2015 UT App 273
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DAVID B. SERBECK,
Appellant.
Opinion
No. 20131007-CA
Filed November 12, 2015
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 101907795
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
ORME, Judge:
¶1 David B. Serbeck (Defendant) appeals his convictions and
sentences for three counts of unlawful sexual conduct with a 16-
or 17-year-old, all third degree felonies. See Utah Code Ann.
§ 76-5-401.2 (LexisNexis 2012).1 We affirm.
1. Because the statutory provisions in effect at the relevant times
do not differ materially from the statutory provisions now in
effect, we cite the current version of the Utah Code Annotated
for convenience.
State v. Serbeck
BACKGROUND2
¶2 In 2007, the then seventeen-year-old victim, M.V., started
visiting Defendant, her much-older neighbor, because M.V. was
interested in reptiles, and Defendant kept pet snakes. That
summer, one of Defendant’s snakes bit M.V. After tending to the
bite, Defendant and M.V. began discussing their emotional
struggles. Defendant told M.V. that he suffered from post-
traumatic stress disorder (PTSD) and depression, and because
M.V. ‚was basically going through the same thing,‛ she felt a
connection to Defendant. Eventually, this conversation led to a
kiss and an exchange of cell phone numbers. From there,
Defendant and M.V. began texting each other daily. At
Defendant’s request, they also exchanged nude pictures of each
other.
¶3 Ultimately, Defendant and M.V. had sexual intercourse
on three separate occasions. Defendant urged M.V. not to tell
anyone about their relationship and threatened to kill himself or
someone else if anyone found out. M.V. complied and did not
tell anyone about their relationship until that fall, when her best
friend discovered the nude pictures on M.V.’s cell phone and
told M.V.’s father. M.V.’s father confronted Defendant, but
Defendant denied any sexual contact with M.V. M.V.’s father
demanded that Defendant stay away from M.V. Instead of
immediately reporting Defendant to the police, M.V.’s family
decided to wait while M.V. worked through her feelings with
her therapist.
¶4 Approximately two years later, in July 2009, the news
media reported that Reginald Campos had shot Defendant,
paralyzing him from the chest down, because Defendant had
2. Except as otherwise noted, ‚we recite the facts in the light
most favorable to the jury’s verdict.‛ State v. Martinez, 2013 UT
App 154, ¶ 2 n.1, 304 P.3d 110 (citation and internal quotation
marks omitted).
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State v. Serbeck
followed Campos’s daughter and her friend.3 After learning of
Defendant’s encounter with Campos from her stepmother4 and
media accounts, M.V. decided that her relationship with
Defendant should be reported to the police, having jumped to
the conclusion that what had happened to her ‚was still
happening to others.‛ M.V.’s stepmother then reported
Defendant to the police, and Defendant was charged with three
counts of unlawful sexual conduct with a 16- or 17-year-old.
M.V. also filed a civil lawsuit against Defendant ‚to get it out
there for all of the other girls . . . who may have . . . interacted
with [Defendant] in any way‛ and because she thought it might
help Campos because ‚it was his daughter that *Defendant+ was
stalking.‛
¶5 At Defendant’s criminal trial, M.V. testified that she first
heard about Defendant’s shooting from her stepmother and that
the shooting was what prompted her to come forward. She
testified that she ‚learned that *Defendant+ was stalking
someone and made the father of that person he was stalking
angry and so he gets shot for it.‛ She also testified that she knew
that information was correct because she ‚saw it on the media.‛
However, she also admitted that she knew that Defendant had
not been charged with stalking Campos’s daughter or the
daughter’s friend. M.V.’s stepmother testified that she told M.V.
about what had happened to Defendant when she ‚saw on TV
that the confrontation had occurred between [Defendant] and
[Campos].‛
3. A more detailed summary of the facts surrounding the
Campos encounter may be found in State v. Campos, 2013 UT
App 213, ¶¶ 3–17, 309 P.3d 1160.
