State v. Von Niederhausern , 427 P.3d 1277 ( 2018 )

2018 UT App 149THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LAMONT STEPHEN VON NIEDERHAUSERN,
Appellant.
Opinion
No. 20160581-CA
Filed August 9, 2018
Fourth District Court, Nephi Department
The Honorable Jennifer A. Brown
No. 141600106
Nathan K. Phelps, Attorney for Appellant
Ryan V. Peters and AnnMarie T. Howard, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 Defendant Lamont Stephen Von Niederhausern allegedly
sexually assaulted his adult daughter, Victim, on four separate
occasions. The State charged Defendant with two of the four
alleged incidents. At trial, the State moved to introduce evidence
of the other two incidents under rule 404(b). The trial court
allowed the evidence, despite Defendant’s objection, and issued
a limiting instruction. The trial court also employed—without
objection—a jury instruction based on statutorily undefined
terms which the court defined for the purpose of the instruction
by using dictionaries. The jury convicted Defendant as charged.
Defendant timely appeals, alleging that the trial court abused its
discretion by admitting the character evidence and erred in
employing dictionary definitions in the additional jury
instruction. We affirm.
State v. Von Niederhausern
BACKGROUND 1
Incident One
¶2 Incident One occurred in December 2011, when
Defendant visited Victim’s home. During Defendant’s visit,
Victim fell asleep on the couch in her living room. She awoke to
someone kissing her neck in a “very sexual . . . nature” and
“assumed it was [her] husband” because it was open mouthed
and his tongue was on her neck. He had his left hand pressing
on her right rib cage, which was “below [her] breast but . . .
touching [her] bra[.]” Upon seeing that it was actually her father
touching her, Victim froze in place, completely in shock.
¶3 Soon thereafter, Victim’s husband (Husband) entered the
room, heard “weird kissing noises,” and saw Defendant leaning
over Victim with his face down. Husband yelled, “Hey!” and
Defendant ran out the door of the house, quickly got into his car,
and drove away. Afterward, Defendant stayed away from
Victim and her immediate family for approximately eight
months.
Incident Two
¶4 Incident Two (Count One) occurred in October 2012.
Without permission or invitation, Defendant visited Victim’s
new home, where he spent the night. The next morning,
Defendant, Victim, and her children were at the house after
Husband had gone to work. Victim heard Defendant speak in a
“very low, husky voice, and ask[] her [daughter] if she had her
big girl panties on.” Victim’s eight-year-old daughter was visibly
shocked. Victim gave him a “dirty look,” and he stopped talking
to her daughter in that manner.
1. “On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.”
State v. Pham, 2015 UT App 233, ¶ 2, 359 P.3d 1284.
20160581-CA 2 2018 UT App 149State v. Von Niederhausern
¶5 Defendant then got on the computer, purportedly to look
for a job, but instead pulled “multiple tabs up with pornographic
images and violent animal documentaries.” Shortly thereafter,
Defendant went up to a bedroom to “take a nap.” But instead of
sleeping, Defendant began to masturbate. Victim caught him
and ordered him to leave the house, but he ignored her request.
Later, Defendant approached Victim’s six-year-old son and
asked “if he had his big boy briefs on” in a “low, husky voice.”
Victim once again ordered Defendant to leave, and she took her
son out of the room.
¶6 Defendant finally acquiesced to the repeated requests for
him to leave and slowly took his belongings out to the car.
However, once he had packed the final item, he snuck back into
the house. Victim became aware that he had returned only after
Defendant suddenly pressed against her from behind with his
hands on her breasts, thrusting “with his erect penis pushed
against her buttocks,” kissing the right side of her neck with an
open mouth while using his tongue, and grinding against her
several times.
¶7 While Defendant sexually assaulted her, Victim froze
until she heard her children, who were still in the house. Upon
hearing the children, Defendant “whirled around, ran out the
open door, jumped into his car,” and quickly drove away. Victim
began crying and called Husband to relay what had happened.
Thereafter, Victim and her family did not see or hear from
Defendant for over a year.
Incident Three
¶8 Incident Three (Count Two) occurred during a family
event on a Saturday in December 2013. Defendant was invited
with the understanding that he was to leave directly afterward.
