State v. Ricks

2013 UT App 238
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
BRAD R. RICKS,
Defendant and Appellant.

Opinion
No. 20111115‐CA
Filed October 18, 2013

Second District Court, Ogden Department
The Honorable Michael D. Lyon
No. 091900839

Randall W. Richards and Brittany R. Brown,
Attorneys for Appellant
John E. Swallow and Brett J. DelPorto, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.

VOROS, Judge:

¶1 Defendant Brad R. Ricks and his friend Maurice Lee were
drinking together one night in 2009. They got into what Ricks later
called “a pissing match about who had the balls big enough to do
something.” At Lee’s urging, Ricks fetched his semiautomatic
pistol from the bedroom, placed it against Lee’s forehead, and
pulled the trigger. Ricks later testified that he expected to hear a
clicking sound. Instead, the gun discharged. The principal question
 State v. Ricks

on appeal is whether the facts established at trial are sufficient to
support the jury’s verdict of depraved indifference murder. We
hold that they are.

BACKGROUND1

¶2 Ricks knew the gun’s magazine held ammunition. But while
walking down a darkened hallway, he “managed to get into the
light” and pulled the gun’s slide back part way to confirm that no
shell was in the chamber. Though he believed he had pulled the
slide back only far enough to look inside, he in fact had pulled it
back far enough to chamber a round once the slide was released.
Placing the weapon to Lee’s forehead, Ricks said, “Well, this one
will make you flinch.” Lee replied, “You don’t have the balls,” and
repeatedly told Ricks, “Do it.” Ricks finally pulled the trigger,
killing Lee.

¶3 After shooting Lee, Ricks called 911 and told the dispatcher,
“I just shot a man in his head. . . . He’s dead. . . . He said, ‘Shoot
me,’ and I did.” When police officers arrived, Ricks told them,
“Well, my neighbor is in the house. He kept telling me to shoot
him, so I did.” At trial, Ricks testified that he was a close friend of
Lee and that he had known him for roughly two years. Ricks also
testified that despite knowing that bullets were in the magazine
and the magazine was in the gun, he believed the gun was
unloaded because he “did not see [a round] in the chamber when
[he] pulled the slide back.” Ricks testified that he did not mean to
kill Lee. However, Ricks also testified that he knew he was

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citations
and internal quotation marks omitted).

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 State v. Ricks

intoxicated and that he should not have pulled his gun out or
placed it against Lee’s head.

¶4 Ricks was convicted of murder, a first‐degree felony. See
Utah Code Ann. § 76‐5‐203(2) (LexisNexis Supp. 2008).2 He was
sentenced to a prison term of sixteen years to life.3

ISSUES AND STANDARDS OF REVIEW

¶5 Ricks contends that the evidence was insufficient to convict
him of murder. In determining whether evidence was insufficient,
we “view[] the evidence and all inferences drawn therefrom in a
light most favorable to the jury’s verdict.” State v. Holgate, 2000 UT
74, ¶ 18, 10 P.3d 346. If, in that light, “the evidence is sufficiently
inconclusive or inherently improbable such that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted,” we will
conclude that the evidence was indeed insufficient. Id. (citation and
internal quotation marks omitted).

¶6 Ricks also contends that he received ineffective assistance of
counsel at trial. “An ineffective assistance of counsel claim raised
for the first time on appeal presents a question of law, which we
review for correctness.” State v. Fowers, 2011 UT App 383, ¶ 15, 265
P.3d 832 (citation and internal quotation marks omitted).

2. We refer to the version of the Utah Code in effect at the time of
the events giving rise to this case.

3. Ricks moved the trial court to enter judgment for the next lower
degree of offense and to impose sentence accordingly on the
ground that a murder conviction was “unduly harsh.” See Utah
Code Ann. § 76‐3‐402(1). The court denied the motion on the
ground that a conviction for murder may not be reduced under
section 402. See id. § 76‐3‐406(2).

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 State v. Ricks

ANALYSIS

I. Sufficiency of the Evidence

¶7 Ricks contends that the evidence at trial was insufficient to
support his murder conviction. Specifically, he argues that the State
“failed to carry its burden in attempting to establish that [he] did
more than just act recklessly.”

