author: APPLEBY, Judge: HARRIS, Judge (concurring):

text:
    STATE of Utah, Appellee, v. Anthony Tyrone LANE, Appellant.
    No. 20160930-CA
    Court of Appeals of Utah.
    Filed May 23, 2019
    Opinion
   APPLEBY, Judge:

¶1 Anthony Tyrone Lane appeals his convictions for aggravated assault and possession of a dangerous weapon by a restricted person. He argues the district court erred in applying the doctrine of chances and improperly admitted prejudicial prior act evidence. He also argues his trial counsel was ineffective for failing to request the trial court judge's disqualification based on remarks she made during a pretrial hearing. We reject Lane's ineffective assistance of counsel claim but conclude the prior act evidence should have been excluded and therefore remand for a new trial.

BACKGROUND

¶2 Lane lives in Salt Lake City. In February 2016, he was in a physical altercation with the victim (Victim) at a homeless shelter. Lane was arrested and charged with aggravated assault and possession of a dangerous weapon by a restricted person. Trial was held in August 2016.

¶3 Victim was the first witness to testify. Victim previously lived at the shelter and returned there that day to pick up mail. After realizing the mailroom was closed, he wandered around talking to people. There were "50 to 100 people milling around" the shelter, including Lane. Victim testified that as he was talking, he "got side blinded, got punched in the face and ... just started swinging back at the direction that it came from." Several people broke up the fight. Victim "took a few steps" back and "then it started up again." Victim testified he got punched again, "went down to duck a punch," and when he came back up, he "was bleeding." He thought he had just been punched but guessed he "ended up getting sliced." Victim sustained three lacerations to his face as a result of the incident. Lane ended up with a small cut on his finger. Victim denied using a knife in the altercation and denied having one.

¶4 The State presented surveillance footage of the incident. At first, Victim could not identify himself on the video recording and testified he was unsure with whom he was fighting. Victim added that it was "hard to see" what was going on in the footage. He testified multiple times he did not know who hit him. After the altercation, Victim left the scene to try to catch a train to a hospital. He was bleeding severely and had a towel on his face when he was stopped by a security officer. Police officers arrived and called for an ambulance. Victim was treated at a hospital for his injuries.

¶5 A witness (Witness) to the altercation also testified. Witness was a shelter resident who saw Lane and Victim "get into an altercation" and then being "pulled apart." He testified he saw Lane "excuse[ ] himself," but then "they got into [a] second altercation [and he] noticed both of them had blades." "A crowd was following them," and "when [Lane] left and [Victim] pursued," the crowd "let them get into it again." Witness saw Lane "sidestep [Victim] and throw a punch back at him." Witness testified that Lane "clearly took off ... [and] was trying to avoid that whole mess."

¶6 One of the responding officers (Officer) also testified. Officer commonly patrols the shelter and considers it a "high crime area." He investigates "anywhere from 15 to 30" incidents a day, ranging from "drug crimes on up to pretty serious cases." He testified that it is "not uncommon for people to have guns and all sorts of other things down there." He arrived on the scene and Victim told him that he challenged Lane first for "being a big mouth" and "acting tough." When shown footage of the incident, Officer testified he "couldn't tell a whole lot from the surveillance video."

¶7 The second day of trial primarily consisted of testimony regarding two prior incidents involving Lane. Before trial, the State filed a motion asking the court to admit evidence of incidents that occurred at the shelter in 2012 (2012 Incident) and 2015 (2015 Incident). The State sought to introduce the evidence under rule 404(b) of the Utah Rules of Evidence or, in the alternative, the doctrine of chances. The State argued that these incidents were offered for a proper non-character purpose under rule 404(b) to show "intent, plan, absence of mistake, motive, lack of accident, and to rebut [Lane's] self-defense claim." Specifically, the State argued that "the prior bad act evidence will prove [Lane assaulted Victim with unlawful force or violence] by showing that [Lane] knew what he was doing when he assaulted [Victim] with a sharp object, that he had a plan and motive to injure [Victim], and that he was not acting in self-defense." The State also argued this evidence was relevant and that the probative value was not substantially outweighed by unfair prejudice.

¶8 In the alternative, the State argued the evidence should be admitted under the doctrine of chances. The State contended "the evidence of [Lane's] two prior bad acts [was] offered to counter his claim of self-defense in the current case" and to "show that it is unlikely that [he] would be placed in a situation three times in four years that would require cutting the victims' faces in self-defense." The State claimed it was not "assert[ing] that [Lane] has a propensity for cutting faces." The State argued that the evidence was relevant, it was being offered for a proper non-character purpose, and its probative value substantially outweighed its prejudicial effect.

¶9 The district court ruled that the two prior incidents involving Lane were admissible under the doctrine of chances because the foundational requirements were met (that is, materiality, similarity, independence, and frequency). The court admitted the evidence of the two incidents on this ground but did not evaluate it under rule 403.

¶10 At trial, the following evidence was presented regarding the 2015 Incident. A woman (2015 Witness) who once lived at the shelter testified first. She testified that the altercation began with Lane arguing with a man and Lane was "as always ... letting him know who he was." 2015 Witness testified that after the two stopped yelling Lane walked away, then returned and "slashed" the man in the face. She testified the other man did not have a weapon. After that, 2015 Witness approached the man and put a shirt on his face and waited for medical assistance. After 2015 Witness was excused, the court-without prompting from the parties-reminded the jury that the "last witness has to do with a separate incident from the one we talked about yesterday. And witnesses from here on out are separate, right? 2015 instead of 2016."

¶11 A responding officer (2015 Officer) also testified about the 2015 Incident. He was patrolling the shelter that day and separated Lane from a man with whom Lane was arguing. A few minutes after separating the men, 2015 Officer was called to respond to a "fight with a knife." As 2015 Officer approached, he saw a man "being attended to by several other individuals ... [and 2015 Officer] could see blood seeping through [a] cloth [held to the man's face]. There was blood on the ground and then also blood on the [man's] shirt." The individuals attending to the man told 2015 Officer that Lane cut him. When 2015 Officer encountered Lane after the incident, Lane told 2015 Officer "it was self-defense." Another responding officer testified that officers seized a box cutter from Lane. The other man was transported to the hospital for a "deep laceration" on the left side of his face "starting just above the ear and continuing all the way down to the corner of his mouth." Lane was later charged with assault in connection with the 2015 Incident. The case went to trial and a jury found Lane not guilty.

¶12 The State next introduced evidence from the 2012 Incident. A responding officer (2012 Officer) was called to the shelter on a report of a "man with a knife." 2012 Officer "noticed [Lane] bleeding from the mouth, [and it] looked like he'd been involved in an altercation." 2012 Officer observed a knife approximately seven to eight feet away from Lane that was "silver in color, had a wooden handle, [and] about a 4-inch blade." Lane told 2012 Officer the knife was his. 2012 Officer could not recall whether there was blood on it. He testified Lane was the only individual bleeding. A second officer testified that Lane said the man he was fighting with "struck him with a head-butt and then punched him and then [Lane] drew a knife." Lane claimed he produced the knife in self-defense. He pled guilty to assault for the 2012 Incident.

¶13 At the conclusion of trial, the jury convicted Lane of two felony charges: aggravated assault and possession of a dangerous weapon by a restricted person. The court sentenced Lane and he appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Lane raises two issues on appeal. First, Lane contends the district court improperly applied the doctrine of chances analysis in admitting evidence of the 2012 and 2015 incidents. "The appropriate standard of review for a district court's decision to admit or exclude evidence is abuse of discretion." State v. Lowther , 2017 UT 34, ¶ 17, 398 P.3d 1032 (quotation simplified). "A district court abuses its discretion when it admits or excludes evidence under the wrong legal standard." Id. (quotation simplified). Reversal is warranted if "absent the error, there was a reasonable likelihood of a more favorable result for the party," and therefore "our confidence in the jury's verdict is undermined." Robinson v. Taylor , 2015 UT 69, ¶ 39, 356 P.3d 1230 (quotations simplified).

¶15 Second, Lane contends his trial counsel was ineffective for failing to request the trial judge's disqualification based on remarks she made to him during a pretrial hearing. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Ott , 2010 UT 1, ¶ 16, 247 P.3d 344 (quotation simplified).

ANALYSIS

I. Prior Act Evidence

¶16 Lane argues the district court improperly applied the doctrine of chances in admitting evidence of the 2012 and 2015 incidents. Specifically, Lane contends the court erred in admitting the prior act evidence under rule 404(b) without also weighing it under rule 403. We agree.

¶17 It is "fundamental in our law that a person can be convicted only for acts committed, and not because of general character or a proclivity to commit bad acts." State v. Reed , 2000 UT 68, ¶ 23, 8 P.3d 1025. This concept is articulated in rule 404(b) of the Utah Rules of Evidence, which 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 "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. R. 404(b)(2).

¶18 The "doctrine of chances" is also used to admit otherwise excludable prior act evidence under rule 404(b). It is "a theory of logical relevance that rests on the objective improbability of the same rare misfortune befalling one individual over and over." State v. Verde , 2012 UT 60, ¶ 47, 296 P.3d 673 (quotation simplified), abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016. This evidence is used in cases that involve "rare events happening with unusual frequency." State v. Lopez , 2018 UT 5, ¶ 52, 417 P.3d 116. Evidence admitted under the doctrine of chances must satisfy four foundational requirements. Verde , 2012 UT 60, ¶ 57, 296 P.3d 673. "These ... include materiality, similarity, independence, and frequency." State v. Lomu , 2014 UT App 41, ¶ 28, 321 P.3d 243 (citing Verde , 2012 UT 60, ¶ 5, 296 P.3d 673 ).

¶19 The difficulty in applying rule 404(b) "springs from the fact that evidence of prior bad acts often will yield dual inferences." Verde , 2012 UT 60, ¶ 16, 296 P.3d 673. "[E]vidence of a person's past misconduct may plausibly be aimed at establishing motive or intent, but that same evidence may realistically be expected to convey a simultaneous inference that the person behaved improperly in the past and might be likely to do so again in the future." Id . "If such evidence is really aimed at establishing a defendant's propensity to commit a crime, it should be excluded despite a proffered ... legitimate purpose." Id. ¶ 17 (quotation simplified).

