District Court, Farmington Department The Honorable Michael
G. Allphin No. 151700631
L. Wiggins, Attorney for Appellant.
D. Reyes and Daniel W. Boyer, Attorneys for Appellee.
Michele M. Christiansen authored this Opinion, in which
Judges David N. Mortensen and Ryan M. Harris concurred.
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.
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.
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.
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
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
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.
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.
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