State v. Carrick ( 2020 )

2020 UT App 18THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CULLEN CHRISTOPHER CARRICK,
Appellant.
Opinion
No. 20160249-CA
Filed January 30, 2020
First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 141100418
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Appellant Cullen Christopher Carrick challenges his
conviction for burglary. He argues that errors by the trial court
in denying his motion for a directed verdict, admitting a hearsay
statement, and not properly instructing the jury, coupled with
various instances of ineffective assistance of counsel, entitle him
to reversal and a new trial. We disagree and affirm his
conviction.
State v. Carrick
BACKGROUND 1
The Burglary
¶2 Carrick and a woman (Wife) were involved in an
extramarital affair when Wife unexpectedly passed away. Wife’s
friend (Friend) was privy to the affair and had met Carrick once
at Wife’s home (the home). Friend had also seen photos of
Carrick and shared them with her husband (Friend’s Husband).
Friend was “[d]isappointed” in Wife for the affair but was still
“going to be her best friend.” Wife’s husband (Husband) learned
of the affair just days before Wife’s passing when, at the hospital,
he stumbled upon romantic messages on social media between
Carrick and Wife.
¶3 Undeterred by the potential for a confrontation with
Husband, Carrick attended Wife’s funeral. 2 Two of Wife’s
neighbors, neither of whom knew Carrick or about his affair
with Wife, saw him at the funeral wearing a distinctive cowboy
hat with feathers that “looked like it belonged on a Man From
Snowy River.”
¶4 After the funeral, the neighbors returned to their home in
the “daytime,” during the “[a]fternoon.” They saw Carrick,
wearing the “same hat,” walk down the home’s driveway,
remove a screen from a garage window, and crawl inside.
Despite the atypical mode of entry, the neighbors assumed that
Carrick had been asked by Husband or Friend to get something
1. “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.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. On the day in question, there was a traditional funeral service
followed by a balloon release in the parking lot. For ease of
reference, we refer to both events collectively as “the funeral.”
20160249-CA 2 2020 UT App 18State v. Carrick
from the home. They did not call the police but simply
proceeded into their own house to retrieve something. When
they came back out, they saw Carrick exit through the same
window and replace the screen, whereupon they became more
suspicious and called the police. They then waved at Carrick,
who waved back. They did not see Carrick carrying anything
from the home.
¶5 Friend and Friend’s Husband soon pulled up in
separate vehicles and saw Carrick coming out of the
backyard. Friend was “a hundred percent” sure that it was
Carrick, and Friend’s Husband saw Carrick “briskly” enter into,
and then leave in, a silver SUV that was parked just south of the
home.
¶6 A police officer (Officer) came to the home, and the
neighbors described the suspect to Officer as a “slender guy with
long hair” but did not include any mention of the distinctive hat
Carrick was wearing. After several people who had gathered at
the scene identified Carrick through social media, Officer
searched Carrick’s name on his computer and obtained an image
of Carrick’s driver license. He showed it to Friend’s Husband
and one of the neighbors, and both positively identified Carrick
as the person who had entered the home. 3
¶7 One of the individuals at the scene then called Carrick
and handed the phone to Officer. Officer informed Carrick that
he was investigating a break-in at the home, that a number of
3. Nine days later, Officer took the driver license photo he had
initially shown the neighbor back to her and had her initial it.
Officer never followed up on Friend’s Husband’s report that
Carrick left in a silver SUV. Officer also had a fingerprint
dusting kit in his vehicle but decided against dusting for prints
because there were “no obvious fingerprints on the window”
and “[i]f there was fingerprints on the screen, there wouldn’t be
enough . . . of a fingerprint to make an identification.”
20160249-CA 3 2020 UT App 18State v. Carrick
witnesses had seen him enter and leave the home’s garage, and
that he wanted Carrick’s “side of the story.” Carrick said “he
was busy” and asked “how important it was” because he was on
his way to Salt Lake City. Officer responded that “it was very
important” and that if Carrick did not give him an explanation,
he “would have to take what [he] had and forward it to the
county attorney.” In response, Carrick again said he was busy
and hung up before Officer could “get his name, date of birth,
and personal information.”
¶8 Husband then arrived and searched the home to see
if anything was missing. Although he noticed that his golf
clubs in the garage had been moved, nothing appeared to be
missing.