However, because it began to snow, Victim and Husband
allowed Defendant to stay at their home over the weekend. On
Monday morning, after Husband went to work, Victim sat down
at her computer with her back to Defendant. Suddenly,
Defendant approached Victim, reached around the chair, put his
20160581-CA 3 2018 UT App 149State v. Von Niederhausern
hands on Victim’s breasts, and kissed her neck with an open
mouth using his tongue. Victim told him to stop several times,
but he became more aggressive. As the abuse escalated, Victim
burst out of the chair and went to the kitchen “fuming.” She told
Defendant that she was going to call Husband and that he
needed to leave immediately. Defendant left.
Incident Four
¶9 A few days after Incident Three, Victim and her family
visited her mother’s home to Skype with her sister. When
Defendant showed up at the house, Victim left the room that
Defendant was in and went into the kitchen. While she was
alone in the kitchen, Defendant swiftly approached her and
grabbed her from behind. He touched her lower pelvis and
breasts and began thrusting against her and kissing her neck.
¶10 Becoming “alarmed that he was bold enough to do this in
front of [the] family,” she told him to stop, but he became more
assertive. He did not stop and when she tried to move away, he
grabbed her arms. He started speaking in a “seductive kind of
way” to her and she said, “Please let go. Let go of me.” He
ignored her, so she grabbed a cup of water and dumped it on
him. Husband heard her say, “Stop,” and, “Let go,” and he also
saw that Defendant had grabbed ahold of Victim’s arm as she
attempted to pull away. Additionally, Husband witnessed
Victim toss water in Defendant’s face. At the same moment that
the incident began to de-escalate, Victim’s sister called the family
on Skype, so Defendant went into the other room to speak with
her. When the call ended, Defendant quickly left the house,
leaving the door open behind him.
Summary of Proceedings
¶11 The State charged Defendant with two counts of class A
misdemeanor sexual battery relating to Incidents Two and
Three. See Utah Code Ann. § 76-9-702.1 (LexisNexis 2017). Both
counts were based on Defendant touching Victim’s buttocks
and/or breasts under circumstances he knew or should have
20160581-CA 4 2018 UT App 149State v. Von Niederhausern
known would likely cause her affront or alarm. See id. Prior to
trial, the State moved to present evidence under Rule 404(b) that
Defendant had sexually touched Victim on two other occasions:
Incidents One and Four. The State argued that the evidence was
permissible for the noncharacter purposes of showing context,
intent, plan, preparation, motive, knowledge, absence of
mistake, or lack of accident, or to complete the narrative and
disprove Defendant’s claim that the witnesses were fabricating
their version of events.
¶12 The trial court held an evidentiary hearing followed by
arguments of counsel. In a written ruling, the trial court allowed
the State to present evidence of Incidents One and Four,
although the State did not bring charges regarding those
incidents. The trial court wrote:
The consistency of grabbing his daughter when he
thought others were not watching, of touching her
breasts, pressing his pelvis against her buttocks,
kissing her neck, and then fleeing when confronted
show intent, motive, plan and preparation to
commit the crimes charged. This evidence also
shows that the defendant . . . knew or should know
his conduct would likely cause affront or alarm to
his adult daughter.
Prior to any testimony by Victim regarding Incidents One and
Four, the judge read a limiting instruction reminding the jury
that the evidence was to be used for specific, noncharacter
purposes. Before closing arguments, the court read the limiting
instruction again.
¶13 The trial court also gave—without objection—a jury
instruction based on the statutorily undefined terms “affront”
and “alarm,” which were defined for purposes of the instruction
by using three dictionaries: Black’s Law Dictionary, Oxford
Dictionary, and Merriam-Webster Dictionary. The jury convicted
20160581-CA 5 2018 UT App 149State v. Von Niederhausern
Defendant as charged. Defendant timely appeals and we reject
his contentions.
ISSUES AND STANDARDS OF REVIEW
¶14 Defendant raises two issues on appeal. First, he argues
that the trial court abused its discretion by admitting Incidents
One and Four as bad-act evidence against Defendant under rule
404(b) of the Utah Rules of Evidence. We review a trial court’s
decision to admit evidence under rule 404(b) for abuse of
discretion. See State v. Reece, 2015 UT 45, ¶ 17, 349 P.3d 712.
While case law has previously spoken of a requirement of
“scrupulous examination” of evidence and appellate review has
often closely examined the reasoning of the trial court in
addressing rule 404(b) evidence, our supreme court recently
repudiated that standard. See State v. Thornton, 2017 UT 9, ¶ 53,
391 P.3d 1016. The court clarified that the correct standard of
appellate review regarding evidentiary questions is “whether
the district judge made an error in admitting or excluding the
evidence in question.” Id. (emphasis omitted). Said another way,
we no longer focus on the path the trial court followed in
reaching its conclusion, but review only the conclusion itself. Id.
