author: HARRIS, Judge:

text:
    BACKBONE WORLDWIDE INC. and Burke Hedges, Appellants, v. LIFEVANTAGE CORPORATION, Appellee.
    No. 20180038-CA
    Court of Appeals of Utah.
    Filed May 16, 2019
    Scott O. Mercer and Ryan B. Hancey, Salt Lake City, Attorneys for Appellants
    Thomas R. Karrenberg, Richard A. Kaplan, Jared D. Scott, and Nathan P. Hatch, Salt Lake City, Attorneys for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.
    Opinion
   HARRIS, Judge:

¶1 LifeVantage Corporation (LifeVantage) terminated a contract it had entered into with Backbone Worldwide Inc. (Backbone).

There is no dispute that LifeVantage had the technical right to terminate the contract due to certain actions Backbone had taken. But because LifeVantage did not seem bothered by Backbone's actions when they were first taken, Backbone contends that LifeVantage did not terminate the contract for those permissible reasons, but instead claims that LifeVantage terminated the contract simply because it did not want to pay, and because of animosity toward Backbone's owner, Burke Hedges. Backbone contends that LifeVantage's termination of the contract under these circumstances was improper and a violation of the implied covenant of good faith and fair dealing. The district court was not persuaded by Backbone's arguments, and entered summary judgment in favor of LifeVantage, not only on Backbone's contract claim, but also on LifeVantage's separate counterclaim for conversion. We affirm the district court's entry of summary judgment in LifeVantage's favor.

BACKGROUND

¶2 In 2009, LifeVantage-already an existing, publicly-traded company-relaunched itself as a multi-level marketing company to promote sales of a nutritional supplement. As part of these efforts, LifeVantage sought the help of Hedges and his company, Backbone. Hedges was well-known within the multi-level marketing industry as an author and speaker. In May 2009, LifeVantage and Backbone entered into an agreement whereby Backbone would become a LifeVantage distributor and undertake additional duties to promote LifeVantage. To this end, Hedges, for and on behalf of Backbone, signed LifeVantage's standard Independent Distributor Agreement, which incorporated LifeVantage's Policies and Procedures; the parties also agreed to and executed a written amendment of that agreement (First Amendment) outlining Backbone's additional duties and compensation. The standard Independent Distributor Agreement, along with the First Amendment and the incorporated Policies and Procedures, constitute the full agreement between the parties, and are collectively referred to herein as "the Agreement."

¶3 Under the terms of the Agreement, LifeVantage agreed to make "Support Payments" to Backbone in the amount of $ 20,000 per month for the first three months of the Agreement, then $ 10,000 per month for the next nine months or until the "cancellation of the Agreement for any reason in accordance with the Agreement." LifeVantage also agreed to compensate Backbone as a distributor, through commissions and various bonuses, at the highest level allowed by LifeVantage's compensation plan, regardless of whether Backbone actually qualified for that level through the usual measurements.

¶4 The Agreement defined "Cancellation" as "the expiration or termination of an Independent Distributor's Business. Cancellation may be either voluntary or involuntary by either LifeVantage or an Independent Distributor, through non-renewal, inactivity or breach of the Agreement." "Breach" was defined as "an actual or alleged transgression or violation of any part of this Agreement." The Agreement addressed remedies for breach and stated that "[a]ny breach of the Agreement ... may result, at LifeVantage's discretion, in ... [c]ancellation of the [Agreement]."

¶5 While the Agreement required Backbone to "develop sales aides" for LifeVantage, it also required that "supplemental marketing material of any kind, ... be submitted to [LifeVantage's] Compliance Department for approval before it can be used or made public." Moreover, the Agreement contained several restrictions on distributors' ability to develop websites to promote LifeVantage products, and required distributors to register any such websites with LifeVantage and receive written approval from LifeVantage before making any such site publicly available.

¶6 In June 2009-only weeks after entering into the Agreement-Backbone developed and made public a website (the Website) that it used for various purposes, including the promotion of LifeVantage products. Backbone, through Hedges, also pitched the Website to others in the LifeVantage network as a way for them to likewise market their LifeVantage business. On the Website, Backbone also made health-related claims about LifeVantage products and income-related claims about working for LifeVantage, two actions that were expressly prohibited by the Agreement. Backbone further used the Website to sell not only LifeVantage products but also non-LifeVantage products, another activity prohibited by the Agreement. LifeVantage never provided Backbone with written approval for any marketing material, including the Website.

¶7 By October 2009, LifeVantage had developed cash flow problems, and it stopped paying Backbone the Support Payments required by the Agreement. LifeVantage proposed another amendment to the Agreement (Second Amendment) under which Backbone would agree to accept LifeVantage stock in lieu of the cash Support Payments. In anticipation that Backbone would agree to the Second Amendment, LifeVantage instructed its stock transfer agent (Transfer Agent) to issue a certificate for 240,000 shares of stock in Hedges's name, to be sent to LifeVantage. However, Backbone never agreed to the Second Amendment, and therefore LifeVantage maintained possession of the certificate and did not present it to Hedges.

¶8 In February 2010, LifeVantage emailed Backbone regarding the Website, and for the first time took the position that the Website should not have gone live without LifeVantage's prior approval, was not in compliance with the Agreement, and needed to be brought into compliance immediately. Shortly thereafter, LifeVantage began looking into other alleged misconduct by Backbone and Hedges. LifeVantage had received complaints about Hedges's personal behavior; these complaints ranged from Hedges "not [being] a team player," to Hedges stealing the business of other LifeVantage distributors, all the way to sexual harassment. In May 2010, LifeVantage sent Backbone a letter restating its concerns with the Website, and stating that it had received complaints from other members of its organization about Hedges's conduct. Hedges denied the allegations of personal misconduct.

¶9 After conducting an investigation, LifeVantage determined that at least some of the complaints of personal misconduct against Hedges were credible, and that Backbone had committed various breaches of the Agreement. At this point, in June 2010, LifeVantage terminated the First Amendment to the Agreement and placed Backbone on "probation." After that, however, LifeVantage continued to receive complaints about Hedges's personal behavior, and it "suspended" Backbone's distributorship in July 2010. Less than a month later, LifeVantage terminated the Agreement entirely.

¶10 In July 2010, while LifeVantage was investigating and taking action against Backbone, Transfer Agent-apparently as a routine matter, without being specifically asked to do so by LifeVantage-sent Hedges a statement showing that he had been issued a certificate for 240,000 shares of LifeVantage stock. In early 2011, Hedges called Transfer Agent, and explained that he had never received a stock certificate for the shares. Transfer Agent asked Hedges to fill out some additional paperwork, including an affidavit attesting that he had never received a stock certificate, and Hedges complied. Transfer Agent acknowledged Hedges's non-receipt of the stock certificate in a letter dated March 9, 2011, and then issued Hedges a substitute stock certificate for the 240,000 shares. Transfer Agent did not inform LifeVantage about the new stock certificate issued to Hedges. Soon after receiving the certificate, Hedges proceeded to transfer all of his shares to his wife, who later sold the shares to a third party for approximately $ 380,000.

¶11 Backbone filed suit against LifeVantage in October 2011 asserting, among other claims, breach of contract and breach of the covenant of good faith and fair dealing. Its chief complaint was that LifeVantage had failed to pay all of the Support Payments due under the Agreement. Backbone would later file two amended complaints, each of which contained a general breach of contract claim but omitted any separate claim for breach of the covenant of good faith and fair dealing. For its part, LifeVantage denied any wrongdoing. In March 2014, LifeVantage learned, through Backbone's counsel, that Hedges had acquired a substitute stock certificate and thereby had obtained the 240,000 shares of LifeVantage stock, and LifeVantage responded by filing counterclaims for conversion, fraud, and securities fraud against Hedges personally.

¶12 Backbone's second amended complaint, filed in May 2015, stated that Backbone never agreed to amend the Agreement to allow LifeVantage to compensate it in stock instead of cash. Though it acknowledged that Hedges received the substitute stock certificate, and that the stock would have been given as compensation for the amount due Backbone under the original Agreement, it still claimed Backbone was damaged in the full amount of unpaid Support Payments.

¶13 LifeVantage and Backbone each filed cross-motions for summary judgment on all relevant issues. The district court initially granted summary judgment in favor of LifeVantage on its conversion counterclaim against Hedges, but denied summary judgment on LifeVantage's counterclaims for fraud and securities fraud, as well as on Backbone's breach of contract claims. LifeVantage asked the court to reconsider its summary judgment ruling, and after additional briefing and argument, the court entered an order granting summary judgment in favor of LifeVantage on Backbone's breach of contract claims. The court determined that Backbone breached the contract by rolling out the Website without prior written approval, that this breach gave LifeVantage the contractual right to terminate, and that LifeVantage was not prohibited from terminating under Utah's first breach rule. The parties then settled the remaining issues and the district court entered an order and judgment dismissing them with prejudice.

ISSUES AND STANDARD OF REVIEW

¶14 Backbone and Hedges now appeal the district court's summary judgment orders, and ask us to review two issues. First, Backbone argues that the district court erred by granting summary judgment in LifeVantage's favor on Backbone's breach of contract claims against LifeVantage. Second, Hedges argues that the district court erred by granting summary judgment in LifeVantage's favor on its conversion counterclaim. "We review a grant of summary judgment for correctness, granting no deference to the district court's legal conclusions." Salt Lake City Mission v. Salt Lake City , 2008 UT 31, ¶ 5, 184 P.3d 599. A district court may properly enter summary judgment " 'if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.' " Salo v. Tyler , 2018 UT 7, ¶ 29, 417 P.3d 581 (quoting Utah R. Civ. P. 56(a) ). In reviewing the record in connection with a summary judgment motion, a court must view "all facts and the reasonable inferences to be made therefrom ... in a light favorable to the non-moving party." USA Power, LLC v. PacifiCorp , 2010 UT 31, ¶ 33, 235 P.3d 749.

ANALYSIS

A

¶15 Backbone argues that LifeVantage violated the implied covenant of good faith and fair dealing when it terminated the Agreement, because it views the reasons LifeVantage offered for the termination as pretextual and offered in bad faith. In addition, Backbone asserts that LifeVantage breached the contract first, and argues that the first breach rule prevented LifeVantage from terminating the Agreement. Assuming, without deciding, that Backbone pleaded a breach of implied covenant claim, we conclude that the district court did not err in determining that LifeVantage legally terminated the Agreement.

1

¶16 "The implied covenant of good faith and fair dealing (the covenant) inheres in every contract." Markham v. Bradley , 2007 UT App 379, ¶ 18, 173 P.3d 865. The covenant prohibits the parties from intentionally "injur[ing] the other party's right to receive the benefits of the contract," and "prevent[s] either party from impeding the other's performance of his obligations" by "render[ing] it difficult or impossible for the other to continue performance." Id. (quotation simplified). But the covenant "cannot create rights and duties inconsistent with express contractual terms," Oakwood Village LLC v. Albertsons, Inc. , 2004 UT 101, ¶ 45, 104 P.3d 1226 ; see also Young Living Essential Oils, LC v. Marin , 2011 UT 64, ¶ 10 n.4, 266 P.3d 814 (same), and it "cannot compel a contractual party to exercise a contractual right to its own detriment for the purpose of benefitting another party," Markham , 2007 UT App 379, ¶ 19, 173 P.3d 865 (quotation simplified).

¶17 "[T]he degree to which a party to a contract may invoke the protections of the covenant turns on the extent to which the contracting parties have defined their expectations and imposed limitations on the exercise of discretion through express contract terms." Smith v. Grand Canyon Expeditions Co. , 2003 UT 57, ¶ 20, 84 P.3d 1154. The covenant has an important role to play when the terms of the contract leave the very existence of the right to terminate it in the sole and undefined discretion of one party. In such situations, the covenant requires that the party possessing such discretion exercise it in a good faith, objectively reasonable manner. See Markham , 2007 UT App 379, ¶ 21, 173 P.3d 865 ("Where the contract allows discretion but does not provide any express standard for exercising that discretion, the covenant imposes an objective standard of reasonableness."). These situations necessarily involve contracts that do not impose definitional limits on the party's exercise of discretion, and therefore implying "good faith" or "reasonableness" requirements through the covenant is not at all inconsistent with any express contractual terms.

¶18 Two examples, from cases relied upon by Backbone, are illustrative. In Powderham v. Synergy Worldwide, Inc. , No. 2:08-CV-548 CW, 2010 WL 988494 (D. Utah Mar. 12, 2010), the parties' contract provided that the defendant could terminate the contract if at any time it was "dissatisfied" with the plaintiff's performance, but it provided no criteria for objectively determining whether the defendant was truly "dissatisfied." Id. at *1. And in Markham , the parties' contract permitted the defendant to terminate it if the content of a credit report was "not acceptable" to the defendant, but provided no guidance for determining what ought to be "acceptable." 2007 UT App 379, ¶ 22, 173 P.3d 865. In each of these situations, because the ability of one party to terminate the contract was left entirely up to that party's undefined discretion, the courts held that the implied covenant operated to supply an objective reasonableness standard by which the party's discretion must be exercised. See Powderham , 2010 WL 988494, at *6 ; Markham , 2007 UT App 379, ¶ 21, 173 P.3d 865 ; see also Resource Mgmt. Co. v. Weston Ranch & Livestock Co. , 706 P.2d 1028, 1037 (Utah 1985) (stating that "courts endeavor to construe contracts so as not to grant one of the parties an absolute and arbitrary right to terminate a contract").

¶19 The situation is different, however, when a party's right to terminate a contract is not a matter of one-sided, undefined discretion but, instead, is established pursuant to objective criteria. For example, in many contracts the right to terminate is conditioned on the happening of an objectively defined event. See, e.g. , Load Zone Mktg. & Mgmt., LLC v. Clark , 2014 UT App 194, 333 P.3d 1255 (discussing a contract in which each side had the right to terminate if the buyer failed to procure a loan by a certain date). In such situations, the contract by its terms gives a party the express right to terminate the contract upon objectively defined criteria; no discretion is contemplated or exercised in arriving at that decision. When this occurs, the implied covenant does not intervene to impose an objective reasonableness standard on the party's ability to terminate, because the express terms of the contract already objectively afford the party that right, and the implied covenant cannot operate to vary express contractual rights.

¶20 Load Zone , relied upon by LifeVantage, is illustrative. There, the contract allowed either side the option to terminate it if the defendant "was unable to secure a loan" by a set deadline. Id. ¶ 2. That deadline passed without the defendant being able to secure a loan, giving either side the right to terminate, and the defendant elected to exercise that right and terminate the contract. Id. ¶ 3. The plaintiff sued, arguing that the defendant had not terminated the contract because he had been unable to secure a loan; the plaintiff contended-and the defendant acknowledged-that the defendant chose to terminate for other unrelated economic reasons. Id. ¶ 5. This court, in ruling in favor of the defendant, cited federal authorities holding that, "as a general rule, 'if a party has a legal right to terminate a contract, its motive for exercising that right is irrelevant.' " Id. ¶ 17 (quotation simplified) (quoting Tuf Racing Prods., Inc. v. American Suzuki Motor Corp. , 223 F.3d 585, 589 (7th Cir. 2000) ). Because the contract clearly provided that the defendant had the right to terminate, and did not leave the existence of a termination right up to one party's discretion, the defendant could exercise that express contractual right regardless of its motives.

¶21 This case falls into the second category of cases, because LifeVantage had the express and objectively determined right to terminate the Agreement due to Backbone's undisputed breaches. LifeVantage's right to terminate did not depend upon purely subjective circumstances, such as LifeVantage being "dissatisfied" or upon deliverables being "unacceptable." E.g. , Powderham , 2010 WL 988494, at *6 ; Markham , 2007 UT App 379, ¶ 21, 173 P.3d 865. Instead, the Agreement prohibited Backbone from disseminating any unapproved marketing materials, and Backbone had (among other things) already launched the unapproved Website by the summer of 2009. Given those facts, the Agreement gave LifeVantage the right to cancel for any breach, no matter how slight, and therefore it is undisputed that LifeVantage had the objective right to terminate the Agreement.

¶22 Backbone argues, however, that LifeVantage had ulterior motives for terminating the Agreement that were unrelated to Backbone's breaches. Backbone correctly points out that LifeVantage did not express its displeasure with the Website until February 2010, more than six months after it had gone public, and several months after it became clear that LifeVantage was unable to pay Backbone the Support Payments that were owed. But these facts are materially indistinguishable from the facts of Load Zone , and that case controls the outcome here. LifeVantage had the objective and undisputed right to terminate the Agreement, and where "a party has a legal right to terminate a contract, its motive for exercising that right is irrelevant." Load Zone , 2014 UT App 194, ¶ 17, 333 P.3d 1255 (quotation simplified).

¶23 Backbone attempts to distinguish Load Zone on the ground that, in Load Zone , this court made no mention of the implied covenant of good faith and fair dealing in its analysis. Although the court's analysis in Load Zone did not expressly discuss the implied covenant, the cases cited in Load Zone do. For instance, the Seventh Circuit stated plainly that parties do not have the right to complain "about a pretextual termination" where there is "good cause for termination," and clarified that "the fact that there is a duty of good faith read into every contract does not justify judicial inquiry into motive." Tuf Racing Prods., Inc. v. American Suzuki Motor Corp. , 223 F.3d 585, 589 (7th Cir. 2000) (cited with approval in Load Zone , 2014 UT App 194, ¶ 17, 333 P.3d 1255 ); see also Milford-Bennington R.R. Co. v. Pan Am Rys. , 695 F.3d 175, 180-81 (1st Cir. 2012) (holding, in the face of a claim for breach of the implied covenant, that where a party has "an unassailably valid reason" to exercise a contractual right, "its alleged ulterior motives are irrelevant") (also cited with approval in Load Zone , 2014 UT App 194, ¶ 17, 333 P.3d 1255 ).

¶24 LifeVantage had an objectively clear right to terminate the Agreement any time after June 2009, when Backbone first went live with the Website without getting approval as required under the Agreement. LifeVantage waited several months before electing to exercise that right, a turn of events to which Backbone ascribes illicit motive but which, in reality, is not all that unusual. Sometimes, parties who possess even a clear and objectively determined right to terminate a contract may nevertheless choose to remain in a contractual relationship; by the same token, parties may sometimes elect to exercise their right to terminate even though the contractual relationship could perhaps be salvaged. But as long as the party has an express and objectively determined right to terminate, and absent the elements of legal waiver being met, see, e.g. , Mounteer Enters., Inc. v. Homeowners Ass'n for the Colony at White Pine Canyon , 2018 UT 23, ¶ 17, 422 P.3d 809, that party may exercise that right, and its motives for doing so are irrelevant, despite the existence of the implied covenant, see Load Zone , 2014 UT App 194, ¶ 17, 333 P.3d 1255. To hold otherwise would allow the covenant to displace or vary express contractual rights, something our cases forbid. See, e.g., Oakwood , 2004 UT 101, ¶ 45, 104 P.3d 1226. Accordingly, the implied covenant is no bar in this case to LifeVantage's lawful exercise of its right to terminate the Agreement.

2

¶25 Backbone next argues that LifeVantage was not permitted to terminate the Agreement because LifeVantage materially breached the Agreement first, and therefore, termination was in violation of Utah's first breach rule. Pursuant to that rule, "a party first guilty of a substantial or material breach of contract cannot complain if the other party thereafter refuses to perform." Bonneville Distrib. Co. v. Green River Dev. Assocs., Inc. , 2007 UT App 175, ¶ 32, 164 P.3d 433 (quotation simplified). The first breaching party "can neither insist on performance by the other party nor maintain an action against the other party for a subsequent failure to perform." Id. (quotation simplified).

¶26 Backbone is not a candidate for invocation of the first breach rule because, in this case, it is undisputed that Backbone was the first party to breach the Agreement. Backbone first rolled out the Website in June 2009, while LifeVantage did not stop paying Backbone until October 2009. Since the first breach rule-even if it otherwise applied here on these facts, something we stop short of deciding -could only aid Backbone if LifeVantage breached first, see id. , it does not apply here.

¶27 Because neither the implied covenant nor the first breach rule imposed a legal bar to LifeVantage's termination of the Agreement, we conclude that the district court did not err in entering summary judgment in favor of LifeVantage on Backbone's claims for breach of contract and for breach of the implied covenant of good faith and fair dealing.

B

¶28 Finally, Hedges argues that the district court erred by granting summary judgment in favor of LifeVantage on the issue of conversion. Specifically, Hedges asserts that the court erred by not drawing what he deems a reasonable inference in his favor, namely, that LifeVantage "changed its mind" about the Second Amendment and intentionally gave Hedges the stock in lieu of the Support Payments it owed, despite his refusal to sign the Second Amendment. We are not persuaded.

