State v. Ellifritz

• Decision Date: 27 May 1992
• Docket Number: No. 910478-CA,910478-CA
• Citation: 835 P.2d 170
• Parties: STATE of Utah, Plaintiff and Appellee, v. Duane ELLIFRITZ, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 170

835 P.2d 170

STATE of Utah, Plaintiff and Appellee, v. Duane ELLIFRITZ, Defendant and Appellant.

No. 910478-CA.

Court of Appeals of Utah.

May 27, 1992.

Tom Jones, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen. and J. Kevin Murphy (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before GARFF, GREENWOOD and RUSSON, JJ.

OPINION

GREENWOOD, Judge:

Defendant, Duane Ellifritz, appeals from his conviction for aggravated sexual assault, a first degree felony, in violation of Utah Code Annotated section 76-5-405 (1990). We affirm.

FACTS ¹

During the night and early morning of June 11-12, 1990, defendant, his stepdaughter, T.N., and her friend, J.K., consumed alcohol and played strip poker at the home of defendant and T.N. Both of the young women were fifteen years old. J.K. alleged that after the poker game, defendant caressed her breasts and made lewd advances toward her.

J.K. became ill from her consumption of alcohol and went into the bathroom to take a bath. She heard T.N. calling out from defendant's bedroom. J.K. went into the bedroom and saw defendant on top of T.N. Both defendant and T.N. were naked. T.N. left the bedroom and, wearing only a towel, ran to a neighbor's house. The neighbor called the police. The police arrived and took T.N. to a hospital emergency room. According to the examining physician, T.N. sustained injuries consistent with an attempted rape or actual intercourse. She had a bleeding tear in the genital area and a number of abrasions and bruises on various parts of her body.

Defendant denied that he had sexually assaulted T.N. or made sexual advances toward J.K. He maintained that the girls' screaming and drunken behavior had awakened him, and insisted that the remainder of their story was a fabrication.

Defendant was charged by information with two criminal counts. Count I was aggravated sexual assault, a first degree felony, for his alleged attack on T.N., and Count II was forcible sexual abuse, a second degree felony, for his conduct with J.K.

Prior to trial, the court conducted voir dire questioning of prospective jurors. The court asked questions which defense counsel and the prosecutor had submitted to the court. The court conferred with defense counsel and the prosecutor at the beginning of and at least twice during the voir dire process. The judge and both attorneys met in chambers after voir dire was completed. Defendant requested that he be excused in order to use the bathroom. In chambers, the judge gave his view of which panelists should be excused for cause. He also suggested a list of panelists who might properly be considered for the jury. Both attorneys were asked for their responses to these proposed lists. After discussion, neither attorney disagreed with either the judge's list of panelists challengeable for cause or the list of prospective jurors.

After challenges for cause, thirteen of the original twenty-three prospective jurors remained. The trial court informed counsel that a trial could only proceed if some of the peremptory challenges were waived. The prosecution waived two and defense counsel waived one. They alternately exercised the remaining five peremptory challenges, and the final jury of eight was impaneled.

Count I of the information, the aggravated sexual assault charge, was amended twice prior to trial. The second amended information read as follows on Count I:

AGGRAVATED SEXUAL ASSAULT, a First Degree Felony, in violation of Section 76-5-405 ... in that Duane Ellifritz did, on or about June 11, 1990 ... in the course of a rape or attempted rape, or forcible sodomy did cause bodily injury to [T.N.].

There is no indication in the record that the information was ever read to the jury. The prosecutor, however, did define aggravated sexual assault in his opening statement as follows: "It will be explained to you that aggravated sexual assault means either rape, attempted rape, sodomy--forcible sodomy ... forcible sexual abuse or attempted forcible sexual abuse when somebody is injured."

When jury instructions were presented, the instruction on aggravated sexual assault omitted the reference to "forcible sodomy" that had appeared in the information and instead stated:

[P]roof of the commission of the crime of Aggravated Sexual Assault as charged in Count I of the Information requires proof beyond a reasonable doubt of each of the following: That Defendant ... did, during the course of a rape, attempted rape, forcible sexual abuse, or attempted forcible sexual abuse; cause bodily injury to [T.N.].