¶ 3 (“[T]he appellate review of evidentiary rulings is on the
decision made at trial, not the process by which that decision is
reached.”). 2
2. We note that at times, Utah case law has described rule 404(b)
as an “inclusionary” rule. See State v. Lowther, 2017 UT 34, ¶ 30
n.40, 398 P.3d 1032. Our supreme court has repudiated that
characterization in favor of looking to “the plain language of
rule 404(b) for the standard for the admissibility of evidence: it
does not carry with it an attendant presumption of either
admissibility or inadmissibility.” Id. But see State v. Thornton,
2017 UT 9, ¶ 58, 391 P.3d 1016 (“The threshold 404(b) question is
whether the evidence has a plausible, avowed purpose beyond
the propensity purpose that the rule deems improper. If it does
(continued…)
20160581-CA 6 2018 UT App 149State v. Von Niederhausern
¶15 Second, Defendant contends that his defense counsel was
ineffective for allowing the crime of sexual battery to be so
broadly defined in the jury instructions that Defendant suffered
unfair prejudice. “A claim of ineffective assistance of counsel
raised for the first time on appeal presents a question of law that
we review for correctness.” State v. Charles, 2011 UT App 291,
¶ 18, 263 P.3d 469.
ANALYSIS
I. Character Evidence
¶16 Defendant asserts that the trial court abused its discretion
by admitting evidence of his other two alleged bad acts
(Incidents One and Four) under rule 404(b) of the Utah Rules of
Evidence. This argument fails. Rule 404(b) provides,
Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to
show that on a particular occasion the person acted
in conformity with the character. . . . [but] may be
admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.
Utah R. Evid. 404(b). Accordingly, under rule 404(b), evidence of
a defendant’s bad act is not admissible to prove that “a
defendant has a propensity for bad behavior and has acted in
conformity with his dubious character.” State v. Burke, 2011 UT
App 168, ¶ 29, 256 P.3d 1102. But bad-act evidence is admissible
under rule 404(b) if it is offered for a proper, noncharacter
purpose. See id. ¶¶ 29–30.
(…continued)
then the evidence is presumptively admissible (subject to rule
402 and 403 analysis).”).
20160581-CA 7 2018 UT App 149State v. Von Niederhausern
¶17 As stated, while our supreme court has clarified that
appellate assessment regarding admission of evidence is limited
to “whether the district judge made an error” the court also
noted that “[t]he careful trial judge will still proceed as outlined
in our [previous decisions]—marching through the standards set
forth in rules 404(b), 402, and 403, and presenting . . . analysis on
the record. And the judge who does so will be better-positioned
to have [the] decision on admissibility of prior misconduct
evidence affirmed on appeal.” State v. Thornton, 2017 UT 9,
¶¶ 53–54, 391 P.3d 1016. 3 The evidence “(1) must be offered for a
genuine, noncharacter purpose, (2) must be relevant to that
noncharacter purpose, and (3) the probative value of the
evidence must not be substantially outweighed by the danger of
unfair prejudice.” State v. Reece, 2015 UT 45, ¶ 57, 349 P.3d 712(cleaned up). For the reasons that follow, we conclude that the
court did not abuse its discretion in admitting the evidence.
3. Significantly, the Thornton court expressly repudiated any
requirement that a trial court scrupulously examine evidence of
other acts. 2017 UT 9, ¶ 44. Indeed, subsequent to Thornton, our
supreme court held that mechanically applying the so-called
Shickles factors constituted reversible error. Lowther, 2017 UT 34,
¶¶ 1, 21, 34, 45. The court in Thornton also appreciated that
evidence often provides competing inferences, both proper
(noncharacter) and improper (character). Noting that tension, the
Thornton court stated that under appropriate circumstances, a
trial court might conclude that the offered noncharacter purpose
is a ruse, but “[s]hort of that, however, the court’s job under rule
404(b) is not to balance or weigh competing (proper and
improper) inferences.” Thornton, 2017 UT 9, ¶ 59. This counters
earlier decisions in which trial courts were expected to ferret out
the predominate purpose. See, e.g., State v. Verde, 2012 UT 60,
¶ 17, 296 P.3d 673 (holding that evidence aiming to establish
propensity should be excluded despite a “proffered (but
unpersuasive) legitimate purpose”), abrogated by Thornton, 2017
UT 9.
