State v. Rosecrans ( 2024 )

2024 UT App 128THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
NICOLE COTE ROSECRANS,
Appellant.
Opinion
No. 20210943-CA
Filed September 12, 2024
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 201500101
Freyja Johnson, Emily Adams, Cherise Bacalski, and
Jessica Holzer, Attorneys for Appellant
Sean D. Reyes and Natalie M. Edmundson,
Attorneys for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.
OLIVER, Judge:
¶1 Nicole Cote Rosecrans was charged with one count of
aggravated assault for threatening her mother, Nancy Rosecrans,
with a butcher knife and two counts of misdemeanor assault for
hitting Nancy in the face and biting her fingers. 1 After a bench
trial, Nicole was acquitted of aggravated assault but convicted of
the misdemeanor assault charges. Nicole now appeals that
decision, asserting that her counsel rendered ineffective assistance
for not arguing self-defense specifically on the misdemeanor
1. Because the parties share the same last name, we use their first
names for clarity with no disrespect intended by the apparent
informality.
State v. Rosecrans
charges and that the trial court committed plain error by not
making findings of fact and conclusions of law in support of its
verdict. We reject Nicole’s arguments and affirm her convictions.
BACKGROUND 2
¶2 Nancy’s adult daughter, Nicole, had been living with her
for several months when they got into a physical altercation one
evening in March 2020. Nicole “had been calling and texting
[Nancy] all day wanting [Nancy] to go to the liquor store to buy
alcohol.” In response to push back from Nancy, Nicole texted her,
“You trying to control my alcohol consumption makes me want
to drink more just to own my own mind and body. Nancy [it’s]
not up to you to make those choice[s] for me.”
¶3 When Nancy came home and told Nicole she had not gone
to the liquor store, Nicole “immediately” hit Nancy in the face
“with her fist or an object,” knocking Nancy’s glasses off her face.
The first blow occurred in the foyer, where the two “started to
struggle.” As Nancy tried to push Nicole away “to keep her at
arm’s length,” Nicole hit her with something “hard” she was
holding in her hand and then bit two of Nancy’s fingers with
enough force to break the skin. Nancy pushed past Nicole and
went down the hallway into the kitchen while Nicole continued
to hit Nancy on the back of the head “with whatever the object
was.”
¶4 In the kitchen, Nicole “was raging,” and Nancy told her she
needed to “pack a bag and leave.” The argument escalated to the
point where Nancy slapped Nicole across the face with an open
hand “to snap her out of the rage.” Nicole reacted by pulling a
large knife out of the wooden butcher block and threatening to
2. “On appeal from a bench trial, we view the evidence in the light
most favorable to the district court’s findings.” State v. Jok, 2021
UT 35, ¶ 3 n.3, 493 P.3d 665.
20210943-CA 2 2024 UT App 128State v. Rosecrans
hurt Nancy if she came after Nicole again. Nancy ran out of the
house, locked herself in her car, and called the police.
¶5 When officers arrived, they took Nancy’s and Nicole’s
statements, along with photos of their injuries. The photos taken
of Nancy showed bloodied fingers, a blackened eye, and bruising
on her left arm. Nicole’s injuries were much less severe: she had a
faint scratch on her right arm and a dime-sized bruise on her left
upper arm. According to one officer, Nancy was “very agitated,
very upset” and “holding her left wrist in a manner that [he] felt
indicated [that] she was in some sort of distress or pain.” The
officer interacting with Nicole noted the “smell of alcohol” on her
but not any signs of impairment.
¶6 Nancy and Nicole gave markedly different accounts of the
incident to the police. 3 Nancy recounted the attack as described
above, including how she pushed Nicole away from her but not
including how she slapped Nicole. Nicole claimed the altercation
was the result of Nancy’s hoarding. According to Nicole, Nancy
attacked her after realizing Nicole had thrown away some trash.
Nicole said that Nancy hit her in the chest, face, and body,
slapping her on the face and putting her fingers in Nicole’s mouth
“to fish-hook” her and turn her around. Nicole admitted
“[m]aybe” biting Nancy’s fingers “to break free.” She asserted
that Nancy then grabbed a small paring knife and chased Nicole
into the living room. Nicole claimed Nancy dropped the knife and
ran outside when Nicole threatened to show videos of the house
to Nancy’s friends since she knew Nancy was embarrassed about
its state. Nicole denied pulling a knife on Nancy, admitted she
“may have, like elbowed her,” but claimed she did so only
because Nancy “came at [Nicole] pretty hard.”
