Opinion
No. 990247-CA.
September 28, 2000. (Not For Official Publication)
Appeal from the Third District, West Valley Department, the Honorable Ann Boyden.
Jeffrey C. Howe, Salt Lake City, for Appellant.
J. Richard Catten, West Valley City, for Appellee.
Before Judges BILLINGS, ORME, and THORNE.
MEMORANDUM DECISION
Defendant appeals his conviction of three counts of distributing pornographic materials. We affirm on two counts, but vacate defendant's conviction on the third count.
Defendant argues he received ineffective assistance of counsel at trial. "Where, as here, a claim of ineffective assistance of counsel is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law." State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App. 1998). "However, `appellate review of counsel's performance must be highly deferential, otherwise, the "distorting effects of hindsight" would produce too great a temptation for courts to second-guess trial counsel's performance on the basis of an inanimate record.'"Id. (quoting State v. Tennyson, 850 P.2d 461, 466 (Utah Ct.App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065) (1984)).
For his claim to succeed, defendant "`must show that his trial counsel's performance was deficient in that "it fell below an objective standard of reasonableness" and that the deficient performance prejudiced the outcome of the trial.'" Id. (quotingState v. Winward, 941 P.2d 627, 635 (Utah Ct.App. 1997) (quotingStrickland, 466 U.S. at 687-88, 693, 104 S.Ct. at 2064, 2067)). Moreover, "we must be persuaded that there was a "`lack of any conceivable tactical basis" for counsel's actions.'" Id. (quotingState v. Garrett, 849 P.2d 578, 579 (Utah Ct.App. 1993) (quotingState v. Moritzsky, 771 P.2d 688, 692 (Utah Ct.App. 1989))).
Defendant first asserts his counsel failed to object to certain evidence which, according to defendant, was admitted in violation of a pretrial stipulation. The parties agreed on the record that information from other cases pending against the defendant would not be admitted during trial of this case. The evidence at issue consisted of testimony by one of the arresting officers that approximately four months prior to defendant's arrest in this case, the officer had seized similar videotapes from defendant. However, the officer testified that no charges were filed based on the seizure of those tapes. As the stipulation only excluded evidence relating to pending charges, the officer's testimony did not violate the stipulation. Thus, counsel's failure to object did not fall "below an objective standard of reasonableness" and did not constitute ineffective assistance. Bryant, 965 P.2d at 542.
Defendant also asserts his trial counsel was ineffective for failing to request a psychiatric examination. "In . . . cases where failure to conduct a psychological exam has been held to constitute ineffective assistance of counsel, the defendants had a history of serious mental illness and could show how an investigation would have furthered their defenses." State v. Taylor, 947 P.2d 681, 687 (Utah 1997). In this case, no history of mental illness or other factual basis exists in the record to support such a request. Thus, counsel's failure to request an evaluation was not unreasonable.
Defendant further asserts his trial counsel inadequately prepared for trial, failed to get defendant's approval for stipulations, and was ineffective in failing to give an opening statement on defendant's behalf. However, defendant has not provided this court with an adequate evidentiary record to support these contentions. Moreover, "if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel." State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993). We conclude defendant has not demonstrated that his trial counsel was ineffective.
Defendant argues several statements by the prosecutor during trial constitute prosecutorial misconduct.
We review prosecutorial misconduct claims for an abuse of discretion and will reverse only if . . . `the actions or remarks of . . . counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict, and, if so, . . . whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.'
State v. Kohl, 2000 UT 35, ¶ 22 392 Utah Adv. Rep. 3 (quoting State v. Longshaw, 961 P.2d 925, 928 (Utah Ct.App. 1998)). In addition, "if proof of defendant's guilt is strong, the challenged conduct or remark will not be presumed prejudicial." Longshaw, 961 P.2d at 931. On cross examination, the following exchange occurred between the prosecutor, the court, and the interpreter:
The Court: Mr. Stoney, let it be interpreted. I want us to follow the process —
Mr. Stoney (the prosecutor): Okay.
The Court: — that the attorney ask the question, you interpret it.
The Interpreter: Right.
The Court: Even if you understand part of it, wait until it's interpreted and answer in your native language.
Mr. Stoney: Your Honor, this is a sham. He understands every word I'm saying.
While the prosecutor's comment was clearly inappropriate, defendant fails to show how he would have obtained a more favorable result absent the prosecutor's remarks. Strong proof supported the guilty verdict, including defendant's own testimony that he sold the videotapes to the officer, that he told the officer the tapes showed sexual penetration, and that he knew selling the tapes was illegal. Therefore, we conclude defendant was not prejudiced by the prosecutor's remarks.
Finally, defendant argues the trial court erred in not dismissing one count of distributing pornography under the "single criminal episode" doctrine, as set forth in Utah Code sections 76-1-401 and 402. "The interpretation of a statute is a question of law, which we review for correctness." Provo City v. Cannon, 1999 UT App 34, ¶ 5, 994 P.2d 206. Section 76-1-401 states, in relevant part: "`single criminal episode' means all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective." Utah Code Ann. § 76-1-401 (2000).
In this case, the record reveals that defendant was charged with and convicted of three counts of distributing pornography after selling a police officer one pornographic videotape on April 19, 1998, and two pornographic videotapes on April 24, 1998. Under section 76-1-401, the April 24, 1998 sale of two videotapes to the same person at the same time as part of a single transaction constitutes a "single criminal episode."
The state, however, argues that section 76-10-1204, which specifically governs the distribution of pornographic material, mandates a different result. Section 76-10-1204 states: "Each distributing of pornographic material . . . is a separate offense." Id. § 76-10-1204(2). The state claims each tape sold is a separate "distribution" and thus defendant was properly convicted of three counts of distributing pornography. We disagree.
We cannot say that selling the same person two pornographic videos at the same time as part of the same transaction is more than a single instance of "distributing" under section 76-10-1204(2). If the legislature had intended each videotape, rather than each sale, to constitute a separate offense, it could have so stated. As section 76-10-1204 is currently drafted, a defendant is not on notice that the sale of each tape would be a separate crime.
Thus, we vacate defendant's conviction on one count of distributing pornography and remand for proceedings consistent with our decision.
WE CONCUR: GREGORY K. ORME, Judge, and WILLIAM A. THORNE, Jr., Judge.