December 5, 2013 Utah Court of Appeals Case Summaries

State v. Curtis, 2013 UT App 287, No. 20110799-CA (December 5, 2013)

ISSUES: Ineffective Assistance of Counsel, Utah Rules of Appellate Procedure Rule 23B

Judge Roth,

Defendant Thomas Devirl Curtis appeals his convictions of four counts of rape . . . and four counts of distribution of a controlled substance in a drug free zone . . . . Defendant argues that his trial counsel provided ineffective assistance by committing a number of errors that prejudiced his defense. According to Curtis, his attorney failed to introduce evidence that would have impeached the victim’s testimony, did not interview potential witnesses, and opened the door to damaging impeachment evidence. Curtis also argues that his trial counsel should have moved for a mistrial after the jury and excluded witnesses overheard sidebar conversations. Additionally, Curtis filed a rule 23B motion requesting that we remand his case to the trial court to supplement the record with evidence of his ineffective assistance claim. We deny Curtis’s request for remand because he has not provided key pieces of evidence to his rule 23B motion and because the affidavits accompanying his motion fail to allege nonspeculative facts to support his ineffective assistance claim. We also affirm Curtis’s convictions because he has not shown that his attorney’s failure to introduce evidence was deficient performance or that other errors that may have occurred resulted in prejudice.

At ¶ 1.

Background

Curtis was convicted of giving a minor victim (M.V.) cocaine and raping her on four occasions. In early 2008, M.V.’s family moved into a two-bedroom home outside the Salt Lake valley. M.V. and her sisters shared one bedroom while Curtis, who lived with the family, used the back bedroom. M.V.’s mother (Mother) usually slept on the living room couch.

At ¶ 2.

At trial, the State called M.V. as its first witness. She testified that Curtis had also introduced her to “marijuana” when she “was 12 years old” and that her sister (Sister) “used cocaine with” her and Curtis “a few times.” After a brief discussion with counsel at the bench, the court dismissed the jury and the parties argued at length about whether evidence of such other drug use in the home was admissible. The court ruled that any evidence regarding other drug use in the home was inadmissible “unless it occurred on these instances . . . where the alleged sexual activity occurred.” The judge reiterated this ruling when the State later asked Sister on direct examination whether Mother knew about Sister’s drug use. He noted that unless the State called Sister as a rebuttal witness to impeach Mother or the defendant, “[Sister’s] own [drug] use is not relevant. . . . So I will instruct the jury that [Sister’s] drug use is not an issue in this case, and we’ll go from there.”

At ¶ 6.

Defense counsel also expressed some concern that the jury could have heard the earlier sidebar discussion, but he noted that “we may have been talking enough in lawyer code . . . that they didn’t exactly clue into what we were talking about.” In response to this concern and the prosecution’s question about Sister’s drug use, the court gave two curative instructions at the defense’s request as soon as the jury reconvened. The first directed the jury not to consider “[a]ny evidence of distribution of substance[s] to anyone other than [M.V.].” The second instructed the jurors “not . . . to consider any” information they may have heard during “bench discussions” and to “raise your hand” to alert the court if future bench discussions were audible.

At ¶ 7.

 

Mother testified that she did not know of any drug use in her home, and she would have known.  She also testified that her daughter, M.V. was lying.  The State, over defendant’s objection, impeached her by getting her to admit that she knew about marijuana use in her home,

At ¶¶ 8-9.

Defendant denied all of the allegations.

At ¶ 10.

Sister, over Defendant’s objection, testified that she had observed Defendant and M.V. do cocaine together in the home on several occasions.

At ¶ 11.

Rule 23B Motion for Remand

Curtis requests remand under rule 23B to the trial court for factual supplementation of the record regarding his ineffective assistance of counsel claims. Rule 23B motions are “available only in limited circumstances, to supplement the record with known facts needed for an appellant to assert an ineffectiveness of counsel claim on direct appeal.” State v. Johnston, 2000 UT App 290, ¶ 23, 13 P.3d 175 (per curiam). “There are four basic requirements”: the motion must (1) contain a nonspeculative allegation of facts that (2) do not fully appear in the record, which, if true, (3) could support a determination that counsel’s performance was deficient, and (4) demonstrate that the defendant suffered prejudice as a result. Id. ¶¶ 8–13; see also Utah R. App. P. 23B(a).

At ¶ 15.

Rule 23B motions must “be accompanied by affidavits . . . that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance.” Utah R. App. P. 23B(b). This means that a defendant must not only identify uncalled witnesses or other evidence that he claims should have been presented at trial, but must go further, providing affidavits from the uncalled witnesses “detailing their testimony” and other “evidence he intends to present on remand,” together with an explanation of “how that evidence supports both prongs of” his ineffective assistance claim. Johnston, 2000 UT App 290, ¶ 11; see also State v. Christensen, 2013 UT App 163, ¶¶ 2, 4, 305 P.3d 222 (per curiam) (denying a rule 23B motion because the defendant did not include “certain medical records and an insurance report” with her motion). Where facts in the record already support the claim or a defendant “merely hopes to discover evidence suggesting ineffectiveness,” remand is not available under rule 23B. Johnston, 2000 UT App 290, ¶ 23.

At ¶ 16.

With respect to the evidence not introduced, Curtis has failed to allege nonspeculative facts as rule 23B requires. See Utah R. App. P. 23B(a) (“The motion shall be available only upon a nonspeculative allegation of facts . . . .”); Johnston, 2000 UT App 290, ¶ 10. Fact allegations are insufficient unless the defendant “present[s] this court with the evidence he intends to present on remand and explain[s] how that evidence supports” an ineffective assistance of counsel claim. Johnston, 2000 UT App 290, ¶ 11. . . .

At ¶ 18.

Here, Curtis failed to include several key pieces of evidence with his motion. Although affidavits from Mother, Curtis’s sister, M.V.’s foster mother (Foster Mother), and Curtis’s mother all mention photographs showing M.V. had no track marks on her arms six weeks after she claims to have used cocaine with Curtis, the photographs themselves were not provided. Similarly, Curtis’s supporting memorandum refers to a hair follicle drug test “showing [M.V.’s] negative results for cocaine use,” but he does not provide the test results in any evidentiary form. Curtis’s motion also describes a DCFS report showing that M.V. denied Curtis abused her. The defendant cites a specific page of the report in his motion, but he does not provide a copy of the report itself. “Absent the evidence that is the subject of the motion for remand, this court is left with only speculation about the content and value of the proposed evidence.” Id. ¶ 4. Thus, without the photographs, tests results, or the DCFS report, the motion for remand is based “largely upon hearsay and allegations reciting what [Curtis] hopes” the evidence will show, see Johnston, 2000 UT App 290, ¶ 18, and not on the required “nonspeculative allegation of facts,” Utah R. App. P. 23B(a). Consequently, Curtis has not met the requirements for remand on these issues.

At ¶ 19.

        For similar reasons, Curtis’s motion does not justify remand to supplement the record with testimony from “Jonathan Rowley [of DCFS] and M.B.”—two potential witnesses the defendant argues his attorney should have interviewed and called at trial. First, Curtis has not attached an affidavit detailing M.B.’s testimony. See State v. Johnston, 2000 UT App 290, ¶ 11, 13 P.3d 175 (per curiam). Instead, he relies on Mother’s affidavit, which simply states, “[M.B.] spent a lot of time at our home and she would have been able to dispute some of what [M.V.] testified to in court.” Mere “recitation of what [a witness] would have said,” however, “is speculative[,] . . . is largely conclusory,” and does not satisfy the requirements of rule 23B. Id. ¶ 17. Second, while Curtis’s motion identifies Jonathan Rowley as the author of the DCFS report, there is no affidavit from Rowley detailing the substance of his testimony. The only reference to Rowley in any of the four affidavits Curtis attached to his motion is one sentence from Curtis’s mother’s affidavit: “The DCFS worker who ordered the drug testing was not called at trial.” This falls well short of rule 23B’s requirement that defendants “identify . . . uncalled witnesses” and “identify specific facets of their testimony that might have helped [the] case.” State v. Vessey, 967 P.2d 960, 965 n.5 (Utah Ct. App. 1998).

At ¶ 20.

Curtis has also failed to demonstrate that remand is appropriate to supplement the record with evidence that “the jury and witnesses had been tainted by hearing the [court’s] sidebars [with the attorneys].” Curtis maintains that his attorney “should have motioned the court for a new trial” instead of requesting a curative instruction and that Curtis received ineffective assistance as a result. However, “the affidavits supporting [a rule 23B] motion must ‘allege facts that’ . . . demonstrate prejudice, i.e., that the result would have been different had counsel’s performance not been deficient.” Johnston, 2000 UT App 290, ¶ 13 (quoting Utah R. App. P. 23B(b)). Curtis has not satisfied this standard.

At ¶ 21.

[I]n order to justify rule 23B remand, Curtis must allege nonspeculative facts that indicate a witness changed her testimony after hearing court proceedings, thereby prejudicing Curtis to the extent that he cannot be said to have had a fair trial. Cf. State v. Cramer, 2002 UT 9, ¶¶ 32–33, 44 P.3d 690 . . . .

At ¶ 22.

Although each affidavit provides evidence that the exclusionary order was ineffective [because witnesses could hear the side bar discussions], none of them “provide . . . evidence that [witnesses] changed [their] testimon[ies]” because they overheard sidebar conversations or other court proceedings. See Cramer, 2002 UT 9, ¶ 33. Three of them are silent on the issue, and Foster Mother simply expressed concern “that this issue may have affected the testimony of other witnesses in this case,” without identifying specific information the witnesses overheard that could have had such an effect. “This invitation to speculate cannot substitute for proof of prejudice,” see State v. Arguelles, 921 P.2d 439, 441 (Utah 1996), and Curtis has therefore failed to persuade us that remand is appropriate on this issue.

At ¶ 24.

We conclude for similar reasons that remand is not necessary on the issue of whether Curtis’s attorney should have moved for a new trial “based on the possibility that the jury improperly overheard several sidebar conversations.” Defendant’s trial counsel, who participated in each sidebar conversation, requested and received a curative instruction rather than moving for a mistrial. “In the absence of the appearance of something persuasive to the contrary, we assume that the jurors were conscientious in performing . . . their duty, and that they followed the instructions of the court.” State v. Burk, 839 P.2d 880, 883 (Utah Ct. App. 1992). And curative instructions are “ordinarily presumed on appeal to be effective,” State v. Winward, 941 P.2d 627, 635 (Utah Ct. App. 1997), absent a “substantial and prejudicial” underlying error or irregularity, State v. Hodges, 517 P.2d 1322, 1325 (Utah 1974). In order to justify remand, Curtis must therefore allege facts showing that sidebar discussions likely so tainted the jury that “there is a reasonable probability that [Curtis] cannot have [had] a fair and impartial determination of his guilt or innocence.” See Hodges, 517 P.2d at 1324.

At ¶ 25.

The defendant has not alleged facts demonstrating that his trial counsel’s decision prejudiced the result in his case. In his rule 23B motion, Curtis states that “the information the jury overheard could not be erased by a curative instruction,” but he does not describe in meaningful detail the contents of the sidebar discussions or analyze why they would have had this effect. . . . Without more, “there is no reason to believe that the jury [was] . . . unable to follow the court’s instructions and ignore” the sidebar discussions. See State v. Menzies, 889 P.2d 393, 402 (Utah 1994). Remand to supplement the record on this issue is therefore not required.

At ¶ 26.

Finally, remand is not necessary on Curtis’s claim that his attorney was ineffective for mistakenly opening the door to damaging impeachment testimony because that issue can be decided on the existing record. “‘Rule 23B is directed to cases where some crucial factual information is absent from the record,’” not “‘the typical ineffective assistance case where the parties dispute whether trial counsel’s actions reflected some strategy, given the facts established by the record.’” State v. Johnston, 2000 UT App 290, ¶ 9, 13 P.3d 175 (per curiam) (quoting State v. Tennyson, 850 P.2d 461, 468 n.5 (Utah Ct. App. 1993)).

At ¶ 27.

Here, Curtis fails to identify any crucial factual information absent from the record. . . . Consequently, remand is unnecessary on this issue.

At ¶ 28.

In summary, we conclude that rule 23B remand is unnecessary to resolve Curtis’s claims on appeal. Because Curtis has not provided the evidence absent from the record he argues supports his claim—the photographs, drug test results, DCFS report, or affidavits from Rowley and M.B.—he has not alleged nonspeculative facts showing ineffective assistance as rule 23B requires. Additionally, the affidavits supporting Curtis’s motion provide no facts indicating that witnesses changed their testimonies or that the jury was irreparably biased by overhearing sidebar conversations. Finally, whether Curtis received ineffective assistance when his attorney opened the door to evidence of marijuana use can be decided on the existing record.

At ¶ 29.

Ineffective Assistance

Curtis argues that his trial counsel did not provide him with effective assistance. He asserts that because the case was essentially “a credibility contest between [M.V.] and [the defendant],” his counsel should have used every “opportunit[y] to cast doubt on [M.V.’s] credibility and testimony.” Specifically, Curtis maintains that his attorney should have presented “photos, drug test results, [and] a [DCFS] report” that Curtis asserts would have undermined M.V.’s credibility. Additionally, Curtis argues that his counsel was ineffective for failing to “interview potential witnesses that would have called into question . . . [M.V.’s] credibility” and for “failing to motion for a new trial after . . . the jury and excluded witnesses” overheard sidebar conversations. Finally, Curtis argues that his counsel was deficient for “opening the door to damaging crossexamination” and “impeachment testimony” regarding drug use in the home.

At ¶ 30.

[W]here our rule 23B analysis has already resolved an underlying ineffective assistance issue, we refer back to the pertinent section of this decision.

At ¶ 31.

The Court sets forth the Strickland v. Washington, 466 U.S. 668 (1984), two-part test for ineffective assistance of counsel claims: (1) deficient performance, and (2) prejudice. 

At ¶¶ 32-34.

A. Failure to Introduce Evidence 

Curtis has not shown that his counsel’s performance was deficient for failing to introduce into evidence the photographs, DCFS report, and drug test results. First, none of this evidence appears in the record, and Curtis did not include it in his rule 23B motion for remand. Without it, we have no way of knowing whether the photographs actually show M.V.’s arms free of scarring soon after the alleged cocaine use, whether M.V. actually tested negative for cocaine, or whether the DCFS report was so compelling that no reasonable attorney would have failed to introduce it into evidence. On appeal, we “presume that any argument of ineffectiveness presented to [us] is supported by all the relevant evidence of which the defendant is aware,” and “ambiguities or deficiencies resulting [from an inadequate record] simply will be construed in favor of a finding that counsel performed effectively.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. Without any of this evidence before the court, Curtis’s claim that his trial counsel performed deficiently for failing to introduce it cannot succeed because it remains “speculative” and not “a demonstrable reality.” See Munguia, 2011 UT 5, ¶ 30 (citation and internal quotation marks omitted).

At ¶ 35.

Second, given the uncertainty surrounding this evidence, we cannot say there was “no reasonable basis” supporting the decision to leave it out. See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (citation and internal quotation marks omitted). . . .

At ¶ 36.

The Court discusses possible legitimate strategies for not introducing the evidence.

At ¶¶ 36-39.

B. Failure to Interview

For similar reasons, the defendant has not demonstrated that his attorney provided ineffective assistance by failing to interview Jonathan Rowley or M.B. . . .

At ¶ 40.

            Here, while the defendant’s brief mentions that his trial counsel “was aware of other potential witnesses[,] Jonathan Rowley of the [DCFS] and [M.B.],” he does not assert that trial counsel failed to interview Rowley. And although Curtis does argue that “[i]t is unclear why counsel decided not to interview [M.B.],” neither the record nor the four affidavits attached to Curtis’s 23B motion reasonably support an assertion that no interview took place. Rather, Mother states that she “informed [defendant’s trial counsel] about the existence of [M.B.] . . . and [that] she would have been able to dispute some of what [M.V.] testified to in court.” She does not assert that the defendant’s trial counsel failed to interview M.B.

At ¶ 41.

