State of Utah v. Shipley

State v. Shipley

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Christopher Ray Shipley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010665-CA
 

F I L E D
(May 8, 2003)
 

2003 UT App 134

 

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Fifth District, Cedar City Department

The Honorable J. Philip Eves

Attorneys: J. Bryan Jackson, Cedar City, for Appellant

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

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Before Judges Jackson, Billings, and Davis.

DAVIS, Judge:

Defendant argues(1) that his trial counsel was ineffective because he failed to assert an entrapment defense. "[T]o succeed on an ineffective assistance of counsel claim, Defendant must show (1) trial counsel's performance was deficient by falling below an objective standard of reasonableness, and (2) trial counsel's deficient performance prejudiced Defendant by depriving him of a fair trial." State v. Holbert, 2002 UT App 426,¶53, 61 P.3d 291 (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984)). "[W]e need not address both components if a defendant fails to meet his or her burden on either one." State v. Germonto, 868 P.2d 50, 61 (Utah 1993). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." State v. Pursifell, 746 P.2d 270, 275 (Utah Ct. App. 1987) (quotations and citation omitted).

"To demonstrate prejudice, 'Defendant must show that there is a reasonable probability that, but for [trial] counsel's unprofessional errors, the result of the proceeding would have been different.'" Holbert, 2002 UT App 426 at ¶55 (alteration in original) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Thus, to demonstrate prejudice, Defendant must show that "a reasonable probability exists that the . . . verdict would have been more favorable to [him] had counsel asserted [an entrapment] defense." Salt Lake City v. Grotepas, 874 P.2d 136, 139 (Utah Ct. App. 1994) (ellipsis in original) (quotations and citation omitted), rev'd on other grounds, 906 P.2d 890 (Utah 1995). That Defendant was convicted is not sufficient to establish prejudice. See, e.g., State v. Cummins, 839 P.2d 848, 858 (Utah Ct. App. 1992); Pursifell, 746 P.2d at 275.

Entrapment occurs when a peace officer or a person directed by or acting in cooperation with the officer induces the commission of an offense in order to obtain evidence of the commission for prosecution by methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

Utah Code Ann. § 76-2-303(1) (1999). Utah appellate courts have determined entrapment occurs where the evidence establishes (1) "appeals based primarily on sympathy, pity, or close personal friendship, or offers of inordinate sums of money," and (2) "inducement based on improper police conduct." State v. Torres, 2000 UT 100,¶9, 16 P.3d 1242 (quotations and citation omitted). Entrapment is proved if "the evidence . . . raise[s] 'a reasonable doubt that [the defendant] freely and voluntarily committed the offense.'" Id. at ¶8 (third alteration in original) (quoting State v. Udell, 728 P.2d 131, 132 (Utah 1986)).

Defendant first argues entrapment was a "viable defense" because the officers used his "close personal relationship" with the informant. The informant testified that she and Defendant were friends. However, to establish entrapment, the evidence must show that the relationship was exploited by appeals to friendship, sympathy, or pity, and that such appeals induced commission of the offenses. See State v. Beddoes, 890 P.2d 1, 3-4 (Utah Ct. App. 1995); State v. Martinez, 848 P.2d 702, 707 (Utah Ct. App. 1993). In the present case, there is no evidence the relationship was exploited by appeals to friendship, sympathy, or pity that induced Defendant to exchange methamphetamine and a promise to wire money for precursor chemicals. See id.

Defendant next argues the officers' conduct in the present case "'falls below standards, to which common feelings respond, for the proper use of governmental power.'" State v. Byrns, 911 P.2d 981, 988 (Utah Ct. App. 1995) (quoting State v. Taylor, 599 P.2d 496, 500 (Utah 1979)). Specifically, Defendant claims that the informant, acting at the officers' direction, made "several attempts to entice [him] to . . . travel to . . . Utah to purchase" the precursor chemicals. Although the informant made several attempts to contact Defendant, when she reached him, he agreed to travel to Utah. After Defendant missed the initial meeting, the informant called Defendant and he told her he was on his way to complete the exchange. Thereafter, he met the informant. The informant's contacts do not involve unreasonable persistence. See State v. Wright, 744 P.2d 315, 319 (Utah Ct. App. 1987).

Moreover, the informant testified that when she told Defendant that she had procured iodine, Defendant informed her that he would rather purchase ephedrine pills, which the informant indicated she would obtain. The informant further testified that Defendant told her that he was going to use the chemicals to make methamphetamine. Following his arrest, the officers confiscated items used in the manufacture of methamphetamine from Defendant's vehicle. "The defense of entrapment is not available" in a case such as the present where a defendant is "merely afford[ed] . . . an opportunity to commit the offense."(2) Id. (citing Utah Code Ann. § 76-2-303(1)).

Finally, Defendant argues that he was entrapped into committing the enhancement to the distribution conviction because the "informant at the direction of the [officers]" chose to make the exchange in a parking lot adjacent to a shopping mall and within a thousand feet of a church. See Utah Code Ann. § 58-37-8(4) (2002). These location enhancements are "an extra element to [the] drug offense[] . . . that must be proved beyond a reasonable doubt." State v. Powasnik, 918 P.2d 146, 148 (Utah Ct. App. 1996); accord State v. South, 932 P.2d 622, 627 (Utah Ct. App. 1997).

In the present case, Agent Dunlap testified that he "presume[d]" the informant "stated there," because it was a "big parking lot," easy to find by someone who was not familiar with the area, and it was an open, public area and was therefore safer. "[W]here, on direct appeal, [a] defendant raises a claim that trial counsel was ineffective[,] . . . [the] defendant bears the burden of assuring the record is adequate." State v. Litherland, 2000 UT 76,¶16, 12 P.3d 92. We "presume" Defendant's ineffectiveness argument "is supported by all the relevant evidence of which [D]efendant is aware." Id. at ¶17. Based on the record before us, we cannot say that the officers or the informant acting at the officers' direction "induce[d] the commission of [the enhancement] in order to obtain evidence of the commission for prosecution by methods creating a substantial risk that the [enhancement] would be committed by one not otherwise ready to commit it." Utah Code Ann. § 76-2-303(1).

We are not convinced that "a reasonable probability exists that the . . . verdict would have been more favorable to [D]efendant had counsel asserted [an entrapment] defense." Grotepas, 874 P.2d at 139 (ellipsis in original) (quotations and citation omitted). Accordingly, we affirm Defendant's convictions.

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James Z. Davis, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Judith M. Billings,

Associate Presiding Judge

1. In a letter filed August 2, 2002, Defendant sought to stay this appeal and appointment of new appellate counsel. However, Defendant's previous requests for appointment of new appellate counsel, alleging a conflict of interest and failure to include issues in an Anders brief, were denied by a July 8, 2002 order. Accordingly, we proceed with this appeal.

2. Defendant argues that his counsel was ineffective by not asserting an entrapment defense because a jury "would not condone law enforcement selling precursor chemicals [for] the manufacturing of methamphetamine and then charging a person [with] distribution [of] the same." However, "Utah has never recognized a per se rule of entrapment. Rather, the Utah entrapment statute requires an objective review of each individual situation." State v. Beddoes, 890 P.2d 1, 3 (Utah Ct. App. 1995). Thus, that the informant exchanged precursor chemicals for the methamphetamine and a promise to wire money does not constitute entrapment per se, nor is it sufficient to raise a reasonable doubt.