                This opinion is subject to revision before final
                       publication in the Pacific Reporter

                                2019 UT 54


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Respondent,
                                      v.
                         ROBERT S. APODACA,
                             Petitioner.

                            No. 20180673
                        Filed August 29, 2019

            On Certiorari to the Utah Court of Appeals

                     Third District, Salt Lake
                The Honorable Randall N. Skanchy
                         No. 121911274

                                Attorneys:
Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Solic. Gen., Nathan
            Evershed, Salt Lake City, for respondent
             Lori J. Seppi, Salt Lake City, for petitioner


     JUSTICE HIMONAS authored the opinion of the Court in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE PEARCE, and JUSTICE PETERSEN joined.


   JUSTICE HIMONAS, opinion of the Court:
                          INTRODUCTION
    ¶1 Robert Apodaca asks us to reverse the court of appeals’
affirmance of his convictions for aggravated kidnapping,
aggravated robbery, and obstruction of justice. He contends that
the court of appeals erred in affirming the trial court’s conclusion
that his confession and other incriminating statements made to
police would have been admissible at trial as impeachment
evidence, despite an acknowledged violation of his Miranda rights,
which barred the statements from being used in the State’s case-in-
                        STATE v. APODACA
                       Opinion of the Court
chief. Additionally, he contends that the court of appeals erred in
affirming his conviction for aggravated robbery in the face of a
faulty jury instruction that improperly recited the requisite mental
state for the offense.
    ¶2 The court of appeals—following the standard we set forth
in State v. Arriaga-Luna, 2013 UT 56, ¶ 9, 311 P.3d 1028, which
echoed the United States Supreme Court’s ruling in United States v.
Washington, 431 U.S. 181, 188 (1977)—properly surveyed the totality
of the circumstances surrounding the statements made by Apodaca
and held that Apodaca’s free will was not overborne in making
them. We agree. Apodaca’s confession and statements to police
were not coerced and would have been properly admissible against
him as impeachment evidence if he had chosen to testify.
Furthermore, although the jury instruction given at trial was faulty
as to the proper mens rea required to convict Apodaca of
aggravated robbery, we also agree with the court of appeals that it
did not result in prejudice to Apodaca. Accordingly we affirm the
decision of the court of appeals in its entirety.
                         BACKGROUND
                             The Crime
    ¶3 Apodaca’s co-defendant Brandon Montoya testified at trial
that on November 28, 2012, he had purchased a small amount of
oxycodone pills from J.H., 1 a sixteen-year-old drug dealer. Later
that same day, Montoya raised the idea of robbing J.H. with
Apodaca. Montoya testified that he contacted Apodaca because
Apodaca had a car and that he asked Apodaca to bring a gun or
someone with a gun so J.H. would “give [the drugs] up without a
fight.” Apodaca agreed to the plan and promised to “bring one of
his homies.”
    ¶4 Montoya then called J.H. to arrange to purchase a large
quantity of oxycodone pills. Montoya testified at trial that,
according to their plan, he, Apodaca, and Gilbert Vigil would drive
to J.H.’s house and ask to do the drug deal in Apodaca’s car. The
plan was that once J.H. was in the car, Vigil would “just pull out
the pistol and scare him, make him give the pills up, and then kick
him out of the car.” Montoya would feign surprise and encourage
J.H. to cooperate.


____________________________________________________________
    1 Because the victim was a minor at the time of the events at

issue, we refer to him as J.H.

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                        Opinion of the Court
     ¶5 Montoya, Apodaca, and Vigil arrived at J.H.’s girlfriend’s
home and asked J.H. to do the drug deal in the car. J.H. got into the
backseat of the car. As J.H. counted the pills, Apodaca sped off.
Vigil struck J.H. in the head with a .22 caliber revolver, then
pointed it at J.H.’s head and demanded, “Give us those fucking
pills.” 2 As this happened, Montoya screamed, “Give them the pills.
. . . I don’t want to die.” J.H.’s pleas to be let out of the car were
ignored and he was unable to open the door while the car was in
motion. J.H. attempted to get the gun from Vigil, but Vigil shot him
in the stomach and multiple times in the legs. Apodaca then
stopped the car, and Montoya and J.H. got out while Apodaca and
Vigil drove away. Police arrested Apodaca after finding his car,
which had blood stains, a wet backseat, and missing floor mats.
                         Apodaca’s Interview
    ¶6 Apodaca’s interview with two detectives occurred in three
distinct segments. The first segment, a conversation between
Detective Martell and Apodaca in the squad car, was recorded. The
second segment, which was not recorded, occurred while Detective
Jensen transported Apodaca from the squad car to the interview
room. The third segment, which was recorded, was conducted by
both detectives in an interview room at the police station.
                          The First Segment
    ¶7 At the beginning of the first segment, which was recorded
in the squad car, Detective Martell told Apodaca he would explain
his rights to him. Apodaca replied, “After you give me my rights
though don’t ask me no questions cuz I answering no questions
bro.” Detective Martell recited Apodaca’s Miranda rights and
acknowledged that Apodaca had invoked his right to remain silent.
He then told Apodaca that he would give him “the opportunity to
tell . . . [his] side.”
  ¶8 Apodaca denied any wrongdoing and asked whether he
was “going to jail [that night] no matter what.” When Detective
Martell replied that he did not know whether Apodaca was going
____________________________________________________________
   2 At trial, J.H. expressed some confusion about whether it was

Apodaca or Vigil who demanded the pills. On cross-examination,
J.H. conceded he could not recall who made the statement and that
it was possible that both Apodaca and Vigil demanded the pills.
Additionally, both J.H. and Montoya testified that someone said to
“pop” or “shoot” J.H. but it was disputed as to whether this
someone was Apodaca or Vigil.

