State v. Ricks ( 2018 )

2018 UT App 183THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DAVID ANTHONY RICKS,
Appellant.
Opinion
No. 20160894-CA
Filed September 27, 2018
Second District Court, Farmington Department
The Honorable David M. Connors
No. 131701195
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 David Anthony Ricks appeals his conviction for forcible
sexual abuse, a second degree felony. He argues that his
constitutional right to the effective assistance of counsel was
violated because his trial counsel failed to request an instruction
regarding a lesser included offense of assault. We affirm.
BACKGROUND
¶2 One evening, Ricks and his girlfriend (Girlfriend) began
arguing in the bathroom of the home they shared with Ricks’s
mother. The couple disagreed about whether Girlfriend had
State v. Ricks
been using drugs, and Ricks was looking around the bathroom
for drugs and a needle he suspected Girlfriend was using. To
prove to Ricks that she was not hiding anything, Girlfriend
disrobed.1
¶3 As Girlfriend sat naked on the bathtub ledge, Ricks took a
pair of metal tweezers and “tried to rip [her] nipple off.” Ricks
“picked forcefully” at Girlfriend’s nipple, lacerating it and
causing Girlfriend pain. Both Ricks and Girlfriend later told an
officer that Girlfriend had bit him on the nipple a few months
earlier, causing it to bleed.
¶4 Ricks left the room after the tweezing incident, while
Girlfriend dressed. Once dressed, Girlfriend joined Ricks in
another room and the two started arguing with each other again.
During the argument, Ricks hit her in the head and face five or
six times and in the thigh once. Ricks’s mother heard Girlfriend
screaming, and when she entered the room she saw Ricks hitting
Girlfriend in the face. Girlfriend told Ricks’s mother to call the
police, so Ricks’s mother grabbed her keys and cell phone and
ran out of the home. After his mother left, Ricks threw a large
plastic mug at Girlfriend’s face, splitting her cheek open. Ricks
then ran after his mother.
¶5 Ricks caught up with his mother in the front yard,
grabbed her arm, and tried to take away her phone. A neighbor
saw Ricks and his mother fall to the ground and ran over to help.
By the time the neighbor got there, Ricks had already picked his
mother up from the ground. The neighbor tried in vain to “pry
[Ricks’s] arms from [his mother].” Ricks finally got the cell
phone away from his mother and let go of her. Realizing that
another neighbor had already called the police, Ricks said,
1. Girlfriend could not later recall if she disrobed on her own
initiative or at Ricks’s insistence.
20160894-CA 2 2018 UT App 183State v. Ricks
“Thanks, Mom,” and threw his mother’s cell phone onto the
ground, breaking it into two pieces.
¶6 The State charged Ricks with one count of forcible sexual
abuse, two counts of assault, one count of criminal mischief, and
one count of damage or interruption of a communication device.
The forcible sexual abuse count and the first assault count
related to Ricks’s interactions with Girlfriend, and the remaining
counts related to the incident with his mother.
¶7 During trial,2 Ricks contested only the forcible sexual
abuse charge. During his opening statement, Ricks’s trial counsel
stated, “Did he assault her? Yes, he did.” “But,” counsel argued,
“this is not . . . forcible sexual abuse.” And during closing
argument, trial counsel stated, “Is that an assault? Good grief,
yes, and there is a charge of assault, domestic violence in here.”
Trial counsel requested and received a jury instruction on sexual
battery as a lesser included offense of forcible sexual abuse.
However, trial counsel did not request an instruction on assault
as a lesser included offense of forcible sexual abuse. The jury
convicted Ricks as charged.
2. In a separate but related case, the State charged Ricks with
witness tampering because he allegedly asked his mother not to
come to court and testify against him. Prior to trial in this case,
Ricks rejected two proposed plea deals for global resolution of
both cases. Under the first proposed deal, Ricks would have
pleaded guilty to witness tampering, two counts of assault, and
damage to or interruption of a communication device, and the
State would have dismissed the forcible sexual abuse and
criminal mischief charges. The second proposed deal involved
reducing the forcible sexual abuse charge to a third-degree
felony or changing it to a class A misdemeanor sexual battery
charge. On the eve of trial, Ricks also rejected the State’s renewal
of its first plea offer.
20160894-CA 3 2018 UT App 183State v. Ricks
¶8 Ricks asked trial counsel about filing an appeal, and trial
counsel stated that he would visit Ricks to discuss the issue. Trial
counsel never visited Ricks, however, and the time to appeal
passed. Ricks later moved to reinstate the time to file an appeal,
and the trial court ultimately granted his motion. Ricks timely
appealed.
ISSUE AND STANDARD OF REVIEW
¶9 Ricks contends that his trial counsel rendered ineffective
assistance by failing to request a lesser-included-offense
instruction for assault on the forcible sexual abuse count. “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
ANALYSIS
¶10 To demonstrate ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient
and that the deficient performance prejudiced the defense—“that
is, a reasonable probability exists that but for the deficient
conduct defendant would have obtained a more favorable
outcome at trial.” State v. Horvath, 2018 UT App 165, ¶ 30
(quotation simplified); see also Strickland v. Washington, 466 U.S.
668, 687 (1984). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694.
¶11 “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.” State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769; see also
Strickland, 466 U.S. at 697. Moreover, “[a] court need not review
the deficient performance element before examining the
20160894-CA 4 2018 UT App 183State v. Ricks
prejudice element.” State v. Ramos, 2018 UT App 161, ¶ 25. “If it
is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, that course should be followed.” Id.(quotation simplified).
¶12 Ricks argues that trial counsel performed deficiently by
failing to request that the trial court instruct the jury on assault
as a lesser included offense of forcible sexual abuse.3 A
defendant is entitled to such an instruction where (1) “the
charged offense and the lesser included offense have
overlapping statutory elements” and (2) “the evidence ‘provides
a rational basis for a verdict acquitting the defendant of the
offense charged and convicting him of the included offense.’”
State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (quoting State v.
Baker, 671 P.2d 152, 159 (Utah 1983)). We assume that Ricks was
entitled to an instruction on assault as a lesser included offense
of forcible sexual abuse.4 However, we need not decide whether
trial counsel’s failure to request the instruction was deficient or if
there was a reasonable strategic basis for that decision, because
we conclude that Ricks has not demonstrated that he was
prejudiced by his counsel’s performance.
¶13 There is no reasonable probability that the jury would
have acquitted Ricks of forcible sexual abuse and convicted him
3. In a one sentence footnote, Ricks further asserts that his
ineffective-assistance analysis regarding the lesser included
offense of assault “also applies to the lesser included offense of
aggravated assault, which is set forth in Utah Code Ann.
§ 76‑5‑103.” Because this argument is inadequately briefed, we
do not discuss it further. See generally Utah R. App. P. 24(a)(8).
4. This court has previously determined that assault is a lesser
included offense of forcible sexual abuse. State v. Jones, 878 P.2d
1175, 1177–78 (Utah Ct. App. 1994).
20160894-CA 5 2018 UT App 183State v. Ricks
of assault if it had been given that option. Forcible sexual abuse
and assault both “involve offensive touching” and “are
distinguished by the reason for the touching.” State v. Jones, 878
P.2d 1175, 1177 (Utah Ct. App. 1994). “Forcible sexual abuse
requires an ‘intent’ to cause substantial emotional or bodily pain
or an ‘intent’ to arouse or gratify sexual desire.” 5 Id. In contrast,
“assault requires either an intentional, knowing, or reckless
attempt or threat to cause, or an act that does cause, bodily
injury.”6 Id. at 1177–78.
¶14 The State acknowledges that it conceded below “that
Ricks did not act with the ‘intent to arouse or gratify’ a sexual
desire.” (Quoting Utah Code Ann. § 76-5-404(1) (LexisNexis
2017).) Accordingly, to prove Ricks guilty of forcible sexual
abuse, the State had to establish that Ricks acted “with intent to
cause substantial emotional or bodily pain.” See id. As the State
correctly observes, “the test is not whether Ricks inflicted
substantial bodily pain. It’s whether he intended to.” (Emphasis
added.) Thus, “[t]he sole dispute at trial was Ricks’s intent when
he pinched and lacerated [Girlfriend’s] nipple with metal
tweezers.”
5. “A person commits forcible sexual abuse if the victim is 14
years of age or older and, under circumstances not amounting to
rape, object rape, sodomy, or attempted rape or sodomy, the
actor . . . touches the breast of a female, . . . with intent to cause
substantial emotional or bodily pain to any person or with the
intent to arouse or gratify the sexual desire of any person,
without the consent of the other, regardless of the sex of any
participant.” Utah Code Ann. § 76-5-404(1) (LexisNexis 2012).
6. Assault is defined, in relevant part, as “an act, committed with
unlawful force or violence, that causes bodily injury to another
or creates a substantial risk of bodily injury to another.” Id.§ 76‑5‑102(1)(c).
20160894-CA 6 2018 UT App 183State v. Ricks
¶15 Intent is seldom capable of direct proof. Thus, “it is well
established that intent can be proven by circumstantial
evidence.” State v. Whitaker, 2016 UT App 104, ¶ 13, 374 P.3d 56(quotation simplified). “Intent may be inferred from the actions
of the defendant or from surrounding circumstances.” Id.(quotation simplified).
