State v. Holsomback

• Court: Utah Court of Appeals
• Writing for the Court: MORTENSEN, Judge
• Citation: State v. Holsomback, 513 P.3d 82 (Utah App. 2022)
• Decision Date: 09 June 2022
• Docket Number: 20191089-CA
• Parties: STATE of Utah, Appellee, v. Kenneth Ray HOLSOMBACK, Appellant.

513 P.3d 82

STATE of Utah, Appellee,

v.Kenneth Ray HOLSOMBACK, Appellant.

No. 20191089-CA

Court of Appeals of Utah.

Filed June 9, 2022

Herschel Bullen, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee

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

Opinion

MORTENSEN, Judge:

¶1 Kenneth Ray Holsomback had just been transferred to a gang unit at the Utah State Prison and had been placed in a cell with one other prisoner (the cellmate). A few hours later, a fight broke out between Holsomback and the cellmate. Holsomback inflicted three deep puncture wounds to the cellmate's back. A search of the cell turned up a homemade knife-like weapon in the toilet. A jury found Holsomback guilty of aggravated assault by a prisoner, possession of a prohibited item, and obstruction of justice. One of the convictions was also enhanced owing to Holsomback's status as a violent habitual offender and use of a dangerous weapon. Holsomback now complains that the State presented insufficient evidence to support his convictions, along with other claims that one jury instruction and several verdict forms were defective. We affirm.

BACKGROUND

The Incident

¶2 One day in August 2018, sometime before 2:00 p.m., Holsomback was transferred to a unit at the Utah State Prison set aside for housing gang members and inmates identified as a security threat because of their behavior. On his arrival, Holsomback was X-rayed and then placed in a cell with the cellmate.

¶3 The cells in the unit were five feet wide and twelve feet long and housed two inmates; each cell had a desk, toilet, and sink, along with a bunk bed and shelf for each inmate. While the location of the unit control room did not allow prison officers to see fully into the cells, each cell was equipped with an intercom system that allowed inmates to communicate with the control room officer by pressing a button.

¶4 At around 7:25 p.m.—when Holsomback had been in the cell for at least five hours—the officer in the control room was alerted to a problem in the cell when either Holsomback or the cellmate pushed the intercom button. The officer could hear "a lot of scuffling and what sounded like ... wrestling and like a fight," "grunting," and someone saying, "Get the fuck off me." Believing "there was likely a fight going on in the cell," the control room officer radioed other officers to check on the cell's occupants. Around five officers responded to the call.

¶5 Officers looked into the cell and saw blood throughout— on the desk, floor, walls, toilet, and bottom bunk. When officers entered, they found Holsomback and the cellmate standing on opposite sides of the cell—the cellmate near the desk and Holsomback near the door and closer to the toilet. One officer testified that she did not see any "aggression" between the two of them and that they did not seem to be "wound up." The officer saw that the cellmate "had a big cut or gash in his back and he had a lot of blood on him"—"all over his back" and "some on the front." Holsomback had blood on his hands and face, but it appeared not to be his because he had "no cuts or anything." The officers escorted the cellmate to a separate holding cell for a medical evaluation.

¶6 The prison EMT noted that he "focused" his attention on the cellmate once he saw the "severity of his injuries." He saw "several puncture wounds" on "various parts" of the cellmate's body. The EMT ended up treating three stab wounds on the cellmate's back. He explained that the "narrow, long, and smooth" nature of the injuries led him to conclude they were puncture wounds. He described these injuries as "full-thickness" wounds, meaning the puncture passed "through all of the skin layers"—"through the epidermis, through the dermal tissue," and "down to the fatty tissue."

¶7 A prison investigator arrived about thirty minutes after the incident and interviewed the cellmate. The cellmate did not implicate Holsomback, but the investigator did not think he was being honest. The investigator also met with Holsomback. The investigator noted that he did not see any wounds on Holsomback and that he did not appear to be "bleeding from anywhere."

¶8 The investigator then searched the cell. Knowing that "the toilet is a place where most people try to get rid of a weapon if it's involved," the investigator looked there and saw a "white object" that appeared to be "cloth material in the bottom of the toilet." The investigator asked one of the officers to retrieve the object, which turned out to be a homemade weapon (the shank). The white cloth had a pink tint, which the investigator thought looked "like diluted blood." The shank was made of metal and was about five inches long and an inch wide with a sharpened edge and a cloth wrapping at the bottom. The shank was not tested for DNA or fingerprints.