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                        Opinion of the Court
to jail, Apodaca said, “How can I not go to jail, you guys got to start
making me feel more comfortable, cuz I could help anybody as
long as I’m gonna get something in the process.” Apodaca
consistently expressed his desire to make a deal and said that he
would not incriminate himself or anyone else without getting
“someone [to] tell [him] you ain’t going to jail.” Detective Martell
said he could not make a deal, but encouraged Apodaca to talk to
him because, unlike the other detectives, he understood Apodaca’s
background and his “hard life.” Apodaca again said that he would
not talk “unless [he was] getting some deals.” Additionally,
Apodaca said, “How about you ask them what it’s gonna take for
me not to go to jail and maybe I can tell them these things if they’re
gonna guarantee me to not go to jail.”
    ¶9 Detective Martell later told Apodaca, “[T]here’s no way
that you’re not going to jail tonight.” Apodaca then asked whether
the interview was being recorded. When the detective replied that
it was, Apodaca indicated that he would be willing to disclose
more information if the recorder was turned off. Apodaca then
expressed his understanding that the detectives would add charges
against him if he did not give a statement. Detective Martell
replied, “No dude that’s not how we work . . . it’s not up to us
okay? . . . It’s up to the prosecuting [attorneys] to make a decision.”
Before Detective Jensen took custody of Apodaca, Detective Martell
asked Apodaca if he was sick or injured, to which Apodaca replied,
“I’m pretty sick to my stomach and I’m gonna need my methadone
soon in the morning . . . . [W]hen I don’t have that I can’t even
function.” Apodaca was then transported from the police car to the
interview room.
                         The Second Segment
    ¶10 Because Detective Jensen and Apodaca conversed in the
forensic area while Apodaca was being transported, there is an
unrecorded “second segment” of his interview with police. The
trial court heard testimony from Apodaca and Detective Jensen
about the content of this unrecorded conversation. According to
Apodaca, he invoked his right to remain silent during the first
segment, but changed his mind and decided to waive his rights
because of the exchange he had with Detective Jensen in the second
segment. Apodaca said Detective Jensen told him that if he
explained what happened, Detective Jensen would “write the DA
and . . . make sure that [Apodaca would be] out by Christmas
Day.” Apodaca testified that he understood this as a “guaranteed”
promise that he would be treated with leniency if he cooperated.


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He testified that if he had not received this promise, he would not
have talked to police.
   ¶11 According to Detective Jensen, “no deal was ever made”
during the second segment of the interview, and he did not give
Apodaca “any definite answers about jail or Christmas.” Detective
Jensen testified that he “struck up a conversation” with Apodaca
about tattoos in the forensics area of the police station after
Apodaca became upset when he overheard Detective Jensen telling
a technician that Apodaca may be charged with attempted
homicide. Apodaca asked about the charges and expressed that he
was “concerned about going to jail” and “did not want to snitch.”
Detective Jensen told Apodaca that “now was a good time to
cooperate if he was willing to do it.”
    ¶12 According to Detective Jensen, Apodaca expressed concern
that “his cooperation would not get back to the prosecutors in
charge of his case,” so Detective Jensen told Apodaca that if he
decided to cooperate, he, Detective Jensen, “would let the
prosecution know that he decided to cooperate and take
responsibility.” The detective testified that when he said he was
giving his word to Apodaca, he was only reassuring Apodaca that
he would pass along the information about Apodaca’s cooperation
to the prosecuting attorneys.
                         The Third Segment
   ¶13 The third segment took place in an interview room with
Detectives Martell and Jensen and was recorded. The interview
transcript begins with the following exchange:
      [Apodaca]: I just hope that prosecuting attorney sees
      how much I’m giving up.
      [Det. Jensen]: I guarantee they will.
      [Apodaca]: I just hope I get out.
      [Det. Jensen]: Hey you’ve got my word alright.
      [Apodaca]: That would be the shit if I was out by
      Christmas man.
      [Det. Jensen]: No I hear ya.
   ¶14 After Detective Jensen repeated Apodaca’s Miranda rights,
Apodaca began making incriminating statements but did not
identify the shooter. Detective Jensen told Apodaca that he already
knew “everything” but was giving Apodaca “a chance to let [him]
know [what happened]” because “it always looks better if you

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                          STATE v. APODACA
                         Opinion of the Court
cooperate.” Apodaca then told his story, which involved admitting
to the plan to rob J.H. of a “big amount” of pills and his function as
getaway driver. He also admitted to knowledge of the portion of
the plan involving scaring J.H. with a gun, and talked about his
own actions cleaning out his car and disposing of evidence.
Apodaca expressed reluctance to identify the shooter, explaining, “I
guess I have to go to jail because . . . I can’t do that man. It’s gonna
be me on the paperwork snitching on my homeboy.” Apodaca also
expressed concern that he would be in danger when he was
released from jail if he identified anyone. Detective Jensen assured
him, “When you get out . . . [if] you feel like you’re in jeopardy you
need to call me and I will take care of it.”
   ¶15 Detective Martell entered the room and encouraged
Apodaca to cooperate but said, “I can’t guarantee what’s going to
happen in court, but I, I could tell you that it’s gonna be helpful to
know that you’re being cooperative, and that’s all we’re trying to
do here is give you the opportunity to do so.” Apodaca asked if his
cooperation would “make [him] go home faster” and Detective
Martell responded, “I can’t promise you something that I can’t
guarantee . . . I want you to tell me the truth of what you witnessed
and I guarantee you that [the prosecutors are] gonna look at that
hard and they’re gonna realize that you’re being helpful with this
investigation.” At the end of the interview, Apodaca asked
Detective Martell how long he thought he would spend
incarcerated and Detective Martell replied, “[I]t’s not up to us[,] it is
something that the, the courts make a decision on.”
                           Procedural History
    ¶16 Apodaca was charged with one count of aggravated
kidnapping, one count of aggravated robbery, one count of
obstruction of justice, and four counts of felony discharge of a
firearm. The aggravated robbery and the discharge of a firearm
charges were based on a theory of accomplice liability.
    ¶17 Before the case went to trial, Apodaca moved to suppress
the incriminating statements he made to police, asserting that police
obtained his statements in violation of his Miranda rights. Apodaca
also argued that his statements were obtained through coercive
inducement in violation of his Fifth Amendment and Fourteenth
Amendment rights, and that his statements were therefore
involuntary and could not be used against him for any purpose.
   ¶18 The State stipulated to the Miranda violation and agreed to
not use Apodaca’s statements in its case-in-chief, but argued that
the statements were voluntary and therefore admissible for