¶16 Here, Girlfriend testified that Ricks touched her nipple
with the metal tweezers “[j]ust once.” She initially testified that it
was “painful” when Ricks did so and that she “probably” said
“something not pleasant” to him. But on cross-examination, she
stated that she elbowed Ricks because he had “just tried to rip
[her] nipple off with [the] tweezers” and that she was “pretty
upset by that.” Girlfriend also recalled telling police that Ricks
had “picked forcefully” at her nipple. A picture shown at trial
demonstrated that Ricks squeezed Girlfriend’s nipple with the
metal tweezers hard enough to lacerate it. These actions indicate
that Ricks intended to cause Girlfriend substantial bodily pain.
¶17 Looking at the surrounding circumstances, the evidence
also demonstrates that within minutes of picking forcefully at
and lacerating Girlfriend’s nipple, Ricks hit her in the face, head,
and thigh. He also threw a large plastic mug at Girlfriend hard
enough to split her cheek. A neighbor testified that “it was all
bloody” under Girlfriend’s eye. The jury viewed pictures of
Girlfriend’s face, but one of the responding officers testified that
the pictures did not fully show the extent of the swelling. The
officer testified: “[H]er face was puffy and swollen and it was
very bruised on her forehead, on her nose and the left side of her
face was bloody.” We agree with the State that “Ricks’s overall
aggression toward [Girlfriend] . . . strongly suggest[s] that he
intended to cause substantial bodily pain when he pinched and
lacerated [Girlfriend’s] nipple with metal tweezers.”
¶18 But even if the jury had concluded that Ricks did not
intend to cause Girlfriend substantial bodily pain and acquitted
20160894-CA 7 2018 UT App 183State v. Ricks
him of forcible sexual abuse, there is still no reasonable
probability that the jury would have convicted him of assault.
Ricks requested and received a lesser-included-offense
instruction on sexual battery, a class A misdemeanor. See Utah
Code Ann. § 76-9-702.1(3) (LexisNexis 2012). Thus, even if the
jury had been given a lesser included offense instruction on class
B misdemeanor assault, to convict Ricks of assault the jury
would have been required to first acquit Ricks of both forcible
sexual abuse and sexual battery. Pursuant to Utah Code section
76-9-702.1, “[a] person is guilty of sexual battery if the person . . .
intentionally touches, whether or not through clothing, . . . the
breast of a female person, and the actor’s conduct is under
circumstances the actor knows or should know will likely cause
affront or alarm to the person touched.” Id. § 76-9-702.1(1).
¶19 Here, the evidence demonstrates that Ricks intentionally
touched Girlfriend’s breast when he squeezed and lacerated her
nipple with a pair of metal tweezers. Girlfriend did not consent
to Ricks’s actions—she testified that Ricks did not ask her
permission or give her any warning before he touched her
nipple with the tweezers and that his doing so surprised her. See
generally State v. LoPrinzi, 2014 UT App 256, ¶ 20, 338 P.3d 253(observing that “the affront or alarm language [in the sexual
battery statute] must implicate a lack of consent”). The evidence
also demonstrates that Ricks knew or should have known that
squeezing Girlfriend’s nipple with metal tweezers hard enough
to lacerate it would “likely cause affront or alarm” to Girlfriend.
See Utah Code Ann. § 76-9-702.1(1). Based on the foregoing
evidence, we conclude that there is no reasonable probability
that the jury would have acquitted Ricks of sexual battery and
instead convicted him of assault.
¶20 We conclude that Ricks was not prejudiced by his
counsel’s failure to request a lesser-included-offense instruction
on assault because the evidence strongly supports Ricks’s
conviction for forcible sexual abuse and there is no reasonable
20160894-CA 8 2018 UT App 183State v. Ricks
probability that the jury would have acquitted Ricks of sexual
battery. More specifically, we are not convinced that, but for
counsel’s failure to request a lesser-included-offense instruction
on assault, “the result of the proceeding would have been
different.” See Strickland, 466 U.S. at 694. “And because both
deficient performance and resulting prejudice are requisite
elements in a successful ineffective-assistance-of-counsel claim,”
Ricks’s failure to demonstrate prejudice “necessarily defeats his
claim.” See State v. Hull, 2017 UT App 233, ¶ 21, 414 P.3d 526.
CONCLUSION
¶21 Ricks has not demonstrated that he was prejudiced by his
trial counsel’s failure to request a lesser-included-offense
instruction on assault. We therefore conclude that trial counsel’s
failure to request such an instruction did not violate Ricks’s
constitutional right to the effective assistance of counsel.
¶22 Affirmed.
20160894-CA 9 2018 UT App 183