State v. Johnson

2015 UT App 312
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
LACEY A NN JOHNSON ,
Appellant.
Memorandum Decision
No. 20140310-CA
Filed December 31, 2015
Third District Court, Salt Lake Department
The Honorable Vernice Trease
No. 121907617
Joanna E. Landau, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Memorandum Decision,
in which J UDGE S TEPHEN L. R OTH and S ENIOR JUDGE R USSELL W.
BENCH concurred.1
ORME, Judge:
¶1 	Lacey 	Ann 	Johnson 	(Defendant) 	appeals 	from 	her
convictions on one count of retaliation against a witness, victim,
or informant and one count of misdemeanor threat of violence,
both enhanced under the in-concert enhancement statute.2 Based
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
2. Defendant does not appeal her conviction for misdemeanor
assault.

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20140310-CA 	2 	2015 UT App 312
on the State’s concessions of error with respect to the other
issues raised,3 we consider only the challenge to Defendant’s
retaliation conviction.
¶2 	“When reviewing a jury verdict, we examine the evidence
and all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly.”
State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116.
¶3 	In 2012, Defendant resided near a canal from which a
neighbor 	regularly 	gathered 	crayfish. 	That 	summer, 	the
neighbor’s wife and Defendant were engaged in a dispute over
the misbehavior of Defendant’s dog. The neighbor’s wife called
animal control several times, and each time, Defendant was
fined. 	Finally, 	on 	July 	9, 	2012, 	animal 	control 	impounded
Defendant’s dog and ultimately gave it to an animal rescue
group when Defendant was unable to pay the release fee.
¶4 	Just one month later, on August 10, 2012, the neighbor’s
wife observed Defendant crouched behind a car parked in the
neighbor’s driveway. After Defendant left, the neighbor’s wife
inspected the car and discovered that it had been scratched with
a hard object, presumably a key. The neighbor’s wife confronted
Defendant 	about 	paying 	to 	repair 	the 	damage. 	Defendant
refused, saying, “I don’t have $900 to pay for dog fines either.”
3. As to the in-concert enhancement of Defendant’s retaliation
conviction, the State concedes that the plain-language of the in-
concert enhancement statute precludes the enhancement. See
Utah Code Ann. § 76-3-203.1(5) (LexisNexis 2012). The State
further concedes that the conviction and sentence entered on the
threat-of-violence charge was error because Defendant was not
tried on that charge. The State agrees that we should remand for
the 	trial 	court 	to 	enter 	a 	proper 	judgment 	and 	sentence
correcting these errors.

State v. Johnson
20140310-CA 	3 	2015 UT App 312
The neighbor’s wife then called police who, later that evening,
issued Defendant a citation for criminal mischief.
¶5 	Immediately thereafter, the neighbor invited a friend to
the canal to demonstrate how to catch crayfish. From among
several possible routes to the canal, the neighbor chose the
course that passed nearest to Defendant’s house. As the neighbor
and the friend approached, Defendant began to yell obscenities
and told them to leave. She also referred to the neighbor as a
“cop caller” and yelled for someone inside her home to bring her
a taser. The neighbor responded that he would “shove [the taser]
down [Defendant’s] throat.” Aware that Defendant had recently
lost a child to sudden infant death syndrome, he also said, “Why
don’t you get high and pass out on another one of your babies,
bitch.”
¶6 	The neighbor and the friend continued down to the canal.
Shortly 	after 	arriving, 	the 	neighbor 	heard 	Defendant
approaching while continuing to yell “cop caller” and also heard
an electronic “buzzing” sound. Concerned for their safety, the
neighbor and the friend left the canal another way, thereby
avoiding Defendant’s house. However, Defendant, Defendant’s
mother, and Defendant’s boyfriend confronted the neighbor and
the friend and blocked their way. Defendant’s mother struck the
neighbor in the head and Defendant kicked him in the left thigh.
After escaping, the neighbor called police, who returned about
an hour after Defendant had been cited for the keying incident
and took Defendant into custody.
¶7 	For her role in the assault, the State charged Defendant
with retaliation against a witness, victim, or informant with an
in-concert 	enhancement; 	assault 	with 	an 	in-concert
enhancement; 	and 	threat 	of 	violence 	with 	an 	in-concert
enhancement. See Utah Code Ann. §§ 76-3-203.1(2), 76-8-508.3(2),
76-5-107(1) (LexisNexis 2012). At trial, the court submitted only

