State of Utah v. Cruz

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Leon Cruz,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990396-CA

F I L E D
March 23, 2000
  2000 UT App 83 -----

Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Maurice Ricards, Ogden, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Garff.(1)

DAVIS, Judge:

On appeal from a jury verdict, "'"[w]e review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury."'" State v. Leleae, 1999 UT App 368, ¶17, 384 Utah Adv. Rep. 10 (citations omitted).

We reject defendant's claim that his convictions should be reversed because only one witness identified him as the person who sold the informant drugs. We will not reverse a jury verdict based on insufficient evidence unless the evidence "'is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.'" Id. (citation omitted). Essentially, defendant argues that the jury should have found the witness's testimony identifying defendant as the seller not credible and, in the absence of other such evidence, the verdict cannot be sustained. However, "'[w]e do not weigh conflicting evidence, nor do we substitute our own judgment on the credibility of the witnesses for that of the jury.'" State v. Wright, 893 P.2d 1113, 1117 (Utah Ct. App. 1995) (citation omitted). Hence, the jury was free to find the witness's testimony credible and accept the identification of defendant as the seller.

We further reject defendant's argument that he received ineffective assistance of counsel because his attorney did not present witnesses to testify to defendant's physical description or that defendant was not the seller. To prevail on a claim of ineffective assistance, "defendant has the burden of showing at least the likelihood of prejudice." State v. Whittle, 1999 UT 96, ¶21, 989 P.2d 52. "To establish . . . prejudice . . . the defendant must show that, 'but for the deficient representation, there is a "reasonable probability" that the result would have been different.'" State v. Gallegos, 967 P.2d 973, 977 (Utah Ct. App. 1998) (citations omitted). Defendant's only argument regarding prejudice is a cursory statement that "but for his counsel's deficient performance in providing alibi and identification witnesses, there is a reasonable probability that the outcome of the trial would have been different." Defendant does not meet his burden by merely restating the applicable standard. See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993) ("This is merely rephrasing that which must ultimately be shown . . . but is clearly insufficient to affirmatively demonstrate a reasonable probability that the trial result would have been different . . . ."). Given that defendant was present in the courtroom and the jury could personally view him to compare his characteristics with the witness's description of the seller, and that defendant has not shown any witnesses even exist who could truthfully testify that another person was the seller, even assuming ineffective performance by counsel, we are not convinced there is a reasonable probability of a different outcome.

Finally, we also reject defendant's argument that reversal is warranted because the prosecutor inappropriately informed the jury of the prior photo identification but failed to introduce the photo into evidence. The record shows that the photo was indeed admitted into evidence. Consequently, defendant's claim in this regard is baseless.

Affirmed.
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Regnal W. Garff,
Senior Judge

1. Senior Judge Regnal W. Garff sitting by special appointment pursuant to Utah Code Ann. § 78-2-4(2) (1996); Utah Code Jud. Admin. R3-108(4).