State of Utah v. Drake

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State v. Drake

2001 UT App 398



State of Utah,
Plaintiff and Appellee,


Brian William Drake,
Defendant and Appellant.

(Not For Official Publication)

Case No. 20000298-CA

(December 13, 2001)



Third District, Salt Lake Department
The Honorable Leslie A. Lewis

Stephanie Ames, Salt Lake City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, for Appellee


Before Judges Billings, Garff,(1) and Thorne.

THORNE, Judge:

Appellant Brian Drake appeals from convictions for Forgery, in violation of Utah Code Ann. § 76-6-501 (1999), and Theft by Deception, in violation of Utah Code Ann. § 76-6-405 (1999). We affirm.

Appellant argues the trial court erred in instructing the jury on the requisite elements of the crimes charged, because the instructions "failed to require the jury to find beyond a reasonable doubt that [appellant] aided or abetted Ms. Tousley in committing the forgeries." In State v. Laine, 618 P.2d 33 (Utah 1980), the Utah Supreme Court explained: "So long as the jury is informed what each element is and that each must be proved beyond a reasonable doubt, the instructions taken as a whole may be adequate even though the essential elements are found in more than one instruction." Id. at 35.

Here, jury instruction no. 21 informed the jury that "you must find from all of the evidence and beyond a reasonable doubt each and every one of the . . . elements" of the offenses. Specifically, jury instruction no. 1 states, "The plea of not guilty denies each of the essential allegations of the charges

. . . and casts upon the State the burden of proving each to your satisfaction beyond a reasonable doubt." Further, jury instruction no. 13 states, "Every person, acting with the mental state required for the commission of the offense . . . who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct." Finally, jury instruction no. 15 states, "[The jury is to] consider all the instructions as a whole and to regard each in the light of all others." Accordingly, the jury instructions, taken as a whole, informed the jury of the requisite degree of proof needed and the essential elements necessary to convict appellant of the crimes charged. See Laine, 618 P.2d at 35.

Next, appellant argues that his counsel was ineffective because counsel (1) "waived objection to faulty jury instructions," and (2) "failed to fully investigate and obtain witnesses to testify" on appellant's behalf. To demonstrate ineffective assistance of counsel, defendant must "'(i) identify specific acts or omissions by counsel that fall below the standard of reasonable professional assistance . . . , and (ii) demonstrate that counsel's error prejudiced . . . defendant.'" State v. Parker, 2000 UT 51,¶10, 4 P.3d 778 (citation omitted). Because we have concluded that the trial court properly instructed the jury, appellant's first basis for his ineffective assistance claim fails.

Next, appellant's argument that counsel was ineffective because he "failed to fully investigate and obtain witnesses to testify" on appellant's behalf also fails. Although appellant contends that he gave counsel the name of the person he believed actually committed the crimes, appellant's brief and supporting addenda fail to provide any information as to this individual's supposed testimony. See, e.g., State v. Callahan, 866 P.2d 590, 593 (Utah Ct. App. 1993) (stating "there is nothing in the record or even in defendant's brief identifying these supposed witnesses, much less the substance of their testimony"). Further, appellant's conclusory statement that "there is a reasonable probability that had the witness been called to testify, the outcome of the trial would have been different" is unfounded because appellant offers no information to support his conjecture that this individual committed the crimes, nor how trial counsel would have adduced such testimony had this individual testified. Appellant's ineffective assistance claims therefore fail.

Finally, appellant argues the evidence was insufficient to convict him of the crimes charged. We disagree. "In considering an insufficiency of the evidence claim, [we] 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. Widdison, 2001 UT 60,¶74, 28 P.3d 1278 (citation omitted). Further, we "'assume that the jury believed the evidence supporting the verdict.'" Id. (citation omitted). We will only reverse a jury verdict for insufficient evidence "'if the evidence presented at trial is so insufficient that reasonable minds could not have reached the verdict.'" Id. (citation omitted). After carefully reviewing the evidence, we conclude that it was sufficient to sustain appellant's convictions.

We therefore affirm appellant's convictions.

William A. Thorne, Jr., Judge



Judith M. Billings, Judge

Regnal W. Garff, 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).