       Even were we to assume that trial counsel failed to interview both witnesses, Curtis has not shown that he was prejudiced. Other than Mother’s statement that M.B. “was a family friend [who] . . . spent extensive time” at the home and “would have given testimony that would undermine [M.V.’s] testimony,” Curtis provides no description of what M.B. would have testified to at trial. Similarly, the most detailed description of Rowley’s potential testimony is a single line in the defendant’s mother’s affidavit: “The DCFS worker who ordered [M.V.’s] drug testing was not called at trial.” Without nonspeculative evidence establishing what each witness could have testified to at trial, Curtis has not shown that any deficient performance by trial counsel in failing to interview them was “‘so serious’” that it “‘deprive[d] [him] of a fair trial,’ and that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,’” State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1 (quoting Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)).

At ¶ 42.

C. Curative Instructive v. Mistrial

Curtis has not shown “a demonstrable reality,” State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (citation and internal quotation marks omitted), that his counsel was deficient or that he suffered prejudice when counsel requested a curative instruction instead of moving for a new trial after the jury and excluded witnesses overheard sidebar conversations. . . . We are not persuaded.

At ¶ 43.

Whether to move for a mistrial or request a curative instruction is a strategic decision that is “‘generally left to the professional judgment of counsel.’” State v. Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004 (quoting State v. Wood, 648 P.2d 71, 91 (Utah 1982)). For the most part, appellate courts refrain from second guessing trial counsel’s legitimate strategic choices, id., to avoid the “distorting effects of hindsight” that would result from evaluating “counsel’s performance on the basis of an inanimate record,” State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). This standard takes into account the fact that trial counsel, “[u]nlike a later reviewing court, . . . observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). Accordingly, if there is any “plausible strategic explanation for counsel’s behavior,” we assume counsel acted competently. Tennyson, 850 P.2d at 468.

At ¶ 44.

Here, there is almost no evidence in the record or in the defendant’s rule 23B motion that describes the content of the unrecorded sidebars. Curtis’s trial counsel, a participant in each discussion, described them as focused on technical evidentiary issues—“prior bad acts and uncharged, that sort of stuff”—that may have been “enough in lawyer code . . . that [the jury] didn’t exactly clue into what [they] were talking about.” If this characterization is accurate—and Curtis has not identified any evidence that it is not—there was no basis for a conclusion that the jurors were irreparably biased or that lay witnesses would alter their testimonies after hearing a highly technical evidentiary discussion. This is especially true where Curtis’s counsel, an experienced trial attorney who had been privy to all that was said at the pertinent bench conferences, judged that whatever the jury might have heard was relatively obscure and could be remedied with an instruction from the judge. See State v. Moore, 2012 UT App 227, ¶ 6, 285 P.3d 809 (recognizing that ineffective assistance claims fail if any “conceivable legitimate tactic or strategy can be surmised from counsel’s actions” and that there is “a strong presumption that trial counsel was competent” (citations and internal quotation marks omitted)). Further, a successful mistrial motion would have meant a new jury. Curtis’s attorney may have been satisfied with the jury and concluded that the possibility of a less sympathetic jury outweighed any marginal benefit his client might receive from a new trial. Consequently, we cannot say that requesting a curative instruction instead of moving for a mistrial lacked any plausible strategic basis, particularly considering our duty to “construe[] ambiguities or deficiencies” in the record “in favor of finding that counsel performed effectively,” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.

At ¶ 45.

But even if we assume that defendant’s trial counsel performed deficiently, we are not persuaded that Curtis suffered any prejudice. For reasons we have already discussed, Curtis has not shown that the sidebar conversations altered witness testimony or affected jurors in a way that undermined the integrity of his trial. See supra ¶¶ 21–26.

At ¶ 46.

D. Opening Door to Prior Bad Acts Evidence

Curtis argues that he received ineffective assistance when his attorney “inadvertently opened the door to impeachment testimony” and “cross-examination that undermined the defense’s credibility.” Early in Curtis’s trial, the court ruled inadmissible evidence of drug use other than the cocaine use alleged to have accompanied each instance of sexual abuse. But during Mother’s direct examination, the defendant’s attorney asked a broader question—whether she ever saw “any indication of drug use going on in [her] home?” (Emphasis added.) As a consequence, on crossexamination, the court permitted the prosecution to ask Mother and Curtis about marijuana use because trial counsel “opened th[e] door on that issue when [he] asked [Mother] if she was aware of drug use in the home,” instead of limiting her testimony to cocaine use. Sister was also permitted to testify for the prosecution in rebuttal that she had seen the defendant and M.V. use cocaine together “several times.”

At ¶ 47.

Curtis argues that evidence of marijuana use and other cocaine use “was not initially admissible” and “[b]ut for Counsel’s . . . blunder, [Sister] would not have testified as a rebuttal witness [and] would not have corroborated [M.V.’s] testimony.” He also asserts that the error undermined Curtis’s and Mother’s testimony and “prejudiced the jury against . . . Curtis because of the drug distribution charges alleged against him.” Even if we assume Curtis’s attorney performed deficiently by failing to limit his question to cocaine use, Curtis has not shown that Sister’s rebuttal testimony about Curtis’s cocaine use with M.V. or the evidence of marijuana use resulted in material prejudice.

At ¶ 48.

Where an attorney opens the door to damaging evidence, there is no prejudice if the evidence is admissible independent of the attorney’s error. See State v. Gonzales, 2005 UT 72, ¶ 68, 125 P.3d 878. . . .

At ¶ 49.

Here, while Curtis correctly points out that his attorney’s examination of Mother opened the door to Sister’s testimony, the district court also concluded that Sister’s testimony would have been admissible even if counsel’s questioning of Mother had been limited to “cocaine use” instead of “drug use” in general. When Sister testified on rebuttal that she saw the defendant use cocaine with M.V. “several times,” defense counsel objected. After some discussion, the court ruled that Sister’s rebuttal testimony was admissible for three reasons: (1) Mother testified that M.V. “was lying and [Mother was] aware of her lying because she’s lived with her”; (2) Mother testified that there was no drug use in the home; and (3) Curtis testified that he never used cocaine with M.V.

At ¶ 50.

On appeal, Curtis’s ineffective assistance claim attacks just one of these three grounds for admissibility. Thus, like in Gonzales, where the court determined no prejudice resulted because evidence of prior bad acts was admissible independent of the attorney’s errors, id. ¶ 68, here Sister’s rebuttal testimony would have been admissible regardless of any error Curtis’s attorney committed. As a result, we are not persuaded that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’” if Curtis’s attorney had not opened the door to Sister’s rebuttal testimony during Mother’s direct examination. See State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

At ¶ 51.

“Utah courts have allowed impeachment evidence even though it introduces evidence of a prior bad act if the purpose of the evidence is to affect credibility.” State v. Tucker, 800 P.2d 819, 824 (Utah Ct. App. 1990). Even where impeachment evidence is improperly admitted, the verdict stands unless “‘the likelihood of a different outcome’” absent the improperly admitted evidence is “‘sufficiently high to undermine confidence in the verdict.’” State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)). And because the prejudice standard for improperly admitted evidence is “equivalent” to “the prejudice test of ineffective assistance” claims, State v. Martinez, 2013 UT App 154, ¶ 5, 304 P.3d 110, we rely on cases from both areas in our analysis.

At ¶ 54.

Evidence of marijuana use, by itself, is not sufficiently prejudicial to undermine our confidence in the jury’s verdict. Proof of prejudice “must be a demonstrable reality,” not mere speculation, Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993), and errors that have an “isolated” or “trivial effect” on the verdict are not prejudicial, State v. Hales, 2007 UT 14, ¶ 86, 152 P.3d 321 (citation and internal quotation marks omitted). Accordingly, Utah courts have refused to overturn convictions where the prejudicial effect of improperly admitted evidence was diminished by the presence of more damaging evidence legitimately part of the record. . . .

At ¶ 54.

