State of Utah v. Ricks

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

David Anthony Ricks,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010443-CA

F I L E D
October 3, 2002 2002 UT App 319 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Sharon L. Preston, Salt Lake City, for Appellant
Mark L. Shurtleff and Thomas Brunker, Salt Lake City, for Appellee -----

Before Judges Billings, Bench, and Greenwood.

BENCH, Judge:

Defendant argues that the trial court erred when it denied his motion for a directed verdict. When reviewing a trial court's ruling on a motion for directed verdict, we view the evidence "in a light most favorable to the State," and consider whether "the jury acting fairly and reasonably could find the defendant guilty beyond a reasonable doubt." State v. Taylor, 884 P.2d 1293, 1296 (Utah Ct. App. 1994) (quotations and citation omitted).

Defendant argues that the State failed to make its prima facie case against him in that the victim's testimony was the only evidence before the jury that Defendant used a weapon to commit the crimes. Defendant characterizes the victim's testimony as "inherently improbable" because of inconsistencies between her initial police report and her trial testimony. We disagree. The State made its prima facie case by introducing "some evidence," namely the victim's testimony, that Defendant used a weapon in the commission of the crime. Id. (quotations and citation omitted). Therefore, the trial court properly sent the case to the jury to "'weigh the evidence and to determine the credibility of the [victim] . . . .'" State v. Booker, 709 P.2d 342, 345 (Utah 1985) (quoting State v. Lamm, 606 P.2d 229, 231 (Utah 1980)).

Next, Defendant argues that he received ineffective assistance from counsel because his trial counsel did not request that the two counts be severed. As a result, evidence of Defendant's status as a convicted felon was heard by the jury deciding the aggravated assault charge. To prevail on an ineffective assistance claim, Defendant must prove, "'first, that his counsel rendered a deficient performance . . . , which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced [Defendant].'" Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994) (quoting Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988)).

Even assuming Defendant could overcome our presumption that trial counsel's decision not to request severance was part of a "sound trial strategy," State v. Parker, 2000 UT 51,¶10, 4 P.3d 778 (quotations and citation omitted), Defendant cannot satisfy the prejudice prong of the test. "To show prejudice under the second component of the test, a defendant 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.'" Parsons, 871 P.2d at 522 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). Defendant relies on State v. Saunders, 699 P.2d 738 (Utah 1985), to argue that evidence of a prior bad act is presumptively prejudicial. Defendant's reliance is misplaced. First, Saunders is distinguishable from this case because the defendant in Saunders was charged with burglary and the evidence admitted was three prior convictions for burglary. See id. at 739. In this case, the jury was told that Defendant had been incarcerated, but was not told what type of crime for which he had been convicted. Second, even had the charges been severed, evidence of Defendant's prior incarceration could have been admitted on a non-character basis related to Mr. Studham's identification of Defendant as the person leaving the victim's apartment. Mr. Studham was able to identify the individual he saw leaving the victim's apartment as Defendant because he and Defendant had been incarcerated together. Other than a citation to Saunders, Defendant makes no other argument that there is a "reasonable probability" of a different result had trial counsel moved to sever. Parsons, 871 P.2d at 522 (quotations and citations omitted). Therefore, we conclude that Defendant has not "overcome the strong presumption that trial counsel rendered
adequate assistance and exercised reasonable professional judgment." Id. (quotations and citations omitted).

Accordingly, we affirm Defendant's convictions.
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Pamela T. Greenwood, Judge