¶7 One officer instructed another to go in the house and “look
for the knife,” not realizing there were two knives mentioned in
3. The officers’ body camera videos of their interviews with Nancy
and Nicole were both played at trial.
20210943-CA 3 2024 UT App 128State v. Rosecrans
the descriptions of the assault. Initially, the only knife officers
found on the scene was a short, three-inch paring knife on the
coffee table. Nicole told the officer, “That’s the knife my mother
used on me.” A knife matching Nicole’s later description of an “8-
inch black handled knife” that Nancy threatened her with was
also found. But Nancy claimed neither of the knives collected by
the officers was the knife Nicole used against her; no knife
matching the one Nancy described was found.
¶8 Nicole was arrested and charged with aggravated assault,
a third-degree felony—based on the threat with the large knife—
and two counts of misdemeanor assault, class B misdemeanors—
based on the blow to Nancy’s face and the biting of her fingers.
When Nicole was released from jail, she visited a friend of Nancy
(Friend), hoping to find a place to stay. Worried about catching
COVID-19, Friend refused to let Nicole stay and suggested Nicole
call a domestic violence shelter. Friend testified that Nicole had
told her she was the victim of the altercation, but then Friend
overheard Nicole on the phone with the shelter, portraying
herself as “the person who had done her mom harm” in what
Friend assumed was an effort to not be allowed to stay there. The
shelter, however, admitted Nicole.
¶9 At the hearing where Nicole waived her right to a jury trial,
the trial court asked counsel about their expectations for a
criminal bench trial’s procedure, noting it had “never done one of
these before.” The court said that, at some point before the trial, it
would like “some clarity on what the procedure will look like,”
asking in particular, “Am I filling out a verdict form? Am I
making findings and conclusions? What [are] the parties’
expectations?” Nicole’s attorney (Counsel) replied, “Very well,
Judge.” But neither side filed any papers attempting to provide
the court with any clarity.
¶10 At the final pretrial conference, the trial court—apparently
having researched the issue on its own—again discussed
procedural expectations and stated that, “under State v. Finlayson,
20210943-CA 4 2024 UT App 128State v. Rosecrans
[2014 UT App 282, 362 P.3d 926,] I don’t have to make any
findings or conclusions, I just come out and announce the verdict.
Okay.” Counsel replied, “All right.”
¶11 At trial, the State presented testimony from Nancy, four
law enforcement officers, and Friend, who all testified as
described above. Nancy testified first, detailing the attack. On
cross-examination, Counsel asked Nancy about the specific words
Nicole used when threatening Nancy with a knife. Nancy
affirmed that Nicole said, “If you come any closer, I’m going to
mess you up.” Counsel asked if Nancy had been upset with
Nicole the night of the altercation for throwing things out. Nancy
said that was not “the subject of the conversation that night” and
denied that it made her angry when Nicole “would try to clean
up the house.” Nancy also claimed not to have any memory of
testifying at the preliminary hearing and said she was “dealing
with a concussion” after being involved in a car accident a few
months prior.
¶12 When the State rested, Counsel made a motion for a
directed verdict, asserting that (1) on the misdemeanor assault
charges, “there wasn’t more than one commission of an act with
unlawful force or violence,” and that (2) on the aggravated assault
charge, there “wasn’t a threat to do bodily injury to another” but
only a conditional threat that “would require the Court to
consider a justification of force.” The trial court, noting how the
defense would affect the burden of proof and “taking into account
[Nicole’s] argument regarding a justified use of force,” ruled that
“the State has shown believable evidence of each element of each
of the three counts” and “respectfully denied” the motion.
¶13 Nicole testified in her own defense and offered her
markedly different account of the altercation, as summarized
above. Nicole denied punching Nancy in the face or pulling a
knife on her. Nicole also claimed the hallways and rooms were
too full of things for her and Nancy to have moved around during
the altercation as Nancy described. Regarding the phone
20210943-CA 5 2024 UT App 128State v. Rosecrans
conversation she had with the shelter, Nicole denied admitting
she was the aggressor and explained she had simply told the
shelter she had just gotten out of jail after being arrested for being
the aggressor but also told them Nancy attacked her and she
defended herself.
