Opinion
Case No. 20010952-CA.
FILED November 15, 2002. (Not For Official Publication)
Third District, Salt Lake Department, The Honorable Paul G. Maughan.
Attorneys: Catherine E. Lilly, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kenneth S. Bronston, Salt Lake City, for Appellee.
Before Judges Davis, Greenwood, and Thorne.
MEMORANDUM DECISION
First, Dupont claims his trial counsel was ineffective for failing to challenge the sufficiency of the evidence supporting his conviction of interference with an arresting officer. See State v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346 ("[A]s a general rule, a defendant must raise the sufficiency of the evidence by proper motion or objection to preserve the issue for appeal."). "When, as in this case, the claim of ineffective assistance of counsel is raised for the first time on appeal, we resolve the issue as a matter of law." State v. Strain, 885 P.2d 810, 814 (Utah Ct.App. 1994) (footnote omitted).
To show ineffective assistance of counsel, a defendant must establish both prongs of the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984): (1) that his counsel's performance "fell below an objective standard of reasonableness;" id. at 688, 104 S.Ct. at 2064; and (2) that counsel's performance prejudiced the defendant. Id. at 687, 104 S.Ct. at 2064.
Strain, 885 P.2d at 814. When reviewing a defendant's claim of ineffective assistance, we "may skip to the second prong of theStrickland standard and determine that the ineffectiveness, if any, did not prejudice the trial's outcome." State v. Goddard, 871 P.2d 540, 545 (Utah 1994).
In this case, Dupont has failed to satisfy the second prong of theStrickland test. To prevail on this prong, the defendant "must demonstrate `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Strain, 885 P.2d at 814 (citation omitted). Here, counsel's failure to challenge the sufficiency of the evidence did not prejudice Dupont because the challenge would have been denied. See State v. Yanez, 2002 UT App 50, ¶ 19, 42 P.3d 1248 (holding "trial counsel was not ineffective" for failing to raise an objection to the sufficiency of the evidence at trial because any such objection "would have been denied"),cert. denied, 53 P.3d 1 (Utah 2002).
"The court's power to review a jury verdict challenged on grounds of insufficient evidence is limited." State v. Rudolph, 2000 UT App 155, ¶ 22, 3 P.3d 192 (quotations and citation omitted). A court will reverse a jury verdict "only when, after viewing the evidence and all inferences drawn therefrom in a light most favorable to the verdict, [it] find[s] that `the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.'" Id. (citation omitted).
At trial, the jury heard evidence that Dupont ran from the scene of a traffic stop immediately after the arresting officer opened a shaving kit retrieved from the vehicle, discovered controlled substances, and told the other officer to detain him. One or both of the officers then ordered Dupont to stop, but he continued running. In fact, Dupont stopped running only after both officers gave chase and came within three or four feet of him. With this evidence, a reasonable jury could have found that Dupont knew or should have known by exercise of reasonable care that the officers were seeking a lawful arrest or detention, and that Dupont interfered with that arrest or detention by refusing to perform an act required by lawful order necessary to effect the arrest or detention.See Utah Code Ann. § 76-8-305 (1999). Therefore, Dupont has failed to show ineffective assistance of counsel.
Dupont argues the evidence presented at trial shows the arresting officer only "motioned" to the other officer to detain Dupont. However, the arresting officer testified twice that he "told" the other officer to detain Dupont. Therefore, viewing the evidence in the light most favorable to the jury verdict, we accept that the arresting officer told the other officer to detain Dupont. See State v. Rudolph, 2000 UT App 155, ¶ 22, 3 P.3d 192.
