author: Pohlman, Judge:

text:
    STATE of Utah, Appellee, v. Raymond Jesus MARQUINA, Appellant.
    No. 20150854-CA
    Court of Appeals of Utah.
    Filed November 23, 2018
    Teresa L. Welch, Salt Lake City, Attorney for Appellant
    Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.
    Opinion
   Pohlman, Judge:

¶1 Appellant Raymond Jesus Marquina was convicted for aggravated robbery, a first degree felony, after he attempted to rob Victim and shot him five times. Marquina now appeals that conviction, contending that he is entitled to a new trial because at least one juror may have slept through a portion of his trial. Marquina also contends that his conviction should be vacated because there was insufficient evidence to place him at the scene of the crime. We affirm.

BACKGROUND

The Crime

¶2 A few minutes after returning home from an evening out, Victim and his wife (Wife) heard a ring of the doorbell and a knock on the door. Victim opened the door and saw a man on his porch with a blue and white-streaked mask covering his face. The man was about 5'5? tall and of average build. He said something that Victim could not understand and then "immediately started pulling" the trigger of his gun. Victim was shot five times in the neck and face.

¶3 Wife, who was upstairs during the attack, heard three gun shots and rushed to the top of the stairs where she had a view of the front door. She saw "an arm with a dark-colored covering" and a gloved hand holding a gun. Still from her vantage point, Wife saw Victim fall to the floor and gurgle "lots of blood" as he tried to yell for her. Wife called the police and, after they arrived, Victim was taken to the hospital.

¶4 Neighbors also heard the gunshots. One neighbor looked through his window and saw two persons wearing black hoodies running away. Another neighbor ran out of her house in an attempt to see the shooter. She did not see anyone but, upon approaching Victim's house, stumbled on a black mask in Victim's driveway. Police later recovered the mask and sent it to the crime lab for DNA testing. That testing led the police to a local drug dealer (Dealer).

The Three Accomplices

¶5 Shortly before the shooting, Dealer decided to rob someone because he needed money to pay his rent. He had heard from several of his customers that Victim kept a lot of cash in his van and would be a good target. With help from his girlfriend (Girlfriend), Dealer made a plan to rob Victim.

¶6 Dealer then told his occasional chauffer (Driver) that he "had something [he] needed him to do." Driver was a drug addict who received free drugs from Dealer. He went along with Dealer and Girlfriend on the night of the robbery because Dealer, who "can't see well at night," needed someone to drive.

¶7 After a police investigation, Dealer, Girlfriend, and Driver admitted their involvement in the aggravated robbery of Victim. And all three placed Marquina at the scene of the crime.

¶8 Marquina, who was a member of the same gang as Dealer, had joined Dealer and Girlfriend at Dealer's apartment on the day of the robbery. While at the apartment, Dealer asked Marquina "if he wanted to go do some dirt with [him] real quick," and Marquina said he did.

¶9 Dealer, Girlfriend, Driver, and Marquina then got into Dealer's car. Dealer drove and placed a gun between the driver's seat and the emergency brake. Because they did not know where Victim lived, Girlfriend tried searching the internet to find his address. Her search initially led them to the wrong neighborhood, but they eventually found Victim's house with Victim's van parked outside. They drove around the neighborhood "for what seemed like forever" until Girlfriend asked Dealer, "Are you going to do this or not?"

¶10 Dealer and Marquina eventually got out of the car, while Driver took the driver's seat and circled the car around the block. Both Dealer and Marquina wore black hoodies, and Dealer brought two masks-one black and one blue with white streaks. Marquina put on the blue and white-streaked mask, but Dealer was unable to get his black mask on and threw it back toward his car. On the way to Victim's front door, Dealer got nervous and sent Marquina to the door alone. Marquina rang the doorbell and knocked. When Victim answered, Marquina shot him.

¶11 Marquina and Dealer then ran up Victim's street until they spotted Dealer's car. They yelled for Driver to stop and got in the backseat. Driver then drove straight back to Dealer's apartment. Once there, Marquina went his own way. Girlfriend phoned Marquina repeatedly that night to "see if he was okay," but Marquina never answered.

¶12 A few weeks later, after the police had questioned Dealer, Girlfriend, and Driver, each of whom implicated Marquina in the shooting, Marquina was arrested. Marquina's driver license listed him as 5'6? and 120 pounds. Shortly after Marquina's arrest, the police conducted a photo array identification with Victim, who survived the shooting. Marquina's photograph was in the array, but Victim identified someone else as the shooter.

The Trial

¶13 The State charged Marquina with one count of aggravated robbery, which included a group enhancement. Dealer, Girlfriend, and Driver each testified at Marquina's trial. Dealer had pled guilty to the aggravated robbery and agreed to testify even though it was "going to make [his life in prison] worse." He did not expect to receive "any benefit whatsoever" for testifying. Girlfriend pled guilty to obstruction of justice, but in exchange for her testimony against Marquina, she was placed on probation in lieu of incarceration. Driver also struck a deal that, in exchange for his testimony, he would be placed on probation for robbery and would enter a rehabilitation program. Although all three of their accounts varied in some particulars, each witness placed Marquina at the scene of the crime. See supra ¶¶ 7-12.

¶14 The trial lasted three days. On the second and third days, the prosecutors mentioned a sleepy juror. The first time, defense counsel was in the middle of cross-examining one of the detectives on the case when one prosecutor noticed a juror "nodding off." The prosecutor asked for a break so the jurors could stretch, and the court agreed to take a fifteen-minute recess.

¶15 The second time, after reading the jury instructions, the court discussed with counsel its intention to make the last-selected juror the alternate unless the parties agreed on someone else. In response, a second prosecutor noted that "we do have someone who has been sleeping through part or-not all but part of the testimony" and reasoned that, because closing arguments were likely to be lengthy, it would "probably [be] safer to use the alternate ... as an actual juror." The prosecutor further explained that the juror "has been dozing off here now, but there have been moments when he has been seemingly out." Defense counsel stated he "ha[d] not noticed any of the jurors sleeping," but that he "ha[d not] really been focusing on them." Defense counsel went on to refer to a judge who "is often mistaken by many counsel to be sound asleep ... when the truth of the matter is he is just resting his eyes," and that counsel will realize that "not only has he been listening but he has been processing everything in a very high way." The court then observed that "everyone tried to stay awake" and, with no objection from counsel, left the jury as it was. The court also invited counsel to alert the court if they "change[d] [their] mind[s] after closing" and stated, "We will be looking at [the jury] this time."

¶16 Neither side raised further concerns after closing argument. The alternate juror was excused and the jury retired to deliberate. The jury unanimously found Marquina guilty of aggravated robbery, and Marquina appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Marquina raises two issues on appeal. First, he contends that his Sixth Amendment right to an impartial jury was violated because at least one juror reportedly slept during his trial. Normally, "[c]onstitutional issues are questions of law that we review for correctness," State v. Norcutt , 2006 UT App 269, ¶ 7, 139 P.3d 1066, but unpreserved constitutional issues, as Marquina concedes this is, are reviewed "under the ineffective assistance of counsel and plain error doctrines," see State v. Bond , 2015 UT 88, ¶ 14, 361 P.3d 104.

¶18 Second, Marquina contends that there was insufficient evidence to support his conviction for aggravated robbery. "When a defendant challenges a jury verdict for insufficiency of the evidence, we review the evidence and all inferences which may be reasonably drawn from it in the light most favorable to the verdict." State v. Noor , 2012 UT App 187, ¶ 4, 283 P.3d 543 (quotation simplified); see also State v. Ashcraft , 2015 UT 5, ¶ 18, 349 P.3d 664 ("On a sufficiency of the evidence claim we give substantial deference to the jury."). We will reverse a jury verdict only when "the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted." State v. Holgate , 2000 UT 74, ¶ 18, 10 P.3d 346 (quotation simplified).