¶14 In closing, Counsel highlighted discrepancies in Nancy’s
accounts of the altercation to undermine her credibility, noting
she did not admit to slapping Nicole in her statement to the
officers or in her preliminary hearing testimony. Counsel also
pointed out Nicole denied threatening Nancy with a knife, but
even if the court accepted Nancy’s account of what happened in
the kitchen, it only established that Nicole made a conditional
threat after Nancy had slapped her. As Counsel argued, “using
the threat of greater force to deter lesser force” is “something that
can be done,” much like the “reason you have a gun is to deter
somebody from hurting you.” Thus, “clearly the aggravated
assault elements are not met.”
¶15 In an oral ruling, the trial court acquitted Nicole of the
aggravated assault charge but convicted her of the two
misdemeanor assault charges. The general verdict form stated,
“Count 1: Aggravated Assault,” “Count 2: Assault (DV) (to wit,
striking [Nancy] in the face and causing her to suffer a black eye),”
and “Count 3: Assault (DV) (to wit, biting Nancy on the hand and
causing two of her fingers to bleed).” The court filled out the
general verdict form by checking the “not guilty” or “guilty”
boxes but did not make any separate findings of fact or
conclusions of law. Neither party requested findings or
conclusions after the court read its verdict.
ISSUES AND STANDARDS OF REVIEW
¶16 Nicole presents two issues on appeal. As she concedes,
both issues are unpreserved and “an appellate court will not
typically reach that issue absent a valid exception to
20210943-CA 6 2024 UT App 128State v. Rosecrans
preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
First, she contends that Counsel rendered ineffective assistance in
failing to argue self-defense with specific reference to the
misdemeanor assault charges. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261(cleaned up).
¶17 Second, Nicole contends the trial court committed plain
error when it did not enter factual findings and conclusions of law
after the bench trial. “Plain error is a question of law reviewed for
correctness.” State v. Smit, 2004 UT App 222, ¶ 7, 95 P.3d 1203.
ANALYSIS
I. Ineffective Assistance of Counsel Regarding Self-Defense
¶18 Nicole contends that Counsel rendered constitutionally
ineffective assistance when he failed to raise self-defense as an
affirmative defense to the misdemeanor assault charges. Because
the trial court acquitted Nicole of aggravated assault after
Counsel argued she threatened Nancy with the knife in self-
defense, Nicole asserts that failure to make a specific self-defense
argument with regard to the other two assault charges amounted
to prejudicial deficient performance.
¶19 The Sixth Amendment provides a criminal defendant the
right to effective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 684–86 (1984). To prevail on an ineffective assistance
claim, “a defendant must show (1) that his counsel’s performance
was objectively deficient, and (2) that the deficient performance
prejudiced the defense.” State v. Marquina, 2018 UT App 219, ¶ 36,
437 P.3d 628 (cleaned up). “A failure to prove either element
defeats the claim.” Id. (cleaned up).
20210943-CA 7 2024 UT App 128State v. Rosecrans
¶20 To satisfy the first prong of an ineffective assistance claim,
Nicole must prove that Counsel’s representation “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 687–
88. “We judge the reasonableness of counsel’s challenged
conduct, viewed as of the time of counsel’s conduct” and begin
with “the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” State
v. Ames, 2024 UT App 30, ¶ 18, 546 P.3d 356 (cleaned up), cert.
denied, 550 P.3d 993 (Utah 2024). Before we determine whether
Counsel’s actions at trial constituted “sound trial strategy,” we
must first consider whether the fact that Nicole had a bench trial,
rather than a jury trial, affects our analysis.
A. Appeals from Jury Trials Versus Bench Trials
¶21 Utah’s appellate courts have explained that their analysis
of certain issues hinges on whether the case was tried to a jury or
to the bench. Our supreme court long ago addressed whether
evidentiary rulings require more or less deference in bench trials
than jury trials, stating that a trial court’s “rulings on evidence are
looked upon with a greater degree of indulgence when the trial is
to the court than when it is to the jury.” State v. Park, 404 P.2d 677,
679 (Utah 1965) (cleaned up). This court has likewise indicated
that “when a jury hears a case, the court is required to conduct the
trial so that inadmissible evidence is not suggested to the jury by
any means. However, judges in bench trials are presumed to be
less likely than juries to be prejudiced by inadmissible evidence.”
