State v. Calvert , 407 P.3d 1098 ( 2017 )

2017 UT App 212THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CHADLEY KEITH CALVERT,
Appellant.
Opinion
No. 20150213-CA
Filed November 16, 2017
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 121400830
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.
POHLMAN, Judge:
¶1 Chadley Keith Calvert appeals his convictions for
aggravated assault, a third degree felony, and for threatening
with or using a dangerous weapon in a fight or quarrel, a class A
misdemeanor. Calvert contends that his trial counsel provided
constitutionally ineffective assistance in failing to raise
arguments related to double jeopardy and that the trial court
exceeded its discretion in admitting evidence of a prior bad act.
He also argues that his trial counsel was ineffective in failing to
object to the jury’s access to a state-owned laptop for the purpose
of viewing an exhibit and that counsel’s failure was structural
error. We affirm.
State v. Calvert
BACKGROUND1
¶2 After an altercation in front of his house in July 2012,
during which Calvert threatened neighbors with a gun, Calvert
was charged with third degree aggravated assault and with
threatening with or using a dangerous weapon in a fight or
quarrel. Before trial, the State filed a motion in limine seeking to
admit evidence of two prior incidents during which Calvert
allegedly threatened neighbors with the use of deadly force. The
State argued that the admission of evidence of Calvert’s prior
acts was warranted to show the absence of accident or mistake
and to rebut Calvert’s claims of fabrication and self-defense. The
trial court refused to admit the older of the two incidents but,
over Calvert’s objection, ruled that evidence of the more recent
2008 incident (the Holladay incident) could be admitted for the
purpose of rebutting Calvert’s claims of fabrication and self-
defense.
¶3 At trial, the State offered testimony from several
witnesses to the July 2012 altercation. Several minors recounted
that on that evening they and their families attended a party a
few houses away from Calvert’s house. As this group of minors
passed by Calvert’s property, Calvert stepped out onto his front
porch and yelled profanities at them, telling them to stay away
from his yard. The oldest minor, A.H., approached Calvert and
told him “not to talk to [the children] like that.” Calvert then
“exchanged words” with A.H., yelling that the minors needed to
stay away from his property and threatening to “kick [A.H.’s]
ass.” A.H. then said that he was going to get his parents and
1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly. We include conflicting evidence
as relevant and necessary to understand the issues on appeal.”
State v. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863 (citation
omitted).
20150213-CA 2 2017 UT App 212State v. Calvert
quickly returned to the party. One of the minors testified that
Calvert “pulled out a gun or something like that” during this
argument.
¶4 Several adults testified that A.H. and other minors told
the adults at the party that a man was screaming and swearing
at them. A.H.’s uncle (Uncle) immediately went to check on the
children and stood on the sidewalk in front of Calvert’s house.
Calvert was at his front door and had a gun in his hand. The gun
had a laser sight that emitted a “red light.” When Uncle asked
Calvert what happened, Calvert told him to leave and pointed
the gun at Uncle’s chest for “probably 30 seconds.” “[S]everal
times,” Calvert “put the laser on” Uncle and “took it away.” Two
other adults from the party arrived at the scene and both saw
Calvert holding a gun. After they urged Uncle to go home,
Calvert threatened that he would “bring out [his] dogs so [they]
could have a conversation dog-to-dog.” Calvert also told them to
leave his property or “things were going to get bad.” A.H. called
911. Shortly before the police arrived, Calvert ran and put his
gun in his garage.
¶5 A responding officer (Officer) who interviewed Calvert
that night testified that Calvert reported that he had had an
altercation with the neighbors and that “some kids were hanging
. . . on [his] tree.” Calvert pointed out the tree, but Officer “didn’t
see any broken branches,” only “a few leaves on the ground.”
When Officer asked Calvert about a gun, Calvert responded that
he had been “sitting on his steps with just the laser pointer” and
that he had pointed the laser at the ground. Calvert said that he
had a gun in an upstairs bedroom and agreed to show it to
Officer. The gun was a Smith & Wesson Sigma that was loaded
and stored in a neoprene holster. The Sigma did not have a laser
sight and did not match the witnesses’ descriptions of Calvert’s
gun. Calvert told Officer that, during the altercation, he did not
have time to come inside to retrieve the gun but that he called
his neighbor.
20150213-CA 3 2017 UT App 212State v. Calvert
¶6 Officer testified that, once back outside, he informed
Calvert that the neighbors reported that Calvert put the gun in
the garage. Calvert denied that report and, despite having said
he did not have time to get the Sigma from the upstairs
bedroom, stated that “it was the Sigma that he had.” When
Officer asked Calvert for permission to search the closed garage
to verify his statement that he did not place a gun there, Calvert
eventually consented to a search and admitted that there was “a
Glock in the . . . garage with a laser sight on it.” Another officer
searched the garage and secured the Glock. Officer did not
observe any other laser pointers on the property.
¶7 Calvert’s former neighbor (Former Neighbor) also
testified about the Holladay incident, which had been the subject
of the State’s motion in limine. She testified that in 2008, she and
Calvert lived in the same duplex in Holladay, Utah. On
Halloween, she had had an altercation with Calvert. She was at
home when a friend reported seeing someone outside taking
pictures and hiding behind Former Neighbor’s car. According to
Former Neighbor, when she walked outside to investigate,
Calvert grabbed and pushed her. She fell, and when she
attempted to stand up, he pushed her down again, calling her
names and swearing at her. He also threatened to “kill [her] or
something,” and then sped away in his truck. On cross-
examination, Former Neighbor explained that, after the
altercation, she and Calvert each brought charges against the
other and that all charges were ultimately dropped.
¶8 In his defense, Calvert elicited testimony from his
neighbor, B.M., who lived across the street. B.M. testified that
Calvert called him on the night of the July 2012 altercation and
told him, “[Y]ou might need to come out here, there might be a
situation.” According to B.M., he went outside and saw Calvert
talking to a man on the sidewalk near Calvert’s driveway. B.M.
heard the man near the driveway say to Calvert, “Why don’t you
come over here, homes.” B.M. observed a “red light” that
“looked like a laser,” and although he “couldn’t tell” if there was
20150213-CA 4 2017 UT App 212State v. Calvert
a gun, he could see what looked like a “red dot” from a laser
“dancing around . . . on the ground.” B.M. called the police.
¶9 Calvert also testified in his defense. He stated that when
his dogs barked and woke him up that evening, he observed “a
bunch of children just causing all sorts of ruckus in [his] front
yard.” He claimed that one child was hanging on his tree and
causing it to scratch his vehicle. Calvert told the children to “get
out of [his] tree,” and they “started yelling” at him. Calvert and
one minor exchanged profanities.
¶10 According to Calvert, after the group went on its way, he
“grabbed a flashlight,” checked his property, and discovered a
broken sprinkler. He fixed the sprinkler and then brought food
out on the porch. As Calvert was eating, he “heard a scuffle
behind [him], turned around,” and saw someone “trying to
reach through [the] railing [to] grab [him].” Calvert “jumped
up,” opened his front door, and the alarms for his house and
garage went off.
¶11 Believing that someone had triggered the garage alarm by
entering the garage, Calvert called B.M. for help and retrieved a
gun from his upstairs bedroom. When he opened the garage
door to investigate, he saw a man standing inside. Calvert
pointed the gun, with the laser on, at the man’s head and
instructed him to get off his property. According to Calvert, the
man put his hands up and backed out of the garage. Once the
man was halfway down the driveway, Calvert secured his gun
in his paddle holster. From the threshold of his garage, Calvert
saw another man in the darkness to his left side and a third man
standing to his right side under his tree. Calvert could also see
B.M. across the street using his phone. B.M. then talked with the
strangers, and although B.M. and Calvert told the men to leave
Calvert’s property, the man in the driveway would not leave.
When the police arrived, Calvert removed his gun from the
paddle holster and set them both on the four-wheeler in his
garage.
20150213-CA 5 2017 UT App 212State v. Calvert
¶12 After the defense rested, the State recalled Officer, who
then testified that, during their interactions, Calvert did not
mention someone grabbing him through the railing on his porch
or that someone had been in his garage. Officer also testified that
the only holster he saw on Calvert’s premises was the holster in
Calvert’s bedroom that held the Sigma.
¶13 Before submitting the case to the jury, the court instructed
that if the jury considered Former Neighbor’s testimony, it could
do so “for the limited purposes of: considering defendant’s
fabrication and self-defense claim in the current case.” The court
further cautioned that the evidence regarding the Holladay
incident was “[neither] admitted to prove a character trait of the
defendant nor to show that the defendant has a propensity to act
in a certain way.” The court reminded the jury that Calvert was
on trial for only the charged crimes in the present case and
warned that the jury could not convict Calvert based on the
belief that Calvert might have committed another act at “some
other time.”
¶14 The court also instructed that to find Calvert guilty of
aggravated assault, the jury was required to find beyond a
reasonable doubt the following elements: “1. That . . . Calvert
committed an act of assault upon [Uncle]; and 2. That such
attempt or act was committed intentionally or knowingly; and 3.
That [Calvert] used a dangerous weapon.” For the jury to find
Calvert guilty of threatening with or using a dangerous weapon
in a fight or quarrel, the jury had to find beyond a reasonable
doubt these elements: “1. That . . . Calvert was in the presence of
two or more people; and 2. Drew or exhibited any dangerous
weapon, to wit: a handgun; and 3. (a) Did so in an angry or
threatening manner, or (b) unlawfully used the same in any fight
or quarrel.” Additionally, the court provided instructions
regarding self-defense and defense of habitation.
¶15 As the trial court and counsel collected the exhibits to
send back with the jury for deliberations, the court noted that
20150213-CA 6 2017 UT App 212State v. Calvert
State’s Exhibit 2 was a CD, which contained the recording of
A.H.’s 911 call. The prosecutor volunteered that he had “a laptop
. . . if [the jurors] need it.” The court responded, “Very good.
We’ll let them listen to that . . . .” Defense counsel did not object.
¶16 The jury found Calvert guilty of both aggravated assault
and threatening with a dangerous weapon. Calvert subsequently
filed a motion to arrest judgment, in which he asserted that “the
prosecutor’s computer laptop was taken back to the jury room
during deliberations, and remained in the jury room throughout
the jury’s deliberations,” and that good cause therefore existed to
arrest judgment. He asserted that the verdict was “incurabl[y]
taint[ed]” because “[t]here is no way to ever know for certain
whether the juror[s] used the computer, accessed government
files on the computer, learned of other evidence, or
communicated with outside parties.” In opposition, the State
asserted that the laptop “contain[ed] no information related to
the case” and that, because it “was a tool to review admitted
evidence,” it did not taint the verdict. The trial court judge
agreed with the State, explaining, “[T]he laptop was controlled,
it was only for the playing of the 9-1-1 call and I don’t see that it
caused any taint at all.” Calvert appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Calvert advances three main contentions on appeal. First,
Calvert contends that his trial counsel rendered constitutionally
ineffective assistance by failing to raise arguments arising out of
double jeopardy concerns. “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.” Layton City v. Carr, 2014 UT App
227, ¶ 6, 336 P.3d 587 (alteration in original) (citation and
internal quotation marks omitted).
20150213-CA 7 2017 UT App 212State v. Calvert
¶18 Second, Calvert contends that the trial court erred in
granting the State’s motion to admit other bad acts evidence
under rule 404(b) of the Utah Rules of Evidence. We will reverse
a trial court’s decision to admit evidence of other bad acts under
rule 404(b) only if the trial court exceeded its discretion and the
error was harmful. State v. High, 2012 UT App 180, ¶ 14, 282 P.3d
1046.
¶19 Third, Calvert contends that his trial counsel provided
constitutionally ineffective assistance in failing to object when
the prosecutor proposed sending his laptop into the jury
deliberation room, and that such failure constitutes structural
error for which prejudice is presumed. As set forth above, we
consider Calvert’s ineffective assistance of counsel claim as a
matter of law. See Carr, 2014 UT App 227, ¶ 6.
ANALYSIS
I. Double Jeopardy Arguments
¶20 Calvert contends that his trial counsel provided
constitutionally ineffective assistance when he failed to raise
arguments related to double jeopardy. In particular, he asserts
that his trial counsel performed deficiently by (A) failing to
move the trial court to merge the threatening conviction into the
aggravated assault conviction, (B) failing to move to dismiss one
of the two charges on the ground that it could lead to “multiple
verdicts for the same conduct,” and (C) failing to request that the
threatening with a dangerous weapon charge be submitted to
the jury as a lesser included offense of the aggravated assault
charge.
¶21 The Sixth Amendment guarantees defendants the right to
effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 684–86 (1984). To prevail on a claim of ineffective assistance
of counsel, a defendant must show (1) “that counsel’s
20150213-CA 8 2017 UT App 212State v. Calvert
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Id. at 687.
¶22 With regard to the first prong, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689. “This
presumption accounts for the widely varying circumstances
faced by defense counsel [and] the range of legitimate decisions
regarding how best to represent a criminal defendant.” Met v.
State, 2016 UT 51, ¶ 113, 388 P.3d 447 (alteration in original)
(citation and internal quotation marks omitted). A defendant
must therefore establish “that the challenged actions cannot be
considered sound strategy under the circumstances.” Menzies v.
State, 2014 UT 40, ¶ 76, 344 P.3d 581 (citation and internal
quotation marks omitted). Furthermore, “because the decision
not to pursue a futile motion is almost always a sound trial
strategy,” counsel’s failure to make a motion that would be futile
if raised does not constitute deficient performance. State v. Bond,
2015 UT 88, ¶ 63, 361 P.3d 104 (citation and internal quotation
marks omitted).
A. Trial Counsel’s Failure to Move for Merger
¶23 First, Calvert contends that he received ineffective
assistance of counsel when his trial counsel failed to move for
merger of his two convictions. According to Calvert, because the
elements of aggravated assault and threatening with a
dangerous weapon “sufficiently overlap,” and because the
crimes were not “sufficiently independent,” trial counsel should
have moved to consolidate the convictions under the merger
doctrine. The State responds that Calvert’s counsel did not
perform deficiently, arguing that any motion to merge would
have been futile. In support, the State asserts that merger is
precluded because threatening with a dangerous weapon “has
an additional element that aggravated assault does not” and
because the threatening charge “was based on separate
conduct.”
20150213-CA 9 2017 UT App 212State v. Calvert
¶24 We agree with the State that, had Calvert’s counsel sought
merger, the motion would not have been successful. See id. “The
motivating principle behind the merger doctrine is to prevent
violations of constitutional double jeopardy protection.” State v.
Smith, 2005 UT 57, ¶ 7, 122 P.3d 615. Utah Code section 76-1-402
codifies the merger doctrine, stating, “A defendant may be
convicted of an offense included in the offense charged but may
not be convicted of both the offense charged and the included
offense.” Utah Code Ann. § 76-1-402(3) (LexisNexis 2012); see also
Smith, 2005 UT 57, ¶ 8 (stating that “the test for determining
whether a conviction for two separate offenses violates the
Double Jeopardy Clause ‘is essentially the same as that in Utah
Code [section] 76-1-402(3)’” (quoting State v. Wood, 868 P.2d 70,
90 (Utah 1993))). The statute sets out the circumstances in which
an offense will be deemed a lesser included offense for purposes
of merger, including when the lesser offense “is established by
proof of the same or less than all the facts required to establish
the commission of the offense charged.” Utah Code Ann. § 76-1-
402(3)(a).
¶25 The Utah Supreme Court has identified a “two-part test
for determining whether a conviction for a second offense
arising out of the same set of facts violates” Utah Code section
76-1-402(3)(a). Smith, 2005 UT 57, ¶ 9. The test requires “a
comparison of ‘the statutory elements of the two crimes [first] as
a theoretical matter and [second], where necessary, by reference
to the facts proved at trial.’” Id. (alterations in original) (quoting
State v. Hill, 674 P.2d 96, 97 (Utah 1983)). Under the first step,
“we compare the statutory elements to determine if the lesser
offense is proven by the same or less than all the elements
required to prove the greater offense.” State v. Berriel, 2011 UT
App 317, ¶ 8, 262 P.3d 1212, aff’d on other grounds, 2013 UT 19,
299 P.3d 1133. If “the greater [offense] cannot be committed
without necessarily having committed the lesser, then the lesser
offense merges into the greater crime.” State v. Chukes, 2003 UT
20150213-CA 10 2017 UT App 212State v. Calvert
App 155, ¶ 10, 71 P.3d 624 (citation and internal quotation marks
omitted).
¶26 “In most cases, comparison of the statutory elements will
suffice to determine whether a greater–lesser relationship
exists.” Id. (citation and internal quotation marks omitted). For
instance, when a lesser offense always “requires ‘proof beyond
that needed for proof of the bare elements of [the greater
offense],’” the lesser offense is not a lesser included offense of the
greater offense. See id. ¶ 12 (quoting State v. Brooks, 908 P.2d 856,
862 (Utah 1995)). “Only if [the first analytic step] does not
resolve the [issue] need we proceed to the second analytic step.”
Id. ¶ 10 (alterations in original) (citation and internal quotation
marks omitted). “[W]here the two crimes have multiple
variations, we proceed to the second step and consider the
evidence to determine whether the greater–lesser relationship
exists between the specific variations of the crimes actually
proved at trial.” Id. (citation and internal quotation marks
omitted).2
2. Calvert suggests that his counsel was ineffective for not
seeking to move for merger of his two convictions under the so-
called Finlayson merger doctrine, whereby the Utah Supreme
Court held that merger may be required for some offenses that
are so related even though the offenses do not merge under
section 76-1-402. See State v. Finlayson, 2000 UT 10, ¶ 19, 994 P.2d
1243 (allowing for kidnapping to merge with another crime
where the kidnapping is merely incidental to the other crime).
But Calvert makes no attempt to demonstrate the applicability of
the doctrine here. Calvert merely concludes that the threatening
with a dangerous weapon charge is not sufficiently independent
of the aggravated assault to justify a separate conviction.
Because Calvert has failed to demonstrate that the Finlayson test
applies here, or how it should be applied, we do not consider
this argument further. See State v. Thomas, 961 P.2d 299, 305
(continued…)
20150213-CA 11 2017 UT App 212State v. Calvert
¶27 We begin application of the two-step Hill test by
identifying the elements of the relevant crimes. The crime of
third degree aggravated assault is perpetrated when a person
intentionally, knowingly, or recklessly commits assault and uses
“a dangerous weapon” or “other means or force likely to
produce death or serious bodily injury.”3 Utah Code Ann. § 76-5-
103(1) (LexisNexis 2012); see also id. § 76-2-102 (stating that
“when the definition of the offense does not specify a culpable
mental state and the offense does not involve strict liability,
intent, knowledge, or recklessness shall suffice to establish
criminal responsibility”). An assault is
(…continued)
(Utah 1998) (explaining that an adequately briefed argument
must include development of legal authority and reasoned
analysis based on that authority).
Similarly, Calvert cites the framework applicable to
requests for lesser included offense instructions set forth in State
v. Baker, 671 P.2d 152 (Utah 1983). That framework, however,
applies to requests for instructions before a case is submitted to
the jury. Id. at 156–59; accord State v. Powell, 2007 UT 9, ¶ 24, 154
P.3d 788; Duran v. Cook, 788 P.2d 1038, 1041 n.2 (Utah Ct. App.
1990). And Calvert has provided no authority applying the Baker
framework here, where the question is whether the charges
against the defendant should merge following conviction. Thus,
we decline to apply it.
3. We note that the jury instructions in this case did not include
the variation of aggravated assault that involves the use of
“other means or force likely to produce death or serious bodily
injury.” See Utah Code Ann. § 76-5-103(1) (LexisNexis 2012). The
instructions also did not include the reckless mental state but
required that Calvert act intentionally or knowingly.
20150213-CA 12 2017 UT App 212State v. Calvert
(a) an attempt, with unlawful force or violence, to
do bodily injury to another; (b) a threat,
accompanied by a show of immediate force or
violence, to do bodily injury to another; or (c) an
act, committed with unlawful force or violence,
that causes bodily injury to another or creates a
substantial risk of bodily injury to another.
Id. § 76-5-102(1). On the other hand, the crime of threatening
with or using a dangerous weapon in a fight or quarrel is
committed when, except in self-defense, a person, “in the
presence of two or more persons, draws or exhibits a dangerous
weapon in an angry and threatening manner or unlawfully uses
a dangerous weapon in a fight or quarrel.” Id. § 76-10-506(2).4
¶28 A comparison of the elements of the threatening with a
dangerous weapon and aggravated assault statutes reveals that
the former has “a unique element that precludes it from being a
lesser included offense” of aggravated assault. See Chukes, 2003
UT App 155, ¶ 12. Specifically, threatening with a dangerous
weapon always requires proof that the conduct occurred in “the
presence of two or more persons.” Utah Code Ann. § 76-10-
506(2). Because aggravated assault does not have the same
requirement, the offense of threatening with a dangerous
weapon “requires proof beyond that needed for proof of the bare
elements of [aggravated assault].” See Chukes, 2003 UT App 155,
¶ 12 (citation and internal quotation marks omitted). In other
words, a person may commit aggravated assault without
necessarily also committing the offense of threatening with a
dangerous weapon. See id. ¶ 10. As a result, threatening with a
dangerous weapon is not a lesser included offense of aggravated
assault for purposes of merger under Utah Code section 76-1-
4. The relevant statutory provisions have been amended since
the time of the offenses. We cite the version of the Utah Code in
effect in 2012.
20150213-CA 13 2017 UT App 212State v. Calvert
402(3)(a). See Chukes, 2003 UT App 155, ¶ 12 (rejecting the
argument that identity fraud is a lesser included offense of theft
by deception because identity fraud “requires proof that the
defendant obtained personal identifying information without
authorization,” while theft by deception “does not require such
proof”); see also State v. Jackson, 2011 UT App 318, ¶ 14, 263 P.3d
540 (“Unlawful Sexual Conduct requires the State to prove that
the minor is sixteen or seventeen years old and that the
defendant is at least ten years older than the minor. Therefore,
the establishment of all of the elements of rape will not also
prove Unlawful Sexual Conduct, and it is not a lesser included
offense of rape.”).
¶29 In support of his position, however, Calvert relies on State
v. Oldroyd, 685 P.2d 551 (Utah 1984). Specifically, Calvert quotes
the Utah Supreme Court’s statements that the statutes defining
aggravated assault and threatening with a dangerous weapon
“have elements in common” because “[b]oth require a form of
threat and both require the use of a weapon.” See id. at 554. We
conclude that Oldroyd is not controlling here.
¶30 In Oldroyd, the issue was whether the trial court erred in
refusing the defendant’s request “to instruct the jury regarding
the offense of threatening with a dangerous weapon.” Id. at 552.
To evaluate that issue, the supreme court applied the framework
from State v. Baker, 671 P.2d 152 (Utah 1983), by considering,
first, whether there was “some overlapping of the statutory
elements of the offenses,” and, second, whether the evidence in
that particular case provided “a rational basis for a verdict
acquitting the defendant of the offense charged and convicting
him of the included offense.” Oldroyd, 685 P.2d at 553–54
(citation, emphasis, and internal quotation marks omitted); see
also supra note 2. Under this framework, the court concluded that
the trial court should have given a jury instruction on the lesser
included offense of threatening with a dangerous weapon.
Oldroyd, 685 P.2d at 554–56; see also State v. Campos, 2013 UT App
213, ¶ 78, 309 P.3d 1160 (reviewing the denial of a request for a
20150213-CA 14 2017 UT App 212State v. Calvert
lesser included offense instruction and stating that Oldroyd held
that “threatening with a dangerous weapon qualifies as a lesser
included offense of aggravated assault” (citing Oldroyd, 685 P.2d
at 554)). Significantly, however, Oldroyd did not address whether
convictions for aggravated assault and threatening with a
dangerous weapon would merge.
¶31 We conclude that Calvert has not demonstrated that for
purposes of merger, threatening with a dangerous weapon is a
lesser included offense of aggravated assault. As a result, he has
not shown that a motion to merge his convictions would have
been successful and that therefore his trial counsel rendered
ineffective assistance when he failed to pursue such a motion.
See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (explaining that
counsel’s failure to raise a futile motion does not amount to
ineffective assistance). Calvert’s claim of ineffective assistance on
this ground accordingly fails. See id. ¶ 61.
B. Trial Counsel’s Failure to Move to Dismiss
¶32 Second, Calvert briefly contends that his trial counsel
rendered constitutionally deficient assistance when he failed to
seek dismissal of one of the charges on the basis of multiplicity.
The State responds that the problem of multiplicity arises only
“from charging multiple counts of the same offense,” whereas
this case involves “two charges under two different code
sections.” The State also argues that trial counsel “could have
reasonably decided to forgo a multiplicity challenge” because
the evidence supported multiple counts of both threatening with
a dangerous weapon and aggravated assault, even though “the
State only charged one of each.”
¶33 We agree with the State that, had Calvert’s counsel
moved to dismiss on multiplicity grounds, the motion would not
have been successful. See id. ¶ 63. The rule against multiplicity
“prohibits multiple punishments for the same offense.” State v.
Rasabout, 2015 UT 72, ¶ 26, 356 P.3d 1258 (citation and internal
20150213-CA 15 2017 UT App 212State v. Calvert
quotation marks omitted). This court has recognized that the
“problem of multiplicity arises when ‘a single offense [is
charged] in several counts.’” State v. Rasabout, 2013 UT App 71,
¶ 10, 299 P.3d 625 (alteration in original) (quoting 1A Charles
Alan Wright et al., Federal Practice & Procedure: Criminal § 142, at
10 (4th ed. 2008)), aff’d, 2015 UT 72, 356 P.3d 1258; see also
Multiplicity, Black’s Law Dictionary 1174 (10th ed. 2014)
(defining multiplicity as the “improper charging of the same
offense in more than one count of a single indictment or
information”). This may occur in two situations: (1) “where the
indictment charges multiple violations of the same statute but
the[] counts are predicated on the same criminal conduct,” or (2)
“when [a] defendant is charged in the indictment with violating
two separate crimes, one of which is a lesser included offense of
the other.” 1A Charles Alan Wright et al., Federal Practice
& Procedure: Criminal § 142, at 10 (4th ed. 2008).
¶34 Neither situation is present here. First, Calvert was not
charged with “multiple violations of the same statute.” See id.
Instead, he was charged with one count of aggravated assault
and with one count of threatening with or using a dangerous
weapon in a fight or quarrel. These two separate crimes are not
based upon the same statute.5 Second, threatening with a
dangerous weapon is not a lesser included offense of aggravated
assault. See supra ¶ 28. Thus, multiplicity was not implicated in
this case. Because a motion to dismiss on the basis of multiplicity
would have been denied, we conclude that Calvert’s trial
counsel did not perform deficiently by failing to pursue that line
5. Aggravated assault is an offense against the person, Utah
Code Ann. § 76-5-103(1) (LexisNexis 2012), whereas threatening
with a dangerous weapon is a weapons offense, id. § 76-10-
506(2).
20150213-CA 16 2017 UT App 212State v. Calvert
of argument and that Calvert cannot show ineffective assistance
of counsel.6 See Bond, 2015 UT 88, ¶¶ 61, 63.
C. Trial Counsel’s Failure to Seek a Lesser Included Offense
Instruction
¶35 Third, Calvert contends that he received ineffective
assistance when his trial counsel failed to request that the
threatening with a dangerous weapon charge be submitted to
the jury as a lesser included offense of the aggravated assault
charge. But at oral argument before this court, Calvert conceded
that trial counsel’s decision not to request such an instruction
was “a matter of strategy.” Thus, having conceded that the
challenged action might be considered sound trial strategy,
Calvert’s claim of ineffective assistance necessarily fails. See
Menzies v. State, 2014 UT 40, ¶ 76, 344 P.3d 581.
6. Calvert also asserts, in cursory fashion, that because the
altercation “occurred within a brief period of time and all within
the same space,” his trial counsel should have sought dismissal
of a charge on the ground that the offenses were part of a “single
criminal episode.” “‘An appellant that fails to devote adequate
attention to an issue is almost certainly going to fail to meet its
burden of persuasion. A party must cite legal authority on which
its argument is based and then provide reasoned analysis of how
that authority should apply in the particular case . . . .’” State v.
MacNeill, 2017 UT App 48, ¶ 83, 397 P.3d 626 (quoting Bank of
Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196). Calvert’s single
criminal episode argument quotes statutory language, but he
does not offer any reasoned and developed analysis of that
authority and does not demonstrate how that authority applies
here. Because his overall analysis of this issue “is so lacking as to
shift the burden of research and argument to the reviewing
court,” see id. (citation and internal quotation marks omitted),
Calvert has not carried his burden of persuasion on this issue.
20150213-CA 17 2017 UT App 212State v. Calvert
II. Rule 404(b) Evidence
¶36 Next, Calvert contends that the trial court erred in
granting the State’s motion to admit other bad acts evidence
under rule 404(b) of the Utah Rules of Evidence. In particular, he
asserts that the evidence of the Holladay incident was not
admissible for any proper purpose and that instead its “sole
purpose [was] to demonstrate [his] bad character.” We need not
resolve this question, however, because we agree with the State
that any error in admitting the evidence was harmless under the
facts of this case.
¶37 Rule 404(b) provides that “[e]vidence 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.” Utah R. Evid. 404(b)(1).
Notwithstanding this general prohibition, such “evidence may
be admissible for another purpose.” Id. R. 404(b)(2). Examples of
permissible purposes include “proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Id.
¶38 But “even if the admission of rule 404(b) evidence by the
trial court was in error, reversal on appeal is not appropriate
unless [Calvert] demonstrates that the error materially affected
the fairness or outcome of the trial.” See State v. Otterson, 2010 UT
App 388, ¶ 11, 246 P.3d 168. Indeed, we “will not overturn a jury
verdict for the admission of improper evidence if the admission
of the evidence did not reasonably affect the likelihood of a
different verdict.” State v. Ferguson, 2011 UT App 77, ¶ 19, 250
P.3d 89 (citation and internal quotation marks omitted).
“Harmless errors are those that are sufficiently inconsequential
so no reasonable likelihood exists that the error affected the
outcome of the proceedings.” Id. (citation and internal quotation
marks omitted).
20150213-CA 18 2017 UT App 212State v. Calvert
¶39 The evidence regarding the Holladay incident was
introduced entirely through Former Neighbor who testified that
she was attacked by Calvert about four years before the July
2012 altercation. Former Neighbor explained that she confronted
Calvert, who lived in the other apartment of her duplex, after
seeing him taking pictures while hiding behind her car. Calvert
pushed Former Neighbor to the ground while swearing at her
and threatening to “kill [her].” On cross-examination, Former
Neighbor testified that she and Calvert both brought, and later
dropped, charges against each other after the Holladay incident.
She also testified that Calvert had threatened her “quite a few
times” but she did not call the police.
¶40 Assuming, without deciding, that the evidence of the
Holladay incident was improperly admitted, Calvert has not
demonstrated that its admission was harmful under the
circumstances of this case. Despite the fact that the Holladay
incident had the potential for the jurors to draw impermissible
inferences about Calvert’s character, it is not reasonably likely
that the exclusion of the evidence would have led to a different
result. We reach this conclusion because the evidence of
Calvert’s guilt was compelling. See id. ¶¶ 19–20 (considering the
strength of the State’s evidence in concluding that the improper
admission of rule 404(b) evidence did not prejudice the
defendant).
¶41 Several witnesses testified that Calvert began arguing
with the minors when they were passing by his property. They
recounted how Calvert yelled and swore at the minors to leave
and not to touch his property. Five witnesses, including minors
and adults, testified that when Uncle—the victim of the
aggravated assault—went to confront Calvert, Calvert pointed a
gun with a laser attachment at him. Many of the State’s
witnesses testified that Calvert had a gun in his hand during his
arguments with the neighbors. One witness reported seeing
Calvert put the gun away in the garage before the police arrived,
and Officer testified that a gun with a laser sight was found in
20150213-CA 19 2017 UT App 212State v. Calvert
the garage that matched the witnesses’ descriptions. In addition,
the jury heard the recording of a 911 call and had before it
written witness statements that were largely consistent with the
witnesses’ testimonies at trial. Although there were some
discrepancies in the testimony from the numerous eyewitnesses,
the essential components of the story were consistent.
¶42 In contrast, Calvert testified to a version of events that
was uncorroborated. He did not deny that he had a gun and
pointed it at someone that evening, but he argued that he acted
in self-defense and in defense of habitation. Calvert admitted to
arguing with the minors and testified that they vandalized his
property by breaking a sprinkler and scratching his car with a
tree branch. According to Calvert, the group then left, he fixed
the sprinkler, and he sat outside on his porch to have dinner
when he was startled by a stranger “trying to reach through [the]
railing [to] grab [him].” After the alarms to his house and garage
went off, Calvert grabbed a gun from his bedroom, went to
investigate, and found a man standing in his garage. Calvert
pointed the gun at the man’s head, telling him to get off the
property. The man put his hands up and backed down the
driveway. When the police arrived, Calvert set his gun and
paddle holster down in his garage.
¶43 But Calvert’s story was not supported by any other
evidence. For example, B.M., the neighbor across the street who
testified for the defense, saw a “red dot” “dancing around” on
the ground even before he came out of his house, and saw that
Calvert was arguing with a man on the sidewalk near Calvert’s
driveway. B.M.’s testimony thus did not lend support to
Calvert’s account of events. Moreover, Officer testified that
during the night of the altercation, Calvert did not mention
someone grabbing him through the railing on his porch or
someone being in his garage.
¶44 And even before Calvert testified, the State had cast doubt
on Calvert’s credibility through Officer’s testimony. For instance,
20150213-CA 20 2017 UT App 212State v. Calvert
according to Officer, Calvert initially said that he had a laser
pointer, not a gun, when he was sitting on the porch. Calvert
then showed Officer his Smith & Wesson Sigma and explained
that he had not removed it from the bedroom. But when Officer
informed Calvert that the neighbors saw him put a gun in the
garage, Calvert admitted that “it was the Sigma that he had.”
Thus, Officer’s testimony showed that Calvert’s statements had
shifted. In addition, according to Officer, the Smith & Wesson
Sigma did not have a laser sight and thus did not match the
witnesses’ descriptions of Calvert’s gun. The Glock later found
in the garage, however, had a laser sight on it. In light of the fact
that the numerous eyewitnesses’ testimonies were largely
consistent and the fact that Calvert’s testimony was
uncorroborated and his credibility was in question, the State’s
case against Calvert was strong even without reference to the
Holladay incident. See State v. Ferguson, 2011 UT App 77, ¶¶ 19–
20, 250 P.3d 89.
¶45 In addition to the strength of the evidence of Calvert’s
guilt, the prosecutor did not mention the Holladay incident in
opening or closing statements or any other time, and the
likelihood of the jury drawing impermissible inferences from
Former Neighbor’s testimony was mitigated by a limiting
instruction. Specifically, the court instructed the jury that it
could not convict Calvert simply because it believed “that he
may have committed some other act at some other time,” and
explained that the evidence regarding the Holladay incident was
“not admitted to prove a character trait of the defendant nor to
show that the defendant has a propensity to act in a certain
way.” This instruction tempered any harmful effect the
admission of Former Neighbor’s testimony may have had. See
State v. Marchet, 2012 UT App 197, ¶ 14, 284 P.3d 668.
¶46 Under the facts of this case, we conclude that any
assumed error in the admission of the Holladay incident did not
prejudice Calvert. Given the strength of the State’s evidence and
given the weaknesses in Calvert’s account, Calvert has not
20150213-CA 21 2017 UT App 212State v. Calvert
shown that had the testimony of the Holladay incident been
excluded, it is reasonably likely that the jury would have found
him not guilty. Accordingly, we reject Calvert’s claims in this
regard.
III. The Laptop
¶47 Calvert argues that his trial counsel provided
constitutionally ineffective assistance in failing to object when
the prosecutor proposed sending the State’s laptop into the jury
deliberation room. Calvert contends that his counsel’s failure to
object constitutes structural error “for which prejudice must be
presumed.” In the alternative, Calvert requests that we remand
this case to the trial court under rule 23B of the Utah Rules of
Appellate Procedure to create a record sufficient to support this
claim of ineffective assistance.
A. Structural Error
¶48 Calvert argues that his trial counsel provided
constitutionally ineffective assistance in failing to object when
the prosecutor proposed sending the State’s laptop into the jury
deliberation room and in failing to request an evidentiary
hearing during which the jurors could be questioned as to the
use of the laptop.
¶49 As we have previously stated, to demonstrate ineffective
assistance of counsel, Calvert must show (1) that his counsel’s
performance was deficient, and (2) that the deficient
performance prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). Under the second prong of this test, “the
defendant bears the burden of proving that counsel’s errors
actually had an adverse effect on the defense.” State v. Munguia,
2011 UT 5, ¶ 30, 253 P.3d 1082 (citation and internal quotation
marks omitted). The proof that trial counsel’s acts or omissions
prejudiced him “must be a demonstrable reality and not a
20150213-CA 22 2017 UT App 212State v. Calvert
speculative matter.” State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d
1031 (citation and internal quotation marks omitted).
¶50 Calvert filed a post-trial motion to arrest judgment,
arguing that the verdict was “incurabl[y] taint[ed]” because
“[t]here is no way to ever know for certain whether the juror[s]
used the computer, accessed government files on the computer,
learned of other evidence, or communicated with outside
parties.” The trial court denied the motion, relying on the State’s
representation that the laptop contained no case-related
information and was only a tool to review admitted evidence.
The court reasoned that because the laptop was “controlled” and
“was only for the playing of the 9-1-1 call,” the verdict was not
tainted.
¶51 On appeal, Calvert asserts that this court should presume
prejudice because “allow[ing] the [S]tate’s laptop computer to be
utilized by the jury during deliberations” deprived him of “the
right to an impartial jury” and “the right to counsel,” and
therefore constituted a structural defect.7
¶52 “Structural errors are flaws in the framework within
which the trial proceeds, rather than simply an error in the trial
process itself.” State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543(citation and internal quotation marks omitted). Because such
errors “affect the very framework of the trial,” “a structural error
analysis presumes prejudice.” Id. The United States Supreme
Court has “found structural errors only in a very limited class of
cases,” Johnson v. United States, 520 U.S. 461, 468 (1997), including
when “‘assistance of counsel has been denied entirely or during a
7. Calvert does not directly appeal the trial court’s denial of the
motion to arrest judgment, arguing instead that the court’s
failure to grant the motion “simply reinforced the structural
error” that occurred when his trial counsel failed to object to the
prosecutor’s offer to allow the jury to use the laptop.
20150213-CA 23 2017 UT App 212State v. Calvert
critical stage of the proceeding,’” State v. Maestas, 2012 UT 46,
¶ 57, 299 P.3d 892 (quoting Mickens v. Taylor, 535 U.S. 162, 166
(2002)). The denial of the right to a jury trial is also structural
error. See Sullivan v. Louisiana, 508 U.S. 275, 281–82 (1993).
¶53 Calvert was denied neither counsel nor a jury trial. He
received both. And Calvert does not develop a supported and
reasoned analysis that would establish that he was deprived of
the rights to counsel and a jury trial merely because the jury had
access to a laptop supplied by the prosecution or because his
counsel did not object. As this court “will not assume a party’s
burden of argument and research,” Broderick v. Apartment Mgmt.
Consultants, LLC, 2012 UT 17, ¶ 9, 279 P.3d 391 (citation and
internal quotation marks omitted), Calvert thus has not
demonstrated that the jury’s access to the prosecutor’s laptop in
this case deprived him of the right to counsel or the right to an
impartial jury. Accordingly, Calvert’s assertion of structural
error and presumed prejudice fails.8
8. We further note that even if Calvert had shown that the jury’s
access to the laptop could be labeled a “structural error,” the
application of the label would not have automatically relieved
him of his burden to demonstrate prejudice. The United States
Supreme Court recently held that where an unpreserved claim of
structural error is challenged through the framework of
ineffective assistance of counsel, prejudice is not presumed. See
Weaver v. Massachusetts, 137 S. Ct. 1899, 1908, 1910–11 (2017).
Instead, the defendant must demonstrate “either a reasonable
probability of a different outcome in his or her case” or “show
that the particular . . . violation was so serious as to render his or
her trial fundamentally unfair.” Id. at 1911; see also State v. Garcia,
2017 UT 53, ¶ 36.
20150213-CA 24 2017 UT App 212State v. Calvert
B. Rule 23B Motion
¶54 In the alternative, Calvert requests that we remand this
case to the trial court under rule 23B of the Utah Rules of
Appellate Procedure to allow him to create a record sufficient to
support this claim of ineffective assistance of counsel.
Specifically, Calvert asserts that we should remand the case “for
the trial court to determine whether extraneous prejudicial
information was improperly brought to the jury’s attention or an
outside influence was improperly brought to bear on any juror
as a consequence of the ineffective assistance of counsel.” If
granted a hearing, Calvert states that “[e]ach of the jurors can
thereby be called as witnesses . . . and a final determination
made as to whether prejudicial information came forward as a
result of the jury’s use of the State’s laptop computer.”
¶55 Rule 23B allows a party to an appeal in a criminal case to
“move the court to remand the case 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.” Utah R. App. P.
23B(a). The rule requires the motion to “include or be
accompanied by affidavits alleging facts . . . that show the
claimed deficient performance of the attorney.” Id. R. 23B(b).
“The affidavits shall also allege facts that show the claimed
prejudice suffered by the appellant as a result of the claimed
deficient performance.” Id.
¶56 “A remand under rule 23B will only be granted ‘upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.’” State v. Lee, 2014 UT App 4, ¶ 5,
318 P.3d 1164 (quoting Utah R. App. P. 23B(a)). Thus, rule 23B
“requires a party to perform the factual investigation before
asking this court for a remand.” Mackin v. State, 2016 UT 47, ¶ 41,
387 P.3d 986. “The mere hope that an individual may be able to
provide information if subpoenaed to testify is not sufficient. An
20150213-CA 25 2017 UT App 212State v. Calvert
affiant must submit specific facts and details that relate to the
specific relevant occurrence.” State v. Griffin, 2015 UT 18, ¶ 19.
¶57 In support of his motion, Calvert supplies unsworn
statements from three individuals who were present in the
courtroom gallery during trial. The only fact not fully appearing
in the record provided in these statements is that after the
verdict was read, the prosecutor asked the bailiff to return his
laptop and that the bailiff appeared to retrieve it from the jury
deliberation room. Calvert also attaches an email from the
prosecutor, in which the prosecutor stated that the “office
laptop” left with the jury “[did] not have any of [his] files or
email on it.” The prosecutor also indicated that he did not know
“whether the jury used [the laptop] to listen to the cd or [if] the
bailiff had just taken it in back in case they needed it.”
¶58 Calvert has not adequately supported his rule 23B
motion. Specifically, he has not alleged facts that show his
claimed prejudice resulting from his trial counsel’s failure to
prevent the jury from having access to the laptop furnished by
the prosecutor. The statements from the courtroom spectators
and the prosecutor do not demonstrate that the laptop had any
“extraneous prejudicial information” on it or that the jury used it
or was exposed to an improper outside influence. Calvert could
have obtained affidavits from jurors to support his motion. See
Utah R. Evid. 606(b)(2) (providing that a juror may testify about
whether “extraneous prejudicial information was improperly
brought to the jury’s attention” or “an outside influence was
improperly brought to bear on any juror”). While Calvert asserts
that he will call the jurors to testify upon remand, he has not
provided affidavits to establish the “specific facts and details”
related to the jury’s alleged use of the laptop and exposure to
improper influences. See Griffin, 2015 UT 18, ¶ 19. Instead,
Calvert only speculates that the jury’s access to the state-owned
laptop exposed it to extraneous prejudicial information. See id.(“[S]peculative allegations are those that have little basis in
articulable facts but instead rest on generalized assertions.”).
20150213-CA 26 2017 UT App 212State v. Calvert
Because Calvert has failed to provide nonspeculative allegations
that could support a determination that he would have obtained
a more favorable outcome at trial but for counsel’s performance,
we deny his rule 23B motion for remand. See Lee, 2014 UT App 4,
¶ 12.
CONCLUSION
¶59 Calvert has not shown that his trial counsel rendered
constitutionally ineffective assistance in failing to raise
arguments regarding merger, multiplicity, and lesser included
offenses. In addition, we conclude that any assumed error in the
admission of rule 404(b) evidence regarding Calvert’s
confrontation with Former Neighbor does not undermine our
confidence in the verdict. As to Calvert’s claim that his counsel
was ineffective when he failed to object to the prosecutor
furnishing the State’s laptop to the jury to view an admitted
exhibit, Calvert has not shown that structural error occurred for
which prejudice must be presumed, and we deny his related rule
23B motion. Accordingly, we affirm Calvert’s convictions.
20150213-CA 27 2017 UT App 212