Instead of repeating the exact language of the information, the jury instruction used the statutory definition of aggravated sexual assault found in Utah Code Annotated section 76-5-405 (1990), but deleted the reference to sodomy. Defense counsel did not object to the instruction nor did he object to other instructions which defined forcible sexual abuse.

After a trial, the jury found defendant guilty of aggravated sexual assault, but acquitted him of forcible sexual abuse.

We address three issues raised by defendant on appeal: (1) Did the trial court commit reversible error in the jury selection process; (2) Did the trial court commit reversible error when it presented a jury instruction on aggravated sexual assault that correctly stated the law but differed from the language in the information charging defendant; and (3) Does defense counsel's failure to object to the jury selection process or to the jury instruction constitute ineffective assistance of counsel?

STANDARD OF REVIEW

At trial, defense counsel passed the jury for cause, and did not object to the jury instructions. When objections are not made at trial and properly preserved, appellate review is under a "plain error" standard. Plain errors are those that "should have been obvious to the trial court and that affect the substantial rights of the accused." State v. Morgan, 813 P.2d 1207, 1210-11 (Utah App.1991) (citing State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989)); Utah R.Evid. 103(d). ² The appellant must be able to demonstrate a reasonable likelihood that absent the plain error, the outcome at trial "would have been more favorable." State v. Verde, 770 P.2d 116, 122 (Utah 1989). There is a sufficient likelihood of a different result when the appellate court's confidence in the verdict is undermined. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); State v. Knight, 734 P.2d 913, 919-20 (Utah 1987).

Defendant also raises the issue of ineffective assistance of counsel as an alternative means to have the alleged jury selection and jury instruction errors examined on appeal. A defendant who claims ineffective assistance of counsel must show both that his or her counsel rendered a deficient performance in some demonstrable manner and "that a reasonable probability exists that except for ineffective counsel, the result would have been different." Verde, 770 P.2d at 118-19 (quoting State v. Lovell, 758 P.2d 909, 913 (Utah 1988)); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Defendant has the burden of demonstrating that counsel's "performance fell below an objective standard of reasonable professional judgment," State v. Carter, 776 P.2d 886, 893 (Utah 1989), and that counsel's actions were not conscious trial strategy. See State v. Jones, 823 P.2d 1059, 1063 (Utah 1991); State v. Bullock, 791 P.2d 155, 159 (Utah 1989). Also, when counsel makes a "conscious decision to refrain from objecting," we may decline to consider an argument of plain error. Bullock, 791 P.2d at 158-59.

When defendant raises the issues of both plain error and ineffective assistance of counsel, "a common standard is applicable." Verde, 770 P.2d at 124 n. 15. The common standard exists because plain error requires a showing that absent the error, there is a substantial likelihood of a more favorable outcome for defendant, and similarly, the ineffective assistance standard requires a showing that but for ineffective assistance of counsel, the result would likely have been different for defendant. Failure to meet the plain error requirement of prejudice means that defendant likewise fails to meet the required showing under the ineffective assistance of counsel standard. See Verde, 770 P.2d at 124.

We review the trial court's participation in the jury selection process from the record, and therefore determine as a matter of law whether procedural error occurred and further, whether the error affected defendant's substantial rights. See Utah R.Crim.P. 30(a) (an error which does not affect the defendant's substantial rights shall be disregarded).

When a trial court rejects counsel's challenge for cause to a particular juror, the standard of appellate review is whether the trial court abused the broad discretion it is afforded in seating a fair and impartial jury. State v. Bishop, 753 P.2d 439, 448 (Utah 1988); State v. Woolley, 810 P.2d 440, 442 & n. 2 (Utah App.), cert. denied, 826 P.2d 651 (Utah 1991). Challenges to jury instructions ordinarily present a question of law, reviewed on appeal without deference to the trial court. State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).

When the question of trial counsel ineffectiveness is raised for the first time on appeal and our review is confined to the trial court record, we determine, as a matter of law, whether defense counsel's performance constituted ineffective counsel. State v. Johnson, 823 P.2d 484, 487-88 (Utah App.1991).

JURY SELECTION

Procedure

Defendant argues that the trial court departed from statutorily mandated procedures for impaneling the jury, and in doing so, improperly insinuated itself into the jury selection process, depriving defendant of a fair trial.

Utah Rule of Criminal Procedure 18 delineates the following method for jury selection:

(a) The clerk shall draw by lot and call the...