20160581-CA 8 2018 UT App 149State v. Von Niederhausern
A. Noncharacter Purpose
¶18 Here, the trial court appropriately admitted the evidence
for at least two 4 different proper, noncharacter purposes:
(1) intent and (2) absence of mistake or lack of accident.
1. Intent
¶19 Evidence is offered for a proper, noncharacter purpose if
used to prove intent. See Utah R. Evid. 404(b)(2). Here, the two
additional incidents, when considered in tandem with the two
charged offenses, are relevant to show Defendant’s intent.
Because sexual battery requires that the defendant not only
commit the act of touching, but do so under circumstances that
he knows or should know would likely cause affront or alarm,
the evidence of the additional two acts is relevant to show
Defendant’s intent. See Utah Code Ann. § 76-9-702.1(1)
(LexisNexis 2017) (stating that a defendant commits the crime of
sexual battery “under circumstances the actor knows or should
know will likely cause affront or alarm to the person touched”);
see also State v. Burke, 2011 UT App 168, ¶ 30, 256 P.3d 1102(holding that multiple offenses of sexual misconduct, when
considered together, show specific intent and “demonstrate a
pattern of conduct related to and arising from that intent”).
¶20 Incident One, which occurred while Victim was sound
asleep, is evidence that Defendant specifically intended to act
upon Victim under circumstances that he knew or should have
known would likely cause affront or alarm. The act—touching
and licking Victim, his adult daughter, as she slept on the
couch—“could reasonably be inferred with a basis in logic and
human experience” as evidence of Defendant’s intent, since it
involved more than just a simple, familial gesture or a harmless
4. The State also argues that the evidence is admissible for the
purpose of narrative, but since the decision of the trial court can
be sustained on the grounds of intent and absence of mistake, we
need not address every other possible noncharacter basis.
20160581-CA 9 2018 UT App 149State v. Von Niederhausern
or accidental physical act. See State v. Whitaker, 2016 UT App 104,
¶ 14, 374 P.3d 56 (holding that intent to arouse or gratify sexual
desire can reasonably be inferred “with a basis in logic and
human experience” from circumstantial evidence). Here,
Defendant’s acts were overtly sexual in nature. Kissing his adult
daughter, licking her neck, and touching her bra all constitute
prima facie evidence of the intent to act under circumstances that
one knows or should know will likely cause affront or alarm. 5
¶21 By the same token, Incident Four, which occurred in the
kitchen at Victim’s mother’s house, also demonstrates
Defendant’s intent to act in a sexual way that he knew would
cause affront or alarm. The fact that this incident occurred after
the charged events is of no import. Particularly where the State
offered bad-acts evidence to show intent, acts committed after
the charged events can be relevant. 6 In United States v. Brugman,
5. Furthermore, given Victim’s reaction, the act demonstrates
that Defendant was put on notice that similar conduct, such as
the acts committed afterward, would likewise cause affront and
alarm to Victim.
6. While it is common to refer to rule 404(b) as pertaining to
“prior” bad acts, the plain language of rule 404(b) makes no
reference to “prior” crimes, wrongs, or acts, but refers only to
“other” crimes, wrongs, or acts. See Utah R. Evid. 404(b). Many
courts have recognized that other crimes, wrongs, or acts are
relevant to the issue of intent, even if those acts occurred after
the charged conduct. See United States v. Delgado, 56 F.3d 1357,
1365 (11th Cir. 1995) (noting that the principles governing rule
404(b) bad-acts evidence “are the same whether the conduct
occurs before or after the offense charged” (footnote omitted));
see also United States v. Morsley, 64 F.3d 907, 911 (4th Cir. 1995);
United States v. Brown, 923 F.2d 109, 111 (8th Cir. 1991); Ashe v.
Jones, No. 98-1324, 208 F.3d 212, 2000 WL 263342, at *5 (6th Cir.
Feb. 29, 2000); People v. Dreyer, 442 N.W.2d 764, 765 (Mich. Ct.
