State v. Kingston, 20000751-CA.

• Citation: 2002 UT App 103,46 P.3d 761
• Decision Date: 11 April 2002
• Docket Number: No. 20000751-CA.,20000751-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. David O. KINGSTON, Defendant and Appellant.
• Court: Court of Appeals of Utah

46 P.3d 761

2002 UT App 103

STATE of Utah, Plaintiff and Appellee, v. David O. KINGSTON, Defendant and Appellant.

No. 20000751-CA.

Court of Appeals of Utah.

April 11, 2002.

Todd A. Utzinger, Salt Lake City, and David B. Thompson, Tesch, Vance & Miller, LLC, Park City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Laura B. Dupaix, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before BILLINGS, Associate P.J., and GARFF, Senior Judge¹ and THORNE, Jr., J.

OPINION

THORNE, Jr., Judge:

¶ 1 Appellant David Kingston (Kingston) appeals from convictions for Incest, a third degree felony, in violation of Utah Code Ann. § 76-7-102 (1999), and Unlawful Sexual Conduct with a Sixteen or Seventeen Year-Old, a third degree felony, in violation of Utah Code Ann. § 76-5-401.2 (1999). We affirm.

BACKGROUND

¶ 2 Kingston was charged with three counts of incest and one count of unlawful sexual conduct with a sixteen or seventeen year-old. The Information alleged that Kingston had sexual intercourse with his sixteen year-old niece M.N., (1) at her mother's home between January 1, 1998 and January 31, 1998; (2) at an apartment where M.N. lived on March 2, 1998; (3) at the same apartment between May 7, 1998 and May 15, 1998; and (4) also at the apartment between April 6, 1998 and April 19, 1998. The sexual intercourse that occurred between May 7, 1998 and May 15, 1998, resulted in the unlawful sexual conduct charge. The remaining sexual conduct resulted in the three incest charges.

¶ 3 A jury convicted Kingston on three of the four counts, finding him not guilty on one of the incest counts. Following his conviction, Kingston filed a motion for a new trial, which the trial court denied. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶ 4 Kingston first argues that his trial counsel rendered ineffective assistance. We review Kingston's claim as a matter of law. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376

.

¶ 5 Next, Kingston argues the trial court erred in conducting voir dire by bringing to the potential jurors' attention that Kingston was an alleged polygamist. Because Kingston failed to raise this claim to the trial court, we review it for plain error. See State v. Vargas, 2001 UT 5, ¶ 39, 20 P.3d 271

(stating "we will consider an issue raised for the first time on appeal if the trial court committed plain error").

¶ 6 Finally, Kingston argues that the prosecutor's repeated remarks at trial concerning polygamy amounted to prosecutorial misconduct. Because Kingston failed to raise this claim to the trial court, we review it for plain error. See State v. Saunders, 1999 UT 59, ¶ 30, 992 P.2d 951

(applying plain error analysis to prosecutorial misconduct claim that defendant failed to raise at trial).

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 7 First, Kingston raises an ineffective assistance of counsel claim. Kingston argues he received ineffective assistance because his trial counsel failed to (1) present an ex post facto defense to the unlawful sexual conduct charge; (2) adequately present to the jury M.N.'s inconsistent pretrial statements concerning the second incest charge; and (3) request a jury instruction naming M.N. as an accomplice to the criminal charges and directing the jury to view M.N.'s testimony with caution.

¶ 8 To prevail on a claim of ineffective assistance of counsel, Kingston must establish that (1) "his trial counsel's performance was `deficient,'" and (2) "he was `prejudiced' by the ineffective assistance." State v. Visser, 2001 UT App 215, ¶ 14, 31 P.3d 584 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "In determining whether counsel's performance was deficient, [this court]... `presume[s] that counsel has rendered adequate assistance.... Thus, if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel.'" State v. Parker, 2000 UT 51, ¶ 10, 4 P.3d 778 (citation omitted). With this in mind, we review Kingston's specific claims.

A. Ex post facto claim

¶ 9 Kingston claims that his trial counsel rendered ineffective assistance because he failed to raise an ex post facto defense to the unlawful sexual conduct charge. The Information alleged that Kingston and M.N. had sexual intercourse "on or about May 7, 1998 through May 15, 1998." The applicable unlawful sexual conduct statute, Utah Code Ann. § 76-5-401.2, became effective May 4, 1998.² Kingston argues that M.N.'s inability to identify a specific date as to when the two had sexual intercourse should have prompted trial counsel to argue that the sexual conduct might have occurred before the effective date of section 76-5-401.2.