The Proceedings

¶9 The State charged Holsomback with aggravated assault by a prisoner, see Utah Code Ann. § 76-5-103.5 (LexisNexis 2017) ; possession of a prohibited item in a correctional facility, see id. § 76-8-311.3(2); and obstruction of justice, see id. § 76-8-306(1). The State also charged Holsomback with two enhancements. It first alleged that Holsomback was a habitual violent offender because "on at least two previous occasions [Holsomback had] been convicted of a violent felony," see id. § 76-3-203.5(1)(b), which would enhance a second degree felony conviction to a first degree felony, see id. § 76-3-203.5(2)(b). Lastly, the State alleged that Holsomback used a dangerous weapon in the commission of the aggravated assault, which would increase the minimum prison term by one year. See id. § 76-3-203.8(2)(a).

¶10 At trial, the State presented testimony from the prison officers, the investigator, and the EMT. The State also introduced into evidence (1) the shank; (2) video showing the common area outside the cell before, during, and after the incident; and (3) photographs of the cellmate's injuries, Holsomback's lack of injury, and the blood on Holsomback.

¶11 At the close of the State's case, Holsomback's attorney (Counsel) moved for a directed verdict, arguing that there was "no indication" that Holsomback attacked the cellmate. Rather, Counsel argued that the cellmate "could have injured himself" or "[i]t could have been self defense." The court denied the motion, "find[ing] that a jury acting reasonably and considering the evidence in the light most favorable to the State could find each of the elements of each of the charges beyond a reasonable doubt."

¶12 Holsomback did not testify or call any witnesses to testify. However, in closing, Counsel, noting that Holsomback and the cellmate were "calm" and "compliant" when officers entered the cell, asked,

What happened in that cell? Was this a fight? If this was a fight then where is the antagonism? Where is the anger for each other? What is going on here? Well, [the cellmate] did not accuse Mr. Holsomback of anything. And so we're left with well, something happened. But that doesn't mean that a crime occurred.

She continued,

Did [the cellmate] self-harm and Mr. Holsomback try and stop him? Did [the cellmate] initiate a fight and Mr. Holsomback try to defend himself? What's going on in here? We don't know.

....

[The cellmate] could have self-harmed. Mr. Holsomback could have defended himself. Those are reasonable inferences that can be made in this case just as equally as Mr. Holsomback could have attacked [the cellmate].

¶13 Jury Instruction No. 30 set forth the aggravated assault by a prisoner charge as follows:

Kenneth Ray Holsomback is charged in Count 1 of the Information with committing Aggravated Assault by a Prisoner on or about August 10, 2018.

You cannot convict him of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. Kenneth Ray Holsomback;

2. Intentionally, knowingly, or recklessly;

3. Committed an act with unlawful force or violence that a. Caused bodily injury to [the cellmate]; or

b. Created a substantial risk of bodily injury to [the cellmate]; and

4. Used a dangerous weapon; and

5. At the time of the act, Kenneth Ray Holsomback was confined in a jail or other penal institution.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

¶14 Also relevant here is the wording of the general verdict form:

We, the jurors in the above case find beyond a reasonable doubt the verdict against the defendant

KENNETH RAY HOLSOMBACK, as follows:

Count I: Aggravated Assault by a Prisoner

____ Guilty ____ Not Guilty

Count II: Possession of Items Prohibited in Correctional Facilities

____ Guilty ____ Not Guilty

Count III: Obstruction of Justice

____ Guilty ____ Not Guilty

The jury returned a guilty verdict on each charge.

¶15 The trial was bifurcated to allow the jury to consider enhancements as to whether Holsomback was a habitual violent offender with regard to Count I and Count II and whether he used a dangerous weapon with regard to Count I. For the habitual violent offender enhancement, the State introduced certified copies of minute entries of two of Holsomback's prior felony convictions. For the dangerous weapon enhancement, the State told the jury that it must find Holsomback guilty if it believed that he "used a dangerous weapon, namely an item or object capable of causing serious bodily injury or death while committing the aggravated assault by a prisoner."

¶16 The first special verdict form, which was substantively identical to the other two special verdict forms except regarding the description of the counts and the enhancements, was worded as follows:

We, the jury,

...