¶8 When reviewing the sufficiency of the evidence, appellate
courts ordinarily “may not reassess credibility or reweigh the
evidence, but must resolve conflicts in the evidence in favor of the
jury verdict.” State v. Workman, 852 P.2d 981, 984 (Utah 1993).
However, “[a] guilty verdict is not legally valid if it is based solely
on inferences that give rise to only remote or speculative
possibilities of guilt.” Id. at 985.

¶9 Here, the jury was instructed on the elements of murder:

Before you can convict the defendant of [murder],
you must find from the evidence, beyond a
reasonable doubt . . . :
(1) That defendant, Brad R. Ricks;
(2) (a) intentionally or knowingly caused the death of
Maurice Lee;
OR
(b) intending to cause serious bodily injury to
Maurice Lee, committed an act clearly dangerous to
human life that caused the death of Maurice Lee;
OR
(c) acting under circumstances evidencing a
depraved indifference to human life, knowingly
engaged in conduct which created a grave risk of
death to Maurice Lee and thereby caused the death
of Maurice Lee.

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 State v. Ricks

This instruction reflects the statutory definition of the crime. See
Utah Code Ann. § 76‐5‐203(2)(a) through ‐203(2)(c) (LexisNexis
Supp. 2008) (stating the elements of murder).

¶10 We begin by considering whether the evidence was
sufficient to support the third statutory variant of murder: that the
killing was committed with a depraved indifference to human life.

(2) Criminal homicide constitutes murder if:
...
(c) acting under circumstances evidencing a depraved
indifference to human life, the actor knowingly engages in
conduct which creates a grave risk of death to another and
thereby causes the death of another; . . . .

Id. § 76‐5‐203(2)(c). To be found guilty of depraved indifference
murder under this section, “a defendant must know the nature of
his conduct, must know the circumstances that give rise to the risk
of death, and must know that the risk constitutes a grave risk of
death.” State v. Standiford, 769 P.2d 254, 263 (Utah 1988); see also
State v. Powell, 872 P.2d 1027, 1030 (Utah 1994).

¶11 Ricks claims that he was at most guilty of reckless
manslaughter. The jury was also instructed on reckless
manslaughter as defined in the Utah Code:

Criminal homicide constitutes manslaughter if the
actor:
(a) recklessly causes the death of another; . . . .

Utah Code Ann. § 76‐5‐205(1)(a) (LexisNexis 2008). As defined by
statute, a person acts recklessly “when he is aware of but
consciously disregards a substantial and unjustifiable risk” that the
harm will occur. Id. § 76‐2‐103(3) (Supp. 2008). “The risk must be of
such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor’s

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 State v. Ricks

standpoint.” Id. As our supreme court has explained, “[d]epraved
[indifference] murder requires greater culpability than reckless
manslaughter.” Standiford, 769 P.2d at 263. This is because “the
probability of the risk of death must be higher for depraved murder
than for manslaughter.” Id. at 264. A “grave risk of death” is a
“highly likely probability that death will result,” which is greater than
the “substantial and unjustifiable risk” required to convict of
manslaughter. Id.

¶12 Ricks relies on the supreme court’s opinion in Boggess v.
State, 655 P.2d 654 (Utah 1982). Boggess was smoking marijuana
and playing with his single‐action .44 magnum revolver, loading
and unloading it, pointing it at various targets in the room, and
“dry‐firing” it. Id. at 654. When his wife asked him to unload the
gun, he said, “It’s not loaded,” pointed it at her, and pulled the
trigger. Id. The gun discharged, killing her. Id. Boggess was
convicted of reckless manslaughter, and our supreme court
affirmed the conviction. The court noted that Boggess was aware
of the dangers associated with the use of guns, had admitted that
he should have looked to ensure the gun was unloaded before
firing it, and had acknowledged that he picked a “hell of a way to
show it’s unloaded.” Id. at 655.

¶13 Ricks argues that Boggess controls here, effectively capping
his own criminal liability at reckless manslaughter. He asserts that,
as in Boggess, “[t]he only evidence presented by either side at trial
established that Mr. Ricks did not believe the gun was loaded.”
First of all, we are not persuaded that Boggess represents an upper
limit on jury verdicts in “dry‐firing” cases. The Boggess court did
not reverse a conviction for depraved indifference murder; it
affirmed a conviction for reckless manslaughter. Whether it would
have affirmed a conviction for depraved indifference murder on
the same facts is a matter of speculation.