¶29 To prevail on appeal, an appellant "must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal." Utah R. App. P. 24(a)(8) ; see also Andersen v. Andersen , 2015 UT App 260, ¶ 6, 361 P.3d 698 (discussing appellant's burden on appeal). Hedges devotes less than two pages of his opening brief to this topic, and his arguments fail to persuade us because they lack the "reasoned analysis supported by citations to legal authority and the record" crucial to satisfying the burden. See Utah R. App. P. 24(a)(8). Hedges cites only one case- Poteet v. White , 2006 UT 63, 147 P.3d 439 -in his conversion analysis, a case that supports his argument that, as a nonmovant, he is entitled to have reasonable inferences drawn in his favor. But no conversion claim was at issue in Poteet , and Hedges does not provide this court with so much as a list of the elements of conversion, much less a reasoned analysis of how any reasonable inference in his favor would defeat summary judgment on any of the elements of a conversion claim.

¶30 Hedges's citations to the factual record are similarly bereft of substance. In his opening brief, Hedges cites only to the district court's decision on the issue of conversion and his own pleadings. In his reply brief, he adds only two citations to the record, one to his own deposition testimony and one to an account statement from Transfer Agent evidencing the fact that a stock certificate was issued. None of this evidence provides a foundation for inferring LifeVantage's intent, if any, in issuing a stock certificate in Hedges's name. Although a nonmoving party is "entitled to all favorable inferences, he is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture." Ladd v. Bowers Trucking, Inc. , 2011 UT App 355, ¶ 7, 264 P.3d 752 (quotation simplified). The scant evidence Hedges cites leaves us only to "theoriz[e] about matters over which there is no certain knowledge." See Heslop v. Bear River Mutual Ins. Co. , 2017 UT 5, ¶ 22, 390 P.3d 314 (quotation simplified).

¶31 Because Hedges does not supply us with an evidentiary foundation from which to draw a relevant inference in his favor, nor the legal framework under which to analyze the implications of that inference, he fails to carry his burden of demonstrating that the court committed error in entering summary judgment in LifeVantage's favor on its counterclaim for conversion.

CONCLUSION

¶32 Because LifeVantage terminated its contract with Backbone only after Backbone committed objective, defined, and undisputed breaches, the district court was correct to not question its motives for doing so. And because Backbone committed some of those undisputed breaches before LifeVantage ceased making the Support Payments, Backbone cannot avail itself of the first breach rule. The court therefore did not err in granting summary judgment in favor of LifeVantage on Backbone's claims for breach of contract, including any claim for breach of the implied covenant of good faith and fair dealing. And Hedges has not carried his burden of persuading us that the district court erred in granting summary judgment in favor of LifeVantage on the conversion counterclaim.

¶33 Affirmed.

      Backbone listed Hedges as a co-plaintiff in its initial complaint and in each subsequent amended complaint, but it did not then offer (and does not now offer) any explanation as to how Hedges could have been individually injured-other than in his capacity as Backbone's owner-by LifeVantage's failure to pay the Support Payments. For the purposes of this opinion, we view the breach of contract claims against LifeVantage as having been pleaded only by Backbone.

      LifeVantage nominally pleaded these counterclaims against Backbone and against Hedges personally. The counterclaim included an assertion that Backbone was the alter ego of Hedges, but the district court never resolved that claim. Absent its argument for alter ego, LifeVantage offered no explanation in its counterclaim-and offers none here-as to how Backbone can be liable for conversion of the 240,000 shares of stock. For the purposes of this opinion, we view the conversion counterclaim as having been pleaded only against Hedges personally.

      In their opening brief, Backbone and Hedges stated that they were raising seven issues on appeal. But many of these issues are sub-issues of the two issues we describe. For instance, Backbone's claim that the court erred in calculating its damages under the Agreement, by its own admission, "is erroneous for the same reasons [the court's] termination decision is erroneous." Another issue raised by Backbone-whether a statement made in passing by the district court was correct-is inconsequential, because it was hypothetical and had no bearing on the outcome of the case.

      LifeVantage asserts that Backbone waived any claim for breach of the implied covenant when it filed an amended complaint that-unlike its original complaint-did not contain a separately pleaded cause of action for breach of the implied covenant, though it did contain a general cause of action for breach of contract. It is certainly true that lawyers often plead a claim for breach of the implied covenant separately, but we wonder whether this is simply a matter of custom, or whether there is some legal reason the claim must be pleaded separately. After all, the implied covenant is simply a term of the contract like any other, see generally Eggett v. Wasatch Energy Corp. , 2004 UT 28, ¶ 14, 94 P.3d 193 ("A violation of the covenant is a breach of the contract."), and no one would contend that separately pleaded causes of action for breach of each separate contractual provision at issue are necessary. In any event, we need not further concern ourselves with this question here, because even assuming that Backbone properly pleaded a claim for breach of the implied covenant, that claim fails on its merits.

      Two other cases may also fall into this category, although they discuss discretionary contractual rights other than termination. See Cook Assocs., Inc. v. Utah School & Institutional Trust Lands Admin. , 2010 UT App 284, 243 P.3d 888 ; Olympus Hills Shopping Center, Ltd. v. Smith's Food & Drug Centers, Inc. , 889 P.2d 445 (Utah Ct. App. 1994). In Cook Associates , the parties' land lease provided that defendant had the "discretion to adjust the rental rate" as it deemed "reasonably necessary," but the lease gave no other guidance as to how much the defendant could raise the rent. 2010 UT App 284, ¶ 2, 243 P.3d 888 (quotation simplified). And in Olympus Hills , the grocery store tenant had the right to occupy the leased premises with another "lawful retail selling business," but the lease provided no additional guidance as to what kind of retail business it could operate there. 889 P.2d at 449 (quotation simplified). In both cases, the implied covenant was deemed to supply an objective reasonableness standard, drawn from the parties' course of dealing and from the parties' "justified expectations" surrounding the contract, that cabined the party's ability to unilaterally expand the scope of the relevant contractual right. See Cook Assocs. , 2010 UT App 284, ¶ 29, 243 P.3d 888 ; Olympus Hills , 889 P.2d at 451. In this case, by contrast, neither party had any subjective discretion in determining whether LifeVantage had the right to terminate; moreover, LifeVantage's decision to exercise its right to terminate the Agreement in the wake of Backbone's breach did not unsettle anyone's "justified expectations" or deprive anyone of the "reasonably expected benefit[s] of the bargain," see Olympus Hills , 889 P.2d at 450-51, because the parties' bargain specifically included affording LifeVantage the option to cancel the Agreement if Backbone committed "any breach" of the Agreement's terms.

      The parties' decision to use the word "discretion" in the section of the Agreement setting forth LifeVantage's range of remedies in the event of Backbone's breach does not change the analysis. In this case, the Agreement expressly provided LifeVantage with the option, in the event of Backbone's breach, to select-at its "discretion"-any one of several remedies, including "[c]ancellation" of the Agreement. There is no need for implication of an objective reasonableness standard here, because the Agreement gives LifeVantage a clearly defined and limited right. See Smith v. Grand Canyon Expeditions Co. , 2003 UT 57, ¶ 20, 84 P.3d 1154 (stating that "the degree to which a party to a contract may invoke the protections of the covenant turns on the extent to which the contracting parties have defined their expectations and imposed limitations on the exercise of discretion through express contract terms"). Indeed, even if the only options LifeVantage had in the event of Backbone's breach were to choose to terminate or elect not to, the analysis would not be different; parties generally have discretion to waive or postpone the exercise of an objectively determined right to terminate, and the implied covenant does not justify an inquiry into a party's motive for exercising (or not exercising) that right.

