author: ORME, Judge:

text:
    STATE of Utah, Appellee, v. Joseph MOMOH, Appellant.
    No. 20161009-CA
    Court of Appeals of Utah.
    Filed September 20, 2018
    Herschel Bullen, Salt Lake City, Attorney for Appellant
    Sean D. Reyes, Salt Lake City and Jonathan S. Bauer, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.
    Opinion
   ORME, Judge:

¶ 1 Defendant Joseph Momoh appeals the district court's denial of his motion to withdraw his guilty plea. Specifically, Defendant claims ineffective assistance of counsel by reason of counsel's alleged failure to adequately explain the immigration consequences of his guilty plea. Defendant asserts that counsel's ineffective assistance precluded him from entering his plea knowingly and voluntarily. We affirm.

BACKGROUND

¶ 2 Defendant is a lawful permanent resident of the United States. In 2016, the State charged Defendant with the purchase, transfer, possession, or use of a firearm by a restricted person, a third degree felony (the Firearm Charge), see Utah Code Ann. § 76-10-503(3)(a) (LexisNexis 2017); possession of a controlled substance with intent to distribute, a third degree felony (the Drug Possession Charge), see id. § 58-37-8(1)(a)(iii) (Supp. 2017); and possession of drug paraphernalia, a class B misdemeanor, see id. § 58-37a-5(1)(b) (2016). With the assistance of counsel (Plea Counsel), Defendant pled guilty to the Firearm Charge. In exchange, the State dismissed the remaining two charges.

¶ 3 In support of his plea, Defendant signed a statement acknowledging that he understood the rights he was waiving by pleading guilty. The statement included the following section:

Immigration/Deportation: I understand that if I am not a United States citizen, my plea(s) today may, or even will, subject me to deportation under United States Immigration laws and regulations, or otherwise adversely affect my immigration status, which may include permanently barring my re-entry into the United States. I understand that if I have questions about the effect of my plea on my immigration status, I should consult with an immigration attorney.

At the bottom of Defendant's signed statement, Plea Counsel certified that she had discussed Defendant's statement with him and that she believed he fully understood its contents. Although no mention was made of the immigration ramifications of the guilty plea at the subsequent plea hearing, it does appear-and Defendant acknowledges-that the district court complied with rule 11 of the Utah Rules of Criminal Procedure when it accepted his guilty plea.

¶ 4 Two days after pleading guilty, Defendant says he received a letter from the United States Department of Homeland Security. The letter referenced Defendant's guilty plea in the current case and notified him that Homeland Security had probable cause to remove him from the United States. Defendant immediately wrote to the district court requesting to "recant" his guilty plea. He stated that he had not been advised that pleading guilty to the Firearm Charge would adversely affect his immigration status. Once the district court appointed new counsel for Defendant, he filed a motion to withdraw Defendant's plea, arguing that it "was not knowingly, intelligently and voluntarily entered" and alleging ineffective assistance of counsel.

¶ 5 Defendant and Plea Counsel both testified at the subsequent evidentiary hearing. Plea Counsel testified that she had consulted with an immigration attorney regarding the immigration implications of Defendant pleading guilty to the Firearm Charge. She stated that the immigration attorney had provided her with a "pretty detailed" written analysis of Defendant's case, which analysis she recounted from memory:

His analysis of that was that [the Drug Possession Charge] was an aggravated felony, [the Firearm Charge] was not an aggravated felony; however [it] was a charge that would render an individual inadmissible, so there were immigration consequences stemming from both charges. One charge had more serious consequences for immigration purposes than the other.

Plea Counsel explained that it was her understanding that an "aggravated felony" charge would result in Defendant's immediate deportation, whereas a charge that rendered the Defendant "inadmissible" meant that he would be unable to adjust his status-apply for citizenship, for example-but not necessarily that he would be deported. Plea Counsel further testified that she had visited Defendant more than once to discuss the immigration implications of pleading guilty to the Firearm Charge. Each time, Plea Counsel brought the immigration attorney's written analysis to help facilitate those discussions. It was Plea Counsel's opinion that she had covered the immigration issue with Defendant in a "complete manner." Specifically, they had discussed that both the Firearm and Drug Possession Charges carried immigration consequences, but that the Drug Possession Charge was likely to carry more adverse immigration consequences than the Firearm Charge.

¶ 6 Next, Defendant testified that Plea Counsel had discussed possible immigration consequences with him, but that it was his understanding that a conviction on the Firearm Charge was "unlikely" to result in his deportation. He testified that if he had understood that he was "likely" to be deported as a result of pleading guilty to the charge, he would not have done so.

¶ 7 At the conclusion of the hearing, the district court concluded that Plea Counsel had not been ineffective in representing Defendant-she had done "her due diligence" in consulting the immigration attorney and had "explained [the immigration ramifications] very, very well." The court further found that Defendant had entered the guilty plea knowingly and voluntarily. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Defendant first argues that the district court erred in concluding that Plea Counsel had not rendered ineffective assistance when she advised him of the possible immigration ramifications of pleading guilty to the Firearm Charge. "When confronted with ineffective assistance of counsel claims, we review a lower court's purely factual findings for clear error, but we review the application of the law to the facts for correctness." Archuleta v. Galetka , 2011 UT 73, ¶ 25, 267 P.3d 232 (quotation simplified). Accord State v. King , 2017 UT App 43, ¶ 13, 392 P.3d 997.

¶ 9 Second, as a result of Plea Counsel's alleged ineffective assistance, Defendant contends that his plea was not entered into knowingly and voluntarily. "We review the denial of a motion to withdraw a guilty plea under an abuse of discretion standard, disturbing the findings of fact made in conjunction with that decision only if they are clearly erroneous." State v. Ruiz , 2013 UT App 274, ¶ 12, 316 P.3d 984.

ANALYSIS

¶ 10 Defendant first challenges his guilty plea to the Firearm Charge on a claim of ineffective assistance of counsel. Defendant next challenges the district court's conclusion that he entered the plea knowingly and voluntarily. See Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017) ("A plea of guilty ... may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made."). Because Defendant's second argument-that he did not enter the plea knowingly and voluntarily-appears to be predicated solely on a claim of ineffective assistance of counsel, and Defendant does not challenge the district court's factual findings that supported its conclusion, our determination of Defendant's first claim essentially resolves his second claim. As such, our analysis of the second claim is limited.

I. Ineffective Assistance of Counsel

¶ 11 A successful ineffective assistance of counsel claim requires a defendant to establish that (1) "counsel's performance was deficient"; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if it falls below "an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052.

¶ 12 In arguing that Plea Counsel performed deficiently, Defendant attacks her analysis of the immigration consequences of pleading guilty to either the Firearm Charge or the Drug Possession Charge. He asserts that he "should have been told straight-up that if he entered a plea of guilty to the [Firearm Charge], he would be deemed 'deportable' and without any possibility for equitable relief." Contending that pleading guilty to either the Firearm or Drug Possession charge would result in his deportation, as evidenced by the letter from Homeland Security he claims to have received, he argues that Plea Counsel should have advised him to reject the plea deal and to take his chances at trial, as slim as they might be. In sum, Defendant argues that Plea Counsel's inexperience in the field of immigration law prevented her from properly informing him of the possible adverse immigration consequences of pleading guilty to the Firearm Charge.

¶ 13 Conversely, the State argues that Plea Counsel was required to notify Defendant only that pleading guilty to the Firearm Charge carried the risk of negative immigration consequences. In any event, the State argues that the district court noted that Plea Counsel consulted an immigration attorney and that her analysis was sound. As explained by the State, "the firearm felony was preferable to the drug felony from an immigration standpoint. A conviction on either felony count would have made [Defendant] deportable. However, it is at least arguable that the firearm felony is not an 'aggravated felony' that would preclude discretionary relief from removal under 8 U.S.C. section 1229b."

¶ 14 With regard to the first prong of Strickland , we analyze Plea Counsel's performance cognizant of the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. When advising defendants of the possible negative immigration consequences of pleading guilty, the United States Supreme Court specified the requisite "objective standard of reasonableness" in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), as follows:

When the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear ... the duty to give correct advice is equally clear.

Id. at 369, 130 S.Ct. 1473 (footnote omitted). And as explained by Justice Alito in his concurring opinion, the determination of what constitutes an "aggravated felony" in the immigration context is a highly complex matter. See id. at 377-79, 130 S.Ct. 1473 (Alito, J., concurring) ("As has been widely acknowledged, determining whether a particular crime is an 'aggravated felony' ... is not an easy task.").

