STATE OF UTAH, Appellee, v. PHILLIP MASON KING, Appellant.
No. 20210710-CA
THE UTAH COURT OF APPEALS
October 24, 2024
2024 UT App 151
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.
Second District Court, Ogden Department; The Honorable Michael D. DiReda; No. 191900996; Freyja Johnson and Hannah K. Leavitt-Howell, Attorneys for Appellant; Sean D. Reyes and David A. Simpson, Attorneys for Appellee
HARRIS, Judge:
¶1 A jury convicted Phillip Mason King of aggravated assault and commission of domestic violence in the presence of a child. King now appeals those convictions, asserting that the trial court abused its discretion by allowing certain testimony and that his attorney rendered ineffective assistance. We reject King’s arguments and affirm his convictions.
¶2 One morning, a woman—Anna2—turned up at a local police station. She was obviously injured: she had “black and swollen eyes,” red marks on both sides of her throat, two bite marks on her shoulders, a cut on her left elbow, and bruises and scrapes in various places on her body. She explained to the investigating officer (Officer) that, on the previous evening, there had been an argument between her and her husband, Phillip King. At some point, the argument turned physical and, according to Anna’s version of events, King had “shoved” and “pushed” her into the bathroom, where he began “hitting” and “smashing” her head into the “cabinet above the sink” to the point where Anna thought she was “going to die.” In the рrocess, King also had his hands on Anna’s throat and was strangling her. As this was going on, Anna could hear her young son “screaming and crying” in the background. Anna recalled that, at one point, she momentarily blacked out.
¶3 Anna was eventually able to escape from the bathroom and go to her son’s room, where she grabbed her phone and attempted to leave. But King intervened. He came into the room and “smashed [Anna’s] phone” and “put it in his pocket.” After that, King proceeded to again hit Anna about the head and to choke her by the throat. In the process, King bit Anna, “pinned [her] on the floor,” and strangled her until she blаcked out again. Anna recalled that, during the attack, King was calling her insulting names, as well as telling her that she “need[ed] to see God and
¶4 After hearing Anna’s account, Officer drove to the couple’s house to speak with King and to check on the child. King admitted to Officer that he and Anna had “been in an argument” and that he had grabbed Anna around the throat in a purposeful attempt “to get her to pass out.” But King told Officer that his аctions were taken in self-defense, because Anna had started the altercation by hitting him “on the right shoulder with a closed fist.” As King put it, he had been trying “to grab [Anna] by the throat and push her into the bathroom” and had been “trying to get her to pass out to stop from being assaulted.” King “wasn’t sure” whether Anna actually passed out, but he “didn’t believe so.” King also admitted to biting Anna, although he gave no reason why he had done so, and he told Officer that he “wasn’t sure how she would have obtained the black eyes” and bruises. Officer did not observe any apparent injuries on King’s body.
¶5 At that point, after taking statements from Anna and King and assessing their respeсtive injuries, Officer essentially ended his investigation. In particular, he did not check the bathroom or bedroom to see if there was any damage consistent with the particulars of their accounts. Nor did he check to see if Anna’s phone was damaged, ask the neighbors if they heard yelling and screaming, or do more than just ask King if the house’s indoor security cameras were functioning (King said they weren’t).
¶6 The next day, the State charged King with one count of aggravated assault and one count of commission of domestic violence in the presence of a child, and a two-day jury trial was eventually held. The only witnesses to testify were Anna and Officer; Anna offered her version of events, as described above, and Officer testified about—among other things—his interview with King.
¶8 At another point during Anna’s testimony, the State asked her how she got to the police station the next morning, and she gave a lengthy answer:
That morning, I texted my friend at work to tell her I was not going to come in, so she’s not wondering where I am, or that—because we also work together, so she knows that I won’t be around. I texted my supervisor and my manager, telling them I’ve been through domestic violence, so I will not get to work this week. So they don’t think I’m ignoring or just calling in (unintelligible). I emailed my lawyer, and the picture I sent—I took a picture, and I sent him, telling him to help me out. And I wondered where to go and what to do. I did not want to go to the police station.
Counsel did not lodge any objection to either the State’s question or to Anna’s answer.
