State ot Utah v. Grate

State v. Grate

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Scott Layton Grate,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020152-CA
 

F I L E D
(October 9, 2003)
 

2003 UT App 330

 

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Third District, Salt Lake Department

The Honorable Leslie A. Lewis

Attorneys: Kent R. Hart, Salt Lake City, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Although several issues are presented, each is readily resolved under existing law.

Defendant argues that his trial counsel was ineffective because he failed to object to the sufficiency of the evidence and because he failed to impeach the State's witnesses' credibility. To prevail on an ineffective assistance of counsel claim, "a defendant must show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant." Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

We begin with Defendant's first claim. To successfully challenge the sufficiency of the evidence presented to the jury, Defendant "'must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.'" State v. Hopkins, 1999 UT 98,¶14, 989 P.2d 1065 (citation omitted). Accord West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). Moreover, "'[b]ecause we owe "broad deference to the fact finder, [our] power to review a jury verdict challenged on grounds of insufficient evidence is limited."'" State v. Pearson, 1999 UT App 220,¶15, 985 P.2d 919 (alterations in original) (citations omitted).

Despite Defendant's assertions, the record indicates that J.K.'s testimony was corroborated by other witnesses and part of Defendant's own testimony. Defendant testified that J.K. touched him in the crotch area. J.K.'s friend testified that J.K. and Defendant had been talking in the living room before they went into the bathroom for an hour or so. Defendant's friend, Martin, testified that J.K. and Defendant were in the bathroom for fifteen to twenty minutes. Given the evidence supporting the verdict, Defendant has not shown that his trial counsel's failure to object to the sufficiency of the evidence amounted to ineffective assistance under the Strickland test.(1)

Defendant's second claim is likewise without merit. Defendant argues that the State's witnesses had "motives 'to curry favor'" and suggests that J.K. was an informant, whose testimony was not believable because of her probation status and criminal history. However, Defendant provides no citations to the record to support his claims that J.K. was an informant or that she was on probation. Moreover, the criminal activity Defendant refers to involves J.K. as a victim. "'A jury is entitled to use its own judgment on what evidence to believe and may draw reasonable inferences from that evidence.'" Pearson, 1999 UT App 220 at ¶15 (citation omitted). Further, "'as a general rule, in reviewing a jury verdict we assume that the jury believed the evidence supporting the verdict.'" State v. Brown, 948 P.2d 337, 343-44 (Utah 1997) (citation omitted).(2)

In this case, Defendant has failed to overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that "under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).

Affirmed.

______________________________

Gregory K. Orme, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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James Z. Davis, Judge

1. A trial court may dismiss criminal charges sua sponte only if "the State presents no evidence to support an essential element of a criminal charge," or if the evidentiary insufficiency is otherwise "so obvious and fundamental that it would be plain error for the trial court not to discharge the defendant." State v. Holgate, 2000 UT 74,¶17, 10 P.3d 346 (emphasis in original). See Utah Code Ann. § 77-17-3 (1999) ("When it appears to the court that there is not sufficient evidence to put a defendant to his defense, it shall forthwith order him discharged."). Defendant has not demonstrated that the evidence was insufficient to support a conviction or that any such insufficiency was so apparent that the trial court erred in not dismissing the case.

2. Defendant's related Confrontation Clause claim is without merit. "[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness." Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436 (1986). J.K. stated that she had received counseling, but there was no evidence establishing bias. The trial court merely limited further inquiry into J.K.'s counseling history.