¶ 15 Consequently, Defendant's argument fails for two reasons. First, because the determination of whether the Firearm Charge constitutes an "aggravated felony" for immigration purposes is neither "succinct" nor "straightforward," Plea Counsel was obligated to inform Defendant only that pleading guilty to the Firearm Charge carried immigration risks. See Jelashovic v. State , 2012 UT App 220, ¶ 10, 285 P.3d 14 (" Padilla requires only that the risks be expressed-not that they be expressed in any particular detail or by an attorney with any particular expertise."). Plea Counsel testified that it was her understanding "there were immigration consequences stemming from both charges," which she explained to Defendant. Defendant testified that it was his understanding that it was "unlikely" that he would be deported if he pled guilty to the Firearm Charge. This testimony demonstrates that Plea Counsel did advise him that there was at least some risk of negative immigration consequences to pleading guilty. As such, Plea Counsel "did her due diligence," in the words of the district court, and even exceeded the duty imposed by Padilla by consulting an immigration attorney to determine what the likely immigration risks would be in Defendant's particular case and then sharing that information with Defendant, rather than merely inviting him to consult with an immigration attorney.

¶ 16 Second, the plea statement that Plea Counsel discussed with Defendant and that Defendant signed also warned, with our emphasis, of the potential risk of deportation: "I understand that if I am not a United States citizen, my plea(s) may, or even will, subject me to deportation under United States immigration laws and regulations, or otherwise adversely affect my immigration status." Defendant therefore cannot claim that he was unaware that his guilty plea could possibly result in his deportation when the statement he signed and said he understood clearly indicated as much. See Ramirez-Gil v. State , 2014 UT App 122, ¶ 10, 327 P.3d 1228 ("Between the statements in the written plea form explaining the deportation consequences of Petitioner's plea and Petitioner's signature on that form confirming that trial counsel reviewed the plea with him, Petitioner cannot demonstrate that counsel performed deficiently by failing to advise him that his plea could affect his immigration status.").

¶ 17 For these reasons, we affirm the district court's conclusion that Plea Counsel did not perform deficiently, and Defendant's ineffective assistance claim is unavailing.

II. Knowing and Voluntary

¶ 18 Once entered, a guilty plea may be withdrawn only upon "a showing that it was not knowingly and voluntarily made." Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017). Defendant argues that Plea Counsel's allegedly deficient performance in advising him of the immigration ramifications prevented him from entering his guilty plea knowingly and voluntarily. Because we have determined that Plea Counsel did not perform deficiently, see supra ¶¶14-16, we conclude that the district court did not abuse its discretion when it denied Defendant's motion to withdraw his guilty plea, which was premised exclusively on that theory.

CONCLUSION

¶ 19 We conclude that Plea Counsel did not perform deficiently when she advised Defendant of the immigration consequences of pleading guilty to the Firearm Charge. Regardless of whether her analysis was entirely correct, Plea Counsel notified Defendant that pleading guilty carried immigration risks. Defendant also signed a statement certifying that he was aware that his guilty plea could potentially result in deportation. Because Plea Counsel did not perform deficiently, the district court did not abuse its discretion in finding that Defendant entered his guilty plea knowingly and voluntarily.

¶ 20 Affirmed.

      Absent clear error, we defer to the factual findings of the district court. See State v. Tripp , 2010 UT 9, ¶ 30, 227 P.3d 1251.

      Defendant had previously been convicted of a felony drug offense in Nebraska.

      Because the statutory provisions in effect at the relevant time do not differ in any way material to our analysis from those now in effect, we cite the current version of the Utah Code for convenience.

      In his motion, Defendant wove these two arguments together. He claimed that his plea was not "knowing and voluntary" specifically because he received ineffective assistance from Plea Counsel. The district court recognized the distinct arguments and made several findings on the adequacy of Plea Counsel's performance and the accuracy of her understanding of the immigration consequences of the plea. See infra ¶ 7. This, then, is not a case in which the claim of ineffective assistance of counsel is first raised on appeal.

      The actual email correspondence between Plea Counsel and the immigration attorney is not part of the record. Nor is the letter Defendant claims to have received from Homeland Security.

      Because we conclude that Plea Counsel's performance was not deficient, we do not reach the second prong of Strickland . See State v. Goode , 2012 UT App 285, ¶ 7 n.2, 288 P.3d 306 ("Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.").

      "Slim" might be an overstatement. Officers responding to a report of shots fired at Liberty Park arrived on the scene, saw Defendant running, pursued him, and caught up with him just after seeing him drop a bag and a jacket. In the bag, they found a handgun, ammunition, and a spent casing. They also found a variety of illegal drugs and paraphernalia.

      Although both Defendant and the State discuss the correctness of Plea Counsel's immigration analysis on appeal, Defendant did not raise such an argument at the change-of-plea hearing, instead stating, "I'm not necessarily asserting that [Plea Counsel] made an error."

      Plea Counsel's recommendation to accept the plea deal was based on the immigration attorney's analysis "that [the Drug Possession Charge] was an aggravated felony; [the Firearm Charge] was not an aggravated felony."


source: Caselaw Access Project

author: HAGEN, Judge:

license: Public Domain

text:
    Elda CHAPARRO, Appellant, v. Enrique TORERO, Appellee.
    No. 20170494-CA
    Court of Appeals of Utah.
    Filed September 20, 2018
    Randall W. Richards, Clearfield, Attorney for Appellant.
    Deborah L. Bulkeley, South Jordan, Attorney for Appellee.
    Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.
    Opinion
   HAGEN, Judge:

¶1 Elda Chaparro (Mother) appeals the district court's entry of judgment by default as a sanction for her failure to pay a custody evaluator. The judgment awarded Enrique Torero (Father) sole physical custody of their minor child, A.T., modifying the custody arrangement from their divorce decree. The district court did not take any evidence to support a finding that a substantial change of circumstances had occurred or that a transfer in custody was in the child's best interest. Because the district court did not make the required findings before entering the judgment by default, it exceeded its discretion in modifying the existing custody order. We reverse and remand.

BACKGROUND

¶2 Upon their divorce in September 2014, Mother and Father were granted joint physical and legal custody of their child, A.T. Eight months later, Mother filed a petition to modify the divorce decree based on changed circumstances. Mother sought sole physical custody of A.T. because Father had moved out of the area, making joint physical custody impractical. Father filed an answer denying Mother's allegations and seeking dismissal for failure to state a cause of action. Father also filed a motion seeking a court determination of where the child should go to school as well as a custody evaluation.

¶3 At a hearing on the motions, the parties stipulated that A.T. would attend the school Father selected and agreed to a custody evaluation regarding Mother's petition to modify. The court then ordered a custody evaluation, splitting the cost equally between the parties.

¶4 Pursuant to rule 4-903 of the Utah Rules of Judicial Administration, the domestic relations commissioner held a settlement conference in which the custody evaluator participated. When the parties were unable to reach a resolution, the commissioner certified the case for trial. The commissioner's pre-trial order provided that either party could request a written report from the evaluator and that "both parties shall share the costs of the written report equally, one-half (1/2) to each."

¶5 Father requested a written custody evaluation, and the evaluator informed the parties that the cost of such a report was $3,500, which needed to be paid in full before the report could be prepared. Father promptly paid the evaluator for his half.

¶6 Roughly two months before trial, the evaluator notified the court that she had not received payment from Mother and, consequently, would be unable to submit the report before trial. Father subsequently filed a motion to continue the trial as well as a motion for sanctions and attorney fees.

¶7 In the motion for sanctions, Father alleged that the custody evaluator had recommended, during the settlement conference, that Father "should have physical and legal custody to the parties' minor child and that [Mother's] parent time should be substantially reduced." Father also alleged that Mother had "no intention of complying with the court's order and paying" the evaluator because the evaluation was adverse to her. As a sanction for Mother's failure to pay, Father sought an order awarding him "the sole physical and legal custody of the parties' minor child," attorney fees, and other appropriate relief.

¶8 The district court held a telephone conference with the parties' attorneys. Father's attorney asserted that Mother was "flat-out refusing to pay" for the custody evaluation because "it was readily apparent [from the rule 4-903 hearing] that the report was very negative towards [Mother]." Mother's attorney conceded, "[Father's counsel] is correct, [the evaluator's] discussion at the 4-903 hearing was not favorable to [Mother]." Her attorney explained that Mother did not intend to call the evaluator as a witness at trial and believed that the evaluator's testimony was unnecessary given that Father had not filed a counterpetition seeking sole custody of A.T.

¶9 The district court suggested that, if Father was now asking for sole custody, Father should amend his pleadings to include that relief. Father's attorney agreed and indicated that he would immediately file an amended answer and counterpetition.

¶10 The district court granted the motion to continue but deferred its ruling on sanctions. The court again ordered that "both sides pay one-half the cost" of the written report. The court warned that it might impose sanctions if Mother persisted in her refusal to pay:

I think I can grant as a sanction custody to the father if she doesn't pay, and that's kind of why I want her to pay one half, is because if she continues to take this position, I'm not going to pay, then to me, a logical sanction is to say fine, the Court's going to award custody to the father, but I don't think I can do that until the pleadings are amended.

¶11 The district court issued an order requiring Mother to immediately pay the evaluator and allowing Father to amend his pleadings. Father filed an amended answer and counterpetition to modify the divorce decree by granting him sole physical and legal custody.

¶12 The following month, the district court held a telephone conference with Father's attorney and Mother, appearing pro se. Father's attorney explained that Mother did not pay the evaluator as ordered and had instead offered to pay $50 per month until the debt was satisfied. Based on her failure to comply with the court's order, Father asked the court to strike Mother's pleadings and enter a default judgment granting sole custody to Father.

