State v. Chavez-Espinoza

• Decision Date: 22 May 2008
• Docket Number: No. 20061090-CA.,20061090-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Uriel CHAVEZ-ESPINOZA, Defendant and Appellant.
• Court: Utah Supreme Court

186 P.3d 1023

2008 UT App 191

STATE of Utah, Plaintiff and Appellee, v. Uriel CHAVEZ-ESPINOZA, Defendant and Appellant.

No. 20061090-CA.

Supreme Court of Utah.

May 22, 2008.

Randall T. Gaither, Salt Lake City, for appellant.

Mark L. Shurtleff, atty. gen., and Jeanne B. Inouye, asst. atty. gen., Salt Lake City, for appellee.

Before GREENWOOD, P.J., THORNE, Associate P.J., and BENCH, J.

OPINION

GREENWOOD, Presiding Judge:

¶ 1 Defendant Uriel Chavez-Espinoza appeals from his convictions of one count of aggravated burglary, a first degree felony, see Utah Code Ann. § 76-6-203(2) (2003); one count of aggravated assault, a second degree felony, see id. § 76-5-103(2); and three counts of simple assault, a class A misdemeanor, see id. § 76-5-102(3)(a). Defendant was sentenced to nine years to life for the aggravated burglary conviction to run concurrently with a prison term of one to fifteen years for the aggravated assault and with sixty-day jail terms for each of the simple assaults. Defendant argues, inter alia, that the trial court made numerous errors and that he received ineffective assistance of counsel. We affirm.

BACKGROUND¹

¶ 2 On December 24, 2005, Defendant arranged for his cousin, Adrian Ramirez, to purchase twenty dollars worth of cocaine from Defendant's friend. After the cocaine "did not work," Ramirez returned it to Defendant's friend for a refund of the purchase price.

¶ 3 One week later, at around 3:00 a.m. on January 1, 2006, Defendant, apparently upset at Ramirez for returning the cocaine, called Ramirez and threatened him. Defendant was insistent that Ramirez should meet with him to fight, but Ramirez told Defendant that he was not interested. Unable to pacify Defendant, Ramirez ended the escalating phone conversation and went back to sleep.

¶ 4 Approximately one hour later, someone knocked on the door of Ramirez's family's apartment where Ramirez was located. As soon as Ramirez opened the door, Defendant swung his fist into the apartment and hit Ramirez. Defendant was accompanied by four friends, three of whom entered the apartment with broken bottles to fight others present in the apartment — including Rosa Solis. One of Defendant's friends pulled Ramirez out of the apartment, at which point Defendant hit Ramirez on the face approximately seven times. As the rest of the melee poured from the apartment, Defendant's friends also began hitting Ramirez. Temporarily escaping the fighting, Ramirez ran to the parking lot and hid underneath a truck.

¶ 5 Eventually, Ramirez's father broke up the fighting outside the apartment door and "was able to separate [his] family from [Defendant] and [Defendant's] friends." Defendant left the exterior hallway and went to the parking lot where he located Ramirez hiding underneath the truck. After pulling Ramirez from his hiding spot, Defendant and all four of Defendant's friends began hitting Ramirez. Defendant sat on Ramirez's chest and held him down while saying, "You're going to die, dog." While sitting on Ramirez's chest, Defendant repeatedly asked for one of his friends to "hand [him] the knife." Just prior to passing out, Ramirez could feel his head being cut.

