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

                                     2017 UT 23


                                        IN THE

          SUPREME COURT OF THE STATE OF UTAH

                                  STATE OF UTAH,
                                     Appellee,
                                           v.
                               KHALID MOHAMUD,
                                  Appellant.

                                  No. 20140844
                               Filed April 21, 2017

                                On Direct Appeal


                       Third District, West Jordan
                   The Honorable Terry L. Christiansen
                             No. 131401310

                                     Attorneys:
               Herschel Bullen, Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
                    Salt Lake City, for appellee

 CHIEF JUSTICE DURRANT authored the opinion of the Court in which
           JUSTICE DURHAM and JUSTICE HIMONAS joined.
  ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion, in which
                      JUSTICE PEARCE joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                                      Introduction
   ¶ 1 This case, along with State v. DeJesus, 1 requires us to apply
the due process analysis we set forth in State v. Tiedemann,2 which
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   1   2017 UT 22, --- P.3d ---.
   2   2007 UT 49, ¶ 44, 162 P.3d 1106.
                         STATE v. MOHAMUD
                        Opinion of the Court
addresses the due process rights of criminal defendants when
evidence has been lost or destroyed. Defendant Khalid Mohamud
was sentenced to an indeterminate term of one to fifteen years in
prison for possessing a shank in prison. He argues on appeal that a
video recording of the discovery of the shank was lost or destroyed
by the State and that this loss of evidence violated his due process
rights and required the dismissal of the case. He also raises an
ineffective assistance claim, arguing that his counsel was ineffective
in stipulating to the due process analysis applicable to claims
regarding evidence lost or destroyed by the State. The stipulation
conceded that there is a threshold requirement that the defendant
show a reasonable probability that the lost evidence would have
been exculpatory. Under the due process analysis set forth in
Tiedemann, we hold that Mr. Mohamud’s due process rights were not
violated and that his counsel did not render ineffective assistance.
We thus affirm the trial court’s decision.
                             Background
    ¶ 2 On August 29, 2013, Mr. Mohamud, who was incarcerated
in the Utah State Prison, was scheduled to transfer to another cell to
allow another inmate to move into his former cell. There were three
officers involved in the transfer: Officer Miller, who was stationed in
the control room that overlooked the prison section in which
Mr. Mohamud was held, and Officers Auelua and Weaver, who
were standing outside of the section containing Mr. Mohamud.
Mr. Mohamud was instructed to leave his cell, place his possessions
in front of his new cell, enter the section shower, and lock the shower
door so that the new inmate could be moved into Mr. Mohamud’s
former cell. Mr. Mohamud placed his possessions in front of the new
cell and entered the shower, but did not close or lock the door.
Officer Miller, via intercom from the control room, accordingly
instructed Mr. Mohamud to approach the section door.
    ¶ 3 After Mr. Mohamud approached the door, Officer Auelua
handcuffed him and led him through the door into a “horseshoe”
area. As Officer Auelua escorted Mr. Mohamud, Officer Weaver
noticed “a pretty good-sized bulge” in Mr. Mohamud’s left sock.
Officer Weaver asked Mr. Mohamud about the bulge. When Mr.
Mohamud did not respond, Officer Weaver asked him to step up
against the wall. Mr. Mohamud complied, and Officer Weaver
reached down into his sock and pulled out a metal shank that could
have “kill[ed] somebody.” Officer Auelua testified that he saw
Officer Weaver remove the shank, and Officer Miller testified that
although he saw Officer Weaver reach down to Mr. Mohamud’s
ankle, he did not personally see the shank. Officer Miller also

