Opinion
Case No. 20050261-CA.
Filed February 8, 2007. (Not For Official Publication).
Appeal from the Second District, Farmington Department, 031700662 The Honorable Darwin C. Hansen.
Scott L. Wiggins, Salt Lake City, for Appellant Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.
Before Judges BENCH, GREENWOOD, and ORME.
MEMORANDUM DECISION
Defendant Danilo Dela Cruz Pascual appeals his conviction after a jury trial of attempted sodomy on a child, a first degree felony.See Utah Code Ann. § 76-5-403.1 (2003). We affirm.
Defendant argues that his trial counsel was ineffective for allowing prejudicial testimony from Sergeant Malan and for stipulating to the fact that Defendant intended to obtain a fraudulent urine sample to submit as his own during a urinalysis test. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To demonstrate ineffectiveness, "defendant must show: (1) that counsel's performance was objectively deficient, and (2) a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial." Id. (citing State v. Crosby, 927 P.2d 638, 644 (Utah 1996); Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish that counsel's performance was "objectively deficient," a defendant "must overcome the strong presumption that [his] trial counsel rendered adequate assistance by persuading the court that there wasno conceivable tactical basis for counsel's actions." Id. (alteration in original) (quotations and citations omitted). We give "trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them."Id. (quotations and citations omitted). In this instance, Defendant's claim for ineffective assistance of counsel fails because trial counsel's performance was not objectively deficient. See State v. Diaz, 2002 UT App 288, ¶ 38, 55 P.3d 1131 ("Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective.").
At trial, defense counsel did not object to Sergeant Malan's testimony that Defendant had told him he was a chronic drug user and had used drugs the night he allegedly attempted to sodomize the victim. According to Sergeant Malan, Defendant also told him of another incident where Defendant had "partied" and could not later recall what had occurred. In addition, defense counsel stipulated to the fact that on the morning of the abuse attempt, "[Defendant] needed or wanted [the victim's] father to give him a [urine sample] because [Defendant] was undergoing urinalysis testing at the time and one was required that morning."
During closing arguments, defense counsel stated:
[Defendant was] in the kitchen. Not once can [the victim] describe what he was wearing. But his first words were hey, go get your dad up, will you. We've stipulated the reason [he wanted] to get [the victim's] dad up [was] `cause [Defendant] had a urinalysis that he had to do and he wasn't clean. He needed a clean [urine] sample. That may seem kind of gross to you, but it's unfortunately [a] fairly common occurrence in this day and age. [Defendant] admitted in his statement he had been taking methamphetamine. I don't know what you know about methamphetamine, but it's a pretty nasty drug. He wasn't clean.
Defense counsel also stated during closing arguments:
[The] actus reas in this case would have been the molestation. The other element is the mens rea, the guilty mind. I'm doing this for my own satisfaction. I'm going to do this crime and do the act. That is a completed crime. But we have an exception and the exception is the attempt. And in this case the attempt is supposedly a licking somewhere below the belly button but above the pubic hair. There hasn't really been any proof of the mental state of [Defendant]. And you haven't heard anyone come in and testify that well, usually in these kinds of cases what happens. They want you to infer his mental state. But how do you really know what it is. What evidence do you have to rely on.
Next, defense counsel discussed the jury instructions. He explained to the jury that in accordance with instruction 30, "Proof of Intentional or Knowing Act[, t]he [State] ha[s]n't produced any proof of that." Emphasizing instruction 35(A), which stated, "Voluntary drug intoxication shall not be a defense to the charge of attempted sodomy upon a child unless such intoxication negates the existence of the intentional or knowing mental state of that offense," counsel stated:
If a person cannot remember an act as stated by Detective Malan, is there a knowing and intentional. Is there anything knowingly and intentionally. What is the mental state if they don't remember. The fact is while [the prosecutor] is very sure of what happened, the rest of us aren't.
Regarding Sergeant Malan's testimony, Defendant argues that trial counsel was deficient for failing to object to it and that had he objected, the testimony would have been inadmissible under rule 404(b) of the Utah Rules of Evidence. See Utah R. Evid. 404(b). Similarly, Defendant argues that the facts revealed in the stipulation would have been inadmissible under rule 404(b). See id. We do not need to reach the question of whether the testimony was admissible under rule 404, however, because it was relied upon as part of defense counsel's trial strategy. See State v. Bullock, 791 P.2d 155, 160 (Utah 1989) (concluding there was no ineffective assistance because counsel's failure to object was the result of trial strategy).
Although allowing testimony regarding a criminal defendant's drug use may not instinctively appear to be sound trial strategy, it is, nonetheless, a technique that can be effectively employed to negate a charge that the defendant formed the requisite mental state. See, e.g., State v. Padilla, 776 P.2d 1329, 1331-32 (Utah 1989) (recognizing intoxication defense); Hibbert v. Poole, 415 F. Supp. 2d 225, 235 (W.D.N.Y. 2006) (recognizing that under New York law, criminal defendants may "offer evidence of . . . intoxication whenever it is relevant to negate an element of the crime charged"). Even though this case does not provide an example of the technique being successfully employed, it was, however, conceivably part of defense counsel's trial strategy. See State v. Bullock, 791 P.2d 155, 160 (Utah 1989) (concluding there was no ineffective assistance of counsel because failure to object was the result of trial strategy); see also State v. Pecht, 2002 UT 41, ¶ 44, 48 P.3d 931 ("The failure of trial strategy, however, does not indicate ineffectiveness of counsel.").
At oral argument, Defendant's counsel argued that the use of such trial strategy was inherently flawed because it could not possibly succeed, and thus constituted ineffective assistance of counsel. However, in his brief, Defendant does not rely on this argument as the basis for his ineffective assistance of counsel claim. Rather, he focuses solely on whether the testimony at issue would have been admissible under rule 404(b). We therefore do not address the efficacy of the trial strategy.
Specifically, defense counsel relied on Defendant's past drug use and his need for a urine sample in an effort to prove that Defendant could not have formed the requisite intent to commit the crime charged. For example, during closing arguments, defense counsel explained to the jury that the State had not provided evidence that Defendant acted in a knowing or voluntary manner, Defendant was using methamphetamines at the time of the abuse attempt, and Defendant could not remember his conduct. Because we can identify a "conceivable tactical basis for counsel's actions," Defendant has failed to "overcome the strong presumption that [his] trial counsel rendered adequate assistance." State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (quotations, citations, and emphasis omitted). Consequently, we affirm Defendant's conviction.
Pamela T. Greenwood, Associate Presiding Judge
WE CONCUR: Russell W. Bench, Presiding Judge, Gregory K. Orme, Judge