      LifeVantage argues that there exists another ground upon which the first breach rule is inapplicable in this case, and the district court's ruling espoused this alternative argument. We do not need to reach the merits of this alternative argument, because of our determination that Backbone cannot avail itself of the first breach rule given that it is the party that breached first.

      Backbone also argues that its breaches involving the Website were not "material" breaches sufficient to be considered the "first" breach. We find this argument unconvincing, because the Agreement expressly states that "any breach" is sufficient to trigger the right to terminate, and is therefore material under the terms of the Agreement.


source: Caselaw Access Project

author: CHRISTIANSEN FORSTER, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Joseph Michael SIMPSON, Appellant.
    No. 20160835-CA
    Court of Appeals of Utah.
    Filed May 16, 2019
    Colleen K. Coebergh, Attorney for Appellant
    Sean D. Reyes and Aaron Murphy, Salt Lake City, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Joseph Michael Simpson was convicted of aggravated murder and sentenced to life in prison without the possibility of parole. He appeals his conviction alleging that he received constitutionally ineffective assistance of counsel because his trial counsel failed to move to suppress Simpson's police interviews, which were arguably taken in violation of the Fifth Amendment to the United States Constitution, and because his trial counsel failed to present any evidence in mitigation at sentencing. We affirm.

BACKGROUND

¶2 Early in the morning on December 16, 1995, two farmers discovered a body on the banks of the Provo River. The body was that of a seventeen-year-old female (Victim). Victim's body was naked and bloodied, with a large hole in the back of her skull. Several bloodied rocks were found around Victim's body. A deputy with the Wasatch County Sheriff's Office was among the first members of law enforcement to arrive at the crime scene.

¶3 The doctor who performed Victim's autopsy testified that the cause of death was "craniocerebral injuries" or "blunt force injuries" to the head. The doctor collected fingernail clippings, various fluids from Victim's body, blood swabs, and vaginal swabs. The doctor also photographed what appeared to be a bloody fingerprint on Victim's wrist.

¶4 An image of Victim's tattoo was released to the media, and Victim was identified by an individual alleging to be Victim's boyfriend. This individual revealed that Victim had recently relocated from out of state and was a sex worker, and that this individual also acted as Victim's "pimp." Police eventually excluded this individual as a suspect. Police identified sixteen possible suspects, but each one was eventually excluded. After extensive investigation, the case went cold.

¶5 In 2008, more than ten years later, advancements in DNA testing allowed the Wasatch County Sheriff's Office to reexamine cold cases. The bloodied rocks found at the crime scene were sent to a private forensics laboratory for testing. DNA from at least two males was identified-a major DNA profile and a minor DNA profile. Victim's vaginal swabs were sent to the State Crime Laboratory for DNA testing. This testing identified major and minor DNA profiles for two different males with the minor profile being insufficient for comparison. Further testing of the major profile resulted in a complete DNA profile from the semen on the vaginal swab that matched the major DNA profile found on the rocks. The DNA was run through a national database and matched a known profile for Joseph Michael Simpson. An investigation uncovered that Simpson, a Florida resident, was living in Utah at the time of the murder. It was also discovered that Simpson had previously been convicted of murder and was on parole for that crime at the time Victim was killed. Two officers from Wasatch County traveled to Florida, observed Simpson smoking a cigarette outside of his place of employment, and retrieved the cigarette butt for testing. The test revealed that the DNA on Simpson's cigarette matched Simpson's DNA on record.

¶6 The next month, the two officers interviewed Simpson twice in Florida, video recording both interviews. The first video shows that the officers advised Simpson of his Miranda rights, but the record is silent as to whether the officers Mirandized Simpson at the outset of the second interview. During the course of the interviews, the police learned that at the time of Victim's murder, Simpson was employed with an airport shuttle service and that he would deliver customers to Park City, Midway, and Sundance, Utah. Simpson admitted that when he lived in Utah, he would engage sex workers once or twice a week and that he would use the company shuttle to pick up those workers. And while he was adamant that he did not recognize Victim, he stated that it was possible that he could have picked Victim up as a sex worker. When asked how his DNA ended up on the rocks that were likely used to murder Victim, Simpson claimed he had no idea and could not explain it. Simpson then said, "I'm going to stop talking because I don't know what's going on here." The officers continued questioning Simpson, and again he stated, "I want to stop talking because I have no idea what's going on .... I want to stop talking right now." The officers persisted in their questioning and then later asked Simpson if he had any questions, to which Simpson responded, "I'm not asking anybody. I said this is stopping now because I don't know what's going on." Simpson was later arrested and charged with aggravated murder. A subsequent cheek swab of Simpson confirmed that Simpson's DNA matched the DNA found in Victim's vagina and on the bloodied rocks.

¶7 At trial, the jury heard testimony from three DNA experts. These experts testified about how DNA is collected from crime scenes and how the samples were processed in this case. The expert testimony included an explanation of how the results of the vaginal swabs revealed DNA from two males-a major and minor profile. The major profile matched Simpson, and the minor profile was insufficient for comparison. Twenty-one nanograms of DNA that matched Simpson's profile were found on a rock near Victim's body. Accordingly to the experts, the chances that another individual has the same profile as Simpson, who is Caucasian, are "one in 4.6 million for Caucasians, one in 58.2 million for African Americans, and one in 30.2 million for Hispanics."

¶8 To counter the State's DNA expert testimony, Simpson's counsel argued a DNA transfer theory: it could have been Simpson's DNA found in Victim's vagina, but Simpson's DNA was transferred from Victim's vagina to the rocks by the person who actually murdered Victim. Simpson's expert witness explained that "it would be possible for someone to put their fingers into the vaginal vault of the victim and then touch the rocks at the scene of the crime, thus depositing Mr. Simpson's DNA onto the rocks, even if he had not been present at the scene." Alternatively, it was "hypothesized that the unknown male contributor of DNA inside the victim's vagina could have inserted his penis into the victim's vagina, having Mr. Simpson's DNA transferred to his penis, and then if he touched his penis and then the rocks, transfer both of their DNA to the rocks." Simpson's expert did acknowledge that with each transfer of DNA, it would be expected that a progressively smaller amount would be transmitted with each subsequent transfer. The expert testified that finding twenty-one nanograms of DNA on the rock "is much higher than [one] would expect to see from a secondary transfer." When asked if the DNA transfer theory was possible in this case, the expert responded, "Yes, it's possible." When asked if it was likely, the expert stated, "I wouldn't say likely, but it is possible."

¶9 Also at trial, two jailhouse informants testified that Simpson admitted to each of them that he committed the murder. The first informant testified that Simpson said, "I got away with it this long. What would make them open the case now? Why now after all this time?" The first informant also testified that Simpson took a ring "from [Victim] and gave it to his girlfriend or his wife." The second informant testified that Simpson "would always complain about [the] finding [of] his DNA on a rock by [Victim]" and that Simpson told him that he never confessed to the first informant. In response, the second informant asked Simpson, "Why don't you be quiet about it? You did it anyways, didn't you?" Simpson replied, "Yeah, but I didn't tell [the first informant]. He must have been looking through my paperwork when I wasn't in my cell."

