State of Utah, v. Godfrey

State of Utah,
Plaintiff and Respondent,

v.

James C. Godfrey,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971310-CA

F I L E D
(February 25, 1999)

1999 UT App 053

-----

Second District, Ogden Department

The Honorable Michael J. Glasmann

Attorneys:
Randine Salerno and Maurice Richards, Ogden, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Respondent

-----

Before Judges Wilkins, Bench, and Jackson.

WILKINS, Presiding Judge:

Defendant, James C. Godfrey, appeals his convictions of aggravated kidnapping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1995), and aggravated sexual abuse of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-404.1 (1995). We affirm.

I. Motion to Suppress

Godfrey challenges the trial court's denial of his motion to suppress, specifically attacking the court's ruling that probable cause existed to conduct his warrantless arrest. In reviewing a trial court's denial of a motion to suppress, we review the court's legal conclusion of probable cause for correctness. SeeState v. Poole, 871 P.2d 531, 533 (Utah 1994).

Law enforcement officers may only arrest citizens if they have probable cause to do so. See State v. Spurgeon, 904 P.2d 220, 225 (Utah Ct. App. 1995) (citing Dunaway v. New York, 442 U.S. 200, 216, 99 S. Ct. 2248, 2258 (1979)). An arrest made without probable cause is unconstitutional under both the Fourth Amendment and Article I section 14 of the Utah Constitution. SeeBeck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225-26 (1964); Spurgeon, 904 P.2d at 225. "Probable cause exists [when at the moment of the arrest,] 'the facts and circumstances within [the officers'] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that' an offense has been . . . committed." Spurgeon, 904 P.2d at 226 (citations omitted).

We agree with the trial court that the "totality of the circumstances" in this case gave Officer Lucas probable cause to arrest Godfrey, see Poole, 871 P.2d at 534 (holding totality of facts constituted probable cause), to wit: the physical characteristics of the defendant matched several of the witness' descriptions of the perpetrator; defendant's vehicle matched the perpetrator's vehicle as described by the witnesses; the license plate number on defendant's vehicle was similar to that given by a witness; defendant had a prior arrest for lewdness in 1992; a tip from an anonymous caller related that defendant's vehicle matched the children's descriptions; and, defendant's unusual response to police questions was suggestive of defendant's consciousness of guilt. Accordingly, we affirm the trial court's ruling on this ground.

II. 1993 Lewdness Conviction

Next, Godfrey maintains that the trial court improperly allowed the State to present evidence of his prior misdemeanor conviction for gross lewdness in violation of Utah R. Evid. 403.(1) We review a trial court's Rule 403 determination for abuse of discretion. See State v. Teuscher, 883 P.2d 922, 928 (Utah Ct. App. 1994).

Under Rule 403, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . ." Utah R. Evid. 403. "Evidence is unfairly prejudicial if it 'appeals to the jury's sympathies, . . . provokes its instinct to punish,' or otherwise 'may cause the jury to base its decision on something other than the established propositions in the case.'" Teuscher, 883 P.2d at 928 (citations omitted). A court may consider the following factors when applying the rule 403 balancing test:

[T]he strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

State v. Moore, 788 P.2d 525, 528 (Utah Ct. App. 1990) (quoting State v. Shickles, 760 P.2d 291, 296 (Utah 1988)) (holding admission of prior crimes evidence to prove intent did not violate Rule 403 despite prejudicial nature) (emphasis added).

We cannot say that the trial court abused its discretion in admitting the prior crime evidence. The trial court carefully considered the admission of this evidence before and during the trial. In admitting the evidence, the court indicated that Godfrey's altered identity at trial prompted the need for the evidence, stating that the "probative value of the information . . . under 404(b) [was] more important than [the court] had sensed or felt that it was before." Moreover, the court limited the use of this information to the identity of the defendant. Under these circumstances, we conclude that court conducted a proper 403 balancing test and thus did not err in refusing to exclude the evidence.

III. Ineffective Assistance of Counsel

Finally, Godfrey asserts that he was denied his Sixth Amendment right to the effective assistance of counsel following his counsels' (1) failure to produce witnesses; (2) failure to present mitigating factors during his sentencing hearing; (3) failure to object to leading questions; and (4) failure to argue for suppression of his pre- and post- Miranda silence. To be successful in this argument, Godfrey must affirmatively prove that his "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)). A defendant must prove both prongs of the Strickland test, seeParsons v. Barnes, 871 P.2d 516, 522 (Utah 1994); failure to do so precludes the necessity to consider the other. Further, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. See Parsons, 871 P.2d at 523 (citing Strickland, 466 U.S. at 697, 104 S. Ct at 2069).

In each of his arguments, Godfrey has failed to meet the prejudice prong of the Strickland test. He cannot satisfy this prong by merely stating that counsels' acts "amount to ineffective assistance" or by simply reiterating the law (ie. restating the law regarding one's right to pre- and post- Miranda silence). 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.'" See id. at 522 (quoting Strickland, 466 U.S. at 694, 104 S. Ct at 2068). His failure to proffer such evidence is fatal, requiring us to reject his arguments.

Affirmed.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

-----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Norman H. Jackson, Judge

1. On appeal, Godfrey argues that the trial court improperly allowed the State to introduce evidence to the jury of his "prior misdemeanor convictions" and "acquittal." However, after reviewing the record, we can find only one prior crime that was presented to the jury--Godfrey's September 19, 1993 class A misdemeanor lewdness conviction. Thus we limit our analysis to the admission of this conviction. In addition, Godfrey argues that this evidence was inadmissible under 404(b). However, he later concedes this point stating "the evidence in this case satisfied the criteria for admission under Rule 404(b)." As such, we only address his Rule 403 argument as it applies to the admission of his 1993 lewdness conviction.