¶20 If a court finds a proper non-character purpose for the evidence, it must also engage in a separate rule 403 analysis to weigh these competing concerns. Id. ¶¶ 17-18. Weighing this evidence is "essential to preserve the integrity of rule 404(b). Without it, evidence of past misconduct could routinely be allowed to sustain an inference of action in conformity with bad character-so long as the proponent of the evidence could proffer a plausible companion inference that does not contravene the rule." Id. ¶ 18.

¶21 For purposes of our analysis we assume, without deciding, that the evidence in this case was admissible under rule 404(b). In its ruling, the district court correctly articulated the standard for admitting prior act evidence. First, a court must determine whether the evidence is offered for a proper non-character purpose. Next, a court must find that the evidence's "probative value is not substantially outweighed by the danger of 'unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.' " (Quoting Utah R. Evid. 403.) But despite articulating the proper standard, the court failed to apply rule 403 when it found the 2012 and 2015 incidents admissible under the doctrine of chances. Its analysis simply consisted of mechanically applying Verde 's foundational requirements under rule 404(b). See State v. Lowther , 2017 UT 34, ¶ 1, 398 P.3d 1032 (holding that the district court abused "its discretion by mechanically applying the Shickles factors to assess the probative value of the State's rule 404(b) evidence"). In other words, the court applied the wrong legal standard in admitting this evidence by not conducting a separate rule 403 analysis. This amounts to an abuse of discretion. See id. ¶ 17.

¶22 Courts must "carefully consider whether [prior act evidence] is genuinely being offered for a proper, non-character purpose, or whether it might actually be aimed at sustaining an improper inference of action in conformity with a person's bad character." Verde , 2012 UT 60, ¶ 18, 296 P.3d 673. "[E]ven if the evidence may sustain both proper and improper inferences under rule 404(b)," courts must "balance the [inferences] against each other under rule 403, excluding bad acts evidence if its tendency to sustain a proper inference is outweighed by its propensity for an improper inference or for jury confusion about its real purpose." Id. As we articulated supra ¶ 18 note 3, courts should not "make a mechanical application" of any factors under rule 403 but should simply apply the text of the rule. Lowther , 2017 UT 34, ¶ 33 n.51, 398 P.3d 1032.

¶23 In this case, the prior act evidence should have been excluded because the prejudicial inference that Lane's character predisposes him to get in knife fights and then claim self-defense substantially outweighs the State's proffered justifications for admitting the evidence. The State claimed it was offering the evidence to show Lane's "non-character purpose of intent, plan, absence of mistake, motive, lack of accident, and to rebut [his] self-defense claim." Specifically, the State argued the evidence would prove Lane's unlawful use of force or violence "by showing that [he] knew what he was doing when he assaulted [Victim] with a sharp object, that he had a plan and motive to injure [Victim], and that he was not acting in self-defense, but that he was, in fact, the actual aggressor." The State also argued the evidence should be admitted under the doctrine of chances. It argued that the prior act evidence shows that "it is unlikely that [Lane] would be placed in a situation three times in four years that would require cutting the victims' faces in self-defense." The State claimed it was not asserting that Lane "has a propensity for cutting faces."

¶24 Merely stating that evidence is not being offered for propensity purposes does not mean the evidence does not present an improper propensity inference. First, it is not highly strange or unlikely that Lane would need to defend himself multiple times over years of living in a high crime area. Officer testified at trial that he encounters many individuals carrying weapons in that area and responds to "15 to 30" incidents a day ranging from "drug crimes" up to "pretty serious cases." Further, the proffered use of the evidence presented by the State is substantially outweighed by the unfairly prejudicial inference that Lane has the character of someone who continuously provokes altercations, cuts the faces of his victims, and then claims self-defense.

¶25 The way the evidence was presented at trial also supports our conclusion that the prior act evidence in this case presented a prejudicial propensity inference. In opening statements the State told the jury how to view the prior act evidence. "We're here today on an aggravated assault case so I want to tell you a little bit about that. In [2015], prior to the incident in 2016 that we'll be trying over the next two days, the defendant got into an argument with an individual." The State continued,

[Lane] pulled out a box cutter and sliced ... [the individual] across the face, opening his cheek. When [Lane] was arrested ... he said he was only defending himself, it was self-defense. But then he said he would do it again. And that is why we are here today for this 2016 case because he did exactly what he said he was going to do. He did it again .

(Emphasis added.) The statement that Lane "did it again" is precisely the type of propensity inference rule 404(b) prohibits. See Utah R. Evid. 404(b) ("Evidence of a crime ... 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."); State v. Burke , 2011 UT App 168, ¶ 28, 256 P.3d 1102 (holding "evidence of a defendant's bad acts is not admissible to prove that a defendant has a propensity for bad behavior and has acted in conformity with his dubious character"); Edward J. Imwinkelried, Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing Uncharged Misconduct Evidence to Prove Intent , 45 Hofstra L. Rev. 851, 856 (2017) [hereinafter Imwinkelried] ("It is axiomatic that the jurors may not reason that the other act shows the accused's bad character and that 'if he did it once, he did it again.' ").

¶26 Next, we address whether admitting the prior act evidence was prejudicial to the outcome of trial. The evidence presented at trial for Lane's 2016 charges, standing alone, was weak and based on circumstantial evidence. Victim never identified Lane as his attacker, none of the police officer witnesses saw the incident, and the defense witness testified he saw Lane "trying to avoid that whole mess" and that "both [Lane and Victim] had blades." Also, the surveillance footage from 2016 was blurry and it was "hard to see" what occurred.

¶27 The prior act evidence also took up a significant portion of the two-day trial. The State finished presenting its evidence of the 2016 charges on the first day and spent most of the second day presenting the prior act evidence. Further, at the beginning of the second day, after the first witness testified regarding the prior act evidence, the court sua sponte addressed the jury to remind it that the State was no longer presenting evidence of Lane's 2016 charges. Based on how the evidence presented at trial, it was possible that Lane's conviction "reflected the jury's assessment of his character, rather than the evidence of the crime he was charged with." State v. Rackham , 2016 UT App 167, ¶ 24, 381 P.3d 1161. Because the 2016 evidence was weak and the prior act evidence took up a significant portion of the trial, "the likelihood of a different outcome in the absence of the rule 404(b) evidence ... is sufficiently high to undermine confidence in the verdict." Id. (quotation simplified).

¶28 We also note that the jury instruction does not cure the prejudice in this case. The stipulated instruction states,

You have heard evidence that [Lane] brandished a knife in a fight and that he cut an individual's face with a box cutter. Both of these acts occurred before the acts charged in this case. You may consider this evidence, if at all, for the limited purpose of self-defense. This evidence was not admitted to prove a character trait of the defendant or to show that he acted in a manner consistent with such a trait. Keep in mind that the defendant is on trial for the crimes charged in this case, and for those crimes only. You may not convict a person simply because you believe he may have committed some other acts at another time.

The State argues any improper use of the 2012 and 2015 incidents at trial was cured through this instruction. We disagree that this instruction properly informed the jury on how to use the evidence from the 2012 and 2015 incidents. See Imwinkelried at 878 (noting that the risk of unfair prejudice can be minimized by a "clear [and] forceful limiting instruction"). The instruction tells the jury it is allowed to consider the 2012 and 2015 incidents for "self-defense" but at the same time it is not allowed to "convict a person simply because you believe he may have committed some other acts at another time." This seems to tell the jury it is allowed to consider Lane's propensity for getting in fights and arguing he was acting in "self-defense" while simultaneously telling it not to convict Lane because he may have been in fights before and then claimed "self-defense."

¶29 We conclude that the prior act evidence should have been excluded before trial under rule 403 and, had it been excluded, there is a "reasonable likelihood of a more favorable result." Robinson v. Taylor , 2015 UT 69, ¶ 39, 356 P.3d 1230 (quotation simplified).

II. Trial Judge Disqualification

¶30 Lane also contends his counsel was ineffective for failing to request the judge's disqualification because of remarks she made to Lane during a pretrial hearing. We disagree.

¶31 To succeed on his ineffective assistance of counsel claim, Lane must show "(1) that counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel's performance there is a reasonable probability that the outcome of the trial would have been different." State v. Montoya , 2004 UT 5, ¶ 23, 84 P.3d 1183 (quotation simplified). "To prevail on the first prong of the test, a defendant must identify specific acts or omissions demonstrating that counsel's representation failed to meet an objective standard of reasonableness." Id. ¶ 24 (quotation simplified). Lane fails to meet the first prong in this case.

¶32 During a pretrial hearing Lane's counsel asked the court to release Lane from jail pending trial. The State opposed his release arguing that the allegations of the current charges along with "his criminal history ... show[s] that he is a danger to the community" and that "he could potentially be a flight risk." In response the judge stated, "What concerns me is the difficulty with the self-defense claim when you are the one introducing a weapon into a fight. Even if someone else starts that fight, you then can't introduce a weapon into that fight. ... That's what makes you a danger to society." The judge concluded, "I am not inclined to do a release at this time, not after I've looked at the slashed faces of people you've had contact with."

¶33 The court found Lane was "a danger to society" in the context of considering whether to release him before trial. The court was not, as Lane argues, making a premature determination of his guilt, but merely engaging in routine and necessary analysis for purposes of determining his pretrial release status. See State v. Kucharski , 2012 UT App 50, ¶ 4, 272 P.3d 791 ("The fact that a judge has formed an opinion regarding a particular defendant based on proceedings occurring in front of the judge is not a ground for disqualification." (citing Utah Code of Judicial Conduct rule 2.11(A))); see also id. ("[B]ias or prejudice requiring disqualification must usually stem from an extrajudicial source, not from occurrences in the proceedings before the judge." (quotation simplified)).

¶34 We conclude these statements do not establish that the judge was biased and therefore Lane's trial counsel was not ineffective for not requesting the judge's disqualification. See State v. Tueller , 2001 UT App 317, ¶ 16, 37 P.3d 1180 (explaining that if "there was no actual bias in the trial judge's actions, we cannot say that trial counsel's failure to attempt to disqualify the judge constitutes" deficient performance); see also State v. Munguia , 2011 UT 5, ¶ 19, 253 P.3d 1082 (explaining that if the judge is not required to recuse herself, defense counsel is not ineffective for not requesting it).

CONCLUSION

¶35 We reject Lane's ineffective assistance of counsel claim and find that the judge's statements did not amount to bias requiring disqualification. But we conclude that Lane was prejudiced by the admission of the prior act evidence. The prior act evidence should have been excluded and we reverse and remand for a new trial.

HARRIS, Judge (concurring):

¶36 I am in full agreement with the majority's analysis in this case, and specifically with its conclusion that the district court's failure to conduct a rule 403 analysis of the prior bad acts evidence was prejudicial error. I agree with the majority that, in this case, the prior bad acts evidence was deployed in such a way as to make it nearly impossible for the jury to avoid drawing a propensity inference, and that the evidence should have been excluded on that basis. I write separately, as I did recently in State v. Murphy , 2019 UT App 64, 441 P.3d 787, to again express reservations about the manner in which the doctrine of chances (the Doctrine) is currently being used in Utah.

I

¶37 My first concern is a big-picture one: I wonder whether it could ever be appropriate for the Doctrine to be applied to admit prior acts evidence to rebut a defendant's claim that he acted in self-defense. Lane does not raise this issue, but I think it would be worthwhile for a future litigant to raise it, so that a Utah appellate court can weigh in on the question after full briefing.

¶38 As described by our supreme court, the Doctrine is "a theory of logical relevance that rests on the objective improbability of the same rare misfortune befalling one individual over and over." State v. Verde , 2012 UT 60, ¶ 47, 296 P.3d 673 (quotation simplified), abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016 ; see also State v. Lopez , 2018 UT 5, ¶ 52, 417 P.3d 116 (stating that doctrine of chances cases "involve rare events happening with unusual frequency"). At root, the Doctrine is simply "probability reasoning." Verde , 2012 UT 60, ¶¶ 50, 53, 296 P.3d 673 ; cf. Hopt v. People , 120 U.S. 430, 440, 7 S.Ct. 614, 30 L.Ed. 708 (1887) (referring to the "doctrine of chances" as a tool used to "establish a probability").

¶39 Because the Doctrine is a probability-based construct, it has been widely applied to admit prior bad acts evidence in cases in which the accused's defense is that the allegedly criminal act in question occurred by accident or random chance rather than by design. See Murphy , 2019 UT App 64, ¶ 54, 441 P.3d 787 (Harris, J., concurring) (citing cases). In such cases, the prosecution may be allowed to introduce evidence of previous incidents involving the defendant in order to demonstrate the extreme statistical improbability that the allegedly criminal act occurred solely by accident or random chance. See, e.g. , United States v. York , 933 F.2d 1343, 1350 (7th Cir. 1991) (stating that "[t]he man who wins the lottery once is envied; the one who wins it twice is investigated"), overruled on other grounds by Wilson v. Williams , 182 F.3d 562 (7th Cir. 1999). That is, where the defendant's claim is that "the event in question was an accident," the Doctrine can apply to rebut that claim, as our supreme court explained in Verde : "Propensity inferences do not pollute this type of probability reasoning," because "[t]he question for the jury is not whether the defendant is the type of person who, for example, sets incendiary fires or murders his relatives." 2012 UT 60, ¶ 50, 296 P.3d 673 (quotation simplified). Instead, "[t]he question is whether it is objectively likely that so many fires or deaths could be attributable to natural ca[u]ses." Id. This evidence "tends to prove a relevant fact without relying on inferences from the defendant's character," and is therefore not impermissible propensity evidence. Id. ¶ 51. In the context of rebutting a claim of mistake or accident, "[i]t is that objective unlikelihood [of repeated similar misfortunes] that tends to prove" that actions were brought about by "human agency, causation, and design" rather than by accident or random chance. Id. ¶ 50 (quotations simplified).

¶40 A doctrine like this-based on probability reasoning and on the statistical unlikelihood of repeated occurrences of rare, random events-would seem to lose much of its logical coherence if applied in contexts where the underlying acts in question are not random at all, but instead are based on human volition. Applied in such contexts, it would seem to become very difficult-if not entirely impossible-to separate the permissible "probability" inference from the impermissible "propensity" inference. I explained in Murphy that I fear this problem might exist in cases in which the Doctrine is applied to admit prior bad acts for the purpose of rebutting a defendant's claim that the complaining witness is lying. See 2019 UT App 64, ¶¶ 57-59, 441 P.3d 787 (Harris, J., concurring). I see the potential for this same problem in cases in which the Doctrine is applied to admit prior bad acts for the purpose of rebutting a claim of self-defense.

¶41 In cases like this one, in which a defendant stands accused of a violent act but claims he acted in self-defense, we may be less likely to believe the defendant's claims if presented with evidence that he has made this claim before, whether successfully or unsuccessfully. But the reason we are less likely to credit the defendant's claim in this context has little to do with probability and a lot to do with the easily drawn inference that the defendant might be the type of person who commits violent acts. The fact that he has been previously involved in violent acts is not usually something that is based on randomness or fortune (like winning the lottery or being struck by lightning). It is based on a whole host of factors, most of which involve non-random, purposeful decisions on the part of the defendant and others. Specifically, becoming involved in violent acts involves human decision-making, and a person's state of mind when he commits those acts-e.g., whether the person acted in self-defense-is also volitional rather than random.

¶42 That is, in many instances, the reasons a person is involved in incidents resulting in violent acts, and the reasons a person forms a particular mens rea while doing so, are not probability-based, and therefore I wonder about the wisdom of trying to apply a probability-based doctrine in this context. The fact that Person A is much more likely than Person B to be involved in a violent scrape and then claim self-defense would seem to have a lot more to do with propensity or with other non-random environmental factors than it does with simple mathematical probabilities. See, e.g. , Paul F. Rothstein, Intellectual Coherence in an Evidence Code , 28 Loy. L.A. L. Rev. 1259, 1262-63 (1995) ("The essence of this probable guilt argument is that there is a disparity between the chances, or probability, that an innocent person would be charged so many times and the chances, or probability, that a guilty person would be charged so many times. If there is such a disparity, however, it is only because a guilty person would have the propensity to repeat the crime. If it were not for the propensity to repeat, the chances, or the probability, that an innocent person and a guilty person would be charged repeatedly would be identical. Hence, the argument hinges on propensity and runs afoul of the first sentence of Rule 404(b)."). At a minimum, it seems that the variables involved in running a metaphorical probability calculation in this context may be too numerous to make the calculation meaningful in any given case.

¶43 In my view, even assuming the soundness of Verde 's underlying probability logic, see supra ¶ 39 note 8, and even assuming there may exist scenarios in which that logic could be usefully applied in a self-defense (or other volitional) case, the entire exercise is a nonstarter unless two threshold conditions can be met. First, the party asking the court to admit prior bad acts evidence pursuant to the Doctrine should be able to clearly articulate what the event of "rare misfortune" is that triggers the Doctrine's application. See Verde , 2012 UT 60, ¶ 47, 296 P.3d 673. Where the Doctrine is applied to rebut a claim of mistake or accident, this is usually easily accomplished: the event of rare misfortune is, say, the death of a bride in a bathtub, or the mistaken taking of a horse. See id. ¶¶ 48-49. In the self-defense context (as in the fabrication context, see Murphy , 2019 UT App 64, ¶¶ 57-59, 441 P.3d 787 (Harris, J., concurring)), it is often difficult to articulate what that event is, as illustrated in this case. Is the event of rare misfortune that Lane was previously involved in fights? Is it that Lane was previously involved in fights for which he claimed that he acted in self-defense? Or is it that Lane was previously involved in fights in which he employed a knife? I cannot tell, and (even upon questioning at oral argument) neither can the State. None of these options involve random events of chance. As in this case, if it is difficult to clearly identify the event of "rare misfortune," it raises the likelihood that the evidence of prior acts is not coming in for permissible probability purposes but, instead, is coming in for impermissible propensity purposes. Moreover, without clear identification of the event of "rare misfortune," it becomes difficult to determine whether the "four foundational requirements," which are prerequisites to the application of the Doctrine, have been satisfied. See Verde , 2012 UT 60, ¶¶ 57-61, 296 P.3d 673 (listing materiality, similarity, independence, and frequency as the "four foundational requirements" of the Doctrine).

¶44 Second, the party asking the court to admit prior bad acts evidence pursuant to the Doctrine should be able to clearly articulate both (a) the purposes for which the evidence can permissibly be used and (b) the purposes for which the evidence cannot permissibly be used. If these purposes cannot be articulated in a way that a lay juror can readily understand, that is a good clue that the Doctrine is being misapplied. Again, this case is a good example. The jury was instructed that it could "consider [the prior bad acts] evidence, if at all, for the limited purpose of self-defense," but that the "evidence was not admitted to prove a character trait of the defendant or to show that he acted in a manner consistent with such a trait." I confess that I do not know what this instruction means. No mention at all is made of any probability-based inference that might be permissibly drawn with regard to evidence properly admitted pursuant to the Doctrine. No meaningful guidance is given regarding the purposes for which the evidence may, and may not, be used. I cannot imagine lay jurors having any idea what to make of an instruction like this, and if the jury is not clearly instructed, the risk of jurors resorting to impermissible propensity inferences is too great.

