State of Utah v. Rush

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Dale Lee Rush,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020061-CA
 

F I L E D
(May 22, 2003)
 

2003 UT App 156

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Third District, Tooele Department

The Honorable David S. Young

Attorneys: Julie George, Salt Lake City, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

First, Defendant argues that the trial court erred by not giving a jury instruction on a lesser included offense. "Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid a manifest injustice." Utah R. Crim. P. 19(e). "Under the guidance of this rule, [the supreme court] ha[s] been very reluctant to review jury instructions . . . not preserved for appeal by means of an objection at trial." State v. Anderson, 929 P.2d 1107, 1108-09 (Utah 1996) (refusing to reach defendant's argument that trial court erred in giving jury instruction because "'it was not properly preserved below'" (citation omitted)); see also State v. Medina, 738 P.2d 1021, 1023 (Utah 1987) (same). Furthermore, the supreme court has "'held repeatedly that on appeal, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.'" Anderson, 929 P.2d at 1109 (citation omitted) (concluding any error in giving a jury instruction was invited error because "defense counsel read the instruction and then affirmatively stated that she had no objection").

In this case, both the prosecution and the trial court asked defense counsel if he wanted a lesser included offense jury instruction to be given. In response, defense counsel said, "I think I need to talk to my client about that. I'll be prepared for that by tomorrow morning," and otherwise agreed to the instructions without exception. The next morning, the trial court read the jury instructions to the jury without a lesser included offense instruction and defense counsel indicated that he had no "corrections or clarifications to the instructions." Accordingly, "the trial court gave defendant ample opportunity to object to the jury instruction[s]" or to request a lesser included offense jury instruction, and "he failed to do so." Id. Consequently, we conclude "that this defendant cannot lead the court into error by failing to object and then later, when he is displeased with the verdict, profit by his actions." Id. (citations and quotations omitted).

Second, Defendant argues that he received ineffective assistance because his counsel did not request a lesser included offense jury instruction. To show ineffective assistance of counsel, a defendant

must establish both prongs of the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984): (1) that his counsel's performance "fell below an objective standard of reasonableness," id. at 688, 104 S. Ct. at 2064; and (2) that counsel's performance prejudiced the defendant. Id. at 687, 104 S. Ct. at 2064.

State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994). An ineffective assistance claim can "succeed[] only when no conceivable legitimate tactic or strategy can be surmised from counsel's actions." State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 1995) (citation and quotations omitted).

Here, defense counsel's failure to request a lesser included offense instruction was not ineffective assistance because it was "entirely consistent with his trial strategy." State v. Hall, 946 P.2d 712, 723 (Utah Ct. App. 1997). Defense counsel argued at trial that the victims were lying about the alleged abuse. "Thus, defense counsel's request for instructions on lesser included offenses would have been inconsistent with his assertion that [D]efendant never touched [the victims]." Id.; see also Perry, 899 P.2d at 1241 (concluding that defendant received effective assistance because jury instruction on lesser crime "would have been wholly 'incompatible'" with trial strategy). "We therefore conclude that defense counsel did not render [an] objectively deficient performance by failing to request instructions on [the] lesser included offense[]." Hall, 946 P.2d at 724.

Therefore, we affirm.(1)

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James Z. Davis, Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Gregory K. Orme, Judge

1. The State contends that the trial court's judgment, filed December 18, 2001, incorrectly states that Defendant was convicted, among other things, of two counts of sexual assault. We remand, instructing the trial court to consider whether to modify its judgment to state that Defendant was convicted of two counts of aggravated sexual assault rather than two counts of sexual assault.