The Trial
¶9 The State charged Carrick with one count of burglary, a
second-degree felony. In the trial court’s opening instructions, in
addition to being instructed on burglary, the jury was instructed
on the lesser-included offense of criminal trespass. The court
also instructed the jury that “[t]he culpable mental state
required” to find Carrick guilty of burglary or criminal trespass
“is intentionally, or knowingly, or recklessly.” The court then
defined “knowingly” as being “aware of the nature of [one’s]
conduct or the existing circumstances” and added that “[a]
person acts knowingly . . . with respect to a result of his conduct
when he is aware that his conduct is reasonably certain to cause
the result.” The court did not define what it meant for a
defendant to act “intentionally” or “recklessly.” Before
presenting the instructions to the jury, the court asked Carrick’s
counsel (Trial Counsel) if he had “any objections to the
instructions,” to which Trial Counsel responded, “No, Your
Honor.”
¶10 At the close of the State’s case-in-chief, in which the State
presented the testimony of Officer, the neighbors, Friend,
Friend’s Husband, and Husband, Trial Counsel moved for a
20160249-CA 4 2020 UT App 18State v. Carrick
directed verdict. Trial Counsel argued that “[t]he State has not
met their burden” of showing that Carrick “entered or remained
unlawfully in a dwelling with the intent to commit a felony or a
theft.” He also argued, with respect to the lesser-included
offense, that even assuming Carrick was in the home, “there has
to be a . . . showing that he was reckless as to whether his
presence would cause fear for the safety of another” and
“[t]here’s been no showing of that.” The court denied the
motion.
¶11 Trial Counsel then presented the testimony of four alibi
witnesses: Tanya, Matthew, Elias, and Celeste. In submitting his
pre-trial alibi witness list, Trial Counsel represented that the alibi
witnesses would testify that “[a]t no time did [Carrick], or any
individual in his party, go to the home.”
¶12 Tanya, a friend of Wife, testified that she sat with Carrick
at the funeral and remained with him until he left when “[i]t was
almost dark” and that he “[a]bsolutely” could not have broken
into the home. She also testified that at no time during the
funeral did he leave and come back because “[h]e didn’t have a
vehicle.”
¶13 Matthew, Wife’s co-worker and Carrick’s friend, testified
that he drove Carrick to and from the funeral. He said the car
he drove was a white 2002 Mazda Protege, which he
indicated was a five-passenger “car, not an SUV.” Matthew
testified that Carrick was at the funeral with him “the whole
time” and never left. They remained after the funeral “for about
an hour or so” and left when “it was getting dark.” They made
no stops on the way back to his work, where he and Carrick
parted ways.
¶14 Elias, a good friend of Carrick’s, testified that he and
Carrick “hung out in the parking lot and talked” for “quite a
while” after the funeral ended. Then, when “it was starting to
get dusk,” a group, including Carrick, left and met up at Elias’s
house in Salt Lake City.
20160249-CA 5 2020 UT App 18State v. Carrick
¶15 Celeste, Elias’s girlfriend and Wife’s friend, testified that
she sat next to Carrick at the funeral and that they “hung out in
the parking lot for around an hour” after the funeral and left
when “[i]t was getting to be dark.” She never saw him leave
before them. She testified that “he hung out with [them]”
because he was “emotionally upset.” Celeste also testified that
“later that night,” Carrick and a few others “hung out at [her
and Elias’s] house.”
¶16 On cross-examination, Celeste testified that she received a
phone call from Husband, a “day or two” after the funeral, and
that he told her “that somebody may have broken into the house
the day of the funeral.” She denied telling Husband that
“Carrick went into the house to get a momento or a token.”
Celeste testified that she told Husband that it could have been
Wife’s cousin’s son (Cousin) who broke in “because he is known
for breaking and entering into their families’ homes on the day
of funerals.” Husband then testified on rebuttal that when he
called Celeste, he asked her “why [Carrick] was in the house and
what he was looking for.” He said she responded that Carrick
“was just in there looking for a momento or . . . something
sentimental.” At this point, Trial Counsel objected on the basis of
hearsay. The court overruled the objection, concluding it was
“not offered for the truth” but “to impeach what [Celeste]
denied.”
¶17 Carrick testified in his own defense. He recounted
meeting Matthew at Matthew’s work and riding with him to the
funeral. He acknowledged wearing a feathered cowboy hat at
the funeral and that its being characterized as a hat reminiscent
of “a Man From Snowy River” was a “fair description.” Carrick
also testified that he stayed and talked “with a lot of people” in
the parking lot for some time after the funeral and that Matthew
dropped him off at Matthew’s work. He then drove home in his
Dodge Caravan, where he switched cars to his father’s Kia and
drove to Salt Lake City. When asked why witnesses would
testify under oath that they saw him enter the home, Carrick
responded that it was because “they didn’t approve of [his]
20160249-CA 6 2020 UT App 18State v. Carrick
relation[ship] with [Wife]” and were apparently willing to
perjure themselves to frame him. The jury convicted Carrick of
burglary.
