State of Utah v. Dimick

----ooOoo---- State of Utah,

Plaintiff and Appellee,

v.

Craig Keith Dimick,

Defendant and Appellant. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971590-CA

F I L E D
(February 4, 1999)

1999 UT App 025

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Eighth District, Roosevelt Department
The Honorable A. Lynn Payne

Attorneys:
Alan M. Williams, Vernal, for Appellant
Jan Graham and Barnard N. Madsen, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

BENCH, Judge:

¶1     Defendant asserts that the evidence was insufficient to support his conviction for sodomy on a child. When addressing a sufficiency of the evidence challenge, "we review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict. If, during our review, we find some evidence or inferences upon which findings of all the requisite elements of the crime can reasonably be made, we affirm." State v. Germonto, 868 P.2d 50, 55 (Utah 1993) (citation omitted).

¶2     Regardless of who initiates it, a sexual act with a child involving the mouth and genitals of either party is a statutory offense because a child under the age of fourteen cannot legally consent. See Utah Code Ann. § 76-5-403.1(1) (1996); id. § 76-5- 406(9) (1996). Furthermore, we see no ambiguity whatsoever in the terms used by the victim to describe such conduct. Nor, apparently, did the jury. From our review of the record, we conclude that the evidence is not so "'sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime.'" Germonto, 868 P.2d at 55 (quoting State v. Verde, 770 P.2d 116, 124 (Utah 1989)). Accordingly, we will not disturb the jury's verdict.

¶3     Next, defendant argues that he was deprived of his constitutional right to effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, defendant must first identify how trial counsel's performance fell below an objective standard of reasonableness, and then proceed to show how the deficient performance prejudiced the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

¶4     Defendant contends that his trial counsel was ineffective in various ways. However, defendant wholly fails to establish that "but for his counsel's deficient performance, there is a reasonable probability that the outcome of the trial would have been different." State v. Hovater, 914 P.2d 37, 39 (Utah 1996). "Unless [defendant] has demonstrated that he was prejudiced by his trial counsel's performance, we need not decide whether that performance was deficient." State v. Arguelles, 921 P.2d 439, 441 (Utah 1996). Consequently, the ineffectiveness claim fails because defendant "has not proffered any record evidence which undermines our confidence in his conviction." Id.; see also Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.").

¶5     We therefore affirm defendant's convictions.
 

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Russell W. Bench, Judge

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WE CONCUR:
 

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Michael J. Wilkins,
Presiding Judge
 

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Gregory K. Orme, Judge