In re N.A.D., 2014 UT App 249, ¶ 5, 338 P.3d 226 (cleaned up). We
have also recognized that a “district court’s knowledge of a prior
conviction does not raise the specter of prejudice to the same
degree that a jury’s awareness would,” so we “assume[] that
judges are capable of properly sorting and evaluating evidence
presented to them and are much less subject to improper influence
than a lay jury.” State v. Glasscock, 2014 UT App 221, ¶ 32, 336 P.3d
46 (cleaned up); see also State v. Adams, 2011 UT App 163, ¶ 12, 257
P.3d 470 (“[J]udges in bench trials are presumed to be less likely
than juries to be prejudiced by prior bad acts evidence.”); but cf.,
20210943-CA 8 2024 UT App 128State v. Rosecrans
Kendall v. Utah Est. Planners PLLC, 2023 UT App 82, ¶¶ 19–22, 534
P.3d 1140 (holding the same “standard for evaluating the
necessity of expert testimony applies in legal malpractice cases”
tried to the bench or a jury).
¶22 This distinction between jury trials and bench trials may
also be the determining factor as to whether an issue is successful
on appeal. For instance, a trial court’s failure to “inquire of a
defendant whether he wishes to waive his right not to appear in
prison clothes” during trial “mandates reversal of [a] defendant’s
conviction” after a jury trial, but it is not reversible error in a bench
trial. State v. Cravens, 2000 UT App 344, ¶¶ 16–17, 15 P.3d 635(cleaned up). And our supreme court has held that the
preservation requirements for a challenge to the sufficiency of the
evidence differ between a jury trial and a bench trial. An
insufficiency claim is “effectively preserved by the nature of a
bench trial” but, in contrast, it must be specifically raised with
the trial court in a jury trial. State v. Jok, 2021 UT 35, ¶ 18, 493 P.3d
665.
¶23 In sum, these cases reflect that judges come to a
trial generally well-versed in the law while jurors generally
do not, and that judges are not subject to many of the same
concerns about prejudices and improper influences as jurors.
Accordingly, fundamental differences exist between a case tried
before the bench and a case tried before a jury that may affect our
analysis.
B. Analysis of Counsel’s Performance in a Bench Trial
¶24 We now evaluate whether these distinctions between jury
trials and bench trials impact the determination of whether
Counsel performed deficiently. Because of how Nicole asserts
Counsel should have raised self-defense—with a jury instruction
and in closing—we conclude that the difference between a jury
trial and a bench trial does matter in determining whether
Counsel rendered deficient performance.
20210943-CA 9 2024 UT App 128State v. Rosecrans
¶25 First, jury instructions are a mechanism by which “the
court may instruct the jury on the law . . . .” Utah R. Crim. P. 19(b).
In a bench trial, there is no jury, so jury instructions are not
required. Nicole essentially concedes this point but argues
nonetheless that because the State submitted four proposed jury
instructions for the court’s reference, it was deficient performance
for Counsel not to submit one on self-defense. But a Strickland
analysis does not ask us to measure Counsel’s actions against the
State’s in a particular trial. Rather, we measure it “against
prevailing professional norms,” keeping in mind that our analysis
must be “highly deferential” in light of “the variety of
circumstances and the range of legitimate decisions regarding
how best to represent a criminal defendant,” State v. Popp, 2019
UT App 173, ¶ 26, 453 P.3d 657 (cleaned up).
¶26 Here, it was reasonable for Counsel to determine that jury
instructions were not necessary, or even helpful, when the trial
was being held before the court, not a jury. As the trial court itself
noted, “[T]his isn’t like a jury trial.” The court went on to explain,
“I know the law. I don’t have to spend time reading jury
instructions. There is only one of me, so there won’t be time
deliberating with others.”
¶27 Accordingly, in a bench trial where there was no jury to
instruct on the legal standard of self-defense, it was reasonable for
Counsel to operate under the assumption the court knew the law
and could apply it. Therefore, Counsel’s decision not to provide a
jury instruction on self-defense was reasonable where he was not
required to do so and where the trial court explicitly stated that it
did not “have to spend time reading” any jury instructions. 4
4. We also fail to see how Counsel’s decision not to provide such
an instruction would have made any difference in the outcome of
the case. Although Nicole acknowledges that Counsel provided
“no proposed jury instructions, including no instructions on self-
(continued…)
20210943-CA 10 2024 UT App 128State v. Rosecrans
¶28 Second, the fact that Counsel’s closing argument did not
specifically connect the dots on self-defense for the court does not
amount to deficient performance because reasonable counsel
could presume the court knew the legal standard for self-defense.
