State of Utah v. Harris

State v. Harris

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Steve Harris,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020337-CA
 

F I L E D
(November 14, 2003)
 

2003 UT App 384

 

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Second District, Ogden Department

The Honorable Michael Lyon

Attorneys: Sharon S. Sipes, Ogden, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.

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). Moreover, the appeal is readily resolved under well-settled principles of applicable law.

"A prosecutor's remarks will be considered improper if the remarks 'called to the [jury]'s attention matters which they would not be justified in considering in reaching a verdict.'" State v. Calliham, 2002 UT 86,¶61, 55 P.3d 573 (citation omitted). Despite Defendant's assertion that the prosecution's demonstration was improper, the record reflects that the demonstration was merely illustrative of an inference reasonably drawn from evidence that was already before the jury. Although the witness testified that she "saw a face covered in black," and previously told a police officer that the assailant wore "a black full-faced knit ski mask with one mouth and two eye holes," the wool knit cap and blue and white bandana found in Defendant's car had been admitted into evidence. Used in combination, the cap and bandana might well serve as a comparable disguise. Thus, it was reasonable for the prosecution to "draw permissible deductions from the evidence and make assertions about what the jury may reasonably conclude." State v. Bakalov, 1999 UT 45,¶57, 979 P.2d 799.

Defendant's claim of misconduct due to the prosecution's references to the caustic liquid ingested by Defendant's daughter is likewise without merit. Although rule 404(b) of the Utah Rules of Evidence precludes the admission of "[e]vidence of other crimes, wrongs or acts . . . to prove the character of a person in order to show action in conformity therewith," such evidence "may, however, be admissible for other purposes, such as proof of . . . identity." Utah R. Evid. 404(b).

In this case, the assailant's identity was very much in issue given that his face was covered. Clearly, it helps link Defendant to the crime to show that a bottle containing a caustic substance was found in the victim's home and that an identical caustic substance was found in Defendant's car. Such evidence, while circumstantial, is relevant and admissible to prove identity.(1) See State v. Fedorowicz, 2002 UT 67,¶29, 52 P.3d 1194, cert. denied, 537 U.S. 1123, 123 S. Ct. 859 (2003).

Defendant's other principal claim is that his trial counsel was ineffective because he failed to object to prosecutorial misconduct and the admission of evidence regarding the caustic substance found in Defendant's car. 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." 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). Moreover, Defendant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689, 104 S. Ct. at 2065 (citation omitted). We have determined that there was no prosecutorial misconduct and that the evidence in dispute was admissible. Accordingly, counsel's refraining from objection readily qualifies as "sound trial strategy" because the objections would likely have been overruled, while at the same time calling more attention to evidence that was damaging to Defendant's case.

Given that we have determined there was no error regarding Defendant's individual claims, it follows that we need not consider Defendant's additional contentions, which are premised on there being some error, i.e., cumulative error, plain error, and prejudicial error.

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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William A. Thorne Jr., Judge

1. We note that Defendant only raised rule 404(b) of the Utah Rules of Evidence for the proposition that the caustic substance was inadmissible. Because Defendant did not raise rule 403 of the Utah Rules of Evidence, we have no occasion to address whether, even if admissible, "its probative value [was] substantially outweighed by the danger of unfair prejudice." Utah R. Evid. 403.