4. Defendant refers to M.V.’s father’s domestic partner as the
father’s girlfriend; the State refers to her as M.V.’s stepmother,
which is the term we have chosen to use for simplicity.
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¶6 Defendant testified in his own defense at trial. He
acknowledged that he and M.V. talked on the phone and texted
‚all the time,‛ but he claimed that they ‚were just friends.‛ He
denied exchanging nude pictures with M.V., although he
admitted that she sent him pictures of herself in a cowboy hat
and in a cheerleading outfit. He also denied kissing M.V. and
having sexual intercourse with M.V. Defendant claimed that
after M.V.’s father confronted him, M.V. came to his house and
apologized ‚for everything.‛ Defendant testified that M.V. told
him she invented the sexual allegations against him ‚to impress
her friends.‛ Defendant admitted to having a genital piercing as
described by M.V. in a police interview, but he claimed that he
frequently joked about the piercing and that a lot of people knew
about it, including M.V.’s father. In addition, although
Defendant steadfastly denied having a sexual relationship with
M.V., he claimed that M.V. told him that she was eighteen years
old at the time of the alleged sexual activity.
¶7 Defendant also testified about the day he was shot. He
stated that he was shot while ‚doing neighborhood watch‛ in
the company of his nine-year-old daughter and the
homeowners’ association president. He also explained that no
charges were filed against him as a result of the shooting. Before
the trial court read its final instructions to the jurors, it read them
a stipulation that Defendant ‚has not been charged with any
crimes arising from allegations that he stalked or harassed an
underaged girl on July 22, 2009‛ and that Campos was charged
and convicted of attempted murder for the shooting.5
¶8 The jury found Defendant guilty as charged. The trial
court sentenced Defendant to three indeterminate prison terms
of zero to five years, with the first two sentences to run
5. This court reversed Campos’s conviction for attempted
murder, while affirming his conviction for aggravated assault.
See State v. Campos, 2013 UT App 213, ¶ 93, 309 P.3d 1160.
20131007-CA 4 2015 UT App 273
State v. Serbeck
consecutively and the third sentence to run concurrently with
the other two. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 Defendant, represented by new counsel on appeal, first
contends that his trial counsel rendered constitutionally-
deficient assistance when he ‚failed to exclude or rebut
witnesses’ misleading and prejudicial accounts alleging other
instances of similar misconduct.‛ ‚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.
¶10 Second, Defendant contends that the trial court erred
when it ‚sentenced him to consecutive prison terms based in
part on unreliable victim impact statements alleging a pattern of
similar offenses without evidentiary basis.‛ ‚*W+e review a trial
court’s imposition of consecutive sentences for an abuse of
discretion.‛ State v. Fedorowicz, 2002 UT 67, ¶ 63, 52 P.3d 1194.
ANALYSIS
I. Ineffective Assistance of Counsel
¶11 Defendant argues that his trial counsel ‚was ineffective
when he did not exclude or rebut the allegations that
[Defendant] sexually victimized [Campos’s] daughter.‛
Defendant claims that M.V.’s testimony, ‚along with the
testimony of [M.V.’s stepmother+, strongly implied that
[Defendant] had sexually victimized [Campos’s] daughter in a
way that was similar to the allegations [M.V.] raised against
*him+.‛ Therefore, Defendant argues, trial counsel could have
successfully objected to M.V.’s testimony under rules 404(b) and
403 of the Utah Rules of Evidence. Alternatively, Defendant
argues that trial counsel ‚acted unreasonably when he failed to
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State v. Serbeck
rebut‛ ‚the suggestion that [Defendant] sexually victimized
[Campos’s daughter].‛
¶12 To prevail on his claim of ineffective assistance of counsel,
Defendant must show both ‚that counsel’s performance was
deficient‛ and ‚that the deficient performance prejudiced the
defense.‛ See Strickland v. Washington, 466 U.S. 668, 687 (1984). ‚If
a defendant fails to establish either of the two parts of the
Strickland test, counsel’s assistance was constitutionally
sufficient, and we need not address the other part of the test.‛
State v. Medina-Juarez, 2001 UT 79, ¶ 14, 34 P.3d 187. To satisfy
the first part of the Strickland test, Defendant must ‚rebut the
strong presumption that under the circumstances, the challenged
action might be considered sound trial strategy.‛ State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citation and internal
quotation marks omitted). Given this ‚strong presumption of
competence, we need not come to a conclusion that counsel, in
fact, had a specific strategy in mind.‛ State v. Tennyson, 850 P.2d
461, 468 (Utah Ct. App. 1993). ‚Instead, we need only articulate
some plausible strategic explanation for counsel’s behavior.‛ Id.