¶45 All of which leads me not only to conclude that the Doctrine was misapplied in this case, but also to wonder whether the Doctrine could ever be properly applied in a self-defense context. No Utah appellate court has yet held that application of the Doctrine to cases in which the defendant claims self-defense is proper. Some other courts have applied the Doctrine to allow prior acts evidence in this context, see, e.g. , State v. Monroe , 364 So. 2d 570, 571-73 (La. 1978), but those cases are rare, and it is therefore far from established that the Doctrine applies in self-defense cases. I urge parties in future cases to raise and fully brief this issue, instead of-as the parties did here-simply assuming that the Doctrine applies in this context.

II

¶46 My second set of concerns has to do with the manner in which the Doctrine was specifically applied in this case. That is, assuming that the Doctrine could be meaningfully applied to admit relevant, non-character prior acts evidence in the self-defense context, the Doctrine was misapplied in this case in several material ways.

¶47 First, as the majority ably describes, the district court did not conduct a separate rule 403 analysis, a step that is " 'essential to preserve the integrity of rule 404(b).' " See supra ¶ 20 (quoting Verde , 2012 UT 60, ¶ 18, 296 P.3d 673 ). Even if a court concludes that, under governing case law, the Doctrine can logically apply, and even if it concludes that the Doctrine's "four foundational requirements" for application are met, see Verde , 2012 UT 60, ¶ 57, 296 P.3d 673, the court still must analyze the evidence under rule 403 to ascertain whether the probative value of the admissible part of the evidence is substantially outweighed by the danger of unfair prejudice, including the danger of the jury drawing an impermissible propensity inference. The district court failed to take this important step.

¶48 Second, as I have already mentioned, the instruction given to the jury was inadequate, and did not meaningfully assist the jury in navigating its way through a logical and metaphysical minefield. "A complete, properly worded limiting instruction has two prongs. The negative prong forbids the jury from using the evidence for the verboten purpose. In contrast, the affirmative prong explains how the jury is permitted to reason about the evidence." Edward J. Imwinkelried, Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing Uncharged Misconduct Evidence to Prove Intent , 45 Hofstra L. Rev. 851, 873 (2017). The instruction given in this case was conclusory, and informed the jury that it could not draw a character inference but could use the evidence for "self-defense." This is precisely the sort of instruction that commentators have rightly criticized. See id. at 873-74, 876 (offering as an example of an "inadequate" instruction one where, "[a]fter stating the negative prong of the instruction, in the affirmative prong the judge ... give[s] the jury only the guidance that they may use the evidence for the purpose of proving 'intent,' "

and noting that this sort of instruction "can lead the jury into improper character reasoning"). Assuming that, on the facts of this case, it were possible to articulate purposes for which the evidence could and could not be used, those purposes needed to have been spelled out in much more detail than they were.

¶49 Third, I am concerned about the manner in which the district court analyzed the "frequency" factor. See Verde , 2012 UT 60, ¶ 61, 296 P.3d 673. The point of this factor is to ensure that the event of "rare misfortune" in question has been visited upon the defendant "more frequently than the typical person." Id. ¶¶ 47, 61 (quotation simplified). Assuming that one can pinpoint what the event of rare misfortune is in this instance, and that one can meaningfully apply probability (rather than propensity) reasoning to a situation involving several levels of human volition, our case law then requires the court to compare this defendant to a "typical person" to ascertain whether the event occurred to the defendant with greater frequency. In this case, the court's complete analysis on this point was as follows: "Here, Defendant has been involved with three serious assaults in four years. Even given his chronic homelessness and the higher frequency of assault surrounding shelters, the rate of Defendant's involvement in these assaults is not mere accident." I find this analysis lacking. The court did not take any evidence to establish the profile of a "typical" resident of that part of Salt Lake City, or any evidence intended to establish a baseline regarding the number of physical altercations per year in which such a resident might typically be involved. Under these circumstances, I see no reasoned basis for the court's intuition-level conclusion that a person living in that part of the city becoming involved in one fight every fifteen months is necessarily "frequent." Bound up in that analysis are various assumptions by the court-arrived at without evidence-of what living conditions are like for homeless citizens of Salt Lake City. This is an instance where the court, in my view, needed to take additional evidence-from experts, if necessary-to arrive at a sound conclusion about whether the number of assaults in which Lane was involved was atypical for a resident of that part of town.

III

¶50 But I question whether our courts should even be asked to engage in inquiries like that, given the bigger problems I see with the application of the Doctrine to admit prior acts evidence in cases in which a defendant claims that he acted in self-defense. Because of my various concerns about the district court's admission, pursuant to the Doctrine, of Lane's prior assaults, I share the majority's view that Lane was not afforded a fair trial, and therefore I concur in the majority's disposition. I also urge litigants in future cases to raise and brief issues they might see with application of the Doctrine, in this or other contexts, in order to enable the Doctrine's application in Utah to be reexamined in an appropriate case.

      "On appeal, 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.

      Defense counsel objected to this statement as hearsay and the court sustained the objection but did not instruct the jury to disregard the statement.

      In State v. Lowther , the Utah Supreme Court clarified confusion over whether the doctrine of chances requirements should be assessed as elements under rule 404(b) or as factors replacing the Shickles factors under rule 403. 2017 UT 34, ¶ 21, 398 P.3d 1032.
      In State v. Shickles , the supreme court articulated a set of factors district courts should consider in conducting a rule 403 balancing test prior to admitting 404(b) evidence. 760 P.2d 291, 295-96 (Utah 1988), abrogated by State v. Doporto , 935 P.2d 484 (Utah 1997). In State v. Verde , 2012 UT 60, 296 P.3d 673, abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016, the court articulated a different set of factors courts should consider for the doctrine of chances but it was unclear whether those factors were intended to replace the Shickles factors under rule 403. See State v. Lowther , 2015 UT App 180, ¶ 25, 356 P.3d 173 ("Given this court's decision in State v. Labrum , to interpret Verde as replacing Shickles , the trial court's strict adherence to Shickles is misplaced."), aff'd on other grounds , 2017 UT 34, 398 P.3d 1032. The supreme court clarified in Lowther that district courts should not "make a mechanical application" of any factors but should simply "apply the text of rule 403." 2017 UT APP 34, ¶ 33 n.51, 398 P.3d 1032. Specifically, the court held that "in performing a rule 403 balancing test, a court is not bound by [Verde 's] foundational requirements" and can consider any relevant factors in applying the text of rule 403. Id. ¶ 21.
      But it has always been clear that traditional balancing of probative value and prejudicial effect under rule 403 is required prior to admitting 404(b) evidence. See, e.g. , State v. Thornton , 2017 UT 9, ¶ 36, 391 P.3d 1016 ; Verde , 2012 UT 60, ¶ 15, 296 P.3d 673 ; State v. Lomu , 2014 UT App 41, ¶ 33, 321 P.3d 243 ; State v. Labrum , 2014 UT App 5, ¶ 18, 318 P.3d 1151.

      Lane does not ask this court to find that the doctrine of chances should not be used to rebut a defense of self-defense. But, as the concurring opinion points out, we have our doubts that it should be applied in this context.

      Rule 403 balancing is always required before admitting evidence under rule 404(b). See Lomu , 2014 UT App 41, ¶ 33, 321 P.3d 243 ("Having taken all of the Verde requirements into account and having determined that there was substantial probative value in admitting evidence of the other episode, we must also consider whether the potential for prejudice or confusion from admitting the evidence substantially outweighed its probative value." (emphasis added)); Labrum , 2014 UT App 5, ¶ 18, 318 P.3d 1151 ("Evidence offered under rule 404(b) is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 403." (emphasis added) (quotation simplified)); see also R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 203 (2018-2019 ed.) ("Rule 403 codifies the common law authority of the judge to balance the probative weight of any item of evidence against its overall unfairness. If a drafter were required to reduce all the rules of evidence into two rules, it would be rules 402 and 403." (emphasis added)).

      We also note that the jury, not the judge, was the factfinder in this case.

      The defense of mistake or accident can be raised with regard to either actus reus or mens rea . In the famous "Brides in the Bath" case, the defense was that there had been no actus reus , and that the three brides had each died by accident while bathing. See State v. Verde , 2012 UT 60, ¶ 49 n.20, 296 P.3d 673 (citing Rex v. Smith , 11 Crim. App. 229, 84 L.J.K.B. 2153 (1915)), abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016. In the case of Dean Wigmore's famous hypothetical about a hunter who shot at his companion three times, the hunter necessarily concedes the existence of an actus reus , but defends the case on the grounds that he did not intend to shoot. See 2 John Henry Wigmore, Evidence in Trials at Common Law § 302, at 241 (James H. Chadbourn ed., 1979). In these examples, however, the underlying defense is the same: it was a mistake or an accident.

      It bears noting that the underpinnings of even this logic have been credibly (albeit impliedly, without mentioning or citing to Verde ) called into question. See, e.g. , State v. Vuley , 2013 VT 9, ¶¶ 19-22, 193 Vt. 622, 70 A.3d 940 (holding that the Doctrine cannot be used, even in its probabilistic sense, when applied to "human action" rather than to truly random events, because "[i]nferring from the implausibility of all occurrences being accidents that any particular occurrence was not an accident necessarily involves reasoning based on propensity," and that "it would be an inference based on propensity to say that, because a man has intentionally killed a wife, he is therefore more likely to have intentionally killed this wife"). For the purposes of this opinion, however, I assume that the logic of paragraphs 49-51 of the Verde opinion is sound (even though it may not be), and point out additional flaws in Verde 's rickety structure that I believe may exist even if its underlying logic is sound.

      The matter was discussed at some length in State v. Labrum , 2014 UT App 5, 318 P.3d 1151, but this court ultimately stopped short of deciding whether the Doctrine could be employed for this purpose because it determined that the prior bad acts evidence was admissible on another ground. Id. ¶¶ 29-31. To date, our supreme court has not addressed the issue, although it has generally espoused a remarkably broad view of the Doctrine's applicability, holding that it applies in other contexts also involving non-random volitional acts, including to rebut defenses of fabrication, see Verde , 2012 UT 60, 296 P.3d 673, and consent, see State v. Lowther , 2017 UT 34, ¶ 25, 398 P.3d 1032. For the reasons set forth herein and elsewhere, see State v. Murphy , 2019 UT App 64, ¶¶ 45-65, 441 P.3d 787 (Harris, J., concurring), my view is that these decisions may merit reexamination.

