State v. Hards , 781 Utah Adv. Rep. 17 ( 2015 )

2015 UT App 42_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ERNESTO BRYCE HARDS,
Defendant and Appellant.
Memorandum Decision
No. 20130395-CA
Filed February 26, 2015
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 111905970
Richard G. Uday, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES JAMES Z. DAVIS and KATE A. TOOMEY concurred.
PEARCE, Judge:
¶1 Ernesto Bryce Hards appeals from his conviction for
aggravated burglary. He contends that the State presented
insufficient evidence to support a finding that he entered a
building with the intent to commit a felony. He also contends
that the district court erred by submitting to the jury the
question of whether that building was a dwelling. Finally, he
contends that his trial counsel’s performance was
constitutionally ineffective.
¶2 The charges in this case arose from an attack on L.H. in
March 2011. L.H. had been staying at a building in an industrial
State v. Hards
part of Salt Lake City. The building had originally been a
commercial structure but had been repurposed, in apparent
violation of zoning regulations, as a “flophouse.” L.H. testified
that he had been renting a room there for two or three months.
L.H. testified that two people, Jose Alvarez and Hards, had
broken open the door to his room while he was sleeping inside.
According to L.H., one or both of them attacked L.H. as he lay in
bed, leaving him with a cut over his eye. L.H. could not
definitively say whether Hards punched him but believed that
both Alvarez and Hards hit him in the face.
¶3 Alvarez and Hards left but returned several hours later.
When L.H. heard banging on his door, he believed it was the
building manager and opened the door. It was the manager, but
he was accompanied by Alvarez and Hards. Alvarez insisted
that L.H. come to another room. When L.H. did so, Alvarez
punched L.H. before Hards stepped in to stop the attack.
¶4 The State charged Hards with robbery and aggravated
burglary. At Hards’s trial, Alvarez admitted to punching L.H. on
both occasions. Alvarez also testified that, while Hards may
have entered L.H.’s room, Hards had not hit L.H. However, a
police officer testified that Alvarez had claimed in a police
interview that Hards had “touche*d+ *L.H.+ up a couple of
times.”
¶5 Hards also testified. Hards admitted to hitting L.H. but
claimed it had been during a fight earlier in the day. Hards
denied entering L.H.’s room. When the State rested, Hards’s trial
counsel unsuccessfully moved for a directed verdict, arguing
that the industrial building where the attack occurred was not a
dwelling within the meaning of the burglary statute. A jury
ultimately convicted Hards of aggravated burglary but acquitted
him of the robbery charge.
¶6 The crime of aggravated burglary has two elements. Utah
Code Ann. § 76-6-203(1) (LexisNexis 2012). The first requires that
the defendant attempt or commit a burglary. Id. “An actor is
20130395-CA 2 2015 UT App 42State v. Hards
guilty of burglary who enters or remains unlawfully in a
building or any portion of a building with intent to commit” one
of seven proscribed acts, including “an assault on any
person . . . .” Id. § 76-6-202(1)(c).
¶7 The second element requires that, in the course of that
burglary or attempt, the defendant or a co-burglar commit one of
three acts that constitute aggravating factors. Id. § 76-6-203(1).
The defendant or co-burglar must (1) cause bodily injury to a
non-participant, (2) use or threaten the immediate use of a
dangerous weapon against a non-participant, or (3) possess or
attempt to use any explosive or dangerous weapon. Id. The
section relevant to our analysis reads, “A person is guilty of
aggravated burglary if in attempting, committing, or fleeing
from a burglary the actor or another participant in the crime . . .
causes bodily injury to any person who is not a participant in the
crime . . . .” Id. § 76-6-203(1)(a).
¶8 Hards first contends that “insufficient evidence supports
the intent to commit an assault element” of his aggravated
burglary charge. “To determine whether there was sufficient
evidence to convict a defendant, we do not examine whether we
believe the evidence at trial established guilt beyond a
reasonable doubt.” State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346.
Instead, we view the evidence and all inferences drawn
therefrom in a light most favorable to the jury’s verdict. State v.
Ricks, 2013 UT App 238, ¶ 5, 314 P.3d 1033. If, in that light, the
evidence is so inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime, we will conclude that the
evidence was insufficient. Id.¶9 Hards asserts that because there was no direct evidence of
his intent, a reasonable jury could not have found beyond a
reasonable doubt that he entered L.H.’s room with the intent to
commit a felony. Specifically, he argues that “*L.H.+ was not able
to testify that [Hards+ acted directly in any part of” the attack in
L.H.’s room. Hards also highlights Alvarez’s trial testimony that
20130395-CA 3 2015 UT App 42State v. Hards
Hards had not hit L.H. We note that whether Hards actually
punched L.H. is different from the question before the jury—
whether Hards entered L.H.’s room with the intent to assault
L.H.1
¶10 “It is well established that intent can be proven by
circumstantial evidence.” State v. James, 819 P.2d 781, 789 (Utah
1991). “*T+he facts of a particular case may support an inference
of intent to commit burglary.” State v. Johnson, 771 P.2d 1071,
1072 (Utah 1989); see also, e.g., State v. Robertson, 2005 UT App
419, ¶ 16, 122 P.3d 895 (holding that, for purposes of a burglary
conviction, a jury could reasonably infer intent to commit theft
from a defendant’s unauthorized presence in the victim’s
residence, evidence of forced entry, and the defendant’s
subsequent flight). Hards contends that L.H. was unable to
testify with certainty who hit him during the incident. But Hards
fails to explain L.H.’s testimony that he believed both Alvarez
and Hards had done so. Hards also fails to address Alvarez’s
statement to police, which was discussed at trial, that Hards
“touche*d+ *L.H.+ up.” Because Hards does not mention this
evidence, his brief on appeal is devoid of any argument to
explain why a reasonable jury could not have inferred from it
that Hards entered L.H.’s room with the intent to assault L.H.