State v. Johnson
20140310-CA 	4 	2015 UT App 312
the retaliation and assault charges to the jury, and the jury found
Defendant guilty on both counts.
¶8 	In considering Defendant’s challenge to her retaliation
conviction, we begin with what Defendant does not contest. The
retaliation statute makes a person criminally liable if that person,
believing 	that 	an 	official 	proceeding 	or
investigation is pending, is about to be instituted,
or has been concluded, he makes a threat of harm;
or causes harm; and directs the threat or action
against a witness or an informant regarding any
official proceeding, a victim of any crime, or any
person closely associated with a witness, victim, or
informant; and as retaliation or retribution against
the witness, victim, or informant.
Utah 	Code 	Ann. 	§ 	76-8-508.3(2) 	(LexisNexis 	2012) 	(spacing
reformatted and subsection symbols omitted). Defendant does
not contest that she (1) caused harm, (2) “direct[ed] the . . . action
against” 	a 	witness, 	informant, 	or 	victim 	of 	an 	offense 	she
committed, and (3) believed an investigation or proceeding was
pending against her at the time. See id. Instead, conceding these
elements were met, she challenges only the sufficiency of the
State’s 	evidence 	suggesting 	that 	she 	intended 	to 	“retaliate”
against the neighbor.
¶9 	Defendant 	argues 	that, 	in 	light 	of 	the 	neighbor’s
provocative words moments before she attacked—his mean-
spirited reference to Defendant’s recently deceased child and his
threat to shove a taser down her throat—there was insufficient
evidence to find, beyond a reasonable doubt, that she was
motivated not by these provocations but by an intent to retaliate
for the citation when she assaulted the neighbor. She contends
that 	the 	only 	reasonable 	inference 	is 	that 	she 	attacked 	the
neighbor because of his threat and insult. Defendant concedes

State v. Johnson
20140310-CA 	5 	2015 UT App 312
that this issue was not preserved for appeal, and thus she seeks
review under the plain-error and ineffective-assistance doctrines.
¶10 	To 	establish 	plain 	error 	on 	a 	claim 	of 	insufficient
evidence, “a defendant must demonstrate first that the evidence
was insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.” State
v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. The relative strength of
two alternative, reasonable inferences drawn from the evidence
is a question for the jury at trial. State v. Ramirez, 2012 UT 59,
¶ 13, 289 P.3d 444. “When the evidence presented is conflicting
or disputed, the jury serves as the exclusive judge of both the
credibility of witnesses and the weight to be given particular
evidence.” State v. Workman, 852 P.2d 981, 984 (Utah 1993).
Therefore, although a defendant’s alternative hypotheses may
appear reasonable to this court, a jury may still conclude “that
[the] defendant is guilty beyond a reasonable doubt.” State v.
Blubaugh, 904 P.2d 688, 695 (Utah Ct. App. 1995). Indeed,
a 	finding 	that 	a 	defendant 	is guilty 	beyond 	a
reasonable doubt is necessarily a finding that any
alternative hypothesis of innocence presented at
trial was not reasonable under the jury’s view of
the evidence. Consequently, an appellate court will
reverse such a finding only where no reasonable
juror could have taken that view of the evidence.
State v. Cardona-Gueton, 2012 UT App 336, ¶ 12, 291 P.3d 847
(emphasis in original). See also State v. Lucero, 2012 UT App 202,
¶ 	13, 	283 	P.3d 	967 	(holding 	that 	merely 	“‘[c]ontradictory
[evidence] alone is not sufficient to disturb a jury verdict’”)
(quoting State v. Watts, 675 P.2d 566, 568 (Utah 1983)) (alterations
in original); State v. Buck, 2009 UT App 2, ¶ 14, 200 P.3d 674
(concluding that a jury may reject a defendant’s reasonable
alternative explanation of the evidence).

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¶11 	As long as there is some evidence from which all the
necessary elements of the charged offenses can be proved, there
is sufficient evidence to find the defendant guilty beyond a
reasonable doubt. Lucero, 2012 UT App 202, ¶ 13. It is the jury’s
duty—not the appellate court’s—to weigh that evidence and
make a determination of fact; thus, “[o]rdinarily, a reviewing
court may not reassess credibility or reweigh the evidence, but
must resolve conflicts in the evidence in favor of the jury
verdict.” Workman, 852 P.2d at 984.
¶12 	Defendant’s 	proffered 	evidence 	of 	her 	alternate
motivation 	for 	the 	assault 	on 	the 	neighbor 	is 	“merely
contradictory.” See Lucero, 2012 UT App 202, ¶ 13. Defendant
suggests, for example, that her supposed fear of the neighbor,
coupled with his inflammatory statements, was so extreme that
she obviously must have “acted in defense of [his] provocation”
and not in response to “his role in any official proceeding or
investigation.” Defendant’s personal view of events does not,
however, render the State’s evidence “sufficiently inconclusive
or inherently improbable” so as to warrant a reversal. Id. ¶¶ 12–
13 (citation and internal quotation marks omitted). Juries are
often confronted with evidence supporting alternative theories
and 	asked 	to 	weigh 	the 	evidence 	for 	and 	against 	each
explanation. See, e.g., id. ¶¶ 10–12. And it is expected that the
jury, 	in 	reaching 	its 	decision, 	will 	choose 	to 	believe 	one
explanation even as it disregards the other. Id. ¶ 13.
¶13 	In the instant case, the jury might have found it difficult
to accept that Defendant was acting defensively, much less in
fear 	for 	her 	safety, 	when 	Defendant, 	her 	mother, 	and 	her
boyfriend purposely left her house to find, confront, and assault
the neighbor—who by that time had ceased to engage with
Defendant. Especially with Defendant repeatedly calling the
neighbor 	a 	“cop 	caller” 	before 	and 	during 	the 	assault, 	the
evidence was sufficient for the jury to conclude that Defendant
was at least partially motivated to attack the neighbor because of

