State of Utah v. Jarrell, Jr.

----ooOoo----

State of Utah,
Appellee,

v.

Jonnie Jarrell, Jr.,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981840-CA

F I L E D
October 13, 2000 2000 UT App 281 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Odean Bowler, St. George, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee

-----

Before Judges Billings, Greenwood, and Thorne.

BILLINGS, Judge:

Jonnie Jarrell, Jr. (Defendant), appeals his convictions for sexual abuse of a child, in violation of Utah Code Ann. § 76-5-404.1 (1999), and child abuse, in violation of Utah Code Ann. § 76-5-109 (1999), on grounds of ineffective assistance of trial counsel and insufficient evidence to convict. We affirm.

To establish ineffective assistance of counsel, Defendant "must show that his counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment and that counsel's deficient performance prejudiced him." State v. Maestas, 1999 UT 32,¶20, 984 P.2d 376.

Defendant first argues he received ineffective assistance because counsel failed to call Sheldon Davis, whom police had identified as a preliminary suspect, as a witness. However, Defendant does not point out any testimony that Mr. Davis would have provided, much less testimony that would have been helpful to Defendant. Defendant therefore fails to establish that he was prejudiced by counsel's decision not to call Mr. Davis.

Defendant next argues his counsel was ineffective for failing to object to admission of photographs of the two-year-old victim. Evidence is inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice" to the defendant. Utah R. Evid. 403. Photographic evidence is highly probative of whether injuries resulted from intentional violence or an accident. See State v. Jiron, 882 P.2d 685, 690 (Utah Ct. App. 1994). In this case, Defendant claimed that the victim's injuries occurred by accident. Thus, the photographs were highly probative and such probative value was not outweighed by the danger of unfair prejudice. Therefore, the photographs were admissible. Accordingly, objection by Defendant's trial counsel to admission of the photographs would have been futile, and counsel is not ineffective for failing to make futile objections. See State v. Buel, 700 P.2d 701, 703 (Utah 1985).

Defendant finally argues that circumstantial evidence was insufficient to convict him of sexual abuse of a child. We view all evidence in the light most favorable to the jury's verdict and reverse only if the evidence is so "'inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted.'" State v. Brown, 948 P.2d 337, 343 (Utah 1997) (citation omitted) (alteration in original). Additionally, "circumstantial evidence alone may be sufficient to establish the guilt of the accused." State v. Nickles, 728 P.2d 123, 126 (Utah 1986).

Evidence at trial established that the victim consistently showed physical signs of abuse and sexual abuse after Defendant moved in with the victim's mother. On at least one occasion, the victim showed such physical signs following a period of four days during which Defendant was the only person with whom the mother left the child alone. Additionally, the victim showed obvious fear of Defendant--flinching and clinging tenaciously to others when Defendant tried to take him away--but showed no similar fear toward his mother or others. Finally, when Defendant went to the emergency room for his own needs, he appeared unconcerned about the child's obvious injuries until after the emergency room staff, alarmed by those injuries, examined the child.

We cannot say that this evidence is so inconclusive that a jury must have entertained a reasonable doubt that Defendant intentionally committed the crimes charged. We therefore affirm Defendant's conviction.
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge