State of Utah v. Kandt

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Denny Duke Kandt,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981230-CA

F I L E D
September 30, 1999
    1999 UT App 276 -----

Third District, Salt Lake Department
The Honorable Sandra Peuler

Attorneys:
Randall T. Gaither, Salt Lake City, for Appellant
Jan Graham and Kris C. Leonard, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Billings, and Davis.

DAVIS, Judge:

Defendant appeals his conviction, arguing (1) he received ineffective assistance of trial counsel; (2) the evidence adduced at trial regarding his membership in a gang was prejudicial error; (3) the evidence was insufficient to support a conviction for assault; and (4) if there was no error in admitting the gang-related evidence, the gang enhancement issue should have been decided by the jury.

ANALYSIS

Defendant argues that his trial counsel was ineffective for failing to object to testimony regarding defendant's membership in a neighborhood gang and for failing to call additional alibi witnesses, including defendant. "To prevail on a claim of ineffective assistance, appellant must demonstrate that counsel's actions were not conscious trial strategy, and that there was a lack of any conceivable tactical basis for counsel's actions." State v. Winward, 941 P.2d 627, 635 (Utah Ct. App. 1997) (citations and internal quotation marks omitted). At the hearing on defendant's motion for a new trial, the trial court specifically found that defense counsel had agreed pretrial to allow testimony regarding the gang-related evidence.(1) At the close of defendant's case at trial, when asked by the court whether there would be any additional witnesses for the defense, the record reflects that defense counsel specifically consulted defendant and only then made the decision not to call other witnesses. Also, defense counsel was concerned about conflicting testimony among the alibi witnesses. Thus, after reviewing the record, it is evident that trial counsel had a conceivable trial strategy for allowing evidence of defendant's gang membership and for not calling additional alibi witnesses to testify, including defendant.

Defendant also argues that his trial counsel was ineffective for failing to object to testimony regarding future retaliation by defendant's gang directed at the victim's children. However, except for a bare claim of error, defendant fails to adequately brief this argument, providing this court with no citation to legal authority. See Utah R. App. P. 24(a)(9) (stating appellant's brief must contain citation to legal authorities). We therefore decline to address the issue on this basis.(2)

Based on the foregoing, we conclude that defendant has failed to establish that his trial counsel's performance was deficient.

Defendant argues that it was prejudicial error to allow testimony regarding his gang membership. However, even if it was error to allow that evidence, "'[o]n appeal, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.'" State v. Betha, 957 P.2d 611, 617 (Utah Ct. App. 1998) (citation omitted). As set out above, it was trial counsel's conscious decision to allow testimony regarding defendant's involvement with a gang. Thus, defendant cannot now complain on appeal that it was error to admit the gang-related evidence.

Defendant argues there was insufficient evidence to support a conviction. We review the
  evidence and all reasonable inferences drawn from that evidence in the light most favorable to the jury's verdict and reverse only if that evidence is so "'inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he . . . was convicted.'" State v. Souza, 846 P.2d 1313, 1322 (Utah Ct. App. 1993) (citations omitted).

Defendant's presence at the scene of the assault was adequately established by the victim's testimony. Not only was it reasonable for the jury to infer from the evidence that defendant encouraged or intentionally aided the other two assailants in assaulting the victim, see Utah Code Ann. § 76-2-202 (1995), but defendant has failed to "'"marshal all [the] evidence supporting the jury's verdict and . . . show [that] this marshaled evidence is insufficient to support the verdict even when viewed in the light most favorable to the verdict."'" State v. Vessey, 967 P.2d 960, 966 (Utah Ct. App. 1998) (citations omitted). We therefore decline to disturb the jury's verdict on the assault conviction.

Lastly, defendant argues that his conviction under the enhancement statute, see Utah Code Ann. § 76-3-203.1 (Supp. 1999), should be reversed. We agree. The Utah Supreme Court in State v. Lopes, 980 P.2d 191 (Utah 1999), ruled that the "gang enhancement statute creates a new and separate offense and, therefore, the Code requires each element of this crime be proved beyond a reasonable doubt." Id. at 197. Absent a waiver, because "the statute creates a separate and new offense, each element must be found beyond a reasonable doubt by a jury, not the trial judge." Id. at 195. Because defendant did not waive his right to a jury trial on the section 76-3-203.1 charge, we reverse and remand for a new trial on the gang enhancement charge.

CONCLUSION

We conclude that (1) defendant has failed to establish that his trial counsel's conduct was deficient; (2) based upon the invited error doctrine, defendant cannot now complain on appeal that it was prejudicial to allow evidence of his gang involvement; and (3) because defendant has failed to marshal the evidence in support of the jury's verdict, he has failed to show that there was insufficient evidence for the jury to convict him on the charge of assault. We therefore affirm defendant's conviction on the assault charge.

Based upon the holding of Lopes, we reverse defendant's conviction under the gang enhancement statute and remand for a new trial on this charge.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge

1. Trial counsel's apparent strategy was that defendant was not at the scene of the assault, but that the victim implicated defendant because of a longstanding grudge which arose as a result of the victim's and defendant's rival gang affiliation. Thus, the gang evidence was an integral part of defendant's defense.

2. We again observe, however, that gang activities were part and parcel of defendant's theory of defense below. Additionally, the evidence may have been admissible. Cf. United States v. Abel, 469 U.S. 45, 49, 105 S. Ct. 465, 467 (1984) (holding evidence of defendant's gang membership was admissible as sufficiently probative).