State v. Levering, 052920 UTCA, 20190198-CA

Docket Nº:20190198-CA
Opinion Judge:CHRISTIANSEN FORSTER, JUDGE.
Party Name:State of Utah, Appellee, v. Roy Ben Levering, Appellant.
Attorney:Nicolas D. Turner, Attorney for Appellant Brock R. Belnap and Joseph M. Hood, Attorneys for Appellee
Judge Panel:Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
Case Date:May 29, 2020
Court:Court of Appeals of Utah

2020 UT App 82

State of Utah, Appellee,

v.

Roy Ben Levering, Appellant.

No. 20190198-CA

Court of Appeals of Utah

May 29, 2020

Fifth District Court, St. George Department The Honorable Jeffrey C. Wilcox No. 161501998

Nicolas D. Turner, Attorney for Appellant

Brock R. Belnap and Joseph M. Hood, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.

OPINION

CHRISTIANSEN FORSTER, JUDGE.

¶1 Roy Ben Levering was convicted of assault (domestic violence), domestic violence in the presence of a child, and criminal trespass (domestic violence). On appeal, he argues that his counsel was constitutionally ineffective in several respects and that the district court erred in not admitting certain evidence. We affirm.

BACKGROUND

¶2 The victim (Victim) and her friend entered into a written lease agreement for a house (Residence) in March 2015. Victim's daughter also lived at the Residence and shared a bedroom with Victim. Victim and Levering had a romantic relationship, and she allowed Levering to stay in the Residence for periods of time. Victim testified that she and Levering initially used illegal drugs during his stays. Levering never had his own bedroom in the Residence. Rather, "[h]e would just stay up for . . . five or six days and then crash out wherever he sat down." Victim further testified that Levering never paid rent or bills and never had a key to the Residence.

¶3 Levering admitted that he was not a party to the lease but asserted that he regularly slept on the couch or in Victim's bedroom. Levering also asserted that he was given a key at one time for "[a] couple months" but that Victim took the key from him when they were not getting along.

¶4 Over the course of nearly a year, Victim repeatedly asked Levering to discontinue staying at the Residence, but he refused. Victim testified that when she asked him to leave, Levering would respond that she "would go down with him if [she] were to turn him in," meaning that Levering would call the Division of Child and Family Services (DCFS) and report that Victim was using drugs with him, and DCFS would take Victim's daughter as a result. Victim summed up the living arrangement: "[Levering] would leave for days at a time and come back. And when he was there, [it was] just kind of a 'friends close, enemies closer' type situation. I just wanted him gone. And he just wouldn't go." She elaborated, "I can't tell you how many times I told him to leave. I told him in front of his friends. I told him a hundred times to leave and to leave us alone."

¶5 Victim testified that Levering powered a space heater in his van from December 2015 through February 2016 using electricity from the Residence, resulting in a power bill of over $1, 500- which she could not pay-and her power being shut off. By the end of that February, Victim had endured enough, and, out of concern for the well-being of her daughter, she insisted that Levering leave. She testified that she was not using drugs and no longer feared Levering's threats. Levering left the Residence, taking with him all his possessions and vehicles.

¶6 On April 12, 2016, Levering informed Victim that he was in town. She responded, via Facebook Messenger, by telling him "that he was absolutely not welcome" at her home. The next day, Levering, unannounced and uninvited, walked in the back door of the Residence "holding a bong and a bag of marijuana." Victim, whose daughter was in an adjoining room watching television, responded to Levering's intrusion by telling him that "he wasn't welcome," headbutting him, and "physically remov[ing] him from" the Residence. She followed up by shutting the door and locking it. Levering forced his way back into the Residence by breaking through the locked door. Levering admitted that he went back in the house after his expulsion, explaining that he "came back in to defend [his] innocence because [Victim] was trying to tell a lie." Victim walked toward Levering, "asked him what he was doing back in the house," and told him to leave. Victim described his reaction: He grabbed my arm. He spun me around and he held my hands behind me. He dropped me down to the ground in a bear hug. He squeezed me really hard. I couldn't breathe. My face was against the floor. I was screaming at him to get off of me. And then I heard my little girl screaming at him to get off of me.

