State of Utah v. Reyes

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Joseph Manuel Reyes,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981765-CA

F I L E D
November 9, 2000 2000 UT App 310 -----

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

Attorneys:
Justin C. Bond, Brigham City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

ORME, Judge:

When a claim of ineffective assistance is raised for the first time on appeal, we resolve the issue as a matter of law. See State v. Cosey, 873 P.2d 1177, 1179 (Utah Ct. App.), cert. denied, 883 P.2d 1359 (Utah 1994). "Despite the application of a standard normally bereft of deference, appellate review of counsel's performance must be highly deferential; otherwise, the 'distorting effects of hindsight' would produce too great a temptation for courts to second-guess trial counsel's performance on the basis of an inanimate record." State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993) (citation omitted).

Appellant does not show that there were witnesses or counselors whom his attorney could have found who would have offered favorable testimony. Indeed, appellant admits that "it is . . . a matter of speculation, which witnesses may or may not have assisted [him] in his defense." Appellant also failed to make the alleged phone records part of the record on appeal. "[P]roof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality." Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993).

Appellant does not demonstrate how counsel's cross-examination strategy--which was basically to have the child victim repeat her testimony, including its inconsistencies--was deficient. Counsel may well have concluded this low-key approach would sit better with the jury than aggressive cross-examination of a child. Accordingly, we indulge the presumption that this approach was sound trial strategy.

Both the Utah Criminal Code and the Utah Rules of Evidence make it clear that a twelve-year-old child is competent to be a witness. See Utah Code Ann. § 76-5-410 (1999); Utah R. Evid. 601. The trial court did give a general instruction concerning the jury's duty to assess each witness's credibility. No specialized cautionary instruction concerning a twelve-year-old's testimony is required by Utah law. Appellant's counsel was, therefore, not deficient for failing to request one.

None of the statements cited by appellant in his brief constitute inadmissable hearsay under Utah Rule of Evidence 801. As correctly set out in the State's brief, appellant had already "manifested an adoption or belief in [the] truth" of two of the statements by admitting their substance in a written statement to police and on the stand at trial. Utah R. Evid. 801(d)(2)(B). The other statements were not offered to prove the truth of the matter asserted, but instead were offered for other purposes. See Utah R. Evid. 801(c).(1)

Appellant's claim that his counsel was ineffective for failing to make a motion for directed verdict succeeds only if the State's evidence was not sufficient to support a conviction. Cf. Tillman v. Cook, 855 P.2d 211, 222 (Utah 1993) (rejecting ineffective assistance claim based on failure to move to dismiss where evidence to convict was sufficient), cert. denied, 510 U.S. 1050 (1994). The claim fails because the facts viewed in the light most favorable to the State show that appellant broke into the eleven-year-old victim's room and asked her to perform oral sex on him. This evidence is sufficient to establish a prima facie case of solicitation to commit sodomy on a child and to send the case to the jury. The inconsistencies in the victim's uncorroborated testimony were not substantial enough to render the evidence insufficient as a matter of law. See State v. Marcum, 750 P.2d 599, 601 (Utah 1988).

Affirmed.
 
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge

1. It could be argued that defense counsel should have objected to these statements, even if they were not technically hearsay, on the chance that the prosecutor might not have resisted or that the trial court might otherwise have sustained the objection. However, appellant's counsel may well have been afraid that by objecting and having her objection overruled, she would look incompetent in the jury's eyes. Again, where we can articulate "a rational basis for counsel's performance," we presume that counsel's conduct was pursuant to sound trial strategy rather than ineptitude. Tennyson, 850 P.2d at 468.

Appellant also claims his counsel was ineffective for her failure to object to the prosecution's repeated references to the victim's age. This claim fails because appellant has not shown how the references to the victim's age, which was never in dispute and was presumably obvious to the jury, in any way prejudiced his case.