¶13 Defendant’s first argument is that the testimony of M.V.
and her stepmother was inadmissible propensity evidence under
rule 404(b) of the Utah Rules of Evidence and that trial counsel
was ineffective for failing to raise an objection to that testimony.
Rule 404(b) provides, in part, as follows:
Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to
show that on a particular occasion the person acted
in conformity with the character. . . . This evidence
may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or
lack of accident.
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State v. Serbeck
Utah R. Evid. 404(b)(1)–(2). See also State v. Allen, 2005 UT 11,
¶ 17, 108 P.3d 730 (noting that the list of noncharacter purposes
in rule 404(b) ‚is not exhaustive‛).
Fidelity to the integrity of the rule requires a
careful evaluation of the true—and predominant—
purpose of any evidence proffered under rule
404(b). Thus, if [evidence] of [a proper purpose] is
merely a ruse, and the real effect of prior
misconduct evidence is to suggest a defendant’s
action in conformity with alleged bad character, . . .
the evidence should not be admitted.
State v. Verde, 2012 UT 60, ¶ 22, 296 P.3d 673.
¶14 The first prong of the Strickland test requires Defendant to
show that the challenged testimony was inadmissible, thus
justifying a rule 404(b) objection. In deciding whether trial
counsel was deficient for failing to object under rule 404(b), it is
helpful to examine the context in which the challenged evidence
was offered:
[Prosecutor]: Did something happen that prompted
you to decide you needed to talk about what had
happened between you and [Defendant]?
[M.V.]: Yes.
[Prosecutor]: What was that?
[M.V.]: Well, the—from the media and the incident
that happened to him.
[Prosecutor]: Okay. Tell me what it is that you
learned about what had happened to [Defendant].
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[M.V.]: I learned that he was stalking someone and
made the father of that person he was stalking
angry and so he gets shot for it.
*Prosecutor+: That’s when *Defendant+ got shot?
[M.V.]: Yes.
[Prosecutor]: After you received that information,
did you decide that you wanted to talk to law
enforcement about what had happened?
[M.V.]: Yes.
[Prosecutor]: Why did you decide you needed to
do that?
[M.V.]: Because I saw that it was still happening to
others.
Likewise, the prosecutor asked M.V.’s stepmother, ‚Did
something happen in July of 2009 that brought all of this past
about *Defendant+ to come back to the forefront?‛ M.V.’s
stepmother testified, ‚Well, I saw on TV that the confrontation
had occurred between [Defendant] and [Campos]. And I texted
[M.V.] . . . and said, you know, did you hear about what
happened with *Defendant+?‛
¶15 Defendant concedes that the challenged testimony
‚*a+rguably . . . was introduced not to prove that *Defendant]
had a propensity to victimize teenage girls, but to explain why
[M.V.] decided to bring charges after a two-year delay.‛
Nevertheless, he argues that the testimony was inadmissible
because it ‚amounted to testimony that [M.V.] came forward
because she believed that [Defendant] had a propensity for
victimizing teenage girls and [was] acting in conformity with
bad character.‛ The State contends that the testimony was
‚elicited not to prove propensity but to establish [M.V.’s+ motive
for coming forward two years after-the-fact.‛ We agree with the
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State and conclude that trial counsel’s failure to raise a rule
404(b) objection was not deficient performance.
