State v. Courtney

2017 UT App 172

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CARL MACK COURTNEY,
Appellant.

Opinion
No. 20141171-CA
Filed September 8, 2017

Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 131900508

Emily Adams, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.1

ORME, Judge:

¶1 Defendant Carl Mack Courtney was convicted of drug
possession with intent to distribute and possession of drug
paraphernalia. He appeals both convictions, arguing that the
trial court abused its discretion by admitting impermissible
character evidence and that he was denied his right to the
effective assistance of counsel. We conclude that, even in the
absence of the errors Defendant ascribes to the trial court and his

1. Judge J. Frederic Voros Jr. participated in this case as a
member of the Utah Court of Appeals. He retired from the court
before this decision issued.
 State v. Courtney

trial attorney, the jury would not have returned a different
verdict. Accordingly, we affirm.

BACKGROUND

¶2 On the morning of August 26, 2010, a police officer was
patrolling the parking lot of an Ogden apartment complex when
he noticed a man wandering the lot, “looking in and around
vehicles.” The officer decided to investigate, as several vehicle
burglaries had recently been reported in the area. The officer
asked the man “what was going on.” Defendant responded that
he was looking for a lost child, but—oddly—he declined the
officer’s offer to assist in the search. Defendant’s pupils were
dilated, and he appeared “nervous” and “very fidgety.” At the
officer’s request, Defendant provided identification and
permitted the officer to search his person.

¶3 During the search, the officer found several items that
convinced him he had probable cause to arrest Defendant. The
officer found approximately “60 small Ziploc plastic baggies”
and a four- to five-inch pocket knife in Defendant’s left-front
pants pocket. He also found a sheet of paper containing a list of
names and dollar amounts, which ranged between $40 and $300.
The officer recognized some of the names on the sheet—among
them, “Half Pint,” “Truck,” and “Pops”—as belonging to
individuals he had dealt with during previous narcotics
investigations. He would later testify that the paper appeared to
be an “owe sheet” and that he knew from his training and
experience that distributors of narcotics often used such lists to
keep track of “who owes you what.”

¶4 After he was taken into custody, Defendant requested
that his then-girlfriend be informed of his arrest. The girlfriend,
who resided at the apartment complex where the arrest took
place, was watching Defendant’s daughter at the time. She
would need to be informed that Defendant would not be driving
his daughter to her first day of kindergarten that morning.

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 State v. Courtney

¶5 The officer agreed to inform the girlfriend of the situation
and called for backup to assist him. When backup arrived, the
officer left Defendant in the custody of another police officer
while he and a third officer proceeded to meet with the
girlfriend. After assuring the officers that she would get
Defendant’s daughter to school on time, the girlfriend agreed to
answer their questions about Defendant. She told them that
Defendant had borrowed her car the day before and that he had
driven it back to her apartment earlier that morning. She then
agreed to allow the officers to search the car.

¶6 Inside the car the officers found a “black zip-up pouch”
resting on top of a “blue and black zip-up sweatshirt.” Inside the
pouch they found a “hypodermic needle” and a “plastic baggy
containing a white crystal substance,” which the Utah State
Crime Lab later confirmed to be methamphetamine. The officer
later testified that the girlfriend, without being told of the
contents of the pouch, informed him that the pouch belonged to
Defendant and that she had seen him carrying his identification
in it a few days earlier. Both the officer and the girlfriend
testified that the car doors were locked and the windows were
rolled up just before the search.

¶7 The officers questioned Defendant regarding what they
had discovered in the vehicle. Defendant confirmed that he had
driven the girlfriend’s car to her apartment that morning, that he
had been the only one inside the car, and that he kept a
sweatshirt in the car like the one on which the pouch had been
found. He denied, however, that the pouch and its contents were
his. He also told them that he used the Ziploc baggies to store
coins from his coin collection, but the officers were unable to
find any coins on Defendant’s person or in the car.2

2. At oral argument, Defendant’s appellate counsel
acknowledged that trial counsel introduced neither Defendant’s
(continued…)

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 State v. Courtney

¶8 At the jail, the booking officer conducted an inventory
search of Defendant’s personal belongings. As was his routine,
the officer confiscated Defendant’s cell phone, intending to shut
it off for storage. But before he could, a text message “popped
through.” It read, “Are you willing to trade glass for a computer
that hasn’t been tweaked off of[?]”

