State v. Ekstrom

• Decision Date: 15 November 2013
• Docket Number: No. 20111111–CA.,20111111–CA.
• Citation: 750 Utah Adv. Rep. 5,316 P.3d 435
• Parties: STATE of Utah, Plaintiff and Appellee, v. Angela Dawn EKSTROM, Defendant and Appellant.
• Court: Utah Court of Appeals

316 P.3d 435

750 Utah Adv. Rep. 5

STATE of Utah, Plaintiff and Appellee,

v.Angela Dawn EKSTROM, Defendant and Appellant.

No. 20111111–CA.

Court of Appeals of Utah.

Nov. 15, 2013.

Third District Court, Salt Lake Department, No. 101904997; The Honorable Sheila K. McCleve; The Honorable Randall N. Skanchy.¹

Ronald Fujino, for Appellant.

John E. Swallow and John J. Nielsen, for Appellee.

Judge CAROLYN B. McHUGH authored this Opinion, in which Judge MICHELE M. CHRISTIANSEN and Senior Judge RUSSELL W. BENCH concurred. ²

Opinion

McHUGH, Judge:

¶ 1 Angela Dawn Ekstrom appeals from her conviction for aggravated assault, a third degree felony, seeUtah Code Ann. § 76–5–103 (LexisNexis 2008) (current version at id. (2012)). Ekstrom claims that there was insufficient evidence of “serious bodily injury,” that trial counsel performed deficiently in approving jury instructions that failed to define “serious bodily injury,” that a police officer improperly opined on the ultimate issue as an undisclosed expert, and that trial counsel performed ineffectively by failing to call an eyewitness identification expert. We conclude that there was sufficient evidence presented to support the jury's verdict but that the jury was not properly instructed on the definition of “serious bodily injury.” As a result, we reverse Ekstrom's conviction and remand for a new trial, without considering the other issues she advances on appeal.

BACKGROUND ³

¶ 2 On June 26, 2010, an individual (Witness) was driving when he saw and heard Ekstrom and a man (Victim) shouting at each other “really close, like right at each other's face[ ]” near an intersection in Salt Lake City. Out of concern, Witness pulled his car to the side of the road to observe the incident. Ekstrom began hitting Victim with her hands, and Victim responded by embracing Ekstrom in an apparent effort to stop her from hitting him. After a few seconds, Victim released Ekstrom and began walking toward a bicycle that had been left nearby. Witness saw Ekstrom grab “what looked to be an irrigation pipe, [a] sprinkler pipe[,] and beg[in] to strike [Victim] with it.” Witness called 911 and reported the incident. Witness saw Ekstrom land numerous blows to Victim's legs, hand, and torso and saw her attempt to strike Victim in the head. As Victim retreated on the bicycle, Ekstrom struck Victim on the back, breaking the pipe.

¶ 3 A few minutes later, police officers arrived and found Ekstrom a couple blocks from the intersection where the incident had occurred. Ekstrom told one of the officers that she had a “verbal dispute” with her boyfriend near the intersection, after which she had suffered a seizure and had just awoken at her current location. Police officers also spoke with Victim and took several photographs of the injuries to his head and face. The item used to strike Victim was never found.

¶ 4 On July 14, 2010, Ekstrom was charged with aggravated assault. At a jury trial on May 24, 2011, Witness and two of the responding officers testified but Victim and Ekstrom did not. During cross-examination Witness acknowledged, “When I saw [Ekstrom] grab a weapon and begin to strike [Victim] with a weapon, I didn't know that it was a pipe, I didn't know what it was. It looked to be an irrigation pipe....” Witness did not provide any other information as to whether the pipe was made of metal or plastic.

¶ 5 The prosecution introduced the photographs of Victim's head and face into evidence and then asked one of the responding officers (First Officer) whether the injuries he saw were consistent with Victim having been hit on the head with a pipe. First Officer said yes. During cross-examination trial counsel asked First Officer, “[W]hen you were told pipe ... are you picturing a metal pipe or a plastic pipe?” First Officer responded, “At that time, a metal pipe.” On redirect, the prosecution asked First Officer to give his opinion of what had happened to Victim. Over trial counsel's objection, the trial court permitted First Officer to testify that Victim “was assaulted with a blunt object that was described as a pipe.”

¶ 6 The jury found Ekstrom guilty of aggravated assault. The trial court sentenced Ekstrom to an indeterminate prison term not to exceed five years but then suspended that sentence and ordered Ekstrom to serve six months in jail and three years of probation. Ekstrom appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 First, Ekstrom argues that the evidence was insufficient to establish either that Victim suffered “serious bodily injury” or that Ekstrom used a “dangerous weapon.” “An appellate court may overturn a criminal conviction for insufficiency of evidence only ‘when it is apparent that there is not sufficient competent evidence as to each element of the crime charged for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime.’ ” State v. Gardner, 2007 UT 70, ¶ 24, 167 P.3d 1074 (quoting State v. Boyd, 2001 UT 30, ¶ 13, 25 P.3d 985).