¶10 Instead, Counsel attempted to use some of this testimony to King’s advantage during his cross-examination of Officer. Counsel asked Officer various questions designed to test whether he had done any further investigation regarding the consistency of Anna’s various accounts of the incident or regarding the consistency of her statements with her injuries. In response to Counsel’s questions, Officer acknowledged that he had not checked the rooms for damage, that he had not interviewed neighbors to see if they heard yelling, and that he had not inspected Anna’s phone to see if it was broken. Officer also acknowledged that he had not investigated the particulars of certain “prior domestic violence cases where [Anna] had been arrested” as the aggressor. And when Counsel asked whether Officer had “just [taken Anna’s] story, went over to interview [King], and then said, she has bruises, he doesn’t,” Officer answered, “Correct.” Finally, Officer acknowledged that, after he arrested King, he commented to King that Anna’s injuries were also “consistent with [King’s] story.”
¶11 After testimony ended, the court instructed the jury. One instruction stated that, for the jury to convict King of aggravated assault, it must find, among other things, either that (1) “King’s conduct included the use of any act that interfered with the breathing or the circulation of blood of [Anna] . . . that was likely to produce a loss of consciousness,” or (2) King used “other means
¶12 At the conclusion of the trial, the jury found King guilty of both charges.
ISSUES AND STANDARDS OF REVIEW
¶13 King now appeals his convictions, and he asks us to consider two issues. First, he challenges the trial court’s decision to admit, over his objection, Anna’s testimony about the effects of her injuries, and specifically that the injuries caused her to be put on a light-duty work assignment. “We review a court’s decision to admit evidence for abuse of discretion.” State v. Lovell, 2024 UT 25, ¶ 40.
¶14 Second, he mаkes various assertions that Counsel rendered constitutionally ineffective assistance. “When an ineffective assistance claim is raised for the first time on appeal, it presents a question of law.” State v. Rivera, 2022 UT App 44, ¶ 21, 509 P.3d 257. With regard to some of his ineffective assistance claims, King seeks a remand, pursuant to
I. Evidentiary Ruling
¶15 King first assеrts that the trial court abused its discretion by overruling his objection to Anna’s testimony about the effects of her injuries, including specifically her testimony that the injuries caused her to be placed on a light-duty work assignment. King’s objection to this testimony was twofold: first, he asserted that the testimony was not relevant, and second, he asserted that it constituted impermissible expert testimony. We address these issues, in turn, and conclude that the trial court did not abuse its discretion by overruling King’s objection.
¶16 According to our rules, evidence is relevant, and therefore presumptively admissible, if (1) “it has any tendency to make a fact more or lеss probable than it would be without the evidence,” and (2) “the fact is of consequence in determining the action.”
¶17 To prove that King committed the crime of aggravated assault, the State needed to prove both an assaultive act and a qualifying aggravating circumstance. See
¶18 Given the statutory definition of the crime with which King was charged, the extent of Anna’s injuries and the extent to which those injuries created “protracted loss or impairment” of her bodily functions was directly relevant information. King protests that, during closing argument, the State focused largely on the first avenue for demonstrating the aggravating circumstance—the strangulation—and not so much on the second avenue—serious bodily injury. But the jury was instructed on both avenues. Moreover, at the time King lodged his objection to Anna’s testimony, it was not yet clear that the State would emphasize the strangulation avenue. Under these circumstances, Anna’s testimony about the extent of her injuries and the manner in which those injuries had affected her ability to function was directly relevant, and it easily surmounts the “very low bar”
¶19 The other focus of King’s objection was his assertion that Anna’s testimony about her injuries and her ability to function at work was impermissible expert testimony. But here, Anna’s description of her own injuries was permissible lay testimony. Lay witnesses are permitted to offer opinions that are (1) “rationally based on the witness’s perception”; (2) “helpful to clearly understanding the witness’s testimony or to determining a fact in issue”; and (3) “not based on scientific, technical, or other specialized knowledge.”
¶20 The first two criteria are easily met here. First, Anna’s testimony was based on her own perception of her injuries and their effects. She was testifying about things she personally observed and experienced. Second, the testimony was helpful (as noted above) to determining whether Anna had sustained a serious bodily injury.
