State v. Gerber

2015 UT App 76, 347 P.3d 852, 783 Utah Adv. Rep. 11, 2015 Utah App. LEXIS 77, 2015 WL 1500512
CourtCourt of Appeals of Utah
DecidedApril 2, 2015
Docket20130091-CA
StatusPublished
Cited by4 cases

This text of 2015 UT App 76 (State v. Gerber) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gerber, 2015 UT App 76, 347 P.3d 852, 783 Utah Adv. Rep. 11, 2015 Utah App. LEXIS 77, 2015 WL 1500512 (Utah Ct. App. 2015).

Opinions

Memorandum Decision

CHRISTIANSEN, Judge:

T1 Marva Rolena Gerber appeals her aggravated-arson conviction following a jury trial. Gerber argues on appeal that her trial counsel rendered constitutionally ineffective assistance, that the trial court failed to properly instruct the jury on cireumstantial evidence, and that the trial court erred in denying her motion for a new trial. We affirm.

T2 Gerber was charged with aggravated arson after the vacant house she had contracted to buy was set on fire.1 At trial, the State argued that Gerber was responsible for the arson but relied on cireumstantial evidence to prove Gerber's guilt. As part of its casein-chief, the State introduced evidence that on the day the house caught fire, Gerber told a detective that she had been at the house shortly before the time investigators believed the fire started. However, when police officers again interviewed Gerber approximately six weeks later, she denied ever having been at the house that morning. The State argued at trial that this inconsistency was critical cireumstantial evidence of Gerber's guilt. Gerber claimed that her inconsistent statements were caused by a transient ischemic attack, or "mini stroke," that she allegedly suffered roughly one week before the fire. Gerber's trial counsel did not introduce an independent expert to testify about Gerber's mental condition after the alleged mini stroke, but did elicit testimony from Gerber's foster daughter that the alleged mini stroke caused Gerber to be "foggy-headed."

{3 The trial court instructed the jury regarding the State's burden to prove the defendant guilty beyond a reasonable doubt using a standard instruction that did not mention cireumstantial evidence (Jury Instruction 8). Jury Instruction 8 was not discussed by the court and counsel before its inclusion in the final instructions, and Gerber's trial counsel did not object to this instruction or any other proposed jury instruetion. During closing arguments, Gerber's trial counsel described to the jury the reasonable-doubt standard contained in Jury Instruction 8 and argued that the State had failed to meet its burden. The jury found Gerber guilty of aggravated arson.

T4 Before sentencing, Gerber retained new counsel and moved for a new trial based on the alleged deficient performance of her trial counsel. Gerber argued that trial counsel rendered ineffective assistance because he did not call a rebuttal witness to contradict the State's fire experts and did not call a medical expert to testify about Gerber's alleged mini stroke and how it may have con[854]*854tributed to her inconsistent statements. Gerber did not identify what witnesses her trial counsel should have called or what testimony those witnesses would have provided at trial. At the hearing on the motion for a new trial, Gerber's counsel highlighted the circumstantial nature of the case but did not argue that Jury Instruction 8 was incorrect.

T5 At the end of the hearing, the trial court found that Gerber had made "no showing that any rebuttal expert even exists or evidence as to what he or she would be able to testify" and that there was no showing "that any medical expert would testify [about] an effect" from Gerber's medical history to explain her inconsistent statements. The trial court denied the motion for new trial, concluding that Gerber had not identified any failing of her trial counsel that would justify a new trial.2

16 Gerber raises two issues on appeal. First, she argues that the trial court failed to properly instruct the jury given the circumstantial nature of the State's case against her. Second, she argues that her trial counsel rendered constitutionally ineffective assistance and that the trial court erred in denying her request for a new trial on that basis.

17 First, we decline to. reach Gerber's argument that the trial court failed to properly instruct the jury regarding cireum-stantial evidence, because Gerber failed to preserve this issue for appellate review. "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (citation and internal quotation marks omitted). "Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid a manifest injustice." Utah R.Crim, P. 19(e). Gerber did not object to Jury Instruction 8 during trial or at the post-trial hearing on her motion for a new trial, and Gerber has not argued any exception to the preservation rule. As a result, we decline to address this argument.3

T8 Second, Gerber argues that her trial counsel was constitutionally ineffective and that the trial court erred in not granting her a new trial on that basis. The State correctly points out that Gerber failed to properly cite any record evidence supporting her arguments on appeal, as our rules of appellate procedure require. See Utah R.App. P. 24(a)(9). However, because we are able to evaluate the merits of Gerber's argument notwithstanding these deficiencies in her briefing, we exercise our discretion to address her argument that her trial counsel rendered ineffective assistance.

T9 To establish constitutionally ineffective assistance of counsel, an appellant "must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the deficient-performance element of the ineffective-assistance test, "a defendant must identify the acts or omissions which, under the cireumstances, show that counsel's representation fell below an objective standard of reasonableness" and overcome the reviewing court's presumption that "the challenged action might be considered sound trial strategy" State v. Templin, 805 P.2d 182, 186 (Utah 1990) (citations and internal quotation marks omitted). If a defendant fails to meet either part of the ineffective-assistance test, the court may conclude its inquiry and deny relief. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

110 Here, Gerber argues that her trial counsel performed deficiently by failing to sufficiently investigate the underlying facts in the case, because he (1) did not present any expert witness to explain the medical issues that Gerber claims caused her inconsistent statements to law enforcement and (2) failed to produce an independent fire [855]*855expert to contradict the State's experts regarding the cause of the fire.4 Gerber compares her case to State v. Hales, in which the Utah Supreme Court reversed a murder conviction because defense counsel failed to adequately investigate the key evidence in the case-CT seans of the victim's brain injuries. 2007 UT 14, ¶ 3, 152 P.3d 321. Gerber claims that in Hales, "the defendant was convicted based on his trial [attorneys'] failure to obtain expert testimony" to counter the prosecution's interpretation of the CT scans.

{ 11 We disagree with Gerber's interpretation of Hales and her characterization of her trial counsel's actions in this case. In Hales, the defendant was charged with murder based on allegations that he violently shook a child who later died from severe brain injuries. Id. T1.

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Bluebook (online)
2015 UT App 76, 347 P.3d 852, 783 Utah Adv. Rep. 11, 2015 Utah App. LEXIS 77, 2015 WL 1500512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gerber-utahctapp-2015.