¶ 8 Second, Ekstrom argues that the jury instructions improperly omitted the definition of “serious bodily injury.” Because this issue was not preserved, Ekstrom argues that her trial counsel rendered ineffective assistance in failing to ensure that such an instruction was included. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.⁴

¶ 9 Because we reverse Ekstrom's conviction and remand for a new trial based on her trial counsel's ineffective performance, we need not reach her other claims raised on appeal.

ANALYSIS

I. Sufficiency of the Evidence

¶ 10 Ekstrom first challenges the sufficiency of the evidence to support the conviction of aggravated assault. In particular, Ekstrom claims that the evidence did not establish the required elements of “serious bodily injury” and the “use of a dangerous weapon,” because Victim did not actually suffer serious bodily injury. Ekstrom's argument misconstrues the elements of aggravated assault.

¶ 11 Utah Code section 76–5–103 provides in part,

(1) A person commits aggravated assault if he commits assault as defined in Section 76–5–102[ ⁵] and he:

(a) intentionally causes serious bodily injury to another; or

(b) under circumstances not amounting to a violation of Subsection (1)(a), uses a dangerous weapon as defined in Section 76–1–601 or other means or force likely to produce death or serious bodily injury. Utah Code Ann. § 76–5–103(1) (LexisNexis 2008) (current version at id. (2012)). Here, the State argues that the facts supported a conviction for aggravated assault because the pipe used by Ekstrom to hit Victim is a dangerous weapon. The Utah Legislature has defined “dangerous weapon” to include “any item capable of causing death or serious bodily injury.” Id.§ 76–1–601(5) (LexisNexis 2012).

¶ 12 Thus, to prove aggravated assault, the State was not required to establish that Victim actually suffered “serious bodily injury.” State v. Peterson, 681 P.2d 1210, 1219 (Utah 1984) (noting, under the variant of aggravated assault requiring the state to prove the use of “such means of force likely to produce death or serious bodily injury,” that “[i]t is not necessary to prove that death or serious bodily injury occurred, but only that the actor used means or force likely to have that result” (citation and internal quotation marks omitted)); see also State v. Brown, 853 P.2d 851, 860 (Utah 1992) (rejecting a sufficiency of the evidence challenge to an aggravated assault charge where defendant threatened, but did not harm, victim with a wrench); State v. C.D.L., 2011 UT App 55, ¶ 18, 250 P.3d 69 (“Even though the evidence in this case shows that Husband did not use his vehicle in a way that actually caused death or serious bodily injury, there is sufficient evidence from which a reasonable jury could conclude that Husband purposefully and angrily used his vehicle as a ramming device to hit Wife's vehicle—a use that the jury could reasonably conclude was capable of causing serious bodily injury or death.”). Instead, Ekstrom could be found guilty of aggravated assault if she used an item capable of causing serious bodily injury during the altercation. SeeUtah Code Ann. § 76–1–601(5) (defining “dangerous weapon”); State v. Ireland, 22 Utah 2d 17, 447 P.2d 375, 376 (1968) (stating that a jury should decide whether a razor blade was used in a way that rendered it a dangerous weapon); C.D.L., 2011 UT App 55, ¶ 16, 250 P.3d 69 (“[B]ecause an item must simply be capable of causing death or serious bodily injury, an item not necessarily manufactured as a dangerous weapon may nonetheless become one.”).⁶ Accordingly, we examine the “evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict” to determine if there is sufficient evidence to support a finding that Ekstrom used an item capable of causing serious bodily injury during her altercation with Victim. See State v. Rowley, 2008 UT App 233, ¶ 15, 189 P.3d 109 (citation and internal quotation marks omitted).

¶ 13 At the close of the State's case, Ekstrom moved for a directed verdict based, in part, on the State's failure to produce evidence of the type of pipe involved. According to Ekstrom, only a metal pipe could constitute a dangerous weapon. However, we agree with the State and the trial court that irrespective of whether the pipe was metal or plastic, the jury could have found that the pipe was capable of causing serious bodily injury when used to strike Victim repeatedly. See, e.g., Sanders v. State, 623 So.2d 428, 430–31 (Ala.Crim.App.1993) (holding that a PVC pipe with a jagged edge was a deadly weapon); People v. Macklem, 149 Cal.App.4th 674, 57 Cal.Rptr.3d 237, 240, 242 (2007) (affirming a defendant's conviction for assault with a deadly weapon based on the defendant's use of a PVC pipe in the attack); State v. Boiteux, 74 So.3d 731, 735–36 (La.Ct.App.2011) (holding that evidence was...