¶13 Mother objected, insisting she was willing but unable to pay. Mother confirmed that she was able to "pay $50, ... until [she was] able to come up with the whole amount." The court explained to Mother that "it just doesn't work that way" because she had already been ordered to pay one-half of the fee immediately.

¶14 Mother again objected, saying, "Your Honor, I don't have money. I don't have money. I don't have money right now. I will pay her immediately. I am trying to come up with the funds." The court explained that taking a year or two to pay in installments was unacceptable because the case needed to move forward to trial. Mother objected again, saying, "I just got done telling you that I don't have all the funds right now." Mother insisted that she had told her former attorney that she would pay the evaluator "when she renders services," and that her former attorney had misrepresented her position to the court. The court asked again, "So you don't intend to pay your half of the fee to [the evaluator]?" At that point, Mother suggested that it might be easier for her to communicate in Spanish and offered to respond to the court in writing, but she reiterated, "I'm saying I will pay her as soon as I come up with the full amount. I'm not refusing to pay." Mother stated that she was trying to "get money from [her] kids, or a loan for [her] house" and would try to come up with the full amount within four to six weeks.

¶15 The court asked Father's attorney how long the case had been pending, but Mother continued speaking. Father's counsel stated that "she always interrupts" and "we've had problems with her complying with the court orders," which counsel asserted had resulted in delay. Mother continued to object, but the court stated, "All right, [Father's attorney], I'll grant your motion. We'll just strike her answer and enter a default judgment."

¶16 Following the telephone conference, the district court signed a written order, prepared by Father, stating that because Mother had "failed to comply with the Court's prior Orders, her Petition for Modification is hereby stricken and judgment shall be entered pursuant to the [Father's] Counter Petition to Modify Decree of Divorce." The court later entered an order modifying the divorce decree to award Father "sole legal and physical custody of the parties' minor child." The order also provided that "[Father] is to be awarded his costs and attorney fees against [Mother]."

¶17 Contemporaneously, the court entered "Findings of Fact and Conclusions of Law,"

drafted by Father's attorney, in which the court purported to make factual findings that (1) there was a "substantial and material change[ ] warranting the modification of the custody" and (2) the change was in the child's "best interests." These findings repeated Father's alleged facts verbatim.

¶18 Mother appealed after the modified divorce decree was entered but before the court's final order setting the amount of attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶19 While Mother states several issues on appeal, the substance of her arguments relates to three discrete rulings by the district court. First, she challenges the district court's decision to allow Father to amend his answer and file a counterpetition for sole physical and legal custody. "We review a district court's decision to grant an amendment of the pleadings for abuse of discretion resulting in prejudice." Swan Creek Vill. Homeowners v. Warne , 2006 UT 22, ¶ 18, 134 P.3d 1122.

¶20 Second, Mother challenges the district court's award of sole physical and legal custody to Father as a sanction for her failure to pay her share of the custody evaluator's fee. Generally, "we overturn a sanction only in cases evidencing a clear abuse of discretion." Kilpatrick v. Bullough Abatement, Inc. , 2008 UT 82, ¶ 23, 199 P.3d 957 (reviewing discovery sanctions). "An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court's ruling." Id. (quotation simplified).

¶21 Third, Mother challenges the award of attorney fees to Father. "The [district] court's decision regarding whether to award attorney fees will be overturned only if the [district] court exceeded the bounds of its discretion." Neff v. Neff , 2011 UT 6, ¶ 48, 247 P.3d 380. "But the related question of whether the [district] court's findings of fact in support of an award of fees are sufficient is a question of law that we review for correctness." Id. (quotation simplified).

ANALYSIS

I. Subject Matter Jurisdiction

¶22 Before turning to the issues raised by the parties, we address whether we have jurisdiction over this appeal. In his brief, Father argues that we lack jurisdiction over the attorney fees issue, but he does not challenge our jurisdiction over the appeal generally. Nonetheless, "because subject matter jurisdiction goes to the court's authority to hear a case, courts have an independent obligation to raise and decide jurisdictional questions that the parties either overlook or elect not to press." In re adoption of Baby E.Z. , 2011 UT 38, ¶ 36, 266 P.3d 702 (quotation simplified).

¶23 On May 22, 2017, the district court entered a modified divorce decree supported by separately entered findings of fact and conclusions of law. At that time, the court ruled that Father was entitled to an award of his costs and attorney fees. Mother filed her notice of appeal on June 19, 2017, seeking review of the court's "final order" dated May 22, 2017. When the notice of appeal was filed, the court had not yet entered an order setting the amount of attorney fees. The district court docket reflects that the order awarding attorney fees was entered on September 15, 2017. An amended judgment reflecting the amount of the attorney fees award was not entered until November 24, 2017. Mother never filed an amended notice of appeal.

¶24 Until recently, any "appeal filed before a claim for attorney fees had been resolved was premature and would be dismissed." Utah R. Civ. P. 58A advisory committee notes on 2016 amendments. But in 2016, rule 4(b) of the Utah Rules of Appellate Procedure was amended "to change the effect of a motion for attorney fees on the appealability of a judgment." Id. The rule now provides:

A notice of appeal filed after announcement or entry of judgment, but before entry of an order disposing of [a motion or claim for attorney fees under Rule 73 of the Utah Rules of Civil Procedure ], shall be treated as filed after entry of the order and on the day thereof, except that such a notice of appeal is effective to appeal only from the underlying judgment.

Utah R. App. P. 4(b)(2). In other words, "[i]f a notice of appeal is filed before the order resolving the timely motion, the appeal is not dismissed; it is treated as filed on the day the order ultimately is entered." Utah R. Civ. P. 58A advisory committee notes on 2016 amendments.

¶25 In applying the new rule 4(b), Father argues that once the court entered the order setting the amount of attorney fees, Mother's notice of appeal became effective, but only as to the May 22, 2017 order modifying the divorce decree. But, in a recent opinion, this court held that the new rule applies only if the pending motion for attorney fees is filed post-judgment. See McQuarrie v. McQuarrie , 2017 UT App 209, ¶ 4, 407 P.3d 1096 (per curiam). "[B]ecause rule 4(b)(1)(F) applies only to post-judgment motions for attorney fees and no such motion was filed," this court held that "traditional case law concerning the finality of judgment for purposes of appeal still applies." Id. (emphasis added). Under that traditional case law, "a [district] court must determine the amount of attorney fees awardable to a party before the judgment becomes final for the purposes of an appeal" as of right. ProMax Dev. Corp. v. Raile , 2000 UT 4, ¶ 15, 998 P.2d 254. If the notice of appeal is prematurely filed before entry of a final, appealable order, the appellate court lacks jurisdiction to hear the appeal. Id. ¶ 16.

¶26 In concluding that the new rule applies only to post-judgment motions for attorney fees, our opinion in McQuarrie relies on 4(b)(1)(F)'s specific reference to "a motion or claim for attorney fees under rule 73 of the Utah Rules of Civil Procedure." 2017 UT App 209, ¶ 4, 407 P.3d 1096 (quotation simplified). Looking to the language of rule 73, we noted that a motion pursuant to the rule must "specify the judgment." Id. (quotation simplified). Because the application of rule 4(b)(1)(F) is limited to motions under rule 73, which in turn seems to presume that a judgment will exist when such a motion is filed, we concluded that rule 4(b)(1)(F) applied only to post-judgment motions for attorney fees.

¶27 Thus, under McQuarrie , we lack jurisdiction, not just over the attorney fees award as Father contends, but over the entire appeal. In McQuarrie , we held that we lacked jurisdiction where the husband filed his notice of appeal from an order dismissing his motion to modify a divorce decree and awarding attorney fees in an amount to be determined at a later date. Similarly, here, Mother filed her notice of appeal from entry of the modified divorce decree, which, among other things, awarded Father attorney fees in an amount to be determined. Because the modified divorce decree, like the order in McQuarrie , contemplated additional action by the court, it was not final for purposes of appeal. And because the unresolved attorney fees issue did not result from a post-judgment motion under rule 73, McQuarrie holds that rule 4(b)(1)(F) does not apply. Consequently, we lack appellate jurisdiction to hear this case as an appeal as of right.

¶28 Ordinarily, this conclusion would necessitate dismissal of the appeal. See Loffredo v. Holt , 2001 UT 97, ¶ 11, 37 P.3d 1070 ("Where the final judgment rule is not satisfied, the proper remedy for this court is dismissal."). " 'In extraordinary cases,' " however, " 'we may choose to treat a purported [appellate rule 3 appeal of right as an interlocutory appeal under [appellate rule 5].' " A.J. Mackay Co. v. Okland Constr. Co. , 817 P.2d 323, 325 (Utah 1991) (quoting Williams v. State , 716 P.2d 806, 808 (Utah 1986) ). We recognize that "the course suggested in Williams is to be taken very sparingly." Id. Such 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. If those circumstances were sufficient, it might "encourage counsel to attempt to appeal from unappealable orders and to conceal the nature of the orders from the court." Id. We are also mindful that "every case that we permit to improperly occupy a space" on our docket reduces the amount of resources we can devote to appeals properly taken as of right. Id. Finally, we understand that "we bear a heavy burden of justification when we single out one improperly taken appeal for preferential treatment that has been denied so many others." Id. "[F]or such circumstances to exist, a minimum threshold requirement would be that the order appealed from be one we would have initially deemed worthy of appeal under rule 5." Id. at 326. Additionally, "we should also consider how we have treated other unappealable orders that have evaded early detection by this court" and be able to "explain persuasively why any one case deserves treatment denied to others." Id. at 325-26.

¶29 We believe that this is such an extraordinary case. The primary issue on appeal is whether the district court abused its discretion when it modified custody as a sanction against Mother without considering the best interests of the child. As explained in Part IV, this court has previously held that a district court cannot impose such a sanction. Any change in custody must be accompanied by adequately supported findings that the change is in the best interests of the child. See infra ¶ 38. Given that the sanctions imposed by the district court over Mother's objection were in contravention of controlling authority, we would have initially deemed this issue worthy of an interlocutory appeal under rule 5. This is especially true where, at the time Mother filed her notice of appeal, Father had yet to submit an affidavit of attorney fees and costs and a final judgment on the matter was still some months off. Considering the time-sensitive nature of a child's custody and the uncertainty regarding when the attorney fees issue would be resolved, this case would have been suitable for interlocutory review to correct the patent error below.

¶30 The nature of this case also justifies special treatment. Unlike the order dismissing petitions to modify a divorce decree in McQuarrie , this case involves a custody order affecting a minor child. As we explain in Part IV, the child's best interests are of paramount importance in making custody determinations. See infra ¶ 39. A modification in custody to punish a recalcitrant parent-litigant without considering the best interests of the child would work a manifest injustice.

¶31 If the only interest at stake in this appeal was that of Mother, we would not be inclined to rescue her from her own oversight, even in light of her pro se status at the time this appeal was filed and the potential confusion caused by the 2016 amendments to the court rules. However, this appeal involves the best interests of a minor child, and those interests have not been properly considered despite well-established law requiring such findings as a prerequisite to a change in custody. Because we conclude that this is an extraordinary case, we choose to treat it as an interlocutory appeal under rule 5 for which we have jurisdiction.

II. Inadequate Briefing

¶32 Father argues that Mother has inadequately briefed each issue on appeal. Although Mother filed her opening brief pro se, parties who represent themselves are "held to the same standard of knowledge and practice as any qualified member of the bar." Allen v. Friel , 2008 UT 56, ¶ 11, 194 P.3d 903 (quotation simplified). We require a party to "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).

¶33 While Mother's brief is not in strict compliance with rule 24, appellate courts are "generally lenient with pro se litigants," extending "every consideration that may reasonably be indulged." Bell v. Bell , 2013 UT App 248, ¶¶ 24, 27, 312 P.3d 951 (quotation simplified). This court may, in the interests of justice, overlook inadequacies in the briefing and reach the merits. See State v. Gamblin , 2000 UT 44, ¶ 8, 1 P.3d 1108 (holding that an appellate court may "choose to further address defendant's arguments in the interests of justice"); Golden Meadows Props., LC v. Strand , 2011 UT App 76, ¶ 1 n.1, 249 P.3d 596 ("Despite these inadequacies, we exercise our discretion to decide this matter on the merits.").

¶34 Moreover, the Utah Supreme Court has recently clarified that inadequate briefing is not "an absolute bar to review of an argument on appeal." Bank of Am. v. Adamson , 2017 UT 2, ¶ 11, 391 P.3d 196. "An appellant who fails to adequately brief an issue will almost certainly fail to carry its burden of persuasion on appeal," but the court's analysis focuses on whether the appellant has established error, "not on whether there is a technical deficiency in briefing meriting a default." Id. ¶ 12 (quotation simplified). With that standard in mind, we turn to the merits of each issue on appeal.

III. Allowing Amendment of Pleadings

¶35 Mother has failed to carry her burden of persuasion in arguing that the district court abused its discretion in permitting Father to amend his pleadings. Under rule 15 of the Utah Rules of Civil Procedure, district courts "should freely give permission [for a party to amend its pleadings] when justice requires." Utah R. Civ. P. 15(a)(2). "[District] courts should liberally allow amendments unless the amendments include untimely, unjustified, and prejudicial factors." Daniels v. Gamma West Brachytherapy, LLC , 2009 UT 66, ¶ 58, 221 P.3d 256.

¶36 In her issue statements, Mother faults the district court for granting Father leave to amend "at such a late stage of the case" and "in a way that prejudiced and undermined the reasonable assessments, strategies, and preparations for the case by the attorney for the Mother." Aside from these conclusory assertions in the issue statements, however, Mother's brief does not further address this argument. She does not explain how the amended answer and counterpetition were untimely, unjustified, or prejudicial in light of the continuance of trial, nor does she address any other factors that might weigh against allowing the amendment. With respect to this issue, Mother has failed to carry her burden of persuasion on appeal.

IV. Awarding Custody as a Sanction

¶37 Mother contends the district court abused its discretion by "changing custody of the [child] to the Father, apparently based entirely on the fact that the Mother had not complied with the order to pay some remaining portion of her share of the custody evaluation" and "without taking evidence on the best interests of the child." Mother cites Hogge v. Hogge , 649 P.2d 51 (Utah 1982), which requires a two-step process to modify a custody award. Id. at 53. Although Mother does not provide an in-depth legal analysis, her argument is "sufficient to show an error and why, under applicable authorities, that error must be redressed." Blocker v. Blocker , 2017 UT App 10, ¶ 10, 391 P.3d 1051 ; see also State v. Lucero , 2002 UT App 135, ¶ 13, 47 P.3d 107 ("To permit meaningful appellate review, briefs must comply with the briefing requirements sufficiently to enable us to understand what particular errors were allegedly made, where in the record those errors can be found, and why, under applicable authorities, those errors are material ones necessitating reversal or other relief." (quotation simplified) ).

¶38 Utah law requires courts to make the following two findings of fact before modifying a child custody order: (1) there has been a material change in the circumstances upon which the earlier order was based, and (2) a change in custody is in the best interests of the child. See Utah Code Ann. § 30-3-10.4(2) (LexisNexis Supp. 2017). This two-step approach was first established by the Utah Supreme Court in Hogge and later codified. 649 P.2d at 54.

¶39 Strong public policy reasons support the adoption of the Hogge test. Stable custody arrangements are critical to a child's proper development. The presumption is that "custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed." Becker v. Becker , 694 P.2d 608, 610 (Utah 1984). The two-step procedure "allows courts to monitor the best interests of children and especially to provide stability to children by protecting them from 'ping-pong' custody awards." Wright v. Wright , 941 P.2d 646, 651 (Utah Ct. App. 1997).

¶40 "The important public policy to have courts ensure that a child's best interests will be met before transferring custody of the child applies in all cases involving a change in a child's custody." Taylor v. Elison , 2011 UT App 272, ¶ 22, 263 P.3d 448 (quotation simplified). A district court cannot avoid making these findings by modifying custody arrangements as a sanction. See Wright , 941 P.2d at 652 ; see also Blanco v. Blanco , 129 Nev. 723, 311 P.3d 1170, 1175 (2013) ("[A] court may not use a change of custody as a sword to punish parental misconduct, such as refusal to obey lawful court orders, because the child's best interest is paramount in such custody decisions."); Fenton v. Webb , 705 N.W.2d 323, 327 (Iowa Ct. App. 2005) (holding that the district court abused its discretion in determining custody by entering a default judgment without "evidence to support the custody change").

¶41 In Wright , this court reversed a judgment by default that transferred custody of the parties' child without making the required findings. 941 P.2d at 652. The district court found that the mother was at fault for failing to respond to the father's discovery requests and that sanctions were justified under rule 37 of the Utah Rules of Civil Procedure. Id . at 647. The court struck the mother's answer and counterpetition for custody, entered the mother's default on the father's petition for custody, and entered a judgment transferring custody of the child from mother to father. Id . at 647.

¶42 On appeal, this court held that the court acted within its discretion in ordering rule 37 discovery sanctions against the mother and "striking the [m]other's answers and counterpetition and entering default," id . at 650, but "abused its discretion by modifying the child custody order because it failed to first take evidence and make the necessary findings," id. at 652. This court held that the important public policy considerations underlying the Hogge test "apply just as much to cases involving judgments by default as to cases involving a litigated dispute decided upon the merits." Id. at 651-52. Accordingly, "before a [district] court may enter a judgment by default that transfers custody of a child, the trial court must take evidence and then make findings that a substantial change of circumstances has occurred and that transferring custody of the child is in the child's best interests." Id.

¶43 In this case, the court entered judgment by default and modified custody based solely on Mother's failure to pay her share of the custody evaluator's fee. Although the written findings of fact and conclusions of law, drafted by Father's attorney, purported to reflect factual findings regarding a substantial change of circumstances and the best interests of the child, the court did not hear any evidence on which those findings could be based. Father contends the district court considered the custody evaluator's recommendation, but the evaluator had not submitted a report or testified before the district court. The parties' agree that the evaluation was "not favorable" to Mother, but this fact did not provide a sufficient basis on which to assess the child's best interests. By modifying the custody arrangement without taking evidence and making its own assessment regarding the circumstances and best interests of the child, the court exceeded its discretion.

¶44 The remaining question is whether the court acted within its discretion in striking Mother's petition. Our review of this issue is impeded by the district court's failure to specify the authority it was invoking to impose sanctions. Without knowing the applicable context, we cannot determine what findings, if any, the court was required to make to support the imposition of sanctions.

For instance, "before a district court may impose discovery sanctions under rule 37, the court must find on the part of the noncomplying party willfulness, bad faith, or fault." Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC , 2016 UT App 121, ¶ 14, 378 P.3d 109 (quotation simplified). Similarly, while a court has inherent authority to impose contempt sanctions, "a finding of contempt is proper only when the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so." LD III LLC v. Davis , 2016 UT App 206, ¶ 13, 385 P.3d 689 (quotation simplified).

¶45 Here, a finding, based on evidence, that Mother was able to pay the evaluator but nonetheless refused to comply with the court's order may well have supported the imposition of sanctions, but the district court made no such finding. Consequently, we vacate the imposition of sanctions in its entirety but without prejudice to the district court's prerogative to impose appropriate sanctions on a sound, articulated basis, short of modifying custody without conducting the Hogge test.

V. Attorney Fees

¶46 Finally, Mother argues that the court failed to consider the required factors when awarding Father his attorney fees. Father argues that this court lacks jurisdiction to consider this issue because Mother filed her notice of appeal before entry of the order setting the amount of attorney fees. Mother does not contest the reasonableness of the amount of the award but only the initial ruling that Father was entitled to attorney fees. Because we have elected to treat this as an interlocutory appeal from the modified divorce decree, we have jurisdiction to review the rulings made in that order, including the conclusion that Father was "to be awarded his costs and attorney fees."

¶47 Generally, "attorney fees are awardable only if authorized by statute or by contract." Dahl v. Dahl , 2015 UT 79, ¶ 168, --- P.3d ---- (quotation simplified). In divorce cases, Utah Code section 30-3-3(1) permits a court to award attorney fees and costs "to enable the [receiving] party to prosecute or defend the action." Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). To justify such an award, the court must make specific findings regarding "the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees." Dahl , 2015 UT 79, ¶ 168, --- P.3d ---- (quotation simplified); see also Utah R. Civ. P. 102(b) (listing findings required to grant costs and fees under Utah Code section 30-3-3(1) ). "Failure to consider these factors is grounds for reversal on the fee issue." Taft v. Taft , 2016 UT App 135, ¶ 87, 379 P.3d 890 (quotation simplified).

¶48 On the other hand, where attorney fees are awarded as a sanction, " section 30-3-3 and its requirements are not implicated." Liston v. Liston , 2011 UT App 433, ¶ 26, 269 P.3d 169. A district court may "award attorney fees or other costs in a situation where one party has been uncooperative and failed to comply with discovery requests and court orders." Goggin v. Goggin , 2013 UT 16, ¶ 32, 299 P.3d 1079. Such awards are designed to compensate the receiving party for the expense incurred as a result of the sanctioned party's misconduct. Id. ¶ 36. A district court's "authority to impose an award of fees as a sanction against a party who has been obstructive or contemptuous is derived from several statutes and common law doctrines," including the contempt statute, court rules, and the court's equitable and inherent powers. Id . The source of authority determines what factual findings, if any, the court is required to make before imposing sanctions.

¶49 Here, the court did not identify the legal basis for the award of attorney fees. If the court intended to award fees under section 30-3-3(1), it did not make the required findings regarding Father's financial need or Mother's ability to pay. If the court intended to award attorney fees as a sanction, it did not identify the authority on which the sanctions were based or the conduct that would merit such sanctions. Given the lack of findings to support an attorney fee award on either ground, we vacate the award without prejudice to the district court entertaining renewed motions for attorney fees on remand.

CONCLUSION

¶50 We reverse the imposition of sanctions and vacate the order modifying the decree of divorce. We remand for further proceedings consistent with this opinion.

      Mother claimed that she had fired her former attorney because he misrepresented to the court that she was willfully refusing to pay. Mother explained:
      It's the other attorney communicating [to] you otherwise, that I was not going to pay, and it's not my fault that I got incompetent counsel communicating [to] you other than what I communicated [to] him. That's why I'm here, Your Honor, communicating to you what my intent is. I'm not refusing to pay [the evaluator]. I will pay [the evaluator]. I am trying to get the money ... [s]o I can pay [the evaluator] all the amount.

      The sanction sought by Father was to strike Mother's pleadings. Although the court had verbally ordered Mother's answer stricken, Mother had not answered Father's counterpetition, and thus there was no answer to strike. Instead, the court struck Mother's petition to modify.

      Neither the order setting the award of attorney fees or the amended judgment is part of the record on appeal.

      McQuarrie 's holding that ProMax still applies to pre-judgment motions for attorney fees appears to be in tension with the advisory committee's notes on the 2016 amendments. The committee notes state that the amendments were part of a coordinated effort to "effectively overturn ProMax " to "protect the appellate rights of parties and avoid the cost of premature appeals." Utah R. Civ. P. 58A advisory committee notes on 2016 amendments. However, advisory committee notes "are not law" and "cannot override the terms of the rules themselves." In re Larsen , 2016 UT 26, ¶ 31, 379 P.3d 1209 (addressing advisory committee notes to the Utah Rules of Professional Conduct); see also RJW Media Inc. v. Heath , 2017 UT App 34, ¶ 22, 392 P.3d 956 (noting that the advisory committee notes to the Utah Rules of Civil Procedure "offer persuasive, but not binding, interpretative guidance for the rule"). If rule 4(b)(1)(F) was intended to apply whenever the only issue left to be decided is the calculation of attorney fees, limiting the rule's application to a "motion or claim for attorney fees under rule 73 of the Utah Rules of Civil Procedure" was overly restrictive. See McQuarrie v. McQuarrie , 2017 UT App 209, ¶ 4, 407 P.3d 1096 (per curiam).


author: CHRISTIANSEN FORSTER, Judge:

text:
    STATE of Utah, Appellee, v. David Anthony RICKS, Appellant.
    No. 20160894-CA
    Court of Appeals of Utah.
    Filed September 27, 2018
    Scott L. Wiggins, Salt Lake City, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 David Anthony Ricks appeals his conviction for forcible sexual abuse, a second degree felony. He argues that his constitutional right to the effective assistance of counsel was violated because his trial counsel failed to request an instruction regarding a lesser included offense of assault. We affirm.

BACKGROUND

¶2 One evening, Ricks and his girlfriend (Girlfriend) began arguing in the bathroom of the home they shared with Ricks's mother. The couple disagreed about whether Girlfriend had been using drugs, and Ricks was looking around the bathroom for drugs and a needle he suspected Girlfriend was using. To prove to Ricks that she was not hiding anything, Girlfriend disrobed.

¶3 As Girlfriend sat naked on the bathtub ledge, Ricks took a pair of metal tweezers and "tried to rip [her] nipple off." Ricks "picked forcefully" at Girlfriend's nipple, lacerating it and causing Girlfriend pain. Both Ricks and Girlfriend later told an officer that Girlfriend had bit him on the nipple a few months earlier, causing it to bleed.

¶4 Ricks left the room after the tweezing incident, while Girlfriend dressed. Once dressed, Girlfriend joined Ricks in another room and the two started arguing with each other again. During the argument, Ricks hit her in the head and face five or six times and in the thigh once. Ricks's mother heard Girlfriend screaming, and when she entered the room she saw Ricks hitting Girlfriend in the face. Girlfriend told Ricks's mother to call the police, so Ricks's mother grabbed her keys and cell phone and ran out of the home. After his mother left, Ricks threw a large plastic mug at Girlfriend's face, splitting her cheek open. Ricks then ran after his mother.

¶5 Ricks caught up with his mother in the front yard, grabbed her arm, and tried to take away her phone. A neighbor saw Ricks and his mother fall to the ground and ran over to help. By the time the neighbor got there, Ricks had already picked his mother up from the ground. The neighbor tried in vain to "pry [Ricks's] arms from [his mother]." Ricks finally got the cell phone away from his mother and let go of her. Realizing that another neighbor had already called the police, Ricks said, "Thanks, Mom," and threw his mother's cell phone onto the ground, breaking it into two pieces.

¶6 The State charged Ricks with one count of forcible sexual abuse, two counts of assault, one count of criminal mischief, and one count of damage or interruption of a communication device. The forcible sexual abuse count and the first assault count related to Ricks's interactions with Girlfriend, and the remaining counts related to the incident with his mother.

