State v. Verde, 20954

Citation770 P.2d 116
Decision Date03 February 1989
Docket NumberNo. 20954,20954
PartiesSTATE of Utah, Plaintiff and Appellee, v. Julie Warren VERDE, Defendant and Appellant.
CourtSupreme Court of Utah

Robert Van Sciver, Margo L. James, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Earl F. Dorius, Salt Lake City, for plaintiff and appellee.

ZIMMERMAN, Justice:

Defendant Julie Verde appeals from her conviction, following a jury trial, of the offense of the sale of a child. See Utah Code Ann. § 76-7-203 (1978). She claims that certain evidence was improperly admitted, that the jury was improperly instructed, and that there was insufficient evidence on one element of the crime. We affirm.

We recite the facts from the record on appeal in the light most favorable to the jury's verdict. Cf., e.g., State v. Booker, 709 P.2d 342, 345 (Utah 1985); Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); Sugar v. Miller, 6 Utah 2d 433, 436, 315 P.2d 862, 864 (1957) (all addressing challenges to the sufficiency of the evidence). Verde met the State's chief witness, Tammy Watson, at the physician's office where Watson worked and Verde was being treated. After hearing that Watson had recently suffered a miscarriage, Verde approached her about the possibility of arranging for the private adoption of a third party's child. Verde and Watson continued discussing the proposed adoption on a regular basis from September of 1984 until February of 1985.

In these discussions, Verde indicated that Watson should expect to incur medical, legal, and other costs incident to the adoption ranging between $2,500 and $5,000. During this period, Watson arranged to pay $80 to $90 of Verde's medical care costs in return for Verde's commitment to give her a "discount" on the adoption expenses. Verde claimed that she was in the process of setting up a private adoption agency and was working with a local attorney. However, Verde presented no corroborating evidence at trial to support this assertion. At first, Verde indicated to Watson that she knew of a pregnant woman who would be interested in giving up her baby for adoption at birth. Later, she began discussing a different woman, who she claimed was willing to give up her thirteen-month-old girl, "E."

In January of 1985, Verde was taking care of E, the daughter of a friend who was ill. Verde had told Watson that E was available for adoption and, on several occasions, had allowed Watson to keep E at her home for "trial periods" of up to seven days. When the adoption plans did not come to fruition as Watson had been led to expect, she became suspicious and contacted the police. Officers then arranged to listen to telephone conversations between Watson and Verde. During one conversation, Verde arranged to meet Watson on February 1, 1985, in a store parking lot and turn E over to her. On the appointed day, Verde took E from her mother, telling the mother an admittedly false story to the effect that she wanted to take E with her to an anti-abortion meeting. Verde then met Watson in the parking lot and, with police observing, placed E in Watson's care. The officers then stopped Verde and arrested her.

Verde was tried before a jury and convicted of the offense of sale of a child, a third degree felony. After a thirty-day evaluation at the state hospital, she was sentenced to three months in jail, fined $2,500, ordered to perform community service, and required to make restitution. Service of the sentence was stayed pending this appeal.

Before this Court, Verde claims error (i) in the admission of certain hearsay statements, (ii) in the admission of evidence regarding the preparations Watson had made for the adoption and the emotional impact the failure of the adoption plan had on Watson, and (iii) in the failure to instruct the jury that payment of certain legitimate fees is not a crime under the statute. Verde also argues that there was insufficient evidence to prove the element of consideration that is required by the statute. We consider these questions seriatim.

Verde's first claim is that certain hearsay statements were improperly admitted and that her attorney's failure to object to the admission of that testimony denied her the effective assistance of counsel. During the State's case, Watson's friends and co-workers were allowed to testify about statements that Watson had made to them during the period within which Verde and Watson were discussing an adoption. In these statements, Watson related details of the supposed adoption arrangements. The statements were introduced to corroborate Watson's testimony about the steps Verde took to convince Watson that an adoption was imminent. Verde's attorney did not object to the admission of these statements.

Ordinarily, the failure to raise an objection below would preclude our consideration of this argument on appeal. Utah R.Evid. 103(a)(1). However, Verde seeks to avoid the effect of her counsel's failure to preserve the objection by arguing that the failure operated to deny her the effective assistance of counsel guaranteed by the sixth and fourteenth amendments of the United States Constitution. 1

As we recently observed in State v. Lovell, 758 P.2d 909, 913 (Utah 1988), a defendant who raises a claim of 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." 2 Because an ineffective assistance claim cannot succeed unless both required showings are made, we need not decide whether counsel's performance was defective if we conclude that the trial outcome was not prejudicially affected by the claimed error. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984); State v. Speer, 750 P.2d 186, 190 (Utah 1988); Lovell, 758 P.2d at 913. Verde has not shown that absent the error, there is a reasonable probability of a more favorable result. She has merely asserted that her counsel's failure to object "was prejudicial to defendant's right to a fair trial" without explaining how the error was prejudicial. Our review of the record indicates that the testimony complained of was merely cumulative of other evidence that Verde has not challenged. 3 Accordingly, her claim of ineffective assistance of counsel is rejected.

