State v. Atkin

• Decision Date: 20 April 2006
• Docket Number: No. 20041020-CA.,20041020-CA.
• Citation: 2006 UT App 155,135 P.3d 894
• Parties: STATE of Utah, Plaintiff and Appellee, v. Frederick Jeremy ATKIN, Defendant and Appellant.
• Court: Utah Court of Appeals

135 P.3d 894

2006 UT App 155

STATE of Utah, Plaintiff and Appellee, v. Frederick Jeremy ATKIN, Defendant and Appellant.

No. 20041020-CA.

Court of Appeals of Utah.

April 20, 2006.

COPYRIGHT MATERIAL OMITTED

Randall W. Richards, Richards Caine & Allen, Ogden, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Matthew D. Bates, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before GREENWOOD, Associate P.J., DAVIS and THORNE, Jr., JJ.

OPINION

DAVIS, Judge:

¶ 1 Frederick Jeremy Atkin (Defendant) appeals his convictions for aggravated kidnaping, forcible sexual abuse, assault, interruption of a communication device, and domestic violence in the presence of a child. We affirm.

BACKGROUND

¶ 2 On August 31, 2003, Defendant spent the night at the home of his girlfriend (the victim). At approximately 2:00 a.m., the victim's son woke up and came into the room where Defendant and the victim were sleeping. The victim got out of bed, took her son back into his room, and lay down next to him. Apparently jealous of the attention the victim was giving her son, Defendant got angry with her and a physical altercation ensued. Over the next two to three hours, Defendant terrorized the victim by beating her around the face and neck, choking her, and twisting her breast, causing significant pain. When the victim told Defendant she wanted to go to the hospital and tried to call for help, Defendant refused to let her leave, told her that he was going to make it "well worth his time" if she was going to turn him in, and ripped the phone cord out of the wall.

¶ 3 At approximately 5:30 a.m., Defendant demanded to be driven home. The victim, after seeing Defendant terrorize and apparently kick her son, agreed to do so. However, en route to Defendant's home, the victim stopped at a convenience store in another attempt to contact the police. There, a witness saw Defendant physically restrain the victim to keep her from exiting her vehicle. When the witness spoke to the victim, Defendant let the victim go and fled.

¶ 4 Defendant was charged with multiple crimes arising from these events, and a jury trial was held on August 5, 2004. During the trial, defense counsel presented evidence of the victim's history of domestic violence, and the State presented evidence of Defendant's history of domestic violence. In addition, the drug history of both the victim and Defendant was raised. Defendant was convicted of aggravated kidnaping, forcible sexual abuse, assault, interruption of a communication device, and domestic violence in the presence of a child. Defendant timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Defendant first argues that the forcible sexual abuse and the assault statutes, as applied to the facts of this case, punish the same conduct. Defendant therefore contends that his constitutional rights were violated because "[t]he Shondel doctrine requires that when two different statutory provisions define the same offense, a defendant must be sentenced under the provision carrying the lesser penalty." State v. Green, 2000 UT App 33, ¶ 6, 995 P.2d 1250 (citing State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 148 (1969)). Defendant concedes that he did not preserve this issue and therefore requests that we review this purported error under the plain error doctrine.

[T]o obtain appellate relief from an alleged error that was not properly objected to [Defendant] must show the following: (i)[a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for [Defendant], or phrased differently, our confidence in the verdict is undermined.

State v. Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106 (quotations and citation omitted).

¶ 6 Defendant next contends that the conviction for aggravated kidnaping should have merged with the forcible sexual abuse conviction. Defendant again concedes that he did not preserve this issue and therefore asks us to review this purported error under the ineffective assistance of counsel doctrine. "Where, as here, a claim of ineffective assistance of counsel is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law." State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998). "To prevail on a claim of ineffective assistance of counsel, [Defendant] must show that (1) trial counsel's performance was objectively deficient and (2) there exists a reasonable probability that absent the deficient conduct, the outcome would likely have been more favorable to [Defendant]." State v. Mecham, 2000 UT App 247, -¶ 21, 9 P.3d 777. "The failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." State v. Whittle, 1999 UT 96, -¶ 34, 989 P.2d 52 (quotations, citations, and alteration omitted).