¶10 The jury found Simpson guilty of murder. The jury was then charged with determining whether Simpson committed aggravated murder, and was presented with a single witness who testified to and authenticated Simpson's prior judgment and commitment for murder. At this point, the jury learned only the fact of Simpson's prior murder conviction, not its details. The jury returned a verdict of aggravated murder.

¶11 At the sentencing phase of trial, the jury was charged with determining whether Simpson should serve life with or without the possibility of parole. In making this decision, the jury was instructed to consider the following factors: (1) the nature and circumstances of the crime; (2) Simpson's character, background, history, and mental and physical condition; (3) Victim and the impact of the crime on Victim's family and community; and (4) any other facts in aggravation or mitigation. The jury was informed that in order for something "[t]o be considered mitigating, a circumstance or factor need not justify or excuse the crime, but merely reduce the defendant's moral culpability or blameworthiness." The jury was also instructed to consider mitigating factors that may relate to the crime itself or Simpson's background or personal circumstances.

¶12 After speaking with his counsel about whether he might testify or exercise his right of allocution, Simpson elected to make a statement in allocution. Both Simpson's counsel and the State waived opening statements and elected to move straight to the evidentiary stage of the proceeding. The State presented evidence of Simpson's 1982 juvenile conviction for lewdness, for which he was diagnosed and treated for a sexual dysfunction. For the first time, the jury heard the details of Simpson's prior murder conviction. The State told the jury that a woman Simpson was dating expressed intentions of dating another man, and Simpson went to that man's home and stabbed him several times in the hip, hands, arms, shoulders, neck, head, and back. Simpson left the knife in the man's back and the victim died shortly after emergency workers arrived. The jury also heard evidence that Simpson had been convicted of driving under the influence and possession of drug paraphernalia. Additionally, the State presented evidence that while Simpson was incarcerated in the Wasatch County Jail, he got into a fight and was charged with assault on a prisoner.

¶13 Simpson's counsel waived the right to present any argument in mitigation. During its closing argument, the State reiterated much of the evidence the jury had previously heard and how it related to the jury instructions. Simpson's counsel discussed some of the jury instructions, argued that individuals change as they age and that sentencing is not only about retribution and deterrence, but also about society's interest in rehabilitating criminals. Simpson then gave his statement in allocution to the jury with the goal of seeking sympathy, leniency, and mercy. Simpson spoke about his family and the sports he played in high school, and he noted that he "had a great childhood." He then told the jury that he moved to Florida to escape a bad situation involving an ex-girlfriend who was involved in drugs. While living in Florida, Simpson explained that he obtained a Commercial Driver's License, adopted a pet, and remained trouble-free for fifteen years. He also told the jury about his health problems, including diabetes and high blood pressure. Simpson concluded by saying, "I do wish you guys would hopefully give me another chance, and that's life with parole." By a decision of eleven out of twelve jurors, the jury determined that Simpson should be sentenced to life in prison without the possibility of parole. Simpson appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Simpson raises two claims of ineffective assistance of counsel on appeal. He claims his counsel was ineffective in (1) failing to move to suppress his statements to law enforcement, and (2) failing to present any evidence in mitigation at sentencing. "A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law ...." State v. Mohamud , 2017 UT 23, ¶ 10, 395 P.3d 133 (quotation simplified).

ANALYSIS

I

¶15 The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This amendment "ensure[s] that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding." Strickland v. Washington , 466 U.S. 668, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Therefore, a defendant who does not receive effective assistance of counsel has a Sixth Amendment claim. See id. at 771, 90 S.Ct. 1441.

¶16 In order to succeed on a claim of ineffective assistance of counsel, an appellant must show that: (1) counsel's performance was deficient; and (2) counsel's deficient performance was prejudicial. Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ; State v. Litherland , 2000 UT 76, ¶ 19, 12 P.3d 92. If an appellant fails to prove either element, the claim necessarily fails. See Strickland , 466 U.S. at 687, 104 S.Ct. 2052. As it can be "all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. As a result, "[s]urmounting Strickland 's high bar is never an easy task." Padilla v. Kentucky , 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

¶17 To establish the deficient performance prong, Simpson must show that "counsel's conduct 'fell below an objective standard of reasonableness' under prevailing professional norms." Lafferty v. State , 2007 UT 73, ¶ 12, 175 P.3d 530 (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ). In so doing, Simpson must "rebut the strong presumption that under the circumstances, the challenged action might be considered sound trial strategy." State v. Bond , 2015 UT 88, ¶ 62, 361 P.3d 104 (quotation simplified). We afford attorneys "wide latitude" in developing a defense strategy because "even the best criminal defense attorneys would not defend a particular client in the same way." State v. Hull , 2017 UT App 233, ¶ 17, 414 P.3d 526 (quotation simplified). However, counsel's strategy must be "reasonable considering all the circumstances." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. To prove deficient performance, Simpson must persuade this court that "there was no conceivable tactical basis for counsel's actions." State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). "We will conclude that counsel's performance was deficient only if it can be said that no objectively competent attorney would have adopted the complained-of strategy." Hull , 2017 UT App 233, ¶ 17, 414 P.3d 526.

¶18 In this case, Simpson argues that his trial counsel was ineffective for not seeking to suppress his two separate video-recorded statements made to law enforcement. As evidenced by the first recorded interview, Simpson indicated five separate times that he did not want to speak to the officers. The officers continued to question him in spite of his declarations. The officers also brought Simpson back in for questioning a second time. Simpson argues that, by his statements that he did not want to speak during the two interviews, he "unequivocally invoked his Fifth Amendment right not to speak to [the] officers." Therefore, any statements he made after he had declined to speak "were the product of a violation of his right against compelled self-incrimination."

¶19 The two interviews provided the police officers with information that Simpson patronized sex workers; that he was employed with a shuttle service and he used the shuttle to pick up those sex workers; that he knew the route to Midway, Utah, including the area where Victim's body was found; and that he was familiar with the area where Victim was last seen. Simpson argues that this "information, combined with the State's evidence that the victim was a sex worker, essentially told the State's whole case." He further asserts that these statements, allegedly taken in violation of the Fifth Amendment, "took the skeleton of the State's case, and gave it flesh, organs, and skin." And Simpson concludes that for counsel not to move to suppress the statements he made in the videos "constitutes deficient performance" and "cannot be viewed in any other way than prejudicial."

¶20 In this appeal, we are not reviewing the denial of a motion to suppress; rather, we are reviewing whether counsel was justified in not filing a suppression motion. While a claim of ineffective assistance of counsel "necessarily requires the court to look at the substantive issue the defendant argues his counsel should have raised, and whether the substantive issue had any merit, the substantive issue is only viewed through the lens of counsel's performance." State v. Johnson , 2017 UT 76, ¶ 22, 416 P.3d 443. "The mere allegation of ineffective assistance is not enough alone to revive the substantive claim." Archuleta v. Galetka , 2011 UT 73, ¶ 32, 267 P.3d 232.

