District Court, Farmington Department The Honorable Thomas L.
Kay No. 121701223
L. Wiggins, Attorney for Appellant
D. Reyes, Ryan D. Tenney, and William M. Hains, Attorneys for
Michele M. Christiansen authored this Opinion, in which
Judges Kate A. Toomey and David N. Mortensen concurred.
Defendant Levi Gene King appeals from his convictions for
theft as a second-degree felony, theft as a third-degree
felony, and failure to stop at the command of a law
enforcement officer as a class A misdemeanor. See
Utah Code Ann. § 76-6-404 (LexisNexis 2012);
id. § 76-6-412(1); id. §
76-8-305.5. Primarily, he contends that his trial counsel was
constitutionally ineffective for failing to introduce expert
testimony regarding the reliability of eyewitness
identification. Because declining to introduce potentially
harmful testimony was sound trial strategy under the facts of
this case, we affirm.
"On appeal from a jury verdict, we view the evidence and
all reasonable inferences in the light most favorable to that
verdict and recite the facts accordingly." State v.
Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863. "We
include conflicting evidence as relevant and necessary to
understand the issues on appeal." Id.
Victim parked his truck outside his wife's salon one
morning. He left the keys and his wife's iPod on the
truck's center console while he unloaded supplies. Later
that morning, Victim's wife (Wife) drove to her salon. As
she pulled into a side street behind the salon, she saw her
husband's truck being driven the other way. Wife slowed
to a stop and rolled down her window. To her surprise, the
other driver was not her husband. She noted that the driver
had a shaved head and was wearing a white tee shirt. She
hurried to the salon and told her husband that somebody was
driving off in his truck. Victim borrowed Wife's SUV to
go look for his truck while she called 911.
Descriptions of the stolen vehicle and the driver were
relayed to police in the area. A police officer (Officer)
spotted the truck at an intersection and "focused on the
driver" to see if he matched the description. It was
daytime and Officer could see that the driver was a
"white male, short, dark hair" and was wearing a
"white shirt." Officer turned to follow the truck,
which accelerated above the speed limit and turned onto a
curving side street. He lost sight of the truck for one to
two minutes but then spotted it parked behind a building. The
driver seen by Officer earlier was still inside but the
driver's door was partially open. No one else was nearby.
The driver spotted Officer, fled the vehicle, and hopped a
nearby fence. Officer gave chase, radioing nearby police to
let them know he had found the truck. While pursuing the
driver, Officer saw that the driver was wearing a white tee
shirt with a "dark logo on the back of it" and
jeans with a hole around the right knee.
Several minutes later, a witness (Witness) was in his front
yard preparing to take his daughter to school when a man
approached and asked if he could get inside Witness's
car. Witness testified that the man was "wearing a white
tee shirt with some sort of logo on the back" and
"blue jeans." After Witness refused to let the man
into his car, the man went onto Witness's porch and tried
to enter the house. A police car then pulled up and the man
tried to run away but was apprehended. The man apprehended
Shortly after Defendant's capture, Officer arrived and
identified Defendant as the person he had seen driving the
stolen truck and given chase to. Victim and Wife then
arrived; Victim identified the truck as his and Wife
identified Defendant as the man she had seen driving it. A
search of Defendant's person revealed Wife's iPod.
Neither Officer nor Wife was presented with a lineup of
suspects; rather, at the scene of his arrest, each was only
shown Defendant-a procedure often referred to as a showup.
At trial, the State argued that Defendant stole the truck and
the iPod and failed to heed a police officer's orders to
stop. Defendant presented alternative facts. Defendant
testified that he had left his house that morning intending
to apply for jobs at local businesses until the local library
opened. He claimed that he had run into an acquaintance named
Kyle,  who was sitting in a black truck.
According to Defendant, Kyle offered to sell Defendant an
iPod for $30. Although he initially hesitated, Defendant
decided to buy the iPod. He testified that he then began to
smoke marijuana, that Kyle grew increasingly nervous, and
that Kyle eventually jumped out of the truck, ran behind it,
and disappeared over a fence. Defendant further testified
that he saw a police car drive by and that, when the car
turned around, he took off running as well. Defendant
admitted that he had not stopped when the police officer told
During jury selection and opening statements, a deputy sat
behind Defendant. Before testimony began, trial counsel
objected to the presence of "an armed deputy in uniform
sitting behind my client." Trial counsel conceded that
officers were generally present for security reasons but
asserted that such officers were normally "dressed in
plainclothes." Trial counsel stated that "if he
wants to sit in the back of the court, that's fine, but I
don't think sitting behind my client is appropriate"
and that Defendant was unlikely to be a threat because he had
"handcuffs on." The judge asked the officer to
"sit a little farther back" in the audience and
trial counsel raised no further objection.
Before Defendant testified, and outside the jury's
presence, the court and counsel discussed the logistics of
his testimony. Trial counsel suggested seating Defendant in
the witness box and swearing him in before the jury returned
to the room. The court agreed to "have him seated up
here" and explained that "we'll have him sworn
before the jury comes in." The court later decided
"we'll just have him sworn in just after the jury
comes in, so why don't we have the jury come in. So when
I say, 'You can be seated, ' just stand or just stay
standing and then [the court deputy] will swear you in."
The defense presented no other witnesses. In closing
argument, trial counsel argued that Wife and Officer were
mistaken in their identifications. She highlighted the height
difference between Victim's truck and Wife's SUV and
noted that both Wife and Officer had observed the driver of
the truck while it was in motion. Trial counsel did not
request an instruction regarding eyewitness-identification
The jury convicted Defendant on all three charges. As part of
his appeal, Defendant sought a rule 23B remand for findings
necessary to determine whether he received ineffective
assistance from trial counsel. See Utah R. App. P.
23B. After this court granted that motion, the trial court
conducted a hearing and entered ...