State v. Stringham ( 2013 )

2013 UT App 15_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
CARL DEAN STRINGHAM,
Defendant and Appellant.
Per Curiam Decision
No. 20110155‐CA
Filed January 25, 2013
Eighth District, Vernal Department
The Honorable Edwin T. Peterson
No. 101800086
Ryan B. Evershed and William L. Reynolds,
Attorneys for Appellant
John E. Swallow and Michelle M. Young,
Attorneys for Appellee
Before JUDGES DAVIS, MCHUGH, and VOROS.
PER CURIAM:
¶1 Carl Dean Stringham appeals his conviction after a jury trial
for operating or being in actual physical control of a vehicle
without an ignition interlock system, a class B misdemeanor.
Stringham argues that the evidence was insufficient to support the
conviction. Because the issue was not preserved for appeal, he
contends that either the district court committed plain error by
failing to dismiss the charge or that trial counsel was ineffective in
failing to raise an insufficiency of the evidence claim in the district
court. In this appeal, Stringham does not challenge his convictions
State v. Stringham
for driving under the influence of alcohol, a third degree felony, or
being an alcohol restricted driver, a class B misdemeanor. We
affirm.
¶2 “[A]s a general rule, a defendant must raise the sufficiency
of the evidence by proper motion or objection to preserve the issue
for appeal.” State v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346. Never‐
theless, a “trial court plainly errs if it submits the case to the jury
and thus fails to discharge a defendant when the insufficiency of
the evidence is apparent to the court.” Id. ¶ 17. “[T]o establish plain
error, a defendant must demonstrate first that the evidence was
insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental that
the trial court erred in submitting the case to the jury.” Id. When
the sufficiency of the evidence is challenged, an appellate court
reviews “the evidence and all inferences drawn therefrom in a light
most favorable to the verdict.” Id. ¶ 18.
¶3 The arresting officer testified that he determined from
running a computer check on Stringham’s driver license that he
was required to have an interlock device installed on his vehicle
before it could be operated, “which was not in the vehicle.” The
officer testified that an ignition interlock device is a device that
“has to register that the subject has no alcohol in his system before”
the vehicle will start. When the arresting officer was asked whether
the vehicle operated by Stringham was equipped with such an
interlock device, the officer stated, “Yes, when I first approached
I did notice one, and then after I found this information, and later
during the impound of the vehicle, there was no interlock in the
vehicle.” The officer testified that when he asked Stringham about
the ignition interlock device restriction, Stringham stated that he
was off probation and therefore could consume alcohol. At trial,
Stringham did not testify that he had an ignition interlock device
installed in the vehicle and instead testified that he believed he was
no longer required to have an ignition interlock device on his
vehicle because he was no longer on probation from a prior case.
The jury could reasonably infer from the officer’s testimony that
20110155‐CA 2 2013 UT App 15State v. Stringham
the officer was mistaken in his initial belief that an interlock device
was in the vehicle and determined that such a device was, in fact,
not installed in the vehicle. Stringham’s claim to the officer and his
testimony at trial to the effect that he believed he was not required
to have an ignition interlock device installed on his vehicle also
supported a reasonable inference that no such device was installed
on the vehicle. The evidence that Stringham was operating the
vehicle when he was stopped was uncontroverted. If an ignition
interlock device had been properly installed, Stringham could not
have started the vehicle in his intoxicated state.
¶4 Stringham essentially claims that the officer’s testimony was
ambiguous and therefore raised a reasonable doubt about whether
there was an ignition interlock device in the vehicle. “To determine
whether there was sufficient evidence to convict a defendant, we
do not examine whether we believe that the evidence at trial
established guilt beyond a reasonable doubt,” and we instead
determine whether the evidence was “sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.” Id. (citations and internal
quotation marks omitted). Given the evidence and the inferences
reasonably drawn therefrom, there was sufficient evidence to
support the conviction. It follows that Stringham has not demon‐
strated that there was an insufficiency of the evidence that was so
obvious and fundamental that the district court plainly erred in not
dismissing the charge before submitting it to the jury.
¶5 Stringham also has not met his burden of establishing
ineffective assistance of counsel. To demonstrate ineffective
assistance of counsel, a defendant must show both “that counsel’s
performance was so deficient as to fall below an objective standard
of reasonableness” and “that but for counsel’s deficient perfor‐
mance there is a reasonable probability that the outcome of the trial
would have been different.“ State v. Smith, 909 P.2d 236, 243 (Utah
1995). “The failure of counsel to make motions or objections which
would be futile if raised does not constitute ineffective assistance.”
20110155‐CA 3 2013 UT App 15State v. Stringham
State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52. Because the evidence
and reasonable inferences to be drawn therefrom were sufficient to
support the jury’s verdict, trial counsel did not render deficient
performance by failing to make a motion for a directed verdict or
otherwise raising a challenge to the sufficiency of the evidence.
Furthermore, Stringham cannot demonstrate that he was preju‐
diced by a failure to challenge the sufficiency of the evidence.
¶6 Accordingly, we affirm the conviction.
____________________
20110155‐CA 4 2013 UT App 15