¶7 During trial, Ricks contested only the forcible sexual abuse charge. During his opening statement, Ricks's trial counsel stated, "Did he assault her? Yes, he did." "But," counsel argued, "this is not ... forcible sexual abuse." And during closing argument, trial counsel stated, "Is that an assault? Good grief, yes, and there is a charge of assault, domestic violence in here." Trial counsel requested and received a jury instruction on sexual battery as a lesser included offense of forcible sexual abuse. However, trial counsel did not request an instruction on assault as a lesser included offense of forcible sexual abuse. The jury convicted Ricks as charged.

¶8 Ricks asked trial counsel about filing an appeal, and trial counsel stated that he would visit Ricks to discuss the issue. Trial counsel never visited Ricks, however, and the time to appeal passed. Ricks later moved to reinstate the time to file an appeal, and the trial court ultimately granted his motion. Ricks timely appealed.

ISSUE AND STANDARD OF REVIEW

¶9 Ricks contends that his trial counsel rendered ineffective assistance by failing to request a lesser-included-offense instruction for assault on the forcible sexual abuse count. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

¶10 To demonstrate ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense-"that is, a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial." State v. Horvath , 2018 UT App 165, ¶ 30, 436 P.3d 191 (quotation simplified); see also Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

¶11 "Because both deficient performance and resulting prejudice are requisite elements of an ineffective assistance of counsel claim, a failure to prove either element defeats the claim." State v. Hards , 2015 UT App 42, ¶ 18, 345 P.3d 769 ; see also Strickland , 466 U.S. at 697, 104 S.Ct. 2052. Moreover, "[a] court need not review the deficient performance element before examining the prejudice element." State v. Ramos , 2018 UT App 161, ¶ 25, 428 P.3d 334. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Id. (quotation simplified).

¶12 Ricks argues that trial counsel performed deficiently by failing to request that the trial court instruct the jury on assault as a lesser included offense of forcible sexual abuse. A defendant is entitled to such an instruction where (1) "the charged offense and the lesser included offense have overlapping statutory elements" and (2) "the evidence 'provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.' " State v. Powell , 2007 UT 9, ¶ 24, 154 P.3d 788 (quoting State v. Baker , 671 P.2d 152, 159 (Utah 1983) ). We assume that Ricks was entitled to an instruction on assault as a lesser included offense of forcible sexual abuse. However, we need not decide whether trial counsel's failure to request the instruction was deficient or if there was a reasonable strategic basis for that decision, because we conclude that Ricks has not demonstrated that he was prejudiced by his counsel's performance.

¶13 There is no reasonable probability that the jury would have acquitted Ricks of forcible sexual abuse and convicted him of assault if it had been given that option. Forcible sexual abuse and assault both "involve offensive touching" and "are distinguished by the reason for the touching." State v. Jones , 878 P.2d 1175, 1177 (Utah Ct. App. 1994). "Forcible sexual abuse requires an 'intent' to cause substantial emotional or bodily pain or an 'intent' to arouse or gratify sexual desire." Id. In contrast, "assault requires either an intentional, knowing, or reckless attempt or threat to cause, or an act that does cause, bodily injury." Id. at 1177-78.

¶14 The State acknowledges that it conceded below "that Ricks did not act with the 'intent to arouse or gratify' a sexual desire." (Quoting Utah Code Ann. § 76-5-404(1) (LexisNexis 2017).) Accordingly, to prove Ricks guilty of forcible sexual abuse, the State had to establish that Ricks acted "with intent to cause substantial emotional or bodily pain." See id. As the State correctly observes, "the test is not whether Ricks inflicted substantial bodily pain. It's whether he intended to." (Emphasis added.) Thus, "[t]he sole dispute at trial was Ricks's intent when he pinched and lacerated [Girlfriend's] nipple with metal tweezers."

¶15 Intent is seldom capable of direct proof. Thus, "it is well established that intent can be proven by circumstantial evidence." State v. Whitaker , 2016 UT App 104, ¶ 13, 374 P.3d 56 (quotation simplified). "Intent may be inferred from the actions of the defendant or from surrounding circumstances." Id. (quotation simplified).

¶16 Here, Girlfriend testified that Ricks touched her nipple with the metal tweezers "[j]ust once." She initially testified that it was "painful" when Ricks did so and that she "probably" said "something not pleasant" to him. But on cross-examination, she stated that she elbowed Ricks because he had "just tried to rip [her] nipple off with [the] tweezers" and that she was "pretty upset by that." Girlfriend also recalled telling police that Ricks had "picked forcefully" at her nipple. A picture shown at trial demonstrated that Ricks squeezed Girlfriend's nipple with the metal tweezers hard enough to lacerate it. These actions indicate that Ricks intended to cause Girlfriend substantial bodily pain.

¶17 Looking at the surrounding circumstances, the evidence also demonstrates that within minutes of picking forcefully at and lacerating Girlfriend's nipple, Ricks hit her in the face, head, and thigh. He also threw a large plastic mug at Girlfriend hard enough to split her cheek. A neighbor testified that "it was all bloody" under Girlfriend's eye. The jury viewed pictures of Girlfriend's face, but one of the responding officers testified that the pictures did not fully show the extent of the swelling. The officer testified: "[H]er face was puffy and swollen and it was very bruised on her forehead, on her nose and the left side of her face was bloody." We agree with the State that "Ricks's overall aggression toward [Girlfriend] ... strongly suggest[s] that he intended to cause substantial bodily pain when he pinched and lacerated [Girlfriend's] nipple with metal tweezers."

¶18 But even if the jury had concluded that Ricks did not intend to cause Girlfriend substantial bodily pain and acquitted him of forcible sexual abuse, there is still no reasonable probability that the jury would have convicted him of assault. Ricks requested and received a lesser-included-offense instruction on sexual battery, a class A misdemeanor. See Utah Code Ann. § 76-9-702.1(3) (LexisNexis 2012). Thus, even if the jury had been given a lesser included offense instruction on class B misdemeanor assault, to convict Ricks of assault the jury would have been required to first acquit Ricks of both forcible sexual abuse and sexual battery. Pursuant to Utah Code section 76-9-702.1, "[a] person is guilty of sexual battery if the person ... intentionally touches, whether or not through clothing, ... the breast of a female person, and the actor's conduct is under circumstances the actor knows or should know will likely cause affront or alarm to the person touched." Id. § 76-9-702.1(1).

¶19 Here, the evidence demonstrates that Ricks intentionally touched Girlfriend's breast when he squeezed and lacerated her nipple with a pair of metal tweezers. Girlfriend did not consent to Ricks's actions-she testified that Ricks did not ask her permission or give her any warning before he touched her nipple with the tweezers and that his doing so surprised her. See generally State v. LoPrinzi , 2014 UT App 256, ¶ 20, 338 P.3d 253 (observing that "the affront or alarm language [in the sexual battery statute] must implicate a lack of consent"). The evidence also demonstrates that Ricks knew or should have known that squeezing Girlfriend's nipple with metal tweezers hard enough to lacerate it would "likely cause affront or alarm" to Girlfriend. See Utah Code Ann. § 76-9-702.1(1). Based on the foregoing evidence, we conclude that there is no reasonable probability that the jury would have acquitted Ricks of sexual battery and instead convicted him of assault.

¶20 We conclude that Ricks was not prejudiced by his counsel's failure to request a lesser-included-offense instruction on assault because the evidence strongly supports Ricks's conviction for forcible sexual abuse and there is no reasonable probability that the jury would have acquitted Ricks of sexual battery. More specifically, we are not convinced that, but for counsel's failure to request a lesser-included-offense instruction on assault, "the result of the proceeding would have been different." See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "And because both deficient performance and resulting prejudice are requisite elements in a successful ineffective-assistance-of-counsel claim," Ricks's failure to demonstrate prejudice "necessarily defeats his claim." See State v. Hull , 2017 UT App 233, ¶ 21, 414 P.3d 526.

CONCLUSION

¶21 Ricks has not demonstrated that he was prejudiced by his trial counsel's failure to request a lesser-included-offense instruction on assault. We therefore conclude that trial counsel's failure to request such an instruction did not violate Ricks's constitutional right to the effective assistance of counsel.

¶22 Affirmed.

      Girlfriend could not later recall if she disrobed on her own initiative or at Ricks's insistence.

      In a separate but related case, the State charged Ricks with witness tampering because he allegedly asked his mother not to come to court and testify against him. Prior to trial in this case, Ricks rejected two proposed plea deals for global resolution of both cases. Under the first proposed deal, Ricks would have pleaded guilty to witness tampering, two counts of assault, and damage to or interruption of a communication device, and the State would have dismissed the forcible sexual abuse and criminal mischief charges. The second proposed deal involved reducing the forcible sexual abuse charge to a third-degree felony or changing it to a class A misdemeanor sexual battery charge. On the eve of trial, Ricks also rejected the State's renewal of its first plea offer.

      In a one sentence footnote, Ricks further asserts that his ineffective-assistance analysis regarding the lesser included offense of assault "also applies to the lesser included offense of aggravated assault, which is set forth in Utah Code Ann. § 76-5-103." Because this argument is inadequately briefed, we do not discuss it further. See generally Utah R. App. P. 24(a)(8).

