State v. Baer

• Decision Date: 17 January 2019
• Docket Number: No. 20170479-CA,20170479-CA
• Citation: 438 P.3d 979
• Parties: STATE of Utah, Appellee, v. Jacob BAER, Appellant.
• Court: Utah Court of Appeals

438 P.3d 979

STATE of Utah, Appellee,

v.Jacob BAER, Appellant.

No. 20170479-CA

Court of Appeals of Utah.

Filed January 17, 2019

Nathan Phelps, Draper, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

POHLMAN, Judge:

¶1 Late one summer night, eighteen-year-old Jacob Baer and three other teenage boys entered a community swimming pool after hours. One of the teenagers who worked as a lifeguard at the pool (Lifeguard) used a key to let them in, and the group went swimming. Afterward, unbeknownst to Lifeguard, Baer took the pool’s small lockbox used to store the pool’s cash. When Lifeguard later asked Baer about the missing lockbox, Baer told him, "Tell the cops I wasn’t there." With help from one of the other teenagers, K.D., authorities eventually recovered the pool’s bank deposit bag from a nearby reservoir—the same place where Baer told a jailhouse informant that he had dumped the lockbox.

¶2 Baer now appeals his convictions for burglary, a third degree felony, and theft of services, a class B misdemeanor.¹ He contends that he received constitutionally ineffective assistance of counsel when his trial counsel failed to move for a directed verdict and failed to object to the jury instructions. We affirm.

ANALYSIS

¶3 A criminal defendant shows that he has been deprived of his right to the effective assistance of counsel if he demonstrates both that his "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 show that his trial counsel performed deficiently, a defendant must demonstrate that "his counsel rendered a demonstrably deficient performance that fell below an objective standard of reasonable professional judgment." State v. Robertson , 2018 UT App 91, ¶ 36, 427 P.3d 361 (quotation simplified). But "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. Burdick , 2014 UT App 34, ¶ 34, 320 P.3d 55 (quotation simplified). To demonstrate prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland , 466 U.S. at 693, 104 S.Ct. 2052. Rather, a defendant "must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

¶4 "When a criminal defendant raises a claim of ineffective assistance of counsel for the first time on appeal, there is no trial court ruling to examine. We must therefore decide, as a matter of law, whether [Baer] received constitutionally ineffective assistance of counsel." See State v. Burnett , 2018 UT App 80, ¶ 19, 427 P.3d 288 (citation omitted).

¶5 On appeal, Baer raises two issues. First, he contends that his trial counsel was ineffective for failing to seek a directed verdict on the burglary and theft of services charges. Second, he contends that his trial counsel was ineffective for failing to ensure that the jury instructions properly stated the applicable mental states for those two charges.

I. Sufficiency of the Evidence

¶6 Baer contends that his trial counsel rendered ineffective assistance of counsel by "failing to challenge the sufficiency of the evidence" supporting the charges of burglary and theft of services. He suggests that counsel should have sought to dismiss those charges by moving for a directed verdict.² We disagree.

¶7 If the State presents no competent evidence from which a reasonable jury could find the elements of the relevant crime, then trial counsel should move for a directed verdict and the failure to do so "would likely constitute deficient performance." State v. Burdick , 2014 UT App 34, ¶ 35, 320 P.3d 55 (quotation simplified). But "a directed verdict should not be granted if, upon reviewing the evidence and all inferences that can be reasonably drawn from it[,] some evidence exists from which a reasonable jury could find that the elements of the crime had been proved beyond a reasonable doubt." Id. (quotation simplified). Thus, if the State presents "some evidence from which a reasonable jury could find" all the elements, "trial counsel’s decision not to raise a futile motion for a directed verdict would not be deficient performance." See id. (quotation simplified). In examining whether a motion for directed verdict could have been granted, "we view the evidence presented at trial in the light most favorable to the State." Id.

¶8 With this standard in mind, we first consider whether a directed verdict motion would have been futile on Baer’s charge for burglary, and then we consider the same question with regard to the charge for theft of services.

¶9 Regarding the burglary charge, Baer asserts that "the State failed to show that [he] unlawfully entered the pool." Baer acknowledges Lifeguard’s testimony that Lifeguard "was not authorized to go into the pool at night," but Baer asserts that "the State never elicited testimony suggesting that [Lifeguard] explained to [Baer] and the other boys that he was not authorized to admit the others to the pool after hours." In Baer’s view, there was no evidence "showing why [Baer] should know that he was not authorized" to enter the pool after hours.

¶10 As relevant here, Utah law defines burglary as when a person "enters or remains unlawfully in a building or any portion of a building with intent to commit ... theft." Utah Code Ann. § 76-6-202(1)(b) (LexisNexis 2017). Baer’s sufficiency argument focuses solely on the element of entering or remaining unlawfully. The Utah Code defines "enter or remain unlawfully" to mean that

a person enters or remains in or on any premises when: (a) at the time of the entry or remaining, the premises or any portion of the premises are not open to the public; and (b) the actor is not otherwise licensed or privileged to enter or remain on the premises or any portion of the premises.

Id. § 76-6-201(3). The undisputed evidence established that the pool was closed at the time of Baer’s entry and thus was "not open to the public." See id. § 76-6-201(3)(a). Baer concedes that "there is nothing to suggest that [his] entry was privileged" to enter the premises, so the relevant question is whether sufficient evidence showed that Baer was not "otherwise licensed ... to enter or remain on the [pool’s] premises." See id. § 76-6-201(3)(b).

¶11 The primary evidence against Baer about his entry to the pool was provided by Lifeguard and K.D. Lifeguard testified that, on the weekend night in question, he had possession of a key to the pool so that he could open the pool at 5 a.m. the next Monday morning. According to Lifeguard, even though he was not authorized to go into the pool at night, Lifeguard suggested to K.D. and another teenager, G.S., that they go "night swimming." G.S. invited Baer to join them, and Baer met them there. K.D. testified that Baer parked his car at the middle school "right next door" to the pool. Lifeguard then used his key to unlock the pool, and they all went swimming. Lifeguard testified that they entered the pool at "about ten at night," but the State also introduced evidence that Lifeguard told the pool manager that they had been there at about "2:00 in the morning."

¶12 Although Baer maintains that the evidence failed to show "why [he] should know that he was not authorized" to enter the pool after hours with a lifeguard who had a key, the State’s evidence, and the reasonable inferences that can be drawn from it, provided a sufficient basis for a reasonable jury to conclude that Baer was not licensed or authorized to enter or remain at the pool after hours and that Baer knew that he lacked such authorization.

¶13 Baer and the other teenagers entered the locked pool on a weekend evening around 10 p.m. or later. Lifeguard—who was merely a juvenile employee of the pool and not, say, a manager—used his key to access the premises. Lifeguard testified that he had the key for the purpose of opening the pool Monday morning and was not authorized to go into the pool at night. Relying on logic and reasonable human experience, a jury could reasonably infer from these facts that this group of teenagers, out late on a weekend, was not allowed to access the closed pool and that Lifeguard did not have authority to take his friends "night swimming." See generally State v. Cristobal , 2014 UT App 55, ¶ 4, 322 P.3d 1170 ("A reasonable inference is a conclusion that can be drawn from the evidence and is based on logic and reasonable human experience."). Even though Baer claims that he did not actually know that Lifeguard lacked authority to open the pool to him, no evidence suggested that Baer had reason to believe that Lifeguard was allowed to treat his friends to an after-hours swim.³ Yet other evidence supports the reasonable inference that Baer knew that his entry to the pool was unlawful. Before entering the premises, Baer parked his car next door at the middle school. One reasonable inference from that fact is that Baer was seeking to avoid detection and knew that the group was sneaking into a pool that was off-limits. Cf. Salt Lake City v. Carrera , 2015 UT 73, ¶ 11, 358 P.3d 1067 ("Circumstantial evidence is particularly useful in establishing intent because direct evidence of intent is rarely available. We allow juries to rely on circumstantial evidence to find intent on the basis of reasonable inferences drawn from the evidence.").

¶14 Thus, contrary to Baer’s assertions, the State did provide some evidence from which a reasonable jury could find that Baer "unlawfully entered the pool" and that "[Baer] should know...