State of Utah v. Triptow

State v. Triptow

IN THE UTAH COURT OF APPEALS
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State of Utah,
Plaintiff and Appellee,

v.

Michael Gene Triptow,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020163-CA

F I L E D
(April 3, 2003)

2003 UT App 96

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Second District, Farmington Department

The Honorable Rodney S. Page

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Davis.

BILLINGS, Associate Presiding Judge:

Following a jury trial, Michael Gene Triptow was convicted of one count of felony burglary, in violation of Utah Code Ann. § 76-6-202 (Supp. 2002), one count of misdemeanor theft, in violation of Utah Code Ann. § 76-6-404 (1999), and one count of misdemeanor theft by receiving stolen property, in violation of Utah Code Ann. § 76-6-408 (1999). On appeal, Triptow argues the evidence introduced at trial was insufficient to support his conviction, and that he was denied his constitutional right to effective assistance of counsel.

"As a general rule, in order for an appellate court to review contentions of error on appeal, the errors must be objected to or be preserved in the trial court record." State v. Honie, 2002 UT 4,¶15, 57 P.3d 977. "For [a] [d]efendant to have preserved his sufficiency of the evidence claim, he must have raised it by proper motion or objection in the court below." State v. Marquez, 2002 UT App 127,¶7, 54 P.3d 637. There are, however, exceptions to this rule. "[T]he preservation rule applies to every claim . . . unless a defendant can demonstrate that 'exceptional circumstances' exist or 'plain error' occurred." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (citations omitted). Furthermore, "[o]n direct appeal in capital cases . . . [the Utah Supreme Court] will review an error, even though no proper objection was made at trial and even though the error was not raised on appeal." State v. Wood, 648 P.2d 71, 77 (Utah 1981). Triptow failed to raise his sufficiency claim by motion or objection during trial. Furthermore, he neither contends, nor do we find, that any of the aforementioned exceptions to the rule apply on appeal.

Instead, Triptow argues in his reply brief that "sufficiency-of-the-evidence issues may be considered for the first time on appeal." Triptow cites two recent Utah Supreme Court decisions in support of his argument. However, Triptow misreads these cases. Neither modifies the well-established preservation rule. The first case cited by Triptow, State v. Fedorowicz, involved a defendant who, contrary to Triptow's reading of the case, did in fact move at trial to dismiss for insufficient evidence. See 2002 UT 67,¶21, 52 P.3d 1194. The second case is State v. Honie, a capital case where the previously explained Wood exception applied. See 2002 UT 4,¶15, 57 P.3d 977. Therefore, Triptow's sufficiency of the evidence claim fails.

"In considering ineffectiveness claims, we consistently apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984)." State v. Kelley, 2000 UT 41,¶25, 1 P.3d 546. "Under Strickland, a defendant raising an ineffectiveness claim must show 'first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment, and second, that counsel's performance prejudiced the defendant.'" Id. (quoting Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994)) (other quotations and citation omitted). "Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective." State v. Diaz, 2002 UT App 288,¶38, 55 P.3d 1131. Furthermore, when reviewing claims for ineffective assistance of counsel, "[w]e 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, . . . the challenged action "might be considered sound trial strategy."'" State v.

Mecham, 2000 UT App 247,¶22, 9 P.3d 777 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065) (other citation omitted).

To meet the first prong of the test, a defendant "must 'identify the acts or omissions' which, under the circumstances, 'show that counsel's representation fell below an objective standard of reasonableness.'" State v. Templin, 805 P.2d 182, 186 (Utah 1990) (quoting Strickland, 466 U.S. at 690, 688, 104 S. Ct. at 2066, 2064 (footnotes omitted)). Here, Triptow asserts that "appointed trial counsel's failure to request a jury instruction on the lesser included offense of Theft by Receiving Stolen Property . . . fell below an objective standard of reasonable professional judgment."

However, "[a]n ineffectiveness claim 'succeeds 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) (quoting State v. Tennyson, 850 P.2d 461, 468 (Utah Ct. App. 1993)). Trial counsel is not ineffective when he chooses not to request an instruction on a lessor included offense which is inconsistent with counsel's trial strategy. See id.; State v. Hall, 946 P.2d 712, 723-24 (Utah Ct. App. 1997).

A person commits theft by receiving stolen property if "he receives, retains, or disposes of the property of another knowing that it has been stolen, or believing that it probably has been stolen." Utah Code Ann. § 76-6-408(1) (1999). Although he never testified at trial, Triptow's trial strategy was to maintain he neither participated in the burglary, nor had any knowledge of the theft or of items stolen from the garage, which were placed in the van. We agree with the State that an instruction on the lessor included offense of theft by receipt of stolen property would have been inconsistent with trial counsel's strategy. Accordingly, we hold Triptow was not denied his Sixth Amendment right to 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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Norman H. Jackson,

Presiding Judge

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James Z. Davis, Judge