The Appeal and Rule 23B Remand
¶18 Through new counsel, Carrick appealed. Carrick also
filed, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, a motion alleging ineffective assistance of counsel
and seeking remand to develop “critical facts” regarding Trial
Counsel’s perceived failures and the resulting prejudice to
Carrick.
¶19 Carrick argued that Trial Counsel provided ineffective
assistance when he failed to (1) call “an expert witness to testify
about the deficiencies and pitfalls of eyewitness identifications”;
(2) investigate “the critical failures of Officer . . . to follow
standard CSI practices in his investigation of this case”;
(3) investigate additional key alibi witnesses who accompanied
him during the time the crime allegedly occurred; (4) adequately
investigate Cousin, who “should have been a prime suspect” in
the burglary; (5) adequately investigate Officer’s relationship to
one of the neighbors, with whom he was “more than [a] simple
acquaintance[]”; and (6) demonstrate at trial that Wife had
provided Carrick with the code to the garage door. We denied
Carrick’s motion as to the alleged failure to call an expert
witness because Carrick could not show that Trial Counsel’s
strategy was unreasonable, see State v. Walker, 2010 UT App 157,
¶ 14, 235 P.3d 766, and as to the alleged failure to investigate
Officer’s “CSI” practices and relationship with one of the
witnesses because these assertions relied on speculation, see State
v. Norton, 2015 UT App 263, ¶ 6, 361 P.3d 719. But we partially
granted the motion and remanded for the trial court to take
evidence and make findings regarding Trial Counsel’s alleged
failure to adequately investigate all alibi witnesses and Cousin,
as well as Carrick’s assertion that he informed Trial Counsel that
Wife had given him the garage code, but Trial Counsel failed to
use that information at trial.
20160249-CA 7 2020 UT App 18State v. Carrick
¶20 On remand the trial court found that Carrick and
Trial Counsel discussed alibi witnesses in a meeting during
which Trial Counsel “wrote down the names and contact
information [Carrick] gave him” and that Carrick “failed to
disclose additional alibi witnesses and [Trial Counsel] was not
aware of them.” The court found, however, that Carrick
disclosed to Trial Counsel “that he knew the garage code and
would not need to go through the window” had he desired to
enter the home.
¶21 Additionally, regarding Cousin being a suspect, Carrick’s
private investigator testified that Cousin had two burglary
convictions from Texas and was of a similar height and build as
Carrick but that he was bald whereas Carrick had long hair. The
investigator stated that he did not find any photos of Cousin
wearing a distinctive hat similar to the one the State’s witnesses
testified they saw Carrick wearing on the day of the funeral and
during the burglary. The court ultimately found that the
investigator “did not place [Cousin] at the scene” and that the
only connection between Cousin and the burglary was his
relation to Wife.
ISSUES AND STANDARDS OF REVIEW
¶22 Carrick argues that the trial court committed three errors.
First, he argues that the trial court erred in denying his
motion for a directed verdict. “We review a trial court’s ruling
on a motion for directed verdict for correctness.” State v.
Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168. “In reviewing the
denial of a motion for a directed verdict based on a claim of
insufficiency of the evidence, we will uphold the trial court’s
decision if, upon reviewing the evidence and all inferences that
can be reasonably drawn from it, we conclude that some
evidence exists from which a reasonable jury could find that the
elements of the crime had been proven beyond a reasonable
doubt.” State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation
simplified).
20160249-CA 8 2020 UT App 18State v. Carrick
¶23 Second, Carrick challenges the trial court’s ruling
admitting what Carrick characterizes as a hearsay statement that
established his intent to commit theft. The standard of review for
admissibility of hearsay is “complex.” State v. Workman, 2005 UT
66, ¶ 10, 122 P.3d 639. “We review the legal questions to make
the determination of admissibility for correctness, . . . the
questions of fact for clear error,” and the ultimate “ruling on
admissibility for abuse of discretion.” Id.¶24 Third, Carrick asserts that the trial court erred when it
improperly instructed the jury on the mental states required for
both burglary and criminal trespass. “Generally, whether a jury
instruction correctly states the law presents a question of law
which we review for correctness.” State v. Weaver, 2005 UT 49,
¶ 6, 122 P.3d 566 (quotation simplified). But Carrick raises this
issue as a matter of plain error. “To demonstrate plain error, a
defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of
a more favorable outcome for the appellant.” State v. Dean, 2004
UT 63, ¶ 15, 95 P.3d 276 (quotation simplified). However, if a
defendant “affirmatively approved of the jury instructions . . .
the invited error doctrine precludes our examining the
purported . . . errors under the plain error . . . doctrine.” State v.
Malaga, 2006 UT App 103, ¶ 8, 132 P.3d 703.
¶25 Carrick further contends that Trial Counsel provided
ineffective assistance in four respects. First, Carrick contends
that Trial Counsel was ineffective for not objecting to the jury
instructions’ lack of correct definitions for the culpable mental
states for burglary and criminal trespass. Second, Carrick asserts
that Trial Counsel was ineffective for failing to present evidence
to the jury that Wife had provided Carrick with the code to the
garage door. Third, Carrick argues that Trial Counsel provided
ineffective assistance when he did not investigate additional alibi
witnesses. Fourth, Carrick contends that Trial Counsel was
ineffective for failing to adequately investigate Cousin as a
suspect. Carrick’s claims present questions of law that we
20160249-CA 9 2020 UT App 18State v. Carrick
consider de novo. See State v. Kozlov, 2012 UT App 114, ¶ 29, 276
P.3d 1207. But while “an appellate court is free to make an
independent determination of a trial court’s conclusions”
concerning ineffective assistance of counsel, “the factual findings
of the trial court shall not be set aside on appeal unless clearly
erroneous.” Id. (quotation simplified). 4
ANALYSIS
I. Directed Verdict
¶26 Carrick asserts that the trial court erred when it
denied his motion for a directed verdict at the close of the
State’s case because “the record demonstrates a lack of evidence
that directly shows, or even supporting an inference reasonably
to be drawn from the evidence, that [Carrick]—assuming he had
unlawfully entered or remained in the house—intended to
commit theft.” 5
4. Carrick also argues that the cumulative effect of multiple
errors was prejudicial. “A reviewing court will reverse a jury
verdict under the cumulative error doctrine only if the
cumulative effect of the several errors undermines confidence
that a fair trial was had.” State v. Killpack, 2008 UT 49, ¶ 56, 191
P.3d 17 (quotation simplified). Because we see no error—actual
or assumed—that harmed Carrick, much less more than one,
there are no errors to cumulate, and the doctrine is inapplicable.
See State v. Martinez-Castellanos, 2018 UT 46, ¶ 35, 428 P.3d 1038(“The cumulative error doctrine applies only to errors that could
conceivably harm a party in some way. Errors with no potential
for harm do not accumulate.”).
5. Because Carrick challenges only the sufficiency of the evidence
to prove that he had the intent to commit a theft inside the home,
we analyze whether there was sufficient evidence to prove this
(continued…)
20160249-CA 10 2020 UT App 18State v. Carrick
¶27 Carrick was charged with burglary of a dwelling, and
under the facts of this case, the State was required to prove
beyond a reasonable doubt that Carrick entered the home with
the “intent to commit . . . theft.” Utah Code Ann. § 76-6-202(1)(b)
(LexisNexis 2017). 6 Because “intent, being a state of mind, is
rarely susceptible of direct proof . . . it can be inferred from
conduct and attendant circumstances in the light of human
behavior and experience.” State v. Hopkins, 359 P.2d 486, 487
(Utah 1961). See also State v. Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346(“It is well established that intent can be proven by
circumstantial evidence.”) (quotation simplified). Such
circumstantial evidence may include “the manner of entry, the
time of day, the character and contents of the building, the
person’s actions after entry, the totality of the surrounding
circumstances, and the intruder’s explanation.” State v. Porter,
705 P.2d 1174, 1177 (Utah 1985).
¶28 In this case, the State presented ample evidence to
warrant submitting the case to the jury so that it could decide
whether Carrick intended to commit a theft once inside the
home. First, Carrick was having an affair with Wife, of which
Husband was unaware until just before Wife’s passing. Second,
Carrick was at the funeral where he was “emotionally upset”
and witnessed Husband superintending the funeral proceedings.
Third, witnesses placed Carrick at the home after the funeral and
saw him remove a screen from a garage window, crawl through
it, and then leave through the same window instead of a door,
which one with permission to enter would likely have used once
(…continued)
element of the crime—not whether there was sufficient evidence
to establish that he entered the home, which there was.
6. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.
20160249-CA 11 2020 UT App 18State v. Carrick
he gained entry into the locked home. Witnesses also saw
Carrick leave the home “briskly” and enter a waiting vehicle.
Thus, the jury could have properly “inferred from [Carrick’s]
conduct and attendant circumstances in the light of human
behavior and experience,” Hopkins, 359 P.2d at 487, that because
of Carrick’s affair with Wife, he may have wanted to enter the
home—which he had visited on at least one prior occasion—to
obtain something of sentimental value by which to remember
Wife. A reasonable jury could also properly infer from this
evidence that he used the time immediately after the funeral to
go into the home, knowing Husband would not be present, so
that he could complete the theft undetected. Furthermore, his
mode of entry and exit was consistent with that of an individual
who intended to commit a theft in the home. Cf. State v.