¶16 In this case, the State did not try to establish that
Defendant had victimized Campos’s daughter or that he had a
propensity to victimize underage girls. M.V.’s testimony was
given in response to the prosecutor’s narrow questions about
what prompted her to come forward when she did—some two
years after her alleged sexual relationship with Defendant had
ended. M.V.’s testimony was relevant background information
explaining the events that culminated in her decision to come
forward with allegations against Defendant. M.V.’s stepmother’s
testimony was offered in a similar vein.
¶17 It is all but certain that M.V. and her stepmother jumped
to an erroneous conclusion. But without learning why they came
forward when they did, even if their rationale was flawed, the
jury might have assumed that the considerable delay in
reporting was indicative of contrived allegations. Cf. State v.
Wright, 893 P.2d 1113, 1116–17 (Utah Ct. App. 1995) (rejecting the
defendant’s claim that the victim’s delay in reporting her rape
‚all but compels the conclusion that she fabricated the incident‛
and noting that ‚*t+he delay in reporting the incident is an issue
that goes to *the victim+’s credibility, which is an issue for the
jury‛). The State was entitled to dispel this inference. Because the
record demonstrates that the avowed and predominant purpose
of the testimony was not to show Defendant’s character or
propensity to commit crimes but rather to provide necessary
insight as to why M.V. came forward with allegations against
Defendant when she did, the testimony was not prohibited by
rule 404(b). See Verde, 2012 UT 60, ¶ 15 (‚Under this rule, the
admissibility of prior misconduct evidence depends on its
avowed purpose. . . . So long as the evidence is not aimed at
suggesting action in conformity with bad character, it is
admissible under rule 404(b).‛).
¶18 Defendant has not demonstrated that the testimony was
offered for an impermissible purpose. Consequently, a rule
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State v. Serbeck
404(b) objection would have been unavailing, and the ‚*f+ailure
to raise futile objections does not constitute ineffective assistance
of counsel.‛ See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. Thus,
trial counsel’s failure to object to this testimony under rule 404(b)
did not amount to ineffective assistance.
¶19 Defendant next argues that M.V.’s testimony could have
been excluded under rule 403 of the Utah Rules of Evidence
because its probative value was outweighed by the danger of
unfair prejudice, confusing the issues, and misleading the jury.
According to Defendant, trial counsel was ineffective for failing
to raise a rule 403 objection to M.V.’s testimony. Under rule 403,
evidence may be excluded ‚if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.‛ Utah R. Evid. 403.
¶20 Defendant contends that the probative value of M.V.’s
challenged testimony was weak because she testified that her
knowledge came from the media and third parties. In addition,
he contends that the State’s need for the testimony was minimal.
According to Defendant, based on M.V.’s testimony ‚the jury
was likely to conclude that [he] had a propensity for committing
the charged crimes in the case and was therefore guilty.‛ We
disagree and conclude that the probative value of M.V.’s
testimony was not substantially outweighed by the danger of
unfair prejudice under rule 403.
¶21 First, M.V.’s testimony had solid probative value. Cf. State
v. Johnson, 784 P.2d 1135, 1141 (Utah 1989) (observing that even
‚minimally probative evidence need not always be excluded‛).
M.V. alleged that she and Defendant had sexual intercourse
three times, but Defendant denied any sexual contact with M.V.
Thus, the State’s case rested on M.V.’s credibility. And because
M.V. did not come forward with allegations against Defendant
until some two years after their relationship had ended, an
explanation regarding her delay in reporting was useful to
dispel an inference of fabrication, as previously explained. This
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State v. Serbeck
is especially true given that Defendant’s trial counsel challenged
M.V.’s credibility by arguing to the jury that M.V. made
accusations against Defendant ‚to get one thing, to get money‛
and to ‚*g+ive *her+ something to brag about. . . . Get a little
attention.‛
¶22 More importantly, the danger of unfair prejudice from
M.V.’s testimony was relatively low considering the other
evidence presented at trial. The Utah Supreme Court has
previously observed that ‚unfair prejudice results only where
the evidence has an undue tendency to suggest decision upon an
improper basis.” State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841
(citation and internal quotation marks omitted). ‚Given this bar,
we indulge a presumption in favor of admissibility.” Id. (citation
and internal quotation marks omitted).
