State of Utah v. Brensike

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State v. Brensike. Filed November 4, 1999 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Gary Kevin Brensike,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981691-CA

F I L E D
November 4, 1999
  1999 UT App 320

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Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Kevin J. Kurumada, Salt Lake City, for Appellant
Jan Graham and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Jackson.

BILLINGS, Judge:

Appellant Gary Brensike appeals his convictions of forgery and attempted theft by deception. He asserts that his convictions should be overturned because he received ineffective assistance of counsel. Also, he argues that the trial court erred in denying his motion for a new trial. We affirm the convictions, but remand for a clarification of sentence.

To prove a claim of ineffective assistance of counsel, "a defendant must show that trial counsel's performance was deficient . . . and that the deficient performance prejudiced the outcome of the trial." State v. Baker, 963 P.2d 801, 806-07 (Utah Ct. App. 1998). To establish counsel's performance as deficient, defendant must show that the representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984). Defendant must overcome the strong presumption that counsel's conduct "falls within the wide range of reasonable professional assistance . . . [and] might be considered sound trial strategy." Id. at 689 (citation and internal quotation marks omitted).

To establish prejudice, defendant must show a reasonable probability that absent the deficient representation, the trial outcome would have been different. See Baker, 963 P.2d at 807. "'A reasonable probability is a probability sufficient to undermine confidence in the reliability of the outcome.'" State v. Classon, 935 P.2d 524, 532 (Utah Ct. App. 1997) (citation omitted).

Defendant asserts that trial counsel's performance was deficient because she failed to object to the disclosure of his request for a lawyer, and in fact elicited such testimony on direct examination of defendant. To show deficient performance, defendant must show that "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) (citations and internal quotation marks omitted). Under the circumstances of this case, counsel's actions were deliberate trial strategy. The disclosure of defendant's request for a lawyer before he would agree to give a handwriting sample was a conscious attempt to portray defendant as a cooperative witness who became frustrated with the police during his interview. This attempt to enhance his credibility and explain his conduct was a legitimate tactical decision. This court will not second guess counsel's legitimate strategic choices. See id. Thus, we conclude counsel's performance was not deficient in this regard.

Defendant also claims that counsel erred by failing to object to the prosecution's questions to Detective Cutler regarding his handwriting expertise, and in failing to object to prosecution's comments in closing argument regarding such expertise. "'[W]e need not determine whether counsel's performance was [in fact] deficient,'" if defendant fails to show prejudice. Baker, 963 P.2d at 807 (citation omitted)(second alteration in original). We conclude that defendant has failed to demonstrate prejudice. While counsel did not object to the initial questions eliciting Cutler's expertise, she did object to the question attempting to elicit his opinion about defendant's handwritten statement. She successfully kept out such testimony. Because Cutler did not give his opinion, we find no prejudice.

During closing arguments, the prosecution noted Cutler's expertise in arguing that handwriting comparison requires expertise. Even if this was error, we find no prejudice. The state presented three eye witnesses who saw the defendant at various times in the store, including one who witnessed him write the check. Because the state's case was strong, the reference to the officer's expertise is not enough to undermine our confidence in the outcome.

Defendant also contends the trial court erred in failing to grant a mistrial based on the prosecution's elicitation of testimony that defendant was in jail before trial. Again we find no prejudice. Trial counsel chose not to object when the testimony was elicited, making the tactical choice not to draw attention to the testimony. The trial judge noted counsel's choice was effective, and that the comments seemed to have "slid by" the jury. Also, the court ordered that no mention of defendant's jail presence be made in closing argument. Because the trial court properly evaluated the issue and found no prejudice, and made efforts to further reduce the risk of prejudice, we conclude the trial court did not abuse its discretion in denying the motion for a mistrial.

Finally, the order of probation in the sentencing document is not tied to either of the charges. Because we cannot determine the trial court's intentions from the order or record, we remand for clarification of the sentence on the misdemeanor count. See State v. Peterson, 869 P.2d 989, 992 (Utah Ct. App. 1994).
 
 
 

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Judith M. Billings, Judge

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WE CONCUR:
 
 
 

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James Z. Davis, Judge
 
 
 

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Norman H. Jackson, Judge