¶14 Moreover, this case is not as factually similar to Boggess
as Ricks’s argument assumes. While Ricks may not have
believed an unexpended shell was in the firing position, he did

20111115‐CA 6 2013 UT App 238
 State v. Ricks

know that his pistol was “loaded” as that term is commonly
understood. See, e.g., Macmillan Dictionary, http://www.macmillan
dictionary.com/us/dictionary/america/loaded (last visited Oct. 2,
2013) (defining loaded as “containing bullets”).4 Accordingly, while
Boggess believed the gun he fired was unloaded, Ricks knew the
gun he fired was loaded but believed that no round was
chambered. He believed this after having checked the chamber by
pulling back the slide—the same action, albeit to a lesser degree,
required to chamber a round. He performed this check while
intoxicated and apparently in marginal light. Accordingly, even if
the facts of Boggess could not support a conviction for depraved
indifference murder, the facts of the present case demonstrate
greater culpability.

¶15 As our supreme court has made clear, the risk of death
involved in depraved indifference murder “must be so great as to
evidence such an indifference to life as to be tantamount to that
evidenced by an intent to kill.” State v. Standiford, 769 P.2d 254, 259
(Utah 1988). Risk has two dimensions: the likelihood of the

4. A semiautomatic pistol with no shell in firing position is not
“loaded” as that term is defined in one statute inapplicable here.
Utah Code section 76‐10‐502 states:
(1) For the purpose of this chapter, any pistol,
revolver, shotgun, rifle, or other weapon described in
this part shall be deemed to be loaded when there is
an unexpended cartridge, shell, or projectile in the
firing position.
(2) Pistols and revolvers shall also be deemed to be
loaded when an unexpended cartridge, shell, or
projectile is in a position whereby the manual
operation of any mechanism once would cause the
unexpended cartridge, shell, or projectile to be fired.
Utah Code Ann. § 76‐10‐502 (LexisNexis 2008). Ricks did not rely
on this statute below, nor does he on appeal. And by its own terms,
it does not apply to chapter 5 of title 76 of the Utah Code.

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 State v. Ricks

potential harm and the magnitude of that harm. Id. at 263 n.9 (“The
magnitude of a given risk is determined in part by the probability
that the risk will be actualized and in part by the seriousness of the
consequence if the risk is actualized.”). Here, the magnitude of the
harm was extreme: death was virtually certain to result if the gun
discharged. The likelihood of harm was also great: as explained
above, the gun was loaded and Ricks knew it was loaded, yet he
placed the gun to Lee’s forehead and pulled the trigger. The
participants themselves regarded this act as proof that Ricks had
“the balls big enough to do something”—they understood they
were flirting with death.

¶16 This case is as close as it is tragic. Justice Stewart, writing
separately in Boggess, stated that determining the degree of guilt in
that case required “making a judgment as to where on a continuum
of unreasonable conduct one’s behavior passes from negligence to
recklessness.” Boggess, 655 P.2d at 658 (Stewart, J., concurring). “In
essence,” he wrote, “it is a matter of judging when conduct is no
longer just gray but dark gray.” Id. “Such judgments,” he
continued, “are for juries to make, not judges.” Id.

¶17 The case before us calls for a similar judgment further along
the same continuum. This judgment belongs to the jury so long as
the evidence, viewed in the light most favorable to the jury’s
verdict, is not so inconclusive or inherently improbable that
“reasonable minds must have entertained a reasonable doubt.” See
State v. Ali, 2013 UT App 113, ¶ 3, 300 P.3d 794 (citation and
internal quotation marks omitted). Here, reasonable minds could
conclude that Ricks’s actions created not merely the “substantial
and unjustifiable risk” required to convict of reckless
manslaughter, but the “grave risk of death” and “depraved
indifference to human life” required to convict of depraved
indifference murder. Compare Utah Code Ann. § 76‐2‐103(3)
(LexisNexis 2008), id. § 76‐5‐205(1)(a), and State v. Standiford, 769
P.2d 254, 262–63 (Utah 1988), with Utah Code Ann. § 76‐5‐203(2)(c)
(LexisNexis Supp. 2008). Accordingly, we reject Ricks’s sufficiency
challenge to his conviction for depraved indifference murder.

20111115‐CA 8 2013 UT App 238
 State v. Ricks

¶18 Ricks also challenges the sufficiency of the evidence to
support the other variants of murder on which the jury was
instructed. However, when a jury is instructed on multiple variants
of murder, “[t]he State need[s] to provide only enough evidence to
satisfy [one] of these tests.” State v. Hales, 2007 UT 14, ¶ 60, 152 P.3d
321. Specifically, when a jury has been instructed on multiple
variants of murder, and the defendant challenges his conviction on
appeal on the ground that his acts were at most reckless, the
reviewing court will sustain the verdict against a sufficiency
challenge so long as it is “reasonable for a jury to find the requisite
intent and actions for depraved indifference murder from the . . .
evidence.” State v. Powell, 872 P.2d 1027, 1033 (Utah 1994).
Accordingly, because we have concluded that the evidence was
sufficient to support a jury finding of depraved indifference
murder, we need not analyze whether the evidence would also
support the other variants of murder on which the jury was
instructed.

II. Ineffective Assistance of Counsel

¶19 Ricks contends that he received ineffective assistance of
counsel when his trial counsel failed to object to a jury instruction
and failed to object to the prosecutor’s closing arguments.5 Under
Strickland v. Washington, an ineffective assistance of counsel claim
has two parts:

First, the defendant must show that counsel’s
performance was deficient. This requires showing

5. Although Ricks nominally relies on the Utah Constitution, he
undertakes no separate state constitutional analysis. Where an
appellant “neither attempts any separate state constitutional
analysis nor suggests that the two constitutional protections are
anything but coextensive,” the state constitutional issue is not
properly before the reviewing court. State v. Worwood, 2007 UT 47,
¶ 19, 164 P.3d 397.

20111115‐CA 9 2013 UT App 238
 State v. Ricks

that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.

466 U.S. 668, 687 (1984); see also State v. Litherland, 2000 UT 76, ¶ 19,
12 P.3d 92. “The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694.

A. Failure to Object to a Jury Instruction

¶20 Ricks contends that his trial counsel was deficient because
he did “not [request] an appropriate jury instruction” or object to
the jury instruction defining all three variants of the crime of
murder. Specifically, Ricks complains that his trial counsel failed
to object to a jury instruction that allowed the jury to convict him
of murder if it found that he killed Lee knowingly or intentionally
or while intending serious bodily injury. This failure to object was
deficient, Ricks argues, because mid‐trial the prosecutor
conceded—and the trial court ruled—that no evidence supported
those variants of the crime. That is not how we read the record.

¶21 At the conclusion of the State’s case in chief, Ricks moved
for a directed verdict on the ground that, absent any “sign of any
kind of anger or hatred,” the evidence did not support any variant
of the crime of murder. The prosecutor responded that “the
evidence could be viewed by the jury to support any one of those
three” variants of murder: that the act was knowing or intentional,
that Ricks had intended to cause serious bodily injury, or that Ricks
had acted with depraved indifference to human life. Ricks is correct

20111115‐CA 10 2013 UT App 238
 State v. Ricks

that the trial court expressed skepticism, asking, “Where’s the
evidence that he intended to kill him?” But after hearing further
from the prosecutor, the court denied the motion on the basis that
“at this point it’s a jury question.”

¶22 Because the trial court had already ruled that whether the
evidence supported any of these three variants of murder was a
jury question, an objection to the murder instruction on the ground
that the evidence did not support the first two variants of the crime
would have been futile. The Sixth Amendment does not require
counsel to make futile objections. State v. Whittle, 1999 UT 96, ¶ 34,
989 P.2d 52.

¶23 Ricks suffered no prejudice in any event. As explained
above, under controlling case law, when a jury has been instructed
on multiple variants of murder, a conviction will be sustained on
appeal so long as it is “reasonable for a jury to find the requisite
intent and actions for depraved indifference murder from
the . . . evidence.” State v. Powell, 872 P.2d 1027, 1033 (Utah 1994).
Because we have already determined that the evidence was
sufficient for the jury to find Ricks guilty of depraved indifference
murder, instructing on other variants of the crime did not prejudice
him.

B. Failure to Object to the State’s Closing Argument

¶24 Finally, Ricks argues that his trial counsel was deficient for
failing “to object to the prosecutor’s incorrect statement of law”
during the State’s closing argument.

¶25 Because this ineffective assistance of counsel claim assumes
misconduct by the prosecutor, we first consider whether any
objectionable prosecutorial misconduct occurred. Under State v.
Troy, prosecutorial misconduct claims are analyzed under a two‐
step test. 688 P.2d 483, 486 (Utah 1984) (citation and internal
quotation marks omitted). Courts first ask whether “the remarks
call to the attention of the jurors matters which they would not be

20111115‐CA 11 2013 UT App 238
 State v. Ricks

justified in considering in determining their verdict.” Id. If so,
courts then consider whether jurors were, “under the
circumstances of the particular case, probably influenced by those
remarks.” Id. “When the prosecution misstates the law during
closing argument, it necessarily calls the jurors’ attention to matters
that they are not justified in considering, thus satisfying the first
prong of the prosecutorial misconduct test.” State v. Todd, 2007 UT
App 349, ¶ 28, 173 P.3d 170 (citations omitted).

¶26 Here, Ricks contends that the prosecutor misstated the law
by in effect asserting that Ricks “didn’t have to intend to cause the
death, but if he simply knowingly and intentionally pulled the
trigger, he was guilty of murder.” Again, this is not how we read
the record.

¶27 In the remarks that Ricks relies on, the prosecutor did not
state that Ricks was guilty of murder so long as he knowingly and
intentionally pulled the trigger. However, she did state that Ricks
in fact knowingly and intentionally pulled the trigger:

[Ricks k]nowingly went down that hallway,
knowingly, intentionally got that gun, knowingly
and intentionally turned around, came back down
that hallway. He either dropped the clip, unloaded it,
reloaded it and went in or he just pulled it back part
way to check. Either way he intentionally and
knowingly came around the corner into the kitchen
with the gun in his hand. He intentionally and
knowingly walked up to Maurice Lee and put the
gun against Maurice’s forehead . . . . He intentionally
and knowingly pulled the trigger.

The prosecutor then went on to explain that to be guilty of
depraved indifference murder, Ricks did not have to intend to
cause death, but he did have to have acted knowingly, in a manner
utterly calloused toward the value of human life, and with

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 State v. Ricks

complete indifference to whether his knowing conduct would
create a grave risk of death:

Now for depraved indifference you only have to say
well, he knowingly did that. He doesn’t have to
intend to cause death. He doesn’t even have to be
aware that he’s reasonably certain to cause death.
Knowingly does the act, he’s utterly calloused
toward the value of human life if he puts that loaded
gun to a man’s forehead and pulls the trigger.
Complete indifference to whether his conduct, his
knowing conduct will create a grave risk of death to
another.

¶28 In this passage, the prosecutor was paraphrasing our
supreme court’s Standiford opinion, which refers to the mental state
required for depraved indifference murder in such terms as “utter
callousness toward the value of human life,” “a complete and total
indifference as to whether one’s conduct will create the requisite
risk of death,” “proof that the defendant did an act which he knew
created a grave risk of death to another,” and the fact that the
accused “had to act knowingly.” State v. Standiford, 769 P.2d 254,
261–63 (Utah 1988). Ricks has not demonstrated, or even
undertaken to demonstrate, that the prosecutor substantially
mischaracterized Standiford.

¶29 Because Ricks has not shown that the prosecutor misstated
the law, he has also failed to show that any objection by his trial
counsel would have been well taken. Accordingly, he has not
demonstrated that his trial counsel was ineffective. See State v.
Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52.

CONCLUSION

¶30 We conclude that Ricks has not shown that the evidence of
depraved indifference murder was so lacking that no reasonable

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 State v. Ricks

juror could have found him guilty beyond a reasonable doubt. We
further conclude that Ricks’s claims of ineffective assistance of
counsel fail because objections to the jury instruction on the
variants of murder and to the prosecutor’s closing argument would
have been futile.

¶31 Affirmed.

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