¶21 The third criterion—whether Anna’s testimony was “based on scientific, technical, or other specialized knowledge”—perhaps presents a closer question, because Anna’s testimony included her opinion that the injuries she sustained at King’s hands werе what caused her to be placed on a light-duty assignment at work. King asserts that this testimony constitutes a “medical causation” opinion that may only be offered by a medical expert. But even here, we see no abuse of discretion in the trial court’s decision to allow Anna to offer her view that these injuries resulted in the light-duty assignment. After all, Anna had been able to perform heavy-duty assignments before these injuries, she was not able to perform them after the injuries, and there had apparently been no other intervening cause that might explain the change. Cf. Sheppard v. Geneva Rock, 2021 UT 31, ¶ 39, 493 P.3d 632 (stating that where “the treatment continues virtually
¶22 Accordingly, we discern no abuse of the trial court’s discretion in its decision to overrule King’s objection to Anna’s testimony about the extent of her injuries.
II. Ineffective Assistance of Counsel
¶23 Next, King asserts that Counsel rendered constitutionally ineffective assistance in several particulars. To succeed on a claim of ineffective assistance of counsel, King must make a two-part showing: (1) that Counsel’s performance was deficient in that it “fell below an objective standard of reasonableness,” and (2) that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for [C]ounsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Failure to prove either component is fatal; “[u]nless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687. Thus, “if either is lacking, the claim fails and this court need not address the other.” State v. Kufrin, 2024 UT App 86, ¶ 55, 551 P.3d 416 (quotation simplified).
¶25 Some of King’s ineffective assistance arguments rest on evidence already in the record, while others depend on evidence not yet in the record and for which King asks us to remand the matter to the trial court. We assess each of King’s arguments, in turn, and find each of them unpersuasive, because—for the reasons discussed below—King has not demonstrated that Counsel’s performance was deficient in any way.
A. Claims Based on Record Evidence
¶26 King makes two ineffective assistance claims that are grounded in evidence already in the record. First, he asserts that Counsel should have objected to statements Officer made about the “consistency” of Anna’s trial testimony. And second, he asserts that Counsel should have raised heаrsay-based objections to two pieces of testimony, one offered by Anna and one offered by Officer. We conclude, however, that Counsel did not perform deficiently by electing not to lodge the objections that King now asserts Counsel should have made.
¶27 During trial, Officer testified that Anna’s trial testimony was “fairly consistent with” what Anna had earlier “relayed” to him at the police station. In addition, he offered his view that Anna’s injuries, as he observed them, also appeared to be “consistent with” what Anna had told him at the police station.
¶28 Even if we assume, for purposes of the discussion, that Counsel could have successfully objected to these statements, it does not follow that Counsel rendered ineffective assistance by electing not to do so. See State v. Hart, 2020 UT App 25, ¶ 29, 460 P.3d 604 (“[J]ust because counsel can make an objection does not mean counsel must make an objection to avoid rendering ineffective assistance. Legal objections are an inherently strategic business.”). As already noted, if Counsel’s actions are explained by a reasonable strategy, then Counsel has not performed deficiently. See Ray, 2020 UT 12, ¶ 34. We agree with the State’s assertion that the record here persuasively indicates that Counsel made a reasonable strategic decision to forgo any objection to this testimony and instead attempt to use it to King’s advantage.
¶29 By allowing Officer’s “consistency” statements to come in, and then attempting to point out that those statements were actually incorrect and unsupported by certain other evidence in the record, Counsel was attempting to argue—at the same time and using the same lines of questioning—both (a) that Officer’s investigation was deficient and (b) that Officer’s credibility was suspect. On cross-examination, Counsel asked Officer a number of questions designed to engender doubt about whether Offiсer had been sufficiently thorough in attempting to determine whether Anna’s statements and injuries were consistent. In response to questioning, Officer acknowledged that he had not checked various household items for damage, that he had not interviewed neighbors to see if they heard yelling, and that he had not inspected Anna’s phone to see if it was broken. Officer also
¶30 It is perhaps true that not every attorney would have chosen this strategy. See Strickland, 466 U.S. at 689 (stating that “[t]here are countless ways to provide effective assistance” and that “[e]ven the best criminal defense attorneys would not defend a particular client in the same way”). But Counsel did, and by doing so he was able to raise an inference that Officer short-circuited his investigation after interviewing the two principal witnesses, and he was alsо able to gain Officer’s grudging concession that Anna’s injuries could also have been consistent with King’s version of events. In our view, this strategy was not unreasonable and is therefore not indicative of constitutionally deficient performance.