Indeed, as a general matter, “in a bench trial, closing arguments
are not necessary.” Iacono v. Hicken, 2011 UT App 377, ¶ 12, 265
P.3d 116. “Trial judges are presumed to know the law and to
apply it in making their decisions, and the need for a summary
argument at the close of evidence is not always helpful to the trial
court acting as the trier of both fact and law.” Id. (cleaned up).
¶29 This is particularly true here, where the trial court
demonstrated its knowledge of the legal requirements for self-
defense. At the close of the State’s case, the trial court correctly
noted the burden of proof for self-defense when denying
Counsel’s motion for a directed verdict on the aggravated assault
charge. Thus, where Nicole was not even entitled to present
closing argument, we decline to find that Counsel performed
deficiently in not explicitly arguing self-defense as to the
misdemeanor charges.
¶30 Moreover, Nicole’s argument is undermined by the fact
that the trial court accepted self-defense on the aggravated assault
charge and acquitted her even though Counsel did not specifically
mention “self-defense” or “justification” or any similar term
about the aggravated assault charge in closing. Instead, Counsel
made broad and somewhat vague arguments that if using “the
defense or justification,” the trial court nonetheless acquitted
Nicole on the felony aggravated assault charge without the
benefit of any instruction. Thus, acquittal did not depend on the
presence of a jury instruction. See, e.g., State v. Cesspooch, 2024 UT
App 15, ¶ 19, 544 P.3d 1046 (applying a prejudice analysis to a
split-verdict case and concluding that the defendant “has not
persuaded us that there’s a reasonable likelihood that the effect”
of an error “was harmful to him”), cert. denied, 550 P.3d 994 (Utah
2024).
20210943-CA 11 2024 UT App 128State v. Rosecrans
threat of greater force to deter lesser force” is “something that can
be done,” much like the “reason you have a gun is to deter
somebody from hurting you,” then “the aggravated assault
elements are not met.” 5
¶31 If the trial court was able to extrapolate a self-defense
argument from Counsel’s ambiguous closing on the aggravated
assault charge, then it follows the court could have applied self-
defense to the misdemeanor charges as well. And, importantly,
Counsel never argued that Nicole was not claiming self-defense to
the misdemeanor charges, and nothing said in closing argument
limited the trial court’s consideration of self-defense to only the
aggravated assault charge.
¶32 In sum, “we note that closing argument was made to the
bench, not a jury,” State v. Weikert, 2008 UT App 460U, para. 5, and
here the trial judge was clearly aware that Counsel was making a
self-defense argument that was not limited to any particular
charge. Under these circumstances, it was not deficient
performance for Counsel not to expressly raise self-defense as to
the misdemeanor charges in closing because “trial judges are
presumed to know the law.” Iacono, 2011 UT App 377, ¶ 12
(cleaned up). For the same reason, it was reasonable for Counsel
not to provide a jury instruction on self-defense. Thus, Nicole has
not met her burden under Strickland of demonstrating that
Counsel performed deficiently.
II. Plain Error Regarding Findings and Conclusions
¶33 Nicole contends the trial court committed plain error when
it did not enter factual findings and conclusions of law after the
5. We note that self-defense is an affirmative defense, not an
element of aggravated assault. For “defense of self,” see Model
Utah Jury Instructions 2d CR530, and for “aggravated assault,” see
Model Utah Jury Instructions 2d CR1320, https://legacy.utcourts.
gov/muji/?cat=2 [https://perma.cc/CP6E-YHXX].
20210943-CA 12 2024 UT App 128State v. Rosecrans
bench trial, asserting the trial court was obligated to “find the facts
specially and state separately its conclusions of law.” Utah R. Civ.
P. 52(a)(1). The State, however, argues plain error review is not
available because Nicole invited any error by affirmatively
consenting to not having findings and conclusions. Because we
dispense of Nicole’s argument under plain error, we do not
address invited error.
¶34 “To prevail on a plain error claim, an appellant must show
that (i) an error exists; (ii) the error should have been obvious to
the district 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. Charles, 2020 UT App 154, ¶ 12, 477 P.3d
492 (cleaned up). “If any one of these requirements is not met,
plain error is not established.” State v. Heward, 2024 UT App 40,
¶ 15, 547 P.3d 226 (cleaned up), cert. denied, 550 P.3d 996 (Utah
2024). Because it was not obvious that the trial court needed to
make findings in support of its verdict, Nicole’s plain error claim
fails.
