Layton City v. Carr
| Decision Date | 25 September 2014 |
| Docket Number | No. 20120668–CA.,20120668–CA. |
| Citation | 336 P.3d 587,2014 UT App 227 |
| Court | Utah Court of Appeals |
| Parties | LAYTON CITY, Plaintiff and Appellee, v. Jacque Zachary CARR, Defendant and Appellant. |
Scott L. Wiggins, Salt Lake City, for Appellant.
Marlesse D. Jones, for Appellee.
1
Opinion
¶ 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.
¶ 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 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.
¶ 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).
¶ 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 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. ( ” . 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 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, 264 P.3d 770 (). 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 that the trial court's finding is clearly erroneous.3 Mangum, 2013 UT App 292, ¶ 4, 318 P.3d 250.
¶ 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052. 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...
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