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                        Opinion of the Court

testified that Officer Weaver told him that Officer Weaver had found
a shank in Mr. Mohamud’s sock.
    ¶ 4 After the shank was discovered, Officers Weaver and
Auelua escorted Mr. Mohamud to a holding cell. While being
escorted, Mr. Mohamud asked questions like “[W]hy are you
bringing me down here? What did I do?” Officer Weaver took a
picture of the shank and prepared a report. Subsequently, Bryan
Heyborne, an investigator for the Utah Department of Corrections,
was assigned to the case. As part of his investigation, Mr. Heyborne
spoke with Mr. Mohamud and, among other questions, asked him
whether the shank belonged to a cellmate. Mr. Mohamud said it did
not. Mr. Heyborne also reviewed Officer Weaver’s report, though he
did not review or otherwise seek to obtain or preserve any available
surveillance footage.
    ¶ 5 On October 11, 2013, Mr. Mohamud was charged with one
count of possessing a prohibited item in a correctional facility. On
November 6, 2013, counsel for Mr. Mohamud submitted a discovery
request seeking all video recordings of the event. Counsel renewed
this request on January 9, 2014. Soon after, the State told defense
counsel that any footage that might have captured the incident
would have already been recorded over. According to Mr.
Heyborne’s later testimony, recordings from surveillance cameras
“are saved for about approximately 30 days, and then they are
recorded over.” Thus, by the time charges were filed—forty-three
days after the incident—any footage that might have captured the
incident had already been lost. In response to this information, Mr.
Mohamud moved to dismiss the charges against him, arguing that
there was surveillance footage that captured the incident, that it had
been lost or destroyed by the State, that there was a reasonable
probability the evidence would have been exculpatory because it
could have impeached the State’s witnesses’ credibility, and that he
was prejudiced by the loss of the evidence.
    ¶ 6 During the hearing on Mr. Mohamud’s motion to dismiss,
the court asked defense counsel, “Don’t you have to show on behalf
of Mr. Mohamud that there is a reasonable probability that the
destroyed videotape would be exculpatory?” Counsel agreed that
this was the standard “as laid out in Tiedemann.” Counsel argued
that a video recording of the incident would have been exculpatory
because it could have impeached the testimony of the officers,
though he provided no further details as to what specific testimony
would have been impeached. When questioned by the court about


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                         STATE v. MOHAMUD
                        Opinion of the Court
the lack of details and supporting evidence, counsel for Mr.
Mohamud stated that “there is no way for us to actually proffer”
evidence that the lost video would have been exculpatory “aside
from Mr. Mohamud’s own testimony,” which would require him to
“waiv[e] his right against self[-]incrimination or his right to remain
silent.”
    ¶ 7 Because Mr. Mohamud chose not to testify, the only
evidence put on during this hearing was testimony from
Mr. Heyborne, the investigator. He testified that “most” prison
facilities have surveillance cameras, that there were some cameras in
the unit where Mr. Mohamud was being held, and that these
cameras generally “record[] and . . . are on.” Mr. Heyborne also
testified that while he knows where some of the cameras are located,
and that they possibly could have recorded the incident, he did not
“know if those cameras were actually recording that day,” he never
“view[ed] any recordings for August 29th of 2013,” and he “ha[d] no
knowledge whether or not there was an actual recording made.”
Ultimately there was no testimony as to whether the cameras were
on and recording, what the recording would have shown, or
whether the recording would have contradicted the facts as alleged
by the State.
    ¶ 8 At the end of the hearing, the court concluded that the lack
of evidence showing a reasonable probability that the lost evidence
would be exculpatory was the dispositive issue. The court held that
defense counsel’s statement that “he believes it is potentially
exculpatory . . . doesn’t meet the standard of the case law.” The court
also found that “there is not even evidence that there was a
videotape. There may have been a videotape. There is no evidence
the cameras were on or they were off at the time[,] . . . nothing to
indicate what the camera . . . would have seen, if it would have even
seen this incident.” Accordingly, the trial court denied Mr.
Mohamud’s motion to dismiss.
    ¶ 9 A one-day jury trial was held on August 13, 2014. The jury
found Mr. Mohamud guilty of one count of transportation or
possession of items prohibited in correctional and mental health
facilities. The court sentenced Mr. Mohamud on September 2, 2014,
to an indeterminate term of one to fifteen years in prison, to run
consecutively to his other sentence. He timely appealed. After he
filed his opening brief, the court of appeals certified the case to us.
We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).




