State of Utah v. Rivas

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State v. Rivas. Filed January 27, 2000 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Pedro Antonio Rivas,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990010-CA

F I L E D
January 27, 2000
     2000 UT App 009 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
Gregory G. Skordas and Rebecca C. Hyde, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Orme.

JACKSON, Judge:

To successfully raise an ineffective assistance of counsel claim, "'a defendant must show that trial counsel's performance was deficient in that it "fell below an objective standard of reasonableness," and that the deficient performance prejudiced the outcome of the trial.'" State v. Gallegos, 967 P.2d 973, 976 (Utah Ct. App. 1998) (citations omitted). The defendant must surmount "'the presumption that under the circumstances, the challenged action "might be considered sound trial strategy."'" Id. (citations omitted). Ineffective assistance claims do not cover situations in which counsel fails to make futile motions or objections or in which a "'conceivable legitimate tactical basis for counsel's deficient actions'" exists. Id. (citation omitted).

Because this case involves just such situations, we reject Rivas's ineffective assistance claim. Our review of the photographs and transcript here shows that the three photographs admitted by counsel's stipulation would not have been ruled inadmissible on grounds of irrelevancy or unfair prejudice. See Utah R. Evid. 401-03. Thus, had Rivas's counsel pursued his original objection to the photographs' admission, his objection would have been futile. As we noted above, the lack of a futile objection does not equal ineffective assistance.

Further, counsel's decision to stipulate to the admission of the three photographs, together with admitting the set of other photographs, may well have been a legitimate trial tactic. This alone would rescue his decision from the realm of ineffective assistance. The photographs arguably help counsel's theory of the case--that the victim consensually spent the several days at issue with Rivas. Although several of the photographs show the victim's covered buttocks area, other of the photographs show rather neutral scenes, such as the victim preparing food, sitting on the couch, or smoking. As counsel noted, none of the pictures show the victim physically restrained. Moreover, even the pictures of the victim's buttocks do not necessarily lead to the conclusion that she did not consent to spend time with Rivas.

As additional conceivable, reasonable trial strategy, the admission of the other photographs showed some more neutral context for the first three photographs. And, the transcript shows that counsel strategically used the photographs as an example to bolster his argument that the State presented the jury only selective evidence supporting its case, while leaving out context that would tend to exonerate Rivas. His premise, which he analogized to other evidence in the case, was that the State had sought to admit only three of the photographs, leaving out the others that would place the first three in context.

Finally, Rivas argues that the trial court abused its discretion in allowing the prosecutor to refer to the photographs in closing argument. In particular, he maintains that the prosecutor's remark impermissibly urged the jury to see the photographs as evidence of Rivas's bad character.

Prosecutors may not call the jury's attention to matters the jury would not be justified in considering. See State v. Pearson, 943 P.2d 1347, 1352 (Utah 1997). Generally, "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." Utah R. Evid. 404(a).

Our review of the prosecutor's statement to which Rivas objected shows that the prosecutor was trying to use the photographs to demonstrate Rivas's intent or state of mind regarding the victim during the time period at issue. The prosecutor did not argue that the photographs showed that Rivas had a bad character leading to a propensity to commit sex crimes.

Having concluded that Rivas's counsel did not perform deficiently and that no prosecutorial misconduct exists, we need not address Rivas's argument about cumulative error. Affirmed.
 
 
 
 

______________________________
Norman H. Jackson, Judge

----- WE CONCUR:
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

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