      This court has previously determined that assault is a lesser included offense of forcible sexual abuse. State v. Jones , 878 P.2d 1175, 1177-78 (Utah Ct. App. 1994).

      "A person commits forcible sexual abuse if the victim is 14 years of age or older and, under circumstances not amounting to rape, object rape, sodomy, or attempted rape or sodomy, the actor ... touches the breast of a female, ... with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, without the consent of the other, regardless of the sex of any participant." Utah Code Ann. § 76-5-404(1) (LexisNexis 2012).

      Assault is defined, in relevant part, as "an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another." Id. § 76-5-102(1)(c).


text:
    STATE of Utah, Appellee, v. William Monroe LAWSON, Appellant.
    No. 20170614-CA
    Court of Appeals of Utah.
    Filed September 27, 2018
    Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant
    Sean D. Reyes and Marian Decker, Salt Lake City, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   HAGEN, Judge:

¶1 William Monroe Lawson appeals the district court's denial of his motion to correct an illegal sentence pursuant to rule 22(e) of the Utah Rules of Criminal Procedure. He argues that his sentence of five years to life exceeded the maximum penalty for the offense to which he pled guilty. Because we lack an adequate record to determine whether the sentence was illegal, we affirm.

¶2 On June 4, 2001, Lawson pled guilty to an amended information charging him with aggravated sexual abuse of a child. Sexual abuse of a child is a second degree felony punishable by a prison term of one-to-fifteen years unless certain aggravating circumstances are "charged and admitted or found true." Utah Code Ann. § 76-5-404.1(3) (Michie 1996). Those aggravating factors include, among other things, that the offender was previously convicted of a "sexual offense" or "occupied a position of special trust in relation to the victim." Id. §§ 76-5-404.1(3)(e), -404.1(3)(h). Aggravated sexual abuse of a child is a first degree felony punishable by an indeterminate prison term of five years to life.

¶3 In the original information, the State alleged as an aggravating factor that Lawson had a prior conviction for a sexual offense. Id. § 76-5-404.1(3)(e). If Lawson had been convicted as charged, the prior conviction would have triggered a mandatory prison term of three years to run consecutively with the five-years-to-life sentence for aggravated sexual abuse. Id. § 76-3-407.

¶4 But as part of a written plea agreement, Lawson agreed to plead guilty to aggravated sexual abuse of a child in exchange for the State's agreement to "amend the information/charge and replace the language regarding a previous conviction with the language that [he] occupied a position of special trust in regards to the victim. This takes away the minimum mandatory sentence for a repeat sex offense." The minute entry from the change of plea hearing reflects that the information was "amended by interlineation by adding that the defendant occupied a special trust position," and the amended information in the record reflects that change. In the written plea agreement, Lawson admitted that all the "elements" listed were true. The list of elements included the admission that Lawson "held a position of special trust in relation to the victim, i.e., stepfather."

¶5 However, when the offense occurred in 1996, the law provided that a "stepparent ... is not a person occupying a position of special trust." Id. § 76-5-404.1(3)(h). Because, as a matter of law, a stepparent did not qualify as a person in a position of special trust, Lawson argues that he did not admit the elements of aggravated sexual abuse of a child. Therefore, he argues, his sentence of five years to life is illegal because it exceeds the maximum penalty for the offense he admitted, a second degree felony of nonaggravated sexual abuse of a child.

¶6 Under rule 22(e), a motion to correct a sentence that exceeds the statutorily authorized maximums may be filed at any time. Utah R. Crim. P. 22(e). The rule "allows an appellate court to vacate the illegal sentence without first remanding the case to the trial court, even if the matter was never raised before." State v. Candedo , 2010 UT 32, ¶ 9, 232 P.3d 1008 (quotation simplified). Because normal preservation rules do not apply, " rule 22(e) claims must be narrowly circumscribed to prevent abuse." Id. (quotation simplified). In particular, " rule 22(e) presupposes a valid conviction and therefore cannot be used as a veiled attempt to challenge the underlying conviction by challenging the sentence." Id. (quotation simplified).

¶7 The State argues that the error alleged by Lawson goes to the validity of his plea and conviction, not the legality of the sentence, and therefore is not cognizable under rule 22(e). The district court agreed with the State and characterized Lawson's motion to correct an illegal sentence as "a motion to withdraw his plea in disguise." Although the relief Lawson seeks would have the practical effect of vacating his first degree felony conviction, we have granted similar relief under rule 22(e) in the past. For instance, in State v. Patience , 944 P.2d 381 (Utah Ct. App. 1997), the defendant pled guilty to three counts of attempted forgery, third degree felonies, as part of a plea deal. Id. at 383. Unbeknownst to the parties and the court, the forgery statute had been amended, making attempted forgery a class A misdemeanor. Id. On appeal, the State conceded that the sentence was illegal but argued that it was entitled to rescind the plea agreement based on mutual mistake. Id. at 384-85. This court held that "the State bore the risk of the mistake as to the law in effect at the time the parties entered into the plea agreement" and that the defendant was entitled to resentencing for a class A misdemeanor. Id. at 388 ; see also State v. Sinju , 1999 UT App 150U, 1999 WL 33244811, para. 9 (vacating a second degree felony conviction, entering judgment for a third degree felony, and remanding for sentencing where the State conceded that there was no factual basis for enhancement).

¶8 If the record in this case established that there had been a similar mistake of law, relief under rule 22(e) would be appropriate. At the time of sentencing in this case, Utah Code section 76-5-404.1(h) had been amended to include stepparents as persons in a position of special trust. See Utah Code Ann. § 76-5-404.1 (LexisNexis 1998). If the parties and the court mistakenly applied the version of the statute in effect at the time of sentencing, rather than the version in effect at the time of the offense, that mistake of law would support resentencing under rule 22(e). See State v. Bryant , 2012 UT App 264, ¶¶ 15-16, 290 P.3d 33 (holding that ex post facto application of an amended statute in effect at the time of sentencing produced an illegal sentence that must be vacated).

¶9 But the record does not establish that such a mistake occurred. We know from the plea agreement that Lawson agreed to plead to the position-of-special-trust aggravator to avoid the additional three-year mandatory sentence that would have been triggered if he had pled guilty to the prior-conviction aggravator. Lawson was entitled to waive any challenge to the ex post facto application of the law to receive the benefit of the plea agreement. See Jones v. State , 2007 UT App 283U, 2007 WL 2391006, para. 7 (per curiam) (rejecting postconviction relief where the defendant waived any ex post facto challenge to the application of law in effect at the time of sentencing to receive the benefit of his plea bargain). We do not know if this occurred, because we do not have the transcript of the plea colloquy.

¶10 A record of the June 4, 2001 hearing is no longer available and Lawson has not offered any evidence of what the missing transcript would show. If "an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below." State v. Pritchett , 2003 UT 24, ¶ 13, 69 P.3d 1278. As a result, "[w]hen crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court." Id. (citing State v. Linden , 761 P.2d 1386, 1388 (Utah 1988) (per curiam) ); see also Gines v. Edwards , 2017 UT App 47, ¶ 21, 397 P.3d 612 ("It is well established that in the absence of a transcript of a crucial proceeding, we will presume that a trial court's decision is reasonable, supported by the evidence, and did not constitute an abuse of discretion.").

¶11 A defendant can rebut this presumption by offering credible and reliable evidence of what occurred during the proceedings. For example, in State v. Stewart , 2018 UT App 151, 436 P.3d 129, even though the sentencing transcript was unavailable, the defendant testified that, during the sentencing hearing, the district court had not informed him of his right to counsel on appeal. Id. ¶¶ 21-22. In the absence of an adverse credibility finding by the district court, the defendant's uncontroverted testimony established by a preponderance of the evidence that he was not informed of his appellate rights at the time of sentencing. Id. ¶ 22. In contrast, Lawson did not request an evidentiary hearing before the district court nor did he submit an affidavit in support of his motion to correct an illegal sentence. Once on appeal, he did not seek to reconstruct the change of plea hearing pursuant to rule 11(g) of the Utah Rules of Appellate Procedure. See Utah R. App. P. 11(g) (providing a mechanism to reconstruct the record when a transcript of the proceeding is unavailable).

¶12 Without a transcript of the plea colloquy or other evidence of what occurred below, we cannot determine whether Lawson's sentence is illegal due to a mistake of law or whether Lawson deliberately waived any challenge to the application of the amended statute in exchange for a more lenient plea deal. In the absence of an adequate record, we presume the district court did not impose an illegal sentence.

¶13 Affirmed.

      The current version of the statute defines "position of special trust" to include "a stepparent." Utah Code Ann. § 76-5-404.1 (LexisNexis Supp. 2018).


author: Korsmo, J.

text:
    STATE of Washington, Respondent, v. N.B. Appellant.
    No. 35513-6-III
    Court of Appeals of Washington, Division 3.
    FILED MARCH 7, 2019
    Dana M. Nelson, Nielsen Broman & Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
    Joseph Anthony Brusic, Tamara Ann Hanlon, Yakima County Prosecutor's Office, 128 N 2nd St. Rm. 329, Yakima, WA, 98901-2621, for Respondent.
    PUBLISHED OPINION

      To protect the privacy interests of N.B., a minor, we use initials throughout this opinion. Gen. Court Order for Court of Appeals, In re Changes to Case Title , (Wash. Ct. App. May 25, 2017), http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders=atc.genorders_orddisp & ordnumber=2017_002 & div=III.