¶ 10 Kingston offers no factual support to bolster his claim that the sexual conduct occurred before May 4, 1998. Indeed, as the State points out, May 4, 1998, fell on a Monday, and M.N. has consistently indicated that the sexual conduct occurred during the first week of May on a "Tuesday, Wednesday, or Thursday."

¶ 11 Nevertheless, the record shows that trial counsel's strategy was to deny that any sexual conduct ever occurred. We cannot say, in light of trial counsel's defense strategy, that it was not "sound trial strategy" to forego a factually unsupportable ex post facto defense. Parker, 2000 UT 51 at ¶ 10, 4 P.3d 778. We conclude that trial counsel's failure to raise an ex post facto defense does not amount to ineffective assistance. Kingston's first claim therefore fails.

B. M.N.'s inconsistent pretrial statements and trial testimony.

¶ 12 Kingston next argues that trial counsel failed to "demonstrate for the jury that M.N. had given numerous contradictory pretrial statements regarding" the second incest charge, which occurred on March 2, 1998. We disagree.

¶ 13 Our review of the record reveals that trial counsel brought to light many of the inconsistencies in both M.N.'s pretrial statements and her trial testimony. For example, trial counsel pointed out to the jury that M.N. had contradicted herself when she testified that she and Kingston had engaged in sexual intercourse at her mother's house. M.N. had previously stated that the two never had sexual intercourse at her mother's home. Trial counsel also spent a great deal of time during his closing argument highlighting these inconsistencies.

¶ 14 In sum, we find no deficiency in trial counsel's performance as it relates to presenting M.N.'s inconsistent statements to the jury. Indeed, trial counsel relied on these inconsistencies to bolster his argument that M.N. had lied about having sexual intercourse with Kingston. We conclude that Kingston's second claim that trial counsel was deficient also fails.

C. Trial counsel's failure to request a favorable jury instruction.

¶ 15 Finally, Kingston argues that trial counsel's failure to request a favorable jury instruction naming M.N. as an accomplice to the crimes charged and directing the jury to view M.N.'s testimony with caution, denied Kingston effective assistance. Kingston relies upon State v. Foust, 588 P.2d 170 (Utah 1978), and Utah Code Ann. § 77-17-7 (1999) to support his claim.

¶ 16 In Foust, the Utah Supreme Court held that an incest victim would be an accomplice to the crime and her testimony would require corroboration if (1) the victim was of the age of consent at the time the sexual act occurred, and (2) a jury determined that she had consented to the sexual act. See id. at 173. The court relied, in part, on Utah Code Ann. § 77-31-18 (1978), which stated, "[a] conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence." Id. at 172 n. 1.

¶ 17 Under Foust, assuming that M.N. had consented to the sexual acts, she would be an accomplice and her testimony would require corroboration. However, Kingston's reliance on Foust is misplaced because the law changed after Foust. Utah Code Ann. § 77-17-7 (1999), now expressly states that "A conviction may be had on the uncorroborated testimony of an accomplice." Id. Therefore, any possible benefit trial counsel may have acquired relying on Foust for a favorable jury instruction, namely instructing the jury that M.N.'s testimony needed to be corroborated, was lost when the Utah Legislature did away with the accomplice testimony corroboration requirement in 1979.³

¶ 18 Finally, without the benefit of requiring corroboration, we cannot say that it was not sound trial strategy to forego asking for a jury instruction labeling M.N. as a consenting accomplice because (1) it had a potential to inflame the jury, and (2) trial counsel's defense was that the two never had sexual intercourse.

¶ 19 Next, Kingston relies upon Utah Code Ann. § 77-17-7(2) (1999), which states:

(2) In the discretion of the court, an instruction to the jury may be given to the effect that such uncorroborated testimony should be viewed with caution, and such an instruction shall be given if the trial judge finds the testimony of the accomplice to be self contradictory, uncertain or improbable.

Id. We find Kingston's reliance on this subsection unpersuasive. As the Utah Supreme Court stated in Parker, "`if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel.'" Parker, 2000 UT 51 at ¶ 10, 4 P.3d 778 (citation omitted).

¶ 20 First, such a cautionary instruction is left to the discretion of the trial court, and therefore, there is a possibility that the trial court may have denied such a request. Perhaps more importantly, the record shows that such an instruction would not have affected the jury's ultimate conclusion. Trial counsel aptly demonstrated for the jury the inconsistencies in M.N.'s pretrial statements and her trial testimony. Further, the crux of trial counsel's case was that M.N. had fabricated her story to get away from the Kingston family, and highlighted these inconsistencies in his closing argument....