State v. Johnson
20140310-CA 	7 	2015 UT App 312
residual anger from the citation she so recently received—anger
that was perhaps intensified by the neighbor’s wife’s previous
complaints 	about 	her 	dog, 	the 	resulting 	citations, 	and 	the
eventual loss of her dog. Furthermore, section 76-8-508.3 does
not require Defendant to act with the single-minded motive of
retaliation—and we decline to read in such a requirement. See
Utah Code Ann. § 76-8-508.3(2)(b)(ii) (requiring only that the
person 	“directs 	the 	threat 	or 	action 	. 	. 	. 	as 	retaliation 	or
retribution”).
¶14 	Therefore, the neighbor’s provocation of Defendant as a
possible explanation for her assault on him did not preclude her
conviction for retaliation. “Given the evidence and the inferences
reasonably drawn therefrom, there was sufficient evidence to
support the conviction.” State v. Stringham, 2013 UT App 15, ¶ 4,
295 P.3d 1170 (per curiam). “We accordingly affirm, as we
cannot conclude in light of this evidence that ‘reasonable minds
must have entertained a reasonable doubt’ about the essential
elements” of Defendant’s retaliation charge. State v. Nielsen, 2014
UT 10, ¶ 49, 326 P.3d 645 (quoting State v. Maestas, 2012 UT 46,
¶ 177, 299 P.3d 892) (emphasis added).
¶15 	Our analysis under the rubric of ineffective assistance of
counsel is similar. Ineffective assistance, like plain error, is an
exception to the preservation rule. State v. Kozlov, 2012 UT App
114, ¶ 35, 276 P.3d 1207. To win reversal on ineffective-assistance
grounds, 	a 	defendant 	must 	prove 	both 	that 	counsel’s
performance was objectively deficient and that it resulted in
prejudice. Id. Thus, “a failure to prove either element defeats the
claim.” State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769. Our
resolution 	of 	Defendant’s 	plain-error 	claim 	resolves 	her
ineffective-assistance claim because if the trial court did not
plainly err in submitting the charge to the jury, it follows that
counsel’s acquiescence in the charge being submitted was not
objectively deficient performance. State v. Gailey, 2015 UT App
249, ¶ 7, 360 P.3d 805.

State v. Johnson
20140310-CA 	8 	2015 UT App 312
¶16 	As 	explained 	above, 	“the 	evidence 	and 	reasonable
inferences to be drawn therefrom were sufficient to support the
jury’s verdict.” Stringham, 2013 UT App 15, ¶ 5. Thus, a motion
for 	directed 	verdict 	would 	have 	been 	futile. 	Because 	the
failure to file a futile motion is not an error, State v. Kelley, 2000
UT 41, ¶ 26, 1 P.3d 546, “trial counsel did not render deficient
performance 	by 	failing 	to 	make 	a 	motion 	for 	a 	directed
verdict . . . [based 	upon] 	the 	sufficiency 	of 	the 	evidence,”
Stringham, 2013 UT App 15, ¶ 5. Thus, Defendant’s “failure to
prove [deficient performance] defeats the claim.” Hards, 2015 UT
App 42, ¶ 18.
¶17 	In summary, Defendant has not shown plain error in her
conviction on the retaliation charge, because there was sufficient
evidence of retaliation to support each element charged. The jury
was entitled to accept the evidence it believed and reject the
evidence it did not, while this court is bound to view the
evidence as it best supports the jury’s verdict. Because there was
sufficient evidence to submit the retaliation charge to the jury,
trial counsel was not ineffective when he chose not to raise a
futile motion to the contrary. While we affirm Defendant’s
retaliation conviction, we remand for the trial court to correct
Defendant’s other convictions and her sentence.