State of Utah v. Lyman

----ooOoo----

State of Utah,
Appellee,

v.

Raymond Rick Lyman,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000016-CA

F I L E D
March 8, 2001 2001 UT App 67 -----

Seventh District, Monticello Department
The Honorable Mary Manley

Attorneys:
Stephanie Ames and Gregory G. Skordas, Salt Lake City, for Appellant
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Thorne.

DAVIS, Judge:

Defendant argues the jury verdict finding him guilty of sexual abuse of a child is not supported by sufficient evidence. In his sufficiency claim here, Defendant makes essentially the same argument he made at trial. Defendant claims that due to small inconsistencies in the victim's testimony the evidence presented was insufficient such that reasonable minds must have entertained a reasonable doubt.

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, 993 P.2d 232 (citations omitted). "We will reverse a jury's guilty verdict only if, so viewed, the evidence and its inferences are so 'inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.'" State v. Moore, 802 P.2d 732, 739 (Utah Ct. App. 1990) (citation omitted). However, Defendant claims there was insufficient evidence to sustain a conviction because the victim's testimony was inconsistent concerning her age at the time of the incidents and whether her brother was present at the house during the incidents, and because the victim's testimony conflicted with her grandfather's testimony about where she slept. The jury had the opportunity to evaluate these inconsistencies and determined that they did not rise to the level of being evidence or inferences which are so "'inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.'" Moore, 802 P.2d at 738 (citation omitted).

We also reject Defendant's argument that he received ineffective assistance of counsel because his attorney failed to present witnesses to testify that Defendant was not present when the victim claimed the incidents occurred. 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).

Here, Defendant has not shown that the alleged deficient performance of his counsel resulted in a likelihood of prejudice. First, Defendant's only argument regarding prejudice is a cursory statement that failure to call witnesses other than Defendant's father to show that he was not present at his parent's home during the incidents was extremely prejudicial and "[s]uch additional evidence would provide a reasonable probability that the jury would have a reasonable doubt about the prosecution's evidence and would have arrived at a different verdict." Defendant does not meet this 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 . . . ."). Second, the jury heard evidence from Defendant's father concerning this exact issue and further evidence would have been cumulative. See State v. Verde, 770 P.2d 116, 119 (Utah 1989) ("the testimony complained of was merely cumulative of other [unchallenged] evidence"). Third, Defendant's alibi was that he was not present at the house during the Fourth of July weekend in 1995. However, the victim clearly stated that the two incidents happened before that weekend. Finally, Defendant has not shown the existence of any witnesses who could testify that Defendant was not present at the time of the two incidents, has not shown what that witness's testimony would have been, and does not even hint what counsel should have done about it.

Affirmed.
 
 
 
 

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

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge