State v. Diviney , 2021 UT App 106 ( 2021 )


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    2021 UT App 106
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    LARRY CHARLES DIVINEY,
    Appellant.
    Opinion
    No. 20190778-CA
    Filed October 7, 2021
    Fifth District Court, Cedar City Department
    The Honorable Keith C. Barnes
    No. 171500731
    Emily Adams, Freyja Johnson, and Cherise M.
    Bacalski, Attorneys for Appellant
    Sean D. Reyes and David A. Simpson, Attorneys
    for Appellee
    JUDGE DAVID N. MORTENSEN authored this Opinion, in which
    JUDGE DIANA HAGEN and SENIOR JUDGE KATE APPLEBY
    concurred.1
    MORTENSEN, Judge:
    ¶1      Shoeless, bloody, emotional, and carrying her small child,
    Ella2 stumbled into a convenience store just after 3:00 a.m. one
    November morning. Soon after, she explained to responding
    police officers that her husband, Larry Charles Diviney, had
    locked her in their basement apartment and beat her with a
    1. Senior Judge Kate Appleby sat by special assignment as
    authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
    2. A pseudonym.
    State v. Diviney
    baseball bat before she was able to collect their child and escape.
    Although Diviney told police a different story—a story that
    involved him inadvertently hitting Ella with the baseball bat
    while fighting with an unidentified home intruder—after trial, a
    jury convicted Diviney of domestic violence in the presence of a
    child, aggravated kidnapping, and aggravated assault. Diviney
    appeals, and we affirm.
    BACKGROUND3
    The Attack
    ¶2      Convinced Ella was cheating on him, Diviney was
    suspicious and angry. And during a weekend trip to Las Vegas
    in the midst of him harboring these beliefs, he punched her in
    the face and forced her to use drugs with him. But the weekend
    was only beginning. After arriving back home, and after Ella had
    put their child to bed, Diviney yelled at her, threw a plate at her,
    broke a Swiffer mop against the cupboards above her head, and
    again punched her in the face. Ella fled to the child’s room,
    where she spent the night listening to Diviney moving about in
    the living room and kitchen.
    ¶3     The next day, Diviney again began yelling at Ella, this
    time in front of their child. So Ella left their apartment, child in
    arm, to visit a nearby park. But Diviney followed, driving past
    the park multiple times. When the November air started getting
    cold, when no one answered the door at her father’s apartment,
    and when the dark of night approached, Ella returned home
    3. “On appeal, we recite the facts from the record in the light
    most favorable to the jury’s verdict and present conflicting
    evidence only as necessary to understand issues raised on
    appeal.” Layton City v. Carr, 
    2014 UT App 227
    , ¶ 2 n.2, 
    336 P.3d 587
     (cleaned up).
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    State v. Diviney
    and, finding herself without a phone or key, broke a window to
    get into their apartment.
    ¶4     When Diviney returned and became infuriated over Ella
    breaking the window, she told him she had no other choice and
    asked him to leave. Diviney left, but only long enough for Ella to
    put their child down for bed, leaving the bedroom door cracked
    open so she could hear the child while she smoked a cigarette.
    Soon, Ella saw Diviney arrive at the apartment carrying a
    baseball bat and she ran outside, screaming for Diviney “not to
    hurt her” and to leave. He left. Ella retreated to their apartment,
    but no sooner had she checked on the still-sleeping child, than
    Diviney returned, bat still in hand.
    ¶5      Diviney insisted to Ella that he returned only to light a
    fire to keep Ella and their child warm, and Ella told him he could
    stay “as long as he didn’t try to talk to her.” After only ten
    minutes, Diviney resumed berating Ella, and she walked up the
    staircase to leave—only to find her way blocked by a locked
    door. From behind her, Ella heard Diviney say “You’re not going
    anywhere.” He then “grabbed her by her hair, pulled her off her
    feet, and dragged her back down the stairs.” Breathless and on
    her knees, Ella tried to stand, but Diviney hit her head with the
    baseball bat. When Ella raised her arms in protection, Diviney
    hit her in the arm. And when Ella tried to stand again, Diviney
    hit her a third time.
    ¶6      In a daze, Ella asked for something to stop the blood now
    flowing from her head. In response, Diviney dragged her by the
    hair saying, “[F]ine, let’s go to the bathroom.” The tissue she
    used to stop the bleeding did not work, but when Ella insisted
    she needed medical care, Diviney slammed the bathroom door,
    telling Ella that she was not “going anywhere,” that she would
    “sit there and talk to” him, and that she had “destroyed [his] life
    and [he was] going to destroy” hers. If she did not answer his
    questions truthfully, he threatened to hit her again and use a
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    State v. Diviney
    meat grinder to break her toes. Diviney interrogated Ella about
    her alleged infidelity, but Ella’s insistent denials only made him
    angrier. Ella recalled that she felt “[e]verything [she] said was
    just wrong” as far as Diviney was concerned. After being hit
    “multiple times again,” Ella played it safe and started to “agree[]
    with him.” Throughout the ordeal, Ella begged to check on their
    child to see if he was “hearing this,” but Diviney refused.
    ¶7     When Diviney finally took Ella out of the bathroom, he
    rebuffed her requests to check on their child and ultimately
    positioned himself (baseball bat in hand) between her and the
    door to the outside. “[Y]ou have to understand,” he said, “only
    one of us is getting out of here alive tonight and it’s not looking
    good for you.” Diviney became angrier and angrier, and when
    Ella asked if she could call someone, Diviney taunted, “[G]o, call
    someone,” but “[y]ou’ll be dead and I’ll be gone before they get
    here.” Suddenly, to Ella’s relief, Diviney (who had a history of
    heart problems) “leaned over, grabbed his chest,” sat down, and
    “passed out.”
    ¶8     Ella snuck past Diviney, collected their child, unlocked
    the door, and ran into the night without even pausing to put on
    shoes. She was visibly distressed when she stumbled into a gas
    station just after 3:00 a.m., bruises on her face, arms, leg, shin,
    and hip, and bleeding from the gash on her head. After
    responding police finally succeeded in calming her, she detailed
    much of what has been described.
    ¶9     Diviney, on his part, never reported Ella or their child
    missing, and when police visited the apartment, Diviney was
    nowhere to be found. The door was locked, but after forcing
    their way in, police found many things that corroborated Ella’s
    account. When police apprehended Diviney, he told a different
    story. According to Diviney, on that day he had come home
    from work to find Ella “making solicitation with the guy across
    the street,” and when he went into the apartment, another man
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    State v. Diviney
    was in the bathroom. The man allegedly attacked Diviney with a
    baseball bat, hitting him “in the nose and knocking out some of
    his teeth.” When Diviney got the bat away from the intruder, he
    swung at the intruder’s head, but the intruder ducked, and
    Diviney “accidentally” hit Ella in the head. According to
    Diviney, when he offered to take Ella to the hospital, she
    refused, so Diviney went to bed, and when he woke, Ella and
    their child were gone.
    ¶10 Diviney swore this all resulted from Ella’s involvement in
    an ongoing prostitution ring. He alleged that she would leave
    “the [apartment] to go catch clients” and “used a coded system
    of lights to communicate with the rest of the ring.” Diviney
    reported that a minor “irritation” on his nose was actually a
    broken nose that resulted from being hit in the face with the bat,
    and although he initially denied knowing why the Swiffer mop
    was broken, he ultimately admitted that he had stomped on it
    and threw it because he was angry that Ella was “sleeping
    around with these guys.” Diviney maintained that Ella’s
    accusations were false and that she just wanted him in jail.
    ¶11 The State charged Diviney with aggravated kidnapping,
    aggravated assault, and commission of domestic violence in the
    presence of a child.
    The Trial
    ¶12 At trial, defense counsel began by telling the jury that “at
    the core” of the conflict was Ella’s “deep-seated fear . . . that she
    was going to lose her child.” This fear was “driven largely
    because [of] her history with drug use when the child was born,”
    a history that caused Child Protective Services to become
    involved because she had “admitted to using drugs during her
    pregnancy.” The idea behind this theory was that Ella had
    framed Diviney for domestic violence to prevent him from
    reporting her drug use to Child Protective Services. But later,
    Diviney chose not to testify, a choice that resulted in a lack of
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    State v. Diviney
    “evidence that [Ella] actually was using drugs at the time of the
    crime.” So defense counsel adjusted the approach, focusing
    primarily on Ella’s credibility, while leaving the door open to the
    drug-based theory.
    ¶13 While cross-examining Ella, defense counsel asked her
    about allegations that, in the months leading up to the abuse,
    Diviney found a methamphetamine pipe in Ella’s belongings
    and later confronted her when he found a syringe. Ella denied
    the allegations. When Ella testified that she did not “do drugs
    close in time to this incident,” defense counsel doubled down on
    the opportunity to question Ella’s credibility and to offer
    evidence of her drug use to support the defense’s original theory
    of the case. Defense counsel elicited testimony that she admitted
    to taking drugs during the Las Vegas trip, but Ella averred that
    “the only reason [she] did drugs is because [Diviney] threatened
    [her] to do the drugs.” When pressed on the issue and asked
    whether her testimony was that “the only time [she had] ever
    done drugs was that day,” she responded, “No, I’m saying
    there’s this incident that was those days. That was the only, for
    months and months that was the only time.”
    ¶14 Ella denied that she had obtained drugs on the Las Vegas
    trip, that she solicited men to obtain drugs for her, that drugs
    were the true basis for the arguments leading up to the abuse,
    that she had ever “been in any fear of losing” her child, and that
    she feared Diviney would report her to Child Protective Services
    for using drugs. As to using drugs during the Las Vegas trip,
    Ella testified,
    I am absolutely ashamed . . . just ashamed
    completely. It’s not something that I do and so. It
    was just that, I mean, what I’m trying to say is that
    what happened, it only, even though it was only
    one time, I was ashamed of it. And so it was very
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    State v. Diviney
    hard for me to bring it to you and talk to you. But I
    wanted to be 100 percent honest, so.
    Defense counsel contended that this testimony had “opened the
    door to where [he] should [have been] able to impeach her”
    because she had testified that the incident in which Diviney
    allegedly forced her to use drugs was “[t]he only time” she had
    used drugs. Specifically, defense counsel proposed introducing
    criminal records from 2013 regarding “possession of psychotic
    chemicals,” as well as medical records from that May showing a
    positive methamphetamine test. Having limited his earlier
    references to drugs during his examination of Ella, defense
    counsel argued,
    I was happy to confine myself. And I think the
    [c]ourt was fair in its rulings. But now she’s laid
    out something that’s completely not true and I
    think we have the right to walk through that door.
    And if she admits to the things I ask her, then so be
    it. We’ll move on. I don’t think we can go much
    further than that. But if she denies it, I would be
    asking that . . . we’d be able to introduce either the
    criminal history or the medical records to
    substantiate that [it] is, in fact, not true.
    The State countered by arguing that Ella meant only that this
    was “the only time that [she] took drugs in the timeframe of
    [the] Las Vegas” trip. But the court agreed with defense counsel
    that the testimony “could have been confusing” and thus,
    allowed defense counsel “to get a clarification from her.”
    ¶15 After conferring with the court and the State about the
    language necessary to confine the clarification to that narrow
    issue, defense counsel ultimately asked Ella, “Are you saying
    that [the Las Vegas trip was] the only time that you have used
    illegal drugs?” To which Ella responded, “In my lifetime? No.”
    20190778-CA                     7               
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    State v. Diviney
    In the end, defense counsel dropped the initial theory of the case,
    stating in closing that
    [Ella is] lying, . . . she’s making it up. And frankly, I
    don’t know why and you don’t know why. But we
    don’t have to prove that. Some people like
    attention. Some people exaggerate. Some people, I
    don’t know, have ulterior motives. I don’t know,
    you don’t know why she may be lying, why she
    may be saying these things.
    Not once during closing argument did defense counsel suggest
    that drug use provided Ella’s motive to lie about the abuse.
    ¶16 But before the trial ended, Diviney moved for a directed
    verdict on the count of domestic violence in the presence of a
    child. Diviney argued that the elements for that charge required
    that “there has to be at least some possibility that [a child] can,
    not just a possibility, but that the child is essentially a perceiving
    witness [of the domestic violence] in some way, shape, or form”
    and that this element could not be met in this case because the
    child was asleep. The trial court informed Diviney that it was
    “not aware” of “anything that suggests that if a child is present
    physically but is asleep that would make it that it would be
    improper,” and Diviney conceded that his argument relied on
    the statutory language. The State pointed out that the statutory
    language defining “in the presence of a child,” as referenced in
    the jury instructions, meant “having knowledge that a child is
    present and may hear, or may see, or hear an act of domestic
    violence.” (Emphasis added.) The trial court focused on the
    operative word “may” and denied the motion, determining that
    “the State ha[d] produced believable evidence . . . of the
    elements of the crime charged.”
    ¶17    Diviney appeals his subsequent convictions.
    20190778-CA                       8                
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    State v. Diviney
    ISSUES AND STANDARDS OF REVIEW
    ¶18 Diviney raises three issues for our consideration. First, he
    contends the trial court erred in denying his motion for a
    directed verdict on the charge for domestic abuse in a child’s
    presence. “We review the [trial] court’s denial of a motion for
    directed verdict for correctness,” and where Diviney “challenges
    the denial . . . based on the sufficiency of the evidence, the
    applicable standard of review is highly deferential,” and we
    “will uphold the [trial] court’s denial if, when viewed in the light
    most favorable to the State, some evidence exists from which a
    reasonable jury could find that the elements of the crime have
    been proven beyond a reasonable doubt.” State v. Barner, 
    2020 UT App 68
    , ¶ 9, 
    464 P.3d 190
     (cleaned up). Second, Diviney
    contends the trial court abused its discretion by excluding
    evidence Diviney proffered to impeach Ella. “We review the trial
    court’s admissibility determination for abuse of discretion.” State
    v. Gomez, 
    2002 UT 120
    , ¶ 12, 
    63 P.3d 72
     (cleaned up). Third,
    Diviney contends that defense counsel rendered ineffective
    assistance in adjusting the defense strategy in response to the
    trial court’s ruling on the evidence. “An ineffective assistance of
    counsel claim raised for the first time on appeal presents a
    question of law.”4 State v. Bowen, 
    2019 UT App 163
    , ¶ 15, 
    451 P.3d 1050
     (cleaned up).
    4. Diviney also requests that we remand this case under Utah
    Rule of Appellate Procedure 23B for the purpose of entering into
    the record additional facts necessary to support another claim
    for ineffective assistance of counsel. “We grant such motions
    only upon a nonspeculative allegation of facts, not fully
    appearing in the record on appeal, which, if true, could support
    a determination that counsel was ineffective.” State v. Curtis,
    
    2013 UT App 287
    , ¶ 13, 
    317 P.3d 968
     (cleaned up). “Fact
    allegations are insufficient unless the defendant presents this
    (continued…)
    20190778-CA                     9                
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    State v. Diviney
    ANALYSIS
    I. Motion for Directed Verdict
    ¶19 Diviney contends the trial court erred in denying his
    motion for a directed verdict regarding domestic violence in the
    presence of a child because, he claims, insufficient evidence
    supported the charge. He asserts that each element of the statute
    cannot have been met because even though “Diviney knew that
    [the child] was in the apartment,” because the child was asleep,
    “Diviney did not know that [the child] could ‘see or hear an act
    (…continued)
    court with the evidence [the defendant] intends to present on
    remand and explains how that evidence supports an ineffective
    assistance of counsel claim.” 
    Id. ¶ 18
     (cleaned up). Here, Diviney
    proposes to supplement the record with facts consisting of his
    medical documents from the day after the incident, which he
    asserts would have supported his story “that he and [Ella] were
    injured in a fight with an intruder.” While Diviney’s motion
    includes medical documents not included in the record, and
    although the findings reported on those documents may not be
    speculative, Diviney has not explained how this evidence
    supports an ineffective assistance of counsel claim because he
    does not show how defense counsel’s failure to introduce this
    evidence prejudiced his case. Diviney asserts that the medical
    documents provide physical evidence for his version of events,
    but he does not show how this is so. Specifically, Diviney has not
    pointed to any testimony offered at trial or proposed expert
    testimony that would connect his version of events to the
    findings listed in the medical documents. Without such a
    connection, any supposed effect this information would have on
    the jury is speculative, and therefore our “confidence in the
    outcome of the trial is [not] undermined.” See State v. Popp, 
    2019 UT App 173
    , ¶ 58, 
    453 P.3d 657
     (cleaned up).
    20190778-CA                    10              
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    State v. Diviney
    of domestic violence.’” (Quoting Utah Code Ann.
    § 76-5-109.1(1)(c)(ii) (LexisNexis 2017).)5 In other words,
    Diviney’s argument concedes that the child was in a room in the
    apartment with the door slightly open but maintains that the
    uncontested fact that the child was sleeping means that the
    definition of “in the presence of a child” could not be satisfied.6
    We disagree with Diviney’s interpretation of the statute and
    conclude that “some evidence exists from which a reasonable
    jury could find that the elements of the crime have been proven
    beyond a reasonable doubt.” See State v. Barner, 
    2020 UT App 68
    ,
    ¶ 9, 
    464 P.3d 190
     (cleaned up).
    ¶20 “When interpreting statutory provisions, we first look to
    the plain language of the statute,” State v. Rincon, 
    2012 UT App 372
    , ¶ 10, 
    293 P.3d 1142
     (cleaned up), and “in so doing, we
    presume that the legislature used each word advisedly,” Scott v.
    Scott, 
    2017 UT 66
    , ¶ 22, 
    423 P.3d 1275
     (cleaned up). If that
    language allows us to understand the legislature’s meaning, “no
    other interpretive tools are needed, and our task of statutory
    construction is typically at an end.” 
    Id.
     (cleaned up). We
    conclude that to be the case here.
    5. The statutory language in effect at the relevant time remains in
    effect today. Thus, we cite the current code for convenience.
    6. In so doing, Diviney relies on In re K. D., 
    810 S.E.2d 193
     (Ga.
    Ct. App. 2018), a case in which the court found that an incident
    of assault “took place outside the presence of the children, as the
    uncontradicted record showed that they were inside the house
    asleep” and the assault occurred outside of the house. 
    Id. at 196
    .
    That case is easily distinguished from this case where the abuse
    occurred inside the same apartment in which the child slept with
    the door slightly open.
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    State v. Diviney
    ¶21 Regarding domestic violence in the presence of a child,
    Utah Code section 76-5-109.1(1)(c) provides,
    “In the presence of a child” means:
    (i) in the physical presence of a child; or
    (ii) having knowledge that a child is present
    and may see or hear an act of domestic
    violence.
    Diviney concedes that the child “was asleep in his crib in his
    bedroom” with the door slightly open and that “the acts of
    domestic violence occurred in another room” in the same
    apartment. Thus, the focus rests on whether the language “may
    see or hear” includes a child who is asleep in a nearby room with
    the door open. See 
    id.
     § 76-5-109.1(1)(c)(ii). We conclude that it
    does.7
    ¶22 Diviney asserts that Ella’s “testimony supported that [the
    child] could not see or hear any act of domestic violence because
    he was asleep during the entire incident.” However, his
    argument glosses over not only the statute’s use of the word
    “may,” but the trial court’s focus on that word as well. See id.
    “The plain, ordinary, and accepted meaning of the word may is
    permissive or discretionary, generally indicating that an
    7. We also note that the parties appear to concede that the
    circumstances here do not fall within the definition in Utah Code
    section 76-5-109.1(1)(c)(i), and instead meaningfully discuss only
    whether this case falls within the scope of section
    76-5-109.1(1)(c)(ii). We, however, do not adopt the legal position
    espoused by the parties’ concession and we do not opine on
    whether section 76-5-109.1(1)(c)(i) applies here; instead we
    analyze only whether these circumstances fall within the scope
    of section 76-5-109.1(1)(c)(ii).
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    State v. Diviney
    individual is either permitted or has a possibility to do
    something.” Holmes Dev., LLC v. Cook, 
    2002 UT 38
    , ¶ 25, 
    48 P.3d 895
     (cleaned up) (emphasis added). The statute therefore
    requires that the jury determine only that a child was present
    and that a possibility existed that the child would or could hear
    or see the domestic violence. And to deny the motion for a
    directed verdict, the trial court needed to find only that some
    evidence existed that supported that element.
    ¶23 The State presented such evidence here. Ella testified that
    the child’s bedroom door was “cracked open” so she could
    “always hear” him. Moreover, because she had spent the night
    before with the child, behind a closed door, she was able to
    testify that even with the door closed, one could hear what was
    happening in other parts of the apartment. In addition, the mere
    fact that the testimony suggests that the child was asleep during
    the events does not eliminate the possibility that the child could
    have heard the abuse. At any moment the child could have
    woken up, either naturally or due to the commotion in the other
    room; or the child may have, in fact, woken up, heard the
    domestic violence, and returned to sleep without Diviney or Ella
    knowing; and we note that were it not for the fact that many
    human beings can hear while they are asleep, the ongoing use of
    sound-based alarms would remain an unexplained curiosity.
    ¶24 Here, the possibility existed that the child would hear the
    domestic violence happening just beyond his open bedroom
    door. As such, the trial court did not err in denying the motion
    for a directed verdict.
    II. Exclusion of Evidence and Defense Counsel’s Adjustment
    ¶25 Diviney also contends that the trial court “abused its
    discretion when it did not appear to allow extrinsic evidence of
    [Ella’s] drug use” and that defense counsel rendered ineffective
    assistance in not impeaching Ella sooner, in not arguing “that the
    rules of evidence allowed him to impeach [Ella] with extrinsic
    20190778-CA                    13              
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    State v. Diviney
    evidence” (and, to the extent that it constitutes invited error, in
    proposing an alternative strategy in light of the court’s ruling).
    But even assuming without deciding that the court erred and
    that defense counsel rendered deficient performance, each of
    these arguments falls short for the same reason: lack of
    prejudice. See, e.g., Honie v. State, 
    2014 UT 19
    , ¶ 31, 
    342 P.3d 182
    (“Because failure to establish either prong of the test is fatal to an
    ineffective assistance of counsel claim, we are free to address [a
    defendant’s] claims under either prong.”); State v. Leech, 
    2020 UT App 116
    , ¶ 42, 
    473 P.3d 218
     (noting that even if an error occurs,
    prejudice still must be shown).
    ¶26 “Utah law places the burden on the defendant to prove
    that a preserved error is harmful.” Leech, 
    2020 UT App 116
    , ¶ 43
    n.7; cf. Utah R. Crim. P. 30(a) (“Any error . . . which does not
    affect the substantial rights of a party shall be disregarded.”).
    Moreover, defendants bear the burden of showing that they
    have been prejudiced by counsel’s deficient performance. State v.
    Scott, 
    2020 UT 13
    , ¶ 43, 
    462 P.3d 350
    ; cf. Utah R. Crim P. 30(a).
    For a preserved error, showing prejudice “requires a showing of
    a reasonable likelihood that the [alleged error] altered the jury
    verdict.” Leech, 
    2020 UT App 116
    , ¶ 43 (cleaned up). For
    ineffective assistance, showing prejudice requires “the defendant
    to demonstrate a reasonable probability that the outcome of [the]
    . . . case would have been different absent [the alleged] error.”
