State v. Baer, 2019 UT App 15

On a summer night, 18-year-old Jacob Baer and three teens entered a community pool after hours; a teenage lifeguard used his key to let them in.
After the swim, Baer took the pool’s small cash lockbox and later told the lifeguard, “Tell the cops I wasn’t there.”
With a co-defendant’s help, authorities recovered the deposit bag at a nearby reservoir; Baer had told a jailhouse informant he dumped it there.
Baer was convicted of burglary (third-degree felony) and theft of services (class B misdemeanor); he does not challenge other misdemeanor convictions.
On appeal Baer claimed ineffective assistance of trial counsel for (1) failing to move for a directed verdict (insufficient evidence) and (2) failing to object to allegedly improper jury instructions on mental state.
The Utah Court of Appeals affirmed, holding counsel’s omissions were not constitutionally deficient or prejudicial because motions would have been futile and Baer failed to brief the instruction claim adequately.

Issue	Baer’s Argument	State’s Argument	Held
1. Whether trial counsel was ineffective for failing to move for a directed verdict on burglary (entry unlawfully) and theft of services (use of pool without paying)	Counsel should have sought dismissal because State failed to show Baer knew entry/use was unauthorized	Evidence (locked pool, after-hours entry, lifeguard unauthorized at night, Baer parked to avoid detection, recovery of stolen property) provided some evidence of unlawful entry and knowledge, so a directed verdict would have been futile	Affirmed: counsel not ineffective; motion would have failed because reasonable inferences support guilt
2. Whether trial counsel was ineffective for not objecting to jury instructions about the applicable mental states	Instructions misstated or were inadequate as to mental state; counsel should have objected	Baer failed to identify specific offending instructions or develop argument showing deficient performance or prejudice; issue inadequately briefed	Affirmed: Baer failed burden to show deficient performance or prejudice from instructions

Strickland v. Washington, 466 U.S. 668 (ineffective assistance requires deficient performance and prejudice)
State v. Burdick, 320 P.3d 55 (Utah Ct. App. 2014) (counsel not deficient for declining futile objections/motions)
State v. Cristobal, 322 P.3d 1170 (Utah Ct. App. 2014) (definition and use of reasonable inferences)
Salt Lake City v. Carrera, 358 P.3d 1067 (Utah 2015) (circumstantial evidence and intent)
State v. Johnson, 365 P.3d 730 (Utah Ct. App. 2015) (directed verdict/arrest judgment futility)
State v. Davie, 264 P.3d 770 (Utah Ct. App. 2011) (appellate briefing standards; inadequately briefed issues fail)