2015 UT App 76

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

S TAT E OF U TAH

, Plainti ff and Appellee,

v. M AR VA R OL E NA G E R

B E R , Defendan t and Appellant.

Memor andumDeci si on No. 20130091-CA Filed Apri l 2, 2015

Fifth Di stric t Co urt, S t. Geor ge Depart ment The Honorable G. Rand Beacham

No. 101500267
A. Jason Velez, Atto rney fo r Appellant Sean D. Reyes and Deborah L. Bulkeley, At tor neys

for Appellee

J UD G E M I C H E L E M. C H RI S T I AN S E N authore d thi s Memorandum Deci si on, i n whi ch J UD G EJ O H N A. P E ARC Econcu rr ed. J UD G E J. F RE D E RI C V OR

O S J R . concu rr ed in part and concurred inthe re sult in part, wi th opini on.

CHRIS TIANSEN, Judge:

¶1 Mar va Rolena Gerber appeals her aggr avat ed-arson convic tion following a jury tr i al. Gerber arg ues on appeal that her tr i al couns el render ed consti tutionally ineffec tive assi stance, that the tr i al court fai led to proper ly instruct the jury on ci rcums tantial evidenc e, a nd that the tr i al court err ed in deny ing her motion for a new trial. We affi rm.State v. Gerber

¶2 Gerber was charged wi th aggr avat ed arson after the vacant house she had contracted to buy was set on fi re. At tr i al, the St ate 1 arg ued tha t Ge r ber was responsible for the arson but relied on ci rcums tantial evidenc e to prov e Gerber’s gui lt. As part of i ts casein-chi ef, the St ate intro duced evidenc e that on the day the house caught fi re, Gerber told a detective that she had been at the house shortly before the tim e inv esti gato rs beli eved the fi re start ed. Howe v e r , when poli ce offi cers again interv i ewed Gerber approx i mately si x weeks later , she deni ed ever havin g been at the h ou s e that mornin g. The St ate arg ued at tr i al that thi s inconsi stency
was cri tic al ci rcums tantial e videnc e of Gerber’s gui lt. Gerber clai med that her inconsi stent statements were caus ed by a tr ansi ent i sch emi c attack, or “mini stro ke,” that she alle g e d ly suffered

ro ug hl y o ne week before the fi re. Gerber’s tr i al couns el di d not intro duce an independent e xper t to testif y about Gerber’s mental condi tion after t he alleged mini stro ke, but di d eli ci t testim ony from G erber ’s foster daughter that the alleged m ini stro ke c aused Gerber t o be “fogg y-headed.”

¶3 The tr i al court instru ct e d the jury reg ardin g the St ate’s burde n to prov e the defendant g ui lty beyond a reasonable doubt using a standard instructi on that di d not menti on cir cu mstant i al evidenc e (Ju ry Instruction 8). Jury Instruction 8 was not di scu ssed by the court a nd co uns el before i ts inclu si on in the final instructi ons, and Gerber’s tr i al couns el di d not object to thi s instructi on or any other propo sed jury instructi on. During closing arg uments, Gerber’s tr i al couns el described to the jury the reasonable-doubt standard contai ned in Jur y I nstr ucti on 8 and arg ued that the St ate had fai led to meet i ts burden. The jury found Gerber g ui lty o f aggr avat ed arson.

¶4 Before sentencing, Gerber ret ained new couns el and moved for a new tr i al base d o n the alleged defi ci ent perfor manc e of her

1. “On appeal, we reci te the facts from the recor d in the li ght most favor able to the jury ’s ver di ct.” State v. Lewis , 2014 UT App 241, ¶ 2 n.1, 337 P.3d 1053 (ci tation and internal quotat i on marks omi tte d).

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

tr i al couns el. Gerber arg ued that tr i al couns el render ed ineffec tive assi stance becau se he di d no t call a rebuttal wi tness to contradic t the St ate’s fi re exper ts and di d not call a medi cal exper t to testif y about Ger be r ’ s alleged mini stro ke and how i t may have contribu ted to her inconsi stent statements. Gerber di d not i denti fy what wi tnesses her tr i al couns el should have called o r what testim ony those wi tnesses would have prov i ded at t r ia l

. At the hearin g on the motion for a new tr i al, Gerber’s couns el hi ghli ghted the ci rcums tantial nature of the case but di d not arg ue that Jury Instruction 8 w as incorre ct.

