WVC v. Young

----ooOoo----

West Valley City,
Plaintiff and Appellee,

v.

Cindy L. Young,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990575-CA

F I L E D
July 6, 2001 2001 UT App 216 -----

Third District, West Valley Department
The Honorable Anthony B. Quinn
The Honorable Paul G. Maughan

Attorneys:
Delano S. Findlay, Salt Lake City, for Appellant
J. Richard Catten, West Valley City, for Appellee

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Before Judges Greenwood, Jackson, and Orme.

GREENWOOD, Presiding Judge:

Defendant Cindy Young appeals her convictions of assault of a peace officer, a Class A misdemeanor, in violation of Utah Code Ann. § 76-5-102.4 (1999), and failure to register her vehicle, a Class C misdemeanor, in violation of Utah Code Ann. § 41-1a-201 (1998). Defendant appeals the jury verdict, claiming ineffective assistance of counsel and arguing the trial court erred in denying her motion for a new trial based on the same grounds. We affirm.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Supreme Court adopted a two prong test to determine whether counsel failed to render adequate legal assistance. Under Strickland, "a defendant must show (1) that counsel's performance was deficient and (2) that the performance prejudiced the defense." State v. Classon, 935 P.2d 524, 531 (Utah Ct. App. 1997). A trial court is required to follow Strickland when ruling on a motion for new trial based on ineffective assistance of counsel. See State v. Templin, 805 P.2d 182, 185-86 (Utah 1990). Further, "where a trial court has previously heard a motion based on ineffective assistance of counsel, reviewing courts are free to make an independent determination of a trial court's conclusions. The factual findings of the trial court, however, shall not be set aside on appeal unless clearly erroneous." Id. at 186 (footnote omitted). Normally, such deference is granted because the trial court observed the trial and is in an advantaged position to assess defense counsel's performance.

In the present case, however, we do not defer to the trial court's factual findings because Judge Maughan, who ruled on the motion for a new trial, did not preside at defendant's trial. Judge Maughan relied on the trial court record, and thus we review the evidence presented without deference to the trial court's findings. See Davis County v. Clearfield City, 756 P.2d 704, 710 (Utah Ct. App. 1988) ("[I]nsofar as the trial court's decision turns on the administrative record, we give no particular deference to the trial court.").(1)

In this case, the second Strickland prong is dispositive, and we need not address trial counsel's performance. To satisfy the second prong, "defendant must show that a 'reasonable probability' exists that the trial result would have been different if counsel had not erred." Classon, 935 P.2d at 532 (citation omitted). This prong is not satisfied because the evidence defendant argues should have been presented does not create a reasonable probability of a different result.

A significant portion of the evidence defendant describes relates only to events occurring after the assault. Defendant argues that additional evidence about the effects of pepper spray would have demonstrated that she involuntarily fought against the officers as they attempted to place her in handcuffs. The assault charges, however, were based on defendant kicking and scratching Officer Lozano prior to being sprayed, and thus the pepper spraying does not affect the evidence supporting defendant's conviction for assault. Further, the officers testified concerning the effects of pepper spray and trial counsel argued these effects to the jury.

Similarly, many of the witnesses defendant argues should have testified arrived at the scene after the assault occurred and thus could not have testified regarding the assault. Defendant argues these witnesses would have testified that she was not sitting as the officers claimed, but that she was kneeling. She argues this evidence would have shown the officers did not truthfully recount the incident. However, the witness who testified on defendant's behalf also disagreed with her and the officers as to defendant's position after the arrest. Thus, there is not a reasonable probability this additional evidence would have affected the jury's decision.

Defendant argues that the EMT who arrived on the scene and additional medical testimony would have demonstrated that Officer Lozano was not injured by defendant. The testimony at trial indicated that defendant kicked and scratched Officer Lozano. Lozano and the other officers testified that Lozano was bleeding from her hand, but another officer testified that he saw no blood. An examination of the affidavits and relevant testimony reveals that an injury did occur to Officer Lozano, though potentially less severe than that described by one witness. However, even if the injury was not as severe as one officer testified during trial, the undisputed evidence shows that an injury did occur. Additionally, defendant's conviction did not require testimony of a specific injury. The testimony that defendant kicked and scratched Lozano sufficiently supports the assault conviction.

Defendant next argues trial counsel's failure to suggest she plead guilty to the charge of expired registration forced her to defend this charge without a viable defense, causing defendant to lose credibility with the jury. However, the State would have presented the bulk of the same evidence to show why Lozano attempted to impound defendant's vehicle. It was defendant's resistance to Lozano's attempt to impound the vehicle that led to the assault. Therefore, failure to plead guilty to the expired registration charge did not prejudice defendant.

Defendant finally argues that her trial counsel should have introduced evidence that Officer Lozano acted in an over-aggressive manner because she believed defendant was violating a protective order at the time of the incident. However, this argument is too speculative to undermine our confidence in the jury's decision. See State v. Tyler, 850 P.2d 1250, 1254 (Utah 1993) ("[P]roof of counsel's ineffectiveness must be a demonstrable reality, not mere speculation.").

In sum, the evidence that defendant argues her trial counsel should have presented does not create a reasonable probability of a different outcome at her trial for assault of a peace officer. Additionally, defendant presents no argument that her conviction for expired registration should be reversed. Accordingly, we affirm defendant's convictions.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge

1. As this case demonstrates, it is problematic for a judge to hear a motion for new trial when another judge presided over the trial. The trial judge has the advantage of listening to witnesses, evaluating their demeanor, and observing the performance of counsel. Through this first-hand knowledge, the trial judge can consider motions for a new trial in light of his or her experience during trial and make reasoned determinations whether a new trial is appropriate. Thus, when possible, a judge who presides over the trial should also hear and decide a motion for new trial.