State v. Strain , 252 Utah Adv. Rep. 35 ( 1994 )

BENCH, Judge

(concurring in the result):

Defendant has failed to demonstrate that the evidence at trial was so “inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime_” State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993). I therefore concur in the rejection of defendant’s challenge to the sufficiency of the evidence.

Although I concur in affirming the conviction, I disagree with the majority’s attempt to resolve defendant’s claims of ineffective assistance of counsel. The record is silent on why trial counsel conducted the defense as he did. For example, we can only guess why counsel did not cross examine some of the prosecution’s witnesses. Ordinarily, we cannot definitively address an ineffective assistance claim raised for the first time on appeal. State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991); State v. Garrett, 849 P.2d 578, 580 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993); Salt Lake City v. Grotepas, 874 P.2d 136 (Utah App.) (Bench, J., dissenting), cert. granted, 883 P.2d 1359 (Utah 1994).

In view of the silent record, defendant is not precluded from raising his ineffective assistance claims in a post-conviction proceeding. “Where an issue going to the fundamental fairness of a trial involves nonrec-ord events, Rule 65B may be the only means whereby a defendant can obtain a fair adjudication of the issue.” Gardner v. Holden, No. 910500, slip op. at 9, 1994 WL 636448 (Utah Nov. 10, 1994). I would not attempt to address defendant’s ineffective assistance claims on a silent record.