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                              Opinion of the Court

                              Standard of Review
    ¶ 10 There are two issues on appeal: first, whether Mr.
Mohamud’s trial counsel rendered ineffective assistance under
Strickland v. Washington 3 and, second, whether Mr. Mohamud’s due
process rights were violated by the loss or destruction of evidence
under the standard set forth in State v. Tiedemann. 4 As to the first
issue, “‘[a] claim of ineffective assistance of counsel raised for the
first time on appeal presents a question of law’ that the court reviews
for correctness.” 5 The second issue, the due process question, is a
mixed question of fact and law. We review the legal question
involved—whether due process was violated—for correctness. 6 But
the underlying factual determinations on which this legal question is
based will not be set aside unless “clearly erroneous.” 7
                                   Analysis
    ¶ 11 Mr. Mohamud raises two issues on appeal: first, that his
trial counsel rendered ineffective assistance by stipulating to the
legal test the trial court employed to determine whether Mr.
Mohamud’s due process rights were violated by the alleged
destruction of evidence; and, second, that the court erred by not
dismissing Mr. Mohamud’s case because his due process rights were
indeed violated by the alleged destruction of evidence. Both of these
issues depend on a threshold question: What is the proper legal
standard for deciding whether a due process violation occurs as a
result of the destruction of evidence?
  ¶ 12 We first addressed this question in State v. Tiedemann,
where we held that



_____________________________________________________________
   3   466 U.S. 668 (1984).
   4   2007 UT 49, 162 P.3d 1106.
   5   State v. Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841 (citation omitted).
   6Tiedemann, 2007 UT 49, ¶ 12 (“Whether the State’s destruction of
potentially exculpatory evidence violates due process is a question of
law that we review for correctness.”).
   7 Id. (“[B]ecause [the due process] question requires application of
facts in the record to the due process standard, we incorporate a
clearly erroneous standard for the necessary subsidiary factual
determinations.” (citation omitted)).

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                             STATE v. MOHAMUD
                            Opinion of the Court
         In cases where a defendant has shown a reasonable
         probability that lost or destroyed evidence would be
         exculpatory, we find it necessary to require
         consideration of the following: (1) the reason for the
         destruction or loss of the evidence, including the
         degree of negligence or culpability on the part of the
         State; and (2) the degree of prejudice to the defendant
         in light of the materiality and importance of the
         missing evidence in the context of the case as a whole,
         including the strength of the remaining evidence. 8
The key issue raised by Mr. Mohamud is whether the Tiedemann due
process analysis requires a threshold showing that there is a
reasonable probability the lost or destroyed evidence would have
been exculpatory. This issue is common to both this case and to
another case heard and decided contemporaneously, State v.
DeJesus. 9 Because the issue is more centrally presented in DeJesus, we
address the applicable standard more fully therein. 10 For purposes of
this case, it is sufficient to recognize that the Tiedemann due process
analysis does require a criminal defendant to prove as a threshold
matter that there is a reasonable probability that the lost or destroyed
evidence would have been exculpatory, and that without such a
showing, the defendant has no due process claim.
    ¶ 13 With this standard in mind, we turn now to Mr. Mohamud’s
arguments on appeal. We first address his ineffective assistance
claim and hold that his counsel was not ineffective in agreeing to the
correct due process standard. We then review Mr. Mohamud’s claim
that his due process rights were violated by the alleged loss of the
surveillance recordings and conclude that they were not, because he
failed to make the threshold showing under Tiedemann that the
evidence had a reasonable probability of being exculpatory.
Accordingly, we affirm the decision of the trial court.
             I. Mr. Mohamud’s Counsel Was Not Ineffective
   ¶ 14 Mr. Mohamud contends that his trial counsel’s failure to
argue for an interpretation of Tiedemann that does not impose a
threshold requirement—an interpretation different from the one we


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   8   State v. Tiedemann, 2007 UT 49, ¶ 44, 162 P.3d 1106.
   9   2017 UT 22, --- P.3d ---.
   10   See id. ¶¶ 21–36.

