State v. Martinez

2013 UT App 154_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ANGELO NOE MARTINEZ,
Defendant and Appellant.
Memorandum Decision
No. 20120297-CA
Filed June 20, 2013
Second District, Ogden Department
The Honorable W. Brent West
No. 101900070
Samuel P. Newton, Attorney for Appellant
John E. Swallow and Karen A. Klucznik, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
CAROLYN B. MCHUGH concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Angelo Noe Martinez appeals his convictions for
aggravated assault and distribution of a controlled substance in a
drug-free zone. We affirm.
¶2 Defendant’s convictions stem from a drug transaction that
took place at a public park in January 2010.1 During the transaction,
Defendant stabbed Luis Torres after Torres threatened Defendant
1. “On appeal, we recite the facts in the light most favorable to the
jury’s verdict.” State v. Burk, 839 P.2d 880, 882 (Utah Ct. App. 1992).
State v. Martinez
with a gun. At trial, defense counsel argued that Defendant stabbed
Torres in self-defense. Accordingly, the trial court’s jury
instructions included a summary of the law of self-defense. The
relevant jury instruction included the following sentence: “A
person is not justified in using force . . . if the person is attempting
to commit, committing, or fleeing after the commission or
attempted commission of a felony.” See also Utah Code Ann. § 76-2-
402(2)(a)(ii) (LexisNexis 2012).2 On November 18, 2011, the jury
convicted Defendant of aggravated assault, a third degree felony,
and arranging to distribute a controlled substance in a drug-free
zone, a second degree felony.
¶3 On appeal, Defendant asserts that the trial court failed to
adequately instruct the jury on his claim of self-defense. “‘[W]hen
there is a basis in the evidence . . . , which would provide some
reasonable basis for the jury to conclude that . . . the defendant
[acted to protect himself] from an imminent threat . . . , an
instruction on self-defense should be given to the jury.’” State v.
Lucero, 2012 UT App 202, ¶ 6, 283 P.3d 967 (alterations and
omissions in original) (quoting State v. Knoll, 712 P.2d 211, 214
(Utah 1985)). Even though the trial court did instruct the jury on
the law of self-defense, Defendant claims that the court’s
instructions were flawed because they did not properly explain the
State’s and Defendant’s relative burdens of proof. See id. (“Once the
jury has been instructed on self-defense, the [State] has the burden
to prove beyond a reasonable doubt that the [defendant did] . . .
not [act] in self-defense.” (alterations and omission in original)
(citation and internal quotation marks omitted)). Defendant asserts
that the trial court’s error in failing to provide proper instructions
requires reversal of his convictions.
2. Because the current statutory provisions do not materially differ
from the provisions in effect at the time of the offense, we cite the
current version of the Utah Code for the reader’s convenience.
20120297-CA 2 2013 UT App 154State v. Martinez
¶4 At the outset, we note, and Defendant acknowledges, that
he did not preserve his objection to the jury instructions before the
trial court. Therefore, we must review his claim for plain error. See
Utah R. Crim P. 19(e) (“Unless a party objects to an instruction or
the failure to give an instruction, the instruction may not be
assigned as error except to avoid a manifest injustice.”)3; see also
State v. Lee, 2006 UT 5, ¶ 24, 128 P.3d 1179 (permitting appellate
review of unpreserved claims for plain error, exceptional
circumstances, and ineffective assistance of counsel). A party
seeking reversal under the plain error standard must prove that
“‘[1] [a]n error exists; [2] the error should have been obvious to the
trial court; and [3] the error is harmful.’” See State v. Powell, 2007 UT
9, ¶ 18, 154 P.3d 788 (alterations in original) (quoting State v. Dunn,
850 P.2d 1201, 1208 (Utah 1993)). A party must prove all three
prongs to successfully mount a plain error challenge. See State v.
Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (“If any one of these
requirements is not met, plain error is not established.” (citation
and internal quotation marks omitted)). Because resolution of this
case turns on the third prong, we limit our analysis to a discussion
of harmfulness. To establish that an error is harmful, a party must
demonstrate that, “absent the error, there is a reasonable likelihood
of a more favorable outcome.” Lee, 2006 UT 5, ¶ 26 (citation and
internal quotation marks omitted).
¶5 Additionally, Defendant argues for the first time on appeal
that his convictions should be overturned as a result of the
ineffective assistance of his trial counsel. See Strickland v.
