2015 UT App 76

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

MARVA ROLENA GERBER,

Defendant and Appellant.

Memorandum Decision

No. 20130091-CA

Filed April 2, 2015

Fifth District Court, St. George Department

The Honorable G. Rand Beacham

No. 101500267

A. Jason Velez, Attorney for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum

Decision, in which JUDGE JOHN A. PEARCE concurred. JUDGE J.

FREDERIC VOROS JR. concurred in part and concurred in the result

in part, with opinion.

CHRISTIANSEN, Judge:

¶1 Marva Rolena Gerber appeals her aggravated-arson

conviction following a jury trial. Gerber argues on appeal that her

trial counsel rendered constitutionally ineffective assistance, that

the trial court failed to properly instruct the jury on circumstantial

evidence, and that the trial court erred in denying her motion for

a new trial. We affirm.
State v. Gerber

¶2 Gerber was charged with aggravated arson after the vacant

house she had contracted to buy was set on fire. At trial, the State 1

argued that Gerber was responsible for the arson but relied on

circumstantial evidence to prove Gerber’s guilt. As part of its casein-chief, the State introduced evidence that on the day the house

caught fire, Gerber told a detective that she had been at the house

shortly before the time investigators believed the fire started.

However, when police officers again interviewed Gerber

approximately six weeks later, she denied ever having been at the

house that morning. The State argued at trial that this inconsistency

was critical circumstantial evidence of Gerber’s guilt. Gerber

claimed that her inconsistent statements were caused by a transient

ischemic attack, or “mini stroke,” that she allegedly suffered

roughly one week before the fire. Gerber’s trial counsel did not

introduce an independent expert to testify about Gerber’s mental

condition after the alleged mini stroke, but did elicit testimony

from Gerber’s foster daughter that the alleged mini stroke caused

Gerber to be “foggy-headed.”

¶3 The trial court instructed the jury regarding the State’s

burden to prove the defendant guilty beyond a reasonable doubt

using a standard instruction that did not mention circumstantial

evidence (Jury Instruction 8). Jury Instruction 8 was not discussed

by the court and counsel before its inclusion in the final

instructions, and Gerber’s trial counsel did not object to this

instruction or any other proposed jury instruction. During closing

arguments, Gerber’s trial counsel described to the jury the

reasonable-doubt standard contained in Jury Instruction 8 and

argued that the State had failed to meet its burden. The jury found

Gerber guilty of aggravated arson.

¶4 Before sentencing, Gerber retained new counsel and moved

for a new trial based on the alleged deficient performance of her

1. “On appeal, we recite the facts from the record in the light most

favorable to the jury’s verdict.” State v. Lewis, 2014 UT App 241, ¶ 2

n.1, 337 P.3d 1053 (citation and internal quotation marks omitted).

20130091-CA 2 2015 UT App 76
State v. Gerber

trial counsel. Gerber argued that trial counsel rendered ineffective

assistance because he did not call a rebuttal witness to contradict

the State’s fire experts and did not call a medical expert to testify

about Gerber’s alleged mini stroke and how it may have

contributed to her inconsistent statements. Gerber did not identify

what witnesses her trial counsel should have called or what

testimony those witnesses would have provided at trial. At the

hearing on the motion for a new trial, Gerber’s counsel highlighted

the circumstantial nature of the case but did not argue that Jury

Instruction 8 was incorrect.

¶5 At the end of the hearing, the trial court found that Gerber

had made “no showing that any rebuttal expert even exists or

evidence as to what he or she would be able to testify” and that

there was no showing “that any medical expert would testify

[about] an effect” from Gerber’s medical history to explain her

inconsistent statements. The trial court denied the motion for new

trial, concluding that Gerber had not identified any failing of her

trial counsel that would justify a new trial.2

¶6 Gerber raises two issues on appeal. First, she argues that the

trial court failed to properly instruct the jury given the

circumstantial nature of the State’s case against her. Second, she

argues that her trial counsel rendered constitutionally ineffective

assistance and that the trial court erred in denying her request for

a new trial on that basis.

¶7 First, we decline to reach Gerber’s argument that the trial

court failed to properly instruct the jury regarding circumstantial

evidence, because Gerber failed to preserve this issue for appellate

review. “As a general rule, claims not raised before the trial court

may not be raised on appeal.” State v. Cruz, 2005 UT 45, ¶ 33, 122

P.3d 543 (citation and internal quotation marks omitted). “Unless

2. The trial court also denied the motion for a new trial on other

grounds not raised by Gerber in this appeal.

20130091-CA 3 2015 UT App 76
State v. Gerber

a party objects to an instruction orthe failure to give an instruction,

the instruction may not be assigned as error except to avoid a

manifest injustice.” Utah R. Crim. P. 19(e). Gerber did not object to

Jury Instruction 8 during trial or at the post-trial hearing on her

motion for a new trial, and Gerber has not argued any exception to

the preservation rule. As a result, we decline to address this

argument.3

¶8 Second, Gerber argues that her trial counsel was

constitutionally ineffective and that the trial court erred in not

granting her a new trial on that basis. The State correctly points out

that Gerber failed to properly cite any record evidence supporting

her arguments on appeal, as our rules of appellate procedure

require. See Utah R. App. P. 24(a)(9). However, because we are able

to evaluate the merits of Gerber’s argument notwithstanding these

deficiencies in her briefing, we exercise our discretion to address

her argument that her trial counsel rendered ineffective assistance.

¶9 To establishconstitutionally ineffective assistance of counsel,

an appellant “must show that counsel’sperformance wasdeficient”

and “that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the

deficient-performance element of the ineffective-assistance test, “a

defendant must identify the acts or omissions which, under the

circumstances, show that counsel’s representation fell below an

objective standard of reasonableness” and overcome the reviewing

court’s presumption that “the challenged action might be

considered sound trial strategy.” State v. Templin, 805 P.2d 182, 186

(Utah 1990) (citations and internal quotation marks omitted). If a

defendant fails to meet either part of the ineffective-assistance test,

the court may conclude its inquiry and deny relief. Strickland, 466

U.S. at 697.

3. We also reject Gerber’s argument that the trial court should have

granted her a new trial on the basis of the alleged error in

instructing the jury. Gerber did not raise this issue in her motion

for a new trial. Thus, the claim is unpreserved. See supra ¶ 7.

20130091-CA 4 2015 UT App 76
State v. Gerber

¶10 Here, Gerber argues that her trial counsel performed

deficiently by failing to sufficiently investigate the underlying facts

in the case, because he (1) did not present any expert witness to

explain the medical issues that Gerber claims caused her

inconsistent statements to law enforcement and (2) failed to

produce an independent fire expert to contradict the State’s experts

regarding the cause of the fire. Gerber compares her case to State 4

v. Hales, in which the Utah Supreme Court reversed a murder

conviction because defense counselfailedto adequately investigate

the key evidence in the case—CT scans of the victim’s brain

injuries. 2007 UT 14, ¶ 3, 152 P.3d 321. Gerber claims that in Hales,

“the defendant was convicted based on his trial [attorneys’] failure

to obtain expert testimony” to counter the prosecution’s

interpretation of the CT scans.

¶11 We disagree with Gerber’s interpretation of Hales and her

characterization of her trial counsel’s actions in this case. In Hales,

the defendant was charged with murder based on allegations that

he violently shook a child who later died from severe brain injuries.

Id. ¶ 1. The prosecution presented CT scans of the child’s brain

4. In her reply brief, Gerber argues that her trial counsel was

ineffective for failing to object to Jury Instruction 8. Generally,

arguments “raised for the first time in the reply brief” will not be

considered. See Schefski ex rel. Coleman v. Stevens, 2000 UT 98, ¶ 9,

17 P.3d 1122. Gerber did not properly raise this argument in her

opening brief. In arguing that the trial court erred in providing Jury

Instruction 8, Gerber stated only that “trial counsel should have, at

the very least, made a motion to include the heightened care

standard in the jury instructions, which, once again reflects poorly

on his effectiveness in terms of his representation of [Gerber] at

trial.” But Gerber did not analyze her counsel’s failure to object

under Strickland v. Washington, and did not demonstrate that this

failure to object constituted objectively deficient performance that

prejudiced her defense. 466 U.S. 668, 687 (1984). Because Gerber

failed to properly raise this issue in her opening brief, we decline

to address it.

20130091-CA 5 2015 UT App 76
State v. Gerber

injuries and produced an expert who opined that the child suffered

from shaken baby syndrome. Id. ¶ 28. Other evidence in the case

indicated that the injuries occurred during the time when the

defendant was the child’s sole caretaker. Id. ¶¶ 6–10. The defendant

moved for a new trial, claiming that “his trial attorneys rendered

ineffective assistance because they failed to investigate the CT

scans.” Id. ¶ 30. The defendant identified record evidence showing

that his trial attorneys did not acquire the CT scans depicting the

victim’s brain injuries until the morning of trial and that they never

obtained a qualified expert to review the scans. Id. ¶ 71. In support

5

of his motion, the defendant provided an affidavit from a medical

expert whose opinion directly contradicted the prosecution’s

expert’s interpretation of the scans. Id. ¶ 31. The trial court denied

the motion, and the defendant appealed. Id. ¶ 33.

¶12 On appeal, the Utah Supreme Court held that it was the lack

of investigation that rendered the defendant’s trial attorneys’

assistance ineffective, not the ultimate strategic decision to not

provide expert testimony. Id. ¶ 83. The court stated that although

the trial attorneys’ strategic decisions at trial might have been

reasonable once a full investigation had been conducted, the

attorneys “‘were not in a position to make a reasonable strategic

choice’ . . . ‘because the investigation supporting their choice was

unreasonable.’” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 536

(2003)). 

¶13 “While the failure toinvestigate apossible avenue of defense

may constitute ineffective assistance, the failure to actually employ

such a defense . . . for strategic reasons . . . does not.” State v.

Heimuli, 2012 UT App 69, ¶ 6 n.2, 274 P.3d 1005. Here, Gerber has

5. In Hales, the defendant’s trial attorneys relied on the theory that

a near-miss car accident caused the child’s injuries. State v. Hales,

2007 UT 14, ¶ 29, 152 P.3d 321. The attorneys offered an expert

opinion to support this theory, but it was sharply rebutted by the

prosecution’s expert, who had thoroughly reviewed the CT scans.

Id. ¶¶ 28–29.

20130091-CA 6 2015 UT App 76
State v. Gerber

not shown that her trial counsel failed to adequately investigate

any avenue of defense. Gerber claims that her trial counsel

inadequately investigated the case because he did not present a

rebuttal expert or a medical expert to explain Gerber’s inconsistent

statements to law enforcement authorities. But she fails to explain

how the decision not to call such witnesses at trial demonstrates

that trial counsel failed to perform a reasonable investigation

before making that decision.

¶14 Further, Gerber’s complaints that her trial counsel failed to

present experts are based entirely on speculation. “It should go

without saying that the absence of evidence cannot overcome the

‘strong presumption that counsel’s conduct [fell] within the wide

range of reasonable professional assistance.’” Burt v. Titlow, 134 S.

Ct. 10, 17 (2013) (alteration in original) (quoting Strickland v.

Washington, 466 U.S. 668, 689 (1984)). A defendant “cannot meet

[her] burden by merely pointing out what counsel did not do; [she]

must bring forth the evidence that would have been available in the

absence of counsel’s deficient performance.” State v. Lee, 2014 UT

App 4, ¶ 12, 318 P.3d 1164. Gerber faults her trial counsel for failing

to present a medical expert to provide a medical explanation for

Gerber’s inconsistent statements. But Gerber has not identified any

medical expert who would have testified on her behalf at trial or

set forth that expert’s expected testimony in the record. Gerber’s 6

assertion that trial counsel performed deficiently by failing to

produce such an expert therefore remains “entirely speculative.”

See State v. Parker, 2013 UT App 21, ¶ 6, 295 P.3d 712 (concluding

that the defendant’s ineffective assistance of counsel claims were

“entirely speculative” because the record included no potential

defense expert testimony and the defendant had failed to request

a remand to make a record of any such testimony). 

6. Gerber did not move this court to remand this case to

supplement the record pursuant to rule 23B. See Utah R. App. P.

23B(a).

20130091-CA 7 2015 UT App 76
State v. Gerber

¶15 Gerber’s claim that her trial counsel failed to adequately

investigate the underlying facts of the case because he did not

produce an independent fire expert to contradict the testimony of

the State’s fire experts, is also based on speculation. Without

identifying a specific expert who would have testified in her

defense and setting forth in the record that expert’s expected

testimony, Gerber’s claims that her trial counsel performed

deficiently by failing to introduce hypothetical experts cannot

succeed because her proof remains “speculative” rather than “a

demonstrable reality.” See State v. Munguia, 2011 UT 5, ¶ 30, 253

P.3d 1082 (citation and internal quotation marks omitted). Gerber’s

conclusory allegations do not persuade us that absent the alleged

errors, the verdict in her case would have been different.