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                       Opinion of the Court
impeachment purposes. After conducting an evidentiary hearing,
the trial court found that the confession was voluntary and ruled
that Apodaca’s statements could be used for impeachment because
“there was no coercion or duress associated with the statements.”
The court explained,
      [O]n the spectrum of this idea of trickery or
      coercion—the suggestion that somebody . . . engages
      in voluntary conversations doesn’t rise to the level of
      what might otherwise be duress or coercion, nor is a
      promise to pass on information associated with Mr.
      Apodaca’s cooperation, which is what this Court
      understands that testimony to be—an inducement
      for which somehow would obviate the voluntary
      nature of freely given information.
    ¶19 In opening statements at trial, Apodaca’s defense counsel
argued that Apodaca was compelled to play the role of getaway
driver. Defense counsel stated that Apodaca thought he was simply
engaging in a drug deal and did not know that Vigil had a gun.
Defense counsel also argued that Apodaca obeyed Vigil’s orders to
drive because he was afraid of Vigil and that Apodaca “didn’t assist
anyone,” “was doing what he was told, [and was] found in the
circumstances that he didn’t want to be in.” Additionally, defense
counsel explained to the jury that Apodaca had planned to testify in
his own defense. 3
    ¶20 At the end of the trial, the court instructed the jury on
accomplice liability and relevant mental states. Relevant to this
appeal, the instruction for aggravated robbery stated that the jury
had to find beyond a reasonable doubt that Apodaca “intended that
Gilbert Vigil commit the crime of Aggravated Robbery; or was
aware that his conduct was reasonably certain to result in Gilbert
Vigil committing the crime of Aggravated Robbery.” In other
words, the jury instruction allowed the jury to convict Apodaca of
aggravated robbery if he acted intentionally or knowingly. The jury
acquitted Apodaca on all four counts of felony discharge of a
firearm, but convicted him of aggravated kidnapping, aggravated
robbery, and obstructing justice. Apodaca appealed.

____________________________________________________________
   3 Because of the trial court’s ruling on Apodaca’s motion to

suppress, Apodaca did not testify at trial because doing so would
have subjected him to impeachment with his confession and
incriminating statements.

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                          STATE v. APODACA
                        Opinion of the Court
    ¶21 Apodaca argued two issues before the court of appeals: (1)
that the trial court erred in holding that his statements to police
were voluntary, and (2) that the trial court improperly instructed
the jury that it could convict him of aggravated robbery as a party if
it found that he acted knowingly. See State v. Apodaca, 2018 UT App
131, ¶¶ 31–32, 428 P.3d 99. Apodaca raised the instruction issue
under plain error, manifest injustice, and ineffective assistance of
counsel. Id. ¶ 32.
    ¶22 The court of appeals held that the trial court correctly ruled
that the statements were not coerced and that Apodaca could not
show prejudice from the faulty jury instructions. In doing so, the
court of appeals considered the totality of the circumstances—
including “the details of the interrogation” and “the characteristics
of the accused”—in determining that Apodaca’s statements were
not coerced. Id. ¶ 36. Regarding the alleged Christmas release
promise made during the unrecorded second segment, the court of
appeals found that the trial court’s ruling implied that it believed
Detective Jensen—who testified that he merely promised to relay
any cooperation to the prosecuting attorney—and disbelieved
Apodaca. Id. ¶ 43. Accordingly, the court of appeals found that the
alleged promises did not weigh in favor of coercion. Id. ¶ 46.
However, the court of appeals did find that the Miranda violation
weighed in favor of coercion. Id. ¶ 50. But because it found that no
other factors indicated coercion, the court of appeals held that,
under a totality of the circumstances, Apodaca’s statements were
made voluntarily and were therefore admissible for impeachment
purposes. Id. ¶ 67.
    ¶23 The court of appeals also found that the aggravated
robbery instruction was incorrect as to the mens rea required to
convict Apodaca, and that counsel had performed deficiently by
not objecting to it. Id. ¶¶ 70–76. Specifically, the jury instruction on
aggravated robbery allowed the jury to convict Apodaca for
knowing conduct when aggravated robbery rightfully requires a
finding of intentional conduct. Id. However, the court of appeals
agreed with the State that Apodaca had not shown that this
instruction was prejudicial because he did not show that there was
a reasonable likelihood that the jury could conclude he acted
knowingly without also concluding that he acted intentionally. Id.
¶ 84. Additionally, it found insufficient evidentiary support for
Apodaca’s assertion that he had acted out of fear. Id. ¶ 79.
Accordingly, the court of appeals ruled that the faulty jury
instruction did not prejudice Apodaca. Id. ¶ 85.


