State v. Marshall

State v. Marshall

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Dustin Marshall,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030868-CA
 

F I L E D
(June 16, 2005)
 

2005 UT App 269

 

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Eighth District, Vernal Department, 031800019

The Honorable A. Lynn Payne

Attorneys: Walter F. Bugden and Tara L. Isaacson, Salt Lake City, for Appellant

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Jackson.

BILLINGS, Presiding Judge:

    Dustin Marshall appeals his conviction for equity skimming, a third degree felony, in violation of Utah Code section 76-6-522. See Utah Code Ann. § 76-6-522 (2002). Marshall argues that he was convicted of a different offense than the one on which he was bound over and that he did not receive a preliminary hearing for the charge he was subsequently convicted of, rendering the district court without subject matter jurisdiction. Marshall also argues his conviction should be reversed due to prosecutorial misconduct and ineffective assistance of counsel.

    Utah has long recognized that a preliminary hearing is essential to a court's jurisdiction over a felony. See State v. Jensen, 34 Utah 166, 96 P. 1085, 1087 (1908) (holding defendant could not be tried for offense distinct from that upon which he had preliminary hearing). Moreover, the law is clear that the district court has jurisdiction only to try a defendant on the specific charge that is bound over. See Utah R. Crim. P. 7(h)(1) to (k)(1).

        The district court properly exercised jurisdiction because Marshall received a preliminary hearing consistent with the charge bound over. At the preliminary hearing, the information and bind over order set forth a series of dates during which the equity skimming occurred as "on or before July 19, 2002 and October 15, 2002." The evidence presented by the parties at both the preliminary hearing and at trial focused on events occurring on July 19, 23, and 30, 2002.(1) At no time during trial was it suggested that the jury need only consider evidence of the July 19 transaction, or that the requisite elements of equity skimming could be found in the events of July 19, and there is no evidence indicating that the jury convicted Marshall based solely on the July 19 transaction.

    Additionally, the jury's consideration of events beyond, but near July 19, is appropriate in this case because the jury instruction permits consideration of conduct "on or about July 19, 2002." (Emphasis added.) The charged offense began on July 19 and continued with a series of transactions culminating on July 30, a span of eleven days. Thus, the preliminary hearing, the information, the bind over order, the evidence at trial including both parties' arguments, the jury instruction, and the ultimate conviction are all based upon the same series of transactions, which result in the appropriate conviction of Marshall for equity skimming. Therefore, Marshall has failed to establish that he was deprived of a preliminary hearing and that the trial court erred in exercising jurisdiction over his case.(2)

    Moreover, Marshall's jurisdiction argument fails because he invited error when he did not challenge the jury instruction until his post conviction motion. In denying the motion, the trial court noted that prior to instructing the jury, both parties actively represented to the court in chambers that the instructions were acceptable. The Utah Supreme Court has stated that "[w]hile a party who fails to object to or give an instruction may have an instruction assigned as error under the manifest injustice exception, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." State v. Geukgeuzian, 2004 UT 16,¶9, 86 P.3d 742 (quotations and citations omitted). Consequently, "a jury instruction may not be assigned as error even if such instruction constitutes manifest injustice 'if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction.'" Id. (quoting State v. Hamilton, 2003 UT 22,¶54, 70 P.3d 111). Accordingly, because Marshall did not object, rather he actively approved of the jury instructions given by the trial court, Marshall invited error and may not obtain appellate review of the instruction. See Hamilton, 2003 UT 22 at ¶55.

    Marshall also argues that the prosecutor demonstrated misconduct in his closing argument by unfairly summarizing the testimony of three witnesses. Utah courts have held that both parties are permitted "considerable latitude in their closing arguments . . . to fully discuss from their perspectives the evidence and all inferences and deductions it supports." State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). This court must reverse if we conclude "that absent the improper argument, there was a reasonable likelihood of an outcome more favorable to the defendant." Id. The prosecutor's closing argument in which he summarized the testimony of three witnesses was an accurate expression of the evidence and reasonable inferences from the State's point of view. Thus, Marshall's prosecutorial misconduct claim fails.

    Finally, Marshall has failed to prove that his counsel provided ineffective assistance.(3) Marshall must demonstrate that trial counsel's performance fell below objectively reasonable standards of representation and that this objectively deficient performance was prejudicial. See, e.g., Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994). Because this court "give[s] trial counsel wide latitude in making tactical decisions," we "will not question such decisions unless there is no reasonable basis supporting them." State v. Crosby, 927 P.2d 638, 644 (Utah 1996) (emphasis added). Moreover, Marshall must show that, but for counsel's allegedly deficient performance, there was a reasonable likelihood of a more favorable outcome at trial for defendant. See, e.g., Parsons, 871 P.2d at 522.

    Marshall has failed to show counsel's performance was deficient in each alleged instance of ineffective assistance. Even if we were to conclude that some instances of counsel's performance were deficient, Marshall fails to show that the deficient performance prejudiced the outcome of the case.

    Accordingly, the trial court did not err in convicting Marshall of equity skimming, and we therefore affirm.

______________________________

Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. The evidence presented at trial showed that on July 19, 2002, Chade Abplanalp visited Mountain States Motors (MSM) and spoke with Marshall about purchasing a Chevrolet S-10 truck. They discussed prices for the truck and the possible trade-in of Abplanalp's Chevrolet Monte Carlo. Abplanalp told Marshall that he owed $3400 to $3600 on the Monte Carlo. Marshall said there would be "no problem" with the amount owed on the Monte Carlo, and he produced a sales contract. The contract contained a line stating "balance owed on trade in" and Marshall wrote "0" on that line. The evidence also revealed that on July 23, 2002, Abplanalp delivered a check for $10,000 to Marshall, took possession of the truck, and turned the Monte Carlo over to MSM. Marshall did not verify that Abplanalp had paid the balance due on the Monte Carlo before taking possession. Finally, seven days later, on July 30, 2002, Marshall sold the Monte Carlo to the Fausetts without verifying that MSM had title to the Monte Carlo nor that the loan on the Monte Carlo had been paid off.

2. Because we have determined that the preliminary hearing was sufficient, Marshall's contention that his attorney rendered ineffective assistance by failing to demand an additional preliminary hearing involving evidence of equity skimming occurring only on July 19, 2002, fails.

3. Marshall challenges his trial counsel's effectiveness on several bases, including that counsel was ineffective for: failing to demand an additional preliminary hearing involving evidence of equity skimming occurring only on July 19, 2002; seeking joinder of the misdemeanor charges with the felony charge; introducing at trial the authorization payoff form without establishing whether the form was in the victim's file; failing to effectively cross-examine Abplanalp about his inconsistent testimony; failing to exclude testimony regarding an issue with the odometer; failing to seek a jury instruction on Abplanalp's statutory responsibility to produce title to the Monte Carlo; introducing testimony at trial that MSM normally fills out forms when customers are to pay off the loan balance; introducing testimony at trial from MSM's manager and Abplanalp's mother that was helpful to the State's case; and failing to object to testimony that dealerships normally pay off balances on trade-in cars.