ANALYSIS

I. Sixth Amendment Jury Right

¶19 The Sixth Amendment guarantees criminal defendants "the right to ... an impartial jury." U.S. Const. amend. VI. Marquina contends that he was denied this right when a juror reportedly fell asleep during the trial. In support, he argues that the trial court had a duty to conduct voir dire of the allegedly sleepy juror to ensure the juror had not missed important testimony. He also argues that his defense counsel was constitutionally ineffective when he failed to insist that the court conduct voir dire or, if necessary, replace the sleepy juror with the alternate juror.

¶20 As noted above, Marquina concedes that this constitutional issue has not been preserved for appeal. See State v. Johnson , 2017 UT 76, ¶ 18, 416 P.3d 443 ("A failure to preserve an issue in the trial court generally precludes a party from arguing that issue in an appellate court, absent a valid exception."). Marquina nevertheless urges us to review it under the plain error and ineffective assistance of counsel exceptions to the preservation rule. See State v. Ison , 2006 UT 26, ¶ 39, 135 P.3d 864 (ineffective assistance exception); State v. Winfield , 2006 UT 4, ¶ 14, 128 P.3d 1171 (plain error exception). But before we reach those arguments, we must address whether Marquina invited the error he now complains of by allegedly resisting the replacement of the sleepy juror with the alternate. See Winfield , 2006 UT 4, ¶ 14, 128 P.3d 1171 (explaining that the invited error doctrine forecloses even plain error review). Concluding that the invited error doctrine does not apply in this case, we then turn to the plain error argument regarding the trial court's alleged failure to conduct voir dire of the sleepy juror and then the ineffective assistance argument regarding defense counsel's alleged failure to insist on replacing the juror with the alternate.

A. Invited Error

¶21 The State asserts that Marquina's defense counsel invited any error regarding the sleepy juror by resisting the prosecutor's suggestion that the sleepy juror be replaced with the alternate. By rejecting the prosecutor's suggestion, and even disputing "the prosecutor's observation that the juror had slept through 'part of the testimony,' " the State maintains that defense counsel "led the court to believe there would be no reason to question the juror." We disagree.

¶22 The "invited error doctrine arises from the principle that a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." State v. Winfield , 2006 UT 4, ¶ 15, 128 P.3d 1171 (quotation simplified). Invited error occurs when counsel "independently ma[kes] a clear affirmative representation of [an] erroneous principle" that leads the court astray. State v. McNeil , 2016 UT 3, ¶ 18, 365 P.3d 699 (citing cases).

¶23 The Utah Supreme Court has previously rejected attempts to broaden the scope of the invited error doctrine beyond this affirmative-representation model. In McNeil , the State argued that trial counsel for the defendant had invited error not through "affirmative representation" but through "affirmative acquiescence" by failing to make a proper objection to the admission of hearsay evidence. Id. ¶¶ 18, 21 (quotation simplified). The supreme court was unpersuaded by this argument "because an error of this sort ... is not invited but merely unpreserved." Id. ¶ 21. It accordingly "reject[ed] [the State's] broad definition of invited error" and reviewed the defendant's claim for plain error. Id. ¶¶ 21, 24 ; see also State v. Harris , 2012 UT 77, ¶ 23, 289 P.3d 591.

¶24 Here, Marquina's defense counsel, while perhaps affirmatively acquiescing in the court's decision to keep the current composition of the jury without making further inquiry, did not make any affirmative representation to the court that the panel was acceptable. See Winfield , 2006 UT 4, ¶ 18, 128 P.3d 1171 (concluding that counsel's affirmative representation that he "absolutely found the panel acceptable" during jury selection "f[ell] squarely within the scope of [the] invited error doctrine" (quotation simplified) ). After the prosecutor alerted the court that "someone ... ha[d] been sleeping through part ... of the testimony," defense counsel responded by saying that he "ha[d] not noticed any of the jurors sleeping," but that he "ha[d not] really been focusing on them." Counsel went on to explain the difficulty in knowing whether someone really was sleeping and pointed to the possibility that someone might just be "resting [his or her] eyes" but still "processing everything in a very high way." The court then decided to keep the jury as it was but to keep an eye on the jurors. It also informed counsel that if they changed their minds, they could revisit the issue. From the record it is clear that defense counsel did not affirmatively tell the court to either forgo voir dire or to not replace the juror with the alternate. And although the court told counsel they could change their minds, defense counsel's failure to thereafter request an alternate juror does not make the error here "invited but merely unpreserved." See McNeil , 2016 UT 3, ¶ 21, 365 P.3d 699.

¶25 To be sure, the State characterizes defense counsel's response here as an affirmative representation and not merely acquiescence. For example, it asserts that counsel "openly resisted the prosecutor's request" to substitute the alternate juror for the sleepy juror and that he "clearly indicated that he did not want the allegedly sleepy juror relegated to alternate status." We disagree with these characterizations. Although it is true that defense counsel did not ask for the juror to be questioned, and instead suggested an alternative to the prosecutor's theory that the juror was asleep, he did not affirmatively state that the court should not conduct voir dire of the sleepy juror or replace him. Thus, his statements do not "reveal[ ] that [he] independently made a clear affirmative representation of the erroneous principle." See id. ¶ 18. In short, on these facts, we do not think Marquina's defense counsel invited the error. We therefore proceed to analyze the sleeping juror issue for plain error.

B. Plain Error

¶26 Marquina contends that the trial court committed plain error, arguing that "the trial court failed to properly voir dire the sleeping juror after receiving two reliable reports that a juror was sleeping during a portion of the trial." He also asserts that this error was obvious because Utah case law establishes "the need for a trial judge to assess the jurors' ability to deliberate and decide a case" and "[c]ase law across the nation" establishes that "a trial judge [must] do a proper voir dire of a juror after receiving a reliable report that a juror has been sleeping." Finally, he asserts that the error was prejudicial because "a fully awake juror would ... have recognized the problems" in the State's case and may have helped acquit him.

¶27 We invoke the plain error exception to the preservation requirement "sparingly." State v. Harris , 2012 UT 77, ¶ 24, 289 P.3d 591. "To show plain error, a party must establish three things: (1) that an error exists, (2) that the error should have been obvious to the trial court, and (3) that the error is harmful." Id. "If any one of these requirements is not met, plain error is not established." State v. Dean , 2004 UT 63, ¶ 15, 95 P.3d 276 (quotation simplified). Thus, if we conclude that the alleged error was not obvious, we need not analyze whether it was harmful. See, e.g. , Harris , 2012 UT 77, ¶ 25, 289 P.3d 591.

¶28 "To establish that the error should have been obvious to the trial court, [Marquina] must show that the law governing the error was clear at the time the alleged error was made." See Dean , 2004 UT 63, ¶ 16, 95 P.3d 276. In other words, there must be "settled appellate law to guide the trial court." State v. Robinson , 2018 UT App 103, ¶ 40, 427 P.3d 474 (quotation simplified).

¶29 In the handful of Utah appellate cases discussing a sleeping juror's effect on a trial, one principle predominates: discretion. Indeed, handling a sleeping juror is "so peculiarly within the observation, province, and discretion of the trial court that we should not interfere with the ruling, except upon a clear abuse of discretion." State v. Mellor , 73 Utah 104, 272 P. 635, 639 (1928) ; see also State v. Lesley , 672 P.2d 79, 82 (Utah 1983) (stating that the "trial judge was in a position to gauge the degree, if any, of the juror's incapacity to serve in the trial" and affirming the denial of a motion for a mistrial after a juror allegedly fell asleep); State v. Pace , 527 P.2d 658, 659 (Utah 1974) (noting the "sound discretion of the trial judge" and affirming the denial of a motion for a mistrial after two jurors allegedly fell asleep). Generally speaking, a trial court abuses its discretion when its decision is "beyond the limits of reasonability." Ross v. State , 2012 UT 93, ¶ 57, 293 P.3d 345 (quotation simplified).

