State v. Levering

2020 UT App 82

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROY BEN LEVERING,
Appellant.

Opinion
No. 20190198-CA
Filed May 29, 2020

Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 161501998

Nicolas D. Turner, Attorney for Appellant
Brock R. Belnap and Joseph M. Hood, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Roy Ben Levering was convicted of assault (domestic
violence), domestic violence in the presence of a child, and
criminal trespass (domestic violence). On appeal, he argues that
his counsel was constitutionally ineffective in several respects and
that the district court erred in not admitting certain evidence. We
affirm.

BACKGROUND

¶2 The victim (Victim) and her friend entered into a written
lease agreement for a house (Residence) in March 2015. Victim’s
daughter also lived at the Residence and shared a bedroom with
 State v. Levering

Victim. Victim and Levering had a romantic relationship, and she
allowed Levering to stay in the Residence for periods of time.
Victim testified that she and Levering initially used illegal drugs
during his stays. Levering never had his own bedroom in the
Residence. Rather, “[h]e would just stay up for . . . five or six days
and then crash out wherever he sat down.” Victim further
testified that Levering never paid rent or bills and never had a key
to the Residence.

¶3 Levering admitted that he was not a party to the lease but
asserted that he regularly slept on the couch or in Victim’s
bedroom. Levering also asserted that he was given a key at one
time for “[a] couple months” but that Victim took the key from
him when they were not getting along.

¶4 Over the course of nearly a year, Victim repeatedly asked
Levering to discontinue staying at the Residence, but he refused.
Victim testified that when she asked him to leave, Levering would
respond that she “would go down with him if [she] were to turn
him in,” meaning that Levering would call the Division of Child
and Family Services (DCFS) and report that Victim was using
drugs with him, and DCFS would take Victim’s daughter as a
result. Victim summed up the living arrangement: “[Levering]
would leave for days at a time and come back. And when he was
there, [it was] just kind of a ‘friends close, enemies closer’ type
situation. I just wanted him gone. And he just wouldn’t go.” She
elaborated, “I can’t tell you how many times I told him to leave. I
told him in front of his friends. I told him a hundred times to leave
and to leave us alone.”

¶5 Victim testified that Levering powered a space heater in his
van from December 2015 through February 2016 using electricity
from the Residence, resulting in a power bill of over $1,500—
which she could not pay—and her power being shut off. By the
end of that February, Victim had endured enough, and, out of
concern for the well-being of her daughter, she insisted that

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Levering leave. She testified that she was not using drugs and no
longer feared Levering’s threats. Levering left the Residence,
taking with him all his possessions and vehicles.

¶6 On April 12, 2016, Levering informed Victim that he was in
town. She responded, via Facebook Messenger, by telling him
“that he was absolutely not welcome” at her home. The next day,
Levering, unannounced and uninvited, walked in the back door
of the Residence “holding a bong and a bag of marijuana.” Victim,
whose daughter was in an adjoining room watching television,
responded to Levering’s intrusion by telling him that “he wasn’t
welcome,” headbutting him, and “physically remov[ing] him
from” the Residence. She followed up by shutting the door and
locking it. Levering forced his way back into the Residence by
breaking through the locked door. Levering admitted that he
went back in the house after his expulsion, explaining that he
“came back in to defend [his] innocence because [Victim] was
trying to tell a lie.” Victim walked toward Levering, “asked him
what he was doing back in the house,” and told him to leave.
Victim described his reaction:

He grabbed my arm. He spun me around and he
held my hands behind me. He dropped me down to
the ground in a bear hug. He squeezed me really
hard. I couldn’t breathe. My face was against the
floor. I was screaming at him to get off of me. And
then I heard my little girl screaming at him to get off
of me.

Victim “grabbed [Levering’s testicles] and squeezed as hard as
[she] could.” Levering released her and ran out the back door.
Victim testified that she suffered bruises to her arm and knee as a
result of the assault.

¶7 Levering was charged with assault (domestic violence),
domestic violence in the presence of a child, and criminal trespass
(domestic violence).