      Propensity evidence has great probative value, which is in part why our rules of evidence ban it. See David P. Leonard, The New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and Similar Events § 1.2, at 6-7 (2009) (stating that propensity evidence is excluded "not because it has no appreciable probative value, but because it has too much"). In conducting an appropriate rule 403 balancing in this context, the "probative" side of the equation should include only the value of any admissible probability inferences, and should not include the value of any impermissible propensity inferences (which should be assessed on the "prejudice" side of the equation).


source: Caselaw Access Project

author: HAGEN, Judge:

license: Public Domain

text:
    Jeremy FERRE, Appellant, v. SALT LAKE CITY and Silverhawk Enterprises Inc., Appellees.
    No. 20180236-CA
    Court of Appeals of Utah.
    Filed May 31, 2019
    Scott O. Mercer and James Adam Knorr, Salt Lake City, Attorneys for Appellant
    Margaret D. Plane, Paul Nielson and Allison Elizabeth Parks, Attorneys for Appellee Salt Lake City
    Ryan B. Braithwaite and Daniel K. Brough, Salt Lake City, Attorneys for Appellee Silverhawk Enterprises Inc.
    Judge Diana Hagen authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.
    Opinion
   HAGEN, Judge:

¶1 Homeowner Jeremy Ferre challenges a special exception granted by the Salt Lake City Planning Commission (the Commission), allowing the construction of a two-story house on a neighboring lot that exceeded the Salt Lake City Code's maximum height allowance. Ferre appealed the Commission's decision to the Salt Lake City Land Use Appeals Hearing Officer (the Hearing Officer), arguing, in part, that the Commission's decision was illegal because the Commission did not make the required finding that the proposed exception was "in keeping with the development pattern of the block face." The Hearing Officer upheld the Commission's decision, and on judicial review, the district court granted summary judgment in favor of Salt Lake City, upholding the Commission's decision. Ferre now appeals the district court's ruling, arguing that the Commission's decision was illegal as a matter of law because the property was not located on a "block face" as defined by the ordinance and, therefore, could not be "in keeping with the development pattern of the block face."

¶2 We conclude that the requirement that the special exception be consistent with the development pattern of the block face is inapplicable where the property at issue is not located on a block face. Instead, the Commission properly considered the characteristics and existing structures in the neighborhood to determine whether the additional height was in keeping with the regulatory purpose of the zoning ordinances. Accordingly, we affirm the district court's grant of summary judgment in favor of Salt Lake City.

BACKGROUND

¶3 Silverhawk Enterprises Inc. began construction of a house on the lot located directly south of Ferre's property. Both lots are zoned in a "single- and two-family residential district." See Salt Lake City, Utah, Code § 21A.24.110. The property at issue is "uniquely situated" and accessed "by a long driveway and multiple easements" from the "block face" street on which Ferre's property is located. Silverhawk obtained a construction permit to build a three-story pitched-roof house, but after pouring the foundation and beginning to frame the house, Silverhawk discovered that it did not dig the foundation deep enough. As a consequence, Silverhawk needed to modify the height of the house to comply with the Salt Lake City Code. Silverhawk consulted the relevant homeowners' association to determine whether it would be better to seek a special exception for additional height for a three-story, pitched-roof house or for additional height for a two-story, flat-roof house. "[A]t the request" of the homeowners' association, "Silverhawk incorporated a flat roof [construction plan] ... on the rationale that a flat roof would have less visual impact on [neighboring] views." The revised construction plans proposed a maximum building height of twenty-nine feet and eight inches, which is one foot and eight inches more than permitted for a pitched-roof house and nine feet and eight inches more than permitted for a flat-roof house. See id. § 21A.24.110(D). Silverhawk submitted a special exception application to the Commission for the additional height.

¶4 The Salt Lake City Code provides exceptions to building height restrictions when certain criteria are met. See id. § 21A.52.060. The Commission's senior planner reviewed the application and issued a report, concluding that the relevant criteria were met and recommending that the Commission approve the application subject to certain conditions. The senior planner's report provided that, although the house was "not directly located on the 'block face,' " see id. § 21A.24.110(D)(6)(a), the request for "additional building height complies with the regulatory intent of Chapter 21A.24" of the Salt Lake City Code, which ensures that the special exception is "compatible with the existing scale and intensity of the neighborhood," see id. § 21A.24.110(A).

¶5 The Commission held a public hearing to allow surrounding property owners to provide commentary and lodge objections to the special exception application. At the hearing, Ferre, his attorney, and his brother spoke and objected to the application, arguing that the house would impair Ferre's view and that the Commission should "enforce the ordinance" that requires flat-roof buildings to not exceed twenty feet in height.

¶6 Over Ferre's objections, the Commission granted the special exception application subject to the senior planner's conditions. Ferre appealed the Commission's decision to the Hearing Officer and sought a stay of construction. Relevant to this appeal, Ferre "argued that there was insufficient evidence for [the Commission] to find that the [special exception application] met the requirement of being in keeping with the development pattern on the block face."

¶7 The Hearing Officer disagreed, noting that "the Commission entertained a discussion with [the senior planner] regarding the development pattern of the block face and the basis for the [senior planner's] finding of compliance." The Hearing Officer upheld the Commission's decision, concluding that the Commission "had substantial evidence of the building design of the neighborhood, the site and the relationship of the proposed structure to its neighbors upon which it could find that the [special exception application] met the standards set forth in the Salt Lake City Code."

¶8 Ferre sought judicial review of the Hearing Officer's decision in district court. Both parties filed cross-motions for summary judgment. The district court concluded that there is "no requirement that the building be on a block fac[e] to be eligible for a special exception," and declined to disturb the Hearing Officer's decision upholding the Commission's grant of the special exception.

¶9 Ferre appeals.

ISSUE AND STANDARDS OF REVIEW

¶10 Ferre contends the district court erred in granting summary judgment in favor of Salt Lake City. Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). On appeal from a district court's review of an administrative agency's decision, "we afford no deference to the [district] court's decision and apply the statutorily defined standard to determine whether the court correctly determined whether the administrative decision was arbitrary, capricious, or illegal." McElhaney v. City of Moab , 2017 UT 65, ¶ 15, 423 P.3d 1284 (quotation simplified).

ANALYSIS

¶11 Under Utah law, a municipality's land use decisions are accorded a great deal of deference. See Baker v. Park City Mun. Corp. , 2017 UT App 190, ¶ 16, 405 P.3d 962. A reviewing court must "presume that a final decision of a land use authority or an appeal authority is valid" and must uphold the decision unless it is "(A) arbitrary and capricious; or (B) illegal." Utah Code Ann. § 10-9-801(3)(b)(ii) (LexisNexis Supp. 2018). Here, Ferre contends that the decision to grant the special exception was illegal because the Commission did not strictly comply with the relevant provisions of the Salt Lake City Code. Specifically, Ferre argues that the Commission did not, and could not, make a finding that the additional building height allowed by the special exception was "in keeping with the development pattern on the block face." See Salt Lake City, Utah, Code § 21A.24.110(D)(6).

¶12 The Salt Lake City Code allows the Commission to grant a special exception for additional building height when certain conditions are met. Id. § 21A.52.060(A)-(G). In addition to meeting the seven general standards in chapter 21A.52, which are not at issue in this case, the Commission must also determine that the additional building height "is in keeping with the development pattern on the block face." Id. § 21A-24-110(D)(6). "Block face" is defined as "[a]ll of the lots facing one side of a street between two (2) intersecting streets. Corner properties shall be considered part of two (2) block faces, one for each of the two (2) intersecting streets. In no case shall a block face exceed one thousand feet (1,000')." Id. § 21A.62.040.

¶13 Here, the property is not located on a block face. Instead, it "is uniquely situated ... on a steep grade sloping to the south," directly south of Ferre's house, which can be accessed from the "block face" street "by a long driveway and multiple easements." Because the property is not on a block face, the Commission considered whether the additional height would be compatible with the surrounding neighborhood in accordance with the regulatory intent of chapter 21A.24 of the Salt Lake City Code. See id. § 21A.24.110(A) ("Uses [under this chapter] are intended to be compatible with the existing scale and intensity of the neighborhood. The standards for the district are intended to provide for safe and comfortable places to live and play and to promote sustainable and compatible development patterns."). Ferre argues that this was error and the Commission instead should have denied the special exception application "as a matter of law" because there is no relevant block face. Under Ferre's interpretation of zoning ordinances 21A.24.110(D)(2) and (D)(6), a special exception for additional height can never be approved if the building at issue is not located on a block face. We reject this interpretation.

¶14 "The fundamental consideration in interpreting legislation, whether at the state or local level, is legislative intent." Springville Citizens for a Better Community v. City of Springville , 1999 UT 25, ¶ 29, 979 P.2d 332. "The best evidence of the legislature's intent is the plain language of the statute [or ordinance] itself." Marion Energy Inc. v. KFJ Ranch P'ship , 2011 UT 50, ¶ 14, 267 P.3d 863 (quotation simplified). "We read the plain language of the [ordinance] as a whole and interpret its provisions in harmony with other [ordinances] in the same chapter and related chapters." See LPI Services v. McGee , 2009 UT 41, ¶ 11, 215 P.3d 135 (quotation simplified); see also Patterson v. Utah County Board of Adjustment , 893 P.2d 602, 606 (Utah Ct. App. 1995). But when a statute or ordinance is silent as to the circumstances presented "and we determine that such a gap was not the intent of the [legislative body], we must determine the best rule of law to ensure that the statute is applied uniformly." Cox v. Laycock , 2015 UT 20, ¶¶ 41-42, 345 P.3d 689 (quotation simplified). We therefore "analyze the [ordinance] in its entirety and harmonize its provisions in accordance with the legislative intent and purpose." Id. ¶ 42 (quotation simplified).