¶30 Marquina reads Mellor , Lesley , and Pace as saying that a trial court is under a duty "to inquire about the scope and importance of the testimony that a sleepy juror misse[d]." Only after this inquiry, according to Marquina, is a trial court entitled to deference as in Mellor , Lesley , and Pace . For example, Marquina asserts that in Mellor , our supreme court observed that the trial court made a "finding" that the juror "at several different times had gone to sleep, but only for two or three minutes, just a short time." See 272 P. at 639. The juror testified that he had "heard and understood all that transpired in the courtroom during the trial." See id. In Marquina's view, this testimony allowed the court to find that the "juror could decide the case because he heard the testimony offered at trial." Marquina asserts that the court in this case made no such finding and therefore, under "well-established ... Utah case law," is not entitled to the same deference as in Mellor .

¶31 The "settled appellate law" in Utah, however, does not resemble the picture Marquina paints on appeal. Our supreme court in Mellor indicated that the trial court found that the juror slept for only a short time, but the supreme court did not announce a rule or template trial courts must follow whenever they are confronted with reports of a sleepy juror. See id. Instead, Mellor established that trial courts, when presented with reports of sleeping jurors, are given wide discretion in how to respond. Id. And the specific response depends on the facts of the case, including how the issue was brought to the court's attention. See Lesley , 672 P.2d at 80-82 (discerning no abuse of discretion in denying a motion for a mistrial when defense counsel "made no complaint about the juror during the proceedings, but merely moved for a mistrial after the judge recessed court"); Pace , 527 P.2d at 659 (affirming the denial of a motion for a mistrial because the court personally "observed the whole jury" and saw the sleeping juror wake up before it "had a chance to call it to [the juror's] attention" (quotation simplified) ).

¶32 Here, on the second day of trial, the prosecutor alerted the court that a juror was "nodding off" and requested a break to allow the jury to stretch. The prosecutor's report did not suggest to the court that the juror had actually fallen asleep or had been sleeping for an extended period, and the prosecutor's request for a break suggested that no more was needed to remedy the issue. Based on the wide discretion given to trial courts in these circumstances, it would not have been obvious to the trial court that it was required to do more than grant the State's request for a short recess.

¶33 And on the third day of trial, the prosecutor suggested it may be "safer" to use the alternate juror based on her observation that a juror had been "sleeping through part ... of the testimony" and at times had been "seemingly out." Defense counsel, however, responded that he had not seen anyone sleeping and expressed no concern, even suggesting that what may look like sleep instead may be deep thought. Thus, it would not have been obvious to the trial court that it was required to do more than what it did. The trial court stated it would keep a close eye on the jurors and also gave counsel on both sides an opportunity to "change [their] mind[s]" and ask for the juror to be replaced with the alternate, but neither raised the issue again. On this record, we cannot conclude that the trial court plainly erred in how it chose to handle the sleepy juror.

¶34 Marquina also looks outside Utah for authority that a trial court is obliged to conduct voir dire whenever it receives a "reliable report" of a sleeping juror. He points to cases from Massachusetts, New York, Ohio, and South Carolina to support his position. But none of these cases are binding. And even assuming that nonbinding precedent from other jurisdictions could constitute "settled appellate law" for purposes of our obviousness inquiry, see Robinson , 2018 UT App 103, ¶¶ 40-41, 427 P.3d 474 (quotation simplified), the cases cited by Marquina do not represent a settled consensus. Utah law does not require a court to conduct sua sponte a voir dire after a report of a sleepy juror, and a number of federal circuits that have addressed the issue likewise do not require voir dire. United States v. McKeighan , 685 F.3d 956, 975 (10th Cir. 2012) (concluding there was no error in not investigating whether jurors were sleeping when defense counsel did not ask the court to investigate or request the substitution of alternate jurors); United States v. Freitag , 230 F.3d 1019, 1024 (7th Cir. 2000) (rejecting the argument that a "district judge should have inquired further" when the judge "had not noticed an extensive sleeping problem"); United States v. Holder , 652 F.2d 449, 451 (5th Cir. 1981) (similar). Therefore, any error in not following the cases Marquina cites would not have been obvious to the trial court. Accordingly, Marquina has not established plain error. See Pace , 527 P.2d at 659 ("Hence there seems to have been nothing in the eyes of the beholder, nor in the arms of Morpheus reflecting that the juror could have been ensconced, so as to have stupefied the veniremen, or the sound discretion of the trial judge.").

C. Ineffective Assistance of Counsel

¶35 Alternatively, Marquina contends that his defense counsel rendered constitutionally ineffective assistance of counsel. He argues that his counsel's performance "was deficient in failing to object to the sleeping juror" and in failing "to agree to the prosecutor's request to replace the sleeping juror with the alternate." Further, he asserts that there "would be no strategic choice by defense counsel to insist on keeping a sleeping juror in this matter."

¶36 The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show ineffective assistance, a defendant must show (1) that his counsel's performance was objectively deficient, and (2) "that the deficient performance prejudiced the defense." Id. at 687-88, 104 S.Ct. 2052. "A failure to prove either element defeats the claim." State v. Horvath , 2018 UT App 165, ¶ 30, 436 P.3d 191 (quotation simplified).

¶37 "With regard to the first prong, we 'must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " State v. Calvert , 2017 UT App 212, ¶ 22, 407 P.3d 1098 (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ). The "presumption may be overcome only if there is a lack of any conceivable tactical basis for counsel's actions." State v. King , 2012 UT App 203, ¶ 14, 283 P.3d 980 (quotation simplified). "This presumption accounts for the widely varying circumstances faced by defense counsel and the range of legitimate decisions regarding how best to represent a criminal defendant." Met v. State , 2016 UT 51, ¶ 113, 388 P.3d 447 (quotation simplified). And counsel is given an especially wide berth with regard to jury selection and retention. See State v. Litherland , 2000 UT 76, ¶ 20, 12 P.3d 92. This is because "jury selection is more art than science":

There are a multitude of inherently subjective factors typically constituting the sum and substance of an attorney's judgments about ... jurors. A ... juror's demeanor, interaction with others in the courtroom, and personality in general may all play an important role in providing clues as to that juror's likely predilections toward the case at hand.

Id. ¶ 21.

¶38 Counsel's choices about the jury "may even appear counterintuitive, particularly when viewed from the perspective of a bare transcript on appeal." Id. ¶ 22. For example, counsel may reasonably think that a potentially biased juror may "overcompensate" and "assign[ ] more weight or credibility to testimony that tends to oppose the juror's own potential bias." Id. At bottom, an attorney's decisions regarding the jury "legitimately may be based on little more than personal preference." Id. ¶ 23.

¶39 Here, we must presume Marquina's defense counsel's conduct fell "within the wide range of reasonable professional assistance." Calvert , 2017 UT App 212, ¶ 22, 407 P.3d 1098 (quotation simplified). Jury selection and retention are "more art than science," Litherland , 2000 UT 76, ¶ 21, 12 P.3d 92, and Marquina's counsel was able to observe the jurors, including the alternate, over the course of three days. Everything from the jurors' demeanors to their reactions to testimony may have played a role in counsel's decision not to insist on replacing the sleepy juror. He may have simply preferred the jury he had. Even if this choice seems "counterintuitive," counsel may have reasonably thought that a sleepy juror would "overcompensate" and would be reluctant to convict. See id. ¶ 22 (quotation simplified). Moreover, counsel's choices are viewed objectively; "[t]he first prong of the Strickland standard ... requires that a defendant rebut the strong presumption that under the circumstances, the challenged action might be considered sound trial strategy." Id. ¶ 19 (emphasis added) (quotation simplified). Marquina argues that without knowing who the sleepy juror was or insisting on an inquiry into what was missed, his defense counsel "could not make a reasonable tactical decision" to keep the juror. But even without knowing who the sleepy juror was, defense counsel may have preferred any of the actual jurors over the alternate juror. Moreover, although the record is unclear as to which juror may have been sleeping, the prosecutor might have communicated the information off the record. Therefore, we will not presume that counsel's conduct here was unreasonable "viewed from the perspective of a bare transcript on appeal." See id. ¶ 22. Because Marquina has not demonstrated his counsel was objectively deficient, he has not established ineffective assistance of counsel.