¶5 At t he end of the hearing, the tr i al court found that Gerber had made “no showing that any rebuttal exper t e ven exis ts or evid e nc e as to what he or she would be able to testif y” and that there was no showing “that any medi cal exper t would testif y [about] an effect” from Gerber’s medi cal hi stor y to explain her inconsi stent statements. The tr i al court deni ed the motion for new tr i al, conclu ding that Gerber had not i denti fi ed any fai ling of her tr i al couns el that would justif y a new trial. 2

¶6 Gerber rais es two i ssu es on appeal. First, she arg ues that the tr i al court fai led to proper ly instru ct t he jury given the ci rcums tantial nature of the St ate’ s ca se again st her. Second, she arg ues that her tr i al counse l r e ndered consti tutionally ineffec tive assi stance and that the tr i al court err ed in denyi ng her request for a new trial on that basi s.
¶7 First, we decline to reach Gerber’s arg ument that t he t r ial court fail ed to pr oper ly in struct the jury reg ardin g ci rcums tantial evidenc e, becau se Gerber fai led to preserv e thi s i ssu e for appellate

rev i ew. “As a general rule, clai ms n ot rais ed before t he trial court may not be r ai sed o n appeal.” State v. Cruz , 2005 UT 45 , ¶ 3 3, 122 P.3d 543 (ci tation and internal quot ation marks o mi tte d). “Unless

2. The tr i al court also deni ed the motion for a ne w tr i al on other gr ounds not rais ed by Gerber in thi s appeal.

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

a party objects to an instructi on or the fai lure to give an instructi on, t he instructi on may not be assi gned as err or except to avo i d a mani fest injusti ce.” Utah R. Crim. P. 19(e). Gerber di d not object to Jury Instruction 8 duri ng t r ial or at the post-tr i al hearin g on her motion for a new tr i al, and Gerber has not arg ued any exception to the preserv ation rule. As a result, we d e cline to address thi s arg ument. 3

¶8 Second, Gerber arg ues that her tr i al co un sel was consti tu t io na l l y ineffec tive and that the tr i al court err ed in not gr anti ng her a new tr i al on that basi s. The St ate corr ectly poin ts out that Gerber fai led to proper ly ci te any recor d evidenc e supp or tin g her arg uments on appeal, as our rules of appe llate procedure require. See Utah R. App. P. 24(a)( 9). However , becau se we are able to evaluate the merits of Gerber’s arg ument notwi thstanding these defi ci enci es in her bri efing, we exer ci se our di screti on to address her arg ument that her tr i al couns el render ed ineffec tive assi stance.

¶9 T o e s ta

b l i s h c on s ti tu tionally ineffe c tive a s s i s tan c e of c oun s e l, an appellant “mus t show that couns e l ’s p e rfor m a n c e w a s d e fi c i e nt” and “that the defi ci ent perfor manc e pr ej ud iced the defense.” Strickland v. Washington , 466 U.S. 6 68, 687 (1984). To sati sfy the defi ci ent-perfor manc e element of the ineffec tive-ass i stance test, “a defendant mus t i denti fy the acts or om iss i ons whi ch, under the ci rcums tances, show that co un se l ’s repr esentation fell below an objective stan d a rd of reasonableness” and ov ercome the rev i ewing court’s presumpti on that “the challen g ed acti on mi ght be consi dered sound tr i al strat egy .” State v. Templin , 805 P.2d 182, 186 (Utah 1990) (ci tations and internal quotat i on marks omi tte d). If a defendant fai ls to meet ei ther part of the ineffec tive-ass i stance test, the courtmay conclu de i ts inqui ry and deny relief

. Strickland, 466 U.S. at697.

3. We also rej ect Gerber’s arg ument that the tr i al court should have gr anted her a new tr i al on the basi s of the allege d e r r or in instructing t he jury

. Gerber di d not rais e thi s i ssu e in her motion for a new tr i al. Thu s, the clai m i s un preserv ed. See su pra ¶ 7.

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

¶10 Here, Ger be r arg ues that her tr i al couns el perfor med defi ci ently by fai ling to suffi ci ently investigate the underlyin g facts in the case, becau se he (1) d i d not present any exper t wi tness to explain the medi cal i ssu es tha t Gerber clai ms caus ed her inconsi stent statements to law enforcement and (2) fa ile d to produce an independent fi re exper t to contradic t the St a te ’s exper ts reg ardin g the cause of the fi re. Gerber compares her case to State 4

v. Hales , in whi ch the Utah Supreme Court rev ersed a murder convic tion becau se defense cou n s e l f a i l e d to a d equately investigate t he k e y evidenc e in the case—CT scan s of the vic tim ’s brai n injuries. 2007 UT 14, ¶ 3, 152 P.3d 321. Gerber clai ms that in Hales , “the defendant was convic ted based on hi s tr i al [atto rneys’] fai lure to obtain e xper t testim ony” to counter the prosecuti on’s interpr etat i on of the CT scans

. ¶11 We di sag r e e wi th Gerber’s interpr etat i on of Hales and her characterizati on of her trial couns el’s acti ons in thi s case. In Hale s, the defendant was charged wi th murder based on allegations that he violently shook a chi ld who later di ed from severe brai n injuries. Id. ¶ 1. The prosecuti on presented CT scan s of the ch ild’s brai n

4. In her reply bri ef, Gerber arg ues that her tr i a l co unsel was ineffec t iv e fo r fai ling to object to Jury Instruction 8. Generally, arg uments “raised for the fi rst tim e in t he reply bri ef” will no t be consi dered. See Schef

ski ex rel. Coleman v. Stevens , 20 0 0 U T 9 8, ¶ 9, 1 7 P.3d 1122. Gerber di d not proper ly rais e thi s arg ument in he r openi ng bri ef. In arg uing that the trial court err ed in prov i ding Jury Instruction 8, Gerber stated only that “tr i al couns el should have, at the ver y least, made a mot io n to inclu de the hei ghtened care standard in the jury instructi ons, whi ch, once again reflects poor ly

on hi s effecti veness in ter ms of hi s r e p r e sent ation of [Gerber] at tr i al.” But Gerber di d not analyze her co un se l ’s fai lure to object under Strickland v. Washington , and di d not demonstrate that thi s fai lure to object consti tuted objectively defi ci ent perfor manc e that prej udi ced her defense. 466 U.S. 668, 687 (1984). Because Gerber fai led to proper ly rais e thi s is sue in her ope nin g br i ef, we decline to addr ess i t.

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

injuries and produced an exper t who opin ed that the chi ld suffered from shaken baby syndrome. Id. ¶ 28. Other evidenc e in the case indi cated that the injuries occurred duri ng the t ime when the d e fendant was the chi ld’s sole caretak er. Id. ¶¶ 6–10. The defe n d a n t

mo v e d fo r a new t rial, clai ming that “hi s t rial att or neys render ed ineffec tive assi stance becau se they fai led to investigate the CT

scan s.” Id. ¶ 30. The defendant i denti fi ed recor d evidenc e showing that hi s tr i al atto rneys di d not acqui re the CT scan s depi cting the vic tim ’s brai n injuries unti l the mornin g of tr i al and that they never obtained a quali fi ed exper t to rev i ew the scan s. Id. ¶ 71. In supp or t 5 of hi s motion, the defendant prov i ded an affi davit from a medi cal exper t whose opin i on di rectly contradic t ed the prosecuti on’s exper t’s interpr etat i on of the scan s. Id. ¶ 31. The tr i al court deni ed the motion, and the defendant appealed. Id. ¶ 33.

¶12 On appeal, the Utah Supreme Court held that i t was the lack of investigation that render ed the d e fe ndant ’s tr i al atto rneys’ assi stance ineffec tive, not the ulti mat e st rat egic deci si on to not prov i de exper t te sti mony. Id. ¶ 83. The court state d that altho ugh the tr i al atto rneys’ strat egic deci si ons at tr i a l mi ght have been reasonable once a full investigati on had been conduct e d, the atto rneys “‘were not in a posi tion to make a reasonable st r a t e g i c choi ce’

. . . ‘becaus e the investigat i on supp or tin g their choic e was unreasonable.’” Id. (quoti ng Wiggins v. Smith , 539 U.S. 510, 536 (2003))

. ¶13 “Whi le the fai lure to inve s ti ga te a p os s i b le avenue of defense may consti tute ineffec tive assi stance, the fai lure to actually employ

such a defense

. . . for str a t e g ic r easons

. . . does not.” State v. Heimu li, 2012 UT App 69, ¶ 6 n.2, 274 P.3d 1005. Here, Gerber has

5. In Hales , the defendant’s tr i al atto rneys relied on the theor y that

a near-mi ss car acci dent caus ed the chi ld’s injuries. State v. Hales , 2007 UT 14, ¶ 29, 152 P.3 d 3 2 1

. The atto rneys offered an exper t opin i on to supp or t this theor y, but i t was sh arply r ebutted by the prosecuti on’s exper t, who had thor oughly rev i ewed the CT scan s. Id. ¶¶ 28–29.

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

not shown that her tr ia l couns el fai led to adequately investigate any avenue of defense. Gerber clai ms that her t r ia l couns el inadequately investigated the case be ca use he di d not present a rebuttal exper t or a medi cal exper t to explain Gerber’s inconsi stent statements to law enforcement authoriti es. But she fai ls to explain how the deci si on not to call such wi tnesse s a t tr i al demonstrate s that t r ia l couns el fai led to perfor m a reasonable investigati on before making that deci si on.
¶14 Furt her, Gerber’s complaints that her tr i al couns el fai led to present exper ts are based entirely on specu lation. “It should go wi thout saying that the absenc e of evidenc e cannot ov ercome the ‘str ong presumpti on that couns el’s conduct [fell] wi thi n t he wi de range of reasonable professi onal assi stance.’” Burt v. Titlow, 134 S. Ct. 10, 17 (2013) (a l t e rat i on in or i gin al) (quoti ng Strickland v. Washington , 466 U.S. 668, 689 (1984))

. A defendant “cannot meet [her] burden by merely poin tin g out what couns el di d not do; [sh e]

mus t bri ng fort h the evidenc e that would have been availab le in the absenc e of couns el’s defi ci ent perfor manc e.” State v. Lee, 2014 UT App 4, ¶ 12, 318 P.3d 1164. Gerber faults her tr i al couns el for fai ling to present a medi cal exper t to prov i de a medi cal explanation for Gerber’s inconsi stent statements. But Gerber has not i denti fi ed any medi cal exper t who would have testifi ed on her behalf at tr i al or set forth t hat exper t’s expected testim ony in t he recor d. Gerber’s 6 asserti on th a t t r i al couns el perfor med defi ci ently by fai ling to produce such an ex p ert there fore remain s “entirely specu lative.” See State v. Parker

, 2013 UT App 21, ¶ 6, 295 P.3d 7 1 2 (conc luding that the defendant’s ineffec tive assi stance of couns el cl ai ms were “e nt ir ely specu lative” becau se the recor d inclu ded no potent i al defense exper t testim ony and t he defendant had f ai led to r equest a remand to mak e a recor d of any such testim ony).

6. Gerber di d no t move thi s court to remand thi s case to supp lement the recor d pursuant to rule 23B. See Utah R. App. P. 23B(a).

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

¶15 Gerber ’ s clai m that her tr i al couns el fai led to adequately investigate the underlyin g fa ct s of the case becau se he di d not produce an independent fi re exper t to c ontr adi ct the testi mony of the St ate’s fi re exper ts, i s also based on sp eculati on. Wi thout i denti fyi ng a speci fi c exper t who would have testifi ed in her defense and setting fort h in the recor d that exper t’s expected testim on y , Ge rber’ s clai ms that her tr i al couns el perfor med defi ci ently by failing to intro duce hypot hetic al exper ts cannot

suc ceed be cause her proo f remain s “specu lative” rat her than “a d e mo nstrable reality.” See State v. Mungui a, 2011 UT 5, ¶ 3 0 , 2 5 3 P.3d 1082 (ci tation and internal quotat i on marks omi tte d). Gerber’s conclu sory allegations do no t per suade u s that absent the alleged

err or s, the ver di ct in her case w ould have been di fferent.