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 State v. Levering

¶8 Prior to trial and in an effort to support a self-defense
argument, Levering moved the court to admit evidence of
Victim’s “prior violent acts, violent propensities, and patterns of
abuse, violence, within the relationship between” him and Victim,
specifically evidence produced at a protective order hearing
regarding Victim’s conduct that occurred after the assault. The
district court ruled that any “pattern of abuse or violence” that
occurred after the assault would not “have anything to do with
what’s in [Levering’s] head at the time . . . that he’s allegedly
protecting himself from [Victim’s] violent acts.” The court
explained that violent acts committed by Victim that “happened
[after the assault] as a reason that [Levering] was justified in using
force at the time of the incident [were] not relevant.” The court
therefore excluded that evidence. However, the court clarified
that “any acts, prior violent acts, propensities, patterns of abuse
or violence in the parties’ relationship, leading up until the time
of the incident [were] fair game.”

¶9 After the close of evidence, the court gave jury instructions.
Relevant to the issues on appeal, the district court instructed the
jury as follows. Instruction No. 9 addressed the burden of proof:

A defendant in a criminal case is presumed
to be innocent until proven guilty beyond a
reasonable doubt. The presumption of innocence
benefits the defendant throughout the trial until the
plaintiff meets this burden. The burden never shifts
to a defendant to call any witnesses, produce any
evidence, or to disprove any allegation. All
presumptions of law are in favor of innocence. If
there is a reasonable doubt as to whether guilt is
sufficiently proven, the defendant is entitled to a
verdict of not guilty.

The state has the burden of proving the
defendant guilty beyond all reasonable doubt. . . .

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 State v. Levering

¶10 Instruction No. 14, which addressed the charge of criminal
trespass (domestic violence), listed the elements of the crime and
instructed the jury that it could convict Levering only if the State
proved each element beyond a reasonable doubt. But it did not
include a provision about the open-to-the-public defense to
prosecution for criminal trespass. See Utah Code Ann. § 76-6-
206(4) (LexisNexis 2017) (stating that a defense to prosecution for
criminal trespass is that “(a) the property was at the time open to
the public; and (b) the actor complied with all lawful conditions
imposed on access to or remaining on the property”).1

¶11 Instruction No. 15 addressed the charge of assault
(domestic violence), stating that Levering could not be convicted
unless the jury found beyond a reasonable doubt each of the
following elements: “One, the defendant committed an act with
unlawful force or violence that caused or created a substantial risk
of bodily injury to another; and two, the act involved domestic
violence; three, the defendant did so intentionally, knowingly, or
recklessly; and four, the defendant did not act in self-defense.”
Jury Instruction Nos. 16 and 17 related to self-defense, but neither
instruction specified that the State carried the burden of proof to
show that Levering did not act in self-defense.

¶12 The jury found Levering guilty as charged. Levering
appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Levering raises two issues on appeal. First, he claims that
trial counsel was constitutionally ineffective for failing to object to
the jury instructions. He asserts that counsel should have objected
to Instruction Nos. 16 and 17 for lacking a burden of proof

1. Because the relevant statutory provisions we cite have not been
materially altered from those in effect at the time of Levering’s
actions, we cite the current code for convenience.

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 State v. Levering

provision. He also contends that counsel should have objected to
Instruction No. 14 because it did not include a defense to criminal
trespass. “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. Galindo, 2019 UT App 171, ¶ 6, 452 P.3d 519 (quotation
simplified).

¶14 Second, Levering asserts that the district court erred in not
allowing the defense to present certain evidence to demonstrate
that he was justified in defending himself against Victim. “We
review the legal questions to make the determination of
admissibility for correctness; we review the questions of fact for
clear error; and we review the district court’s ruling on
admissibility for abuse of discretion.” State v. Sanchez, 2018 UT 31,
¶ 10, 422 P.3d 866 (quotation simplified).

ANALYSIS

I. Ineffective Assistance of Counsel

¶15 Levering asserts that counsel provided ineffective
assistance with respect to the jury instructions in two ways. First,
he argues that counsel should have objected to Instruction Nos.
16 and 17 because “those instructions failed to inform the jury that
the State carried the burden of proving that self-defense was
inapplicable during the incident in question.” Second, he argues
that counsel was ineffective for not objecting to Instruction No. 14,
because that instruction did not “mention that lawfully being on
the premises is a statutory defense to the alleged crime.”

