State v. Carrick

Decision Date30 January 2020
Docket NumberNo. 20160249-CA,20160249-CA
Citation458 P.3d 1167
Parties STATE of Utah, Appellee, v. Cullen Christopher CARRICK, Appellant.
CourtUtah Court of Appeals

Scott L. Wiggins, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

Opinion

ORME, Judge:

¶1 Appellant Cullen Christopher Carrick challenges his conviction for burglary. He argues that errors by the trial court in denying his motion for a directed verdict, admitting a hearsay statement, and not properly instructing the jury, coupled with various instances of ineffective assistance of counsel, entitle him to reversal and a new trial. We disagree and affirm his conviction.

BACKGROUND1
The Burglary

¶2 Carrick and a woman (Wife) were involved in an extramarital affair when Wife unexpectedly passed away. Wife’s friend (Friend) was privy to the affair and had met Carrick once at Wife’s home (the home). Friend had also seen photos of Carrick and shared them with her husband (Friend’s Husband). Friend was "[d]isappointed" in Wife for the affair but was still "going to be her best friend." Wife’s husband (Husband) learned of the affair just days before Wife’s passing when, at the hospital, he stumbled upon romantic messages on social media between Carrick and Wife.

¶3 Undeterred by the potential for a confrontation with Husband, Carrick attended Wife’s funeral.2 Two of Wife’s neighbors, neither of whom knew Carrick or about his affair with Wife, saw him at the funeral wearing a distinctive cowboy hat with feathers that "looked like it belonged on a Man From Snowy River."

¶4 After the funeral, the neighbors returned to their home in the "daytime," during the "[a]fternoon." They saw Carrick, wearing the "same hat," walk down the home’s driveway, remove a screen from a garage window, and crawl inside. Despite the atypical mode of entry, the neighbors assumed that Carrick had been asked by Husband or Friend to get something from the home. They did not call the police but simply proceeded into their own house to retrieve something. When they came back out, they saw Carrick exit through the same window and replace the screen, whereupon they became more suspicious and called the police. They then waved at Carrick, who waved back. They did not see Carrick carrying anything from the home.

¶5 Friend and Friend’s Husband soon pulled up in separate vehicles and saw Carrick coming out of the backyard. Friend was "a hundred percent" sure that it was Carrick, and Friend’s Husband saw Carrick "briskly" enter into, and then leave in, a silver SUV that was parked just south of the home.

¶6 A police officer (Officer) came to the home, and the neighbors described the suspect to Officer as a "slender guy with long hair" but did not include any mention of the distinctive hat Carrick was wearing. After several people who had gathered at the scene identified Carrick through social media, Officer searched Carrick’s name on his computer and obtained an image of Carrick’s driver license. He showed it to Friend’s Husband and one of the neighbors, and both positively identified Carrick as the person who had entered the home.3

¶7 One of the individuals at the scene then called Carrick and handed the phone to Officer. Officer informed Carrick that he was investigating a break-in at the home, that a number of witnesses had seen him enter and leave the home’s garage, and that he wanted Carrick’s "side of the story." Carrick said "he was busy" and asked "how important it was" because he was on his way to Salt Lake City. Officer responded that "it was very important" and that if Carrick did not give him an explanation, he "would have to take what [he] had and forward it to the county attorney." In response, Carrick again said he was busy and hung up before Officer could "get his name, date of birth, and personal information."

¶8 Husband then arrived and searched the home to see if anything was missing. Although he noticed that his golf clubs in the garage had been moved, nothing appeared to be missing.

The Trial

¶9 The State charged Carrick with one count of burglary, a second-degree felony. In the trial court’s opening instructions, in addition to being instructed on burglary, the jury was instructed on the lesser-included offense of criminal trespass. The court also instructed the jury that "[t]he culpable mental state required" to find Carrick guilty of burglary or criminal trespass "is intentionally, or knowingly, or recklessly." The court then defined "knowingly" as being "aware of the nature of [one’s] conduct or the existing circumstances" and added that "[a] person acts knowingly ... with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." The court did not define what it meant for a defendant to act "intentionally" or "recklessly." Before presenting the instructions to the jury, the court asked Carrick’s counsel (Trial Counsel) if he had "any objections to the instructions," to which Trial Counsel responded, "No, Your Honor."

¶10 At the close of the State’s case-in-chief, in which the State presented the testimony of Officer, the neighbors, Friend, Friend’s Husband, and Husband, Trial Counsel moved for a directed verdict. Trial Counsel argued that "[t]he State has not met their burden" of showing that Carrick "entered or remained unlawfully in a dwelling with the intent to commit a felony or a theft." He also argued, with respect to the lesser-included offense, that even assuming Carrick was in the home, "there has to be a ... showing that he was reckless as to whether his presence would cause fear for the safety of another" and "[t]here’s been no showing of that." The court denied the motion.

¶11 Trial Counsel then presented the testimony of four alibi witnesses: Tanya, Matthew, Elias, and Celeste. In submitting his pre-trial alibi witness list, Trial Counsel represented that the alibi witnesses would testify that "[a]t no time did [Carrick], or any individual in his party, go to the home."

¶12 Tanya, a friend of Wife, testified that she sat with Carrick at the funeral and remained with him until he left when "[i]t was almost dark" and that he "[a]bsolutely" could not have broken into the home. She also testified that at no time during the funeral did he leave and come back because "[h]e didn’t have a vehicle."

¶13 Matthew, Wife’s co-worker and Carrick’s friend, testified that he drove Carrick to and from the funeral. He said the car he drove was a white 2002 Mazda Protege, which he indicated was a five-passenger "car, not an SUV." Matthew testified that Carrick was at the funeral with him "the whole time" and never left. They remained after the funeral "for about an hour or so" and left when "it was getting dark." They made no stops on the way back to his work, where he and Carrick parted ways.

¶14 Elias, a good friend of Carrick’s, testified that he and Carrick "hung out in the parking lot and talked" for "quite a while" after the funeral ended. Then, when "it was starting to get dusk," a group, including Carrick, left and met up at Elias’s house in Salt Lake City.

¶15 Celeste, Elias’s girlfriend and Wife’s friend, testified that she sat next to Carrick at the funeral and that they "hung out in the parking lot for around an hour" after the funeral and left when "[i]t was getting to be dark." She never saw him leave before them. She testified that "he hung out with [them]" because he was "emotionally upset." Celeste also testified that "later that night," Carrick and a few others "hung out at [her and Elias’s] house."

¶16 On cross-examination, Celeste testified that she received a phone call from Husband, a "day or two" after the funeral, and that he told her "that somebody may have broken into the house the day of the funeral." She denied telling Husband that "Carrick went into the house to get a momento or a token." Celeste testified that she told Husband that it could have been Wife’s cousin’s son (Cousin) who broke in "because he is known for breaking and entering into their families’ homes on the day of funerals." Husband then testified on rebuttal that when he called Celeste, he asked her "why [Carrick] was in the house and what he was looking for." He said she responded that Carrick "was just in there looking for a momento or ... something sentimental." At this point, Trial Counsel objected on the basis of hearsay. The court overruled the objection, concluding it was "not offered for the truth" but "to impeach what [Celeste] denied."

¶17 Carrick testified in his own defense. He recounted meeting Matthew at Matthew’s work and riding with him to the funeral. He acknowledged wearing a feathered cowboy hat at the funeral and that its being characterized as a hat reminiscent of "a Man From Snowy River" was a "fair description." Carrick also testified that he stayed and talked "with a lot of people" in the parking lot for some time after the funeral and that Matthew dropped him off at Matthew’s work. He then drove home in his Dodge Caravan, where he switched cars to his father’s Kia and drove to Salt Lake City. When asked why witnesses would testify under oath that they saw him enter the home, Carrick responded that it was because "they didn’t approve of [his] relation[ship] with [Wife]" and were apparently willing to perjure themselves to frame him. The jury convicted Carrick of burglary.

The Appeal and Rule 23B Remand

¶18 Through new counsel, Carrick appealed. Carrick also filed, pursuant to rule 23B of the Utah Rules of Appellate Procedure, a motion alleging ineffective assistance of counsel and seeking remand to develop "critical facts" regarding Trial Counsel’s perceived failures and the resulting prejudice to Carrick.

¶19 Carrick argued that Trial Counsel provided ineffective assistance when he failed to (1) call "an expert witness to testify about the deficiencies and pitfalls of...

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7 cases
  • State v. Mottaghian
    • United States
    • Court of Appeals of Utah
    • January 21, 2022
    ...verdict. "We review a trial court's ruling on a motion for directed verdict for correctness." State v. Carrick , 2020 UT App 18, ¶ 22, 458 P.3d 1167 (quotation simplified). "In reviewing the denial of a motion for directed verdict based on a claim of insufficiency of the evidence, we will u......
  • State v. Hoffman
    • United States
    • Court of Appeals of Utah
    • December 23, 2021
    ...conviction. "We review a trial court's ruling on a motion for directed verdict for correctness." State v. Carrick , 2020 UT App 18, ¶ 22, 458 P.3d 1167 (quotation simplified). "In reviewing the denial of a motion for a directed verdict based on a claim of insufficiency of the evidence, we w......
  • Somer v. Somer
    • United States
    • Court of Appeals of Utah
    • June 11, 2020
    ...affirmative representation to the [district] court that the court is proceeding appropriately." State v. Carrick , 2020 UT App 18, ¶ 34, 458 P.3d 1167 (cleaned up). "Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue,......
  • State v. Mottaghian
    • United States
    • Court of Appeals of Utah
    • January 21, 2022
    ...verdict. "We review a trial court's ruling on a motion for directed verdict for correctness." State v. Carrick, 2020 UT App 18, ¶ 22, 458 P.3d 1167 (quotation simplified). "In reviewing the denial of a motion for directed verdict based on a claim of insufficiency of the evidence, we will up......
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