Victim "grabbed [Levering's testicles] and squeezed as hard as [she] could." Levering released her and ran out the back door. Victim testified that she suffered bruises to her arm and knee as a result of the assault.

¶7 Levering was charged with assault (domestic violence), domestic violence in the presence of a child, and criminal trespass (domestic violence).

¶8 Prior to trial and in an effort to support a self-defense argument, Levering moved the court to admit evidence of Victim's "prior violent acts, violent propensities, and patterns of abuse, violence, within the relationship between" him and Victim, specifically evidence produced at a protective order hearing regarding Victim's conduct that occurred after the assault. The district court ruled that any "pattern of abuse or violence" that occurred after the assault would not "have anything to do with what's in [Levering's] head at the time . . . that he's allegedly protecting himself from [Victim's] violent acts." The court explained that violent acts committed by Victim that "happened [after the assault] as a reason that [Levering] was justified in using force at the time of the incident [were] not relevant." The court therefore excluded that evidence. However, the court clarified that "any acts, prior violent acts, propensities, patterns of abuse or violence in the parties' relationship, leading up until the time of the incident [were] fair game."

¶9 After the close of evidence, the court gave jury instructions. Relevant to the issues on appeal, the district court instructed the jury as follows. Instruction No. 9 addressed the burden of proof: A defendant in a criminal case is presumed to be innocent until proven guilty beyond a reasonable doubt. The presumption of innocence benefits the defendant throughout the trial until the plaintiff meets this burden. The burden never shifts to a defendant to call any witnesses, produce any evidence, or to disprove any allegation. All presumptions of law are in favor of innocence. If there is a reasonable doubt as to whether guilt is sufficiently proven, the defendant is entitled to a verdict of not guilty.

The state has the burden of proving the defendant guilty beyond all reasonable doubt. . . .

¶10 Instruction No. 14, which addressed the charge of criminal trespass (domestic violence), listed the elements of the crime and instructed the jury that it could convict Levering only if the State proved each element beyond a reasonable doubt. But it did not include a provision about the open-to-the-public defense to prosecution for criminal trespass. See Utah Code Ann. § 76-6-206(4) (LexisNexis 2017) (stating that a defense to prosecution for criminal trespass is that "(a) the property was at the time open to the public; and (b) the actor complied with all lawful conditions imposed on access to or remaining on the property").1

¶11 Instruction No. 15 addressed the charge of assault (domestic violence), stating that Levering could not be convicted unless the jury found beyond a reasonable doubt each of the following elements: "One, the defendant committed an act with unlawful force or violence that caused or created a substantial risk of bodily injury to another; and two, the act involved domestic violence; three, the defendant did so intentionally, knowingly, or recklessly; and four, the defendant did not act in self-defense." Jury Instruction Nos. 16 and 17 related to self-defense, but neither instruction specified that the State carried the burden of proof to show that Levering did not act in self-defense.

¶12 The jury found Levering guilty as charged. Levering appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Levering raises two issues on appeal. First, he claims that trial counsel was constitutionally ineffective for failing to object to the jury instructions. He asserts that counsel should have objected to Instruction Nos. 16 and 17 for lacking a burden of proof provision. He also contends that counsel should have objected to Instruction No. 14 because it did not include a defense to criminal trespass. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Galindo, 2019 UT App 171, ¶ 6, 452 P.3d 519 (quotation simplified).

¶14 Second, Levering asserts that the district court erred in not allowing the defense to present certain evidence to demonstrate that he was justified in defending himself against Victim. "We review the legal questions to make the determination of admissibility for correctness; we review the questions of fact for clear error; and we review the district court's ruling on admissibility for abuse of discretion." State v. Sanchez, 2018 UT 31, ¶ 10, 422 P.3d 866 (quotation simplified).

ANALYSIS

I. Ineffective Assistance of Counsel

¶15 Levering asserts that counsel provided ineffective assistance with respect to the jury instructions in two ways. First, he argues that counsel should have objected to Instruction Nos. 16 and 17 because "those instructions failed to inform the jury that the State carried the burden of proving that self-defense was inapplicable during the incident in question." Second, he...

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