Provo City v. Thompson
| Decision Date | 07 March 2002 |
| Docket Number | No. 20000071-CA.,20000071-CA. |
| Citation | 2002 UT App 63,44 P.3d 828 |
| Parties | PROVO CITY, Plaintiff and Appellee, v. Sean G. THOMPSON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Dana M. Facemyer, Provo, for Appellant.
Vernon F. Romney, Provo City Attorney's Office, Provo, for appellee.
Before Judges JACKSON, GREENWOOD, and ORME.
¶ 1 Defendant Sean G. Thompson appeals from a bench trial conviction of telephone harassment, a class B misdemeanor, in violation of Utah Code Ann. § 76-9-201 (1999), as adopted by Provo City. Defendant argues that section 76-9-201 is both unconstitutionally overbroad and unconstitutionally vague. He also argues that he received ineffective assistance of counsel. We conclude that portions of section 76-9-201 are indeed facially overbroad. However, we affirm defendant's conviction because we conclude that the portion of subsection 76-9-201(1)(b) most applicable to defendant's actions is neither facially overbroad nor void for vagueness, and because we find no merit in defendant's ineffective assistance claim.
¶ 2 "When reviewing a bench trial, `[w]e recite the facts from the record most favorable to the findings of the trial court.'" State v. Layman, 953 P.2d 782, 784 n. 1 (Utah Ct.App.1998) (quoting State v. Moosman, 794 P.2d 474, 476 (Utah 1990)). "We present conflicting evidence only when necessary to understand issues raised on appeal." State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116.
¶ 3 In early May 1999, defendant's ex-wife, Carolyn, and their five-month-old daughter lived alone in an apartment in Provo City. During the late evening of May 1, and the early morning of May 2, 1999, defendant phoned Carolyn ten times within the space of an hour. Carolyn told defendant two or three times that his calls were frightening her and asked him to quit calling. When defendant continued to call, Carolyn phoned the police.
¶ 4 Officer Bastian arrived at Carolyn's apartment at 12:47 a.m. and observed that Carolyn was "nervous, emotional, [and] appeared kind of scared." She told Officer Bastian that defendant "had been calling her and upsetting her by his frequent phone calls and [that] she just wanted him to stop." As Officer Bastian spoke with Carolyn, the phone in her apartment rang again. The phone's caller identification function indicated that the call was from defendant, bringing his total calls to eleven within the hour.
¶ 5 Officer Bastian answered the phone and asked who was calling. Defendant identified himself. Officer Bastian told defendant not to leave his apartment because he, Officer Bastian, would soon be arriving. Officer Bastian then went to defendant's apartment and cited defendant for telephone harassment.
¶ 6 Defendant claimed at trial that Carolyn initiated the first telephone call and expressed suicidal intentions. Defendant said he had "learned in school and from counselors and therapists" that "whenever you're faced with a situation where you're talking with somebody who ... is threatening to commit suicide ..., as soon as they hang up you immediately call them back to get them on the line ... and keep talking to them, and if they hang up, call back." Thus, he claimed, he did not call Carolyn repeatedly with any intent to annoy her, but only out of concern for her safety.
¶ 7 Defendant failed, however, to mention any of his concerns for Carolyn's safety to Officer Bastian either when Officer Bastian first spoke to defendant on the telephone1 or when Officer Bastian arrived at defendant's apartment. Instead, Officer Bastian testified that defendant admitted he had been drinking and that he had also taken antidepressant medication. Defendant testified that when Officer Bastian scolded him for drinking too much, he became concerned because Officer Bastian threatened to arrest him and simply forgot to mention his concerns for Carolyn.
¶ 8 Following a bench trial, defendant was found guilty of telephone harassment. Specifically, the trial court found that defendant made "a large number of telephone calls" to Carolyn; that "she asked the defendant not to make additional calls and yet he continued to do so"; and that defendant's "clear ... intent [was] to annoy." Defendant now appeals.
¶ 9 Defendant claims he received ineffective assistance of counsel. We generally will not review a claim of ineffective assistance of counsel on direct appeal unless the defendant is represented by new counsel on appeal and the record is adequate to review the defendant's claims. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376; State v. Vessey, 967 P.2d 960, 964-65 (Utah Ct.App. 1998). If these conditions are met, "we will review [ineffective assistance] claims as a matter of law." Maestas, 1999 UT 32 at ¶ 20, 984 P.2d 376. "To establish that he received ineffective assistance of counsel, [defendant] must show that his counsel `rendered deficient performance which fell below an objective standard of reasonable professional judgment' and that `counsel's deficient performance prejudiced him.'" Id. (quoting State v. Chacon, 962 P.2d 48, 50 (Utah 1998)).
¶ 10 Defendant also argues that Utah Code Ann. § 76-9-201 (1999) violates the First Amendment of the United States Constitution2 because it is unconstitutionally overbroad on its face3 and because it is void for vagueness. State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191 (citation omitted).
¶ 11 We only briefly address defendant's ineffective assistance of counsel claims, which are unavailing. Defendant claims two deficiencies in his counsel's performance. First, he alleges that had counsel properly investigated, counsel would have found evidence that Carolyn had previously shown suicidal tendencies. Such evidence, he claims, would have bolstered defendant's testimony that he did not call repeatedly with intent to annoy but rather to prevent Carolyn from harming herself. However, there is nothing in the record identifying what evidence counsel may have found had he investigated further. Defendant states only in his brief that he "had evidence of a prior occasion in which [Carolyn] threatened to kill herself and all passengers . . . who were with her while she was driving a car." However, defendant did not request a remand under Rule 23B of the Utah Rules of Appellate Procedure to substantiate the assertion he now argues would support his claim of ineffective assistance. Without a proper record before us, we are unable to say whether counsel's alleged deficiency in failing to investigate prejudiced defendant. See State v. Vessey, 967 P.2d 960, 964-65 & n. 5 (Utah Ct.App.1998).
¶ 12 Defendant also claims counsel's performance was deficient in not drawing more attention to two contradictory statements made by Carolyn. On direct examination, Carolyn said she could not remember whether she had called defendant on the day of the incident, but she said if she had, it was to ask him whether he wanted to come visit their daughter. On cross-examination, Carolyn admitted she had called defendant on the day of the incident, but again said her call was only to ask if he wanted to visit their daughter and that she had not expressed any intent to harm herself. "[I]n reviewing counsel's performance, we give trial counsel wide latitude in making tactical decisions and [do] not question those tactical decisions unless there is no reasonable basis supporting them." State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376. Defense counsel might have considered that successfully impeaching Carolyn's testimony by drawing out the inconsistency was sufficient, and that to delve further into the subject might only have served to highlight the contrast between Carolyn's gracious encouragement of visitation and defendant's subsequent harassing behavior. Thus, we cannot say defense counsel's decision not to pursue the contradiction in Carolyn's testimony fell outside the wide latitude accorded trial counsel in making tactical decisions.
¶ 13 Defendant argues that Utah Code Ann. § 76-9-201 (1999) is unconstitutionally overbroad on its face and void for vagueness.
Faced with overbreadth and vagueness attacks on a statute or ordinance, our first task is to determine whether the enactment makes unlawful a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail and we should then examine the facial vagueness challenge. If it does, it may be held facially invalid even if it also has legitimate application.
Logan City v. Huber, 786 P.2d 1372, 1375 (Utah Ct. App.1990) (citations omitted).
¶ 14 At the time of the incident giving rise to this case, section 76-9-201 read:
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