State v. Christensen , 738 Utah Adv. Rep. 33 ( 2013 )

2013 UT App 163_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
SANDRA DENISE CHRISTENSEN,
Defendant and Appellant.
Per Curiam Decision
No. 20120747‐CA
Filed July 5, 2013
Third District, Tooele Department
The Honorable Robert W. Adkins
No. 111300416
David J. Angerhofer, Attorney for Appellant
John E. Swallow and Mark C. Field, Attorneys for
Appellee
Before JUDGES THORNE, ROTH, and CHRISTIANSEN.
PER CURIAM:
¶1 Sandra Denise Christensen appeals her conviction of
insurance fraud. We affirm.
¶2 Christensen asserts that she received ineffective assistance
of counsel at trial. Specifically, she argues that trial counsel should
have admitted into evidence certain medical records and an
insurance report regarding the condition of the deck attached to
Christensen’s rented house. Because these materials are not in the
record on appeal, Christensen filed a motion for remand pursuant
to rule 23B of the Utah Rules of Appellate Procedure.
State v. Christensen
¶3 Under rule 23B, a criminal appellant “may move the court
to remand the case to the trial court for entry of findings of fact
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.” Utah R. App. P. 23B(a). “The
motion shall be available 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.” Id.The motion must be supported by affidavits “alleging facts not
fully appearing in the record on appeal that show the claimed
deficient performance.” Id. R. 23B(b).
¶4 The purpose of rule 23B “is for appellate counsel to put on
evidence he or she now has” regarding ineffective assistance of trial
counsel. State v. Johnston, 2000 UT App 290, ¶ 7, 13 P.3d 175 (per
curiam). An appellant “must present this court with the evidence
he intends to present on remand and explain how that evidence
supports both prongs” of the ineffective assistance of counsel test.
Id. ¶ 11. Christensen’s motion does not comply with the
requirements of rule 23B and State v. Johnston. It is supported only
by an affidavit from appellate counsel reporting portions of the
proposed evidence. Although the evidence apparently is in
Christensen’s possession, the evidence is not included with the
motion for remand. Absent the evidence that is the subject of the
motion for remand, this court is left with only speculation about
the content and value of the proposed evidence as a whole. Because
the motion is not properly supported, we deny it.
¶5 Christensen’s argument that trial counsel was ineffective for
failing to introduce medical records and the insurance report fails
due to an inadequate record. The medical records and insurance
report are not in the record on appeal. Accordingly, this court
cannot reach the issue presented. See State v. Litherland, 2000 UT 76,
¶ 17, 12 P.3d 92. Rather, “[w]here the record appears inadequate in
any fashion, ambiguities or deficiencies resulting therefrom simply
will be construed in favor of a finding that counsel performed
effectively.” Id. Accordingly, Christensen’s conviction is affirmed.
20120747‐CA 2 2013 UT App 163