Here, Curtis’s and Mother’s admissions that they used or acquiesced in marijuana use in a home occupied by several minors certainly did not bolster Curtis’s defense, but other evidence of drug use in the family’s home likely blunted any prejudicial effect. M.V. testified that by early 2008, when she moved out of Salt Lake, she “had already developed kind of a bad cocaine problem” and had “been shooting up with [Curtis] for a few months.” She also mentioned that Curtis used cocaine with her several times a day for a period of seven months and admitted that Mother had “seen [M.V.] smoke pot.”6 And Sister testified that she saw M.V. and Curtis use cocaine “several times” in both the bedroom and the bathroom of the family’s home. Mother’s ready admission that she “kn[ew] about marijuana use in [her] home” and Curtis’s brief testimony that he “smoke[d] marijuana [himself]” were themselves relatively mild in comparison to the “far more damaging testimony” of pervasive cocaine use over a seven-month period. See Davis, 965 P.2d at 537–38. Thus, evidence that Curtis smoked marijuana would have merely an “isolated” or “trivial effect” on the verdict. See Hales, 2007 UT 14, ¶ 86 (citation and internal quotation marks omitted).

At ¶ 55.

We are also not persuaded that opening the door to marijuana use undermined Curtis’s and Mother’s credibility enough to have a material effect on the verdict. . . .

At ¶ 56.

The Court explains why it is not convinced that the admission of marijuana evidence was sufficient prejudicial to undermine the verdict.  Most influential was the context of the evidence and Sister’s rebuttal testimony.

At ¶¶ 56-60.

Because Curtis has not included key pieces of evidence with his rule 23B motion and because the affidavits accompanying his motion fail to allege nonspeculative facts to support his ineffective assistance claim, we deny Curtis’s rule 23B motion for remand. We also deny Curtis’s ineffective assistance of counsel claim because he has not shown his attorney’s failure to introduce evidence was deficient, and any other errors that may have been committed did not result in prejudice.

At ¶ 61.

In re J.F., 2013 UT App 288, No. 20130242-CA (December 5, 2013)

ISSUE: Substitution of Counsel

Per established policy, I will not be summarizing that portion of this case that challenges the sufficiency of evidence for a determination terminating her parental rights.

Judge Davis,

Mother next argues that the juvenile court erroneously denied her day-of-trial motion for substitute counsel because the “total” breakdown in communication between her and her appointed counsel (Counsel) amounted to a deprivation of her statutory right to effective counsel, see Utah Code Ann. § 78A-6- 1111(1)(a) (LexisNexis 2012); In re C.C., 2002 UT App 149, ¶ 9, 48 P.3d 244 (recognizing that the statutory right to counsel in parental termination cases requires that the appointed counsel provide effective assistance). Mother does not dispute that the juvenile court made the required inquiry into her motion for substitute counsel, see In re C.C., 2002 UT App 149, ¶ 12, but argues that her motion was erroneously denied. We review the juvenile court’s denial of Mother’s request for new counsel for an abuse of discretion. See id. ¶¶ 6, 10.

At ¶ 11.

The juvenile court has the discretion to appoint substitute counsel if the court’s inquiry into the party’s request reveals good cause for the substitution. See id. ¶¶ 12, 14. “[T]o warrant substitution of counsel, a defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict.” State v. Lovell, 1999 UT 40, ¶ 31, 984 P.2d 382 (citation and internal quotation marks omitted).5 “[T]he cause of the breakdown—or who is to ‘blame’—in an attorney–client relationship significantly affects whether the breakdown . . . requires the court to substitute a defendant’s court-appointed counsel.” State v. Scales, 946 P.2d 377, 382 (Utah Ct. App. 1997) (applying a constitutional standard). Accordingly, “[a] defendant must do more than show that he or she does not have a ‘meaningful relationship’ with his or her attorney,” and “[t]he fact that a defendant does not get along with his [or her] attorney does not, standing alone, establish a denial of the effective assistance of counsel.” Id. (second and third alterations in original) (citations and internal quotation marks omitted). Likewise, a defendant cannot rely “solely on [her] illegitimate complaints or subjective perception of events” to establish that her attorney–client relationship is “imperiled” by “intense animosity.” Id. (citation and internal quotation marks omitted).

At ¶ 12.

We agree with the juvenile court that Mother’s decision not to cooperate with Counsel after having cooperated with her for several years, combined with Mother’s vague assertion that Counsel had not been doing “enough” and may have been rude at times, do not establish good cause for substitution of counsel. . . . . Mother admitted to having affirmatively avoided Counsel’s communications by failing to respond to Counsel’s various letters requesting that they schedule a meeting. The juvenile court acknowledged that Mother’s decision to avoid communicating and cooperating with Counsel was illustrative of “friction” in their attorney–client relationship but determined that Mother’s choice to avoid Counsel did not “establish[] that a complete breakdown of communication existed.” See In re S.W., 2007 UT App 50U, para. 3 . . . Despite Mother’s avoidance of Counsel, she and Counsel had met once before trial and again the morning of trial. Counsel asserted that she was prepared and ready to represent Mother at trial. . . . Accordingly, the juvenile court did not abuse its discretion in denying Mother’s motion to appoint substitute counsel.

At ¶ 13.

December 3, 2013 Utah Supreme Court Case Summaries

State v. Machan, 2013 UT 72, No. 20110961 (December 3, 2013)

ISSUES: Burglary, Voluntary Relinquishment of Possessory Rights

Justice Durham,

           Wesley Machan was charged with aggravated burglary, aggravated assault, and commission of domestic violence in the presence of a child after he entered a home he owned with his estranged wife and brandished a rifle. Mr. Machan had been arrested and removed from the home six months prior to this incident and had been living in a separate residence due to a restraining order against him. Three weeks prior to his entry into the home, however, the restraining order expired. A magistrate found Mr. Machan could not be bound over on the aggravated burglary charge because there was insufficient evidence that he had relinquished his possessory interest in the home to render his entry unlawful within the meaning of Utah’s burglary statute.

At ¶ 1.

We affirm the magistrate’s determination. Although an estranged spouse may implicitly relinquish his or her possessory rights to the marital home by voluntarily establishing a separate residence, the State did not produce evidence of voluntary relinquishment in this case.

At ¶ 2.

The Court outlines the background of this case. 

At ¶¶ 3-7.

“An actor is guilty of burglary who enters or remains unlawfully in a building or any portion of a building with intent to commit . . . a felony. . . .” UTAH CODE § 76-6-202(1). An entry is unlawful if “the premises are not open to the public” and “the actor is not otherwise licensed or privileged to enter . . . the premises.” Id. § 76-6-201(3). An aggravated burglary conviction requires proof of all of the elements of burglary, as well as evidence of one of several aggravating factors, including the threatened use or possession of a dangerous weapon. Id. § 76-203(1).

At ¶ 11.

The principal contested issue at the bindover hearing was whether the State had produced “evidence sufficient to support a reasonable belief” that Mr. Machan’s entry into the family residence was unlawful. State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058 (internal quotation marks omitted). Because the restraining order was no longer in effect, and because Mrs. Machan had not obtained an order establishing the parties’ rights to the marital home in the pending divorce proceedings, Mr. Machan did not unlawfully enter the home in violation of a court order. See State v. Byars, 823 So. 2d 740, 745 (Fla. 2002) (“A court order can negate a person’s right to enter the premises even if that person owns the premises.” (internal quotation marks omitted)). The State asserts, however, that Mr. Machan relinquished his privilege to enter the home by establishing a separate residence, making his presence in the home unlawful within the meaning of Utah’s burglary statute. Our case law has not addressed the conditions under which an estranged spouse may burglarize the family home absent a court order excluding the spouse. We look, therefore, to other states that have addressed this issue.

At ¶ 12.

A title owner of a dwelling is not always privileged to enter the premises. For example, a landlord may burglarize the dwelling of a tenant because the landlord conveys the right of possession to the tenant. See State v. Spence, 768 N.W.2d 104, 109 (Minn. 2009). Thus, the proper focus of our inquiry is whether Mr. Machan surrendered his possessory rights to the family home prior to his entry and alleged assault. See State v. Hagedorn, 679 N.W.2d 666, 670 (Iowa 2004) . . . .

At ¶ 13.

. . . We . . . agree with the Minnesota Supreme Court that a cotenant’s waiver of possessory rights to a shared home is properly grounded in contract law. Spence, 768 N.W.2d at 109–10. Under these principles, it is generally a jury question whether the parties’ actions give rise to an implied-in-fact contract transferring the sole right of possession to the spouse who remains in the home. Id. at 110.

At ¶ 14.