¶9 The State charged Defendant with possession of a
controlled substance with intent to distribute and possession of
drug paraphernalia. The former is a second degree felony; the
latter is a class B misdemeanor. See Utah Code Ann. §§ 58-37-
8(1)(a)–(b), 58-37a-5(1) (LexisNexis 2016).

¶10 Prior to trial, the State filed notice of its intent to introduce
evidence that Defendant had been convicted of distributing
methamphetamine in 2012. That conviction, which resulted from
events that occurred after the events giving rise to the
convictions at issue in this case,3 involved a recorded sale of
methamphetamine to a confidential informant in the presence of

(…continued)
baggie-encased coin collection nor any testimony concerning his
numismatic interest, aside from Defendant’s own testimony.

3. The trial court took note of the fact that, ordinarily,
introducing evidence of prior bad acts involves putting on
evidence of acts committed before the events that gave rise to the
trial in which the evidence is introduced. However, the court did
not suggest that the State’s attempt to introduce evidence
relating to Defendant’s 2012 conviction was for that reason
improper, and Defendant has not argued that the court’s failure
to exclude the evidence on those grounds was error. Nor would
such an argument be availing. See, e.g., State v. Lomu, 2014 UT
App 41, ¶¶ 23–25, 321 P.3d 243.

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 State v. Courtney

an undercover officer.4 The State sought to introduce evidence of
the events underlying that conviction, arguing that the evidence
would show Defendant’s “intent,” “any absence of mistake or
lack of accident,” and “any motive that he would have for”
possessing the methamphetamine. Although the trial court
stated that it did not want to “spend an inordinate amount of
time re-trying that other case,” it said it would allow the State to
introduce “basic facts” relating to Defendant’s distribution
conviction because it found the evidence “extremely probative”
and not overly prejudicial.

¶11 At trial, the officer explained to the jury that based on his
experience investigating narcotics crimes, the methamphetamine
he seized from the car amounted to a “distribution quantity.”
The officer also testified that narcotics dealers typically carry a
weapon, such as the knife Defendant had been carrying on the
morning of his arrest, to protect themselves against robbery. The
officer answered questions regarding the text message the
booking officer had discovered, explaining that “[g]lass is a
common reference to methamphetamine” and that “tweaking”
means “using meth.” Finally, he testified that baggies such as the
ones Defendant had been carrying are commonly used to
package and distribute narcotics.

¶12 The State also called the girlfriend to testify. She stated
that the methamphetamine the officer had found in her car did
not belong to her and that the sweatshirt and black pouch both
belonged to Defendant. Further, she stated that at various times
in the past she had seen Defendant store his identification and
Social Security card in the pouch, as well as methamphetamine.
She also testified that she had used methamphetamine with
Defendant, that Defendant had provided the drug to her, and
that she had seen Defendant sell the drug to others. When asked

4. We recently vacated Defendant’s 2012 conviction and
remanded for a new trial due to ineffective assistance by his trial
counsel. See State v. Courtney, 2017 UT App 62, ¶ 24.

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 State v. Courtney

what Defendant used to store and distribute the drug, she
responded that she had seen him use “little plastic baggies.”

¶13 The girlfriend then testified that while Defendant was in
jail awaiting trial, he called to speak with her about the
testimony she would be giving and about the black pouch the
officer had found in her car. The call was recorded, and the State
played it for the jury. During the recorded conversation,
Defendant asked the girlfriend whether her windows were
“down or up” when the officers searched her car. She
responded, “Pretty sure my car windows were up.” “That’s the
wrong answer,” he replied. The girlfriend continued to insist she
was right, but he interjected, “You’re not fucking hearing what
I’m saying. I know what they were and what they weren’t. . . . If
they were down, anybody could have fucking threw that thing
. . . in there. . . . [T]he Mexican people that we had no fucking
clue who they are could have easily fucking done that[.]”

¶14 The girlfriend testified that, in fact, the windows of her
car had been rolled up on the morning Defendant was arrested.
She further testified that she had seen no one other than the
officers standing near the car.

¶15 Finally, the State called the undercover officer who took
part in the controlled buy that led to Defendant’s 2012
distribution conviction. As the trial court had limited the scope
of what it would allow with respect to that conviction, the
undercover officer’s testimony was brief. He told the jury that
four individuals were in the room where the controlled buy took
place, that the purchase went forward, and that Defendant was
later tried and found guilty of distributing methamphetamine.