¶ 6 As a result of this incident, Defendant was charged with one count of aggravated burglary, one count of child abuse, one count of aggravated assault, and four counts of simple assault. In addition, Defendant was charged, on all counts, with criminal responsibility for the conduct of another, see Utah Code Ann. § 76-2-202 (2003), and with committing all the offenses in concert with two or more persons (the gang-enhancement statute), see id. § 76-3-203.1 (Supp.2007). A jury convicted Defendant of aggravated burglary, aggravated assault, and three counts of simple assault. The jury also separately found that Defendant had committed all of these offenses in concert with two or more persons. However, Defendant was acquitted on one count of simple assault and on the one count of child abuse. Defendant now appeals his convictions, arguing, in essence, that the trial court made numerous errors and that he received ineffective assistance of counsel.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Although Defendant presents numerous issues for review on appeal, for reasons detailed below, we decline to address many of Defendant's claims for lack of preservation, inadequate briefing, or failure to marshal the evidence. A claim will generally not be reviewed on appeal unless it is properly preserved in the trial court. See Utah R.App. P. 24(a)(5); State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. Likewise, a claim will not be reviewed by an appellate court where the "brief wholly lacks legal analysis and authority to support ... [the] argument." State v. Wareham, 772 P.2d 960, 966 (Utah 1989). Finally, in order to challenge a trial court's factual findings, a party must marshal all the evidence in favor of the very findings they oppose on appeal. See Utah R.App. P. 24(a)(9); West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App.1991). Where the challenging party fails to adequately marshal the evidence, we will generally presume that the record supports the trial court's factual findings. See Martinez v. Media-Paymaster Plus, 2007 UT 42, ¶¶ 18-20, 164 P.3d 384.

¶ 8 Nevertheless, Defendant argues that he received ineffective assistance of counsel because his counsel failed to maintain sufficient contact with Defendant such that counsel could not adequately prepare for trial. "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).

ANALYSIS

I. Inconsistent Verdicts and Lesser Included Offense Instruction

¶ 9 Defendant first argues that the guilty verdict on the aggravated burglary charge is so inconsistent with the not guilty verdict on the charge of assault with respect to Rosa Solis that a new trial is warranted. Separately, Defendant argues that the trial court erred in failing to sua sponte instruct the jury as to the potential lesser included offense of criminal trespass. "As a general rule, claims not raised before the trial court may not be raised on appeal." Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. We will review an issue only if the appealing party's brief provides "(A) citation to the record showing that the issue was preserved in the trial court; or (B) a statement of grounds for seeking review of an issue not preserved in the trial court." Utah R.App. P. 24(a)(5). An issue is properly preserved in the trial court where the record shows that "(1) the issue is raised in a timely fashion; (2) the issue is specifically raised; and (3) the issue is supported by evidence or relevant legal authority." Hatch v. Davis, 2004 UT App 378, ¶ 56, 102 P.3d 774.

¶ 10 Defendant fails to cite to the record to show that the issues of verdict inconsistency and instruction as to the lesser included offense were preserved in the trial court. Furthermore, we have found no record evidence that Defendant raised these issues at all, that he raised them specifically, or that the issues were supported by evidence or legal authority. See id. Moreover, Defendant offers no alternative grounds upon which we may review these unpreserved issues.² As such, we decline to review Defendant's claims that the inconsistency of the verdicts is sufficient to warrant a new trial or that the trial court erred in failing to instruct the jury as to the lesser included offense of criminal trespass.³

II. Jury Instructions

¶ 11 Defendant also argues that the instructions⁴ given to the jury were manifestly unjust in that they incorrectly stated the law and failed to instruct as to the requisite mens rea. "Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid manifest injustice." Utah R.Crim. P. 19(e). "However, if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction, we will not review the instruction under the manifest injustice exception." State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111. Adherence to this rule not only "discourages parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal," but also "fortifies our long-established policy that the trial court should have the first opportunity to address the claim of error." Id. (internal quotation marks omitted).

¶ 12 Defendant contends that the jury instructions in their totality were improper because they failed to adequately define the specific intent for all of the charged offenses and they allowed for an impermissibly significant increase in the severity of Defendant's potential punishment.⁵ Despite these contentions, Defendant fails to point to any record evidence showing that he objected to, and thereby preserved, these issues in the trial court. In fact, after an off-the-record discussion with counsel for both parties, the trial court asked if either party "wish[ed] to make a record as to jury instructions that were or were not given." In response, Defendant's counsel stated that his "only objection ... would be to instruction number 36."⁶ By stating clearly on the record that he only objected to jury instruction 36, Defendant's counsel "affirmatively represented to the [trial] court that he ... had no objection to the [remaining] jury instruction[s]." See id. Thus, we will not review Defendant's claims of manifest injustice with respect to jury instructions given or omitted.

¶ 13 In the alternative, Defendant alleges that his counsel was ineffective in failing to object to the jury instructions as presented at trial. To prevail on an ineffective assistance claim, Defendant "must show that his trial counsel's performance was deficient, in that it `fell below an objective standard...