   Korsmo, J.

¶1 N.B. appeals from a juvenile court adjudication for first degree child molestation, arguing that the trial judge's comments concerning the victim amounted to improper evidence against him that he could not confront. The court's reasoning for finding the victim credible was not the equivalent of providing evidence against a defendant. We affirm the disposition.

FACTS

¶2 N.B., age 15 at the time of filing, was accused of first degree child rape, first degree child molestation, and communicating with a minor for immoral purposes. The victim, S.J. , was age 8 at the time of the offense and 9 at trial. The parents of the two children had developed a romantic relationship and moved in together, along with their children. Each adult had two children-one boy and one girl. The two girls roomed together, as did the two boys.

¶3 About six months after the families moved in together, S.J. reported an incident of touching to her brother, who convinced her to report it to their father. S.J. did so. The matter was then referred to the police and S.J. was interviewed by an officer and then a child forensic interviewer. The interviewer, Lisette Allan, described S.J. as a very bright girl who was more articulate than most children her age. The recording of the interview was admitted at trial.

¶4 S.J. described the incident. She was watching television when N.B. came into the room, removed his pants and underwear, and exposed himself to her. He put a condom on and began rubbing himself up and down. He told S.J. how a man and woman have sex. He left the room briefly before returning. He started touching her private area through her pants, pushing his finger on her. She told him to stop, and he eventually did so after a "painful five minutes."

¶5 S.J. and those to whom she disclosed the incident constituted the six witnesses called by the State. N.B. testified in his own behalf, as did his mother. He denied the accusation. The defense presented, through cross-examination of some prosecution witnesses and through direct examination, several reasons why S.J. had motives to lie. The case was then argued to the bench on the competing theories of the child's credibility.

¶6 The trial judge acquitted N.B. on the rape and communication counts, but determined that he had committed child molestation. With respect to the credibility argument, the court noted that there were discrepancies in the child's reports, but stated that it "is not unusual in these types of cases, quite frankly." Report of Proceedings (RP) at 258. The court further noted:

In fact, whether it be in case law or actually having a case heard in front of me, I've never seen a case where the child gave consistent account to various interviewers. And, again, I think it's a reasonable inference to be drawn that reasons for that can include the recency of the interview to the incident, the child's comfort level with an interviewer. It can include embellishments like I certainly believe happened during the defense interview that Mr. Cahn conducted in September of 2016 with [S.J.], which also could be indicative of a made up story or not. Again, I think that's why it is so important to look for things that would be hard for a child to make up or it could be based on other exposure. In those types of-again, in this case, those types of details I have outlined as the compelling nature for me.

RP at 259-60.

¶7 Prior to sentencing, the defense moved for a new trial, arguing both that the evidence was insufficient and that the court erroneously took judicial notice that discrepancies were common in these cases. The court denied the motion and specified particular sensory details in the testimony that it had found convincing and affirmed that the decision was based solely on evidence presented at trial.

¶8 The court committed N.B. to the Juvenile Rehabilitation Administration for a period of 15-36 weeks. He timely appealed to this court. A panel considered the case without argument.

ANALYSIS

¶9 This appeal presents three issues, which we combine into two. We first consider N.B.'s challenges to the judge's comments, noted above, which he contends were improper judicial notice that prevented him from confronting the witness against him. We then turn to his sufficiency of the evidence argument.

Judge's Comments

¶10 N.B. argues that the court's comments about child disclosure discrepancies being common constituted taking judicial notice of outside evidence. They did not.

¶11 Washington judges are permitted to take judicial notice of "adjudicative facts." ER 201(a). Such a fact "must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." ER 201(b). The court can take judicial notice on its own and at any stage of proceedings. ER 201(c), (f). A trial court's ruling on a question of taking judicial notice presents a question of law reviewed de novo. State v. Kunze , 97 Wash. App. 832, 988 P.2d 977 (1999).

¶12 Contrary to N.B.'s argument, ER 201 is not implicated in this case. The court did not take judicial notice of an "adjudicative fact." Instead, the veteran trial judge was simply explaining that in her experience, as well as in the case law, disclosure discrepancies by young children were not uncommon. The court did not use this alleged "fact" as evidence to profile either the victim or the defendant and infer which one was telling the truth, nor did the court use this "fact" as a basis for finding that an element of the crime was proved. This comment was not evidence, nor was it used in an evidentiary manner.

¶13 Rather, the trial judge simply explained her reasoning for not being swayed by the defense argument that the child's story was inconsistent. This was a trial judge making a ruling based on the evidence and argument before her. Addressing a similar argument in a case where the trial judge rejected a party's argument by making reference to his own personal experiences, Division One of this court once noted that when "the judge is a trier of fact, illustrative comments phrased in the first person are not improper unless they evidence bias, prejudice, or other impropriety." Fernando v. Nieswandt , 87 Wash. App. 103, 109, 940 P.2d 1380 (1997).

¶14 This is just a manifestation of the fact that judicial decisions are informed by the judge's personal experiences. Judges are not blank slates operating outside of their life experiences.

Our constitutional democracy is dependent upon an independent and informed judiciary. Our judiciary benefits from and relies upon judges who have studied and become learned in the law and whose personal experiences have taught them a practical understanding of the world we live in and how people live, work, and interact with the world around them.
We do not believe the legislature intended that judges leave their knowledge and understanding of the world behind and enter the courtroom with blank minds. Judges are not expected to leave their common sense behind. Nor do we believe the legislature expected judges to hold hearings on whether fire is hot or water is wet. We prize judges for their knowledge, most of which is obtained outside of the courtroom. Within the statutory and constitutional guidelines, judges may exercise their discretion to give a fair and just sentence.

State v. Grayson , 154 Wash.2d 333, 339, 111 P.3d 1183 (2005) ; accord In re Estate of Hayes , 185 Wash. App. 567, 599-600, 342 P.3d 1161 (2015).

¶15 Accordingly, we reject N.B.'s attempt to recast the trial court's explanation of its decision as admission of improper evidence. His judicial notice argument is without merit, as is the derivative argument that his confrontation rights also were violated by admission of improper "evidence."

Sufficiency of the Evidence

¶16 N.B. also argues that the evidence was insufficient because S.J. was not credible. This court does not judge credibility. The facts found by the trial court amply supported its judgment.

¶17 We review this argument under well settled principles of law. "Following a bench trial, appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law." State v. Homan , 181 Wash.2d 102, 105-06, 330 P.3d 182 (2014) (citing State v. Stevenson , 128 Wash. App. 179, 193, 114 P.3d 699 (2005) ). " 'Substantial evidence' is evidence sufficient to persuade a fair-minded person of the truth of the asserted premise." Id . at 106, 330 P.3d 182. In reviewing insufficiency claims, the appellant necessarily admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas , 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). Finally, this court must defer to the finder of fact in resolving conflicting evidence and credibility determinations. State v. Camarillo , 115 Wash.2d 60, 71, 794 P.2d 850 (1990).

¶18 This approach is the specific application of the evidentiary sufficiency standard dictated by the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia , 443 U.S. 307, 317-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Jackson stated the test for evidentiary sufficiency under the federal constitution to be "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

Id . at 319, 99 S.Ct. 2781. Washington promptly adopted this standard in State v. Green , 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980) (plurality opinion); id . at 235, 616 P.2d 628 (Utter, C.J., concurring); accord State v. Farnsworth , 185 Wash.2d 768, 775, 374 P.3d 1152 (2016).

¶19 Under Jackson, the test is could the trier of fact find the element(s) proved. Whether the trial judge should have done so is not our concern, since the trial judge is the person who decides which witnesses are credible and which are not. For that reason, the argument N.B. raises goes to the weight to be given the testimony by the trier of fact. He may believe that S.J. should not have been believed over him, but the trial judge decided otherwise. She was convinced by the testimony of S.J., finding that more believable than the denial by N.B.

¶20 The testimony supported the bench verdict. S.J. was under the age of 12 at the time of the incident, N.B. was more than three years older than S.J., the two were not married, he made prolonged sexual contact with the intimate area of S.J., and did so for his own sexual gratification. All elements of the crime were satisfied. RCW 9A.44.083 ; RCW 9A.44.010(2).

¶21 The evidence supported the bench verdict. It was sufficient.

¶22 Affirmed.

WE CONCUR:

Siddoway, J.

Lawrence-Berrey, C.J.

      To protect the privacy interests of S.J., a minor, we use initials throughout this opinion. Gen. Court Order for Court of Appeals, In re the Use of Initials or Pseudonyms for Child Victims or Child Witnesses , (Wash. Ct. App. June 18, 2012), http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp & ordnumber=2017_002 & div=III.

      A fourth claim of cumulative error is not addressed due to the lack of multiple errors.