¶23 Although M.V. testified on cross-examination that she
knew that the reports of Defendant following girls were true, she
also admitted that her so-called knowledge was based
exclusively on media reports and that she knew that Defendant
had not been charged with stalking.
[Defense counsel]: Do you know if he was—you’re
claiming that he was following some girl. If that
was the case, do you know if [Defendant] was
charged with a crime?
*M.V.+: Yeah, I know he wasn’t.
[Defense counsel]: He was not.
[M.V.]: No.
In addition, the State elicited testimony from M.V.’s stepmother
indicating that her knowledge of the Campos encounter was also
based on media reports.
20131007-CA 11 2015 UT App 273
State v. Serbeck
¶24 Moreover, Defendant’s own testimony—undisputed in
this regard—demonstrated that M.V. was seriously misinformed
about the Campos case. Defendant testified that on the night he
was shot, he was on neighborhood watch in the company of his
nine-year-old daughter and the local homeowners’ association
president—unlikely companions for someone bent on a sexual
encounter with teenage girls. Defendant also testified that he
was never charged for anything related to the shooting.
[Defense counsel]: And what led to you being in a
wheelchair?
[Defendant]: I got shot.
[Defense counsel]: And tell us a little bit about that.
What happened?
[Defendant]: I was doing neighborhood watch with
myself, homeowners’ association president and my
nine-year-old daughter at that time.
[Defense counsel]: Okay. As a result of this
shooting were any charges filed against you?
[Defendant]: No.
[Defense counsel]: So you have not been charged
with anything related to that incident?
[Defendant]: No.
¶25 Finally, the parties’ stipulation was read to the jury,
which stated that (1) Defendant was shot by Campos on July 22,
2009; (2) ‚Campos was charged with attempted murder for the
July 2009 shooting and was convicted of that crime‛; and (3)
Defendant ‚has not been charged with any crimes arising from
allegations that he stalked or harassed an underaged girl on July
22, 2009.‛
20131007-CA 12 2015 UT App 273
State v. Serbeck
¶26 Admittedly, M.V. could have used less accusatory
language in explaining why she came forward after two years of
silence, especially because it is all but certain that she jumped to
an erroneous conclusion regarding the events leading up to the
Campos shooting. Nevertheless, Defendant has not
demonstrated that M.V.’s testimony was unfairly prejudicial to
the point that it should have been excluded. Accordingly, we
conclude that Defendant has failed to establish that, had counsel
objected to M.V.’s testimony under rule 403, the objection would
have been granted, or that trial counsel’s decision not to object
under rule 403 was a product of unreasonable professional
judgment. Thus, trial counsel’s failure to object under rule 403
did not amount to ineffective assistance.
¶27 Alternatively, Defendant argues that the parties’
stipulation was insufficient to rebut ‚the suggestion that *he+
sexually victimized [Campos’s] daughter.‛ Specifically,
Defendant claims that ‚it was unreasonable *for trial counsel+ to
rely on the absence of formal charges instead of explaining the
reason for their absence.‛ Defendant asserts that ‚*i+f counsel
had asked [Defendant] additional questions about the [Campos]
trial, he could have rebutted the suggestion that [Defendant]
sexually victimized [Campos’s] daughter‛ but was inexplicably
not charged criminally. According to Defendant, trial counsel
could have asked ‚follow-up‛ questions that would have
revealed that Defendant ‚did not have a sexual relationship—or
any relationship at all—with [Campos’s] daughter‛; that on the
night Defendant was shot, he was only following Campos’s
daughter because he mistook her car for one that had been
associated with recent crimes in the neighborhood; and that he
only followed Campos’s daughter for about three minutes, until
she turned her car out of the neighborhood. Such a line of
questioning would not have been unreasonable, but we disagree
that trial counsel was objectively deficient for not pursuing it. He
may well have made a reasonable tactical decision not to elicit
additional testimony about the Campos encounter because it
was essentially unrelated to the charges at issue, other than as
the impetus for M.V.’s coming forward.
