State v. Leber

2007 UT App 273, 167 P.3d 1091, 584 Utah Adv. Rep. 3, 2007 Utah App. LEXIS 273, 2007 WL 2264090
CourtCourt of Appeals of Utah
DecidedAugust 9, 2007
Docket20060613-CA
StatusPublished
Cited by4 cases

This text of 2007 UT App 273 (State v. Leber) 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. Leber, 2007 UT App 273, 167 P.3d 1091, 584 Utah Adv. Rep. 3, 2007 Utah App. LEXIS 273, 2007 WL 2264090 (Utah Ct. App. 2007).

Opinion

OPINION

GREENWOOD, Associate Presiding Judge:

T 1 Defendant Kenneth Anthony Leber appeals his jury conviction of second degree felony child abuse. See Utah Code Ann. § 76-5-109 (Supp.2006). On appeal, Defendant contends that the trial court abused its discretion in admitting evidence of Defendant's prior crimes and bad acts without first conducting an inquiry under rule 404(b) of the Utah Rules of Evidence. See Utah R. Evid. 404(b). Defendant also claims ineffective assistance of counsel. We affirm.

*1093 BACKGROUND

T2 In January 2006, Defendant was involved in an altercation with his fifteen-year-old son, ML., over M.L.'s guitar playing. According to ML., when ML. refused to stop playing the guitar a fight ensued between Defendant and his son, and Defendant threw ML. against a mirror and choked him into unconsciousness. - Police found ML. at a grocery store in Mexican Hat, Utah, where he had a bleeding mouth, swollen eye, and finger marks around his neck. At Defendant's mobile home, police observed a mirror broken in two places, where it appeared someone had been smashed into it, and blood in the hallway and the bathroom sink. Defendant told the officers that ML. had pushed him and that he was defending himself.

T3 Defendant was charged with second degree felony child abuse. See Utah Code Ann. § 76-5109. At Defendant's jury trial, the trial court ruled that Defendant's counsel had opened the door to M.L.'s character trait for violence through opening argument statements and questions posed to M.L. Pursuant to rules 404(a) and 405 of the Utah Rules of Evidence, the trial court then allowed the admission of evidence about Defendant's reputation for violence and about three of Defendant's prior crimes or bad acts. See Utah R. Evid. 404(a), 405. In addition, the trial court suggested, and defense counsel approved, a rule 404(b) jury instruction limiting the jury's use of the prior bad acts evidence. See id. 404(b). The jury convicted Defendant, and he now appeals.

ISSUES AND STANDARDS OF REVIEW

14 Defendant argues that the trial court abused its discretion in admitting evidence of Defendant's prior bad acts. We review a trial court's decision to admit evidence of prior crimes and other bad acts under an abuse of discretion standard. See State v. Decorso, 1999 UT 57, ¶ 18, 998 P.2d 837. However, "[Iwle may affirm if the evidence was admissible on any ground or if erroncous admission of the evidence was harmless error." United States v. McHorse, 179 F.3d 889, 901 (10th Cir.1999) 1

T5 Defendant also claims that his trial counsel was ineffective for failing to present certain evidence and failing to object to the admission of other evidence. "In order to demonstrate ineffective assistance, an appellant must show that trial counsel rendered deficient performance which fell below an objective standard of professional judgment, and that the deficiency was ultimately prejudicial." State v. Pecht, 2002 UT 41, ¶ 41, 48 P.3d 931 (quotations omitted). Ineffective assistance of counsel claims are reviewed as a matter of law, for correctness. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376.

ANALYSIS

I. Defendant's Prior Bad Acts

T6 At trial, Defendant relied on a claim of self-defense. In arguing that Defendant used "reasonable force" to "defend himself" against his son's alleged attack, defense counsel stated in opening - argument: "[Yjou're gonna hear that this is a teenage child that [Defendant] has had trouble with, in the past. He was acting up that day. It was, in fact, the child that attacked [Defendant]." Later, when defense counsel questioned M.L. about the reason he moved out of his mother's house, ML. stated that he had a fight with his mother's boyfriend. In response to this testimony, the trial court called a conference outside the jury's presence where the trial court determined that defense counsel's opening argument statements and his questioning of M.L. had put at *1094 issue the victim's propensity for violence, and therefore, the State could present evidence of Defendant's propensity for violence. 2 After ruling that Defendant had opened the door to M.L.'s propensity for violence under rule 404(a), the trial court appeared to apply rule 405. 3 While not specifically mentioning rule 405, the trial court referred to the rule's provisions, and then stated that the State could present reputation or opinion testimony about Defendant's propensity for violence and that, on cross-examination, Defendant could be asked about specific instances of conduct, including past erimes, that demonstrated violence. See Utah R. Evid. 405(a)-(b). 4

7 Accordingly, the trial court allowed the State to present reputation and opinion testimony from M.L.'s mother that Defendant is violent with children. On cross-examination, M.L.'s mother also testified that, in her opinion, M.L. is violent. The State also asked Defendant upon cross-examination about three specific instances of conduct demonstrating violence. These instances were Defendant's ten-year-old conviction for child abuse against M.L. when ML. was six-years-old, an assault in 2003, and a domestic violence incident against M.L.'s mother. Defendant's testimony regarding the prior bad acts was brief. Regarding the child abuse, Defendant stated only, "I was, ah, arrested ten years ago for a child abuse context." Defendant asserted that he was incarcerated without pleading guilty and without having a trial. The State did not question him further about the details of the incident. Defendant then denied being involved in an assault in Alaska in 2008, and no further details of that incident were presented. In regard to the domestic violence charge, Defendant stated, "I had a dispute with [M.L.'s] mother" and denied that child endangerment was involved.

T8 The admission of evidence of these three prior bad acts forms the basis for Defendant's first claim on appeal. Specifically, Defendant claims that the trial court abused its discretion in failing specifically to address and comply with the requirements of rule 404(b) before allowing testimony of the three prior acts under rule 405. 5 Defendant argues that this improper admission prejudiced the jury by "provok[ing]l the jury's instinct to punish and caus[ing] the jury to base its decision on something other than the established facts of the case."

T 9 The relevant rules of evidence state:

*1095 Rule 404(a)(1).
(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(a)(1) Character of accused.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Leber
2010 UT App 387 (Court of Appeals of Utah, 2010)
State v. Leber
2009 UT 59 (Utah Supreme Court, 2009)
State v. Patrick
2009 UT App 226 (Court of Appeals of Utah, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2007 UT App 273, 167 P.3d 1091, 584 Utah Adv. Rep. 3, 2007 Utah App. LEXIS 273, 2007 WL 2264090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-leber-utahctapp-2007.