State v. Brocksmith

2018 UT App 76
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BENJAMIN BROCKSMITH ,
Appellant.
Opinion
No. 20160680-CA
Filed April 26, 2018
Second District Court, Ogden Department
The Honorable Joseph Bean
No. 141901838
Samuel P. Newton, Cherise M. Bacalski, and Emily
Adams, Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
DAVID N. M ORTENSEN and R YAN M. HARRIS concurred.
HAGEN, Judge:
¶1 	Benjamin 	Brocksmith 	appeals 	his 	two 	convictions 	for
negligently operating a motor vehicle causing death or serious
bodily 	injury 	while 	knowingly 	and 	intentionally 	having 	a
measurable 	amount 	of 	a 	controlled 	substance 	in 	his 	body.
Because 	we 	conclude 	that 	trial 	counsel 	did 	not 	perform
deficiently 	in 	failing 	to 	raise 	the 	specific 	federal 	and 	state
constitutional issues that Brocksmith now raises on appeal, we
affirm.

State v. Brocksmith
20160680-CA 	2 	2018 UT App 76
BACKGROUND1
¶2 	Brocksmith was driving northbound on Wall Avenue in
Ogden when his SUV veered into the southbound lanes and
collided with another vehicle, inflicting serious bodily injury on
the vehicle’s driver and a passenger. After Brocksmith admitted
that 	he 	had 	used 	“marijuana 	over 	the 	weekend,” 	the
investigating officer obtained a search warrant to conduct a
blood 	draw. 	Blood 	analysis 	revealed 	the 	presence 	of
tetrahydrocannabinol (THC) and THC metabolite.
¶3 	The State subsequently charged Brocksmith with two
violations 	of 	Utah 	Code 	section 	58-37-8(2)(g)–(h)(ii)
(the Measurable Amount Statute), which makes it a crime for a
person to operate a motor vehicle in a negligent manner causing
serious bodily injury or death while knowingly and intentionally
having a measurable amount of a controlled substance in the
person’s body.
¶4 	During trial, Brocksmith orally moved to dismiss the
charges 	against 	him, 	arguing 	that 	the 	Measurable 	Amount
Statute is unconstitutional on its face and as applied under both
the United States and Utah Constitutions. Brocksmith did not
submit a memorandum in support of his motion to dismiss nor
did he provide any legal authority to bolster his contention. In
fact, when the trial court asked him to “elaborate a little further”
by pointing to the “elements of the code section that [he found]
unconstitutional,” Brocksmith could not identify the sections of
the code at issue or any specific constitutional basis for his
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. Calvert, 2017 UT App 212, n.1, 407 P.3d 1098 (quotation
simplified).

State v. Brocksmith
20160680-CA 	3 	2018 UT App 76
argument. Instead, he noted only that the statute does not
provide a “causal nexus” “between the fact that there’s some
trace amount of substance in someone’s blood and [the fact] that
they caused an accident.” In other words, “but for this substance
allegedly being in Mr. Brocksmith’s system, there would be no
criminal count here.”
¶5 	The trial court denied the motion to dismiss, ruling that
the Measurable Amount Statute is constitutional both on its face
and as applied to Brocksmith. The jury convicted Brocksmith on
both charged counts. Brocksmith timely appeals.
ISSUE AND STANDARD OF REVIEW
¶6 	Brocksmith 	contends 	that 	he 	received 	ineffective
assistance of counsel because trial counsel failed to adequately
raise 	federal 	and 	state 	constitutional 	challenges 	to 	the
Measurable 	Amount 	Statute. 	“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 (quotation simplified).
ANALYSIS
¶7 	Brocksmith concedes that two of his issues—whether the
Measurable Amount Statute violates the uniform operation of
laws clause of the Utah Constitution and whether the statute is
unconstitutionally 	vague—are 	unpreserved 	and 	asks 	us 	to
review 	those 	arguments 	under 	the 	ineffective 	assistance 	of
counsel 	exception 	to 	the 	preservation 	requirement. 	But
Brocksmith maintains that he preserved his third issue in which
he 	argues 	that 	the 	Measurable 	Amount 	statute 	is
unconstitutional 	because 	it 	“lacks 	a 	causation 	element 	and