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                        Opinion of the Court
   ¶24 We exercise       jurisdiction under     Utah Code       section
78A-3-102(3)(a).
                     STANDARD OF REVIEW
   ¶25 On certiorari, “we review the decision of the court of
appeals and not that of the trial court.” Longley v. Leucadia Fin.
Corp., 2000 UT 69, ¶ 13, 9 P.3d 762. We review the court of appeals’
decision for correctness. State v. Trujillo, 2019 UT 5, ¶ 9, 439 P.3d
588. “The correctness of the court of appeals’ decision turns, in part,
on whether it accurately reviewed the trial court’s decision under
the appropriate standard of review.” State v. Levin, 2006 UT 50,
¶ 15, 144 P.3d 1096.
                             ANALYSIS
    ¶26 The court of appeals’ robust opinion admirably analyzes
both the facts and the law behind Apodaca’s case. We see little to
correct in its analysis. We do, however, take time to flag a potential
issue regarding the appropriate standard of review when analyzing
a trial court’s determination of voluntariness. And we note the need
for trial courts to clarify and explain any implicit findings they
make. We also highlight the holistic and open-ended nature of the
totality of circumstances analysis required of the court when
assessing whether confessions or incriminating statements made to
police were coerced, and therefore not given voluntarily. Lastly, we
affirm the court of appeals’ holding that the jury instructions
regarding aggravated robbery were not prejudicial.
  I. APODACA’S STATEMENTS WERE VOLUNTARILY MADE
      AND THEREFORE ADMISSIBLE FOR IMPEACHMENT
    ¶27 Neither party disputes that Apodaca’s statements were
obtained in violation of his Miranda rights and were therefore
unavailable for the state’s case-in-chief. We have echoed the United
States Supreme Court in holding that individuals are protected
from being compelled to incriminate themselves under the Fifth
and Fourteenth Amendments to the United States Constitution. See
State v. Arriaga-Luna, 2013 UT 56, ¶ 9, 311 P.3d 1028. But we have
also agreed with the United States Supreme Court that, while
statements “taken in violation of only the prophylactic Miranda
rules may not be used in the prosecution’s case in chief, they are
admissible to impeach conflicting testimony by the defendant.”
State v. Troyer, 910 P.2d 1182, 1190 (Utah 1995) (quoting Michigan v.
Harvey, 494 U.S. 344, 350–51 (1990)). The rationale for this rule is
that “if defendants exercise their right to testify on their own behalf,
they assume a reciprocal ‘obligation to speak truthfully and
accurately.’” Id. (quoting Harvey, 494 U.S. at 351). The law does not
                                   9
                           STATE v. APODACA
                         Opinion of the Court
allow “a defendant to ‘turn the illegal method by which evidence in
the Government’s possession was obtained to his own advantage,
and provide himself with a shield against contradiction of his
untruths.’” Id. (quoting Harvey, 494 U.S. at 351). In this case, the trial
court ruled that Apodaca’s statements were available to be used as
impeachment evidence as the prior inconsistent statements of a
declarant if he chose to testify. 4 Legally, such statements, in this
case those made by Apodaca in violation of his Miranda rights, are
admissible as impeachment evidence if they are made voluntarily.
    ¶28 “The ultimate goal of analyzing whether a confession was
coerced” and therefore involuntary “is to determine ‘whether,
considering the totality of the circumstances, the free will of the
witness was overborne.’” Arriaga-Luna, 2013 UT 56, ¶ 9 (quoting
United States v. Washington, 431 U.S. 181, 188 (1977)). It may be true
that no one single issue or specific circumstance is egregious
enough by itself to qualify as coercive. However, coercion may still
result from the cumulative effect of many relatively minor issues. This is
a review of the totality as a totality, not a checklist of discrete and
isolated factors. “[T]he totality of circumstances [includes] both the
characteristics of the accused and the details of the interrogation.”
State v. Rettenberger, 1999 UT 80, ¶ 14, 984 P.2d 1009 (alterations in
original) (citation omitted) (internal quotation marks omitted). And
we have noted that “as interrogators have turned to more subtle
forms of psychological persuasion, courts have found the mental
condition of the defendant a more significant factor in the
‘‘voluntariness’ calculus.” Id. ¶ 15 (citation omitted) (internal
quotation marks omitted). “Additionally, for a confession to be
involuntary there must be a causal connection between the coercion
and the confession.” Arriaga-Luna, 2013 UT 56, ¶ 10. The State bears
the burden of demonstrating “by a preponderance of the evidence




____________________________________________________________
    4 Not all impeachment evidence is admissible. Due to the

Miranda violation, Apodaca’s statements to the detectives were not
admissible in the State’s case-in-chief. However, if Apodaca were to
testify, they could have been introduced as prior inconsistent
statements. See UTAH R. EVID. 801(d)(1)(A) (“A statement that meets
the following conditions is not hearsay: The declarant testifies and
is subject to cross-examination about a prior statement, and the
statement: is inconsistent with the declarant’s testimony . . . .”)


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                         Opinion of the Court
that the statement was made voluntarily.” Rettenberger, 1999 UT 80,
¶ 45 (citation omitted) (internal quotation marks omitted). 5
    ¶29 The court of appeals did an excellent job in reviewing the
trial court’s determination of voluntariness. And we agree with the
court of appeals that Apodaca’s statements to police were not the
product of coercion. The court of appeals conducted a thorough
analysis addressing Apodaca’s arguments “regarding the
detectives’ use of threats and promises[,] . . . the conceded Miranda
violation, the false friend technique, misrepresentations, isolation,
denial of medication, and the alleged use of Apodaca’s subjective
characteristics to coerce his confession.” State v. Apodaca, 2018 UT
App 131, ¶ 39, 428 P.3d 99. Because we agree with the court of
appeals’ opinion, we quote from its analysis extensively.6