¶16 To prevail on an ineffective assistance of counsel claim,
Levering must show that (1) “counsel’s performance was
deficient” and (2) this “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

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 State v. Levering

“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Levering’s] claims under either prong.” See Honie v. State, 2014
UT 19, ¶ 31, 342 P.3d 182. To succeed on the first prong, Levering
must overcome the strong presumption that his trial counsel
rendered adequate assistance by persuading the court that
“considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36. “If
the court concludes that the challenged action might be
considered sound trial strategy, it follows that counsel did not
perform deficiently.” Id. ¶ 35 (quotation simplified). To succeed
on the second prong, Levering must “demonstrate a reasonable
probability that the outcome of his . . . case would have been
different absent counsel’s error. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the proceeding.” See id. ¶ 43 (quotation simplified).

A. Self-Defense

¶17 Levering first asserts that Instruction Nos. 16 and 17 were
erroneous in not explicitly articulating that the State carried the
burden to disprove that Levering was acting in self-defense when
he attacked Victim and that his counsel performed deficiently in
not objecting to the instructions on this basis. Assuming, without
deciding, that Instruction Nos. 16 and 17 were erroneous as
Levering asserts, we nevertheless conclude that Levering was not
prejudiced.

¶18 Although we recognize that the two instructions could
have been more explicit in explaining that the State bore the
burden to disprove self-defense, 2 when analyzing an

2. In making this observation, we encourage judges, defense
attorneys, and prosecutors to make every effort to ensure that
explicit directives regarding the State’s burden to disprove self-
defense are included in jury instructions.

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ineffectiveness claim, this court “must consider the totality of the
evidence before the jury.” State v. Hutchings, 2012 UT 50, ¶ 28, 285
P.3d 1183 (quotation simplified). And “in light of the evidence in
the record” showing that Levering did not act in self-defense, we
are not convinced there is a “reasonable probability of a different
outcome had the jury instructions been rephrased or clarified” to
specifically include the burden of proof respecting self-defense.
See id.

¶19 Levering has not demonstrated that even if perfectly
crafted jury instructions had been given, there was “a reasonable
probability that the outcome would have been different, since the
jury could not reasonably have found that [Levering] acted in . . .
self-defense such that a failure to instruct the jury properly
undermines confidence in the verdict.” See State v. Ramos, 2018 UT
App 161, ¶ 30, 428 P.3d 334 (quotation simplified); see also State v.
Garcia, 2017 UT 53, ¶ 45, 424 P.3d 171 (“The evidence that [the
defendant] was motivated by a desire to kill [the victim]
overwhelmed the evidence that [the defendant] acted in imperfect
self-defense.”).

¶20 Here, Levering was not responding to any immediate
threat. After having been forcibly ejected from the Residence and
having the door locked behind him, Levering decided to return to
confront Victim. Indeed, he admitted that there was no immediate
threat and that he went “back in to defend [his] innocence because
[Victim] was trying to tell a lie.” Levering forced his way through
a locked door and proceeded to attack Victim, causing her the
injuries described above. See supra ¶ 6. Levering presented no
evidence to show that he reasonably believed Victim presented an
imminent danger to him once he was ejected from the Residence
and standing outside its locked door. Nor did Levering offer
evidence that Victim presented an ongoing threat such that he
found it necessary to force his way back into the Residence to stop
her from engaging in violence against him. Indeed, the very fact
that he forced his way back into the Residence through a locked

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door—for the stated purpose of defending his honor—suggests
that he harbored little fear that Victim presented a physical threat
to him. Under these circumstances, Levering has not shown that
a jury was likely to conclude that he “reasonably believe[d]” he
was defending himself against Victim’s “imminent use of
unlawful force.” See Utah Code Ann. § 76-2-402(2)(a) (LexisNexis
Supp. 2019); see also State v. Berriel, 2013 UT 19, ¶ 14, 299 P.3d 1133
(“Retaliation against a successful aggressor is illegal force used
too late. Defensive force is neither a punishment nor an act of law
enforcement but rather an act of emergency that is temporally and
materially confined, with the narrow purpose of warding off the
pending threat.” (quotation simplified)).