State v. Brocksmith
20160680-CA 	4 	2018 UT App 76
[therefore] 	creates 	a 	presumption 	of 	guilt.” 	We 	begin 	by
analyzing 	whether 	Brocksmith 	preserved 	the 	causation
argument. 	Because 	we 	conclude 	that 	he 	did 	not, 	we 	next
consider 	whether 	Brocksmith’s 	trial 	counsel 	performed
ineffectively by failing to raise the constitutional challenges that
Brocksmith asserts on appeal.
I. Preservation
¶8 	Brocksmith contends that the third issue—whether the
Measurable Amount statute is unconstitutional because it lacks a
causation element—was preserved because he argued to the trial
court that the statute lacked a “causal nexus.” We conclude that
this issue was not properly preserved.
¶9 	“As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Davie, 2011 UT App 380,
¶ 15, 264 P.3d 770 (quotation simplified). “To preserve an issue
for appeal, a party must present it to the trial court in such a way
that the trial court has an opportunity to rule on that issue.” State
v. Bruun, 2017 UT App 182, ¶ 33, 405 P.3d 905 (quotation
simplified). In deciding whether the trial court had such an
opportunity, we consider three factors: “(1) the issue must be
raised in a timely fashion, (2) the issue must be specifically
raised, and (3) the challenging party must introduce supporting
evidence or relevant legal authority.” State v. McDaniel, 2010 UT
App 381, ¶ 2, 246 P.3d 162 (quotation simplified). This rule
“applies to every claim, 	including constitutional questions.”
State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
¶10 	Because 	Brocksmith 	failed 	to 	introduce 	relevant 	legal
authority, we conclude that the causation issue is unpreserved.
“A party may not claim to have preserved an issue for appeal by
merely 	mentioning 	an 	issue 	[to 	the 	trial 	court] 	without
introducing supporting evidence or relevant legal authority.”
Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (quotation
simplified). When pressed by the trial court, Brocksmith failed to

State v. Brocksmith
20160680-CA 	5 	2018 UT App 76
point to any relevant legal authority to support his argument
that criminal statutes must include a causation element. Indeed,
he did not even identify any specific constitutional provision
that might impose such a requirement. Such a cursory mention
of the issue did not provide the trial court with “an opportunity
to address a claimed error and, if appropriate, correct it.” Id.
(quotation simplified). Accordingly, we proceed by analyzing
whether trial counsel was ineffective for failing to raise the three
issues2 that Brocksmith presents on appeal. See State v. Alzaga,
2015 UT App 133, ¶ 40, 352 P.3d 107 (explaining that “because
[the defendant] did not preserve his claims before the trial court,
he must establish plain error, ineffective assistance of counsel, or
exceptional 	circumstances to 	warrant 	review by 	this court”
(quotation simplified)).
II. Ineffective Assistance of Counsel
¶11 	Brocksmith 	contends 	that 	he 	received 	ineffective
assistance of counsel to the extent that his trial counsel failed to
raise three constitutional challenges to the Measurable Amount
Statute. 	Specifically, 	Brocksmith 	claims 	that 	the 	Measurable
Amount 	Statute 	violates 	Utah’s 	uniform 	operation 	of 	laws
provision, that it is unconstitutionally vague, and that it is
unconstitutional because it lacks a causation element. We reject
his argument that any reasonably competent trial counsel would
have raised these novel issues.
¶12 	Under Strickland v. Washington, 466 U.S. 668 (1984), to
prevail on an ineffective assistance of counsel claim, a defendant
must 	demonstrate 	both 	that 	“counsel’s 	performance 	was
2. In light of the Utah Supreme Court’s holdings in State v.
Ainsworth, 2017 UT 60, and State v. Outzen, 2017 UT 30, 408 P.3d
334, Brocksmith withdrew several arguments that had been
presented in his opening brief. Accordingly, the scope of our
review is limited to the three remaining arguments.

State v. Brocksmith
20160680-CA 	6 	2018 UT App 76
deficient” and that “the deficient performance prejudiced the
defense.” Id. at 687; see also State v. Litherland, 2000 UT 76, ¶ 19,
12 	P.3d 	92 	(following 	Strickland’s 	two-part 	test). 	Failure 	to
establish either element defeats a claim for ineffective assistance
of counsel. See Strickland, 466 U.S. at 700.
¶13 	In 	evaluating 	counsel’s 	performance 	under 	the 	first
element, we “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. To overcome that strong presumption, a
defendant “must show that counsel’s representation fell below
an objective standard of reasonableness” as measured against
“prevailing professional norms.” Id. at 688. In other words,
Brocksmith must show that no reasonable trial attorney would
have failed to make the arguments advanced on appeal. See State
v. Curtis, 2013 UT App 287, ¶ 35, 317 P.3d 968.
¶14 	In this case, we need not reach the prejudice element,
because trial counsel’s failure to challenge the constitutionality
of the Measurable Amount Statute did not constitute objectively
deficient performance. Where “a claim of ineffectiveness [is]
based on an oversight or misreading of law, a defendant bears
the burden of demonstrating why, on the basis of the law in
effect at the time of trial, his or her trial counsel’s performance
was deficient.” State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993).
“Counsel cannot be faulted for failing to advance a novel legal
theory which has never been accepted by the pertinent courts.”
State v. Edgar, 2017 UT App 53, ¶ 18, 397 P.3d 670 (quotation
simplified).
¶15 	Brocksmith has failed to cite any legal authority in effect
at the time of his trial suggesting that the Measurable Amount
Statute violated the state constitution’s uniform operation of
laws provision, that it was unconstitutionally vague, or that the
constitution 	requires 	such 	a 	statute 	to 	contain 	a 	causation

State v. Brocksmith
20160680-CA 	7 	2018 UT App 76
element.3 See Dunn, 850 P.2d at 1228. Accordingly, “counsel’s
decision not to raise an issue unsupported by then-existing
precedent did not constitute ineffective assistance.” Brown v.
United States, 311 F.3d 875, 878 (8th Cir. 2002).
¶16 	We 	recognize 	that 	failure 	to 	raise 	a 	constitutional
challenge that has yet to be accepted by the pertinent courts
could constitute ineffective assistance in an appropriate case.
See Taylor 	v. 	State, 	2007 	UT 	12, 	¶¶ 	119–20, 	156 	P.3d 	739
(recognizing the possibility that failure to raise a constitutional
challenge 	to 	the 	death 	penalty 	could 	constitute 	ineffective
assistance under certain circumstances). Certainly, there need
not necessarily be a case on point declaring the particular statute
at issue unconstitutional; indeed, one can envision situations in
which a statute would clearly violate established constitutional
principles, even if no court has yet applied those principles to
the statutory language in question. Where the statute clearly
violates 	established 	constitutional 	principles, 	any 	reasonable
attorney would be expected to challenge its validity. But where
the statute is not clearly unconstitutional, a defendant is not
deprived of the effective assistance of counsel merely because his
attorney 	does 	not 	advance 	every 	conceivable 	non-frivolous
argument. See id. ¶ 119.
3. 	After 	briefing 	in 	this 	appeal 	was 	complete, 	Brocksmith
obtained 	new 	attorneys 	who 	filed 	notices 	of 	supplemental
authority and a motion to rebrief the ineffective assistance of
counsel argument. Like Brocksmith’s briefs, those filings fail to
cite pertinent legal authority in effect at the time of trial that
would have prompted any reasonable trial attorney to raise the
constitutional issues pressed on appeal. As a result, we are
convinced that no amount of rebriefing could demonstrate that
trial counsel performed deficiently, and therefore we deny the
motion to rebrief.

State v. Brocksmith
20160680-CA 	8 	2018 UT App 76
¶17 	In 	this 	case, 	the 	arguments 	Brocksmith 	advances
regarding 	the 	constitutionality 	of 	the 	Measurable 	Amount
Statute are truly novel. Brocksmith supports them largely with
law review articles and academic commentary and does not
direct us to any judicial decision or constitutional provision that
compels a determination that the statute violates established
constitutional principles. Under these circumstances, Brocksmith
cannot establish that any reasonable attorney would have raised
these issues below. Accordingly, trial counsel did not commit an
“error[] so serious that counsel was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland,
466 U.S. at 687.
CONCLUSION
¶18 	We 	conclude 	that 	Brocksmith’s 	trial 	counsel 	did 	not
perform 	deficiently 	in 	failing 	to 	raise 	the 	constitutional
challenges 	to 	the 	Measurable 	Amount 	Statute 	asserted 	on
appeal. Because Brocksmith has not established his claim of
ineffective assistance of counsel, we affirm his convictions.