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                            Opinion of the Court

endorse above and in State v. DeJesus 11—constituted ineffective
assistance. A claim of ineffective assistance of counsel is governed by
Strickland v. Washington. 12 The test to determine if a defendant
received ineffective assistance has two prongs: first, “the defendant
must show that counsel’s representation fell below an objective
standard of reasonableness.” 13 “This requires showing that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” 14 But
“so long as ‘a rational basis for counsel’s performance can be
articulated, we will assume counsel acted competently.’” 15 And
“[t]here is a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” 16 The second
prong of the test requires the defendant to show that “any
deficiencies in counsel’s performance [were] prejudicial to the
defense.” 17 Because we find that Mr. Mohamud’s counsel did not err
in agreeing to the trial court’s interpretation of Tiedemann, we hold
that Mr. Mohamud’s claim fails under the first prong of the
Strickland test.
    ¶ 15 Mr. Mohamud’s ineffective assistance claim stems from an
exchange between the court and his counsel during the hearing on
his motion to dismiss. The trial court asked Mr. Mohamud’s counsel,
“Don’t you have to show on behalf of Mr. Mohamud that there is a
reasonable probability that the destroyed videotape would be
exculpatory?” Counsel agreed that this was the standard “as laid out
in Tiedemann.” Mr. Mohamud argues that counsel should have
instead pressed for the interpretation of Tiedemann set forth in the
court of appeals case State v. Jackson, which laid out a due process
analysis that did not include a threshold requirement that the
defendant establish a reasonable probability that the lost or

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   11   2017 UT 22, ¶ 29, --- P.3d ---.
   12   466 U.S. 668 (1984).
   13   Id. at 688.
   14   Id. at 687.
   15State v. King, 2010 UT App 396, ¶ 31, 248 P.3d 984 (citation
omitted).
   16 State v. Larrabee, 2013 UT 70, ¶ 19, 321 P.3d 1136 (alteration in
original) (citation omitted).
   17   Strickland, 466 U.S. at 692.

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                          STATE v. MOHAMUD
                          Opinion of the Court
destroyed evidence would have been exculpatory. 18 In Mr.
Mohamud’s view, a “[f]ailure to cast the law in the light most
favorable to one’s client regarding potentially exculpatory evidence”
constitutes ineffective assistance.
   ¶ 16 The problem with Mr. Mohamud’s argument is it requires
us to hold that counsel may be ineffective for agreeing to a
reasonable (and ultimately correct) statement of the law. As we
discuss in State v. DeJesus, Tiedemann clearly establishes a threshold
reasonable probability requirement, 19 and we obviously cannot fault
Mr. Mohamud’s counsel for agreeing with us as to the proper
analysis. Further, the basis for the argument Mr. Mohamud claims
his counsel should have made is tenuous. Although the court of
appeals’ decision in Jackson could be read to suggest there was no
threshold reasonable probability requirement—a statement at odds
with our pronouncement in Tiedemann—the court of appeals later
contradicted this interpretation in State v. Otkovic. 20
    ¶ 17 Although counsel must provide effective representation,
this does not include a requirement to make every possible objection
or raise every conceivable legal argument in favor of a criminal
defendant. 21 Counsel properly acts “within the wide range of

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   18 2010 UT App 328, ¶ 20, 243 P.3d 902. In Jackson, the court of
appeals interpreted Tiedemann as holding that “courts should
consider the ‘nonexclusive factors’ outlined in rule 16’ . . . [and],
[a]dditionally, if a defendant establishes ‘a reasonable probability
that lost or destroyed evidence would be exculpatory,’ courts also
need to consider” the culpability of the State and “the degree of
prejudice to the defendant.” Id. (citation omitted). As discussed in
State v. DeJesus, this interpretation of Tiedemann is erroneous, and we
disavow it.
   19   2017 UT 22, ¶¶ 24–27.
   202014 UT App 58, ¶ 24, 322 P.3d 746 (holding that “to prevail on
[a motion to dismiss], a defendant must first demonstrate, as a
threshold matter, that there is ‘a reasonable probability that lost or
destroyed evidence would be exculpatory’” (quoting Tiedemann,
2007 UT 49, ¶ 44)).
   21 See King, 2010 UT App 396, ¶ 31 (“[N]either speculative claims
nor counsel’s failure to make futile objections establishes ineffective
assistance of counsel.” (quoting State v. Chacon, 962 P.2d 48, 51 (Utah
1998))).