Verde next claims that the trial court should not have admitted evidence of the extensive preparations Watson made to receive the child into her home and of the emotional impact that the bogus adoption plan had on her. Both Watson and her mother testified that Watson had purchased toys, furniture, and clothing in anticipation of the adoption. Several of these items were admitted into evidence. Verde's counsel did not object to the testimony or to the exhibits. A friend of Watson's testified that Watson was emotionally distraught after realizing that she would not be able to adopt E. Again Verde's counsel did not object. However, Verde's counsel did object unsuccessfully to testimony from Watson's employer that after the falsity of the adoption plan was revealed, Watson became so emotionally distraught that she attempted suicide.

Verde now argues that all of this evidence was so lacking in relevance and so unfairly prejudicial that it should have been excluded under Utah Rule of Evidence 403, which provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." Utah R.Evid. 403. Verde contends that the evidence of Watson's preparations for the child's arrival and her response to the failure of the adoption plan was only marginally probative of the elements of the crime charged and was highly prejudicial. She contends that the jury was unfairly swayed by Watson's crying on the stand when testifying about purchasing items for the child and by the testimony that Watson was so upset she attempted suicide. Verde argues that the trial court abused its discretion under rule 403 in admitting the evidence that was objected to. As for the evidence to which her trial counsel did not object, she claims that that failure to object denied her the effective assistance of counsel.

The State counters that whatever potential for unfair prejudice this evidence may have had was outweighed by its probativeness. We think this is a close call, but we ultimately agree with the State. The evidence in question did help prove that Watson believed the adoption would occur. From this, the jury could infer that Verde did actually make the various statements about the adoption plan that Watson attributed to her. We recognize that the evidence had a tendency to sway the jury and to unfairly prejudice it against Verde. This is particularly true of the evidence that Watson tried to commit suicide. On balance, however, even if we might have excluded the evidence as an initial matter, we cannot say that the trial judge abused his discretion in concluding that the potential for unfair prejudice did not substantially outweigh the evidence's probative value. Therefore, it was not error to admit the evidence; it follows that Verde's counsel was not demonstrably ineffective by reason of his failure to object to the receipt of some of the evidence.

The next claim of error pertains to the jury instructions concerning the element of consideration. Under the sale-of-a-child statute, section 76-7-203 of the Code, one must have participated in the sale or attempted sale of a child "for and in consideration of the payment of money or for other thing of value." Utah Code Ann. § 76-7-203 (1978). The jury was instructed in just these terms. However, Verde contends that the trial court should also have instructed that the payment of legitimate legal fees and expenses incident to an adoption is permissible and these...

To continue reading

Request your trial
166 cases
  • Kelly v. Timber Lakes Prop. Owners Ass'n
    • United States
    • Utah Court of Appeals
    • February 17, 2022
    ...See id. at 1208 ; Labrum, 2000 Utah L. Rev. at 559.¶39 A few days after issuing Eldredge , our Supreme Court issued State v. Verde , 770 P.2d 116 (Utah 1989), in which it addressed the "manifest injustice" standard of rule 19 concerning jury instruction errors in criminal cases. See id. at ......
  • State v. Dunn
    • United States
    • Utah Supreme Court
    • March 18, 1993
    ...of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined. 3 See State v. Verde, 770 P.2d 116, 122 (Utah 1989); State v. Bell, 770 P.2d 100, 105-06 (Utah 1988); State v. Knight, 734 P.2d 913, 919-20 (Utah 1987); State v. Fontana, 680 ......
  • State v. Bullock
    • United States
    • Utah Supreme Court
    • October 18, 1989
    ...and invited error).5 The amendments are not pertinent here.6 725 P.2d 1353 (Utah 1986).7 Utah R.Evid. 103(d); see State v. Verde, 770 P.2d 116, 118-19 (Utah 1989) (ineffective assistance claim asserted to avoid effect of failure to object); State v. Eldredge, 773 P.2d 29, 35-36 (Utah 1989) ......
  • Reeves v. Gentile
    • United States
    • Utah Supreme Court
    • May 17, 1991
    ...this standard as being congruent with those set elsewhere in the rules for determining the harmfulness of errors. State v. Verde, 770 P.2d 116, 121 (Utah 1989) (equating the standards for harmless error in Utah R.Crim.P. 30(a), Utah R.Civ.P. 61, and Utah R.Evid. 103(a)). Under that standard......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT