State v. Parker , 295 P.3d 712 ( 2013 )

2013 UT App 21_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DANNON PARKER,
Defendant and Appellant.
Memorandum Decision
No. 20110014‐CA
Filed January 25, 2013
Eighth District, Vernal Department
The Honorable Edwin T. Peterson
No. 091800200
Cindy Barton, Attorney for Appellant
John E. Swallow and Brett J. DelPorto, Attorneys for Appellee
JUDGE WILLIAM A. THORNE JR. authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS
and MICHELE M. CHRISTIANSEN concurred.
THORNE, Judge:
¶1 Defendant Dannon Parker appeals from his conviction on
one count of rape, a first degree felony. See generally Utah Code
Ann. § 76‐5‐402 (LexisNexis 2012). We affirm.
¶2 Parker argues on appeal that his trial counsel’s entire course
of action, before and during trial, indicates a complete lack of
preparation that prejudiced his defense and denied him his right
to effective assistance of counsel. Parker illustrates his argument
State v. Parker
with a dizzying array of alleged shortcomings by his trial counsel.
However, many of these amount to “hindsight” guesses about
potentially better ways to have approached the case that are not
grounded in the record as to either performance or prejudice.
¶3 According to Parker, his trial counsel was completely
ineffective because counsel failed to
produce evidence that may have resulted in the State
reacting very differently to the charges before trial.
He did not bring Motions early enough to have been
able to suppress medical testimony that may have
been out of custody. He did not review medical or
expert testimony to the point [that] he called [no]
counter expert testimony, and left ambiguous results
on the DNA evidence stand as clear and convincing.
The jury even with this confusion of evidence could
not find any evidence of the sodomy charge.[1]
Reasonable and adequate amount of rebuttal may
well have turned the tide on the rape charge, but was
not given because of the lack of preparation by the
defense.
Parker goes on to make the specific assertion that counsel was
ineffective because he failed to obtain and produce a tape recording
in which the victim admitted to making false rape allegations,
failed to provide testimony that would have explained that it is not
uncommon to find one cohabitant’s DNA on another cohabitant’s
person, and failed to conduct effective cross‐examination.
¶4 Parker asks us to conclude that these allegations establish
that his trial counsel was ineffective and entitle him to a new trial.
In support of this argument, Parker provides us only with two
1
Parker is apparently referring to a separate charge of
object rape, of which the jury acquitted him. See generally Utah
Code Ann. § 76‐5‐402.2 (LexisNexis 2012).
20110014‐CA 2 2013 UT App 21State v. Parker
lengthy case quotations, one from State v. Lenkart, 2011 UT 27, 262
P.3d 1, regarding counsel’s duty to conduct adequate investigation,
see id. ¶¶ 27–28, and the other from Strickland v. Washington, 466
U.S. 668 (1984), see id. at 686 (“The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.”).
¶5 The standards for establishing a successful ineffective
assistance claim are well established. To prevail on his claim of
ineffective assistance of counsel, Parker must demonstrate that
(1) his trial counsel “rendered deficient performance 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, 466 U.S. at
686–87. To show deficient performance, Parker must “overcome the
strong presumptions that counsel’s performance fell within the
wide range of reasonable professional assistance and that under the
circumstances, the challenged action might be considered sound
trial strategy.” State v. Tennyson, 850 P.2d 461, 465 (Utah Ct. App.
1993) (citation and internal quotation marks omitted). Further, he
can establish prejudice “only by showing there is a reasonable
probability that ‘but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Id. at 466 (quoting
Strickland, 466 U.S. at 694); see also Chacon, 962 P.2d at 50 (stating
that prejudice must be “a demonstrable reality and not a specula‐
tive matter” (citation and internal quotation marks omitted)).
¶6 Although Parker alleges a litany of complaints about his trial
counsel’s performance, he never establishes that any of counsel’s
various acts and omissions either fell below reasonable profes‐
sional standards or resulted in prejudice. The two claims that
Parker spends the most effort in developing—counsel’s failure to
obtain the tape recording of the victim and his failure to present
expert testimony—are entirely speculative because neither the
contents of the alleged tape nor any proposed expert testimony is
contained in the record. See State v. Bryant, 2012 UT App 264, ¶ 25,
20110014‐CA 3 2013 UT App 21State v. Parker
290 P.3d 33 (refusing to speculate about prejudice where a defen‐
dant had “not identified any record evidence indicating that he
suffers from mental illness in some relevant way that his trial
counsel failed to discover”). Further, Parker failed to request a
remand under rule 23B of the Utah Rules of Appellate Procedure
to make a record showing of the tape’s contents or any expert
testimony. See generally id. (“Bryant has neither requested a rule
23B remand nor identified specific facts pertaining to his alleged
mental illness to warrant such a remand.”). Parker’s trial counsel
also obtained an acquittal for Parker on another first degree felony
charge of object rape, a charge that presumably implicated many
of the same witness credibility, expert testimony, and other issues
that Parker argues here. Under these circumstances, we cannot
conclude that Parker has demonstrated that his trial counsel
provided him with ineffective assistance warranting a new trial.
¶7 Parker also briefly argues, with no citation to authority, that
the district court committed plain error when it failed to sua sponte
declare a mistrial or otherwise grant Parker a new trial due to his
trial counsel’s shortcomings. We agree with the State that this
argument is inadequately briefed, and we do not consider it
further. See State v. Garner, 2002 UT App 234, ¶ 8, 52 P.3d 467 (“It
is well established that Utah appellate courts will not consider
claims that are inadequately briefed.”); see also Utah R. App. P.
24(a)(9) (“The argument shall contain the contentions and reasons
of the appellant with respect to the issues presented, including the
grounds for reviewing any issue not preserved in the trial court,
with citations to the authorities, statutes, and parts of the record
relied on.”).
¶8 We conclude that Parker has not established that his trial
counsel provided him with ineffective assistance and that he has
not adequately briefed his argument that the district court commit‐
ted plain error by failing to sua sponte declare a mistrial or grant
Parker a new trial. For these reasons, we affirm Parker’s conviction.
20110014‐CA 4 2013 UT App 21