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                            Opinion of the Court

reasonable professional assistance” 22 in not raising a legal argument
if he or she could reasonably conclude based on existing law that
raising the argument would be fruitless or ineffective strategy.23
Thus, although Mr. Mohamud’s counsel may have had some basis
under Jackson to argue against the standard imposed by the trial
court, his counsel’s apparent choice to follow the plain language of
Tiedemann—an interpretation we have reaffirmed today—and the
more recently decided court of appeals case is clearly reasonable.
Consequently, we hold that Mr. Mohamud’s counsel’s performance
did not fall below an objective standard of reasonableness and thus
reject Mr. Mohamud’s ineffective assistance claim. We turn now to
whether Mr. Mohamud’s due process rights were violated by the
alleged loss of relevant surveillance footage.
 II. Mr. Mohamud Has Failed to Establish a Reasonable Probability
that the Lost or Destroyed Evidence Would Have Been Exculpatory
    ¶ 18 Mr. Mohamud argues that the trial court erred by denying
his motion to dismiss based on the alleged destruction or loss of a
video recording of the events leading to his conviction. We held in
Tiedemann that, as a matter of Utah constitutional law, a defendant
has a due process right to evidence that has a reasonable probability
of being exculpatory. 24 Thus, the destruction or loss of such evidence
violates due process. As a result, in order to establish a due process
violation arising from the loss of evidence, a defendant must first
demonstrate a reasonable probability that the lost evidence would
have been exculpatory. 25 Once the reasonable probability threshold
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   22   Larrabee, 2013 UT 70, ¶ 19 (citation omitted).
   23See Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) (“Based
on the precedents . . . at the time of Jameson’s appeal, it was
reasonable for counsel to conclude that raising [a particular issue]
would not have been effective appellate strategy. . . .
   “[C]ounsel [also cannot] be deemed incompetent for failing to
predict that the New York Court of Appeals would later overrule the
Second Department’s reasonable interpretation of New York law.”).
   24See State v. DeJesus, 2017 UT 22, ¶ 45, --- P.3d --- (“[O]nce ‘a
defendant has shown a reasonable probability that lost or destroyed
evidence would be exculpatory,’ the defendant has established that a
due process violation occurred.” (quoting State v. Tiedemann, 2007
UT 49, ¶ 44, 162 P.3d 1106)).
   25   See id.; see also Tiedemann, 2007 UT 49, ¶ 44.

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                           STATE v. MOHAMUD
                          Opinion of the Court
has been satisfied, the second part of the Tiedemann analysis sets
forth two factors that courts must balance both to determine the
seriousness of the due process violation and to fashion the
appropriate remedy: (1) the culpability of the State in the loss or
destruction of the evidence and (2) the prejudice to the defendant as
a result of the missing evidence. 26
    ¶ 19 Applying this test to the facts of this case, we first note that
Mr. Mohamud challenges the trial court’s finding that “there is not
even evidence that there was a videotape. . . . There is no evidence
the cameras were on or they were off at the time[,] . . . nothing to
indicate what the camera . . . would have seen, if it would have even
seen this incident.” We decline to address this challenge on appeal
because even if we assume that the alleged video footage both
existed and captured the incident at issue, Mr. Mohamud has still
failed to show that there was a reasonable probability that it would
have been exculpatory. 27 He has proffered only speculation as to
what the footage might have shown. This does not rise to the level of
reasonable probability. Consequently, Mr. Mohamud has not shown

