State of Utah v. Bosley

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kevin A. Bosley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No.
Case No. 990146-CA

F I L E D
December 7, 2000  2000 UT App 345 -----

First District, Brigham City Department
The Honorable Ben H. Hadfield

Attorneys:
Justin C. Bond, Brigham City, for Appellant
Jan Graham and J. Frederic Voros, Jr., Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Orme.

GREENWOOD, Presiding Judge:

Defendant appeals his conviction of two counts of forgery, a third degree felony, in violation of Utah Code Ann. § 76-6-501 (1999),(1) claiming that the trial court should have granted his motion for a new trial because his trial counsel was ineffective, the court failed to properly instruct the jury as to the element of intent, and there was insufficient evidence to convict him. We affirm.

Defendant argues ineffective assistance because his defense counsel did not present expert testimony to refute testimony that he had admitted filling in the front of the checks. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984). Thus, as we recognized in State v. Gallegos, 967 P.2d 973 (Utah Ct. App. 1998), a conviction will not be disturbed absent defendant's showing that counsel's performance was both (1) deficient, and (2) prejudicial. See id. at 976; see also Strickland, 466 U.S. at 687; 104 S. Ct. at 2064. To meet this burden, defendant "must 'identify specific acts or omissions that fell outside the wide range of professional assistance and illustrate that, absent those acts or omissions, there is a "reasonable probability" of a more favorable result.'" State v. Maestas, 1999 UT 32,¶20, 984 P.2d 376 (citation omitted).

Assuming, but not concluding, that defendant satisfied the first prong under Strickland, defendant's argument fails because he has not established prejudice. Defendant has failed to provide the entire record of the proceedings, which included testimony of eleven other witnesses. The only part of the record that defendant has provided is the testimony of one witness--the State's witness, Deputy Cosgrove. Because defendant failed to provide the entire record, we must presume that the evidence presented supports the jury's verdict that defendant uttered an "altered writing." See Utah Code Ann. § 76-6-501(1)(a) (1999); State v. Gorham, 93 Utah 274, 72 P.2d 656, 659 (1937) ("To find defendant guilty [of forgery], it was not essential that defendant should have personally affixed the forged name to the draft."); see also Sampson v. Richins, 770 P.2d 998, 1002 (Utah Ct. App. 1989) ("'Where the record before us is incomplete, we are unable to review the evidence as a whole and must therefore presume that the verdict was supported by [the] evidence.'" (citation omitted)).

Additionally, defendant's claim that his trial counsel should have called other witnesses to rebut the State's testimony is unavailing because he has not stated what those witnesses would have said had they been called to testify. See State v. Vessey, 967 P.2d 960, 965 n.5 (Utah Ct. App. 1998) (stating that defendant failed to "allege[] specific facts outside the record to support his claim of ineffective assistance of counsel"). Absent the substance of the potential witnesses' testimony, we will not speculate as to what the testimony would have been. See State v. Arguelles, 921 P.2d 439, 441 (Utah 1996). Thus, defendant has not met his burden of showing prejudice.

Next, defendant argues that, under State v. Winward, 909 P.2d 909 (Utah Ct. App. 1995), the trial court failed to properly instruct the jury that the State had to prove intent to defraud a specific person or persons. Defendant misreads Winward. Generally, in a forgery case, it is not necessary to instruct the jury that defendant intended to defraud a specific person or persons. See generally id. at 912 ("Dispensing with the requirement that the State identify the victims of the charged forgery makes sense in situations where the 'victims' are not readily discernible."). However, the facts in Winward were different because there was evidence improperly admitted of defendant's intent to defraud persons other than the only obvious person intended to be defrauded. See id. at 913. In any event, defendant did not argue this issue in his motion for a new trial, and therefore it was not properly preserved for this appeal. See Utah R. App. P. 24(a)(5)(A).

Finally, defendant contends that the evidence was insufficient to support his conviction of forgery. Because defendant failed to develop or present any argument on this issue, we do not consider it further. See Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (disregarding issue not properly briefed by appellant), cert. denied, 4 P.3d 1289 (Utah 2000).

Therefore, the trial court's order denying defendant's motion for a new trial is affirmed.
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. As a convenience to the reader, and because the provisions in effect at the relevant times do not differ materially from the statutory provisions currently in effect, we cite to the most recent statutory codifications throughout this opinion, unless otherwise noted.