State v. Wood, 2008 UT App 46 (Utah App. 2/22/2008)

• Decision Date: 22 February 2008
• Docket Number: Case No. 20050874-CA.
• Citation: 2008 UT App 46
• Parties: State of Utah, Plaintiff and Appellee, v. Brian Lee Wood, Defendant and Appellant.
• Court: Utah Court of Appeals

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2008 UT App 46

State of Utah, Plaintiff and Appellee, v. Brian Lee Wood, Defendant and Appellant.

Case No. 20050874-CA.

Court of Appeals of Utah.

Filed February 22, 2008.

Appeal from the Second District, Ogden Department, 041900083 The Honorable Scott M. Hadley.

Ryan Bushell, Ogden, for Appellant.

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee.

Before Judges Greenwood, Billings, and Davis.

MEMORANDUM DECISION

GREENWOOD, Presiding Judge:

Defendant appeals his convictions for three counts of attempted aggravated murder, a first degree felony; one count of discharging a firearm from a vehicle, a third degree felony; and one count of possession of a dangerous weapon by a restricted person, a second degree felony. We affirm.

Defendant argues that his trial counsel was ineffective because he failed to file a motion to sever the possession of a weapon by a restricted person charge and he stipulated to prior bad acts. To prove that counsel was ineffective, "[f]irst, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to establish either prong precludes this court from determining that counsel's performance was deficient. See id. When evaluating the first prong of the ineffective assistance test, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (internal quotation marks omitted); see also State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92. Thus, we have previously held that a defendant must demonstrate "that there was a lack of any conceivable tactical basis for counsel's actions." State v. Irvin, 2007 UT App 319, ¶ 23, 169 P.3d 798 (internal quotation marks omitted).

In this instance, Defendant argues that his trial counsel was ineffective because he failed to file a motion to sever the felon in possession charges. Doing so, Defendant asserts, would have shielded the jury from learning that Defendant was a convicted felon. Further, Defendant argues that counsel was deficient for stipulating to the fact that Defendant was wanted for questioning in a stabbing case and that Defendant had absconded from parole.¹ We disagree.

In State v. Nelson, 777 P.2d 479 (Utah 1989), the Utah Supreme Court explained that while

[i]t is true that as a general rule, evidence of other crimes, wrongs or acts is not admissible against a defendant in a criminal case . . . ., there are many exceptions to the general rule. One of those exceptions is that evidence of other crimes, wrongs or bad acts is admissible where those other crimes [or bad acts] are so linked with the crime charged in point of time and circumstances that one cannot be shown without proving the other.

Id. at 481 (citation omitted). Here, defense counsel stipulated to the prior bad act evidence and failed to file a motion to sever because those facts were so interconnected with Defendant's current charges. For example, without that information it would have been difficult to explain to the jury why a police officer and an adult probation and parole officer were looking for Defendant, why they went to such great lengths to organize a plan for Defendant's arrest, and why they engaged in an extensive high speed chase with multiple officers in order to apprehend Defendant. Moreover, the record demonstrates that defense counsel also stipulated to the evidence in order to blunt its impact on the jury and limit Defendant's negative exposure. Because counsel's decisions constitute sound trial strategy, counsel was not ineffective.

Defendant next argues that the trial court erred by allowing evidence to be presented to the jury that depicted one of Defendant's tattoos. "In determining whether bad acts evidence is admissible,² the trial court must first determine whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b)." State v. Nelson-Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120. "Second, the court must determine whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence." Id. ¶ 19. And "[f]inally, the trial court must determine whether the bad acts evidence meets the requirements of rule 403 of the Utah Rules of Evidence."³ Id. ¶ 20.

Prior to trial, the court analyzed the aforementioned evidentiary rules as well as the Shickles factors, see State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988), to conclude that while the "[t]attoo is relevant, . . . . [t]he probative value of the [t]attoo, in the [State's] case in chief and before the Defendant has opened the door, is substantially outweighed by the danger of unfair prejudice to Defendant." The court further explained that "once the Defendant attempts to belie the act portrayed in the [t]attoo, the potential for distortion of the truth overcomes the danger of unfair prejudice to the Defendant and the [t]attoo becomes admissible."

In opening statement, defense counsel stated that Defendant had not intended to kill the police officers but rather, was only shooting at their vehicles and the pavement in front of the same in an effort "to get away . . . . to get them to stop and not chase him anymore." The trial court impliedly determined that Defendant had opened the door to the tattoo evidence, thus, the State moved for its admission during its case in chief. Although we are not necessarily convinced that Defendant himself opened the door to the tattoo evidence or that the trial court's prior conclusion that the tattoo was inadmissible under the Shickles factors was no longer determinative, we are convinced that any alleged error was harmless.

"Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings." State v. Spillers 2007 UT 13, ¶ 24, 152 P.3d 315 (alterations and internal quotation marks omitted). In other words, the admission of the tattoo "must be sufficiently prejudicial that there is a reasonable likelihood of a more favorable result for the defendant in its absence." State v. Featherson, 781 P.2d 424, 431 (Utah 1989). Based on the overwhelming evidence indicating Defendant's guilt, we cannot conclude that, in the absence of the tattoo evidence, it is reasonably likely that Defendant would have received a more favorable result at trial.

For instance, the jurors witnessed a video of at least one of the shootings taken from inside one of the police officer's cars. They also heard testimony from the officers who were in Defendant's line of fire. Officer Valencia testified that there was "no doubt in [his] mind" that Defendant was directing shots at him, and Agent Holden, the Adult Probation and Parole officer involved in Defendant's arrest, testified that she "absolutely" felt like her life was in danger while Defendant was firing at her vehicle. Agent Holden also testified that a few days after the arrest, Defendant said to her, "I'm sorry I tried to shoot you." Furthermore, a nurse from the hospital where Defendant was treated after his arrest testified that while she was treating Defendant, he said, "I should have killed a couple of them."

Based on this overwhelming evidence, we conclude that any alleged error resulting from the tattoo's admission was harmless. Moreover, any potential prejudice resulting from the admission of the tattoo was minimized by a curative instruction, which required the jury to rely on the tattoo only for its noncharacter purpose. See State v. Leber, 2007 UT App 273, ¶ 14, 167 P.3d 1091, cert. granted, (Utah Jan. 11, 2008) (No. 20070820) ("If prior bad acts evidence is admitted under rule 404(b), a jury instruction limiting the jury's use of the admitted evidence is recommended." (citing R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 150 (2006-07 ed.))). In addition, portions of a photograph of the tattoo...