20131007-CA 13 2015 UT App 273
State v. Serbeck
¶28 In this case, the jury was sufficiently apprised of the
circumstances surrounding the Campos encounter, and the
evidence before it was sufficient to dispel any suggestion that
Defendant stalked or victimized Campos’s daughter. Trial
counsel addressed any suggestion of improper behavior by
Defendant with the parties’ stipulation, his cross-examination of
M.V., and his direct examination of Defendant. See supra ¶¶ 23–
25. Consequently, trial counsel’s performance did not fall below
an objective standard of reasonableness, and Defendant cannot
demonstrate that his counsel’s performance was deficient under
Strickland. See 466 U.S. 668, 687 (1984).
¶29 Because Defendant has failed to establish deficient
performance under Strickland, ‚we need not address the
*prejudice+ part of the test.‛ See State v. Medina-Juarez, 2001 UT
79, ¶ 14, 34 P.3d 187. We conclude that Defendant’s trial counsel
did not render constitutionally ineffective assistance by not
objecting to or further rebutting M.V.’s or her stepmother’s
testimony about the Campos encounter.
II. Consecutive Sentences
¶30 Defendant next argues that the trial court ‚abused its
discretion when it sentenced [him] to consecutive prison terms
based on unreliable information concerning his history and his
potential for future harm.‛ We conclude that the trial court did
not abuse its discretion in imposing consecutive sentences.
¶31 ‚In determining whether [sentences] are to run
concurrently or consecutively, the court shall consider the
gravity and circumstances of the offenses, the number of victims,
and the history, character, and rehabilitative needs of the
defendant.‛ Utah Code Ann. § 76-3-401(2) (LexisNexis 2012).
‚*I+t is an abuse of discretion if a district court relies upon
irrelevant information to reach its decision.‛ State v. Moa, 2012
UT 28, ¶ 34, 282 P.3d 985.
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State v. Serbeck
¶32 Defendant does not contend that the trial court failed to
consider the factors enumerated in section 76-3-401. See Utah
Code Ann. § 76-3-401(2). Rather, he argues that the trial court
specifically relied on two irrelevant and unreliable pieces of
information at sentencing: (1) the statements of N.S., a woman
who submitted a victim impact statement and a letter asserting
that she was ‚one of the victims of *Defendant+‛ and that she
was unable to press charges against him ‚because the statute of
limitations [had run] by the time [she] had the courage to come
forward,‛ and (2) M.V.’s statement at sentencing that Defendant
used ‚neighborhood watch and other programs to make him
look like an outstanding person when in reality he was using
that to look for victims.‛
¶33 To establish that the trial court abused its discretion by
relying on irrelevant information at sentencing, Defendant must
show ‚(1) evidence of reliance, such as an affirmative
representation in the record that the judge actually relied on the
specific information in reaching her decision, and (2) that the
information she relied upon was irrelevant.‛ See Moa, 2012 UT
28, ¶ 35. ‚Evidence, such as a judge’s affirmative representation
of reliance, is necessary because ‘*n+either our case law nor our
statutes require a [district] court to make specific findings of fact
in a sentencing order.’‛ Id. (alterations in original) (quoting State
v. Helms, 2002 UT 12, ¶ 12, 40 P.3d 626). In addition, ‚an
appellate court cannot presume there is evidence of reliance
from a silent record or mere introduction of potentially
irrelevant information.‛ Id. ‚Indeed, as a general rule, we
presume that the district court made all the necessary
considerations when making a sentencing decision.‛ Id.
