Case Information
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T HE U TAH C OURT OF A PPEALS
L AYTON C ITY , Plaintiff and Appellee, v.
J ACQUE Z ACHARY C ARR , Defendant and Appellant.
Opinion No. 20120668-CA Filed September 25, 2014 Second District Court, Layton Department The Honorable Robert J. Dale No. 121600400 Scott L. Wiggins, Attorney for Appellant Marlesse D. Jones, Attorney for Appellee
J UDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in which J UDGE G REGORY K. O RME and S ENIOR J UDGE R USSELL W. B ENCH concurred.
CHRISTIANSEN, Judge: Jacque Zachary Carr appeals from his convictions for
domestic-violence assault and commission of domestic violence in the рresence of a child. Carr argues that Layton City did not introduce sufficient evidence to support his conviction for domestic-violence assault and that he received ineffective assistance of counsel. We affirm
1. The Honorable Russell W. Bench, Senior Judge, sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
BACKGROUND The victim in this case (A.P.) was sleeping at home when
Carr, who was living with her at the time, returned home from work some time after midnight. Carr found A.P.’s cell phone and [2]
looked through her text messages, ultimately discovering a conversation between her and another man. A.P. awoke to find Carr next to her bed “with his fist in [her] face” and her cell phone in his other hand, yelling at her about the text messages. A.P. was scared and, knowing that Carr’s “temper was up” and that her children werе also in the bedroom, she fled the bedroom into a hallway. As she ran down the hallway, she was pushed from behind. A.P. screamed for her mother, who was also staying in the home. Carr told A.P.’s mother, “I’m going to beat her ass, and I’m going to beat her ass if you’re here or not.” A.P.’s mother then called 911.
¶3 After police officers arrived, they separated Carr and A.P. Officer Anthony Yuen interviewed A.P. about the incident. Officer Yuen then spoke with Carr on the front porch of the house. Carr admitted to Officer Yuen that he had confronted A.P. about the text messages on her cell phone and that he had “held his clenched fist above [A.P.’s] head” during the ensuing argument. He explained that it “was not his intention to hit [A.P.] . . . , but he just had that clenched fist above her head.” Carr denied pushing A.P. in the hallway.
¶4 As a result of these events, Layton City charged Carr with
one count of domestic-violence assault and one count of
commission of domestic violence in the presence of a child.
Defendant pled not guilty, and his appointed counsel requested a
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.”
State v. Bluff
,
bench trial. At trial, A.P., her six-year-old daughter, and Officer Yuen testified on behalf of the City. Carr did not testify and presented no witnesses. The trial court found that Carr had threatened A.P. with his closed fist and that Carr had pushed A.P. The trial court therefore found Carr guilty of both charges, and Carr appeals.
ISSUES AND STANDARDS OF REVIEW
¶5 Carr first argues that the City presented insufficiеnt evidence to support his conviction for domestic-violence assault. We review a trial court’s verdict after a bench trial for clear error and will reverse only if the court’s judgment is “against the clear weight of the evidence” or if we otherwise reach “a definite and firm conviction that a mistake has been made.” State v. Walker , 743 P.2d 191, 193 (Utah 1987).
¶6 Carr next argues that he was deprived of his cоnstitutional right to the effective assistance of counsel. When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and “we must decide whether [the] defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Tennyson , 850 P.2d 461, 466 (Utah Ct. App. 1993).
ANALYSIS
I. Carr’s Conviction for Domestic-Violence Assault Is Suрported
by Sufficient Evidence. Carr first contends that the City failed to present sufficient
evidence to convict him of domestic-violence assault. An assault is,
among other things, “a threat, accompanied by a show of
immediate force or violence, to do bodily injury to another.” Utah
Code Ann. § 76-5-102(1)(b) (LexisNexis 2008). And domestic
violence includes the commission of an assault by one cоhabitant
against another.
Id.
§ 77-36-1(4)(b) (Supp. 2011). With respect to the
trial court’s determination that Carr had threatened A.P., Carr
challenges only the “trial court’s finding that the closed and
clenched fist constituted the threat,” and argues that this finding is
without evidentiary support. “On appeal from a bench trial, we
view the evidence in a light most favorable to the trial court’s
findings . . . .”