¶16 After the State rested, Defendant took the stand in his
own defense. He testified that the methamphetamine the officer
found in the black pouch did not belong to him. He did admit,
however, that he had struggled with drug addiction throughout
his life and that he had “relapsed” just two weeks before he was
arrested. He also admitted that, before trial, he had contacted the
girlfriend to tell her to “get lost” so that she could not be

20141171-CA 6 2017 UT App 172
 State v. Courtney

subpoenaed to testify. Finally, he admitted that, a “long, long,
long time ago in ’98,” he had gotten “in trouble” for distributing
narcotics.

¶17 Defendant also offered several explanations to rebut the
State’s evidence against him. First, he testified that the baggies
the officer found were for storing coins, not narcotics. Second, he
testified that the text message the booking officer found on his
cell phone referred literally to glass and not to
methamphetamine, as he had been asking around for help with
fixing a broken window. Finally, he claimed that the “owe sheet”
the officer found in his pocket did not belong to him. Rather, he
said it belonged to his friend, “Missy,” and that he had been
collecting on some loans for her when he was arrested.
Acknowledging that Missy was not in the courtroom and would
not be testifying on his behalf, Defendant stated that he had not
seen her in three years and that his attorney “had trouble
locating her.”

¶18 Apparently unmoved by Defendant’s testimony,5 the jury
returned a guilty verdict on both counts. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶19 Defendant raises two arguments on appeal. First, he
argues that it was error for the trial court to admit evidence of
his 2012 distribution conviction under Utah Rule of Evidence
404(b) for the purpose of proving that Defendant intended to

5. Defendant’s wife, whom he married just prior to trial, also
testified on his behalf. She testified that Defendant had been
trying to “trade somebody a computer for a sheet of glass,” that
she had never seen him carry a black pouch, that she had never
seen him sell drugs, and that before his arrest he had indeed
been collecting money on Missy’s behalf. The jury apparently
did not credit these statements.

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 State v. Courtney

distribute narcotics in the instant case.6 Generally, we review a
trial court’s decision to admit evidence under rule 404(b) for an
abuse of discretion. See State v. Burke, 2011 UT App 168, ¶ 17, 256
P.3d 1102. Even if we see error, “we will not overturn the
defendant’s conviction unless the error was harmful.” State v.
High, 2012 UT App 180, ¶ 28, 282 P.3d 1046.

¶20 Second, Defendant maintains that his trial counsel’s
performance was so deficient that he was denied his right to the
effective assistance of counsel under the Sixth Amendment to the
United States Constitution. “A claim of ineffective assistance of
counsel raised for the first time on appeal presents a question of
law,” which we consider de novo. State v. Charles, 2011 UT App
291, ¶ 18, 263 P.3d 469. But even if we conclude that trial
counsel’s performance was deficient, the claim must fail absent a
reasonable probability that Defendant would have obtained a
more favorable outcome but for trial counsel’s blunders. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

I. Evidence of Prior Conviction

¶21 Defendant maintains that “the lack of similarity” between
the facts underlying the 2012 conviction and the instant
circumstances, as well as the “lengthy interval of time between
the crimes,” are “pivotal factors that weigh against admission”

6. Rule 404(b) provides that “[e]vidence 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.” Utah R. Evid. 404(b)(1). But the
rule further provides that such “evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
. . . or lack of accident.” Id. R. 404(b)(2).

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and that the trial court erred in permitting the jury to learn of
that conviction. Upon reviewing the other evidence adduced at
trial, however, we think it unnecessary to further consider
Defendant’s argument, given the harmless error doctrine.

¶22 “‘Harmless errors are those that are sufficiently
inconsequential so no reasonable likelihood exists that the error
affected the outcome of the proceedings.’” State v. Ferguson, 2011
UT App 77, ¶ 19, 250 P.3d 89 (quoting Taylor ex rel. C.T. v.
Johnson, 1999 UT 35, ¶ 18, 977 P.2d 479). Even where “the trial
court erred in failing to conduct a thorough analysis under rule
404(b), [we] will not overturn a jury verdict . . . if the admission
of the evidence did not reasonably affect the likelihood of a
different verdict.” Id. (alteration in original) (citations and
internal quotation marks omitted). Such is the case where, as
here, the other evidence of guilt is “overwhelming.” See id.