App. 1989); State v. Brown, 940 P.2d 546, 576 (Wash. 1997) (en
banc); State v. Stuivenga, No. 52024-5-I, 125 Wash. App. 1048,
(continued…)
20160581-CA 10 2018 UT App 149State v. Von Niederhausern
364 F.3d 613 (5th Cir. 2004), the court explained, “If an extrinsic
act requires the same intent as the charged offense and the jury
could reasonably find that the defendant committed the extrinsic
act, then the extrinsic act is relevant to [prove a proper,
noncharacter purpose].” See id. at 620. In this case, while at the
house, Defendant waited until he and Victim were alone in the
kitchen before forcing himself upon her. The fact that he
repeated the unwanted conduct only after he isolated her from
the family demonstrates his knowledge that the prior conduct
was unwelcome. And the particularly sexualized nature of his
behavior is relevant to show the intent of his entire course of
conduct. Accordingly, the court properly admitted Defendant’s
two alleged comparable, repeated acts to show his intent to
knowingly touch his daughter in a way that would cause affront
or alarm.
2. Absence of Mistake or Lack of Accident
¶22 While not a stated basis by the trial court for admission,
the State asserted at the evidentiary hearing that the evidence of
Incidents One and Four should have been admitted to show
absence of mistake or lack of accident. 7 Evidence is properly
offered for a noncharacter purpose if it is offered to prove the
absence of mistake or lack of accident. See Utah R. Evid.
404(b)(2); see also State v. Pedersen, 2010 UT App 38, ¶ 29, 227 P.3d
1264. This evidence—showing multiple, factually common
instances of purposefully touching his daughter’s breasts while
(…continued)
2005 WL 487551, at *1 (Wash. Ct. App. Feb. 22, 2005) (per
curiam).
7. As explained in State v. Thornton, “[a] judge may make the
right decision for a mistaken reason (or no reason), for example,
and still be affirmed on appeal.” 2017 UT 9, ¶ 51, 391 P.3d 1016.
We may consider in our analysis any noncharacter purpose
proffered by the prosecution even if not one upon which the trial
court rested its decision. Id. ¶ 55 n.7.
20160581-CA 11 2018 UT App 149State v. Von Niederhausern
licking her neck—demonstrates that his charged conduct was
not a mistake or accident. The two additional incidents are
relevant to negate any claims of unintentional or mistaken acts,
and there is no indication of unfair prejudice. See infra ¶ 24.
B. Relevance
¶23 As noted in Thornton, “[r]elevance is a low bar.” 2017 UT
9, ¶ 61. Evidence is relevant if it has “any” tendency to make a
fact of consequence more or less probable. Utah R. Evid. 401.
Here, Defendant’s other two alleged bad acts, showing common
facts, are relevant to demonstrate Defendant’s intent to cause
“affront” or “alarm” to Victim and to show the absence of
mistake or lack of accident. See supra ¶¶ 19–22. Therefore, the
evidence meets the “low bar” of relevance.
C. Probative Value Compared to Risk of Unfair Prejudice
¶24 Any alleged danger of unfair prejudice suffered by
Defendant does not substantially outweigh the probative nature
of the evidence. See Utah R. Evid. 403. Evidence is only unfairly
prejudicial if it creates “an undue tendency to suggest decision
on an improper basis.” State v. Maurer, 770 P.2d 981, 984 (Utah
1989) (cleaned up); see State v. Burke, 2011 UT App 168, ¶ 34, 256
P.3d 1102. Here, because the two additional incidents are so
similar to, and not any more egregious than, the charged acts,
the potential prejudicial effect does not substantially outweigh
the probative value of this evidence. See State v. Reed, 2000 UT 68,
¶¶ 26, 31, 8 P.3d 1025 (stating that “evidence of multiple acts of
similar or identical abuse is unlikely to prejudice a jury” but
instead “demonstrates an ongoing behavior pattern which
include[s] . . . abuse of the victim”). More to the point, the
probative value is significant in establishing (1) intent and
(2) absence of mistake or lack of accident, and we see no unfair
prejudice—let alone unfair prejudice which substantially
outweighs its probative value. Therefore, we cannot say that the
trial court should have excluded the evidence under rule 403.
Accordingly, the trial court did not exceed its discretion in
20160581-CA 12 2018 UT App 149State v. Von Niederhausern
admitting the evidence for the noncharacter purposes of
showing intent or absence of mistake.
