State of Utah v. Rasmussen

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Angela Rasmussen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000773-CA

F I L E D
June 28, 2001 2001 UT App 206 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Randy T. Austin, Salt Lake City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Billings.
BILLINGS, Judge:

Defendant appeals from a conviction of robbery, a second degree felony, in violation of Utah Code Ann. § 76-6-301 (1999).

Defendant first argues there was insufficient evidence to support her conviction. "Our power to review a jury verdict is . . . quite limited. We view the evidence, along with the reasonable inferences from it, in the light most favorable to the verdict." State v. Moore, 802 P.2d 732, 738 (Utah Ct. App. 1990) (citing State v. Gardner, 789 P.2d 273, 285 (Utah 1989)). We will reverse only if "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 [she] was convicted.'" Id. (quoting State v. Petree, 659 P.2d 443, 444 (Utah 1983)). Thus, "so long as some evidence and reasonable inferences support the jury's findings, we will not disturb them." Id.

The evidence presented at trial established that Defendant was in possession of the wedding dress moments before it disappeared. After being seen with the dress, Defendant was seen walking from the dressing room area carrying a "bulging" duffle bag as she exited the store. After Defendant exited the store, the dress could not be found in the dressing rooms or on the store premises despite thorough search efforts. Upon leaving the store, Defendant was approached by a readily identifiable store employee. Defendant disregarded his repeated attempts to question her, jumped into her car, and struck the employee as she sped away from the scene.

From this evidence the jury could have reasonably inferred that Defendant took the dress into a dressing room, placed it in the duffle bag, exited the store, then, fearful of being caught, ignored the store employee's attempts to question her and struck the employee with her car during her getaway. Thus, we conclude there was sufficient evidence to support the jury's verdict.

Defendant next argues the trial court erred in excluding evidence of specific events that may have caused Defendant's "fear and anxiety," thus explaining why she struck the employee with her car. "'[W]e will not set aside a verdict because of the erroneous exclusion of evidence unless a proffer of evidence appears of record, and we believe that the excluded evidence would probably have had a substantial influence in bringing about a different verdict.'" State v. Arguelles, 921 P.2d 439, 445 (Utah 1996) (emphasis added) (quoting State v. Rammel, 721 P.2d 498, 499-500 (Utah 1986)).

In the instant case, Defendant argues that had she been allowed to testify about specific acts, she would have recounted her abusive past which included "a similar assault . . . that she suffered in a parking lot." She asserts that admission of this evidence would have helped explain her actions and thus resulted in a different outcome. However, Defendant's trial counsel made no proffer of what Defendant would testify to at the time the trial court excluded this evidence. Further, her description of her excluded testimony on appeal does not persuade us that the excluded evidence would "have had a substantial influence in bringing about a different verdict." Id.

Defendant finally argues she was denied her constitutional right to effective assistance of counsel. To show ineffective assistance of counsel, "a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment." State v. Litherland, 2000 UT 76,¶19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984)). The defendant must next demonstrate "that counsel's deficient performance was prejudicial--i.e., that it affected the outcome of the case." Id. (citing Strickland, 466 U.S. at 687-88).

In addition, when raising a claim of ineffective assistance of counsel on appeal, the trial record must be adequate to allow for a determination on the merits of the claim. See State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991). "[W]here, on direct appeal, [a] defendant raises a claim that trial counsel was ineffective[,] . . . defendant bears the burden of assuring the record is adequate." Litherland, 2000 UT 76 at ¶16.

Defendant raises numerous questions regarding trial counsel's failure to introduce and address certain evidence and his failure to ask for a jury instruction on self-defense. However, in regards to trial counsel's alleged failure to introduce and address certain evidence at trial, Defendant alleges facts not appearing in the record on appeal. See id.; see also Utah R. App. P. 23B(b). Thus, we conclude the record is inadequate and therefore construe "any . . . deficiencies resulting therefrom . . . in favor of a finding that counsel performed effectively." Litherland, 2000 UT App at ¶17.

In regards to trial counsel's failure to ask for a jury instruction on self-defense, Defendant argues she was entitled to the same because the jury could have considered whether she acted with the intent to escape bodily injury rather than with the intent to escape with the stolen dress. A defendant is entitled to a self-defense instruction "only if . . . she reasonably believes that force is necessary to prevent death or serious bodily injury to [herself] . . . as a result of the other's imminent use of unlawful force." Utah Code Ann. § 76-2-402(1) (1999). In the instant case, the record evidence is clear that the store employee whom Defendant claims to have been trying to escape from for fear of injury had a prosthetic knee and was attached to an oxygen tank due to the loss of one of his lungs. Indeed, the employee testified that he could not even run. There was also testimony that he did not approach Defendant in a menacing or otherwise threatening manner. Based on this evidence, we conclude that trial counsel's failure to request a  jury instruction on self-defense was not deficient.

Accordingly, we affirm.
 

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

WE CONCUR:
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 

______________________________
Norman H. Jackson,
Associate Presiding Judge