¶15 The ordinance at issue here provides that "additional building height may be granted as a special exception by [the Commission] subject to the special exception standards in chapter 21A.52 of this title and if the proposed building height is in keeping with the development pattern on the block face." Salt Lake City Code § 21A.24.110(D)(6)(a). That provision is silent as to whether a special exception for building height may be granted where no determination can be made as to whether "the proposed building height is in keeping with the development pattern on the block face" because the property at issue is not located on a block face. Nor is there a separate provision that would address such a situation. We therefore look to the chapter as a whole to discern the legislative intent of the ordinance.

¶16 The "Statement of Intent" of chapter 21A.24 of the Salt Lake City Code provides:

The residential districts are intended to provide a range of housing choices to meet the needs of Salt Lake City's citizens, to offer a balance of housing types and densities, to preserve and maintain the City's neighborhoods as safe and convenient places to live, to promote the harmonious development of residential communities, to ensure compatible infill development, and to help implement adopted plans.

Id. § 21A.24.010(A). Further, the "Purpose Statement" under ordinance 21A.24.110(A), which governs the properties and ordinance at issue in this case, provides: "Uses are intended to be compatible with the existing scale and intensity of the neighborhood. The standards for the district are intended to provide for safe and comfortable places to live and play and to promote sustainable and compatible development patterns." Id.

¶17 In applying this statutory scheme, we are mindful of Utah's long-standing principle that "because zoning ordinances are in derogation of a property owner's common-law right to unrestricted use of his or her property, provisions therein restricting property uses should be strictly construed, and provisions permitting property uses should be liberally construed in favor of the property owner." Patterson , 893 P.2d at 606. Because chapter 21A.24 allows a property owner to seek an exception to otherwise applicable land use restrictions, we must "liberally construe" the chapter "in favor of the property owner" seeking a special exception. See id.

¶18 If we were to read ordinance 21A.24.110(D)(6)(a) to categorically exclude all buildings that are not on a "block face," as Ferre asks us to do, property owners like Silverhawk would be foreclosed from seeking reasonable land use exceptions available to other property owners even when the exception is compatible with existing development. Such an interpretation would be inconsistent with the regulatory purpose of chapter 21A.24 and our long-standing principle to favor the property owner seeking a special exception. See Salt Lake City, Utah, Code §§ 21A.24.010(A), 21A.24.110(A); see also Patterson , 893 P.2d at 606. We therefore conclude that such a categorical exclusion was not intended. See Cox , 2015 UT 20, ¶¶ 44-46, 345 P.3d 689.

¶19 Instead, we read 21A.24.110(D)(6)(a) as requiring the Commission to find that the proposed additional height of a building is consistent with the development pattern of the block face only when the building is actually located on a block face. See Salt Lake City, Utah, Code § 21A.24.110(A), (D). When a building is not located on a block face, such a determination would be impossible and the Commission can, as it did here, consider "the existing development in the surrounding neighborhood" to determine whether the additional height would be in keeping with the regulatory purpose of chapter 21A.24.

¶20 Although the ordinance is silent as to the challenge Ferre raises on appeal, we reject his argument that chapter 21A.24 of the Salt Lake City Code is intended to categorically exclude special exceptions for buildings not located on a block face. Given that the property at issue was not located on a block face, we conclude the Commission properly considered the characteristics and existing development of the neighborhood when it granted the special exception.

CONCLUSION

¶21 The district court correctly determined that the decision to grant the special exception application was legal because it complied with the requirements of the Salt Lake City Code. We therefore affirm the district court's grant of summary judgment in favor of Salt Lake City.

      A "block face" is defined as "[a]ll of the lots facing one side of a street between two (2) intersecting streets. ... In no case shall a block face exceed one thousand feet (1000')." Salt Lake City, Utah, Code § 21A.62.040.

      The recommended conditions are not at issue on appeal and we therefore do not recite them.

      The Hearing Officer did not respond to the request for a stay of construction prior to the hearing on Ferre's appeal that occurred almost six months after Ferre sought the stay. During the pendency of this appeal, Salt Lake City filed a suggestion of mootness, arguing that Ferre's appeal is moot because he did not seek a stay of construction in the administrative proceedings and the house has been built and sold to a third party. See Wasatch County v. Utility Facility Review Board , 2018 UT App 191, ¶ 19, 437 P.3d 406 (explaining that "the presence of the [completed construction project], coupled with [an appellant's] failure to seek a stay" renders the "proceeding for judicial review moot"). But the record shows that Ferre did request a stay of construction when he submitted his appeal to the Hearing Officer in accordance with Salt Lake City Code section 21A.52.140, distinguishing this case from Wasatch County . Salt Lake City has not persuaded us that this issue is moot and we therefore reach the merits of this appeal. See Salt Lake County v. Holliday Water Co. , 2010 UT 45, ¶ 21, 234 P.3d 1105 ("The burden of persuading the court that an issue is moot 'lies with the party asserting mootness." (quotation simplified)).

      Ferre also argues that the district court "err[ed] in determining that Ferre was required to marshal the evidence to demonstrate that the Commission did not comply with" the Salt Lake City Code. Salt Lake City does not contest Ferre's position regarding marshaling. Ferre's only challenge on appeal is a purely legal question.


author: CHRISTIANSEN FORSTER, Judge:

text:
    STATE of Utah, Appellee, v. Miguel A. SAGAL, Appellant.
    No. 20131170-CA
    Court of Appeals of Utah.
    Filed June 6, 2019
    Scott L. Wiggins, Salt Lake City, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and Daniel W. Boyer, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Miguel A. Sagal appeals his convictions on six counts of unlawful sexual activity with a minor. We affirm.

BACKGROUND

¶2 Sagal was charged with six third-degree felony counts of unlawful sexual activity with a minor as a result of having sexual intercourse with two minor females in 2010 and 2011. Sagal pleaded not guilty to the charges.

¶3 Although a jury trial was initially scheduled, Sagal's counsel filed a Request for Bench Trial shortly before trial. In the Request for Bench Trial, counsel stated that he had advised Sagal "of his right to seek trial by jury and all the rights attendant to such a choice, as well as the rights that he would be waiving by opting for a bench trial." On the day of trial, the trial court questioned counsel regarding Sagal's waiver of his right to a jury trial. The judge stated, "I would just like to have on record that you've had discussion with your client about his ... right to a jury trial and that he has knowingly and intentionally agreed to go forward in a trial ... without a jury." Counsel responded, "I have discussed at length with Mr. Sagal, his right to a jury trial, the rights that he will be waiving should he elect to forgo his right to a jury trial and have it tried to the bench."

¶4 Both victims testified at trial. The first victim, K.G., testified that she had sex with Sagal a number of times when she was fourteen years old and he was eighteen years old. After K.G. broke up with Sagal, he began contacting her friend, M.P. M.P. had sex with Sagal three times in the summer of 2011, when she was fourteen years old and he was nineteen years old. On several occasions prior to trial, both victims had denied having sex with Sagal.

¶5 After hearing the evidence, the trial court convicted Sagal of all charges, finding both victims to be credible witnesses and determining that other witnesses corroborated their testimony. The trial court later amended the verdict by reducing the three counts relating to K.G. to class B misdemeanors because Sagal was slightly less than four years older than K.G.

¶6 Following trial, Sagal's mother sought mitigating testimony to undermine the victims' credibility. She obtained an affidavit from a witness, L.S., who stated that M.P. admitted to her that she had lied at trial about having sex with Sagal. When counsel learned of this first potential witness, L.S., he withdrew as Sagal's attorney because Sagal had previously admitted to counsel that he had engaged in sex with M.P. and counsel felt he could therefore not ethically pursue any investigation into the witness's statements. Following counsel's withdrawal, Sagal's mother obtained an affidavit from a second witness, K.P., who also stated that M.P. had confessed to her that she had lied about having sex with Sagal.

¶7 Sagal appealed his convictions. First, he asserted that the trial court committed plain error by failing to conduct an adequate colloquy to ensure that he had been fully informed of the rights he was waiving by electing a bench trial rather than a jury trial. Second, Sagal asserted that he received ineffective assistance of counsel because counsel did not fully inform him of the rights he was waiving and did not adequately investigate the two potentially exonerating witnesses or move for a new trial.

¶8 This court remanded the case to the trial court pursuant to rule 23B of the Utah Rules of Appellate Procedure, directing the trial court

to make all findings of fact and enter all conclusions of law necessary to resolve:
(1) whether counsel performed deficiently in advising [Sagal] about his right to a jury trial;
(2) whether [Sagal] was prejudiced by counsel's deficient performance, if any;
(3) whether counsel performed deficiently in not investigating [L.S.] and [K.P.] and for not moving for a new trial based on his investigation; and
(4) whether [Sagal] was prejudiced by counsel's deficient performance, if any.

¶9 At the rule 23B hearing, Sagal and his former counsel provided contradictory testimony regarding when counsel discussed the bench trial with Sagal and what counsel told him concerning his right to a jury trial. Counsel testified that he "notified [Sagal] of his right to have a jury of impartial individuals who would hear the evidence against him and ultimately decide his guilt or innocence"; that he "told [Sagal] that the Court would instruct the jury of [his] right to remain silent and that the jury could not interpret [Sagal's] silence as an admission of guilt"; and that he "advised [Sagal] that the Court would instruct the jury on proof beyond a reasonable doubt and the presumption of innocence." "He stated that he told [Sagal] that the decision to seek a bench or a jury trial was [his], but that he recommended that [Sagal] elect a bench trial" because counsel was concerned that "a jury would hold [Sagal's] refusal to testify against him" and that "[Sagal] might not have the benefit of a truly impartial jury because of his Hispanic heritage."

¶10 Sagal testified that he did not know anything about the waiver until after counsel had already filed the Request for Bench Trial. He also testified that "[h]e did not know that juries needed to reach unanimous decisions to convict him, or that he would be able to participate in picking the jury. Had he known these things, he asserted he would not have waived his right to a jury trial."