II. Sufficiency of the Evidence

¶40 Marquina next contends that there is insufficient evidence to convict him of aggravated robbery. He asserts that there is no physical or DNA evidence placing him at the crime scene and that "the only evidence that placed [him] at the crime scene was the unreliable, inconsistent and biased testimonies of" Dealer, Girlfriend, and Driver. Therefore, because there is insufficient evidence to place Marquina at the crime scene, Marquina argues that his conviction should be reversed.

¶41 We first address whether this argument was preserved below. After concluding that it was not, we review the claim for plain error.

A. Preservation

¶42 As with other claims, "a defendant must raise the sufficiency of the evidence by proper motion or objection to preserve the issue for appeal." State v. Holgate , 2000 UT 74, ¶ 16, 10 P.3d 346. This is generally done through a motion for a directed verdict. See State v. Mohamed , 2012 UT App 183, ¶ 2, 282 P.3d 1066 (per curiam). But to preserve an issue for appeal, "the issue must be specifically raised such that the issue was sufficiently raised to a level of consciousness before the trial court." Id. (emphasis added) (quotation simplified). Thus, the basis for the motion for a directed verdict must be the same as the basis for the insufficiency claim urged on appeal. See id. (concluding an insufficiency argument was unpreserved because the basis for the motion for a directed verdict at trial differed from what was argued on appeal); see also State v. Noor , 2012 UT App 187, ¶ 7, 283 P.3d 543 (same).

¶43 Here, Marquina contends that his insufficiency argument was preserved through a motion for a directed verdict at trial. But the basis for that motion was that there was insufficient evidence of a robbery-not that Marquina was absent from the scene of the crime. At trial, Marquina's defense counsel argued that there was "no evidence of a robbery" because "there [was] no evidence that there was an attempt or an effort to steal anything." His counsel conceded, however, that the evidence "d[id] show, perhaps, an aggravated assault or perhaps an attempted murder." Now on appeal, Marquina argues not that there was insufficient evidence of a robbery but that there was insufficient evidence to support the assertion that he was there. This argument was not "specifically raised such that the issue was sufficiently raised to a level of consciousness before the trial court." See Mohamed , 2012 UT App 183, ¶ 2, 282 P.3d 1066 (quotation simplified). Therefore, it was not preserved for appeal.

B. Plain Error

¶44 Marquina contends that the insufficiency of the evidence placing him at the scene of the crime is "so obvious and fundamental" that it can be reviewed for plain error. (Quotation simplified.) Marquina's arguments in support of this contention generally relate either to a lack of physical evidence placing him at the crime scene or to the "unreliable, inconsistent, and biased testimonies" of Dealer, Girlfriend, and Driver.

¶45 To establish plain error in this context, "a defendant must demonstrate first that the evidence was insufficient to support a conviction of the crime charged and second that the insufficiency was so obvious and fundamental that the trial court erred in submitting the case to the jury." State v. Holgate , 2000 UT 74, ¶ 17, 10 P.3d 346. On the first prong of that test, "we give substantial deference to the jury." State v. Ashcraft , 2015 UT 5, ¶ 18, 349 P.3d 664. "We do not sit as a second trier of fact: It is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses." State v. Boyd , 2001 UT 30, ¶ 16, 25 P.3d 985 (emphasis omitted) (quotation simplified); see also State v. Pendergrass , 803 P.2d 1261, 1267 (Utah Ct. App. 1990) ("We defer to the jury because a jury is in the best position to give proper weight to the peripheral nature of any contradictory testimony." (quotation simplified) ).

¶46 Importantly for this case, "[a] conviction may be had on the uncorroborated testimony of an accomplice." Utah Code Ann. § 77-17-7(1) (LexisNexis 2017). And while the defense can put on evidence to try to undermine that testimony, "the jury is not obligated to believe that evidence," State v. Smith , 706 P.2d 1052, 1056 (Utah 1985), or "compelled to accept the existence of reasonable doubt posited by the defense's finger-pointing," Ashcraft , 2015 UT 5, ¶ 29, 349 P.3d 664. "So long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops." Boyd , 2001 UT 30, ¶ 16, 25 P.3d 985 (quotation simplified).

¶47 Marquina's challenge to the sufficiency of the evidence is effectively resolved by Smith . In that case, a defendant was convicted of aggravated robbery. Smith , 706 P.2d at 1054. The only evidence linking him to the crime was the testimony of two accomplices, each of whom had struck a deal with the prosecutors for blanket immunity or dropped charges in exchange for their truthful testimony. Id. at 1054-55. Although the victim of the crime was unable to identify his assailants, the accomplices testified to their involvement in the robbery and that the defendant was the getaway driver. Id. at 1055. After being convicted, the defendant argued that there was insufficient evidence to support the jury's verdict. Id. Our supreme court noted that "[t]here [was] no question that conflicting evidence was adduced at trial which would negate defendant's participation in the ... robbery." Id. at 1056. But the court stated that "the jury [was] not obligated to believe that evidence" and concluded that, based on the accomplice testimony alone, "the evidence was not so lacking and insubstantial that a reasonable person could not have determined beyond a reasonable doubt that defendant committed [the] robbery." Id. at 1056-57.

¶48 Similarly, the evidence here is "not so lacking and insubstantial that a reasonable person could not have determined" that Marquina committed the crime. See id. Although Victim was unable to identify Marquina's photo in the photo array, he was able to roughly describe Marquina's height and weight (about 5'5? tall and average build) and the blue and white-streaked mask that Girlfriend testified Marquina wore. And even without that evidence, the three accomplices-Dealer, Girlfriend, and Driver-each admitted to their involvement in the crime and placed Marquina at the crime scene. See Utah Code Ann. § 77-17-7(1) ("A conviction may be had on the uncorroborated testimony of an accomplice.").

¶49 As in Smith , some of the accomplices here reached a deal with prosecutors for their truthful testimony, though Dealer testified that he did not expect to receive "any benefit whatsoever" for testifying at Marquina's trial and that it was "going to make [his life in prison] worse." The defense was free to present evidence to show the witnesses' unreliability or biases, which it did. The defense was also able to point out inconsistencies in the witnesses' testimonies. But "the jury [was] not obligated to believe that evidence." Smith , 706 P.2d at 1056. The witnesses' accounts differed in some particulars, but as to the core issue-Marquina's involvement in the aggravated robbery of Victim-the stories were consistent. At bottom, it was for the jury to "weigh the evidence and to determine the credibility of the witnesses." Boyd , 2001 UT 30, ¶ 16, 25 P.3d 985 (quotation simplified). On appeal, we will not second-guess the jury or "sit as a second trier of fact." Id. Thus, viewing the facts in the light most favorable to the verdict, we cannot say the insufficiency of the evidence here "was so obvious and fundamental that the trial court erred in submitting the case to the jury." See State v. Holgate , 2000 UT 74, ¶ 17, 10 P.3d 346.

CONCLUSION

¶50 We conclude that Marquina has not demonstrated that the trial court plainly erred in not sua sponte conducting voir dire or removing an allegedly sleepy juror. We likewise conclude that Marquina has not demonstrated that his defense counsel rendered constitutionally ineffective assistance by not requesting that the juror be removed. Finally, we conclude that the evidence was not so lacking that the trial court plainly erred in submitting the case to the jury. Accordingly, we affirm.

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

      Victim acknowledged that he could not be sure of the color because he was red-green color deficient.

      "Dirt," as explained by Dealer, means a robbery.

      The witnesses disagreed at trial about exactly when Marquina got in Dealer's car. Girlfriend testified that Marquina joined them as soon as they left Dealer's apartment, but Dealer and Driver testified that Marquina followed them in his own truck to a parking lot a few blocks away from Victim's house, parked his truck, and then got in Dealer's car.