¶34 Here, even assuming that M.V.’s and N.S.’s statements
were irrelevant, Defendant has not shown that the trial court
based its sentencing decision on those statements. There is no
indication in the record that the trial court paid particular
attention to their statements, and Defendant acknowledges that
the trial court ‚did not specifically mention the allegations of
multiple victims.‛ See id. ¶ 40 (‚A sentencing judge is not
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required to articulate whether specific information was
inappropriate for consideration, and the mere introduction of
potentially improper information is not sufficient to establish
reliance.‛). And although the court stated at Defendant’s
sentencing hearing that it had ‚reviewed . . . numerous letters
regarding [Defendant],‛ it did not state that it had relied on
them in making its sentencing decision. The court explained:
The Court has reviewed the presentence report
and numerous letters regarding [Defendant]. The
Court is troubled by the comments that
[Defendant] made during the interview with the—
from the presentence report. I find those disturbing
at best. They seem to be lucid. However, they seem
to minimize and continue to victimize the victim in
this matter.
The Court is concerned that [Defendant]
remains without appreciation for the impact of his
criminal conduct on this very vulnerable young
woman. You are not a candidate for treatment.
Without meaningful and successful treatment, you
remain a risk to our community.
Thus, the record indicates that the trial court imposed
consecutive sentences for three reasons wholly unrelated to
M.V.’s and N.S.’s statements: (1) Defendant’s comments at his
presentence investigation interview seemed to ‚minimize and
continue to victimize the victim,‛ (2) he ‚remain[ed] without
appreciation for the impact of his criminal conduct on this very
vulnerable young woman,‛ and (3) he ‚remain*ed] a risk to our
community‛—not because he was a serial offender, but because
he was not a candidate for ‚meaningful and successful
treatment.‛
¶35 Defendant nevertheless argues that the trial court’s
conclusion that he remains a risk to the community was ‚likely
based on N.S. and [M.V.’s] allegations that he had victimized
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multiple girls.‛ We disagree. Nothing in the record indicates that
the trial court relied on these allegations as a ground for
imposing consecutive sentences. The court only mentioned
‚numerous letters‛ in passing; it did not state that it had taken
them into consideration in imposing sentence, see Moa, 2012 UT
28, ¶ 37, and we will not presume reliance from a ‚mere
introduction of potentially irrelevant information,‛ id. ¶ 35.
Instead, in imposing consecutive sentences, the trial court
apparently relied on the presentence investigation report, which
explained that Defendant was not a good candidate for sexual
offender treatment because he denied any wrongdoing with
M.V., displayed no remorse for his actions, and considered
himself to be the victim.
¶36 In sum, Defendant has not shown that the trial court’s
sentencing decision was based on irrelevant information. Thus,
‚[b]ecause evidence of reliance must be more than the mere
presentation of potentially irrelevant information,‛ we reject
Defendant’s argument on this point. See id. ¶ 40. Based on the
record before us, we cannot conclude that it was an abuse of
discretion for the trial court to impose consecutive sentences.6
CONCLUSION
¶37 We conclude that Defendant’s trial counsel was not
constitutionally ineffective when he did not object to or rebut the
testimony of M.V. and her stepmother. Moreover, the trial court
6. Defendant also points out that he is in a wheelchair and
that he has kidney and muscular problems that ‚render it
difficult for him to just get up in the morning let alone go and
cause any harm.‛ However, while we are not unsympathetic
to Defendant’s confinement to a wheelchair, as the State
correctly observed during oral argument his limited mobility,
from all that appears, would not necessarily preclude future
wrongdoing.
20131007-CA 17 2015 UT App 273
State v. Serbeck
did not abuse its discretion in imposing two consecutive
sentences and one concurrent sentence.
¶38 Affirmed.
20131007-CA 18 2015 UT App 273