March 21, 2013 Utah Court of Appeals Cases

March 21, 2013

Utah Court of Appeals Cases

State v. Rasabout and Kaykeo, 2013 UT App. 71, No. 20100284‐CA (March 21, 2013)

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGE WILLIAM A. THORNE JR. concurred.

JUDGE GREGORY K. ORME concurred in part and concurred in the result in part, with opinion.

Judge Voros,

Following a jury trial, Andy Rasabout and Levitz London Kaykeo (collectively, Defendants) were each convicted of one count of possession of alcohol by a minor, a class B misdemeanor, see Utah Code Ann. § 32A‐12‐209 (LexisNexis Supp. 2007) (current version at id. § 32B‐4‐409 (2011)), and twelve counts of discharge of a firearm from a vehicle, a third degree felony, see id. § 76‐10‐508 (Supp. 2007) (current version at id. §§ 76‐10‐508, ‐508.1 (2012)). Before sentencing, the trial court merged the twelve counts of discharge of a firearm into a single count for each defendant. The State appeals that decision. Kaykeo cross‐appeals, challenging his conviction on the basis of ineffective assistance of counsel. We reverse and remand for resentencing on the first issue and affirm on the second.

At ¶ 1.

After sentencing, Kaykeo filed a motion for new trial, arguing that his trial counsel was ineffective because he did not investigate possible witnesses who could verify Kaykeo’s alibi.

At ¶ 6.

The trial court ruled that the multiple shots fired toward the house and cars constituted one offense because the shots were all part of a “single criminal episode.” See Utah Code Ann. § 76‐1‐401 (LexisNexis 2012). Relying on case law, the court also ruled that the multiple shots constituted one offense because the multiple shots were animated by “one intention, one general impulse, and one plan.” See State v. Crosby, 927 P.2d 638, 645 (Utah 1996) (citation and internal quotation marks omitted). The State argues that the trial court erred by relying on the “single criminal episode” statute and case law interpreting it rather than looking to the firearm discharge statute to determine how many counts Defendants may be convicted of. We agree.

At ¶ 9.

When a defendant has been charged under multiple counts for the same offense, the court may merge the counts to avoid a double jeopardy violation. See Lee, 2006 UT 5, ¶¶ 30–31. Therefore, to determine whether merger was appropriate, the relevant question is what constitutes a single offense.

At ¶ 10.

[T]he fact that separate acts fall within the definition of “single criminal episode” does not establish that they are a single offense. . . . On the contrary, Utah law expressly provides that “[a] court may impose consecutive sentences for offenses arising out of a single criminal episode as defined in Section 76‐1‐401.” Utah Code Ann. § 76‐3‐401(5) (LexisNexis 2012). Accordingly, a determination that separate acts—in this case, shots from a gun—are part of a single criminal episode does not mean that they cannot be punished separately, but that—again, subject to enumerated qualifications—they must be tried together. Thus, the single criminal episode statute does not resolve the question before us.

At ¶ 12.

“[A]t its core, the issue of duplicity or multiplicity is one of statutory interpretation.” Charles Alan Wright et al., 1A Federal Practice & Procedure: Criminal § 142, at 13 (4th ed. 2008).

The key question in reviewing the statute is what the legislature has determined to be the “allowable unit of prosecution.” See United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952). “‘The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. . . . If the latter, there can be but one penalty.’” Blockburger v. United States, 284 U.S. 299, 302 (1932) (omission in original) (quoting Wharton’s Criminal Law § 34 n.3 (11th ed.)). “Whether a particular course of conduct involves one or more distinct ‘offenses’ under the statute depends on this [legislative] choice.” Sanabria, 437 U.S. at 70. Thus, “‘[t]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.’” State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990) (quoting Albernaz v. United States, 450 U.S. 333, 344 (1981)), modified by State v. Smith, 2005 UT 57, ¶ 11 & n.4, 122 P.3d 615 (addressing the method of determining “what punishments the Legislative Branch intended to be imposed”). We therefore turn to an analysis of the firearm discharge statute.

At ¶¶16-17.

Under this statute, “[a] person may not discharge any kind of dangerous weapon or firearm” under the stated conditions. Utah Code Ann. § 76‐10‐ 508(1)(a) (LexisNexis Supp. 2007). The crux of the question is what the Legislature meant by the word discharge. The dictionary definition of the verb discharge is clear. In the present context it means simply to “fire a weapon,” MacmillanDictionary.com, http://www.macmillandictionary.com/dictionary/ american/discharge (last visited March 14, 2013), or to “shoot,” Merriam-Webster, http://www.merriam‐webster.com/dictionary/discharge (last visited March 14, 2013). We therefore conclude that the “clearest reading of the statute” is that each act of firing a gun constitutes a separate offense, or unit of prosecution. See Morrison, 2001 UT 73, ¶ 26. Here, Rasabout fired his weapon, or shot, twelve times. Accordingly, reading the statute according to the “fair import” of its terms as well as its plain language, these shots violated the statutory prohibition twelve times. See Utah Code Ann. § 76‐1‐106 (LexisNexis 2012)

At ¶ 21.