Utah Code section 30- 2-10 confirms that any relinquishment of a spouse’s possessory right to the marital home must be voluntary: “Neither the husband nor wife can remove the other or their children from the homestead without the consent of the other, unless the owner of the property shall in good faith provide another homestead suitable to the condition in life of the family . . . .” By statute, therefore, consent is a necessary requirement for any nonjudicial forfeiture of a spouse’s right to enter the homestead.

At ¶ 15.

Other jurisdictions that have examined the question of whether a spouse or cotenant has relinquished possessory rights to a previously shared dwelling in the context of a burglary charge have identified several relevant considerations. Courts look foremost to whether a spouse or cotenant has voluntarily moved out of a shared home and established a separate residence. State v. O’Neal, 721 N.E.2d 73, 82 (Ohio 2000) . . . Additionally, courts have examined whether a spouse or cotenant has removed personal belongings. Hollenbeck, 944 P.2d at 539. Courts also look to whether a spouse or cotenant has willingly relinquished keys to the residence, evidencing an understanding that the excluded party could no longer enter at will. Spence, 768 N.W.2d at 111 . . . Surreptitious entry or obtaining admittance through violence may also support an inference that a spouse or cotenant understood that he or she had relinquished possessory rights to the home. Spence, 768 N.W.2d at 111 . . . .

At ¶ 16.

These considerations do not constitute an exhaustive list of relevant conduct informing the question of whether a defendant has consented to relinquish possessory rights by implication. An agreement implied in fact is inferred “from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Hercules, Inc. v. United States, 516 U.S. 417, 424 (1996) (internal quotation marks omitted). Thus, any conduct that tends to prove or disprove the existence of a mutual agreement for one spouse to relinquish a possessory right in the marital home is relevant.

At ¶ 17.

           There is no evidence that Mr. Machan voluntarily moved out of the marital home. Instead, Mr. Machan was arrested and removed from the home by police. The subsequent restraining order prohibited him from returning to the residence for the next 150 days. Thus, Mr. Machan’s removal from the home and subsequent absence during this time period could not support an inference that he had implicitly agreed to forfeit his right of possession. And the fact that his wife packed his personal belongings, which were retrieved by Mr. Machan’s sister, likewise does not bespeak a voluntary relinquishment of Mr. Machan’s property rights. Although Mrs. Machan’s unilateral removal of his belongings demonstrates her intent to remove her husband from the residence, her intent alone is insufficient.

At ¶ 19.

The State argues that because Mr. Machan did not take his house keys when he was initially arrested and removed from the home, he abandoned his right to return. But the record reflects that Mr. Machan simply did not have keys to the house on him when he was arrested. He did not voluntarily relinquish his keys. See Gill, 70 Cal. Rptr. 3d at 867.

At ¶ 20.

The State also asserts that the fact that Mr. Machan’s wife gave him permission to enter the home twice during the pendency of the restraining order indicated an understanding that Mr. Machan could only enter the property after obtaining a license to do so from his wife. During this period of time, however, the restraining order obtained by Mrs. Machan prohibited his presence on the property. Therefore, any permission to enter the home while the restraining order was in place merely evidences an agreement not to inform the authorities of the violation of the restraining order, rather than an agreement to relinquish Mr. Machan’s possessory rights.

At ¶ 21.

As additional support for its argument that Mr. Machan had relinquished his possessory rights, the State presented evidence that after Mr. Machan was arrested and removed from the home his wife paid the mortgage. But the State presented no evidence of who contributed to the mortgage payments prior to his arrest, so there is no indication that Mr. Machan changed his behavior. Undoubtedly many spouses do not make mortgage payments, but this alone does not indicate an intent to abandon all possessory rights to the marital home.

At ¶ 22.

Finally, the State argues that Mr. Machan’s failure to reestablish his residency for approximately three weeks after the restraining order had lapsed shows that he intended to relinquish his right to enter the marital home. In some instances an extended absence from the home may give rise to an inference of a mutual agreement to relinquish one spouse’s possessory right. However, the relatively short amount of time between the expiration of the restraining order and Mr. Machan’s subsequent reentry into the home is insufficient, by itself, to support such an inference here. A failure to act, moreover, is less indicative of the existence of an implied agreement than affirmative acts consistent with such an agreement. Absent other evidence of affirmative acts demonstrating an intent to relinquish his possessory rights, Mr. Machan’s threeweek absence from the home is insufficient to demonstrate an intent to relinquish his possessory rights.

At ¶ 23.

Examining the totality of the evidence, we conclude the magistrate did not abuse his limited discretion by finding that the State’s evidence was insufficient to support a reasonable belief that Mr. Machan implicitly agreed to relinquish his possessory right to the family home. Although the State’s burden in the bindover hearing is light, we cannot say that the magistrate erred in determining the State did not carry that burden here.

At ¶ 24.

State v. Bedell, 2013 UT 73, No. 20120692 (December 3, 2013)

ISSUES: Rule 404(b) Evidence of Prior Bad Acts

Justice Nehring,

The State challenges the Utah Court of Appeals‘ reversal of defendant Dr. Raymond Bedell‘s conviction of misdemeanor sexual battery. The State asserts that a panel majority of the court of appeals erred when it reversed Dr. Bedell‘s conviction on the basis of ineffective assistance of counsel and plain error on the part of the district court. . . .  We reverse the decision of the court of appeals, vacate that opinion, and affirm Dr. Bedell‘s conviction.

At ¶ 1.

Without objection by defense counsel, the prosecutor then elicited testimony during redirect examination of the detective that there had been an investigation into six other allegations of sexual misconduct against Dr. Bedell by former female patients. The women all reported similar incidents: Dr. Bedell abused each victim on their first visit while he was alone with them, he made similar comments to the women who were of similar ages, and he prescribed narcotics for each.

At ¶ 11.

Later in the proceedings, while discussing jury instructions outside the presence of the jury, the prosecution requested a limiting instruction for the evidence related to the other allegations against Dr. Bedell. The prosecutor asked that the court instruct the jury that evidence of other sexual misconduct by Dr. Bedell “is solely for the purpose of testing whether [S.B.] could have created the story” so “that the jury will understand clearly that they are not deciding the truth of the other allegation[s].” Defense counsel stated that he had no objection. After the court expressed some concern, the prosecutor said he would discuss the instruction in his closing argument to explain that the other sexual misconduct evidence was presented “to respond to the defendant‘s strategy of claiming that [S.B.] ginned up this story or fabricated it.” The court replied, “I think that‘s appropriate.” Defense counsel did not object to the prosecutor‘s proposed argument.

At ¶ 12.

Dr. Bedell appealed to the Utah Court of Appeals. He argued that the district court committed plain error and his trial counsel was ineffective in allowing the investigating detective‘s testimony on redirect examination about other allegations of sexual misconduct against him (the 404(b) evidence). . . .

At ¶ 16.

. . . The majority determined there was “no basis in the record for the trial court to have reversed its original ruling, as there is nothing to indicate that [Dr.] Bedell opened the door to the 404(b) evidence.” The majority accordingly held that the district court plainly erred and counsel rendered ineffective assistance in allowing the 404(b) evidence.

At ¶ 17.

Even without conjecturing whether the district court revised its earlier 404(b) ruling during the unrecorded bench conference (as the State asks us to do), the record as it exists supports the conclusion that defense counsel made an affirmative decision from the outset to utilize the 404(b) evidence to attack the State‘s case and S.B.‘s credibility. This was particularly evident during the defense‘s cross-examination of the investigating detective, wherein counsel asked the detective about the other allegations against Dr. Bedell. Once this occurred, the State was permitted to use the 404(b) evidence to refute the defense theory21 and to rebut the defense‘s allegation of fabrication. This would explain defense counsel‘s decision to not object to the State‘s use of the same evidence to defend against Dr. Bedell‘s invocation of the evidence.23 Further, the defense‘s strategy was likely effective, as Dr. Bedell was acquitted of the more serious charges and convicted of only the lesser-included misdemeanor.

At ¶ 24.

For these reasons, we disagree with the majority decision of the court of appeals, which could “see no basis in the record for the trial court to have reversed its original ruling, as there [was] nothing to indicate that [Dr.] Bedell opened the door to the 404(b) evidence.” We agree with Judge Thorne‘s dissenting opinion that “[Dr.] Bedell attempted to use the 404(b) evidence to his advantage in two distinct ways”: as a means to attack the State‘s investigation and to suggest that S.B. “was engaging in copycat behavior, accusing [Dr.] Bedell of misbehavior because she knew that he was already being accused by others.” Therefore, because there was a legitimate strategic decision for Dr. Bedell‘s counsel to use the 404(b) evidence and his use of that evidence allowed the State to similarly make use of the evidence, his ineffective assistance of counsel claim must fail.