¶11 Determining that Sagal lacked credibility, the trial court "accept[ed counsel's] testimony regarding the events surrounding [Sagal's] waiver of his right to a jury trial." Having heard both individuals' testimony, the trial court found "that [Sagal's] claim that he would not have waived the jury trial had he known that the jury was required to reach a unanimous decision and that he would have been able to participate in the selection of the jurors lacks credibility and is contradicted by his own testimony." The trial court determined that Sagal's own testimony at the rule 23B hearing that he completely trusted his counsel, that he had no prior experience with the criminal justice system, and that he had been taught not to question his elders suggested "that [Sagal] was likely to have agreed with [counsel's] advice to waive the jury trial regardless of whether [counsel] thoroughly explained every right associated with a jury trial."

¶12 Having assessed the testimony of both Sagal and counsel, the trial court determined that while counsel "could have more thoroughly explained the rights associated with a jury trial to [Sagal], his advice to seek a bench trial was sound trial strategy." The court further determined that Sagal could not show prejudice, because he had "failed to demonstrate that a jury trial would have yielded a more favorable result" and because "even if [counsel] had thoroughly and exhaustively explained all of the rights associated with a jury trial, given [Sagal's] trust in [counsel], [Sagal] would have still waived his right to a jury trial to proceed with the bench trial."

¶13 The court also heard testimony regarding the affidavits from L.S. and K.P. L.S. signed her affidavit on January 29, 2013, asserting that M.P. had confided in her that she had falsely testified about having sex with Sagal. Sagal's mother testified that she gave L.S.'s affidavit to counsel before her son's sentencing, that counsel read the affidavit, and that counsel told her he would present it at sentencing. She claimed that when this did not occur, she confronted counsel and he told her that he would present the affidavit on appeal.

¶14 Counsel testified that he did not learn of the potential new witnesses until approximately three months after sentencing. When counsel learned of them, he withdrew as counsel to give Sagal the opportunity to obtain a new attorney to pursue the witnesses because counsel did not feel he could ethically present the witnesses to the court due to the fact that Sagal had admitted to him that he had sex with M.P. In a letter to Sagal, counsel advised him "to carefully consider whether to volunteer that he had sex with M.P. to his new attorney" and instructed him that "the next course of action would be to identify the friend claiming that M.P. recanted her testimony." Counsel also testified that he did not see L.S.'s affidavit until after he withdrew from the case.

¶15 The court determined that Sagal's mother's testimony was not credible because counsel would not have advised Sagal in his letter to identify the witness if he already knew who the witness was, because it was unlikely that counsel "would have suggested that he could present on appeal a document that had never been previously offered into evidence," and because Sagal's mother did not mention the allegations when she addressed the court at her son's sentencing.

¶16 Additionally, during the rule 23B hearing, both L.S. and K.P. disavowed their affidavits. The court made the following findings regarding L.S.:

[L.S.] testified that she knew M.P., but did not know [Sagal] when he reached out to her through Facebook for help in his case. [Sagal] had set up a meeting for [his] mother and a notary public to meet with [L.S.] while she was at [school]. [L.S.] testified that she did not have any information about [Sagal's] case, nor did she provide any information to [Sagal]. When [Sagal's] mother and the notary arrived at [the school], [L.S.] testified they did not let her see the contents of the affidavit. She testified she did not read the affidavit and did not know its contents, but she admitted she signed the affidavit. Both [Sagal's] mother and the notary, however, testified that they made sure [L.S.] read the contents of the document before signing it. [L.S.] was fifteen years old when she signed the affidavit.

Sagal was unable to effectively cross-examine L.S. at the rule 23B hearing because he first delayed questioning her, then she failed to appear for a subsequent hearing. She eventually appeared via FaceTime, claiming that she was in Mexico. She then invoked her constitutional right against self-incrimination and refused to answer additional questions. However, the trial court observed that Sagal provided no evidence to corroborate the claims in L.S.'s affidavit, even those that should have been corroborated fairly easily, such as whether L.S. and M.P. are cousins.

¶17 K.P. likewise testified that she did not read her affidavit before signing it and that she believed "that she was merely signing an affidavit of [Sagal's] good character." K.P.

testified "that she had never met M.P., she never communicated with M.P., M.P. never disclosed to her that M.P.'s testimony during [Sagal's] trial was false, and she did not know [L.S.]." She also testified that her name was spelled wrong in the affidavit. Additionally, due to the fact that the affidavit was signed after counsel withdrew from the case, Sagal's rule 23B counsel "acknowledged in open court that [Sagal] did not have a claim of ineffective assistance of counsel regarding [trial counsel's] failure to investigate [K.P.'s] claims."

¶18 The court concluded that Sagal's trial counsel did not perform deficiently by failing to investigate L.S.'s and K.P.'s testimonies. As to K.P., the court determined that the testimony was not relevant to the claim, because her affidavit was signed after trial counsel withdrew. As to L.S., the court determined that counsel "did not have a duty to investigate claims that he knew were false" as a result of Sagal admitting to him that he had sex with M.P. The court further determined that Sagal could not have been prejudiced by any failure to investigate L.S. because she recanted her testimony and because she was not a credible witness.

ISSUES AND STANDARDS OF REVIEW

¶19 Sagal first argues that the trial court's failure to conduct a colloquy with him regarding the specific rights he was waiving by electing a bench trial constituted plain error and requires reversal.

To obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.

State v. Casey , 2003 UT 55, ¶ 41, 82 P.3d 1106 (quotation simplified).

¶20 Sagal further argues that he received ineffective assistance of counsel because his trial counsel failed to fully inform him of the rights he was waiving and because counsel failed to adequately investigate L.S.'s and K.P.'s potential testimonies. These claims were reviewed by the trial court on rule 23B remand. "We review the 23B court's factual findings for clear error and its legal conclusions for correctness." State v. Kozlov , 2012 UT App 114, ¶ 30, 276 P.3d 1207.

ANALYSIS

I. The Court Did Not Commit Plain Error by Failing to Conduct a Colloquy Regarding Sagal's Waiver of His Right to a Jury Trial.

¶21 Sagal asserts that the trial court committed plain error by failing to conduct a colloquy informing him of the rights he was waiving by electing a bench trial and confirming that he understood those rights. Although colloquies are "encourage[d]" because they may "help judges ascertain whether" a defendant's waiver is knowing, intelligent, and voluntary; help "ensur[e] the validity of a waiver"; and "allow for efficient and informed appellate review," State v. Hassan , 2004 UT 99, ¶ 18, 108 P.3d 695, colloquies are ultimately " 'a matter of prudence,' rather than constitutional mandate," id. ¶ 15 (quoting United States v. Rodriguez , 888 F.2d 519, 527 (7th Cir. 1989) ); see also State v. Bhag Singh , 2011 UT App 396, ¶ 14, 267 P.3d 281 (explaining that a colloquy is not mandated for a defendant's waiver of a jury trial to be knowing, voluntary, and intelligent). Trial courts are "under no obligation to provide an exhaustive explanation of all the consequences of a jury waiver." Hassan , 2004 UT 99, ¶ 17, 108 P.3d 695. Rather, whether there is "an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." Adams v. United States , 317 U.S. 269, 278, 63 S.Ct. 236, 87 L.Ed. 268 (1942). We thus "look to the totality of the circumstances to determine whether a defendant validly waived his right to a jury trial." Hassan , 2004 UT 99, ¶ 14, 108 P.3d 695.

¶22 "[U]nder a totality of the circumstances analysis, a defendant can validly waive a right to a jury trial even in the absence of a colloquy if other factors indicate that he knowingly, intelligently, and voluntarily waived the right." Id. ¶ 18. Here, prior to trial and while Sagal was present, counsel represented to the court, "I have discussed at length with Mr. Sagal, his right to a jury trial, the rights that he will be waiving should he elect to forgo his right to a jury trial and have it tried to the bench." Sagal raised no objection to this representation. Even assuming that counsel's representation was false, we can reverse on grounds of plain error only where that error should have been obvious to the court. Given counsel's representation and Sagal's acquiescence, we cannot say that it would have been obvious to the court that Sagal's waiver was not knowing, intelligent, and voluntary. See State v. Garteiz , 688 P.2d 487, 488 (Utah 1984) (per curiam) (upholding a waiver of jury trial by a non-native, non-English-speaker where counsel represented that he had discussed the defendant's right's with him and the court conducted a four-question colloquy but did not thoroughly discuss all the rights being waived); Bhag Singh , 2011 UT App 396, ¶ 14, 267 P.3d 281 (holding that under circumstances where a non-English-speaking defendant "had an interpreter while he consulted with his attorney about waiving his right to a jury trial and his attorney requested the bench trial in [the defendant's] presence" the trial court did not plainly err in failing to conduct a colloquy and that the defendant failed to establish that his waiver was not knowing, voluntary, and intelligent).

¶23 Sagal nevertheless asserts that under the circumstances of this case it was plain error for the trial court not to conduct a colloquy in light of his youth, inexperience, and foreign birth. While our supreme court has suggested that such a colloquy may be more important "in ensuring the validity of a waiver when a defendant has limited comprehension of the English language," such a colloquy is still not mandated. See Hassan , 2004 UT 99, ¶ 18, 108 P.3d 695. And we see no facts in the record here to indicate that Sagal actually had a limited comprehension of the English language. Although his first language is Spanish, he has lived in the United States since he was six years old, he did not use an interpreter at trial, he graduated from a Utah high school, and he works as a retail manager-all of which indicate that his grasp of the English language is not limited. In any event, this court has previously upheld waivers under similar circumstances, even where the defendant's comprehension of English was actually limited. See Bhag Singh , 2011 UT App 396, ¶ 14, 267 P.3d 281. Sagal's age and inexperience likewise do not mandate a colloquy. Presumably, many defendants who come before the courts of this state are inexperienced with the criminal justice system. Further and relatedly, Utah law presumes that "[a] minor 14 years of age and older is ... capable of intelligently comprehending and waiving the minor's right to counsel." Utah R. Juv. P. 26(e). In short, none of the specific circumstances of this case were such that the trial court should have determined that a full colloquy was obviously necessary in order to ensure that Sagal's waiver of his right to a jury trial was knowing, voluntary, and intelligent.

