Provo City v. Kummer

Provo City v. Kummer

IN THE UTAH COURT OF APPEALS
 

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Provo City,

Plaintiff and Appellee,

v.

Buddy Kummer,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030260-CA
 

F I L E D
(September 16, 2004)
 

2004 UT App 320

 

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Fourth District, Provo Department

The Honorable Guy R. Burningham

Attorneys: Patrick V. Lindsay, Provo, for Appellant

Vernon F. (Rick) Romney, Provo, for Appellee

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Before Judges Davis, Jackson, and Greenwood.

DAVIS, Judge:

    Buddy Kummer (Defendant) appeals his conviction for driving under the influence of drugs (DUI). We affirm.

    Defendant argues that there was insufficient evidence to support his DUI conviction.

    The burden on a defendant challenging the sufficiency of the evidence is heavy. Defendant must marshal all of the evidence in support of the trial court's findings of fact and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the findings against an attack.

    State v. Larsen, 2000 UT App 106,¶11, 999 P.2d 1252 (quotations and citation omitted). This court "must sustain the trial court's judgment unless it is against the clear weight of the evidence [presented at trial], or if [we] otherwise reach[] a definite and firm conviction that a mistake has been made." State v. Andreason, 2001 UT App 395,¶4, 38 P.3d 982 (first alteration in original) (quotations, citation, and footnote omitted). The conviction, however, "must be supported by a quantum of evidence concerning each element of the crime as charged from which the [factfinder] may base its conclusion of guilt beyond a reasonable doubt." Id. (alteration in original) (quotations and citation omitted).

    Defendant thoroughly marshaled all of the evidence in support of the trial court's findings of fact. As a result, it is clear to this court that the evidence presented to the trial court supported each element of the crime for which Defendant was convicted. Therefore, Defendant's challenge to the sufficiency of the evidence fails.

    Defendant also asserts that his trial counsel rendered ineffective assistance in failing to move for a dismissal of the DUI charge because of the insufficiency of the evidence. "[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." State v. Kelley, 2000 UT 41,¶25, 1 P.3d 546 (quotations and citations omitted). Moreover, "[t]o establish prejudice, defendant must show a reasonable probability . . . that except for ineffective counsel, the result would have been different." Id. (second alteration in original) (quotations and citations omitted). "Failure to raise futile objections does not constitute ineffective assistance of counsel." Id. at ¶26.

    Because the evidence was sufficient to support Defendant's conviction, it would have been futile for Defendant's counsel to make an insufficiency challenge. Therefore, Defendant's ineffective assistance claim fails.

    Affirmed.

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James Z. Davis, Judge

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WE CONCUR:

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Norman H. Jackson, Judge

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Pamela T. Greenwood, Judge