¶21 The United States Supreme Court has held that "the failure to file a suppression motion does not constitute per se ineffective assistance of counsel." Kimmelman v. Morrison , 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). This is because there can be strategic reasons for counsel not to file such a motion. See id. at 385, 106 S.Ct. 2574. But a lack of strategy, or an unreasonable strategy, can demonstrate counsel's deficient performance if that performance is "contrary to prevailing professional norms." Id. Therefore, we must determine whether Simpson's trial counsel may have had reasonable strategic considerations for not moving to suppress the statements he made to law enforcement.

¶22 A decision from an Illinois appellate court is particularly instructive on whether there can be reasonable strategic considerations for not moving to suppress a defendant's video-recorded statements to law enforcement. In People v. Jones , 371 Ill.App.3d 303, 308 Ill.Dec. 956, 862 N.E.2d 1159 (2007), a defendant appealed his first degree murder conviction contending that "his counsel was ineffective for failing to file a motion to suppress a videotaped confession in which defendant invoked his right to remain silent." Id. , 308 Ill.Dec. 956, 862 N.E.2d at 1161. The defendant argued "his videotaped statement was inadmissible because the assistant state's attorney failed to honor his invocation of his right to remain silent and continued to question him after the invocation." Id. , 308 Ill.Dec. 956, 862 N.E.2d at 1163. The court agreed that the defendant invoked his right to silence, but since the court was "not reviewing the denial of a motion to suppress," the issue was "whether defense counsel was ineffective for failing to file the motion." Id. The court determined that there was "a valid strategic reason to allow the State to introduce the videotaped statement." Id. At trial, the defense counsel's closing argument used "details contained in defendant's videotaped confession." Id. Additionally, the court stated, "[a]bsent the introduction of the videotape, counsel would have had virtually no evidence to argue [the defendant's defense]." Id. Ultimately, the court held that the defendant did "not overcome the strong presumption that his counsel's failure to file a motion to suppress was the result of trial strategy." Id.

¶23 In this case, the State argues that "Simpson has not ... overcome the presumption that it was sound trial strategy to let the jury hear his police interviews." We agree. As the State notes, "[t]he decision to rely on the police interviews formed a core part of the entire defense strategy." At trial, Simpson's counsel did not seriously challenge that the DNA found on Victim and found on the likely murder weapon belonged to Simpson. Instead, counsel argued a DNA transfer theory. Since two different male DNA profiles were found inside Victim's vagina and on the likely murder weapon, Simpson offered expert testimony explaining that "it would be possible for someone to put their fingers into the vaginal vault of the victim and then touch the rocks at the scene of the crime, thus depositing Mr. Simpson's DNA onto the rocks, even if he had not been present at the scene." Alternatively, it was "hypothesized that the unknown male contributor of DNA inside the victim's vagina could have inserted his penis into the victim's vagina, having Mr. Simpson's DNA transferred to his penis, and then if he touched his penis and then the rocks, transfer both of their DNA to the rocks." This theory was dependent on Simpson's statements that he had engaged sex workers while living in Utah and may have had sex with Victim. Because Simpson did not testify at trial, this defense theory could be presented to the jury only through the introduction of Simpson's statements. As the State argues, "without evidence that Simpson frequented [sex workers] when he lived in Utah in 1995, [defense] counsel would have had no basis beyond rank speculation to argue the transfer DNA theory."

¶24 Additionally, several other strategic reasons exist for counsel's decision not to seek suppression of Simpson's statements. In the videos, Simpson denied several times that he murdered Victim. In closing argument, trial counsel referred the jury to the videos to evaluate Simpson's credibility. Counsel told the jury, "You saw [Simpson]'s statement when the officers went to Florida and interviewed him. Do you remember his demeanor, what he was like?" Counsel otherwise would not have been able to introduce Simpson's denial to the jury, with the jury also being unable to evaluate his demeanor, except by putting Simpson on the stand. If Simpson were to have testified at trial, the prosecution could have cross-examined Simpson about his solicitation of sex workers, his employment with the shuttle service, and his knowledge of the area where Victim was found; he also risked the State using his prior murder conviction for impeachment purposes.

¶25 Without Simpson's statements to the police, the facts before the jury were that a young woman was found murdered. DNA from two males was found present in Victim's vagina and on the rocks that were likely used to murder her. There was a greater amount of Simpson's DNA on both the murder weapon and in Victim's vagina. There were also two separate jailhouse informants who testified that Simpson confessed to the murder. Given these circumstances, counsel's strategy to use Simpson's statements to police at trial, rather than seek to suppress them, was reasonable. We cannot say that "no objectively competent attorney would have adopted" this strategy. State v. Hull , 2017 UT App 233, ¶ 17, 414 P.3d 526. Whenever there "is a legitimate exercise of professional judgment in the choice of trial strategy, the fact that it did not produce the expected result does not constitute ineffectiveness of counsel." Parsons v. Barnes , 871 P.2d 516, 524 (Utah 1994) (quotation simplified). We conclude that Simpson's counsel did not perform deficiently in not seeking to suppress Simpson's statements to police and therefore Simpson did not receive ineffective assistance of counsel.

II

¶26 Simpson also contends that his trial counsel was constitutionally ineffective for failing to present the jury with any evidence that would mitigate his culpability at sentencing. In order to succeed on a claim of ineffective assistance of counsel, an appellant must show that: (1) counsel's performance was deficient; and (2) counsel's deficient performance was prejudicial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Litherland , 2000 UT 76, ¶ 19, 12 P.3d 92. To establish that deficient performance prejudiced the defense, an appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Lafferty v. State , 2007 UT 73, ¶ 13, 175 P.3d 530 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). "Reasonable probability is defined as probability sufficient to undermine confidence in the outcome." Id. (quotation simplified). "Proof of ineffective assistance of counsel must be a demonstrable reality and not a speculative matter." State v. Hards , 2015 UT App 42, ¶ 19, 345 P.3d 769 (quotation simplified).

¶27 In order to show that his trial counsel was constitutionally ineffective for failing to locate and introduce additional evidence in mitigation, Simpson must not only show "that counsel failed to seek mitigating evidence, but also that some actually existed to be found." See State v. Taylor , 947 P.2d 681, 687 (Utah 1997). The absence of evidence cannot overcome Strickland 's "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Burt v. Titlow , 571 U.S. 12, 23, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013) (quotation simplified). To prove prejudice, it is not enough that a defendant merely "identif[ies] unexplored avenues of investigation," the defendant must also "demonstrate [to] a reasonable probability that further investigation would have yielded sufficient information to alter the outcome of [the] trial." State v. Price , 909 P.2d 256, 265 (Utah Ct. App. 1995) (quotation simplified).