____________________________________________________________
    5 We pause to note that, since Apodaca’s original trial, we have

updated the Utah Rules of Evidence by the passage of rule 616(b),
which states that “evidence of a statement made by the defendant
during a custodial interrogation in a place of detention shall not be
admitted against the defendant in a felony criminal prosecution
unless an electronic recording of the statement was made and is
available at trial.” Accordingly, law enforcement should record all
statements made in places of detention.
   6  We have previously said that the “ultimate determination of
voluntariness is a legal question; accordingly, we review the district
court’s ruling for correctness.” Rettenberger, 1999 UT 80, ¶ 10. Based
on this language, both parties, and hence the court of appeals,
advanced a correctness analysis. But the voluntariness analysis
requires an inquiry into the “totality of the circumstances” of the
individual case to understand whether the “free will of the witness
was overborne.” Arriaga-Luna, 2013 UT 56, ¶ 9 (citation omitted)
(internal quotation marks omitted). Therefore, the question of
voluntariness is a legal standard applied to and guided by specific
facts. We question if this is in fact more akin to a mixed question of
law and fact than a naked legal issue. See Murray v. Utah Labor
Comm’n, 2013 UT 38, ¶ 24, 308 P.3d 461 (“Mixed questions
‘involv[e] application of a legal standard to a set of facts unique to a
particular case.’”) (alteration in original) (citation omitted) (internal
quotation marks omitted). And, indeed, many other jurisdictions
have recognized the mixed nature of the review of voluntariness.
See, e.g., People v. Humphrey, 132 P.3d 352, 364 (Colo. 2006) (Coats, J.,
concurring in part and dissenting in part) (“[A]n ultimate finding of
voluntariness has come to be understood as a mixed question of
                                                           (continued . . .)

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                          STATE v. APODACA
                        Opinion of the Court
                         Threats and Promises
   ¶30 Apodaca first argues that his will was overcome as a result
of threats and promises made by the detectives. Specifically,
Apodaca asserts that Detective Jensen promised him that he would
be out by Christmas if he cooperated. According to Apodaca, he
understood this as a guaranteed promise of leniency and would not
have waived his rights without such a promise. However, the State
argues that Detective Jensen only promised to “relay any
of Apodaca’s cooperation to the prosecuting attorney.” The trial
court found that the detective only promised to relay Apodaca’s
cooperation to the prosecution—and therefore the promise was not
coercive—and the court of appeals ruled that the trial court’s
finding was not clear error. Id. ¶ 42.
   ¶31 We have said that “[t]he mere representation to a
defendant by officers that they will make known to the prosecutor
and to the court that [the defendant] cooperated with them” is not a
coercive promise. State v. Strain, 779 P.2d 221, 225 (Utah 1989). The


fact and law . . . .”); Linares v. State, 471 S.E.2d 208, 211 (Ga. 1996)
(“The issue [of voluntariness] presents a mixed question of fact and
law.”); Rosky v. State, 111 P.3d 690, 694 (Nev. 2005) (noting that
“voluntariness determinations present mixed questions of law and
fact”). In mixed questions the “applicable standard [of review]
depends on the nature of the issue and the marginal costs and
benefits of a less deferential, more heavy-handed appellate touch.”
In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. We have
articulated how this cost-benefit analysis should be conducted
through the three-factor Levin evaluation. See, e.g., Sawyer v. Dep’t of
Workforce Servs., 2015 UT 33, ¶ 12, 345 P.3d 1253 (citing State v.
Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096).
    We acknowledge that here this may be a distinction without a
difference. Even if we were to say that voluntariness is a mixed
question of law and fact, an analysis under the Levin factors may
well show voluntariness questions to be heavily “law-like,” in
which case we would still review the district court’s decision with
minimal deference. Because neither the court of appeals nor this
court were asked to do so, we do not undertake such an analysis
here. We do, however, note this hiccup in our precedent and invite
briefing in future cases on what the appropriate standard of review
should be when reviewing trial court determinations of
voluntariness.



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district court found that Detective Jensen only promised Apodaca
that he would relay Apodaca’s cooperation to the prosecuting
attorney. As noted above, see supra ¶ 22, this finding required
implicitly finding that Detective Jensen was more credible than
Apodaca. And because the trial court did not explain this implicit
finding, it deserves less deference than we would normally afford a
trial court’s findings of fact. Nevertheless, Apodaca has failed to
demonstrate error in the trial court’s finding, even under a less
deferential standard of review. Although the third interview
segment begins with Apodaca expressing that he would like to be
released by Christmas, there is nothing else in the recorded
interviews to suggest that the detectives made any promise
regarding Apodaca’s release. Instead, the recorded interviews are
replete with instances of the detectives explaining to Apodaca that
they cannot make any guarantees and that the prosecuting attorney
would make the final decisions, not the detectives. Accordingly, we
cannot say that the trial court’s finding was in error and therefore
this fact, on its own, does not tend to demonstrate that Apodaca’s
testimony was coerced. See Strain, 779 P.2d at 225. We leave for later
whether, when all the factors are considered in their totality,
Apodaca’s statements were coerced.
                      The Guarantee of Leniency
    ¶32 Apodaca’s second argument is closely related to his first.
He asserts that his statements were coerced because the detectives
guaranteed him leniency in exchange for his cooperation.
Specifically, Apodaca points to Detective Jensen’s statements that
“it always look[s] better to cooperate” and that he would “let the
prosecution know” about Apodaca’s cooperation. The court of
appeals held that such statements were not coercive because the
detectives repeatedly stated that they could not make promises or
guarantees to Apodaca regarding his incarceration. Apodaca, 2018
UT App 131, ¶ 49.
    ¶33 We agree with the court of appeals that the detectives did
not make any guarantee of leniency to Apodaca in return for his
cooperation. The detective’s statements to Apodaca that the
prosecutors would “look at [his cooperation] hard and . . . realize
that [he was] being helpful with this investigation” were not a
guarantee of leniency when viewed in the full context of the
interview—as the court of appeals carefully clarified. 7 Id. ¶ 48. This
____________________________________________________________
7 “[T]he statement’s context demonstrates that it was not made to

coerce a confession from Apodaca about his involvement in the
                                                         (continued . . .)