Robertson, 2005 UT App 419, ¶ 16, 122 P.3d 895 (holding that a
jury could reasonably infer the defendant intended to commit a
theft because he “entered the home through a window after
prying off a window screen,” the defendant did not have
permission to be in the home, and the defendant “fled the scene
and provided no explanation for his actions”).
¶29 Ultimately, the State presented at least “some evidence . . .
from which a reasonable jury could find that the element[] [of
intent to commit a theft] had been proven beyond a reasonable
doubt.” 7 State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 11837. Carrick relies on the fact that “[n]one of the State’s witnesses
. . . provided any testimony that [he] had been seen carrying
anything from the house” to support his position that the State
“fail[ed] to produce believable evidence of all the elements of
Burglary beyond a reasonable doubt.” But this point is irrelevant
because the crime of burglary “is complete when the entry is
made with the intent. Whether anything is stolen or not has
nothing to do with the crime.” State v. Facer, 552 P.2d 110, 111
(Utah 1976). Although Carrick was not seen carrying anything
and Husband did not notice anything missing, this does not
necessarily mean that Carrick did not enter with the intent to
(continued…)
20160249-CA 12 2020 UT App 18State v. Carrick
(quotation simplified). Therefore, the trial court did not err; it
was “the trial court’s duty to submit the case to the jury.”8 Id.
¶ 33 (quotation simplified).
II. Hearsay
¶30 Carrick asserts that the trial court erred in overruling his
hearsay objection to Husband’s testimony that Celeste told him
that Carrick was in the home “looking for a momento or . . .
something sentimental.” Hearsay is an out-of-court statement
offered “to prove the truth of the matter asserted in the
statement,” Utah R. Evid. 801(c), and is ordinarily inadmissible
at trial, id. R. 802. Statements that are not considered hearsay
include those in which “[t]he declarant testifies and is subject to
cross-examination about a prior statement, and the statement . . .
is inconsistent with the declarant’s testimony or the declarant
denies having made the statement or has forgotten.” Id.
R. 801(d)(1)(A). Extrinsic evidence of prior inconsistent
statements “is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse
party is given an opportunity to examine the witness about it, or
if justice so requires.” Id. R. 613(b).
¶31 On cross-examination, the State asked Celeste whether it
was “true that [she] told [Husband] that . . . Carrick went into
(…continued)
steal something. Carrick could have stolen something small
(such as jewelry, a picture, or a note) and put it in his pocket.
8. Carrick also argues that the trial court erred in denying his
directed verdict motion regarding the lesser-included offense of
criminal trespass. But because the jury convicted him of
burglary, and the court did not err in denying Carrick’s directed
verdict motion as to that charge, we have no need to discuss
whether there was also sufficient evidence to convict Carrick of
the lesser-included offense of criminal trespass.
20160249-CA 13 2020 UT App 18State v. Carrick
the house to get a momento or a token.” Celeste conceded that
she spoke with Husband “[a] day or two” after the funeral but
denied telling Husband that Carrick went into the home. Carrick
then had an opportunity for redirect examination, which he
took, but decided to question Celeste only about another issue
that arose during the State’s cross-examination of her. The State
then called Husband to testify in rebuttal. Husband testified that
when he called Celeste, he asked her “why [Carrick] was in [the]
house and what he was looking for,” and she responded that
“[Carrick] was just in there looking for a momento or . . .
something sentimental.” Under rule 801(d), Husband’s rebuttal
testimony about what Celeste told him was not hearsay because
he was testifying about a prior inconsistent statement made by
Celeste that she “denie[d] having made.” Id. R. 801(d)(1)(A).
Celeste was “given an opportunity to explain or deny the
statement,” and Carrick was “given an opportunity to examine
[Celeste] about it.” Id. R. 613(b).
¶32 Carrick, however, argues that Husband’s testimony was
hearsay because the State “substantively used the statement for
its truth [during closing argument].” But Carrick makes no
attempt to explain how the statement was not admissible as a
prior inconsistent statement under rule 801(d) in the first place,
which we conclude it was. The trial court’s admission of the
statement at the time it was offered was consistent with rule
801(d), and we reject Carrick’s assertion that the State’s use
during closing argument of Husband’s testimony regarding
Celeste’s statement to him somehow retroactively rendered the
statement hearsay. If Carrick had a problem with how the State
used the statement during closing argument, Carrick should
have objected at that time, which he did not, and he does not
now claim Trial Counsel was ineffective for failing to object. In
any event, the State’s use of the prior inconsistent statement for
its truth during closing argument would not have rendered the
testimony inadmissible. Although the trial court overruled
Carrick’s objection on the ground that Husband’s testimony was
“not offered for the truth” but “to impeach what [Celeste]
denied,” prior inconsistent statements are statements that do not
20160249-CA 14 2020 UT App 18State v. Carrick
qualify as hearsay and generally may be used for their truth. See
State v. Zaelit, 2010 UT App 208U, para. 4 (holding that prior
inconsistent statements are not limited to impeachment and may
be used as “‘substantive evidence’”) (quoting Utah R. Evid. 801
advisory committee note) (emphasis in original). See also
R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah
Evidence 824 (2018–2019 ed.) (“[U]nder the Utah rule a prior
inconsistent statement is admissible to prove the truth of the
matter asserted.”).
III. Plain Error
¶33 Carrick argues that the trial court plainly erred in not
providing correct definitional instructions to the jury on the
culpable mental states for the charges of burglary and criminal
trespass. The State contends that Carrick’s plain error argument
is not available to him because Carrick invited any error made
by the trial court in instructing the jury. We agree with the State.
¶34 “Under the doctrine of invited error, an error is invited
when counsel encourages the trial court to make an erroneous
ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. This “rule
discourages parties from intentionally misleading the trial court
so as to preserve a hidden ground for reversal on appeal and
gives the trial court the first opportunity to address the claim of
error.” Id. (quotation simplified). “Thus, when an error is invited
by an appellant, we will not review it even for plain error.” State
v. Oliver, 2018 UT App 101, ¶ 27, 427 P.3d 495. “To invite an
error, a party must do more than simply fail to object; the party
must manifest some sort of affirmative representation to the trial
court that the court is proceeding appropriately.” State v. Popp,
2019 UT App 173, ¶ 23, 453 P.3d 657. “In the context of jury
instructions, our supreme court has held that an instruction is
not subject even to plain error review if counsel, in response to a
question from the court about whether counsel has any objection
to the instruction, answers in the negative.” Id. (quotation
simplified). See also State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d
111 (holding that appellate review is unavailable “if counsel,
20160249-CA 15 2020 UT App 18State v. Carrick
either by statement or act, affirmatively represented to the court
that he or she had no objection to the jury instruction”).
¶35 In this case, before presenting the jury with the
instructions, the trial court asked Trial Counsel if he had “any
objections to the instructions,” to which Trial Counsel
responded, “No, Your Honor.” Thus, because Trial Counsel
made “an affirmative representation encouraging the court to
proceed without further consideration of [the jury instructions],”
thus inviting any resulting error, we “need not consider
[Carrick’s] objection” to those instructions under the plain error
doctrine. State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985. See State v.
Geukgeuzian, 2004 UT 16, ¶ 10, 86 P.3d 742 (“[A] defendant
invite[s] error where his counsel confirm[s] on the record that
the defense ha[s] no objection to the instructions given by the
trial court.”).
IV. Ineffective Assistance of Counsel
¶36 Carrick next contends that Trial Counsel rendered
ineffective assistance in four respects: first, by not objecting to
the lack of definitions for the culpable mental states of burglary
and criminal trespass; second, by not presenting evidence to the
jury that Wife had provided Carrick with the code to the garage
door; third, by not investigating additional alibi witnesses; and
fourth, by failing to adequately investigate Cousin as a potential
suspect.
¶37 The standard a defendant must meet in order to gain
relief for ineffective assistance of counsel is a familiar one, and
was recently summarized as follows:
To prove a claim of ineffective assistance of
counsel, a defendant must establish both that his
counsel’s performance was deficient and that the
deficient performance prejudiced the defense. To
establish the first element, the defendant must
show that his counsel’s performance fell below an
20160249-CA 16 2020 UT App 18State v. Carrick
objective standard of reasonableness. Thus, he
must convince us that, despite the fact that counsel
is strongly presumed to have rendered adequate
assistance, counsel’s acts or omissions nevertheless
fell outside the wide range of professionally
competent assistance. The second element requires
the defendant to show there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have
been different. A reasonable probability is a
probability sufficient to undermine confidence in
the outcome. In evaluating this element, courts
consider the totality of the evidence before the
judge or jury, recognizing that some errors will
have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire
evidentiary picture, and some will have had an
isolated, trivial effect.
Proof of ineffective assistance of counsel
cannot be a speculative matter but must be a
demonstrable reality. Both elements of the claim
must be present, and if either is lacking, the claim
fails and the court need not address the other.
State v. Lopez-Gonzalez, 2020 UT App 15, ¶¶ 19–20 (quotation
simplified).
A. Jury Instructions
¶38 Carrick contends that Trial Counsel was ineffective for
not objecting to the jury instructions. He argues that the
instructions were “wholly insufficient” because they did not
define “intent” (the culpable mental state for burglary), see Utah
Code Ann. § 76-6-202(1) (LexisNexis 2017), or “reckless” (the
culpable mental state for criminal trespass), see id.§ 76-6-206(2)(a)(iii), while instead defining only “knowingly.”