Washington, 466 U.S. 668, 686 (1984). Defendant argues that his trial
counsel’s failure to request specific instructions regarding the
burdens of proof for a claim of self-defense was objectively
deficient performance and prejudiced his defense by seriously
undermining the fairness of his trial. According to Defendant, “it
seems likely that with proper instructions, the jury would have
3. “Manifest injustice is synonymous with the plain error standard
. . . .” State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640.
20120297-CA 3 2013 UT App 154State v. Martinez
considered self-defense to create a reasonable doubt as to
[Defendant’s] guilt.” We review this claim as a matter of law. See
State v. Sellers, 2011 UT App 38, ¶ 9, 248 P.3d 70. To warrant
reversal, Defendant must first “demonstrate that specific acts or
omissions of counsel fell below an objective standard of
reasonableness.” See Powell, 2007 UT 9, ¶ 45. Second, Defendant
must show that this deficient performance prejudiced his defense.
See Strickland, 466 U.S. at 687. Prejudice is established by showing
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Powell, 2007 UT 9, ¶ 45 (citation and internal
quotation marks omitted). Thus, the prejudice test for ineffective
assistance of counsel claims is equivalent to the harmfulness test for
plain error. See Dunn, 850 P.2d at 1225.
¶6 We conclude that Defendant’s claims of plain error and
ineffective assistance fail because he cannot demonstrate that the
instructions given to the jury were harmful or that his counsel’s
failure to request proper instructions resulted in prejudice. Because
the analysis is equivalent on both claims, we limit our analysis to
whether providing the jury with an instruction setting forth the
appropriate burdens of proof would have created a reasonable
probability, in this instance, that Defendant would have been
acquitted.4
¶7 As a general matter, self-defense is not available as a defense
to a criminal act in several circumstances. See Utah Code Ann. § 76-
2-402(2)(a)(i)–(iii) (LexisNexis 2012). One such circumstance occurs
when a defendant uses force while attempting to commit,
4. The Utah Supreme Court has held that lack of prejudice is
dispositive of a defendant’s plain error claim. See Jimenez, 2012 UT
41, ¶ 20. The United States Supreme Court has also instructed, “If
it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.”
Strickland v. Washington, 466 U.S. 668, 697 (1984).
20120297-CA 4 2013 UT App 154State v. Martinez
committing, or fleeing after the commission or attempted
commission of a felony. Id. § 76-2-402(2)(a)(ii). Here, the State does
not dispute that Defendant was acting in what would otherwise be
reasonable self-defense when he stabbed Torres. However, the
State argues that because Defendant’s use of force occurred during
Defendant’s drug transaction, a second degree felony, he is
precluded from claiming self-defense. We agree.
¶8 With respect to Defendant’s drug conviction, we determine
that even if the jury instructions had been prepared exactly to
Defendant’s specification, those instructions could not have
affected the jury’s decision on the drug count because self-defense
is not a valid defense to the attempted commission of a drug
offense. See id. § 76-2-401(1) (“Conduct which is justified is a
defense to prosecution for any offense based on the conduct.”
(emphasis added)). Here, the conduct for which Defendant claims
self-defense was his stabbing of Torres. Yet the State’s prosecution
of the drug offense was based on Defendant’s arrangement to sell
drugs. Thus, Defendant is statutorily precluded from claiming self-
defense for the drug offense. Because Defendant does not challenge
his drug conviction on any other grounds, we affirm the jury’s
verdict on this count.
¶9 As to the aggravated assault charge, Defendant has never
disputed that he stabbed Torres. Indeed, his entire defense hinged
on his claim of self-defense, which necessarily involved admission
of the underlying assault. However, because we affirm Defendant’s
conviction of the felony drug offense, Defendant’s use of force
against Torres cannot be justified because it occurred during the
drug transaction. See id. § 76-2-402(2)(a)(ii). Accordingly, even if the
jury instructions had been written as he preferred, there is not a
reasonable probability that Defendant would have been acquitted
of the aggravated assault.
¶10 Defendant is correct in asserting that a proper self-defense
jury instruction should inform the jury about the burdens of proof
necessary for self-defense to be considered. However, Defendant
20120297-CA 5 2013 UT App 154State v. Martinez
could not have successfully raised such a defense in this case. That
is, Defendant’s use of force against Torres cannot be justified here
because the stabbing occurred during the commission of a felony.
Therefore, Defendant cannot demonstrate that the trial court’s
failure to provide jury instructions setting forth the appropriate
burdens of proof was harmful under the plain error standard. Nor
can Defendant demonstrate that his trial counsel’s failure to request
such instructions prejudiced him, resulting in ineffective assistance
at trial. Accordingly, we decline to reverse Defendant’s convictions.
¶11 Affirmed.
20120297-CA 6 2013 UT App 154