A claim of ineffective assistance of counsel requires proof of two elements: “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show hat the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Lenkart, 2011 UT 27, ¶ 25, 262 P.3d 1. To prove constitutionally deficient performance, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” in light of all the circumstances. Strickland, 466 U.S. at 687–88. Furthermore, the defendant must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and that “under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (citation and internal quotation marks omitted); see also State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.

At ¶ 35.

The adequacy or reasonableness of the investigation is the controlling factor. See Taylor v. State, 2007 UT 12, ¶ 47, 156 P.3d 739 (citing Wiggins v. Smith, 539 U.S. 510, 522–23 (2003)); State v. Hales, 2007 UT 14, ¶¶ 69–70, 152 P.3d 321. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.ʺ Strickland, 466 U.S. at 690–91; see also Taylor, 2007 UT 12, ¶ 47. Thus, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691; see also Taylor, 2007 UT 12, ¶ 48.

At ¶ 37.

[A]ccording to the facts accepted by the trial court, Kaykeo never informed his counsel of the two witnesses who could corroborate his alibi. Kaykeo’s counsel inquired about potential witnesses and was given only one lead. He did not follow that lead, because Kaykeo dissuaded him from doing so.

Based on these facts, the only possible basis for a claim of inadequate investigation is counsel’s failure to follow up with the girlfriend. But this failure did not constitute deficient performance in this case. As noted above, in deciding whether Kaykeo’s counsel provided deficient performance, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Furthermore, the adequacy of an investigation “may be determined or substantially influenced by the defendant’s own statements or actions.” Id. at 691. Accordingly, we cannot ignore—nor can we expect Kaykeo’s counsel to have ignored—Kaykeo’s statement that his girlfriend “would not be helpful because she was ‘mad at him.’” Counsel could have interpreted this statement to mean that she would not be willing to provide names of other witnesses, that she would lie out of spite and provide harmful but false testimony, or that she would be unwilling to lie and would provide harmful but true testimony. Because Kaykeo gave his counsel “reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” See id. In light of these facts, Kaykeo’s counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” See id. at 690.

At ¶¶ 43-44.

Judge ORME, (concurring in part and concurring in the result in part):

I concur in section I of the lead opinion but concur only in the result reached in section II. Given the difficulties in determining the adequacy of trial counsel’s performance based on conflicting affidavits and given the lack of an evidentiary hearing below to resolve the conflict, I am persuaded that the best course is to resolve the ineffective assistance claim raised by Kaykeo12 purely on the prejudice prong, as our cases allow us to do.

At ¶ 49.

State v. Graham, 2013 UT App 72, No. 20100828‐CA (March 21, 2013)

Affirming Judge Scott Hadley

Judge Orme,

Defendant Jerry Lee Graham appeals his conviction for escape, a third degree felony, see Utah Code Ann. § 76‐8‐309 (LexisNexis 2012),1 claiming that his trial counsel provided ineffective assistance and that the trial court committed plain error. We affirm.

At ¶ 1.

Defendant was serving a 45 day sentence for driving on a suspended license in the jail.  While in jail he was permitted to leave during the day to work, provided he returned each night by a certain hour.  Defendant, according to his own calculations, determined that he was entitled to release on July 4, 2008.  After work on July 4, 2008, he did not return to the jail.  He was later arrested for escape.

Prior to the trial, the prosecution obtained a ruling barring any mention of why defendant was in jail.  The trial commenced and Defendant testified on his own behalf.  On direct examination Defendant talked about documents he purported supported his assertion that he was entitled to release, but did not submit any of the documents into evidence.

On cross examination, the prosecutor questioned Defendant about his prior criminal history including two parol violations.  Defense Counsel did not raise any objections.  While asking Defendant about his time in jail, Defendant told the jury that he was in jail for a suspended license.  The Court directed the jury to disregard the comment.  The defendant also complained that the prosecutor was “more concerned about [his] job and [his] status as far as wins and los[ses] compared to what’s right and what’s justice[.]”  During closing arguments the prosecutor told the jury his was concerned about justice, not wins and losses.  Defense counsel did not object.

The jury found Defendant guilty.

At ¶¶ 2-9

Defendant asks us to reverse his conviction because he claims that he received ineffective assistance of counsel at trial. Specifically, Defendant argues that his trial counsel was ineffective because he (1) failed to discover and introduce potentially exculpatory documents, (2) failed to object when the State questioned Defendant about and introduced evidence of his prior criminal history, and (3) failed to object to the State’s “prejudicial and misleading statements” during closing argument.

At ¶ 10.

Defendant also claims that the trial court made two errors, namely (1) allowing the jury to consider evidence of Defendant’s prior criminal history and (2) permitting the State’s prosecutorial misconduct during closing argument and allowing the prosecutor’s prejudicial statements to be considered by the jury. Because Defendant raises these claims for the first time on appeal, he relies on the doctrine of plain error. Thus, he must show that “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).

At ¶ 13.

The Court concludes that discovery was not deficient and counsel decision not to proffer the evidence was reasonable.