¶23 Even after disregarding all evidence admitted as a result
of the errors Defendant ascribes to his trial attorney on his claim
of ineffective assistance of counsel,7 more fully considered
hereafter, we conclude that the case against Defendant was all
but insurmountable, in view of the admissions he made on the
stand, the implausibility of the explanations he offered to rebut
the State’s evidence, and his damning pre-trial phone call with
the girlfriend. And the other evidence against Defendant was so
overwhelmingly strong that it only bolsters our conclusion that
any error in admitting evidence of the 2012 conviction was
harmless.

¶24 As to Defendant’s admissions, the jury did not need to
hear evidence of the 2012 conviction to learn that Defendant had

7. Defendant attributes to his trial counsel Missy’s failure to
testify. Even if Missy had testified, and did so in the favorable
way Defendant anticipates, the jury would not have been
shielded from the officer’s testimony regarding the incriminating
“owe sheet” he found on Defendant’s person.

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 State v. Courtney

used and distributed drugs in the past; Defendant told them as
much himself. When asked whether he had a history of
distributing narcotics, Defendant responded that he had indeed
gotten “in trouble” for it, albeit “[a] long, long, long time ago.”
And while he did not confess to selling drugs recently, he did
confess that getting “in trouble” did not put a stop to his own
drug abuse. In fact, he admitted that his last “relapse” occurred
only two weeks prior to his arrest.

¶25 The explanations Defendant offered to rebut the State’s
evidence against him did little to help Defendant’s case because
they were altogether implausible. Defendant’s attempt to explain
away the text message that the booking officer found on his
phone was entirely incredible. Even if it were true that
Defendant had been in the market for some “glass” in the literal
sense of the word, this would not explain why the text message’s
author felt compelled to add the caveat that the offer to trade
glass for a computer was contingent on the computer’s not
having been “tweaked off of.” Likewise, Defendant’s claim that
he carried around plastic baggies for the purpose of storing coins
from his coin collection is dubious at best, as the officer was
unable to find any coins in the baggies, in Defendant’s pocket, or
in the girlfriend’s car. And while Defendant did testify on his
own behalf at trial, he did not introduce his coin collection into
evidence or otherwise substantiate his claimed numismatic
interest.

¶26 What is perhaps most damaging to Defendant’s
credibility, and what best underscores the harmlessness of any
rule 404(b) error made by the trial court, is the call he made to
the girlfriend while he was in jail awaiting trial. The jury was
given the opportunity to listen to Defendant berate the girlfriend
for hesitating to accept his instructions about her trial testimony.
In response to the girlfriend’s insistence that her windows had
been rolled up on the morning of Defendant’s arrest, he roared
back, “You’re not fucking hearing what I’m saying. I know what
they were and what they weren’t. . . . If they were down,
anybody could have fucking threw that thing . . . in there.”

20141171-CA 10 2017 UT App 172
 State v. Courtney

Moreover, while on the stand Defendant admitted that he had
called the girlfriend to tell her to “get lost” so that the
prosecution could not subpoena her testimony.

¶27 In sum, evidence of Defendant’s 2012 conviction was
inconsequential in the context of his own testimony and the
other evidence against him. Any error regarding the admission
of that conviction into evidence was therefore harmless.

II. Ineffective Assistance of Counsel

¶28 Defendant argues that his trial attorney performed so
poorly that he was denied his right to the effective assistance of
counsel. In Defendant’s view, more competent counsel would
have (1) objected when the State introduced evidence under
Utah Rule of Evidence 404(b) detailing the underlying facts of
the 2012 conviction; (2) requested that the State give notice of its
intent to introduce rule 404(b) evidence 8 and objected when such
evidence was elicited from the girlfriend; and (3) subpoenaed
Missy to appear as a witness on Defendant’s behalf.9

8. Utah Rule of Evidence 404(b) provides that a “prosecutor must
. . . provide reasonable notice of the general nature” of any
evidence it intends to introduce of a defendant’s prior “crime,
wrong, or other act.” Utah R. Evid. 404(b)(1), (b)(2)(A).

9. Defendant does not contend that his trial counsel was
ineffective for permitting him to take the stand and undercut his
own case. This is well-advised. Our Supreme Court has
previously held that a defendant’s decision to take the stand
rather than rely on his privilege against self-incrimination is a
decision that is personal to the defendant. State v. Anderson, 495
P.2d 804, 806 (Utah 1972) (“An attorney for a [defendant] cannot
claim a privilege against self-incrimination; he can only advise
the [defendant].”).