      Marquina's cell phone records show a number of calls and text messages from Girlfriend both before and after the shooting. But during the time of the robbery-from about 9:18 p.m. to 11:10 p.m.-there was no phone activity between Girlfriend and Marquina.

      Under Utah Code section 76-3-203.1, a criminal defendant is subject to "an enhanced penalty" if the defendant acted "in concert with two or more persons." Utah Code Ann. § 76-3-203.1(2)(a), (5)(i) (LexisNexis 2017). Because Marquina allegedly robbed Victim "in concert" with Dealer, Girlfriend, and Driver, the State sought a group enhancement under this section.

      Voir dire is an "examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury." Voir Dire , Black's Law Dictionary (10th ed. 2014). Typically, voir dire refers to jury selection at the outset of trial but, in this case, it encompasses examinations after the jury has been selected.

      As discussed below, infra ¶ 39, we presume defense counsel's actions might be considered sound trial strategy, and we observe that a trial court "is not required to constantly survey or second-guess a nonobjecting party's best interests or trial strategy." State v. Bedell , 2014 UT 1, ¶ 26, 322 P.3d 697 (quotation simplified).

      See Commonwealth v. McGhee , 470 Mass. 638, 25 N.E.3d 251, 255-58 (2015) ; People v. Franqui , 123 A.D.3d 512, 999 N.Y.S.2d 40, 41 (2014) ; State v. Majid , 182 Ohio App.3d 730, 914 N.E.2d 1113, 1114-17 (2009) ; State v. Hurd , 325 S.C. 384, 480 S.E.2d 94, 97 (App. 1996) (per curiam).

      Litherland discussed jury selection at the outset of trial. Although here we address the potential substitution of a juror near the end of trial, we agree with the State that Litherland 's rationale applies. Indeed, by the end of trial, counsel will have had even more time to observe jurors and determine their "likely predilections toward the case." See State v. Litherland , 2000 UT 76, ¶ 21, 12 P.3d 92.


source: Caselaw Access Project

author: HAGEN, Judge:

license: Public Domain

text:
    STATE of Utah, IN the INTEREST OF A.W. and A.W., Persons Under Eighteen Years of Age.
    A.W., Appellant, v. State of Utah, Appellee.
    No. 20180150-CA
    Court of Appeals of Utah.
    Filed November 23, 2018
    Scott N. Weight, Attorney for Appellant
    Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee
    Martha Pierce, Salt Lake City, Guardian ad Litem
    Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.
    Opinion
   HAGEN, Judge:

¶1 The Utah Division of Child and Family Services (DCFS) removed Child and her younger sister from their parent's home following a domestic violence incident and reports of sexual abuse perpetrated by the appellant, their father (Father). After an investigation, the State filed criminal charges against Father and DCFS filed a child welfare petition in juvenile court. The juvenile court found that Father had sexually abused Child but nonetheless ordered reunification services on the recommendation of DCFS. Two years later, the court terminated Father's parental rights to Child and her younger sister, basing its decision on Father's unfitness and failure of parental adjustment. It also concluded that termination was in the children's best interests.

¶2 Father argues that the juvenile court erred in terminating his parental rights for various reasons. First, Father contends that the court violated his due process rights by delaying reunification services while his criminal charges were still pending and by considering facts not in evidence when deciding to terminate his parental rights. Because Father failed to preserve these arguments below, we decline to consider their merits.

¶3 Next, Father argues that the court erred in determining that DCFS made reasonable efforts to provide him with reunification services and in finding that he was an unfit or incompetent parent. Father has failed to demonstrate that either of these determinations was against the clear weight of the evidence. Accordingly, we affirm.

BACKGROUND

¶4 In March 2016, Child reported to an extended family member that Father had performed oral sex on her when she was eight years old. Child also disclosed that her mother (Mother) told her to keep it a secret. After Child's statement was reported to the police, DCFS immediately removed Child and her younger sister from Mother and Father's care. The State also filed criminal charges against Father based on Child's report.

¶5 Following the children's removal from Mother and Father's care, child welfare proceedings were commenced in juvenile court. The juvenile court found an immediate risk of harm to Child and her younger sister and concluded that "removal was appropriate and necessary and continuing removal from [Mother and Father was] appropriate." The court ordered temporary custody of Child and her younger sister to DCFS. Due to the sexual abuse allegation, Father was prohibited from visitation with his children outside of therapy sessions.

¶6 Father admitted that he remembered touching his daughter sexually after taking two sleeping pills, but he maintained that he did not recall performing oral sex on her. Based on Child's report and Father's admission, the court found that Child was abused and that there was a presumption against reunification. Despite the presumption against reunification, the court followed DCFS's recommendation and ordered that Father participate in reunification services and undergo testing to determine his treatment needs. The court also set the primary goal for Child and her younger sister as returning to their parents' care. To accomplish this goal, the court ordered that DCFS develop a child and family plan that stated the duties of the parties in working toward reunification and permanency. At a hearing in May 2016, at which Father was present with counsel, the juvenile court received a completed plan from DCFS, reviewed the plan with the parties, and ordered Father and Mother to comply with it.

¶7 At the same hearing, the court found that DCFS "had made reasonable efforts to finalize the child and family plan and move the children toward permanency, and services offered by the Division have been reasonable." Father did not object to the court's findings. The order also adopted the child and family plan, ordered compliance with it, and directed Father to complete a parental fitness and psycho-sexual evaluation and comply with any evaluation recommendations. In addition, the court entered an order stating that, should it determine in the future that reunification was against the best interests of the children or that the parents had failed to meet the objectives of the child and family plan, adoption would become the children's new permanency goal.

¶8 In June 2016, DCFS successfully moved for a court order granting temporary guardianship of Child and her younger sister to their maternal grandparents. In August 2016, DCFS submitted a progress report to the juvenile court acknowledging that Father had completed substance abuse and psycho-sexual evaluations and requesting that the child and family plan adopt the recommendations from both treatment evaluations. During a hearing at which both Mother and Father were present, the court ordered that the child and family plan be amended in accordance with DCFS's request and made a finding that DCFS had made reasonable efforts to "finalize the child[ren's] service plan and its permanency goal." Father did not object. The updated child and family plan ordered Father to complete a domestic violence assessment, update DCFS about his substance abuse treatment and testing, provide updates to DCFS and the juvenile court about his ongoing criminal case regarding Child's sexual abuse, and complete services recommended in his psycho-sexual and substance abuse evaluations.

¶9 Father's substance abuse evaluation recommended that he participate in outpatient treatment, abstain from the use of alcohol and drugs, and attend a recovery skills group. Father's psycho-sexual evaluation recommended further treatment to address Father's sexual abuse of Child. The evaluator specifically recommended that Father complete his outpatient substance abuse treatment program, "begin addressing the actual incident of sexually inappropriate behavior," and submit to random drug testing. The evaluation also stated that the evaluator should be informed if Father was eventually convicted of a sex crime so that he could update his recommendations.

¶10 At a hearing in November 2016, the juvenile court reviewed Father's evaluation with Father and his counsel and ordered that Father "complete therapy for sexual appropriateness." Father's attorney requested that the court enter the order for Father to complete the therapy "so that [Father could] get started on [it] right away."

¶11 Additionally, the juvenile court ordered that Father submit to random drug testing at least eight times per month. In March 2017, DCFS requested and the court ordered that Father's testing be increased to two or three times per week. Following a hearing held the same month, the court expressed concern in a written order about "[F]ather's [urine analysis] compliance issues." Thereafter, the juvenile court terminated all other reunification services but ordered Father to continue drug and alcohol testing.