¶35 “For an error to be obvious to the trial court, the party
arguing for the exception to preservation must show that the law
governing the error was clear, or plainly settled, at the time the
alleged error was made.” State v. Johnson, 2017 UT 76, ¶ 21, 416
P.3d 443 (cleaned up). Here, the law at the time of Nicole’s trial
was not entirely clear, and it would not have led the trial court to
believe it needed to make separate findings in support of its
verdict.
¶36 In State v. Finlayson, 2014 UT App 282, 362 P.3d 926, the
defendant similarly opted for a bench trial. Id. ¶ 8. When the
verdict was read, the defendant objected and claimed that “the
trial court ‘just simply said guilty’ and did not give him ‘any
reasons’ for its decision.” Id. ¶ 15. In response, the trial court
stated that “although it did not need to give reasons for the guilty
verdict, it found” the victim’s testimony “credible.” Id. ¶ 32 n.14.
We affirmed, noting that when factual issues “must be resolved
20210943-CA 13 2024 UT App 128State v. Rosecrans
by the trial court but no findings of fact appear in the record, we
assume that the trier of facts found them in accord with its
decision, and we affirm the decision if from the evidence it would
be reasonable to find facts to support it.” Id. (cleaned up).
¶37 In turn, Finlayson was supported by State v. Titus, 2012 UT
App 231, 286 P.3d 941, which also involved a defendant convicted
in a bench trial who challenged the adequacy of the court’s
findings. Id. ¶¶ 1, 11. In a plain error analysis, we concluded the
trial court did not err in its lack of findings, especially when it
“twice offered to elucidate its reasoning” and trial counsel “did
not request more detail.” Id. ¶ 15.
¶38 In contrast, no Utah court has specifically held that rule
52(a)(1) of the Utah Rules of Civil Procedure applies to criminal
bench trials. Nicole cites three cases to support her claim that it
does, but none of them actually holds that “findings and
conclusions must be made part of the record and may be stated in
writing or orally following the close of the evidence.” 6 Utah R.
Civ. P. 52(a)(1); see State v. Jok, 2021 UT 35, ¶ 20, 493 P.3d 665(applying rule 52(a)(3) in the context of “preservation
requirements for a bench trial” in a challenge to sufficiency of the
evidence); State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501(same); State v. Larsen, 2000 UT App 106, ¶ 9 n.4, 999 P.2d 1252(same). All three cases address rule 52(a) only in the context of
sufficiency of the evidence challenges—specifically found in rule
6. Nicole also cites rule 81(e) of the Utah Rules of Civil Procedure,
which states that the civil procedure rules apply to criminal
proceedings when there is not an applicable criminal rule. But
rule 81(e) also states that a civil rule may apply only when there
is “no conflict with any statutory or constitutional requirement.”
Id. Nicole has not provided us with analysis that applying rule
52(a)(1) in the criminal bench context would not run afoul of a
statutory or constitutional requirement, so we do not address it.
20210943-CA 14 2024 UT App 128State v. Rosecrans
52(a)(3)—and none of them even mention subsection (a)(1) of the
rule. 7
¶39 Nicole’s plain error claim therefore fails because the law is
not “plainly settled” about applying rule 52(a)(1) to criminal
bench trials. Thus, it was not an obvious error for the trial court to
conclude that it did not need to make findings in support of its
verdict.
CONCLUSION
¶40 Because Nicole elected a bench trial, Counsel did not
render ineffective assistance in not presenting a jury instruction
and not arguing self-defense during closing as to the
misdemeanor charges. We also conclude the trial court’s lack of
factual findings and conclusions did not amount to plain error.
Therefore, we affirm Nicole’s convictions.
7. Nicole correctly points out that State v. Jok, 2021 UT 35, 493 P.3d
665, states generally that “rule 52(a) of the Utah Rules of Civil
Procedure governs” a bench trial in a criminal case. Id. ¶ 18. But
Nicole asks us to review this issue for plain error and under a
plain error review, this isolated statement does not suffice. The
reference in Jok to rule 52(a) is in the context of preservation
requirements for a sufficiency of the evidence claim, and it is
countered by the presence of Finlayson and Titus in our caselaw.
Therefore, this statement from Jok did not create an obvious
requirement here for the trial court to make factual findings.
20210943-CA 15 2024 UT App 128