State of Utah v. Munford

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Damon R. Munford,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010812-CA
 

F I L E D
(August 7, 2003)
 

2003 UT App 279

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Third District, Salt Lake Department

The Honorable David S. Young

Attorneys:
Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

"In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict." State v. Dunn, 850 P.2d 1201, 1205 (Utah 1993). "Appellant bears a heavy burden of establishing 'that the evidence is so inconclusive or insubstantial that reasonable minds must have entertained a reasonable doubt that [he] committed the crime.'" Julian v. State, 2002 UT 61,¶16, 52 P.3d 1169 (quoting State v. Kerekes, 622 P.2d 1161, 1168 (Utah 1980)). This court "will not 'substitute its judgment for that of the fact finder.'" Id. (quoting State v. Lamm, 606 P.2d 229, 231 (Utah 1980)). Further, this court "will not 'weigh conflicting evidence [or] the credibility of witnesses.'" Id. (quoting State v. Logan, 563 P.2d 811, 813-14 (Utah 1977)). Accordingly, we must assume the jury believed the testimony of the State's witnesses. See Dunn, 850 P.2d at 1213.

Munford's burden is heightened in this instance because he concedes that the issue of the sufficiency of the evidence was not preserved in the trial court. Therefore, he must demonstrate plain error. See State v. Holgate, 2000 UT 74,¶13, 10 P.3d 346. The requirements for plain error are that (1) error exists, (2) the error should have been obvious to the trial court, and (3) the error is harmful. See id.

Munford argues on appeal that the State proved only his presence at the homicide, not participation. We disagree. The evidence, viewed in the light most favorable to the verdict, demonstrates acts on Munford's part that could be construed as knowledge and participation, particularly in light of Kiriluk's roommate's testimony that Munford was present on at least one occasion where Kiriluk indicated he was going to kill Brown. The cumulative evidence was certainly not so insubstantial that reasonable minds must have entertained doubt.

Munford also argues that his trial counsel was ineffective in failing to move for a directed verdict. However, because we determine that the evidence was sufficient to support the jury verdict, it stands to reason that a motion for a directed verdict would have been unsuccessful and futile. "The decision to forgo futile acts does not amount to ineffective assistance." State v. Wallace, 2002 UT App 295,¶27, 55 P.3d 1147.

The conviction is affirmed.

Norman H. Jackson,

Presiding Judge

Russell W. Bench, Judge

Gregory K. Orme, Judge