¶12 In April 2017, DCFS petitioned for termination of Father's parental rights, alleging that he had "failed to remedy the circumstances that caused the [c]hildren to be removed from his care." Specifically, DCFS alleged that Father's criminal charges had not been resolved, leaving his ability to provide care and stability for his children in question; his compliance with drug testing was "inconsistent"; he had failed to release information about his progress in therapy and domestic violence treatment to DCFS; and he had not obtained independent housing. The petition also stated that Child and her younger sister had "thrived in the care of their grandparents." As a result, DCFS contended that it was "strictly necessary and in the best interests of the children" to terminate Father's parental rights.

¶13 Before the trial on termination of Father's parental rights, Father pled guilty to child abuse recklessly causing serious physical injury, a third degree felony. The district court placed Father on probation, the terms of which included Group A sex offender conditions. As a result, his psycho-sexual evaluator provided an addendum to his original evaluation, modifying Father's treatment recommendations. In the addendum, the evaluator recommended that Father participate in individual therapy, group therapy with other sexual offenders, and a psycho-sexual skills course. The stated goal of these treatment recommendations was to help Father "establish[ ] more functional interpersonal relationships, acknowledg[e] ... his responsibility regarding his sexual acting out, and control[ ] his sexual impulses." Father filed a motion in limine to exclude evidence of the evaluator's modified recommendations from the termination trial as irrelevant and unduly prejudicial. The court granted Father's motion in part, but ruled that it would consider the modifications to the extent they affected its determination of the children's best interests.

¶14 At Father's termination trial in September and October 2017, the State presented testimony from Child's therapist, Father's psycho-sexual evaluator, Child's maternal grandmother, and the DCFS permanency worker assigned to Father's case. Child's therapist testified that he had witnessed "nothing but positive interactions" between Child and her maternal grandparents and that he never recommended that Child and Father's interactions be expanded beyond supervised therapy-based visitation.

¶15 Father's psycho-sexual evaluator testified that he had reinterpreted the results of Father's initial tests after he was notified that Father pled guilty to the criminal charges that arose out of Father's sexual abuse of Child. The evaluator explained that, because some of his results "came up defensive," which may have indicated that Father had been dishonest, Father's admission that he had sexually abused Child gave additional meaning to Father's test results.

¶16 The DCFS permanency worker testified that since March 2016 Father had participated in only two individual counseling sessions to address his sexual abuse of Child. The permanency worker further testified that Father had not provided any proof that he engaged in individual therapy sessions to address "sexual appropriateness" as ordered by the court in the November 2016 hearing. When she called the counseling service to obtain the records for DCFS, it confirmed that Father had attended only two individual sessions. In addition, she explained that DCFS was notified the day before trial that Father had only completed his domestic violence training a few weeks before the termination trial.

¶17 Father testified on his own behalf and presented the testimony of his mother, sister, and substance abuse counselor. Father testified that he completed substance abuse counseling and domestic violence treatment, but he admitted that he did not complete therapy sessions to specifically address his sexual abuse of Child. Father also recalled attending four domestic violence counseling sessions between April and August 2016 and attending only one additional individual treatment session, despite recommendations that he attend more. Father once again admitted to sexually abusing Child. Nevertheless, he maintained that it "wasn't an intentional" act of abuse, because he had been under the influence of alcohol and prescription drugs at the time. Father testified that he addressed his sexual abuse of Child in his four sessions with a domestic violence counselor and that he felt he had taken accountability for the abuse. He further admitted at trial that he had missed drug tests on multiple occasions because he had remembered to call the testing center too late in the day and that he had simply stopped calling in September 2017, despite a court order to continue testing. In addition, Father admitted that he had consumed alcohol "a couple of times" since his juvenile court case was opened.

¶18 At the conclusion of the termination trial, the juvenile court determined that Father was "an unfit or incompetent parent." In support of this determination, the court found that Father's delay in participating in domestic violence treatment "left insufficient time for him to demonstrate that he ha[d] internalized and implemented the treatment and met the objective of the Child and Family Plan," that Father's "compliance with court-ordered [drug and alcohol] testing was inconsistent," that Father "willfully decided not to comply" with his testing obligations, and that Father participated "in one individual counseling session to address his sexual abuse of [Child]."

¶19 In addition, the court found that Father's extensive defense at trial of "his lack of progress in treating the sexual abuse issue" was "without merit." Specifically, the court rejected Father's assertions that he had complied with each of the court's treatment orders and that his substance abuse and domestic violence treatment adequately addressed his sexual abuse of Child. The court remained unconvinced, in the absence of expert testimony, that Father's consumption of drugs and alcohol was the sole cause of Child's sexual abuse. But assuming it was, the court reasoned that Father was "solely responsible for having ingested the substances and cannot be excused from his misconduct." The juvenile court also explained that while it would not consider the psycho-sexual evaluator's modified recommendations in determining whether Father had complied with treatment recommendations, it would consider them to the extent that they showed "what treatment [was] needed to fully rehabilitate [Father]."

¶20 Finally, after concluding that "DCFS made reasonable efforts toward [Father] to pursue a goal of reunification" and that Father "was given ample information, support[,] and communication from DCFS to achieve the objectives of the Child and Family Plan," the court terminated Father's parental rights and awarded temporary guardianship and custody to the children's maternal grandparents, pending adoption.

¶21 Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶22 Father argues that the juvenile court committed four errors in terminating his parental rights. First, Father contends that the juvenile court erred by failing to maintain the independence of the juvenile court proceedings from the concurrent criminal court proceedings and by making reunification contingent on resolution of the criminal charges. Next, Father contends that the juvenile court erred when it independently investigated the facts and relied on that evidence in its order terminating parental rights. With both contentions, Father essentially argues that the juvenile court violated his due process rights. See In re J.B. , 2002 UT App 268, ¶ 8, 53 P.3d 968 (holding that a juvenile court's reliance on facts that the father never had an opportunity to challenge violated due process); In re S.A. , 2001 UT App 308, ¶ 21, 37 P.3d 1172 (holding that "due process rights are not violated by multiple or simultaneous proceedings" but "a criminal prosecution is a completely independent proceeding" from a child welfare case (quotation simplified) ). "Constitutional issues, including due process, are questions of law which we review for correctness." In re adoption of S.L.F ., 2001 UT App 183, ¶ 9, 27 P.3d 583 (quotation simplified).

¶23 Father's third contention is that the evidence did not support the juvenile court's finding that DCFS had made reasonable efforts to provide him with reunification services. Juvenile courts are afforded "wide latitude of discretion as to the judgments [they] arrive[ ] at."

In re K.F. , 2009 UT 4, ¶ 18, 201 P.3d 985 (quotation simplified). As such, "[w]e apply a clearly erroneous standard in determining whether the juvenile court's findings are based upon sufficient evidence." Id. "A finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence." In re K.K. , 2017 UT App 58, ¶ 2, 397 P.3d 745 (per curiam).

¶24 Finally, Father contends that the juvenile court's grounds for terminating his parental rights were against the clear weight of the evidence. When considering whether to overturn a juvenile court's decision to terminate parental rights, "we review the juvenile court's factual findings based upon the clearly erroneous standard." In re B.C. , 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam) (quotation simplified).

ANALYSIS

I. Father's Due Process Claims

¶25 Father's first two claims of error-that the juvenile court improperly delayed his case pending the resolution of the criminal charges against him and that it improperly considered evidence outside of the record-fail for lack of preservation. "Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal[.]" State v. Johnson , 2017 UT 76, ¶ 14, 416 P.3d 443. "When a party fails to raise and argue an issue in the [court below], it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." Id. ¶ 15. Furthermore, even if a legal argument was adequately preserved in the court below or an exception to preservation applies, a party must provide a "citation to the record showing that the issue was preserved for review[ ] or a statement of grounds for seeking review of an issue not preserved." Utah R. App. P. 24(a)(5)(B).