¶21 Levering encourages us to consider the “totality of the
evidence” to reach the conclusion that he reasonably believed
Victim presented an imminent threat to him. Namely, he suggests
that Victim was coming toward him after he forced his way into
the Residence and that he merely “bear-hugged” her in response.
But in making his self-defense argument, Levering fails to
mention that he had unlawfully re-entered the Residence after his
initial expulsion and that Victim responded by insisting he leave.
See Utah Code Ann. § 76-2-405(1) (LexisNexis 2017) (“A person is
justified in using force against another . . . to prevent or terminate
the other’s unlawful entry into or attack upon his [or her]
habitation . . . .”). Any threat Victim presented to Levering had
passed once Victim shut and locked the door behind him. Instead
of retreating, Levering forced his way back in to protest his
innocence. We fail to see how the jury would have found that an
insult to Levering’s honor or integrity constituted an imminent
threat justifying the force Levering used against Victim. Thus,
even if the jury had received well-crafted instructions on the
burden with respect to self-defense, there is no reasonable
likelihood that it would have acquitted Levering of assault.
Consequently, Levering did not suffer prejudice even if his
counsel performed deficiently in not objecting to the possibly
defective instructions.

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 State v. Levering

B. Trespass Defense

¶22 Levering next argues that his trial counsel performed
deficiently in not objecting to Instruction No. 14. He asserts that
the instruction given by the court was “erroneous and
inadequate” because it did not include a defense to criminal
trespass as provided by Utah statute. But given the residential
nature of the Residence, Levering’s argument is unavailing. The
statutory defense to trespass has two prongs:

It is a defense to prosecution under this section [i.e.,
criminal trespass] that:
(a) the property was at the time open to the
public; and
(b) the actor complied with all lawful
conditions imposed on access to or remaining on the
property.

Utah Code Ann. § 76-6-206(4) (LexisNexis 2017). Thus, to
persuade us that his counsel performed deficiently, Levering
must show that the defense applied—i.e., that the Residence was
open to the public and that he complied with the lawful
conditions of being there. The failure to offer evidence and a
convincing argument suggesting that the Residence was open to
the public obviates the need to consider whether he lawfully
accessed the property. And we conclude that Levering failed to
show that the Residence was “open to the public.” Id.

¶23 This court has previously stated that “‘open to the public’
means premises which by their physical nature, function, custom,
usage, notice or lack thereof or other circumstances at the time
would cause a reasonable person to believe no permission to enter
or remain is required.” Steele v. Breinholt, 747 P.2d 433, 435 (Utah
Ct. App. 1987) (quotation simplified). Levering offered no
evidence that the Residence was open to the public under the
standard articulated in Steele. In fact, Levering himself testified

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 State v. Levering

that the doors of the Residence were locked on the day of the
assault and that he obtained access only once Victim opened the
door. He also testified that the “house [was] locked down,
windows screwed shut. That was the norm.” But on appeal,
Levering contends that a “reasonable person” in his “situation
would believe that no permission to enter or remain in the
[Residence] was required because he had been living in the
[Residence].” Levering further argues that “[u]nder this Court’s
prior definition of ‘open to the public,’ [the Residence] was ‘open
to Mr. Levering,’ and therefore, the first prong of the affirmative
defense appears to be satisfied.” We are unconvinced by
Levering’s “public of one” argument.

¶24 First, Levering offers no citation to any authority, and we
are not aware of any, to support the proposition that “open to the
public” includes properties that are private homes. See Salt Lake
City v. Anderson, No. 981507-CA, 1998 WL 1758333, at *1 (Utah Ct.
App. Dec. 3, 1998) (per curiam) (indicating a shopping mall is
open to the public); Salt Lake City v. Grotepas, 874 P.2d 136, 139
(Utah Ct. App. 1994) (concluding that an art school in a public
building may be considered open to the public), rev'd on other
grounds, 906 P.2d 890 (Utah 1995). Second, even if we were to
accept Levering’s argument that “open to the public” meant
“open to Levering,” the Residence was not open to him. To the
contrary, Levering was not living at the Residence at the time of
the assault. He was not a party to the lease. The Residence was
locked, and Levering did not have a key or any other means of
lawful access. Most significantly, he had specifically been told that
he was not welcome numerous times, and Victim told him he was
not welcome the day before he arrived. Finally, he was
emphatically—and forcefully—told to leave by the legal occupant
once he arrived.

