State of Utah v. Johnston

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

James Johnston,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971327-CA

F I L E D
December 5, 2002 2002 UT App 407 -----

Sixth District, Kanab Department
The Honorable K.L. McIff

Attorneys:
John E. Hummel, St. George, and Blaine T. Hofeling, Cedar City, for Appellant
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee -----

Before Judges Davis, Greenwood, and Orme.

DAVIS, Judge:

Defendant James Johnston appeals his convictions for one count of sodomy on a child, a first degree felony, in violation of Utah Code Ann. § 76-5-403.1 (Supp. 1996);(1) four counts of sexual abuse of a child, a second degree felony, in violation of Utah Code Ann. § 76-5-404.1 (Supp. 1996); and one count of lewdness involving a child, a class A misdemeanor, in violation of Utah Code Ann. § 76-9-702.5 (1995).

Johnston first argues that the trial court erred in denying his motion for a change of venue based on pretrial publicity and potential juror bias. The denial of a motion for a change of venue is "within the sound discretion of the trial court" and will not be disturbed absent an abuse of discretion. State v. James, 767 P.2d 549, 551 (Utah 1989). "On appeal from a jury verdict, . . . we examine whether [the] defendant was ultimately tried by a fair and impartial jury." State v. Widdison, 2001 UT 60,¶38, 28 P.3d 1278.

Five of eleven prospective jurors were excused for cause, including one who recalled reading a newspaper article about Johnston. Once the jury was impaneled, Johnston stipulated that the panel constituted the jury and did not raise any objections. Specifically, Johnston "passed the jury panel for cause, thereby acknowledging that the jury was impartial," id. at ¶39, and also stipulated to the impaneled jury without objection. Therefore, Johnston was insured a fair trial by an impartial jury. See State v. Olsen, 869 P.2d 1004, 1008 (Utah Ct. App. 1994) ("The careful voir dire conducted by the judge, followed by [defendant's] passing the jury for cause, was sufficient to insure that [defendant] received a fair trial.").

Second, Johnston contends that there was a variance between the dates set forth in the information and the dates from the victims' testimony at trial. "A variance is material if it actually prejudices the accused with respect to a substantial right, or where the information is so defective that it results in a miscarriage of justice." State v. Marcum, 750 P.2d 599, 601 (Utah 1988). "[I]f a defendant's substantial rights are not prejudiced, a variance in the evidence from the date alleged in the information is not grounds for reversal so long as the evidence supports a conviction for the offense within the statute of limitations." Id. at 602. However, a claim of variance is not preserved on appeal if the defendant did not seek a continuance from the trial court. See State v. Fulton, 742 P.2d 1208, 1216 (Utah 1987).

During trial, Johnston asserted that if the court allowed the State to amend the information that he would seek a mistrial or continuance. The trial court reserved ruling on the evidence and allowed the trial to go forward. Johnston never made a motion to continue, and the prosecutor never sought a ruling on an amended information. Therefore, the issue has not been preserved for appeal and any claim of a fatal variance is waived.(2) See id.; Marcum, 750 P.2d at 602.

Next, Johnston challenges his trial counsel's representation as ineffective based on (1) failure to investigate or call specified witnesses, (2) failure to adequately prepare, (3) failure to move for a continuance, (4) failure to file post-trial motions, and (5) failure to reveal criminal charges against two of the victims' family members. An ineffective assistance claim raised for the first time on direct appeal is reviewed as a matter of law. See State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993). To succeed on an ineffective assistance of counsel claim, a defendant "must show that counsel's performance was deficient" and that "the deficient performance prejudiced the defense" in that the result of the trial would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also State v. Cosey, 873 P.2d 1177, 1179 (Utah Ct. App. 1994) (applying Strickland two-part test). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

Here, Johnston has not offered any evidence to show how investigating or calling the identified potential witnesses would have affected the outcome of the trial.(3) Because he has failed to demonstrate how the identified potential witnesses' testimony was essential, Johnston has not shown how his defense was prejudiced.

Trial counsel in this case was adequately prepared because the record shows that he participated in the special voir dire proceedings and challenged four prospective jurors for cause, he called several witnesses to testify on Johnston's behalf, and he challenged the credibility of the victims during cross-examination and closing argument. Johnston's contention that counsel did not have time to prepare is purely speculative and cannot "'overcome the strong presumption that trial counsel rendered adequate assistance.'" Cosey, 873 P.2d at 1180 (citation omitted).

Johnston has failed to provide any evidence that a continuance was necessary. There is nothing in the record that suggests that counsel waited until the night before to prepare for trial. Moreover, Johnston's claim that counsel was distracted by other personal matters has not been demonstrated by the evidence in the record. See State v. Johnston, 2000 UT App 290,¶22, 13 P.3d 175 (per curiam) (determining, in rule 23B remand context, that Johnston did not demonstrate how unrelated charges against the lawyer impacted counsel's performance).

Johnston has failed to provide evidence that a post-trial motion would have been successful if filed. Therefore, he does not satisfy the Strickland prong that requires him to demonstrate how his defense was prejudiced by failing to make such a motion.

Lastly, trial counsel was not ineffective for failing to elicit testimony from two witnesses, who are related to the victims, concerning unrelated criminal charges because the information is irrelevant to the offenses at issue and likely inadmissible against one witness because the charges in his case were dismissed. See Utah R. Evid. 608.

In sum, Johnston has failed to make the necessary showing that trial counsel's performance was deficient or that trial counsel's performance prejudiced his defense for each of his ineffective assistance of counsel allegations.

Finally, Johnston argues that the numerous errors at trial constituted cumulative error. Because we find no error occurred, there is no cumulative error, and our confidence that Johnston received a fair trial has not been undermined. See State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).

We remand this case to the trial court for the limited purpose of imposing sentence for the sodomy on a child conviction in accordance with Utah Code Ann. § 76-3-201. See Utah R. Crim. P. 22(e).
 
 

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

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. The trial court sentenced Johnston to "an indeterminate term of not less than 6, 10, or 15 years and which may be for life in the Utah State Prison," leaving the Board of Pardons to decide the length of the sentence. However, Utah Code Ann. § 76-3-201 (Supp. 1997) requires the sentencing court to "order imposition of the term of middle severity unless there are circumstances in aggravation or mitigation of the crime." Id. § 76-3-201(6)(a).

2. The State has filed a Motion to Strike Portion of Appellant's Reply Brief. Because we have determined that the claim of variance has not been properly preserved, the motion is technically moot. However, in accordance with rule 24(c) of the Utah Rules of Appellate Procedure, we grant the State's motion to strike the portion of Johnston's reply brief that raises an ineffective assistance of counsel claim based on failure to pursue or revive the motion to dismiss based on variance. See Utah R. App. P. 24(c) (requiring reply brief be limited to responding to new matter set forth in the opposing brief); State v. Kruger, 2000 UT 60,¶¶20-21, 6 P.3d 1116 (noting that State's observation of issue in its brief does not equate to issue being raised as "new matter").

3. In addition, we have already addressed this exact allegation with respect to four of the ten specified witnesses in a recent decision denying a motion to reconsider the denial of Johnston's rule 23B of the Utah Rules of Appellate Procedure motion for remand. SeeState v. Johnston, 2000 UT App 290, 13 P.3d 175 (per curiam). In that decision, we noted that testimony from the proposed witnesses was "largely cumulative of the evidence introduced at trial," especially considering that Johnston had called twelve witnesses to testify on his behalf. See id. at ¶20.