State v. Christensen

2014 UT App 166, 331 P.3d 1128, 765 Utah Adv. Rep. 6, 2014 WL 3511931, 2014 Utah App. LEXIS 170
Court of Appeals of Utah·Decided July 17, 2014·No. No. 20130351-CA·Published·Cited by 10 cases

Opinion

Opinion

ROTH, Judge:

T1 Defendant Jeffery A. Christensen was convicted of second degree felony theft and third degree felony criminal mischief for the burglary of a hunting preserve elubhouse in Utah County. Police never recovered any of the stolen property, so the convictions were based largely on cireumstantial evidence and the company manager's estimate of the value of property that was stolen or damaged during the burglary. On appeal, Christensen argues that the manager's estimates were so speculative that it was plain error for the court to allow the jury to consider them and ineffective assistance for his trial counsel not to object to the sufficiency of the evidence. He also argues that the prosecutor inappropriately called the jury's attention to facts not in evidence during his closing argument, bolstered the credibility of a witness, and improperly offered his personal opinion of Christensen's guilt. We affirm.

BACKGROUND 1

12 Wasatch Wing & Clay (WWC) is a bird hunting preserve in Utah County located about twelve miles west of Lehi, accessed from SR-78. Brian Beckstead was WWC's manager until March 2012. His duties included managing the company's finances, overseeing routine maintenance throughout the company's property, and tracking its inventory.

T8 On Monday November 14, 2011, Beck-stead received a call at 1:80 a.m. from WWC's security company alerting him to a potential burglary at the WWC clubhouse. Because rodents had set off WWC's basement motion detectors in the past, Beckstead told the security company to call him back if it detected any activity on the main floor. One hour later, the security company called again and told Beckstead that movement had [1131]*1131been detected on the main floor. Beckstead immediately left his home in Saratoga Springs and drove toward the elubhouse. As he approached WWC from the southwest on SR-73, Beckstead saw a vehicle drive south on the dirt road from the elubhouse and then turn northeast on SR-78 toward Lehi. Beck-stead called 911 and followed the vehicle. He described the vehicle as a white Chevy pickup truck with a shell and gave the dispatcher its license plate number.

4 Beckstead eventually stopped following the truck and drove back to WWC to check on the clubhouse. He noticed that a cedar post that supported one of the company's brown-painted access gates had been "sheared off at the base." The gate was damaged and had black paint marks on it, and a window near the clubhouse's main door was also broken. Police arrived and took pictures of "black transfer" paint on the broken gate as well as two tire tracks they found nearby. Police then accompanied Beckstead inside the clubhouse, where he discovered that his computer, monitor, a painting, and several boxes of shirts were missing. The cash drawer, which had held both cash and checks when he closed up the night before, was also empty.

T5 The license plate number Beckstead called in was registered to Jerry Christensen, the father of the Defendant, Jeffery Christensen. Police visited the Christensen home the day of the burglary, but the truck was not there. Christensen's father told police that his son lived in a trailer next to the home but that he was not there because he was out driving the truck.

T6 Police arranged to interview Christensen the next day in his trailer. When they arrived, police noticed that the father's white pickup truck was parked outside and that it had a number of "serapes and seuffs on [its] black plastic" tire flares. The front bumper was "obviously dented" below the license plate, and there were several "dents and serapes" on the truck's passenger side. One dent near the bumper had "brown-colored tint paint transfer" that looked "fairly new." Later, police also determined that the tire tracks the investigators found near WWC's broken gate had "similar pattern characteristies" to the tread on the Christensen truck.

T7 Christensen told police that he was visiting a friend (Friend) in Lehi at the time of the burglary. Friend initially confirmed part of Christensen's story, telling police that Christensen stopped by for a cigarette sometime between 2:30 and 8:80 a.m. on November 14. But she later changed her story to say that Christensen had not visited her home that night and claimed that he had asked her to lie to police. Police never recovered any of the stolen property.

T8 The State charged Christensen with burglary, theft and criminal mischief. Based on Beckstead's estimate that the property stolen from the clubhouse was worth more than $5,000, the theft was charged as a second degree felony. The criminal mischief was charged as a third degree felony based on estimates that the damage to the window and gate was between $1,500 and $5,000. A jury convicted Christensen of all three counts. Christensen appeals.

ISSUES AND STANDARDS OF REVIEW

T9 Christensen argues that his trial counsel provided ineffective assistance by failing to seek a directed verdict based on insufficient evidence of the value of WWC's damaged and stolen property. He also argues that the estimates were so lacking in foundation that the court erred by submitting them to the jury. Additionally, Christensen argues that the prosecutor made several statements during closing argument that constituted prosecutorial misconduct.

110 None of the issues Christensen raises on appeal were preserved at trial, so he asks us to review them for ineffective assistance of counsel and plain error. "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 prove ineffective assistance, Christensen must show (1) "that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment" and (2) "that counsel's deficient performance was prejudicial-ie., that it affected the outcome of the case." [1132]*1132State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 LEd.2d 674 (1984)). "The first prong ... requires that the defendant rebut the strong presumption that under the cireumstances, the challenged action might be considered sound trial strategy." Id. (citation and internal quotation marks omitted). And "[wlhere the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of finding that counsel performed effectively." Id. ¶ 17. The failure "to raise futile objections does not constitute ineffective assistance of counsel." State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.

{11 To establish plain error, Christensen must show that "G) [aln error exists; (ii) the error should have been obvious to the trial court; and () the error is harmful, le., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." See State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).

112 Finally, Christensen invokes the cumulative error doctrine, arguing that the overall effect of these errors prejudiced his defense. We will reverse a conviction for cumulative error " 'only if the cumulative ef-feet of the several errors undermines our confidence ... that a fair trial was had." State v.

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State v. Christensen, 2014 UT App 166, 331 P.3d 1128, 765 Utah Adv. Rep. 6, 2014 WL 3511931, 2014 Utah App. LEXIS 170 (Utah Ct. App. 2014).

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