¶11 In light of record evidence that Hards entered L.H.’s room
and that Hards assaulted L.H., and because the jury was asked
to determine Hards’s intent rather than just his physical actions,
1. Moreover, assault does not necessarily require physical
contact. See Utah Code Ann. § 76-5-102(1) (LexisNexis 2012)
(“Assault is: (a) an attempt, with unlawful force or violence, to
do bodily injury to another; (b) a threat, accompanied by a show
of immediate force or violence, to do bodily injury to another; or
(c) an act, committed with unlawful force or violence, that causes
bodily injury to another or creates a substantial risk of bodily
injury to another.”).
20130395-CA 4 2015 UT App 42State v. Hards
we conclude that the evidence presented to the jury was not so
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that Hards committed
the aggravated burglary. See Ricks, 2013 UT App 238, ¶ 5.
¶12 Hards also challenges the absence of a jury instruction on
party liability (otherwise known as accomplice liability.) He
asserts that “*p+arty liability in this case necessarily requires that
there be proof that somehow [Hards] solicited, requested,
commanded, encouraged or intentionally aided [Alvarez] to
commit the crime before he could be liable.” He relies on Utah’s
accomplice-liability statute which provides that a defendant is
liable as a party to an offense when he or she, “acting with the
mental state required for the commission of an
offense[,] . . . solicits, requests, commands, encourages, or
intentionally aids another person to engage in conduct which
constitutes [the] offense.” Utah Code Ann. § 76-2-202(LexisNexis 2012). Hards suggests that the absence of a party
liability instruction created a “likelihood that the jury decided
that proof of the bodily injury caused by [Alvarez] was sufficient
to convict [Hards].”
¶13 At trial, the State did not argue that Hards was an
accomplice to Alvarez’s aggravated burglary. Rather, the State
presented evidence that Hards himself had committed
aggravated burglary, and the jury was instructed accordingly. In
other words, there was no need to instruct the jury about party
liability, because the State argued and produced evidence that
Hards committed aggravated burglary when he entered L.H.’s
room with the intent to assault him and that either Hards or
Alvarez caused bodily injury to L.H.
¶14 Hards’s argument may also be plausibly read as a claim
that the trial court should have provided a party liability
instruction on just the aggravating circumstance—that a non-
participant was injured in the course of the burglary. Read in
this fashion, Hards posits that, because the jury may have
believed his testimony that he did not personally assault L.H., he
20130395-CA 5 2015 UT App 42State v. Hards
could only be liable for aggravated burglary as an accomplice.
There are two problems with this argument. First, the State
presented evidence that Hards did injure L.H. while in his room.
Second, even in the absence of evidence that Hards had injured
L.H., the plain language of the aggravated burglary statute does
not require that the defendant himself injure the non-participant.
The statute requires only that “the actor or another participant in
the crime . . . cause[] bodily injury to any person who is not a
participant in the crime.” Utah Code Ann. § 76-6-203(1)(a)
(LexisNexis 2012) (emphasis added). This element is satisfied if
either Hards or Alvarez injured L.H. Cf. State v. Seel, 827 P.2d
954, 962 (Utah Ct. App. 1992) (concluding that a defendant was
properly charged with aggravated burglary because the
aggravating factor—possession of a dangerous weapon—was
satisfied by his co-burglar’s possession of a gun even if the
defendant was unaware of that possession).
¶15 Hards next contends that the district court erred by
allowing the jury to determine whether L.H.’s room constituted
a dwelling. Specifically, he urges us to “re-evaluate the
definition of dwelling in our statutory scheme and [to] find that
unlawful occupancy does not convert a structure into a dwelling
[based] on a temporary non-intended use of that structure.” We
need not examine the definition, however, because a conviction
for aggravated burglary does not require proof of a dwelling.
¶16 Burglary is a third degree felony unless it occurs in a
dwelling. See Utah Code Ann. § 76-6-202(2) (LexisNexis 2012). If
the burgled building is a dwelling, the burglary becomes a
second degree felony. Id. But the first degree felony of
aggravated burglary occurs when a defendant commits a
burglary of either degree and, among other aggravating factors,
any participant in that crime injures a non-participant. Id. § 76-6-
203; see also State v. Porter, 705 P.2d 1174, 1178 (Utah 1985)
(“Aggravated burglary . . . is a first degree felony regardless of
whether a dwelling is involved.”).
20130395-CA 6 2015 UT App 42State v. Hards
¶17 Because Hards was charged with and convicted of
aggravated burglary, it is immaterial whether the building L.H.
lived in constituted a “dwelling” under the burglary statute.
Moreover, to the extent that the jury was incorrectly instructed
that a conviction required a finding that the building was a
dwelling, any such error cut in Hards’s favor—by adding an
additional element to be proved—and was consequently
harmless. We therefore decline Hards’s invitation to reevaluate
the term “dwelling.”
¶18 Hards also contends that his trial counsel’s performance
was constitutionally ineffective for a host of reasons. To succeed
on a claim of ineffective assistance of counsel, a defendant must
show that trial counsel’s performance was deficient and that the
defendant was prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 687 (1984). Performance is deficient when it falls below
an objective standard of reasonableness. Id. A defendant suffers
prejudice when, absent the deficiencies of counsel’s
performance, there is a reasonable likelihood that the defendant
would have received a more favorable result at trial. Id. at 696.
Because both deficient performance and resulting prejudice are
requisite elements of an ineffective assistance of counsel claim, a
failure to prove either element defeats the claim. Id. at 697.
¶19 Hards first complains that his “trial counsel failed to
prepare for trial, did not engage him in that preparation, [and]
ignored him and his repeated requests for assistance and
attention to his case.”2 However, he proffers no specific
examples and does not explain how prejudice may have
resulted. Proof of ineffective assistance of counsel must be “a
demonstrable reality and not a speculative matter.” State v.
Chacon, 962 P.2d 48, 50 (Utah 1998) (citation and internal
2. Hards also claims that “counsel told *Hards] that out-of-state
witnesses were too expensive to call.” This suggests that counsel
did respond to at least some of Hards’s requests.
20130395-CA 7 2015 UT App 42State v. Hards
quotation marks omitted). Because any prejudice arising from
counsel’s alleged failure to prepare for trial is speculative,
Hards’s claim in this regard fails.
¶20 Hards next asserts that his trial counsel’s performance
was ineffective for failing to fully investigate his case.
“Specifically, counsel was requested to talk to the [out-of-state]
owner of the property to divine whether [L.H.] had permission
to be there. Counsel did not so investigate . . . .” However,
whether L.H. had permission to be at the property is irrelevant
to whether Hards committed burglary. While a burglary
conviction requires that the defendant be in a building
unlawfully, Hards does not provide any authority for the
proposition that the victim of the burglary must be there
lawfully. See Utah Code Ann. § 76-6-202(1) (LexisNexis 2012).
Accordingly, we conclude that counsel’s failure to determine
whether L.H. had permission to be in the building did not
prejudice Hards.
¶21 Hards also asserts that trial counsel “fail*ed+ to assert
beneficial, current law.” Specifically, he claims that counsel
failed to request an instruction on party liability. However, as we
have explained, because Hards was tried and convicted as a
principal, no instruction on party liability was necessary. Thus,
no prejudice could have resulted from counsel’s failure to
request such an instruction.
¶22 Finally, Hards argues that his trial counsel’s performance
was deficient because “counsel surprised *Hards] and forced
him to testify at the trial.” “It is . . . recognized that the accused
has the ultimate authority to make certain fundamental
decisions regarding the case [such as] whether to . . . testify in his
or her own behalf . . . .” Jones v. Barnes, 463 U.S. 745, 751 (1983).
“Thus, whether or not he does testify rests entirely in his own
decision.” Griffin v. California, 380 U.S. 609, 618 (1965) (Stewart, J.,
dissenting). However, the only resulting prejudice Hards
identifies is that “the jury may not have believed *Hards’s]
20130395-CA 8 2015 UT App 42State v. Hards
testimony.” Such speculation is insufficient to demonstrate
prejudice.3 See Chacon, 962 P.2d at 50.
¶23 Hards has not demonstrated that prejudice resulted from
any of his counsel’s allegedly deficient acts or omissions. We
therefore reject his ineffective assistance of counsel claim.
¶24 Affirmed.
_____________
3. We note also that the record suggests that, far from being
forced to testify, Hards desired to take the stand. Hards
expressed this desire at two preliminary hearings. At the first
hearing, counsel explained that he had advised Hards not to
testify. Counsel then asked whether Hards wanted to follow that
advice. Hards replied, “I want to testify.” At the second hearing,
Hards interrupted his counsel to complain, “*Y+ou won’t let me
testify at my prelim” and then stated, “I want to testify already,
man.” At trial, with Hards present, the court asked if Hards had
been advised of “his rights to testify” and that “he will be subject
to cross examination if he does testify.” Counsel responded,
“Yes, Your Honor.” Hards then testified.
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