¶26 Here, Father raises his constitutional claims for the first time on appeal and makes no argument that an exception to preservation applies. In fact, Father argued in his opening brief that his constitutional claims "were not required to be preserved." To the contrary, it is well established that Utah appellate courts will not review unpreserved constitutional claims unless an exception to the preservation rule applies. See , e.g. , Kell v. State , 2012 UT 25, ¶ 36, 285 P.3d 1133 (declining to consider constitutional arguments on appeal where they had not been preserved and the defendant had not demonstrated that an exception to the preservation rule applied); Donjuan v. McDermott , 2011 UT 72, ¶ 4, 266 P.3d 839 (declining to consider a father's constitutional claims in a child custody dispute because "he failed to preserve them in the district court").

¶27 Accordingly, we decline to address Father's due process claims.

II. "Reasonable Efforts" Finding

¶28 Father next claims that the juvenile court's finding that DCFS made reasonable efforts to provide him with reunification services "is against the clear weight of the evidence." Specifically, Father argues that DCFS failed to provide his psycho-sexual evaluator with information that would have impacted the evaluator's recommendations. As a result, he contends that he was afforded an inadequate opportunity to comply with the recommendations in the addendum to his psycho-sexual evaluation and that DCFS deprived him of "reasonable visitation" with his daughters. We reject these arguments and affirm the juvenile court's finding that DCFS made reasonable efforts to provide Father with reunification services.

¶29 When reunification services are ordered, the juvenile court must find that DCFS made "reasonable efforts" to provide such services before terminating parental rights. Utah Code Ann. § 78A-6-507(3)(a) (LexisNexis Supp. 2018). "Reasonableness is an objective standard that depends upon a careful consideration of the facts of each individual case." In re K.K. , 2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (quotation simplified). In determining whether DCFS has made reasonable efforts at reunification, we afford the juvenile court "broad discretion," In re A.R. , 2017 UT App 153, ¶ 47, 402 P.3d 206 (quotation simplified), because of "the court's opportunity to judge credibility firsthand ... [and] the juvenile court judges' special training, experience and interest in this field." In re K.K. , 2017 UT App 58, ¶ 2, 397 P.3d 745 (quotation simplified). Generally, as long as DCFS has made "a fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights," the division has complied with its statutory obligation. Id. ¶ 5 (quotation simplified).

¶30 Here, without acknowledging that the juvenile court ordered reunification services in a case in which there was a statutory presumption against doing so, see Utah Code Ann. § 78A-6-312(4) (LexisNexis 2012), Father fails to identify any facts in the record that suggest DCFS did not make reasonable efforts to provide him with reunification services. The record shows that DCFS timely facilitated counseling for Father and Child, developed a child and family plan that the court adopted in an order, and referred Father to substance abuse and psycho-sexual evaluators. DCFS also supervised Father's progress throughout the proceedings and monitored the children's welfare.

¶31 Father also ignores the several times in the record in which the juvenile court made an unchallenged periodic finding-before its termination order-that DCFS had made reasonable efforts to provide him with reunification services. Rather, to support his argument, Father makes unsupported assertions that DCFS deprived him of an opportunity to comply with the recommendations in the psycho-sexual evaluation addendum and that, as a result, he could not visit with Child outside of therapy. As to the psycho-sexual evaluation addendum, Father has pointed to no evidence in the record that suggests the addendum was not made available to Father as soon as possible. The evaluator testified that he made changes to his recommendations immediately after DCFS notified him of Father's criminal conviction, which prompted the modifications.

¶32 Furthermore, although Father accurately asserts that the addendum was not provided to him until after reunification services were terminated, he fails to show how he was prejudiced by this timing. The juvenile court did not consider the addendum to the evaluation in determining that Father had failed to participate in reunification services and comply with previous treatment recommendations. As Father acknowledges, the court considered the addendum only to determine "what [was] needed to fully rehabilitate [Father] in light of his criminal conviction" for the purpose of deciding what was in the children's best interests going forward.

¶33 As to Father's argument that DCFS failed to provide him with reasonable visitation, both Child's therapist and the DCFS permanency worker testified at trial that visitation was dependent on what Child and her treatment providers decided was in her best interest. From the outset of his juvenile court case, Father's visitation with Child was limited due to his admitted sexual abuse of Child. And although the juvenile court requested that DCFS speak with Child's therapist about additional visitation after termination of reunification services, Father has not shown where the record supports his contention that DCFS did not make reasonable efforts to do so.

¶34 In sum, Father has failed to identify anywhere in the record that shows DCFS failed to make reasonable efforts to provide him with reunification services and, accordingly, we affirm the juvenile court's findings.

III. Grounds for Termination

¶35 Finally, Father contends that the grounds cited by the juvenile court in terminating his parental rights are against the clear weight of the evidence. Under Utah Code section 78A-6-507, a court may terminate parental rights on the basis of any one of the grounds listed therein. Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012). Among other things, "[a] juvenile court may terminate parental rights if the court finds that a parent has either abandoned a child, neglected a child, or is an unfit or incompetent parent." In re B.O. , 2011 UT App 215, ¶ 2, 262 P.3d 46 (per curiam). "[W]hen a foundation for [such findings] exists in the evidence," we do not "engage in a reweighing of the evidence." In re B.C. , 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam) (quotation simplified).

¶36 The juvenile court terminated Father's parental rights on two bases-that Father is an unfit or incompetent parent and that Father demonstrated a failure of parental adjustment. See Utah Code Ann. § 78A-6-507(1). "So long as sufficient evidence existed to support at least one of the grounds found by the court, the termination of Father's parental rights was appropriate." In re A.J. , 2017 UT App 235, ¶ 26, 414 P.3d 541.

¶37 We need not consider the juvenile court's alternative ground for termination because there was sufficient evidence to support the finding that Father was an unfit or incompetent parent. Utah Code section 78A-6-508 lists circumstances that "constitute prima facie evidence of unfitness." Utah Code Ann. § 78A-6-508(6)(a) (LexisNexis 2012). "[S]exual abuse ... due to known or substantiated abuse or neglect by the parent" is included in that list. Id. Here, the court found, and Father admitted on multiple occasions, including at his termination trial, that he had sexually abused Child. The court noted this fact in its order and relied on it in terminating Father's parental rights.

¶38 Nevertheless, Father argues that while his "prior conduct did constitute prima facie evidence of [his] unfitness," he "could demonstrate parental fitness" because he complied with reunification services and the juvenile court's orders. This argument ignores the juvenile court's specific finding that "[a]s of the date of the trial, [Father's] sexual abuse of [Child was] almost entirely untreated on his part." The court ordered Father to complete therapy to specifically address his sexually abusive behavior and "sexual appropriateness." Father does not dispute that he attended only one or two therapy sessions that specifically addressed sexual appropriateness. Instead, Father contends that his substance abuse treatment adequately addressed the sexual abuse because he would not have sexually abused Child if he had not been intoxicated. But Father's attendance of substance abuse therapy does not excuse his failure to complete "sexual appropriateness" therapy as the juvenile court expressly ordered. Furthermore, Father's entire defense of his sexually abusive actions was that he was under the influence of alcohol and drugs at the time he committed the abuse such that he did not remember doing so. Despite this, the juvenile court found that Father willfully failed to comply with the court's drug and alcohol testing order and that he admitted to drinking while his juvenile court case was pending.

¶39 Overall, the record supports the juvenile court's finding that Father's behavior demonstrated a "remarkably passive attitude toward his reunification services." Not only did Father fail to comply with the court's order for drug and alcohol testing and order for individual sex abuse therapy, but Father also delayed participating in other services until just before his termination trial. For example, the court ordered Father to receive and comply with a domestic violence evaluation in early 2016. Father did not begin domestic violence treatment until nearly a year later and did not complete it until a few weeks before his termination trial. The record shows that Father had many opportunities to meaningfully participate in reunification services and demonstrate his fitness and successful parental adjustment from the outset of the juvenile court proceedings but failed to do so. As such, the evidence supports a finding that Father was an unfit parent because he sexually abused Child and because he failed to adequately remedy the circumstances that led to that abuse.