¶25 In sum, because there is no support for the contention that
the Residence was open to the public, we cannot conclude that

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counsel acted deficiently in not asking that the jury be instructed
on the statutory defense to criminal trespass in Instruction No. 14.

II. Admissibility of Evidence

¶26 Levering’s final argument is that the district court erred
when it ruled that evidence from a protective order hearing, in
which Victim admitted committing violent acts against him, was
inadmissible. Levering asserts that the statements made at the
hearing should have been admitted because “the statements
pertain[ed] to actions that occurred prior to the incident” on April
13, 2016, and so were pertinent to his self-defense argument. See
Utah Code Ann. § 76-2-402(5) (LexisNexis Supp. 2019) (stating
that “the trier of fact may consider . . . the other individual’s prior
violent acts or violent propensities” and “any patterns of abuse or
violence in the parties’ relationship” “[in] determining imminence
or reasonableness” in relation to using force in self-defense).

¶27 Assuming, without deciding, that the district court should
have admitted the evidence of Victim’s violent acts or
propensities that was elicited at the protective order hearing, we
limit our analysis to whether Levering was prejudiced by the
omission of that evidence. “In circumstances where evidence
should have been admitted, the failure to admit it is reviewed for
harmless error. Exclusion is harmful if it is reasonably likely a
different outcome would result with the introduction of the
evidence and confidence in the verdict is undermined.” State v.
Montoya, 2017 UT App 110, ¶ 14, 400 P.3d 1193 (quotation
simplified); see also Utah R. Crim. P. 30(a) (“Any error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.”). Based on the record
before us, we conclude that Levering was not harmed by the
court’s ruling on the admissibility of evidence of Victim’s other
violent acts elicited at the protective order hearing.

¶28 Levering has failed to show prejudice arising from the
district court’s refusal to admit the disputed evidence. Ample

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testimony of Victim’s violent behavior toward Levering was
presented to the jury for its consideration in determining whether
Levering faced an imminent threat from her at the time of the
assault. Victim admitted to acting violently toward Levering
before the incident: “Every time he brought drugs to my house, I
reacted violently.” Specifically, she admitted to “pushing
[Levering] away from” the Residence and swinging a banister at
Levering because he would not leave her property, resulting in
police involvement. In summarizing the tone of their relationship,
Victim stated, “We had a very volatile relationship. I absolutely
will agree to that. And every single time that I got violent with
him, it was because he brought drugs to my house where my little
girl lived. Every time.”

¶29 Levering has not made any effort to explain what the
disputed evidence would have added to the evidentiary
landscape. Levering asserts that the district court’s decision
“created an undue prejudice against [him] by not allowing him to
bring forth the evidence of [Victim’s] pattern of abuse and
domestic violence against him.” Specifically, he argues that the
disputed evidence “contained testimony made under oath by
[Victim] during [the protective order hearing], wherein [Victim]
admits to assaulting . . . Levering on more than one occasion
before the incident on April 13, 2016.” But as noted above, Victim
repeatedly admitted in her testimony that before the incident, she
“got violent” with Levering. Levering does not explain how any
of the evidence that came out at the protective order hearing
would have made a difference to the jury’s finding of guilt,
especially in light of Victim’s testimony regarding the overall
volatility of the relationship and the violent acts she had
previously taken against him. Given that the jury heard plentiful
testimony—including Victim’s own admission—that Victim had
acted violently on numerous occasions toward Levering, we
conclude that Levering was not prejudiced by any error the
district court may have committed in excluding the evidence
elicited at the protective order hearing.

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CONCLUSION

¶30 We conclude that Levering was not harmed by any
shortcoming of trial counsel in failing to object to jury instructions
lacking an explicit burden of proof provision regarding self-
defense. We further conclude that trial counsel did not perform
deficiently in failing to object to the jury instruction without a
trespassing defense. Lastly, any error the district court committed
in excluding post-assault evidence from Victim’s protective order
proceeding was harmless.

¶31 Affirmed.

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