¶24 Further, Sagal has failed to establish that he suffered any prejudice as a result of the court's failure to conduct a colloquy. Sagal's prejudice argument largely rests on his assertion that the denial of a jury trial is structural error with respect to which prejudice is presumed. See State v. Cruz , 2005 UT 45, ¶ 17, 122 P.3d 543 ("Structural errors are flaws in the framework within which the trial proceeds, rather than simply an error in the trial process itself." (quotation simplified)); State v. Calvert , 2017 UT App 212, ¶ 52, 407 P.3d 1098 ("The denial of the right to a jury trial is ... structural error."). The State counters that unpreserved claims of structural error are nevertheless subject to plain error review, including the requirement that the defendant demonstrate prejudice.

¶25 Sagal's claims regarding whether he effectively waived his right to a jury trial were unpreserved and were therefore raised on grounds of plain error and ineffective assistance of counsel on appeal. Our supreme court, in State v. Bond , 2015 UT 88, 361 P.3d 104, extensively analyzed the question of whether unpreserved claims can be subject to heightened review standards such as the harmless beyond a reasonable doubt standard applicable to various federal constitutional errors and the presumed prejudice standard applicable to structural errors. See id. ¶¶ 36-47. The court concluded that "unpreserved federal constitutional claims are not subject to a heightened review standard." Id. ¶ 44. The court emphasized the importance of giving the trial court the first opportunity to rule on an issue. See id. ¶ 45. The court also pointed out the fact that ineffective assistance claims, which inherently concern an important constitutional right, always require proof of prejudice: "It would make little sense to require a defendant to prove prejudice under the circumstances of ineffective assistance and yet relieve him of that duty for other constitutional errors that could more easily have been raised during the trial." Id. ¶ 46. The court therefore concluded that the plain error test-including its prejudice prong-is applicable to alleged structural errors raised for the first time on appeal. See id. ¶¶ 36-47 ; see also State v. Malaga , 2006 UT App 103, ¶ 11, 132 P.3d 703 (holding that with respect to an unpreserved claim raised on grounds of ineffective assistance of counsel, alleged structural errors do not alleviate the defendant's burden to demonstrate prejudice).

¶26 Sagal asserts generally that "[t]he error in this case was ... prejudicial because of the conflicting evidence" and that "a reasonable likelihood exists that the jury would have reached a more favorable verdict." This generalized assertion falls far short of demonstrating "a reasonable likelihood of a more favorable outcome for the appellant" or undermining our confidence in the verdict. See State v. Casey , 2003 UT 55, ¶ 41, 82 P.3d 1106 (quotation simplified). As discussed below, the trial court, in considering prejudice in the ineffective assistance context on remand, determined, first, that Sagal had failed to demonstrate that a more favorable outcome was likely with a jury trial and, second, that as a result of his trust in his counsel, Sagal would still have waived a jury trial even if he had more fully understood his rights. We agree with the trial court's assessment, and Sagal's conclusory argument does nothing to convince us otherwise.

¶27 Because the trial court was not required to conduct a colloquy with Sagal regarding his right to a jury trial as a matter of course, and because the need for such a colloquy was not obvious under the totality of the circumstances presented here, the court did not plainly err in failing to conduct a colloquy. Further, Sagal has failed to demonstrate prejudice as required by the standard of review for plain error. Thus, we reject Sagal's plain error argument.

II. Counsel's Failure to More Fully Inform Sagal Regarding the Rights He Was Waiving by Electing a Bench Trial Did Not Rise to the Level of Ineffective Assistance of Counsel.

¶28 Sagal next asserts that his convictions should be reversed on the ground the he received ineffective assistance of counsel due to his counsel's failure to inform him thoroughly of every right he was waiving by electing a bench trial in lieu of a jury trial. Sagal maintains that his counsel's failure to advise him specifically "that a jury trial conviction would require a unanimous decision of all the jurors in contrast to the judge alone determining his guilt or innocence" and that he "had the right to assist in selecting a jury" constituted ineffective assistance. Sagal asserts that in considering the totality of the circumstances-in particular, his youth and inexperience, his unfamiliarity with the criminal justice system, the fact that English is his second language, and his implicit trust of trial counsel due to his cultural background-counsel's failures rendered his waiver not knowing, voluntary, and intelligent and that counsel's incomplete advice regarding his rights therefore constituted ineffective assistance of counsel.

¶29 The rule 23B court determined that advising Sagal to waive his right to a jury trial was a legitimate tactical decision. However, Sagal points out that his argument does not concern whether counsel performed deficiently by advising him to waive the jury trial; rather, he asserts that counsel performed deficiently by failing to fully advise him of the rights he would be waiving should he forgo the jury trial. He asserts that "there is a lack of any conceivable tactical basis for counsel's actions of failing to thoroughly advise Sagal of the rights associated with the constitutional right to a jury trial prior to seeking a waiver."

¶30 Sagal cannot demonstrate that he was prejudiced by counsel's failure to fully inform him of the rights he was waiving. As the trial court pointed out in its findings, there were numerous tactical reasons for counsel to advise Sagal to forgo a jury trial in favor of a bench trial. Criminal defendants rely on the expertise of their attorneys to assess the pros and cons of a jury trial. Where trial counsel, having weighed various strategies and considered all the rights a defendant would be waiving, has advised a client that the risks of a jury trial outweigh the benefits, the likelihood that a thorough listing of the rights waived would result in the defendant going against counsel's advice is small. Indeed, the trial court on remand found that this was the case with Sagal. The trial court observed, "[Sagal] testified that because he was taught not to question his elders and that he had no experience with criminal law, he 'completely trusted' [trial counsel]." The court further found, "[E]ven if [counsel] had thoroughly and exhaustively explained all of the rights associated with a jury trial, given [Sagal's] trust in [counsel], [he] would have still waived his right to a jury trial to proceed with the bench trial." The court further determined that "[Sagal] has failed to demonstrate that a jury trial would have yielded a more favorable result."

¶31 Sagal has not challenged the trial court's findings on appeal but, instead, reasserts his argument that this court must presume prejudice because the failure of trial counsel to inform Sagal of his rights was structural error. As we have previously rejected this argument, we accept the trial court's findings that Sagal would have elected a bench trial even if he had been fully informed of the rights he was waiving. See State v. Kozlov , 2012 UT App 114, ¶ 30, 276 P.3d 1207 ("We review the 23B court's factual findings for clear error ...."). Accordingly, we agree with the trial court that Sagal has failed to demonstrate prejudice.

III. Sagal Has Abandoned His Claim of Ineffective Assistance Relating to the Failure to Investigate L.S.'s and K.P.'s Testimonies.

¶32 On appeal, Sagal initially asserted that counsel's failure to investigate L.S. and K.P. as potential witnesses constituted ineffective assistance of counsel. Following rule 23B remand, both parties were asked to file supplemental briefs addressing the court's ruling. Sagal's supplemental brief addressed only his argument regarding whether trial counsel's failure to fully inform him of his rights constituted ineffective assistance. Sagal's brief did not further address his claims regarding the investigation of L.S. and K.P.

¶33 "Issues not briefed by an appellant are deemed waived and abandoned."

Langeland v. Monarch Motors, Inc. , 952 P.2d 1058, 1062 n.5 (Utah 1998) (quotation simplified). Sagal conceded in the rule 23B proceedings that counsel was not ineffective for failing to investigate K.P., because her affidavit was procured after counsel withdrew. In his supplemental brief, he does not dispute the trial court's ruling that he could not establish ineffective assistance with respect to L.S.'s affidavit. Further, he did not dispute the State's assertion that he had abandoned this claim. Therefore, we do not further address Sagal's ineffective assistance arguments with respect to counsel's alleged failure to investigate.

CONCLUSION

¶34 Sagal has failed to establish that the trial court's failure to conduct a colloquy regarding the rights he was waiving in forgoing a jury trial constituted plain error. He has also failed to establish that counsel's failure to more fully inform him of those rights constituted ineffective assistance of counsel. Finally, we do not address his ineffective assistance argument regarding counsel's alleged failure to investigate because Sagal abandoned this argument following the rule 23B remand. Accordingly, we affirm Sagal's convictions.

      Although we discern no reversible error in this case, we strongly encourage trial courts to engage in a meaningful colloquy directly with defendants when the right to a jury trial is waived. At least " 'as a matter of prudence,' " trial courts should confirm that the defendant has understood and agrees with counsel's representations regarding any such waiver. See State v. Hassan , 2004 UT 99, ¶ 15, 108 P.3d 695 (quoting United States v. Rodriguez , 888 F.2d 519, 527 (7th Cir. 1989) ).

      Sagal points to Justice Durham's special concurrence in Garteiz , in which she "urge[d] trial courts to undertake a careful explanation of the nature of the right to a jury trial before accepting a defendant's waiver thereof." State v. Garteiz , 688 P.2d 487, 489 (Utah 1984) (per curiam) (Durham, J., concurring specially). This encouragement was repeated by the Hassan court when it encouraged "our judges, particularly in the circumstances [where a defendant has limited comprehension of English], to conduct a colloquy before granting a waiver." Hassan , 2004 UT 99, ¶ 18, 108 P.3d 695. However, as Justice Durham acknowledged in her concurrence, a lesser examination "comports with current law and standards." See Garteiz , 688 P.2d at 488 (Durham, J., concurring specially). This remains the case, as discussed above.

      The State also argues that the acceptance of a waiver that is not knowing, voluntary, and intelligent does not amount to a structural error, asserting that there is a distinction between the erroneous acceptance of a waiver and the complete denial of the right to a jury trial. We need not reach this question, however, because we agree with the State that a defendant must prove prejudice even with respect to alleged structural errors when the defendant's challenge is unpreserved.