State of Utah v. Deiter

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

James Deiter,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981162-CA

F I L E D
October 15, 1999
1999 UT App 292
-----

First District, Brigham City Department
The Honorable Ben H. Hadfield

Attorneys:
Candace S. Bridgess, Ogden, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

-----

Before Judges Wilkins, Bench, and Jackson.

WILKINS, Presiding Judge:

Defendant James Deiter appeals from his conviction of criminal solicitation to commit murder, in violation of Utah Code Ann. § 76-4-203 (1995). We affirm.

A. Sufficiency of Evidence

In his first point of error, Deiter contends the evidence is insufficient to support his conviction because it lacks corroboration required by section 76-4-203, both as to the solicitation itself and Deiter's intent. We disagree.

In reviewing the sufficiency of the evidence, we afford great deference to the jury verdict. See State v. Goddard, 871 P.2d 540, 543 (Utah 1994). "Where there is any evidence, including reasonable inferences that can be drawn from it, from which findings of all the elements of the crime can be made beyond a reasonable doubt, our inquiry is complete and we will sustain the verdict." Id. Reversal is warranted only when the evidence is so inconclusive or inherently improbable that "reasonable minds must have entertained a reasonable doubt that defendant committed the crime." Id. (citations omitted).

Section 76-4-203 provides that a person "commits criminal solicitation if with intent that a felony be committed, he solicits . . . another person to engage in specific conduct that under the circumstances as the actor believes them to be would be a felony." Utah Code Ann. § 76-4-203(1) (1995). However, a person may not be convicted of criminal solicitation unless "the solicitation is made under circumstances strongly corroborative of the actor's intent that the offense be committed." Id. § 76-4-203(2). A person's intent may be inferred "from conduct and attendant circumstances in the light of human behavior and experience." State v. Brooks, 631 P.2d 878, 881 (Utah 1981). In this case, an inmate testified that he overheard Deiter tell Cole to get a gun from Deiter's brother and then go to Craven's house and shoot him. The inmate stated that the conversation seemed serious and that he had previously heard rumors that Deiter wanted to kill Craven. Also, three different agents listening to a monitored conversation between Deiter and Cole testified they heard Deiter ask Cole to murder Craven, discuss how Cole could obtain a gun from Deiter's brother, and give specific directions to Craven's house. None of the officers who overheard the conversation between Deiter and Cole understood Deiter to be joking with Cole.

The foregoing evidence is plainly sufficient to support the jury determination that Deiter solicited Cole to murder Craven. Furthermore, the evidence strongly corroborates Deiter's intent that Cole commit a first degree felony by killing Craven. Although Deiter claims the solicitation was only "jokingly" made, "it is within the province of the jury to judge the credibility of the testimony, assign weight to the evidence, and reject . . . alternative hypotheses." State v. Blubaugh, 904 P.2d 688, 694-95 (Utah Ct. App. 1995). The jury heard the witnesses testify and listened to the audio tape of Deiter's conversation with Cole. Thus, the jury was able to make their own assessment of whether Deiter was seriously soliciting Cole to kill Craven. See State v. Day, 815 P.2d 1345, 1351 (Utah Ct. App. 1991) (stating "[i]t is the role of the jury to weigh the evidence and assess the credibility of the witnesses"). Viewing the evidence in a light most favorable to the verdict, we cannot say that a reasonable fact finder could not have found the elements of criminal solicitation. Accordingly, we conclude the State presented sufficient evidence to support the jury's verdict.

B. Ineffective Assistance of Counsel

Second, Deiter argues that his trial counsel provided ineffective assistance by failing to object to the admission of his felony convictions and by failing to procure through discovery a tape recording of Cole's attempt to obtain a gun from his brother. Again, we disagree.

To bring a successful ineffective assistance of counsel claim, Deiter "must show that trial counsel's performance was deficient in that it 'fell below an objective standard of reasonableness,' and that the deficient performance prejudiced the outcome of the trial." State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). Deiter must prove both prongs of the Strickland test. See Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994). Failure to do so precludes the necessity to consider the other. Ordinarily, if we can dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice, we follow that course. See id. at 523.

In this case, Deiter has failed to show that he was prejudiced by his trial counsel's failure to object to the admission of his felony convictions. Deiter cannot satisfy this burden by merely stating that "[c]ounsel's failure to object to appellant's record coming in through cross examination prejudiced the appellant." Rather, to show prejudice, he must "proffer sufficient evidence to support 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 522 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Deiter's failure to proffer such evidence requires us to reject his argument.

Furthermore, Dieter has failed to show how counsel's failure to obtain a tape recording of Cole's attempt to acquire a gun from his brother created a reasonable probability of a different result at trial. Although Dieter contends "[t]he tape would [have] establish[ed that] there was not strong corroborative evidence" of criminal solicitation, the tape has not been made part of the record on appeal and therefore, we cannot consider its contents. See State v. Pliego, 974 P.2d 279, 280 (Utah 1999) (stating appellate courts "will not consider evidence which is not part of the record"). Thus, Dieter cannot establish that he was prejudiced by his trial counsel's failure to obtain the tape.

C. Prior Bad Acts

Finally, Dieter argues the trial court erred by admitting his prior felony convictions into evidence. Although Dieter's trial counsel did not object to the admission of his prior bad acts, we may take "'notice of plain errors affecting substantial rights.'" State v. Eldredge, 773 P.2d 29, 35 (Utah 1989) (quoting Utah R. Evid. 103(d)). However, Dieter makes no effort to meet the requirements of the plain error exception by showing "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). Because, Dieter has not met his burden under the plain error doctrine, we decline to address this argument further.

Affirmed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

-----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Norman H. Jackson, Judge