State v. Davie
,
accompanied by showing immediate force of violence to do bodily
injury to another,” explaining that “[t]he threat was there at the
time the closed and clenched fist was there.” A threat is “the
expression of an intention to inflict injury on another” through
conduct or words.
State v. Hartmann
,
¶9 With respect to Carr’s first contention, we note initially our
disagreement with his characterization of A.P.’s testimony at trial.
A.P. did not testify that there was “no motion . . . and no
movements toward her ever.” Rather, she testified that she could
not remember whether Carr moved toward her or extended his fist
toward her. However, even if we considered A.P.’s testimony as
conclusively establishing that Carr did not extend his fist toward
her, Cаrr has cited no authority to suggest that it was necessary for
Carr to move as if to strike A.P. for his clenched fist to be
considered a threat, and we are not persuaded that such a
requirement exists.
See id.
(“Threats may be communicated by
action or conduct
as well as by words
.” (emphasis added)). Indeed,
this court has previously affirmed an assault conviction based on
a threat accompanied by a show of force where the defendant was
“retreating from the situation,” “never made any movement
toward [the victim],” and never pointed the knife he was holding
at the victim or in her direction.
Salt Lake City v. Maloch
, 2013 UT
App 249, ¶ 4, 314 P.3d 1049 (internal quotation marks omitted)
(concluding that “the surrounding circumstances support[ed] the
trial court’s finding that [the defendant] intended to threaten [the
victim] with ‘bodily injury’ ‘by a show of immediate force or
violence’” (quoting Utah Code Ann. § 76-5-102(1)(b) (LexisNexis
2012))). Accordingly, A.P.’s testimоny does not support Carr’s
claim of error in the trial court’s finding that Carr threatened A.P.
¶10 The balance of Carr’s challenge to the trial court’s factual
finding merely identifies the evidence that Carr asserts is
inconsistent with that finding. However, contradictory evidence is
generally not sufficient to overturn a verdict, because the factfinder
determines which evidence to believe whеn conflicting evidence is
presented.
See State v. Mangum
,
II. Carr Has Not Shown That His Counsel Was Ineffective.
¶12 Carr next argues that his trial counsel rendered
constitutionally ineffective assistance. To succeed on a claim of
ineffective assistanсe of counsel, a defendant must show both “that
counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.”
Strickland v. Washington
, 466
U.S. 668, 687 (1984). To establish that counsel’s performance was
deficient, a defendant “must show that counsel’s representation fell
below an objective standard of reasonableness.”
Id.
at 688. This
showing requires the defendant to overcome the “strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”
Id.
at 689. To establish the
prejudice element of an ineffective assistance of counsel claim, the
defendant “must show that a reasonable probability exists that, but
for counsel’s error, the result would have been different.”
State v.
Millard
,
¶13 Carr argues that his triаl counsel was ineffective in three respects: failing to investigate and present as evidence A.P.’s victim-impact statement, failing to file a motion to suppress Carr’s statements to Officer Yuen, and failing to adequately explain the difference between a bench trial and a jury trial. Carr has also moved this court for a remand to the trial court to enter factual findings in supрort of his claims of ineffective assistance of counsel. 3. Carr also argues that the trial court’s finding that Carr pushed A.P. is not supported by sufficient evidence. However, Carr was convicted of only one count of domestic-violence assault, and the evidence that Carr made a threat accompanied by a show of force adequately supports that conviction. It is therefore unnecessary for us to determine whether the evidence also supports a finding that Carr actually pushed A.P.
Remand under rule 23B is available only if the motion for remand is supported by affidavits setting forth testimony or other evidence the defendant seeks to have entered in the record to support a claim of ineffective assistance. Utah R. App. P. 23B(a)–(b); State v. Gunter , 2013 UT App 140, ¶ 16, 304 P.3d 866. The affidavits supporting a rule 23B motion must allege facts that, if true, would show that counsel’s performance was deficient, and “must also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance.” Gunter , 2013 UT App 140, ¶ 16 (citation and internal quotation marks omitted). We address Carr’s request for a rule 23B remаnd on each issue together with our analysis of the merits of his claim of ineffective assistance.
