Opinion
Case No. 20070159-CA.
Filed September 17, 2009. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 051905149 The Honorable Sheila K. McCleve.
Barton J. Warren, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
Before Judges Bench, Orme, and Davis.
MEMORANDUM DECISION
Even assuming, as the State concedes, that Defendant's trial counsel rendered deficient performance in not calling a handwriting expert, Defendant has not convinced us this error was prejudicial.See State v. Perry, 2009 UT App 51, ¶ 11, 204 P.3d 880 (stating that an appellate court may begin its analysis of an ineffective assistance of counsel claim by determining if prejudice occurred); State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994) ("[I]n cases in which it is `easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,' we will do so without addressing whether counsel's performance was professionally unreasonable.") (quotingStrickland v. Washington, 466 U.S. 668, 697 (1984)). We conclude that even if the jury would have had the benefit of expert testimony along the lines proffered by Ms. Cropp, the jury would have reached the same result.
The relevant forgery statute allows a conviction not only if the defendant personally forged the writing but also if the defendant had a "purpose to defraud anyone, or . . . knowledge that he is facilitating a fraud to be perpetrated by anyone," and "utters the altered writing . . . or . . . authenticates, . . . transfers, . . . or utters any writing so that the writing[,] . . . authentication, . . . transference, . . . or utterance . . . purports to be the act of another." Utah Code Ann. § 76-6-501(2)(a)-(b)(i) (2008) (emphasis added). After Mr. Goff complained to Defendant's employer and it was determined Goff's signature had been forged on the one invoice, Mr. Hansen confronted Defendant with the two inconsistent invoices. Defendant told Hansen that the invoice he submitted was accurate and that he had only collected $122 in cash from Goff, not $421.70 as claimed by Goff. After the police became involved, Defendant protested and said, "I would have made it right." At trial, however, Defendant's position was that the $421.70 charge was reasonable and that another employee must have forged the invoice for the lesser amount and pocketed the difference.
Given this inculpatory evidence and Defendant's inconsistent positions, the evidence fully supported the conclusion that he had "knowledge that he [was] facilitating a fraud . . . perpetrated by" another person. Id. It would be obvious to the jury, as it is to us, that if he had collected and turned in the $421.70 as he claimed at trial, he would not have insisted, upon being confronted by Hansen, that he collected only $122, as purported by the forged invoice. And the jury would reasonably have determined that a similar scam occurred with the other two customers.
Defendant also claims his trial counsel was ineffective for failing to object to Hansen's testimony that the pivotal handwriting on the invoices in question appeared to be Defendant's. Even if this testimony had been objected to and the court had not allowed it, the same incriminating evidence and inconsistent positions mentioned above would likely have precluded a more favorable trial outcome.See generally Strain, 885 P.2d at 817-18 (determining that even if counsel had objected to testimony and the court ruled the testimony inadmissible, the trial result likely would not have changed).
Finally, Defendant argues that the evidence presented at trial was insufficient to prove, beyond a reasonable doubt, that Defendant was guilty of forgery. Totally aside from any deficiencies in marshaling the evidence, Defendant has failed to convince us that when viewing "the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the jury's verdict," the "evidence is so inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he . . . was convicted." State v. Souza, 846 P.2d 1313, 1322 (Utah Ct. App. 1993) (omission in original) (citation and internal quotation marks omitted).
Affirmed.
WE CONCUR: Russell W. Bench, Judge, James Z. Davis, Judge.