2. Hearsay Statements
¶31 Next, King asserts that Counsel rendered ineffective assistance by electing not to object to two “hearsay” statements, one offered by Anna and one offered by Officer.
¶32 While Anna was on the witness stand, the State asked her how she got to the police station the next morning, and she gave a lengthy and largely non-responsive answer, which included her statement that she had texted her supervisor that she wouldn’t be at work “this week” because she had “been through domestic violence.” Counsel lodged no objection to the State’s question, perhaps because that question was entirely innocuous and non-objectionable and asked simply for information about how Anna
¶33 Instead, King asserts that Counsel should have objected to—or moved to strike—Anna’s statement after it came in. But deciding whether to move to strike a statement after it has already come in is also an inherently strategic business. Cf. Hart, 2020 UT App 25, ¶ 29. There isn’t much point in moving to strike a statement unless the motion also asks for a curative instruction telling the jury to disregard the statement. And such instructions invoke the pink-elephant paradox: by being told not to think about a thing, jurors may actually be more likely to think about that thing. See State v. Popp, 2019 UT App 173, ¶ 50, 453 P.3d 657 (“Indeed, a curative instruction may actually serve to draw the jury’s attention toward the subject matter of the instruction and further emphasize the issue the instruction is attempting to cure.”). In view of this reality, we have often held that decisions regarding whether to move to strike and seek a curative instruction are highly strategic ones that courts are loathe to second-guess. See, e.g., State v. Garrido, 2013 UT App 245, ¶ 26, 314 P.3d 1014 (“Choosing to forgo a limiting instruction can be a reasonable decision to avoid drawing attention to unfavorable testimony.”). And this is especially true here, where the impact of the testimony—Anna describing her own belief that she had been subjeсted to domestic violence—was likely to be slight: the jury was already well aware, due to the fact that Anna drove herself to the police station to report the incident and that King was on trial for domestic violence, that Anna believed she was the victim of domestic violence. In this situation, we are simply not prepared to categorize the lack of an objection as unreasonable.
¶35 Accordingly, we reject all of King’s on-the-record claims of ineffective assistance, because we are unable to ascertain any deficient performance by Counsel regarding the issues raised.
B. Rule 23B Remand
¶36 In addition to the on-the-record ineffective assistance claims King raises, he makes three other claims of ineffective assistance that are dependent upon evidence that is not already in the record. For these claims, King asks us to remand the case to the trial court for further proceedings in which he would be allowed the оpportunity to supplement the record. See
¶38 King’s first
¶39 To be sure, the evidence of the encounters includes some details helpful to King, such as the fact that Anna had physically struck King and, on two of the several occasions, police arrested Anna as the aggressor. But as already noted, Counsel had already brought to the jury’s attention the fact that Anna had been deemеd the aggressor on some of the earlier occasions. The remaining details were, at best, a plus/minus for King, because they included allegations that King had, on previous occasions, admitted to not only physically assaulting Anna, but also to
¶40 King’s second
¶41 Finally, King argues that Counsel should have introduced into evidence part of Officer’s body camera video footage. This video clip shows a conversation between two police officers that took place after they interviewed King and decided to arrest him. One of the officers says either “end of video” or “end the video.” The officer then comments, to the other officer, as follows: “I think you probably could have turned that right around on him.” King
¶42 Accordingly, we deny King’s request for a
CONCLUSION
¶43 The trial court did not abuse its discretion in overruling King’s objection to Anna’s testimony about the extent of her injuries. And King has not demonstrated that Counsel performed deficiently on any of his claims of ineffective assistance. Accordingly, we deny King’s