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                          STATE v. APODACA
                         Opinion of the Court
is especially clear from the detective’s response to Apodaca when
Apodaca asked if he could go home faster if he cooperated, to
which the detective replied, “I can’t promise you something that I
can’t guarantee.” As the court of appeals noted, “[o]n its face and in
context, the detective’s statement does not guarantee Apodaca a
certain result. Instead, the context shows that the detective was
suggesting to Apodaca that cooperating would be his best option;
such a suggestion is not coercive.” Id. We agree. Accordingly, this
alone does not tend to demonstrate coercion. But we leave for later
the effect these statements have on a totality analysis.
                         The Miranda Violation
    ¶34 Apodaca’s third argument is that his statements were
coerced because they were taken in violation of his Miranda rights.
The State conceded that a Miranda violation occurred during the
initial interview with Apodaca and accordingly did not use
Apodaca’s statements in its case-in-chief. The only remaining
question is whether this violation was so coercive as to render his
statements involuntary, and therefore inadmissible for
impeachment purposes. We agree with the trial court and the court
of appeals that the Miranda violation favors a finding of coercion,
but is alone insufficient for a finding of coercion. See id. ¶ 50 (“[A]
Miranda violation alone is insufficient grounds for suppressing
statements offered to impeach the defendant’s testimony.”
(alteration in original) (citation omitted) (internal quotation marks
omitted)).
    ¶35 In this case, Apodaca’s statements, while obtained in
violation of Miranda, are still admissible for impeachment purposes
unless our totality of the circumstances review proves them to be
coerced. See Met v. State, 2016 UT 51, ¶ 54, 388 P.3d 447. The
violation is itself part of the totality analysis and certainly weighs in
favor of Apodaca’s case. But as the court of appeals noted, it alone
is insufficient to prove coercion and we leave for later analysis
whether Apodaca’s statements were coerced.




crime; the detective was encouraging Apodaca to identify the
shooter rather than assume greater responsibility for the crime.”
Apodaca, 2018 UT App 131, ¶ 48 n.8; cf. Strain, 779 P.2d at 226
(explaining that police conduct is impermissibly coercive when it
“carrie[s] a threat of greater punishment or a promise for lesser
punishment depending on whether [the accused] confesse[s]”).

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                        Opinion of the Court
                        False Friend Technique
   ¶36 Apodaca’s fourth argument is that Detective Martell used
the false friend technique to coerce statements from Apodaca.
Specifically, Apodaca points to Detective Martell’s statements that
he understood Apodaca’s “hard life” and that other officers might
not be so understanding, and Detective Jensen’s offer to protect
Apodaca from retribution if he named the shooter. The court of
appeals held that these facts did not weigh in favor of a finding of
coercion. Apodaca, 2018 UT App 131, ¶ 54. We agree.
    ¶37 As the court of appeals noted, “[t]he false friend technique
is one ‘whereby the interrogator represents that he is a friend acting
in the suspect’s best interest.’” Id. ¶ 52 (citation omitted). “Standing
alone, the false-friend technique is not sufficiently coercive to
produce an involuntary confession, but may be significant in
relation to other tactics and factors.” Id. (citation omitted) (internal
quotation marks omitted). Additionally, the false friend technique
may be coercive if the defendant suffers from some form of
cognitive impairment. See Rettenberger, 1999 UT 80, ¶ 26.
    ¶38 In this case, Apodaca has not shown that any cognitive
impairment made him especially susceptible to the false friend
technique. While it was clear that both detectives tried to establish
rapport with Apodaca, the statements made by both detectives
simply demonstrate a desire to work with Apodaca to solve the
case. The statement that comes closest to coercing Apodaca through
the false friend technique is Detective Jensen’s offer to protect
Apodaca if he gave the name of the shooter. But as the court of
appeals stated, “the detective’s offer to personally protect Apodaca
was made after Apodaca had implicated himself and in response to
Apodaca’s expression of concern about retaliation if he were to
name the shooter.” Apodaca, 2018 UT App 131, ¶ 54. Therefore, it is
highly unlikely that any of Apodaca’s incriminating statements
were given solely based on Detective Jensen’s offer of protection.
Because Apodaca has not shown that he was highly susceptible to
the false friend technique, and because Apodaca gave incriminating
statements before the alleged use of the false friend technique, these
facts do not weigh in favor of a finding of coercion. We leave the
effect of these facts on our totality analysis for later.
                          Misrepresentations
   ¶39 Apodaca’s fifth argument regarding coercion is that the
detectives made several misrepresentations that overbore his will.
Specifically, Apodaca points to Detective Martell’s statement at the
beginning of the first interview that, “my opportunity here is not to