II. Jury Instructions
¶25 Defendant contends that his trial counsel was ineffective
for failing to object when the court approved jury instructions,
which, he argues, included prejudicially broad dictionary
definitions for “alarm” and “affront.” 8 This argument fails
because Defendant has not shown the prima facie elements of
ineffective assistance of counsel: deficient performance and
prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶26 Deficient performance requires demonstration that
“counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment.” Id.; see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d
162 (stating that a defendant must “persuad[e] the court that
there was no conceivable tactical basis for counsel’s actions”
(cleaned up)). Reasonableness is evaluated from “counsel’s
8. The relevant jury instructions stated,
You are instructed that the term “affront” means
an insult or indignity; an action or remark that
causes outrage or offense or that offends modesty
or values. “Insult” refers to an act that offends or
shows a lack of respect. “Indignity” refers to an act
that hurts someone’s dignity; an embarrassing act
or occurrence. An “offense” is something that
causes a person to be hurt, angry, or upset;
something that is wrong or improper.
You are instructed that the term “alarm” means an
anxious awareness of danger; something that
causes a person to feel frightened, disturbed, or in
danger.
20160581-CA 13 2018 UT App 149State v. Von Niederhausern
perspective at the time,” and there are “countless ways to
provide effective assistance in any given case.” Strickland, 466
U.S. at 689. In the end, “[f]ailure to object to jury instructions that
correctly state the law is not deficient performance.” State v. Lee,
2014 UT App 4, ¶ 22, 318 P.3d 1164.
¶27 Case law demonstrates that use of dictionary definitions
in jury instructions is permissible. See State v. Souza, 846 P.2d
1313, 1321 (Utah Ct. App. 1993) (“If a dictionary definition
sufficiently clarifies an instruction, it should be considered
adequate. In fact, Utah appellate courts have themselves
compared dictionary definitions to jury instructions to evaluate
the clarity of the information given to the jury.”); see also
Hi-Country Prop. Rights Group v. Emmer, 2013 UT 33, ¶ 19, 304
P.3d 851 (“A dictionary is useful in cataloging a range of possible
meanings that a statutory term may bear.”).
¶28 Based on this precedent, it was acceptable for the court to
employ the dictionary definitions of “affront” and “alarm” as
“the ordinary meaning of a word” to a “reasonable person
familiar with the usage and context . . . in question.” See State v.
Hawkins, 2016 UT App 9, ¶ 35, 366 P.3d 884 (cleaned up). The
statutory terms were not ambiguous simply by virtue of not
being statutorily defined, and there is no indication that the State
attempted to broaden any definitions. The court advised the
jurors that if any instruction was stated in multiple ways, they
were not to “single out any certain sentence, or any individual
point or instruction,” but to consider them all “as a whole”
regarding “each in the light of all the others.”
¶29 Accordingly, Defendant has failed to show that the use of
dictionary definitions in Defendant’s jury instructions was
erroneous and that Defendant’s counsel acted deficiently in
failing to object. And Defendant’s argument on appeal is
particularly unpersuasive where Defendant fails to identify, let
alone argue, what would have been the legally correct version of
the instruction.
20160581-CA 14 2018 UT App 149State v. Von Niederhausern
¶30 Defendant also fails to show prejudice since an objection
to the jury instructions would have surely been unsuccessful,
meaning that it would not have made a difference in the
outcome of the case. Defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). Proof of
prejudice must be based on a “demonstrable reality and not a
speculative matter.” State v. Chacon, 962 P.2d 48, 50 (Utah 1998)
(cleaned up).
¶31 Even if the court had used more narrow definitions of
affront or alarm—or if no definition had been used at all—
because of the overwhelming evidence against Defendant and
the particularly disturbing acts at issue, it is not reasonably
probable that Defendant would have enjoyed a more favorable
trial result had his counsel objected to the instructions. Under
any definition of affront or alarm, no reasonable jury would
conclude that purposefully touching his own adult daughter’s
breasts, licking her neck with one’s tongue, and grinding an
erect penis against her buttocks falls outside of any definition of
those terms. Thus, because there is not a reasonable probability
that objecting to the jury instructions would have yielded a
different or more favorable result, Defendant cannot
demonstrate prejudice, and his claim of ineffective assistance
therefore fails.
CONCLUSION
¶32 We conclude that the trial court did not abuse its
discretion by allowing evidence of the two additional bad acts
committed by Defendant. We also conclude that Defendant has
failed to demonstrate ineffective assistance regarding his defense
counsel’s failure to object to the dictionary definitions used in
the jury instructions. Accordingly, we affirm.
20160581-CA 15 2018 UT App 149