500 P.3d 883
Utah Ct. App.2021Background
- In early November, Ella fled a Cedar City apartment bleeding and carrying her child after Larry Diviney assaulted her with a baseball bat, locked her in the apartment, threatened her, and prevented her from checking on the child. Police later found corroborating evidence; Diviney was arrested and charged with aggravated kidnapping, aggravated assault, and domestic violence in the presence of a child.
- Ella testified the child was asleep in a nearby bedroom with the door "cracked open"; Diviney conceded the child was asleep but argued the child could not have "see[n] or hear[n] an act of domestic violence."
- Diviney offered an alternative account claiming an intruder hit him and he accidentally struck Ella; he also alleged Ella’s motive to lie was to hide past drug use.
- At trial Diviney did not testify. Defense initially pursued a drug-motive theory and sought to introduce extrinsic records (old criminal and medical records) to impeach Ella on drug use; the court limited that evidence after a voir dire and defense follow-up elicited Ella’s admission she had used drugs in her lifetime.
- Diviney moved for a directed verdict on the child-present domestic-violence count; the court denied the motion. He was convicted by a jury on all counts and appealed, arguing (1) insufficiency of evidence for domestic violence in the presence of a child, (2) erroneous exclusion of impeachment evidence, and (3) ineffective assistance of counsel.
- The Court of Appeals affirmed: "in the presence of a child" under Utah Code § 76-5-109.1(1)(c)(ii) includes situations where a child may hear or see domestic violence (the statute uses permissive "may"), the record contained some evidence on that element, and any exclusion of the extrinsic drug evidence or counsel’s related strategy changes did not prejudice Diviney.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Diviney) | Held |
|---|---|---|---|
| Sufficiency — domestic violence in presence of child | Evidence showed child was present in apartment; jury could infer child "may" hear/see conduct | Child was asleep in crib with door cracked; therefore could not see or hear and statute not met | Affirmed — "may see or hear" is permissive; some evidence supported element; directed verdict properly denied |
| Exclusion of impeachment evidence (drug records) | Court properly managed impeachment; defense obtained needed clarification on cross | Trial court abused discretion by excluding extrinsic records impeaching Ella’s credibility on drug use | Affirmed — even assuming error, exclusion was not prejudicial given Ella’s admission and other impeachment points |
| Ineffective assistance of counsel | Counsel’s trial choices were reasonable; no prejudice shown | Counsel erred by failing to introduce/exhaust extrinsic impeachment and by changing strategy after ruling | Affirmed — claim fails for lack of prejudice; no reasonable probability of different outcome |
Key Cases Cited
- State v. Barner, 464 P.3d 190 (Utah Ct. App. 2020) (standard for reviewing directed‑verdict/sufficiency challenges)
- Holmes Dev., LLC v. Cook, 48 P.3d 895 (Utah 2002) (interpretation of "may" as permissive/possibility)
- State v. Scott, 462 P.3d 350 (Utah 2020) (prejudice standard for ineffective assistance claims)
- State v. Leech, 473 P.3d 218 (Utah Ct. App. 2020) (burden to show reasonable likelihood a preserved error altered verdict)
- Honie v. State, 342 P.3d 182 (Utah 2014) (ineffective assistance analysis and prejudice requirement)