    Scott, 
    2020 UT 13
    , ¶ 43. Thus, where a defendant raises a
    preserved error argument and an ineffective assistance of
    counsel argument based on the same alleged issue, and we
    resolve the argument based on a lack of prejudice, we need
    undertake only a single analysis. See 
    id. ¶27
     As an initial matter, Diviney asserts that extrinsic
    evidence of Ella’s drug use would have persuaded the jury that
    she was motivated to lie to prevent him from reporting her drug
    use to Child Protective Services. But although that may have
    been Diviney’s initial theory of the case, the State points out that
    20190778-CA                      14               
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    State v. Diviney
    when Diviney decided not to testify, defense counsel
    “abandoned the drug-based theory” in favor of attacking Ella’s
    credibility. Without Diviney’s testimony about Ella’s “supposed
    drug use at the time of the crime,” no evidence supported that
    Ella was, in fact, using drugs at the time of the abuse, and
    evidence of a four-year-old criminal record for possession of
    “psychotic     chemicals”    and     a   months-old      positive
    methamphetamine test does not fill that gap.
    ¶28 Moreover, when it appeared that Ella denied having used
    drugs generally, defense counsel received permission to follow
    up on that issue. After being asked whether this was the only
    time she had used drugs, Ella responded, “In my lifetime? No.”
    In other words, regardless of whether the court allowed specific
    extrinsic evidence, defense counsel made his main point:
    arguably contrary to her earlier testimony, Ella admitted she
    had, in fact, used drugs outside of the Las Vegas trip. Thus,
    Diviney obtained the same evidentiary posture he would have
    garnered had the extrinsic drug-use evidence been allowed; that
    is, he still succeeded in impeaching her testimony on this issue.
    And although Diviney argues that this admission “was no
    substitute for powerful evidence that [Ella] had used drugs in
    the past and recently,” we see these additional details as
    ultimately inconsequential in comparison to her admission that
    she had otherwise used drugs. We remain unpersuaded that this
    remote extrinsic evidence provided any more materially
    significant evidence than Ella herself had already provided
    when she testified.
    ¶29 And, even if the information had been allowed, we do not
    believe this would have made the difference Diviney asserts.
    According to Diviney, because “[t]he State’s case depended on
    [Ella’s] credibility,” all that was needed for the jury to “decide
    whether [Ella] was being truthful on the witness stand” was “[a]
    sufficient opportunity for the defense to impeach” her. But in his
    brief, Diviney has demonstrated many inconsistencies defense
    20190778-CA                    15              
    2021 UT App 106
    State v. Diviney
    counsel “sussed out” during Ella’s examination. Diviney asserts
    that during her examination, defense counsel elicited
    inconsistencies regarding the plate Diviney threw, the extent of
    Ella’s bleeding, the number of times Diviney hit her, their child’s
    location at different times, the timing of the abuse, and many
    other things. And yet, despite all these inconsistencies, Diviney
    maintains that the additional extrinsic drug-use evidence would
    have infused the case with sufficient doubt that the jury likely
    would have acquitted him. We remain unconvinced and
    conclude that among all the other inconsistencies, this additional
    drug-use evidence would not have likely tipped the scales in
    Diviney’s favor.
    ¶30 In light of Ella’s overarching admission regarding her
    drug use, a four-year-old criminal record or a months-old
    positive methamphetamine test were not reasonably likely to
    have changed the jury’s verdict. Accordingly, we conclude that
    any error regarding this evidence’s exclusion did not prejudice
    Diviney.
    CONCLUSION
    ¶31 Some evidence supported the jury’s verdict, and thus the
    trial court properly denied Diviney’s motion for a directed
    verdict. Further, the court’s exclusion of the impeachment
    evidence and defense counsel’s adjustments in light of that
    ruling did not prejudice Diviney. Accordingly, we affirm.
    20190778-CA                    16               
    2021 UT App 106
                                

Document Info

Docket Number: 20190778-CA

Citation Numbers: 2021 UT App 106

Filed Date: 10/7/2021

Precedential Status: Precedential

Modified Date: 12/20/2021