At ¶ 25.

In light of the court‘s pretrial ruling that the State could ”resubmit some or all of the 404(b) evidence at trial . . . if [Dr. Bedell] ‘open[ed] the door‘ to the same,” the court did not commit plain error by allowing the evidence to come in at trial. A district court is “not required to constantly survey or second-guess [a] nonobjecting party‘s best interests or trial strategy” and is not expected to intervene in the proceedings unless the evidence “would serve no conceivable strategic purpose.”28 Further, the court should take measures to avoid interfering with potential legal strategy or creating an impression of a lack of neutrality.29 Plain error does not exist when a “conceivable strategic purpose‘” exists to support the use of the evidence.30 Therefore, because defense counsel was not ineffective for failing to object to the State‘s use of the 404(b) evidence, there was no plain error on the part of the district court in not intervening to foreclose the State‘s use of the evidence.

At ¶ 26.

November 29, 2013 Utah Court of Appeals Case Summaries

Cook v. Labor Commission, 2013 UT App 286, No. 20111030-CA (November 29, 2013)

ISSUES: Utah Workers’ Compensation Act, Medical Causation

Judge Christiansen,

     Petitioners Tysha R. Cook and Tristan Ritchie seek review of a final order entered by the Labor Commission Appeals Board denying their claims for compensation based upon the Utah Workers Compensation Act and the Utah Occupational Disease Act. We decline to disturb the Appeals Board’s decision.

At ¶ 1.

The Court reviews the factual background and procedural history of this case: Importantly; (1) Cook’s contraction of a “lump” on her lip, (2) her employer’s repeated denials of time off to see medical professionals which delayed biopsy of the lump, (3) the eventual discovery that the lump was malignant melanoma; (4) Cook’s death from the cancer; (5) Petitioners’ claim for dependant benefits from the Utah Labor Commission; and (6) the Labor Commission’s determination that the Utah Workers’ Compensation Act does not apply to this situation, and even if it did, Petitioners had failed to show medical causation.

At ¶¶ 2-9.

     The central issue for our review is whether the Board’s determination that Petitioners failed to establish medical causation linking the Bank’s conduct to Cook’s cancer and death was adequately supported by substantial evidence. Because “[m]edical causation is an issue of fact,” we “review the Commission’s findings under the substantial evidence standard” and “will sustain the Commission’s factual determination concerning medical causation only if its finding is adequately supported by the record.”  . . .  In other words, the Board’s factual findings are “accorded substantial deference and will not be overturned if based on substantial evidence, even if another conclusion from the evidence is permissible.” See Hurley v. Board of Review of the Indus. Comm'n, 767 P.2d 524, 526–27 (Utah 1988).

At ¶ 10.

     Under the UWCA, “[a]n employee . . . who is injured . . . by accident arising out of and in the course of the employee’s employment . . . shall be paid . . . compensation for loss sustained on account of the injury . . . .” Utah Code Ann. § 34A-2-401(1) (LexisNexis 2011). “This statute creates two prerequisites for a finding of a compensable injury. First, the injury must be ‘by accident.’ Second, the language ‘arising out of or in the course of employment’ requires that there be a causal connection between the injury and the employment.” Allen v. Industrial Comm’n, 729 P.2d 15, 18 (Utah 1986). To demonstrate the requisite causal connection, the petitioning party must prove both legal causation and medical causation. See id. at 25. However, if a party fails to establish medical causation, analysis of the legal causation element is unnecessary. Hymas v. Labor Comm’n, 2008 UT App 471, ¶ 8, 200 P.3d 218; see also Lancaster v. Gilbert Dev., 736 P.2d 237, 239 (Utah 1987). To establish medical causation, a “claimant must show by evidence, opinion, or otherwise that the stress, strain, or exertion required by his or her occupation led to the resulting injury or disability.” Allen, 729 P.2d at 27.

At ¶ 12.

The Court reviews the evidence presented to the Board and determines that they lack of causation determination was supported by substantial evidence.

At ¶¶ 12-20.

Lilley v. JP Morgan Chase, 2013 UT App 285, No. 20120625-CA (November 29, 2013)

ISSUES: Breach of Contract, Third-Party Beneficiary Claims, Applicability of Negligence Statute of Limitations vs. Breach of Contract Statute of Limitations

Judge Christiansen,

     Keith and Sharon Lilley (Plaintiffs) appeal from the district court’s order dismissing their breach of contract and negligence causes of action against Defendant Blake Ingram. We affirm.

At ¶ 1.

The Court outlines that background and procedural background of this case. Most importantly: (1) Defendant Ingram’s appraisal of property Plaintiffs intended to construct, pursuant to a contract with the lender, JP Morgan Chase; (2) Plaintiffs’ borrowing of money from JP Morgan Chase to construct the appraised home; (3) Plaintiffs’ default on the loan; (4) Plaintiff’s claims against Ingram asserting that Ingram breached the contract by performing a faulty appraisal causing them to borrow too much money and, alternatively, that Ingram performed a negligent appraisal causing them to borrow too much money; and (5) the trial court’s dismissal of both claims.

At ¶¶ 2-4.

Third-Party Beneficiary Status

     Plaintiffs first challenge the district court’s dismissal of their breach of contract claim. Because only Lender and Ingram are direct parties to the appraisal contract, Plaintiffs must establish that they are third-party beneficiaries of that contract in order to pursue an alleged breach. “The existence of third party beneficiary status is determined by examining a written contract.” Wagner v. Clifton, 2002 UT 109, ¶ 11, 62 P.3d 440 (citation and internal quotation marks omitted). “The written contract must show that the contracting parties clearly intended to confer a separate and distinct benefit upon the third party.” Id. (citation and internal quotation marks omitted). Indeed, “[i]t is not enough that the parties to the contract know, expect or even intend that others will benefit from the [contract] . . . . The contract must be undertaken for the plaintiff’s direct benefit and the contract itself must affirmatively make this intention clear.” SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 47, 28 P.3d 669 (alterations in original) (citation and internal quotation marks omitted). And “only if the written contract’s clear intent is to confer rights upon a third party may that third party enforce rights and obligations of the contract.” Wagner, 2002 UT 109, ¶ 13. Finally, “[a] third party who benefits only incidentally from the performance of a contract has no right to recover under that contract.” American Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182, 1188 (Utah 1996) . . . .

At ¶ 5.

     Plaintiffs argue that the “only reason Mr. Ingram performed an appraisal was for [Plaintiffs’] financial lending decision.” (Emphasis omitted.) However, the plain language of the appraisal report indicates that the function and purpose of the report was to assist Lender in “evaluating the subject property for mortgage lending purposes.” Plaintiffs have failed to identify any provision in the appraisal report suggesting that the appraisal was for their benefit. Instead, the written language of the appraisal report expressly states the opposite—that the report was not to be used by “any other party or for any other purpose.” (Emphasis added.) Therefore, the plain language of the appraisal report does not demonstrate a “clear intent . . . to confer rights” upon Plaintiffs such that they may “enforce rights and obligations of the contract.” See Wagner, 2002 UT 109, ¶ 13. Indeed, the plain language of the report expressly rejects such an intent.

At ¶ 7.

. . . Any knowledge on Ingram’s part that Plaintiffs would subsequently use the appraisal report is insufficient to create third-party beneficiary status in Plaintiffs because the appraisal report was not “undertaken for [Plaintiffs’] direct benefit,” nor did the appraisal report itself “affirmatively make this intention clear.” Id. (citation and internal quotation marks omitted). Accordingly, we conclude that the district court correctly dismissed Plaintiffs’ breach of contract claim as a matter of law because Plaintiffs are not third-party beneficiaries of the appraisal report.

At ¶ 9.

