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State v. Baer

Court of Appeals of Utah

January 17, 2019

State of Utah, Appellee,
v.
Jacob Baer, Appellant.

          Fourth District Court, Fillmore Department The Honorable Anthony L. Howell No. 161700209

          Nathan Phelps, Attorney for Appellant

          Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

          OPINION

          POHLMAN, JUDGE:

         ¶1 Late one summer night, eighteen-year-old Jacob Baer and three other teenage boys entered a community swimming pool after hours. One of the teenagers who worked as a lifeguard at the pool (Lifeguard) used a key to let them in, and the group went swimming. Afterward, unbeknownst to Lifeguard, Baer took the pool's small lockbox used to store the pool's cash. When Lifeguard later asked Baer about the missing lockbox, Baer told him, "Tell the cops I wasn't there." With help from one of the other teenagers, K.D., authorities eventually recovered the pool's bank deposit bag from a nearby reservoir-the same place where Baer told a jailhouse informant that he had dumped the lockbox.

         ¶2 Baer now appeals his convictions for burglary, a third degree felony, and theft of services, a class B misdemeanor.[1] He contends that he received constitutionally ineffective assistance of counsel when his trial counsel failed to move for a directed verdict and failed to object to the jury instructions. We affirm.

         ANALYSIS

         ¶3 A criminal defendant shows that he has been deprived of his right to the effective assistance of counsel if he demonstrates both that his "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To show that his trial counsel performed deficiently, a defendant must demonstrate that "his counsel rendered a demonstrably deficient performance that fell below an objective standard of reasonable professional judgment." State v. Robertson, 2018 UT App 91, ¶ 36, 427 P.3d 361 (quotation simplified). But "it is well settled that counsel's performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests." State v. Burdick, 2014 UT App 34, ¶ 34, 320 P.3d 55 (quotation simplified). To demonstrate prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Rather, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

         ¶4 "When a criminal defendant raises a claim of ineffective assistance of counsel for the first time on appeal, there is no trial court ruling to examine. We must therefore decide, as a matter of law, whether [Baer] received constitutionally ineffective assistance of counsel." See State v. Burnett, 2018 UT App 80, ¶ 19, 427 P.3d 288 (citation omitted).

         ¶5 On appeal, Baer raises two issues. First, he contends that his trial counsel was ineffective for failing to seek a directed verdict on the burglary and theft of services charges. Second, he contends that his trial counsel was ineffective for failing to ensure that the jury instructions properly stated the applicable mental states for those two charges.

         I. Sufficiency of the Evidence

         ¶6 Baer contends that his trial counsel rendered ineffective assistance of counsel by "failing to challenge the sufficiency of the evidence" supporting the charges of burglary and theft of services. He suggests that counsel should have sought to dismiss those charges by moving for a directed verdict.[2] We disagree.

         ¶7 If the State presents no competent evidence from which a reasonable jury could find the elements of the relevant crime, then trial counsel should move for a directed verdict and the failure to do so "would likely constitute deficient performance." State v. Burdick, 2014 UT App 34, ¶ 35, 320 P.3d 55 (quotation simplified). But "a directed verdict should not be granted if, upon reviewing the evidence and all inferences that can be reasonably drawn from it[, ] some evidence exists from which a reasonable jury could find that the elements of the crime had been proved beyond a reasonable doubt." Id. (quotation simplified). Thus, if the State presents "some evidence from which a reasonable jury could find" all the elements, "trial counsel's decision not to raise a futile motion for a directed verdict would not be deficient performance." See id. ...


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