¶16 Last, Ge rber arg ues that her tr i al couns el was consti tutionally ineffec tive for fai ling to present a reasonable hypot hesi s of innocence t o rebut the St ate’s theor y of the case. Gerber gr ounds thi s arg ument in our supreme court’s observat i on that “[w] here the only evidenc e presented again st the defendant i s ci rcums tantial, the evidenc e s u p p or tin g a c onvi c ti on mu st preclude

ever y reasonable hypothesi s of inno ce nc e .” State v. Hill , 727 P.2d 221, 222 (Utah 1986) (plurali ty opin i on). Accordi ng to Gerber, becau se the St ate’s case was based entirely on cir cum stanti al evidenc e, her tr i al couns el had a “duty” to present a reasonable hypot hesis of innocenc e. However , Gerber fai ls to ci te any legal authority that i mposes thi s “duty” on defense couns el. Rather than being a duty upon defense couns el, the reasonable hypot hesi s of innocenc e i s merely one way “of expr essing th[e] necess ary burden of proo f” a nd o ur caselaw does not even require the jury be instructed o n t his concept in ever y ci rcums tantial evidenc e case. State v. E ag l e , 611 P.2d 1211, 1213 (Utah 1980); see, e.g., State v. Hansen , 710 P.2d 182, 183 (Utah 1985) (reiterating that a defendant i s not entitled to an instructi o n o n a reasonable hypot hesi s of innocenc e “where the jury i s ins t ructed that the St ate mus t prov e
a defendant’s gui lt beyond a reasonable doubt”); see also Holland v. United States , 348 U.S. 121, 139–40 (1954) (explaining that “where the j ur y i s proper ly instructed on the standards for reasonable

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

doubt,” an ins tr ucti on on a reasonable hypot hesi s o f innocen ce is “confus ing and incorre ct”). “The prosecuti on’s burden of proo f in any cri minal case, whether the evidenc e be di rect or ci rcums tantial,

. . . i s that of beyond a reasonable doubt.” State v. Burton , 642 P.2d 716, 719 (Utah 1982) (ci tation and interna l quotat i on marks omi tte d). Thus, as long as jury instructi ons clearly inform a jury of the proof-beyond-a-reasonable-doub t standard, no instructi on on “reasonable hypot hesi s of innocenc e” ne e d be presented, see id. , and nothi ng i n our caselaw i mposes on defense counsel a du ty t o pursue a defense based on thi s concept. Accordi ngly, we conclu de that Gerber has fai led to d e mo nstr ate that her tr i al couns el perfor med defi ci ently in any r espect.

¶17 We conclu de that Gerber was not deprived of the consti tutionally effec t ive assi stance of couns el. Gerber has also fai led to preserv e her clai m that the jury was incorre ctly instructed. We ther efore affi rm the t rial c ourt ’s deni al of Gerber’s motion for a new trial.

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

¶18 I concu r in the major i ty except for paragr aphs 8 thro ugh 15. I see no need to di stingui sh State v. Hales , 2007 UT 14, 152 P.3d 321, where Gerber’s openi ng bri ef offers virtually no recor d supp or t for her ineffec tiv e a ssi stance of couns el clai m. As the St ate rightly notes, G erber ’s inadequate investigati on clai m rests on one b ro ad ci tation to the entire recor d on appeal along wi th just three speci fi c ci tations to the recor d—one to the prosecutor ’s opening statement,

one to a minute entry for rev i ew hearin g, and one to a minute entry

on motion for new tr i al. Wi th such sparse refer ences to the recor d,

none o f whi ch even relat e to couns el’s pre-tr i al investigati ons, Gerber’s clai m cannot ov ercome the “stro ng presumpti on” t hat t r i al couns el made reasonable investigati ons or reasonab l y d e te rm in e d th a t further investigati ons were un n e c e s s a ry

. St r ick la nd v. Washington , 466 U.S. 668, 689, 691 (1984).

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

¶19 An inadequately bri efed clai m i s by defini tion insu ffi ci ent to di sch arg e an appellant’s burden to demonstrate tr i al court err or .” Simm ons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 37, 335 P. 3 d 885 (ci tation omi tte d). To be adequately bri efed, an arg ument must contai n citati ons t o the “par ts of the recor d relied on.” Utah R. App. P. 24(a)( 9). Becaus e Gerber ’ s inadequate investigati on clai m contai ns no relev ant ci tations to the parts of the

recor d relied on, i t i s inadequately bri efed and conse q ue nt ly insu ffi ci ent to di sch arg e her burden on appeal.

¶20 I would there fore rej ect Gerber’s clai m on thi s basi s and other wi se join the major i ty in affi rmi ng Gerber’ s convi cti ons.

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