Statute of Limitations

     The district court also determined that Plaintiffs’ negligence claim was barred by the four-year statute of limitations. Utah Code section 78B-2-307(1)(a) provides that an “action may be brought within four years . . . after the last charge is made or the last payment is received . . . upon a contract, obligation, or liability not founded upon an instrument in writing.” Utah Code Ann. § 78B-2-307(1)(a) (LexisNexis 2012) (emphasis added). The final phrase of section 78B-2-307(1)(a) is a catch-all provision that includes negligence actions.

At ¶ 10.

     A third party may bring a tort action against an appraiser for negligent preparation of an appraisal report, regardless of thirdparty beneficiary status. In West v. Inter-Financial, Inc., 2006 UT App 222, 139 P.3d 1059, this court held that “[r]eal estate appraisers have an independent duty of care to persons with whom they have no contractual relationship when performing an appraisal.” Id. ¶ 22. However, such a negligence action must be filed within the four-year statute of limitations period. See Ladd, 2011 UT App 355, ¶ 4 n.1. Because Plaintiffs obtained financing from Lender in reliance on the appraisal report on December 16, 2005, any alleged injury resulting from that report must have occurred on that date. See Clark v. Deloitte & Touche LLP, 2001 UT 90, ¶ 22, 34 P.3d 209. Thus, the four-year limitations period had began to run as of December 16, 2005, and Plaintiffs’ negligence action must have been filed as of December 16, 2009. Plaintiffs filed their first complaint on March 11, 2011. Accordingly, the district court correctly determined that any negligence claim brought by Plaintiffs was clearly barred by the four-year statute of limitations imposed by section 78B-2-307(1)(a).

At ¶ 11.

     Alternatively, Plaintiffs argue that the four-year statute of limitations does not bar their claims because Ingram’s liability arose from “written instruments,” as opposed to an independent tort duty. Under this theory, they argue that the six-year statute of limitations set forth in Utah Code section 78B-2-309(2) applies because that statute allows for causes of action to be brought within six years “upon any contract, obligation, or liability founded upon an instrument in writing.” Utah Code Ann. § 78B-2-309(2) (LexisNexis 2012) (emphasis added). 

At ¶ 12.

     However, the language of the relevant written documents is not sufficiently connected with Plaintiffs’ cause of action for the six-year statute of limitations to apply in this instance. Our supreme court has observed that Bracklein v. Realty Insurance Co. sets forth “the test for determining whether the six-year [statute of limitations] applies to a particular case.” Brigham Young University v. Paulsen Construction Co., 744 P.2d 1370, 1372 (Utah 1987). Under Bracklein, “if the fact of liability arises or is assumed or imposed from the instrument itself, or its recitals, the liability is founded upon an instrument in writing.” Bracklein v. Realty Insurance Co., 80 P.2d 471 (Utah 1938); see also Paulsen, 744 P.2d at 1372. The liability must “grow[] out of written instruments, not remotely or ultimately, but immediately.” Bracklein, 80 P.2d at 476 (emphasis, citation, and internal quotation marks omitted). The Bracklein court further explained,

If the instrument acknowledges or states a fact from which the law implies an obligation to pay, such obligation is founded upon a written instrument within the statute. If the writing upon its face shows a liability to pay, such liability is on a written instrument within the statute of limitations.

Id.

At ¶ 13.

     Again, the only document available for our review is Ingram’s appraisal report. Nothing in this report suggests, either implicitly or on its face, that “liability arises or is assumed or imposed” upon Ingram with respect to Plaintiffs. . . .

At ¶ 14.

. . . Thus, Plaintiffs have no cognizable claim that would fall within the six-year statute of limitations.

At ¶ 15.

     Accordingly, we conclude that the district court correctly dismissed all of Plaintiffs’ claims against Ingram. Affirmed.

At ¶ 16.

In re C.J., 2013 UT App 284, No. 20130885-CA (November 29, 2013)

Per my previously established policy, I will not outline this decision because Appellant challenges the sufficiency of evidence supporting a juvenile court’s determination to terminate parental rights.

Salt Lake City v. Christensen, 2013 UT App 283, No. 20121017-CA (November 29, 2013)

Per my previously established policy, I will not outline this decision because Appellant challenges the sufficiency of evidence supporting his convictions for assault on a police officer and interfering with an arrest.

State v. Bragg, 2013 UT App 282, No. 20120304-CA (November 29, 2013)

ISSUES, Ineffective Assistance of Counsel, Rule 23B remand, Prosecutorial Misconduct, Credibility Evidence, Trial Bifurcation, Prior Acts Evidence, Due Process Notice of Charged Conduct

Senior Judge Billings,

     Troy Bragg appeals from his convictions on three counts of aggravated sexual abuse of a child, each a first degree felony, see Utah Code Ann. § 76-5-404.1 (LexisNexis Supp. 2013). For the reasons stated herein, we reject Bragg’s arguments on appeal and affirm his convictions.

At ¶ 1.

The Court outlines the background of this case.

At ¶¶ 2-11.

Ineffective Assistance of Counsel

     Bragg argues that his trial counsel provided him with ineffective assistance of counsel based on multiple allegations of counsel’s deficient performance at trial. These allegations include counsel’s failure to respond to the State’s pretrial motion to admit prior act evidence under rule 404 of the Utah Rules of Evidence, failure to respond to the State’s motion to admit the recorded testimony of B.M. and his older brother pursuant to rule 15.5 of the Utah Rules of Criminal Procedure, and “opening the door” to rebuttal testimony from Bragg’s son (Son) by eliciting Bragg’s testimony denying his previous abuse of Son.3 To establish ineffective assistance of counsel, Bragg must show “(1) that counsel’s performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” State v. Phillips, 2012 UT App 286, ¶ 11, 288 P.3d 310 (citation and internal quotation marks omitted); see also Strickland v. Washington, 466 U.S. 668 (1984).

At ¶ 19.

     We disagree with Bragg that counsel performed ineffectively by failing to oppose the State’s motions to allow prior bad acts evidence and to admit the recorded testimony of B.M. and his older brother. It appears that the State’s motions were well taken, and Bragg has not established on appeal that the motions would not have been granted in large part even if his counsel had formally opposed the motions. Rule 404(c) of the Utah Rules of Evidence provides for the admission of “evidence that the defendant committed any other acts of child molestation” to prove propensity in child molestation cases. Utah R. Evid. 404(c)(1). Further, rule 15.5 of the Utah Rules of Criminal Procedure provides a procedure whereby the recorded testimony of children under the age of fourteen may be played to a jury. See Utah R. Crim. P. 15.5(a). To the extent that the State’s motions sought to admit evidence that was clearly allowed under these rules, counsel’s failure to formally oppose the motions cannot be deemed deficient performance by counsel. See State v. Gunter, 2013 UT App 140, ¶ 35, 304 P.3d 866 (“There is no requirement that counsel engage in futile acts.”). 

At ¶ 20.

     Bragg also argues that his trial counsel provided ineffective assistance when he “opened the door” to rebuttal testimony from Son that Bragg had sexually abused him in a manner similar to how Bragg was accused of abusing B.M. The allegations that Bragg had previously abused Son only came to light on the first day of trial, during the hearing on the admission of evidence under rule 404. At the hearing, while Daughter was describing her own childhood abuse by Bragg, she was asked if she had ever witnessed Bragg sexually abusing anyone else. She responded that she had witnessed Bragg abusing her younger brother, Son, when he was about B.M.’s age. Daughter repeated this information during her subsequent testimony before the jury. Prior to Bragg taking the witness stand, the prosecutor warned Bragg’s counsel that if Bragg denied abusing Son, the prosecutor would seek to introduce Son’s own testimony about the alleged abuse.

At ¶ 22.

     Thus, by the time Bragg took the stand, his counsel was faced with two bad options: fail to question Bragg about his abuse of Son, leaving unchallenged an allegation of abuse very similar to Bragg’s charged abuse of B.M.; or have Bragg deny the abuse, knowing that the State would then likely put Son on the witness stand as a rebuttal witness. Even if counsel’s necessary election between these two bad options does constitute deficient performance, we are unconvinced that counsel’s election prejudiced Bragg in light of the multitude of other evidence against him, which included testimony from both B.M. and his brother describing Bragg’s abuse of B.M. as well as Daughter’s descriptions of Bragg abusing both her and Son.

At ¶ 23.

