State of Utah v. Henline

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Stephen Corey Henline,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020056-CA

F I L E D
January 24, 2003 2003 UT App 16 -----

Third District, Tooele Department
The Honorable David S. Young

Attorneys:
Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Bench.

PER CURIAM:

Appellant Stephen Henline appeals his conviction of Driving Under the Influence of Alcohol, a third degree felony.

Henline contends that the breathalyzer test results were improperly admitted because the State did not introduce appropriate foundation testimony. Henline's appellate counsel contends that trial counsel was ineffective in failing to object to the admission of the test results without proper foundation. In the alternative, appellate counsel argues that it was plain error for the trial court to admit the results.

Henline claims on appeal that trial counsel did not stipulate to admission of the breathalyzer test results or object to the lack of foundation. The trial transcript establishes that counsel stipulated to the admission of the test results and to the time the test was administered. In light of the stipulation, the contention that the trial court committed plain error is untenable. To conclude otherwise would allow relief based upon what was essentially an invited error. Furthermore, there is no basis from which to conclude that the State could not have provided adequate foundation testimony in the absence of the stipulation.

A defendant alleging ineffectiveness of counsel must "rebut the strong presumption that 'under the circumstances, the challenged action "might be considered sound trial strategy."'" State v. Litherland, 2000 UT 76,¶19, 12 P.3d 92 (citations omitted). The defense claimed that Henline was not intoxicated when he was in actual physical control of the vehicle. Accordingly, the defense case was premised upon a claim that Henline was sober when his vehicle became stuck in the mud, and he became intoxicated only after the vehicle was disabled. Under the circumstances, the decision to stipulate to the admission of the breathalyzer test results was part of a defense strategy, and counsel's actions did not fall below an "objective standard of reasonable professional judgment." Id.

The judgment is affirmed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge