State v. Gerber

2015 UT App 76_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MARVA ROLENA GERBER,
Defendant and Appellant.
Memorandum Decision
No. 20130091-CA
Filed April 2, 2015
Fifth District Court, St. George Department
The Honorable G. Rand Beacham
No. 101500267
A. Jason Velez, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE JOHN A. PEARCE concurred. JUDGE J.
FREDERIC VOROS JR. concurred in part and concurred in the result
in part, with opinion.
CHRISTIANSEN, Judge:
¶1 Marva Rolena Gerber appeals her aggravated-arson
conviction following a jury trial. Gerber argues on appeal that her
trial counsel rendered constitutionally ineffective assistance, that
the trial court failed to properly instruct the jury on circumstantial
evidence, and that the trial court erred in denying her motion for
a new trial. We affirm.
State v. Gerber
¶2 Gerber was charged with aggravated arson after the vacant
house she had contracted to buy was set on fire.1 At trial, the State
argued that Gerber was responsible for the arson but relied on
circumstantial evidence to prove Gerber’s guilt. As part of its case-
in-chief, the State introduced evidence that on the day the house
caught fire, Gerber told a detective that she had been at the house
shortly before the time investigators believed the fire started.
However, when police officers again interviewed Gerber
approximately six weeks later, she denied ever having been at the
house that morning. The State argued at trial that this inconsistency
was critical circumstantial evidence of Gerber’s guilt. Gerber
claimed that her inconsistent statements were caused by a transient
ischemic attack, or “mini stroke,” that she allegedly suffered
roughly one week before the fire. Gerber’s trial counsel did not
introduce an independent expert to testify about Gerber’s mental
condition after the alleged mini stroke, but did elicit testimony
from Gerber’s foster daughter that the alleged mini stroke caused
Gerber to be “foggy-headed.”
¶3 The trial court instructed the jury regarding the State’s
burden to prove the defendant guilty beyond a reasonable doubt
using a standard instruction that did not mention circumstantial
evidence (Jury Instruction 8). Jury Instruction 8 was not discussed
by the court and counsel before its inclusion in the final
instructions, and Gerber’s trial counsel did not object to this
instruction or any other proposed jury instruction. During closing
arguments, Gerber’s trial counsel described to the jury the
reasonable-doubt standard contained in Jury Instruction 8 and
argued that the State had failed to meet its burden. The jury found
Gerber guilty of aggravated arson.
¶4 Before sentencing, Gerber retained new counsel and moved
for a new trial based on the alleged deficient performance of her
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict.” State v. Lewis, 2014 UT App 241, ¶ 2
n.1, 337 P.3d 1053 (citation and internal quotation marks omitted).
20130091-CA 2 2015 UT App 76State v. Gerber
trial counsel. Gerber argued that trial counsel rendered ineffective
assistance because he did not call a rebuttal witness to contradict
the State’s fire experts and did not call a medical expert to testify
about Gerber’s alleged mini stroke and how it may have
contributed to her inconsistent statements. Gerber did not identify
what witnesses her trial counsel should have called or what
testimony those witnesses would have provided at trial. At the
hearing on the motion for a new trial, Gerber’s counsel highlighted
the circumstantial nature of the case but did not argue that Jury
Instruction 8 was incorrect.
¶5 At the end of the hearing, the trial court found that Gerber
had made “no showing that any rebuttal expert even exists or
evidence as to what he or she would be able to testify” and that
there was no showing “that any medical expert would testify
[about] an effect” from Gerber’s medical history to explain her
inconsistent statements. The trial court denied the motion for new
trial, concluding that Gerber had not identified any failing of her
trial counsel that would justify a new trial.2
¶6 Gerber raises two issues on appeal. First, she argues that the
trial court failed to properly instruct the jury given the
circumstantial nature of the State’s case against her. Second, she
argues that her trial counsel rendered constitutionally ineffective
assistance and that the trial court erred in denying her request for
a new trial on that basis.
¶7 First, we decline to reach Gerber’s argument that the trial
court failed to properly instruct the jury regarding circumstantial
evidence, because Gerber failed to preserve this issue for appellate
review. “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Cruz, 2005 UT 45, ¶ 33, 122
P.3d 543 (citation and internal quotation marks omitted). “Unless
2. The trial court also denied the motion for a new trial on other
grounds not raised by Gerber in this appeal.
20130091-CA 3 2015 UT App 76State v. Gerber
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.” Utah R. Crim. P. 19(e). Gerber did not object to
Jury Instruction 8 during trial or at the post-trial hearing on her
motion for a new trial, and Gerber has not argued any exception to
the preservation rule. As a result, we decline to address this
argument.3
¶8 Second, Gerber argues that her trial counsel was
constitutionally ineffective and that the trial court erred in not
granting her a new trial on that basis. The State correctly points out
that Gerber failed to properly cite any record evidence supporting
her arguments on appeal, as our rules of appellate procedure
require. See Utah R. App. P. 24(a)(9). However, because we are able
to evaluate the merits of Gerber’s argument notwithstanding these
deficiencies in her briefing, we exercise our discretion to address
her argument that her trial counsel rendered ineffective assistance.
¶9 To establish constitutionally ineffective assistance of counsel,
an appellant “must show that counsel’s performance was deficient”
and “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the
deficient-performance element of the ineffective-assistance test, “a
defendant must identify the acts or omissions which, under the
circumstances, show that counsel’s representation fell below an
objective standard of reasonableness” and overcome the reviewing
court’s presumption that “the challenged action might be
considered sound trial strategy.” State v. Templin, 805 P.2d 182, 186
(Utah 1990) (citations and internal quotation marks omitted). If a
defendant fails to meet either part of the ineffective-assistance test,
the court may conclude its inquiry and deny relief. Strickland, 466
U.S. at 697.
3. We also reject Gerber’s argument that the trial court should have
granted her a new trial on the basis of the alleged error in
instructing the jury. Gerber did not raise this issue in her motion
for a new trial. Thus, the claim is unpreserved. See supra ¶ 7.
20130091-CA 4 2015 UT App 76State v. Gerber
¶10 Here, Gerber argues that her trial counsel performed
deficiently by failing to sufficiently investigate the underlying facts
in the case, because he (1) did not present any expert witness to
explain the medical issues that Gerber claims caused her
inconsistent statements to law enforcement and (2) failed to
produce an independent fire expert to contradict the State’s experts
regarding the cause of the fire.4 Gerber compares her case to State
v. Hales, in which the Utah Supreme Court reversed a murder
conviction because defense counsel failed to adequately investigate
the key evidence in the case—CT scans of the victim’s brain
injuries. 2007 UT 14, ¶ 3, 152 P.3d 321. Gerber claims that in Hales,
“the defendant was convicted based on his trial [attorneys’] failure
to obtain expert testimony” to counter the prosecution’s
interpretation of the CT scans.
¶11 We disagree with Gerber’s interpretation of Hales and her
characterization of her trial counsel’s actions in this case. In Hales,
the defendant was charged with murder based on allegations that
he violently shook a child who later died from severe brain injuries.
Id. ¶ 1. The prosecution presented CT scans of the child’s brain
4. In her reply brief, Gerber argues that her trial counsel was
ineffective for failing to object to Jury Instruction 8. Generally,
arguments “raised for the first time in the reply brief” will not be
considered. See Schefski ex rel. Coleman v. Stevens, 2000 UT 98, ¶ 9,
17 P.3d 1122. Gerber did not properly raise this argument in her
opening brief. In arguing that the trial court erred in providing Jury
Instruction 8, Gerber stated only that “trial counsel should have, at
the very least, made a motion to include the heightened care
standard in the jury instructions, which, once again reflects poorly
on his effectiveness in terms of his representation of [Gerber] at
trial.” But Gerber did not analyze her counsel’s failure to object
under Strickland v. Washington, and did not demonstrate that this
failure to object constituted objectively deficient performance that
prejudiced her defense. 466 U.S. 668, 687 (1984). Because Gerber
failed to properly raise this issue in her opening brief, we decline
to address it.
20130091-CA 5 2015 UT App 76State v. Gerber
injuries and produced an expert who opined that the child suffered
from shaken baby syndrome. Id. ¶ 28. Other evidence in the case
indicated that the injuries occurred during the time when the
defendant was the child’s sole caretaker. Id. ¶¶ 6–10. The defendant
moved for a new trial, claiming that “his trial attorneys rendered
ineffective assistance because they failed to investigate the CT
scans.” Id. ¶ 30. The defendant identified record evidence showing
that his trial attorneys did not acquire the CT scans depicting the
victim’s brain injuries until the morning of trial and that they never
obtained a qualified expert to review the scans.5 Id. ¶ 71. In support
of his motion, the defendant provided an affidavit from a medical
expert whose opinion directly contradicted the prosecution’s
expert’s interpretation of the scans. Id. ¶ 31. The trial court denied
the motion, and the defendant appealed. Id. ¶ 33.
¶12 On appeal, the Utah Supreme Court held that it was the lack
of investigation that rendered the defendant’s trial attorneys’
assistance ineffective, not the ultimate strategic decision to not
provide expert testimony. Id. ¶ 83. The court stated that although
the trial attorneys’ strategic decisions at trial might have been
reasonable once a full investigation had been conducted, the
attorneys “‘were not in a position to make a reasonable strategic
choice’ . . . ‘because the investigation supporting their choice was
unreasonable.’” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 536
(2003)).
¶13 “While the failure to investigate a possible avenue of defense
may constitute ineffective assistance, the failure to actually employ
such a defense . . . for strategic reasons . . . does not.” State v.
Heimuli, 2012 UT App 69, ¶ 6 n.2, 274 P.3d 1005. Here, Gerber has
5. In Hales, the defendant’s trial attorneys relied on the theory that
a near-miss car accident caused the child’s injuries. State v. Hales,
2007 UT 14, ¶ 29, 152 P.3d 321. The attorneys offered an expert
opinion to support this theory, but it was sharply rebutted by the
prosecution’s expert, who had thoroughly reviewed the CT scans.
Id. ¶¶ 28–29.
20130091-CA 6 2015 UT App 76State v. Gerber
not shown that her trial counsel failed to adequately investigate
any avenue of defense. Gerber claims that her trial counsel
inadequately investigated the case because he did not present a
rebuttal expert or a medical expert to explain Gerber’s inconsistent
statements to law enforcement authorities. But she fails to explain
how the decision not to call such witnesses at trial demonstrates
that trial counsel failed to perform a reasonable investigation
before making that decision.
¶14 Further, Gerber’s complaints that her trial counsel failed to
present experts are based entirely on speculation. “It should go
without saying that the absence of evidence cannot overcome the
‘strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance.’” Burt v. Titlow, 134 S.
Ct. 10, 17 (2013) (alteration in original) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). A defendant “cannot meet
[her] burden by merely pointing out what counsel did not do; [she]
must bring forth the evidence that would have been available in the
absence of counsel’s deficient performance.” State v. Lee, 2014 UT
App 4, ¶ 12, 318 P.3d 1164. Gerber faults her trial counsel for failing
to present a medical expert to provide a medical explanation for
Gerber’s inconsistent statements. But Gerber has not identified any
medical expert who would have testified on her behalf at trial or
set forth that expert’s expected testimony in the record.6 Gerber’s
assertion that trial counsel performed deficiently by failing to
produce such an expert therefore remains “entirely speculative.”
See State v. Parker, 2013 UT App 21, ¶ 6, 295 P.3d 712 (concluding
that the defendant’s ineffective assistance of counsel claims were
“entirely speculative” because the record included no potential
defense expert testimony and the defendant had failed to request
a remand to make a record of any such testimony).
6. Gerber did not move this court to remand this case to
supplement the record pursuant to rule 23B. See Utah R. App. P.
23B(a).
20130091-CA 7 2015 UT App 76State v. Gerber
¶15 Gerber’s claim that her trial counsel failed to adequately
investigate the underlying facts of the case because he did not
produce an independent fire expert to contradict the testimony of
the State’s fire experts, is also based on speculation. Without
identifying a specific expert who would have testified in her
defense and setting forth in the record that expert’s expected
testimony, Gerber’s claims that her trial counsel performed
deficiently by failing to introduce hypothetical experts cannot
succeed because her proof remains “speculative” rather than “a
demonstrable reality.” See State v. Munguia, 2011 UT 5, ¶ 30, 253
P.3d 1082 (citation and internal quotation marks omitted). Gerber’s
conclusory allegations do not persuade us that absent the alleged
errors, the verdict in her case would have been different.
¶16 Last, Gerber argues that her trial counsel was
constitutionally ineffective for failing to present a reasonable
hypothesis of innocence to rebut the State’s theory of the case.
Gerber grounds this argument in our supreme court’s observation
that “[w]here the only evidence presented against the defendant is
circumstantial, the evidence supporting a conviction must preclude
every reasonable hypothesis of innocence.” State v. Hill, 727 P.2d
221, 222 (Utah 1986) (plurality opinion). According to Gerber,
because the State’s case was based entirely on circumstantial
evidence, her trial counsel had a “duty” to present a reasonable
hypothesis of innocence. However, Gerber fails to cite any legal
authority that imposes this “duty” on defense counsel. Rather than
being a duty upon defense counsel, the reasonable hypothesis of
innocence is merely one way “of expressing th[e] necessary burden
of proof” and our caselaw does not even require the jury be
instructed on this concept in every circumstantial evidence case.
State v. Eagle, 611 P.2d 1211, 1213 (Utah 1980); see, e.g., State v.
Hansen, 710 P.2d 182, 183 (Utah 1985) (reiterating that a defendant
is not entitled to an instruction on a reasonable hypothesis of
innocence “where the jury is instructed that the State must prove
a defendant’s guilt beyond a reasonable doubt”); see also Holland v.
United States, 348 U.S. 121, 139–40 (1954) (explaining that “where
the jury is properly instructed on the standards for reasonable
20130091-CA 8 2015 UT App 76State v. Gerber
doubt,” an instruction on a reasonable hypothesis of innocence is
“confusing and incorrect”). “The prosecution’s burden of proof in
any criminal case, whether the evidence be direct or circumstantial,
. . . is that of beyond a reasonable doubt.” State v. Burton, 642 P.2d
716, 719 (Utah 1982) (citation and internal quotation marks
omitted). Thus, as long as jury instructions clearly inform a jury of
the proof-beyond-a-reasonable-doubt standard, no instruction on
“reasonable hypothesis of innocence” need be presented, see id.,and nothing in our caselaw imposes on defense counsel a duty to
pursue a defense based on this concept. Accordingly, we conclude
that Gerber has failed to demonstrate that her trial counsel
performed deficiently in any respect.
¶17 We conclude that Gerber was not deprived of the
constitutionally effective assistance of counsel. Gerber has also
failed to preserve her claim that the jury was incorrectly instructed.
We therefore affirm the trial court’s denial of Gerber’s motion for
a new trial.
VOROS, Judge (concurring in part and concurring in the result in
part):
¶18 I concur in the majority except for paragraphs 8 through 15.
I see no need to distinguish State v. Hales, 2007 UT 14, 152 P.3d 321,
where Gerber’s opening brief offers virtually no record support for
her ineffective assistance of counsel claim. As the State rightly
notes, Gerber’s inadequate investigation claim rests on one broad
citation to the entire record on appeal along with just three specific
citations to the record—one to the prosecutor’s opening statement,
one to a minute entry for review hearing, and one to a minute entry
on motion for new trial. With such sparse references to the record,
none of which even relate to counsel’s pre-trial investigations,
Gerber’s claim cannot overcome the “strong presumption” that
trial counsel made reasonable investigations or reasonably
determined that further investigations were unnecessary. Strickland
v. Washington, 466 U.S. 668, 689, 691 (1984).
20130091-CA 9 2015 UT App 76State v. Gerber
¶19 An inadequately briefed claim is by definition insufficient to
discharge an appellant’s burden to demonstrate trial court error.”
Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 37,
335 P.3d 885 (citation omitted). To be adequately briefed, an
argument must contain citations to the “parts of the record relied
on.” Utah R. App. P. 24(a)(9). Because Gerber’s inadequate
investigation claim contains no relevant citations to the parts of the
record relied on, it is inadequately briefed and consequently
insufficient to discharge her burden on appeal.
¶20 I would therefore reject Gerber’s claim on this basis and
otherwise join the majority in affirming Gerber’s convictions.
20130091-CA 10 2015 UT App 76