State of Utah v. Mangum

----ooOoo----

State of Utah,
Appellee,

v.

Brian Cecil Mangum,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010195-CA

F I L E D
September 12, 2002 2002 UT App 289 -----

Third District, West Valley Department
The Honorable Terry Christiansen

Attorneys:
Michael R. Sikora, Salt Lake City, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Thorne.
BILLINGS, Associate Presiding Judge:

Defendant Brian Cecil Mangum appeals from convictions of Possession of a Controlled Substance with Intent to Distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iii) (Supp. 2002), and Possession of Drug Paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5(1) (1998). We affirm his convictions.

Defendant claims his trial counsel was ineffective in failing to call a witness. To succeed on his claim, Defendant "'must show that his 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. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998) (citations omitted).

Defendant argues his trial counsel's performance was deficient because the witness would have offered noncumulative testimony that the fanny pack, which police officers found in the Corvette Defendant was driving and which contained methamphetamine and paraphernalia, belonged to her boyfriend, not to Defendant. "It is well established that trial tactics and strategies including what witnesses to call . . . are within the prerogative of [trial] counsel and are generally left to [trial] counsel's professional judgment." State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993). We do not question the decision not to call a witness "unless there is no reasonable basis for that decision." Id. at 1256-57; see also Bryant, 965 P.2d at 543 (holding failure to call alibi witnesses was not ineffective assistance although the record was silent as to trial counsel's subjective intent).

We agree with the State that nothing in the record rebuts the "strong presumption . . . that under the circumstances," trial counsel's decision was "sound trial strategy." Bryant, 965 P.2d at 542 (quotations and citations omitted). Because Defendant has failed to supply a record(1) that establishes why the witness was not called and because there are several reasonable explanations, his ineffective assistance claim fails. See State v. Litherland, 2000 UT 76,¶17, 12 P.3d 92 ("Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively."); see also State v. Cook, 881 P.2d 913, 915 n.3 (Utah Ct. App. 1994) (concluding inadequacy of record precluded review of ineffective assistance claim where "record [did] not reveal whether trial counsel's failure to request findings under [section] 76-5-411 was part of her trial strategy or simply an oversight"), overruled in part on other grounds by State v. Pecht, 2002 UT 41, 48 P.3d 931.
 
 
 
 

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

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. In this case, Defendant did not move to remand under Rule 23B of the Utah Rules of Appellate Procedure. See State v. Litherland, 2000 UT 76,¶16, 12 P.3d 92.