20141171-CA 11 2017 UT App 172
 State v. Courtney

¶29 In proving that counsel performed ineffectively, a
defendant must show “(1) that counsel’s performance was
objectively deficient, and (2) a reasonable probability exists that
but for the deficient conduct the defendant would have obtained
a more favorable outcome at trial.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶30 Under the “prejudice” prong of the ineffective assistance
of counsel test, the defendant has the burden of “show[ing] that
the error was harmful.” State v. Jimenez, 2012 UT 41, ¶ 15, 284
P.3d 640. See also Menzies v. State, 2014 UT 40, ¶ 77, 344 P.3d 581
(“The defendant . . . has the obligation to affirmatively prove
prejudice[.]”). In other words, the defendant must convince us
that the error was so prejudicial to the defendant’s case that
“‘our confidence in the verdict is undermined.’” State v.
Munguia, 2011 UT 5, ¶ 12, 253 P.3d 1082 (quoting State v. Holgate,
2000 UT 74, ¶ 13, 10 P.3d 346).

¶31 We conclude that Defendant’s ineffective assistance of
counsel claim fails under the prejudice prong for the same
reason that any error the trial court may have committed in
allowing evidence of his 2012 distribution conviction was
harmless: the evidence against Defendant was overwhelming.
The damaging admissions Defendant made on the stand, the
implausible explanations he put forward to rebut the State’s
evidence, and the incriminating statements Defendant made to
the girlfriend over the phone collectively establish that the jury
would have returned the same verdict regardless of any
deficiencies in the performance of Defendant’s trial attorney.

¶32 Defendant’s contention that his trial counsel should have
objected to the State’s introduction of his 2012 conviction is, in
essence, a restatement of the rule 404(b) error he attributes to the
trial court in his first argument. We concluded above that the
jury would not have returned a different verdict even if evidence
of Defendant’s 2012 conviction had been excluded. Accordingly,
it would have made no difference if Defendant’s counsel had
successfully objected to that evidence. Likewise, Defendant’s
second ineffective assistance argument fails because any

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evidence admitted as a result of his trial counsel’s failure to
request notice of rule 404(b) evidence would have done nothing
to mitigate the prejudicial effect of the other evidence against
him, as outlined in the preceding section.10

¶33 Finally, we conclude that the failure of Defendant’s trial
counsel to subpoena Missy cannot support an ineffective
assistance of counsel claim. We reach this conclusion for two
independent reasons.

¶34 First, as with the girlfriend’s testimony regarding
Defendant’s past wrongful acts, the testimony Defendant claims
Missy would have provided would not have mitigated the
overwhelming persuasive power of the State’s other evidence.
Even if Missy had been located, appeared in court to testify, and
acknowledged that the owe sheet belonged to her, such
testimony would not have counteracted the damage that was
done as a result of Defendant’s own admissions, his implausible
explanations, and his pre-trial communications with the
girlfriend.

¶35 Second, the testimony Defendant claims he could have
elicited from Missy would have been cumulative. Defendant
insists that “[Missy’s] testimony would have clearly supported
[his] story that the owe sheet was not his.” He also maintains
that since “the owe sheet was key to the State’s argument that
[Defendant] intended to distribute drugs, it is likely that the
outcome of the trial would have been different” had Missy taken
the stand. Yet Defendant’s arguments ignore the fact that the
jury learned this information during the testimony of other
witnesses. Defendant, of course, testified that the owe sheet

10. Because we conclude that Defendant was not prejudiced by
the girlfriend’s testimony regarding his past wrongful acts, we
have no need to address the State’s argument that her testimony
provided evidence “intrinsic” to the charged offenses and
therefore fell outside the scope of Utah Rule of Evidence 404(b).

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belonged to Missy and not to him. But the jury did not even
need to take his word for it. The girlfriend, whose testimony
Defendant otherwise seeks to bar, offered the same testimony. In
fact, she went so far as to testify that she did not recognize the
handwriting on the owe sheet as being Defendant’s. Thus, even
assuming that Missy’s testimony would have been as favorable
to Defendant as he contends, our confidence in the jury’s verdict
is unshaken by her absence.

CONCLUSION

¶36 We conclude that any errors committed by the trial court
and any missteps by Defendant’s counsel had no prejudicial
impact upon the result of Defendant’s trial. Accordingly, we do
not disturb the verdict and resulting convictions.

¶37 Affirmed.

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