State v. May

State v. May

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

R. Todd May,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030004-CA
 

F I L E D
(April 1, 2004)
 

2004 UT App 91

 

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Second District, Ogden Department

The Honorable Ernest W. Jones

Attorneys: John T. Caine, Ogden, for Appellant

Gary R. Heward, Ogden, for Appellee

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Before Judges Davis, Jackson, and Thorne.

DAVIS, Judge:

Defendant challenges his conviction, under Utah Code Annotated section 53-9-107(2)(a)(ii) (Supp. 2001),(1) for acting as a private investigator without a license. Defendant raises three arguments: (1) because he did not receive consideration during the sting operation, he did not violate section 53-9-107(2)(a) (ii); (2) the State did not present sufficient evidence to warrant a conviction; and (3) he received ineffective assistance from his trial counsel.

Defendant first argues that the trial court misinterpreted Utah Code Annotated sections 53-9-107(2)(a)(ii) and 53-9-102(16) (a) (Supp. 2001) when it concluded that the statutes do not require the actual exchange of consideration for an individual to be considered a private investigator. Whether the trial court correctly interprets a statute is a question of law reviewed for correctness. See Hansen v. Eyre, 2003 UT App 274,¶5, 74 P.3d 1182, cert. granted, 80 P.3d 152 (Utah 2003).

Well-settled rules of statutory interpretation instruct us that [w]hen interpreting a statute, this court looks first to the statute's plain language to determine the Legislature's intent and purpose. We read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters. We follow the cardinal rule that the general purpose, intent and purport of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious to its manifest object.

Id. at ¶7 (alteration in original) (quotations and citations omitted).

In this case, the statute is the Private Investigator Regulation Act (the Act). See Utah Code Ann. §§ 53-9-101 to -119 (1998 & Supp. 2001). Section 53-9-107(2)(a)(ii) provides, in relevant part, "a person may . . . not act or assume to act as, or represent himself to be . . . a private investigator or private detective as defined in [s]ubsection 53-9-102(16) or conduct any investigation as provided in [s]ubsection 53-9-102(16)." Id. § 53-9-107(2)(a)(ii). A private investigator is defined, under section 53-9-102(16)(a), as "any person, except collection agencies and credit reporting agencies, who, for consideration, engages in business or accepts employment to conduct any investigation for the purpose of obtaining information." Id. § 53-9-102(16)(a).

We agree with the State that section 53-9-102(16)(a) does not require the actual exchange of consideration. An examination of the plain language of the statute, see Hansen, 2003 UT App 274 at ¶7, leads us to conclude that the words "for consideration" modify the phrase "engages in business or accepts employment to conduct any investigation for the purpose of obtaining information." Utah Code Ann. § 53-9-102(16)(a). Under this interpretation, a person need only offer to perform the services of a private investigator for the promise of consideration to be considered a private investigator. See id.

This interpretation of section 53-9-102(16)(a) is harmonious with the intent behind section 53-9-107(2)(a)(ii), which provides "a person may not . . . act, or assume to act as, or represent himself to be . . . a private investigator." Id. § 53-9-107(2) (a)(ii) (emphasis added). If actual consideration were required under section 53-9-102(16)(a), then the prohibition on assuming to act or representing oneself as a private investigator under section 53-9-107(2)(a)(ii) would be rendered superfluous. We conclude that the trial court correctly interpreted sections 53-9-107(2)(a)(ii) and 53-9-102(16)(a).

Defendant next argues that his conviction was based upon insufficient evidence because the State failed to prove when the offense occurred. "'When reviewing a bench trial for sufficiency of[ the] evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.'" State v. Nichols, 2003 UT App 287,¶24, 76 P.3d 1173 (citation omitted), cert. denied, 84 P.3d 239 (Utah 2003).

The record shows that the sting operation occurred in either late-August 2001, or early-September 2001, either of which were well after the May 2000 expiration date of Defendant's license. Based on this evidence, we conclude that the trial court's judgment was not "against the clear weight of the evidence." Id. (quotations and citations omitted).

Defendant's final argument is that his trial counsel rendered ineffective assistance. 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).

Defendant identifies (1) the failure of his trial counsel to call the trial court's attention to alleged insufficient evidence, and (2) the failure of his trial counsel to obtain and listen to the audio recording of the sting operation as "specific acts or omissions by counsel that fall below the standard of reasonable professional assistance." Dunn, 850 P.2d at 1225.

Respecting Defendant's first claim, he does not clarify at what stage of the proceedings trial counsel failed to call the trial court's attention to the alleged insufficient evidence. Because this argument is inadequately briefed and fails to follow the requirements of rule 24(a)(9) of the Utah Rules of Appellate Procedure, we cannot consider it. See State v. Shepherd, 1999 UT App 305,¶27, 989 P.2d 503 ("'[R]ule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority.'" (citation omitted)).(2)

Defendant's second claim fails to "demonstrate that counsel's error prejudiced [him]." Dunn, 850 P.2d at 1225. Defendant makes a conclusory statement near the end of his brief, with no citation to authority, that the failure of Defendant's trial counsel to obtain and listen to the audio recording constitutes "per se ineffectiveness." However, this statement does not demonstrate how, "but for the error, there [would be] a reasonable probability that the verdict would have been more favorable to the defendant." Id. Without pointing out how the failure to obtain the audio recording prejudiced him, Defendant asks this court to speculate on the effect of its absence from his trial, which we cannot do. See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993) ("[P]roof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality.").

We conclude that the trial court correctly interpreted the Act, and that Defendant's sufficiency of the evidence and ineffective assistance of counsel claims fail.

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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William A. Thorne Jr., Judge

1. We cite to the provisions of the Private Investigator Regulation Act in effect at the time Defendant was charged.

2. Even if the issue had been adequately briefed, we note that the failure to raise an objection when the prosecutor stated the date of the sting operation "might be considered sound trial strategy," State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993), and, therefore, "we [would] not find that it demonstrates inadequacy of counsel." Id. Similarly, because there was sufficient evidence that the offense occurred well after the expiration of Defendant's license, arguing that the State had not proven the date of the offense would have been futile and, therefore, this ineffective assistance of counsel claim would fail. Cf. State v. Kelley, 2000 UT 41,¶26, 1 P.3d 546 ("Failure to raise futile objections does not constitute ineffective assistance of counsel.").