     In sum, we conclude that Bragg has failed to demonstrate actions or omissions by his trial counsel that were both deficient and prejudicial. See generally State v. Phillips, 2012 UT App 286, ¶ 11, 288 P.3d 310. For these reasons, we reject Bragg’s ineffective assistance of counsel claims.

At ¶ 24.

Prosecutorial Misconduct

     Bragg argues that he is entitled to a new trial due to misconduct by the prosecutor during his cross-examination of Bragg. At one point during the lengthy cross-examination, after Bragg had provided an explanation of one of the alleged instances of abuse, the prosecutor stated, “Would it surprise you that I don’t believe a word you just told me?” Bragg’s counsel immediately sought to object to the prosecutor’s comment, but the district court anticipated and sustained the objection on the grounds that the prosecutor’s comment was “argumentative.” The prosecutor replied, “I’ll withdraw that, your Honor. I’m sorry,” and continued the cross-examination without further incident.

At ¶ 25.

     To obtain a new trial based on prosecutorial misconduct, Bragg must show that “‘the actions or remarks of . . . counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict’” and that, under the circumstances of the particular case, “‘the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.’” State v. Kohl, 2000 UT 35, ¶ 22, 999 P.2d 7 (quoting State v. Longshaw, 961 P.2d 925, 928 (Utah Ct. App. 1998)).  We agree with Bragg that the prosecutor’s comment expressing his own disbelief of Bragg’s testimony was improper. Cf. State v. Davis, 2013 UT App 228, ¶ 102, 311 P.3d 538 . . . However, under the circumstances, we see no prejudice to Bragg resulting from the comment.

At ¶ 26.

The Court explains that there was no prejudice because the Court immediately responded by sustaining an objection, the prosecutor withdrew the remark, and the judge informed the jury two times that it was to consider only the evidence admitted in the case and that statements by the attorneys did not constitute evidence.  Further, the Court explains that “the effect of the prosecutor’s comment must be weighed against the other evidence in the case” and that the evidence of guilt is so extensive that the single improper comment could not have prejudiced the case.

At ¶¶ 27-28.

Testimony Bolstering B.M.’s Credibility

     Bragg argues that the district court committed plain error when it allowed the detective who had conducted the recorded interview of B.M. to testify that B.M.’s interview statements seemed “genuine” and that B.M. did not appear to have been coached. . . .

At ¶ 29.

. . . We agree with Bragg that the admission of this testimony constituted error that should have been obvious to the district court.

At ¶ 30.

     Rule 608(a) of the Utah Rules of Evidence “prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. Adams, 2000 UT 42, ¶ 11, 5 P.3d 642; see also Utah R. Evid. 608(a). The detective’s testimony that B.M. appeared “to be genuine” during his interview was a direct comment on B.M.’s truthfulness and, as such, clearly violated rule 608. See Adams, 2000 UT 42, ¶ 14. Additionally, testimony that a sexual abuse victim’s interview statements were consistent and did not appear to be coached has been held to constitute both error and obvious error. See id. ¶¶ 19–20. Here, the district  court’s admission of the detective’s testimony that B.M. was consistent and genuine and did not appear to have been coached similarly constitutes obvious error.

At ¶ 31.

     However, even obvious error by the district court will not result in the reversal of a criminal conviction unless the error was prejudicial, i.e., unless it created “a sufficiently high likelihood of a different result such that our confidence in the outcome is undermined.” Id. ¶ 20. Here, as in State v. Adams, 2000 UT 42, 5 P.3d 642, there was “ample evidence” of Bragg’s guilt above and beyond the improperly bolstered testimony. See id. ¶ 21. In addition to B.M.’s interview testimony, the State presented Mother’s testimony about events occurring between Bragg and B.M., Daughter’s testimony of Bragg’s prior sexual abuse of both herself and Son, and evidence of Bragg’s own inculpatory statements. In light of this ample evidence, our confidence in the jury’s verdict is not undermined by the detective’s testimony improperly bolstering B.M.’s credibility.

At ¶ 32.

Bifurcation

     Bragg argues that the district court committed plain error when it failed to sua sponte bifurcate his trial into a guilt phase and an aggravation phase. Under such a scheme, the State would have had to prove Bragg’s sexual abuse of B.M. before the jury heard evidence of the aggravating factor—Bragg’s prior convictions for sexually abusing Daughter. Bragg relies on State v. Reed, 2000 UT 68, ¶ 22, 8 P.3d 1025, as establishing that bifurcation was required.

At ¶ 33.

     However, Reed expressly recognized that bifurcation is not required when the aggravating conviction is otherwise admissible at trial. See id. ¶¶ 25–31 (holding that trial court did not err in failing to bifurcate trial where aggravating offense was admissible under rule 404(b) of the Utah Rules of Evidence). In this case, the district court correctly determined that Bragg’s prior convictions, as well as Daughter’s testimony about the conduct giving rise to those convictions, were admissible under rule 404(c) of the Utah Rules of Evidence. Thus, under Reed, Bragg has not demonstrated any error by the district court in failing to bifurcate his trial.

At ¶ 34.

Rule 404 Issues

     Bragg argues that the district court committed plain error in admitting evidence of Bragg’s prior bad acts under rules 404(b) and 404(c) of the Utah Rules of Evidence. Bragg also argues that the district court’s jury instructions regarding this evidence were insufficient and constituted plain error. We disagree.

At ¶ 35.

     As to the admission of prior act evidence, Bragg acknowledges that the district court did not admit any evidence pursuant to rule 404(b). On appeal, Bragg fails to identify any particular evidence that was admitted under rule 404(c) but should not have been.9 Further, the interpretation and application of rule 404(c) appears to be a matter of first impression in Utah, making a challenge to rule 404(c) evidence particularly unsuited for a plain error analysis. See State v. Davis, 2013 UT App 228, ¶ 32, 311 P.3d 538 (“[A]n error is not obvious if there is no settled appellate law to guide the trial court.” (citation and internal quotation marks omitted)). For these reasons, we reject Bragg’s argument that the court committed plain error in admitting prior bad act evidence.

At ¶ 36.

     As to the rule 404 instructions, Bragg’s counsel invited any error in the instructions by affirmatively approving them. See State v. Alfatlawi, 2006 UT App 511, ¶ 26, 153 P.3d 804 (“A defendant invites error where he affirmatively approve[s] of the jury instructions at trial.” (alteration in original) (citation and internal quotation marks omitted)). During the jury instruction colloquy, defense counsel asked if the district court would be “keeping” the proposed rule 404 instructions. The district court stated that it would do so if the parties agreed that keeping the proposed instructions was appropriate, to which defense counsel responded, “I think that’s acceptable.” This affirmative representation to the district court that the rule 404 instructions were acceptable to defense counsel invited any error in the content of the instructions and precludes plain error review.

At ¶ 37.

Due Process Notice of Charged Conduct

     Bragg argues that his due process and statutory rights to adequate notice of the charges against him were violated because “the Information was unclear as to what conduct was charged, and what conduct the State purported to use as ‘prior bad acts’ evidence.” . . . We disagree.

At ¶ 38.

     It appears that Bragg’s claimed confusion about the exact nature of the charges arose in part from the format of the information, which merely alleged as to each count that Bragg “did commit sexual abuse of a child” without enumerating the specific acts that constituted the charged offense. In addition, each count listed potentially applicable aggravating factors, which included that Bragg “used, showed, or displayed pornography” during the offense.

At ¶ 39.

The Court finds that Bragg’s notice or other due process rights were not violated, despite any lack of clarity in the information, because Defendant had several opportunities to seek clarification on the Prosecution’s theory of the case.  Particularly,

Bragg waived his right to a preliminary hearing, foregoing one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed. Bragg could also have filed a pretrial motion for a bill ofparticulars, but elected not to. . . .  Nor is there any other indication in the record that, in the weeks and months leading up to trial, Bragg was concerned about inadequate notice of the charges against him. 

Further,

the prosecutor outlined the State’s theory of the case at both the rule 404 hearing and in opening arguments. In each instance, the prosecutor identified the factual basis of the three charged counts . . . . To the extent that these factual allegations constituted a surprise to Bragg or his counsel, Bragg could have requested a continuance, but he did not do so.

At ¶¶ 40-41.

The Court rejects Bragg’s Cumulative Error argument.

At ¶¶ 43-44.