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   26   DeJesus, 2017 UT 22, ¶ 45; Tiedemann, 2007 UT 49, ¶¶ 44–45.
   27  Certainly, a necessary predicate to evaluating whether lost or
destroyed evidence would have been exculpatory is to establish that
the evidence actually existed. In this case, the trial court found,
within the context of the motion to dismiss hearing, that Mr.
Mohamud provided inadequate evidence to show that a videotape
capturing the incident existed. In that hearing, he provided the
testimony of the investigator, Mr. Heyborne, that most prison
facilities have cameras, there were cameras in Mr. Mohamud’s
section, and these cameras “record[] and . . . are on.” This testimony
would seem insufficient to establish that a camera was in the area
where Mr. Mohamud was searched and would have, if turned on,
captured the incident. Accordingly, the trial court found that “there
is not even evidence that there was a videotape.” But during the
subsequent trial, testimony established that cameras covered the
“horseshoe area,” where Mr. Mohamud was detained and searched.
While this evidence, together with Mr. Heyborne’s testimony at the
hearing that cameras “record[] and . . . are on,” may be sufficient to
show a reasonable probability that a videotape capturing the
incident existed, we do not reach this factual issue because, as noted
above, even if a videotape did exist, Mr. Mohamud has not shown
that there was a reasonable probability that it would have been
exculpatory.

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                            Opinion of the Court

that his due process rights were violated by the loss or destruction of
the video recording.
    ¶ 20 As discussed above and in State v. DeJesus, in order to
establish that his due process rights were violated under Tiedemann,
Mr. Mohamud must show that there was a reasonable probability
that the evidence would have been exculpatory. 28 Although a
“reasonable probability” is difficult to define, we have provided
some guidelines: “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” 29 It is “above [a] ‘mere
possibility,’” though it may fall “substantially short of the ‘more
probable than not’” standard. 30 As we discussed in State v. DeJesus,
the bar is quite low and will be met so long as the defendant’s
proffer as to what the lost evidence would have shown is not “pure
speculation or wholly incredible.” 31 But even though the bar is low,
there must be more than speculation, which is all that Mr. Mohamud
has offered. 32
    ¶ 21 The majority of Mr. Mohamud’s argument as to whether or
not the lost evidence would have been exculpatory is dedicated to
general descriptions of the value of video evidence. As he states,
“The video would have been the best evidence of what actually
occurred, and, at the very least, there is a reasonable probability that
the video would have contained evidence that could have been used
to impeach the testimony of the correctional officers.” It is certainly
true that a video recording of the incident would have been highly
probative of what truly happened. But simply stating that video
recordings can be helpful to determine truth does not establish that
this particular video recording would have been helpful to Mr.
Mohamud in the specific circumstances of his case.


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   28   See DeJesus, 2017 UT 22, ¶ 29.
   29State v. Knight, 734 P.2d 913, 920 (Utah 1987) (quoting Strickland
v. Washington, 466 U.S. 668, 694 (1984)).
   30   Id.; see also DeJesus, 2017 UT 22, ¶ 39.
   31   DeJesus, 2017 UT 22, ¶ 39.
   32 See id. (noting that if the defendant’s proffer of what the lost
evidence would have shown and how that evidence would have
benefitted the defendant “is not pure speculation or wholly
incredible, the standard will be satisfied”).