A. Victim-Impact Statement
¶14 Carr first contends that his trial counsel was ineffective for failing to adequately investigate and present as evidence the victim-impact statement that A.P. filed with the court after Carr was charged. Carr argues that A.P.’s statement, “I do not feel I was physically assaulted by Jacque Carr the night alleged,” could have been used by trial counsel to question the credibility of A.P.’s testimony at trial, and would have itself “significantly alter[ed] the evidentiary picture” with respect to the trial court’s finding that Carr had threatened A.P.. Accordingly, Carr claims that trial counsel’s failure either to obtain or to present this statement at trial was deficient performance.
¶15 However, even if we assume that the victim-impact statement was available to Carr’s trial counsel, and further assume [4] that counsel lacked a reasonable strategic basis for not presenting 4. As the City points out, a victim-impact statement is generally available only to certain entities enumerated by statute. See Utah Code Ann. § 77-38-3(11)(b) (LexisNexis Supp. 2011). While a prosecuting agency is listed as an entity to which a victim-imрact statement is available, defense counsel is not. Id.
the statement as evidence, we are not convinced that Carr was
prejudiced by his trial counsel’s performance. As discussed above,
the trial court determined that Carr had assaulted A.P. by means
of a threat accompanied by a show of force.
Supra
¶ 8. This
determination does not rest in any way on proof of a physical
assault by Carr. And the victim-impact statement does not
contradict any of A.P.’s testimony supporting the trial court’s
determination. We thus do not see how A.P.’s statement that she
did not “feel [she] was physically assaulted by [Carr]” could have
impeached A.P.’s testimony or otherwise altered the evidentiary
picture before the trial court on this point. Carr offers no affidavit
testimony or evidence in support of his rule 23B motion that would
affect this determination, and remand on this issue is therefore
unnecessary. Ultimately, we are not persuaded that there is a
“reasonable probability” that the trial court would have found Carr
not guilty of assault had counsel introduced the victim-impact
statement at trial.
Millard
,
B. Motion to Suppress
¶16 Carr next contends that his trial counsel was ineffective for failing to file a motion to suppress the statements Carr made to Officer Yuen. Carr asserts that these statements should have been suppressed because he did not receive a Miranda warning before Officer Yuen interviewed him. The City does not dispute that Officer Yuen did not give Carr such a warning but argues that no Miranda warning was required because Carr was not in custody at the time Officer Yuen interviewed him.
¶17 Genеrally, “the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant” unless certain procedural
safeguards were employed, including informing defendant of his
right to remain silent or to have counsel present during
questioning.
Miranda v. Arizona
,
guns or handcuffs were рresent at the time of the interview; and the interview as described by Officer Yuen was brief and casual, rather than a formal interrogation.
¶19 Carr’s affidavit in support of his rule 23B motion includes no
additional averments that could support a conclusion that he was
in custody at the time of questioning. Accordingly, we conclude
that remand is not necessary to resolve this claim on appeal.
Because Carr has not demonstrated that he was in custody at the
time of the interview with Officer Yuen, any motion by trial
counsel to suppress his statements would have been futile. “It is
well settled that counsel’s performance at trial is not deficient if
counsel refrains from making futile objections, motions, or
requests.”
State v. Perez-Avila
,
¶20 Last, Carr argues that trial counsel was ineffective for
recommending that Carr waive his right to a jury trial without
“explain[ing] the difference between a jury trial or bench trial so
that [Carr] could make an informed decision in choosing between
the two.” Carr asserts that remand is necessary to determine if he
validly waived his right to a jury trial. However, Carr has raised
this challenge as a claim of ineffective assistance of counsel, and we
therefore do not directly consider whether he validly waived this
right. Rather, we decide only whether trial counsel rendered
deficient performance and whether Carr was prejudiced by that
performance.
See Strickland v. Washington
,
CONCLUSION Sufficient evidence supports the trial court’s finding that
Carr threatened A.P. with his clenched fist. Carr has also failed to show that his trial counsel performed deficiently in not moving to suppress his statements to police, or that he was prejudiced by counsel’s performance in any other respect. We therefore deny Carr’s request for a remand under rule 23B, and we affirm Carr’s convictions.