We note the irony in refusing to hear Dupont's sufficiency of the evidence claim for failure to preserve while reviewing his sufficiency of the evidence claim in the context of his ineffective assistance of counsel claim. We addressed this inconsistency in State v. Rudolph, 2000 UT App 155, 3 P.3d 192, where we held that a post-trial motion challenging the sufficiency of the evidence is "not . . . a prerequisite to challenge the same on appeal." Id. at ¶ 21. In reaching this decision, we reasoned that "this court is in as good a position as the trial court to review the evidence and make [a] determination [on the sufficiency of the evidence]." Id. at ¶ 17. This reasoning holds true here. We were required to and did review the sufficiency of the evidence to rule on Dupont's ineffective assistance of counsel claim. However, State v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346, binds this court and prevents us from directly hearing a sufficiency of the evidence claim not properly preserved in the trial court.
Second, Dupont claims the trial court erred by submitting a flight instruction to the jury because the flight instruction was not supported by the evidence. The trial court's decision to submit a flight instruction to the jury is a question of law we review for correctness, according no deference to the trial court's decision. See State v. Riggs, 1999 UT App 271, ¶ 7, 987 P.2d 1281.
Flight instructions are permissible if they are "supported by the evidence" and "`bear a relationship to evidence reflected in the record.'" Id. at ¶ 9 (citation omitted).
In this case, the flight instruction was supported by the evidence. InState v. Bales, 675 P.2d 573 (Utah 1983), the Utah Supreme Court found "ample evidence to justify an instruction on flight" where the evidence showed that when an "officer identified himself and ordered the defendants to stop, [the defendants] first hid and then fled. Both were apprehended, one almost immediately and the other within minutes." Id. at 574-75. Similarly, in this case, the flight instruction was supported by the evidence. The arresting officer testified that immediately after he discovered controlled substances in the shaving kit and told the other officer to detain Dupont, Dupont ran from the scene. Even after the officers ordered Dupont to stop, Dupont continued running, requiring the officers to give chase. Dupont ran about thirty feet, but finally stopped and said, "I give up, I give up," when the officers got within three or four feet of him.
The flight instruction also bore a relationship to the evidence reflected in the record. A flight instruction bears a relationship to the evidence reflected in the record if the "flight occurred after [the] commission of the crime charged." State v. Howland, 761 P.2d 579, 580 (Utah Ct.App. 1988) (footnote omitted); see also Riggs, 1999 UT App 271 at ¶ 11 (determining flight instruction permissible because the jury was advised "that it could convict [the defendant] on the lesser offense," the elements for which occurred before the defendant's flight). Here, Dupont was charged with two counts of unlawful possession of a controlled substance. To convict Dupont, the State had to show Dupont knowingly and intentionally possessed a controlled substance. See Utah Code Ann. § 58-37-8(2)(a)(i) (Supp. 1999). The evidence the State presented to support these charges derived from incidents that occurred immediately prior to Dupont's flight. Therefore, it was appropriate to provide the jury with a flight instruction in regard to the possession charges.
However, Dupont was also charged with one count of interference with an arresting officer. To obtain a conviction on this charge, the State had to show Dupont knew or should have known by exercise of reasonable care that the officers were seeking his lawful arrest or detention, and Dupont refused to perform an act required by lawful order necessary to effect an arrest or detention. See Utah Code Ann. § 76-8-305. The evidence the State offered to support this charge occurred not before, but during Dupont's flight. We decline to decide whether submitting the flight instruction to the jury with regard to this charge was error because any error that did occur was harmless.
"[H]armless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings." State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888. "Put differently, an error is harmful only if the likelihood of a different outcome is sufficiently high that it undermines our confidence in the verdict." Id. In this case, the State offered testimony from both officers to show that Dupont knew the officers were seeking his arrest and refused to stop his flight from the scene when the officers ordered him to stop. Given this evidence, our confidence in the jury's verdict for interference with an arresting officer is not undermined, and we conclude that even if it was error to provide the flight instruction with regard to the interference charge, the error was harmless.
Thus, Dupont's trial counsel was not ineffective for failing to challenge the sufficiency of the evidence, and the trial court did not err by submitting a flight instruction to the jury. If the trial court erred by not limiting the flight instruction to the possession of a controlled substance charges, the error was harmless. Therefore, we affirm.
WE CONCUR: Pamela T. Greenwood, Judge, and William A. Thorne Jr., Judge.