¶28 Simpson argues that he was prejudiced when his counsel did not put on any evidence in mitigation. Specifically, Simpson argues that counsel should have investigated and presented possible mitigating evidence that Simpson had high blood pressure and diabetes, that Simpson had lived an "offense-free" life for the past fifteen years, that he was employed and has family support, that he was convicted of a juvenile offense for lewdness for which he participated in therapy for sexual dysfunction, and that he patronized prostitutes in the mid-1990s. Simpson argues that this "social history[,] which was part of the record[,] demands" a "reasonable investigation for purposes of mitigation." Such an investigation, Simpson argues, might have provided more detail about the root cause of his sexual deviancy. Simpson also argues that these facts, combined with details on how age and general ill health had affected him, could easily have suggested some element of mercy to the jury, and presenting this information was an absolute minimum in mitigation. Because the State was not seeking the death penalty and the jury was deciding between life without parole and life with the possibility of parole, Simpson argues that there was "nothing to lose in presenting some kind of mitigation evidence to attempt to sway the jury toward life with the possibility of parole." Simpson concludes that because counsel did not put on any evidence in mitigation, the court should presume prejudice. We are not persuaded.

¶29 "[O]ur inquiry turns on whether a reasonable and impartial decisionmaker would have found the mitigating evidence omitted at sentencing significant and substantial enough to alter the outcome of [Simpson's] sentence." See State v. Wright , 2004 UT App 102, ¶ 20, 90 P.3d 644. All the evidence Simpson argues should have been presented in mitigation was known to the jury when it made its sentencing decision. Most of this evidence was presented to the jury by Simpson himself. In Simpson's statement to the jury, he told the jury about his upbringing, his pets, the sports he played, and that overall he had had a great childhood. He told the jury about his health problems, including high blood pressure and diabetes. He also stated that he had lived trouble-free for over fifteen years, maintained employment, and had family support. There was also testimony that Simpson frequented sex workers and that he was convicted of a juvenile offense in 1982 for lewdness "for which he was diagnosed and treated for sexual dysfunction."

¶30 Simpson contends that his "own plea to allow him some hope of parole based on his perception of what the jury should know cannot be viewed as a substitute for effective advocacy." While it is generally not advisable, and may be ineffective, for counsel to offer no evidence in mitigation, to succeed on an ineffective assistance of counsel claim, Simpson must not only show that his counsel's performance was deficient by not presenting mitigating evidence, but that this complained of inaction prejudiced him. There is no reason to suggest that counsel, rather than Simpson, offering the evidence that was known about Simpson would have substantially affected the jury's decision. At the sentencing phase, the jury learned that Simpson was already on parole for murder when he murdered Victim. It is unlikely that the jury would have been swayed had counsel presented evidence that Simpson had high blood pressure and diabetes, and that since his second murder he had lived a trouble-free life-at least until he was arrested for that murder-maintaining employment and family support. There can be "no prejudice when the new mitigating evidence would barely have altered the sentencing profile presented to the decisionmaker." Sears v. Upton , 561 U.S. 945, 954, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) (per curiam) (quotation simplified).

¶31 Simpson's trial counsel may have had strategic reasons for not focusing on Simpson's lewdness crime, therapy, and patronization of sex workers. While Simpson argues that there was "nothing to lose," a standard that has not been adopted for evaluating Strickland claims, Knowles v. Mirzayance , 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009), there was a potential risk in annoying the jury if counsel suggested those facts somehow diminished Simpson's culpability in the murder of a young female victim. As the State argues, "counsel could have recognized that any suggestion that patronizing [sex workers] is a sign of a troubling social history that should mitigate Simpson's responsibility for killing [such a victim] might offend and inflame the jury." Not focusing on Simpson's past of patronizing sex workers, lewdness crime, and therapy was "reasonable considering all the circumstances," see Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore we are not persuaded that "there was no conceivable tactical basis for counsel's actions," State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified).

¶32 Simpson also contends that counsel should have performed more investigation to uncover further mitigation evidence, but he has not identified any further potentially mitigating evidence that this investigation might have uncovered. See State v. Taylor , 947 P.2d 681, 687 (Utah 1997). There is also no evidence in the record as to what investigation counsel may have done.

Merely showing an absence of evidence cannot overcome Strickland 's strong presumption that counsel acted reasonably. See Burt v. Titlow , 571 U.S. 12, 23, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013). Therefore, Simpson has not met his burden to show that there was "a reasonable probability that further investigation would have yielded sufficient information to alter the outcome of his trial." State v. Price , 909 P.2d 256, 265 (Utah Ct. App. 1995) (quotation simplified). "[W]e are not convinced that [counsel's] failure to offer all possible mitigating evidence undermined the reliability of the verdict." See State v. Arguelles , 2003 UT 1, ¶ 85, 63 P.3d 731. Accordingly, Simpson has not established that his counsel's failure to offer evidence in mitigation prejudiced him, and therefore does not rise to the level of ineffective assistance of counsel.

CONCLUSION

¶33 We conclude that Simpson received effective assistance of counsel. Using the statements Simpson made to law enforcement in his defense was sound trial strategy. Further, Simpson has not established that he was prejudiced by counsel's failure to search for further evidence of mitigation or offer additional evidence in mitigation. Accordingly, we affirm Simpson's conviction and sentence.

      "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal." State v. Holgate , 2000 UT 74, ¶ 2, 10 P.3d 346 (quotation simplified).

      Black's Law Dictionary defines "allocution" as "[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence." Allocution , Black's Law Dictionary (10th ed. 2014).

      The State notes that part of Simpson's mitigation argument is a stand-alone claim that the Eighth Amendment to the United States Constitution requires a court to "engage in a colloquy" in a non-capital proceeding like this one to ensure that a defendant "knowingly and intelligently waiv[ed] the right to have mitigation evidence put on in his defense." This issue is unpreserved and is therefore reviewed for plain error. See State v. Irwin , 924 P.2d 5, 7 (Utah Ct. App. 1996). "Utah courts have repeatedly held that a trial court's error is not plain where there is no settled appellate law to guide the trial court." State v. Ross , 951 P.2d 236, 239 (Utah Ct. App. 1997). There is no settled law from either the United States Supreme Court or a Utah appellate court that requires a trial court to engage in a colloquy with a non-capital defendant to determine whether that defendant knowingly and intelligently waives the right to allocute in mitigation at sentencing. Simpson acknowledges that a decision in his favor on this issue would require this court to recognize a new Eighth Amendment right. Therefore, we are not persuaded that the trial court committed plain error when it did not undertake a colloquy similar to that required for a death-sentence defendant, and we therefore decline to further address this issue. See Irwin , 924 P.2d at 7.


text:
    STATE of Washington, Respondent, v. John Alan WHITAKER. Petitioner.
    No. 96777-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, May 2, 2019.
    ORDER
   ¶ 1 This case came before the Court on its May 1, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review is granted on the duress issue only. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court /s/Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. William Edward LUNDSTROM, Respondent.
    No. 96656-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 5, 2019.
    ORDER
   ¶ 1 This case came before the Court on its April 4, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review is denied.

For the Court /s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    FOLWEILER CHIROPRACTIC, PS, Respondent, v. AMERICAN FAMILY INSURANCE, Petitioner.
    No. 96561-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, March 7, 2019.
    ORDER
   ¶ 1 This case came before the Court on its March 7, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review is denied.

For the Court /s/ Fairhurst, CJ. CHIEF JUSTICE