While we are admittedly perplexed that the trial court provided
20160249-CA 17 2020 UT App 18State v. Carrick
the definition of an irrelevant mental state, and not the mental
states at issue, we do not agree that Trial Counsel rendered
ineffective assistance by not objecting, because Carrick has not
shown prejudice.
¶39 Here, had Trial Counsel objected to the jury instructions
for their lack of definitions for the applicable mental states,
prompting the trial court to give the statutory definition of
intent, it is not reasonably probable that the verdict would have
been different. 9 Under the Utah Code, intentional conduct is
defined as acting “[i]ntentionally, or with intent or willfully with
respect to the nature of his conduct or to a result of his conduct,
when it is his conscious objective or desire to engage in the
conduct or cause the result.” Utah Code Ann. § 76-2-103(1)
(LexisNexis 2017). This definition comports with the plain
meaning of the word intent. See, e.g., Webster’s Third New
International Dictionary 1176 (1993) (defining “intent” as “the
design or purpose to commit” an “act that is the natural and
probable consequence of other voluntary acts or conduct”).
Thus, even if the jury had been provided the statutory definition
of intent, there is not a reasonable probability that it would have
viewed Carrick’s actions in entering and exiting the home any
differently than it did because the statutory definition simply
reiterated the common meaning of the word, which we assume
was within the jury’s knowledge. See People v. Powell, 512 N.E.2d
1364, 1370 (Ill. App. Ct. 1987) (holding that the trial court did not
err in failing to define “knowingly and intentionally because
those terms have a plain meaning within the jury’s common
knowledge”). This is especially so because the State presented a
substantial amount of evidence indicating that Carrick had a
9. We do not address Carrick’s claim regarding criminal trespass.
The jury convicted him of burglary, and as explained in the text,
he suffered no prejudice attributable to definitional confusion on
that conviction. Thus, there is no need for us to address Carrick’s
claim regarding criminal trespass, a charge on which he was not
convicted.
20160249-CA 18 2020 UT App 18State v. Carrick
“conscious objective or desire,” see Utah Code Ann.
§ 76-2-103(1), to enter the home to commit theft. Furthermore,
the State argued its case in a manner consistent with the
statutory definition of intent. In its opening statement, the State
argued that Carrick “went into [the home] for the purposes of
retrieving something.” Then, in its closing argument, the State
argued that Carrick did not go into the home “[t]o look around
and smile [or] look in the mirror and see how good he looked”
but “to find something and to retrieve it because he wanted it.”
The State continued, “[Y]ou can infer from the fact that he went
into that house, you can infer from the motives that are likely
that, in fact, he was in there to find something.” Thus, the
evidence was presented to the jury in a manner consistent with
the statutory definition of intent, and the jurors would in all
reasonable probability have reached the same result had they
been instructed in accordance with the statutory definition of
intent. Carrick’s claim of ineffective assistance of counsel is
therefore unavailing, because he has not shown prejudice.
B. Garage Passcode
¶40 Carrick asserts that he received ineffective assistance
when Trial Counsel failed to present evidence that Carrick knew
the passcode to the garage and therefore had no need to enter
the home through a window to the attached garage. Carrick
argues that he was prejudiced by this failure because evidence
that Wife gave him the passcode to the garage “directly
contradicted the possibility that he would have entered the
home through the garage window,” thereby creating a
reasonable probability of acquittal. We disagree. Even assuming
Trial Counsel performed deficiently in this regard, the claim fails
because Carrick has not shown prejudice.
¶41 Two neighbors saw Carrick at the funeral wearing a
distinctive cowboy hat with feathers that “looked like it
belonged on a Man From Snowy River,” and then when they
returned home they saw Carrick, still wearing that distinctive
hat, crawl into and out of the garage through the window.
20160249-CA 19 2020 UT App 18State v. Carrick
Additionally, Friend (who had previously met Carrick in person)
and Friend’s Husband saw Carrick coming out of the backyard
of the home. Thus, the jury heard from four witnesses who
placed Carrick at the scene in the “daytime,” during the
“afternoon,” with no significant obstacles to obstruct their view.
