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State v. Hull

Court of Appeals of Utah

December 21, 2017

State of Utah, Appellee,
v.
Travis Britton Hull, Appellant.

         Second District Court, Farmington Department The Honorable Michael G. Allphin No. 151700631

          Scott L. Wiggins, Attorney for Appellant.

          Sean D. Reyes and Daniel W. Boyer, Attorneys for Appellee.

          Judge Michele M. Christiansen authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

          OPINION

          CHRISTIANSEN, Judge.

         ¶1 Defendant Travis Britton Hull appeals from his conviction for burglary, charged as a second-degree felony. He argues that his constitutional right to the effective assistance of counsel was violated because his trial counsel failed to request an instruction regarding a lesser included offense of criminal trespass. Because a decision not to request such instruction was objectively reasonable in this case, we conclude that Defendant has failed to show that the assistance he received from counsel was constitutionally ineffective. We therefore affirm.

         BACKGROUND

         ¶2 One morning, Defendant got out of a parked SUV and approached a homeowner (Homeowner) as she walked up to her house. He asked if Homeowner remembered him, introduced himself as Travis, and said he had dated Homeowner's daughter in high school. Defendant inquired after Homeowner's daughter, before asking for a ride to a gas station because he had run out of gas. Homeowner agreed to give him a lift, but stepped inside her house first.

         ¶3 While this conversation was taking place, Homeowner's brother (Brother) had begun unloading supplies from his truck for some remodeling work he was doing inside the house. Homeowner told Brother that she was taking Defendant to the gas station. As she left the house, she picked up a bag of trash from the kitchen trashcan and took it outside to the garbage bin, leaving the empty trashcan in the kitchen. Defendant retrieved a portable gas can from his SUV, and he and Homeowner left for the gas station.

         ¶4 Later, after Brother finished unloading his supplies, he drove to the same gas station for breakfast. When Brother arrived, Defendant came to Brother's truck, opened the door, and asked for a ride back to the house where his SUV was parked. Brother drove Defendant to the house and dropped him off. Brother then drove back to the gas station for breakfast.

         ¶5 While driving, Brother remembered that he had left the front door to the house unlocked and became worried. After picking up breakfast, he quickly returned to the house, arriving five to ten minutes after he had dropped off Defendant there. The SUV was still there, now with the motor running, but Defendant was not in it. Brother went up to the house and found the front door locked. He then spotted Defendant in the back yard of the house, walking toward a neighboring property.

         ¶6 Brother confronted Defendant by saying to him, "You've been in the house." Defendant responded, "I wasn't in the house. You never saw me in the house. You can't prove I was in the house." Brother said he was going to call the police, and Defendant retreated to his SUV. Defendant drove away in reverse-perhaps to conceal his license plate, which was affixed only to the rear of the SUV.

         ¶7 Brother called the police and was able to provide a partial license plate number to them. While he waited for officers to arrive, he checked the back door of the house and found it unlocked. Brother also noticed the kitchen trashcan sitting on the back porch and inspected it. When Homeowner had left the house, the trashcan was empty and in the kitchen. But now it was on the back porch and contained a bag of chocolate covered pretzels, a pack of frozen fish sticks, two pork chops, and an iPad with its charger.

         ¶8 Homeowner returned to the house and confirmed that these items had been inside the house when she left. She remembered that the pretzels had been on the kitchen counter, the fish sticks and pork chops had been in the freezer, and the iPad and its charger had been on her dresser. She also noticed ...


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