State of Utah v. Hansen

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

David L. Hansen,
Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 990856-CA

F I L E D
January 11, 2001 2001 UT App 14 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Sr.

Attorneys:
Margaret P. Lindsay, Provo, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Thorne.

THORNE, Judge:

Defendant David L. Hansen appeals from a conviction of Theft of a Motor Vehicle, a second degree felony, in violation of Utah Code Ann. §§ 76-6-404, 412 (1999).(1) We affirm.

Defendant raises the following two arguments on appeal: (1) the trial court committed plain error by failing to instruct the jury on the affirmative defenses to theft; and (2) ineffective assistance of counsel. Initially, we note that defendant failed to raise, and thus preserve, either argument below.

"As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (citing State v. Marvin, 964 P.2d 313, 318 (Utah 1998)). The preservation rule, as it is known, "applies to every claim." Id. Utah does, however, recognize three exceptions to the preservation rule: (1) plain error, (2) exceptional circumstances, and (3) ineffective assistance of counsel. See State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996). Accordingly, we reach the merits of defendant's arguments.

A. Plain Error

Defendant argues the trial court committed plain error by failing to instruct the jury on the affirmative defenses to theft found in Utah Code Ann. § 76-6-402(3) (1999).(2) To establish plain error, defendant must show "'(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.'" Holgate, 2000 UT 74 at ¶13 (citation omitted).

The State concedes that an error exists and the error should have been obvious to the trial court. See id. Indeed, "[a] trial court has a duty to instruct the jury on the law applicable to the facts of the case." State v. Robertson, 932 P.2d 1219, 1231 (Utah 1997). That said, we must inquire whether the trial court's error was harmful. Specifically, we must determine whether "absent the error, there is a reasonable likelihood of a more favorable outcome for [defendant]." Holgate, 2000 UT 74 at ¶13.

In the present matter, we conclude that "there is [no] reasonable likelihood of a more favorable outcome for [defendant]." Id. First, defendant admitted having little or no money, and that he was staying with Kevin Edwards until "he could . . . get on his feet." Second, an eyewitness observed defendant put Edwards's dog, a shar pei valued at $500, in the front seat of the truck and drive off in the truck. Defendant claims he did not take the dog. Third, defendant admits he received no bill of sale for the truck, and that the title to the truck had the name of Kevin Edwards in the "Owner's transfer" section with a notary signature, and the signature of Bethany Edwards in the "New Owner's" section.

Finally, and perhaps most importantly, defendant argued during his summation to the jury that he believed he had an honest claim of right to the truck and had a right to exercise control over the truck. The jury did not believe defendant's argument and convicted him. We conclude that the trial court's failure to instruct the jury on the affirmative defenses did not affect the outcome of defendant's trial. We are not convinced that a more favorable outcome is likely had the trial court administered the instruction defendant now proposes. Accordingly, defendant's plain error argument fails.

B. Ineffective Assistance of Counsel

Defendant argues that he was denied effective assistance of counsel. We disagree. To successfully claim ineffective assistance of counsel, defendant must "'(i) identify specific acts or omissions by counsel that fall below the standard of reasonable professional assistance . . ., and (ii) demonstrate that counsel's error prejudiced . . . defendant.'" State v. Parker, 2000 UT 51,¶10, 4 P.3d 778 (citation omitted).

The State concedes that "defendant's trial counsel was deficient in failing to request a jury instruction encompassing the[] two statutory defenses." We agree. However, for the reasons listed above, we conclude that defendant's trial counsel's error did not prejudice defendant. See id. Accordingly, defendant's ineffective assistance of counsel claim fails.

Defendant's conviction is affirmed.
 
 
 
 

______________________________
William A. Thorne, Jr., Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

1. Because the statutory provisions in effect at the relevant time do not materially differ from the provisions currently in effect, we cite to the most recent statutory provisions for convenience.

2. Because the statutory provision in effect at the relevant time does not materially differ from the provision currently in effect, we cite to the most recent statutory provision for convenience.