Layton City v. Carr

2014 UT App 227

_________________________________________________________

THE UTAH COURT OF APPEALS

LAYTON CITY,

Plaintiff and Appellee,

v.

JACQUE ZACHARY CARR ,

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

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in

which JUDGE GREGORY K. ORME and SENIOR JUDGE

RUSSELL W. BENCH concurred.1

CHRISTIANSEN, Judge:

¶1 Jacque Zachary Carr appeals from his convictions for

domestic-violence assault and commission of domestic violence in

the presence 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).

Layton City v. Carr

BACKGROUND

¶2 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.2 Carr found A.P.’s cell phone and

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 were 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,

2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and internal quotation marks

omitted).

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Layton City v. Carr

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 insufficient

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 constitutional

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 Supported

by Sufficient Evidence.

¶7 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

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violence includes the commission of an assault by one cohabitant

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, 2011 UT App 380, ¶ 2 n.1, 264 P.3d 770

(citation and internal quotation marks omitted).

¶8 The trial court found that Carr had made “a threat

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, 783 P.2d 544, 546 (Utah 1989).

Carr contends that, notwithstanding the evidence that A.P. awoke

to Carr yelling and holding his fist in her face, the trial court’s

finding of a threat is unsupported because (1) A.P.’s testimony

“demonstrates that there was no motion toward[] her and no

movements toward her ever”; (2) A.P.’s daughter’s testimony

“indicates that she did not see a closed and clenched fist” and that

Carr “never acted like he was going to hit [A.P.]”; and (3) Carr told

Officer Yuen that he did not intend to hit A.P.

¶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, Carr 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,

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Layton City v. Carr

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 testimony 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 when conflicting evidence is

presented. See State v. Mangum, 2013 UT App 292, ¶ 4, 318 P.3d 250;

cf. Davie, 2011 UT App 380, ¶ 20 (stating that when a trial court

evaluates witness credibility in a bench trial, “[t]he mere existence

of inconsistencies is not a sufficient basis to question credibility

determinations”). The evidence that was presented and apparently

found credible by the trial court demonstrated that Carr, while

yelling at A.P., raised his clenched fist above her head, causing her

to flee from the bedroom. This evidence is adequate to support the

trial court’s finding that Carr’s conduct constituted a threat.

¶11 The testimony of A.P.’s daughter—that she did not believe

Carr acted like he was going to hit A.P. and did not mention seeing

Carr’s clenched fist—is, at best, evidence that contradicts the

evidence supporting the finding. And Carr’s statement to Officer

Yuen that he did not intend to hit A.P., while certainly at odds with

the evidence that tended to show that his clenched fist was an

expression of such an intent, is similarly insufficient to demonstrate

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that the trial court’s finding is clearly erroneous.3 Mangum, 2013 UT

App 292, ¶ 4.

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 assistance 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, 2010 UT App 355, ¶ 18, 246 P.3d 151 (citation and internal

quotation marks omitted).

¶13 Carr argues that his trial 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 support 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.

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Layton City v. Carr

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 remand 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,4 and further assume

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-impact

statement is available, defense counsel is not. Id.

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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, 2010 UT App 355, ¶ 18.

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 Generally, “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, 384 U.S. 436, 444 (1966); see also

State v. Perea, 2013 UT 68, ¶ 91, 322 P.3d 624. However, these

safeguards are required only when a defendant is subject to

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custodial interrogation, i.e., “questioning initiated by law

enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant

way.” Miranda, 384 U.S. at 444; Oregon v. Mathiason, 429 U.S. 492,

495 (1977) (per curiam) (explaining that “police officers are not

required to administer Miranda warnings to everyone whom they

question” but must only do so when “there has been such a

restriction on a person’s freedom as to render him ‘in custody’”).

¶18 Carr asserts that he “was in custody during the conversation

with Officer Yuen because he was not free to leave.” However, the

test for whether a person is in custody for Miranda purposes is not

simply whether he is “free to leave,” but whether the “‘suspect’s

freedom of action is curtailed to a degree associated with formal

arrest.’” State v. Mirquet, 914 P.2d 1144, 1146–47 (Utah 1996)

(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)).5 Four

factors bear on whether a police interview is so coercive as to

entitle an interviewee to a Miranda warning in a context other than

a formal arrest: “(1) the site of interrogation; (2) whether the

investigation focused on the accused; (3) whether the objective

indicia of arrest were present; and (4) the length and form of

interrogation.” Id. at 1147 (citation and internal quotation marks

omitted). Carr has not argued that he was under arrest at the time

he was interviewed by Officer Yuen, nor has he addressed the

relevant factors to show that he was in custody. And a review of

the record does not demonstrate that the circumstances of the

interview were so coercive as to require a Miranda warning. Carr

was interviewed on the front porch of the house where he lived,

not at a police station or in a patrol car; the interview was focused

on “what had occurred that night” rather than on whether Carr

had committed a crime; no objective indicia of arrest such as drawn

5. “The ‘not free to leave’ standard, on the other hand, determines

whether a person has been ‘seized’ under the Fourth Amendment

to the United States Constitution.” State v. Mirquet, 914 P.2d 1144,

1147 (Utah 1996) (quoting United States v. Mendenhall, 446 U.S. 544,

555 (1980)).

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guns or handcuffs were present 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, 2006 UT App 71, ¶ 7, 131 P.3d 864

(citing State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546). We therefore

conclude that trial counsel did not perform deficiently in failing to

file a futile motion to suppress Carr’s statements to Officer Yuen.

C. Right to a Jury Trial

¶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, 466 U.S. 668, 687 (1984).

¶21 We first conclude that remand is not appropriate here. Even

if we accept Carr’s allegation that “[a]t no time did [trial counsel]

explain to [him] the difference between a jury trial or bench trial”

and assume without deciding that this failure to advise Carr

constituted deficient performance, Carr has not alleged facts

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demonstrating that he was prejudiced by trial counsel’s

performance. To support a claim of prejudice in a rule 23B motion,

the facts alleged “must demonstrate prejudice, i.e., that the result

would have been different had counsel’s performance not been

deficient.” State v. Gunter, 2013 UT App 140, ¶ 16, 304 P.3d 866

(citation and internal quotation marks omitted). Carr has not

alleged or argued that had he been informed by trial counsel of the

difference between a jury trial and a bench trial, he would have

opted for a jury trial. Nor has he made any other claim of a

different result at trial, such as an assertion that a jury would have

been likely to return a more favorable verdict. Accordingly,

remand is not necessary to resolve this claim on appeal.

¶22 Further, Carr’s failure to allege or argue that he would have

selected a jury trial, or is likely to have received a more favorable

result from a jury, is fatal to his claim of ineffective assistance of

counsel. Absent a showing that “the result would have been

different” if trial counsel had explained the difference between a

bench trial and a jury trial, Carr’s claim fails for lack of prejudice.

See State v. Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151 (citation

and internal quotations marks omitted). We therefore conclude that

trial counsel’s performance did not deprive Carr of his right to the

effective assistance of counsel.

CONCLUSION

¶23 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.

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