Moreover, Carrick’s mere knowledge of the garage code does
not compel the conclusion that he could not possibly have
entered through the window. Even with knowledge of the
code, 10 he may have still entered through the window thinking it
was more covert than having the large garage door open up for
all to see. Or he may have figured that not using the code would
deflect attention from him, setting up the very argument he now
makes, namely that it could not be him because he would not
have gone in through the garage window because he had the
code. These possibilities dispel the conclusion that, but for Trial
Counsel not introducing evidence that Carrick knew the code,
there is a reasonable probability the jury would have acquitted
him. And mere knowledge of the code does not, as Carrick
contends, “directly contradict[]” the ample eyewitness testimony
that he entered through the garage window. Ultimately, Carrick
cannot show that it is “a demonstrable reality and not a
speculative matter,” see State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d
1031 (quotation simplified), “that there is a reasonable
probability that . . . the result of the proceeding would have
been different” had the jury heard that he knew the passcode
to the garage, see Strickland v. Washington, 466 U.S. 668, 694
(1984).
C. Alibi Witnesses
¶42 Carrick contends that Trial Counsel was ineffective for
failing to investigate additional alibi witnesses. On remand, the
trial court found that Carrick never told Trial Counsel about
10. Curiously, despite his oft-repeated claim to have known the
code, Carrick never disclosed the code’s numerical sequence in
support of this claim.
20160249-CA 20 2020 UT App 18State v. Carrick
these additional witnesses, and Carrick has not shown this
finding to be clearly erroneous.
¶43 But the fact that Carrick did not inform Trial Counsel of
the additional alibi witnesses does not automatically establish
that Trial Counsel’s performance was not deficient. Whether or
not their clients inform them of alibi witnesses, counsel are still
required “to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Menzies v. State, 2014 UT 40, ¶ 183, 344 P.3d 581(quotation simplified). But “[t]he Sixth Amendment does not
require counsel to interview every possible relative or
acquaintance or to fully investigate every potential lead.” Id.(emphasis in original).
¶44 Here, Trial Counsel acted reasonably in presenting four
solid alibi witnesses at trial, whom he and Carrick did discuss.
Trial Counsel was therefore not remiss in forgoing an
investigation of the possible existence of other, cumulative alibi
witnesses whom Carrick had not mentioned. See State v.
Rasabout, 2013 UT App 71, ¶¶ 43, 46, 299 P.3d 625 (holding that
counsel’s failure to further investigate alibi witnesses was not
deficient performance when defendant “never informed his
counsel of the two witnesses who could corroborate his alibi”
and “counsel inquired about potential witnesses and was given
only one lead”), aff’d, 2015 UT 72, 356 P.3d 1258.
D. Investigation of Cousin
¶45 Carrick’s claim that Trial Counsel provided ineffective
assistance by not adequately investigating Cousin as a potential
suspect is also unpersuasive because Carrick has not
demonstrated prejudice.
¶46 The trial court found that Cousin was bald, while Carrick
had long hair; Carrick’s private investigator did not place
Cousin at the scene, while four witnesses placed Carrick at the
scene. Furthermore, there was no evidence that Cousin wore a
20160249-CA 21 2020 UT App 18State v. Carrick
distinctive, feathered cowboy hat, while multiple witnesses
testified to seeing Carrick wearing one at the funeral and at the
home. Indeed, nothing in the record indicates that Cousin was
even in the area that day, while it is undisputed that Carrick
attended the funeral.
¶47 Assuming, without deciding, that Trial Counsel was
remiss for not investigating Cousin, the trial court’s findings
demonstrate that even if Trial Counsel had done so, he would
not have uncovered evidence that would have given rise to “a
reasonable probability” of a different outcome at trial. See
Strickland v. Washington, 466 U.S. 668, 694 (1984).
CONCLUSION
¶48 Carrick’s three claims of trial court error are unavailing.
The trial court did not err in denying Carrick’s directed verdict
motion because there was sufficient evidence for the case to be
submitted to the jury. The court also did not err in overruling his
hearsay objection because the complained-of statement was
properly admitted as a prior inconsistent statement. Finally,
because Carrick invited any error with respect to the jury
instructions on the culpable mental states for burglary and
criminal trespass, we do not consider his claim that the trial
court plainly erred in giving these instructions.
¶49 Carrick’s argument that he received ineffective assistance
of counsel in four respects is likewise unavailing. Carrick’s
contention that Trial Counsel was ineffective for (1) failing to
object to the trial court not instructing the jury on the culpable
mental states for burglary and criminal trespass, (2) not
presenting evidence that he knew the passcode to the garage
door, and (3) not investigating Cousin as a potential suspect are
unavailing due to a lack of demonstrated prejudice.
Furthermore, Carrick’s claim that Trial Counsel was ineffective
for failing to investigate additional alibi witnesses is
unsuccessful because Trial Counsel’s performance was not
20160249-CA 22 2020 UT App 18State v. Carrick
deficient in this regard. Trial Counsel presented four alibi
witnesses at trial, and Carrick never informed him of the
additional witnesses.
¶50 Affirmed.
20160249-CA 23 2020 UT App 18