¶16 Last, Gerber argues that her trial counsel was

constitutionally ineffective for failing to present a reasonable

hypothesis of innocence to rebut the State’s theory of the case.

Gerber grounds this argument in our supreme court’s observation

that “[w]here the only evidence presented against the defendant is

circumstantial, the evidence supporting a convictionmust preclude

every reasonable hypothesis of innocence.” State v. Hill, 727 P.2d

221, 222 (Utah 1986) (plurality opinion). According to Gerber,

because the State’s case was based entirely on circumstantial

evidence, her trial counsel had a “duty” to present a reasonable

hypothesis of innocence. However, Gerber fails to cite any legal

authority that imposes this “duty” on defense counsel. Ratherthan

being a duty upon defense counsel, the reasonable hypothesis of

innocence is merely one way “of expressing th[e] necessary burden

of proof” and our caselaw does not even require the jury be

instructed on this concept in every circumstantial evidence case.

State v. Eagle, 611 P.2d 1211, 1213 (Utah 1980); see, e.g., State v.

Hansen, 710 P.2d 182, 183 (Utah 1985) (reiterating that a defendant

is not entitled to an instruction on a reasonable hypothesis of

innocence “where the jury is instructed that the State must prove

a defendant’s guilt beyond a reasonable doubt”); see also Holland v.

United States, 348 U.S. 121, 139–40 (1954) (explaining that “where

the jury is properly instructed on the standards for reasonable

20130091-CA 8 2015 UT App 76
State v. Gerber

doubt,” an instruction on a reasonable hypothesis of innocence is

“confusing and incorrect”). “The prosecution’s burden of proof in

any criminal case, whether the evidence be direct or circumstantial,

. . . is that of beyond a reasonable doubt.” State v. Burton, 642 P.2d

716, 719 (Utah 1982) (citation and internal quotation marks

omitted). Thus, as long as jury instructions clearly inform a jury of

the proof-beyond-a-reasonable-doubt standard, no instruction on

“reasonable hypothesis of innocence” need be presented, see id.,

and nothing in our caselaw imposes on defense counsel a duty to

pursue a defense based on this concept. Accordingly, we conclude

that Gerber has failed to demonstrate that her trial counsel

performed deficiently in any respect. 

¶17 We conclude that Gerber was not deprived of the

constitutionally effective assistance of counsel. Gerber has also

failed to preserve her claim that the jury was incorrectly instructed.

We therefore affirm the trial court’s denial of Gerber’s motion for

a new trial.

VOROS, Judge (concurring in part and concurring in the result in

part):

¶18 I concur in the majority except for paragraphs 8 through 15.

I see no need to distinguish State v. Hales, 2007 UT 14, 152 P.3d 321,

where Gerber’s opening brief offers virtually no record support for

her ineffective assistance of counsel claim. As the State rightly

notes, Gerber’s inadequate investigation claim rests on one broad

citation to the entire record on appeal along with just three specific

citations to the record—one to the prosecutor’s opening statement,

one to a minute entry for review hearing, and one to a minute entry

on motion for new trial. With such sparse references to the record,

none of which even relate to counsel’s pre-trial investigations,

Gerber’s claim cannot overcome the “strong presumption” that

trial counsel made reasonable investigations or reasonably

determinedthat further investigations were unnecessary.Strickland

v. Washington, 466 U.S. 668, 689, 691 (1984).

20130091-CA 9 2015 UT App 76
State v. Gerber

¶19 An inadequately briefed claim is by definition insufficient to

discharge an appellant’s burden to demonstrate trial court error.”

Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 37,

335 P.3d 885 (citation omitted). To be adequately briefed, an

argument must contain citations to the “parts of the record relied

on.” Utah R. App. P. 24(a)(9). Because Gerber’s inadequate

investigation claim contains no relevant citations to the parts of the

record relied on, it is inadequately briefed and consequently

insufficient to discharge her burden on appeal.

¶20 I would therefore reject Gerber’s claim on this basis and

otherwise join the majority in affirming Gerber’s convictions. 

20130091-CA 10 2015 UT App 76