¶ 7 Finally, Defendant argues that the trial court erred by allowing evidence of his prior bad acts, including his purported drug use and previous domestic violence charges. The parties disagree as to whether Defendant properly preserved this issue at trial. Defendant requests that we review this issue for abuse of discretion, see State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837 (reviewing the admission of prior bad acts evidence under abuse of discretion), while the State requests that we review this issue for plain error, see Casey, 2003 UT 55 at ¶ 41, 82 P.3d 1106. We need not determine whether Defendant properly preserved this issue, as we hold that the trial court did not err by admitting evidence of Defendant's prior bad acts.

ANALYSIS

I. The Shondel Doctrine

¶ 8 Defendant first argues the trial court committed plain error by failing to recognize that the forcible sexual abuse and the assault statutes, as applied to the facts of this case, punish the same conduct. He contends that his constitutional rights were violated because "[t]he Shondel doctrine requires that when two different statutory provisions define the same offense, a defendant must be sentenced under the provision carrying the lesser penalty." Green, 2000 UT App 33 at ¶ 6, 995 P.2d 1250 (citing Shondel, 453 P.2d at 148). However, the Shondel doctrine applies "only when the two statutory provisions proscribe precisely the same conduct." State v. Jensen, 2004 UT App 467, ¶ 16, 105 P.3d 951, cert. denied, 123 P.3d 815 (Utah 2005). Therefore, if the elements of the crime are not identical and the relevant statutes require "proof of some fact or element not required to establish the other," the statutes do not proscribe the same conduct and Defendant "may be charged with the crime carrying the more severe sentence or may stand convict[ed] on both," without violating his rights under the state and federal constitutions. State v. Clark, 632 P.2d 841, 844 (Utah 1981) (internal citations omitted); see also State v. Kent, 945 P.2d 145, 147 (Utah Ct.App.1997).

¶ 9 "Thus, in the present case, the question is whether the two statutes at issue proscribe exactly the same conduct, i.e., do they contain the same elements?" State v. Gomez, 722 P.2d 747, 749 (Utah 1986). Defendant was convicted of forcible sexual abuse and assault. The elements of forcible sexual abuse relevant to our analysis are: (1) a touching, (2) of the breast of a female, (3) with the intent to cause substantial emotional or bodily pain to any person. See Utah Code Ann. § 76-5-404 (2003); State v. Jones, 878 P.2d 1175, 1177 (Utah Ct.App.1994). The elements of assault relevant to our analysis are: (1) an act, committed with unlawful force or violence, (2) that causes bodily injury to another or creates a substantial risk of bodily injury to another. See Utah Code Ann. § 76-5-102 (2003); Jones, 878 P.2d at 1177. Because the assault statute does not mention the requisite mens rea, the trial court instructed the jury that the act had to be done "knowingly and intentionally." See Utah Code Ann. § 76-2-102 (2003) ("[W]hen the definition of the offense does not specify a culpable mental state . . ., intent, knowledge, or recklessness shall suffice to establish criminal responsibility.").¹

¶ 10 The most obvious difference between the two statutes at issue is the mens rea required under each. While the statutory elements for forcible sexual abuse and assault both "involve offensive touching, they are distinguished by the reason for the touching." Jones, 878 P.2d at 1177. The instruction regarding forcible sexual abuse required "the `intent' to cause substantial emotional or bodily pain," whereas the assault instruction required an intentional act that caused bodily injury to another or created a substantial risk of bodily injury to another. In other words, in regard to forcible sexual abuse, the State was required to establish why Defendant touched the victim— specifically here, that the touching was motivated by the desire to cause substantial emotional or bodily pain. But with assault, the State only had to establish that Defendant intentionally committed an act that caused bodily injury or a substantial risk thereof. Because the required mens rea is entirely different for the two statutes, the Shondel doctrine does not apply, and the trial court did not commit any error.

¶ 11 Defendant implies that the provisions of the two statutes inherently invest the prosecutor with the discretion to charge Defendant with either forcible sexual abuse, a second degree felony, or assault, a misdemeanor, for the same conduct, thus constituting a denial of equal protection of the laws.

It is not unconstitutional for a state to impose a more severe penalty for a particular type of crime than the penalty which is imposed with respect to the general category of crimes to which the special crime is related. . . .

As long as the legislative classifications are not arbitrary, the fact that conduct may violate both a general and a specific provision of the criminal laws does not render the...