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Wednesday, September 21, 2016

The Jury Gets To Decide Who to Believe

In State v. Kirby, 2016 UT App 193, Defendant appealed his convictions for witness tampering, aggravated assault, and aggravated kidnapping. When reviewing a jury verdict, the Court views the evidence and and inferences which can reasonably be drawn from the evidence in the light most favorable to the defendant.

Defendant and the victim went to a hotel room to drink and do drugs.  After victim procured more drugs, Defendant beat the victim over multiple days and to the point of bleeding multiple times. Defendant hit the victim with his hands and feet as well as a socked stuffed with a metal padlock and telephone headset. Defendant denied the victim's repeated requests to allow her to leave to get medical care.  Defendant would  not let her sleep on the bed by the outside door. Defendant threatened to rape and kill victim's daughter, her daughter's father, victim, and then himself. Defendant refused to allow victim to leave because he would go back to prison for beating victim. Victim was able to flee and made it to a bus stop. A bystander called the police as Defendant was trying to get victim back inside the hotel room. Victim was taken to the hospital by police and diagnosed with a fractured eye socket, a cut and swelling on the back of her head, open cuts above each eye, strangulation marks on her neck, and extensive bruising over her entire body. Victim reported being held against her will for 3 days. In the hotel room, police found bloody towels, blood on the sheets, a ripped sock with a hole knotted in the top, a metal padlock, a telephone headset, and a hole in the wall.

Both victim and Defendant testified at trial. Defendant testified that victim's injuries were due to her drug use and unsafe behavior. Defendant also testified that victim was retaliating against him for seeing other women. Defendant denied ever hurting victim.  As rebuttal, the State introduced text messages from Defendant to victim's daughter where Defendant wrote that victim would make him so mad he would hit her.

On the last day of trial, Defendant moved for a continuance to produce a missing witness. The witness would purportedly testify that victim told him she made it all up. The trial court determined the witness' testimony was inadmissible hearsay as the victim was not cross examined about that statement (negating for a claim of admitting hearsay as a prior inconsistent statement.) Defense counsel made a motion for mistrial as the evidence might establish Defendant's innocence.

Defendant appeals his convictions based on ineffective assistance of counsel because the convictions were obtained despite the state introducing insufficient evidence.  Defendant's claim was not preserved. To prevail on a claim of ineffective assistance of counsel, Defendant must show that 1) his attorney provided objectively deficient performance, and 2) the deficient performance resulted in prejudice. In other words, the results would have been different.

When reviewing a jury verdict, the Court looks to see if the State introduced some  evidence as to each of the essential elements of each charge. A finding of guilt beyond a reasonable doubt is a finding by the jury that any alternative hypothesis of innocence was not reasonable.

Defendant argued that since the victim did not try to escape, he could not have been found guilty of detaining her. However, the element of detention was met when Defendant refused to let the victim leave after she begged him to let her go.

Defendant argued that he could not be convicted of aggravated assault because the victim was not credible. The jury determines what witnesses are credible and the Court will not overturn the jury's verdict unless the evidence is inherently improbable. Evidence of drug use, without further proof that drugs impaired the witness' memory, does not make a witness' testimony inherently improbable. In addition, the victim's injuries qualified as sufficiently severe to qualify as substantial despite her ability to limp to safety.

Defendant argued that he could not be convicted of witness tampering due to a lack of evidence that he tried to prevent the victim from testifying. However, there was sufficient evidence presented that Defendant would not let victim go because he believed he would go to prison if the victim talked to the police.

Since sufficient evidence was presented to convict Defendant of each offense, a motion to dismiss the charges would have been futile.  Failure to file a futile motion is not an error. Therefore, defense counsel was not objectively deficient.

Finally, Defendant appealed based on the trial court not granting a continuance to procure the testimony of a witness.  To prevail on this claim, Defendant must show that the testimony sought is both material and admissible. The witness statement would have been inadmissible hearsay unless it came in to show the victim uttered a prior inconsistent statement.  However, the victim was never cross examined as to this statement so the witness would not be allowed to testify.

Defendant's convictions were affirmed.

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