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                        Opinion of the Court
question you, not to interrogate you but to give you the
opportunity to tell me your side.” In Apodaca’s view, these
statements were designed to make Apodaca underestimate the
importance of the conversation and believe that cooperation was in
his best interest. Additionally, Apodaca claims that the detectives
misrepresented the strength of the evidence when they told him
that they already knew everything and that they just needed to hear
it from him. The court of appeals concluded that Apodaca had not
demonstrated that any of these representations were sufficient to
overcome his will. Id. ¶ 56.
    ¶40 We agree with the court of appeals that the detectives
made no misrepresentations to Apodaca sufficient to overbear his
will. With respect to Detective Martell’s statement regarding the
purpose of the conversation, we cannot say that this statement was
misleading. While the detective was obviously trying to extract
information from Apodaca, Apodaca has presented no evidence to
suggest that it was misleading for Detective Martell to tell Apodaca
that he had an opportunity to tell his side of the story. And with
respect to the statements regarding the strength of the State’s
evidence, “[w]e have recognized that ‘[a] defendant’s will is not
overborne simply because he is led to believe that the government’s
knowledge of his guilt is greater than it actually is.’” Rettenberger,
1999 UT 80, ¶ 20 (second alteration in original) (citation omitted).
Accordingly, these facts do not tend to weigh in favor of a finding
of coercion, but we leave their effect on our totality analysis for
later.
                       Isolation and Medication
    ¶41 Apodaca’s next argument centers on his isolation and his
methadone prescription. Apodaca argues that his statements were
coerced because he was questioned late at night in a police vehicle
and in an interrogation room, and because the detectives denied his
requests to speak to his girlfriend. Additionally, Apodaca asserts
that his statements were coerced because he needed access to his
methadone prescription by morning. The court of appeals held that
Apodaca did not suffer or experience a level of isolation that would
amount to coercion, Apodaca, 2018 UT App 131, ¶ 59, and that
Apodaca was not denied any request for immediate medical
attention, id. ¶ 62.
    ¶42 In the past, we have found that five to six hour
interrogations are not in and of themselves coercive. See State v.
Ashdown, 296 P.2d 726, 729 (Utah 1956); see also State v. Leiva-Perez,
2016 UT App 237, ¶¶ 14–15, 391 P.3d 287. Apodaca’s isolation while

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                        Opinion of the Court
being interviewed was at most four hours, and Apodaca has not
pointed to other facts to suggest that his isolation rose to a coercive
level. While the detectives ignored his request to speak with his
girlfriend, Apodaca only made one request before he began making
incriminating statements. Apodaca, 2018 UT App 131, ¶ 60. In other
words, the detectives did not repeatedly deny Apodaca access to
his friends or family. Accordingly, this factor does not weigh in
favor of coercion.
    ¶43 We also agree with the court of appeals that Apodaca was
not denied medication during the course of his interrogation.
During the first segment of the interview, Apodaca told the
detective “I’m pretty sick to my stomach and I’m gonna need my
methadone soon in the morning . . . . [W]hen I don't have that I
can't even function.” We agree with the court of appeals that this
amounts to a request for future medication and does not express
any immediate need. We see no evidence that Apodaca told the
detectives then, or at any later point, that he had an urgent need for
medication, and the detectives never conditioned receipt of
medication on his cooperation. “Because the record does not
support Apodaca’s claim regarding the denial of medication, this
factor weighs against a conclusion of coercion.” Id. ¶ 62.
                 Apodaca’s Subjective Characteristics
   ¶44 Finally, Apodaca argues that the detectives exploited his
subjective characteristics, namely his lack of legal training and his
desire to avoid jail, in order to coerce his statements. The court of
appeals found that Apodaca did not exhibit any subjective
characteristics that would make him especially susceptible to
coercion. Id. ¶ 66. We agree.
   ¶45 Courts consider a defendant’s “subjective characteristics,
especially as known to the interrogating officers, to determine the
extent to which those characteristics made [them] more susceptible
to manipulation.” Rettenberger, 1999 UT 80, ¶ 37. We share the court
of appeals’ view that the record in this case does not support
Apodaca’s argument that he was especially susceptible to
manipulation. Apodaca was in constant negotiation with the
detectives for a deal, and expressed on multiple occasions his
awareness of his rights and of the paperwork that would be filed
should he speak out against his accomplices. Even though Apodaca
may not have any formal legal training, he appears throughout the
record to have a detailed understanding of the criminal system and
the rights that the system affords to him. Furthermore, Apodaca’s
desire to avoid jail is hardly a subjective characteristic that would

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                          STATE v. APODACA
                        Opinion of the Court
make someone especially susceptible to manipulation.8
Additionally, “Apodaca does not cite any evidence that his mental
health, mental deficiency, [or] emotional instability affected the
voluntariness of his statements to the detectives, and our review of
the record reveals none.” Apodaca, 2018 UT App 131, ¶ 66
(alteration in original) (citation omitted) (internal quotation marks
omitted). Accordingly, this factor does not weigh in favor of
coercion.
                   Cumulative Effect of the Evidence
    ¶46 We conclude by reemphasizing that this review is meant to
be a total and cumulative inquiry. There may be a hypothetical
circumstance in which all factors considered in isolation do not rise
to the level of compulsion, but when taken together can weigh in
favor of coercion. However, in this case we agree with the court of
appeals that the totality of the circumstances demonstrates that
Apodaca’s statements to police were made voluntarily. Only one
factor, the Miranda violation, weighs in favor of coercion.
Otherwise, the record conclusively demonstrates that Apodaca’s
will was not overcome. From the start, Apodaca demonstrated that
he was a shrewd negotiator and had a good understanding of what
was going on. While the detectives tried to build rapport with
Apodaca by promising to relay his cooperation to the prosecuting
attorneys, the detectives never made promises or guarantees that
would have overcome Apodaca’s free will. Nor did the detectives
deny Apodaca access to friends, family, or medication, or threaten
Apodaca in any way such that he would have felt coerced to make
incriminating statements. Accordingly, Apodaca has not
demonstrated that his confession and statements were coerced, and
therefore we affirm the court of appeals.
     II. THE AGGRAVATED ROBBERY JURY INSTRUCTION
    ¶47 Apodaca next challenges his conviction of aggravated
robbery due to the fact that the jury was improperly instructed as to
the appropriate mens rea required for the offense. Although the
court of appeals agreed that Apodaca’s defense counsel performed
deficiently by not objecting to the incorrect instruction, the court
held that Apodaca was not prejudiced because Apodaca “fail[s] to
articulate a theory of the evidence that supports his contention that
____________________________________________________________
    8 If the opposite were true, then it would seem to follow that the

majority of the general populace would be especially susceptible to
manipulation. Indeed, it is difficult to imagine that the vast majority
of people do not desire to avoid jail.