At ¶¶ 14-17

The Court concludes that the evidence regarding Defendant’s past criminal history was admissible.

At ¶¶ 18-21

The Court concludes that the prosecutor’s remarks in closing argument were not inappropriate or prejudicial.

At ¶¶ 22-24

Defendant had accused the State of prioritizing wins and losses over truth and justice. By making such an accusation, Defendant opened the door to an appropriate response by the State. And, within the context of Defendant’s accusation, the jury no doubt viewed the State’s remarks as a defense of its own ethical standards rather than an attack on Defendant’s or trial counsel’s character or ethical standards. Under all the circumstances, the verdict was likely not influenced by the remarks, trial counsel was not ineffective for failing to object to them, and the trial court did not plainly err in allowing them.

At ¶ 24

Kendell v. Department of Workforce Services, 2013 UT App. 73, No. 20111105‐CA (March 21, 2013)

The Dept. of Workforce Services denied Kendell’s application for unemployment benefits because she was in Europe and thus unavailable to work in the United States.  Kendell asserted that he was available by cellular telephone and email, and that he had sufficient airline miles to obtain a flexible return ticket that would have allowed him to return to the United States within twenty‐four hours. Kendell appeals

Judge McHugh,

Kendell argues that he was available for work while traveling in Europe as required by Utah Code section 35A‐4‐403. See Utah Code Ann. § 35A‐4‐403(1)(c) (LexisNexis Supp. 2012) (stating that an unemployed individual is eligible to receive benefits only if that individual “is able to work and is available for work”). The Board’s determination that Kendell was unavailable primarily rested on its interpretation of administrative rule R994‐ 403‐112c, which addresses foreign travel as a factor affecting a claimant’s availability. The rule states, in relevant part,

a claimant who is engaged in an activity for more than half the normal workweek that would prevent the claimant from working, is presumed to be unavailable and therefore ineligible for benefits. . . . When a claimant is away from his or her residence but has made arrangements to be contacted and can return quickly enough to respond to any opportunity for work, the presumption of unavailability may be overcome.

. . .

Unemployment benefits cannot be paid to a claimant located in a foreign country unless the claimant has authorization to work there and there is a reciprocal agreement concerning the payment of unemployment benefits with that foreign country. An exception to this general rule is that a claimant who travels to a foreign country for the express purpose of applying for employment and is out of the United States for two consecutive weeks or less is eligible for those weeks provided the claimant can prove he or she has a legal right to work in that country. A claimant who is out of the United States for more than two weeks is not eligible for benefits for any of the weeks.

At ¶ 13.

After briefing was completed, this court issued a decision in Dorsey v. Department of Workforce Services, 2012 UT App 364, 294 P.3d 580, rejecting the Board’s interpretation of rule R994‐403‐112c as “impos[ing] a disability not mentioned in the statute, impermissibly restricting the meaning of the availability requirement, and thus . . . not ‘in harmony’ with the statute.” Id. ¶¶ 19–22. In making this determination, the Dorsey court held that

the touchstone of rule R994‐403‐112c(2)(a), as with section 35A‐4‐403(1)(c), is availability. Foreign and domestic travel are relevant to the determination of availability, but are not grounds for denying eligibility to a traveler who demonstrates, as [c]laimant has, that he is able to work and is available for work during each and every week for which [he] made a claim for benefits under this chapter. Thus, with foreign travel, the presumption of unavailability in rule R994‐403‐112c(2)(a) may be overcome not only by showing that the claimant was seeking work in a foreign country under the conditions specified in rule R994‐403‐112c(2)(a)(i), but also by showing that the claimant made arrangements to be contacted and could return quickly enough to respond to any

opportunity for work.

Id. ¶ 23 (second alteration in original) (footnote, citations, and internal quotation marks omitted).

At ¶ 14.

The Court directs the Board to reconsider the evidence and determine if Kendell could have returned to the United States for work immediately.

At ¶¶ 16-17.

Levier v. Department of Workforce Services, 2013 UT App. 74, No. 20110816‐CA (March 21, 2013)

The Dept. of Workforce Services denied Levier’s application for unemployment benefits because she was in Brazil on family business for two weeks and thus unavailable to work in the United States.  Levier appeals

Judge Voros,

In Dorsey, we held that the Board’s interpretation of its rules controlling availability was inconsistent with the governing statute. See 2012 UT App 364, ¶ 21. We concluded that a claimant who is presumed unavailable under Utah Administrative Code R994‐403‐ 112c(2)(a) due to foreign travel could overcome that presumption “by showing that the claimant made arrangements to be contacted and could return quickly enough to respond to any opportunity for work.” 2012 UT App 364, ¶ 23; see also Utah Admin. Code Ann. R994‐403‐112c(2)(a) (LexisNexis Supp. 2011).

At ¶ 3.

The Court concludes that the Board failed to determine as a fact that Levier could not immediately return to the United States and that its arguments were assumptions unsupported by the evidence.  The Court sets the Board’s decision aside and directs them to reconsider the evidence.

At ¶¶ 6-8.