State v. Selzer , 294 P.3d 617 ( 2013 )

2013 UT App 3_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JON SELZER,
Defendant and Appellant.
Opinion
No. 20090352‐CA
Filed January 4, 2013
Fourth District, Provo Department
The Honorable Gary D. Stott
No. 081401643
Ann P. Boyle and Michael D. Esplin, Attorneys for Appellant
Mark L. Shurtleff and Ryan D. Tenney, Attorneys for Appellee
JUDGE WILLIAM A.THORNE JR. authored this Opinion,
in which JUDGE CAROLYN B. MCHUGH
and JUDGE J. FREDERIC VOROS JR. concurred.
THORNE, Judge:
¶1 Jon Selzer appeals from his convictions on two counts of
aggravated sexual assault, arguing that he received ineffective
assistance of counsel and that his convictions are barred by the rule
against multiple prosecutions arising from a single criminal
episode. We affirm.
State v. Selzer
BACKGROUND1
¶2 Selzer and his live‐in girlfriend, S.G., spent the day and
evening of May 31, 2008, drinking vodka together in their home
and continued doing so into the early morning hours of June 1.
Around 3:00 a.m., Selzer got into the shower and S.G. joined him.
S.G. thought that Selzer was behaving strangely in the shower, and
she got out of the shower and went to the couple’s bedroom.
¶3 As S.G. was toweling off, Selzer entered the bedroom and
demanded oral sex. S.G. said no and told him, “I don’t want to do
this.” Selzer responded, “You’re my woman. You’re supposed to
do these things.” Selzer then forced S.G. to perform oral sex on
him. S.G. did not attempt to pull away because she was scared of
the way that Selzer was acting. Selzer then told S.G. to lie down on
the bed and had intercourse with her. S.G. repeatedly told him to
stop and to get off of her, and Selzer responded by squeezing her
throat with his hand. S.G. continued to resist until Selzer finally
stopped.
¶4 S.G. was distraught and went to the kitchen to have a drink
and calm down. She eventually decided to walk to a nearby gas
station to buy cigarettes, and Selzer joined her. On the way to the
store, Selzer knocked S.G. to the ground and began hitting her and
verbally berating her. Selzer continued this behavior until they
reached the gas station at about 5:45 a.m., where the two entered
and made their cigarette purchase. As soon as they left the gas
station, Selzer began hitting S.G. again. The gas station attendant
saw this assault and heard S.G. yell, “[P]lease, please don’t hurt me
any more.” The attendant called 911, and police officers arrived to
see Selzer with his hands around S.G.’s neck.
1
We recite the facts in the light most favorable to the jury’s
verdict. See State v. Jeffs, 2010 UT 49, ¶ 3, 243 P.3d 1250.
20090352‐CA 2 2013 UT App 3State v. Selzer
¶5 The officers arrested Selzer, who admitted to them that he
had been “pushing [S.G.] around . . . a little.” S.G. was hysterical
and told the officers that Selzer had been trying to kill her. The
officers observed that S.G. had red marks on her face, had cuts and
scrapes on her arms and hands, and was bleeding from the mouth.
However, S.G. did not inform officers at this time that Selzer had
also sexually assaulted her.
¶6 After Selzer was arrested, S.G. went home to care for her
child and eventually took the child to his father’s motel room,
where S.G. slept the rest of the day. When she awoke in the
evening, her child’s father convinced her that she should go to the
hospital to get examined. She went to the emergency room and
informed medical personnel that she had been sexually assaulted.
She was then examined by Dr. Steven Embley and Susan Chasson,
a trained sexual assault nurse. The examination revealed a small
tear on S.G.’s labia as well as redness to the roof of S.G.’s mouth.
¶7 Selzer’s physical and sexual assaults on S.G. resulted in two
separate prosecutions. On June 2, 2008, the Provo City prosecutor’s
office charged Selzer in district court with class B misdemeanor
assault and class A misdemeanor violation of a domestic violence
no‐contact order. The assault charge related to Selzer’s hitting and
choking S.G. at the gas station. The violation of a no‐contact order
apparently occurred shortly after Selzer had been arrested, when
he phoned S.G. and began berating her again. Selzer was arraigned
on these charges on June 12 and pleaded guilty to both charges on
August 21.
¶8 On June 10, 2008, the Utah County Attorney initiated the
instant prosecution by charging Selzer with two first degree felony
counts of aggravated sexual assault and one third degree felony
count of domestic violence aggravated assault.2 These charges
2
The June 10 information also included one count of
retaliation against a witness and one count of domestic violence
(continued...)
20090352‐CA 3 2013 UT App 3State v. Selzer
arose from S.G.’s interview with police following her sexual assault
report and examination. On November 12, 2008, Selzer filed a
motion to dismiss all of the outstanding charges against him,
alleging that they arose out of a single criminal episode which
included the misdemeanor assault (the gas station assault) that he
had pleaded guilty to in the separate prosecution by Provo City
and were therefore barred by Utah Code sections 76‐1‐402 and
‐403. See generally Utah Code Ann. § 76‐1‐402 (LexisNexis 2008)
(requiring that multiple offenses arising out of a single criminal
episode generally be tried in a single trial); id. § 76‐1‐403 (generally
barring subsequent prosecutions after an initial prosecution for
offenses arising out of a single criminal episode). The district court
granted Selzer’s motion as to the domestic violence aggravated
assault charge, but allowed the aggravated sexual assault charges
to proceed to trial.
¶9 Prior to trial, the State gave notice that it intended to call Dr.
Embley and Nurse Chasson as expert witnesses regarding their
examination of S.G. Thereafter, Selzer successfully sought a trial
continuance to prepare a response to Embley and Chasson’s
testimony. Selzer’s counsel had difficulty contacting his preferred
sexual assault expert, Sue Bryner‐Brown, and was referred to
another sexual assault nurse, Diane Crockett. Crockett reviewed
the S.G. examination report and pictures of S.G.’s injuries and
concluded that the injuries to S.G.’s mouth and labia were consis‐
tent with both consensual and nonconsensual sexual activity.
Selzer’s counsel asked Crockett if the State’s experts would have to
concede that the injuries were consistent with consensual as well
as nonconsensual sex, and Crockett told him that she thought they
would have to. Relying on Crockett’s evaluation and advice,
Selzer’s counsel did not interview the State’s experts, nor did he
retain Crockett or any other expert to testify at trial.
2
(...continued)
in the presence of a child, but those charges were dismissed at
Selzer’s preliminary hearing.
20090352‐CA 4 2013 UT App 3State v. Selzer
¶10 At trial, Embley and Chasson both testified that S.G.’s
injuries were consistent with nonconsensual sex. Further, and
particularly with regard to the labial tearing, both experts testified
that the injuries were unlikely to have resulted from consensual
sex. Chasson testified that she had never seen a mouth injury
similar to S.G.’s outside of the context of sexual assault and that she
had never seen a similar labial injury resulting from consensual
sexual activity. However, both experts conceded that it was
possible that the injuries to S.G.’s mouth and labia were not caused
by forcible sex. S.G., the gas station attendant, and Selzer himself
also testified at trial. The jury ultimately convicted Selzer on both
aggravated sexual assault counts, and he now appeals.
¶11 This court granted Selzer’s request for a rule 23B remand to
address the issue of trial counsel’s effectiveness regarding the
decision not to present expert testimony that S.G.’s mouth and
labia injuries were consistent with consensual sexual activity. See
generally Utah R. App. P. 23B (allowing an appellate court to
remand a criminal matter to the trial court for entry of findings of
fact necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel). On remand, the district court
heard testimony from Selzer’s trial counsel and from Bryner‐
Brown, the sexual assault nurse counsel had attempted to contact
before trial.
¶12 Among the district court’s factual findings after the hearing
were that Selzer’s counsel was surprised by Chasson’s trial
testimony that she had never seen similar injuries resulting from
consensual sex, that counsel was unable to refute Chasson’s
testimony because he had not retained an expert, and that counsel
believed this failure was prejudicial to Selzer because the remain‐
ing testimony against him was not overwhelming. The district
court also found that Bryner‐Brown would have testified that the
redness to the roof of S.G.’s mouth could have been caused by
many things besides forced oral sex, that the hallmark injuries of
forced oral sex—bruising to the back of the throat and the back of
the lips—were not present, that she had seen greater labial injuries
20090352‐CA 5 2013 UT App 3State v. Selzer
resulting from consensual sex, and that labial injuries similar to
S.G.’s were just as consistent with consensual sex as with
nonconsensual sex.
ISSUES AND STANDARDS OF REVIEW
¶13 On appeal, Selzer argues that his trial counsel provided
ineffective assistance by failing to adequately investigate the State’s
experts and failing to present rebuttal expert testimony that S.G.’s
mouth and labia injuries were consistent with consensual sex. “In
ruling on an ineffective assistance claim following a [r]ule 23B
hearing, we defer to the trial court’s findings of fact, but review its
legal conclusions for correctness.” State v. Arriaga, 2012 UT App
295, ¶ 11, 288 P.3d 588 (alteration in original) (citation and internal
quotation marks omitted).
¶14 Selzer also argues that his convictions are barred because
they arise from the same criminal episode as the misdemeanor
assault to which he had previously pleaded guilty. Therefore,
Selzer argues, the district court erred when it denied his motion to
dismiss. “A trial court’s decision to grant or deny a motion to
dismiss presents a question of law, which we review for correct‐
ness.” State v. Horrocks, 2001 UT App 4, ¶ 10, 17 P.3d 1145.
ANALYSIS
I. Ineffective Assistance of Counsel
¶15 Selzer first argues that his trial counsel performed ineffec‐
tively by failing to adequately prepare for and counter the testi‐
mony of the State’s expert witnesses. Specifically, Selzer argues that
his trial counsel had a duty to interview Embley and Chasson prior
to trial and that these interviews would have revealed the need to
retain a defense expert to testify that S.G.’s mouth and labia injuries
were consistent with consensual sex.
20090352‐CA 6 2013 UT App 3State v. Selzer
¶16 To succeed on his ineffective assistance of counsel claim,
Selzer must show that “(1) trial counsel rendered deficient perfor‐
mance which fell below an objective standard of reasonable
professional judgment, and (2) counsel’s deficient performance
prejudiced him.” State v. Chacon, 962 P.2d 48, 50 (Utah 1998); see also
Strickland v. Washington, 466 U.S. 668, 686–87 (1984). “There is a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Taylor v. State, 2012
UT 5, ¶ 54, 270 P.3d 471 (citation and internal quotation marks
omitted). Selzer “bears the burden to rebut this strong presump‐
tion, which he must do by identify[ing] the acts or omissions of
counsel that are alleged not to have been the result of reasonable
professional judgment.” State v. Hutchings, 2012 UT 50, ¶ 18, 285
P.3d 1183 (alteration in original) (citation and internal quotation
marks omitted). Further, to establish prejudice, Selzer must
“illustrate that, absent those acts or omissions, there is a reasonable
probability of a more favorable result.” State v. King, 2010 UT App
396, ¶ 20, 248 P.3d 984 (citation and internal quotation marks
omitted); see also Strickland, 466 U.S. at 694.
¶17 Selzer argues that his counsel failed to conduct an adequate
investigation into the likely testimony of the State’s expert wit‐
nesses, and that this failure to investigate and the resulting failure
to call a defense expert constitutes deficient performance on the
part of counsel. See generally Houskeeper v. State, 2008 UT 78, ¶ 38,
197 P.3d 636 (“This court has found that counsel’s performance
falls below an objective standard of reasonableness when counsel
does not make a reasonable investigation into the availability of
prospective witnesses.” (internal quotation marks omitted)); State
v. Templin, 805 P.2d 182, 188 (Utah 1990) (“[A] decision not to
investigate cannot be considered a tactical decision. It is only after
an adequate inquiry has been made that counsel can make a
reasonable decision to call or not to call particular witnesses for
tactical reasons.”). Selzer analogizes his case to State v. Hales, 2007
UT 14, 152 P.3d 321, in which the Utah Supreme Court reversed a
shaken‐baby murder conviction due to defense counsel’s failure to
adequately investigate a CT scan of the victim’s brain injuries.
20090352‐CA 7 2013 UT App 3State v. Selzer
¶18 We disagree with Selzer’s characterization of his counsel’s
actions and determine that counsel did conduct a sufficient
investigation to justify his decision not to present a defense expert.
Here, counsel obtained a trial continuance to prepare for the State’s
expert witnesses and had Crockett, a qualified expert, review S.G.’s
sexual assault examination report and pictures of her mouth and
labia injuries. Crockett determined that, in her opinion, S.G.’s
injuries were consistent with consensual as well as nonconsensual
sex. Crockett further assured Selzer’s counsel that the State’s own
experts would have to concede as much. Selzer’s counsel reason‐
ably relied on Crockett’s opinion, and it was not deficient perfor‐
mance for him to have done so. See Archuleta v. Galetka, 2011 UT 73,
¶ 129, 267 P.3d 232 (“[C]ourts have long held that it is reasonable
for counsel to rely on the judgment and recommendations of
qualified experts with expertise beyond counsel’s knowledge.”).
¶19 Further, this case is readily distinguishable from Hales. In
Hales, trial counsel’s “failure to hire a qualified expert to review the
CT scans constituted a failure to conduct an adequate investiga‐
tion.” See 2007 UT 14, ¶ 69. By contrast, Selzer’s trial counsel had
Crockett review S.G.’s examination report and pictures of her
injuries, and it is undisputed that Crockett was a qualified expert.3
Once Crockett advised Selzer’s counsel that the State’s experts
would have to concede that S.G.’s injuries were not inconsistent
with consensual sex, counsel acted reasonably in relying on
Crockett’s advice and attempting to counter the State’s experts with
cross‐examination rather than presenting a separate defense expert.
See generally id. ¶ 80 (“[I]n many circumstances defense attorneys
may reasonably decide to rebut an expert’s testimony without
hiring a competing expert . . . .”).
3
At the rule 23B remand hearing, Bryner‐Brown testified
that she had personally trained Crockett, that Crockett was
qualified to “give good accurate medical opinions,” and that
Selzer’s counsel had made a “good choice” when he consulted
with Crockett.
20090352‐CA 8 2013 UT App 3State v. Selzer
¶20 We are also not convinced by Selzer’s argument that his
counsel’s handling of the State’s expert testimony was prejudicial.
The State’s primary evidence against Selzer was S.G.’s testimony
that Selzer had sexually assaulted her, and we disagree with
Selzer’s assertions on appeal that “[S.G.’s] testimony at trial was
not credible” and that “the jury was left to determine whether the
sexual activity between Selzer and [S.G.] was consensual or non‐
consensual solely on the testimony of the State’s Expert
Witnesses.”4 Furthermore, both of the State’s experts repeatedly
testified—consistent with Crockett’s pre‐trial assessment—that
S.G.’s injuries could have occurred during consensual sex. We see
no reason to believe that the jury’s assessment of S.G.’s credibility
would have been significantly altered had counsel retained
Crockett to testify at trial.5 Therefore, Selzer has failed to demon
4
Selzer’s allegation on appeal that S.G.’s testimony was
not credible is based on certain false or inconsistent statements
that S.G. had made to police in an effort to conceal the fact that
she had left her young child alone and unattended when she
went with Selzer to buy cigarettes. None of the inconsistencies or
falsehoods identified by Selzer bore directly on the issue of
consent. We also note that Selzer’s own testimony on the consent
issue was less than compelling, including his statements that
S.G. was “my woman when we were together” and, “She don’t
have to do anything she don’t want to, but they are things that
people claim to whatever when they consider someone some‐
thing, you know what I mean?” Other testimony by Selzer that
may not have helped his case included his assessment that his
beating of S.G. was “probably not acceptable” but was “nothing
to how she was getting beat up by her boyfriend” and his final
statement on cross‐examination: “She’ll live. She’s a strong
woman. She’ll get over it, but all this right here[—the prosecu‐
tion and trial—]isn’t necessary.”
5
Selzer makes no direct argument on appeal that his
counsel should have retained Bryner‐Brown as a trial expert. He
(continued...)
20090352‐CA 9 2013 UT App 3State v. Selzer
strate a “reasonable probability of a more favorable result” had his
counsel interviewed the State’s experts and presented Crockett’s
testimony at trial. See King, 2010 UT App 396, ¶ 20 (citation and
internal quotation marks omitted).
II. Single Criminal Episode
¶21 Selzer next argues that his aggravated sexual assault
convictions are barred because they resulted from the same “single
criminal episode” as his previous conviction for the gas station
assault. See generally Utah Code Ann. § 76‐1‐401 (LexisNexis 2008)
(defining “single criminal episode”); id. § 76‐1‐402 (generally
requiring that offenses arising out of a single criminal episode be
tried together); id. § 76‐1‐403 (barring subsequent prosecutions for
offenses that were or should have been tried in a prior prosecution
as arising from the same single criminal episode). Selzer raised this
argument in the district court by filing a motion to dismiss, which
the court denied. We affirm the district court’s ruling.
¶22 Utah Code section 76‐1‐403(1) states,
If a defendant has been prosecuted for one or more
offenses arising out of a single criminal episode, a
subsequent prosecution for the same or a different
offense arising out of the same criminal episode is
barred if:
5
(...continued)
does, however, seem to assume that either Bryner‐Brown or
Crockett would have testified consistently with Bryner‐Brown’s
remand hearing testimony. We note that the State argues that if
Selzer’s counsel had elected to call an expert at trial, it would
likely have been Crockett rather than Bryner‐Brown because
counsel had been unable to contact Bryner‐Brown when he
attempted to do so. We also note that Crockett’s pretrial assess‐
ment was much less favorable to Selzer’s defense than Bryner‐
Brown’s later testimony at the remand hearing.
20090352‐CA 10 2013 UT App 3State v. Selzer
(a) The subsequent prosecution is for an
offense that was or should have been tried under
Subsection 76‐1‐402(2) in the former prosecution; and
(b) The former prosecution:
(i) resulted in acquittal; or
(ii) resulted in conviction . . . .
Id. § 76‐1‐403(1). Utah Code section 76‐1‐402(2) provides that unless
the trial court orders otherwise to promote justice, separate
offenses arising from a single criminal episode must be tried in a
single proceeding so long as “(a) [t]he offenses are within the
jurisdiction of a single court; and (b) [t]he offenses are known to the
prosecuting attorney at the time the defendant is arraigned on the
first information or indictment.” Id. § 76‐1‐402(2). The purpose of
such compulsory joinder statutes “is twofold: (1) to protect a
defendant from the governmental harassment of being subjected
to successive trials for offenses stemming from the same criminal
episode; and (2) to ensure finality without unduly burdening the
judicial process by repetitious litigation.” Commonwealth v. Fithian,
961 A.2d 66, 75–76 (Pa. 2008) (citation and internal quotation marks
omitted).
¶23 Here, it is undisputed that Selzer was subjected to a prior
prosecution that resulted in his conviction on the gas station
assault.6 It is also readily apparent that a single court—the district
court—would have had jurisdiction over all of the charges against
Selzer had they been charged in one information. See Utah Code
Ann. § 78A‐5‐102(1), (8)(c) (LexisNexis 2008) (stating that the
district court “has original jurisdiction in all matters civil and
criminal, not excepted in the Utah Constitution and not prohibited
6
Selzer pleaded guilty to the gas station assault charge,
and his guilty plea constitutes a conviction for purposes of Utah
Code section 76‐1‐403. See Utah Code Ann. § 76‐1‐403(3)
(LexisNexis 2008) (“There is a conviction if the [prior]
prosecution resulted in . . . a plea of guilty accepted by the
court.”).
20090352‐CA 11 2013 UT App 3State v. Selzer
by law” and has jurisdiction over class B misdemeanors when
“they are included in an indictment or information covering a
single criminal episode alleging the commission of a felony or a
class A misdemeanor”). Thus, Selzer’s present convictions would
be barred if the sexual assaults arose out of the same single
criminal episode as the gas station assault and if the Provo City
prosecutor knew about the sexual assaults when Selzer was
arraigned on the gas station assault charge.7
¶24 When the district court denied Selzer’s motion to dismiss, it
did not make express findings on either of these two issues, ruling
only that “[the] State is permitted to proceed with respect to the
sexual charges.” Further, Selzer did not request that the district
court clarify its ruling and enunciate its exact reasoning. Under
these circumstances, Selzer must demonstrate that there was no
viable reason for the district court to deny his motion to dismiss,
i.e., Selzer must establish on appeal that there was only a single
criminal episode and that the first prosecutor knew about the
sexual assaults when Selzer was arraigned on the gas station
assault charge. Cf. State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448(discussing the appellant’s burden to overcome the presumption
that “a lower court has conducted its affairs properly and that the
outcome of its process is sufficiently supported in law and fact”);
State v. Hurt, 2010 UT App 33, ¶¶ 15–16, 227 P.3d 271 (requiring an
appellant to challenge the grounds underlying the denial of a
suppression motion). We determine that the district court could
have properly denied Selzer’s motion because the charges did not
7
We recognize that the Provo City prosecutor could not
have charged Selzer with the felony sexual assaults even if he
had been aware of S.G.’s allegations. See Utah Code Ann. § 10‐3‐
928(2) (LexisNexis 2007) (granting city attorneys authority to
prosecute “infractions and misdemeanors”). However, Provo
City could have coordinated with the Utah County Attorney’s
office to ensure that the gas station assault and the sexual
assaults were properly prosecuted in a single district court
action.
20090352‐CA 12 2013 UT App 3State v. Selzer
arise from a single criminal episode, or because the prosecutor in
the gas station assault prosecution was unaware of the sexual
assaults, or both.
¶25 Under the circumstances presented by these facts, the
district court could have properly concluded that the sexual
assaults and the gas station assault did not arise from a single
criminal episode. A “single criminal episode” is defined by statute
as “all conduct which is closely related in time and is incident to an
attempt or an accomplishment of a single criminal objective.” Utah
Code Ann. § 76‐1‐401 (emphasis added). Thus, the statute requires
both temporal proximity and a single criminal objective. See, e.g.,
State v. Mead, 2001 UT 58, ¶ 56, 27 P.3d 1115 (applying the single
criminal episode definition). The incidents at issue in this case,
which took place within the course of three hours or so, may not
satisfy the “closely related in time” requirement in light of the
pause in events between the sexual assaults and the decision to
leave the apartment and walk to the gas station.8 Compare id.(holding that solicitation of murder and subsequent murder were
part of the same criminal episode despite the passage of several
weeks between the two events), with State v. Ireland, 570 P.2d 1206,
1207 (Utah 1977) (“In this case there was a distinct difference in
time, (that necessary to travel some 65 miles) . . . .”).
¶26 In addition to the timing requirement, the statute requires
that the various offenses be in furtherance of a “single criminal
objective.” See Utah Code Ann. § 76‐1‐401; Mead, 2001 UT 58, ¶ 56
(“There can be no doubt that the solicitation and murder charges
share an identical criminal objective: the death of [the victim].”).
Whether or not there is a single criminal objective “depends on the
specific facts of the case viewed under . . . the totality of the
8
We note that the timing requirement depends largely on
the factual circumstances. Where multiple acts are
“manifestations of a single, clear, criminal objective, the timing
between the two incidents is not as crucial.” State v. Mead, 2001
UT 58, ¶ 56 n.10, 27 P.3d 1115.
20090352‐CA 13 2013 UT App 3State v. Selzer
circumstances.” State v. Strader, 902 P.2d 638, 642 (Utah Ct. App.
1995). Further, where a defendant is arguing that a subsequent
prosecution is barred by a prior conviction, “it is appropriate to
take a narrow, rather than an expansive, view of what [a single
criminal episode] entails.” Id.
¶27 In light of these considerations, we cannot say that Selzer
has demonstrated that the sexual assaults and the subsequent gas
station assault necessarily constituted a single criminal episode.
State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (discussing the
appellant’s burden to demonstrate error). At the hearing on the
motion to dismiss, the State argued, “[O]bviously the sexual assault
had a very different purpose and that was for his sexual
gratification and domination of the victim in a sexual act. That’s a
very different purpose than just being in a rage and beating
someone in the face later in the morning.” While other
interpretations of Selzer’s actions may be possible, the district court
could certainly have accepted the State’s argument and determined
that the sexual assaults and the gas station assault did not share a
single criminal objective.9
¶28 To prevail on appeal, Selzer would also need to establish
that the sexual assaults were “known to the prosecuting attorney
at the time [Selzer was] arraigned on the first information or
indictment.” See Utah Code Ann. § 76‐1‐402(2)(b). Selzer fails to
identify anything in the record to suggest that the first prosecutor
had such knowledge, and we agree with the State that there is no
reason to believe that he did. The misdemeanor gas station assault
9
To the extent that the district court did base its ruling on
an unstated finding that the “specific facts of the case” did not
establish a single criminal episode, see State v. Strader, 902 P.2d
638, 642 (Utah Ct. App. 1995), Selzer has not marshaled the
evidence supporting such a finding. We therefore decline to
disturb any such finding. See Utah R. App. P. 24(a)(9) (“A party
challenging a fact finding must first marshal all record evidence
that supports the challenged finding.”).
20090352‐CA 14 2013 UT App 3State v. Selzer
charge was processed through the Provo City prosecutor’s office
following Selzer’s arrest on the morning of June 1. The Provo City
prosecutor’s office charged Selzer with assault on June 2, 2008, and
arraigned him on June 12. S.G. did not report the sexual assaults
until the evening of June 1, when she went to the hospital for
examination. S.G.’s sexual assault allegations were investigated by
a different officer, and the resulting felony charges were screened
through the Utah County Attorney. Selzer cites no record evidence
showing that either the investigating officer or the Utah County
Attorney’s office informed the Provo City prosecutor of S.G.’s
sexual assault allegations, and we note that Provo City lacked the
authority to prosecute those felonies. Compare Utah Code Ann.
§ 17‐18‐1(1)(a)(i) (LexisNexis 2004) (granting counties authority
over “all prosecutions for public offenses”), with id. § 10‐3‐928(2)
(2007) (granting city attorneys authority to prosecute “infractions
and misdemeanors”). Under these circumstances, Selzer has not
persuaded us that the Provo City prosecutor knew about the sexual
assaults at the time that Selzer was “arraigned on the first
information or indictment.” Id. § 76‐1‐402(2)(b) (2008).
¶29 In sum, we are not convinced that the district court erred
when it denied Selzer’s motion to dismiss. The district court could
have based its ruling on a finding that the various crimes arose out
of separate criminal episodes, or on a finding that the first
prosecutor did not know about the sexual assaults, or both. Selzer
did not ask the district court to clarify its ruling, and he has failed
to establish on appeal that all of the crimes arose from a single
criminal episode and that they were known to the first prosecutor
at the time Selzer was arraigned on the gas station assault charge.
For these reasons, we affirm the district court’s denial of Selzer’s
motion to dismiss.
CONCLUSION
¶30 We determine that Selzer has not established that his trial
counsel provided ineffective assistance in his handling of the
20090352‐CA 15 2013 UT App 3State v. Selzer
State’s expert witnesses. We also determine that Selzer has failed
to demonstrate error in the district court’s denial of his motion to
dismiss. Accordingly, we affirm Selzer’s convictions.
____________________
20090352‐CA 16 2013 UT App 3