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                        Opinion of the Court
it is reasonably likely that the jury found that his participation in
the aggravated robbery was knowing but not intentional.” State v.
Apodaca, 2018 UT App 131, ¶ 79, 428 P.3d 99. We agree. 9
    ¶48 In order to be convicted of a crime, the State must prove
that the defendant acted “with the mental state required for the
commission of an offense.” UTAH CODE § 76-2-202. “[A]ccomplice
liability adheres only when the accused acts with the mens rea to
commit the principal offense.” State v. Calliham, 2002 UT 86, ¶ 64, 55
P.3d 573. The parties agree that the elements of the principal
offense, aggravated robbery, required intentional conduct.
Therefore, Apodaca could be convicted of aggravated robbery
under an accomplice theory of liability only if the jury found that he
acted intentionally.
    ¶49 But the jury was instructed to find Apodaca guilty beyond
a reasonable doubt if he “intended that Gilbert Vigil commit the
crime of Aggravated Robbery; or was aware that his conduct was
reasonably certain to result in Gilbert Vigil committing the crime of
Aggravated Robbery.” This is an incorrect statement of law. While
the instruction correctly allowed the jury to find Apodaca guilty of
aggravated robbery if it found he acted intentionally, the
instruction also permitted the jury to find Apodaca guilty of
aggravated robbery if he acted merely knowingly rather than
intentionally. This error thus allowed for a conviction at a lower
threshold of mental culpability. However, this error is not enough
to overturn a conviction without a showing of prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
    ¶50 To show prejudice, Apodaca must demonstrate that “but
for the error, there is a reasonable probability that the verdict
would have been more favorable to [him].” State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993), abrogated on other grounds by State v. Silva,
2019 UT 36, ---P.3d---. As the court of appeals noted, this
requirement “is a relatively high hurdle to overcome.” Apodaca,
2018 UT App 131, ¶ 77 (quoting State v. Garcia, 2017 UT 53, ¶ 44, 424
P.3d 171). Most notably this means that a mere potential effect on
the outcome is not enough. See Strickland, 466 U.S. at 693. Instead,
“[t]he likelihood of a different result must be substantial.”

____________________________________________________________
   9  Because we ultimately conclude that Apodaca was not
prejudiced by the erroneous instruction, we need not consider
whether counsel’s failure to object to the instruction constituted
deficient performance.

                                 19
                         STATE v. APODACA
                        Opinion of the Court
Harrington v. Richter, 562 U.S. 86, 112 (2011). Apodaca has failed to
carry this burden.
    ¶51 In assessing whether Apodaca was prejudiced, we “must
consider the totality of the evidence before the judge or jury and
then ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors.” See Garcia, 2017 UT 53, ¶ 42 (citation omitted)
(internal quotation marks omitted). Put another way, we ask
whether the “failure to instruct the jury properly undermines
confidence in the verdict.” Id. In this case, that inquiry focuses on
whether there is a reasonable probability that the jury found
Apodaca acted knowingly, rather than intentionally, with respect to
the aggravated robbery charge. We agree with the court of appeals
that Apodaca has not demonstrated such a probability.
    ¶52 Apodaca has not shown prejudice because the evidence
presented at trial amply demonstrated that he actively and
intentionally planned, participated in, and attempted to cover up
the aggravated robbery. J.H. testified that Apodaca drove away
while he was counting out the pills, encouraged the handing over
of said pills, and told his friend to shoot J.H. when J.H. did not
comply. Apodaca’s co-defendant testified that Apodaca had a
detailed agreement with him to rob the victim, drive the car, and
bring along a “homie” with a gun. As the State points out, this set
of facts matches many of our precedents affirming convictions for
aggravated robbery as an accomplice. See, e.g., State v. Jimenez, 2012
UT 41, ¶ 14, 284 P.3d 640 (affirming a conviction for aggravated
robbery as an accomplice where defendant acted as getaway driver
and knew that co-defendant had a gun during the robbery); State v.
Smith, 706 P.2d 1052, 1056 (Utah 1985) (affirming a conviction for
aggravated robbery as an accomplice where defendant helped plan
and recruit other co-defendants and drove the getaway vehicle).
    ¶53 We have said that “there exists a narrow set of
circumstances where a person may act ‘knowingly’ without acting
‘intentionally.’” State v. Casey, 2003 UT 55, ¶ 47, 82 P.3d 1106.
However, “most ‘knowing’ conduct also fits accurately within the
statutory definition of ‘intentional’ conduct.” Id. Therefore, despite
the ineffectiveness of Apodaca’s counsel it is still his “burden to
show that he was prejudiced by his counsel’s performance” by
demonstrating how the jury could have reasonably concluded that
he acted knowingly without also concluding that he acted
intentionally. Garcia, 2017 UT 53, ¶ 37. This he has failed to do.
Besides the mere suggestion that “it is reasonably likely that the
jury would have acquitted him of aggravated robbery if it believed

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                       Opinion of the Court
he did not originally plan to rob [J.H.], Apodaca has not articulated
how the jury reasonably could have concluded that he acted
knowingly without also concluding that he acted intentionally.”
Apodaca, 2018 UT App 131, ¶ 84. Accordingly, Apodaca has not
demonstrated that there is a reasonable probability that the verdict
would have been more favorable to him if the jury instruction had
not been incorrect, and therefore he did not suffer prejudice as a
result of the erroneous instruction.
                          CONCLUSION
    ¶54 The court of appeals correctly reviewed the trial court’s
findings and affirmed that Apodaca’s statements to police were
voluntary. His confession and incriminating statements could be
used for impeachment purposes in the event that Apodaca chose to
testify. Furthermore, there is no evidence presented or reason to
suspect that the faulty jury instruction given at trial affected the
outcome or the verdict. We affirm the court of appeals.




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