfect self-defense would not apply. And by Cabututan's "own words" combat by agreement was "exactly what happened, and the jury could so find." The court agreed and denied the motion.

¶10 The jury instructions informed the jury that to find Cabututan guilty of murder, it would have to agree on each of the elements of murder and that perfect self-defense did not apply. The jury was also instructed that if it found him guilty of murder, it would have to determine whether imperfect self-defense applied. The jury was informed that imperfect self-defense was a "partial defense" to murder, that it applied "when the defendant caused the death of another while incorrectly, but reasonably, believing that his conduct was legally justified or excused," and that its effect would be "to reduce the level of the offense." Ultimately—whether due to a determination that only imperfect self-defense applied or because it did not believe that the State had proved the elements of murder—the jury found Cabututan guilty of the lesser included offense of manslaughter.



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