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State v. Brocksmith

Court of Appeals of Utah

April 26, 2018

State of Utah, Appellee,
v.
Benjamin Brocksmith, Appellant.

          Second District Court, Ogden Department The Honorable Joseph Bean No. 141901838

          Samuel P. Newton, Cherise M. Bacalski, and Emily Adams, Attorneys for Appellant

          Sean D. Reyes and Marian Decker, Attorneys for Appellee

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

          HAGEN, JUDGE

         ¶1 Benjamin Brocksmith appeals his two convictions for negligently operating a motor vehicle causing death or serious bodily injury while knowingly and intentionally having a measurable amount of a controlled substance in his body. Because we conclude that trial counsel did not perform deficiently in failing to raise the specific federal and state constitutional issues that Brocksmith now raises on appeal, we affirm.

         BACKGROUND[1]

         ¶2 Brocksmith was driving northbound on Wall Avenue in Ogden when his SUV veered into the southbound lanes and collided with another vehicle, inflicting serious bodily injury on the vehicle's driver and a passenger. After Brocksmith admitted that he had used "marijuana over the weekend, " the investigating officer obtained a search warrant to conduct a blood draw. Blood analysis revealed the presence of tetrahydrocannabinol (THC) and THC metabolite.

         ¶3 The State subsequently charged Brocksmith with two violations of Utah Code section 58-37-8(2)(g)-(h)(ii) (the Measurable Amount Statute), which makes it a crime for a person to operate a motor vehicle in a negligent manner causing serious bodily injury or death while knowingly and intentionally having a measurable amount of a controlled substance in the person's body.

         ¶4 During trial, Brocksmith orally moved to dismiss the charges against him, arguing that the Measurable Amount Statute is unconstitutional on its face and as applied under both the United States and Utah Constitutions. Brocksmith did not submit a memorandum in support of his motion to dismiss nor did he provide any legal authority to bolster his contention. In fact, when the trial court asked him to "elaborate a little further" by pointing to the "elements of the code section that [he found] unconstitutional, " Brocksmith could not identify the sections of the code at issue or any specific constitutional basis for his argument. Instead, he noted only that the statute does not provide a "causal nexus" "between the fact that there's some trace amount of substance in someone's blood and [the fact] that they caused an accident." In other words, "but for this substance allegedly being in Mr. Brocksmith's system, there would be no criminal count here."

         ¶5 The trial court denied the motion to dismiss, ruling that the Measurable Amount Statute is constitutional both on its face and as applied to Brocksmith. The jury convicted Brocksmith on both charged counts. Brocksmith timely appeals.

         ISSUE AND STANDARD OF REVIEW

         ¶6 Brocksmith contends that he received ineffective assistance of counsel because trial counsel failed to adequately raise federal and state constitutional challenges to the Measurable Amount Statute. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of ...


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