CONCLUSION

¶40 Because Father failed to preserve his claim that the juvenile court violated his due process rights and has not demonstrated that an exception to the preservation rule applies, we decline to address his constitutional arguments. We reject Father's other arguments and affirm the juvenile court's determinations that DCFS made reasonable efforts to provide reunification services and that Father's sexual abuse of Child and failure to comply with court orders were grounds for termination of his parental rights.

      Father does not challenge the juvenile court's ultimate determination that the termination of his parental rights was in the children's best interests.

      Group A conditions include requirements that an individual "[e]nter into, participate, and successfully complete sex offender therapy as determined by the treating facility and therapists as determined by [the Utah Department of Corrections,] [h]ave no direct or indirect contact with victim(s) or victim's family without prior written approval of the board of pardons and parole[, and] ... [h]ave no contact or association with children under age 18 years, residing at home, without prior written approval of Adult Probation and Parole." See Utah Dep't of Corrections, Sex Offender Group A Conditions , https://corrections.utah.gov/images/groupaconditions.pdf.

      Because Father did not receive the addendum until after reunification services had been terminated, the juvenile court did not consider the addendum "in its analysis of the grounds of failure of parental adjustment and/or compliance with the Child and Family Plan."

      In the same order terminating Father's parental rights, the juvenile court also accepted and entered Mother's voluntary relinquishment of parental rights, which Mother executed in a hearing before Father's termination trial.

      In making the argument that these issues need not be preserved for appellate review, Father cites rule 52(a)(3) of the Utah Rules of Civil Procedure but provides no further explanation of how rule 52 operates to nullify our longstanding rule that questions of constitutional law must be preserved.

      Father provides only two citations to the record to support his argument on this point. Instead of providing citations, he has cobbled together an argument from bare assertions of fact and unidentified quotations from various court orders.

      Notably, Utah Code section 78A-6-312 provides that "[i]n cases where obvious sexual abuse... [is] involved" neither DCFS nor a juvenile court "has any duty to make 'reasonable efforts' or to, in any other way, attempt to provide reunification services." Utah Code Ann. § 78A-6-312(4) (LexisNexis Supp. 2018). And under subsection (3), visitation is included in the definition of reunification services. Id. § 78A-6-312(3).


author: Orme, Judge:

text:
    Kim HAYES and Nancy Hayes, Appellants, v. INTERMOUNTAIN GEOENVIRONMENTAL SERVICES INC., Appellee.
    No. 20180034-CA
    Court of Appeals of Utah.
    Filed November 29, 2018
    Damian C. Smith, Attorney for Appellants.
    Anna Nelson, Salt Lake City, Attorney for Appellee.
    Judge Gregory K. Orme authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.
    Opinion
   Orme, Judge:

¶1 Plaintiffs Kim and Nancy Hayes appeal the district court's dismissal of their claims against defendant Intermountain GeoEnvironmental Services Inc. (IGES). IGES is one of three defendants against whom the Hayeses brought suit. In response to a motion brought by IGES pursuant to rule 54(b) of the Utah Rules of Civil Procedure, the district court entered an order characterizing the previously entered order of dismissal as "a final order, thus starting [the] time for appeals should there be any, from the date this Order is signed and entered." Given the text of the district court's order, and in light of our Supreme Court's recent decisions in First National Bank v. Palmer , 2018 UT 43, 427 P.3d 1169, and Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB , 2018 UT 56, 428 P.3d 1133 (amended opinion), we have determined that we lack appellate jurisdiction and have no choice but to dismiss this appeal.

¶2 Because "acquiescence of the parties is insufficient to confer jurisdiction on the court," Palmer , 2018 UT 43, ¶ 6, 427 P.3d 1169 (quotation simplified), "the initial inquiry of any court should always be to determine whether the requested action is within its jurisdiction," Varian-Eimac, Inc. v. Lamoreaux , 767 P.2d 569, 570 (Utah Ct. App. 1989). As a general rule, appellate courts obtain jurisdiction over an appeal only after the district court issues "a final order or judgment that ends the controversy between the litigants." Copper Hills , 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified). This limit to appellate jurisdiction "is often referred to as the final judgment rule." Id. (quotation simplified). An appeal brought pursuant to rule 54(b) of the Utah Rules of Civil Procedure is one of the few exceptions to this rule. See id. ¶¶ 13 -15.

¶3 For a nonfinal order to be properly certified for appeal under rule 54(b), first, "there must be multiple claims for relief or multiple parties to the action;" second, "the judgment appealed from must have been entered on an order that would be appealable but for the fact that other claims or parties remain in the action;" and third, "the district court, in its discretion, must make an express determination that there is no just reason for delay ." Id. ¶ 16 (emphasis added) (quotations simplified). Additionally, rule 52(a) of the Utah Rules of Civil Procedure requires that the district court "enter findings supporting the conclusion that the certified orders are final." Id. ¶ 21 (quotation simplified). Those findings should, among other things, "advance a rationale as to why" there is "no just reason for delay." Id. (quotation simplified). This is a practical requirement because appellate courts "cannot review an order that does not offer the court enough findings and conclusions to understand the district court's reasoning." Id. ¶ 27 (quotation simplified).

¶4 Here, although its order was captioned "Order on Defendant [IGES's] Motion for Rule 54(b) Certification," the district court merely stated that its prior order of dismissal "is deemed a final order, thus starting [the] time for appeals." The order, which was drafted by IGES's counsel, failed to include findings and the requisite express language that there is "no just reason for delay." See Palmer , 2018 UT 43, ¶ 13, 427 P.3d 1169 (quotation simplified). Because the certification order did not satisfy rules 52(a) and 54(b), we reach the "unavoidable conclusion" that we lack jurisdiction over this appeal. Id. ¶ 14.

¶5 The inefficiency attending dismissal of a case that was set for oral argument is regrettable. "Unfortunately, because the final judgment rule is jurisdictional and not discretionary, we are powerless to decide the merits of the appeal for the sake of convenience." Heartwood Home Health & Hospice LLC v. Huber , 2016 UT App 183, ¶ 13 n.4, 382 P.3d 1074. When an appellate court determines that it lacks appellate jurisdiction, "it 'retains only the authority to dismiss the action.' " Ramsay v. Kane County Human Res. Special Service Dist. , 2014 UT 5, ¶ 17, 322 P.3d 1163 (quoting Varian-Eimac , 767 P.2d at 570 ). Although it is tempting to temporarily remand to the district court to enter a proper rule 54(b) certification, we lack the authority to do so. Accordingly, we dismiss this appeal.

      While a district court's overall ruling on finality is reviewed for correctness, the court's specific determination that there is "no just reason for delay"-the third criterion of rule 54(b) -is reviewed for abuse of discretion. Copper Hills Custom Homes, LLC v. Countrywide Bank , FSB , 2018 UT 56, ¶ 22 n.6, 428 P.3d 1133.

      While we do have the discretion to treat an improper rule 54(b) certification as a request for leave to take an interlocutory appeal under rule 5(a) of the Utah Rules of Appellate Procedure, such discretion is rarely exercised, cf. Chaparro v. Torero , 2018 UT App 181, ¶ 28, 436 P.3d 339 (noting that purported appeals of right may be treated as interlocutory appeals only in "extraordinary cases" and that "[s]uch exceptional treatment cannot be justified merely because the jurisdictional defect escaped earlier detection and the appeal has progressed to a stage where dismissal would constitute a significant waste of party and judicial resources"), and we do not exercise that discretion here. As in Copper Hills , there is no basis apparent on the record that leads us to conclude that this "appeal may materially advance the termination of the litigation." Utah R. App. P. 5(c)(1)(D). See Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB , 2018 UT 56, ¶ 29 n.15, 428 P.3d 1133. Of course, either party may move the district court to properly certify the order that is the subject of this dismissed appeal in accordance with the strict mandates of rule 54(b) and its jurisprudence. See Copper Hills , 2018 UT 56, ¶ 29 n.15, 428 P.3d 1133. With such certification, an appeal could then be properly taken from the order of dismissal.