State of Utah v. Bennett

State v. Bennett

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Everette M. Bennett,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020872-CA
 

F I L E D
(February 5, 2004)
 

2004 UT App 17

 

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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 Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

DAVIS, Judge:

Bennett was charged with and convicted of one count of forcible sexual abuse, under Utah Code Annotated section 76-5-404 (2003),(1) a second degree felony. Bennett argues for the first time on direct appeal that trial counsel's failure to request lesser-included offense instructions for lewdness, assault, and sexual battery constitutes ineffective assistance of counsel. Ineffective assistance of counsel claims raised for the first time on direct appeal may be reviewed as a matter of law. See State v. Munson, 972 P.2d 418, 422 (Utah 1998). "Because the record is sufficient for us to determine for the first time on direct appeal whether [Bennett] received effective assistance of counsel, we decide the issue as a matter of law." Id.

To demonstrate ineffective assistance of counsel,

a defendant must (i) identify specific acts or omissions by counsel that fall below the standard of reasonable professional assistance when considered at the time of the act or omission and under all the attendant circumstances, and (ii) demonstrate that counsel's error prejudiced the defendant, i.e., that but for the error, there is a reasonable probability that the verdict would have been more favorable to the defendant.

State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

Bennett identifies the failure to request three lesser-included offense instructions as "specific acts or omissions by counsel that fall below the standard of reasonable professional assistance." Dunn, 850 P.2d at 1225. We disagree. "In determining whether counsel's performance is constitutionally deficient, we presume that counsel has rendered adequate assistance. Thus, if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel." Id. (citations omitted).

Bennett's primary defense was that the victim had consented to his touching of her genitalia, buttocks, and breasts. During opening and closing arguments, Bennett's trial counsel admitted to all but one of the elements of forcible sexual abuse,(2) leaving the jury to decide the issue of the victim's consent.

All you got [sic] to worry about is consent. Everything else is met. There's penetration. There's touching. There's [sic] buttocks. There's [sic] genitalia. There's [sic] penises.(3) It's for sexual gratification, et cetera. It's all met, the only thing you have to worry about is consent.

In this case, asking for instruction on the three lesser-included offenses of lewdness, assault, and sexual battery, each of which include lack of consent as an element, is inconsistent with the defense strategy employed by Bennett's trial counsel. But for the defense of consent, the evidence adduced at trial supported the statutory elements of forcible sexual abuse. Cf. State v. Kingston, 2002 UT App 103,¶11, 46 P.3d 761 (concluding that it was "'sound trial strategy' to forego a factually unsupportable . . . defense" (citation omitted)). We therefore conclude that the failure of Bennett's trial counsel to request three lesser-included offense instructions was "sound trial strategy" and, therefore, the decision to forego the lesser-included offense instructions does not demonstrate "inadequacy of counsel." Dunn, 850 P.2d at 1225.

We affirm Bennett's conviction.

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. Because the statute has remained unchanged since Bennett was charged, we cite to the most current version for convenience.

2. The relevant statutory provision for forcible sexual abuse in this case states:

A person commits forcible sexual abuse if the victim is 14 years of age or older and, under circumstances not amounting to rape, object rape, sodomy, or attempted rape or sodomy, the actor touches the anus, buttocks, or any part of the genitals of another, or touches the breast of a female . . . with the intent to arouse or gratify the sexual desire of any person, without the consent of the other regardless of the sex of any participant.

Utah Code Ann. § 76-5-404(1) (2003).

3. Defendant was charged with two codefendants.