Opinion
Case No. 20050136-CA.
Filed June 29, 2006. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 041901870 The Honorable Robin W. Reese.
Barton J. Warren, Salt Lake City, for Appellants.
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee.
Before Judges Greenwood, Billings, and McHugh.
MEMORANDUM DECISION
Defendants Christina L. Gray and Mark J. Gray appeal from their convictions for child abuse, a second degree felony, in violation of Utah Code section 76-5-109(2)(a). See Utah Code Ann. § 76-5-109(2)(a) (2003). Defendants argue they were denied effective assistance of counsel. We affirm.
Defendants first argue that trial counsel was ineffective for failing to request a lesser included offense instruction. Defendants also argue that counsel was ineffective for not retaining an expert to provide psychological testimony on their behalf. Ineffective assistance claims raised for the first time on appeal are reviewed as a matter of law under a correctness standard. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376.
To demonstrate ineffective assistance of counsel, "`a defendant must show (1) that counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different.'" State v. Cruz, 2005 UT 45, ¶ 38, 122 P.3d 543 (quoting Myers v. State, 2004 UT 31, ¶ 20, 94 P.3d 211). Moreover, we apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. (quotations and citation omitted).
First, Defendants claim that trial counsel's failure to request a lesser included offense instruction rendered counsel ineffective. Defendants argue that the evidence presented at trial could have supported acquittal on charges of felony child abuse, see Utah Code Ann. § 76-5-109(2)(a), and instead supported conviction of the lesser included charge of class A misdemeanor child abuse, see id. § 76-5-109(2)(c). Consequently, they argue that trial counsel's failure to seek a lesser included offense instruction was deficient. We disagree.
The record in the instant case confirms that counsel's strategy was to seek acquittal on the basis that Defendants' treatment of J.G. was reasonable and not egregious, as claimed by the State. Trial counsel presented a defense that focused on characterizing Defendants as concerned and involved parents who resorted to chaining J.G. in the basement only after exhausting all other available options to prevent him from running away.
Because counsel's failure to request a lesser included offense instruction was consistent with an "all or nothing" defense, we conclude that the failure to request a lesser included offense instruction was a reasonable trial strategy and does did not constitute ineffective assistance. See State v. Hall, 946 P.2d 712, 723-24 (Utah Ct.App. 1997) (concluding that trial counsel's failure to seek a lesser included offense instruction was consistent with trial strategy and did not constitute ineffective assistance of counsel).
Second, Defendants contend that trial counsel's failure to call an expert witness to counter the testimony of Dr. David Lewis Corwin, an expert witness for the State, constituted ineffective assistance of counsel. "[C]ounsel's decision to call or not to call an expert witness is a matter of trial strategy, which will not be questioned and viewed as ineffectiveness unless there is no reasonable basis for that decision." State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993). Additionally, "proof of counsel's ineffectiveness must be a demonstrable reality, not mere speculation." Id. at 1254.
Defendants maintain that had trial counsel called an expert witness on their behalf to counter Dr. Lewis's testimony that chaining a child constitutes psychological mistreatment, there is a reasonable probability that the outcome of the trial would have been different. However, there is nothing in the record to indicate that an expert witness would have been willing to rebut Dr. Lewis's testimony, or the effect, if any, such testimony would have had on the outcome of the trial. Hence, Defendants' contention is "mere speculation." Id.
Furthermore, Defendants' claim of ineffective assistance on this issue is countered by the fact that trial counsel called various witnesses, including school personnel, social workers, and neighbors, all of whom characterized Defendants as loving parents who were committed to finding a solution to J.G.'s frequent attempts to run away. We conclude that trial counsel's strategy did not constitute ineffective assistance of counsel.See id. at 1257 ("In light of the fact that substantial testimony and evidence were presented in [Defendants'] defense, we do not attempt to second-guess defense counsel's strategies, but simply conclude that [trial counsel] performed reasonably at trial.").
Accordingly, we affirm.
Judith M. Billings, Judge, and Carolyn B. McHugh, Judge, We Concur.