State v. Slattery

State v. Slattery

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Joseph Anthony Slattery,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020769-CA
 

F I L E D
(October 15, 2004)
 

2004 UT App 357

 

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Third District, West Valley Department

The Honorable Terry Christiansen

Attorneys: Margaret P. Lindsay, Orem, and Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Greenwood, Orme, and Thorne.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolvable under applicable law.

In reviewing a claim of ineffective assistance of counsel, Defendant carries the burden to "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." Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). See Strickland v. Washington, 466 U.S. 668, 696 (1984). However, "'[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'" Bundy, 763 P.2d at 805-06 (quoting Strickland, 466 U.S. at 697).

In order to show prejudice in this case, Defendant must "demonstrat[e] a reasonable probability that he would not have been convicted" had his counsel objected to the challenged in-court identification. State v. Arguelles, 921 P.2d 439, 441 (Utah 1996). We conclude that Defendant has not met that burden.

Testimony given at trial indicated that, on the night of the assault, the assailant was intoxicated and was driving a blue truck, license plate number 378 KRZ. The evidence also indicated that on the same night, and while in close proximity to the site of the assault, Defendant, while intoxicated, was driving a blue truck, license plate number 378 KRZ. This evidence, coupled with Defendant's admission that he was the sole person in possession of the truck that night, clearly demonstrates that the victim's in-court identification of Defendant was not the primary evidence upon which the jury convicted Defendant.

Defendant also argues that the evidence at trial was insufficient to support his conviction for aggravated assault. In order to overturn the jury's verdict on this basis, "reasonable minds must have entertained a reasonable doubt" as to the jury's verdict. State v. Kerekes, 622 P.2d 1161, 1168 (Utah 1980). Despite minor inconsistencies in the victim's testimony, the totality of the State's evidence is sufficient to convince "reasonable minds" that Defendant was guilty. Such evidence includes the victim's testimony to the effect that she experienced an "unexpected visceral reaction" to the sound of Defendant's voice, Defendant's blue truck and matching license plate number, his proximity to the incident, and the other eyewitness accounts concerning the assault and its aftermath. Although Defendant contends that his testimony, combined with his alibi evidence, casts sufficient doubt upon the credibility of the witnesses testifying for the State, "determinations of witness credibility are left to the jury." State v. Hayes, 860 P.2d 968, 972 (Utah Ct. App. 1993).

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge