Layton City v. Carr

2014 UT App 227
_________________________________________________________

THE UTAH COURT OF APPEALS

LAYTON CITY,
Plaintiff and Appellee,
v.
JACQUE ZACHARY CARR ,
Defendant and Appellant.

Opinion
No. 20120668-CA
Filed September 25, 2014

Second District Court, Layton Department
The Honorable Robert J. Dale
No. 121600400

Scott L. Wiggins, Attorney for Appellant

Marlesse D. Jones, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE GREGORY K. ORME and SENIOR JUDGE
RUSSELL W. BENCH concurred.1

CHRISTIANSEN, Judge:

¶1 Jacque Zachary Carr appeals from his convictions for
domestic-violence assault and commission of domestic violence in
the presence of a child. Carr argues that Layton City did not
introduce sufficient evidence to support his conviction for
domestic-violence assault and that he received ineffective
assistance of counsel. We affirm

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud. Admin.
11-201(6).
 Layton City v. Carr

BACKGROUND

¶2 The victim in this case (A.P.) was sleeping at home when
Carr, who was living with her at the time, returned home from
work some time after midnight.2 Carr found A.P.’s cell phone and
looked through her text messages, ultimately discovering a
conversation between her and another man. A.P. awoke to find
Carr next to her bed “with his fist in [her] face” and her cell phone
in his other hand, yelling at her about the text messages. A.P. was
scared and, knowing that Carr’s “temper was up” and that her
children were also in the bedroom, she fled the bedroom into a
hallway. As she ran down the hallway, she was pushed from
behind. A.P. screamed for her mother, who was also staying in the
home. Carr told A.P.’s mother, “I’m going to beat her ass, and I’m
going to beat her ass if you’re here or not.” A.P.’s mother then
called 911.

¶3 After police officers arrived, they separated Carr and A.P.
Officer Anthony Yuen interviewed A.P. about the incident. Officer
Yuen then spoke with Carr on the front porch of the house. Carr
admitted to Officer Yuen that he had confronted A.P. about the text
messages on her cell phone and that he had “held his clenched fist
above [A.P.’s] head” during the ensuing argument. He explained
that it “was not his intention to hit [A.P.] . . . , but he just had that
clenched fist above her head.” Carr denied pushing A.P. in the
hallway.

¶4 As a result of these events, Layton City charged Carr with
one count of domestic-violence assault and one count of
commission of domestic violence in the presence of a child.
Defendant pled not guilty, and his appointed counsel requested a

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.” State v. Bluff,
2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and internal quotation marks
omitted).

20120668-CA 2 2014 UT App 227
 Layton City v. Carr

bench trial. At trial, A.P., her six-year-old daughter, and Officer
Yuen testified on behalf of the City. Carr did not testify and
presented no witnesses. The trial court found that Carr had
threatened A.P. with his closed fist and that Carr had pushed A.P.
The trial court therefore found Carr guilty of both charges, and
Carr appeals.

ISSUES AND STANDARDS OF REVIEW

¶5 Carr first argues that the City presented insufficient
evidence to support his conviction for domestic-violence assault.
We review a trial court’s verdict after a bench trial for clear error
and will reverse only if the court’s judgment is “against the clear
weight of the evidence” or if we otherwise reach “a definite and
firm conviction that a mistake has been made.” State v. Walker, 743
P.2d 191, 193 (Utah 1987).

¶6 Carr next argues that he was deprived of his constitutional
right to the effective assistance of counsel. When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and “we must
decide whether [the] defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Tennyson, 850 P.2d
461, 466 (Utah Ct. App. 1993).

ANALYSIS

I. Carr’s Conviction for Domestic-Violence Assault Is Supported
by Sufficient Evidence.

¶7 Carr first contends that the City failed to present sufficient
evidence to convict him of domestic-violence assault. An assault is,
among other things, “a threat, accompanied by a show of
immediate force or violence, to do bodily injury to another.” Utah
Code Ann. § 76-5-102(1)(b) (LexisNexis 2008). And domestic

20120668-CA 3 2014 UT App 227
 Layton City v. Carr

violence includes the commission of an assault by one cohabitant
against another. Id. § 77-36-1(4)(b) (Supp. 2011). With respect to the
trial court’s determination that Carr had threatened A.P., Carr
challenges only the “trial court’s finding that the closed and
clenched fist constituted the threat,” and argues that this finding is
without evidentiary support. “On appeal from a bench trial, we
view the evidence in a light most favorable to the trial court’s
findings . . . .” State v. Davie, 2011 UT App 380, ¶ 2 n.1, 264 P.3d 770
(citation and internal quotation marks omitted).

¶8 The trial court found that Carr had made “a threat
accompanied by showing immediate force of violence to do bodily
injury to another,” explaining that “[t]he threat was there at the
time the closed and clenched fist was there.” A threat is “the
expression of an intention to inflict injury on another” through
conduct or words. State v. Hartmann, 783 P.2d 544, 546 (Utah 1989).
Carr contends that, notwithstanding the evidence that A.P. awoke
to Carr yelling and holding his fist in her face, the trial court’s
finding of a threat is unsupported because (1) A.P.’s testimony
“demonstrates that there was no motion toward[] her and no
movements toward her ever”; (2) A.P.’s daughter’s testimony
“indicates that she did not see a closed and clenched fist” and that
Carr “never acted like he was going to hit [A.P.]”; and (3) Carr told
Officer Yuen that he did not intend to hit A.P.

¶9 With respect to Carr’s first contention, we note initially our
disagreement with his characterization of A.P.’s testimony at trial.
A.P. did not testify that there was “no motion . . . and no
movements toward her ever.” Rather, she testified that she could
not remember whether Carr moved toward her or extended his fist
toward her. However, even if we considered A.P.’s testimony as
conclusively establishing that Carr did not extend his fist toward
her, Carr has cited no authority to suggest that it was necessary for
Carr to move as if to strike A.P. for his clenched fist to be
considered a threat, and we are not persuaded that such a
requirement exists. See id. (“Threats may be communicated by
action or conduct as well as by words.” (emphasis added)). Indeed,

20120668-CA 4 2014 UT App 227
 Layton City v. Carr

this court has previously affirmed an assault conviction based on
a threat accompanied by a show of force where the defendant was
“retreating from the situation,” “never made any movement
toward [the victim],” and never pointed the knife he was holding
at the victim or in her direction. Salt Lake City v. Maloch, 2013 UT
App 249, ¶ 4, 314 P.3d 1049 (internal quotation marks omitted)
(concluding that “the surrounding circumstances support[ed] the
trial court’s finding that [the defendant] intended to threaten [the
victim] with ‘bodily injury’ ‘by a show of immediate force or
violence’” (quoting Utah Code Ann. § 76-5-102(1)(b) (LexisNexis
2012))). Accordingly, A.P.’s testimony does not support Carr’s
claim of error in the trial court’s finding that Carr threatened A.P.

¶10 The balance of Carr’s challenge to the trial court’s factual
finding merely identifies the evidence that Carr asserts is
inconsistent with that finding. However, contradictory evidence is
generally not sufficient to overturn a verdict, because the factfinder
determines which evidence to believe when conflicting evidence is
presented. See State v. Mangum, 2013 UT App 292, ¶ 4, 318 P.3d 250;
cf. Davie, 2011 UT App 380, ¶ 20 (stating that when a trial court
evaluates witness credibility in a bench trial, “[t]he mere existence
of inconsistencies is not a sufficient basis to question credibility
determinations”). The evidence that was presented and apparently
found credible by the trial court demonstrated that Carr, while
yelling at A.P., raised his clenched fist above her head, causing her
to flee from the bedroom. This evidence is adequate to support the
trial court’s finding that Carr’s conduct constituted a threat.

¶11 The testimony of A.P.’s daughter—that she did not believe
Carr acted like he was going to hit A.P. and did not mention seeing
Carr’s clenched fist—is, at best, evidence that contradicts the
evidence supporting the finding. And Carr’s statement to Officer
Yuen that he did not intend to hit A.P., while certainly at odds with
the evidence that tended to show that his clenched fist was an
expression of such an intent, is similarly insufficient to demonstrate

20120668-CA 5 2014 UT App 227
 Layton City v. Carr

that the trial court’s finding is clearly erroneous.3 Mangum, 2013 UT
App 292, ¶ 4.

II. Carr Has Not Shown That His Counsel Was Ineffective.

¶12 Carr next argues that his trial counsel rendered
constitutionally ineffective assistance. To succeed on a claim of
ineffective assistance of counsel, a defendant must show both “that
counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). To establish that counsel’s performance was
deficient, a defendant “must show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688. This
showing requires the defendant to overcome the “strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. To establish the
prejudice element of an ineffective assistance of counsel claim, the
defendant “must show that a reasonable probability exists that, but
for counsel’s error, the result would have been different.” State v.
Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151 (citation and internal
quotation marks omitted).

¶13 Carr argues that his trial counsel was ineffective in three
respects: failing to investigate and present as evidence A.P.’s
victim-impact statement, failing to file a motion to suppress Carr’s
statements to Officer Yuen, and failing to adequately explain the
difference between a bench trial and a jury trial. Carr has also
moved this court for a remand to the trial court to enter factual
findings in support of his claims of ineffective assistance of counsel.

3. Carr also argues that the trial court’s finding that Carr pushed
A.P. is not supported by sufficient evidence. However, Carr was
convicted of only one count of domestic-violence assault, and the
evidence that Carr made a threat accompanied by a show of force
adequately supports that conviction. It is therefore unnecessary for
us to determine whether the evidence also supports a finding that
Carr actually pushed A.P.

20120668-CA 6 2014 UT App 227
 Layton City v. Carr

Remand under rule 23B is available only if the motion for remand
is supported by affidavits setting forth testimony or other evidence
the defendant seeks to have entered in the record to support a
claim of ineffective assistance. Utah R. App. P. 23B(a)–(b); State v.
Gunter, 2013 UT App 140, ¶ 16, 304 P.3d 866. The affidavits
supporting a rule 23B motion must allege facts that, if true, would
show that counsel’s performance was deficient, and “must also
allege facts that show the claimed prejudice suffered by the
appellant as a result of the claimed deficient performance.” Gunter,
2013 UT App 140, ¶ 16 (citation and internal quotation marks
omitted). We address Carr’s request for a rule 23B remand on each
issue together with our analysis of the merits of his claim of
ineffective assistance.

A. Victim-Impact Statement

¶14 Carr first contends that his trial counsel was ineffective for
failing to adequately investigate and present as evidence the
victim-impact statement that A.P. filed with the court after Carr
was charged. Carr argues that A.P.’s statement, “I do not feel I was
physically assaulted by Jacque Carr the night alleged,” could have
been used by trial counsel to question the credibility of A.P.’s
testimony at trial, and would have itself “significantly alter[ed] the
evidentiary picture” with respect to the trial court’s finding that
Carr had threatened A.P.. Accordingly, Carr claims that trial
counsel’s failure either to obtain or to present this statement at trial
was deficient performance.

¶15 However, even if we assume that the victim-impact
statement was available to Carr’s trial counsel,4 and further assume
that counsel lacked a reasonable strategic basis for not presenting

4. As the City points out, a victim-impact statement is generally
available only to certain entities enumerated by statute. See Utah
Code Ann. § 77-38-3(11)(b) (LexisNexis Supp. 2011). While a
prosecuting agency is listed as an entity to which a victim-impact
statement is available, defense counsel is not. Id.

20120668-CA 7 2014 UT App 227
 Layton City v. Carr

the statement as evidence, we are not convinced that Carr was
prejudiced by his trial counsel’s performance. As discussed above,
the trial court determined that Carr had assaulted A.P. by means
of a threat accompanied by a show of force. Supra ¶ 8. This
determination does not rest in any way on proof of a physical
assault by Carr. And the victim-impact statement does not
contradict any of A.P.’s testimony supporting the trial court’s
determination. We thus do not see how A.P.’s statement that she
did not “feel [she] was physically assaulted by [Carr]” could have
impeached A.P.’s testimony or otherwise altered the evidentiary
picture before the trial court on this point. Carr offers no affidavit
testimony or evidence in support of his rule 23B motion that would
affect this determination, and remand on this issue is therefore
unnecessary. Ultimately, we are not persuaded that there is a
“reasonable probability” that the trial court would have found Carr
not guilty of assault had counsel introduced the victim-impact
statement at trial. Millard, 2010 UT App 355, ¶ 18.

B. Motion to Suppress

¶16 Carr next contends that his trial counsel was ineffective for
failing to file a motion to suppress the statements Carr made to
Officer Yuen. Carr asserts that these statements should have been
suppressed because he did not receive a Miranda warning before
Officer Yuen interviewed him. The City does not dispute that
Officer Yuen did not give Carr such a warning but argues that no
Miranda warning was required because Carr was not in custody at
the time Officer Yuen interviewed him.

¶17 Generally, “the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant” unless certain procedural
safeguards were employed, including informing defendant of his
right to remain silent or to have counsel present during
questioning. Miranda v. Arizona, 384 U.S. 436, 444 (1966); see also
State v. Perea, 2013 UT 68, ¶ 91, 322 P.3d 624. However, these
safeguards are required only when a defendant is subject to

20120668-CA 8 2014 UT App 227
 Layton City v. Carr

custodial interrogation, i.e., “questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way.” Miranda, 384 U.S. at 444; Oregon v. Mathiason, 429 U.S. 492,
495 (1977) (per curiam) (explaining that “police officers are not
required to administer Miranda warnings to everyone whom they
question” but must only do so when “there has been such a
restriction on a person’s freedom as to render him ‘in custody’”).

¶18 Carr asserts that he “was in custody during the conversation
with Officer Yuen because he was not free to leave.” However, the
test for whether a person is in custody for Miranda purposes is not
simply whether he is “free to leave,” but whether the “‘suspect’s
freedom of action is curtailed to a degree associated with formal
arrest.’” State v. Mirquet, 914 P.2d 1144, 1146–47 (Utah 1996)
(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)).5 Four
factors bear on whether a police interview is so coercive as to
entitle an interviewee to a Miranda warning in a context other than
a formal arrest: “(1) the site of interrogation; (2) whether the
investigation focused on the accused; (3) whether the objective
indicia of arrest were present; and (4) the length and form of
interrogation.” Id. at 1147 (citation and internal quotation marks
omitted). Carr has not argued that he was under arrest at the time
he was interviewed by Officer Yuen, nor has he addressed the
relevant factors to show that he was in custody. And a review of
the record does not demonstrate that the circumstances of the
interview were so coercive as to require a Miranda warning. Carr
was interviewed on the front porch of the house where he lived,
not at a police station or in a patrol car; the interview was focused
on “what had occurred that night” rather than on whether Carr
had committed a crime; no objective indicia of arrest such as drawn

5. “The ‘not free to leave’ standard, on the other hand, determines
whether a person has been ‘seized’ under the Fourth Amendment
to the United States Constitution.” State v. Mirquet, 914 P.2d 1144,
1147 (Utah 1996) (quoting United States v. Mendenhall, 446 U.S. 544,
555 (1980)).

20120668-CA 9 2014 UT App 227
 Layton City v. Carr

guns or handcuffs were present at the time of the interview; and
the interview as described by Officer Yuen was brief and casual,
rather than a formal interrogation.

¶19 Carr’s affidavit in support of his rule 23B motion includes no
additional averments that could support a conclusion that he was
in custody at the time of questioning. Accordingly, we conclude
that remand is not necessary to resolve this claim on appeal.
Because Carr has not demonstrated that he was in custody at the
time of the interview with Officer Yuen, any motion by trial
counsel to suppress his statements would have been futile. “It is
well settled that counsel’s performance at trial is not deficient if
counsel refrains from making futile objections, motions, or
requests.” State v. Perez-Avila, 2006 UT App 71, ¶ 7, 131 P.3d 864
(citing State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546). We therefore
conclude that trial counsel did not perform deficiently in failing to
file a futile motion to suppress Carr’s statements to Officer Yuen.

C. Right to a Jury Trial

¶20 Last, Carr argues that trial counsel was ineffective for
recommending that Carr waive his right to a jury trial without
“explain[ing] the difference between a jury trial or bench trial so
that [Carr] could make an informed decision in choosing between
the two.” Carr asserts that remand is necessary to determine if he
validly waived his right to a jury trial. However, Carr has raised
this challenge as a claim of ineffective assistance of counsel, and we
therefore do not directly consider whether he validly waived this
right. Rather, we decide only whether trial counsel rendered
deficient performance and whether Carr was prejudiced by that
performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶21 We first conclude that remand is not appropriate here. Even
if we accept Carr’s allegation that “[a]t no time did [trial counsel]
explain to [him] the difference between a jury trial or bench trial”
and assume without deciding that this failure to advise Carr
constituted deficient performance, Carr has not alleged facts

20120668-CA 10 2014 UT App 227
 Layton City v. Carr

demonstrating that he was prejudiced by trial counsel’s
performance. To support a claim of prejudice in a rule 23B motion,
the facts alleged “must demonstrate prejudice, i.e., that the result
would have been different had counsel’s performance not been
deficient.” State v. Gunter, 2013 UT App 140, ¶ 16, 304 P.3d 866
(citation and internal quotation marks omitted). Carr has not
alleged or argued that had he been informed by trial counsel of the
difference between a jury trial and a bench trial, he would have
opted for a jury trial. Nor has he made any other claim of a
different result at trial, such as an assertion that a jury would have
been likely to return a more favorable verdict. Accordingly,
remand is not necessary to resolve this claim on appeal.

¶22 Further, Carr’s failure to allege or argue that he would have
selected a jury trial, or is likely to have received a more favorable
result from a jury, is fatal to his claim of ineffective assistance of
counsel. Absent a showing that “the result would have been
different” if trial counsel had explained the difference between a
bench trial and a jury trial, Carr’s claim fails for lack of prejudice.
See State v. Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151 (citation
and internal quotations marks omitted). We therefore conclude that
trial counsel’s performance did not deprive Carr of his right to the
effective assistance of counsel.

CONCLUSION

¶23 Sufficient evidence supports the trial court’s finding that
Carr threatened A.P. with his clenched fist. Carr has also failed to
show that his trial counsel performed deficiently in not moving to
suppress his statements to police, or that he was prejudiced by
counsel’s performance in any other respect. We therefore deny
Carr’s request for a remand under rule 23B, and we affirm Carr’s
convictions.

20120668-CA 11 2014 UT App 227