State v. JimenezState v. Jimenez
adjustment after the Division made reasonable efforts to return the children to her, and that she was unable or unwilling to substantially correct the conduct or conditions which led to the children‘s placement outside of the home. A juvenile court may terminate the parental rights of a parent if the court finds a failure of parental adjustment. See
¶ 4 The record supports the juvenile court‘s determination that Mother experienced a failure of parental adjustment and that she was unable to substantially correct the conduct or conditions which led to her children‘s placement outside of the home. The record demonstrates that Mother was unable to retain and internalize the skills that she was taught in therapy and, although Mother loves her children, she remained unable to provide the safety and protection that the children require. Mother fails to demonstrate that the juvenile court erred by determining that Mother experienced a failure of parental adjustment or that she was unable to remedy the circumstances that caused the children to be in an out-of-home placement as set forth in
¶ 5 Mother next asserts that there was insufficient evidence to support the juvenile court‘s determination that it was in the children‘s best interests to terminate Mother‘s parental rights. If there are sufficient grounds to terminate parental rights, in order to actually do so, “the court must [next] find that the best interests and welfare of the child are served by terminating the parents’ parental rights.” In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118; see also
¶ 6 The juvenile court determined that Mother experienced a failure of parental adjustment and that she was unable to substantially correct the conduct or conditions that led to placement of her children outside the home. Thus, there were sufficient grounds to terminate Mother‘s parental rights. See
¶ 7 Accordingly, the juvenile court‘s order is affirmed.
John E. Swallow and Marian Decker, Attorneys for Appellee.
Before Judges ORME, DAVIS, and McHUGH.
PER CURIAM:
¶ 1 Nelson Jimenez appeals his convictions of various first degree felony charges involving sexual abuse of a child. We affirm.
¶ 2 Jimenez asserts that he received ineffective assistance of counsel at trial because trial counsel failed to obtain forensic examinations of the victims, failed to move to sever the charges based on the individual victims, and failed to object to prior bad acts testimony from a witness. To establish a claim of ineffective assistance of counsel, a defendant must show that “counsel‘s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
¶ 3 Jimenez first argues that trial counsel was deficient for failing to obtain forensic examinations of the victims to produce exculpatory evidence. Jimenez cannot establish that counsel performed ineffectively in this regard because he has not shown that such examinations would produce any relevant evidence given the time the abuse occurred. Relevant evidence is that which “has any tendency to make a fact more or less probable than it would be without the evi-dence.”
¶ 4 Testimony established that the abuse of the victims had ended at least two years before the disclosure of the abuse to authorities. The abuse of the eldest victim ended in roughly 1996. The abuse of the other two victims ended sometime in 2007. The victims reported the abuse in November 2009. Jimenez has not shown that there is any reasonable possibility that a physical examination of the victims years after the abuse ended would produce any relevant evidence. Accordingly, he cannot show that counsel was ineffective in not pursuing such examinations.
¶ 5 Jimenez next argues that counsel should have moved to sever the counts and obtain separate trials for each victim. Multiple charges may be joined in the same information if the charges are “based on the same conduct or are otherwise connected in their commission,” or if they are “alleged to have been part of a common scheme or plan.”
¶ 6 Although Jimenez argues that the charges should not have been joined because the crimes were distinct in the details, we are not persuaded. It appears that the charges were properly joined as “part of a common scheme or plan.”
¶ 8 However, even when charges are properly joined they may be severed if trying them together would prejudice the defendant. See
¶ 9 Jimenez does not address whether the testimony of other victims would have been admissible at trial if the charges were severed. Accordingly, he has not shown that a motion to sever “should have been granted.” Hallett, 796 P.2d at 706. As a result, he cannot show that trial counsel was ineffective for failing to move to sever the charges for separate victims.
¶ 10 Finally, Jimenez asserts that trial counsel was ineffective for failing to object to testimony from his ex-wife regarding the reason for their divorce in 2000. He contends that the testimony was inadmissible as prior bad acts evidence under
¶ 11 To show that counsel‘s deficient performance prejudiced his defense, Jimenez must demonstrate that, absent counsel‘s error, there is a reasonable probability that the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the [verdict].” Id. Ex-wife unexpectedly testified in a cursory manner that one of the reasons for their divorce was Jimenez‘s physical abuse of her. No further explanation or detail was presented. Given the direct testimony of the three victims regarding the duration, frequency, and particulars of the sexual abuse by Jimenez, there is no reasonable probability of a different outcome without Ex-wife‘s testimony. The other evidence against Jimenez was overwhelming.
¶ 12 In sum, Jimenez fails to establish a claim of ineffective assistance of his trial counsel.1 Affirmed.