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                            STATE v. MOHAMUD
                           Opinion of the Court
    ¶ 22 Mr. Mohamud must make some proffer as to why the video
would have been relevant to his defense, which he has failed to do.
Although he states that the video evidence “would have
contradicted, discredited or called the correctional officers’ memory
into question in some way,” he provides no description, testimony,
or other evidence establishing what the video would have shown
and how that would have impeached the officers’ testimony. There
is no alternative theory of where the shank came from, no suggestion
that the shank was planted on Mr. Mohamud, and no description of
how the video would have shown that the material aspects of the
officers’ testimony were mistaken or false. To establish a reasonable
probability that video evidence is exculpatory for impeachment
purposes, a defendant cannot rest on the claim that the evidence
could have undermined confidence in a witness’s testimony in some
possible way, but must instead make some proffer as to what
testimony would have been contradicted and how such a
contradiction would have aided the defendant. 33 Mr. Mohamud’s
speculation that the video evidence could have impeached the
officers’ testimony in some unspecified way is insufficient to satisfy
the reasonable probability threshold set forth in Tiedemann and
DeJesus. 34
    ¶ 23 We recognize that, due to the State’s failure to preserve any
potentially relevant footage, Mr. Mohamud is hampered in his
ability to describe what it contained. This is the reason we have set a
low threshold bar by requiring only a reasonable probability. Mr.
Mohamud could have met his burden by offering the testimony of
other inmates who witnessed the event, as in DeJesus. 35 He also could
have testified on his own behalf as to what the video would have
shown, which would not have waived his Fifth Amendment right
against self-incrimination. Courts have long recognized that “upon a
showing of substantial tension between a defendant’s desire to
testify in a hearing that adjudicates a claim of constitutional right in
a criminal case and the right of that defendant not to give testimony
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   33 See id. ¶¶ 39, 44 (holding that the defendant’s proffer of
testimony from a potentially unreliable witness and arguably
contradictory testimony from a prison guard satisfied the reasonable
probability standard because it supported her claim that the State
had failed to prove the intent element of the crime).
   34   See id. ¶¶ 29, 39; Tiedemann, 2007 UT 49, ¶ 44.
   35   DeJesus, 2017 UT 22, ¶ 41.

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                            Opinion of the Court

that is incriminating as to the charge in question,” defendants may
offer potentially incriminating testimony without surrendering their
Fifth Amendment privileges. 36 As the United States Supreme Court
stated, it would be “intolerable that one constitutional right should
have to be surrendered in order to assert another.” 37 Thus, if no
other evidence was available, Mr. Mohamud could have testified on
his own behalf as to what discrepancies the video footage would
have shown without fear that such testimony would later be used
against him.
   ¶ 24 Mr. Mohamud’s burden to show by reasonable probability
that the lost evidence would have been exculpatory includes the
duty to make some proffer as to how the surveillance footage could
have potentially helped his case, even if such a showing necessitated
that he personally testify in some fashion. Although the showing
required of defendants is low, there must be something more than
speculation about how the evidence could conceivably be
exculpatory. And in this case, speculation about potential
impeachment is all that has been presented. Accordingly, Mr.
Mohamud has failed to show that he was denied due process under
the reasonable probability standard set forth in Tiedemann. We
therefore affirm the trial court’s denial of his motion to dismiss.
                                 Conclusion
   ¶ 25 Tiedemann properly requires a threshold showing by a
defendant that there is a reasonable probability that any lost or
destroyed evidence would have been exculpatory. We reject
Mr. Mohamud’s ineffective assistance claim because counsel cannot
be considered ineffective for agreeing to the correct legal standard.
As to his due process claim, Mr. Mohamud has failed to show that
the trial court’s factual determination that there was no evidence that
the relevant video footage existed was clearly erroneous. Further,
even assuming that footage existed, Mr. Mohamud has failed to
demonstrate a reasonable probability that it would have been


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   36   United States v. Bryser, 95 F.3d 182, 186 (2d Cir. 1996).
   37 Simmons v. United States, 390 U.S. 377, 394 (1968) (“[W]hen a
defendant testifies in support of a motion to suppress evidence on
Fourth Amendment grounds, his testimony may not thereafter be
admitted against him at trial on the issue of guilt unless he makes no
objection.”).

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   A.C.J. Lee, Concurring in part and concurring in the judgment

exculpatory. Accordingly we affirm the trial court’s denial of his
motion to dismiss.

   ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
the judgment:
    ¶ 26 I concur in the court’s analysis and judgment under the
standard set forth in State v. Tiedemann, 2007 UT 49, ¶ 44, 162 P.3d
1106, and State v. DeJesus, 2017 UT 22, __ P.3d __. My only caveat,
and sole reason for writing separately, is one I explained in my
separate opinion in DeJesus—that the standard for regulating and
sanctioning the State’s destruction of evidence is appropriately
rooted in our inherent power to regulate proceedings in our courts
(as reflected in rule 16 of our criminal rules), and not the Due Process
Clause of the Utah Constitution. I concur on that same basis here.




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