State v. O'Brien

State v. O'Brien

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

William King O'Brien,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020826-CA
 

F I L E D
(December 4, 2003)
 

2003 UT App 419

 

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Third District, Salt Lake Department

The Honorable Leslie A. Lewis

Attorneys: Heather Johnson, Salt Lake City, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

BILLINGS, Associate Presiding Judge:

William King O'Brien appeals from a conviction for attempted aggravated murder, a first-degree felony, in violation of Utah Code Annotated section 76-5-202 (Supp. 2003). We affirm.

O'Brien's conviction resulted from a high-speed chase during which O'Brien, driving a vehicle reported stolen and armed with a handgun, attempted to escape police capture. O'Brien contends that (1) the district court lacked sufficient evidence to send the attempted aggravated murder charge to the jury; and (2) the trial evidence was insufficient to support O'Brien's conviction for attempted aggravated murder of a police officer.

However, O'Brien's defense counsel failed to make a motion for a directed verdict at trial to preserve these sufficiency of the evidence claims for appeal. See State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346; State v. Yanez, 2002 UT App 50,¶18, 42 P.3d 1248. Thus, O'Brien challenges the sufficiency of the evidence at trial by claiming ineffective assistance of trial counsel in failing to move for a directed verdict. See State v. Hansen, 2002 UT 114,¶21 n.2, 61 P.3d 1062 ("When a party fails to preserve an issue for appeal, we will nevertheless review the issue if the appealing party . . . assert[s] ineffective assistance of counsel in failing to preserve the issue."). Therefore, to dispose of O'Brien's claim of ineffective assistance of trial counsel, we must first examine O'Brien's claims of insufficiency of evidence.

"When evaluating whether the State produced sufficient 'believable evidence' to withstand a challenge at the close of the State's case in chief[ i.e., a motion for a directed verdict], we apply the same standard used when reviewing a jury verdict." State v. Hamilton, 2003 UT 22,¶41, 70 P.3d 111. "Hence, [sufficient] evidence in this context means the evidence must be 'capable of supporting a finding of guilt beyond a reasonable doubt.'" Id. (quoting State v. Clark, 2001 UT 9,¶15, 20 P.3d 300).

O'Brien argues that "[w]here the only evidence presented against [him] is circumstantial, the evidence supporting a conviction must preclude every reasonable hypothesis of innocence." State v. Hill, 727 P.2d 221, 222 (Utah 1986). "This is because the existence of a reasonable hypothesis of innocence necessarily raises a reasonable doubt as to the defendant's guilt." Id. However, our supreme court has held that this rule "is not controlling when only part of the evidence is circumstantial." State v. Romero, 554 P.2d 216, 219 (Utah 1976) (emphasis added).

Despite O'Brien's arguments to the contrary, the record reflects that the State's case was not based on circumstantial evidence alone. The State put on the following direct and circumstantial evidence with regard to the intent and substantial step elements of the attempted aggravated murder charge: (1) O'Brien was illegally armed with a handgun; (2) police attempted to stop O'Brien while he was in possession of a stolen vehicle; (3) O'Brien tried to avoid capture by leading police on a high-speed automobile chase; (4) O'Brien only stopped because he lost control of his vehicle; (5) when O'Brien did stop, a shot was fired from inside his vehicle; (6) moments later O'Brien emerged from the wrecked vehicle holding the handgun; (7) O'Brien again ran from police, this time on foot; (8) once apprehended, O'Brien sang a rap song about killing "cops" with handguns; and (9) crime scene investigators later found that a bullet apparently hit the pursuing officer's windshield at approximately throat level.

Based on the foregoing, we cannot say that "'the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.'" State v. Yanez, 2002 UT App 50,¶10, 42 P.3d 1248 (quoting State v. Silva, 2000 UT App 292,¶13, 13 P.3d 604). Therefore, we hold that the evidence in this case was sufficient to survive a motion for a directed verdict.

"The failure of counsel to make motions . . . which would be futile if raised does not constitute ineffective assistance." State v. Whittle, 1999 UT 96,¶34, 989 P.2d 52 (quotations and citation omitted). Thus, we hold that O'Brien was not deprived of the effective assistance of counsel.

Affirmed.

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Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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William A. Thorne Jr., Judge