District Court, Fillmore Department The Honorable Anthony L.
Howell No. 161700209
Phelps, Attorney for Appellant
D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges
Gregory K. Orme and Ryan M. Harris concurred.
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.
Baer now appeals his convictions for burglary, a third degree
felony, and theft of services, a class B
misdemeanor. 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.
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.
"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
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
Sufficiency of the Evidence
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. We disagree.
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.